#### Ricketson and another, Respondents, vs. City of Milwaukee, imp., Appellant.

*October 30, 1913*

January *13, 1914.*

*Municipal corporations: Sidewalks: Repairing and relaying: Milwaukee city charter: Board of public works: Powers: Pleading.*

1. In see. 16, ch. VII, Milwaukee City Charter, which imposes upon the board of public works the duty “to cause the streets, alleys and sidewalks in the city to be kept in proper repair and in a cleanly and wholesome condition,” the further provision empowering said board “to cause, sidewalks to be repaired, or to be taken up and relaid with new materials, or with part new and part old materials,” etc., refers only to walks which are out of repair.

2. In an action to restrain collection of a special assessment for constructing new sidewalks, allegations that the sidewalks which were taken up were “good, safe, and sufficient • sidewalks, in repair and at proper grade and of required size, free from any danger to persons passing over the same,” admitted . by demurrer, show, that the board of public works had no power upder said sec. 16 to build the new walks.

Appeal from an order of the circuit court for Milwaukee county: Oscae M. Feitz, Circuit Judge.

*Affirmed.*

This action was brought to restrain the collection of a special assessment against fifteen lots belonging to the plaintiffs, which assessment was levied for the expense of constructing cement sidewalks amounting to $662.42. The material parts of the city charter involved in this controversy are secs. 16 and 17, ch, VII,.and are as follows:

“Section 16. It is hereby made'.'the duty of the board of public works, véth the consent of the aldermen of the proper ward, unless otherwise provided by ordinance of the common council, to cause the streets, alleys and sidewalks in the city to be kept in proper repair, and in a cleanly and wholesome condition at all times, and for this purpose they are empowered, with the consent of the aldermen of the ward in which such street, alley or sidewalk is located, to employ the necessary labor, or to contract pursuant' to law, for such cleaning *328and repairing as they may deem necessary for the safety and health of the people, the expense of such cleaning and repairing, except of sidewalks, shall be chargeable to and paid out of the fund of the ward in which such work is done; and the said board is also hereby empowered to cause sidewalks to be repaired, or to be taken up and relaid with new materials, or with part new and part old materials, and to be restored to grade, and to assess the expense thereof against the lot or piece of land in front of which such work may be done, in the manner provided by section 19 of said subchapter VII of said chapter 184 of the Laws of 1814.”

“Section 17. Whenever any sidewalk or part of any sidewalk shall, in the judgment of said board, declared by resolution to that effect, be in a dangerous condition to persons passing over it, for want of being repaired or remade, or on account of being above or below the grade established by the common council, the said board shall have power to order the same to be forthwith repaired or remade, and thereupon forthwith to employ fit persons to repair or remake the same for a fair price, and charge the expense thereof to the lots, parts of lots, or parcels of land abutting thereon, by a special assessment; and such assessment shall be a valid charge and lien upon such lot's, parts of lots or parcels of land, without any estimate, notice, letting or other proceeding preliminary to the doing of such work, except the resolution of said board so declaring such sidewalks to be dangerous.”

■ The complaint sets forth the interest of the plaintiffs in the property in question; the corporate existence of the city of *Milwaukee;*that William II. Graebner is treasurer and as such charged with the collection of taxes; that all the lots in question are vacant except one and are situate in an outlying resident part of the city of *Milwaukee;*the location of the lots on the streets; ' ^

“That on September 7, 1907, and for many years prior thereto, and subsequent to said date, up to the time hereinafter alleged, when tire board of public works of the city of *Milwaukee*caused the same to be torn up, the plaintiffs were maintaining, in front of all of said lots on Homer and Graham streets, and the same were good, safe and sufficient side*329walks, in repair and at proper grade and of required size, free from any danger to persons passing over tbe same.

“Tbe plaintiff further alleges on information and belief that on or about September 7, 1907, tbe board of public works óf said city, without any notice whatsoever to tbe plaintiffs, ordered, instructed and directed tbe ward superintendent of tbe Seventeenth ward of .the city of *Milwaukee*to cause the wooden walks in front of all of said lots, so maintained by these plaintiffs, to be- pulled up and Cement walks to be laid in their stead, upon tbe pretense that' said walks were defective, dangerous ánd not at proper grade; that within a short time thereafter the said superintendent did, without any notice to this plaintiff, cause the said wooden sidewalks in front of all of said lots to be pulled up and cement walks laid in their place in front of all of said lots at a total cost of $662.43; that the'cost of said walk in front of each particular lot was as follows, to wit:” [Here follows a description of the property and amounts assessed to each lot.]

“That the board of public works did thereupon charge the said cost x>f construction of said cement sidewalks to the said several lots and did cause steps to be taken whereby the plaintiffs’ above described property was, in form, specially assessed for the entire cost of said work as follows:” [Here follows description of property and amounts assessed.]

“That said pretended special assessments against the said several lots were thereafter, by the officers of the defendant city, placed upon the tax roll of said city for 1907, as a special assessment and- tax against said property in the following amounts, to wit:” [Here follows description of property and amounts assessed.]

The complaint further alleges that the proceedings of the board are arbitrary, unreasonable, and without authority of law, and that no resolution declaring that the walks were in a dangerous condition or above or below grade was passed; that the board did not view the premises, and that the sums charged against the lots were excessive and more than the sidewalks were worth; that no notice was given to plaintiffs at any stage of the proceedings; that the board pretended to *330act under sec. 17, cb. VII, of tbe charter; tbat tbe proceedings of tbe board were illegal and void; tbat tbe plaintiffs bave paid all taxes on said lots for 1901 except tbe special taxes referred to *herein,*and are *ready*and willing to pay tbem or sucb part as may legally and justly be assessed and taxed against said lot's; tbat tbe tax roll is in tbe bands of tbe defendant city treasurer for collection and be is threatening to collect.

Tbe prayer of tbe complaint is tbat tbe assessment be declared void and tbe defendants restrained from selling said lots and collecting the taxes, and for general relief. Tbe defendant's demurred to the complaint for want of facts sufficient to constitute a cause of action. *The*demurrer was overruled with leave to answer, and from tbe order overruling it this appeal was taken.

For tbe appellant there was a brief by *Daniel W. Hoanr*city attorney, and *Clifton Williams,*special assistant' city attorney, and oral argument by *Mr. Williams.*

Eor tbe respondents there'was a brief by *Otjen &*Otjen, and oral argument by *Henry Otjen.*

KeewiN, J.

It is insisted by appellant that tbe sidewalk in question was buiit under sec. 16, cb. VII, of tbe city charter, being cb. 184, Laws of *1814*as amended, while on tbe part of tbe respondents it is insisted tbat it was built under sec. 17, cb. VII, of the city charter. Tbe complaint clearly shows tbat tbe provisions of sec. 17 were not complied with, in tbat no resolution was passed to the effect that tbe sidewalk was in a dangerous condition, and moreover tbat the wall?; was not built at a fair price, and that' at tbe time the-sidewalk was built tbe plaintiffs were in fact maintaining in-front of tbe lots in question a good, safe, and sufficient' sidewalk, in repair and at proper grade and of tbe required size, and free from any danger to persons passing over it. But tbe appellant insists tbat tbe board of public works bad tbe *331right, under sec. 16, ch. VII, of the city charter, to construct a new sidewalk of different material without any resolution declaring the walk to be' in a dangerous condition as provided in sec. 17, and therefore the complaint fails to state a cause of action.

The contentions made involve the construction of said secs. 16 and 17. We are asked by counsel for appellant to construe sec. 16, since it is important that the city should be informed .of its right's in view of the extensive sidewalk improvements which'are. constantly going on in the city.

If the ¿ction of the board was authorized under either section the complaint states no causé of action, and the demurrer must be sustained. If the board of public works has the right to take up a wooden sidewalk which is in good condition and rfepair and put down a' cement walk and charge the expense of such new walk to abutting owners, then the complaint states no cause of action. . *<*

There can be no doubt that the board had no jurisdiction to'build the walk under sec. 17, because that section requires, as a condition precedent to the building of the walk, a resolution as therein provided, and the complaint alleges that no such resolution was passed. It. therefore becomes necessary to inquire whether the allegations of the complaint negative the right of the board to build under sec. 16. True, no resolution is required under sec. 16, and the question arises whether the power and authority of the board to take up existing walks and build new walks is absolute and without' limitation, or whether the board has the power to rebuild or repair only in case the walk is out of repair or defective.

Sees. 16 and 17, ch. VII, as they appear in the charter of the city of *Milwaukee*(ch. 184, Laws of 1874), have been changed by amendment. Sec. 16 as originally written in the charter provides for keeping sidewalks in repair, and that it shall be the duty of the board of public works, unless otherwise provided by ordinance, to cause the streets, alleys, *332and sidewalks in tbe city to be kept in proper repair and in a cleanly and wholesome condition, and for that purpose it is empowered to employ tbe necessary labor or contract pursuant to law for sucb cleaning, and tbe expense of cleaning and repairing, except of alleys and sidewalks, is to be paid out of tbe general fund; and tbe board is also empowered to cause sidewalks to be repaired or to be taken up and relaid witb part new and part old materials of tbe kind previously laid down, and to assess tbe expense thereof against tbe lot or land in front of which sucb work may be done. Tbe section further provides for notice to tbe owners that the repairs are necessary and describing tbe work to be done, and that tbe persons interested can make such repairs within a certain time, and that after sucb time sucb work will be done by the board of public works and tbe expense assessed against tbe lots, and contains other provisions for tbe doing of tbe work. Sec. 17 as originally written in tbe charter provides for repairing or remaking sidewalks in case they are in a dangerous condition and so declared by resolution without notice or other proceeding.

See. 16 was changed by tbe legislature in 1875 by providing that the expense of cleaning and repairing, except of sidewalks, shall be chargeable to and paid out of tbe fund of tbe ward in which sucb work is done.

Sec. 17 was amended by sec. 5, ch. 311, Laws of 1876, by inserting after tbe word “remade” in tbe fifth line of said section tbe words “or on account of being above or below the grade established by tbe -common council.” Sec. 21 of ch. 324, Laws of 1882, amended said sec. 16 by providing that urgent repairs of sidewalks which can be made at a cost not exceeding $3 for any fifty lineal feet' of said walk may be made without giving any notice and without any previous order or resolution, and tbe expense be charged to the lots, and further amended tbe section by not limiting tbe material *333used in relaying of sidewalks to tbe kind previously laid down.

Tbe next amendment was by- cb. 388, Laws of 1889, vol. 2, p. 892, which amendment left said sec. 16 as it now stands. The history of sec. 16 from its enactment in 1874 down to tbe present time shows quite clearly that tbe primary power conferred upon tbe board was to keep streets clean and sidewalks in repair. It provides that it is made tbe duty of tbe board, with the consent'of tbe aldermen of tbe proper ward, unless otherwise provided by ordinance of tbe common council, “to cause tbe streets, alleys and sidewalks in tbe city to be kept' in proper repair, and in a cleanly and wholesome condition. at all times . . . ; and tbe said board is also hereby empowered to cause sidewalks to be repaired, or to be taken, up and relaid with new materials or with part new and part old materials. ...”

It seems quite clear that this section confers no power to interfere with a sidewalk unless it is out of repair. Manifestly tbe power 'given to take up and relay with new material or with part new and part' old material refers to walks out of repair, and does not empower tbe board to tear up a sidewalk which is in good repair and replace it with a new walk. So it follows that if tbe sidewalk was in good repair tbe board bad no power to tear it up and replace it by a new walk and charge tbe expense to tbe lots'in question.

As we have seen; sec. 16 as it existed before amendment *7 I •*. , required notice to the lotownérs and opportunity to repair before tbe board could act, and provision for emergency was made in sec. II in case tbe walk was in a dangerous condition. By amendment slight repairs were allowed under sec. 16 without notice to lotownérs, and later amendment swept away all provisions as to notice and left sec. 16 in its present condition and tbe boqrd free to repair and relay walks without *notice.*But there is no intimation in tbe sec*334tion as it stood originally or by amendment indicating that any power was conferred upon tbe board to build a new walk when tbe existing walk was in good repair. Doubtless a very broad discretion is vested in tbe board in determining wbetber a walk is in good repair or not'. Rut in tbe instant case tbe complaint alleges among other things that tbe sidewalks were “good, safe and sufficient sidewalks, in repair and at proper grade and of required size, free from any danger to persons passing over the same.” These allegations are admitted by tbe demurrer and show that' tbe board bad no power to build tbe walks in question, and hence tbe complaint states a good cause of action and the demurrer was properly overruled.

We are cited by counsel for appellant to *Abbot v. Milwaukee,*148 Wis. 22, 134 N. W. 136, as being in point. True, that case deals with said secs. 16 and 17, cb. VII, of tbe city charter and bolds that no narrow construction should be given them, but tbe point here involved was not involved there. It was there held that a separate contract was not required to be let for each sidewalk to be rebuilt, but' that tbe work might be done under an omnibus contract, and also that a defective wooden walk might be replaced with a cement walk; and further that under said sec. 17 tbe resolution need not specifically state that it is “the judgment of the board” that such dangerous condition exists, nor is it' essential that the board should personally examine the sidewalk condemned.

*By the Oourt.-*— The order anpealed from is affirmed.

TimliN, J., dissents.