Meinzer vs. The City of Racine. sented to said city council; that no resolution ordering such work ever received three fourths of the votes of the aldermen elected, nor was any such resolution passed by said common council declaring why it was for the public interest to proceed with such petition as aforesaid, nor was any such resolution passed after permitting the same to lie over one week after being introduced and first considered, nor was the vote on any such resolution taken by yeas and nays and entered in the journal of the council; that a majority of feet in front of all the lots in the block in which said premises are situated is owned by residents of said city; that no order was ever made by said city council, before commencing to work, requiring or ordering the plaintiff, as such owner, to do such grading, nor was the amount proposed to be made chargeable against the several lots or pieces of land in front thereof, nor the benefits which in their opinion would actually accrue to the owners of the same in consequence of such grading, ever ascertained or considered by said common council; that no notice was ever given to the plaintiff requiring him to do said work, nor was said work thereafter let by contract, as required by the charter; that by reason of such unlawful acts, the plaintiff had sustained damages in the premises in the sum of $2,000, and demands judgment for that amount and costs. For the appellant there was a brief by D. H. Flett, attorney, and Samuel Ritchie, of counsel, and oral argument by Mr. Flett. For the respondent there was a brief by Quarles & Spence, and oral argument by Mr. Spence. They cited Crossett v. Janesville, 28 Wis. 420; Dore v. Milwaukee, 42 id. 108; Dorman v. Jacksonville, 7 Am. Rep. 253, note, 260; Hall v. Chippewa Falls, 47 Wis. 267; Starr v. Burlington, 45 Iowa, 87; Sheldon v. Kalamazoo, 24 Mich. 383; Hill v. St. Louis, 59 Mo. 412; Dyer v. St. Paul, 27 Minn. 457; O'Brien v. St. Paul, 25 id. 334. Meinzer vs. The City of Racine. CASSODAY, J. The common council of the city had the power, when properly invoked, to "open, widen, straighten, and vacate streets and alleys and establish and alter the grades thereof." Charter, subd. 32, sec. 3, tit. IV, ch. 313, Laws of 1876, p. 733. There is no claim, and the complaint negatives any ground for claiming, that the alleged improvement was the taking of the plaintiff's private property,— the land in question,— for a public street by any proceedings for condemnation as prescribed by the charter. Secs. 1-24, tit. V. The common council may cause any street to be graded, paved, macadamized, or graveled, and order the expense of such improvements to be ascer tained, and the costs of such work or improvement to be levied and charged against the lots or real estate fronting or abutting on such street, to the amount which such improvement shall be adjudged by the common council to benefit such lots; and when a change in the grade of any street is ordered, the expense of cutting or filling incurred by such change of grade shall be chargeable to and paid by special assessment on the lots or property fronting or abutting on the street of which the grade shall be so changed. Charter, sec. 1, tit. VI, ch. 180, Laws of 1880. Whenever the common council shall deem it necessary to grade or otherwise improve any street not otherwise provided for, it shall cause to be made an estimate of the costs of such work, and shall put the same on file in its office; and such estimate shall be open to inspection of any party interested. Sec. 5, Id. No such work chargeable to lots or parcels of land fronting or abutting on the same, except repairs, etc., shall be ordered unless the requisite petition therefor shall be first presented to the common council, or unless, in the absence of such petition, the requisite resolution of the common council ordering such work, after having laid over for one meeting, shall receive the votes of three fourths of the aldermen elected, to be taken by yeas and nays duly en Meinzer vs. The City of Racine. tered in the journal of the proceedings. Ibid. Before ordering any such work to be done by the owner of lots or lands fronting on the same, the common council shall ascertain and consider the amount proposed to be made chargeable against said several lots or pieces of land, and the benefits which in its opinion will actually accrue to the owners of the same in consequence of such improvement, and assess against the same, respectively, the amount of such benefit; and in case such benefits amount to less than the cost of the improvements, the balance shall be paid out of the ward fund in which the improvement is made. Sec. 6, Id. As soon as any such assessment shall be made, the requisite notices shall be given to the owners of such land and all parties interested. Secs. 7, 8, Id. The complaint alleges, in effect, that the common council claim and pretend that such work, or the cost thereof, is chargeable to the plaintiff's said premises, as fronting the same, and that the said work is such that if it were lawfully done it would be chargeable to said plaintiff's lot. It then negatives the claim that said work is of any different kind or character than above mentioned; also the making or presenting of such or any petition; also such passage or any passage of any such resolution; also the taking of any such vote. The complaint also alleges affirmatively that the defendant wrongfully and unlawfully did the several acts complained of. We must hold the allegations of the complaint sufficient to bring the case within the decisions. of Crossett v. Janesville, 28 Wis. 420; Dore v. Milwaukee, 42 Wis. 108. It is true the charter expressly prohibited the improvement made in the Crossett Case in the absence of the requisite recommendation in writing. The same may be fairly implied, as to the particular work in question, from the provisions of the Racine charter referred to. It is to be remembered that the common council only had such powers as were expressly granted by statute or necessarily Joint School Dist. No. 7 of Brighton and Paris vs. Kemen and others. implied therefrom. Mayor v. Hughes, 1 Gill & J. 480, 19 Am. Dec. 243; Collins v. Hatch, 18 Ohio, 523, 51 Am. Dec. 465; Thompson v. Schermerhorn, 6 N. Y. 92, 55 Am. Dec. 385; State v. Comm'rs of Mansfield, 23 N. J. Law, 510, 57 Am. Dec. 409; Davis v. Mayor, 14 N. Y. 506, 67 Am. Dec. 186; Logan City v. Buck, 4 Am. & Eng. Corp. Cas. 300; Whelen's Appeal, 108 Pa. St. 162; Fertilizing Co. v. Hyde Park, 97 U. S. 660; State ex rel. Priest v. Regents, 54 Wis. 170; Gilman v. Milwaukee, 61 Wis. 592; Attorney General v. Great Eastern Ry. 33 Eng. (Moak), 768. With this view of the law, and the allegations of the complaint being such as to preclude any right to make the improvement in question at the expense of the city or the ward, as in some of the cases cited, the unlawfulness of the acts complained of is apparent. By the Court. The order of the circuit court is affirmed. JOINT SCHOOL DISTRICT No. 7 OF THE TOWNS OF BRIGHTON AND PARIS IN KENOSHA COUNTY, Appellant, vs. KEMEN and others, Respondents. February 2- March 1, 1887. APPEAL TO S. C. (1) When judgment appealable. (2) Appealable order. 1. A judgment is not appealable until the costs have been taxed and inserted therein or until the time limited by statute for so perfecting the judgment has expired. 2. A mere order for judgment is not appealable. APPEAL from the Circuit Court for Kenosha County. The facts are sufficiently stated in the opinion. For the appellant the cause was submitted on briefs by Henry Wiesmann. For the respondents there was a brief by Quarles & Spence, and oral argument by Mr. Spence. Joint School Dist. No. 7 of Brighton and Paris vs. Kemen and others. LYON, J. This appeal is from a judgment of the circuit court dismissing the plaintiff's complaint, with costs, for non-compliance with an order theretofore made in the cause requiring the plaintiff to file security for costs. The appeal was taken and perfected before the costs were taxed and inserted in the judgment. It was therefore prematurely taken, and must be dismissed. Smith v. Hart, 44 Wis. 230, and cases cited; Haseltine v. Simpson, 61 Wis. 427; Hoye v. C. & N. W. R. Co. 65 Wis. 243; Ballou v. C. & N. W. R. Co. 53 Wis. 150. If the case is within the provisions of ch. 202, Laws of 1882 (which is not here determined), the same result follows, for the appeal was taken within less than sixty days after the finding of the court that the plaintiff was in default in respect to filing security for costs, upon which finding the judgment is predicated. Hence the time had not expired which the statute allows the prevailing party for perfecting his judgment. Until this was done, or, not being done, until the time for doing so had expired, the judgment was imperfect and not appealable. Hoye v. C. & N. W. R. Co. supra. If the appeal be regarded as from an order for judgment, instead of a judgment (which seems to be the view taken of it by the counsel for the plaintiff), it must still be dismissed. A mere order for judgment is not appealable. See Johannes v. Youngs, 42 Wis. 401. By the Court. The appeal is dismissed. |