State ex rel. Baltzell v. Stewart

• Decision Date: 15 October 1889
• Citation: 74 Wis. 620,43 N.W. 947
• Parties: STATE EX REL. BALTZELL v. STEWART, CIRCUIT JUDGE.
• Court: Wisconsin Supreme Court

74 Wis. 620

43 N.W. 947

STATE EX REL. BALTZELL

v.STEWART, CIRCUIT JUDGE.

Supreme Court of Wisconsin.

Oct. 15, 1889.

This is certiorari to the judge of the ninth judicial circuit, the Honorable ALVA STEWART, to review an order made by him under chapter 383 of the Laws of 1889, entitled “An act to amend chapter 525 of the Laws of 1887, entitled ‘An act to amend chapter 442 of the Laws of 1885,’ entitled ‘An act to provide for the drainage and reclamation of certain lands in Dane county,’ ” appointing commissioners under the said act.

CASSODAY, J., dissenting.

Pinney & Sanborn and Luse & Wait, for relator.

H V Chynoweth and Rogers & Hall, for respondent.

COLE, C. J.

This is a proceeding to reverse and set aside an order of the circuit judge of Dane county appointing three drainage commissioners, under chapter 383, Laws 1889. The validity of this act is challenged on several grounds. In the first place it is insisted that the act is void because in conflict with subdivision 7, § 31, art. 4 of the constitution, which prohibits the legislature from enacting any special or private law granting corporate powers or privileges except to cities. That chapter 383 is a special act, as distinguished from a general law, it seems to me there can be no doubt. In State v. Lean, 9 Wis. 279, and in some subsequent cases, the words “general law” received a very liberal interpretation,--one sufficiently broad to comprehend what some authorities denominate “public local laws;” but unless all distinction between a general law and a special law is broken down, I can but think the law in question is a special act. It is entitled “An act to amend * * * an act to provide for the drainage and reclamation of certain lands in Dane county,” and in its terms applies mainly to lands in that county. I must therefore consider it a special act, intended to accomplish or carry out a local system of drainage. That the act grants certain corporate powers it seems to me equally plain. Whether those powers are the corporate powers and privileges the amendment of 1871 was intended to prohibit the legislature from granting by a special act is a question which will be considered in a moment; but now, without going into an analysis of the provisions of the act, it is sufficient to remark that the law clearly grants certain corporate powers and privileges, within the meaning of many well-considered cases to which our attention was called on the argument. The law declares that the commissioners shall be known “as drainage commissioners of drainage district Number one of Dane county.” They are to take an oath, and give bonds for the faithful performance of their duties; cause accurate surveys to be made of the route of the proposed system of drainage. After hearing parties interested, the board decides whether, in their opinion, the public health or welfare will be promoted by the intended work; if so, they classify lands for the assessments of benefits and taxes to execute the same, assess such benefits and taxes, make contracts, incur obligations, sue, and enforce the collection of delinquent assessments, and exercise other corporate powers. They exercise many powers of regular corporate bodies, and the act seems to constitute the drainage commissioners a corporation to accomplish and carry out the work of the proposed system of drainage. But the counsel for the respondent insist and claim that, even if the act does grant certain corporate powers, they are not of that nature and character which it was the intent of the amendment to prohibit the legislature from granting by a special act. It is said the drainage commissioners are organized as a quasi corporation for a governmental purpose, in order to execute the police power of the state in a particular district for the promotion of the public health and welfare. It is conceded that the police power of the state extends to the promotion of the health, comfort, and good order of its citizens, and it cannot be successfully denied that drainage laws are enacted mainly to secure these ends. The declared purpose of the law in question is to promote the public health and welfare by executing a system of drainage. That is the main purpose and object of the law. The question as to the validity of drainage laws was fully considered by this court in Donnelly v. Decker, 58 Wis. 461, 17 N. W. Rep. 389. There the town supervisors, under the general statute, had constructed a ditch through the plaintiff's land, and were sued in an action of trespass. This court held that the law providing for the construction of ditches and drains to drain marsh, swamp, and overflowed lands was valid, and that when, in the judgment of the supervisors, such ditches would conduce to the public health and welfare, they could be lawfully made.

Without further discussion it may be assumed that the law in question falls within the police power, and the commissioners exercise under it a police authority, intended to promote the public health and welfare. The question then is, does the constitutional amendment of 1871 prohibit the legislature from granting these powers for such a purpose by special acts. While the question is not free from doubt, we are inclined to the opinion that the legislature had the constitutional power to enact the law. It is certainly well-established doctrine that the state constitution is simply a limitation of the power of the legislature, and that in respect to the enactment of laws the legislature has plenary power, except so far as it is restricted in its action by the precise terms of the federal and state constitutions. It might be difficult to draw an accurate line between the corporate powers and privileges which the legislature is prohibited from granting by special laws and those which they may grant by such laws. No test has been suggested which is entirely satisfactory to our minds. It is said the restriction applies alone to granting powers to private corporations, and was not intended to limit the legislature in conferring corporate powers upon quasi corporations which are political in their character, and are agencies for exercising the powers and duties of local government. This view might be adopted as sound were it not for the exception of cities in the clause. There would seem to be no object nor necessity for making the exception if the restriction had no application to a special law conferring corporate powers upon governmental subdivisions of the state; for cities are municipal corporations, organized to exercise powers of local government and police regulations.

We do not understand that subdivision 7, § 31, art. 4, has been construed by this court as being a prohibition only as to the grant of corporate powers and privileges to purely private corporations which are organized for private gain; and that it does not apply to quasi corporations which perform governmental functions. The main object of this clause of the amendment may have been to prohibit the legislature from granting corporate powers and privileges to private corporations, except by a general law; but we are not prepared to say that this was the only object of the clause. This provision was not before the court in Smith v. Sherry, 50 Wis. 213, 6 N. W. Rep. 561;Cathcart v. Comstock, 56 Wis. 590, 610, 14 N. W. Rep. 833, 842; and Railway Co. v. Langlade, 56 Wis. 614, 14 N. W. Rep. 844. We shall not attempt to lay down any general rule which will furnish a test in all cases as to what corporations come within the amendment. It is a safer...