Opinion
May 3, 1960 —
June 7, 1960.
APPEAL from a judgment of the circuit court for Vilas county: LEWIS J. CHARLES, Circuit judge of the Fifteenth circuit, Presiding. Affirmed.
For the appellants there was a brief and oral argument by Earl L. Kennedy of Rhinelander.
For the respondents there was a brief and oral argument by Frank W. Carter, Jr., of Eagle River.
The action was brought to restrain the execution of an order by the town board condemning and razing a dwelling owned by plaintiff John Fairfield and occupied by plaintiff Clarence Hanson. The judgment dismissed the complaint on the merits and plaintiffs appeal.
Plaintiff John Fairfield owned a dwelling in the town of Presque Isle, Vilas county. Several years previous to the proceedings now reviewed, Fairfield left this home and removed with his family to Muskegon, Michigan, where he has since resided. Glen Fairfield, father of John Fairfield, then had charge of the property in behalf of his son, made arrangements to install tenants and, in particular, rented the home to plaintiff Clarence Hanson. Hanson paid the rent, $20 per month, to Glen Fairfield for transmission to John Fairfield. Because of an injury which he sustained, Hanson was unable to make payments of rent but Fairfield allowed him to remain in possession in exchange for some repairs to the dwelling.
The defendant members of the town board met August 14, 1957, and resolved that many buildings in the town have become out of repair and the town board shall inspect the various properties and take proper steps to raze or repair all dilapidated premises in the town. Minutes of a meeting of the board held August 17, 1957, recite that the board has made an inspection tour and among other properties the John Fairfield premises were inspected and the minutes show a notation that the premises shall be razed.
Minutes of a board meeting on August 25, 1957 (a Sunday), show that the board instructed the chairman, who is defendant Wolter, to prepare orders as agreed upon affecting a number of properties, among them the property of John Fairfield. The board directed its chairman to call a board meeting when the orders are ready for signature. Minutes of a board meeting of September 13, 1957, recite the holding of a special meeting on that date with all members present and "the board signed a number of orders."
On September 14, 1957, the constable's return shows that he made personal service of the board's order on Glen Fairfield, with the notation that Glen Fairfield admitted to him that he was caretaker and renting agent of the property described in the order. The order so served is as follows:
"The Town Board of the Town of Presque Isle
"To:
"John Fairfield, 50 N. Sheridan Drive, Muskegon, Mich.
"Whereas, the town board of the town of Presque Isle inspected the premises located upon lot 5, block 5, village of Presque Isle (formerly Winegar), said property being owned by you, and
"Whereas, said inspection disclosed that the buildings thereon are old, unsafe, unsanitary, and too dilapidated to be repaired, we therefore make the following order:
"All buildings upon lot 5, block 5, village of Presque Isle, are hereby declared unfit for human habitation and must be razed and all debris cleaned up, within ninety days after this order has been served upon you.
"Dated this 13th day of September, 1957.
"Town Board, "Town of Presque Isle "/s/ Fred W. Wolter, Chairman. "/s/ Frank Jirikowic, Supervisor. "/s/ Mathew P. Zingsheim, Supervisor." On September 19, 1957, the minutes of a board meeting show that the board ordered service to be made on John Fairfield by publication in the Vilas County News Review. The proof of such publication on September 19, 1957, and September 26, 1957, is made by the general manager of that newspaper. The publication so printed has the same text as that set forth in the constable's return of personal service. A similar notice was mailed by the chairman of the board to John Fairfield by registered mail and received and receipted for by Agnes Fairfield, John's wife, delivered September 27, 1957.The town records also show that on January 18, 1958, the town constable served on Mr. and Mrs. Hanson a copy of the above order of September 13, 1957, and that on March 6, 1958, Hanson appeared before the board and asked for an extension of time in which to move out. The board granted an extension but without specifying any time. Thereafter the town chairman notified Mr. Hanson that Hanson had requested time for his children to finish the term in the school but that the term had ended and there had been no removal; therefore the chairman notifies Hanson that the house will be razed on June 23d. Hanson did not move and on September 17, 1958, the chairman served another notice on Mr. and Mrs. Hanson, service by a deputy sheriff, that the house will positively be wrecked on September 22, 1958. On September 22, 1958, the plaintiffs petitioned for an order to show cause why the defendants should not be restrained from razing the building and on the same day the plaintiffs, by summons and complaint, commenced this action to declare that the town board's order to raze the property be declared null and void.
The proceedings of the town board were in attempted compliance with sec. 66.05, Stats., dealing with the razing of buildings. The material parts of the statute are contained in sub. (1) and provide: The governing body of every municipality may order the owner of premises upon which is located any building which in their judgment is so old, dilapidated, or has become so out of repair as to be dangerous, unsafe, insanitary, or otherwise unfit for human habitation, occupancy, or use and so that it would be unreasonable to repair the same, to raze and remove such building; that the order shall specify a time in which the owner shall comply therewith; that the order shall be served on the owner of record or his agent where an agent is in charge of the building and upon the holder of any incumbrance of record in the manner provided for the service of a summons in circuit court; and if the owner or holder of an incumbrance of record cannot be found the order may be served by posting it on the main entrance of the building and by publication in the official newspaper of the municipality for two consecutive publications at least ten days before the time limited in the order commences to run.
Over the objection of the defendants, who attempted to limit the issue to the validity of the board's order and the plaintiffs' noncompliance within the ninety days specified in the order the trial court granted plaintiffs a complete trial in which to admit testimony concerning the state of repair and the condition of the Fairfield dwelling. Such trial convinced the court that the town board had abused its discretion in ordering the building to be razed. The court considered that the condition of the dwelling was not such as would justify razing it. But the court concluded that the procedure of the board complied with statute and that there was no evidence of bad faith on the part of the board which would permit the court to hold that the action of the board was such that the board was without jurisdiction. On the contrary, the court concluded that the board erred but it erred within its jurisdiction and the plaintiffs failed to pursue the relief given them by statute, which provides:
"66.05(3) Anyone affected by any such order shall within thirty days after service of such order apply to the circuit court for an order restraining the inspector of buildings or other designated officer from razing and removing such building or part thereof or forever be barred. . . . The remedies herein provided shall be exclusive remedies. . ."
The court made findings of fact that in August of 1957, under the provisions of sec. 66.05, Stats., the town board issued an order condemning the Fairfield home as unsafe insanitary, and too dilapidated to be repaired and that proper service of the order was made upon the plaintiffs in September of 1957 and all procedural requirements of said section were met by the town board; that plaintiffs ignored the order and commenced action in circuit court in September of 1958 to restrain the board from carrying out this condemnation order. The court also found as a fact that the structure in question was not unfit for human habitation.
The court concluded as a matter of law that the board did not act in bad faith and did act within its jurisdiction, and the plaintiffs failed to make use of the statutory remedy within thirty days and they are barred thereafter, whereupon the court entered judgment dismissing plaintiffs' action upon the merits.
Plaintiffs submit that the town clerk's records show that the board's order to destroy plaintiffs' home was invalid because made on August 25, 1957, which was a Sunday. We need not consider the effect of Sunday on the board's proceedings because its order was made September 13, 1957, not a Sunday. It was dated and signed by the board September 13th, served September 14th, and returned and filed as a town board record.
The testimony is clear and undisputed that the Glen Fairfield, upon whom the order was personally served on September 14, 1957, was the owner's agent in charge of the building, and there is no testimony that there is any holder of an incumbrance upon the premises.
We must agree with the learned trial court that the statutory procedure has been complied with and that any dispute concerning the actual condition of the premises does not amount to a jurisdictional defect. If there was error by the board in finding the dwelling unfit for habitation, it is an error within the jurisdiction of the town board. The plaintiffs could take advantage of that, but only within the terms of the statute which deprive them of their exclusive remedy if they do not pursue it within thirty days.
Plaintiffs call our attention to the fact that on July 22, 1959, the legislature amended sec. 66.05, Stats., which (ignoring any constitutional consideration, see 48 Op. Atty. Gen. 184) would have required different procedure by the town board if the amendment was applicable. Not only the events in question preceded the enactment of the amendment but the action itself had been commenced and issue joined before that date. There can be no possible application of the amendment to this case.
The plaintiffs submit that the town board has passed no ordinance on the regulation of homes. But the statute does not require this as a condition to razing unsafe and insanitary buildings.
Plaintiffs also assert that equity should intervene to protect the plaintiffs and permit them to maintain their home and their property. Equity, however, cannot interfere when the statute itself provides an exclusive remedy and the plaintiffs failed to avail themselves of it.
By the Court. — Judgment affirmed.