State ex rel. City of Superior v. Duluth & Superior Bridge Co.

Siebecker, J. The principal issues raised in this action turn on the effect of the contract between, the city of Superior and the Bridge Company. As appears by the above statement of the facts involved in this litigation, the alleged contract was made to relieve the Bridge Company from maintaining the driveway between the points where the approach contacts at grade with the strip in question and the point where it intersects Main street, and to exempt the Bridge Company’s property abutting on the strip from special street improvement assessments. We think the appellant correctly claims that the contract as made, under the circumstances then existing, clearly indicates that the parties intended that the city was to acquire a right in the nature of an easement for a street over this [289] strip for the use of the public. The city charter of the city of Superior confers on the city the usual rights of eminent domain granted cities for acquiring land for the purpose of laying out streets and for other city purposes. The charter provisions and those prescribing how the public streets of the city are to be improved limit the city council to» the methods provided in the charter for laying out, establishing, and improving the city streets. Concededly no attempt was here made to lay out a street over the strip in question, nor was there a dedication by the Bridge Company and acceptance thereof as a public street by the city. The arrangements between the company and the city culminating in this contract were not within the powers conferred on the city, and hence were ineffective and void. As declared in Becker v. La Crosse, 99 Wis. 414, 417, 75 N. W. 84, “It is also a rule of law. .. universal in its application, that the agents, officers, or even the city council, of a municipal corporation cannot bind the corporation by the assumption of powers . . . except within the limits . . . stated.” These limits to the exercise of municipal powers are: “First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation, — not simply convenient, but indispensable.” In Trester v. Sheboygan, 87 Wis. 496, 58 N. W. 747, it was determined that “A city has no power to purchase an easement for street purposes, under a charter which, besides the usual provision for the condemnation of land for public grounds, streets, etc.,” also confers power to lease, purchase, and hold real property for city purposes. See, also, State ex rel. Mueller v. Thompson, 149 Wis. 488, 137 N. W. 20; Superior v. Roemer, 154 Wis. 345, 141 N. W. 250; State ex rel. St. Paul v. Minn. T. R. Co. 80 Minn. 108, 83 N. W. 32. The Tr ester Case also holds: “The city council, having absolutely no power originally to make the [290] contract of purchase, cannot ratify it by subsequent acts.” Cases cited. It follows from the foregoing that the contract is void, that the city has no easement over the strip in question to use and maintain it as a street, and that it is without power to regulate and control its maintenance and improvement as a public street of the city. No question is raised concerning the Bridge Company’s power to condemn and use the strip in question as a roadway from Main street to its bridge. Assuming that the Bridge Company legally acquired the strip for the purposes of a roadway, the question arises: Is the relator entitled to maintain this action to compel the Bridge Company to make the improvement specified in the petition for the writ of mandamus? It is manifest from the pleading and the issues litigated that the defense to relator’s complaint rests on the assumed validity of the contract in question and that the Bridge Company has based its refusal to keep the roadway over the strip in a sufficient state of repair solely upon the ground that it is a public street. The facts of the case disclose nothing to indicate that the Bridge Company will refuse to keep it in proper condition for the use of the public in connection with the public travel over the bridge if it is not relieved of such duty by the contract. Under the facts and circumstances presented there is no showing that the defendant refuses to perform any of its legal obligations respecting the roadway over the strip which entitled relator to proceed by mandamus to compel it to perform its legal duties in this matter. The trial court held that relator is entitled to the writ to compel defendant to pave and maintain the roadway in accordance with the demands of the city. The infirmity of this position is that the defendant’s legal duty to repair and maintain this roadway cannot be enforced in the particular manner the relator demands. The defendant may adopt a sufficient and appropriate manner of maintaining the road [291] way wholly different from that sought by the city. State ex rel. Redenius v. Waggenson, 140 Wis. 265, 122 N. W. 726. It is considered that the facts do not present a case for relief by the extraordinary remedy of mandamus. It is claimed by defendant that the bridge in question is a railroad bridge and that the improvement of the strip here involved is a subject wholly cognizable by the railroad commission of this state under sec. 1797 — 12k, Stats., except so far as Congress has reserved power of control in the War Department. If this bridge is in fact a railroad bridge, as contended by defendant, it may be of the class defined by the provisions of sec. 1325m and be subject to the obligation and penalties prescribed by this section. The questions thus arising under secs. 1797 — 12k and 1325m are not necessarily involved in a complete determination of the' issues presented on this appeal and we therefore shall not express any opinion upon them. By the Court. — The judgment appealed from is reversed, and the cause remanded with directions to quash the writ. ■