151 Wis. 504 | Wis. | 1913
The order appealed from was granted upon the complaint, answer, affidavits, and certain proceedings of the common council of the defendant city. The material facts are substantially undisputed. It was established upon the hearing of the motion for injunction that the action was brought by the plaintiff on behalf of himself and all other taxpayers similarly situated; that the defendant city submitted a proposition to the voters whether $500,000 of municipal electric light bonds should be issued, which was car
There are some general allegations in the complaint denying the regularity of the proceedings of the common council of the defendant city, and also the validity of the last issue of bonds, and some charges respecting the unlawful diversion of funds. . These allegations are positively denied in the answer. But the facts which go to the merits of the controversy here are undisputed, or substantially so.
On the part of the appellants it is insisted that the present action cannot be maintained by the plaintiff as a taxpayer; that the acts of the city which have been enjoined are lawful, and that as to the auxiliary plant the action cannot be maintained because of laches. The respondent seeks to sustain the order below on the following grounds: First, that the 1912 issue of bonds was illegal; second, that the construction of the auxiliary plant by diverting the proceeds of the 1906 issue of bonds for that purpose was unauthorized; third, that the city has no right to use the streets for stringing or laying its electric wires and cables; and fourth, that the defendant city cannot construct an electric light and power plant until it has obtained a certificate of convenience and necessity from the railroad commission. The last ground seems to be mainly relied upon for affirmance.
It is contended by counsel for appellants that the plaintiff as a taxpayer of the defendant city cannot maintain this action. But we think the question is not new in this state, and must be regarded settled against the contention of appellants. Neacy v. Milwaukee, 142 Wis. 590, 126 N. W. 8; Kyes v. St. Croix Co. 108 Wis. 136, 83 N. W. 637; Linden L. Co. v. Milwaukee E. R. & L. Co. 107 Wis. 493, 83 N. W. 851; Rice
The 1906 issue of bonds was legalized by ch. Y5, Laws of 1911, so there is no question made upon these bonds, and the auxiliary plant was constructed out of that issue, and the validity of the 1912 issue in no way affects the right of the city to construct the auxiliary plant. The attempt of the respondent to show that the 1912 issue is invalid is feeble. The allegations are general and there is no particular specification of grounds of invalidity. Besides, such allegations are on information and belief, and are positively denied in the answer. The facts showing invalidity presumably are such as to be capable of specification and positive allegation, and the rule of pleading pertaining thereto ought to be observed. Steinberg v. Saltzman, 130 Wis. 419, 110 N. W. 198. We have carefully examined the record and find no ground for holding that the 1912 bonds are illegal.
The alleged diversion of the so-called 1906 bonds is claimed to be illegal. These bonds are denominated “Municipal electric light bonds.” One hundred and fifty thousand dollars of these bonds were issued in pursuance of a vote of the electors upon the following proposition, namely, “Shall $500,000 municipal electric light bonds be issued to erect and maintain a municipal electric light plant?” Eorty thousand dollars of this issue was by resolution of the common council appropriated for installing certain machinery at the refuse incinerator plant for the purpose of utilizing surplus steam which otherwise would be wasted. A careful examination of the record does not show that there was any substantial diversion of the funds, even if it be admitted that a municipal electric light plant does not include a power plant, incidental or otherwise. The plant to which the said $40,000 claimed to be diverted was applied is known as the auxiliary plant,
But the real contention of respondent’s counsel is, not that the fund cannot be used for power purposes, but that it cannot be used for lighting purposes.
This brings us to the real contention of respondent on this appeal, namely: first, that the city has no right to use the streets for distributing the electrical energy generated by the plant; and second, that it cannot operate a plant without a certificate of convenience and necessity from the railroad commission.
Express statutory authority is conferred upon cities to light streets, public buildings and grounds. Sec. 926 — 11, Stats. (1898). Having such power, it necessarily follows that it may use the streets for the accomplishment of such purpose. Ellinwood v. Reedsburg, 91 Wis. 131, 64 N. W. 885. Whether
Ch. 75, Laws of 1911, provides:
“Whenever any bonds heretofore or hereafter issued and sold by any city, whether incorporated under general law or special act, for the construction or purchase or the erection and maintenance of an electric lighting plant, and the proceeds of which shall have been expended in whole or in part by such city in or about the construction or purchase of such plant, or of a site therefor, shall be invalid for any reason, and such city shall, by further proceedings subsequent to such issue, sale, and expenditure, have determined in the manner provided by law to issue bonds for the construction or purchase of an electric lighting plant,- or for the construction of a plant for the production, transmission, delivery, and furnishing of electric light for lighting streets, public grounds, and public buildings in the said city, aaid for the production, transmission, delivery and furnishing power for municipal purposes, said invalid bonds theretofore issued and sold shall, if ratified by a majority vote of the members elect of the common council of such city, be legal and binding; and such city is authorized and empowered, after such ratification, to use any property acquired with the proceeds of such bonds and*513 any unexpended portion of such, proceeds in and about the construction or purchase of an electric lighting plant for which such city shall have legally determined to issue bonds as aforesaid; provided that such invalid bonds, upon being so ratified, shall not be considered an addition to the bonds legally authorized, but as a part thereof.”
The record shows that the city comes directly within the terms of ch. 75, Laws of 1911 (sec. 927 — 19a, Stats.), 'and since this law gives the right to complete the plant without any mention of certificate of convenience and necessity, it must be held that the legislature intended that none should be required.
Some reliance seems to be placed upon ch. 596, Laws of 1911, by the respondent. The constitutionality of this act is attacked by counsel for appellants. But in the view we take of the case, as heretofore indicated, we do not regard the amendment (ch. 596, Laws of 1911) applicable here, and shall not consider its constitutionality.
It follows from what has been said that the order appealed from must be reversed.
By the Court. — Order reversed, and cause remanded for further proceedings according to law.