State v. City of Eau Claire

| Wis. | Aug 15, 1876

Ryan, C. J.

We held in the former case, Attorney General v. Eau Claire, 37 Wis., 400" court="Wis." date_filed="1875-01-15" href="https://app.midpage.ai/document/attorney-general-v-city-of-eau-claire-6601786?utm_source=webapp" opinion_id="6601786">37 Wis., 400, that the statute then before us, ch. 333 of 1875, authorized the erection of a dam at jmblic cost across a navigable river, either for the purpose of waterworks for the city or for the purpose of leasing the waterpower for private purposes; and that .so the power was alternative and optional, either > for a public or a private use, and therefore void.

Since that decision, and obviously in view of it, the legislature has amended the statute of 1875 by ch. 231 of 1876. And the amendment so clearly and emphatically makes the power to construct the dam dependent on the power to construct water-works, and limits the power to lease the wateiv power to the excess not required for the water-works, as to place the power beyond criticism in that respect.

This was not seriously questioned by the counsel who made the present motion. But it was argued that the Amendment of the statute was colorable only, and that the main object in the statute of 1876 was the same as in the statute of 1875; the creation of water-power, not the construction of water-works. There is nothing in the language of the statute to warrant such a view, which would imply bad faith in the legislature. Such an implication we assuredly. cannot countenance. As we said, in comment on a similar imputation, in the former case: “It would be a palpable violation of judicial duty and propriety to seek in a statute a construction in conflict with the constitution or with the object of its enactment; or to admit such a construction, when the statute is fairly susceptible of another in accord with the constitution and the legislative intention. And it would not only be unbecoming, it would be unwarrantable, as was well suggested by counsel, to impute insidious ambiguity, intent to violate the constitution per ambages, to a statute. We shall surely not look for m-tentio caeca mala in any statute. We shall hold all statutes framed and passed in good faith.”

In the former case, speaking of the power granted to the city to construct water-works, we had occasion to say: “That is so essentially a public and municipal purpose, that it is obvious that the city can take any legitimate power in aid of it. For tbat purpose, the legislature could unquestionably grant, and the city take, power to construct and maintain a dam, not obstructing the navigation of a public river, or violating other right public or private. And the dam so authorized might well produce an excess of power. Swperflua non nocent. In such a case, as was frankly admitted on the argument, the surplus water need not run to waste. The legislature might well grant, and the city take, power to lease it. The power to construct and maintain the dam would still rest on the public, municipal use; not on the disposition of the accidental excess. Spaulding v. Lowell, 23 Pick., 71.”

The statute appears to be framed with due regard to the navigation of the river; making careful provision against its obstruction. There is a general provision that the dam shall be so constructed as not substantially to obstruct navigation. And there are particular provisions for a lock sufficient for the safe and expeditious passage of steamboats and rafts, and for chutes and slides for the safe and convenient passage of logs, etc., and for other works sufficient for the protection and preservation of navigation.

There is no averment in the information that the dam or water-power authorized is disproportionate to the purpose; or that the city does not intend in good faith to construct the water-works; or that it has adopted a plan for the construction of the dam unauthorized by the statute, or in disregard of its provisions for the protection of navigation. The information avers only that the city is about to execute the power, and that the construction of the works authorized will interrupt and prevent the navigation of the river.

The averment is therefore directed, not against the execution of the power by the authorities of the city, but against the power itself as granted by the legislature. We did not understand counsel as seriously questioning the right of the legislature to authorize the erection of a dam, on a navigable river, not materially obstructing navigation, for a public purpose other than the improvement of the navigation. Stoughton v. State, 5 Wis., 291" court="Wis." date_filed="1856-07-01" href="https://app.midpage.ai/document/stoughton-v-state-6597471?utm_source=webapp" opinion_id="6597471">5 Wis., 291; Newell v. Smith, 15 id., 101; Wood v. Hustis, 17 id., 416; Arimond v. Canal Co., 31 id., 316; Pumpelly v. Green Bay Co., 13 Wall., 166" court="SCOTUS" date_filed="1872-02-19" href="https://app.midpage.ai/document/pumpelly-v-green-bay-co-88448?utm_source=webapp" opinion_id="88448">13 Wall., 166. We therefore need not consider that question. And the question before us is, whether we shall arrest the.execution of a work authorized by the legislature to be so constructed as not to obstruct navigation, upon the ground that the work so authorized will obstruct navigation. "We could do so only upon the assumption that it is impossible to execute the power as the legislature granted it; that any dam, however constructed, would necessarily obstruct the navigation of the river. That we do not feel at liberty to assume, against the legislative grant. In the argument of the former case, it was urged on the one side that the dam authorized would materially obstruct navigation; on the other side, that it would materially improve it. The legislature was evidently of opinion that the dam could be erected so as at least not materially to obstruct navigation. It would not be fitting to hold, on a preliminary motion, in advance of all trial or even plan, that the legislature was wrong. And, in the absence of all complaint against the execution of the power, we cannot enjoin the power to erect a dam so constructed as not to obstruct navigation, upon the ground that it will obstruct it. If the dam constructed should prove a material obstruction to the navigation of the river, it will be an abuse, not an execution of the power. It will not be such a dam as the statute authorizes. Eor the purposes of this motion, we must consider the statute a valid grant of power. No abuse of the power is alleged; and we cannot enjoin its use.

It was objected to the statute, that it provides for no compensation for lands which may be overflowed by the dam. It is enough to say here that there is no averment in the information that any lands will be overflowed. The Chippewa, where the dam is authorized, is understood to be a peculiar river; and it is quite possible that there, may be no overflow. We certainly cannot take judicial cognizance of the fact, if fact it should prove to be.

We do not now consider whether we should hold the information good or bad on demurrer. We only hold that, in the present state of this cause, we do not feel at liberty to enjoin the execution of the legislative grant of power.

By the Oowrt. — The motion is denied.