State ex rel. Van Alstine v. Frear

• Decision Date: 21 April 1910
• Citation: State ex rel. Van Alstine v. Frear, 142 Wis. 320, 125 N.W. 961 (Wis. 1910)
• Parties: STATE EX REL. VAN ALSTINE v. FREAR, SECRETARY OF STATE, ET AL.
• Court: Wisconsin Supreme Court

142 Wis. 320

125 N.W. 961

STATE EX REL. VAN ALSTINE

v.FREAR, SECRETARY OF STATE, ET AL.

Supreme Court of Wisconsin.

April 5, 1910.

Concurring Opinion, April 21, 1910.

Appeal from Circuit Court, Dane County; Martin L. Lueck, Judge.

Action by the State of Wisconsin, on the relation of A. B. Van Alstine, against James A. Frear, Secretary of State, and another.From an order sustaining a general demurrer to the complaint, relator appeals.Affirmed.J. Elmer Lehr, C. F. Lamb, and W. D. Thompson(Thomas M. Kearney, of counsel), for appellant.

F. L. Gilbert, Atty. Gen., and Russell Jackson, Deputy Atty. Gen., for respondents.

BARNES, J.

This is a taxpayer's action, brought to enjoin the Secretary of State from preparing and transmitting to the several county, town, city or village clerks of the state of Wisconsin, notices designating the offices for which candidates are to be nominated at the primary election, as required by chapter 451,Laws 1903, to be held in September, 1910, and from performing all other acts required by him to be performed by said chapter, and from auditing any claims or accounts for expenses arising out of any acts required to be performed under said chapter, and from drawing any warrant or order upon the State Treasurer in payment thereof, and also enjoining the State Treasurer from paying any warrant or order drawn on him because of any expense incurred under the aforesaid chapter.The relator appeals from an order sustaining a general demurrer to the complaint.

The validity of said chapter 451, popularly known as the “Primary Election Law,” is assailed on five grounds: (1) Because the act in question has no validity unless it is in force and effect by virtue of legislative power delegated by the Legislature to the voters of the state; (2) because the act in question is a general law, and was never published after its final approval by the voters of the state; (3) because the act in question abridges the right of the people to assemble and consult for the common good; (4) because the act unlawfully and unreasonably limits the rights of candidates for office in securing support from voters and the rights of voters to participate in the selection of candidates for office; (5) because the act in question operates to coerce the judgment and discretion of the Legislature in choosing United States Senators, and unlawfully regulates the manner of choosing such Senators, and operates to secure their election by popular vote.

Section 26 of said chapter 451 provides: “The question whether the foregoing provisions of this act shall take effect and be in force shall be submitted to the people of this state, in the manner provided by law for the submission of an amendment to the Constitution, at the next general election to be held in November, 1904.If approved by a majority of the votes cast upon that question, it shall go into effect and be in force from and after such ratification by the people; otherwise it shall not take effect or be in force.”

Section 28 of the act provides: “This act shall take effect and be in force from and after its passage and publication subject to all provisions herein contained for its submission to the people for their ratification or rejection.”

Section 1 of article 4 of the Constitution of Wisconsin provides: “The legislative power shall be vested in a senate and assembly.”

It is argued that the legislative power involves not only the function to declare what the law shall be, but also the function to declare when it shall go into effect, and that both must be exercised before the law is complete, and both call for an exercise of judgment and discretion on the part of members of lawmaking bodies, and that legislative power can only be delegated to such bodies as the Constitution permits it to be delegated to, and that such power must be delegated in the manner prescribed by the Constitution.

If the premise is accurate that legislative power was attempted to be delegated to the people by chapter 451, then the conclusion that the law is void is supported by such an abundance of authority that the rule of stare decisis should be applied.Except as authorized by the Constitution, the Legislature cannot delegate power to make a law.Slinger v. Henneman, 38 Wis. 504, 510;Dowling v. Ins. Co., 92 Wis. 63, 69, 65 N. W. 738, 31 L. R. A. 112;In re North Milwaukee, 93 Wis. 616, 621, 67 N. W. 1033, 33 L. R. A. 638;State ex rel. Adams v. Burdge, 95 Wis. 390, 70 N. W. 347, 37 L. R. A. 157, 60 Am. St. Rep. 123;State ex rel. Boycott v. Mayor, etc., 107 Wis. 654, 658, 84 N. W. 242;Borgman v. Antigo, 120 Wis. 296, 97 N. W. 936;State ex rel. v. Chittenden, 127 Wis. 468, 515, 107 N. W. 500;Nash v. Fries, 129 Wis. 120, 108 N. W. 210;M., St. P. & S. S. M. R. Co. v. Railroad Com., 136 Wis. 146, 162, 172, 116 N. W. 905, 17 L. R. A. (N. S.) 821;State ex rel. Williams v. Sawyer County, 140 Wis. 634, 123 N. W. 248.

It is just as well settled that, while the Legislature may not delegate its power to make a law, it can make a law to become operative on the happening of a certain contingency or on the ascertainment of a fact upon which the law makes or intends to make its own action depend.In re Griner, 16 Wis. 423;State ex rel. Atty. Gen. v. O'Neill, 24 Wis. 149;Smith v. Janesville, 26 Wis. 291;Dowling v. Ins. Co., supra;In re North Milwaukee, supra;State ex rel. Adams v. Burdge, supra;Adams v. Beloit, 105 Wis. 363, 81 N. W. 869, 47 L. R. A. 441;Nash v. Fries, supra;State ex rel. Faber v. Hinkel, 131 Wis. 103, 111 N. W. 217;M., St. P. & S. S. M. R. Co. v. Railroad Com., supra.The authorities elsewhere adopting the same doctrine are so numerous that it may be said they are practically unanimous.

Therefore, the question arising under section 1 of article 4 of the Constitution is, Did chapter 451,Laws 1903, delegate to the electors of the state the power to make that law, or was the act a complete law in itself when it received the executive sanction and was published, and which was to become operative only on the happening of a future contingency, to wit, its approval by a majority of the electorate voting on the question?The courts have very properly refrained from attempting to promulgate any general rule as to what is or what is not a proper contingency upon which the operation of a law may be made to depend.Concrete cases have been passed upon as they have arisen, and a reference to most of the cases upon the point in this court, as well as some others, with a brief statement of the contingency involved, will be found in M., St. P. & S. S. M. R. Co. v. Railroad Com., supra.

In support of the contention that the Legislature sought to confer legislative power on the electorate, and did not enact a law that was to become effective on the happening of a contingency, it is urged that the Constitution provides that certain questions may or must be submitted to the voters of the state(sections 1,2, art. 12;section 5, art. 11;section 22, art. 4;sections 7,8, art. 13); that this express delegation of the power of submission excludes any other or further power to submit; and that an election is not a future contingency upon which the operation of a law may be made to depend.

This court, in State ex rel. Atty. Gen. v. O'Neill, 24 Wis. 149, held that the question as to whether a local law should become operative might properly be submitted to a vote of the people.

In Smith v. Janesville, 26 Wis. 291, it was held that there was no difference in principle in this regard between a general and a local law, and that the result of an election was one of those future contingent events upon which a general law might be made to take effect.

It is not contended that the O'Neill Case was not correctly decided, or that the opinion of the court in Smith v. Janesville does not fully meet the attack on the law which is under present consideration.It is contended, however, that there is a well-recognized distinction between the right of legislative bodies to submit local measures for approval to the voters of the particular locality that is to be affected thereby and the right to submit general acts for approval to the voters of the state.Furthermore, that the decision in Smith v. Janesville is not in harmony with that of any other court in the country; that it has been subsequently overruled, and that, as a matter of fact, the law under consideration in that case, being an amendment to the banking law, was properly and necessarily submitted to the voters, and that, while the decision was placed on a wrong ground, it was right in fact, and the false reasons given for the decision should be treated as mere dictum.

It is also urged that the rule of stare decisis should not be applied because the decision in Smith v. Janesville is wrong in principle and contrary to the uniform current of judicial decision elsewhere, and because the case has been subsequently overruled.

Decisions on constitutional questions that have long been considered the settled law of the state should not be lightly set aside, although this court as presently constituted might reach a different conclusion if the proposition were an original one.As is said in Fisher v. Mfg. Co., 10 Wis. 351, 355: “It is the duty of this branch of the government to pass finally upon the construction of a law, and determine whether the Legislature in its action has transcended its constitutional limits, and the community has a right to expect, with confidence, we will adhere to decisions made after full argument and upon due consideration.”It is true that property rights have not grown up under the decision in question.It is also true that the Legislature had the right to assume, when it enacted chapter 451,Laws 1903, that it was a settled principle of constitutional law in Wisconsin that the question whether or not a general law should become operative might be referred to a vote of the electors of the state.This court had so...