#### Meggett, Appellant, vs. The City of Eau Claire and another, Respondents.

*February 2*

February *23, 1892.*

*Municipal corporations: Assessments for street improvements: Setting aside for irregularities: Front-foot rule: Constitutional law:*“ *Due process of law.”*

*1.*In an equitable action to set aside a special assessment for street improvements, etc., a complaint showing mere irregularities and failures to comply with minor statutory requirements is insufficient unless it alleges an offer to pay the amount of such assessment justly chargeable to the property of the plaintiff.

2. Under the charter of Eau Claire (ch. 184, Laws of 1889) the city authorities may apportion the entire cost of a sewer and a pavement on a street among the several lots fronting thereon according to their respective frontages. In determining what property will be benefited by the improvement, and hence should be assessed there- ■ for, the action of the common council is conclusive.

3. The charter of Eau Claire provides (Laws of 1889, ch. 184, subch. V, sec. 21) that whenever any improvements chargeable to the property adjacent thereto shall have been determined upon, the proportion of the costs properly chargeable to each lot subject to contribute to the payment of the same shall be ascertained by the council, and the city clerk shall forthwith issue to the occupant of each such lot a certificate stating the amount assessed and chargeable to such lot, and such amount shall, from the time it is so ascertained, be a lien on the lot, and shall be entered against the same in the tax warrant and be collected in the same manner as other taxes. Sec. 30 requires that an estimate of the whole expenses of such improvements, to be assessed and charged to each lot, shall be made and filed in the office of the city clerk, for the inspection of parties interested, before such work shall be ordered to be done; that the work is to be let to the lowest bidder, upon certain conditions and with certain reservations, upon ten days’ notice published in the official city paper. Sec. 34 requires that, upon the determination of the amount chargeable upon the abutting lots, notice shall be given in the official paper of the letting of the contract for the performance of the work, of the filing of such statement, and the proposed issue of bonds unless the lot-owners, respectively, elect to pay, etc. *Held,*that the proceedings required by the charter amount to “ due process of law,” and that no other notice need be given to the lot-owner.

*327APPEAL from tbe Circuit Court for *Eau Claire*County.

This action was commenced April 5,1890, to restrain tbe collection of an assessment for tbe construction of a sewer and pavement on tbe street in front of tbe plaintiff’s lots, and to set aside tbe same as null and void.

Tbe complaint alleges, in effect, that tbe plaintiff is tbe owner of two lots described in tbe city, fronting on South Barstow street a distance of 105^-feet; that, on or about June 26, 1889, at a regular meeting of tbe council, a resolution was introduced authorizing tbe construction of a sewer in a section of said street described, including tbe portion in front of tbe plaintiff’s lots, in accordance with tbe plans for tbe same made by tbe city engineer; that said resolution was referred to a committee, which reported thereon at a regular meeting of tbe council, July 3, 1889, and recommended its passage, and tbe same was thereupon passed and adopted; that, in pretended pursuance of said resolution, and on or about August 1, 1889, tbe city engineer made and filed an estimate of tbe whole expenses to be charged to each lot or parcel of land for tbe construction of said sewer, in accordance with tbe provisions of sec. 3 of tbe ordinance of tbe city approved April 12,-1886; that according to said estimate tbe cost of said sewer in front of said lots was the sum of forty-two cents per foot, amounting in all to $44.31, and that that was tbe only estimate for improvements by said engineer of the costs of- said sewer; that such estimate was in excess of tbe actual cost of said sewer, and was made arbitrarily and without reference to tbe actual cost or tbe .benefits which would accrue to tbe property so assessed; that tbe contract for tbe construction of said sewer was, in connection with other systems of sewerage which bad been previously adopted by the city, and upon which estimates of costs bad been made, let to one Laycock for and at the uniform rate of forty-four cents per front foot, or $46.42 to said lots of tbe plaintiff,; that *328tbe council so let said contract at sucb increased rate arbitrarily and without authority or notice to the plaintiff; that the actual cost of building sewers on the several streets was not uniform, and that on other streets it was greatly in excess of the actual cost in front of the plaintiff’s lots, and that such assessment was greatly in excess of her proportion of tiie contract price, and included the cost of two connections .with the water works, and. that the city omitted and neglected to estimate the benefits to the lots fronting on said street, to the injury of the plaintiff, and that the plaintiff never received any notice or opportunity for the hearing of said matters.

For a second cause of action the complaint alleges, in effect, that at a regular meeting of the council held August 7, 1889, a petition, signed by persons named, praying the con-1' struction and laying of a pavement in and upon said street was received and acted upon and referred to the committee on pavements, and such proceedings were thereafter had thereupon that the council passed and adopted an ordinance therefor at said meeting, which was approved August 7, 1889; that thereafter, and in pretended pursuance of said proceedings, the council proceeded to assess against said lots the sum of $69.10, as a special tax and assessment for and on account of the construction of said pavement, and the same is held as a special assessment thereon; that said lots were not benefited by said pavement; that the main object and purpose of making said pavement was to improve such street as a main thoroughfare, and to improve the park thereon, and to make said street more convenient and serviceable to the public, rather than to benefit the resident owners of property thereon; that the property thereon is mostly residence property, and that said pavement does not, to any extent, benefit such property, but principally the business property and said park, and that the council, entirely ignoring said benefits, arbitrarily and unlawfully *329assessed the whole cost thereof upon the abutting lands; that the plaintiff never had any notice or' opportunity to be heard as to the extent of the taxing district, nor as to the part or amount that she should pay towards such pavement, nor as to the benefits she would derive therefrom; that said special assessments were liens upon said lands.

To such complaint the defendants demurred on the ground that neither count, nor both taken together, constituted a cause of action. From the order sustaining such demurrer the plaintiff appeals.

For the appellant there was a brief by *Alexander*Meggett, attorney, and *Wm. F.*Bailey, of counsel, and oral argument by *T. F. Frawley.*

*L. A.*Doolittle, for the respondents.

Cassoday, J.

This is a bill in equity to set aside a special assessment to pay for the construction of a sewer and a pavement on the street running in front of the plaintiff’s lots, and to restrain the collection thereof, on the grounds mentioned in the foregoing statement. To state facts sufficient to constitute a cause of action for such equitable relief, it is not enough for the complaint to allege in direct terms the inequality and injustice of such assessment, but it must also allege facts showing such inequality and injustice or going to the groundwork of the assessment. *Pratt v. Lincoln Co.*61 Wis. 62; *Fifield v. Marinette Co.*62 Wis. 532; *Wisconsin Cent. R. Co. v. Asland Co.*81 Wis. 1, 11, and cases there cited. Where, in such a case, the complaint alleges facts showing mere irregularities and failures to comply with some minor statutory requirements, it must be held insufficient, unless it further alleges an offer to pay the amount of such assessments justly chargeable to the property of the plaintiff. Here there is no allegation of any such offer to pay.

Some of the defects in the assessments here relied upon *330are such mere irregularities, and hence need not be further considered. The complaint is on the theory that the plaintiff can only be required to pay her proportionate amount of the actual cost of the portion of the street directly in front of her lots, and then only to the extent they are benefited thereby. We are clearly of the opinion, however, that the city authorities were authorized by the charter to apportion the entire cost of the sewer and the pavement, respectively, upon that street among the several lots fronting thereon, under the front-foot rule. *State ex rel. Christopher v. Portage,*12 Wis. 562. It has been held in Pennsylvania that a lot-owner cannot defend against an assessment under the front-foot rule, for the construction of a sewer in front of his lot, on the ground that such sewer was.neither a private benefit to him or his property, nor a matter of necessity to the public. *Michener v. Philadelphia,*118 Pa. St. 535; *Harrisburg v. McCormick,*129 Pa. St. 213; *Chester City v. Black,*132 Pa. St. 570. In determining what property would be benefited, and hence should be assessed, the action of the common council -was conclusive. *Teegarden v. Racine,*56 Wis. 545.

The principal defect in the assessment here relied upon is the alleged want of notice. It is claimed that the ordinance under which the sewer and pavement were constructed was passed and adopted only seven days after its introduction, instead of fourteen days after such introduction and ten days after the publication of the proceedings of the council showing the same, as required by the original charter. Sec. 1, subch. 6, ch. 16, P. & L. Laws of 1872. But this court has already, in effect, held that that provision is repealed by the act to revise, consolidate, and amend the charter which went into effect March 30, 1889 (chapter 184, Laws of 1889). *Smith v. Eau Claire,*78 Wis. 461; *Drummond v. Eau*Claire, 79 Wis. 97. The question recurs whether the assessments can be maintained under the present charter. The conten*331tion is that the charter requires no notice to be given to tbe lot-owner nor any opportunity for the plaintiff to be heard, as to the proper amounts of such assessments, respectively, with which her lots were chargeable. In other words, the contention is that by the provisions of the charter the city was authorized to take the plaintiff’s property without due process of law or any process of law; and hence that the same is in conflict with the constitution, and therefore void. See. 1, art. XIY, Amend. Const. U. S. This court has frequently recognized the ample and almost absolute power of the legislature over the subject of special assessments. *Warner v.*Knox, 50 Wis. 434, and cases there cited. Mr. Justice Taylor, speaking for the court, there •well said: “ The manner of making street improvements in cities, and of collecting the assessments necessary to pay for such improvements, and the property which shall be charged with the cost thereof, is mainly a matter for the consideration of the legislature; and it would require a very strong showing of injustice and wrong to justify this court in setting aside the action of the legislature upon a subject of that nature.” The supreme court of the United States has, in effect, held that the constitutional provision mentioned is not infringed by a state law authorizing the imposition of a tax or assessment upon property according to its value, “ if the owner has an opportunity to question the validity or the amount of it, either before that amount is determined, *or in subsequent proceedings for its*collection.” *Hagar v. Reclamation Dist.*111 U. S. 701. After speaking of the instances in which a regular course of judicial proceeding is requisite, Mr. Justice Field, on behalf of the court, on pages Y08-Y10, said: ‘‘But, where the taking of property is the enforcement of a tax, the proceeding is necessarily less formal, and whether notice to him is at all necessary may depend upon the character of the tax and the manner in which its amount is determinable. The *332necessity of revenue for the support of the government does not admit of the delay attendant upon proceedings in a court of justice, and they are not required for the enforcement of taxes or assessments. ... Of the different kinds of taxes which the state may impose, there is a vast number of which, from their nature, no notice can be given to the tax-payer, nor would notice be of any possible advantage to him, such as poll taxes, license taxes (not dependent upon the extent of his business), and, generally, specific taxes on things or persons or occupations. In such cases the legislature, in authorizing the tax, fixes its amount and that is the end of the matter. If the tax be not paid, the property of the delinquent may be sold and he thus be deprived of his property. Yet there can be no question that the proceeding is due process of law, as there is no inquiry into the weight of evidence or other element of a judicial nature, and nothing could be changed by hearing the taxpayer. No right of his is therefore invaded. Thus, if the tax on animals be a fixed sum per head, or on articles a fixed sum per yard or bushel or gallon, there is nothing the owner can do which can affect the amount to be collected from him. So, if a person wishes a license to do business of a particular kind or at a particular place, such as keeping a hotel or a restaurant, or selling liquors or cigars or clothes, he has only to pay the amount required by the law, and go into the business. So, also, if taxes are imposed in the shape of licenses for privileges, such as those on foreign corporations for doing business in the state, or on domestic corporations for franchises, if the parties desire the privilege they have only to pay the amount required. In such cases there is no necessity for notice or hearing.”

To the same effect are *Kentucky Railroad Tax Cases,*115 U. S. 331; *Spencer v. Merchant,*125 U. S. 345; *Palmer v. McMahon,*133 U. S. 668; *Lent v. Tillson,*140 U. S. 316; *Fass v. Seehawer,*60 Wis. 535; *Baldwin v. Ely,*66 Wis. *333188-191; *Murphy v. Hall,*68 Wis. 210. In *Spencer v. Merchant, supra,*it was in effect held that where the statute of a state, under which a street assessment is made, “ provides for notice to and hearing of each owner, *at some stage of the proceedings,*upon the question what proportion of the tax shall be assessed upon his land, there is no taking of his property without due process of law,” within the meaning ol' the constitution.

The question recurs whether the charter provisions in the case at bar can be sustained upon the principles of law stated. Sec. 21 of subch. *V*of the present charter provides, in effect, that whenever any improvement chargeable to the property adjacent- thereto shall have been determined upon, the proportion of the costs properly chargeable to each lot subject to contribute to the payment of the same shall be ascertained by the council, and the city clerk shall forthwith issue to each such lot occupant “ a certificate stating the amount assessed and chargeable ” to such lot, and that the same shall, from the time it is so ascertained, be a lien thereon, and entered against such lot in the tax warrant, and be *“ collected in the same manner as other tames.”*It is stated in the brief that the complaint alleges that no such certificate was ever made or received. Eut we find no such allegation in the complaint, nor any mention of such certificate. Counsel probably intended to be understood as saying that the alleged want of notice was an allegation to the effect that no such certificate was issued as prescribed. Eut this does not answer the rule of pleading already mentioned in such equitable action. We must therefore assume, for the purposes of this appeal, that such certificate was issued as required by the charter. The fact that the amount so determined upon and named in the certificate was, by the charter, to be collected m the same manner as other taxes, necessarily required the giving of notices the same as in the collection of such other taxes. Again, it was re*334quired by sec. 30 of the same subchapter, in effect, that an estimate of the whole expenses of such improvements, respectively, to be assessed and charged to each lot, etc., shall be made and filed in the office of the city clerk, for the inspection of parties interested, before such work should be ordered to be done; that such work was to be let to the lowest bidder, upon certain conditions and with certain reservations, upon ten days’ notice published in the official paper of the city. Again, it was required by sec. 34 of the same subchapter, in effect, that, upon the determination of the amount chargeable upon the abutting lands and each lot and parcel thereof, notice should be given in such official paper of the letting of the contract for the performance of the work, the filing of such statement, and the proposed issue of bonds unless the lot-owners, respectively, should elect to pay, etc. The tax proceedings required by the charter, when taken together, must be regarded as *“*due process of law,” within the principles sanctioned by the supreme court of the United States in the cases cited. As against the plaintiff who is here invoking equitable relief, the city officers must be presumed to have performed their respective duties, except in so far as the contrary has been specifically alleged. It is to be remembered that the demurrer merely admits the *facts*alleged in the complaint, but not mere conclusions of law.

We are constrained to hold that the complaint does not state facts sufficient to constitute a cause of action.

*By the*Court.— The order of the circuit court is affirmed.