State ex rel. City of Milwaukee v. Milwaukee Electric Railway & Light Co.

151 Wis. 520 | Wis. | 1913

Winslow, C. J.

There are but three questions in this case: First. Does sec. 4 of the ordinance of 1881 require the company to repave its portion of the roadway under the circumstances here present ? Second. If so, does the ordinance of 1900 repeal that section ? And third. Has the city lost any rights by practical construction or estoppel ?

1. The argument for the appellant on the first proposition is that the ordinance carefully uses the word “repair” and does not use the word “repave,” that the two words have very different meanings, and that a promise to repair cannot logically be held to impose a duty to repave. The argument is not without its weight and it has received our very careful consideration.

The question is a new one in this court. We have no precedent either to guide or constrain our minds. We do not regard the case of Blount v. Janesville, 31 Wis. 648, which is somewhat relied on by the appellant, as having any substantial application. In that case the city charter of Janesville provided, in substance, that the expense of paving a street should be chargeable to the adjoining lots and the expense of keeping in repair a street which had been already paved should be paid out of the ward fund. It became necessary to decide in that case whether the regrading and repaving of the entire street with different material from that with which it was first paved should be called “paving” or “repairing” within the meaning of those words as used in the charter, and it was held that it must be considered as paving and not repairing.

In that case the court was faced with an alternative. The act in question must he classed either as “paving” or “repairing” — it could not he both. In the present case we are simply to determine whether a promise to keep in repair for a long period of years a portion of a street must not he construed reasonably as a promise to repave that portion when it has fallen into disrepair and the remaining portion of the street hag heen repaved with a different form of pavement.

The two questions are palpably very different, and we do not consider the Blount Case as controlling or even helpful in the consideration of the present case.

In approaching the question it is important that certain fundamental propositions should he kept in mind. In granting street-ear franchises in a city the city council is not acting as a proprietor or as a private citizen acts when selling his property to another citizen, but is acting merely as a trustee for the public. The council is charged with the very responsible duty of acting for the great mass of the people, in whom in fact is vested the easement in the public streets. It is quite .impracticable for the people themselves to act as a body when such questions are under consideration. The great majority of the people are so deeply engaged in their own individual concerns, and the municipal problems of a great city are so numerous and intricate, that it is impossible to adapt the methods of the New England town meeting to the government of the modern great city. The people must act through their chosen representatives. Those who are seeking to obtain franchises from the council know that they are dealing with trustees, and they know also that when they obtain the right to use the best portion of the street for a long period of years in transporting passengers for hire they obtain a most valuable privilege. If they give good service they may justly claim to be public benefactors in one sense, but the fact remains that they are doing business for private gain, upon the property of the public, and that it is only the presence of the public that enables them to do that business successfully.

So when the trustees of the public grant such valuable privileges to a corporation organized primarily for private gain, it is their imperative duty to guard the public interests in every way which may be reasonably within their power. The endeavor should be to make certain that there be secured to the public some fairly adequate return for the privileges granted. When, therefore, in such a case the franchise contains stipulations or provisos evidently intended to protect the public interests, it must and will be assumed that the council endeavored to perform its full duty, and that the stipulations and provisos were inserted for the purpose of securing and conserving for the public advantages which are valuable and substantial, rather than trifling and inconsiderable.

All the intendments must logically be favorable, rather than adverse, to the public. Plain words and plain sentences must and will be given their plain meaning; but if there be language equally capable of two constructions, that construction which safeguards the public interest substantially must be given preference to that construction which secures only an insignificant or unsubstantial advantage to the public.

With these principles in mind we may proceed to the consideration of the meaning of the provisions of sec. 4 of the ordinance of 1887.

It is to be noted in the first instance that the franchise runs for thirty-seven years. It must in reason have been contemplated that during that period of time there would he more than one repaving of the street necessary. Those who remember the fleeting nature of the wooden pavements which were in vogue in 1887 cannot doubt that such must have been the expectation.

Now while it is significant, as argued by the appellant, that tbe ordinance nowbere uses tbe word “repave,” it is also significant that it does not simply require tbe company to “repair tbe pavement,” but instead thereof requires it to “keep and maintain in good and thorough repair during tbe continuance of said term” a certain portion of the street. Tbe difference in meaning which may well exist between keeping a certain part of tbe pavement of a street in repair, and keeping a certain part of tbe street itself in repair, is very obvious. It can hardly be claimed, we think, that these words in tbe ordinance were used carelessly or unadvisedly. Again, from tbe last clause of tbe section tbe argument is persuasive that something more than mere incidental repair of a casual defect in tbe pavement was meant. By this clause it appears affirmatively that it was contemplated that there would probably be one or more entirely new pavements laid, and hence it was provided that tbe company in making repairs should use tbe same material as that of which tbe street should be composed at the time.

In effect tbe promise of tbe company is to keep and maintain its portion of tbe street in good repair and of tbe same material as that used by tbe city on tbe street.

In our judgment tbe whole clause, when reasonably and logically construed, means that tbe company is to Iceep the street in repair, and that when a given pavement becomes defective and unsafe tbe company must renew that portion of tbe pavement within its zone, using tbe same material which tbe city uses in tbe remaining portion of tbe street.

So far we have discussed tbe question as an original one and have reached a conclusion upon consideration of tbe language of tbe ordinance alone. This course has seemed best, not because of tbe absence of eases in which somewhat similar questions have been presented to tbe courts, but rather because differences in tbe wording of tbe clauses governing tbe rights in the various cases render it quite impossible to say that any given case is exactly parallel to tbe one before ns. There have been many cases, however, where the general question whether 'an obligation to repair meant to repave has been presented to the courts, and the decisions are in much conflict. It is said in 3 Dillon, Mun. Corp. (5th ed.) § 1276, that

“when the requirement of the statute, or of the condition of the franchise, is merely that the company shall repair the street, there is no obligation upon the company to do more than make such repairs as are required to keep the street in a safe condition for public travel, and the company cannot be compelled to pave the street, or to bear the cost thereof. But when the company is required not merely to repair, but to keep the portion of the street occupied by its tracks in as good repair and condition as the remainder thereof, the courts have, in some instances at least, construed this obligation as requiring the company to pave the street whenever paving is necessary to bring the portion occupied by its track into as good condition as the rest of the street.”

To the first of these propositions Mr. Dillon cites Western P. & S. Co. v. Citizens’ St. R. Co. 128 Ind. 525, 26 N. E. 188, 28 N. E. 88; Baltimore v. Scharf, 54 Md. 499; State ex rel. Kansas City v. Corrigan C. St. R. Co. 85 Mo. 263; Kansas City v. Corrigan, 86 Mo. 67; Hurley v. Trenton, 66 N. J. Law, 538, 49 Atl. 518; Norristown v. N. P. R. Co. 148 Pa. St. 87, 23 Atl. 1060; Philadelphia v. H., M. & F. P. R. Co. 177 Pa. St. 371, 35 Atl. 718; and Williamsport v. W. P. R. Co. 206 Pa. St. 65, 55 Atl. 836.

To the second proposition he cites State ex rel. Jacksonville v. Jacksonville St. R. Co. 29 Fla. 590, 10 South. 590; Columbus St. R. & L. Co. v. Columbus, 43 Ind. App. 265, 86 N. E. 83; and Mayor, etc. v. H. B., M. & F. R. Co. 186 N. Y. 304, 78 N. E. 1072.

Mr. McQuillin, in his work on Municipal Ordinances, published in 1904, at sec. 577 says: “The obligation to repair has been held to require repaving; but the weight of authority-appears to support the contrary rule.”

TJpon the same subject it is said in Nellis on Street Railways, at sec. 155 : “An obligation to keep the street in repair does not compel the company to grade or pave the street.”

Neither the statement of Mr. Nellis nor that of Mr. Mc-Quillin can be considered as entirely accurate or complete. They hav,e attempted to compress too much into a single sentence. The statement of Mr. Dillon is more nearly accurate, namely, that where the obligation is simply to repair, many cases hold that repaving is not included, but where the obligation is to maintain its portion of the street in as good repair as the remainder, the courts have frequently held that when the company’s zone of pavement falls out of repair it must repave the same to correspond with the pavement of the balance of the street.

We think, however, that the true doctrine is more accurately expressed by Elliott on Roads and Streets (3d ed.) at secs. 987 and 988, as follows:

“Our conclusion is that where there is a clearly expressed requirement binding the company to repair, the duty is a continuing one, and the repairs must be so made as to correspond with the changed condition of the street wrought by the improvement made under the direction of the municipality. . . . To illustrate our meaning: If a street paved with wooden blocks is subsequently paved with stone, it would be the duty of the company, when it became necessary to repair after the improvement by paving with stone, to make repairs to ,porre-spond with the changed condition of the street. It would not, as we interpret the rule sustained by the weight of authority, be compelled to make the new pavement, but it would be its 'duty, in making repairs after the new pavement was laid, to make them to correspond to the new' pavement. Any other rule would make the duty to repair practically valueless, and not only this, but it would tend to check the growth and developmental towns and cities without just reason or excuse.”

Such also is the conclusion reached by the cyclopedias. 27 Am. & Eng. Ency. of Law (2d ed.). 41, 42; 36 Cyc. 1408.

The case of Mayor, etc. v. H. B., M. & F. R. Co. 186 N. Y. 304, 78 N. E. 1072, seems well considered and persuasive. In that case the railroad company was required by its charter to “keep the surface of the street inside its rails and for one foot outside thereof in good and proper order and repair.” At the time the charter was granted and the road constructed there was no complete pavement, but only a sort of rough macadam road. Later the city determined to pave the entire street with granite blocks and served notice on the company requiring it to pave its zone with such blocks. ' It appeared that the railroad zone was not in good repair. The question was whether under these circumstances the company was bound to lay the new pavement at its own expense in its zone. In deciding this question in the affirmative the court said:

“The question of what shall constitute keeping the pavement in the tracks of a railroad company in good order and repair is to be determined somewhat at least with reference to existing and surrounding conditions, and in our judgment it would be altogether too narrow a view to hold that where a municipality had, for sufficient reason, decided to pave a street with 'asphalt or other new pavement, a railroad might discharge its obligations to keep its part of the street in good order and repair by merely patching up a dirt road or some species of pavement which had become antiquated and out of condition, and which was entirely different from that adopted in the remainder of the street.”

This seems to us good law and good sense. The idea that, when the pavement of a street has become dilapidated and the city authorities have determined that a new and more enduring pavement should be put down, a street railway company which has agreed to maintain its portion of the street in repair can discharge that duty by patching up the old and perhaps out of date pavement year after year, seems little short of absurd. So construed, the promise “to keep and maintain” the railroad zone of the street “in good and thorough repair” becomes a collection of words mighty in sound but correspondingly insignificant in effective meaning. The result of such a construction is that the street railway may lawfully stand in the way of the progress of the municipality by insisting on patching up an inferior kind of payement within its zone, while the city has adopted a superior and relatively permanent pavement for the balance of the street.

.We have not attempted to review the conflicting authorities on this subject which will be found cited in the text-hooks and cyclopedias before mentioned, because such a review would he of no value. As before stated in this opinion, there are no precedents in this court to constrain our action, and we are free to adopt and do adopt that construction of the clause in question which seems the more reasonable and just.

2. The next contention is that the provisions of sec. 4 of the ordinance of 1887 have been repealed by the ordinance of 1900, and that under the latter ordinance the company is not required to repave in any event.

We do not now express or intimate any opinion upon the question whether under the provisions of secs. 2 and 9 of the ordinance of 1900 the company is required to repave the railroad zone when the pavement has fallen out of repair.

Assuming that the section only requires repairing of existing pavements, we still do not think that the obligations imposed by see. 4 of the ordinance of 1887 have been in any manner affected thereby.

The purpose of the ordinance of 1900' is quite plain. The defendant company had acquired by purchase the property and franchises of a number of independent companies which operated street cars in the city of Milwaukee. There were more than thirty separate ordinances granting railway rights, covering as many different routes, expiring at different dates, and in these ordinances the provisions as to the repair of streets by the company were expressed ip very many different ways, while some ordinances contained no provisions on the subject. The defendant desired to create a complete railroad, system covering the whole city out of the various fragmentary systems, and it is evident that the city government deemed it for the public interest that such a system should exist, hence the ordinance of 1900, which granted added routes and contained uniform provisions as to the construction of roads, the repair of roadways, the extension of tracks, the duties of the company as to the widening and strengthening of the viaducts and bridges which they might use, the rates of fare and granting of transfers, 'and other cognate subjects. This ordinance further provided that all the previous franchises, whatever the original date of expiration, should be extended to December 31, 1934.

It is argued that the sections of this ordinance relating to-the repair of streets and pavements were obviously intended to provide an uniform system covering all the lines and to take the place of the various repair provisions of the previous ordinances, and hence must be construed as impliedly repealing them. We. have no doubt that the repair provisions of the ordinance of 1900 were intended to apply to all the lines then operated or to be operated in the future by the defendant. As to any new lines, as well as to any of the lines which were built under ordinances containing no provisions concerning the repair of streets, the provisions of the ordinance of 1900 would, of course, be the only provisions governing the subject; but would that be the result as to lines built under ordinances which, like the ordinance of 1887, contain a distinct and definite requirement not only that repairs be made when necessary, but that repaving be done when necessary ?

The answer to this question must depend largely upon the other provisions of the ordinance of 1900. If it were silent as to the rights guaranteed to the city under the previous ordinances, the argument would be strong that its provisions amounted to a codification and rewriting of the law governing the whole, subject and supplanted entirely the former provisions.

Turning to- the ordinance itself, however, we find what seem to be very clear statements of tbe intent of tbe council to preserve untoucbed all tbe rights secured to tbe city under tbe previous ordinances.

By sec. 3 of tbe ordinance of 1900 it is declared that “all rights reserved or secured to said city by and under all ordinances now in force . . . relating to . . . tbe laying of tracks, stringing of wires, and tbe use and operation of all cars and tracks and everything connected with the exercise of the rights hereby or heretofore granted to said railway company and its predecessors, are hereby reserved to said city tbe s.ame as though this ordinance bad not been passed.”

It is true that this is a very general reservation of existing rights, and it is quite possible that if it stood alone it could hardly be construed as effective to preserve existing requirements concerning the repair of streets which were more comprehensive than those contained in the ordinance itself. It is supplemented, however, by the more specific reservation contained in see. 10/ By this section it is provided that

“The provisions of all ordinances now existing, so far as the same or any or either of them, relate to the use and operation of said railways, such as the removal of snow and ice therefrom, the joint use of tracks by other companies or persons, the occupation and use of streets, bridges and public places, and the repairing, replacing, strengthening and maintaining the same, the gauge, grade and elevation of tracks and the manner of constructing the same shall not be construed or deemed to be repealed hereby, but shall be and remain in force with the same effect as though this ordinance had not been passed.”

The provisions of sec. 4 of the ordinance of 1881 undeniably relate to the repairing and maintaining of streets. No narrow or technical construction of these saving provisions can be"indulged in; the manifest intent of the council must be given effect. We can see no doubt that sec. 10 of the ordinance of 1900 in plain terms preserves the rights secured to the city by the prior ordinance, and hence that the requirements of see. 4 of the ordinance of 1887 still exist unimpaired by any of the provisions of the ordinance of 1900, even if it be assumed that the latter provisions are less comprehensive than the former.

3. Upon the trial the defendant offered to prove that since the passage of the ordinance of 1900 the city had uniformly construed the same as uniformly applicable to all streets on which cars were operated, and demanded that repairs be made according to its terms on streets which under the original ordinances were not required to be repaired by the company; also that the defendant company had acceded to these demands and made the repairs asked by the city.

This testimony was excluded, and it is claimed that this ruling is erroneous for the reason that such testimony would have shown a practical construction by the city authorities of the doubtful or ambiguous provisions of the ordinance of 1900, and would also have shown that the city has estopped itself from claiming'a different construction for that ordinance. We do not regard either contention as sound.

As to the first contention, we may say that the ordinance of 1900 does not seem to us ambiguous in this respect. It definitely provides that all rights secured to the city by previous ordinances with regard to the repairing, replacing, and maintaining of streets are preserved in full force. Where there is no ambiguity there is no room for the doctrine of practical construction.

Nor do we see how estoppel results from the fact that the city has required the company to make repairs under the provisions of the ordinance of 1900 since the passage thereof. As we have before stated, the provisions of that ordinance undoubtedly apply to all streets, but if, as to any streets, there be more comprehensive and broader requirements in the former ordinances, they still remain in force, in addition to the requirements of the ordinance of 1900.

By the Oourt. — Judgment affirmed.