Meinzer v. City of Racine

68 Wis. 241 | Wis. | 1887

Cassodat, J.

The common council of the city bad the power, when properly invoked, to open, widen, straighten, and vacate streets and alleys and establish and alter the grades thereof.” Charter, subd. 32, sec. 3, tit. IY, ch. 313, Laws of 1876, p. 733. There is no claim, and the complaint negatives any ground for claiming, that the alleged improvement was the taking of the plaintiff’s private property,— the land in question,— for a public street by any proceedings for condemnation as prescribed by the charter. Secs. 1-24, tit. Y. The common council may cause any street to be graded, paved, macadamized, or graveled, and order the expense of such improvements to be ascertained, and the costs of such work or improvement to be levied and charged against the lots or real estate fronting or abutting on such street, to the amount which such improvement shall be adjudged by the common 'council to benefit such lots; and when a change in the grade of any street is ordered, the expense of cutting or filling incurred by such change of grade shall be chargeable to and paid by special assessment-on the lots or property fronting or abutting on the street of which the grade shall be so changed. Charter, sec. 1, tit. YI, ch. 180, Laws of 1880. Whenever the common council shall deem it necessary to grade or otherwise improve any street not otherwise provided for, it shall cause to be made an estimate of the costs of such work, and shall put the same on file in its .office; and such estimate shall be open to inspection of any party interested. Sec. 5, Id. No such work chargeable to lots or parcels of land fronting or abutting on the same, except repairs, etc., shall be ordered unless the requisite petition therefor shall be first presented to the common council, or unless, in the absence of such petition, the requisite resolution of the common council ordering such work, after having laid over for one meeting, shall receive the votes of three fourths of the aldermen elected, to be taken by yeas and nays duly en*245tered in the journal of the proceedings. Ibid. Before ordering any such work to be done by the owner of lots or lands fronting on the same, the common council shall ascertain and consider the amount proposed to be made chargeable against said several lots or pieces of land, and the benefits which in its opinion will actually,accrue to the owners of the same in consequence of such improvement, and assess against the same, respectively, the amount of such benefit; and in case such benefits amount to less than the cost of the improvements, the balance shall be paid out of the ward fund in which the improvement is made. Sec. 6, Id. As soon as any such assessment shall be made, the requisite notices shall be given to the owners of such land and all parties interested. Secs. 7, 8, Id.

The complaint alleges, in effect, that the common council claim and pretend that such work, or the cost thereof, is chargeable to the plaintiff’s said premises, as fronting the same, and that the said work is such that if it were lawfully done it would be chargeable to said plaintiff’s lot. It then negatives the claim that said work is of any different kind or character than above mentioned; also the making or presenting of such or any petition; also such passage or any passage of any such resolution; also the taking of any such vote. The complaint also alleges affirmatively that the defendant wrongfully and unlawfully did the several acts complained of. Ve must hold the allegations of the complaint sufficient to bring the case within the decisions of Crossett v. Janesville, 28 Wis. 420; Dore v. Milwaukee, 42 Wis. 108. It is true the charter expressly prohibited the improvement made in the Orossett Case in the absence of the requisite recommendation in writing. The same may be fairly implied, as to the particular work in question, from the provisions of the Racine charter referred to. It is to be remembered that the common council only had such powers as were expressly granted by statute or necessarily *246implied therefrom. Mayor v. Hughes, 1 Gill & J. 480, 19 Am. Dec. 243; Collins v. Hatch, 18 Ohio, 523, 51 Am. Dec. 465; Thompson v. Schermerhorn, 6 N. Y. 92, 55 Am. Dec. 385; State v. Comm’rs of Mansfield, 23 N. J. Law, 510, 57 Am. Dec. 409; Davis v. Mayor, 14 N. Y. 506, 67 Am. Dec. 186; Logan City v. Bucle, 4 Am. & Eng. Corp. Cas. 300; Whelen’s Appeal, 108 Pa. St. 162; Fertilizing Co. v. Hyde Parle, 97 U. S. 660; State ex rel. Priest v. Regents, 54 Wis. 170; Gilman v. Milwaukee, 61 Wis. 592; Attorney General v. Great Eastern Ry. 33 Eng. (Moak), 768. With this view of the law, and the allegations of the complaint being such as to preclude any right to make the improvement in question at the expense of the city or the ward, as in some of the cases cited, the unlawfulness of the acts complained of is apparent.

By the Oourt.— The order of the circuit court is affirmed.