Gilman v. City of Milwaukee

Oassoday, J. The corporate authorities of a city possess only such powers as are expressly granted by legislative enactment, and such others as may be necessary or convenient to carry into execution the powers thus expressly granted. State ex rel. Priest v. Regents, 54 Wis. 169, 170; Collins v. Hatch, 18 Ohio, 523; S. C. 51 Am. Dec. 465; Thompson v. Schermerhorn, 6 N. Y. 92; S. C. 55 Am. Dec. 385; Robinson v. Mayor, 34 Am. Dec. 627. Ch. 475, P. & L. Laws of 1871, entitled “An act to enable the city of Milwaukee to construct water-works and to carry on and manage the same,” created a board of water commissioners with extensive powers. In pursuance of subch. 10, ch. 184, Laws of 1874, the water-works and property in charge of that board, were surrendered “ to the city,” and by subch. 5 of the same act there was created a “ board of public works,” consisting of three members, styled “com [593] missioners of public works.” By sec. 3 of subch. 10 of that act, this board was given power to construct jets and fire-hydrants for public use, and fountains at such places in the city as the board, with the approval of the common council, should determine, and also lay water-pipes in and through all the alleys, streets, and public grounds in the city. Sec. 10 of that same subchapter provided that such water-works, and all the grounds, buildings, fixtures, machinery, and other things appertaining thereto, should be under the control of the board, with power to regulate, control, and supervise the same, “ subject to the authority of the said common council.” The scope and purpose of subch. 5 was to regulate and define the powers and duties of the board, placing them, however, substantially under and subject to the ordinances, direction, and control of the common council, especially in the matter of commencing new lines of work and new lines of expenditures. Besides, by subch. 4 the municipal government of the city is expressly* vested in the mayor and common council, and to them are expressly given the management and control of the finances, and of all the property of the city, except as therein otherwise provided. They have full power and authority to make, enact, ordain, establish, and enforce all such ordinances, rules, by-laws, and regulations for the government and good order of the city, and for the benefit of the trade, commerce, and health thereof, as they shall deem expedient, and such ordinances, rules, by-laws, and regulations are thereby made to have the force of law. Sec. 3, subch. 4. And for these purposes the common council have express authority, by ordinances, resolutions, by-laws, rules, or regulations, to make, establish, and regulate public pumps, wells, cisterns, and reservoirs, and provide for the erection and maintenance of waterworks for the supply of water to the inhabitants, and to prevent the unnecessary waste of water. Subd. 34 of said sec. 3. Upon these sweeping powers there are these limita-- [594] tions: “All ordinances, and all accounts and resolutions appropriating money or creating any charge against any of the funds of said city, shall be referred to appropriate committees, and shall only le acted on by the common council at a subsequent meeting not held on the same day, on-the report of the committee to which the same were referred: provided, however, that, when a committee shall report by resolution upon a matter referred to them by the common council, action upon such resolution may, in the discretion of the common council, be taken without a further reference.” Sec. 5, subch. 4, ch. 184, Laws of 1874, as amended by sec. 15, ch. 144, Laws of 1875. Here we are satisfied that the subject matter of laying the permanent water-mains in question was not embraced in the petition presented to the common council by the committee of citizens. The common council referred that petition to the appropriate committees, and nothing more. That was not a reference to any committee of the subject matter of laying the permanent water-mains. Hence the report of the committee upon the subject of laying the permanent water-mains, by resolution, must be regarded as made upon a matter never referred to them by the council. This being so, such report of the resolution must be treated as the first time the subject matter therein contained was before the common council for any purpose. Being thus brought before them for the first time, the section of the charter above quoted required, in case the passage of the resolution would create any charge against any of the funds of the city, that it should be referred to an appropriate committee, and, in addition, provided that it should only be acted upon by the common council at a subsequent meeting, not held on the same day. The requisite steps and delay were doubtless to afford notice to all the members of the council and the public. This section is expressly prohibitory. In direct viola-lation of it, the matter embraced in the resolution was never [595] referred to any committee by the common, council, and was acted upon by them, not only on the same day on which it was first presented, but also at the same meeting of the council. The word “only,” in the section, prohibits all action of the common council upon the merits of such resolution, except when the matter is brought before them in one of the ways and upon the conditions prescribed. Such requirements were preliminary to such action upon the merits, and, to our minds, were jurisdictional. Wendel v. Durbin, 26 Wis. 390. This precise question has just been so determined by the court of appeals of Kentucky. Worthington v. Covington, 6 Ky. Law Rep. 237. Being jurisdictional, and such preliminary requirements never having been had, the common council was without power to pass the resolution. Had the common council acquired jurisdiction in the ways prescribed, then any subsequent omission of any step directed in the charter would have been “ deemed only directory,” under sec. 35, subch. 18, ch. 184, Laws of 1874, as this court has frequently held. The following cases are therefore clearly distinguishable: Wells v. Burnham, 20 Wis. 112; Warner v. Knox, 50 Wis. 429; Steinlein v. Halstead, 52 Wis. 293. The charter provides that “ a regular lot (not corner) which may front or abut on the line of water-pipe, shall be assessed an amount equal to one half of the cost, as estimated by the said board of public works, of furnishing and laying a regular minor water-pipe of approved materials and manufacture, with the required openings for connections with private service water-pipes along the front of such lot.” Sec. 16, subch. 10. The assessment upon each lot is not to exceed that amount. Sec. 15, subch. 10. Besides, the city is left to furnish hydrants and pay for street-crossings.' Here there was at least one such crossing. We must conclude that the resolution passed did create a charge against the funds of the city. Since the resolution [596] was void for that reason, and went to the groundwork of the assessments in question, we must hold that they too are void. Schettler v. Fort Howard, 43 Wis. 48; Pound v. Supervisors, id. 63; Hall v. Chippewa Falls, 41 Wis. 267. The objection that the complaint does not allege that the plaintiff had paid his other taxes seems to be sufficiently disposed of by the fact that it does allege that the several lots' in question were respectively sold for the amount of said assessments. Since it appears that the other taxes were not included, nor in any way involved in such sale or sales, we may presume that they were paid or collected. The cases in which the court has held the payment of other valid taxes requisite,'are, we think, distinguishable. The question which may be suggested from a casual reading of the complaint, as to whether the expenditures for temporarily supplying the soldiers’ reunion were not ultra vires, will be found, on closer reading, not to arise, as tbe water-mains for which the assessments were made were to be permanent. By the Court. — The order of the circuit court is affirmed.