126 Wis. 1 | Wis. | 1905
The questions presented here upon the facts admitted by the demurrer are thus stated by respondent:
“Pirst. Has the city authority to exact a license such as is provided for in the ordinance, the enforcement of which the appellant seeks to enjoin?
“Second. Does the ordinance in question contravene the fourteenth amendment of the federal constitution and similar provisions of the Wisconsin state constitution V’
The first proposition stated by counsel practically embraces the controversy before us, and we shall proceed to consider the right of the defendant city to exact the license fee. It is apparent from the argument of counsel for respondent, as well as from the authorities cited, that the ordinance is sought to be upheld under power of the defendant city to license the plaintiff and exact the license fee provided for in the ordinance. It is, however, contended that the license fee is not
“That such is the relation of the city to the various companies which had been empowered to occupy its streets with a view to gain is to me abundantly clear, and they should not ■grudge a reasonable compensation for the space they occupy ■and the risks which she incurs on their account.”
Counsel quotes from C., M. & St. P. R. Ga. v. Milwaukee, 97 Wis. 418, 72 N. W. 1118, to the effect that the charter of a corporation does not exempt it from police supervision and regulation, which is true as applied in that case; but the question here is not one of escape from police regulation, but whether the ordinance of the defendant is within it. People ex rel. N. Y. E. L. Co. v. Squire, 107 N. Y. 593, 14 N. E. 820, clearly involves a regulation under a statute of PTew York concerning such companies, and which provided for the removal of such wires and cables from the surface of the ■streets and laying the same under ground, and the court said (107 N. Y. 602, 14 N. E. 823):
“The claim that this law is void because it imposes a tax ■on the companies referred to cannot be maintained. The act ■of 1884 imposes the duty upon such companies to remove and*10 cause to be laid underground all such wires and cables as are required in their business, and there is no reason why such companies should not be subjected to the payment of all expenses incurred in the construction of works required to carry on their own business.”
In State ex rel. Wis. Tel. Co. v. Janesville St. R. Co. 87 Wis. 72, 57 N. W. 970, the question involved under the ordinance was one of reasonable regulation. The ordinance provided for the location and use of electric wires in the streets, reasonable safeguards for the same, and a penalty for the violation of the regulation. No license fee whatever was exacted. It was purely a regulation requiring safeguards and providing a penalty for failure to furnish the same. Marshfield v. Wis. Tel. Co. 102 Wis. 604, 78 N. W. 735, involved the question of the city’s right to control its streets and prohibit the incumbering of the same, and it was held that under this power the city had the right to prevent the incumbering by telephone poles certain of its streets, in the .exercise of a reasonable discretion, and that the common council had a reasonable discretion in the location of such poles. The dominant purpose of the street being for public passage, any appropriation of it by legislative sanction to other objects must he deemed to he in subordination to this use. The decision only goes to the extent of authorizing a reasonable regulation on the part of the city. In Baltimore v. Baltimore T. & C. Co. 166 U. S. 673, 17 Sup. Ct. 696, it was held that the street railway company, occupying the streets by permission of flue municipality, was subject to reasonable regulations by subsequent ordinances, and that the city did not exhaust its power of regulation by one exercise of it. In Philadelphia v. W. U. Tel. Co. 11 Phila. 327, the telegraph Company commenced the construction of a new line on the streets, and the city sought to regulate such construction. Its right of regulation was sustained on the ground that the telegraph company was occupying the streets by permission of the city under the re
But we will not further extend discussion of cases cited by respondent. It is manifest they do not support the proposition that the defendant has authority to exact a license such as is provided for in the ordinance in question. The power rests in the state to determine what occupations shall be-licensed. Wis. Tel. Co. v. Oshkosh, 62 Wis. 32, 21 N. W.
It follows from what has been said that the order must be reversed.
By the Court. — The order of the'court below is reversed, •and the cause remanded with instructions to sustain the demurrer.