City of West Bend v. West Bend Heating & Lighting Co., 186 Wis. 184

City of West Bend v. West Bend Heating & Lighting Co.

186 Wis. 184 | Wis. | 1925

Vinje, C. J.

It is claimed on the part of the appellant, first, that the common council had no power or authority to *187pass the resolution in question; second, that the city received no consideration therefor; third, it was an attempt to limit the rights and powers of the city in its governmental functions. It is claimed that the maintenance of a fire department and the acts of men belonging to the department in the extinguishment of fires is the exercise of a governmental function, and that a city is not liable for malfeasance or non-feasance connected with the maintenance and operation of the fire department or for damage to private property by firemen trespassing thereon while in the performance of their duty or for the reasonable destruction of private property by a fire department of a city in order to stay a conflagration, and, generally, that a municipal corporation is not answerable for the acts of its officers in discharging its governmental functions and in destroying property to avert imminent public injury. Cases to support these various contentions are cited both from our own state and from foreign courts. It is not necessary to express any opinion upon the soundness of these contentions because there is a radical distinction between the maintenance of a fire department and the acts of officers or persons in that department in the discharge of their duties and the maintenance of a waterworks system for public purposes or for municipal fire protection alone. It may be conceded that, so far as acts of officers or persons within the fire department are concerned, they may be acting in a governmental capacity. It does not from that by any means follow that in the maintenance of a water-works system the city is likewise engaged in the exercise of a governmental function. It has been held by this court and is the general rule that in the operation and maintenance of a system of waterworks the city acts in a proprietary capacity, and, generally speaking, may exercise such powers as a private concern engaged in a like business may exercise. See Eau Claire Dells Imp. Co. v. Eau Claire, 172 Wis. 240, 252, 179 N. W. 2, and cases there cited.

The city of West Bend by express charter provision is authorized by sub. 33 of sec. 37 of its charter “to provide *188protection from fire by the purchase of fire engines and all the necessary apparatus for extinguishing of fires, and by the erection of pumps and the construction of water mains, reservoirs, or other waterworks.” This power, even though it were not expressly granted by the charter, would be one inherent in the very organization of a municipal corporation. Since it had the power to build reservoirs, it follows that it also had the power to buy them upon reasonable terms. Here it was considered by the common council that it was more advantageous to the city to procure a reservoir by the means provided for in the resolution than to build one of its own. And it appears from the findings of fact that the city has used this reservoir for over thirty years. The extent of that use need not now be inquired into. The evidence was amply sufficient to sustain the finding set out in the statement of facts. It appears that the city by resolution made an offer to the defendant’s predecessor in title. That offer was accepted, acted upon, and upon the completion of the dam and reservoir the city for over thirty years has availed itself of its use. Under such circumstances it cannot be successfully maintained that there was a lack of consideration for the contract thus created by the offer and its acceptance. There is nothing appearing in the case that makes it inequitable for the city still to be bound by the contract thus entered into. It is a general rule of law that where a city in its proprietary capacity enters into a contract either by signing one or by the passage of an ordinance or resolution the offer of which is accepted by a third party and carried out, the contract cannot be rescinded or modified in any degree without the consent of both parties. Eau Claire Dells Imp. Co. v. Eau Claire, 172 Wis. 240, 179 N. W. 2; Detroit v. Detroit Citizens’ St. R. Co. 184 U. S. 368, 22 Sup. Ct. 410; Cleveland v. Cleveland City R. Co. 194 U. S. 517, 24 Sup. Ct. 764; Minneapolis v. Minneapolis St. R. Co. 215 U. S. 417, 30 Sup. Ct. 118; Detroit United R. Co. v. Michigan, *189242 U. S. 238, 37 Sup. Ct. 87. McQuillin on Municipal Corporations, sec. 1253, states the rule thus:

“A municipal contract may cover any length of time provided it does not cede away control or embarrass the legislative or governmental powers of the municipality or render it unable in the future to control any municipal matter over which it has jurisdiction.”

See, also, the following cases: Oconto City W. S. Co. v. Oconto, 105 Wis. 76, 80 N. W. 1113; Hurley W. Co. v. Vaughn, 115 Wis. 470, 91 N. W. 971; Columbus W. Co. v. Columbus, 48 Kan. 99, 28 Pac. 1097; Spier v. Kalamazoo, 138 Mich. 652, 101 N. W. 846.

Having reached the conclusion that the resolution was duly passed by the defendant and that its acceptance constituted a valid contract between the plaintiff and the defendant which is still in force and effect, it is unnecessary to consider the other aspects of the case in which the trial court found that the old bridge was adequate for the travel thereon and that it was unnecessary to build a new one. We express no opinion on this phase of the case.

By the Court. — Judgment affirmed.