Pound v. Supervisors of Chippewa County

43 Wis. 63 | Wis. | 1877

LyoN, J.

Many objections are stated in the complaint to the validity of the assessment in question, only one of which it is necessary to notice.

The charter of the city of Chippewa Falls provides that, “ whenever the common council shall determine to make any public improvement as authorized by this chapter, they shall cause to be made an estimate of the whole expenses thereof, .and of the amount thereof to be assessed and charged to each lot and parcel of land, and, in case of grading, of the number of cubic yards to be filled in or excavated in front of each lot, and the proportion thereof across each street, alley, or public ground aforesaid; and such estimate shall be filed in the office of the city clerk, for the inspection of the parties interested, before such work shall be ordered to be done.” Sec. 9, sub-ch. II, ch. 169, Laws of 1873.

It is alleged in the complaint, that no such estimates were made before the grading was ordered to be done, and that none were ever filed in the office of the city clerk.

This provision of the charter is identical with one contained in the charter of the city of Madison. P. & L. Laws of 1868, ch. 500, sub-ch. VI, sec. 11. In Massing v. Ames, 37 Wis., 645, the provision in the charter of Madison was under consideration, and, on the authority of several cases in this court there cited, it was held that a compliance with the requirements of tbe charter in that bebalf is essential to give the common council jurisdiction to make the improvement at the expense of the lot owners. That was an action to restrain the sale of plaintiff’s lots for an unpaid assessment thereon for the cost of a sewer; and, because the estimates required by the charter were not made and filed before the sewer was ordered to be constructed, the assessment was held void, and a sale of the plaintiff’s lots enjoined.

The judgment is decisive of this case. The complaint alleges an entire non-compliance with the requirements of the charter in respect to the making and filing of estimates. Hence, it states facts which entitle the plaintiff’ to the relief demanded. In other words, the complaint states a cause of action, and the demurrer thereto should have been overruled.

By the Oowrt. — The order sustaining the demurrer is reversed, and the cause remanded for further proceedings according to law.