Linden Land Co. v. Milwaukee Elec. Ry. & Lighting Co.

• Decision Date: 12 October 1900
• Citation: 83 N.W. 851,107 Wis. 493
• Parties: LINDEN LAND CO. ET AL. v. MILWAUKEE ELECTRIC RAILWAY & LIGHTING CO. ET AL.
• Court: Wisconsin Supreme Court

107 Wis. 493

83 N.W. 851

LINDEN LAND CO. ET AL.

v.MILWAUKEE ELECTRIC RAILWAY & LIGHTING CO. ET AL.

Supreme Court of Wisconsin.

Oct. 12, 1900.

Appeal from superior court, Milwaukee county; J. C. Ludwig, Judge.

Action by the Linden Land Company and another against the Milwaukee Electric Railway & Lighting Company and another to enjoin the defendant railway company from accepting an ordinance granting a franchise to construct and operate certain street-car lines, and to set aside such ordinance, and to restrain the construction of such street-car lines. From an order refusing to vacate a preliminary injunction against the defendant railway company, granted as prayed, it appeals. Reversed.

On the 2d of January, 1900, the common council of the city of Milwaukee passed an ordinance and a resolution in identical terms, each of which purported to grant to the defendant railway company the right to operate street railways upon certain streets in said city, and also purported to renew and extend all the existing railway franchises already owned by the railway company upon other streets in said city, and requiring said defendant railway company to file a written acceptance of the grants so made within 30 days. On the 5th of January, 1900, one J. G. Trentlage commenced this action in question against the railway company and the city for the purpose of restraining the railway company from filing its acceptance of said grants, and restraining the city officers from receiving such acceptance, and preventing the railway company from laying street railway tracks and operating a street railway upon First avenue, in said city; the same being one of the streets covered by the grant. The complaint alleged, in substance, that Trentlage was a citizen and taxpayer of the city of Milwaukee, and owned two lots on said First avenue, and brought the action in his own behalf and in behalf of all other taxpayers and owners of property in said city similarly situated, being many thousand in number; that the defendant railway company was a corporation authorized by its charter to carry freight and passengers by any kind of power as a common carrier, and owned, or claimed to own, certain licenses or rights under ordinances of the city to use a large part of the streets of the city for street-railway purposes for limited periods of time, which had not yet expired, and which streets did not include First avenue and a number of streets specifically named. The complaint then proceeded to allege certain facts which constitute the grants attempted to be made by the ordinance and resolution of January 2d illegal and void. These allegations were, in substance, to the following effect: That a scheme or plan had been entered into by the mayor and certain members of the common council with the officers of the defendant railway company to extend the existing franchises of the company, and fix the rates of compensation to be charged by the company, and also to grant the right to use all the principal streets of the city for street-railway purposes, for the purpose of preventing the common council of the city in the future from regulating rates of fare, or taking any action in respect to the granting of new franchises or the extension of existing franchises, and the fixing of the rates of fare for the carriage of passengers; that said franchises and privileges were of great value, and that large amounts of money had been offered for them, but that the same had been improvidently given away by the city, by virtue of said ordinance and resolution, without any remuneration, and that the city had no right or power to grant the same without consideration; that the money which the city might and could obtain for the franchise was thereby lost to the city, and that the city's expenses in the care and widening of the streets and viaducts thereby granted would be greatly increased, and the burdens of the taxpayers in said city correspondingly increased; that the defendant company proposed to operate its cars by the overhead electric system, and erect poles and wires in the streets, carrying both freight and passengers, and that no provision had been made for compensation to the plaintiffand other abutting owners, and that the defendant company threatened and intended to enter upon First avenue and upon plaintiff's premises without compensation, and operate its railway upon said street; that the defendant railway company has already issued a mortgage and bonds upon all its acquired franchises, including those mentioned in this action, and intends to still further issue bonds thereon which will become a lien thereon in the hands of innocent purchasers; and that the plaintiff and other taxpayers will be remediless. The complaint also alleged that there were illegal and improper means employed by the officers of the railway company to secure said grant, in that the said officers agreed to pay about $8,000 to various citizens for the purpose of silencing their opposition to said ordinance; that the ordinance in question was invalid, because not referred to a committee before action thereon by the common council, and because the action of the common council was not preceded by the report of a committee thereon, as required by the city charter; that said ordinance was invalid because no notice of the application for the grant had been published as required by section 940b of the Revised Statutes. It was also alleged that the plaintiff had no adequate remedy at law. Upon these allegations the plaintiff prayed that the defendant railway company be enjoined from accepting said ordinance and resolution, and that the grant of the common council be set aside and annulled, as a cloud on the plaintiff's title, and that the plaintiff have such other order or judgment as might be equitable. Upon this complaint a preliminary injunctional order was obtained, enjoining the company from accepting said grant, and the officers of the city from receiving any acceptance thereof, and also enjoining the company from building its railway on any part of First avenue. Immediately upon the service of the complaint and injunctional order, the defendant company moved upon the complaint to vacate the injunctional order, which motion was denied on the 29th of January, 1900. Upon the same day the plaintiff Trentlage came into court and filed a notice of discontinuance of the action, and attempted to move the court to dismiss the action; but said motion was not passed upon until the following day, when the Linden Land Company, a corporation which owns certain real estate fronting upon Locust street, 1 1/2 miles distant from Trentlage's lots upon First avenue, came into court and made a petition asking to be substituted as plaintiff in the action, whereupon the court refused to dismiss the action, but allowed Trentlage to withdraw as plaintiff, and substituted the Linden Land Company in his place as plaintiff, and allowed the new plaintiff time in which to frame and file a new complaint. On the 29th of March, 1900, the substituted plaintiff filed a new complaint, and upon the 6th of April following one Charles J. Eigel, who owned a lot upon First avenue some distance from Trentlage's property, made petition to the court, asking to be joined as plaintiff with the Linden Land Company, which petition was granted April 7, 1900, against the appellant's objection. The amended complaint of the Linden Land Company alleged its ownership of lots abutting on Locust street, one of the streets mentioned in the grant, and also alleged that it was a taxpayer, and maintained this action in behalf of all taxpayers and abutting owners similarly situated. It charges that the appellant railway company is an ordinary commercial railway, carrying passengers and freight. It set forth with particularity the previous grants of said railway franchises which had been made to different corporations, and which had been purchased by the defendant railway company, and had not yet expired. It then charged substantially the same illegalities in the ordinance attacked which were charged in Trentlage's complaint,--going, however, more into details; and the prayer for judgment contains a specific demand that the defendant be enjoined from entering on any part of the premises of the plaintiff, or other taxpayers and abutting owners in whose behalf the suit is brought. After the service of this complaint, the appellant railway company answered, putting in issue most of the allegations of the complaint. Upon this answer and certain affidavits the appellant made a second motion to dissolve the injunctional order, which was heard and denied on the 9th day of June, 1900. From the order of January 29th refusing to vacate the preliminary injunctional order, and from the order of June 9th to the same effect, the defendant railway company appeals.

Miller, Noyes, Miller & Wahl, for appellant.

Timlin, Glicksman & Conway and Toohey & Gilmore, for respondents.

WINSLOW, J. (after stating the facts).

With the somewhat novel practice followed in this case, by which a new plaintiff owning property on a distant street was allowed to be substituted for the original plaintiff, and the original injunctional order was permitted to remain in force practically without complaint for weeks, while the new plaintiff was preparing his complaint, we are not concerned. No question as to the propriety or regularity of these proceedings is before us, because the present appeals are simply appeals from orders refusing to vacate the preliminary injunctional order. Upon appeal from a judgment, intermediate orders involving the merits and necessarily affecting the judgment may be reviewed. Rev. St. § 3070. But we know of no provision which authorizes a review of one order upon an appeal from another. Breed v. Ketchum, 51 Wis. 164, 7 N. W. 550. That the court had jurisdiction to refuse to allow the plaintiff to arbitrarily discontinue the case, and...