City of Milwaukee v. State

214 N.W. 820, 193 Wis. 423, 54 A.L.R. 419, 1927 Wisc. LEXIS 308
CourtWisconsin Supreme Court
DecidedJune 20, 1927
StatusPublished
Cited by34 cases

This text of 214 N.W. 820 (City of Milwaukee v. State) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Milwaukee v. State, 214 N.W. 820, 193 Wis. 423, 54 A.L.R. 419, 1927 Wisc. LEXIS 308 (Wis. 1927).

Opinion

Doerfler, J.

Millions of dollars are involved in the decision herein. The realization of a fond dream of a municipality to construct a gigantic municipal harbor also depends upon the outcome; but over and above all, we are called upon to determine the right of Wisconsin, as a sovereign state of the Union, to cede to the metropolis of the state property held in trust by it, to promote the interests of navigation and commerce, with an authorization to convey a part of this trust property so ceded to a private industrial corporation, in order that the municipal project can be accomplished. The *428 gravity .of the main issue thus outlined is accentuated because it presents a new phase of the so-called trust doctrine which has not heretofore directly come before this tribunal for adjudication, although it has frequently been decided by the supreme court of the United States and by the tribunals of last resort in a large number of the states. It is therefore with a profound sense of responsibility that we approach the consideration of the issues involved.

All litigated cases must be decided according to law, either statutory or the common law. Where the legislature has enacted statutes within the proper field of legislation and not violative of the provisions of the federal and state constitutions, its edicts are supreme, and they cannot be interfered with by the courts; and where legal principles have been laid down by the courts in the proper exercise of their judicial functions and have continued in force for such a period as to create vested rights, such principles are clothed with a force possessed by a statutory enactment, and should be recognized and applied until the law-making body sees fit either to abrogate or modify them. The courts are no respecters of individuals, as such, whether they be powerful from a material standpoint, or are humble. As the immutable laws of nature cause the rain to fall upon the rich and the poor alike, the powerful and the weak, so it is the aim of the courts to emulate that highest law in the administration of justice; and while, as has been said, courts are oftentimes overawed by the enormity of the issues, their solution, as in minor cases, depends upon the application of laws, principles, and sound logic.

The State of Wisconsin was carved out of the great Northwest Territory ceded to the United States under the Ordinance of 1787. This ordinance in part contained the following provision:

“The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and forever free, as well to the *429 inhabitants of the said territory as to the citizens of the United States, and those of any other states that may be admitted into the confederacy, without any tax, impost, or duty therefor.”

This provision of the ordinance, in substantially the same language, has been incorporated into our constitution, and forms a part of what is known as sec. 1, art. IX, thereof. It is upon this provision of the ordinance and of the constitution that the trust doctrine laid down by the decisions of this court and many of the other courts of the country has found its inception.

The State of Wisconsin is bounded on the north by the waters of Lake Superior; on the east by those of Lake Michigan ; on the west by the Mississippi river; and included within its confines are several thousand inland lakes and rivers. The vastness of the domain, therefore, ceded to the State by the United States pursuant to the ordinance can readily be appreciated; and it is thus not surprising that from the earliest day of the adoption of our constitution, down to the present day, numerous questions have arisen involving the rights of the State, of the federal government, and of individuals in and to these waters and to the title of the lands thereunder, and this court, as will appear from its decisions, has conscientiously and thoroughly considered the issues involved and has declared the principles, many of which are so firmly intrenched in the jurisprudence of this State as to be binding upon us for all time, unless legally abrogated or modified by the legislature in its proper field of legislation.

A number of the opinions of the court at an early date were rendered by such giants in the law as Chief Justices Ryan and Dixon, and at a subsequent period by the late Justice Marshall. In the realm of jurisprudence in this country, no jurist, in our humble opinion, occupied a higher position than did Chief Justice Ryan. He was a thorough student, conscientious and industrious, and learned in the law, and his logic and diction were so profound that his *430 opinions for years were held up to students of the law in the large universities of this and other countries as models. In the case of Diedrich v. Northwestern U. R. Co. 42 Wis. 248, and in Cohn v. Wausau Boom Co. 47 Wis. 314, 2 N. W. 546, this court, by Ryan, C. J., established as the law of this State most of the legal principles which are involved in and are determinative of the issues of this case, and special consideration will be given to these decisions further on in this opinion.

Within a short distance of the harbor entrance built by the federal government there is a confluence of the three rivers flowing through the city, viz. the Milwaukee, the Menomonie, and the Kinnickinnic. These rivers have been dredged from the point of confluence to an extent necessary to make them navigable by large craft arriving in and leaving from the port of Milwaukee. Docks have been constructed on both sides of these rivers to facilitate the loading and unloading of the boats, and along and abutting these docks have been erected and maintained many of the largest manufacturing and distributing plants in the city. The city itself has a population of over half a million of people, and there is a large urban population adjoining the city on three sides, amounting to considerably over 100,000, which, together with the city proper, constitutes what is known as the Greater Milwaukee. The city is bounded on the east by the Milwaukee bay, a natural harbor, protected on its westerly, northerly, and southerly shores by high bluffs,, and this bay has been pronounced by many as one of 'the finest harbors in the United States, comparable in its beauty only by the Bay of Naples. The lake itself is a body of water about 350 miles in length, and has an average width of about eighty miles. This large body of water, connected as it is with the other Great Lakes, was designed by nature as an ideal avenue of commerce for both state and interstate traffic.

The Great Lakes are not as a rule suitable for navigation *431 by small craft. In the early days, when practically the only inhabitants of the lands bordering these lakes were the Indians, they served the purposes of navigation in a very limited and restricted sense. For many years after Wisconsin was settled by the white race, navigation on these lakes was largely confined to small boats, and the time is still within the memory of most people where hundreds of these crafts, with their white sails spread to the breezes, were everywhere visible from the shores.

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Bluebook (online)
214 N.W. 820, 193 Wis. 423, 54 A.L.R. 419, 1927 Wisc. LEXIS 308, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-milwaukee-v-state-wis-1927.