Butler v. City of Milwaukee , 15 Wis. 493 ( 1862 )

By the Court,

Dixon, C. J.

Few cases seem plainer to me 1 . than this. I think the common council had no right to contract with the plaintiff in the manner specified, and however meritorious his services and beneficial to the public, that their employment created no legal liability upon the city. It is conceded that no such power is expressly given by the charter, and that if it exists, it comes as an incident to some other power which is, or by virtue of the grant of “ the general powers posessed by municipal corporations at common law.” Laws of1852, chap. 56, sec. 1. It is a sufficient answer to the first position, that counsel is unable to put his finger upon this dr that provision of the charter, and say the power claimed is necessary to the exercise of the power here or there conferred, or to the performance of this or that duty enforced upon the common council. Implications of authority in bodies corporate, more especially those created for municipal purposes, should be clear and undoubted, and the party claiming through them should be able to point them out with certainty and precision. The fact that he cannot, is conclusive that they do not exist. Mere general arguments drawn from the convenience of possessing a power under certain circumstances in case of emergency — conclusions that, if possessed, it might be beneficially exercised, are very dangerous sources of corporate authority. It was with such that the counsel was obliged to present this case. Implications spring from the necessities of some power actually conferred, and not from notions of what would be convenient or expedient under particular circumstances. Hence this case differs materially from that of Miller vs. Milwaukee, 14 Wis., 642. There the common council were charged with the care and preservation of the streets, alleys and public grounds, and to discharge that duty it became necessary that the site of the city itself should be preserved. But here was no such necessity! The common council was not charged with the execution of the general criminal law of the state, or any other duty making it necessary for them to employ the plaintiff in the prosecutions mentioned. The duty of prosecuting public offenders and bringing them to punishment, is devolved by law upon other officers, especially appointed for that purpose, and if they failed to perform it, it was no affair of the common council. It did not enlarge their powers, or authorize them to provide for such prosecution at the expense of the city. The fact that the city had suffered by the crimes alleged to have been committed, did not vary the question. The object of the prosecutions was not to return to the city that which it had lost, but to vindicate the public justice of the state. The city had not, therefore, any direct interest in the proceedings, more than pertains to all others of a like character. In common with every other municipal corporation, it was interested in the due administration of the criminal law, and the preservation of peace'and good order within its limits; but without authority expressed or implied, it could not interfere with prosecutions of that nature. They must be left to the proper law officers of the government. Cities and towns are often interested in, and benefitted by, public improvements, such as rail roads, canals and harbors, and it might easily be demonstrated that it would be politic and wise for them to engage in their construction, but no one would argue from that, that they might do so without specific legislative authority. To prove the expediency of a power does not prove its existence. Neither does the benefit resulting from an unauthorized act show that it was not a usurpation.

It might be a difficult task to enumerate “ the general powers of municipal corporations at common law,” but lean •find no difficulty in saying what I think is not one of them, and that is the public prosecution of offenses of the kind mentioned in the complaint, especially when ample provision is otherwise made by law. If the common council might engage in the prosecution of these, and charge the city with the expense, no reason is perceived why they may not do the same as to all others committed within the corporate limits, and thus double the burdens of the citizens.

The doctrine that a corporation may exceed its powers and still he hound upon the principle of an estoppel — that it shall not allege its own wrong to avoid a just responsibility to an innocent third person. — I think more strictly applicable to private than public corporations. The acts of the officers of the latter more nearly resemble those of public agents, which are not binding unless authorized. At all events I do not think the corporation should be bound in cases like this, when it receives no direct pecuniary equivalent for the sum demanded.

Judgment affirmed.