Heimerl v. Ozaukee County

• Decision Date: 30 December 1949
• Citation: 40 N.W.2d 564,256 Wis. 151
• Parties: HEIMERL et al. v. OZAUKEE COUNTY et al.
• Court: Wisconsin Supreme Court

Page 564

40 N.W.2d 564

256 Wis. 151

HEIMERL et al. v. OZAUKEE COUNTY et al.

Supreme Court of Wisconsin.

Dec. 30, 1949.

Ben R. Runkel, District Attorney, Port Washington (Thomas E. Fairchild, Attorney General, Roy G. Tulane, Asst. Atty. Gen., on the lief), for appellants.

Tilton, Chudnow, Kastrul, Pulito and Keegan, Jr., Milwaukee, E. F. Keegan, Jr., Milwaukee, of counsel, for respondents.

MARTIN, Justice.

The sole question to be determined is the constitutionality of sec. 86.106, Stats., created by ch. 457, Laws of 1947, which authorizes towns, cities, and villages to enter into contracts to build, grade, drain, surface, and gravel private roads and driveways, and further authorizes counties to contract with municipalities to perform such work.

In reviewing an act of the legislature the duties of the court are limited to considering whether or not the act of the legislature contravenes the provisions of the constitution. The duty of the court to do this arises from the fact that the constitution is the supreme law of the state. If the legislature passes an act which is in contravention of the constitution, and a citizen asserts a right under the constitution denied him by the act of the legislature, of necessity the court must determine which controls,--the constitution or the act of the legislature. See Gibson Auto Co. v. Finnegan, 1935, 217 Wis. 401, 406, 407, 259 N.W. 420.

It was held in State ex rel. Reynolds v. Sande, 1931, 205 Wis. 495, 501, 503, 238 N.W. 504, that while a statute should be held valid whenever by any fair interpretation it may be construed to serve a constitutional purpose, courts cannot go beyond the province of legitimate construction to save it, and where the meaning is plain, words cannot be read into it or out of it for the purpose of saving one or other possible alternative.

Defendants concede that the expenditure of public funds for a private purpose is unconstitutional, but contend that the provision of access to the public highway system is so closely allied with the public purpose of providing the highway system itself that it too must be presumed to involve a public purpose. We cannot agree that the building of private roads is allied with a public purpose.

An adjoining landowner to a public highway system has a right of access to a public road, but that right does not require or permit a municipality to build private roads as provided by sec. 86.106, Stats.

If highway improvements are made and the highway is cut or filled or otherwise graded in front of any entrance to abutting premises, sec. 86.05, Stats., provides that a suitable entrance to the premises must be constructed as a part of the improvements. The work done by the municipality for the owner when the highway grade is changed is done to compensate him for property taken in the exercise of the police power.

Sec. 80.47, Stats., relates to the rights of owners of land abutting on any highway and provides for the common right in the free and unobstructed use thereof. If such highway is closed, used, or obstructed so as to materially interfere with its usefulness as a highway or so as to damage property abutting thereon, compensation for damages is provided. This section comes within the same category as sec. 86.05. It recognizes the right of an abutting landowner of access, i. e., egress and ingress.

Sec. 86.105, Stats., provides that a governing body of any county, town, city, or village may enter into contracts to remove snow from private roads and driveways. It is common knowledge that when public highways are snowplowed, large amounts of snow are piled into private driveways and thereby creating a greater obstruction than already existed. Then, too, this section is distinguished from sec. 86.106, Stats., for the removal of snow is an emergency situation and the public safety of the community in general is directly affected.

Defendant has also cited the following statutes and contends that they provide for improvements on private property or benefits to private individuals: Sec. 59.08(18), Stats., which allows counties to provide for and engage in the manufacture, sale, and distribution of agricultural lime to be sold at cost to farmers and to acquire lands for such purposes; Sec. 59.08(47) which authorizes counties to purchase or accept by gift or grant tractors, bulldozers, and other equipment for clearing and draining land and controlling weeds on same, and for such purposes to operate or lease the same for work on private lands, and to charge fees for such service and rental of such equipment on a cost basis; and sec. 92.08 which is the soil conservation statute. These are natural governmental functions and are necessary to the health, safety, and welfare of the community as a whole. The public receives no direct or indirect benefit from sec. 86.106, Stats. The construction of private roads does not tend to the preservation of the public health or the general welfare. No one is benefited except the owner of the land. The cases cited by defendants involve matters that have reference to a necessary governmental function. However, in the matter before us, the municipality may, without any limitation, construct private roads and driveways, and it is difficult to construe this work to be any governmental function.

In State ex rel. Wisconsin Development Authority v. Dammann, 1938, 228 Wis. 147, 180, 277 N.W. 278, 280 N.W. 698, 708, it was stated: 'The course or usage of the government, the objects for which taxes have been customarily and by long course of legislation levied, and the objects and purposes which have been considered necessary for the support and proper use of the government are all material considerations as well as the rule that to sustain a public purpose the advantage to the public must be direct and not merely indirect or remote.'

Even if the county highway department required payment of every item properly chargeable for work done by authority of the resolution and without any ultimate cost to the county (which sec. 86.106, Stats., does not provide), until it received compensation from the city, village, or town, it would have the taxpayers' money invested in the work, money raised by a tax levy. Taxation for a private purpose is prohibited by the clause of the federal constitution that guarantees to every state a Republican form of government (sec. 4, art. IV), as such a form of government forbids the raising of taxes for anything but a public purpose.

The question of the right of a city to maintain a garage in competition with private garage was before the court in City of Cleveland et al. v. Ruple, 1936, 130 Ohio St. 465, 200 N.E. 507, 511, 103 A.L.R. 853, and it was stated: 'The right of private property must be protected against careless adjudication which, step by step, may wear it away. If a public municipal building may be used by the municipality to carry on private business of one kind, there is no reason why the municipal authorities may not embark in other fields of private enterprise. The only legitimate way such an end may be accomplished is by a change in constitutional limitations.'

In Opinion of the Justices, 1892, 155 Mass. 598, 30 N.E. 1142, 1144, 15 L.R.A. 809, where the right of a governmental agency to engage in the business of buying and selling of wood and coal was considered, in applying the above provisions of the federal constitution, the court said: 'The object of the constitution was to protect individuals in their rights to carry on the customary business of life, rather than to authorize the commonwealth, or the 'towns, parishes, precincts, and other bodies politic,' to undertake what had usually been left to the private enterprise of individuais.'

Sec. 86.106, Stats., does not...