Angelo v. R.R. Comm'n

• Decision Date: 10 January 1928
• Parties: ANGELO ET AL. v. RAILROAD COMMISSION.
• Court: Wisconsin Supreme Court

194 Wis. 543

217 N.W. 570

ANGELO ET AL.

v.RAILROAD COMMISSION.

Supreme Court of Wisconsin.

Jan. 10, 1928.

Appeal from a judgment of the Circuit Court for Dane County; A. G. Zimmermann, Judge.

Suit by W. B. Angelo and others against the Railroad Commission for an injunction. From a judgment of dismissal, plaintiffs appeal. Reversed.--[By Editorial Staff.]

Appellants, property owners on Lime Lake, Portage county, seek to enjoin the defendant, Railroad Commission, from acting under section 31.02(5), Stats. (chapter 410 of 1923), in conferring authority upon certain persons to take marl from the bed of such lake.

This lake covers some 59 acres, and from recitals in the record has been used for boating, hunting, and fishing. It was not meandered in the United States government survey, though its outlines were thereon sketched. The patents from the United States conveyed as land the entire area. There is no showing whether it is connected with waters flowing into Lake Michigan or the Mississippi, and the county map indicates that it has no apparent outlet.

November 5, 1924, the Railroad Commission, after a hearing at which plaintiffs appeared, by order granted to one Somers et al., upon their application, leave to dredge and take marl from the bed of said lake, upon conditions that said marl should be sold at not more than $1 per cubic yard; that such leave was not exclusive; was but for five years, the commission reserving full control over the manner in which such marl may be taken and distributed and the price thereof and over all conditions of such lease. It provided that “no compensation shall be paid to or received by the state of Wisconsin under this agreement.” No provision for compensation to plaintiffs or any riparian owners was made. It appears from the recitals in the application that the necessary equipment costs about $800 and the average cost for such removal is 70-80 cents per cubic yard.

The trial court affirmed in all things the said order of the defendant, Railroad Commission, and directed dismissal of the complaint.

From such judgment plaintiffs appeal.Buchanan Johnson, of Plainfield, and Goggins, Brazeau & Graves, of Wisconsin Rapids, for appellants.

John W. Reynolds, Atty. Gen., and Suel O. Arnold, Asst. Atty. Gen., for respondent.

Adolph Kanneberg, of Madison, and Herbert C. Hirschboeck, of Milwaukee, as amici curiæ.

ESCHWEILER J.

Appellants below, riparian owners on Lime Lake, challenge, as in violation of rights claimed to be secured to them under the Federal and Wisconsin Constitutions, the act of the Railroad Commission in granting power and authority to certain third persons to enter upon such a lake or body of water and remove marl from the bed thereof, to the commercial gain of such third persons, and over the objections of plaintiffs, and without compensation to them.

The main question upon which the parties stand or fall in this case is whether the Legislature was inhibited by constitutional provisions from enacting a statute created by chapter 410 of 1923, which, referring to the Railroad Commission, reads:

“31.02(5)--The commission, whenever consistent with public rights, is authorized and empowered to make contracts for the removal of any material from the bed of any navigable lake, to fix and determine the compensation to be paid to the state of Wisconsin for material so removed, and to enter into contracts, on behalf of the state of Wisconsin, for the lease or sale of such material, with such conditions as may be necessary for the protection of the public interests and the interests of the state of Wisconsin, provided that no such contract shall be made to continue for a longer period than five years.”

We shall determine this important question, involving as it does such a new and far-reaching public policy now, even though the judgment below must be reversed and the action of the Railroad Commission set aside because of a very plain failure on its part to comply with the direct mandate and an important condition of the statute.

[1] Assuming the validity of this law, nevertheless the Legislature has plainly declared therein that its administrative body, the Railroad Commission, though authorized and empowered to make contracts in the interest of the state, shall, in making such contracts for the removal of material from the bed of any navigable lake and as a part thereof, “fix and determine the compensation to be paid to the state of Wisconsin for material so removed.” Such provision is a prerequisite in any contract that the commission is authorized to make.

[2] The words used, “ compensation to be paid,” should be given their primary and ordinary significance and as used on such occasions. The word “compensation” often occurs in our Constitution, and has been held to be synonymous with “salary” (Milwaukee County v. Halsey, 149 Wis. 82, 86, 87, 136 N. W. 139); and this would certainly mean money, and, when in section 13, art. 1, Const., it is required that “just compensation” shall be given for private property taken for public use it means, of course, money. The word “pay” primarily and ordinarily means the use of money (Krahn v. Goodrich, 164 Wis. 600, 610, 160 N. W. 1072), and especially so when used in connection with an obligation owing to the government, as is pointed out in Oneida County v. Tibbits, 125 Wis. 9, 12, 102 N. W. 897, 899. Clearly, therefore, this above-quoted phrase connotes the idea of the use of money.

The further clause in the law providing that such contracts for lease or sale shall have conditions such as may be necessary for the protection of the public interests and “the interests of the state of Wisconsin” in no wise lessens or detracts from the absolute condition requiring money compensation to be paid.

[3] The possible lowering of the price for such material to the people of the state at large or to some particular class is surely not what is meant as the “compensation to be paid to the state of Wisconsin for material so removed.” The evident tenor of the statute is that the state is disposing of that which is of value, and upon which a price or money value to it can be placed, for evidently such material would not be sought in commercial ventures such as here presented, unless it be of value in dollars and cents, and, that being so, a reasonable proportion thereof must be paid to the state, otherwise such contracts, leases, or privileges are not within the power of the commission to grant.

The Legislature evidently did not itself intend to give away, without a direct, reasonable, and substantial compensation to itself, much less to authorize such an administrative body to give away, by conferring on private persons a privilege to dispose of, for their own profit only, the natural resources and property of the state, and with no return therefrom to the state. As illustrated in this case, the estimated cost to the lessees is 70-80 cents, and the authorized sale price to the public is up to $1 per cubic yard.

Whether the state itself could make such gifts is not now before us; very plainly it did not here attempt so to do, and therefore there is no power of discretionary generosity vested in the commission.

And, as so construed, section 31.02(5), supra, now presents questions as to the nature of title to the bed of navigable lakes; in whom is such title vested; and how far may the title holder make a matter of bargain and sale of the material therein and thereunder.

[4] In disposing of this question, we shall treat only of the subject of the bed or the soil under navigable lakes as separate, apart, and distinguishable from the same subject-matter concerning navigable rivers and streams; the statute here clearly limiting its scope to the navigable lakes, and therefore in no wise presenting any issue as to the ownership of the beds of navigable rivers and streams, title to the center of which has, from an early day and consistently since, been declared, in this state, to be in riparian owners, subject to the public rights incident to navigation. Jones v. Pettibone, 2 Wis. 308;Wisconsin River Imp. Co. v. Lyons, 30 Wis. 61;Reysen v. Roate, 92 Wis. 543, 544, 66 N. W. 599;State v. Sutherland, 166 Wis. 511, 521, 166 N. W. 14, and cases there cited (page 522 ). This rule carries with it the right to separately sell title to the submerged land of the river bed, as was upheld in Bright v. Superior, 163 Wis. 1, 11, 13, 156 N. W. 600. The general doctrine in Illinois is the same (Tempel v. U. S., 248 U. S. 121, 129, 39 S. Ct. 56, 63 L. Ed. 162); in Michigan (Collins v. Gerhardt, 237 Mich. 38, 211 N, W. 115); and in Mississippi, where the riparian owner on the Mississippi river may enjoin the dredging of gravel therefrom, though he may not take such material without permission of the War Department (Archer v. Greenville Gravel Co., 233 U. S. 60, 34 S. Ct. 567, 58 L. Ed. 850). See, also, note, 23 A. L. R. 757. In Iowa, for instance, the opposite rule prevails. Marshall Dent. Co. v. Iowa, 226 U. S. 460, 33 S. Ct. 168, 57 L. Ed. 300.

We shall consider it also as though such a lake, having no apparent connection with the waters of the Mississippi or the St. Lawrence, but being within the statutory definition, infra, of navigable waters of the state, is subject to the same trust as that proclaimed in section 1, art. 9, as quoted infra. Whether such a body of water as Lime Lake appears to be in the record here should be considered differently in any application of the holding now made upon the main and broad question presented under said section 31.02(5), and here argued by the parties, is a question not raised by the parties in the court below, nor here, nor do we pass upon it.

[5] That the patent from the United States in terms included the land under this body of water as though it were not submerged does not affect the situation (Mendota Club v. Anderson, 101 Wis. 479, 492, 78 N. W. 185;Ill. Steel Co. v. Bilot, 109 Wis. 418, 426, 84 N. W. 855...