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

• Decision Date: 13 March 1917
• Citation: 165 Wis. 230,161 N.W. 745
• Parties: STATE EX REL. CITY OF MILWAUKEE v. MILWAUKEE ELECTRIC RY. & LIGHT CO.
• Court: Wisconsin Supreme Court

165 Wis. 230

161 N.W. 745

STATE EX REL. CITY OF MILWAUKEE

v.MILWAUKEE ELECTRIC RY. & LIGHT CO.

Supreme Court of Wisconsin.

March 13, 1917.

Appeal from Circuit Court, Milwaukee County; Oscar M. Fritz, Judge.

Petition for writ of mandamus on the relation of City of Milwaukee to compel the Milwaukee Electric Railway & Light Company to repave its railway zone. Writ granted, and defendant appeals from order sustaining petitioner's demurrer to defendant's amended return. Order affirmed.

This is an appeal from an order sustaining the demurrer by the respondent to the appellant's amended return to a writ of mandamus requiring it to pave Center street from Teutonia avenue to Seventeenth street between the rails and for one foot on the outside of the rails with asphalt upon a concrete foundation. The appellant's amended return admitted the corporate capacity of the parties and the business of the appellant; that it operated on Center street under a franchise granted to one of its predecessors and assignors on September 21, 1891, which contained no provision on the subject of paving repairs as amended by the ordinance of January 2, 1900, which, among other things, provided that there was given to the Milwaukee Electric Railway & Light Company, its successors and assigns, the right to lay, construct,maintain, and operate a single or double track for street railways for carrying passengers, with turnouts, side tracks, connections, cross-overs, and switches, upon conditions named in said ordinance, and which ordinance, among other things, provided:

“It shall be the duty of said railway company at all times to keep in good repair the roadway between the rails and for one foot on the outside of each rail as laid and the space between the two inside rails or its double tracks with the same material as the city shall have last used to pave or repave these spaces and the street previous to such repairs, unless the said railway company and the board of public works of said city shall agree upon some other material, and said company shall then use the material agreed upon.”

The appellant succeeded to the rights of its assignor under said ordinance of September 21, 1891, prior to January 2, 1900, and on that date was operating on said portion of Center street pursuant thereto; that on January 2, 1900, the ordinance referred to was adopted; that at all times thereafter appellant continued to operate its tracks on said portion of said street; that for several years prior to the filing of the petition all of said portion of said street from curb to curb was composed of macadam; that about August, 1915, the city paved the portion on either side of the track zone with asphalt pavement on a concrete foundation; that on November 8, 1915, the common council passed the pretended ordinance mentioned in the petition; that at the time the writ was issued it had commenced the construction of its tracks on said Center street; that its east-bound track had been wholly removed and about one-half of the same reconstructed; that it informed the city that it did not consider said ordinance of any force or effect; that it intended to complete the operation of reducing its track to grade and to put the track zone in good repair with macadam, according to the January 2, 1900, ordinance; that at the time of filing its amended return it had completed the reconstruction of its tracks to grade, and had placed said track zone in good repair with the same material as last used by the city, that being the extent of its duty under the January 2, 1900, ordinance; that at all times after the track zone had been constructed with macadam, except during reconstruction of its tracks, said zone was kept in good repair and condition with macadam. In its amended return appellant pleads further facts, showing that it and the city had, from January 2, 1900, until the year 1912, construed the provisions of the ordinance of January 2, 1900, as applying to the various streets and avenues upon which its tracks were being operated, and as requiring it to keep the roadway in the track zone in good repair with the same material which had last been used by the city, except where pursuant to the ordinance some other material had been agreed upon. It is further alleged in the amended return that appellant complied with all the terms of the September 21, 1891, and January 2, 1900, ordinances, and that the latter ordinance became a contract between the state, the city, and appellant; that the pretended ordinance of November 8, 1915, or any ordinance or law attempting to impose upon appellant any greater duty, would be a law impairing the obligation of contracts and deprive appellant of its property without due process of law and be a denial of the equal protection of the law. The amended return further alleges that at the time of the passage of the November 8, 1915, ordinance and prior thereto its earnings from its said railway system in the city were less than an adequate and reasonable return; that the imposition of the additional burden was an unreasonable action on the part of the common council, and that the pretended ordinance was unreasonable and oppressive, and that the common council was without power to pass the same, and that the same is null and void. The return further denies generally the allegations of the petition except as admitted.

Miller, Mack & Fairchild, of Milwaukee, for appellant.

Clifton Williams, City Atty., of Milwaukee, for respondent.

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

The petition of the respondent for a writ of mandamus is based mainly upon the ground that the respondent is entitled to have the appellant pave the zone in question with asphalt upon a concrete foundation under the provisions of an ordinance duly passed on the 8th day of November, 1915, by the terms of which the appellant was--

“ordered and directed to do away with the bad condition of its railway zone on Center street from Teutonia avenue to...