Adams v. City of Beloit

• Citation: 105 Wis. 363,81 N.W. 869
• Parties: ADAMS v. CITY OF BELOIT ET AL.
• Decision Date: 02 February 1900
• Court: Wisconsin Supreme Court

105 Wis. 363

81 N.W. 869

ADAMS

v.CITY OF BELOIT ET AL.

Supreme Court of Wisconsin.

Feb. 2, 1900.

Appeal from circuit court, Rock county; John R. Bennett, Judge.

Action by Ella D. Adams against the city of Beloit and others to set aside certain paving assessments against plaintiff's property, and also certain improvement bonds issued upon such assessments. From a judgment sustaining the assessment, plaintiff appeals. Affirmed.

This is an equitable action brought to set aside certain paving assessments against the plaintiff's property, in the city of Beloit, and also certain improvement bonds issued upon such assessments. The city of Beloit was a city organized under a special charter prior to the passage of the general city charter law. On the 2d of July, 1895, the common council of the city, by an ordinance which was passed with all due formality, attempted to adopt certain parts of chapter 326, Laws 1889, as amended by chapter 312, Laws 1893, and chapter 320, Laws 1895, being what is known as the “General City Charter Law.” Said ordinance included, among other provisions, sections 172, 173, and 175 to 200, inclusive, of said general city charter law; the sections so adopted being those sections relating to public improvements, and the levying of assessments therefor. By the terms of said ordinance, the sections so adopted were adopted in lieu of the provisions of the special charter of the city upon that subject. In the year 1896 the common council, acting under the provisions of the general charter law so formally adopted, caused to be graded, curbed, and paved certain streets in said city, including Bridge street, and made assessments therefor against the adjoining property, and issued improvement bonds therefor. Such proceedings were in all respects regular under the provisions of the general city charter law, but were not in accord with the special charter provisions, because no petition for such paving was ever made. It appeared that in 1868 and in 1883 said street had been constructed to conform to the grade then existing, and graveled, as required by the common council, and that special assessments had been made therefor against the plaintiff's property, and had been paid; the said property so assessed being the same property against which the assessments now complained of were made. The court found the assessments valid, and the plaintiff appealed.

Cassoday, C. J., dissenting.

This is an equitable action brought to set aside certain paving.Ruger, Norcross & Ruger, for appellant.

John C. Rood and W. A. Jackson, for respondents.

WINSLOW, J. (after stating the facts).

The questions arising in this case are purely questions of law. The constitution of Wisconsin prohibits the enacting of any special or private law “incorporating any city, town or village or to amend the charter thereof” (Const. art. 4, § 31), and further provides that general laws shall be provided for such purpose, and that such general laws shall be “uniform in their operation throughout the state” (Id. § 32). In order to carry out these constitutional provisions, a general charter law was passed in 1889 (chapter 326, Laws 1889), which, with its subsequent amendments, now appears as chapter 40a of the Revised Statutes of 1898. This general charter act originally divided all cities which might adopt it or be organized under it into three classes, according to population, and provided a complete charter for cities of each class. It also provided that any city existing under special charter might adopt the act by vote of three-fourth of the members of its common council. Subsequently, by amendatory acts, the number of classes of cities was changed from three to four, based also on population, and cities under special charters were divided into like classes. By section 72 of chapter 312 of the Laws of 1893, it was further provided that any city organized under the special charter might “adopt the provisions of any special chapter, section or subdivision of any section of this act [chapter 326, supra], and may exercise any power or franchise hereby conferred upon cities organized under this act in addition to, or in lieu of the provisions of its special charter,” by ordinance to be adopted with certain formalities. This provision was re-enacted by section 1 of chapter 320 of the Laws of 1895, and now appears incorporated in section 926, c. 40b, Rev. St. 1898. The city of Beloit was a city incorporated under a special charter, and it attempted, with all the required legal formalities, to take advantage of this last-named provision, and to adopt the entire scheme contained in the general charter for making street improvements in lieu of the provision of its special charter; and the first and great question in the case is whether the law which purports to authorize such adoption is a valid and constitutional law. The contention of the plaintiff is that the legislature itself could not amend the charter of the city of Beloit alone; that such an amendment, if attempted to be made, would be a special or private law, not uniform in its operation through the state, and hence void, under the constitutional provision above quoted; and that the legislature cannot delegate to the common council of a city a power which it cannot exercise itself. Upon the other side the contention is that the law is a general law, complete in itself upon the statute books, and that it is not rendered special because it is to become effective in a certain locality upon the determination of some fact by some local authority or body. That the question is of the utmost importance is apparent. This provision has now been upon the statute books for more than six years. That it has been acted upon by numerous cities incorporated under special charters admits of no doubt. Several cases involving the validity of such attempted action have already been before this court. Gilbert-Arnold Land Co. v. City of Superior, 91 Wis. 353, 64 N. W. 999;McCue v. City of Waupun, 96 Wis. 625, 71 N. W. 1054;Herman v. City of Oconto, 100 Wis. 391, 76 N. W.364, and in one of these cases (McCue v. City of Waupun) certain provisions of the general charter law were held to have been a part of the charter of the city by an ordinance of adoption, while in the other cases it was held that the adoption was not effective for other reasons. It is true that in none of these cases was the question of constitutionality raised or argued, and hence they are not authority upon that question, but they are simply cited as tending to demonstrate the fact that the provisions for adoption of parts of the general charter have been used by numerous cities. Doubtless, there have been contracts made, property rights acquired, and liabilities incurred in many municipalities upon the faith of such adopted provisions. These considerations are not very weighty, perhaps, and cannot operate to make an unconstitutional law constitutional, but they ought certainly to incite to great care in the consideration of the question, and to require that the alleged unconstitutionality be made very clear. Similar constitutional provisions have been adopted in many states for the evident purpose of repressing the flood of special legislation, and to secure a measure of uniformity, instead of almost infinite diversity, in the fundamental laws governing municipal corporations. Under such provisions there has been no lack of adjudications upon questions quite similar to those involved here, but it must be confessed that the decisions are not by any means harmonious. Some propositions, however, are quite well established, not only by the great weight of judicial authority in other jurisdictions, but by direct adjudication of this court. Among these propositions which are not now to be doubted are the following: First. A law otherwise unobjectionable is not invalid simply because power is given to some local officials or body of electors to determine the existence of a fact upon which it shall go into effect in the given locality, if the law itself is a complete law upon the statute books. This is not the delegation of power to make a law, but simply the delegation of power to determine or ascertain some fact upon which the action of the law which is complete in itself is to depend. State v. O'Neill, 24 Wis. 149;Smith v. City of Janesville, 26 Wis. 291;Slinger v. Henneman, 38 Wis. 504;Dowling v. Insurance Co., 92 Wis. 63, 65 N. W. 738, 31 L. R. A. 112;In re North Milwaukee, 93 Wis. 616, 67 N. W. 1033, 33 L. R. A. 638. Nor does such option feature make it a special law. Black, Intox. Liq. § 45, and the cases cited in note. Second. It is not necessary, in order to make a law affecting municipal corporations a general law, that it should affect every city in the state. Cities may be classified, and, if the classification be proper, laws may be passed affecting only a single class, and such laws will be general laws, and uniform in their operation throughout the state, within the meaning of the constitution. Johnson v. City of Milwaukee, 88 Wis. 383, 60 N. W. 270. Third. The constitutional amendment in question having been made after large numbers of cities had been organized under special charters, and not providing for compulsorysurrender or superseding of such charters, there resulted, ex necessitate, a constitutional division of the cities of the state into two classes, namely, those continuing to operate under special charters, and those organized under the general charter law. Johnson v. City of Milwaukee, supra. Fourth. Classification by statute must be based upon some substantial and real differences of situation. It must be a distinction germane to the purpose of the law. It must not be based on existing circumstances only, so as to preclude additions to the class, and any law relating to the class may apply to all members of the class. Johnson v. City of Milwaukee, supra.

Now, under these admitted legal principles,...