State ex rel. Martin v. City of Juneau
| Decision Date | 07 October 1941 |
| Citation | 238 Wis. 564,300 N.W. 187 |
| Parties | STATE ex rel. MARTIN, Attorney General, v. CITY OF JUNEAU. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from an order of the Circuit Court for Dodge County; Edward J. Gehl, Judge.
Affirmed.
On November 20, 1937, the State Board of Health and the State Committee on Water Pollution entered an order based upon the following findings:
“From the evidence, records and files in this proceeding it is concluded and found that the discharge of inadequately treated sewage from the City of Juneau and the discharge of untreated milk waste from the Producers Cooperative Association into the drainage ditch causes:
Upon the basis of these findings and the evidence upon which they were based, the following order was entered:
“It is therefore ordered:
City of Juneau
“(1) That the City of Juneau take immediate steps to secure detailed plans and specifications for a complete sewage treatment system or plant adequate to meet local needs, such plans and specifications to be submitted to the State Board of Health for approval in accordance with statutory and code requirements not later than December 31, 1937.
“(2) That the aforesaid sewage treatment system or plant be installed without delay, such system to be completed and placed in operation not later than November 1, 1938.
“(3) That the sewage treatment system be so operated and maintained at all times as to prevent objectional pollution conditions in the ditch.”
The order also contained matter affecting the Producers Cooperative Association, not material upon this appeal.
The City of Juneau having failed to comply with the order, the State of Wisconsin upon relation of John E. Martin, Attorney General, commenced this action seeking a mandatory injunction commanding the City of Juneau to comply with the orders of the State Board of Health and the State Committee on Water Pollution, and asking that the City of Juneau be enjoined from discharging inadequately treated sewage into the drainage ditch after a reasonable time to be determined by the court. Attached to the complaint is Exhibit A, containing the recitals and a full copy of the orders made and a summary of the testimony before the State Board of Health and the State Committee on Water Pollution. To this complaint the defendant City of Juneau answered making certain denials and admissions. By way of a further defense the defendant city set up that it has a population of twelve hundred inhabitants, stated the amount of its assessed valuation, the amount of its bonded indebtedness, alleged that the order sought to be enforced was indefinite in certain particulars; that the order made was in excess of the powers conferred by statute upon the State Board of Health and the State Committee on Water Pollution; that the order was not reasonably necessary as a health measure and alleged that it had constructed a septic tank in 1922 which was adequate to dispose of the city's sewage.
To this answer the plaintiff demurred. An order sustaining the demurrer was entered on January 9, 1941, from which the defendant city appeals.
Howard W. Hilgendorf, City Atty., of Juneau (Wilkie, Toebaas, Hart, Kraege & Jackman, of Madison, of counsel), for appellant.
John E. Martin, Atty. Gen., and Warren H. Resh, Asst. Atty. Gen., for respondent.
[1] We shall first consider what questions are raised by the demurrer to the answer of the defendant city. Such authority as the State Board of Health and the State Committee on Water Pollution have in respect to the matters here under consideration is conferred upon them by ch. 144, Wisconsin Stats. The order in question was signed by the State Board of Health and the Committee on Water Pollution. With respect to the orders made by the State Board of Health, sec. 144.10 provides: “An owner may elect to arbitrate or may bring action against the board in the circuit court for Dane county to determine the necessity for and reasonableness of any order of the board.”
With respect to orders made by the State Committee on Water Pollution, sec. 144.56 provides how orders of the committee may be reviewed or the questions with respect thereto arbitrated. The City of Juneau did not pursue the statutory remedies. Because of its failure to avail itself of the remedies provided by statute in this class of proceedings, it is considered that in this action to enforce the performance of the order, the city is foreclosed from raising any questions except (1) the validity of ch. 144 and (2) whether the State Board of Health and the State Committee on Water Pollution acted within the powers conferred upon them by statute.
[2] This Court has repeatedly held that where a specified method of review is prescribed by an act creating a new right or conferring a new power, the method so prescribed is exclusive and if review is sought that method must be pursued. State ex rel. Attorney General v. Fasekas, 1937, 223 Wis. 356, 362, 269 N.W. 700,Corstvet v. Bank of Deerfield, 1936, 220 Wis. 209, 263 N.W. 687.
Upon this appeal the city contends that ch. 144 is invalid and unconstitutional on the following grounds: (1) The terms and provisions of the said statutes are vague and indefinite and incapable of enforcement. (2) The powers given in and by said statutes to said Board and Committee are and constitute an unlawful delegation of legislative power. (3) The powers given in and by said statutes to said Board and Committee are and constitute an unlawful delegation of judicial power. (4) That said statutes are unreasonable, arbitrary and oppressive.
The city relies here upon Dowling v. Lancashire Ins. Co., 1896, 92 Wis. 63, 65 N.W. 738, 31 L.R.A. 112;State v. Buldge, 1897, 95 Wis. 390, 70 N.W. 347, 37 L.R.A. 157, 60 Am.St.Rep. 123 and similar cases from other jurisdictions.
[3] We have recently considered the developments in the field of administrative law since the decision of Dowling v. Lancashire in so many cases that it would be a work of supererogation for us again to review the cases. This change in the law with respect to the delegation of powers conferred by the constitution upon legislative and judicial bodies has come in response to the demands of social imperatives. While all authorities agree that there are limitations upon the power to delegate, it is clear that those limitations have not been exceeded by the provisions of chapter 144.
[4][5][6][7] Under our system of constitutional law municipal corporations and quasi-municipal corporations are arms of the state created for the purpose of exercising within their boundaries those powers conferred upon them by the legislature and discharging such duties as the state may prescribe. In no field is the power of the state broader or more general than in the protection and promotion of the public health-a matter which concerns not only the state in its corporate capacity but every individual within it. It is principally because municipalities are indifferent to the increasing demands made upon them by our advancing civilization in the field of education, transportation and health that local bodies have been so largely divested of power and been made subject to legislative regulation and supervision by state authority. The case which we are considering is a glaring instance of the disregard of public welfare in the interest of objecting taxpayers. This matter was dealt with in Van Gilder v. Madison, 1936, 222 Wis. 58, 267 N.W. 25, 268 N.W. 108, 105 A.L.R. 244. It is not necessary to enlarge upon it in this case. In the performance of its duty to protect the public health the City of Juneau is not acting in a private or proprietary capacity but purely in a governmental capacity in the discharge of one of the highest duties it owes to its citizens. A municipal corporation has no privileges or immunities under the federal constitution which it may invoke against state legislation affecting it....
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