223 Wis. 251 | Wis. | 1936
The plaintiff paid the $6,854.75, which it seeks to recover herein, to the city of Milwaukee under protest and duress, in order to be permitted by the city to open up certain street pavements to install underground equipment required in conducting plaintiff’s business as a public utility. The city exacted that payment under an alleged ordinance which purported to authorize its commissioner of public works to grant permits to public utilities for opening street pavements or resurfaced streets, laid within three years, upon a showing that an emergency existed, provided, however, that no such permits should be granted until the utility paid to the city “a sum equal to the balance due on any special assessment levied against the abutting real estate for the street pavement or resurfacing. Any sum so paid shall be credited to any unpaid special assessment on any such real estate and said assessment canceled.” The plaintiff alleged in its complaint and contends herein that that ordinance and the payment exacted thereunder was unjust, discriminatory, and arbitrary; that the amount of the fee required for the issuance of such a permit was excessive, unreasonable, and extortionate because the amount of unpaid special assessments bears no' relation whatsoever to such sum as the city might reasonably demand as a condition for issuing such a permit; that the ordinance was not enacted in the exercise of any authority conferred upon the city; that it was contrary to the laws of the state and unconstitutional and void; that there was no valid law whatsoever requiring the payment of any such sum; and that, therefore, the city was without right or authority to require or collect that payment under that ordinance or otherwise.
Upon the trial the court found that the pavement was within the terms of ch. 269, Laws of 1915, but that the city
The authority and power of the plaintiff, as a public utility, to use a street or highway is derived from the state. That power and authority, as was said in State ex rel. Wisconsin Telephone Co. v. Sheboygan, 111 Wis. 23, 86 N. W. 657,—
"... Came from the ultimate source of power, the legislature, and passed directly to such organizations as come within its terms. . . .
*257 “The franchise existed by express legislative grant. Its exercise might be controlled only in recognition of its existence, and in conformity with a just and reasonable administration of the police power in the interest of the city and its inhabitants.”
In sec. 180.17 (1), Stats., the legislature provided that such utilities “may, subject to reasonable regulations made by any city or village through which its transmission lines or systems may pass, construct and maintain such lines or systems with all necessary appurtenances in, across or beneath any public highway or bridge.” The “reasonable regulations” which a municipality may impose under that statute are only such as are referable to and are within the limits of the police power. State ex rel. Wisconsin Telephone Co. v. Sheboygan, supra; Milwaukee E. R. & L. Co. v. Milwaukee, 209 Wis. 656, 245 N. W. 856. As was held in State ex rel. McGrael v. Phelps, 144 Wis. 1, 128 N. W. 1041, in respect to regulations enacted under that power, “the validity of a legislative police regulation depends upon whether the ends sought to be attained are appropriate, and the means to such end are also appropriate.” As the court said in Mehlos v. Milwaukee, 156 Wis. 591, 599, 146 N. W. 882,—
“There must be reasonable ground for the police interference and also the means adopted must be reasonable for the accomplishment of the purpose in view. So in all cases where the interference affects property and goes beyond what is a reasonable interference with private rights, it offends against the general equality clauses of the constitution, it offends against the spirit of the whole instrument, it offends against the provision against taking property without due process of law and against taking property for public use without first rendering just compensation therefor. So every police regulation must answer for its legitimacy at the bar of reasonableness.”
On the other hand, it is obvious that neither the ordinance’s requirement that the utility must pay the balance due on any special assessment levied against the abutting real estate for street pavement or resurfacing, nor the provision therein for crediting the amount so paid to such unpaid special assessment and then canceling it, has any legitimate relation to any of the lawful objects of such a regulation.
The city’s contention that the ordinance in question provides a method whereby it can waive the alleged absolute right conferred upon it by ch. 269, Laws of 1915, to refuse (if the three months’ written notice was given by it to a utility as provided in that chapter) to permit the opening of the pavement by a public utility for the purpose of laying any new equipment thereon, cannot be sustained. In such matters a municipality cannot exact a fee which is obviously imposed solely as a revenue measure. Wisconsin Telephone Co. v. Oshkosh, 62 Wis. 32, 21 N. W. 828; Wisconsin Telephone Co. v. Milwaukee, 126 Wis. 1, 104 N. W. 1009; Milwaukee v. Milwaukee E. R. & L. Co. 147 Wis. 458, 133 N. W. 593; see also Rossmiller v. State, 114 Wis. 169, 188, 89 N. W. 839. Moreover, even if that chapter was intended to confer upon the city an absolute right to arbitrarily so refuse, there is nothing therein which authorizes the city
“To permit the city to base its action upon consideration of financial benefit to itself would be allowing it to put its powers up for sale to the highest bidder. ... We say without hesitation that the city has no right to barter with the police power, or exact for itself financial benefits as a condition for its exercise. Such power must be exercised, for the public good and public welfare, and not for public gain.”
Even if ch. 269, Laws of 1915, should be deemed to confer upon the city the absolute right of refusing to permit such a reopening of a pavement, and if the city determined in a proper case that such refusal was not necessary, because existing conditions did not call for the exercise of that absolute right, then there would be operative still the provisions of sec. 180.17 (1), Stats., that only reasonable rules and regulations may be imposed by a municipality as a condition of permitting the use of its streets by a utility. And, in this connection, it should also be noted here that those provisions in sec. 180.17 (1), Stats., are likewise applicable and operate as limitations upon such authority as is conferred upon the defendant herein by sec. 6.04, and subds. 30 and 32 of sec. 3, under ch. 4 of its charter; and that even if the ordinance was enacted under those charter provisions as is suggested in the city’s brief, its regulatory provisions cannot be sustained in so far as they are unreasonable.
Furthermore, even if the city could impose for revenue purposes any such charge as is prescribed by the ordinance, the exaction thereof thereunder would be unlawful because the required payment is manifestly for a private instead of a public purpose, in that the ordinance, after prescribing that the sum to be paid by the utility to the city shall be “equal
In as much as the ordinance was void for the reasons stated above, the issue as to whether timely or sufficient written notice was given by the city to the utility, in compliance with the ordinance, was entirely immaterial. Regardless of whatever was done, or could have been proven by the city in that respect upon a new trial, the plaintiff was entitled, upon the undisputed facts, to recover, as a matter of law, the money which it had paid to the city under protest. Consequently, the order appealed from must be reversed, and the judgment must stand as it was originally entered.
By the Court. — Order reversed.