Hincks v. City of Milwaukee
| Decision Date | 22 April 1879 |
| Citation | 1 N.W. 230,46 Wis. 559 |
| Parties | HINCKS v. THE CITY OF MILWAUKEE |
| Court | Wisconsin Supreme Court |
APPEAL from the County Court of Milwaukee County.
Action for an injury to the persons of the plaintiff and his wife from the upsetting of a carriage in which they were riding caused by the defective and obstructed condition of a public street in said city. The essential averments of the complaint are stated in the opinion. A demurrer to the complaint as not stating a cause of action, was overruled; and defendant appealed from the order.
Order affirmed.
D. H Johnson, City Attorney, for the appellant, as to the validity of secs. 1 and 2, ch. 20 of the Milwaukee charter of 1874 argued substantially as follows: Admitting, for the purposes of this argument, that a law which is at once partial and arbitrary, limited by its terms to a single case or a small number of cases not distinguishable from other like cases and having no perceivable foundation or motive other than malice, favoritism or caprice, is void (Durkee v Janesville, 28 Wis. 464), still this court has never decided that a law not universal in its application is therefore void; but on the contrary it has, in very numerous cases, sustained legislation local and particular in its application. All that is required in such cases is, that the measure have some conceivable foundation in justice or sound policy to sustain it--some fact to distinguish the case or class of cases provided for from the mass of such cases. Thus, in Whittaker v. Janesville, 33 Wis. 90, the court sustained a law prohibiting an action to enjoin certain local taxes or assessments for mere irregularity, unless the amount justly due were first paid. The act was local and partial, relating only to a small class of taxes in a particular municipality; but it had an apparent motive sufficient to vest the legislative discretion. There is nothing in our constitution, or in the decisions of this court, denying the authority of the legislature to make different rules upon the most general subjects for different localities, where the different circumstances of places seem to justify such discrimination. Thus, any locality where no sheep are raised might be exempted from the operation of a dog law made for the benefit of wool-growers. No one doubts the validity of our laws providing for special assessments for the construction and maintenance of highways in cities, utterly unlike the means resorted to in country places for the accomplishment of the same object; or insists that regulations for constructing public works, or licensing saloons, or paying the police, shall be the same in all cities. The provisions of our state constitution requiring uniformity in the rule of taxation and in the system of town and county government, exclude the idea of general uniformity. The amendments of 1872, cutting off certain classes of special laws, do not require uniformity in general laws; and city charters are expressly excepted from the prohibition of special legislation. Even in states where the constitutions require general laws to be uniform in their operation, the courts uniformly uphold the legislatures in making special laws exempting particular localities, particular classes of persons, and even particular persons, from the operation of the general laws. All that is required is, that there shall be some fact to justify the discrimination; of the sufficiency of the grounds for special legislation in such cases, the legislature must be the sole judge. Cooley on Con. Lim., 390; People ex rel. Smith v. Judge, etc., 17 Cal., 547, 552; Brooks v. Hyde, 37 id., 366, 375; Ohio ex rel. Att'y Gen. v. Covington, 29 Ohio St., 102. Now the liability of towns, cities and villages in this state for injuries occasioned by defects in the highways, is purely statutory. The right of action in such cases being given by statute, the legislature can take it away altogether, or can limit it to such cases as may seem to them just and proper, taking into account the different circumstances of different cases and places. In country places the highways are made and repaired by a species of general taxation. Individuals are not required or permitted to make or mend the public roads in front of their premises; and the work is never, or next to never, let by contract. In Milwaukee streets are made and maintained mainly by special assessments, upon abutting lots. But, before such an assessment, the lot-owner must be notified and have an opportunity to do the work himself. If he chooses to do it within the time prescribed, the city has no control over him or his work, beyond its ordinary police regulations. If he does not elect to do the work, it is let by contract to the lowest responsible bidder. Even in the matter of ordinary repairs, no job involving an expense of more than two hundred dollars can be undertaken without the intervention of a contract. No contract can be let until after estimates, plans and specifications have been made, nor without the authority of the common council, nor until the owners of the adjoining property have been notified and allowed sufficient time to do the work for themselves, as before stated, nor until notice to bidders shall have been published a certain length of time. The contractor and his sureties must be approved as to their responsibility by the board of public works, and the contract must be countersigned by the comptroller in order to prevent unauthorized work from being let, and to keep the wards from overdrawing their funds. The contract must be approved as to its form and execution by the city attorney. It must contain most stringent provisions for the safety of the traveling public. In that respect, street contracts and sewer contracts are alike, and the sewer contract attached to the complaint in this action is a fair specimen. Similar regulations, differing in details but not in principle, exist as to bridges, sewers and other public works.
Is there not, then, a sufficient difference between the regulations for making and maintaining highways in Milwaukee and those in force in the rest of the state, to justify a different rule of liability for defects in highways? Not one in a thousand of all the local and particular regulations that have been upheld here and elsewhere, rests upon such an array of facts distinguishing the case provided for from the mass of like cases. The responsibility of the municipality for the condition of its ways grows out of its power to make and maintain its ways. Upon the power and the mode of its exercise depends, or may depend, the just measure of the responsibility. Whoever concedes to the legislature the authority to make provisions peculiar to Milwaukee, or any other city, for the construction and maintenance of its highways, must concede the power to make rules peculiar to the same city, governing its liability for defects in its highways. The opposite doctrine must be, that every general statutory liability shall rest equally upon every citizen and every corporation public and private, without regard to distinguishing circumstances or equities, beyond the power of the legislature to grant relief even in the form of ordinary charter provisions. If this be so, it follows that the legislature has no power to impose upon one municipality a liability not common to all other municipalities in like cases. Yet Milwaukee alone of all the municipalities of Wisconsin is liable to...
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