Waukesha Hygeia Mineral Spring Co. v. President of Waukesha

83 Wis. 475 | Wis. | 1892

Lyon, C. J.

1. It is maintained by the learned counsel for plaintiff (the Hygeia Mineral Spring Company) that the village of Waukesha cannot maintain an action in the name of its president and trustees to enjoin that company from excavating trenches in the village streets, and laying its pipe therein, even though the company has no legal authority to do so. Without entering upon an extended discussion of this proposition, it is sufficient to say we are of the opinion that such right of action in the municipality is established by the judgment of this court in Jamestown v. C., B. & N. R. Co. 69 Wis. 648. The reason is that such unlawful interference with the streets puts them out of repair, and almost necessarily increases, for the time being, the liability of injuries to persons and property of travelers thereon because of such defective condition. The village, being responsible for injuries caused by defects in its streets, and being charged by law with the duty of keeping them in repair, has such an interest in the streets that it may maintain actions to prevent any unlawful injury to them. The reasons why the case of Milwaukee v. M. & B. R. Co. 7 Wis. 85 (on which counsel for plaintiff rely as denying a right of action by the village), was not applicable to that ease, and is not to this, are stated by Chief Justice Cole in his opinion in the Jamestown Case. We hold that the village of Waukesha may maintain such action.

2. For the purposes of this appeal it will be assumed that the village board of Waukesha had legal authority to grant to the Hygeia Company (the plaintiff) the right, on the conditions specified in the ordinance of July 14, 1891, to excavate trenches in the streets of the village, and to lay pipe therein for the purposes, specified in the ordinance.

3. If the ordinance went into effect and remained in force, — that is, if there was no effectual reconsideration by the board of the vote by which it was passed,— it will be assumed that it still remains in force, and that, since its acceptance by the Hygeia Company, and the expenditure by the company of considerable sums of money on the faith of it, the same is irrepealable without the consent of the company.

4. Was there an effectual reconsideration by the village board of the vote of July 14, 1891, by which the ordinance was passed? If the ordinance had not become absolutely binding upon the village before the motion to reconsider the vote of July 14th by which it was passed was adopted, there can be no doubt, we think, of the right of the village board to reconsider such vote, subject only to such restrictions as are imposed upon the board by the charter and bylaws of the village. Such right, in some form, is inherent in all deliberative assemblies or bodies. If a motion to reconsider, properly and timely made, prevails, the effect is to abrogate the vote reconsidered, and the matter stands before the assembly or body in the same condition as though the reconsidered vote had not been passed. Cush. Parl. Law, §§ 1264-1266.

The charter of the village of Waukesha is silent on the 'subject of reconsideration, but it authorizes the village board to establish by ordinance, resolution, or by-law rules to govern its proceedings. This gives the board power to prescribe the procedure on the reconsideration of votes. A copy of the village ordinances and by-laws, purporting to be published by authority of the board, was used on the argument. Its authenticity was not questioned. It contains a by-law on the subject of reconsideration. Although it is not found in the record before us, yet, inasmuch as it restricts, to some extent, the common-law or inherent right of reconsideration, it will be most favorable to plaintiff to regard it as properly before the court. We therefore construe the averment in the pleadings that the vote by which’ the ordinance was passed was duly reconsidered as an averment that it was reconsidered in the manner authorized by the by-law. It reads as follows: “ It shall be in order for any member voting in the majority to move for a recon-* sideration of the vote on any question at the same or next succeeding meeting.”

We are of the opinion that the vote of July 14, 1891, was effectually reconsidered for either of two reasons: First, because the ordinance had not taken effect when the vote on its passage was reconsidered; and, second, if it had then taken effect, the vote on its adoption .was reconsidered at the next succeeding meeting of the board, on motion duly made, and before the Hygeia Company had accepted the ordinance or made any expenditure on the faith of it. Sec. 21 of the village charter (P. & L. Laws of 1859, ch. 30) provides that “any ordinance, regulation, rule, or by-law enforcing any penalty or forfeiture for the violation of its provisions, shall be published one week in some newspaper printed in said village before the same shall be in force.” We find no provision in the charter requiring the publication of ordinances which do not impose such penalties or forfeitures. The ordinance of July 14, 1891, seems to belong to the latter class, and not to the class specified in sec. 21. Probably it could have been' framed so as to be operative without publication. But it was doubtless competent for the village board to provide that it should take effect at some future time, or on the happening of some future event. The board provided that it should take effect and be in force from and after its passage and publication. It is fair to assume that the board intended by-the use of the latter term a publication for one week, as the term is used in sec. 21. The ordinance was first inserted in the official newspaper on July 19th, and the week expired July 26th; hence we think that the ordinance could not have taken effect until the latter date. It is the same as though it had been expressly provided therein that it should not be in force until July 26th. Before that date the motion to reconsider the vote b}r which the ordinance was passed was adopted. Of the right of the village board to reconsider that vote at any time before July 26tb, provided it was done in accordance with the by-law on that subject, we can entertain no doubt whatever; and in such case it would seem to be immaterial had the company accepted the prospective ordinance or expended money on the faith of it, before the reconsideration. Such acts could not defeat the right of the board to reconsider before the ordinance took effect.

Again, let us suppose that the ordinance was in force when the vote to reconsider was passed. The ordinance was a voluntary grant of a privilege or easement to the Hygeia Company, for which the village received no consideration whatever. It was purely gratuitous, and, until accepted and acted upon by the grantee, was a mere license, which the grantor might revoke at its pleasure. The grantor did revoke it by reconsidering the vote adopting it before the ordinance was accepted or acted upon by the grantee, in strict compliance with the by-laws of the village board in that behalf. Hence, in any view of the case, we are impelled to the conclusion that when the Hygeia Company threatened and attempted to exercise rights under the ordinance to the injury of the streets of the village and of the owners of lands abutting such streets, it acted without authority of law, and the court properly enjoined it from doing such acts.

By the Court.— Order affirmed.