Milwaukee Electric Railway & Light Co. v. Wisconsin Ex Rel. City of Milwaukee

Background

The City of Milwaukee sued to force a street railway company to pave the portion of Center Street between its tracks and one foot outside the rails. The city adopted an ordinance on November 8, 1915, ordering asphalt over a concrete foundation for that railway zone. The company relied on a 1900 franchise provision saying it must keep the roadway between the rails in repair with the same material the city last used, unless the parties agreed otherwise. Lower state courts sustained the city and ordered the company to repave.

Reasoning

The Court considered whether the 1915 ordinance violated the Constitution by impairing a contract or by depriving the company of property without due process. The Court accepted that a contractual duty to repave existed from the franchise, and it held that the city could reasonably require asphalt on a concrete foundation rather than macadam. The Court rejected the company’s claim that its poor earnings relieved it of the duty, and it refused the company’s equal-protection argument based on later differing state decisions.

Real world impact

The ruling affirms the city’s power to enforce its paving ordinance and requires the railway company to repave the railway zone with asphalt on concrete. The Court noted the company could seek rate relief from the state railroad commission, but low earnings alone do not excuse obligations assumed or imposed in the ordinary exercise of municipal regulation. The judgment directing the company to pave was therefore affirmed.

Dissents or concurrances

Two Justices, Pitney and McReynolds, dissented; the opinion contains no detailed account of their separate reasoning.