City of Milwaukee v. McGregor

• Decision Date: 03 June 1909
• Citation: 121 N.W. 642,140 Wis. 35
• Parties: CITY OF MILWAUKEE v. MCGREGOR ET AL.
• Court: Wisconsin Supreme Court

140 Wis. 35

121 N.W. 642

CITY OF MILWAUKEE

v.MCGREGOR ET AL.

Supreme Court of Wisconsin.

June 3, 1909.

Syllabus by the Judge.

Statutes in general terms do not affect the state if they tend in any way to restrict or diminish its rights or interests.

General prohibitions in general laws, or in a city ordinance made pursuant to general charter authority, apply to all private parties but are not rules of conduct for the state.

The state may have the benefit of general laws but is not adversely affected by any unless it is so expressly provided.

A state board empowered to take and hold the title to property for state purposes does not own such property in any proprietary sense. It is state property, to all intents and purposes, the same as in case of title thereto being formally vested in the state.

In case of the construction of a building by a state board for state purposes under state authority the matter is wholly of state concern and not under any general state or municipal regulation.

Appeal from Circuit Court, Milwaukee County; J. C. Ludwig, Judge.

Action by the City of Milwaukee, on the complaint of Edward V. Koch, Inspector of Buildings, against Duncan McGregor and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Equitable action by plaintiff, as building inspector of the city of Milwaukee, against the members of the Board of Normal School Regents of the State of Wisconsin, their contractors and architect, to prevent continuation of the erection of a Normal School building in the city of Milwaukee, which had been partially constructed by them, upon the ground that a building permit had not been obtained from the plaintiff pursuant to the ordinances of said city, without which such erection was claimed to be unlawful. A temporary injunction was duly obtained. On motion it was dissolved, the action dismissed and judgment rendered accordingly, upon the ground that it conclusively appeared from the complaint and other papers in the case that the structure which defendants were erecting was for the state of Wisconsin under express legislative authority, and that the ordinances of the city of Milwaukee had no application to the case.

Chapter 175, p. 253, Laws 1905, and chapter 505, p. 1134, Laws 1907, empowered the Board of Normal School Regents to erect a Normal School building in the city of Milwaukee according to plans adopted by such board and approved by the Governor. It appeared that the building in question, at the time of the commencement of this action, was, as claimed, in process of being erected under such authority and that all of the conditions precedent to such erection, prescribed by such authority, had been fully complied with.John T. Kelly, City Atty., and Walter H. Bender, Asst. City Atty., for appellant.

F. L. Gilbert, Atty. Gen., and A. C. Titus, Asst. Atty. Gen. (Theodore Kronshage, Jr., of counsel), for respondents.

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

The only question requiring solution upon the appeal is this: Do the provisions of a city charter, and ordinances duly adopted pursuant thereto, regulating the construction of buildings in such city, apply to a public school building proposed to be erected or in process of erection for the state by the Board of Normal School Regents, under special legislative authority to erect the same according to plans adopted by it and approved by the Governor? If not, the judgment appealed from is right.

Counsel for appellant present the case as if the Board of Normal School Regents is to be treated the same as an individual, acting for himself or for a private corporation, which is manifestly wrong. The building in question is to be for public use as state property. The situation is the same as...