Fraser v. Mulany

Dodge, J.

The supervisors of a town, under the town ditch statutes, constitute a special tribunal for administrative purposes, not proceeding according to the course of the common law; hence exact compliance with the course of proceedings prescribed by law, at. least in all substantial matters, is essential to their jurisdiction. Unlike courts of record, they have no jurisdiction to err as to the law governing procedure. Their field of permissive error without loss of jurisdiction is confined to those subjects over which they are authorized to exercise judgment or discretion. Ruhland v. Hazel Green, 55 Wis. 664 , 13 N. W. 877 ; State ex rel. Heller v. Lawler, 103 Wis. 460 , 79 N. W. 777 ; State ex rel. Durner v. Huegin, 110 Wis. 189, 239 , 85 N. W. 1046 ; State ex rel. Augusta v. Losby, 115 Wis. 57, 63 , 90 N. W. 188 ; Holz v. Rediske, 116 Wis. 353 , 92 N. W. 1105 . If they lose jurisdiction by failure to perform any necessary step, their proceeding and determination are wholly void and may be attacked collaterally or directly. Ruhland v. Jones, 55 Wis. 673 , 13 N. W. 689 ; McKee v. Hull, 69 Wis. 657 , 35 N. W. *382 49 ; Schroeder v. Klipp, 120 Wis. 245 , 97 N. W. 909 . In the light of these general rules, we proceed to consider the -defects in the proceeding alleged in the complaint, omitting such as appellants have not argued, on the assumption that they may have been found unsupported in fact and therefore immaterial.

1. There is positive allegation of failure to give notice of the first hearing, as required by sec. 1360, Stats. 1898. This is fatal according to unvarying authority. Roehrborn v. Schmidt, 16 Wis. 519 ; State v. Langer, 29 Wis. 68 ; State ex rel. Foster v. Graham, 60 Wis. 395, 399 , 19 N. W. 359 ; State v. Logue, 73 Wis. 598 , 41 N. W. 1061 . Respondents seem to contend that assertion of the presence in the record of an affidavit of sendee by some one neutralizes the express allegation of absence of such service. This is mere confusion. While the complaint asserts the existence of the paper, it nowhere alleges or admits that any of the facts stated by it are true. McVichie v. Knight, 82 Wis. 137 , 51 N. W. 1094 . Another contention is that some presumption conclusively supports the proceeding, if the record shows declaration of service. It would be strange indeed if this tribunal, having no authority to proceed at all unless service was in fact made, could yet go on with condemnation of plaintiffs’ lands and assessment of expenses in entire absence of such service, merely because the record showed that they believed, or said they believed, the notice had been given. No such solecism is recognized by the law. Rape v. Heaton, 9 Wis. 328 ; Schroeder v. Klipp, 120 Wis. 245, 250 , 97 N. W. 909 .

2. The next seriously debated defect in the proceedings is based upon the allegation of the complaint that the supervisors did not consider, decide, or estimate the damages to any of the persons through whose lands the ditch was to pass, nor ascertain such damages by agreement, although it is also positively alleged that serious damage would be caused to the lands' of each of these plaintiffs. Sec. 1363, Stats. 1898, *383 which authorizes the board to apportion the maintenance of the proposed drain in sections upon the persons directly benefited, also requires that they shall estimate the cost of constructing each such section separately, and also the damages-which any owner of any parcel of land through which such drain has been laid out will sustain by reason of its construction and opening. The cost of such construction and all the 'damages occasioned thereby, together with the cost and expenses of surveys, maps, plans, and estimates, shall be held to be the total cost of such drain, ditch, or watercourse. By sec. 1364, Stats. 1898, it is made the duty of the supervisors to apportion such “total cost of construction’-’ upon the several tracts of land which, in their judgment, will be directly benefited, in proportion to the benefits to be respectively derived by such tracts. Sec. 1363 further provides that, when damages are not ascertained.by agreement with the owner, the supervisors “shall award to the owner of each parcel of land so -damaged such amount of damages as they shall adjudge to be reasonable and just.”

It is clear that the statutory scheme for constructing this ditch requires, as an essential, that before the attempt to apportion the expense of construction amongst those benefited there shall be a determination by the supervisors of the question of damages to lands through which it runs; for, obviously, the cutting of a ditch through the premises of an individual is a taking of property which is forbidden by the con■stitution unless due compensation be made therefor, save in the case where a nuisance exists on those, very premises, which the legislature might perhaps under its police power abate at the expense of the landowner — a situation not suggested as to any of the plaintiffs in the present record. Further, it is obvious that the statute contemplates no liability of the town or any municipality for any expenses in the construction ■of such ditches; for the total cost, including the cost of obtaining right of way, is only authorized to be paid out of the *384 assessments upon lands directly benefited in proportion to-the benefits received by them. This is, of course, an exercise of the taxing power as to all lands not themselves the situs of a nuisance, and the imposition cannot be permitted to exceed the actual benefits derived. The supervisors, therefore,, cannot know whether they can raise the money necessary for the construction of the ditch, including damages, until they have first ascertained the amount of such cost and whether the benefits to lands specially benefited will equal or exceed it. It is therefore not merely a matter of form, but of essential substance, that the supervisors should consider and decide upon the amount of damages caused to any property through which the ditch is to run before they can make their final order of assessment. This, according to the allegations of the complaint, they have wholly failed to do, and their further orders, to which this was a statutory preliminary, are without jurisdiction and void, as would be any attempt by them to let contracts or to enter upon the lands of the jfiaint-iffs which it is alleged will be damaged by the proceeding. McKee v. Hull, 69 Wis. 657 , 35 N. W. 49 ; Sanderson v. Herman, 108 Wis. 662 , 84 N. W. 890 , 85 N. W. 141 ; Schroeder v. Klipp, 120 Wis. 245 , 97 N. W. 909 ; Rude v. St. Marie, 121 Wis. 634, 644 , 99 N. W. 460 ; 1 Lewis, Em. Dom. (2d ed.) § 187.

3. The complaint also alleged that at least one highway was crossed by the ditch, but that the supervisors wholly failed to consider or determine whether any benefits would be derived to said highway, or how much. Sec. 1364 requires that, in ease any public highway will be benefited, the supervisors shall determine the amount of such benefit which shall be paid by the town, and the remainder of such cost shall then be apportioned and assessed to the lands benefited. Clearly it is the duty, and is essential to the performance of their other functions, that the supervisors shall consider as to each highway whether it derives benefit and the amount there *385 of; for tbe amount to be apportioned to the other property benefited cannot be ascertained until that is done. Doubtless, however, there is no presumption from mere absence of assessment that the supervisors did not perform their duty, which it will be noticed is devolved upon them only in case a public highway is benefited. If it were alleged as a fact in the complaint that any highway was so benefited and the supervisors had failed and neglected to pass upon that question, we think it would present a fatal departure from their duty; but the complaint contains no allegation that any highway will be benefited, hence the omission to ascertain and embody in their order the amount of such benefit is immaterial.

4. It is also alleged that the supervisors arbitrarily and not in the exercise of judgment omitted lands directly benefited, and in like manner assessed portions of the cost on lands not at all benefited. While, of course, the apportionment of cost and estimate of benefits is the field over which especially discretion is given to these supervisors, subject only to an appeal to another special tribunal, and while it is probably true that the landowner must suffer the result of any honest mistake or error of judgment committed by the supervisors in this field (Hennessy v. Douglas Co. 99 Wis. 129 , 74 N. W. 983 ), yet no statutory duty is more imperative than that they shall honestly exercise the judgment and discretion thus conferred on them. From the very fact of the granting of such discretion results the opportunity to abuse it. ' Such an opportunity can be used to wilfully and dishonestly, through favoritism or animosity, assess or exempt property, and if it is possible to prove that their final determination was the result of a failure or refusal to exercise judgment, and was reached arbitrarily or fraudulently, then such a departure from their statutory duty is disclosed as must avoid their action. Weeks v. Milwaukee, 10 Wis. 242, 264 ; Hayes v. Douglas Co. 92 Wis. 429 , 65 N. W. 482 ; Kersten v. Milwaukee, 106 Wis. *386 200 , 81 N. W. 948, 1103 ; Sanderson v. Herman, 108 Wis. 662 , 84 N. W. 890 , 85 N. W. 141 ; Friedrich v. Milwaukee, 114 Wis. 304 , 90 N. W. 174 .

5. It is alleged that tbe supervisors have failed at any time 4o cause to be recorded in tbe town clerk’s office tbe final certificate wbicb tbey are required to make by sec. 1364, Stats. 1898, setting forth tbe total cost of construction, a separate description ’of eacb piece or parcel of land wbicb in tbeir judgment will be directly benefited, and tbe amount assessed by them to tbe same. Tbey are also required, by sec. 1363, to cause to be recorded tbeir order awarding damages .to tbe owners of land. We can see no escape from tbe conclusion that tbe recording of these papers is imposed as a step essential to tbe validity of all subsequent proceedings. Important rights by one landowner against another and in favor of tbe public against tbe various parcels of land are to be based upon such document, and tbe time for’enforcement of such rights may be far in tbe future. Similar statutes requiring filing of Us pendens or of orders or certificates have been held mandatory, and a breach thereof fatal to further jurisdiction. Svennes v. West Salem, 114 Wis. 650 , 91 N. W. 121 ; Ruhland v. Hazel Green, 55 Wis. 664 , 13 N. W. 877 ; State ex rel. Hewitt v. Graves, 120 Wis. 607 , 98 N. W. 516 ; Rude v. St. Marie, 121 Wis. 634 , 99 N. W. 460 . It is of tbe highest importance that there should be a record to wbicb reference can be made to ascertain tbe burdens resting upon these various parcels of land in order to prevent confusion and uncertainty. There were, therefore, excellent reasons why tbe legislature should make this duty mandatory, and why the-owner of any land to be affected by such certificate should have a right to complain of its omission.

Counsel for respondents cite Rude v. St. Marie, supra, as adverse to that view; but a reading^of that case would have shown them that tbe court expressly declared that, if tbe statute requiring town boards to file lis pendens in such special *387 proceedings applied to supervisors, tbe omission would have been fatal. It was only by sucb construction of the statute as to exclude it from application to this tribunal that the omission was held innocuous. We must conclude that the recording of these documents is essential to the continued jurisdiction of the supervisors to proceed further in the matter.

6. It is contended that other and adequate remedy exists, so that a court of equity ought not to take jurisdiction. This contention cannot be sustained. The appeal suggested by respondents’ counsel is by no means adequate. It does not run to a court. It confers review merely of the supervisors-’ discretionary acts, not of the validity of the proceedings. Certiorari is not an adequate remedy, for that is a discretionary writ which the court may refuse on the ground that the subject can be better litigated in other proceedings (State ex rel. Hallauer v. Gosnell, 116 Wis. 606 , 93 N. W. 542 ), and, further, facts dehors the record, of which there are many alleged affecting the validity of the proceedings, as already appears, could not be availed of upon certiorari (State ex rel. Augusta v. Losby, 115 Wis. 57 , 90 N. W. 188 ). The applicability of a suit in equity to declare void the proceedings and enjoin further steps, where, as here, the proceedings constitute a cloud on the title of the property owner or a threatened permanent injury to his land, has been often declared in this state. Ruhland v. Jones, 55 Wis. 673 , 13 N. W. 689 ; Baier v. Hosmer, 107 Wis. 380 , 83 N. W. 645 ; Kersten v. Milwaukee, 106 Wis. 200 , 81 N. W. 948, 1103 .

By the Court. — Order appealed from is reversed, and the ■cause remanded for further proceedings according to law.