City of Milwaukee v. Chi. & N. W. Ry. Co.

• Decision Date: 29 April 1930
• Citation: 230 N.W. 626,201 Wis. 512
• Court: Wisconsin Supreme Court
• Parties: CITY OF MILWAUKEE v. CHICAGO & N. W. RY. CO.

201 Wis. 512

230 N.W. 626

CITY OF MILWAUKEE

v.CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

April 29, 1930.

Appeal from an order of the Circuit Court of Milwaukee County; Walter Schinz, Judge.

Action by the City of Milwaukee against the Chicago & North Western Railway Company. From an order sustaining the demurrer to the defendant's answer, defendant appeals.--[By Editorial Staff.]

Affirmed.

Action begun January 25, 1929; order dated November 13, 1929. Demurrer. Pursuant to the requirements of an ordinance passed by the city of Milwaukee in 1902, the defendant company depressed its tracks from a point south of Lafayette place to a point north of Folsom place and constructed bridges over its tracks at certain intersecting streets specified in the ordinance.

The ordinance among other things provided:

“* * * And said city shall maintain the structures and improvements provided for in this ordinance except that said company shall paint the underside of the aforesaid bridges each year that it may be required and notified in writing to do so by the Board of Public Works.”

A controversy arose as to whether or not the city was legally obliged to maintain the structures and improvements. The common council passed a resolution instructing the city attorney to bring an action to determine whether the ordinance provision is binding upon the city, or whether the duty of maintaining the bridges rests upon the railway company. The complaint set out the facts in detail.

The defendant answered, alleging that pursuant to the arrangement entered into with the city at the time of the adoption of the ordinance it had parted with title to certain lands owned by it; that if the plaintiff was permitted to repudiate its obligation under the ordinance the defendant would be deprived of its property without just compensation; further alleges that chapter 212 of the laws of Wisconsin of 1927 (Uniform Declaratory Judgments Act) was unconstitutional; and further claims that this was not a proper case for declaratory relief.

To this answer the plaintiff demurred, and from an order sustaining the demurrer the defendant appeals.John F. Baker and Llewellyn Cole, both of Milwaukee, for appellant.

John M. Niven, City Atty., of Milwaukee, for respondent.

ROSENBERRY, C. J.

It was conceded upon the oral argument and in the briefs that the ordinance which required the city to maintain the structures and improvements described in the complaint, referred to as Exhibit A, was invalid, the case in that respect being ruled by Superior v. Roemer, 154 Wis. 345, 141 N. W. 250, and Application of Kaiser, 171 Wis. 41, 174 N. W. 714, 176 N. W. 781. The principal contention of the defendant is that: (1st) This is not a proper case for the exercise of jurisdiction under the Declaratory Judgments Act for the reason that no effective relief can be granted; (2d) that under the law of this state exclusive jurisdiction to deal with the subject-matter of the controversy is vested in the railroad commission of Wisconsin; and (3d) that the Declaratory Judgments Act (the uniform act) is invalid because in contravention of the constitution of the state.

[1][2] While it is no doubt true that the questions attempted to be settled in this action might have been presented in a different form, it does appear from the allegations of the complaint that there is a substantial controversy between the parties as to their respective rights under the ordinance in question. The ordinance was passed April 15, 1902, long prior to the creation of the railroad commission. The duties and obligations of the respective parties to the contract ordinance were fixed, therefore, under the law as it...