Schultz v. City of Milwaukee , 49 Wis. 254 ( 1880 )

LyoN, J.

1. The injury of which the plaintiff complains was not caused by the insufficiency or want of repairs, of the street in which he was injured, and hence the action will not lie under section 1339, R. S., p. 415. If authorities are required to so plain a proposition, they may be found in the brief of the city attorney.

2. The complaint contains allegations sufficient to show a gross neglect of duty on the part of the city officials. The coasting or sliding down Poplar street in the manner and to the extent charged in the complaint was, while being indulged in, a grievous public nuisance, which the city authorities ought to have prevented or suppressed. But this duty is a public or police, rather than a corporate, duty, in the performance of which the corporation, as such, “has no particular interest,, and from which it derives no special benefit or advantage in its corporate capacity, but which it is bound to see performed in pursuance of a duty imposed by law for the general welfare of the inhabitants or of the community.” It was held in. Hayes v. Oshkosh, 33 Wis., 314, that a municipal corporation is not. liable for injuries caused by the failure of its officers and agents to perform such duties. In the opinion in that case, from which the above extract is taken, Chief Justice DixoN says that the question there presented “ is settled by authority as fully and conclusively as any of a judicial nature can ever be said to have been.” See, also, Wallace v. Menasha, 48 Wis., 79.

3. The learned counsel for the plaintiff say in their brief, that “ the complaint in this action is not founded upon the theory that the common council of the defendant city neglected to exercise the restraining power given by the charter, or enforce its police regulations, but solely upon the principle expressed in Little, Adm’r, v. The City of Madison, 42 Wis., 643.”

In Little v. Madison we construed the complaint as alleging that the city of Madison expressly granted a license to one Carr to give a bear show in State street, which was alleged to be, and in fact is, one of the principal streets of the city. It was charged that the injury complained of was caused by such bear show, exhibited there pursuant to such license. On demurrer it was held that the complaint stated a cause of action against the city. Although reference is made in the opinion by Mr. Justice Cole, to the fact that it was alleged in the complaint that the agents of the city knowingly and carelessly allowed one of its principal streets to become obstructed by the exhibition, yet the precise ground of the judgment in that case is, that if a municipal corporation, in the attempted exercise of any power conferred upon it by law, as to license shows, amusements and the like, exceeds its authority, and licenses the placing of a public nuisance in a street, or the unlawful and dangerous use of a street for any purpose, and an injury results therefrom, without negligence on the part of the person injured, the municipality is liable to respond in damages for such injury. The case goes no further, and could not without violating well settled principles of law.

It only remains to determine whether the complaint in the present case states a cause of action against the city of Milwaukee, within the rule of Little v. Madison. It does so if it is sufficiently alleged therein that the common council of the city, which body has authority under the city charter (chapter 4, § 3) to license amusements and to prevent the encumbering and improper use of the streets (sections 3, 13, 14), actually licensed the use of Poplar street for the unlawful purposes specified in the complaint. Otherwise, no cause of action is therein stated. Regarding all the averments of the complaint in that behalf, and considering also the improbability that the common council would, by deliberate affirmative action, attempt to authorize such an unlawful and dangerous use of the streets of the city, we are constrained to think that the word license, as used in the complaint, was intended to mean nothing more than that the city, its servants, agents and officers permitted Poplar street to be so used. In Little v. Madison the complaint specified the day on which the license was given.

If the common council did grant a license to any persons, or to the public generally, to use Poplar street as it was used, it is very easy to amend the complaint by alleging the fact in unambiguous terms. In its present form we must hold that the license mentioned in the complaint is the passive license of silence and acquiescence, and that the complaint charges nothing more than the omission of the officers or agents of the city to perform a public duty. For the consequences of such non-feasance, as we have already seen, the city is not liable to respond in damages.

It results from the foregoing views that the demurrer to the complaint should have been sustained.

By the Oourt. — -The order of the circuit court overruling the demurrer is reversed, and the cause remanded for further proceedings according to law.