Town of Dekorra v. Wisconsin River Power Co.

The following opinion was filed October 20, 1925: Vinje, C. J. The defendant contends (1) that the legislative act authorizing the construction of the dam relieves [505] it from paying damages for the ño wage of town highways; (2) that the agreement and performance thereof by it to construct the highway 1-aid out by the town in place of the_ one destroyed discharged it from liability to respond in damages; and (3) that its last agreement and payment of $2,150 in full for. present and future damages was valid and conclusive upon all parties. Since the court has reached the conclusion that the second contention of the defendant is well taken, it becomes unnecessary to determine the soundness of the first and third contentions, and we express no opinion relative thereto. The statute imposes a duty upon towns to keep their highways in a reasonably safe condition for travel, and if they fail to do so they must respond'in damages if an injury occurs by reason of their insufficiency. Sec. 81.15, Stats. And it places the duty upon town boards to see that the highways are built and maintained in a reasonably safe condition. Sec. 81.01 says: “The town boards shall have the care and supervision of all highways and bridges in. their respective towns, except as otherwise provided.” And sub. (1), sec. 60.29, provides that town boards shall “have charge of all the affairs of the town not by law committed to other officers.” A careful search of the statutes has failed to reveal any power to settle or adjust damages to town highways to be given to any other town officer or officers or to the town meeting. The power., therefore, to lay out, build, and maintain town highways is lodged in the town board, and in the absence of „a statutory direction to the contrary it must be held that the power to adjust damages to them is also lodged in the town' board. This must follow from the statutory duty to maintain them and the statutory declaration that they shall have the care and supervision of them. Even in the absence of such statutory provisions sec. 60.29 would be a sufficient warrant for so holding. Thus in Minnesota, having a statute similar to our sec. 60.29, it was held that the town board had the authority to buy a safe for the keeping of the books and papers of [506] the town. State Bank v. Goodland, 109 Minn. 28, 122 N. W. 468. It is true, as argued by respondent, that towns are municipal corporations of limited powers. But when specific duties are intrusted to them and made obligatory on their part, it must be assumed that it was the legislative intent to give them ample authority to carry out those duties. So when they were charged with the duty of maintaining their highways and the town boards were selected to discharge this duty, it must be held, in the absence of any statutory provision, that they were given plenary power to do all that was reasonably necessary to carry out the legislative scheme. The power to contract with reference to a highway comes clearly within such scheme. The duty'to maintain a high-' way implies the power to enter into contracts with reference to its maintenance, and that includes the power to settle for damages, done to it. Such power was assumed or at least intimated to exist in the case of Levis v. Black River Imp. Co. 105 Wis. 391, 81 N. W. 669. And in Washburn Co. v. Thompson, 99 Wis. 585, 75 N. W. 309, it was held that a county board had authority to compromise a debt due it where it was of questionable validity, and that the doctrine of Butternut v. O’Malley, 50 Wis. 329, 7 N. W. 246, holding that a town board could not lawfully accept less than the full amount of a judgment in favor of the town, had no application to the situation in the Washburn County Case. In the instant case the question as to what would make the town whole for the damage caused by the flowage of the dam was one of judgment. It was not susceptible of an absolutely correct mathematical measurement. The town board came to the conclusion that a substituted highway would best reimburse the town. At least at the time such conclusion was reached and for a long time thereafter no one questioned its wisdom, and no one now questions the good faith of the town board in entering into the agreement for a substituted highway. [507] When' contracts of municipalities are not ultra vires they are bound by them even if not advantageous. Eau Claire Dells Imp. Co. v. Eau Claire, 172 Wis. 240, 179 N. W. 2; West Bend v. West Bend H. & L. Co. 186 Wis, 184, 202 N. W. 350. This fact should constantly be borne in mind by public officials, and they should enter into contracts with the same care and prudence that private parties do, and with the idea that contracts entered into will be carried out. If one party is bound by a contract the other must be, and neither private individuals nor public bodies should indulge the thought that the contract will be insisted upon if it turns out to be advantageous, but repudiated if it turns out to be disadvantageous. It is to be hoped that we have reached an age when municipal and national integrity stand upon a parity with individual integrity. There is no force in the contention of the town that the agreement in question in any manner affects the power of the town to fully discharge its public functions in the future. The duty to maintain its highways rested upon the town before the agreement was made, and it rested there after it was made. All that was effected by the agreement was that another route was selected by the town over which the defendant built a road according to specifications furnished by the town and acceptable tO' it. The compliance with that agreement on the part of the defendant extinguished any liability it may have been under to restore the town’s highway. What it paid later was a mere gratuity. If any duty rested upon it under its charter, that duty was discharged when it furnished the town with a substitute highway of its own choosing and satisfactory to the town. No duty to continue to^ maintain the highway rested upon defendant as long as it did not use its dam in an unauthorized manner, and there is no claim that it has been maintained at a higher level or used in a manner not authorized by its charter. That being so, a court of equity cannot by injunction or otherwise restrict the legislative grant. [508] By the Court. — Judgment reversed, and cause remanded with directions to dismiss the complaint upon the merits. . A motion for a rehearing was denied, with $25 costs, on January 12, 1926.