State ex rel. Bare v. Schinz

• Decision Date: 06 December 1927
• Citation: State ex rel. Bare v. Schinz, 194 Wis. 397, 216 N.W. 509 (Wis. 1927)
• Parties: STATE EX REL. BARE ET AL. v. SCHINZ, CIRCUIT JUDGE.
• Court: Wisconsin Supreme Court

194 Wis. 397

216 N.W. 509

STATE EX REL. BARE ET AL.

v.SCHINZ, CIRCUIT JUDGE.

Supreme Court of Wisconsin.

Dec. 6, 1927.

Proceedings by the State, on the relation of Maria Bare and another, for a writ of prohibition to be directed to Hon. Walter Schinz, Judge of the Circuit Court of Milwaukee County.On respondent's motion to quash the alternative writ.Motion granted.--[By Editorial Staff.]

Application by relators for absolute writ of prohibition prohibiting the respondent, Hon. Walter Schinz, Judge of the Circuit Court for Milwaukee County, from proceeding with the appointment of commissioners in certain condemnation proceedings begun to acquire property of the relators by the Milwaukee county park commission.

It is the contention of the relators that counties in the state are municipal corporations within the purview of section 2, art. 11, of the state Constitution, which provides:

“No municipal corporation shall take private property for public use, against the consent of the owner, without the necessity thereof being first established by the verdict of a jury.”

The position taken by the respondent is that municipal corporations so designated in said section 2 embrace only cities and villages, and that therefore the constitutional provision does not apply to towns or counties; that as to towns and counties the Legislature can provide for the method of acquiring private property for public purposes, and that it legislated upon the subject when it enacted section 32.07(2), Statutes, which in part reads as follows:

“If the application be by a town or county, or by a board, commission or public officer, * * * the petitioner shall determine the necessity.”

An alternative writ of prohibition issued out of this court upon the petition of the relators, and the respondent in due time moved to quash such writ.The motion to quash therefore raised, as is conceded by relators in their brief, the sole question whether necessity must be determined by the verdict of a jury, or whether such necessity can be determined under the statutory provision above quoted.Churchill, Bennett & Churchill, of Milwaukee (Albert K. Stebbins, of Milwaukee, of counsel), for relators.

Eugene Wengert, Dist. Atty., and Daniel W. Sullivan, Corp.Counsel, both of Milwaukee, for respondent.

DOERFLER, J.

The technical distinctions between a municipal corporation and a county, sometimes designated as a quasi municipal corporation, have not at all times been observed by text-writers and by courts; and this failure to so distinguish is also made manifest in the Constitution of our state.It is unfortunate that this is so, because much uncertainty, litigation, and expense could have been avoided if the fundamental distinctions between these classes of public bodies had at all times been clearly kept in mind and given full recognition.The distinctions between a municipal corporation proper and a so-called quasi municipal corporation existed at the time of the adoption of our Constitution, and the framers of that document were aware of the same, as is evidenced by the language used in its provisions; but, notwithstanding the painstaking care of the framers in the drafting of the fundamental law, the language employed in certain instances was not as clear and explicit as it might have been, and, as a result, construction by the courts became necessary.

Section 2 of article 11 of the Constitution, at an early date in the judicial history of the state, became the subject of construction in the case of Norton v. Peck, 3 Wis. 714.The principal issue in that case consisted of whether a town was a municipal corporation, and in the decision the learned justice writing the opinion freely expressed the view that the issue was a troublesome one.Upon an analysis of the fundamental differences between municipal corporations proper and so-called quasi municipal corporations, the distinctions became clear, and it was decided that a town was not a municipal corporation proper, but came under the category of the so-called quasi municipal corporations.This view, once definitely expressed, determined the status of these public bodies from that time forward, as manifested by the numerous cases in our reports subsequent to Norton v. Peck, supra, in which the distinctions were uniformly adhered to.These distinctions are based upon fundamental differences in these public bodies, relating both to the purposes for which they were created and the method of their creation.

Section 112 of 1 McQuillin on Municipal Corporationsquoteswith approval the language of an Ohio case as follows:

“Municipal corporations proper are called into existence, either at the direct solicitation or by the free consent of the people who compose them.Counties are local subdivisions of the state, created by the sovereign power of the state, of its own sovereign will, without the particular solicitation, consent or concurrent action of the people who inhabit them.The former organization is asked for, at least assented to by the people it embraces; the latter is superimposed by a sovereign and paramount authority.A municipal corporation proper is created mainly for the interest, advantage and convenience of the locality and its people.A county organization is created almost exclusively with a view to the policy of the state at large, for purposes of political organization and civil administration, in matters of finance, of education, of provision for the poor, of military organization, of the means of travel and transport, and especially for the general administration of justice.With scarcely an exception, all the powers and functions of the county organization have a direct and exclusive reference to the general policy of the states and are, in fact, but a branch of the general administration of that policy.”(Italics ours.)

[1] Those fundamental distinctions between municipal corporations proper on the one hand, and counties, towns, and school districts on the other, exist at the present time in the same sense and to the same degree as they existed at the time of the adoption of the Constitution.A county is a political subdivision of the state, as was held in Young v. Juneau County, 192 Wis. 646, 212 N. W. 295.It is a governmental agency of the state, performing primarily the functions of the state locally.It so acts for the state in the administration of justice; in the establishment of alms houses and other charitable institutions; in maintaining insane asylums and penal institutions.It is not created for the local convenience of the inhabitants as in the case of cities and villages.It exists, not by virtue of its own will or consent, but as a result of the superimposed will of the state.A village or a city, however, was created in the early day by special act of the Legislature upon the application of the inhabitants or with their consent, and they are still created and exist under and pursuant to the general statutes of the state, and they come into being upon the application of the inhabitants or with their consent.

[2][3] It is conceded by the learned counsel for the relators that the framers of the Constitution used the term “municipal corporation” as it appears in section 2 of article 11 in its technical sense.However, it is strenuously argued that, since the adoption of the Constitution, changes were wrought in that document which are strongly persuasive that the meaning of that term has undergone a fundamental change; that the Legislature also in its enactments has recognized such a change in meaning; and that this court, in conformity with the alleged trend manifested in the Constitution and in the statutes, has finally, in the case of Sutter v. Milwaukee Board of Fire Underwriters, 161 Wis. 615, 155 N. W. 127, Ann. Cas. 1917E, 682, framed and adopted a definition of a municipal corporation, which embraces, not only cities and villages, but also counties, towns, and school districts.The argument of the learned counsel for the relators is somewhat persuasive, and contains considerable good logic, but is nevertheless delusive.Reference is made to the original provision in the Constitution as contained in section 3 of article 11, which reads as follows:

“It shall be the duty of the Legislature, and they are hereby empowered, to provide for the organization of cities and incorporated villages, and to restrict their power of taxation, * * * contracting debts and loaning their credit, so as to prevent abuses in assessments and taxation, and in contracting debts by such municipal corporations.”

It is then argued that counties and towns under the statutes were given certain corporate powers not possessed by them at the time of the adoption of the Constitution, and that, by virtue of abuses in taxation which manifested themselves, not only in the conduct of affairs of cities and villages, but also with respect to counties and other so-called quasi municipal corporations, it became necessary to include all of these bodies in an amendment to said section 3, pursuant to which their powers to incur debts and of taxation were limited; that therefore, in 1874, section 3 aforesaid of the Constitution was amended to read as follows:

“No county, city, town, village, school-district or other municipal corporation shall be allowed to become indebted in any manner, or for any purpose, to any amount, including existing indebtedness, in the aggregate exceeding five percentum on the value of the taxable property therein, to be ascertained by the last assessment for state and county taxes previous to the incurring of such indebtedness.Any county, city, town, village, school district, or other municipal corporation incurring any indebtedness as aforesaid, shall, before or at the time of doing so, provide for the collection of a direct annual tax sufficient to pay the interest on...