State ex rel. Mueller v. Thompson

• Decision Date: 14 May 1912
• Citation: 137 N.W. 20,149 Wis. 488
• Parties: STATE EX REL. MUELLER v. THOMPSON, CITY CLERK.
• Court: Wisconsin Supreme Court

149 Wis. 488

137 N.W. 20

STATE EX REL. MUELLER

v.THOMPSON, CITY CLERK.

Supreme Court of Wisconsin.

May 14, 1912.

Syllabus by the Judge.

The fundamental law embodies those principles, some in form of declaration, others by way of implied or express prohibition, and some in the form of grant, supposed to be limitations essential to conserve human liberty, security, equality and happiness, and not to be subject to change except in a way calculated to arouse the highest judgment and most efficient deliberate considerate choice.

Each of the three distinct departments of government,--executive, legislative and judicial,--is supreme in its sphere; outside thereof is usurpatious, and that of the judiciary includes power to dominate, efficiently, as regards marking the precise boundaries of each and remedying invasions by either of the territory of the other.

The sole power to make law is lodged in the Legislature with competency, however, to exercise it, by adopting an enactment, complete in itself, and prescribing the conditions under which it shall be vitalized, as by a vote of the people at large or those of a particular district, according to circumstances.

The power to grant municipal charters is an attribute of sovereignty, exercisable, anciently, solely by the personal sovereign, then by his legislative body by his consent. Here the people succeeded to that prerogative power and, by the fundamental law, made the Legislature the repository thereof.

The power to make, change or repeal municipal charters was legislative in character by the common law in force when the state was admitted into the Union and so expressly retained by section 13, art. 14, in the general retention of our common law system, as a whole, to remain in force till changed by the Legislature in the constitutional way.

Power of the Legislature to change the common law, in force in this state when the Constitution was adopted, is limited, respecting municipal charters, by section 1, art. 11, which, in form, grants thereto power to form municipal corporations, which, by necessary implication, includes power to grant municipal charters, fixing all fundamentals with reference to the special city government and prohibits exercise of such power otherwise, under the rule Expressio unius exclusio alterius.

Section 32, art. 4, of the Constitution commanding legislative provision for the transaction of any business, the doing of which by special legislation is prohibited by section 31 of such article, contemplates a legislative effort in general, such as by the enactment of a law to be passive until made active by a vote of the people of any district authorized to act on the question,--not delegation of power to the people at large or of districts, or a district, according to circumstances, to do the business.

The idea embodied in section 31, art. 4, of the Constitution, as to city charters, is that they shall be uniform throughout the state, as near as practicable, which would be violated by affording cities capacity to create want of uniformity by the exercise of authority, in severalty, to make, change and repeal their charters.

The power, in form, delegated by chapter 476, Laws of 1911, by the language, “Every city, in addition to the power now possessed, is hereby given authority to alter or amend its charter, or to adopt a new charter,” is such dominating feature thereof as to render all others subsidiary thereto and dependable thereon.

The power so, in form, delegated is one which was within the exclusive legislative field before the Constitution and confined thereto thereby.

The ruling feature of chapter 476, Laws of 1911, being unconstitutional, the others, forming an inseparable whole, take the cast thereof and fall therewith as invalid.

Appeal from Circuit Court, Milwaukee County; W. J. Turner, Judge.

Mandamus by the State, on the relation of Carl T. Mueller, against Carl D. Thompson, City Clerk of the City of Milwaukee. From a judgment refusing to quash the alternative writ, the respondent appeals. Reversed and remanded, with directions to sustain the motion, to quash the alternative writ, and to dismiss the mandamus action.

Mandamus proceeding to coerce the clerk of the city of Milwaukee to submit to its electors, under chapter 476, Laws of 1911, a proposed alteration of the city charter. The purpose of such alteration was to allow the city to conduct the business of furnishing its citizens with ice.

All conditions precedent in the law to calling a special election in respect to the matter of the proposed change were satisfied, but the clerk refused to make the call. Whereupon an alternative writ of mandamus was sued out to coerce him to do so. Such proceedings were thereafter had that appellant moved the court to quash such writ, which was overruled. This appeal followed to test the validity of such law.Daniel W. Hoan, City Atty., for appellant.

Nohl & Nohl, L. H. Bancroft, Atty. Gen., and Russell Jackson, Deputy Atty. Gen., for respondent.

F. C. Winkler, Erich C. Stern, and Stern & Williams, amicus curiæ.

MARSHALL, J.

As indicated in the foregoing, the motion raised the issue of whether chapter 476, Laws of 1911, commonly called the “Home Rule” act, is constitutional. The trial court decided in the affirmative.

[1] When our state government was formed, the people adopted for the paramount law, a declaration of principles modeled after the prevailing Constitutions in this country. It was intended to be exact in its limitations of power, not to be open to change except in such particular and deliberate way as to render as certain as practicable that the electors desired it, evidenced by an expression of judgment after ample time and facility for investigation and maturity of thought on the subject, not to be subject to violation at all, and to create an instrumentality,--a court,--to efficiently guard it in that respect. One might exhaust his capability of using the great resources of our language in portraying the necessity for such a foundation for a people's government to rest upon,--in picturing the dignity which should be accorded to it by every department of affairs and by the people in their individual capacities, and yet leave the matter incomplete. One might do likewise as to the particular duty resting here to hold up the Constitution safely above every act of law-making power which would otherwise violate it, without exaggerating the importance to the people of its faithful performance. Such performance is a judicial function, over-shadowing in its significance. That it is sometimes viewed with impatience by those called to face constitutional restraints, cannot have any weight whatever as to whether the duty should be performed or not. History shows, to the great credit of average intelligent comprehension of our system of government, that firm, conservative judicial administration in the field of testing legislative enactments by the Constitution, is quite sure to be approved in general by the deliberate judgment of the people. In no field have the people, under our form of government, won more distinction than in loyalty, in the ultimate, to their courts.

[2] In our constitutional scheme there are three co-ordinate substantially independent branches, namely, executive, legislative and judicial. Each, so long as operating within its legitimate field, is supreme. It is for the court, in the ultimate, to determine whether the boundaries of a particular field have been overstepped and, if so, to nullify or stay the transgression.

[3] The power to make law, commonly called legislative power, is dealt with by section 1, art. 4 of the Constitution in these words: “The legislative power shall be vested in a Senate and Assembly.” In thus limiting power to make law to the representative bodies the people, by necessary implication, parted with authority to do so directly; as the court has held, though not to determine by legislative permission whether a law, enacted in the constitutional way, shall be put into operation. State ex rel. Boycott v. Mayor, etc., of La Crosse, 107 Wis. 654, 84 N. W. 242;State ex rel. Van Alstine v. Frear, 142 Wis. 320, 125 N. W. 961, 20 Ann. Cas. 633.

So, it is plain that, power to make law,--to exercise the function contemplated by that part of the Constitution under consideration,--was reserved exclusively to the Legislature, and any attempt to abdicate it in any particular field, though valid in form, must, necessarily, be held void. Just what falls within the scope of this power is not always easy to determine; but, as to a particular subject plainly recognized by the Constitution as within such field, there is no room for doubt. Such is the case as to granting corporate charters to cities, as we shall see.

[4][6]Section 1, art. 11, of the Constitution vests in the Legislature power to form municipal corporations by either general or special laws. Section 3 of such article provides that “it shall be the duty of the Legislature, and they are hereby empowered, to provide for the organization of cities * * * and to restrict their power of taxation, assessment, borrowing money, contracting debts and loaning their credit, so as to prevent abuses in assessments and taxation, and in contracting by such municipal corporations.”

Those provisions have always been treated, and unavoidably so, as embodying the fundamental law as regards the granting of corporate charters to cities. Such a municipal corporation can only be created by a legislative act; that is by legislative charter, determining its form of government and its powers. No attempt has ever, before the act in question, been made to grant or change a municipal corporate charter, except by general or special act of the Legislature, particularly covering the subject. Such has been a feature of civil government from time immemorial. Such charters, anciently, emanated from the crown as a prerogative function and went into force by consent...