In re S. Wis. Power Co.

• Decision Date: 05 October 1909
• Citation: 122 N.W. 801,140 Wis. 245
• Parties: IN RE SOUTHERN WISCONSIN POWER CO. APPEAL OF BLACK HAWK LAND CO.
• Court: Wisconsin Supreme Court

140 Wis. 245

122 N.W. 801

IN RE SOUTHERN WISCONSIN POWER CO. APPEAL OF BLACK HAWK LAND CO.

Supreme Court of Wisconsin.

Oct. 5, 1909.

Appeal from Circuit Court, Juneau County; Chester A. Fowler, Judge.

Application by the Southern Wisconsin Power Company for the appointment of commissioners to appraise lands for flowage purposes, to which the Black Hawk Land Company filed objections. From an order overruling the objections, objector appeals. Affirmed.

This is an appeal from an order of the circuit court for Juneau county denying the motion of the Black Hawk Land Company to vacate and set aside an order appointing commissioners of appraisal in condemnation proceedings. Chapter 462, p. 682, Laws 1901, was entitled: “An act to authorize William Gunther, A. D. Johnson and A. B. Whitman, their and each of their heirs, executors, administrators and assigns to build and maintain a dam across and to improve the navigation of the Wisconsin river above the same, and for the purpose of creating hydraulic power.” Section 1 of the act provided for the location of the dam and its height. Section 2 provided that in case it should be necessary to take, flow, or injure any lands for the purpose of constructing the dam authorized, or for the purpose of improvement, the grantees named in the franchise should be subject to all the provisions, remedies, and liabilities contained in sections 3374-3406, c. 146, St. 1898, entitled “Of Mills and Milldams.” Section 3 of the act provided that for the purpose of acquiring the necessary lands for flowage purposes, said parties, their heirs, and assigns, might enjoy the rights granted to and conferred upon corporations by sections 1850 to 1857, inclusive, of the Statutes of 1898 and of amendments thereto. Section 4 of the act provided that no corporate powers were granted, or intended to be granted, by it, and that the same should not be construed or deemed to grant corporate powers. The Southern Wisconsin Power Company, the petitioner herein, is a corporation organized under the provisions of chapter 86, St. 1898 (sections 1771-1791m). The rights and franchises conferred by chapter 462, p. 682, Laws 1901, were in form assigned to said corporation after its organization, and before it attempted to institute condemnation proceedings. In its application for the appointment of commissioners to appraise land for flowage purposes it set forth the fact of its incorporation and of the assignment of the aforesaid franchise, and also averred that it was proceeding with the construction of the dam authorized by the act in question, and that it was necessary to overflow certain described lands in order to carry out the objects and purposes of such act, and that it was unable to agree with certain landowners for the purchase, lease, or use of such lands, or for such easement therein as was necessary, or upon the amount of compensation that should be paid for the taking of such property. The Black Hawk Land Company is the owner of certain lands sought to be condemned by the petitioner, and interposed an answer to such petition, setting forth its reasons why its lands should not be appropriated by the petitioner, and moved for an order vacating the order appointing commissioners in the condemnation proceedings. The court refused to set aside such order, and from the order denying the motion to vacate this appeal is taken.Cary, Upham & Black, for appellant.

Jones & Schubring, for respondent.

BARNES, J. (after stating the facts as above).

The appellant contends (1) that chapter 462, p. 682, Laws 1901, violates section 18, art. 4, of the Constitution of Wisconsin, because the subject of the act is not expressed in the title; (2) that the act of 1901 violates section 31, art. 4, of our Constitution, in that it grants corporate powers and privileges; (3) that the rights conferred by the act in question could not lawfully be assigned to or be exercised by a corporation because of the restriction contained in its fourth section; (4) that the act is a violation of section 1, art. 9, of the Wisconsin Constitution; (5) that the dam in question, while purporting to be in aid of navigation, is in reality destructive of it, and constitutes an unlawful structure in a navigable stream; (6) that the respondent is seeking to condemn lands for a private purpose; (7) that the order appointing commissioners was made by a judge who had no right or jurisdiction to make the same.

1. The title to chapter 462, p. 682, Laws 1901, authorizes certain persons therein named to build a dam across the Wisconsin river, without specifying the particular place where the dam is to be built. It is urged that the act is local, and that the title to such an act is defective and insufficient, unless it refers to the specific place over which the law is to operate, and that such place is not sufficiently localized in the act in question to meet the requirements of section 18, art. 4, of our Constitution. In support of such contention the following cases in this court are cited: Durkee v. City of Janesville, 26 Wis. 697,Anderton v. Milwaukee, 82 Wis. 279, 52 N. W. 95, 15 L. R. A. 830, and Milwaukee County v. Isenring, 109 Wis. 9, 85 N. W. 131, 53 L. R. A. 635.

In Durkee v. Janesville, and in Milwaukee County v. Isenring, the object sought to be accomplished by the constitutional provision under consideration is pointed out. In the latter case it is said that the framers of the Constitution “intended to guard against the danger of legislation, affecting private or local interests, being smuggled through the Legislature under misleading titles, by requiring every bill affecting such interests to be under a title likely to call attention of the lawmakers to its character, and likewise the attention of the people affected, to the end that every member of the Legislature may intelligently participate in considering such bill, and all objections thereto may be presented.” Substantially the same idea is expressed in Durkee v. Janesville. In the latter case it is also said: “The subject of a local act cannot be expressed in the title without a reference to the place over which it is to operate being made therein.” This language is impliedly approved in the Isenring Case, and in at least one other case, to which reference will be hereafter made. The titles to the acts before the court in the two cases under consideration, and which were condemned, made no attempt at localization. A reading of such titles would convey the belief that the acts were general, applying to the entire state. There was absolutely nothing in them to even suggest that the proposed laws should have any restricted or local application. Yet the purpose of the act involved in the Janesville Case was to legalize certain acts of the common council of that city, and the acts construed in the Isenring Case related only to the fees of the sheriff of Milwaukee county.

In Anderton v. Milwaukee, supra, the act involved was held void as being in violation of section 1 of the fourteenth amendment to the federal Constitution. The court also said that the act was local, and related to a subject not expressed in its title, and hence violated section 18, art. 4, of the Constitution of Wisconsin. On what ground this part of the decision was placed is not apparent. The act was entitled “An act to authorize the city of Milwaukee to change the grade of streets.” Laws 1891, p. 307, c. 254. The body of the act referred to a certain limited district in the city of Milwaukee, and appellant contends that it was held void because the particular district affected was not set forth in the title. If such was the view of the court, this case goes to a greater extreme than any other that has been called to our attention in requiring the title to a local act to designate the exact locality to be affected, and comes nearest to being authority in point upon the proposition to which it is cited. An examination of the briefs filed in that case shows that the principal ground of attack upon the law, as being a violation of section 18, art. 4, was not because the title was not sufficiently localized. It was urged that, while the act purported to authorize the city to change the grade of its streets, it in fact conferred no power in this behalf that the city did not already possess; that under the existing laws owners of property abutting on streets were entitled to damages sustained by reason of a change in grade, and that the act in question attempted to repeal such laws as to about one-fortieth of the street frontage in the city, leaving them in full force as to the remainder, and that the title to the act was misleading, in that the body thereof sought to accomplish another and an entirely different purpose from that expressed in the title. We think the misstatement of the purpose of the law in its title constituted the substantial objections to its validity under section 18, art. 4, of the Constitution. But, assuming that the court decided that the title did not sufficiently localize the act, there is an important distinction between the Anderton Case and the one we are presently considering. A reading of the title to the act there involved would lead the reader to believe that whatever was its purpose, it affected the entire city of Milwaukee, and not a very small fraction of it. A resident of the city reading such title would have no reason to believe that the locality in which he owned property was affected to any greater extent than any other locality in the city. On the other hand, chapter 462, p. 682, Laws 1901, authorized the building of but a single dam. The title to the act informs every one that the act authorizes the building of but one dam, and that such dam is to be located on the Wisconsin river. It misleads no one, although it is not as definite as to location as it might be made.

An act of the Legislature should not be adjudged invalid except upon clear and unmistakable...