Opinion
January 3, 1967. —
January 31, 1967.
APPEAL from a judgment of the circuit court for Milwaukee county: RONOLD A. DRECHSLER, Circuit Judge. Affirmed.
For the appellant there was a brief by Arnold, Murray O'Neill of Milwaukee, and oral argument by Suel O. Arnold.
For the respondent there was a brief and oral argument by George D. Prentice, city attorney.
This action is an appeal from a special assessment on the plaintiff's real estate. The plaintiff, Singer Brothers, Inc. (hereinafter referred to as "Singer"), is the owner of 15.9 acres of real estate adjacent to Florist avenue in the city of Glendale. Singer has owned the property since 1925. In 1965, the property was unimproved except for water mains installed by the city in 1963. The land is presently used for agricultural purposes, although it is zoned for industrial use. On November 23, 1965, the city, acting through its mayor and council under sec. 66.60, Stats., adopted a resolution assessing benefits against the Singer property for the construction of a sanitary sewer in Florist avenue for a distance of 315 feet abutting Singer's property. Singer did not request the construction of the sewer and does not desire its property to be served by the sewer. Apparently no property owner would now be deprived of sewage facilities if the sewer were not constructed. The location of the sewer partially abuts the right-of-way of the Chicago Northwestern Railway, against which no assessment can be made. The city assessed benefits in the amount of $39.15 per foot for 315 feet and in addition assessed the amount of $872 per acre for the 15.9 acres, the total assessment thus amounting to $26,197.05 on the Singer property.
The proceedings for the assessment of the costs of the sewer were begun on October 5, 1965, with the adoption of a preliminary resolution by the city's common council. On October 21, 1965, notice of hearing on the proposed assessment was published, such notice having been mailed to all known interested persons, including Singer, on October 18, 1965. A public hearing was held on November 2, 1965, and adjourned to November 23, 1965, for which notice was published and mailed. At its regular meeting on November 23, 1965, the common council adopted the final resolution levying the assessment. Copies of this resolution were mailed to interested parties, including Singer, on December 1, 1965. The resolution was published on December 2, 1965. On November 26, 1965, Singer had filed a written objection to the assessment with the city, which objection was based primarily upon the ground of excessive cost of installation.
The first instalment on the assessment in the amount of $3,275.06 became due and payable on January 3, 1966. At no time has this instalment been paid. On January 3, 1966, Singer commenced this action for appeal under sec. 66.60 (12) (a), Stats. On March 4, 1966, the city moved for summary judgment. Supporting the motion papers was an affidavit of the city clerk-treasurer dated March 1, 1966, which stated that the first instalment of Singer's assessment became due and payable on January 3, 1966, and that no part of the instalment had been paid as of the date of the affidavit. On March 21, 1966, one of Singer's officers filed an affidavit in opposition to the city's motion for summary judgment. The material portions of that affidavit were the following paragraphs:
2. The installation of a sewer for which an assessment has been levied against the property of the Plaintiff, will not increase the value of the Plaintiff's property.
"3. In the event, the Court shall be of the opinion, that the Plaintiff, should be required to pay the initial assessment of Three Thousand Two Hundred Seventy-Five and No/100 ($3,275.00) Dollars, at this time, the Plaintiff offers to make such payment in accordance with the Order of the Court, provided such payment can be made without prejudice to any of the rights of the Plaintiff."
The circuit court granted the city's motion for summary judgment and entered an order for judgment in favor of the city dismissing Singer's action on the merits. Singer has appealed.
The trial court granted the city's motion for summary judgment and dismissed the action because in its opinion the taxpayer, Singer, had not complied with a statutory prerequisite to its appeal action, viz., it had not paid the instalment due and payable.
Sec. 66.60, Stats., provides procedures by which cities may make special assessments and charges. Pertinent to this appeal is sub. (12) of sec. 66.60, which in part provides:
"(a) If any person having an interest in any parcel of land affected by any determination of the governing body, pursuant to subs. (8) (c), (10) or (11), feels himself aggrieved thereby he may, within 40 days after the date of the notice or of the publication of the final resolution pursuant to sub. (8) (d), appeal therefrom to the circuit court of the county in which such property is situated by causing a written notice of appeal to be served upon the clerk of such city or village and by executing a bond to the city or village in the sum of $150 with 2 sureties or a bonding company to be approved by the city or village clerk, conditioned for the faithful prosecution of such appeal and the payment of all costs that may be adjudged against him. . . .
". . .
"(d) Upon appeal pursuant to this subsection, the court may, based upon the improvement as actually constructed, render a judgment affirming, annulling or modifying and affirming, as modified, the action or decision of the governing body. If the court finds that any assessment or any award of damages is excessive or insufficient, such assessment or award need not be annulled, but the court may reduce or increase the assessment or award of damages and affirm the same as so modified.
"(e) An appeal under this subsection shall be the sole remedy of any person aggrieved by a determination of the governing body, whether or not the improvement was made according to the plans and specifications therefor, and shall raise any question of law or fact, stated in the notice of appeal, involving the making of such improvement, the assessment of benefits or the award of damages or the levy of any special assessment therefor. The limitation provided for in par. (a) shall not apply to appeals based upon fraud or upon latent defects in the construction of the improvement discovered after such period.
"(f) It shall be a condition to the maintenance of such appeal that any assessment appealed from shall be paid as and when the same or any instalments thereof become due and payable, and upon default in making such payment, any such appeal shall be dismissed."
Singer contends that its complaint and affidavit in opposition to the motion for summary judgment are sufficient to create an issue of fact as to fraud and that if the challenge to the special assessment is based upon fraud that it is not required to pay the instalments due as a condition to the maintenance of the action.
The proceedings for challenging a special assessment are more properly designated a special proceeding but this distinction is not germane to issues herein.
Sub. (12) (a) provides that any aggrieved person "may, within 40 days after the date of the notice or of the publication of the final resolution . . . appeal therefrom to the circuit court."
Sub. (12) (e) provides that the appeal provided for in the subsections shall be the "sole remedy" of an aggrieved person and that "[t]he limitation provided for in par. (a) shall not apply to appeals based upon fraud or upon latent defects in the construction of the improvement discovered after such period."
Sub. (12) (f) is as follows:
"It shall be a condition to the maintenance of such appeal that any assessment appealed from shall be paid as and when the same or any instalments thereof become due and payable, and upon default in making such payment, any such appeal shall be dismissed."
The appellant, Singer, argues that the limitations of sub. (12) (a) do not apply to appeals based on fraud. Clearly the limitation of sub. (12) (a) referred to in sub. (12) (e) is the forty-day period in which the action can be commenced. No reference is made to sub. (12) (f) which requires the payment of instalments.
The language of sub. (12) (f) is concise and unambiguous. Its mandate is clear — assessments due and payable must be paid as "a condition to the maintenance of such appeal" and if not paid "any such appeal shall be dismissed."
It is uncontroverted that an assessment in the amount of $3,275.06 became due and payable on January 3, 1966, that notice of the assessment was given to Singer and that no part of the assessment has been paid. Under these undisputed facts and the mandate of the statute the trial court was obligated to grant the motion for summary judgment and dismiss the appeal.
Because we decide that it was incumbent upon the appellant, Singer, to pay the assessment as a condition to maintain the action, we find it unnecessary to decide whether the complaint and affidavit in opposition to the motion in fact allege fraud.
By the Court. — Judgment affirmed.