City of Janesville v. Milwaukee & Mississippi Railroad

| Wis. | Jan 15, 1859

By the Court,

Corns, J.

The counsel for the appellant demurred to the complaint filed on the part of the city in the court below, for the reason that the same did not state facts sufficient to constitute a cause of action. The demurrer was overruled by the circuit court, and, as we think, very properly, being clearly of the opinion that the complaint does set forth a good cause of action.

Without attempting to notice in detail the various objections taken to the complaint, as contained in the brief of the counsel for the appellant, we will remark that the acts of the legislature creating and incorporating cities are public acts, and courts take judicial notice of the powers and capacities of such corporations. One of the most ordinary incidents to such incorporations, is the right to sue and of being sued in its corporate name.

It cannot, therefore, be necessary for the city of Janesville, when it brings an action in the courts of this State, to allege that it has a legal capacity to sue.

Another most common and essential power conferred by the legislature upon incorporated cities, and which in express language, is (by the original charter, chap. 93, private laws, 1853, and the various actsjamendatory thereof) granted to the city of Janesville, is the authority to make and enforce all proper rules and by-laws for the government and good order of the city, and for the benefit of trade and commerce, and to establish and enforce such ordinances as may be deemed expedient to prevent the obstruction and incumbrance of the streets, highways, sidewalks, &c. The act incorporating the city being a public act, one which the courts must take judicial notice of, it could not be necessary to aver in the complaint that the city, by its proper authorities, had' power to enact an ordinance prohibiting the obstruction of the streets and highways therein. The complaint sets forth such an ordinance by reciting its title, and gives the substance of the ordinance prescribing the penalty. We deem this sufficient.

Another objection taken to the complaint is, that it does not appear therein that the railroad company, in the operation of its road, unnecessarily obstructed and encumbered the streets of the city by its cars or otherwise. The complaint sets forth six breaches of an ordinance enacted to prevent obstructions of streets by any railroad company under a penalty of twenty-five dollars for each day or part of a day such obstruction might continue. The first count, as it would be called under the old system of pleadings, alleges that the company, on a certain day therein named, placed and suffered their cars to stand upon and across certain streets, and wholly obstructed them, so that the citizens and others having occasion therefor could not use them, nor pass and repass, by reason of said obstruction, for the space of two hours or more. The other causes of action are stated substantially like the first. Now, certainly, it will not be seriously contended that it is necessary or the proper operation of this railroad that the company block up, by its cars, the streets of the city of Janesville for two or three hours at a time, during the day. Such a use of the streets by the company would be entirely inconsistent with the right of passage secured to the public on the highways of this State. A railroad company cannot monopolize a street in derogation of the public and private uses to which it has been applied.

The only remaining objection which we deem it necessary to notice, is that the circuit court had no jurisdiction to hear and determine this action ; but that it should have been commenced in the police court of the city. To sustain this position, we were referred to section 14, chapter 62 of the private laws for 1857, and also to chapter 339 of the private and local laws of the same year. We find nothing in the latter act, which is entitled “ An act to establish a code of procedure for the police court of the city of Janesville,” bearing upon this question. Sec. 14, chap. 62 of the Pr. Sess. Laws, 1857, does declare that the police justice for said city shall have exclusive jurisdiction in all civil proceedings wherein the city shall be a party, &c. But by section 5, chapter 137 of the private laws of 1857, an act passed subsequent to the last mentioned statute, the authority, powers, rights, and jurisdiction of the police justice of said city were restored to the same condition they were under section 12, chapter — of the private laws of 1855. In defining the powers of the police court, section 12 of the latter act expressly provides that nothing therein contained shall be deemed to effect in any manner the power or jurisdiction of the circuit court of Rock county. Hence we think it is very apparent that the circuit court had jurisdiction to hear and determine this action.

The order of the circuit court overruling the demurrer is therefore affirmed.