C. Beck Co. v. City of Milwaukee

• Decision Date: 13 March 1909
• Citation: 139 Wis. 340,120 N.W. 293
• Parties: C. BECK CO. v. CITY OF MILWAUKEE.
• Court: Wisconsin Supreme Court

139 Wis. 340

120 N.W. 293

C. BECK CO.

v.CITY OF MILWAUKEE.

Supreme Court of Wisconsin.

March 9, 1909.

Dissenting Opinion March 13, 1909.

Appeal from Circuit Court, Milwaukee County; Lawrence W. Halsey, Judge.

Action by the C. Beck Company against the City of Milwaukee. From an order dissolving a temporary injunction, plaintiff appeals. Affirmed.

This is an appeal from an order dissolving a temporary injunction. The action was brought to restrain the defendant city of Milwaukee from enforcing an ordinance which prohibits under penalty the removal of “stone, sand, or earth from the beach or from the water within 300 feet of high-water mark, along or near the shore of Lake Michigan between the extreme northern limit and extreme southern limit of the city.” The complaint charges that the ordinance is void, and that the defendant city threatens to enforce it to the injury of plaintiff, that plaintiff is the owner of certain lots, and in possession of other land which abuts on Lake Michigan, and that the beach of said lake is a portion of said lots, and that there accumulates on said lots above high-water mark sand, stone, and gravel which is valuable. The complaint also alleges that the defendant threatens to prosecute plaintiff for taking materials from the beach on the lots in question above high-water mark. The prayer is to the effect that the ordinance be declared void, and that the defendant city be enjoined from enforcing, or attempting to enforce, it, and from making any complaint thereunder, and from prosecuting any proceedings against this plaintiff or its agents, servants, or employés by reason of any alleged act in contravention of said ordinance; that pending this action, and until the further order of the court, the said defendant, its agents, servants, attorneys, and employés may be temporarily enjoined and restrained from enforcing said ordinance, or from commencing or prosecuting any complaint or proceeding against the plaintiff, or its agents, servants, or employés for any alleged act in contravention of said ordinance, and that this plaintiff may have its costs and disbursements, and such other further judgment, order, or relief in the premises as may be just and equitable. Upon this complaint an order was made enjoining and prohibiting the city of Milwaukee, its agents, servants, attorneys, and employés from enforcing the ordinance referred to, and from commencing or prosecuting any complaint or proceeding against the plaintiff, its agents, servants, or employés for any alleged act in contravention of said ordinance. Defendant answered, denying that plaintiff will be in any way injured by the enforcement of the ordinance, and setting up, in effect, that the acts of the defendant threatened are necessary for the protection of the shore line and uplands and the streets of the city from encroachment by the waters of the lake, and preservation of the streets and private property from destruction, and specifically denied that the plaintiff had been confining its operations to the land above high-water mark, but below and at the foot of public streets touching the shore along the beach in question. Upon motion to dissolve the temporary injunction certain affidavits were used, and a stipulation to the effect that affidavits in another action pending might also be considered, and it appears that on the showing made upon the motion to dissolve, there was a dispute as to the shore line, and whether the plaintiff was in fact taking sand and material from below high-water mark and doing injury to the beach below high-water mark. The court dissolved the temporary injunction, and the plaintiff appealed from the order.

Marshall, J., dissenting.Henry H. Otjen and Kronshage, McGovern, Goff, Fritz & Hannan (Walter D. Corrigan, of counsel), for appellant.

John T. Kelly, City Atty. (Walter H. Bender, Asst. City Atty., of counsel), for respondent.

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

It is contended by appellant that the defendant city had no power under the charter to pass the ordinance in question; that it is oppressive and unreasonable, in derogation of the common law and common right, and offends against the federal and state Constitutions. The obvious purpose of the ordinance is to protect the harbor on Lake Michigan. This authority is clearly conferred by the city charter, which expressly grants to the city authority “to preserve the harbor, to prevent any use of the same or any act in relation thereto * * * tending in any degree to fill up or obstruct the same.” It also authorizes the common council to prevent the incumbering of streets and alleys in any manner, and to protect them from encroachment or injury. There can be no doubt but that the city had power to pass the ordinance in question. Clason v. Milwaukee, 30 Wis. 316. It is claimed by appellant that because the beach in question was taken into the city of Milwaukee by extension of its boundaries after the passage of the charter in 1874, which contained the provision respecting the protection of the harbor above referred to, such authority delegated to the city only extends to the corporate limits embraced within the limits of the city in 1874. It is clear from other provisions of the city charter respecting extension of boundaries, as well as section 1, c. 9, of the charter of the city of Milwaukee, which includes in the harbor of the city the lake frontage to a distance of one mile from the shore, that this position is untenable. Nor do we think the ordinance is objectionable as class legislation, under the repeated decisions of this court. State v. Whitcom, 122 Wis. 110, 99 N. W. 468;Black v. State, 113 Wis. 205, 89 N. W. 522, 90 Am. St. Rep. 853. We need not rest upon the general welfare clause of the charter, or upon implied power for authority to pass the ordinance, since express authority to protect the harbor is granted by the charter, and we find nothing in the ordinance, when properly interpreted, in conflict with the state or federal Constitutions or any law of the state.

And while there is abundance of authority, from early times down to the present, upholding the power of municipalities to protect by proper regulations their harbors, we need not go outside of the decisions of this court upon the subject. Clason v. Milwaukee, supra, is directly in point, so far at least as the power of the city to pass such ordinance is concerned. The operation of the ordinance is plainly confined to the beach, and such distance into the water as is necessary for the protection of the harbor, and does not in terms infringe private rights. It does not make the violation of it a criminal offense, but provides a penalty for its violation. Its violation is not a misdemeanor. Recovery of the penalty is by civil action under the ordinance. Stoltman v. Lake, 124 Wis. 462, 102 N. W. 920;Koch v. State, 126 Wis. 470, 106 N. W. 531, 3 L. R. A. (N. S.) 1086;Olson v. Hawkins (Wis.) 116 N. W. 18. It is true that the power of a city to pass ordinances must be reasonably exercised, but within the field delegated it may go to the boundaries of reason, and within that field its discretionary power is supreme. Stafford v. Chippewa V. E. R. Co., 110 Wis. 331, 85 N. W. 1036. The city in passing the ordinance in question being within its power to pass ordinances for the protection of the harbor, we think the question is ruled by Clason v. Milwaukee, supra, and the ordinance valid.

Of course ordinances must receive a reasonable construction in the light of the purpose of their enactment, and if they are capable of a construction which will carry out the manifest purpose of the enactment, such construction must be given them. The ordinance in question cannot be construed as contended by appellant, namely, that it is unreasonable, because the taking of a handful of sand or a stone would violate it. This contention involves the construction of the ordinance, and not the validity of it. The ordinance upon its face could not be held to embrace such a case, for it must receive a reasonable, rather than an unreasonable, construction.Clason v. Milwaukee, 30 Wis. 316; McQuillan on Municipal Ordinances, p. 297; State v. Sheppard, 64 Minn. 287, 67 N. W. 62, 36 L. R. A. 305; Nicoulin v. Lowery et al., 49 N. J. Law, 391, 8 Atl. 513;Skinker v. Heman et al., 64 Mo. App. 441;Commonwealth v. Cutter (Mass.) 29 N. E. 1146;Anderson v. State, 69 Neb. 686, 96 N. W. 149. The delegation of authority to the city to protect its harbor being for a public purpose, and the exercise of it reasonable, the ordinance is valid. La Feber v. West Allis, 119 Wis. 608, 97 N. W. 203, 100 Am. St. Rep. 917;Eastern W. R. & L. Co. et al. v. Hackett (Wis.) 115 N. W. 376. The Legislature has power to confer upon the defendant city, for public purposes, the right to protect the harbor, and the city in the exercise of such delegated authority was clothed with power to prohibit the removal of material below ordinary high-water mark when such removal was injurious to the harbor. This is all the city attempts to do by a fair construction of the ordinance. Whether it would have the right to regulate the use of the land above ordinary high-water mark, or interfere with private rights without making compensation, and against the will of the abutting owners, we need not consider, because the ordinance does not cover such a case.

It was held in Mears v. Dole, 135 Mass 508, that an abutting owner could not excavate on his own land in such manner as to let in the sea, which undermined and injured adjoining land of another without liability to the persons so injured. So, also, Freeland v. Pennsylvania R. Co., 197 Pa. 529, 47 Atl. 745, 58 L. R. A. 206, 80 Am. St. Rep. 850. But since the case is here only on the order dissolving the temporary injunction, we do not regard it advisable to lay down rules of law respecting questions of fact not before us. It is sufficient for the purpose of this case to...