Newton v. City of Superior

146 Wis. 308 | Wis. | 1911

Lead Opinion

The following opinions were filed February 21, 1911:

Siebeokee, J.

The appellants insist that the court had no jurisdiction to entertain the equity action for the reason that ch. 539, Laws of 1909 (sec. 959 — 30g, Stats.), provides the only remedy available to tbe plaintiffs for the relief sought in these equity actions. This section provides :

“Sec. 959' — 30(7. If the owner of any parcel of land affected by such determination of.,the council feels himself aggrieved thereby, he may within twenty days after the date of the first publication of such notice of final determination appeal therefrom to the circuit court, and such appeal shall be taken, tried, and determined, and bonds for .costs shall be given and costs awarded in like manner as in ease of appeals from the disallowance of claims under chapter 40a, R. S. 1898, provided that said appeal shall not affect said contract, but certificates or improvement bonds, -as the case may be, against the land in question, for the amount of benefits assessed to such land, shall be issued notwithstanding such appeal; and in case the appellant shall succeed, the difference between the amount charged in the certificates or bonds so issued and the amount adjudged to be paid as benefits accruing to the parcel of real estate described in such certificates or bonds shall be paid by the city at large or out of the ward funds, as the council may direct. The appeal aforesaid shall he the only remedy of the owner of any parcel of land, or of any person interested therein, affected by said improvement, for the redress of any grievance he may have by reason of the making of such improvement, or of the change of any established grade covered by said report(Italics ours.)

These actions are brought to restrain the city and its officers from issuing improvement certificates for the cost of the new improvement assessed against the property of the plaintiffs abutting on the improved avenue, upon the ground that the city erroneously failed to deduct from the cost of this improvement apportionable to plaintiffs’ property the amounts assessed against these lots to pay .the cost of the pavement made in 1892. There is no controversy but that the new improvement was made pursuant to the provisions authorizing it up to and including the final determination of the common council of the amounts to be paid by the several parcels of real estate benefited, but the city clerk published only one notice of such final determination of the common council in the official paper, instead of one each week for two successive weeks. 'This omission in the proceedings does not affect the jurisdiction of the council to make the improvement and to assess the ■costs thereof as authorized, and hence this question need not he considered in these equity actions. The alleged injuries •complained of are that the council erroneously failed to deduct from the amounts apportioned and assessed against the lots of the plaintiffs as the cost of the improvements the sums paid by the owners of such lots as assessments for the cost of the improvements made in 1892. It is averred that the city is required to make such deduction pursuant to sec. 959 — 35, Stats. (Laws of 1909, ch. 329), under which no property fronting on a street or avenue is exempt from assessments for the cost of such improvements until it shall have paid in assessments in the aggregate the sum of $2 per square yard. It is also alleged that the city officers threatened to proceed to issue street improvement certificates for such excessive amounts against the lots of the plaintiffs and thus would injure plaintiffs by creating a cloud upon their titles to such lots. The question is, Does the appeal awarded by sec. 959 — 30g, Stats. (Laws of 1909, ch. 539), afford the plaintiffs all the relief they are entitled to for these alleged injuries ? The provisions of this section were originally substantially embodied in ch. 326, Laws of 1889, and were re-enacted in .‘secs. 925 — 184'and 925 — 185, Stats. (1898). They were also incorporated in the charter of the city of Superior as amended in 1891, and were considered and interpreted by this <court in the case of Hayes v. Douglas Co. 92 Wis. 429, 447, 65 N. W. 482. It was there stated, in speaking of this stafr-.ute:

“It is obvious that upon this appeal only the proper amount ■of benefits to the particular lot can be investigated. No remedy appropriate to any other wrong is given. It furnishes .no remedy by which to avoid an unequal and void assessment. Clearly, the appeal is no adequate remedy for the lotowner in this case; and it will not be presumed that the legislature intended the appeal given to be the exclusive remedy, except as ;to matters which can be redressed upon the appeal.”

The tax assailed in that case was held void upon various grounds which need not now he stated in detail. Is the limitation so placed upon this statute permitting an appeal from the assessment to be applied, as there declared, to the enactment of ch. 539, Laws of 1909 (sec. 959 — 30g, Stats.) ? As stated above, the context of the act considered in the Hayes Gase is substantially the same as of this act. Since the legislature has recently re-enacted it as the general law of the state, we deem it appropriate to re-examine the provisions of the act and to determine whether the construction given the act as it was contained in the charter of the city of Superior •should be followed. Is there anything in this section (sec. 959 — 3Op, Stats.) to show that the restriction so given the provision by this court should be modified? A study of the context of the new section has led us to the conclusion that the legislature intended that the remedy provided by it should include relief for all grievances of the property owner arising out of the proceedings taken by the common council and respecting its compliance with the steps required to be taken by the city authorities in the proceedings for making such improvements and assessing the proper proportions of the cost thereof to the property liable therefor. On such appeal the parties should not be restricted to an investigation of the question of whether or not the proper amount of benefits has been assessed against the lots, as was held in the Hayes Gase. Erom the various provisions of the act it appears to us that the legislature intended to provide that on such appeal the •court should have the right to investigate the proceedings actually taken and to ascertain whether or not there were fatal •omissions in the course of the proceedings taken by the municipal authorities in making the improvements, and to award such relief as the actual state of. the proceedings demanded to protect the appellants from any wrongful invasion of their rights flowing from a failure to comply with the statutes. We can perceive, no reason why parties seeking relief from errors .in the proceedings should not be required to seek it after the final determination of the council by an appeal in the proceeding. The procedure affords a speedy, ample, and effective remedy to prevent injury from any errors committed by the council in authorizing the improvement and assessment,, and it will enable the court to investigate complaints against the course pursued by the council in authorizing such a public improvement and thus prevent the inconvenience and large-expense incident to the institution of actions by the lotown-ers. This law, furthermore, specifically declares that “said appeal shall not affect said contract, but certificates or improvement bonds, as the case may be, against the land in question, for the amount of benefits assessed to such land, shall be issued notwithstanding such appeal,” and directs payment from city funds of any difference between such a certificate- and the amount found due on such appeal. This provision clearly is a legislative declaration that the issuance of an improvement certificate for the cost of such improvements shall not be prohibited. The reason therefor is apparent. Under the scheme of improvement provided, the contractor is dependent for his payment on the benefits assessed. Any prohibition on the issuance of certificates is likely to result in frustrating the efforts of a city to secure responsible and reliable-bidders at reasonable prices for making such improvements. These provisions of the law secure to the contractor his pay and place on the city the consequences of mistakes and defaults in making the improvements and collecting the costs thereof. It seems to us obvious from the context that it was intended that the remedy by injunction, prohibiting the issuance of such certificates in cases where an appeal lies under the act, should be denied to lotowners, and that the formerly existing equitable remedy for such a complaint should be abridged to that extent. Applying the provisions of this act to the instant case, we find that the relief sought by the plaintiffs is remediable on appeal from the final determination of the council fixing the amount to be paid by the real estate as the benefits on account of this improvement. Since, as heretofore indicated, these actions are brought to discharge real estate from the assessments against it, or to reduce the assessments by deducting the amounts formerly assessed and paid thereon for pavements, and to restrain the issuance of improvement certificates, they should not be entertained, and the parties should be required to seek redress for both the alleged and threatened wrongs by appeals from the final determination of the council, the only remedy available to them.

3STo judgments were entered in the appeal actions, nor were they consolidated with the equitable actions so as to require but one judgment in all the actions before the court. Under such a state of the record the actions on appeal from the council determination cannot be reviewed in this court, nor can the merits thereof be determined on this appeal, though the parties requested a final determination thereof on this hearing. Any attempt to accomplish this result would be ineffectual before judgment is entered in the appeal actions in the lower court.

By the Qouri. — The judgments entered in the equity actions must be reversed, and the causes be remanded to the trial court with directions to enter judgments of dismissal.

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Dissenting Opinion

Bakues, J.

(dissenting). The case of Hayes v. Douglas Co. 92 Wis. 429, 65 N. W. 482, involved the same statute that is involved in the case before us, and is expressly overruled by the majority opinion. The cases of Watkins v. Milwaukee, 52 Wis. 98, 8 N. W. 823; Liebermann v. Milwaukee, 89 Wis. 336, 61 N. W. 1112; Kersten v. Milwaukee, 106 Wis. 200, 81 N. W. 948; and Spence v. Milwaukee, 132 Wis. 669, 113 N. W. 38, are likewise overruled. When the foregoing cases were decided, secs. 11 and 12 of subeh. YII of ch. 184, Laws of 1874, being the charter of the city of Milwaukee, were in effect. Sec. 11 provided for a remedy by appeal, and sec. 12 made such remedy exclusive. I think, in substance •and effect, the case of Harrison v. Milwaukee, 49 Wis. 247, 5 N. W. 326, is also overruled. This case involved an assessment for benefits accruing from the extension of a waterworks ■system, and the provision pertaining to- this improvement (sec. 19, subch. X, ch. 184, Laws .of 1874) provided for a remedy by appeal, but did not make it exclusive. If, how•ever, the remedy provided was adequate, it was exclusive in the absence of an express declaration to that effect. Meyer v. Garthwaite, 92 Wis. 571, 66 N. W. 704; Burnham v. Norton, 100 Wis. 8, 75 N. W. 304; Goyke v. State, 136 Wis. 557, 117 R. W. 1027, 1126; A. H. Stange Co. v. Merrill, 134 Wis. 514, 115 N. W. 115; Washington Co. v. Schrupp, 139 Wis. 219, 120 N. W. 856; Potter v. Frohbach, 133 Wis. 1, 112 N. W. 1087.

The real princijde underlying the decision in Hayes v. Douglas Co., the numerous Milwaukee special assessment cases cited, and Stange Co. v. Merrill, is that the statutory remedy was not exclusive because it did not furnish a full measure of relief. The party complaining had a right to resort to equity to prevent a threatened cloud being placed on his title, and if the cloud had attached before suit was begun, then resort might be had to equity to remove it. The main purpose of the appeal statutes referred to probably was to prevent the •granting of injunctive relief, although it is by no means certain that they do so.

If on an appeal all rights and remedies can be asserted by the property owner that he could obtain in an equitable action, then it is wholly immaterial to the municipality whether the proceeding is by appeal or in equity; in fact the former may ■operate to its disadvantage. In an equity case the court has discretion to deny costs, while it must award them on the appeal. If the remedy by appeal is inadequate, that is a good reason for holding that it is not exclusive. If it is adequate, nothing is gained by overruling the decisions referred to. The decision can have little practical effect except as to pending cases. Attorneys and litigants had a right to rely on an established rule of practice, and it seems to me it was wholly useless to indulge in any such a wanton slaughter of cases to-accomplish nothing. I desire to further suggest that in my judgment the decision in the present case is not in harmony with that in Northern Pac. R. Co. v. Douglas Co. 145 Wis. 288, 130 N. W. 246, which involved the same statutes that are here involved. An artistic distinction is drawn between the cases, but it seems to me to be a distinction without a difference. In the Northern Pacific Case the city officers erred in making a special assessment against property for a street improvement which they considered adjacent to the property,, but which this court holds was not “adjacent” within the meaning of the law. In the cases we are considering the city officers erred in making an assessment against property that-was abutting and adjacent, but which was exempt from assess^ ment by reason of having already contributed all the law permitted to be assessed for such purposes. It is said that the Northern Pacific Case does not fall under the appeal statute because the land “was not affected by the improvement.” It seems to me that, where a large amount of tax is levied against a lot for repairing a street, such lot is decidedly affected by the improvement. If' it were thought that the words quoted pertained to enhancement of value because of the improvement, still the appeal would lie. The court found on sufficient evidence that the value of the lot was enhanced to the amount of the assessment, and it follows that the lot-must have been “affected” by it. Making two classes of cases, in one of which property owners must seek relief against special assessments by appeal and in the other by an action in equity, is liable to lead to undesirable confusion. I think the former decisions of the court should be adhered to.

Winslow, O. J. I concur in the views of Mr. Justice-BARNES.

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Rehearing

The respondents moved for a rehearing. The following ■opinion was filed June 1, 1911:

SiebeckeR, J.

Respondents in their motion for a rehearing strenuously assert that the decision of the court denying the right to equitable relief is predicated on a construction of •sec. 959 — SOg, Stats. (Laws of 1909; ch. 539), which is in conflict with the decision in Pier v. Fond du Lac, 38 Wis. 470, and with the decision in Hayes v. Douglas Co. 92 Wis. 429, 65 N. W. 482, wherein it is claimed like statutory remedies of appeal from special assessment proceedings were provided, and with Johnson v. Milwaukee, 40 Wis. 315, and with subsequent cases construing secs. 11 and 12 of ■ch. YII of the Milwaukee city charter, which sections provide for appeals from the determination of the common council in assessing benefits and damages for street improvements and •changes of street grades. The Milwaukee charter provisions provide that the owner of lands, who feels himself aggrieved “as to the amount of benefits . . . adjudged to accrue to him by reason of any improvements charged against his lot or parcel of land, or the amount of damages, costs and charges, arising to such owner from an alteration of grade, may, . . . within twenty days after such confirmation by the common •council, appeal therefrom to the circuit court,” and the appeal thus given “shall be the only remedy for the recovery of any ■damages, costs and charges” arising from or sustained by reason of such alteration of grade or by reason of any proceedings relating to the assessment of benefits or damages. The charter provision involved in the Pier Gase gave an appeal to a lot-owner “as to the amount of the benefits . . . adjudged to accrue to him by reason of any improvements charged against his lot or parcel of land.” The language of sec. 959- — -30g gives •an appeal in such improvement proceedings to owners of land ■affected, and provides that “the appeal . . . shall be the only remedy of the owner of any parcel of land, or of any person interested therein, affected by said improvement, for the redress of any grievance be may have by reason of the making of sncb improvement, or of the change of any established grade. ...” A comparison of the contests of the last •statute and those of the Milwaukee and Fond dn Lac charters •shows a manifest difference in their scope and significance. The relief on appeal under see. 959 — 30gf is for all grievances of the appellant arising by reason of making the improvement •or change of established grade, while the charter provisions award relief only for the recovery of any damages, costs, and •charges arising in such proceeding by the city. To us it ■appears clear and obvious that the two classes of provisions •differ widely in the scope of the -relief on appeal, and hence of necessity produce widely different results with reference to supplanting other forms’of legal relief which are applicable to grievances arising out of such city improvement proceedings. An examination of the cases construing the •charter provisions of these cities shows that the equitable remedies awarded were for grievances other than “for the recovery of any damages, costs and charges” or “the amount of benefits . . . adjudged to accrue” to the lotowners. This shows the basis for the decisions and is to the effect that the ■contexts of these charter provisions do not provide for an exclusive remedy to a lotowner for relief against all grievances arising out of the proceedings by the cities in making such improvements, and hence appropriate equitable actions were held to subsist and were available for wrongs suffered by lot-•owners under the facts and circumstances before the court. We deem this difference in the provisions a sufficient ground ■for holding that the adjudications pertaining to those city charter provisions are not applicable nor controlling in the construction of sec. 959 — 30(7, here involved. In Hayes v. Douglas Co. 92 Wis. 429, 447, 65 N. W. 482, however, the statute awarding an appeal did provide that such “appeal shall be the only remedy of the owner of any parcel of land . . . for’ the redress of any grievance be may bave by reason of tbe making-of such improvements, or by reason of tbe change of any established grade.” In tbe former opinion we adverted to tbe fact that tbe court in that case construed this statute to-rnean that on appeal in tbe proceeding “only tbe proper-amount of benefits to tbe particular lot can be investigated” and that “no remedy appropriate to any other wrong is given,”' and tbe court cited Pier v. Fond du Lac, supra, to sustain such construction. As heretofore stated, tbe relief awarded on appeal by the charter provision involved in tbe Pier Gase is much more restricted in its scope and application than that: granted in tbe instant case and tbe Hayes Case. Upon reexamination of tbe construction we are led to tbe conclusion that tbe court unjustifiably followed tbe Pier Gase and are-confirmed in our opinion that tbe court unwarrantably restricted tbe application of that statute in tbe decision, and we-cannot accept it as a correct interpretation thereof; and we are-persuaded that tbe legislature intended that tbe statute now before us should not be so restricted.

It is strenuously contended that tbe respondents bave the right to bave tbe new statute given, in effect, tbe same construction as in tbe Hayes Gase, so as to provide for them tbe same remedies for tbe protection of their property rights. This claim is not sustained. Tbe provisions of sec. 9i>9 — 30#-are in no way related to and do not deal with vested property interests and rights acquired under tbe construction of tbe former statute; nor does it in any sense impair contract obligations. Carstens v. Fond du Lac, 131 Wis. 465, 119 N. W. 117. It is purely a remedial statute. Whatever pertains merely to a remedy in the law may be altered at tbe will of tbe state, if an adequate one exists to enforce relief for tbe invasion of a right. See cases collected in Oshkosh W. W. Co. v. Oshkosh, 109 Wis. 208, 85 N. W. 376. As we declared in tbe former decision and view this statute, tbe appeal provided furnishes an adequate remedy for tbe redress of tbe grievances complained of in this case.

It is also contended that since tbe court in tbe Hayes Case held a forty-day limitation an unreasonably short one for instituting proceedings to contest tbe validity of special assessments for street improvements and therefore declared tbe statute void, then, certainly, tbe time allowed to perfect an appeal within twenty days after tbe date of tbe first publication of notice that final determination by the common council has been made as to tbe damages and benefits involved in tbe proceeding is also unreasonably short. Tbe question of tbe sufficiency of tbe notice to property owners in tax proceedings was fully considered in Hennessy v. Douglas Co. 99 Wis. 129, 74 N. W. 983, an analogous case, and it was there considered and held that tbe general notices in such tax proceeding for tbe various steps thereof and tbe opportunity given property owners to protect their rights in. tbe course of tbe conduct of' such proceedings afford them due opportunity and legal notice to protect their rights and constitute due process of law in tbe enforcement of tbe tax laws.

Tbe contention of tbe respondent Land and River Company, that it bad no notice of tbe assessment and tbe publication of tbe notice of final determination of tbe benefits and damages that would accrue to and be assessed to tbe real estate, is not well taken in tbe light of this interpretation of tbe law in tax proceedings. Tbe facts and circumstances of tbe situation as presented are not of a nature to place its complaint outside of tbe grievances for which relief was obtainable on appeal under tbe statute, and it must therefore be restricted to this remedy.

We do not deem further discussion necessary at this time, and are of tbe opinion that the motion should be denied.

By the Gourt. — It is so ordered.

Tbe following opinion was filed June 5, 1911:

EabNes, J.

I stated in a former dissenting opinion that in my judgment tbe decision of tbe court not only overruled Hayes v. Douglas Co. 92 Wis. 429, 65 N. W. 482, but also overruled a number of Milwaukee eases. It is said in tbe opinion of tbe court on tbe motion for rebearing that tbe Milwaukee cases have not been overruled because they were decided under a statute materially different from tbe one under consideration in tbe present case. Tbe ratiocination which induced tbe court to reach this conclusion does not appeal to me as being sound. Tbe refined distinction drawn is one which might appeal to tbe casuist or tbe theologian. It is a rather shadowy one to introduce into a practical administration of justice. Stripped to tbe bone, tbe difference between tbe statutes is this: The Superior charter provides for appeals in some classes of cases where tbe Milwaukee charter does not. Tbe Superior charter makes tbe remedy given by appeal exclusive. Tbe Milwaukee charter makes the remedy given by appeal exclusive as to certain designated claims or causes of action. Now, as to any claims or causes of action arising against tbe city of Milwaukee, where a remedy is given by appeal and where that remedy is expressly declared to be exclusive, I fail to see where there is any room for saying that the statute has any different meaning from that in force in Superior. If tbe remedy in such a case is exclusive under the charter of Superior, then it is exclusive under the charter of Milwaukee. Stated in another way, the proposition of the court amounts to this: If in one city a remedy is given by appeal as to all claims arising against it generally, and the remedy is declared to be exclusive, such remedy must ■ be pursued, whereas if in another city a remedy is given by appeal as to one class of claims only, and that remedy is made exclusive by statute, it is not so in fact because one statute is broader and more comprehensive than the other. I fail to see how the fact that a greater number of claims can be brought before the court by appeal under one city charter than under another* can have any effect on the exclusiveness of the remedy by appeal in cases where such remedy is given. The case of Liebermann v. Milwaukee, 89 Wis. 336, 61 N. W. 1112, referred to in tbe former dissenting opinion, may be used to illustrate tbe idea intended to -be conveyed. That action was brought in equity to review a determination by tbe proper authorities that tbe plaintiff bad suffered no damages on a change of grade that bad been made. Sec. 11 of subch. VII of cb. 184, Laws of 1874, gave a right of appeal to a party who felt aggrieved at an assessment of damages made by tbe city authorities on a change of grade, and sec. 12 of tbe same subcbapter provided that such remedy should be exclusive. This court held that tbe charter did not inhibit tbe plaintiff from maintaining a suit in equity. There may be a distinction between the Liebermann Case and tbe cases at bar, but I fail to see it. In the other Milwaukee cases cited in the dissenting opinion, with possibly one exception, the court either assumed or decided that the remedy by appeal existed. I would not dissent from the construction placed on the Superior charter were the proposition an original one. ’ But I do not think it is a matter of any great consequence whether the remedy by appeal is held to be exclusive or not. Considering the number of decisions already covering the subject, attorneys and litigants had a right to assume that an appeal was not necessary to protect their rights. Because of such reliance the plaintiffs in the present cases are turned out of court and compelled to bear a burden that is concededly illegal and unjust. The court expressly overrules Hayes v. Douglas Co. to accomplish this result. Litigants and lawyers are entitled to place some measure of confidence in the stability of the decisions of this court. They have the right to rely on the integrity of these decisions and to believe that they will not be lightly overturned. They are the guides by which they must govern their actions if they keep within the law. No one contends that decisions that are fundamentally wrong should not be overruled where no property rights have grown up under them. In the instant case, however, there was no occasion for departing from wbat bad formerly been decided. Where a client calls upon his attorney for advice and is told that this court has decided a question in a certain way a half a dozen times, or even once, it is not flattering to have him add that the decisions do not mean much, as the court is apt to try how the contrary rule would work for a while when the question is again presented to it.

I am authorized to say that Mr. Chief Justice WiNslow concurs in this opinion.

Case Details

Case Name: Newton v. City of Superior

Court Name: Wisconsin Supreme Court

Date Published: Jun 1, 1911

Citation: 146 Wis. 308

Court Abbreviation: Wis.