Ellinwood v. City of Reedsburgh

• Decision Date: 22 October 1895
• Citation: 64 N.W. 885,91 Wis. 131
• Parties: ELLINWOOD ET AL. v. CITY OF REEDSBURGH ET AL.
• Court: Wisconsin Supreme Court

91 Wis. 131

64 N.W. 885

ELLINWOOD ET AL.

v.CITY OF REEDSBURGH ET AL.

Supreme Court of Wisconsin.

Oct. 22, 1895.

Appeal from circuit court, Sauk county; Robert G. Siebecker, Judge.

Action by Alexander P. Ellinwood and others against city of Reedsburgh and others to enjoin defendants from erecting certain improvements, and for other relief. From a judgment dismissing the complaint, plaintiffs appeal. Affirmed.

The plaintiffs brought this action to restrain defendant city of Reedsburgh from executing a contract for the construction of a waterworks and electric lighting plant, and from issuing bonds or incurring indebtedness to pay for such construction, upon the ground that the common council had varied the plan for such works adopted by the vote of the electors of the city, and that such city has no power under its charter to borrow money and issue bonds or incur indebtedness for the purposes contemplated. The common council of the city duly passed the following resolution: “Resolved, that the common council recommend to the voters of the city of Reedsburgh that said city build a system of waterworks, and a plant for electric lighting in connection therewith, and that bonds for that purpose be issued, not to exceed twenty-five thousand dollars, and that the question be submitted to the people of the city at a special election to be held for that purpose on August 2, 1893, the vote to be for bonds for waterworks and electric lights, and against bonds for waterworks and electric lights; that there be one poll open for said election, which shall be at the engine-house; and that the polls for said election open at 9 o'clock a. m., and close at sundown, the clerk being hereby instructed to prepare and publish notices for said election in accordance herewith.” On the morning of the election, the city council duly passed the following resolution: “Resolved, further, that the waterworks to be put in, if authorized by the said voters, shall be put in in accordance with the plans now posted in the postoffice, and that no indebtedness shall be created therefor exceeding the sum of twenty-five thousand dollars.” The proposition to issue bonds, as recommended, was carried at the election, and thereafter the council made some changes in the plan referred to in the resolution, and received bids for the construction of a waterworks and electric lighting plant in accordance therewith, but all such bids were rejected.

The trial court found, as facts, among other things: (1) That the proposition referred to was duly and regularly submitted to the voters of the city of Reedsburgh, and was adopted by a majority of 15. (2) That the plan mentioned in the resolution was simply a general outline of the system of waterworks; that it did not include any plan for the electric lighting system, and that, subsequent to the election, the common council perfected and adopted definite and detailed plans and specifications for waterworks and electric lighting plants; that such perfected system did not materially affect the efficiency of the system originally outlined, and was made in the public interest. (3) That the bids for the construction of waterworks and electric lighting plants were rejected. (4) That the officers of the city, in all they did in respect to the matter, acted in good faith, and with a view solely to the public interest. As conclusions of law, the trial court found, substantially, among other things: (1) That the city of Reedsburgh has full authority to perform the acts sought to be enjoined. (2) That the court cannot interfere with the city officers, on the ground that the plans and specifications finally adopted differ in some respects from the outline plan mentioned in the resolution, the same not having been materially changed; that the city officers possessed discretionary power to make such changes. Judgment was accordingly entered dismissing the complaint.George W. Bird and B. W. Jones, for appellants.

Spooner, Sanborn, Kerr & Spooner, for respondents.

MARSHALL, J. (after stating the facts).

There are only three questions necessary to be considered in the disposition of the appeal:

1. Did the city of Reedsburgh, under its charter, possess power to build a system of waterworks and an electric lighting plant? It is not necessary to seek for an express delegation of power to the city to build a waterworks and electric lighting plant in order to determine whether such power exists, for the general power in respect to police regulations, the preservation of the public health, and the general welfare includes the power to use the usual means of carrying out such power, which includes municipal water and lighting services. Dill. Mun. Corp. §§ 143-146; Mauldin v. City Council (S. C.) 11 S. E. 434;Rushville Gas Co. v. City of Rushville (Ind. Sup.) 23 N. E. 72;City of Crawfordsville v. Braden (Ind. Sup.) 28 N. E. 849;Bluffton v. Studabaker, 106 Ind. 129, 6 N. E. 7. It has been repeatedly held that power to prevent danger from fire is an incidental power belonging to all municipal corporations. The rule has always been that a municipal corporation has inherent power to provide for the protection of the property of its citizens against fire. Such power is one long possessed by municipal corporations, and is closely connected with the purposes for which corporations are organized. Baumgartner v. Hasty, 100 Ind. 575. Providing for fire protection and street lighting “are all essential works of public utility, and come within objects for the attainment of which...