State ex rel. Ekern v. Zimmerman

• Decision Date: 22 June 1925
• Citation: 204 N.W. 803,187 Wis. 180
• Parties: STATE EX REL. EKERN, ATTY. GEN., ET AL. v. ZIMMERMAN, SECRETARY OF STATE.
• Court: Wisconsin Supreme Court

187 Wis. 180

204 N.W. 803

STATE EX REL. EKERN, ATTY. GEN., ET AL.

v.ZIMMERMAN, SECRETARY OF STATE.

Supreme Court of Wisconsin.

June 22, 1925.

Original mandamus by the State of Wisconsin, on the relation of Herman L. Ekern, Attorney General, and another against Fred R. Zimmerman, Secretary of State. Writ issued.

Original action of mandamus in this court, to compel the defendant, Zimmerman, as Secretary of State, to audit a voucher for the payment of $25 to N. B. Dexter, for right of way acquired on a federal aid project undertaken by virtue of an appropriation of $1,000.000, made by section 2, c. 30, of the Laws of 1925.

The petition (omitting the formal parts), among other things, alleges the presentation by the state highway commission to the defendant Zimmerman of the voucher above referred to, in payment for a right of way acquired for the construction of Wisconsin federal aid project No. 406A, which project was undertaken pursuant to the appropriation of $1,000,000 made by section 2 of chapter 30 of the Laws of 1925; that the said item of $25 is a charge against the appropriation made by said section 2 of chapter 30, and in order to pay the same it will be necessary for the Secretary of State to set up the $1,000,000 appropriation so provided; that the defendant, Zimmerman, as such Secretary of State, refused to audit said voucher, upon the ground that the said appropriation of $1,000,000, as above referred to, is unconstitutional and void, for the reason that it exceeds the limitation of two-tenths of a mill provided for in section 10 of article 8 of the Constitution of Wisconsin; that said Secretary of State, in his official capacity, has also declared his intention to refuse payment of any vouchers presented, to be paid out of said appropriation, or which may be presented for payment out of any appropriation made by the Laws of 1925 for highway construction or maintenance; that there is now in force in this state section 85.04, Statutes, which requires the registration of automobiles and other motor vehicles, and which imposes a license fee for such registration; that, pursuant to chapter 11 of the Laws of 1925, a tax upon gasoline was imposed, amounting to 2 cents per gallon; that the estimated license fee for automobiles and other motor vehicles amounts to $8,120,000, and the amount which the gasoline tax will realize is about $4,888,000, and that approximately $2,000,000 will be received from the federal government by way of federal aid for the construction of highways; that by chapter 11, and section 2 of chapter 30, of the Laws of 1925, the revenues above referred to, amounting to about $15,000,000, have been appropriated for highway purposes.

The petition also alleged that the payment of said voucher is necessary, in order to continue the highway work, and that the state will suffer irreparable injury if said highway work is discontinued, and that it will also jeopardize payment by the federal government of the sum of about $2,000,000, allowed by it to the state for federal aid.

The petitioner prays for an alternative writ of mandamus, and also a peremptory writ, commanding the Secretary of State to audit and allow said voucher, and to issue his warrant upon the treasurer for the payment thereof. This court, pursuant to such petition, issued its alternative writ of mandamus, and upon the service thereof the Secretary of State moved to quash such writ, on the allegations contained in the petition.Herman L. Ekern, Atty. Gen., C. A. Erikson, Deputy Atty. Gen., Franklin E. Bump, Asst. Atty. Gen., and F. C. Seibold, Law Examiner, of Madison, for plaintiffs.

Walter H. Bender, of Milwaukee, for defendant.

DOERFLER, J. (after stating the facts as above).

The issues presented herein are of great importance. As stated in the petition, a scheme of internal improvements of the state is involved. Defendant's counsel takes the position that the constitutional amendment of 1924 limits the expenditures for both highway and forestry purposes to two-tenths of a mill of the taxable property of the state, as determined by the last preceding state assessment, while plaintiffs' counsel contends that such limitation applies solely to expenditures for forestry purposes. The Legislatures of 1921 and 1923 passed upon this amendment in the following form:

“Resolved by the Senate, the Assembly concurring, that section 10 of article VIII of the Constitution be amended to read:

“Article VIII. Sec. 10. The state shall never contract any debt for works of internal improvement, or be a party in carrying on such works; but whenever grants of land or other property shall have been made to the state, especially dedicated by the grant to particular works of internal improvement, the state may carry on such particular works, and shall devote thereto the avails of such grants, and may pledge or appropriate the revenues derived by such works in aid of their completion. Provided that the state may appropriate money in the treasury or to be thereafter raised by taxation for the construction or improvement of public highways. Provided, that the state may appropriate moneys for the purpose of acquiring, preserving and developing the forests of this state; but there shall not be appropriated under the authority of this section in any one year an amount to exceed two-tenths of one mill of the taxable property of the state as determined by the last preceding state assessment.” See Laws 1923, p. 1074.

And in this form it was submitted to the vote of the people at the election in November, 1924.

[1] The purpose of construction of a constitutional amendment is to give effect to the intent of the framers and of the people who have adopted it; “and it is a rule of construction, applicable to all Constitutions, that they are to be construed so as to promote the objects for which they were framed and adopted.” 8 Cyc. 730. “But the intent is to be ascertained, not alone by considering the words of any part of the instrument, but by ascertaining the general purpose of the whole, in view of the evil which existed, calling forth the framing and adopting of such instrument, and the remedy sought to be applied; and, when the intent of the whole is ascertained, no part is to be construed so that the general purpose shall be thwarted, but the whole is to be made to conform to reason and good discretion.” 8 Cyc. 731, and cases cited under note 46. With these general provisions of construction in mind, we will proceed to ascertain the intent of the Legislature and of the people in passing upon this constitutional amendment.

At the time of the adoption of the Constitution, the question of internal improvements was one which was thoroughly considered and debated by the framers. States admitted prior to Wisconsin, under constitutional provisions permitting of internal improvements, had met in some instances with disastrous experiences. The entire country was comparatively new and undeveloped, and the accumulated wealth of the people was but a small fraction of that which exists at the present time. This was particularly so with Wisconsin when the Constitution was adopted. Those who came to the state at that early date and constituted its inhabitants were largely actuated by a desire of engaging in agriculture and the development of the soil. The entire state was covered with a growth of growing timber of great variety, and the products of the forests were so vast and available that they commanded a very low price. The highways theretofore laid out and established under the territorial government were few and far between, and of the crudest nature. The principal means of transportation throughout the entire country was by means of navigation, and the railroads were in their infancy. The difficulty and the cost of internal improvements, when viewed in the light of the ability of the inhabitants to meet expenditures on account thereof, presented an obstacle which was apparently insurmountable. Therefore, after considerable debate in the convention, a constitutional provision was presented and adopted, which was designed to meet the situation as it then existed, and it assumed a form which, in substance, prohibited the incurring of indebtedness for such purpose, excepting only that it allowed the use of the proceeds of grants of property dedicated for that purpose, to be used in the limited way prescribed. The development of highways, therefore, for many years followed a very slow and uncertain course, but the proportions assumed at all times seemed to meet the necessities of the situation as they developed in the course of the growth of the population.

The history of the prohibition against internal improvements is thoroughly set forth in the opinions in State ex rel. Owen v. Donald, 160 Wis. 21, 151 N. W. 331, and State ex rel. Jones v. Froehlich, 115 Wis. 32, 91 N. W. 115, 58 L. R. A. 757, 95 Am. St. Rep. 894, and reference thereto is hereby made.

During the period between 1850 and 1880, the railroad systems of the state were developed to such an extent as to afford ready and available means of transportation, not only between the various parts of the state, but between the state and other parts of the Union, and such railroad transportation assumed such proportions, in the course of time, that they supplanted to a large extent the former means of transportation by water.

[2] At the close of the last century the automobile was invented, and used to a limited extent upon the highways in the state. While the feasibility and practicability of this new invention was obliged to meet the test of all new innovations, it developed with marvelous rapidity. The types as first constructed were crude and cumbersome, and but few of our people then had a vision of the great development that followed in the course of less than a quarter of a century. However, it soon became apparent that the automobile had come to stay, at least until such time when the...