State ex rel. City of Milwaukee v. Milwaukee Elec. Ry. & Light Co.

CourtUnited States State Supreme Court of Wisconsin
Citation129 N.W. 623,144 Wis. 386
Decision Date10 January 1911

144 Wis. 386
129 N.W. 623


Supreme Court of Wisconsin.

Jan. 10, 1911.

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

Mandamus proceeding by State of Wisconsin, on the relation of City of Milwaukee, against the Milwaukee Electric Railway & Light Company. Judgment for relator, and respondent appeals. Affirmed.

On July 14, 1902, the common council of the city of Milwaukee passed an ordinance requiring all street railway companies operating lines in the city to sprinkle with water the entire roadbed of the railways operated, between single tracks and double tracks and one foot outside of all tracks, as well as the space between double tracks, such work to be done under the general supervision of the board of public works and under rules and regulations adopted from time to time by said board and approved by the common council. Street railway companies were not required to do any sprinkling between November 1st and the 1st day of April following. The entire expense of such sprinkling was to be borne by the street railway companies, except that the city was to furnish the necessary water free of charge. The ordinance also provided that any violation thereof should be punished by a fine not exceeding $300 and costs. No rules or regulations were adopted by the board of public works until July 10, 1905. Among other things, the rules adopted provided that the sprinkling called for by the ordinance should be done on all days from and including April 1st to November 1st in each year, excepting Sundays and legal holidays and such days as sprinkling was unnecessary by reason of rain or the moist condition of the streets; that sprinkling should be done in such manner and at such intervals as would keep the surface moist and prevent dust from arising between 6 a. m. and 7 p. m. upon each day when the work was required to be done, but not in such a manner as to create mud or pools of water, and that paved streets should be sprinkled lightly to meet the requirements, but graveled or macademized streets should be thoroughly wetted down. The rules adopted by the board of public works were approved by the common council shortly thereafter. The defendant refused to comply with the ordinance and the rules adopted in pursuance thereof, and the city, on September 21, 1905, commenced a mandamus proceeding to compel the defendant to comply with the terms of the ordinance. From a judgment in relator's favor the defendant or respondent in the court below prosecutes this appeal.

[129 N.W. 625]

Miller, Mack & Fairchild, for appellant.

Daniel W. Hoan, City Atty., and John J. Cook, Asst. City Atty., for respondent.

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

Nine distinct reasons are advanced by the appellant in support of its contention that the judgment appealed from should be reversed; these are: (1) Mandamus is not the proper remedy. (2) The city of Milwaukee is not the proper relator. (3) The rules adopted by the board of public works were not included in the 1906b revision of the charter of the city of Milwaukee and were therefore repealed thereby. (4) Chapter 501, Laws 1909, repealed the street sprinkling ordinance. (5) The street sprinkling ordinance became inoperative because of a resolution adopted by the city council acting under chapter 501, Laws 1909. (6) The city had no power conferred on it to pass an ordinance requiring street railway companies to sprinkle any portion of the public streets. (7) The ordinance is void because its requirements are unreasonable. (8) It is void because it is discriminatory. (9) It was never lawfully passed.

1. It is argued that mandamus will lie only to enforce a clear legal duty, and that no such duty is shown to exist in this case; that the duty imposed is not a public one and therefore performance will not be enforced by mandamus; that mandamus will not lie to enforce the performance of a continuous act, and that it will not lie because the case presents a moot question only. Whether a clear legal duty was imposed on the appellant by the ordinance involved depends on the solution of various legal questions that will hereafter be discussed. We entertain no doubt that the duty attempted to be imposed is of a public nature. The mere fact that the whole or a portion of the expense of sprinkling might be charged to an abutting owner does not determine the nature of the duty. Public streets are built at the expense of abutting property owners where the cost does not exceed the resulting benefits, but the building of streets is none the less a public duty. Sidewalks are built and sewers are constructed in whole or in part at the expense of the abutting owners, regardless of special benefits. This is done by virtue of the police powers lodged in cities and villages, but the duty is as much a public one as if the cost had been defrayed by means of general taxation. It is somewhat difficult to see wherein any special benefit accrues to the abutting owner by reason of the street in front of his property being sprinkled. In any event the public shares in the benefit. The ordinance was passed to preserve the public health and to promote its comfort, and manifestly such an ordinance operates in the interest of and for the benefit of the public. Neither do we see any good reason for saying that relief should not be afforded by mandamus because the duty to sprinkle is a continuous one. If the legal duty on the part of the appellant is clear, the relator should not be denied an appropriate remedy because the right sought to be enforced is not of a temporary nature. There can be no more objection to a court of law granting permanent relief by mandamus in an appropriate action than there is to a court of equity granting relief in a proper case by a mandatory injunction. The cases of State ex rel. v. Associated Press, 159 Mo. 410, 60 S. W. 91, 51 L. R. A. 151, 81 Am. St. Rep. 368,Diamond Match Co. v. Powers, 51 Mich. 145, 16 N. W. 314, State ex rel. v. Einstein, 46 N. J. Law, 479, and People ex rel. v. Dulaney, 96 Ill. 503, cited by the appellant, are for the most part cases where, under the established facts, the right to the continuous or perpetual relief sought

[129 N.W. 626]

was not sufficiently clear to warrant the judgments prayed for. That mandamus will lie to enforce the performance of a continuous legal duty, has been decided at least by inference by this court. State ex rel. v. Janesville Street Ry. Co., 87 Wis. 72, 57 N. W. 970, 22 L. R. A. 759, 41 Am. St. Rep. 23. Such is the general current of authority elsewhere. Potwin Place v. Topeka Ry. Co., 51 Kan. 609, 33 Pac. 309, 37 Am. St. Rep. 312;State ex rel. v. Traction Co., 62 N. J. Law, 592, 43 Atl. 715, 45 L. R. A. 837;Detroit v. Fort Wayne, etc., Ry. Co., 95 Mich. 456, 54 N. W. 958, 20 L. R. A. 79, 35 Am. St. Rep. 580;Oklahoma City v. Oklahoma Ry. Co., 20 Okl. 1, 93 Pac. 48, 16 L. R. A. (N. S.) 651;State ex rel. v. R. R. Co., 48 Fla. 114, 37 South. 652.

The contention that the case presents only a moot question we do not take seriously. It is true that the appellant is not required by the ordinance to do any sprinkling between November 1st and April 1st, and appellant may conclude to comply with its terms beginning April 1st next. This ordinance, if valid, became operative more than five years ago, and no sprinkling has been done thereunder as yet. Furthermore, the appellant is in court vigorously contesting the right of the city to require it to do any sprinkling thereunder at any time in the future. In view of the situation the city is entitled to have its rights under the ordinance judicially determined.

2. It is argued that the city has no financial interest in the result of the suit, and that the only ones who have are the abutting owners who will be relieved of their burden by the enforcement of the ordinance, and that the city therefore is not a proper relator. This argument seems to be based on the proposition that street sprinkling is a private matter which inures to the benefit of the abutting owner, and which affects the public in an incidental way only. We have already said that the duty imposed is a public one, and, while the cost may possibly be charged to the lot owner, a point we do not decide, yet the special benefit that accrues to his property may be very slight, if, indeed, any. If we except chapter 501, Laws 1909, which will be discussed later, there is no statute which compels or obligates or in express terms authorizes the city to impose on abutting property owners the burden of sprinkling. The city is authorized by its charter to provide for street sprinkling, and we see no objection to its providing that the expense thereof be met by general taxation. It may be that the city would be restricted to this method of raising the necessary fund to defray the cost of the work. Indeed, under the provisions of the 1909 law the city is directly and pecuniarily interested in requiring street car companies to comply with the ordinance, because it must bear the expense of sprinkling the street crossings, which make up a very considerable fraction of the entire street surface in the city. Besides, the ordinance we are considering purports to be passed in the interest of public health, and the trial court found as a matter of fact that the circulation of dust was injurious to public health and that disease breeding germs were carried therein. There is no difference in principle between the case at bar and Oshkosh v. Ry. Co., 74 Wis. 534, 43 N. W. 489, 17 Am. St. Rep. 175, where the court at the suit of the city compelled the railway company to restore a highway used by it to its former state of usefulness. In some respects the present case is stronger, in that it involves the matter of public health. Other cases holding that the city is a proper relator in such a case are: State ex rel. v. Traction Co., 62 N. J. Law, 592, 43 Atl. 715, 45 L. R....

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