Roter v. City of Superior

115 Wis. 243 | Wis. | 1902

Cassoday, O. J.

The city contends that it is not liable to the plaintiff in this action by reason of the provisions of the sewer .construction contract and certificates recited above. It is very obvious that if the plaintiff, as the holder of the certificates in question, is limited to the special assessments as therein stipulated and as agreed in the contract under which the certificates were issued, then there can be no recovery from the city in this action. But the plaintiff contends that under the charter it was optional with the city to pay for such improvement in the manner indicated, or in the manner otherwise provided in the charter, and hence that the city was pledged to collect the amount of such certificates, and that such pledge is in the nature of a guaranty of the performance of the contract. In support of such contention counsel cite the general provisions of the charter empowering the city to “construct systems of sewerage,” and to issue “improvement bonds for sewerage assessment.” Secs. 147— 174, ch. 124, Laws of 1891.

One of the sections so cited provides that “such contract may, at the option of the city,” -except as therein otherwise provided, “require the contractor to receive as payment for so much of the work as has been assessed against the lots benefited, interest-bearing certificates against such lots, respectively, or improvement bonds, or the proceeds of such bonds,” and the residue, if any, is to “be paid out of the proceeds of the general sewer tax to be levied,” etc. Sec. 153, Id. The next section provides, in effect, that after any such contract for work “to be paid for in whole or in part by such assessment, shall have been entered into, the board of public works shall make, or cause to be made, an assessment in proportion to benefits against all lots’ . . . benefited by the sewer . . . at the average rate of $2.50 per lineal foot, for its whole length.” Sec. 154, Id. Sec. 156 provides otherwise for paying “the cost of all sewers in excess of $2.50 per lineal foot, chargeable to lots and lands as provided in sec. 154.” Sec. 157 authorizes the common council to levy a tax for sewerage purposes in each district not exceeding five mills on the dollar in any one year, and to issue bonds in case anything ad-' ditional is required. Sec. 158 provides that such contractors “may receive in payment certificates against the lots, parts of lots, or parcels of lands so as heretofore directed to be assessed, so far as the same will go, in liquidation of the amount of such contract, and shall be entitled to receive city orders for the balance due, payable only out of the fund of the proper district, supplemented, if need be, by proceeds from Hie sale of general sewer bonds; and it shall be the duty of the board of public works, after the completion of any contract, and acceptance of the work, to issue such certificates on the request of the person entitled to receive them,” etc.; and then provides for the payment of any sum found to be due to the contractor over and above the amount of such certificates.

From such provisions of the charter it is manifest that the cost of constructing such sewers, to the extent of $2.50 per lineal foot, must be made chargeable to the property benefited, and that the extra cost above that sum must be payable from the sewer fund provided by the five-mill tas and the sale of general city sewer bonds. Since the cost of constructing the sewer in question did not exceed $2.50 per lineal foot, the payment therefor, whether in construction certificates or improvement bonds, or the proceeds of such bonds, was chargeable upon the lots and lands benefited thereby, as prescribed in tire charter and expressly stipulated' in the contract and certificates. The city was limited to the method of payment thus prescribed. The case of Allen v. Janesville, 35 Wis. 403, relied upon by counsel for the plaintiff, gave to the common council general power to mate the improvement in case it was recommended in writing, signed by a majority of the resident owners of property abutting on such street, etc. That casa was distinguished in Hall v. Chippewa Falls, 47 Wis. 267, 272, 2 N. W. 279, 281, where it was said:

“In Allen v. Janesville, 35 Wis. 403, the city had power, under its charter, to contract for the improvement of streets at the general expense of the city, and there was no provision exempting it from liability on that ground.”

In that case [Hall v. Chippewa Falls] it was “held that the contractor cannot recover from the city under a charter which declares that fin no event, when work is ordered to be done at the expense of any lot, shall the city be held responsible on account thereof.’ ” The same is true of Zwietusch v. Milwaukee, 55 Wis. 369, 375, 376, 13 N. W. 227, 229. As said by the late Justice Tayloe, in cases of this kind this court has frequently held “that the contractor takes the risk of the regularity of the proceedings. He is charged with knowledge of the irregularities, if there be any; and, if his assessment fails for any reason, he is without remedy against the city.” Owens v. Milwaukee, 47 Wis. 461, 471, 3 N. W. 3. In support of that proposition the learned justice cites five prior adjudications of this court. More recent cases support the same proposition. Heller v. Milwaukee, 96 Wis. 134, 138, 70 N. W. 1111, 1112; State ex rel. Schintgen v. La Crosse, 101 Wis. 208, 210, 77 N. W. 167; State ex rel. Donnelly v. Hobe, 106 Wis. 411, 416, 82 N. W. 336. In the first-of these eases it was expressly held that:

“Under the charter . . . providing that persons entering into contracts with the city, who- agree to he paid from special assessments, shall have no claim upon the city in any event except from the collection of the special assessments made for the work contracted for, no action will lie against the city to recover the amount paid for a void certificate of the sale of land for the nonpayment of such an assessment.”

It-is unnecessary to consider other adjudications or authorities on this question. The city is not to be made liable on such a claim by reason of litigation by outside third parties. True, it appears that the trial court in one of such litigated cases held that the assessment was void because the charter failed to provide notice to the lot owners, and there was no-appeal from such adjudication; but it was clearly error, as held in Hennessy v. Douglas Co. 99 Wis. 129, 74 N. W. 983; Gleason v. Waukesha Co. 103 Wis. 225, 232, 79 N. W. 249. The record discloses no failure of duty on the part of the city. Nor is there anything in such prior litigation to bar the city from making such defense.

By the Court. — The judgment of the circuit court is affirmed.