Bell v. City of Platteville

Cassoday, J.

It is undoubtedly true that the corporate authorities of a city possess only such powers as are expressly granted by legislative enactment, and such others as are necessarily or fairly implied in or incident to the powers thus expressly granted, or essential to the declared objects and purposes.of the corporation. 1 Dill. Mun. Corp. (3d ed.), sec. 89; Appeal of Whelen, 108 Pa. St. 197; Le Couteulx v. Buffalo, 33 N. Y. 333; Meinzer v. Racine, 68 Wis. 245, 246; Gilman v. Milwaukee, 61 Wis. 592.

By the charter there was conferred upon the city of Platteville the general ¡sowers possessed by municipal corporations at common law, and in addition thereto such as are therein “specifically granted.” Sec. 1, subch. 1, ch. 83, Laws of 1880. The government of the city and the exercise of its corporate powers and management of its financial, prudential, and municipal concerns, were vested in a mayor and six aldermen, who were denominated the common council, and sucn other officers as are therein provided for. Sec. S’, Id. To the common council was given “ the management and control of the finances and of all property of the city,” and “ in addition to all other powers ” vested in the common council, numerous specific powers were granted to it by the several subdivisions of sec. 17, subch. 4 of the charter, among which are the following: “ 38. To receive, purchase, and hold for the use of the city any estate, real or personal, to sell and convey the same, and to insure any property of the city against loss or damage by fire, lightning, wind, or hail. ... 40. To establish a fire department; . . . to provide protection from fire by the purchase of fire-engines and all the necessary apparatus for the extinguishment of fires; . . . to erect engine-houses,” etc. These subsections were amended by ch. 94, Laws of 1881, particularly by adding to subsection 38 the following: “Provided, no purchase of any said real estate shall be made to exceed one thousand dollars in value during any current year, unless the question of such purchase shall have been submitted to the electors of said city at a general or special election, upon due notice, and a majority thereof shall vote in favor of such purchase. Notice of the submission of such question shall be given at least ten days prior to such election by posting or publication thereof as in other cases.” The statutes provided that any city may borrow money and issue its negotiable bonds for the purchase or erection of public buildings ; but such bonds are not to issue until such proposition to issue shall have been submitted to the people of such municipality and adopted by the maiority voting thereon. Secs. 942, 943, R. S.

It is said there is no proof of any meeting ever being called to vote upon the question of the building of a theater. It may. be added that the record fails to disclose whether any proposition for the purchase of the land, or the construction of the city hall, or the issuing of any bonds therefor, was ever submitted to the people or voted upon. The answer to all such suggestions, however, is that this action is not brought to restrain the purchase of the lots, nor the construction of the building. Its only purpose is to restrain the alleged misuse of certain portions of the building, and hence presupposes its construction and substantial completion. The complaint alleges, in effect, that the city owned the hall; that it was of the value mentioned; that it had been “ built by taxes legally voted by the citizens of said city.” We must therefore assume, even in the absence of proof, that the city authorities were duly authorized to purchase the lots, construct and complete the building as they did, and put the same in the condition in which it existed at the time the action was commenced. The character of the building, and the several rooms and apartments thereof, and their respective uses, are set out in detail in the verified answer. The trial court, for the purposes of the case, and in the absence of evidence to the contrary, assumed such statements to be true. If they were not true and prejudicial to the plaintiffs, they should have made it so appear, since the burden was upon them to show affirmatively their right to equitable interference. In the absence of such proofs, the plaintiffs occupied the same position in those respects as though they had demurred to the answer.

We start, then, with the city as the lawful owner of the building containing the rooms and apartments mentioned. From what has been said, it will appear, that the question so fully ai’gued by the learned counsel for the plaintiffs as to whether the municipality had any legal authority to build a coliseum, a theater, a circus, a beer-garden, or any structure for mere amusement, recreation, or culture, is not involved in the case nor pertinent to any .of the issues raised. So far as this case is concerned, it must be assumed that the city had authority to build a city hall, and built it. Such authority having been given without restriction, included, by necessary implication, the right to determine the plan of the building and the mode in which it should be constructed. Konrad v. Rogers, 70 Wis. 492; Ely v. Rochester, 26 Barb. 133; 1 Dill. Mun. Corp. sec. 140; Poillon v. Brooklyn, 101 N. Y. 132. Human wisdom is not infallible, and it may be that the plan of this building was unwise; that it extended beyond the immediate, or even prospective, municipal wants of the city. Nevertheless it was the plan determined upon by the only officials vested with the authority to determine the same. The lower part of the building seems to be adapted to the municipal purposes to which it is devoted. Whether, prior to such construction, the courts had power to confine the city authorities to some plan measured by or limited to the municipal necessities or wants of the city, is a question not here presented. It may be said, however, that courts of high authority have, in effect, held that such questions are largely within the discretion of the municipal authorities, and that courts should not interfere with such discretion except in a plain case of its abuse. Greeley v. People, 60 Ill. 20; Torrent v. Muskegon, 47 Mich. 115. In this last case such intervention was asked upon the ground that the proposed building was more expensive than needed by the fire department, and that there was no authority for building a city hall. In the language of Lord Chancellor Selboene, “ this doctrine [of; ultra vires] ought to be reasonably and not unreasonably understood and applied, and that whatever may fairly be' regarded as incidental to, or consequential upon, those things which the legislature has authorized, ought not, unless expressly prohibited, to be held by judicial construction to be ultra vires.” Att’y Gen. v. Great Eastern R. Co. L. R. 5 App. Cas. 473, 33 Eng. (Moak.) 773. As indicated, the city is the lawful owner of the building with the opera hall in it. This being so, there are really but two questions presented for determination.

1. Have the city authorities the lawful right to let or use the opera hall for the purposes mentioned? As observed, the charter expressly gives them “the management and control of the finances and of all property of the city.” They are, moreover, charged with “ the government of the city and the exercise of its corporate powers and management of its financial, prudential, and municipal concerns.” With the city owning the lots and building, and the city authorities possessing the powers thus expressly granted, it seems to us they have, by necessary implication, and as incident to such ownership, the lawful right to let or use the opera hall for the purposes mentioned. In fact this seems to be the logical result of former decisions of this court. Thus, while it was held in Att’y Gen. v. Eau Claire, 37 Wis. 400, that the legislature could not authorize the erection of a dam across the river at the expense of the city, “for the purpose of leasing the water-power for private purposes ” merely, yet, upon the subsequent amendment of the act, it was in effect held that as the city had lawful authority to erect the dam “ for the purpose of water-works for the city,” it might, as incident to such authority, lease for private purposes any excess of water power not required for its water-works. 8. G. 40 Wis. 533. This doctrine was reaffirmed in the recent case of Green Bay & M. Canal Co. v. Kaukauna W.-P. Co. 70 Wis. 635. The decisions in other states in cases similar to this confirm the same rule. Thus, in Spaulding v. Lowell, 23 Pick. 71, “ a town built a market-house two stories high, and appropriated the lower story for a market, which was bona fide their principal and leading object in erecting the building,” and “ it was held that the appropriation of the upper story to other subordinate purposes was not such an excess of authority as to render the erection of the building and the raising of money therefor illegal.” In French v. Quincy, 3 Allen, 9, it was in effect held that in the erection of a town-house the municipality might “ make suitable provision for its prospective wants; and if the building contains rooms not wanted for the time being for municipal business, the town may let them temporarily, or allow them to be used gratuitously.” To the same effect, Camden v. Village Corp. 77 Me. 530; S. C. 33 Alb. L. J. 28; Worden v. New Bedford, 131 Mass. 23; The Maggie P., 25 Fed. Rep. 202. The cases relating to powers of school districts and towns cannot be regarded as authority for limiting the powers of cities as claimed, since their powers are very much more restricted, being, at most, quasi corporations, or corporations sub modo only. Cathcart v. Comstock, 56 Wis. 606-608. Ve must hold that the letting and use mentioned was not unauthorized.

2. There seems to be another insuperable objection to the maintenance of this action by the plaintiffs as mere taxpayers. The case is wholly barren of any action of the municipality tending to cloud the title of any of their property or in any way to increase the burden of taxation upon any property within the municipality. These things being so, the private rights of the plaintiffs are in no way jeopardized. Gilkey v. Merrill, 67 Wis. 459. On the contrary, their taxes will apparently be diminished by the revenue derived from the proposed letting or use. The plaintiffs appear in the case, therefore, as mere citizens of the municipality, asking the court to restrain the city officials from exercising powers said to be in excess of their corporate authority. That, however, seems to be a matter wholly between the municipality and the state. 2 Dill. Mun. Corp. sec. 574, and cases there cited; Camden & A. R. Co. v. M. L. & E. H. C. R. Co. 48 N. J. Law, 530. Undoubtedly the courts have a supervisory power over municipal corporations as well as others in such cases. Our statute provides that “ in an action for that purpose commenced by the attorney general in the name of the state, in any circuit court, against a, corporation, such court may restrain such corporation by injunction from assuming or exercising any franchise, liberty, or privilege, or transacting any business, not authorised by its charter.” Sec. 3236, R. S. It seems very proper that an action of such public concern should always be in the name of the state, and prosecuted by the public authorities.

By the Gourt.— The judgment of the circuit court is affirmed.