Neacy v. City of Milwaukee

142 Wis. 590 | Wis. | 1910

Dodge, J.

It being conceded by the answer that all of the-proposed proceedings toward erecting and paying for a municipal lighting plant are taken in reliance upon the ability of' the city to issue its bonds for the cost thereof by authority of the referendum vote of 1904 and are dependent upon such issue of bonds, the first and fundamental question is whether that vote is sufficient in law to authorize the present threatened issue of $150,000 of bonds.

Whatever power the city, acting through its common council and other officials, may have to engage in undertakings of the character here considered to be paid for out of the current revenues, the power to do so by the issue of bonds, thereby casting the expense upon the future, is conditioned upon at least general approval by the electorate. Sec. 943, Stats. (1898). While that section is not specific upon the subject, we deem it clear that a proposition for the issue of bonds for a specific purpose must, by reasonable intendment, include the amount thereof, or at least the maximum amount which is to be approved by the electors. Another limitation, at least by implication, found in the charter of cities of the first class is that such bonds, even when approved by the electors, can only be issued and the proceeds used for the construction or purchase of an electric or gas light plant. No authority exists for issuing bonds to defray the' expense of up-keep, repair, or operation. The only proposition which has been submitted to the voters is for the issue of $500,000 of bonds for the construction and maintenance of such plant. Does an affirmative answer to that question confer authority to issue $5 00-,000 of bonds, or any less amount, for the construction alone? Probably if it does by fair construction, the reference to maintenance might be ignored as mere sur-plusage and futile. While all reasonable intendments should be indulged in favor of municipal action, nevertheless the policy of the statute is clear to require approval in advance by the electorate of any issue of bonds, and if the submission of that question be so involved and ambiguous that it cannot be reasonably ascertained that the will of the voters has been expressed in favor of the specific project and-of the amount of bonds to be issued, the purpose of the statute will be thwarted if, nevertheless, they could be issued; by the common council.

After mature consideration we are persuaded that a declaration in favor of the issue and use of $500,000 of bonds for the construction and maintenance of a plant does not with sufficient clearness declare that that amount, or indeed any specific part of it, may be expended in the construction alone. A voter with this question before him, accompanied by knowledge of the report of the city engineer that a plant could be constructed for $250,000, might well understand that the scheme was to provide this $500,000 not alone for the construction, but also for a fund to be expended in repairs and up-keep, or even in meeting the expenses of operation or such part thereof as might exceed annual appropriations. Municipal lighting plants have very much of the experimental both in mechanics and finance, and the early years after their construction may very possibly be fraught with unforeseen expenditures and deficits. A voter might well believe that the proposition for which he voted included those things, and might well be in favor of postponing to future taxpayers the burden of defraying those experimental expenses rather than enhancing his own present taxes thereby. He might well assume that no more than the estimate of the city engineer would be required for the construction, and yet desire to provide a fund to meet the contingency suggested. Indeed, the very consideration that such expenses of the experiment might be postponed to the future may well have been an inducement to an elector to favor the construction of the plant. Such considerations as these, namely, the possible or probable effect of improper matter submitted in the same proposition tending to influence the voter in determining his choice upon the material matter, were held to invalidate in State ex rel. Williams v. Sawyer Co. 140 Wis. 634, 640, 123 N. W. 248, where several illustrative decisions were cited, to which may be added Elyria G. & W. Co. v. Elyria, 57 Ohio St. 374, 49 N. E. 335; Farmers’ L. & T. Co. v. Sioux Falls, 131 Fed. 890; Leavenworth v. Wilson, 69 Kan. 74, 76 Pac. 400.

We are persuaded that it is impossible to say with reasonable certainty that the voters have authorized the issue of bonds to any specific amount for the construction alone of a municipal lighting plant, nor that they may not have been induced to vote in favor of the policy by reason of their approval of the use of the bonds for the purposes of maintenance. We conclude, therefore, that the record discloses an attempt by the city council to issue bonds and tahe the other steps in dependence thereon without the essential statutory prerequisite of a popular vote of approval, and that all such proceedings would therefore be illegal and would result in the subjection of the taxpayers of the city to at least an ostensible burden. Erom this, of course, results the conclusion that a temporary stay was proper, and the order appealed from refusing to vacate such stay was without error.

By the Court. — Order affirmed.