City of Milwaukee v. Filer & Stowell Co.

161 Wis. 426 | Wis. | 1915

Kerwin, J.

Whether the city had power to pass the ordinance under the charter, providing “for the inspection and regulation of stationary engines and boilers,” is the only question involved upon this appeal. Counsel for appellant relies upon Chain Belt Co. v. Milwaukee, 151 Wis. 188, 138 N. W. 621; Ogden v. Madison, 111 Wis. 413, 87 N. W. 568; Wis. T. Co. v. Oshkosh, 62 Wis. 32, 21 N. W. 828, and some foreign authorities.

In the Chain Belt Co. Case authority to pass the ordinance was claimed under the welfare clause, and this court held that it could not be implied from the “general welfare” clause in the charter. An examination of the Chain Belt Co. Case will show that it is clearly distinguishable from the instant case in many particulars, some of which will be referred to later.

Ogden v. Madison, supra, states the general rule, viz. that municipal corporations possess and can exercise only such powers as are granted in express words; such as are necessarily implied in or incident to the powers expressly granted; and those essential to the declared objects and purposes of the corporation.

The case of Wis. T. Co. v. Oshkosh, supra, involved a question of license for revenue. The city sought by ordinance to charge the telephone company $300 per year for the right to operate in the streets, and it was held that the common council was without power to do so.

In the instant case the ordinance was passed for regulation solely. The power to regulate ordinarily includes the power to license when such power is necessary to proper regulation. We think the weight of authority is to the effect that the power to regulate implies the power to license when in aid of regulation.

In the Chain Belt Co. Case this court refers to the rule of' strict construction and says that the power to license cannot be implied under the general welfare clause. Since the decision of that case, however, we have had some legislation on the subject, sec. 925 — 52c, being ch. 678, Laws 1913. This legislation was intended to broaden the powers of cities of .the first class.

It seems clear under the general charter power to regulate and the above statute that the city had power to pass the ordinance in question. Mehlos v. Milwaukee, 156 Wis. 591, 146 N. W. 882; Cream City B. P. Co. v. Milwaukee, 158 Wis. 86, 147 N. W. 25; 3 McQuillin, Mun. Corp. § 989; Trigg v. Dixon, 96 Ark. 199, 131 S. W. 695; Kinsley v. Chicago, 124 Ill. 359, 16 N. E. 260; 25 Cyc. 602.

Whether the city would have power in aid of regulation to pass the ordinance in question in the absence of sec. 925— 52c we need not and do not determine.

By the Court. — The judgment of the court below is affirmed.