State ex rel. Flint v. Common Council of Fond du Lac

42 Wis. 287 | Wis. | 1877

Cole, J.

I. The objection that the writ of certiorari was improperly directed to tbe common council instead of the city clerk, is untenable. It was the acts and proceedings of the common council relative to the laying out of the street in question, which were sought to be reviewed. The common council, under the city charter, is a permanent body; has the legal control of all its records and papers; appoints the city clerk; and could therefore make return to the writ. (See charter, ch. 59, P. & L. Laws of 1868.) It is not like the case of Milwaukee Iron Co. v. Schubel, Town Clerk, 29 Wis., 444. There the object of the writ was to review the proceedings of the board of review, which was not a permanent body, but which, after performing a specified duty, dissolved, leaving its records in the control of the town clerk. The town clerk, therefore, alone had the legal custody and possession of the' records of the board after it had ceased to exist, and could make return of its proceedings in the matter. This fact distinguishes the cases, and shows that a necessity existed for directing the writ to the clerk in that case, which does not exist here.

II. It is further insisted on the part of the city, that the writ should not have been issued in the first instance, or should have been dismissed by the circuit court on the motion made, because the relator has under the charter an appeal, which affords an ample remedy, and which she has already availed herself of. The charter in substance provides, that where a person feels aggrieved by an award made by the commissioners assessing or apportioning the benefits and damages of the proposed improvement, he may appeal therefrom to the common council for a review or a rehearing. If dissatisfied with the decision of the common council in the matter, or if the common council fail for twenty days to decide the appeal, then an appeal is given to the circuit court for a trial of the question of damages and benefits. Sec. 8, ch. 501, P. & L. Laws of 1871. But on the trial of the appeal in the circuit court, the investigation is confined or restricted to the question of damages and benefits, and it would not be proper to go into any other inquiry. The validity or regularity of the proceedings of the common council would not be a question open on the appeal. Pier v. The City of Fond du Lac, 38 Wis., 470. It is therefore apparent that the questions necessarily arising on this writ could not be considered and determined on the tidal of that issue.

III. This brings us to the inquiry whether the circuit c'ourt properly vacated the proceedings of the commissioners and common council in relation to the assessment of the real estate of the relator for benefits on account of the opening or extending of Macy street.

The validity of these proceedings is assailed on various grounds. In the first place, it is said that the jury, to determine the necessity of laying out the street and of taking private property for that purpose, was not legally summoned. It appears that the precept issued by the county judge was personally served upon the jurors by two policemen of the city; and it is claimed that these officers could not execute such a process. This is a mistake. The policemen of the city are expressly clothed with all the common-law and statutory powers of constables. Oh. 124, P. & L. Laws of 1867, p. 276. Presumably the process was served upon the jurors by both officers. While a double service was unnecessary, it certainly would- not vitiate the execution of the process made by either officer. Moreover this question is quite immaterial, in view of the fact that the twelve jurors appointed by the county judge actually attended and acted in the matter. The object of the process was to bring these persons together for the performance of a specified duty. And so long as they met and performed that duty, it'is of no importance whether they were legally summoned or not.

Again, it is argued that the common council, in the proceeding of opening the street, was identified in interest with the public it represented — was the active adversary party against those who were damaged and those who were benefited by the improvement, while under the charter it acted judicially in the matter. It is said that it really stood in the position of a judge trying his own cause, which is a violation of the first principle of justice. This criticism, we think, is not well founded. It is true, when the power of the common council is called into exercise on the presentation of the proper petition, then the council takes all subsequent steps. The jury is appointed by the county judge on its application, and the council confirms* by an order the return of the jury. It appoints the commissioners ex parte, whose duty it is to view and examine the premises mentioned in the petition; to ascertain and appraise the damages or compensation to be paid the owner of the property proposed to be taken; also to determine what lands will be benefited, and to assess the amount of damages and benefits. Oh. 12 of the charter of 1868. The common council, where no appeal is taken, or, if taken, whether the report of the commissioners is modified or not, confirms the the report, and orders the damages to be paid. Such one-sided proceedings, it is said, are void under the decisions of Hood v. Finch, 8 Wis., 381, and Lumsden v. The City of Milwaukee, id., 486. But an important distinction exists between those cases and the one before us. There no appeal was given to the circuit court from the award of the jurors and action of the common council on the question of damages, but such action was conclusive and final upon the rights of the parties interested therein. Here, however, an appeal is given to the circuit court to try the question of damages and benefits; and this remedy would seem to afford ample protection, to a person aggrieved by the award, against any oppression or injustice on the part of the common council or any of its agents.

It is further objected, that the relator, or her testator, had no notice of the meeting of the commissioners for the apportionment and assessment of the damages and benefits on his property. But he took an appeal from the report of the commissioners, wbicb, we think, operated to cure that defect in the proceedings. It is analogous to a general appearance in a cause where there has been a defective service of judicial process.

IY. But we think the proceedings were fatally defective because the charter makes no provision for giving a proper notice to the owner of the time and place for the appointment and meeting of the jury which determines the necessity of taking his property. Where the owner is known, and lives, or has an agent or tenant living, within the municipality, a personal notice of these steps is essential, and must be given, or the proceedings will be void. The case of Seifert v. Brooks, 34 Wis., 443, is a direct authority upon this point. Where the owner is unknown, or is a nonresident, notice by publication may be sufficient. Now, the charter only provides for giving notice to the owner by publication in the official paper of the city for two successive weeks, at least once in each week, that application will be made to the county judge, on a day named, for the appointment of twelve jurors to view the premises, etc. On proof of the publication of such notice, the judge is authorized to appoint twelve reputable, disinterested freeholders, residents of the city, who are in no wise of kin to any person who has an interest therein, to serve as jurors. The return to the writ shows that the city clerk caused to be published a general notice of the filing of the petition in his office, asking for the opening of the street and giving a description of the street desired to be opened. This was all the notice given on the subject or provided for in the charter, and wTe think it was clearly insufficient. The owner of the land proposed to be taken, when known and living within the city, should have personal notice of the time and place of the appointment of the jury and when they will meet to view the premises, in order that he may object to the selection of any unfit person on the jury, and have a full opportunity to be heard before them on the question of necessity. In so important a matter as depriving a citizen of bis property, every act or step in its nature final should only be done or taken after personal notice to him, where such notice can be given. It is true, the property of Mr. Eobert Flint was not taken for the street, but was assessed for benefits resulting from the improvement. Such an assessment of benefits is doubtless an exercise of the taxing power, as contended for by the counsel for the city. Still, the relator is in a position to object that the proceedings for the condemnation of the land were illegal and void. For the benefits to her property consequent upon the opening of the street vitally depend upon the question whether the power' of eminent domain has been properly exercised in procuring the right of way. This seems quite obvious.

It follows from these views that, on account of the failure of the charter to provide for the giving of personal notice to the owner of the property, of the time and place of the appointment and meeting of the jury to inquire into and determine the necessity, the proceedings were void, and were properly vacated by the circuit court.

Eefore dismissing the case finally, we feel it our duty to call attention to sec. 31, ch. 12 of the charter, and to suggest a grave doubt whether it secures to the owner whose property is taken, the compensation which the constitution requires. A mere suggestion of -this doubt would seem to be all that is necessary on the point, in view of the decisions'of this court, which must be familiar to the profession.

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