The Attorney General v. the City of Eau Claire and others

Summary

The court held chapter 333 of the Laws of 1875 invalid insofar as it authorizes the City of Eau Claire to build a dam across the Chippewa River: the power to construct the dam and the power to establish water works are distinct and independent, and the statute leaves the use of the dam — public water works or leasing the water power to private persons for manufacturing — wholly to the city's discretion, so the grant rests on no public use and cannot support the borrowing and taxation it provides for. The court also delimited its original prerogative jurisdiction: ordinary proceedings to restrain municipal undertakings or taxation belong to the circuit court, but an unauthorized encroachment on navigable waters, which the state holds in trust as common highways forever free, is a purpresture concerning the sovereign prerogative, and equity, once jurisdiction attaches, will give full relief including restraint of the tax levy. Because the information pleaded only a naked claim of power without an apparent intention to proceed, no writ issued; the attorney general was permitted to amend and renew the motion, which would be decided on the questions already argued.