81 Wis. 649 | Wis. | 1892
The contention of appellant’s counsel is that the provisions of the city charter and of the general statutes do not provide for a certain and adequate compensation for the lands of the relator taken for public purposes, as therein provided; and, while they do not question the validity or adequacy of the assessment made to pay the judgment recovered by the relators against the city for the lands taken, they contend that they are not bound to wait for their money until the remedy under the assessment is exhausted, but may at once have a peremptory mandamus to enforce payment of the amount awarded to them, by the levy and collection of a general tax for that purpose on all the taxable property of the city, notwithstanding the assessment made for the purpose of collecting the same award against a considerable part of the real estate in the city is in process of collection, and that the city is to look to the assessment for reimbursement.
The city of Superior has power by its charter (Laws of
The proceedings in question amount to a compulsory purchase by the city of the use of the lands so required for street purposes, at a price to be fixed and collected as provided by the provisions above cited, under sec. 228 of the city charter. The liability of the city becomes fixed by causing the land to be actually taken or put to public use, or by the rendition of a judgment in the circuit court for damages assessed for taking it; but its liability is sub modo only,— that is to say, while the city is ultimately liable for the damages embraced in the award or judgment and interest thereon after the land is actually taken, and all the taxable property may be resorted to as a fund for payment, yet this resort can be had only after the special assessment has failed to produce the just compensation to the landowner secured by the constitution. After the liability of the city is thus fixed, it stands in the position of a purchaser bound to make payment, and the land-owner as a vendor by compulsion. The ultimate liability of the city is absolutely fixed by the judgment which secs. 901 and 902
2. The statutes under consideration, as thus construed, are in conformity with the constitutional requirement that “ the property of no person shall be taken for public use without just compensation.” Const. art. I, sec. 13. Compensation actually made or the means provided by which it can certainly be obtained is indispensable. Where property is taken for a public use by a municipal or quasi-municipal corporation, the taxable property thereof constitutes a fund to which the owner may resort in the way pointed out by law, and the existence of a method by which payment may thus be compelled satisfies the constitutional requirement. Norton v. Peck, 3 Wis. 724; Brock v. Hishen, 40 Wis. 674; Smeaton v. Martin, 57 Wis. 371;
By the Court.— The order of the circuit court is affirmed.