C. Beck Co. v. City of Milwaukee

The following opinion was filed March 9, 1909: Bíerwin, J. It is contended by appellant that the defendant city had no power under the charter to pass the ordinance-in question; that it is oppressive and unreasonable, in derogation of the common law and common right, and offends-against the federal and state constitutions. The obvious purpose of the ordinance is to protect the harbor on Lake Michigan. This authority is clearly conferred by the city charter, which expressly grants to the city authority “to preserve the-harbor, to prevent any use of the same or any act in relation, thereto . . . tending in any degree to fill up or obstruct the-same.” It also authorizes the common council to prevent the-incumbering of streets and alleys in any manner and to protect them from encroachment or injury. There can be no-doubt but that the city had power to pass the ordinance in question. Clason v. Milwaukee, 30 Wis. 316. It is claimed, by appellant that because the beach in question was taken into the city of Milwaukee by extension of its boundaries-after the passage of the charter in 1874, which contained the-provision respecting the protection of the harbor above referred to, such authority delegated to the city only extends to-the corporate limits embraced within the limits of the city in 1874. It is clear from other provisions of the city charter-respecting extension of boundaries, as well as sec. 1, ch. 9, of the charter of the city of Milwaukee, which includes in the harbor of the city the lake frontage to a distance of one mile from the shore, that this-position is untenable. Nor do we think the ordinance is objectionable as class legislation, under [348] tlie repeated decisions of this court. State v. Whitcom, 122 Wis. 110, 99 N. W. 468; Black v. State, 113 Wis. 205, 89 N. W. 522. We need not rest upon the general welfare clause of the charter or upon implied power for authority to pass the ordinance, since express authority to protect the harbor is granted by the charter, and we find nothing in the ordinance, when properly interpreted, in conflict with the state •or federal constitutions or any law of the state. And while there is abundance of authority, from early times down to the •present, upholding the power of municipalities to protect by proper regulations their harbors, we need not go outside of the decisions of this court upon the subject. Clason v. Milwaukee, supra, is directly in point, so far at least as the power •of the city to pass such ordinance is concerned. The operation of the ordinance is plainly confined to the beach and such distance into the water as is necessary for the protection of the harbor and does not in terms infringe private rights. It does not make the violation of it a criminal offense, but provides a penalty for its violation. Its violation is not a misdemeanor. Eecovery of the penalty is by civil action under the ordinance. Stoltman v. Lake, 124 Wis. 462, 102 N. W. 920; Koch v. State, 126 Wis. 470, 106 N. W. 531; Olson v. Hawkins, 135 Wis. 394, 116 N. W. 18. It is true that the power of a city to pass ordinances must be reasonably exercised, but within the field delegated it may go to the boundaries of reason, and within that field its discretionary power is supreme. Stafford v. Chippewa Valley E. R. Co. 110 Wis. 331, 85 N. W. 1036. The city in passing the ordinance in ■question being within its power to pass ordinances for the protection of the harbor, we think the question is ruled by •Clason v. Milwaukee, supra, and the ordinance valid. Of course ordinances must receive a reasonable construction in the light of the purpose of their enactment, and if they are capable of a construction which will carry out the manifest purpose of the enactment such construction must [349] be given them. The ordinance in question cannot be construed as contended by appellant, namely, that it is unreasonable, because the taking of a handful of sand or a stone would violate it. This contention involves the construction of the ordinance and not the validity of it. The ordinance upon its face could not be held to embrace such a case, for it must receive a reasonable rather than an unreasonable construction. Clason v. Milwaukee, 30 Wis. 316; McQuillan, Mun. Ord. 297; State v. Sheppard, 64 Minn. 287, 67 N. W. 62; Nicoulin v. Lowery, 49 N. J. Law, 391, 8 Atl. 513; Skinker v. Heman, 64 Mo. App. 441; Comm. v. Cutter, 156 Mass. 52, 29 N. E. 1146; In re Anderson, 69 Neb. 686, 96 N. W. 149. The delegation of authority to the city to protect its harbor being for a public purpose and the exercise of it reasonable, the ordinance is valid. LeFeber v. West Allis, 119 Wis. 608, 97 N. W. 203; Eastern Wis. R. & L. Co. v. Hackett, 135 Wis. 464, 115 N. W. 376. The legislature has power to confer upon the defendant city, for public purposes, the right to protect the harbor, and the city in the exercise of such delegated authority was clothed with power to prohibit the removal of material below ordinary high-water mark when such removal was injurious to the harbor. This is all the city attempts to do, by a fair construction of the ordinance. Whether it would have the right to-regulate the use of the land above ordinary high-water mark or interfere with private rights without making compensation and against the will of the abutting owners we need not consider, because the ordinance does not cover such a case. It was held in Mears v. Dole, 135 Mass. 508, that an abutting owner could not excavate on his own land in such manner as to let in the sea, which undermined and injured adjoining land of another, without liability to the persons so injured. So, also, Freeland v. Pa. R. Co. 197 Pa. St. 529, 47 Atl. 745. But since the case is here only on the order dissolving the temporary injunction, we do not regard it ad [350] visable to lay down rules of law respecting questions of fact not before us. It is sufficient for tbe purposes of tbis case to determine that the ordinance is valid and under it tbe city .has tbe right to prevent injurious interference with tbe beach. Tbe ordinance does not assume to prohibit interference above bigb-water mark, and whether tbe plaintiff was removing sand and material below bigb-water mark seems to .have been a disputed question on tbe bearing to dissolve tbe injunction. Of course if tbe plaintiff was not, but confined .its operations to land above bigb-water mark, tbe ordinance ■did not reach it, and no case was made to restrain its enforcement. Tbe ordinance prevents tbe removal of stone, sand, ■or earth from tbe beacb or from tbe water within 300 feet of bigb-water mark along or near tbe shore of Lake Michigan. ■Clearly tbe authority of tbe city under tbe power delegated ■extended at least to ordinary bigb-water mark, and so tbe ■city was within its rights in passing tbe ordinance. Tbe temporary injunction absolutely enjoined tbe enforcement of tbe ordinance, and enjoined defendant from commencing or prosecuting any complaint, or proceeding against tbe plaintiff for any alleged act in contravention of tbe ordinance. So we think it clear that tbe order dissolving tbe temporary injunction was right. It is true that tbe plaintiff claimed in its complaint and also upon tbe bearing to dissolve tbe injunction that tbe city, its agents and servants, threaten to prevent it from removing sand and material above bigb-water mark. Put such claim or pretense was no justification for restraining tbe city from tbe enforcement of a valid ordinance which authorized tbe prevention of removal of sand and material from below ordinary bigb-water mark. Tbe beacb .as designated in tbe ordinance is synonymous with shore, and must be held to mean that portion of tbe shore of tbe lake between ordinary high and low-water mark. Elliott v. Stewart, 15 Oreg. 259, 14 Pac. 416; Storer v. Freeman, 6 Mass. 435; Cutts v. Hussey, 15 Me. 237; Trustees of East [351] Hampton v. Kirk, 68 N. Y. 459; Littlefield v. Littlefield, 28 Me. 180. As to the meaning of the term “high-water mark,” •see Gould on Waters, § 45; Carpenter v. Comm’rs of Hennepin Co. 56 Minn. 513, 58 N. W. 295; Houghton v. C., D. & M. R. Co. 47 Iowa, 370; 1 Bouv. Law Dict. 947. It is alleged in the complaint that the defendant threatened to prevent the removal of sand and material above high-water mark; but, even if the city did so threaten, such acts were not within the ordinance and afforded no ground for restraining the proper execution of it. So if the plaintiff could maintain an action in equity against the city to prevent interference with its property above ordinary high-water mark, it must be independent of the ordinance and without any relation to it. Hence such a case, even if made, would afford no grounds for restraining the enforcement of the ordinance. The showing is ample that the removal of sand and material from the beach would be injurious and that the prevention of it is plainly within the delegated power of the city. The title to the bed of the lake below ordinary high-water mark is in the state. Delaplaine v. C. & N. W. R. Co. 42 Wis. 214; Diedrich v. N. W. U. R. Co. 42 Wis. 248. The private rights of plaintiff are therefore not infringed. If the ordinance extended in its operation above high-water mark and mpon the land and fee of the plaintiff, a different question would be presented and the authorities cited would be pertinent. We are therefore of opinion that the ordinance is valid and that the order dissolving the injunction was right •and should be affirmed. By the Court. — It is so ordered.