50 Wis. 429 | Wis. | 1880
The appellant insists that his demurrer was well taken, and that the complaint does not state any cause of action against him. The respondent insists that his complaint shows that the certificates were illegal and void for the follow
We do not think the act in question, which is “ An act to authorize the improvement of certain streets in the third ward of the city of Milwaukee, and to authorize the levy of a special tax in said ward, ” is void- as being in contravention of the provisions of section 31 of art. IV of the constitution, above quoted. The seventh clause of said section 31 prohibits the enactment of any special or private law “ for granting corporate powers or privileges, except to cities. ” The granting, therefore, of corporate powers to cities is left to the discretion of the legislature, the same as it was before the adoption of said section 31 in 1871. We are of the opinion that the act is in the nature of an amendment of the charter of the city of Milwaukee, and is a grant of corporate powers to said city, and not a special act for the assessment or collection of taxes within the meaning of. the sixth clause of the section. • The tax imposed by the act is imposed solely for the purpose of
The learned counsel for the respondent, upon the argument; attacked the bill as unjust and unreasonable in its provisions, and insisted that it should be held void for that reason. We cannot say, from an examination of the law itself, that it is unjust. It provides that the board of public works of the city may cause certain streets in the third ward,, of the city to be paved with a wooden block pavement, and that the cost of making such pavement shall be paid as follows: “One-third by the property fronting or abutting on the streets, and two-thirds out of the ward funds.” We have no means of determining, from the examination of the act itself, that this law is unjust to the owners of the property on the streets improved. Ordinarily, a much larger portion of the cost of the improvement is charged to the adjoining lots. Again, it is said the law is unjust because the legislature at the same session passed another act for the improvement of Wisconsin street in said third ward, and that a different manner was adopted by that law for the payment of the improvement of
One reason assigned in the argument and alleged in the complaint why this assessment was unjust, was, that the plaintiff’s lots had been once paved at the expense of the lots. This court held, in Blount v. Janesville, supra, that the legislature had the saíne power to charge the cost of a second pavement to the adjoining lots that it had to so charge the cost of the first pavement. The other facts alleged in the complaint, which it is claimed show that the assessments were illegal and unjust, are, that the contract was not let within the sixty days, as provided in the act of 1875, and that no plan or profile of the
'Whether letting the contract for doing the work a few days later than the statute prescribed was an injury to the plaintiff, is not alleged in the complaint; nor is it alleged that the neglect to file a plan of the work before advertising for contracts was injurious. That there were proper specifications for doing the work, on file at the time the proposals for contracts Avere advertised, is admitted by the complaint by not denying it; and from the recitations in the contract it would .seem that plans as well as specifications were on file at the proper office when the contracts were made. How a plan or profile of a wooden block pavement would aid the parties bidding for the work, when proper specifications.for doing the work were on file, we are unable to understand. If the absence of such plan was detrimental to the plaintiff’s rights, we think the facts and circumstances which render it detrimental should be stated in the complaint, and not left to inference. It may be a question of very grave doubt whether, under chapter 322, Laws of 1875, it was necessary to file any plan of the work before letting the same. This is required by the provision of the charter of the city, but the act in question provided for doing this particular work in a different manner from that prescribed by the general charter. The third section of the act expressly declares that the provisions of the city charter relating to the certificates to be issued shall apply to all certificates issued under this act, and there is no other reference in the act to the city charter making its general provisions applicable to this particular work. But, whether the general provisions of the charter regulating the manner of doing street work apply to this work or not, the complaint having failed to show that the
The cases referred to by the learned counsel for the respondent do not, we think, conflict with the view above taken. In the case of Kneeland v. Milwaukee, 18 Wis., 411-418, the late Chief Justice Dixon, in his opinion, uses some language from which it might be inferred that the omission to file plans of work to be done under the charter in any case would render the assessment absolutely void, even though it did not appear in the proofs or allegations, or by reasonable inference, that any injury resulted from such omission. The opinion, however, rests upon the more rational ground that it was apparent that the want of such plans, and other defects in the proceedings, would be detrimental to the rights of the lot-owner. Mitchell v. Milwaukee, 18 Wis., 92; Wells v. Burnham, 20 Wis., 112; Houghton v. Burnham, 22 Wis., 301-306. The last case very clearly holds that omissions in the proceedings, which do not prejudice the taxpayer, are not sufficient to justify the interference of a court of equity. See McIntyre v. The Town of White Creek, 43 Wis., 620-627. In this case it was substantially held that, although the board of review had increased the plaintiff’s assessment without giving him notice as required by law, a court of equity would not interfere to set aside the tax on such assessment without proof that the plaintiff was injured by Such increased assessment, by showing that he was in fact overassessed.
After a careful consideration of the complaint, we do not find any facts alleged therein which clearly show that the plaintiff has sustained any injury by reason of any irregularity in the proceedings of the city officers in paving the street in front of her lots, or in the asses'sment of her lots for a portion of the cost of such improvement. She was not, therefore, entitled to any relief in equity, and the demurrer of the appellant should have been sustained.
By the Gourt. — -So much of the judgment of the county court as is appealed from by the appellant, is reversed as to him, and the cause is remanded for further proceedings according to law.