Farnum v. Johnson

62 Wis. 620 | Wis. | 1885

LyoN, J.

The whole of the pier as it stood in 1883, when the alleged cause of action accrued, had been erected by Newberry, Wilson, and the plaintiffs. The original pier, built by the citizens in 1855, then disappeared, and forms no material or substantial part of the present pier. All the testimony on the subject tends to show that the plaintiffs have succeeded to the interests of Newberry and Wilson therein. We have no difficulty in holding, under the evidence, that the plaintiffs are the owners of the structure. The vital question in the case is, Had the village board of trustees lawful authority to confer upon the plaintiffs a franchise to collect wharfage for the use of the pier by others, as it has assumed to do ?

Sec. 892, R. S. provides as follows: “ The village board shall have power, by ordinance, resolution, by-law, or vote, . . . (23) to establish harbor and dock limits, and to regulate the location and manner of construction and use of all piers, docks, wharves, and boat-houses on any navigable waters, and fix rates of wharfage.” . The waters of Lake Geneva are navigable in fact, and the above statute is applicable to Geneva village.

The right of the legislature to exercise directly, in aid of navigation, the powers conferred by the statute upon village boards, is undoubted. Such power has been affirmed, in the judgments of this court, in many cases in principle like the present case. These cases are collected in the brief of counsel for the plaintiff, and will be found cited in the report of the argument. We are aware of no constitutional rule which prohibits the delegation of the same powers to county, city, or village authorities. Our statutes are full of such delegations of authority to confer franchises upon persons or corporations. For example, county boards may grant charters to maintain bridges, plank and turnpike roads, and ferries in their respective counties, and to collect tolls for the use thereof. R. S. sec. 670, subds. 8, 10, 11. Sec. 892, above quoted, was taken by the revisers from then existing special charters. S. & B. Supp. to R. S. 193. Such has been the whole current of our legislation, and it undoubtedly accords with well-settled principles of constitutional law. See Cannon v. New Orleans, 20 Wall. 577.

The only limitation upon the power of the legislature in a case like this, whether exercised directly or by delegation, is that it must not impair the free use by the public of navigable waters. Tewksbury v. Schulenberg, 41 Wis. 584. Manifestly the structure in question is directly in aid of the navigation of Lake Geneva. No claim is made, and there is no testimony tending to show, that the rates of wharfage authorized by the amended ordinance of August, 1883, are unjust or unreasonable.

The ordinance of June, 1883, does not assume for the village or public any proprietary interest in the pier in question, or any other pier belonging to individuals. It merely declares that they are public piers,— that is, that their use is the proper subject of municipal regulation under the statute,— and ordains that they shall be for the use of all vessels navigating the lake, subject to reasonable charges for wharf-age and to future regulation by the village board. The instrument of April 4, 1883, which is called a lease in the sixth finding of fact, will be found, on examination, to contain no assertion of any proprietary interest by the village in the pier, but is merely the grant of a franchise to the plaintiffs on the terms and conditions therein specified. True, that lease was executed before the ordinance of June, 1883, was passed. If there was any want of authority in the village board to make the grant at that time, the ordinance, which is in entire harmony with the grant, supplied the defect and rendered the grant operative.

It is claimed that the grant or lease of April, 1883, is invalid, because the name of the member of the board offering the same was not entered upon the minutes of the board, as required by its by-laws. This omission is an irregularity, but it does not affect the validity of the vote approving the instrument. The by-law is directory, and the failure to observe it in any given case does not invalidate the action of the board.

It is also claimed on behalf of the defendants that the resolution of the board authorizing the execution of the instrument of April 4, 1883, only authorized a renewal of a former lease, dated June 9, 1882 (referred to in the sixth finding) ; that it contains provisions not in the former instrument; and hence that it is invalid. A sufficient answer to this position is that the instrument was read to the board and approved by it before it was executed.

Our conclusions upon the whole case are that the village board had the power, under the statute, to grant to the plaintiffs the rights and privileges specified in the instrument of April, 1883; that the instrument and the ordinance are valid; and that the plaintiffs are entitled to collect wharfage of the defendants for the use of the pier.

By the Gourt.— The judgment' of the circuit court is reversed, and the cause remanded with directions to enter judgment for the plaintiffs for the amount demanded in the complaint.