City of Milwaukee v. Herman Zoehrlaut Leather Co.

WiNSlow, J. This is an action to recover the value of “stolen waters.” Whether they were sweet or not does not appear; but it is distinctly charged that they were the property of the city in its mains, and that they were clandestinely 278 appropriated by the defendant to its own nse, and bave never been paid for. If the water alleged to bave been taken belonged to an individual or a private corporation authorized to deal in water, we apprehend there would be no question raised as to the right of recovery. The fact that the plaintiff is a municipal corporation cannot logically affect the right to recover, so long as it is endowed by law with the power to maintain waterworks and furnish water to private consumers. The water in its pipes is property, it belongs to the city, it is of some value, and it is charged to have been taken by the defendant and never paid for. This makes a complete case, on very well established legal principles'. Nor can the fact that the city has established water rates and is empowered to collect such rates from consumers as taxes are collected, affect the right to recover the value of water taken in defiance of the city’s regulations. That method of payment was primarily intended for water sold by the city to consumers in accordance with its rules. Granting that this method may be used also to recover payments for water clandestinely taken and converted, it cannot logically be held that it excludes the previously existing common-law remedy by way of an action for conversion. This proposition seems too clear for argument or discussion. Nor can the objection that the city has not legal capacity to sue prevail. This objection seems to- be based upon a legal misconception. The argument in favor of the obj’ection runs thus: The city charter provides that “the city attorney shall conduct all the law business of the corporation and of the departments thereof, and all other law business in which the city shall be interested, when so ordered by the common council.” Sec. 5, subch. Ill, ch. 184, Laws of 1874. It is not alleged in the complaint that the city attorney has been “ordered by the common council” to commence this action; hence the city has no legal capacity to sue. The argument is plainly a 'non sequitwr. The city is given the power to sue 279 and be sued, in express terms, by its charter. Sec. 1; subch. I, cb. 184, supra. By this provision it is fully endowed with legal capacity to sue. If its legal representative must, under the charter, he specially directed to bring an action, before he is empowered to launch the city into litigation (a point not decided), still the city’s légal capacity to sue is unaffected. The objection that no such authority has been given goes simply to the attorney’s authority, and the statute nowhere dignifies this objection into a ground for demurrer. If it be a good objection, it must logically be raised by answer. By the Court. — Order affirmed.