Cutts v. Department of Public Welfare

• Decision Date: 26 June 1957
• Citation: 1 Wis.2d 408,84 N.W.2d 102
• Parties: Jerrold J. CUTTS et al., Respondents, v. DEPARTMENT OF PUBLIC WELFARE of the State of Wisconsin, Appellant.
• Court: Wisconsin Supreme Court

Page 102

84 N.W.2d 102

1 Wis.2d 408

Jerrold J. CUTTS et al., Respondents, v. DEPARTMENT OF PUBLIC WELFARE of the State of Wisconsin, Appellant.

Supreme Court of Wisconsin.

June 26, 1957.

Rehearing Denied Sept. 10, 1957.

Stewart G. Honeck, Atty. Gen., Roy G. Tulane, Asst. Atty. Gen., for appellant.

A. D. Sutherland, Fond du Lac, for respondents.

CURRIE, Justice.

Before the trial court the plaintiffs contended that ch. 404, Laws of 1955, was invalid on three grounds, viz.:

(1) That sec. 10, art. VIII, Wis.Const., prohibits state forest lands from being used for any other than forestry purposes, and therefore such ch. 404 contravened such constitutional prohibition.

(2) That the empowering of the State Building Commission with the authority to select the site of the new State Boys' School constituted an unconstitutional delegation of legislative power.

(3) That the Kettle Moraine State Forest is a park which may be conveyed only pursuant to sec. 3a, art. XI, Wis.Const., and that the conveyance authorized by such statute to be made to the defendant department failed to comply with the requirements of such constitutional provision.

The trial court in its memorandum opinion decided the first two issues adversely to the contentions advanced by the plaintiffs, but determined that the attacked statute was invalid on the ground that the conveyance of the site area by the Conservation Commission to the Department of Public Welfare contravened sec. 3a, art. XI, of the constitution.

Sec. 3a, art. XI, Const., ¹ the so-called 'park amendment' was adopted in 1912. This amendment empowers the state, and any of its cities, to acquire property for park purposes, among others enumerated therein. It also authorizes the sale of any excess lands not necessary for the purpose acquired, provided that the conveyance contains reservations concerning the future use of the conveyed lands which will protect the remaining park area and preserve its usefulness. It was because ch. 404, Laws of 1955, authorized the Conservation Commission to convey the 476.10 acress of land without imposing such required restrictions that the trial court held such statute invalid. In arriving at such conclusion the trial court determined that upon the allegations of the complaint it was plainly established that the Kettle Moraine State Forest had been used by the state as a park area, as well as for forestry purposes, so that sec. 3a, art. XI, Const., was applicable.

We are unable to sustain the determination for the trial court that the facts alleged in the complaint establish a violation of sec. 3a, art. XI, Const. This is because ch. 404, Laws of 1955, did not authorize a conveyance by the state to any other entity or person, but merely provided for a transfer from one department of the state to another. Under the conveyance to the defendant Department of Public Welfare the land still remains state owned property the same as it was before. We construe sec. 3a, art. XI, Const., insofar as applicable to the conveyance of excess state owned lands, as operative only in a situation where title is transferred out of the state to some other entity or person. That is not the situation here. Therefore, we determine that ch. 404, Laws of 1955, and the conveyance to the defendant department made pursuant thereto, in no way violate sec. 3a, art. XI, Const.

Plaintiffs apparently have abandoned their contention, advanced below, that ch. 404, Laws of 1955, embodies an unconstitutional delegation of legislative power to the State Building Commission, because the two briefs of the plaintiffs on this appeal do not renew such contention. In any event we are in full accord with the determination of the trial court that only an administrative and not a legislative power was delegated to the State Building Commission with respect to selecting a site for the new State Boys' School.

The plaintiffs have chosen to conter their fire on this appeal upon their contention that ch. 404, Laws of 1955, violates sec. 10, art. VIII, Const. This section is entitled 'Internal improvements', and the first clause thereof provides, 'The state shall never contract any debt for works of internal improvement, or be a party in carrying on such works'. Such quoted prohibition was contained in the constitution as originally adopted in 1848. Sec. 10, art. VIII, has subsequently been amended from time to time. The particular amendment thereto relied upon by the plaintiffs is the 'forestry amendment' adopted in 1924 reading as follows:

'Provided, that the state may appropriate moneys for the purpose of acquiring, preserving and developing the forests of the state; but there shall not be appropriated under the authority of this section in any one year an amount to exceed two-tenths of one mill of the taxable property of the state as determined by the last preceding state assessment.' (Italics supplied.)

The plaintiffs urge that the word 'preserving' in the above quoted constitutional amendment imposes a restriction on the power of the legislature to devote lands acquired or developed for forestry purposes to some other incompatible purpose. It may be conceded that the use of state forest lands for the site of the State Boys' School is incompatible with their use for forestry purposes.

However, the history underlying the enactment of such 1924 'forestry amendment' demonstrates that it was adopted in order to confer a grant of power upon the legislature, that previously had been denied to it by sec. 10, art. VIII. Both the plaintiffs and the attorney general agree that such 1924 amendment was the direct result of this court's determination in State ex rel. Owen v. Donald, 1915, 160 Wis. 21, 151 N.W. 331. It was therein held that the acquiring by the state of lands for a forest reserve, and the use of such lands to carry on forestry operations, constituted a work of internal improvement, and, therefore, violated the prohibition of sec. 10, art. VIII.

In considering the question of whether this 1924 'forestry amendment' placed and restriction on the power of the legislature, as to the type of public use that might be made of state forest lands, it is well to keep in mind that the power of a state legislature, unlike that of the federal congress, is plenary in nature. This was well stated by Mr. Justice Cole in Bushnell v. Beloit, 1860, 10 Wis. 195, 225, as follows:

'We suppose it to be a well settled political principle that the constitution of the state is to be regarded not as a grant of power, but rather as a limitation upon the powers of the legislature, and that it is competent for the legislature to exercise all legislative power not forbidden by the constitution or delegated to the general government, or prohibited by the constitution of the United States.'

Therefore, absent the original prohibition in sec. 10, art. VIII, Const., against engaging...