State ex rel. Owen v. Donald

Citation160 Wis. 21,151 N.W. 331
Decision Date24 February 1915
CourtUnited States State Supreme Court of Wisconsin
Syllabus by the Judge.

Given a subject of litigation within the original authority of the court, involving some question of great public importance and an appropriate application to afford jurisdiction of adversary parties, the court may entertain it and permit or order the scope thereof to be broadened as such importance may require, without regard to change of mere form of action or the nature of the appropriate redress.

In the circumstances stated, if the application exhibits a subject of controversy, however narrow, the court may, and, if great public interest demands it, will, upon application of a party to the record, or on its own motion, permit or order any broadening of issues or addition of parties advisable to bring into the litigation all questions so connected with the initial matter as to constitute an entirety.

To amend the fundamental law the prescribed procedure must be followed with substantial accuracy. State, etc., v. Marcus, 152 N. W. 419.

In proposing an amendment to the constitution the legislature acts ministerially under a grant of power defining its limitations and manner of its exercise, so that it should observe the restraints and particulars of the grant. State v. Marcus.

A legislative proposal to amend the constitution, in order to be submitted to the electors, must have been agreed to by each house of one legislature, be spread upon its journals in understandable connection with a recorded yea and nay vote, showing that a majority of all members of such house favored the same, and there must be a like recorded vote at the next legislature as to the precise question agreed to before, though a second full entry on the journals is not necessary, but is advisable.

Passage of the ordinary bill directing submission of a proposed amendment of the fundamental law to the people, reciting that it has been agreed to by the two houses at two sessions of the legislature, does not take the place of the constitutional procedure. State, etc., v. Marcus.

Whether a purported amendment to the fundamental law is such in fact, is a judicial question which the court may determine when it appears, from any viewpoint, involved in a controversy submitted for decision, and must determine, in case of its being vital to the final result. State, etc., v. Marcus, supra.

A judicial determination that the prescribed constitutional steps are essential to efficiency in submitting to the people a proposal to amend the constitution, does not involve technical adherence to form,--only that the sovereign command must be obeyed.

An agreement between the state and another, in the form of an ordinary land contract, the former promising, absolutely, to pay the purchase price of property at stated times in consideration of the promise to sell, creates state debt, within the meaning of Sec. 4, Art. VIII, of the Constitution and is prohibited thereby.

Such an instrument, as in number 8 is evidence of state debt, within the meaning of Sec. 9, Art. VIII, of the constitution, and is prohibited thereby.

A legislative appropriation of money to buy land, purporting to confer authority to contract therefor and pay as money becomes available, does not include power to obligate the state upon fixed, time, interest bearing absolute obligations.

The Commissioners of Public Lands, under the constitution, constitute an artificial person, intrusted with control of the trust fund lands and trust funds as therein mentioned, though the control, as to lands is restricted “to school lands proper” and university lands, except as otherwise provided by the legislature, and in case of the state obtaining money from such fund, in form, by borrowing, the relations of debtor and creditor are thereby created, within the prohibition of the constitution in respect to incurring state indebtedness.

The money obtained by the state from 1860 to 1870, in manner indicated in No. 11, and used for state purposes, created state indebtedness within sec. 4, Art. VIII, of the constitution, and the certificates issued therefor, constitute evidencesof indebtedness within sec. 9 thereof, and such indebtedness and such evidences are within the prohibitions of such sections.

June 1, 1911, the state was under disability, in any event, to incur indebtedness, since it was then indebted in excess of $1,000,000.

Regardless of the state indebtedness existing June 1, 1911, on account of dues to the trust funds, it was under disability to incur ordinary land purchase indebtedness, since such is not within the emergency purposes mentioned in secs. 6 and 7 of Art. VIII of the constitution.

Aside from state indebtedness to the trust fund, the land contracts of January 1, 1911, with other such obligations exceeded the constitutional limitation of the capacity of the state to incur indebtedness.

The refund by the United States to the state of money obtained from the trust funds which was carried into the general fund and used for general state purposes did not affect the status of the state indebtedness.

What constitutes “works of internal improvement” within the prohibition of sec. 10, Art. VIII, of the constitution, is a judicial question.

The term “works of internal improvement” used in Sec. 10, Art. VIII, of the constitution, refers to a broad principle as to state engagement in works of internal improvement, and not to any particular species thereof.

The constitutional prohibition as to “works of internal improvement” is not restricted to such as appertain to business enterprises and public purposes not mere avenues of trade and commerce. It extends to every kind of public improvement not necessary or convenient for use of the state in carrying out its essentially governmental function as fenced about by the constitution.

Creation of a forest reserve, permanent improvement thereof for the production of forest products, conservation and equalization of the flow of natural waters for effect on climatic conditions, development of water power on the reserve and business operations to make such reserve a source of gain for increase thereof or replenishment of the public treasury is, taken as a whole, a “work of internal improvement.”

Temporary reservation of trust fund lands from sale for conservation thereof, protection of such land from fire hazard and the state generally from such hazard, purchase of lands by the commissioners of public lands by legislative authority to block up within existing trust lands for the purpose of increasing proceeds of the latter, the investment in the additional lands within a reasonable time to be returned into the general fund if furnished therefrom as legitimate state expense, and care of the land during the waiting time for sale so as to utilize the forest products of an annual character and to save dead and dying and mature timber is not a “work of internal improvement” though the incidental effect may be such an improvement.

Withdrawal from sale of “school lands proper” or university lands, except in the discretion of the constitutional commissioners and for the benefit of the trust is prohibited by sections 7 and 8, Art. X, of the Constitution.

The school lands of the swamp land class and the drainage land may be withdrawn from sale, in the discretion of the legislature, so long as the purpose thereof is conservation of the lands for the benefit of the purpose of the grant from the United States and the dedication of moneys arising from the school land class as stated in the sections to follow.

Sec. 2, Art. X, of the constitution dedicated to educational purposes “all moneys arising from any grant to this state from the United States where the purposes of the grant were not so specified” so as to create an obligatory trust for some other purposes.

Under the federal grants to this state of wet and overflowed lands, commonly called the swamp land grants, for the purpose of draining such lands, so far as necessary, it was given to the state to decide upon the necessity, leaving excess “lands where the purposes of such grant are not specified” within the meaning of the constitution.

The constitutional dedication impressed the land which the state derived from the swamp land grants with a trust for educational purposes, so far as such lands were not necessary for the particular purposes mentioned in the grant, to the extent that all moneys arising therefrom constitute a part of the school fund.

The purpose of the federal grant and the provision of the constitution together created a disability of the legislature to dispose of the land for any other purpose than that mentioned in such grant and dedication.

Upon the legislature definitely deciding between the two purposes for which the lands derived from the swamp land grants were held, those appropriated to the constitutional purpose, automatically became a part of the state school fund land under the same trusts, reservations and restrictions as are provided in the constitution, to the extent that all moneys arising therefrom belong to the school fund to the same extent as proceeds of lands granted to the state for educational purposes.

The partition of the swamp lands under Chap. 537, Laws of 1865, one-half for school purposes and one-half for drainage purposes, relieved the former from any trust for the latter and gave the school land half the status of school lands as regards moneys arising therefrom subject to be added to by any future express or implied determination to further limit the amount of land to be devoted to drainage purposes.

The constitution acted upon all lands derived from the swamp land grants immediately upon title thereto being vested in the state, dedicating the same to the extent aforesaid, irrevocably, to educational purposes so far as not found necessary for the primary purposes of...

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71 cases
  • State v. Washington
    • United States
    • Wisconsin Supreme Court
    • June 6, 1978
    ...that a John Doe proceeding does not contravene the constitution's mandate of separation of powers. State ex rel. Owen v. Donald, 160 Wis. 21, 111-112, 151 N.W. 331 (1915). As noted previously, John Doe proceedings in this state date back to at least 1889, forty-one years after the adoption ......
  • State ex rel. Twichell v. Hall
    • United States
    • North Dakota Supreme Court
    • February 20, 1919
    ...R. A. (N. S.) 149, 15 Ann. Cas. 781;State ex rel. Stevenson v. Tufly, 19 Nev. 391, 12 Pac. 835, 3 Am. St. Rep. 895;State ex rel. Owen v. Donald, 160 Wis. 21, 151 N. W. 331. See, also, 12 Corpus Juris, 692, 702. In view of the practical construction by the Legislature in support of the pract......
  • State ex rel. Wis. Dev. Auth. v. Dammann
    • United States
    • Wisconsin Supreme Court
    • June 21, 1938
    ...expenses of the state for each year, and it has been held in State ex rel. New Richmond v. Davidson, supra, State ex rel. Owen v. Donald, 160 Wis. 21, 151 N.W. 331, and State ex rel. Garrett v. Froehlich, supra, that an appropriation by the legislature must not merely be public in purpose b......
  • Wisconsin Solid Waste Recycling Authority v. Earl
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    • Wisconsin Supreme Court
    • November 25, 1975
    ...into the gulf of internal improvements which had swallowed up the credit and prosperity of so many states.' State ex rel. Owen v. Donald, supra, 160 Wis. p. 83, 151 N.W. p. 351. The creation of this Authority is not designed to provide limited financial assistance for various municipalities......
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