The Telegraph-courier. [volume] (Kenosha, Wis.) 1888-1946, 1914-11-05
NO UNLAWFUL AUTHORITY
Court Holds City Acted Wholly Within
It's Rights in Fixing the Grade For
Lake Avenue and Injunction Secured
by the Plaintiff Must be Vacated.

Belden in the circuit court this morn
ing when he vacated the injunction is
sued against the city on the petition of
William Ell, Schroeder. The plaintiff
had sought to interfere with the ac-
ton OF the city in forcing him to bring
to grade set by the city sidewalk
in front of his property son Lake
avenue. So much publicity had been
given the case in the past few years
that it has attracted wide attention.
In his decision Judge Belden decides
every point raised in the case in favor
Of the city and the decision will be a
precedent for action along similar
lines by the city in the future The
decision goes into the right of the city
to make such public improvements.
In it Judge Belden says:
:" Acting for the state as the
sovereign power, common councils of
cities are, for reasons of local munich
pal and public policy, and convenience
of administering government, given
authority to establish streets, grades
of streets and sidewalks, power to reg
ulate and control the same for the
safety and convenience Of the public
and power to determine what consti-
tutes, and to remove, encroachments,
distractions and nuisances. These are
legislative powers, delegated by the
state to the municipality.
The rule of law is so well settled
that no authority need be cited to sup
port its statement, that the courts will
not interfere with or attempt to con-
tlol or revise the exercise of such legis-
lative powers or the discretion neces-
sary to the proper exercise thereof.
1t is. the exclusive province of the
municipal authorities, and not Of Judi
cial tribunals, to determine what i'm
provements Shall be made in the city
streets; and where the city has the
power to grade streets, as has this de-
PENDANT, the courts will not inquire in
to the necessity of the exercise of that
power, nor whether a particular grade
adopted or particular mode Of exc
cutting the grade is judicious.
In short, discretionary powers of
municipal authorities cannot be iudici-
ally interfered with or questioned ex-
cept where the power is exceeded or
fraud is imputed or shown, or there
IS manifest invasion of private rights
None Of the exceptions appear in this
case.
1t is true that the abutting lot own
er owns to the middle of the street,
but always subject to the public use,
and how far and under what conditions
such public use shall be enjoyed, and
what conditions shall or shall not exist
to render the public use convenient
and safe, must necessarily be determin-
ed by the municipal authorities.
Authority to lay out, open, grade,
and otherwise improve the streets and
keep them in repair, power invariably
granted to municipal authorities, I'M
doubtedly empowers the city to estab-
hsh the grade of streets and to require
the owners Of lots in constructing side
walks to make them conform thereto,
even though the destruction of trees
result. Of course every effort should
be made to preserve trees. It would
seem in the instant case that a gradual
grade of plaintiff IS and adjacent side
walks might be made so as not to en-
danger plaintiff s trees, but I think
there can be no doubt that thes exercise
of municipal authority as to the grade
of the sidewalk in question is legisla-
tive function and that the manner of
exercising it is discretionary with the
defendant city and cannot be inter
fered with by courts, there being no
question of fraud or that in the exer-
else of such authority the city ex-
ceeded its power
That the courts will not interfere
with the proper exercise of municipal
legislative authority and discretion is
the only safe rule, for if one person
may use street or portion thereof for
his own private purposes, or in man
ner suiting his personal convenience or
wishes, so may all, and if it were left
for court or jury to determine in
every case how far an obstruction or
departure from the general use of the
streets or sidewalks, and the grades
thereof, might encroach, obstruct or ex-
ist without being nuisance, encroach-
ment, obstruction or unsafe and incon-
venient for public use, there would be
no certainty in the law, or in munich
pal administration, and what might in
any single instance appear to be of
small consequence would soon become
confusion and burden.
In Chase, vs.. Oshkosh, 81 Wis. 313,
the supreme court held that where the
city charter gives the common council
power, when it deems it expedient,
to control and regulate the streets, and
to remove and abate any obstruction