State ex rel. City of New Richmond v. Davidson

• Decision Date: 19 May 1902
• Parties: STATE EX REL. CITY OF NEW RICHMOND v. DAVIDSON, STATE TREASURER.
• Court: Wisconsin Supreme Court

114 Wis. 563

90 N.W. 1067

STATE EX REL. CITY OF NEW RICHMOND

v.DAVIDSON, STATE TREASURER.

Supreme Court of Wisconsin.

May 19, 1902.

Application for mandamus by the state, on the relation of the city of New Richmond, against James O. Davidson, as state treasurer. On motion to quash the writ. Motion overruled.

The relator filed in this court a petition for an alternative writ of mandamus to compel the defendant, as state treasurer, to transfer from the moneys in the state treasury, not otherwise appropriated, the sum of $21,500 to the trust funds out of which the moneys were borrowed by the city, in order that the commissioners of such funds may cancel the indebtedness of the relator to the state. The petition alleges, in effect: The incorporation of the relator as a city in 1885. The authority given by the common council of the city for the commencement of these proceedings, and the filing of the petition. That prior to June 12, 1899, the city had a population of 1,900 persons. That its business portion consisted of a large number of stores, shops, factories, hotels, and other places of business, besides a city hall, waterworks tower and tank, pumping station, numerous churches, and more than 200 homes. That its people were well to do, prosperous, and enjoying good health and other blessings usually attendant upon a prosperous city located and surrounded by an unusually fine farming community. That on the evening of June 12, 1899, a terrific cyclone struck the city, destroying the entire business portion thereof, killing outright, or injuring so that death ensued from such injuries, 115 of its citizens, and injuring about 500 more of its citizens, many seriously; destroying upwards of 100 dwelling houses and rendering about 600 of its citizens homeless; destroying its city hall, waterworks tower and tank and pumping station, its electric light plant, and the expensive bridge crossing the Willow river within the city, and four of its churches; killing 175 large animals and a large number of smaller ones; filling the public streets and alleys, and almost the entire area of the city, with débris; destroying property of more than three-quarters of a million of dollars in value; leaving the city almost a complete wreck, and its inhabitants in sore and great distress; and it became and was absolutely necessary for the city to take immediate steps for the burial of its dead, the caring for its injured, clearing up of the débris to prevent disease and pestilence, at a large expense to the city, as well as placing upon all or nearly all of its citizens the great burdenand almost insurmountable difficulties of caring for the dead and injured and homeless. That many of the citizens thereof lost all of their property,--their homes, household effects, wearing apparel,--and were rendered entirely destitute; that others were so impoverished as to be unable to rebuild their homes, and it became and was absolutely necessary for the city to care for, render assistance to, and incur large expense in so doing. That by reason of the temporary care and aid furnished by the city to many of its citizens thus destitute and impoverished, and the expenditure of large sums of money in clearing away the débris mentioned, contagious disease and pestilence were avoided, and its injured and homeless citizens, after much suffering, were enabled partially to overcome their destitute and impoverished condition, and, together with charitable assistance and aid given by public-spirited citizens of the state and elsewhere, many of its citizens have been able to get a new start, and rebuild their homes so destroyed, and thus adding to the taxable property of the state not less than half a million of dollars, from which the state will in the future receive a revenue by way of taxation. That in December, 1899, the city borrowed from the state, out of the trust funds thereof, $21,400, and issued and delivered to the state its negotiable bonds for the same, and thereby became and was indebted to the state in the sum mentioned. That the legislature of the state, at its first session after the occurrence of the cyclone, enacted chapter 286, Laws 1901, entitled “An act to relieve the city of New Richmond, Wisconsin, from its indebtedness to the trust funds, and making an appropriation therefor.” That such act was approved by the governor and published May 7, 1901, and the first section of the act provides that: “There is hereby appropriated out of any moneys in the state treasury not otherwise appropriated the sum of twenty-one thousand five hundred dollars for the purpose of relieving the city of New Richmond of its indebtedness to the state trust funds incurred after the tornado of June 12, 1899, which destroyed a large part of said city.” The second section of the act provides for the transfer of the amount so appropriated to the trust-funds account by the state treasurer, and that the trust-fund commissioners should thereupon cancel a like amount of the indebtedness of the city of New Richmond. The petition further alleges that at all times since such enactment there has been ample money in the state treasury, not otherwise appropriated, to satisfy the appropriation made by the act, and which might lawfully be transferred to the trust funds as therein provided; that the defendant was and is state treasurer; that it was his duty to make the transfer required by the act; that he has neglected and refused, and still refuses, to so transfer said funds, though often requested by the city to do so, upon the sole ground that the act in question is unconstitutional and void. Upon such petition. and after hearing counsel, an alternative writ of mandamus was issued by this court requiring the defendant to make such transfer, or show cause to the contrary. 88 N. W. 596. Upon the return day of the writ the defendant appeared by the attorney general of the state, E. R. Hicks, and by way of return to such writ moved to quash the same “for the reason that the facts stated therein are not sufficient to constitute a cause of action.”

W. F. McNally and L. K. Luce (Sanborn, Luce, Powell & De Forest, of counsel), for relator.

E. R. Hicks, Atty. Gen., for defendant.

CASSODAY, C. J. (after stating the facts).

The importance of the question involved is fully appreciated, and the case has received the very careful consideration of every member of the court. No one doubts “that the state legislature has authority to exercise any and all legislative powers not delegated to the federal government, nor expressly or by necessary implication prohibited by the national or state constitution.” Bittenhaus v. Johnston, 92 Wis. 595, 66 N. W. 805, 32 L. R. A. 380, and cases there cited, and Wisconsin Keeley Institute Co. v. Milwaukee Co., 95 Wis. 156, 70 N. W. 68, 36 L. R. A. 55, 60 Am. St. Rep. 105. “So it is undoubtedly true, as claimed, that a statute should, if possible, be so construed as not to be in conflict with the constitution.” Id. The constitution provides that “no money shall be paid out of the treasury except in pursuance of an appropriation by law.” Section 2, art. 8, Const. Wis. But this does not mean that the power to appropriate money out of the state treasury is unlimited. It can only be so appropriated “by law,” and that means a valid law. No construction is permissible which defeats the obvious purpose and object of constitutional restrictions. Wisconsin Keeley Institute Co. v. Milwaukee Co., supra. “The power of the government,” says Mr. Tiedeman, “to embark in enterprises of public charity and benefit can only be limited by the restrictions upon the power of taxation, and to that extent alone can these subjects in American law be said to fall within the police power of the state.” Tied. Lim. 4; Wisconsin Keeley Institute Co. v. Milwaukee Co., 95 Wis. 157, 70 N. W. 68, 36 L. R. A. 55, 60 Am. St. Rep. 105. “It is implied in all definitions of taxation,” says Mr Cooley, “that taxes canbe levied for public purposes only.” Cooley, Tax'n (2d Ed.) 103-105. “It may be regarded as a settled doctrine of American law,” says Mr. Dillon, “that no tax can be authorized by the legislature for any purpose which is essentially private, or, to state the proposition in other words, for any but a public purpose.” 1 Dill. Mun. Corp. (4th Ed.) § 508. See, also, Hare, Const. Law, 279. This court, as well as many others, has frequently declared that the taxing power of the state can only be exercised for some object of public or common interest. Soens v. City of Racine, 10 Wis. 271, 279, 280;Brodhead v. City of Milwaukee, 19 Wis. 624, 88 Am. Dec. 711;Curtis' Adm'r v. Whipple, 24 Wis. 350, 1 Am. Rep. 187;Whiting v. Railroad Co., 25 Wis. 167, 3 Am. Rep. 30;State v. Tappan, 29 Wis. 664, 687, 9 Am. Rep. 622;Atty. Gen. v. City of Eau Claire, 37 Wis. 400, 436, 437;Wisconsin Keeley Institute Co. v. Milwaukee Co., 95 Wis. 153, 70 N. W. 68, 36 L. R. A. 55, 60 Am. St. Rep. 105;Association v. Topeka, 20 Wall. 655, 663, 22 L. Ed. 455;Allen v. Inhabitants of Jay, 60 Me. 124, 11 Am. Rep. 185;William Deering & Co. v. Peterson, 75 Minn. 118, 77 N. W. 568. These adjudications, and many others which might be cited, seem to be based upon the broad ground that from the very nature of our state government there is running through our constitution an implied prohibition against forcing our citizens, by way of taxation, to contribute to any mere private purpose or enterprise, and that the determination of the legislature upon the subject is not absolutely conclusive upon the courts. Cooley, Tax'n (2d Ed.) 103-105. That learned author there quotes approvingly the language of the supreme court of the United States in the case above cited, where it is, among other things, said that: “The theory of our governments, state and national, is opposed to the deposit of unlimited power anywhere. The executive, the legislative, and the judicial branches of these governments are all of limited and...