181 Wis. 312 | Wis. | 1923
The plaintiff urges, first, that sec. 905 of the Statutes of 1915, being the same as in the Statutes of 1917, is unconstitutional for the reason that it does not limit the special assessment to the actual benefits received by the property owner, and that the statute and the proceedings thereunder, therefore, are in violation of the Fourteenth amendment of the federal constitution and of sec. 13, art. I, of the state constitution, which section provides: “The property of no person shall be taken for public use without just compensation.”
“The village board of any village in any county having a population of one hundred and fifty thousand or more may cause any such work to be done upon a vote of not less than three fourths of its members. For the purpose of so improving any street the village board may levy and cause to be collected upon the lots, tracts or parcels of ground fronting or abutting upon such street or part of street improved, and upon the owners thereof, a tax sufficient to pay the expense of constructing such improvement as ordered opposite such property to the center of the street or such proportion thereof, riot less than half, as they shall deem justly assessable to such property, if they shall think the whole ought not to be so assessed, in which case the remainder shall be paid from the village treasury. If any tax levied under this section shall prove insufficient to pay the cost or proportion thereof assessed to such property the village board may levy an additional tax thereon to make good such deficiency.”
This court has consistently and in numerous cases held, in harmony with decisions in other jurisdictions, that an assessment of the nature of the one involved in the instant case must be based upon benefits. Johnson v. Milwaukee, 40 Wis. 315; Liebermann v. Milwaukee, 89 Wis. 336, 61 N. W. 1112; Hayes v. Douglas Co. 92 Wis. 429, 65 N. W. 482; Kersten v. Milwaukee, 106 Wis. 200, 81 N. W. 948, 1103; Lathrop v. Racine, 119 Wis. 461, 97 N. W. 192; Boettger v. Two Rivers, 157 Wis. 60, 144 N. W. 1097, 147 N. W. 66.
While in the case at bar it is alleged, among other things, that the village board did not levy this assessment upon a consideration of actual benefits, it is contended, and properly so, by the plaintiff that whether such assessments were so levied or not, the proceedings cannot be upheld if the statute involved must be so construed as to authorize an assessment upon a basis other than that of benefits. In other
In Lathrop v. Racine, 119 Wis. 461, 97 N. W. 192, it was held that provisions of the city charter authorizing the common council to order riparian owners to build docks along a navigable river or harbor and, if they failed to do so within the time specified, to award contracts for. the work and charge the cost as a special assessment upon the property upon or in front of which the docks are built, regardless of the question of special benefit accruing thereto, are invalid as authorizing the taking of private property for public use without compensation, and such charter, provisions are not justified as an exercise of police power. (See paragraphs 2 and 3 of the syllabus.) The language of the other Wisconsin cases above referred to is of like tenor.
It is claimed by counsel for the defendants that while said sec. 905 does not in express language confine the assessment to benefits received, nevertheless the expressions used therein are such as to indicate an implied intent on the part of the legislature that proceedings thereunder shall be based upon actual benefits received; and to substantiate their view attention is called to that portion of the statute wherein, among other things, it is said:
“For the purpose of so improving any street the village board may levy and cause to be collected upon thé lots, tracts or parcels of ground fronting or abutting upon such street or part of street improved ... a tax ... as they shall deem justly assessable tO' such property.”'
Defendants’ counsel refer to 2 Page & Jones, Taxation by Assessment, §§ 695, 696, where, among other things, it
A careful reading of the statute involved is persuasive that the provisions thereof do not confine the assessment to actual benefits received by the property. The act pertaining to the levying of the assessment starts out as follows:
“For the purpose of so improving any street the village board may levy and cause to be collected upon the lots, tracts or parcels of ground fronting or abutting upon such street or part of street improved, and upon the owners thereof, a tax sufficient to pay the expense of constructing such improvement as ordered opposite such property to the center of the street. ...”
If that portion of the act just quoted stood alone, it is clear that the power granted therein authorizes an assessment to the full extent of the cost, without any reference whatsoever to the actual benefits received. Continuing, the act says: “or such proportion thereof, not less than half, as they shall deem justly assessable to such property, if they shall think the whole ought not to be so assessed, in which
The remaining portion of the statute, which provides, “If any tax levied under this section shall prove insufficient to pay the cost or proportion thereof assessed to such property, the village board may levy an additional tax thereon to make good such deficiency,” adds to the offense that this statute evidently gives to- the constitutional provisions by authorizing assessments in excess of prior assessments levied under the preceding provisions of the statute.
Defendants’ counsel cii»e the following cases in support of the proposition that where the statute contains language similar to that contained in said sec. 905, authorizing the board to levy a tax, etc., as they shall deem justly assessable to such property, such language must be construed in favor of a tax based on benefits: Smith v. Newark, 32 N. J. Eq. 1; People ex rel. O’Reilly v. Common Council, 114 App. Div. 326, 99 N. Y. Supp. 657; State ex rel. Hutton v. West Orange, 39 N. J. Law, 453; Allison L. Co. v. Tenafly, 68 N. J. Law, 205, 52 Atl. 231; and People ex rel. Howlett v. Syracuse, 63 N. Y. 291.
While the statutes under which the improvement in the cases cited contain language similar to that contained in said sec. 905, nevertheless each statute contains an express
Defendants’ counsel, however, further claim that under sec. 905m the provisions of secs. 1210d, 1210e, 2010ee, 1210f, 1210g, and 1210h, inclusive, of the Statutes shall apply to villages. Sec. 1210d, among other things, provides:
“Where the work of constructing any sewer or grading, graveling, planking, macadamizing, paving or repaving any street or alley, or part thereof, or the curbing of or sodding along any sidewalk or the paving of any gutter or the building or repair of any dock in any city has been done, or may hereafter be done, and any special assessment has been or may be made against any property for such work, and such special assessment or any special assessment certificates, tax sale, tax-sale certificate or special improvement bond based thereon is invalid because of such work having been done without authority of law, or for failure to make a proper assessment of benefits and damages, or to observe any provision of law, either in adopting any part of chapter 40a of the Statutes of 1898, or otherwise, or because of any act or defect in the proceedings upon which such assessment, certificate, sale or bond is based, or because of any provision contained in the contract for doing such work not authorized by law, . . . the city authorities shall proceed to' malee a new assessment of benefits and damages in the manner required by law. . . .”
It will thus be seen that sec. 121CM was enacted for the purpose of authorizing reassessment in cities, and that under the provisions of sec. 905m, sec. 12KM and other sections referred to are made applicable to villages. The record, however, does not disclose that the second assessment was made
The defendants separately rely, in one of their demurrers, upon the provisions of sec. 925- — 197 of the Statutes of 1917, and contend that under such section plaintiff’s action is barred. Sec. 925 — 197, Stats. 1917, provides as follows:
“Every action or proceeding tO' avoid any of the special assessments or taxes levied pursuant to the same, or to restrain the levy of such taxes or the sale of lands for the nonpayment of such taxes, shall be brought within nine months from the end of the period of thirty days limited by the city improvement notice provided for by section 925 — 191, and not thereafter. This limitation shall cure all defects in the proceedings, and defects of power on the part of die officers making the assessment, except in cases where the lands are not liable to the assessment, or the city has no power to' make any such assessment, or the amount of the assessment has been paid or a redemption made.”
The thirty-day period referred to in this section having elapsed, and the action not having been commenced within a period of nine months thereafter, plaintiff’s action is barred unless it comes within one of the three exceptions
The other demurrer, based on the one-year limitation statute included in sec. 1210h, is of no avail to the defendants herein for the same reason. Knox v. Cleveland, 13 Wis. 245; Oconto Co. v. Jerrard, 46 Wis. 317, 50 N. W. 591; Oshkosh City R. Co. v. Winnebago Co. 89 Wis. 435, 61 N. W. 1107; Hamar v. Leihy, 124 Wis. 265, 102 N. W. 568.
.Having concluded that sec. 905 is unconstitutional and that the various assessments referred to in the complaint are therefore invalid, the plaintiff is entitled to relief from a court of equity as prayed for in the complaint; and we also hold that the mere delay in the bringing of plaintiff’s action cannot validate a void assessment under a statute declared unconstitutional. The order of the circuit court is therefore affirmed.
By the Court. — Order of the lower court overruling the demurrer affirmed.