State ex rel. Rose v. Superior Court of Milwaukee County

Cassoday, C. J.

Thе mayor, city clerk, aud the twenty-three aldermen who are petitioners herein, and constituting a majority of the common council of the city of Milwaukee, frankly admitted to the trial court that they had severally violated the injunctional order in question. The only excuse given for such violation is that the court was without jurisdiction to make such order. The learned trial judge, in his concise opinion in the case, concedes that, if the court had no jurisdiction in the action commenced by Sсhwartz-burg, then such order was a nullity, and there was no contempt in disobeying it. But he contends that the court did have jurisdiction, and that, however erroneous the making of it may have been, yet that it was binding upon the defendants therein until set aside or reversed. If the court bad such jurisdiction, then the conclusion reached by the trial judge was undoubtedly correct. Thus, in a recent case, our late brother PiNNEY, speaking for the court, said: “ With whatever irregularities the proceeding may be affected, or howеver erroneously the court may have acted in granting an injunction in the first instance, it must be implicitly obeyed, as long as it remains in existence; and the fact that it has been erroneously granted affords no justification or excuse for its violation. The party against whom it issues, or who is affected by notice of its existence, will not be allowed to violate it on the ground of a want of equity in the bill, since he is not at liberty to speculate upon the intention or decision of the court,' or upon thе equity of the bill, or to question the authority of the court to grant relief upon the facts stated, except upon application to dissolve or vacate the injunction. Upon proceedings for contempt for violation of an injunction, the only legitimate inquiry is whether the court granting the injunction had jurisdiction of the parties and of the subject matter, and the court will not, in such proceedings, consider whether the order was erroneous. If the court had jurisdiction of the subject matter, the fact that its power was erroneously exercised does not render the injunction void, but only voidable upon proper application ; and, until set aside or revoked, it is entitled to implicit obedience.” State ex rel. Fowler v. Circuit Court, 98 Wis. 149, 150. The “wilful disobedience of any process or order lawfully issued or -made” by a court having jurisdiction of the parties and subject matter is made by statute a criminal contempt. Sec. 2565, Stats. 1898. The trial judge, being: convinced, as he manifestly was, that the court had such jurisdiction, could not, without stultifying his conscience, do otherwise than he did, regardless of the personality or the official positions of the defendants therein.

The important question, therefore, is whether the court did have such jurisdiction to issue that order; and that question, as indicated by the trial judge, depends upon the question whether the common council, in passing the ordinance, acted within its prescribed limits as a legislative body. In determining that question the trial judge properly held that he was confined to the facts alleged in Schwarzburg’s complaint, -which, upon such hearing on the question of contempt, were taken as true. For that reason we have given the substance of that complaint in the foregoing statement. It is quite lengthy, and i's largely argumentative. It alleges, in effect, that the corporate rights and franchises to operate such street railways in all the streets of the city are owned by the city; that, as such owner, the city was entitled to grant, sell, or dispose of the same for money; that suсh rights arid franchises are of the value of $8,000,000; that one responsible man had offered in writing $100,000 in cash for the additional rights, licenses, and franchises proposed to be granted to the railway and light company, and that the same are worth $1,000,000; that the mayor and the twenty-three aldermen who are petitioners herein against the protests of the electors- and taxpayers of the city, as expressed in “ several mass meetings,” colluded and conspired and unlawfully ■combined with the officers аnd agents of that company to grant to the railway and light company such additional corporate rights and franchises without any consideration, and ■as a mere gratuity, and that the company and the vice president thereof had assumed and agreed to pay certain citizens •of a certain ward $8,500 in case the ordinance passed, to silence opposition thereto, and secure the support of the aider-men of such ward; that a director of the comрany, named, had, prior to the passage of the ordinance, agreed that, in case the ordinance passed, he would be personally liable to pay to such person and others (to the plaintiff unknown) “about $9,000, or not to exceed $9,000,” for the purpose of buying off opposition and obtaining the support of certain aldermen. Such charges were well calculated to arouse in■dignation on the part of the people, and may have been more or less persuasive with the representatives of the people in the common council, but we fail to perceive their bearing upon or relevancy to the questions of jurisdiction here presented. When, more than half a century ago, the majority of the people of Rhode Island, under the leadership of Mr. Dorr, attempted, without the consent of the existing state government, to setup a new state government, and the question of rightful authority came before the supreme сourt of the United States, Mr. Webster, in his great argumc'nt, aptly declared that: “ Men cannot get together, and count themselves, and say they are so many hundreds and so many thousands, and judge of their own qualifications and call themselves the people, and set up a government.” “ The power is with the people, but they cannot exercise it in masses or _per cwpita. . . . The exercise of legislative power and the other powers of government immediately by the people themselves is impracticable,— they must be exercised by representatives of the people. . . . The basis of this representation is suffrage. . . . Suffrage is the delegation of the power of an individual to some agent. . . . In the exercise of political power through representatives we know nothing, we never have known anything, but such an exercise as should take place through the prescribed forms of law.” 6 Webster’s Works, 223-226. Similar views were manifestly entertained by Chief Justice TaNev and the court in deciding the case. Luther v. Borden, 7 How. 1.

The power and authority of the common council to enact the ordinance in question is not to be determined by mass meetings and popular assemblies, but only by the prescribed law applicable to the case. If a director of the railway and light company, or the vice president of that company, has committed any crime or any unlawful act, the courts are open, and they are liable, like other citizens, to prosecution. But suck facts, if true, are wholly immаterial on. such questions; of jurisdiction, and much' more so if they are untrue. The-members of the common council appear to have been divided as to the wisdom of passing the proposed ordinance, and the same seems to have been true of the citizens» As frequently occurs in respect to important matters- of legislation, the friends and opponents of the measure appear- to. have had frequent conferences and meetings, but it does not follow that such meetings, even if in secret, constituted a conspiracy. Secret caucuses are quite common in political action. They are an incident of popular government. It is. not alleged that such combination was to accomplish some criminal or unlawful purpose, or to accomplish some purpose not in itself criminal or unlawful by criminal or um lawful means, unless the passage of any such ordinance was-unlawful, which will be considered later. It is only necessary here to sаy that no alderman or officer of the city is. charged with anything unlawful, unless the support and at~ tempt to pass such ordinance was unlawful. The theory of' Schwartzburg’s complaint is that the corporate rights and. franchises in question were owned by the city, and were held in trust for its citizens and taxpayers and the public, and that the same were the subject of barter and sale to the-highest bidder. Such corporate rights and franchises in this country are special privileges conferred by the sovereign рower of the state or nation, and do not belong to the citizens of the state or county by common right. At common law, such corporate rights and franchises were incapable of being seized and sold on execution. Gue v. Tide Water C. Co. 24 How. 263; 1 Freeman, Executions, § 179, and cases, there cited; Yellow River Imp. Co. v. Wood Co. 81 Wis. 560, and other cases there cited. They are granted to a corporation or individuals for some specific purpose. The-are, ‍‌‌‌‌​​​‌‌‌​‌​​‌​‌‌​​​‌​‌​​​‌​​‌‌‌‌‌‌​​​​‌‌‌‌‌​‌​‍consequently, essential to the purpose, and hence cannot be separated from it without destroying the grant. Of course, such grant can be made upon condition, or with any ■other restriction or limitation. Such corporate rights and franchises can only be sold, assigned, or transferred when :and as authorized by statute. Id. See, also, Combes v. Keyes, 89 Wis. 311; sec. 1788, Stats. 1898, as amended by ch. 198, Laws of 1899.

This brings us to the question whether the common council had the power to pass the ordinance. Uo one doubts the .power of the legislature to create cities, and give them the .general powers possessed by municipal corporations at common law; and, in addition thereto, such powers pertaining •to municipalities as may be specifically granted, as in the case of the city of Milwaukee. The statute expressly authorizes the formation of “ corporations for constructing, maintaining, and operating street railways ” under ch. 86, Stats. 1898, and provides that they “shall have powers and be governed accordingly.” Sec. 1862. That section also expressly provides that: “ Any municipal corporation or county may grant to any such corporation, under whatever law ■formed, or to any person who has the right to construct, maintain and operate street railways the use, upon such terms as the proper authorities shall determine, of any streets or bridges within its limits for the purpose of laying single or ■double tracks and running cars thereon for the carriage of freight and passengers, to be propelled by animals or such •other power as shall be agreed on, with all the necessary curves, turnouts, switches and other conveniences. Every ;such road shаll be constructed upon the most approved plan .and be subject to such reasonable rules and regulations and the payment of such license fees as the proper municipal authorities may by ordinance^from time to time, prescribe. Any such grants heretofore made shall not be invalid by reason •of any want of power in such municipal corporation to grant, •or any such railway corporation or person to take the same; but in such respects are hereby confirmed.” The authority of the legislature to delegate to municipal corporations the power to so grant such corporate rights and franchises cannot be seriously doubted. In fact, this court, construing that section, has expressly held that a. municipal ordinance granting such corporate rights and franchises “ has the force and' effect of a statute of the state.” State ex rel. Att'y Gen. v. Madison St. R. Co. 72 Wis. 612; State ex rel. Cream City R. Co. v. Hilbert, 72 Wis. 184; State ex rel. Wis. Tel. Co. v. Janesville St. R. Co. 87 Wis. 78; Ashland v. Wheeler, 88 Wis. 616; Wright v. Milwaukee E. R. & L. Co. 95 Wis. 36. So it has been held by the supreme court of the United States that “ the legislature may delegate tо municipal assemblies the power of enacting ordinances relating to local matters, and such ordinances, when legally enacted, have the force of legislative acts.” New Orleans W. W. Co. v. New Orleans, 164 U. S. 471. To the same effect is Des Moines G. Co. v. Des Moines, 44 Iowa, 505. This is in accordance with the general rule. Thus it is stated, “ Although the proposition that the legislature of a state is alone competent to make' laws is true, yet it is also settled that it is competent for the legislature to delegate to municipal corporations the power to make by-laws and ordinances with appropriate sanctions, which, when authorized, have the force, in favor of the municipality and against persons bound thereby, of laws passed by the legislature of the state.” 1 Dillon, Mun. Corp. (4th ed.), § 308, and cases there cited. Of course, no such ■ordinance can enlarge or diminish the terms of the statute by which the power is so delegated. Id. § 317.

It is contended that the proposed ordinance would be void because it would impose an additional burden upon abutting lot owners without providing for compensation. It is enough to say that the proposed ‍‌‌‌‌​​​‌‌‌​‌​​‌​‌‌​​​‌​‌​​​‌​​‌‌‌‌‌‌​​​​‌‌‌‌‌​‌​‍grant only covers, and could only cover, such rights as the common council has power to grant; it in no way purports to affect, nor could it affect, the rights of abutting lot owners. Paterson & P. H. R. Co. v. Paterson, 24 N. J. Eq. 158; Krueger v. Wis. Tel. Co. 106 Wis.-. The grant being made by the legislature, representing the sovereign power of the state, through the agency of the common council, it is certainly legislative in its character. Thus:, it has been held that, “ A grant of a right of way over a tract of land to a railroad company by a municipal corporation by an ordinance which provides that the company shalL erect suitable fences on the line of the road, and maintain gates at street crossings, is not a mere contract, but is an exercise of the right of mmiioipdl legislation, and has the force of law Avithin the corporate limits.” Hayes v. M. C. R. Co. 111 U. S. 228. The fact that the passage and acceptance of the ordinance may result in a contract does not destrоy its legislative character. Des Moines G. Co. v. Des Moines, supra. Thus, in a recent case, it is held in New Tort that “ the action of the common, council of Buffalo in granting consent to construct a street railroad under the revised charter of Buffalo is a legislative, and not an administrative, act.” Kittinger v. Buffalo T. Co. 160 N. Y. 377.

The passage of the ordinance in question being legislative in its character, the question recurs whether the trial court, as a court bf equity, had jurisdiction to restrain the common-council from passing the same. The question is very important, and has received careful consideration. Our dual system of state and national governments is unique and intricate» We not only have numerous states embraced within the nation, but numerous municipalities in each state. The governmental power of each state, as well as the nation, is divided into three separate departments, — - legislative, executive, and judicial,— which are in their action almost wholly' independent of each other. The same three departments, in an inferior and subordinate way, exist in each municipality. In the exercise of such powers, the natural, if not the essential, order is for the legislative department, engaged in the enactment of laws, by-laws, and ordinances, to act first; for-the executive department, engaged in executing and enforcing the laws, to act next; and for the judicial department, engaged in construing and declaring the laws, to act last — and hence the conservative agency of the government, whether national, state, or municipal. From the very naturе of things, the judicial power cannot legislate nor supervise the making of laws. It is equally true that the legislative power cannot act judicially. Thus it has been held in Pennsylvania that the legislature has no power to order a new trial, or to direct the court to order it, either before or after judgment, since such power was judicial. De Chastellux v. Fairchild, 15 Pa. St. 18; S. C. 53 Am. Dec. 570, per Gibson, C. J. One of the most eminent jurists, in such matters, which this country has produced, speaking for the supreme court of the United States, has'left on record this statеment: “ That department [judicial] has no. will in any case. . . . Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed bylaw; and, when that is discerned, it is the duty of the court to follow it. Judicial power is never exercised for the purpose of giving effect to the will оf the judge; always for the purpose of giving effect-to the will of the legislature; or, in other words, to the will of the law.” Chief Justice Marshall in Osborn v. Bank of U. S. 9 Wheat. 866. The same chief justice wrote the opinion of the court refusing to restrain the state of Georgia and its several officials from enforcing an act of the legislature of that state in conflict with a treaty between the United States and the Cherokee Nation of Indians in that state, and which act of the legislature was subsequently held to be void, on the ground that suсh restraint was an exercise of political power. Cherokee Nation v. Georgia, 5 Pet. 1; Worcester v. Georgia, 6 Pet. 515. See, also, Louisiana v. Texas, 176 U. S. 1. Eor tbe same reason that court refused to restrain President Andrew J'ohnson from enforcing an act of Congress alleged to be unconstitutional and void, and in fact refused to allow the bill to be filed. Mississippi v. Johnson, 4 Wall. 475. Numerous cases might be cited where courts have refused to take jurisdiction to control the discretion of administrative officers.

A failure to observe the dividing line between legislative and judicial power, as indicated, may acсount for some ‍‌‌‌‌​​​‌‌‌​‌​​‌​‌‌​​​‌​‌​​​‌​​‌‌‌‌‌‌​​​​‌‌‌‌‌​‌​‍want of harmony in judicial utterances. One of the cases most relied upon by counsel for the defendant is People ex rel. Davis v. Sturtevant, 9 N. Y. 263, punishing Sturtevant, one of the aldermen of the city, for contempt in violating an injunction in the case of Davis & Palmer against the mayor and aldermen, restraining the latter from authorizing the building of a railway in Broadway, on the ground that the same was a public nuisance. Id. 269. But it appears in the injunction suit that the mayor and common council had no power whatever to authоrize the building of such railway, and hence were acting without any authority. Davis v. New York, 14 N. Y. 506. Of qourse, a common council cannot act legislatively where it has no power to act at all. In People ex rel. Negus v. Dwyer, 90 N. Y. 402, relied upon by counsel, the elevated railway had been incorporated by the legislature, to run on certain streets, or others that might be named by the mayor and common council. The common council passed a resolution naming certain streets. The mayor vetoed the same. Thereupon the common council were restrained from passing the resolution over the veto. Notwithstanding,' they passed it over the veto and were punished for contempt. The only ground upon which that case can be justified, if at all, in our judgment, is that the mere naming of such streets was not a legislative act, but a mere ministerial act. Later cases in that state seem, to condemn the restraining of the common council when clearly acting within its power and discretion. Talcott v. Buffalo, 125 N. Y. 280; Kittinger v. Buffalo T. Co. 160 N. Y. 377. In this last case it was held that the action of the common council in granting consent to construct a street railway was a legislative act, and that the rule that courts cannot inquire into the motives inducing legislation extends to legislative acts by a common council of a city as well as to those by a state legislature. To the same effect, Waterloo W. Mfg. Co. v. Shanahan, 128 N. Y. 346; People ex rel. Bolton v. Albertson, 55 N. Y. 54; U. S. v. Des Moines N. & R. Co. 142 U. S. 510; Angle v. C., St. P., M. & O. R. Co. 151 U. S. 3. As indicated in this last case, the court is limited to the question of power, and its inquiry does not extend to matters of expediency, the motives of the legislators, or the reasons given for their action. It has been held in Eew York that “the writ of certiorari will not issue to review a mere legislative action, although it may involve the exercise of discretion.” People ex rel. O' Connor v. Sup'rs of Queens Co. 153 N. Y. 370. The general rule undoubtedly is, as recently held by the supreme court of the United States, that “ a court of equity cannot properly interfere with, or, in advance, restrain, the discretion of a municipal body while it is in the exercise of powers that are legislative in their character.” New Orleans W. W. Co. v. New Orleans, 164 U. S. 471, 481. To the same effect, Chicago v. Evans, 24 Ill. 52; Des Moines G. Co. v. Des Moines, 44 Iowa, 505; Mason v. Shawneetown, 77 Ill. 533; Stevens v. St. Mary's Training School, 144 Ill. 336; Muhler v. Hedekin, 119 Ind. 482; Cape May & S. L. R. Co. v. Cape May, 35 N. J. Eq. 419; Alpers v. San Francisco, 32 Fed. Rep. 503; Detroit v. Wayne Circuit Judge, 79 Mich. 384.

The exceptions to the rule would seem to he limited to cases where the governing body of ‍‌‌‌‌​​​‌‌‌​‌​​‌​‌‌​​​‌​‌​​​‌​​‌‌‌‌‌‌​​​​‌‌‌‌‌​‌​‍the municipality has no power to act on the particular subject, legislatively, at all, or where the threatened act is not legislative, but purely ministerial, or where such body is clothed with certain powers, but threatens to go beyond or outside of such powers, and thereby invade the property or property rights of the complainant, or where such body threatens to squander or divert some fund or property held by it or some of its оfficials in trust for its taxpayers and citizens. Stevens v. St. Mary's Training School, 144 Ill. 336; Spring Valley Water Works v. Bartlett, 16 Fed. Rep. 615; Roberts v. Louisville, 13 L. R. A. 844, 92 Ky. 95; Murphy v. East Portland, 42 Fed. Rep. 308; State ex rel. Att'y Gen. v. Circuit Court, 97 Wis. 1. But it is well settled that courts of equity will not attempt to control the discretionary or legislative powers vested by law in municipal corporations. Stevens v. St. Mary's Training School, supra. So, in Indiana, it has been held not to be within the jurisdiction of a court of equity to enjoin the common council of a city from investigating charges against waterworks trustees or other municipal officers, and from removing them from office. Muhler v. Hedekin, supra. So, in New Jersey, it has been held that “there can ordinarily be no judicial rеstraint or interference with municipal corporations in the bona fide exercise of powers legislative or discretionary in their nature, provided private rights are not violated.” Cape May & S. L. R. Co. v. Cape May, 35 N. J. Eq. 419. So it has been held in the federal court in Oregon that “a court of equity will not enjoin a municipal corporation in the exercise of its legislative function, unless the proposed act is beyond the scope of its power, and its passage would work irreparable injury.” Murphy v. East Portland, supra. Of course, the courts may interferе, and prevent the enforcement of an illegal ordinance after its passage. This is held in several of the cases cited.

Counsel also contend that the proposed ordinance not only grants corporate rights and franchises, but will make, when accepted, an irrevocable contract. We do not feel called upon in this case to determine whether that is so or not. If ■the ordinance goes beyond, and is outside of, the authority given by the statute' quoted, then to thаt extent it would be invalid and would hurt no one. If, on the contrary, it is within the authority so given by the legislature, and the legislation is valid, then it is not perceived upon what ground a court of equity can interfere at the suit of a private party. As already indicated, such corporate rights and franchises are not like a fund or property held in trust for the citizens and taxpayers of the city. The statute expressly authorizes the making of the grant “ upon such terms as the proper .authorities shall determine,” and this, in thе instant case, manifestly means the common council. The statute also provides that such road shall “ be subject to such reasonable rules and ■regulations and the payment of such license fees as the proper municipal authorities may by ordinance, from time to time, prescribe.” Construing that statute, this' court ‍‌‌‌‌​​​‌‌‌​‌​​‌​‌‌​​​‌​‌​​​‌​​‌‌‌‌‌‌​​​​‌‌‌‌‌​‌​‍has held that the common council may, from time to time, change the license fee to be paid by the company, notwithstanding the amount of the fee was originally fixed by the ordinance .granting the franchises. State ex rel. Cream City R. Co. v. Hilbert, 72 Wis. 184. Of course, whatever contract is so made is subject to the conditions imposed by the statute giving the authority to make the contract. The power so vested in the common council is, within the limits prescribed, a discretionary power; and we must hold that a court of equity had no jurisdiction to restrain the common council from exercising such discretion, especially at the suit of a private party.

It is said that the amendment to the ordinance, as originаlly proposed, was not submitted to a committee as required. It is enough to say that a court of equity has no place in the •chamber of the common council to supervise or superintend the proceedings of that body, while engaged in the exercise of legislative or discretionary functions. The common council of Milwaukee, like other legislative bodies and courts, is liable to commit errors •which, may be fatal to its action; but that does not take away its power to act. Counsel for the defendant admitted upon the argument that the common council had power to pass the ordinance if it had proceeded regularly. But a court of equity has no power to prevent such action merely because the mode or manner of its procedure is irregular. To do so would be to stop the machinery of the city government. It is not a question of the propriety, or expediency, or wisdom of the proposed action, but a question of the power of the common council and the jurisdiction of the court.

By the Oourt.— The peremptory writ of prohibition is. awarded.

Case Details

Case Name: State ex rel. Rose v. Superior Court of Milwaukee County

Court Name: Wisconsin Supreme Court

Date Published: Feb 27, 1900

Citation: 81 N.W. 1046

Court Abbreviation: Wis.