Muench v. Public Service Commission

Decision Date07 October 1952
Citation55 N.W.2d 40,261 Wis. 492
CourtWisconsin Supreme Court

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

Vernon W. Thomson, Atty. Gen., and Roy G. Tulane, Asst. Atty. Gen., for the State.

Glen H. Bell and Charles P. Seibold, Madison, Douglas & Omernik, Spooner, W. E. Torkelson, Madison, for Public Service Commission.

CURRIE, Justice.

The court granted a rehearing in this case on the question of the constitutionality of that part of sec. 31.06(3), Stats., quoted in the original opinion and referred to therein as the 'county board law' [261 Wis. 492, 53 N.W.2d 524], and had the benefit of hearing further oral argument on this issue and have been favored with further excellent briefs on both sides of the issue.

The first problem which presents itself in determining the constitutionality of the statute in question is the proper construction of sec. 22, art. IV, of the Wisconsin constitution, which provides:

'The legislature may confer upon the boards of supervisors of the several counties of the state such powers of a local, legislative and administrative character as they shall from time to time prescribe.' (Emphasis supplied.)

Counsel for the company concede that the power attempted to be delegated to county boards by the 'county board law' is legislative and not administrative.

Does the word 'local' modify the words 'legislative * * * character', or does the word 'local' present an additional category of power that may be delegated by the legislature to county boards? We think it is clear that the word 'local' does modify 'legislative * * * character'. If it were to be held that 'local' did not modify 'legislative' there would be no limitation on the type of legislative power that might be delegated by the legislature to county boards, except as might be prohibited by other sections of the constitution. For example, under such construction, the legislature would be free to delegate such powers to county boards as that of regulating the transfer and descent of property, regulating domestic relations, or providing for elections of county or state officials. We do not believe that it was the intention of the framers of our constitution that any of the aforementioned types of legislative power might be delegated to county boards, but that instead they intended the word 'local' should be a limitation upon the type of legislative power which might be delegated.

Counsel for the respondent company maintain that if the word 'local' be construed by the court as limiting the type of legislative power which may be delegated to county boards, then such word must be construed in its territorial sense so as to authorize any delegation of legislative power to county boards which operates within the boundaries of the county. On the other hand, it is the position of counsel for the petitioner, and of the attorney general, that the word 'local', properly construed, includes only those matters which primarily affect the people of a locality, and stands in opposition to matters of state-wide concern which affect all the people of the state.

There seems to be almost a complete dearth of authority on this particular point. Counsel for the company submit that there are two states, New York and Michigan, which have provisions in their constitutions reading substantially as does sec. 22 of art. IV, of the Wisconsin constitution, and that they are more akin to our own provision than that of the Kansas constitution. Apparently, there are no decisions of the Michigan supreme court on the point at issue. The New York court of appeals held in Smith v. Levinus, 1853, 8 N.Y. 472, that the legislative delegation of power to county boards 'to provide for the protection of shell and other fish within the waters of their respective counties' was a valid delegation of legislative power under the provision of their constitution corresponding to our sec. 22 of art. IV, and declared that:

'* * * to make a law to regulate the fishing for oysters in Cow Bay, is to legislate for a locality. It is local legislation. It is of no consequence whether the people of the state own the oysters in that locality or not. If they do, they have a right to preserve them.' (Emphasis supplied.)

The grounds stated by the New York court in Smith v. Levinus, supra, for upholding the delegation of power there presented, tends to support the position advanced by the company in the instant case. However, the same conclusion might have been reached by finding that, while the protection of fish and other aquatic life was a subject of both state and local concern, the interests of the locality were paramount as of the time when that case was decided 99 years ago.

Regardless of how the New York court may have interpreted its constitutional provision corresponding to our sec. 22, art. IV, this court, as early as 1875, in its decision in Slinger v. Henneman, 38 Wis. 504, 510, determined that our legislature had no power to delegate to county boards the right to legislate on all matters of state-wide concern, even though the attempted delegated power was to be exercised only within the boundaries of the county. In that case the court had before it a statute, sec. 8 of which created a right of action to recover damages for injuries caused by dogs, irrespective of whether the owner had prior notice of vicious tendencies; and sec. 9 thereof authorized a county board to exempt its county from the operation of sec. 8. The printed brief of the appellant contended that sec. 9 of the statute was in direct conflict with sec. 22, art. IV, of the constitution. While the court does not mention such section of the constitution in its opinion, it did declare as follows:

'Yet it is undoubtedly true that in matters purely local and municipal, the legislature may enact conditional laws, and refer it to the people or proper municipal authorities to decide whether such laws shall or shall not have force and effect in their respective municipalities. The cases which sustain this power are numerous. State [ex rel. Attorney General] v. O'Neill, 24 Wis. 149, is one of these. In principle, the same power is exercised in the numerous laws enacted by the legislature giving to municipalities the power to establish by-laws and ordinances in respect to municipal matters. Sec. 8, however, does not relate to municipal affairs, but it seeks to change a rule of the common law pertaining to a matter of general interest. As well might the legislature authorize the board of supervisors of a county to abolish in such county days of grace on commercial paper, or to suspend the operation of the statute of limitations. Such legislation if clearly within the restriction on the power of the legislature to delegate its authority, and is therefore inoperative and void.'

After due consideration, it is our conclusion that the proper construction of the word 'local', as used in sec. 22, art. IV, is that which we stated in the original opinion in this case as including only those matters which primarily affect the people of the locality, and stands in opposition to 'matters of state-wide concern' which affect all the people of the state.

The brief amicus curiae filed herein urges that such construction of this constitutional provision, if allowed to stand, could 'create a chaotic condition in connection with the powers of county boards, historically long exercised and woven into the fabric of county government'. The brief submitted by the respondent company, in support of its motion for rehearing, lists a large number of county activities authorized pursuant to statute, which activities involve some elements which are of state-wide concern. We believe that a further analysis of what is meant by a matter of state-wide concern, as opposed to one of local character, will allay at least some of the fears expressed by counsel.

As to some subjects of legislative action it is possible to say that they are exclusively of state-wide concern, while others may be fairly classified as entirely of local character, affecting only the interests of the people in a particular locality of the state. However, as to many subjects of legislative action it is not possible to fit them exclusively into one or the other of these two categories. The right to fish and hunt, or to enjoy scenic beauty, as an incident to the right to navigate the navigable waters of this state (which is the subject of legislative action in the instant case) is an example of a type of legislation which affects the interests of the people of the entire state, as well as those of a particular county. If a particular county is permitted to take action which will lead to the impairment or the destruction of hunting, or fishing, or the right to enjoy scenic beauty on that part of a particular navigable stream lying within the limits of a county, the interests of the people of the entire state may be adversely affected thereby. It would therefore seem that the test which ought to be applied in determining the validity of delegation of legislative power in such a case is that of paramount interest.

As pointed out in our original opinion, Wisconsin's present Water Power Law dates from 1915, Laws 1915, c. 380, and such law required the Railroad Commission (predecessor to the Public Service Commission), in granting a permit to construct a dam upon a navigable stream, to find that 'the proposed dam will not materially obstruct existing navigation or violate other public rights'. The rights to hunt and fish were certainly included within the term 'other public rights' because they had been recognized as rights incidental to navigation in decisions of this court rendered prior to 1915. In 1929, Laws 1929, c. 523, the legislature amended the Water Power Law so as to provide that 'The enjoyment of natural scenic beauty is declared to be a public right.' This probably was no more than legislative...

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