*1 Realty City vs. Respondent, Company, Rose Manor another, Appellants.* Milwaukee 6, 1956. February 8 March * denied, costs, rehearing May Motion with $25 *2 Mattison, there was a brief Walter J.
For the by appellants Kinnel, and Carl F. and J. Chmurski Ralph city attorney, Mr. and oral Chmurski. argument by assistant city attorneys, a brief and oral there was argument For the respondent Edward of Milwaukee. S. Grodin of the com- of the allegations The substance Gehl, J. real the owner of a Plaintiff is parcel is as follows: plaint bank the west of Milwau- upon abutting estate in the city owns the land to the center up owner and as riperian kee river for the land is used purpose parking of the river. 3, 1854, March the legislature by hire. On automobiles establish to dock city authority conferred upon charter the river. The charter the banks of pro- lines on and wharf 13.11, as follows: vision, reads sec. of said shall have council power, common
“The lines banks ordinance, dock and wharf upon establish to Menomonee, rivers, Milwaukee, Kinnickinnic and of the canals in said wherever the same are not estab- public city, statute; lished to restrain and encroachments prevent canals, said rivers and thereto; obstructions and to construct, alter, maintain, constructed, or cause to be altered, maintained, at the of the docks expense canals, wharves banks along said rivers and where same are not law to main- be constructed and required at tained expense owners lots bounded said rivers and canals respectively.” 15, 1953,
On December harbor grounds, and building, committee of the a resolution to city passed establish new dock line the west bank of along the river abutting plaintiff’s land.
“On said May committee voted unanimously recommend to the said common council that said resolution *3 a re-establish dock line the bank of the along westerly Milwaukee river and including abutting plaintiff’s property be enacted or about of Mil- August into ordinance; waukee that has been said resolution drawn into final form and is and for com- to the ready ripe presentation mon council and their vote thereon for the enactment into resolution; law as an ordinance of said that was plaintiff Haas, committee, assured the chairman said one and of Al all of the members of said and committee the president council, McGuire, of the common Milton one that said reso- lution into an would enacted ordinance on about Au- or gust
“That said ordinance to re-establish said dock proposed line will move said dock line from the substantially westward bank of said Milwaukee and westerly river in the upon parcel of real estate owned and said dock line will be by plaintiff, feet west and from the of many away said navigated part river and actually covering land of said real dry being part estate.”
The ordinance would proposed move the dock substantially line westward from the bank west of the river the real estate of the the line plaintiff, and will be feet west from many river, the and navigable part “actually covering dry the to which of real estate.” degree land said being part line be moved onto of the dock would plain- re-establishment the complaint. shown in a attached to map (It tiff’s land is of plaintiff from the does not appear the map.) the parties prepared as of Milwaukee of the city expressed “That purpose aldermen, of the common its including president line herein- the re-establishment of said dock council for before is deprive plaintiff enjoyment indicated to to its and legal specifically deprive plaintiff riparian docks, walks, walls, its to build and wharves upon right river; of real estate said abutting and its parcel alongside line is in existence an established dock there presently all and that said Exhibit purposes serves proper legal ‘B’ determines and proposed reveals [the ordinance] dock line and encroachment contemplated existing real estate.” upon plaintiff’s in no interfering
Plaintiff is with navigation upon way river.
. no or . that said has valid purpose power said dock line and resolu- said authority re-establishing tion capricious proposed arbitrary would in way no aid river said resolution and navigation; said would be ordinances contrary proposed expressed of said 13.11 and state of purpose authority Wis- consin and the United States of America same. interpreting
“Plaintiff, estate, as a and owner of said real taxpayer this action under and brings pursuant 269.56, statutes, section Wisconsin have determined by *4 this court the and thereon of powers limitations said of city Milwaukee with to the of both respect rights plaintiff and herein of defendants under 13.11 city Milwaukee charter and under and to the pursuant resolution and pro- hereinbefore referred to.” posed relief is amended as follows: prayer “Wherefore, plaintiff demands here- declaratory judgment in defining, establishing, powers of determining
343 forth, of Milwaukee in said matters herein set city particularly 13.11, charter, with of Milwaukee section respect and the and interests and defendants rights plaintiff herein. that,
“Plaintiff further demands the final deter- pending raised, mination herein defendants and said questions each of them be in and restrained from enjoined way any said resfelution with said enacting dock respect re-establishing line, and that have such relief plaintiff other and further be in just and equitable premises, plaintiff further demands that the defendants be enjoined permanently from restrained in said any resolution with way enacting line.” said dock respect re-establishing In understood, order that plaintiff’s we purpose may detail, verbatim, have set forth in in some instances of its complaint. Manifestly, principal purpose is to obtain from the court the Mil- judgment restraining waukee council from an ordinance which passing plain- tiff will of itself move said dock alleges “substantially line westward” its real estate. of its must be construed as an prayer
The first paragraph
for an
advisory opinion concerning
incidental request
with
to sec. 13.11
particularly
respect
in
“To take
such situation would
jurisdiction
its charter.
advice, not the
declaration of
legal
constitute
giving
Mortensen
Riebs Co. v.
controversial rights.”
(1935),
169; State ex rel. State
263 N. W.
Central
Wis.
3 N.
v. Board
Wis.
W.
Comm.
(2d)
269.56, Stats.,
under the
of sec.
will not
Courts
become
until
have
fixed under an estab-
they
rights
declare
facts,
not determine future
and will
lished state
never
Heller
of an event
v.
happen.
anticipation
310,
It that what plaintiff really without question appears from council a restrain the which would city judgment 13.11 contends that sec. an ordinance. Plaintiff enacting not be permitted the charter is and that the should void city Yates v. Milwaukee It cites under its proceed provisions. 984, for its as authority 19 L. Ed. 77 U. S. section, it of the although contention as to the invalidity case, so far as the validity be observed that in that should concerned, went no further the court actually of the section is than to hold : (p. 507) that as Shephardson, are opinion the whole we “On stream, had bounded navigable lot owner riparian Yates, the wharf, appellant, and that to erect this right licensee, or as has he be purchaser whether regarded of Milwau- if of the city the authorities same right; in the any necessary prosecution
kee deem its removal channel and improving scheme of widening general river, make him must they of the Milwaukee navigation first use.” taken for the for his so compensation public property ours.) (Italics threatens to that the presently perform city
It is not alleged line, it claims or or that the dock act of moving the physical authority act virtue of and under so to claim the right will alone, if it does so act it will do so or that of that section for its property plaintiff compensation first making without of sec. 13.11 from the provisions clearly It taken. appears It that the provides only self-operative. it is not ordinance, . . . . alter . . have power, “shall council the banks” or wharves along docks at the expense of the named, it is the threatened passage the rivers the plaintiff complains. of which operative from source the what plain- means or process what By fact that the council of the knowledge tiff has acquired from satisfactorily does appear the ordinance will pass not be complaint. Certainly may *6 will, that it anticipated and it not be assumed that unless may and until the is ordinance passed, city’s representatives will act to Plaintiff plaintiff’s prejudice. asks us to act in of an event anticipation that never We not may happen. may so. do Heller v. Shapiro, Skowron v. Skowron supra; 17, 259 Wis. 47 N. (1951), W. (2d) There is an even more reason we must compelling why reverse the trial court. Under our system, legislative powers are confined to bodies. Their acts legislative are not to be controlled nor to the subjected coercive influence of the courts, not until the may courts are called questioned to or enforce them as upon expound acts. The completed restraint our constitution not operates although does contain an prohibition one express against department government of another. Goodland v. exercising Zimmerman 243 Wis. 10 N. W. 180. The court (2d) in that case said:
“A cannot deal with question court constitutionality person been enacted and some duly until a law has has been constitutional of his its rights by deprived operation.” “. . it is not within the power . to enjoin judiciary from statute passing legislature proposed compel 11 Law, do so.” Am. mandamus to Constitutional Jur., 902, sec. 200. p. Anderson, cites Declaratory
Counsel Judgments (2d ed.), 621, as sec. contention that a supporting plaintiff’s p. an attack court entertain an ordinance before it may upon takes effect. The author makes a statement which be so construed, but in the next sentence he to lan- goes say which is here : guage applicable
“However, it is well settled that the court will not enter- action tain a with declaratory effect respect of a statute in advance of its enactment.” validity own Good- event, our precedent, In we are bound any our activities Zimmerman, confine and must supra, land v. to us. to the field assigned the familiar rule municipal calls attention to
Plaintiff conferred those except upon no powers have corporations fails that the proposed them by legislature, of the city promote an intent the part to disclose Its we dock line. argument, moving navigation by circumstances shown, certain facts and assumes have already nor antici- neither it we exist, which do exist. will ever pate confused or misled to us that plaintiff
It appears take its city proposes or assumption supposition *7 is pleaded sug- Nothing without compensation. land assume may the We that that is city’s purpose. gests were, run into the rule is, would squarely if it the city for Milwaukee, which we have above. quoted supra, Yates v. of reversed, with directions to dismiss the Court.—Order By the complaint. court interpretation Under (dissenting).
Steinle, J. in the statutes in this and other jurisdictions, (cid:127) Judgments of sec. 269.56 (Declaratory as sub. such (2) in to situations where justici- are restricted application Act) who have exists between adverse controversy persons able has a the relief interests; protectible the seeking where person for judicial is deter- interest; controversy ripe the where is not to be ; judgment requested merely where mination an Under decisions advisory of opinion. in nature not determine that the court future the rule also it is an never A of event happen. in anticipation when declaratory judgment, challenged by complaint in the of such restrictions. In demurrer, be tested light must in complaint question satisfy the allegations my opinion and are within the orbit entitling requirements, clearly relief. declaratory
Borchard, in Declaratory Judgments (2d ed.), p. of statutes with construction interpretation treating Act, ordinances under out Declaratory Judgments points that:
“The or duty power governmental disputed body a correct construction or is often determinable interpreta- statute, tion of the and it is this way that governing many test.” of these issues are directly put At 798 of the same work it said that: page . . . are not in doubt infrequently “Public corporations duties, need as to their powers, privileges, urgently If the issue can be raised judicial enlightenment. conclusive before they undertake the qualified opponent against action, a valuable service public or challenged questionable served, the been decided as has issue having effectively been been raised after a fatal as if it had possibly and conclusively It has been observed that or mistaken action contemplated. whether the issue it is a was judicial matter indifference claim governmental raised individual affected or the administration power privilege, itself.” supplied.) (Emphasis a determination of the Here, seeks the plaintiff sec. 13.11 city by provisions conferred and rights charter which has been (legislation Milwaukee *8 in relation to the real estate owned 1854), effect since in True, charter is not the self-opera- the by plaintiff. the city’s become effective adoption tive. Its provisions of the city’s a declaration Had an ordinance. the initiated city having without steps been sought
rights the to relocate dock line committee so harbor through land, then the matter clearly it the plaintiff’s toas place in character and could as abstract only classified would be of However, an advisory nature. the action undertaken the committee a city’s substantial threat to presents the of the property The rights issue the plaintiff. presented by not complaint condemnation, does involve question but rather a consideration whether as to in of the view ruling 497, in Yates v. Milwaukee 77 U. 19 L. S. Ed. the authorized under of sec. 13.11 provisions of the ordinance, charter a mere to create artificial and imaginary dock line feet from the many of the away navigated part river, line, without river the to that making navigable up the of its land and thereby deprive plaintiff riparian rights.
The is definite and controversy substantial. It touches the relations of adverse legal parties having legal interests. The asserts a tangible- plaintiff protectible —a —interest. Further, the is alive and controversy and it does genuine, not abstract involve mere or disagreement It is hypothesis. ripe for in the determination view of of a city’s assertion right which the is denied and which the threatens plaintiff, The to enforce. as claimed both are parties rather than ones such not come may may or into present existence in future. Clearly, justiciable controversy exists. The determine declare whether judgment would under of sec. 13.11 of the charter ordi- nance, engage which program threatens undertake. of the relief to prayer
While asked for complaint entitled, viz., was not plaintiff enjoining threatened line, of the ordinance to re-establish dock never- passage theless, the set forth a complaint do cause action entitling plaintiff declaratory judgment demurrer, herein reasons stated. order overruling was correct. *9 considerations,
In these I am view of obliged respect- from the determination of the majority. dissent fully I am state that Mr. joins authorized to Currie Justice dissent. this another, vs. Holmes Appellants. Respondent,
Rainer, 6, 1956. February 8 March