Smith v. Sherry

• Decision Date: 21 September 1880
• Citation: 6 N.W. 561,50 Wis. 210
• Parties: SMITH v. SHERRY
• Court: Wisconsin Supreme Court

6 N.W. 561

50 Wis. 210

SMITH v. SHERRY

Supreme Court of Wisconsin

September 21, 1880

Argued September 4, 1880

APPEAL from the Circuit Court for Shawano County.

The case is thus stated by Mr. Justice TAYLOR:

"This is an action to recover damages of the defendant for trespassing upon lands claimed to be owned by the plaintiff and removing therefrom a large quantity of pine timber. The plaintiff claims title to the lands in question under a tax deed issued to him by the county of Shawano for the nonpayment of taxes assessed thereon by the town of Seneca in said county, in the year 1872. The case was tried by the court, and judgment was rendered in favor of the defendant solely upon the ground that the town of Seneca had no power to assess any taxes on said lands in the year 1872, for the reason that said lands were at that time a part of the village of Shawano, in said county, and were assessed by said village, and the taxes so assessed thereon by said village were paid by the owner of said lands.

"In 1872 the legislature passed chapter 92, Laws of 1872 annexing township 28 north, of range 13 east, and township 28 north, range 14 east, to the village of Shawano. The land in dispute was in township 28 north, of range 13 east. These townships were not adjoining to any part of the village of Shawano, as bounded previous to the passage of said act, and were in fact situated at least six miles distant from the nearest point of said village. The village of Shawano was first incorporated as a village by chapter 244, P. & L. Laws of 1871."

The plaintiff appealed from the judgment rendered against him.

Judgment reversed, cause remanded and new trial ordered.

Brief for the appellant by Hastings & Greene, and oral argument by Mr. Hastings.

The cause was submitted for the respondent on the brief of Moses Hooper.

OPINION

DAVID TAYLOR, J.

On the part of the appellant it is insisted, first, that the act of 1872 is void under sections 31 and 32 of art. IV of the constitution (said sections being an amendment to said article IV, which was ratified by a vote of the people November 7, 1871), and that as a consequence said townships never became a part of the village of Shawano; and second, that irrespective of said constitutional amendment the act is void, for the reason that the legislature have no power to annex any territory to a village which does not adjoin such village--that every village must be composed of contiguous territory.

It is urged that the act of 1872, above referred to, violates the provisions of subdivision 9 of sec. 31 of art. IV of the constitution, as amended in 1871. The section of the amended constitution, so far as it relates to this subject, reads as follows: "The legislature is prohibited from enacting any special or private law in the following cases." The ninth and last case is this: "Ninth. For incorporating any town or village, or to amend the charter thereof." It is not contended by the learned counsel for the respondent that the act of 1872, which attempted to annex the two townships in question to the village of Shawano, was not a special law within the meaning of the constitutional provision above quoted, or that it was not an amendment of the charter of the village of Shawano. State v. City of Cincinnati, 20 Ohio St. 18. But it is said, the constitutional provision above quoted does not prohibit the amendment of village charters which were granted by the legislature previous to the adoption of the amendments. In support of this position the learned counsel for the respondent cites and relies upon the decision of this court in Attorney General v. Railroad Cos., 35 Wis. 425-561, and does not cite any other. If the case above cited has decided this question in favor of the respondent, the learned counsel very properly relied upon it as controlling this case, and wisely abstained from seeking for or citing authorities from other courts to sustain his position. After carefully considering what was said by the chief justice in his opinion in that case, and the very careful and critical review of so much of the opinion as treats of the question involved in this, by the learned counsel for the respondent, we have come to the conclusion that the reasoning in that case does not necessarily dispose of the question to be determined in this.

In the case of The Attorney General v. Railroad Cos., the court had under consideration subdivision 7 of said section 31 of the amended constitution, and neither quoted nor referred to subdivision 9, which controls this case. Subdivision 7 prohibits the legislature from passing any special or private law "for granting corporate powers or privileges except to cities." Subdivision 9 prohibits the legislature from passing any special laws "for incorporating any town or village, or to amend the charter thereof." The language of the two provisions is not identical, by any means, and does not necessarily require that the same construction should be given to each.

In the opinion in Attorney General it is argued that the prohibition against granting corporate powers or privileges, by any special or private act was designed as an amendment of the first clause of section 1, art. XI of the original constitution, and merely took away from the legislature the discretion vested in it by that part of said clause which permitted the legislature to create corporations by special laws when, in the judgment of the legislature, the objects of such corporations could not be attained under general laws; and that it did not amend the second clause of said section 1, which provides that "all general laws or special acts enacted under the provisions of this section may be altered or repealed by the legislature at any time after their passage." Embodying the seventh subdivision of said section 31 of the amended constitution with section 1, art. XI, as construed by the court in 35 Wis. it would read as follows: "Corporations without banking powers or privileges may be formed under general laws, but shall not be created by special act, except for municipal purposes. All general laws or special acts enacted under the provisions of this section may be altered or repealed by the legislature at any time after their passage."

The language of the chief justice, on page 560, is as follows: "But the purpose of the amendment, so far as it affects section 1, art. XI, appears to us very manifest. It was designed to act on the first clause only of the section, taking away the legislative discretion, and changing the directory provision into a prohibitory one, and not to touch the second clause of the section at all, leaving the reserved power where it found it, to be exercised thereafter upon special charters, by special acts. The amendment is prospective only, not retrospective. It prohibits an old way, and provides a new way, of creating corporations, but was not designed to affect existing corporations in any way." If the ninth subdivision of the amending section 31 had been omitted altogether, it is probable that the amendments would have been construed as not applicable to municipal corporations at all; but, however that might have been, it is now very clear that the legislature, in adopting the seventh subdivision, and the people, in ratifying the same in connection with the ninth subdivision of the section, did not intend that the seventh subdivision should extend to towns and villages. If the general terms used in the seventh subdivision had been intended to prohibit the legislature from granting corporate powers and privileges to towns and villages by special or private laws, as well as to corporations of a private nature, there would have been no necessity for adding the ninth subdivision, which in express terms prohibits the incorporation of any town or village, or to amend the charter thereof, by any special law. The ninth subdivision, standing by itself, and applicable only to a particular kind of corporations, must receive the construction which its language requires, and which will carry out the intention of the legislature and the people in adopting the same.

The language is of the most general kind. It prohibits the incorporation of a village, or the amendment of the charter thereof, except by general laws. The only question about which there is any dispute is, whether it prohibits the...