State ex rel. Jones v. Froehlich

• Decision Date: 19 May 1902
• Citation: 115 Wis. 32,91 N.W. 115
• Parties: STATE EX REL. JONES ET AL., LEVEE COM'RS, v. FROEHLICH, SECRETARY OF STATE.
• Court: Wisconsin Supreme Court

115 Wis. 32

91 N.W. 115

STATE EX REL. JONES ET AL., LEVEE COM'RS,

v.FROEHLICH, SECRETARY OF STATE.

Supreme Court of Wisconsin.

May 19, 1902.

Appeal from circuit court, Columbia county.

Mandamus, on the relation of J. E. Jones and others, as commissioners, to compel William H. Froehlich, secretary of state, to issue warrants for certain expenses incurred by relators. From a judgment in favor of the relators, the defendant appeals. Reversed.

By chapter 282 of the Laws of 1901 there was appropriated from the general fund an amount not exceeding $20,000, “for the purpose of constructing and strengthening the levee system already existing in the vicinity of Portage on the Wisconsin river in Columbia and Sauk counties, Wisconsin.” A commission appointed by the governor was created to have charge of such work, “in such manner as, in their judgment, will best protect said city and vicinity from the overflow of the Wisconsin river.” Said commission was to audit and certify the bills thereof, which were to be paid on the approval of the governor. The municipalities in which situated were required to procure the necessary right of way without expense to the state. The commission, having been appointed, incurred a certain bill for surveying, duly audited and certified the same, and it was approved by the governor. The secretary of state, however, refused to draw and issue warrants on the sole ground that the legislation is void, whereupon the commissioners, as relators, brought mandamus proceedings to coerce the issue of such warrants. The petition alleges, as inducement to the legislation, that in the vicinity of Portage the Wisconsin river has in many places low banks, frequently overflowed at times of high water, though for the most part the country is cultivated and improved; that certain natural water courses run through said low territory, emptying into the Fox river, which at low-water stage is about 8 feet below the level of the Wisconsin, the waters of which latter river, at times of unusually high water, rise to a level 20 feet above the level of the waters of the Fox; that about 1850 a canal was constructed, under the authority of the state, connecting the Fox and the Wisconsin at the city of Portage, and that the same is now owned and controlled by the United States; that in 1861 the town of Lewiston, from the proceeds of swamp lands, erected a small dike, which was in part swept away in 1880 and 1881; that in 1882, and subsequently, levees have been constructed from the proceeds of swamp lands and moneys appropriated by the United States government, and by private aid and subscriptions, and appropriations by the city of Portage and certain towns; that they are inadequate and incomplete, and have been at many times and different places broken through. A somewhat glowing picture is painted of the possibility of the breaking through of the waters of the Wisconsin, the rush thereof across to the Fox and down its valley, so that “great loss of life and immense and incalculable destruction of property throughout the whole Fox River valley, and covering a distance of 100 miles in length and several miles in width, might probably ensue.” It is also asserted that the construction of levees, which can be accomplished with the moneys appropriated by the act in question, would protect the lives and property of the citizens of the state from the dangers portrayed in the petition. To this petition, and the alternative writ based thereon, the attorney general, as attorney for the state and for the secretary of state, entered a general demurrer, which being overruled, and he declaring that he had no desire to make any return controverting the facts of the petition, judgment was entered of peremptory mandamus, commanding the secretary of state to draw and issue warrants as prayed, from which judgment the secretary of state brings this appeal.E. R. Hicks, Atty. Gen., for appellant.

H. W. Chynowerth and W. S. Stroud, for respondents.

DODGE, J. (after stating the facts).

This case presents for consideration and decision, not the inherent limits of the general power of appropriation of public moneys conferred upon the legislature in the grant of the legislative power, nor the inherent limits of the general power to provide for good government of the state, for the protection of the “lives, limbs, health, comfort, good order, morals, peace, and safety of society” (State v. Heinemann, 80 Wis. 253, 49 N. W. 818, 27 Am. St. Rep. 34), called the “police power,” but, instead, presents the question whether, waiving discussion of the extent of such powers as a general proposition, the legislature is expressly forbidden to enact legislation such as that before us. The prohibition relied on is section 10, art. 8, of the constitution: “The state shall never contract any debt for works of internal improvement, or be a party in carrying on such works.” That by the appropriation of money, to be expended by a state commission in certain work, the state is made “a party in carrying on such work,” cannot be doubted. Indeed, that is not questioned, but only whether the construction of the proposed system of levees is a work of “internal improvement,” within the meaning of this constitutional inhibition. The words themselves are capable of including substantially every act within the scope of governmental activity which changes or modifies physical conditions within the limits of the commonwealth; but, as the purpose of the constitution was to form a government (preamble), we must presume that these words were used in sufficiently limited sense to permit the accomplishment of that fundamental purpose, at least to a reasonable extent. That some limitation of the broad meaning was intended has been recognized by all branches of the government and by the people, in the unchallenged provisions for state capitol, university, schools for blind, deaf, and feeble-minded, hospitals, penitentiaries, and the like, and for extensive works in improvement of the grounds appurtenant thereto. On the other hand, we cannot doubt the use of these words in a sense to exclude works which, but for the prohibition, might have been within the legitimate field of state government,--works having at least some measure of public and governmental purpose,--else the prohibition would have been needless. The history of the federal and state governments during the quarter century preceding our constitutional convention seems to throw much light on the reason for the presence of this section in our constitution, and on the meaning of the words used therein. From about 1820 there had been vigorous debate and partisan difference over the propriety of a federal policy of construction of “internal improvements” within the several states, among the concrete illustrations of which toll roads and canals were most prominent; but other facilities of commerce and navigation, such as improvements to harbors and navigable streams, were present. Several of the states (notably, New York, with its Erie Canal) had undertaken similar works (some of them with great success) in development of their resources, settlement of their territory, and promotion of prosperity for their citizens, as also even in promise of actual profit to the state treasury from operation of the land and water highways, which had come to include steam railroads. In 1835, when the state of Michigan was carved out from territory of which Wisconsin was also a part, popular sentiment was enthusiastically favorable to governmental activity in this direction, and the new state government was commanded: “Internal improvements shall be encouraged by the government of this state; and it shall be the duty of the legislature as soon as may be, to make provision by law for ascertaining the proper objects of improvements, in relation to roads, canals, and navigable waters.” Const. Mich. 1835, art. 12, § 3; American Commonwealths (Mich., Cooley) p. 280. This behest was promptly and vehemently obeyed. Very shortly thereafter the bubble hope of direct profit to the state treasury from the governmental ownership...