Chicago & Northwestern Railway Company v. Town of Oconto

• Decision Date: 21 September 1880
• Citation: 6 N.W. 607,50 Wis. 189
• Parties: THE CHICAGO & NORTHWESTERN RAILWAY COMPANY v. THE TOWN OF OCONTO
• Court: Wisconsin Supreme Court

6 N.W. 607

50 Wis. 189

THE CHICAGO & NORTHWESTERN RAILWAY COMPANY v. THE TOWN OF OCONTO

Supreme Court of Wisconsin

September 21, 1880

Argued September 3, 1880

APPEAL from the Circuit Court for Oconto County.

Action to recover money paid for taxes. Plaintiff appealed from a judgment in favor of the defendant. The case is sufficiently stated in the opinion.

Judgment reversed and cause remanded.

For the appellant there were briefs by F. J. Lamb, and oral argument by Mr. Lamb and W. F. Vilas.

For the respondent there was a brief by Tracy & Bailey, and oral argument by Mr. Tracy:

1. The legislature, in pursuance of the authority upon that subject expressly given them by the constitution (art. IV, sec. 22) having conferred upon the county boards legislative authority "to set off, organize, vacate, and change the boundaries of, the towns in their respective counties" (R. S. 1849 ch. 10, sec. 28; R. S. 1858, ch. 13, sec. 28; R. S. 1878 sec. 670), and the order here in question being in the form prescribed by the statute, and clearly within the scope of the power delegated by the legislature, it is a valid law, unless unconstitutional. If the legislature have the power to pass such a law, the county board had that power; and the act or order is to be treated by the courts with the same respect as though it had emanated directly from the legislature. Smith v. Levinus, 8 N. Y., 472; State ex rel. Hawes v. Pierce, 35 Wis. 93, 99. 2. That part of the state constitution relating to the legislature is not to be regarded as a grant of power to that body, but rather as a limitation upon its powers; and it is competent for the legislature to exercise all legislative power not forbidden by the constitution of the state or of the United States, nor delegated to the general government. Bushnell v. Beloit, 10 Wis. 195, 225; Durkee v. Janesville, 28 Wis. 464, 469. This court will not declare an act of the legislature void unless it is clearly in violation of the constitution. Norton v. Rooker, 1 Pin., 195; Smith v. Odell, id., 449; Dickson v. The State, 1 Wis. 122; Smith v. Mariner, 5 id., 551; State ex rel. Brayton v. Merriman, 6 id., 14; In re Oliver, 17 id., 781; Mills v. Charleton, 29 id., 400; Plumer v. Supervisors, 46 id., 163, 186-7. To warrant us in declaring a statute unconstitutional, we should be able to lay our finger upon the part of the constitution violated (Tyler v. People, 8 Mich., 333; State ex rel. v. Main, 16 Wis. 398, 415; Cooley on Con. Lim., 168, and cases cited in note 3); at least where, as here, the act is not "manifestly contrary to the first principles of civil liberty and natural justice, and to the spirit of our constitution and our laws," so as to come within the principle discussed in Durkee v. Janesville, supra. It is claimed that the act or order in question is in violation of those constitutional provisions which relate to the formation of senate and assembly districts. Those provisions, however, merely require that the districts shall be composed of contiguous territory; and we cannot infer from this an intention that other political subdivisions of the state shall include only contiguous territory. Expressio unius exclusio alterius. It seems impossible to lay the finger on any clause of the constitution which is clearly violated by the order.

[Counsel discussed other questions, which became unimportant in the view taken by this court.]

OPINION

HARLOW S. ORTON, J.

This suit is brought to recover from the town of Oconto, the defendant, certain moneys paid under protest for taxes claimed to have been illegally assessed upon the plaintiff's lands, situated in towns 35, 36 and 37, range 16, in Oconto county, by the said town, for the year 1878. Two grounds of recovery were relied upon at the trial: first, that the assessment was improperly made; and second, that these lands were not subject to assessment and taxation by and in the town of Oconto. The latter ground, being the more important, and, if well taken, fatal to the legality of the assessment, will alone be considered. To sustain this objection to the assessment, it is claimed that the several orders of the board of supervisors of the county of Oconto, attaching these lands to and making them a part of the town of Oconto, are void, because they are left by such orders in a body of lands separated and detached, and not contiguous to the main body of lands in said town, in violation of the constitution, which, it is claimed, requires towns to be composed and constituted of contiguous territory only.

There was some question on the argument whether the orders of the board of supervisors of Oconto county, organizing and changing the boundaries of the town of Oconto, in fact left these bodies of land so detached; but by an inspection of the orders it is apparent that they are so detached. The order of the board of November 15, 1876, it is conceded, made the town consist of two detached bodies of lands, in the smaller body of which the lands of the appellant in question were situated, and the two bodies separated by the distance of nearly twenty miles of intermediate territory. By the order of March 15, 1877, certain lands, a part of and contiguous to the larger body, and in the direction of the lands in question, were detached from the town of Oconto, and added to and made a part of the towns of Peshtigo and Marinette. By the order of January 12, 1878, certain lands lying contiguous to the lands so detached were added to and made a part of the town of Oconto; but this order failed to embrace the lands so detached, and they were still left in those two other towns. These orders, then, taken together, still leave the two bodies detached, but not by so great a distance. It was unquestionably intended by the last order to cure this defect in the first one, and connect the two bodies together; but by this omission the town still remains subject to the objection of consisting of two detached bodies of territory, the same as by the first order.

We shall not follow the very able arguments of the learned counsel of the appellant, urging many and weighty reasons of public policy why, if possible, the constitution should be so construed as to require a town to be composed only of contiguous territory, and reasons based upon the constitutional rule of uniformity of town government and of taxation. We shall pass directly, and confine ourselves strictly, to the consideration of the true meaning and proper construction of the term "town," as used in the constitution, with reference only to the defect in the organization or in the changing of the boundaries of the town of Oconto, here urged as making the orders of the board of supervisors void. There are few, if there are any, decisions of courts having a bearing upon this question, directly or remotely; and it must therefore be treated as...