Tbe following opinion was filed at tbe January term, 1871:
Cole, J.Assuming that tbe common council of tbe city of Janesville bad power under tbe charter to change tbe grade already established, we still think tbe city was liable to tbe plaintiff for all damages sustained by. reason of grading tbe street according to tbe altered grade. For, while tbe charter enacts that tbe common council shall have full control over tbe streets of tbe city, and establish tbe grades thereof (section 1, chap. 6 of tbe charter, P. & L. Laws of 1866, chap. 474), yet it clearly provides that no street shall be graded without a recommendation in writing, signed by a majority of the resident owners of property situated on the street which it is proposed to grade (section 18, same chapter). Now it is not claimed, or pretended, that.a majority of tbe resident owners of property on Franklin street recommended in writing that tbe grade established in 1866 be made; and for tbe want of this necessary petition tbe common council bad no authority to execute tbe work. This recommendation was absolutely essential and necessary to authorize tbe common council to make tbe grade according to tbe changed grade; and tbe common council bad no power to proceed without it, except under tbe 24th section; and there is not a particle of evidence which tends to show that they attempted to proceed under tbe latter section. There is not even a pretense .that it was made to appear to the common council, by affidavit or petition duly verified, that it was .necessary Franklin street *427should be graded, and that a majority of the resident owners of property bounded on that street refused to sign the recommendation therefor, so as to authorize the appointment of a ^committee to make an examination of the street, and to proceed with the work in the absence of the recommendation. But the common council seem to have proceeded upon the assumption that they had full authority to act under section eighteen above referred to, and that it was not necessary, after the grade was changed, that a recommendation should be presented asking that the street be graded according to the grade adopted. That this was an erroneous view of the requirements of the charter, seems to us very plain.
And, for the purposes of this case, it may be concedéd that under the charter the common council has absolute power to establish the grade of a street, or change the grade once established, and that the property owners have' no voice in the matter. But the charter very clearly imposes this restriction upon the power of the common council, that no street shall be graded without a recommendation in writing signed by a majority of the resident owners of property on the street. True; there is the further power granted in section 24; but this grant only the more clearly shows that when the common council assume to execute the work under section 18, they have no authority to proceed in the absence of the recommendation. The charter manifestly contemplates that the grade should first be established by the common council, so that the owners of property may have some means of judging how it will affect their lots when made. And ■if a majority of the resident owners of property which is situated upon the street, recommend that the street be graded as proposed, the common council can then proceed in accordance with the next section. All these various provisions of the charter in regard to the grading of streets are obviously intended to protect the owners of property whose lots are charged with the expense of the work. There is surely no ground for making a .distinction between an altered grade and one first established; *428and if a recommendation is essential to authorize tbe execution of tbe work in tbe one case, it is in tbe other. And it seems to us that there cannot exist a reasonable doubt as to tbe intention of tbe legislature upon this subject; and it manifestly was, to restrict and limit tbe powers of tbe common council to grade tbe streets of tbe city under tbe 18th section to cases where, after tbe grade is altered, or established in tbe first instance, tbe prescribed recommendation is presented for grading tbe street. This alone authorizes tbe common council to proceed and cause tbe work to be done. Tbe validity of tbe acts of tbe city officers depends in tbe present case upon their having proceeded in conformity to tbe charter; and if they have caused Franklin street to be graded in disregard of tbe conditions upon which they were to exercise tbe power of grading streets, tbe city is liable for damages resulting from tbe illegal proceedings. And as tbe common council, therefore, bad no authority to execute tbe altered grade without tbe proper recommendation asking that tbe street be graded according to tbe alteration, their action in tbe premises was illegal.
It appears from tbe evidence, that on tbe 6th of August, 1866, a recommendation was presented to tbe common council, which was signed by a majority of resident owners of property situated on Franklin street, asking' that that part of Franklin street between Bluff street and tbe south line of section 25 be graded. But this was prior to tbe adoption of tbe altered grade by tbe common council, and of course cannot be considered a recommendation for tbe execution of tbe altered grade. If that recommendation has any significance whatever, it must be presumed to refer to tbe execution of some previous grade, either that of 1854 or that of 1857. We do not understand from tbe testimony that that part of Franklin street between Bluff street and tbe south line of section 25 bad ever been graded according to either of these grades; indeed, tbe inference is irresistible, that it bad not been so graded, because it appears from tbe evidence that Franklin street, north of tbe plaintiff’s property, *429was impassable for teams on account of a “ big'gully,” and was not even safe for footmen in tbe nigbt time. So it is but fair to assume tbat tbis portion of Franklin street, designated in tbe recommendation, bad never been entirely graded, according to either tbe grade.of 1854 or tbat of 1857; and we must presume tbe recommendation related to some existing established grade. At all events, it is very obvious tbat it could not possibly refer to tbe changed grade, since tbat was not adopted until some weeks thereafter. Nor would tbis presumption be overcome even if it appeared tbat tbe provisions of tbe charter bad not in all respects been complied with in establishing those grades, for tbe property owners might not have been aware of tbe defect in tbe proceedings, if any existed; and tbe only presumption which can arise upon tbe recommendation is, tbat tbe signers asked tbat tbe street be graded according to the grade which they supposed bad been established. We therefore fully agree with tbe circuit court in tbe proposition, tbat, for want of tbe necessary petition of a majority of tbe resident property owners on Franklin street, tbe city council bad no power to cause tbat street to be worked to tbe grade established and fixed by tbe council in 1866, and tbat tbe plaintiff was entitled to recover for all tbe direct and proximate damages to her property caused by tbe grade in question, Tbis point is decisive of tbe case.
By the Court. — Tbe judgment of tbe circuit court is affirmed.
LyoN, J., took no part in tbis decision, tbe cause having been tried before him at tbe circuit.A motion for a rehearing was denied at tbe June term, 1871.