This action is brought by the city of Milwaukee to recover the penalty imposed for a violation of one of its ordinances. The ordinance in question was entitled “ an ordinance for the protection of the beach or shore of Lake Michigan in the tbkd ward of the city of Milwaukee.” In the first section, the beach or shore of Lake Michigan in the third ward of the city, extending along the margin of the lake from the center of Wisconsin street to the north harbor pier in the said ward, as high as the established grade of Beach street, in said ward, one hundred feet in width, was established and declared to be necessary for the protection of said ward from inundation by the waters of Lake Michigan, and necessary for the preservation of the piers of the harbor and of the proper and necessary depth of water in the Milwaukee river.
On the defense, I. A. Lapham was called as a witness, who testified that he had resided in Milwaukee for upwards of twenty-five years; that he was acquainted with the beach between Wisconsin street and the north harbor pier, and had been so acquainted with it for upwards of twenty-five years; that he was acquainted with the results produced on the shores of Lake Michigan by the action of the waters of the lake, and had practical knowledge thereof, and had made the matter a study; and that he was a civil engineer. And the witness was asked what effect the removal of the sand from the beach of Lake Michigan, between Wisconsin street and the north harbor pier, would have with respect to the inundation of the third ward by the waters of Lake Michigan. This question was objected to and ruled out. The defendant’s counsel thereupon repeated the question to the witness, and offered to prove by
It is argued by tbe counsel for tbe city, that tbe authority to enact tbe ordinance is clearly vested in tbe common council, either in tbe specific powers granted in tbe charter; or under tbe common law powers of a municipal corporation; that tbe ordinance itself declares tbe emergency for its passage, and that this declaration is conclusive upon tbe question of its necessity and reasonableness. Eor it is said, it would be an unbearable nuisance that in such cases each jury should determine tbe necessity in each particular case, since this would make tbe validity of tbe ordinance depend wholly upon a question of fact, and it would be valid in one case and invalid in another, according to tbe varying weight of testimony and tbe varying views of juries. Hence it is insisted that tbe rule of law applies that when a power is delegated by tbe legislature to a public body, tbe necessity of its- exercise rests wholly in tbe body to which it is delegated.
We are unable to concur in those views to their full extent. It may well be, that tbe common council is clothed with the authority to enact an ordinance for tbe protection of tbe city, or
But we are unable to assent to the proposition that the common council is the sole and only judge of the necessity and reasonableness of the ordinance when enacted. The common council must doubtless determine in the first instance, whether an emergency has arisen calling for the passage of such an ordinance. But when the ordinance is passed, it stands upon the same ground as other ordinances and municipal regulations, and must be judged accordingly. Ordinarily, whether a by-law is reasonable or not, is a question for the court solely, and it has been held that evidence to the jury on the subject showing the effects of the law, was not admissible. Commonwealth vs. Worcester, 3 Pick, 462; State vs. Overton, 4 Zab., (N. J.,) 435; Angel & Ames on Corp., § 357. In the case of Commonwealth vs. Worcester the defendant was prosecuted for violating an ordi
In the case of Hayes v. The City of Appleton, 24 Wis., 542; and Barling v. West, 29 Wis., we had occasion to consider the validity of certain ordinances enacted by municipal corporations, in restraint of trade. In both cases the ordinances were held upon their face to be unreasonable — in derogation of common right, and therefore void. And it was said that if there were any reasons or special circumstances which rendered the ordinances in those cases reasonable and proper, necessary for -the good order and welfare of the communities over which they
In the present case, the validity of the ordinance depends rather upon a question of fact than of law. That is, in a legal sense, considering merely whether the ordinance is one which the common council had the power to enact; or whether upon its face it is obnoxious to any legal or constitutional objection, and we should hold that prima facie it is valid. But it was proposed to prove by an intelligent and scientific witness, who had practical knowledge upon the subj ect, and who had made the action of the waters of the lake upon the beach or shore mentioned in the ordinance, a study, that the removal of the sand from the lot in question would not tend to render the ward liable to be inundated by the waters, nor in any way injure the piers of the harbor or prevent their preservation; and would have no effect whatever upon the depth of the water in Milwaukee river. If the removal of the sand would be attended with no injurious consequences whatever; would not tend to destroy the natural barriers against the lake; nor endanger in any way the streets or harbor of the city, or private property within its limits, then we could say that the ordinance when applied to the case before us, was illegal — an unnecessary infringement of the rights of property without any compensating advantages to the public.
Is it not, therefore, apparent that the validity of this ordinance depends upon the question whether it is unreasonable and unnecessary to accomplish the object intended ; and that whether reasonable and necessary, is from its nature a question of fact and not of law. As suggested on the argument by the counsel for the plaintiff in error, the action of the winds and waves upon the shore of the lake in that locality, is not within the science of the law. And it is impossible for the court to determine whether or not the ordinance is reasonable and proper, in view of the object sought to be accomplished, without some evidence upon the subject. And we cannot see that
It follows from these views, that the ruling of the municipal court in excluding the evidence offered, was erroneous, and that there must be a new trial.
By the Court — Judgment reversed, and a venire de novo awarded.