Ricketson v. City of Milwaukee

144 N.W. 1101, 155 Wis. 327, 1914 Wisc. LEXIS 7

• Court: Wisconsin Supreme Court
• Decided: January 13, 1914
• Status: Published

Opinion

KeewiN, J.

It is insisted by appellant that tbe sidewalk in question was buiit under sec. 16, cb. VII, of tbe city charter, being cb. 184, Laws of 1814 as amended, while on tbe part of tbe respondents it is insisted tbat it was built under sec. 17, cb. VII, of the city charter. Tbe complaint clearly shows tbat tbe provisions of sec. 17 were not complied with, in tbat no resolution was passed to the effect that tbe sidewalk was in a dangerous condition, and moreover tbat the wall?; was not built at a fair price, and that' at tbe time the-sidewalk was built tbe plaintiffs were in fact maintaining in-front of tbe lots in question a good, safe, and sufficient' sidewalk, in repair and at proper grade and of tbe required size, and free from any danger to persons passing over it. But tbe appellant insists tbat tbe board of public works bad tbe right, under sec. 16, ch. VII, of the city charter, to construct a new sidewalk of different material without any resolution declaring the walk to be' in a dangerous condition as provided in sec. 17, and therefore the complaint fails to state a cause of action.

The contentions made involve the construction of said secs. 16 and 17. We are asked by counsel for appellant to construe sec. 16, since it is important that the city should be informed .of its right's in view of the extensive sidewalk improvements which'are. constantly going on in the city.

If the ¿ction of the board was authorized under either section the complaint states no causé of action, and the demurrer must be sustained. If the board of public works has the right to take up a wooden sidewalk which is in good condition and rfepair and put down a' cement walk and charge the expense of such new walk to abutting owners, then the complaint states no cause of action. . <

There can be no doubt that the board had no jurisdiction to'build the walk under sec. 17, because that section requires, as a condition precedent to the building of the walk, a resolution as therein provided, and the complaint alleges that no such resolution was passed. It. therefore becomes necessary to inquire whether the allegations of the complaint negative the right of the board to build under sec. 16. True, no resolution is required under sec. 16, and the question arises whether the power and authority of the board to take up existing walks and build new walks is absolute and without' limitation, or whether the board has the power to rebuild or repair only in case the walk is out of repair or defective.

Sees. 16 and 17, ch. VII, as they appear in the charter of the city of Milwaukee (ch. 184, Laws of 1874), have been changed by amendment. Sec. 16 as originally written in the charter provides for keeping sidewalks in repair, and that it shall be the duty of the board of public works, unless otherwise provided by ordinance, to cause the streets, alleys, and sidewalks in tbe city to be kept in proper repair and in a cleanly and wholesome condition, and for that purpose it is empowered to employ tbe necessary labor or contract pursuant to law for sucb cleaning, and tbe expense of cleaning and repairing, except of alleys and sidewalks, is to be paid out of tbe general fund; and tbe board is also empowered to cause sidewalks to be repaired or to be taken up and relaid witb part new and part old materials of tbe kind previously laid down, and to assess tbe expense thereof against tbe lot or land in front of which sucb work may be done. Tbe section further provides for notice to tbe owners that the repairs are necessary and describing tbe work to be done, and that tbe persons interested can make such repairs within a certain time, and that after sucb time sucb work will be done by the board of public works and tbe expense assessed against tbe lots, and contains other provisions for tbe doing of tbe work. Sec. 17 as originally written in tbe charter provides for repairing or remaking sidewalks in case they are in a dangerous condition and so declared by resolution without notice or other proceeding.

See. 16 was changed by tbe legislature in 1875 by providing that the expense of cleaning and repairing, except of sidewalks, shall be chargeable to and paid out of tbe fund of tbe ward in which sucb work is done.

Sec. 17 was amended by sec. 5, ch. 311, Laws of 1876, by inserting after tbe word “remade” in tbe fifth line of said section tbe words “or on account of being above or below the grade established by tbe -common council.” Sec. 21 of ch. 324, Laws of 1882, amended said sec. 16 by providing that urgent repairs of sidewalks which can be made at a cost not exceeding $3 for any fifty lineal feet' of said walk may be made without giving any notice and without any previous order or resolution, and tbe expense be charged to the lots, and further amended tbe section by not limiting tbe material used in relaying of sidewalks to tbe kind previously laid down.

Tbe next amendment was by- cb. 388, Laws of 1889, vol. 2, p. 892, which amendment left said sec. 16 as it now stands. The history of sec. 16 from its enactment in 1874 down to tbe present time shows quite clearly that tbe primary power conferred upon tbe board was to keep streets clean and sidewalks in repair. It provides that it is made tbe duty of tbe board, with the consent'of tbe aldermen of tbe proper ward, unless otherwise provided by ordinance of tbe common council, “to cause tbe streets, alleys and sidewalks in tbe city to be kept' in proper repair, and in a cleanly and wholesome condition. at all times . . . ; and tbe said board is also hereby empowered to cause sidewalks to be repaired, or to be taken, up and relaid with new materials or with part new and part old materials. ...”

It seems quite clear that this section confers no power to interfere with a sidewalk unless it is out of repair. Manifestly tbe power 'given to take up and relay with new material or with part new and part' old material refers to walks out of repair, and does not empower tbe board to tear up a sidewalk which is in good repair and replace it with a new walk. So it follows that if tbe sidewalk was in good repair tbe board bad no power to tear it up and replace it by a new walk and charge tbe expense to tbe lots'in question.

As we have seen; sec. 16 as it existed before amendment 7 I • . , required notice to the lotownérs and opportunity to repair before tbe board could act, and provision for emergency was made in sec. II in case tbe walk was in a dangerous condition. By amendment slight repairs were allowed under sec. 16 without notice to lotownérs, and later amendment swept away all provisions as to notice and left sec. 16 in its present condition and tbe boqrd free to repair and relay walks without notice. But there is no intimation in tbe section as it stood originally or by amendment indicating that any power was conferred upon tbe board to build a new walk when tbe existing walk was in good repair. Doubtless a very broad discretion is vested in tbe board in determining wbetber a walk is in good repair or not'. Rut in tbe instant case tbe complaint alleges among other things that tbe sidewalks were “good, safe and sufficient sidewalks, in repair and at proper grade and of required size, free from any danger to persons passing over the same.” These allegations are admitted by tbe demurrer and show that' tbe board bad no power to build tbe walks in question, and hence tbe complaint states a good cause of action and the demurrer was properly overruled.

We are cited by counsel for appellant to Abbot v. Milwaukee, 148 Wis. 22, 134 N. W. 136, as being in point. True, that case deals with said secs. 16 and 17, cb. VII, of tbe city charter and bolds that no narrow construction should be given them, but tbe point here involved was not involved there. It was there held that a separate contract was not required to be let for each sidewalk to be rebuilt, but' that tbe work might be done under an omnibus contract, and also that a defective wooden walk might be replaced with a cement walk; and further that under said sec. 17 tbe resolution need not specifically state that it is “the judgment of the board” that such dangerous condition exists, nor is it' essential that the board should personally examine the sidewalk condemned.

By the Oourt.- — The order anpealed from is affirmed.

TimliN, J., dissents.