Opinion
March 5, 1957.
ON REMAND from the United States supreme court.
For the appellant there was a brief by Shaw, Muskat Paulsen, attorneys, and John F. Zimmermann of counsel, all of Milwaukee, and oral argument by Mr. Zimmermann.
For the respondent there was a brief by Walter J. Mattison, city attorney, and Ewald L. Moerke, Jr., assistant city attorney, and oral argument by Mr. Moerke.
A brief was filed by Robert D. Sundby of Madison, for the League of Wisconsin Municipalities, as amicus curiae.
Action to have declared null and void certain special assessments levied against land of the plaintiff utility company by the defendant city where the only notice given of the proposed assessment was by publication, and also to have declared unconstitutional certain sections of the Milwaukee city charter which made such constructive notice by publication sufficient. The defendant city interposed a general demurrer to the complaint which was sustained by order entered by the circuit court. On appeal to this court, such order was affirmed by an equally divided court. Wisconsin Electric Power Co. v. Milwaukee (1953), 263 Wis. 111, 56 N.W.2d 784.
Upon remittitur to the circuit court, the plaintiff amended its complaint to allege, in addition to facts previously pleaded, the circulation of the Daily Reporter, in which the notice of the assessments had been published. The defendant city again interposed a general demurrer to the complaint and the circuit court sustained such demurrer, whereupon judgment was entered dismissing plaintiff's complaint. Plaintiff appealed therefrom to this court. This court affirmed on the ground that our prior judgment on appeal should be adhered to as "the law of the case." Wisconsin Electric Power Co. v. Milwaukee (1956), 272 Wis. 575, 76 N.W.2d 341.
Thereafter, the plaintiff appealed from such latter judgment of this court to the United States supreme court. Under date of December 17, 1956, the United States supreme court entered the following order which is reported in 352 U.S. 948, 77 Sup. Ct. 324, 1 L.Ed.2d 241:
"PER CURIAM. In this case probable jurisdiction is noted. The judgment of the supreme court of Wisconsin is vacated and the case is remanded to the circuit court for Milwaukee county for consideration in the light of Walker v. City of Hutchinson, 352 U.S. 112. [No. 13, October Term, 1956, decided December 10, 1956.]"
Subsequently on January 14, 1957, the United States supreme court amended such order of December 14, 1956, so as to remand the case to this court instead of the circuit court for Milwaukee county. The mandate of the United States supreme court was filed in this court on January 24, 1957. The plaintiff has now moved this court for judgment in its favor according to the prayer of its complaint upon the mandate of the United States supreme court, which motion is opposed by the defendant city.
352 U.S. 958, 77 Sup. Ct. 351, 1 L.Ed.2d 317.
In view of the determination made by the United States supreme court we hold that the constructive notice given by the defendant city by publication of the proposed special assessments against the plaintiff's lands did not meet the requirements of due process. Mullane v. Central Hanover B. — T. Co. (1950), 339 U.S. 306, 70 Sup. Ct. 652, 94 L.Ed. 865, and Walker v. Hutchinson (1956), 352 U.S. 112, 77 Sup. Ct. 200, 1 L.Ed.2d 178. Therefore, it was error for the trial court to have sustained the general demurrer interposed to plaintiff's amended complaint.
One of the reasons advanced by the defendant city for opposing plaintiff's motion, that judgment be entered by this court in favor of the plaintiff and against the defendant city in accordance with the prayer of the amended complaint, is that secs. 75.56 and 75.57, Stats., require a stay of proceedings until a reassessment may be made by the city. If defendant is correct in this contention, then the judgment to be entered determining that the assessments were void should be an interlocutory judgment with further proceedings stayed until the reassessment shall have been made. The plaintiff, on the other hand, contends that secs. 75.56 and 75.57 have no application to special assessments made pursuant to the provisions of the defendant city's special charter. Because these issues were not litigated below we deem the proper procedure to be that the cause be remanded to the circuit court to overrule the demurrer. This will accord the city an opportunity to serve and file an answer raising whatever proper issues still remain to be litigated.
Judgment is reversed, and cause remanded with directions to overrule defendant's demurrer and for further proceedings not inconsistent with this opinion.