State ex rel. Williams v. Sawyer Cnty. Bd. of Supervisors

• Decision Date: 12 November 1909
• Citation: 123 N.W. 248,140 Wis. 634
• Parties: STATE EX REL. WILLIAMS v. SAWYER COUNTY BOARD OF SUPERVISORS ET AL.
• Court: Wisconsin Supreme Court

140 Wis. 634

123 N.W. 248

STATE EX REL. WILLIAMS

v.SAWYER COUNTY BOARD OF SUPERVISORS ET AL.

Supreme Court of Wisconsin.

Nov. 12, 1909.

Appeal from Circuit Court, Sawyer County; J. K. Parish, Judge.

Certiorari by the State, on relation of Samuel J. Williams, against the Board of Supervisors of Sawyer County and another. Judgment for relator, and defendants appeal. Reversed and remanded, with directions to dismiss.

This was a certiorari proceeding brought to review the action of the county board of Sawyer county in rescinding a former resolution passed by it adopting the provisions of chapter 651, p. 562, Laws 1907. By a single resolution adopted by the county board at a meeting held on March 4th the provisions of chapter 651, p. 562, Laws 1907, were adopted and a special municipal court for said county was created. The resolution fixed the place at which the judge of such court should hold his office, and provided for court accommodations, an official seal, necessary records and stationery, and for blanks, furniture, fuel, and lighting. By such resolution the county clerk was instructed to give the requisite notice that such judge would be elected on the first Tuesday in April, 1908. The salary of such officer was fixed at $900 per year. After the passage of such resolution, the relator became a candidate for the office of municipal judge, and secured the necessary number of signers to have his name placed on the official ballot, and it was so placed, and he was elected on the first Tuesday in April, 1908. In the meantime, and on April 2d, a special meeting of the county board of Sawyer county was called, at which meeting a resolution was passed rescinding the resolution adopted on March 4th. The validity of the resolution last passed is attacked in this proceeding. By its judgment the court annulled such resolution and declared it to be void and of no effect. From such judgment this appeal is taken.F. L. McNamara, for appellants.

Horace B. Walmsley, for respondent.

BARNES, J. (after stating the facts as above).

“In matters purely local and municipal, the Legislature may enact conditional laws, and refer it to the people or proper municipal authorities to decide whether such laws shall or shall not have force and effect in their respective municipalities.” Slinger v. Henneman, 38 Wis. 510. Such a law must be a complete enactment in itself. It must contain an entire and perfect declaration of the legislative will, and it must require nothing to perfect it as a law. The only thing that may be left to the people to determine is whether they will avail themselves of its provisions. State ex rel. v. O'Neill, 24 Wis. 149, 153;Dowling v. Insurance Co., 92 Wis. 63, 69, 65 N. W. 738, 31 L. R. A. 112; In re Incorporation of North Milwaukee, 93 Wis. 616, 620, 67 N. W. 1033, 33 L. R. A. 638;Adams v. Beloit, 105 Wis. 363, 369, 81 N. W. 869, 47 L. R. A. 441. “The Legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action to depend.” Dowling v. Insurance Co., 92 Wis. 69, 65 N. W. 739 (31 L. R. A. 112), supra; Adams v. Beloit, 105 Wis. 369, 81 N. W. 869, 47 L. R. A. 441, supra; M., St. P. & S. S. M. R. Co. v. Railroad Commission, 136 Wis. 146, 116 N. W. 905, 17 L. R. A. (N. S.) 821. Tested by these principles, can chapter 651, p. 562, Laws 1907, be sustained as a valid enactment in its entirety? While the case under consideration might be disposed of without pointing out the infirmities of the law, it was thought best to do so in order to prevent illegal courts from being established thereunder, and to avoid the confusion that might arise from the trial of causes and the rendition of judgments by unconstitutional courts. Section 1 of the law in question provides: “There is hereby created and established in each county of this state one or more courts, as may be provided for, to be known and designated as special municipal courts and with the powers and jurisdiction as hereafter provided.” Section 2 of the law provides that the board of supervisors of any county may, by a majority vote of all its members elect, adopt the act by resolution, and upon such adoption may “in like manner and upon a like vote provide for a special municipal court or courts as herein provided, to be known and designated as the First (or other numerical designation) Special Municipal Court of _______ County.”

Can the Legislature vest in a county board the power to say when and how many municipal courts may be established in a given county? Does not the power attempted to be given confer upon the county board something more than the mere right to adopt the provisions of the law? Does it not in fact confer upon such board the power to legislate new courts into existence? If the law in its entiretycan be upheld, it is the duty of the court to uphold it. If the entire act cannot be sustained, it is the duty of the court to sustain the valid portion of it, if it can do so without violating established principles of law. It is well settled that an act may be unconstitutional in some of its provisions and valid in others. Where parts of a statute are valid and capable of being executed independently of other parts which are invalid, the valid parts may become operative unless the court can say that the Legislature intended that they should all be carried into effect as a whole and as conditions and compensations for each other. Lynch v. Steamer Economy, 27 Wis. 69;State ex rel. v. Dousman, 28 Wis. 541;Slauson v. Racine, 13 Wis. 404. Section 22, art. 4, Const., empowers the Legislature to confer on the boards of supervisors of the several counties of the state such powers of a local, legislative, or administrative character as they shall from time to time prescribe. But by section 2, art. 7, Const., the power to create and establish such courts as are provided for by chapter 651, p. 562, Laws 1907, is exclusively vested in the Legislature, and must be exercised by it. We do not doubt that a valid option law may be passed providing for the creation of municipal courts. But such a law must be complete and perfect in itself, and must become operative upon a vote which simply adopts its terms. Discretion to say what the law shall be after it is adopted, or to what extent it shall be applicable, may not be conferred on the people of a county or on its board of supervisors. It is here left to the discretion of the county board to say whether there shall be two or more courts in a given county. This is a legislative function which we hold cannot be delegated. The board is given not only the option to adopt the law, but the further option to decide upon the number of courts that may be established under it. This cannot be done. People v. Riordan, 73 Mich. 508, 41 N. W. 482;Pueblo County Commissioners v. Smith, 22 Colo. 534, 45 Pac. 357, 33 L. R. A. 465;State...