State ex rel. Vaughn v. Mayor of Ashland

71 Wis. 502 | Wis. | 1888

Cassoday, J.

The improvement mentioned consisted almost wholly in building an entirely new pile bridge across the /avine mentioned. The only additional improvement suggested is a sidewalk on the north side of the street; but the cost of that is not given, and must have been comparatively small. The surveyor’s estimate, which appears to have been acted upon throughout, gives the total cost at $2,036, of which 64,000 feet of board measure timber is given at $1,536, and $500 for piles as completed in the structure, including iron spikes and price of driving the piles. If the lots were not chargeable with the'building of the bridge, then the whole assessment, made under the circumstances stated, was unauthorized. The rule is well settled that the corporate authorities of a city possess only such powers as are expressly granted by legislative enactment, and such others as are necessarily or fairly implied in or incident to the powers thus expressly granted, or essential to the declared objects and purposes of the corporation. Bell v. Platteville, ante, p. 139. By the charter, the common council were empowered “ to order and contract for the making, grading, paving, and repairing and cleaning all streets and parts of streets, . . . and to provide for the construction of sidewalks, or the repair of the same, in the manner ” therein, mentioned. See. 2, subch. 11, ch. 127, Laws of 1887. “ The grading, graveling, paving, planking, or macadamizing to the center of any street or alley, and the grading, graveling, and macadamizing, planking, or paving of any sidewalk, the paving of any gutter, and the- construction of cross-walks; where there is no intersection of streets, shall be chargeable to and payable by the lots fronting or abutting upon such street, alley, sidewalk, or gutter, to the amount which such grading, graveling, macadamizing, planking, or paving shall be adjudged by said board to benefit such lots: provided, however, that, in case of paving a street, a portion of the cost, not exceeding, however, one third thereof, may be paid by the city at large if the common council so determine.” Sec. 4, Id. Certainly, it cannot be seriously claimed that the building of a pile bridge of the character indicated comes within the description of , “ grading, graveling, paving, planking, or macadamizing,” thus authorized to be charged to the several lots fronting thereon; and nothing else is so chargeable. It is argued with much force and ingenuity by the learned city attorney that the common council had a discretionary power in selecting the material with which to bring the street to grade through and over the ravine in question. Undoubtedly they have such discretion so long as they keep within the powers thus granted; but they have no authority whatever, much less such discretionary authority, outside of the powers so granted by the charter. Besides, the charter expressly provides for paying the expense of building bridges by levying a special tax. Sec. 3, subch. 8, Id. It is claimed that this only applies to bridges over some stream of water. But it does not say so, and we have recently held that bridges over ravines stand upon the same footing as bridges over streams. State ex rel. Spring Lake v. Pierce Co., ante, p. 321. It follows that the special assessments against the lots in question, for paying a portion of the expenses of the bridge, were without authority of law, and therefore void.

2. But it is urged by the learned city attorney that a writ of certiorari will not lie where there is another adequate remedy, and that the charter gives a remedy by appeal, and makes it exclusive. Secs. 9, 10, subch. 11, ch. 121, Laws of 1887. But, as we understand, this remedy by appeal is only given by the charter as to matters within the jurisdiction of the common council. Certainly it was not designed to take away the remedy given by- writ of certiorari. The jurisdiction of the circuit court to issue such writ is secured by the constitution of the state, and of course cannot be taken away by legislative enactment. Sec. 8, art. YII.

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