City of Superior v. Industrial Commission

Maeshall, J. It was perfectly proper for appellant, under advice of its counsel, to defend against the claim of the plaintiff upon any ground which such counsel deemed legitimate. We perceive no evidence of bad faith in the matter or justification for characterizing the defense put forth as [545] unconscionable. Whether it be a good defense is quite another question. n It seems to be conceded that if it were competent for the municipality to have done at its expense the work in which deceased was engaged when he was injured, the judgment is right. The trial court decided the suggested question in respondents’ favor on the faith of sec. 925 — 111 a, Stats., which provides that: “The park commissioners of all cities shall, under the direction of the common council, have the same jurisdiction and control for park purposes over that part of public streets, lying and being between the curb and the sidewalk as such commissioners have over the public parks, and may cause trees to be planted and cared for, and the proper surface to be sodded, planted or otherwise cared for, in the same manner park lands are cared for.” The quoted section was enacted in ch. 493, Laws of 1907. That was an act of general nature as to the'cities of the state. So far as incorporation thereof into ch. 40a, which is mainly devoted to the general city charter law, would indicate that it applies specially to cities incorporated under such law or which have adopted such law, sec. 925 — 2 of such chapter must be regarded as restrained so as not to modify the general power which was granted later and, unmistakably, was made to apply to all cities. It seems to be conceded that if the foregoing is correct the judgment appealed from is free from infirmity, so we need not consider any other question discussed in the briefs of counsel. By the Court.- — -The judgment is affirmed.