Iowa County democrat. [volume] (Mineral Point, Wis.) 1877-1938, 1900-03-01
Madison, Feb. ~.

down a decision quashing the con-
tempt proceedings against the mayor,
city clerk and twenty-five aldermen OF
the city of Milwaukee for passing and
approving the street railway ordinance
of that city after they had been en-
Joined from doing SO by the superior
court The court granted a
peremptory writ of injunction re-
straining Judge Ludwig from further
proceedings in the matter. While the
decision relates only to the Schwartz
berg case. the attorneys for the street
railway company claim that it effec-
tually disposes of all the injunction
suits, as under the decision they have
no ground on which to stand. The de
cision holds that ii was a case where
a taxpayer had no right to bring
action, which must have been in the
name of the state, and that therefore
there was no jurisdiction and an in
junction could not issue. The court
also holds that the passage of the ordi-
nance was Legislative enactment and
the court had no right TO interfere, the
colrt, however. not passing on the act
Of the council. The opinion was writ
ten by Chief Justice Cassoday, and the
court is unanimous in its decision.
The conclusion OF the decision fol
lows:
Counsel contends that the proposed
ordinance not only grants corporate
rights and franchises but will make
when accepted an irrevocable contract.
We do not feel called upon in this
case to determine whether that is so
or not If the ordinance goes beyond
and is outside of the authority given
by the statutes, then to that extent it
would be invalid and hurt none. If,
on the contrary. it is within the au-
thority given by the legislature and
the legislation is valid, then it is not
perceived upon what ground a court
of equity can interfere at the suit of a
private party Constituting the statutes
he court has held that the common
council may from time to time change
the license fees to be paid by such COM
panies Notwithstanding the amount OF
the fee was originally fixed by the or
dinance granting the franchises. The
power so vested in the common council
is. within the limits prescribed, a dis
rcetionary power and we must hold
hat court Of equity has no jurisdic-
ton to restrain the comon council for
exercising such discretion. a court of
equity mas no place in the chamber of
the common council to supervise or SUI
perintend the proceedings Of that body
while engaged in the exercise of legiS-
latve or discretionary functions. The
common council of Milwaukee, like
other legislative bodies and courts, is
liable to commit errors which may be
fatal To its action, but that does not
take away its power to act Counsel
for the defendant admitted upon the
argument that the common council had
power to pass the ordinance ii 1t had
proceeded regularly, but a court of
equity has no power to prevent such
action merely because the mode or
manner of its procedure Is irregular.
70 do so would be to stop the machin-
cry OF the city government. 1t Is not
question of the propriety, or eXpedi-
ency or wisdom Of the proposed action.
but question of the power Of the
common council and the jurisdiction Of
the court The peremptory writ of
prohibition IS awarded
Another important decision was that
in the case of NJ. w. Kruger ct. al, APP
pellants, vs.. Wisconsin Telephone Co.
respondent, which was reversed BY
this decision the court holds that a
property owner can recover damages
for telephone and telegraph poles
placed in front of his property.
The court refused to grant new
trial to Christian Miller, serving life
sentence in prison for the murder OF
Willard Taylor in Eau Claire April 10,
1898. One ground on which new trial
was claimed was the district attorney :
language toward the prisoner in court,
but the supreme court, while critics.
ing the district attorney, said the evil
dence showed there was no doubt Of
Millers guilt. and refused a new trial.
The decision Of the superior court Of
Milwaukee in the case Of John Gatzow
against H. G. a. Buening and others
was reversed This was the famous
liveryman's fight that caused the body
of dead baby of Gatzow TO be taken
from a hearse and returned to the
home. because the undertaken was a
non-union man Schubert and Buen-
ing were members Of the liyerymen )
association that had a rule which pro-
hibited any member from furnishing
hearses or carriages To Iiyerymen who
were not in the union When Gatzow' !
child died he went I'd 4 man named
Nieman. who had been expelled from
the union. Nieman was to conduct
the funeral He told Gatzow he had
no white hearse. and could not get one
from the other ilyerymen Then they
agreed that Nieman should telephone
I'D Buening. who conducted a union
stable. and secure heafse for his
friend Bnening agreed to send II at
the time and did. under the represen-
tation that the person who wanted the
ilearse vas the friend Of q fellow