State ex rel. City of Milwaukee v. Milwaukee Electric Railway & Light Co.

Kerwin, J.

The petition of the respondent for a writ of mandamus is based mainly upon- the ground that the respondent is entitled to have the appellant pave the zone in question with asphalt upon a concrete foundation under the provisions of an ordinance duly passed on the 8th day of November, 1915, by the terms of which the appellant was “ordered and directed to do away with the bad condition of its railway zone on Center street from Teutonia avenue to Seventeenth street, by paving’ the same with standard asphalt upon a concrete foundation, all of the same kind, character,, and specifications as that recently laid by the city of Milwaukee outside of the railway zone of the railway company therein.”

After refusal of appellant to comply with the said ordinance of November 8, 1915, the alternative writ of mandamus was obtained and proceedings had which resulted in the order appealed from.

Counsel for appellant complain of the order below upon the following grounds: (1) That the appellant’s rights and duties in respect to paving repairs are fixed by the ordinance of January 2, 1900, under which the duty to keep the track zone in repair is limited to a duty to keep in repair with the material last used by the city in paving the track zone. (2) That the ordinance of November 8, 1915, cannot be sustained as a reasonable rule or regulation under sec. 1862, Stats., because (a) it is not a rule or regulation within the meaning of that section; and (b) if the matters covered thereby might be the subject of a rule or regulation, the ordinance would be unreasonable. (3) The ordinance constitutes a con *235 tract limiting the appellant’s duty, and the ordinance of November 8, 1915, is void because of the attempted impairment of contract. (4) The enforcement of the November 8, 1915, ordinance or the impairment of the January 2, 1900, ordinance would deprive appellant of property without due process of law and deny it'the equal protection of the laws, in violation of sec. 1 of art. XIV of the amendments to the constitution of the United States.”

In the so-called Walnut street case (State ex rel. Milwaukee v. Milwaukee E. R. & L. Co. 151 Wis. 520 , 139 N. W. 396 ) the 1900 ordinance was construed, and it was held that such ordinance applied to all streets, but that former ordinances were still in force so far as applicable in addition to the ordinance of 1900.

It is clear from the rulings of this court that a duty to keep “in proper repair,” Without qualification, is broad enough to require paving and repaving with “the same material of which the street is composed.” ' State ex rel. Milwaukee v. Milwaukee E. R. & L. Co., supra; Madison v. Southern Wis. R. Co. 156 Wis. 352 , 146 N. W. 492 ; State ex rel. Milwaukee v. Milwaukee E. R. & L. Co. 157 Wis. 121 , 147 N. W. 232 ; State ex rel. Milwaukee v. Milwaukee E. R. & L. Co. 157 Wis. 139 , 147 N. W. 239 .

While counsel for appellant review the foregoing cases and attempt to distinguish them from the instant case, we think they rule the case at bar on all points.

It is strenuously insisted that the ordinance of November 8, 1915, cannot be sustained as a reasonable rule or regulation under sec. 1862, Stats. This contention is also ruled against appellant by the cases in this court above cited, and especially by Madison v. Southern Wis. B. Go. 156 Wis. 352 , 146 N. W. 492 , and State ex rel. Milwaukee v. Milwaukee B. B. & L. Go. 157 Wis. 121 , 147 N. W. 232 . It may also be observed that the January 2, 1900, ordinance adopted by the *236 city of Milwaukee contained in section 3 thereof the following reservation:

“All rights reserved or secured to said city by and under . . . the laws of Wisconsin relating to . . .. the use and. operation of all cars and tracks and everything connected with the exercise of the rights hereby or hereunder granted . . . are hereby reserved to said city the same as though this ordinance had not been passed, and the same shall extend and apply to all franchises hereby granted except as herein otherwise expressly provided.”

In the Madison Case (Madison v. Southern Wis. R. Co. 156 Wis. 352 , 146 N. W. 492 ) an ordinance of 1892 contained a reservation, “subject to all general provisions of statute law now in force and applicable thereto and to such reasonable rules and regulations respecting such streets and highways ... as the said council may from time to time enact.”

In 1910 the common council of the city of Madison passed an ordinance requiring pavement with asphalt upon a concrete foundation, and the November 8, 1915, ordinance of the city of Milwaukee, under which this suit was brought, required asphalt pavement upon a concrete foundation, the old material in each case before the passage of the latter ordinances being macadam. So the case at bar comes squarely within the rule of the Madison Case (Madison v. Southern Wis. R. Co. 156 Wis. 352 , 146 N. W. 492 ) and the Milwaukee Case (State ex rel. Milwaukee v. Milwaukee E. R. & L. Co. 157 Wis. 121 , 147 N. W. 232 ).

The Madison Gase meets the contention that the requirement of repair is legislative and regulative and not matter of contract. Page 379. The question of repair of streets is fundamentally a police-power proposition and cannot be contracted away. See cases above cited.

It is also argued that paving under the ordinance of November 8, 1915, will unreasonably reduce the earning capacity of the company below a reasonable return on the investment. This contention, even if true, does not reach *237 the question here, since the company can at any time apply to the railroad commission and have the rate made reasonable.

On the federal questions raised by appellant we have nothing to say further than that we feel satisfied no constitutional provision has been violated. Madison v. Southern Wis. R. Co. 156 Wis. 352 , 146 N. W. 492 ; Southern Wis. R. Co. v. Madison, 240 U. S. 457 , 36 Sup. Ct. 400; Milwaukee E. R. & L. Co. v. Railroad Comm. 153 Wis. 592 , 142 N. W. 491 , affirmed in Milwaukee E. R. & L. Co. v. Railroad Comm. 238 U. S. 174 , 35 Sup. Ct. 820.

It follows that the order appealed from must be affirmed. By the Court. — Order affirmed.