City of Milwaukee v. Raulf

• Decision Date: 24 October 1916
• Docket Number: No. 45.,45.
• Citation: 159 N.W. 819,164 Wis. 172
• Parties: CITY OF MILWAUKEE v. RAULF.
• Court: Wisconsin Supreme Court

164 Wis. 172

159 N.W. 819

CITY OF MILWAUKEE

v.RAULF.

No. 45.

Supreme Court of Wisconsin.

Oct. 24, 1916.

Appeal from Municipal Court of Milwaukee County; John C. Ludwig, Judge.

Con Raulf, Jr., was convicted of violating an ordinance of the city of Milwaukee, and appeals. Affirmed.

The defendant was arrested upon a warrant issued from the district court of Milwaukee county upon a sworn complaint charging him with the violation of the ordinance in question. Upon his arrest he appeared, pleaded not guilty, and by way of defense alleged that the ordinance in question was void. He was found guilty. Judgment of the district court was entered, and defendant appealed to the municipal court. The case was tried de novo in the municipal court upon the original complaint and an amended answer. The complaint was as follows:

“Dan McCargue, being duly sworn, on oath complains to the district court of the county of Milwaukee, that Con Raulf, Jr., on the 16th day of July, 1914, at the city of Milwaukee, in said county of Milwaukee, did violate section 562 of an ordinance of said city entitled ‘An ordinance to revise and codify the general ordinances of the city of Milwaukee,’ passed May 25, A. D. 1914, in this, that the said Con Raulf, Jr., being then and there a contractor engaged and employed upon certain public works of this city by contract with said city, to wit, concrete work at the mouth of the tunnel emptying into Kinnickinnic river at Cleveland avenue and First avenue in said city, and said defendant having in his employ, control, and direction laborers and mechanics working on said public works, said defendant did then and there permit and require said laborers and mechanics to work more than eight hours on a certain calendar day, namely, the 16th day of July, A. D. 1914; that the said work performed by said laborers and mechanics for the defendant on said day was not work of extraordinary emergency as specified in said section of said ordinance; that the defendant did thereby become subject to pay the penalty provided for in said ordinance; that said ordinance was then and is now in force, and prays that the said Con Raulf, Jr., may be arrested and held to answer to the said city of Milwaukee therefor.”

The amended answer, omitting the formal parts, was as follows:

“For a further defense defendant alleges that a certain ordinance of the city of Milwaukee, entitled ‘An ordinance relating to the limitations of daily service of laborers and mechanics employed upon the public works of the city of Milwaukee,’ passed April 24, 1911, and particularly section 1 thereof, as re-enacted as section 562 of an ordinance of said city entitled ‘An ordinance to revise and codify the general ordinances of the city of Milwaukee,’ passed May 25, 1914, which defendant is alleged to have violated, is unconstitutional and void.

For a further defense defendant alleges that said ordinance is ultra vires and void because the terms thereof and the ordinary operation and effect of said ordinance is to conflict with the terms and provisions of the charter of the city of Milwaukee, and particularly with section 10 of chapter 5 of said charter, otherwise known as chapter 144, Laws 1875, as amended by chapter 324, Laws 1882, and further amended by chapter 388, Laws 1889.

For a further defense the defendant alleges that said ordinance is void because the same is unreasonable, in that it prevents the doing of many kinds of city contract work, but particularly the kind of city contract work that the defendant was engaged upon at the time of his alleged violation of said ordinance, as herein charged, and renders the doing of such work impracticable, and makes the cost thereof exorbitant, and in that it unlawfully interferes with the right to contract upon the part of persons affected by said ordinance.”

The case was tried by the court without a jury, and the trial resulted in the conviction and sentence of the defendant as follows:

“Ordered that Con Raulf, Jr., the defendant herein, be and hereby is adjudged guilty of the violation of said section of said ordinance, that said defendant pay a penalty of $15, together with the costs of this suit taxed and allowed at $32.45, or in default thereof be committed to the house of correction for Milwaukee county, Wisconsin, for a term not to exceed thirty days.”

From the judgment of the municipal court of Milwaukee county, the defendant appeals.James T. Drought, of Milwaukee (Lawrence A. Olwell, of Milwaukee, of counsel), for appellant.

Clifton Williams, City Atty., and Charles W. Babcock, Asst. City Atty., both of Milwaukee, for respondent.

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

The defendant was properly convicted and sentenced if the ordinance relating to “hours of labor upon public works,” being section 263 of the General Ordinances of the city of Milwaukee, is a valid ordinance. The defendant claims that it is not valid for four reasons, stated as follows:

“(1) The ordinance is not authorized by the charter as an exercise of police power. (a) There is no delegation of such authority. (b) As a police power regulation, classification is improper. (c) Would such a delegation of police power be constitutional? (d) Could the Legislature itself enact an eight-hour work day?

(2) If some regulation of hours of labor is within the delegated field of the police power under the Milwaukee city charter, the ordinance in question is unreasonable.

(3) The ordinance is not authorized by the Milwaukee city charter as subsidiary to the eighth division of the general welfare clause. Neither is authority impliable from any charter provisions granting the right to contract for public work.

(4) Even if authority to in some manner regulate labor on public works may be implied from any provisions of the Milwaukee city charter, the ordinance in question is not a proper exercise of such authority because it conflicts with other express provisions of said charter.”

The ordinance in question as set forth in the findings of fact by the court is as follows:

Section 562: “The service or employment of all laborers and mechanics who are now or who may hereafter be employed by the city of Milwaukee, or by any contractor, or subcontractor, upon any of the public works of this city, is hereby limited and restricted to eight hours in any one calendar day; and it shall be unlawful for any officer of the city government or any such contractor or subcontractor, whose duty it shall be to employ, direct or control the services of such laborers or mechanics, to require or permit any such laborer or mechanic to work more than eight hours in any calendar day, except in case of extraordinary emergency, as in case of war, fire, flood or danger to life or property.”

Section 563: “Any officer of the city government or any contractor, or subcontractor, and where such contractor or subcontractor is a corporation, any officer, manager or agents of such corporation, whose duty it shall be to employ, direct or control any laborer or mechanic employed in any public works of the city, who shall violate any provision of the foregoing section, for each and every offense shall, upon conviction, be punished by a fine not to exceed twenty-five dollars, or to imprisonment in the house of correction of Milwaukee county for not more than 30 days.”

The general welfare clause, so-called, of the charter of the city of Milwaukee is as follows:

“The common council shall have the management and control of the finances of all the property of the city, except as in this act otherwise provided, and shall likewise, in addition to all other powers herein vested in them, have full power and authority to make, enact, ordain, establish, publish, enforce, alter, modify, amend and repeal, all such ordinances, rules, by-laws and regulations for the government and good order of the city--for the benefit of the trade, commerce and health thereof--for the suppression of vice--for the prevention of crime--and for carrying into effect the powers vested in said common council, as they shall deem expedient; and to declare and impose penalties, and to enforce the same against any person or persons who may violate any of the provisions of such ordinances, rules, by-laws and regulations. And such ordinances, rules, by-laws and regulations are hereby declared to be, and have the force of law, provided, that they be not repugnant to the Constitution of the United States or of this state.”

This provision should be read in connection with chapter 678 of the Laws of 1913, known as the Home Rule Act:

“1. All cities of the first class in this state are hereby granted the powers necessary to give full force and effect to the intention hereof.

2. Whenever the Legislature has heretofore granted to any city, however incorporated, a general welfare clause, preceded or followed by specific grants of power, such specific grants shall not be construed as restrictions upon such general welfare clause, but such general welfare clause shall be given a liberal construction, to the end that the cities may exercise all powers granted therein or reasonably implied therefrom.

3. All statutes enacted by the Legislature granting to such cities any powers or prescribing the method and manner of executing said powers shall be given a liberal construction, to the end that such cities shall be given the largestpossible power and leeway of action under such statutes.

4. Whenever the Legislature has heretofore or may hereafter grant any such city power to do anything, such power shall be construed as including all things necessary to carry out said grant; and whenever, in construing any statute granting any powers or any rights to cities, there shall arise merely a question of doubt as to whether the Legislature intended to grant any power or right, whether expressed or implied, such doubt shall be resolved in favor of the city possessing such power or right, whether such power or right...