Teegarden v. City of Racine

56 Wis. 545 | Wis. | 1883

Cassoday, J.

By the charter the common council was authorized to construct breakwaters, parallel piling, sheet piling, piers, or other protection, as might be planned or devised for the purpose of protecting the shores of the city against the encroachment of Lake Michigan, and to defray the cost thereof by levying city and ward taxes, and special assessments upon real estate deemed to be specially benefited by such protection. In doing so it was required, first, to cause plans and specifications, and an estimate of the cost thereof, to be made and filed with the city clerk, and thereupon to determine the amounts, if any, to be charged as special assessments against any0and every lot or parcel of land deemed to be benefited by such protections, and the respective amounts to be raised from the ward or city. Sec. 18, subch. 6, ch. 313, Laws of 1876, as amended by sec. 18, subch. 6, ch. 180, Laws of 1880. The charter also provides for a hearing upon the subject of such assessment, and of objections, if any, to such assessments, and deciding upon the same, and gives the right of appeal therefrom to the circuit court to any party feeling aggrieved thereby, and provides that such appeal shall be the only remedy against such assessment. Sec. 19.

Under these provisions the trial court, in advance, restricted all inquiry to the simple question whether the appellant’s lands would be benefited by the proposed improvement, and, if so, in what amounts. This restriction excluded from the jury the question whether any other lands were included in the assessment, and, if so, whether the appellant’s lands were charged with any more than their proportionate share of the amount of the whole assessment. Such exclusion can be justified only on the theory that each lot or parcel of land included in the assessment is to pay just the amount of its increased value by reason of the improvement, regardless of the question whether the aggregate amount of the whole assessment is equal to the amount of the cost of the proposed improvement, or far above or much below. The charter, however, limits the amount of the assessment to the cost of the improvements. Such cost was clearly to be ascertained from plans and specifications, and on estimate. Of course the common council was required to determine what property would be benefited, and hence what property should be assessed. To that extent we are inclined to think that, in the absence of fraud or intentional and unjust discrimination, the action of the common council must be deemed conclusive.

Mr. Cooley, discussing taxation by special assessment, says that “ the whole subject of taxing districts belongs to the legislature; so much is unquestionable. The authority may be exercised directly, or, in the case of local taxes, it may be left to local boards or bodies; but in the latter case the determination will be by a body possessing for the purpose legislative power, and whose action must be as conclusive as if taken by the legislature itself.” Cooley on Taxation, 449. The question was referred to inferentially, but not decided, in State v. Fond du Lac, 42 Wis., 295, and Pier v. Fond du Lac, 38 Wis., 477. The fixing of the limits of the taxing district, or, in other words, designating the property which will be benefited and hence to be assessed, must necessarily be done by a tribunal representing all parties interested, including the public. In the case before us the common council is such a tribunal. Each lot-owner having the right to appeal, it is very obvious that should the jury upon each appeal (in case of several) have the right to fix new limits to the taxing V district — that is, to leave out some lots which the common council had included, and include other lots which the common council had left out —■ then there might be as many taxing districts as there were juries in such appeals, and endless confusion would be the result. There is no expression in the charter indicating such a legislative intent, and we are not disposed to incorporate one by mere inference to secure such absurd results.

We therefore conclude that the third, fifth, and sixth reasons specified for taking the appeal were untenable, and hence it was not error to refuse to submit those questions to the jury as requested by the appellant’s counsel. It may be that in case of fraud, or of a palpably unjust and intentionally oppressive assessment, the courts might afford relief in some form of action. But that question is not here presented, and of course is not here determined. But an appeal by a single party simply brings before the court the question whether the appellant’s lands are charged with any more than their just proportion of the whole assessment. But the charter clearly gave to persons interested the right to be heard before the common council upon objections to such assessment, and required the common council to decide upon all objections raised, and then gave to any party feeling aggrieved by such assessment the right of appeal therefrom in the circuit court. This right of appeal therefrom must necessarily give the right to a rehearing upon the pertinent objections so raised before the common council, and so decided adversely to such party. This, we think, extends to a re-examination of the proper proportion of the whole assessment which each lot or parcel of land should bear. This being so, we are of the opinion that the appellant was entitled to have-that question submitted to the jury. It is true, it was not requested in apt language, but it was clearly suggested by the fourth reason specified for taking the appeal, and counsel for the appellant did, in effect, request that the question, therein suggested should be submitted as an issue of fact to be tried by the jury, and the same was .refused by the court and the appellant excepted. If, as there suggested, the assessment upon the lots and property assessed was unequal, charging some lots too much and others too little, and the appellant’s lands were assessed too much,— that is, more than their proportionate share of the whole assessment,^ — then she was aggrieved within the meaning of the charter, and had the right to a rehearing upon that question. Such rehearing was refused by the court, and a hearing forced upon a question not involved in the appeal. As counsel for the city argues, the determination of the common council was final as to whether the appellant’s lands would be benefited by the proposed improvement, and yet that was one of the questions submitted.

By the Court.— For the reasons given, the judgment of the circuit court is reversed, and the cause is remanded for a new trial upon appropriate issues to be submitted.