City of Milwaukee v. Milwaukee Elec. Ry. & Light Co.

• Citation: 147 Wis. 458,133 N.W. 593
• Court: United States State Supreme Court of Wisconsin
• Decision Date: 05 December 1911
• Parties: CITY OF MILWAUKEE v. MILWAUKEE ELECTRIC RY. & LIGHT CO.

147 Wis. 458

133 N.W. 593

CITY OF MILWAUKEE

v.MILWAUKEE ELECTRIC RY. & LIGHT CO.

Supreme Court of Wisconsin.

Dec. 5, 1911.

Appeal from Circuit Court, Milwaukee County; W. J. Turner, Judge.

Action by the City of Milwaukee against the Milwaukee Electric Railway & Light Company. From an order sustaining demurrers to the complaint, plaintiff appeals. Affirmed.

The complaint in this action alleges the incorporation of the city of Milwaukee and the incorporation of the defendant, and alleges that the defendant is the successor and assignee of various street railway companies which had operated street railways upon the streets of the city. The dates of the existence of these different predecessors of the defendant are alleged, and the granting of franchises to them, the streets upon which they were to operate, the provisions of the ordinances granting the franchises, which provide for the license of the cars and the payment of a license fee, the ordinances of the city prohibiting the operation of such cars without a license having first been obtained, the amount of the fee, and the fact that these ordinances were in full force and effect on May 1, 1910, are also alleged.

A cause of action for each of the 15 years from May 1, 1895, to May 1, 1910, is alleged. The first 5 causes of action allege the number of cars operated during each of these years by the predecessor of the defendant without a license therefor having first been obtained, the amount of the fee, and the obligation of the defendant for the amount of the fee by reason of being the assignee of the company operating the cars during the year. The last 10 causes of action each allege for one year the operation of a specific number of cars by the defendant without a license having first been obtained, the amount of the fee, the obligation of the defendant for the amount of the fee, and the refusal to pay. The complaint also sets out a resolution of the common council of the city, authorizing the institution of the action.

The defendant demurred to each of the causes of action; as to the first 14, on the ground that each cause alleged did not state facts sufficient to constitute a cause of action, and also that the various causes of action had not been commenced within the time limited by law; as to the fifteenth alleged cause of action, the demurrer is on the ground that it does not state facts sufficient to constitute a cause of action. The court sustained the demurrers to the first 5 causes of action, on the ground that the statutes of limitation had run against them, and also on the ground that they did not state facts sufficient to constitute a cause of action. The demurrers to the other 10 causes of action alleged were sustained, upon the ground that the ordinances relied upon in the complaint to charge the defendant had been repealed by chapter 363, Laws of 1895, as amended by chapter 223, Laws of 1897. This is an appeal from the order sustaining the demurrers.Daniel W. Hoan, City Atty., and Clifton Williams, Sp. Asst. City Atty., for appellant.

Miller, Mack & Fairchild, for respondent.

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

The complaint alleges that between the 1st day of May, 1895, and the 1st day of May, 1896, the defendant and its predecessors in right, as city street railway companies in and for the city of Milwaukee, operated on various streets of the city 500 street railway cars without having paid the city treasurer or any of the plaintiff's officers a license fee of $15 per car, as required by an ordinance of the city, enacted under a power conferred upon the city by legislative authority. A like cause of action is alleged against the defendant and in favor of the city for each of the succeeding annual license fees for cars so used and operated in the conduct of the street railway business within the city, and it is alleged that there is now due the city the sum of $187,500 as such license fees. The trial court held that the provisions of chapter 363, Laws of 1895, embodied a revision of the legislation on the subject of taxes, assessments, and licenses upon street railway corporations by the state and by the municipalities under the authority of the state. In the view we entertain of the issues presented by the demurrers of the defendant to the causes of action alleged in the complaint, it is unnecessary to consider any questions, except those arising by reason of the enactment of chapter 363, Laws of 1895, as amended by chapter 223, Laws of 1897. The question is: Did this act abrogate the right of cities to collect license fees under the authority conferred by section 1862, Stats. 1898, which provides that such roads shall be subject to “the payment of such license fees as the proper municipal authorities may by ordinance, from time to time, prescribe?”

[1] The purpose of chapter 363, Laws of 1895, is, as declared by its title, in effect a regulation of “the payment of licenses by street railway companies within this state.” Its first section...