Bell v. City of Plattville

• Decision Date: 28 February 1888
• Citation: 36 N.W. 831,71 Wis. 139
• Parties: BELL ET AL. v. CITY OF PLATTVILLE.
• Court: Wisconsin Supreme Court

71 Wis. 139

36 N.W. 831

BELL ET AL.

v.CITY OF PLATTVILLE.

Supreme Court of Wisconsin.

February 28, 1888.

Appeal from circuit court, Grant county; GEORGE CLEMENTSON, Judge,

This action was commenced April 20, 1885, by the plaintiffs, A. W. Bell and W. E. Bell, as tax-payers of the city, to restrain the defendant from renting or allowing the city hall, then lately completed therein, and worth $25,000, to be used for the purposes of theaters, concerts, lectures, shows, dances, and general entertainments. The complaint contained suitable allegations, and among others that such renting and use would increase the danger of the building by fire and avoid the insurance thereon. The answer alleged, among other things, in effect, that its city hall was built for and with money belonging to the city, and was occupied by it for its municipal uses; that the lower floor and basement thereof was occupied by its fire department, its clerk's office, and its common council meetings; that in the lower floor of said building, above the basement, there was a room built and suitable for use as a court-room in which to hold justice court, and that it had leased and let the same to the town of Plattville, (owning no part of said building,) to use for the meetings of the board of supervisors of said town, and for the use of the town clerk of said town, and it proposes to permit the justices of the peace of said town to hold their courts therein, they paying a reasonable compensation therefor; that the whole of the upper floor of said building, being 98 feet long, 48 feet wide, and 28 feet high, with a gallery at one end, and a lecture platform with theatrical representations at the other, had been built and fitted up expressly for a hall or large room in which to hold public meetings and gatherings of the people; that prior to such building there was no hall-room or other place reasonably suitable and safe for such meetings and gatherings in said city; that such room was voted by the people and votes of said city as an absolute necessity for the safety and comfort and well-being of the people therein for amusement and culture, and that the plaintiff, as contractor or agent, took part in the building of said hall; that the defendant has paid nearly the whole cost of the building; that said large room or hall is wholly useless to the defendant for any other purpose than for a place in which to hold public meetings, concerts, lectures, and other entertainments; that for such purposes it will bring a rental to the defendant of at least $500 a year; that the defendant proposed, unless restrained, to continue such use of the hall under proper regulations, and for reasonable rent; that the plaintiffs had not suffered, nor were liable to suffer, any money damage or injury by reason of anything done or threatened by the city. The answer denied that any of the things mentioned would avoid any insurance on the building. At the close of the trial the court found in effect that the plaintiffs were such tax-payers; that the building was insured in two companies, in the aggregate for $16,000; that the scenery added to the fixtures of such large room known as “Opera Hall” had increased the rate of insurance one per cent. for the period of three years; that said policies were still in full force and in no way affected as to validity by the addition of such scenery; “that the material facts set forth in the answer for the purposes of this case must be taken as true.” As a conclusion of law the court found that the complaint should be dismissed, with costs. From the judgment entered thereon, in accordance with such findings and conclusion, the plaintiffs bring this appeal.

Bushnell & Watkins and A. W. & W. E. Bell, for appellants.

Carter & Cleary, for respondent.

CASSODY, J., ( after stating the facts as above.)

It is undoubtedly true that the corporate authorities of a city possess only such powers as are expressly granted by legislative enactment, and such others as are necessarily or fairly implied in or incident to the powers thus expressly granted or essential to the declared objects and purposes of the corporation. 1 Dill. Mun. Corp. (3d Ed.) § 89; Appeal of Whelen, 108 Pa. St. 197, 1 Atl. Rep. 88;Le Couteulx v. Buffalo, 33 N. Y. 333;Meinzer v. Racine, 68 Wis. 245, 246, 32 N. W. Rep. 139;Gilman v. Milwaukee, 61 Wis. 592, 21 N. W. Rep. 640. By the charter there was conferred upon the city of Plattville the general powers possessed by municipal corporations, at common law, and in addition thereto, such as are therein “specifically granted.” Section c. 1 of c. 83, Laws 1880. The government of the city, and the exercise of its corporate powers, and management of its financial, prudential, and municipal concerns, were vested in a mayor and six aldermen, who were denominated the common council, and such other officers as are therein provided for. Section 3, Id. To the common council was given “the management and control of the finances, and of all property of the city,” and “in addition to all other powers” vested in the common council, numerous specific powers were granted to it by the several subdivisions of section 17 of subchapter 4 of the charter, among which are the following: “38. To receive, purchase, and hold for the use of the city any estate, real or personal, to sell and convey the same, and to insure any property of the city against loss or damage by fire, lightning, wind, or hail, * * * 40. To establish a fire department; * * * to provide protection from fire, by the purchase of fire-engines, and all the necessary apparatus for the extinguishment of fires; * * * to erect engine-houses,” etc. These subsections were amended by chapter 94, Laws 1881, particularly by adding to subsection 38 the following: “Provided, no purchase of any said real estate shall be made to exceed one thousand dollars in value during any current year, unless the question of such purchase shall have been submitted to the electors of said city, at a general or special election, upon due notice, and a majority thereof shall vote in favor of such purchase. Notice of the submission of such question shall be given at least ten days prior to such election by posting or publication thereof as in other cases.” The statutes provided that any city may borrow money and issue its negotiable bonds for the purchase or erection of public buildings; but such bonds are not to issue until such proposition to issue shall have been submitted to the people of such municipality, and adopted by the majority voting thereon. Sections 942, 943, Rev. St. It is said there is no proof of any meeting ever being called to vote upon the question of the building of a theater. It may be added that the record fails to disclose whether any proposition for the purchase of the land, or the construction of the city hall, or the issuing of any bonds therefor, was ever submitted to the people, or voted upon. The answer to all such suggestions, however, is that this action is not brought to restrain the purchase of the lots, nor the construction of the building. Its only purpose is to restrain the alleged misuse of certain portions of the building, and hence presupposes its...