Johnson v. City of Milwaukee

• Decision Date: 02 October 1894
• Citation: 88 Wis. 383,60 N.W. 270
• Parties: JOHNSON v. CITY OF MILWAUKEE.
• Court: Wisconsin Supreme Court

88 Wis. 383

60 N.W. 270

JOHNSON

v.CITY OF MILWAUKEE.

Supreme Court of Wisconsin.

Oct. 2, 1894.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Bill for an injunction brought by H. R. Johnson against the city of Milwaukee. A demurrer to the bill was sustained, and plaintiff appeals. Affirmed.

This action was brought in the circuit court of Milwaukee county to enjoin that city from issuing certain bonds, and the levy of taxes for their payment, upon the theory that the statutes which authorize the issuing of such bonds (chapters 224, 311, Laws 1893) are unconstitutional, because they are within the prohibition of subsection 9, § 31, art. 4, of the constitution, which forbids special legislation to amend the charters of cities. The complaint alleges that the defendant, the city of Milwaukee, is about to issue its bonds for the sum of $50,000 for the purpose of perfecting its sewer system, under said chapter 224, Laws 1893, and for the further sums of $57,000 for permanently improving the streets in that city, and $100,000 for the purchase of land for public parks, and for the improvements thereof, under said chapter 311, Laws 1893. There was a general demurrer to the complaint, which was sustained. From the order which sustains the demurrer the plaintiff appeals.Elliott, Hickox & Groth, for appellant.

C. H. Hamilton, C. E. Estabrook, and Winkler, Flanders, Smith, Bottum & Vilas, for respondent.

NEWMAN, J. (after stating the facts).

The constitutional provisions which are involved in the decision of this case are: Article 4, § 31: “The legislature is prohibited from enacting any special or private laws in the following cases: * * * (9) For incorporating any city, town or village, or to amend the charter thereof.” Article 4, § 32: “The legislature shall provide general laws for the transaction of any business that may be prohibited by section 31 of this article, and all such laws shall be uniform in their operation throughout the state.” The statutes challenged, so far as necessary to show the questions raised, are as follows: Laws 1893, c. 224, § 1: “The common council of any city operating under a special charter granted by the legislature of this state, and authorized by such charter to construct sewers, is hereby empowered to divide such city into sewer districts and to levy a special tax of not more than one mill and a half of a mill on the dollar of the assessed value of the taxable property in any such sewer district, if in the opinion of the common council such special tax shall be needed for the extension or improvement of the sewer system for such district.” Section 2: “If in the opinion of such common council any such sewer district shall require an extraordinary outlay of money for the construction of outlets or pumping stations to perfect its sewer system, such common council is hereby authorized to provide by ordinance for issuing the corporate bonds of such city.” Laws 1893, c. 311, § 1: “The common council of any city incorporated by and operating under a special charter granted by the legislature of this state, containing a population of three thousand inhabitants or more, as shown by the last state or national census, is hereby authorized to issue corporate bonds * * * for the following purposes: * * * (2) For the construction of sewers, and for the improvement and maintenance of the same. * * * (9) For the purchase of lands for public parks and improvements thereof. * * * (10) For permanently improving streets in such city and for creating a fund out of which to advance the cost of repair to sidewalks. * * *”

Doubtless, these statutes, if valid, operate as amendments to the charter of every city included within their terms. If they are “general laws,” within the meaning of the constitutional provisions cited, they are valid, and are to be given the effect intended by the legislature. If, on the other hand, they are “special laws,” within the meaning of those constitutional provisions, they are void, and can have no effect. So the exact question presented for decision is whether the statutes cited are “special” or “private” laws, within the meaning of the constitution. These constitutional provisions came into the constitution, by amendment, after many cities within the state had been incorporated by special laws. The fact that many cities had been incorporated by special laws may be assumed to have been borne in mind by the people when they put those amendments into the constitution. It was not provided or intended that these special charters should be superseded by incorporation under a general law. At least, that was not made compulsory. But it is permitted to such cities as were then incorporated under special laws to continue to operate under their special charters. This must have been within the purpose of the people in making the amendments. This naturally makes a constitutional division of the cities of the state into two classes upon that line,--those which are incorporated under special laws, and those which have been organized under the general law. The fact, too, must have been in contemplation of the people, that in process of time, and by reason of the growth and development of the cities which were under special charters, and changed conditions, new and enlarged powers would become necessary to their well-being and progress. It was intended to confer the power to grant such new or enlarged powers upon such cities by section 32 of article 4. It was intended to confer power ample for the purpose. The only restriction is that such powers shall be conferred only by general laws, having a uniform operation through the state. It seems clear that an act of the legislature which should confer a new power upon all the cities in the state which are in that class of cities which are acting under special laws, without any exception, would be a general law, and uniform in its operation throughout the state, within the intention of the constitution. If it is found that chapter 224, Laws 1893, applies to all the cities of the state which are acting under special charters, by this test, it is a general law. It does apply to all such cities if all such cities are authorized by their charters to construct sewers. Perhaps the more natural and obvious meaning of the words of the statute, “authorized by such charters to...