Miller v. City of Milwaukee

By the Court, Dixon, O. «J. The general powers possessed by municipal corporations at common law, are words of very general import, and án attempt’to point out all the acts which they might be held to authorize would be a work of considerable labor. The defendant’s act of incorporation declares that it shall have “ the general powers possessed by municipal corporations at common law,” and in addition thereto the powers thereinafter specifically granted. Chapter 56, Laws of 1852, section 1. The specific grants of power are very numerous and full, embracing nearly all the usual subjects of municipal regulation. Wherever these occur and the manner of their exercise is prescribed, they must of course be governed by the provisions of the act. But it must be presumed from the general words above quoted, that the legislature considered that there were some powers pertaining to such corporations and which the defendant ought necessarily to possess, which were not included in the specific grants, [646] and which were omitted either by accident or because it was deemed impracticable specially to regulate and define them ^ statute. It is very probable the latter was the true reason> but which is immaterial here. "We are not, however, required to determine the application of these words in all cases, or accurately to define the powers conferred by them, which would involve an extended examination of the law of municipal corporations. We are only to dispose of the case in hand, and in doing so to decide, with reference to general principles, whether it was competent for the city authorities to undertake the improvement in question. The act of incorporation is silent upon the subject of improvements of that nature, and at the time of the passage of the resolution by the boards of councillors and aldermen, and of the letting of the contract and performance of the labor, there was do statute specially authorizing them to be made either under the direction of the councillors and aldermen or of the street commissioners. If the authority existed, therefore, it was by virtue of this general grant. We are of opinion that the councillors and aldermen possessed the power, and that it was rightfully exercised. Municipal corporations are instituted for the advancement and regulation of trade, the local administration of justice and the better government of their particular vicinities. For these purposes they are by the common law invested with the power of making ordinances and by-laws. Willcock on Mun. Oorp., 16 (12 Law Library, 10). They may also elect, govern and amove their members, and regulate their franchises and property. Idem, 298 (12 Law Library, 164). They possess power to lay out, open and repair streets and highways, to establish companies to protect the property of the citizens from destruction by fire, and to levy taxes to defray the expense. This power is expressly given to the defendant by its organic act. Underlying these and founded upon presumed general consent, because of far more public and private importance, though, owing to the nature of the emergency, not proper perhaps to be anticipated by any special statutory rules, would seem to be the power of self-protection in the extraordinary case of a city whose foundations are threatened with destruction by [647] the waters of a lake. If the making and repairing of the streets and the protection of the shops and dwellings of citizens are matters of municipal concern for which the authorities are always authorized and required to provide, it would be very singular if they should be denied the means of self-preservation from such a cause, which, unless stayed, would result in the partial, perhaps total, disappointment of the purposes for which the corporation was created. If it is worth while to open and improve a street, to rescue it, when practicable, from utter destruction is of much greater consequence ; and if it is proper to protect buildings, the preservation of the soil on which they stand is much more an object of care. We are of opinion, therefore, under the circumstances set forth in the complaint, that the boards of aldermen and councillors were, upon general principles of the common law, authorized to direct the construction of the breakwater for the defense and protection of the street, and that the contract entered into in pursuance of their directions was binding upon the city at large. Section 1 of chapter 10 of the charter provides that all work for the city, or either of the wards, shall be let by contract to the lowest bidder, and due notice shall be given of the time and place of letting such'contract. This provision was fully complied with, and the price being chargeable to the general fund, it follows that the stipulation in the contract that the plaintiff was to receive his pay in street commissioners’ certificates, was wholly unauthorized. The commissioners had no right to insert it under the authority given them, and it must therefore be rejected. We have not overlooked the argument to be drawn from the act of March 31, 1860 '(Laws of 1860, chap. 272), that the legislature assumed that special authority was necessary in order to enable the city to provide protections and defenses of this kind. Such arguments, though always entitled to consideration, are never conclusive. But we do not think that the act is open to such assumption. The work could only be carried on at the expense of the city at large. This rule of taxation was deemed unfair and not in accordance with the general spirit of the charter, and the act was [648] undoubtedly passed for tbe purpose of changing it, and mak ing tbe work chargeable to tbe adjacent lots. [Note — Chapter 2?2 of the General Laws of 1860, referred to in the above opinion, is entitled “An act to authorize the common council of the city of Milwaukee to construct a breakwater in the third ward of said city.” The breakwater authorized by the act was to be constructed along the lake shore fronting on Beach street from Detroit to Bier street; and the expense of its construction was required to be levied on the adjacentlots. — Rep.] We fully acquiesce, therefore, in the decision of the court below, and the order overruling the demurrer to the complaint is affirmed, with costs, and the cause remanded for further proceedings according to law.