State ex rel. City of W. Allis v. Milwaukee Light, Heat & Traction Co.

• Decision Date: 23 October 1917
• Court: Wisconsin Supreme Court
• Parties: STATE EX REL. CITY OF WEST ALLIS v. MILWAUKEE LIGHT, HEAT & TRACTION CO. ET AL.

166 Wis. 178

164 N.W. 837

STATE EX REL. CITY OF WEST ALLIS

v.MILWAUKEE LIGHT, HEAT & TRACTION CO. ET AL.

Supreme Court of Wisconsin.

Oct. 23, 1917.

Appeal from the Circuit Court for Milwaukee County; George W. Burnell, Circuit Judge. Affirmed.

Mandamus action to compel appellant to pave its street car zone in the city of West Allis with creosote blocks on a permanent concrete foundation.

In 1894 the Milwaukee Street Railway Company, predecessor of appellants, obtained consent of the boards of supervisors of the towns of Greenfield and Wauwatosa, in Milwaukee county, to construct, maintain and operate a street railway line in such towns, using highways thereof for that purpose. Such consent was applied for and granted under section 1863, Stats., which then provided as to the use by street railway corporations of highways in towns for the purposes of constructing, maintaining and operating their railways as follows:

“Corporations may be formed and governed in like manner * * * for the purpose of building, maintaining and using railways with rails of wood or iron in any village or town; * * * and for that purpose with the consent of the board of trustees of any village and with the written consent of a majority of the supervisors of any town, in, into, or through which such railway * * * may extend, may lay and operate their railways * * * upon, across and along any highway but not so as to obstruct the common public travel thereon. In any village the consent of the board of trustees shall be given by ordinance and upon such terms and subject to such rules and regulations, and the payment of license fees as the board may prescribe.”

Assuming that such statute enabled the towns to impose conditions in granting the consent applied for, it was granted and accepted subject to the following limitations:

“The said board of supervisors of the towns of Greenfield and Wauwatosa shall have the power at all times to make such reasonable regulations as the public safety or convenience may require over that portion of said railway exclusively within the limit of said towns of Greenfield and Wauwatosa.

The surface of the tracks of said railway shall be laid even with the surface of the street, and the said corporation, its successors and assigns, shall make and keep in good and thorough repair at its own cost and charge, so much of said highways upon which the tracks shall be laid and operated and one foot outside the rail; and said company shall use only what is known as a flat or girder rail in the construction thereof.”

In due course the village of West Allis was organized out of such towns and was succeeded by the respondent city. For some time prior to 1816 the streets upon which the street railway tracks were maintained were surfaced with macadam. That being unsatisfactory and out of repair, it was determined by the municipality to replace it with a permanent creosote pavement on a concrete foundation and, to that end, it passed an ordinance requiring as follows:

“Section 3. It shall be the duty of every such street railway company now or hereafter operating and maintaining its street railway upon any street or highway in said city, at all times to keep in good and thorough repair, at its own cost and charge so much of said street or highway upon which its tracks shall be laid and operated, between the rails and for one (1) foot on the outside of each rail as laid and the space between the two inside rails of its double tracks with the same material and identical specifications as the city shall have last used in paving and repaving that portion of the street or highway, not included in the space or portion of said street or highway which this section makes it the duty of said street railway company to keep in repair.

Section 4. Whenever the said city shall have determined that it is necessary to repair any street or highway upon which any street railway company is operating its cars and maintaining its tracks by paving or repaving said street or highway, it shall be the duty of said street railway company to pave that portion of said street or highway upon which its tracks are laid and operated, between the rails for one foot outside of the outside of each rail as laid and the space between the two inside rails of its double tracks, with the same materials and specifications used by the city.”

The respondent, city of West Allis, complied with all the conditions precedent to require appellants to pave its street car zone in said city with creosote blocks on a permanent concrete foundation if said city possessed power to make such requirements. In defiance thereof appellants proceeded to resurface the space in question with macadam, whereupon this proceeding was commenced to compel compliance with such ordinance. Appellants made return to the alternative writ admitting the alleged refusal to comply with the city ordinance and denying that any part of the track zone was, or had been, out of repair. The return was demurred to for insufficiency. The appellants contended that respondent had no right to compel them to pave the street car zone as required and the issue formed by the return and the demurrer turned on that question. The demurrer was sustained.Van Dyke, Shaw, Muskat & Van Dyke, of Milwaukee (Miller, Mack & Fairchild, of Milwaukee, of counsel), for appellants.

Joseph E. Tierney, City Atty., of Milwaukee, for respondent.

MARSHALL, J.

Was it competent for the supervisors of the towns of Greenfield and Wauwatosa to burden the consent granted to the street railway company with conditions? That is the principal question to be considered on this appeal. If it must be answered in the affirmative, evidently the conditions might extend to regulations in respect to preserving and maintaining the highways in a suitable condition for public travel, which, in our opinion, according to the logic of ...