State ex rel. Zillmer v. Kreutzberg

• Decision Date: 19 May 1902
• Citation: 114 Wis. 530,90 N.W. 1098
• Parties: STATE EX REL. ZILLMER, SHERIFF, v. KREUTZBERG.
• Court: Wisconsin Supreme Court

114 Wis. 530

90 N.W. 1098

STATE EX REL. ZILLMER, SHERIFF,

v.KREUTZBERG.

Supreme Court of Wisconsin.

May 19, 1902.

Error to superior court, Milwaukee county; J. C. Ludwig, Judge.

Petition for habeas corpus by Louis J. Kreutzberg against Theodore Zillimer, as sheriff of Milwaukee county. From the order granting the writ, the state, on the relation of the sheriff, brings error. Affirmed.

The defendant in error having been arrested upon a complaint charging him with having unlawfully discharged an employé because said employé was a member of a labor organization, and, upon hearing, having been committed for trial, he sued out a writ of habeas corpus against the sheriff, alleging the illegality of his imprisonment and restraint, for that the act of the legislature creating the offense (chapter 332, Laws 1899) is unconstitutional, because it violates the following provisions of the constitutions of the state of Wisconsin and of the United States: (1) That “all men are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.” (2) That no person shall be deprived of life, liberty, or property without due process of law. (3) The constitutional provision forbidding the legislature to grant any special or exclusive rights, privileges, or immunity to any individual, corporation, or association. (4) The provision of the fourteenth amendment to the constitution of the United States, providing, “Nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” The sheriff returned that he held the defendant upon a commitment of the examining magistrate for trial upon a charge as above described. The superior court held the law unconstitutional, and the commitment of the defendant therefore beyond the jurisdiction of the examining magistrate, and ordered discharge from imprisonment, to which order or judgment the sheriff of Milwaukee county and the state of Wisconsin sued out writ of error from this court.

H. W. Bennett, Dist. Atty., and Frank E. McGovern, Asst. Dist. Atty., for plaintiff in error.

Nath. Pereles & Son (G. D. Goff, of counsel), for defendant in error.

DODGE, J. (after stating the facts).

In this case we are confronted with that gravest of sociological questions: How far, consistently with freedom, may the rights and liberties of the individual member of society be subordinated to the will of the government? That question has been at war from the very first existence of any form of government. For many centuries, while debated as an ethical and philosophical question, it was resolved in each instance by force, or by the ability to exert force. A little more than a century ago the attempt was made by the American people to define the limits by written contract, and to withdraw their decision and vindication from the arena of physical strife, and transfer it to the peaceful forum of the judiciary. In line with that attempt, the people of what is now the commonwealth of Wisconsin, some 60 years ago, formulated their constitution. Their purpose, unquestionably, was to create a government endowed with the essential attributes of sovereignty. The very preamble declares that it is adopted in order to secure the blessings of liberty and form a more perfect government. In the organization of that government it was provided that the legislative power shall be vested in a senate and assembly. Const. art. 4, § 1. By a long line of decisions and consensus therein by the people of the various states, it has become settled that thereby all powers of a legislative character ordinarily enjoyed by sovereign governments became vested in the state legislature, except so far as restrained expressly or by substantially necessary implication elsewhere in the constitution. Cooley, Const. Lim. pp. 201, 206; 1 Tied. Cont. of Pers. & Prop. p. 9. The very first section of that constitution, however, declares the purpose of the government about to be created by it in these words: “All men are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.” At this late day it cannot be doubted that this declaration of the purpose to be accomplished is to be construed as a limitation upon the powers given. By the preamble, preservation of liberty is given precedence over the establishment of government. It would be inconceivable that the people of Wisconsin, in establishing a government to secure the rights of life, liberty, and the pursuit of happiness, should by general grant of legislative power have intended to confer upon that government authority to wholly subvert those primary rights; and in this view it has been held by this court that legislative acts conflicting with that declared purpose are forbidden by the constitution, and must be denied efficacy by the courts. Durkee v. City of Janesville, 28 Wis. 464, 471, 9 Am. Rep. 500;State v. Currens, 111 Wis. 431, 435, 87 N. W. 561. We say by the courts, for elsewhere in the constitution the judicial power is vested in them; and that the judicial power, and therefore the judicial duty, includes repudiation of an attempted act of legislation prohibited by the constitution, was declared by the supreme court of the United States, at the pen of Chief Justice Marshall, in Marbury v. Madison, 1 Cranch, 137, 2 L. Ed. 60, and had, before the adoption of our constitution, become settled by a long line of authority. 1 Kent, Comm. 449; Cooley, Const. Lim. c. 7; Baily v. Gentry, 1 Mo. 164, 13 Am. Dec. 484;Bloodgood v. Railroad Co., 18 Wend. 9, 31 Am. Dec. 313;Dartmouth College Case, 4 Wheat. 518, 625, 4 L. Ed. 629.

A question which immediately arises in the consideration of any act of the legislature restraining individuals is the exact meaning of the words, “life, liberty and the pursuit of happiness,” which are to be secured by the government, and must not be destroyed by it. That these words are not to be taken in their absolute sense is, of course, obvious. Individuals may, notwithstanding this prohibition, be deprived of life or liberty as punishment for crime, and they may be deprived of some measure of property or of happiness in deference to and protection of the welfare of the whole community. Indeed, most of the legislative acts which fill our statute books detract in some measure from the absolute freedom of the individual to act wholly at the dictate of his will, and yet are of either decided or fully recognized constitutionality. On the other hand, these words in the constitution are not to receive an unduly “limited” construction. It has become settled, for example, that liberty does not mean merely immunity from imprisonment, and that “property” is not confined to tangible objects which can be passed from hand to hand; that within the former word is included the opportunity to do those things which are ordinarily done by free men, and the right of each individual to regulate his own affairs, so far as consistent with rights of others; and within the latter, those rights of possession, disposal, management, and of contracting with reference thereto, which render property useful, valuable, and a source of happiness, right to pursuit of which is preserved. 2 Story, Const. (5th Ed.) § 1950; Cooley, Torts, p. 278; 2 Tied. Cont. of Pers. & Prop. p. 939; Butchers' Union Slaughter House, etc., Co. v. Crescent City Live Stock Landing, etc., Co., 111 U. S. 746, 757, 4 Sup. Ct. 652, 28 L. Ed. 585;Allgeyer v. Louisiana, 165 U. S. 578, 589, 17 Sup. Ct. 427, 41 L. Ed. 832;Insurance Co. v. Cornell (C. C.) 110 Fed. 816, 822;State v. Julow, 129 Mo. 163, 31 S. W. 781, 29 L. R. A. 257, 50 Am. St. Rep. 443;Ritchie v. People, 155 Ill. 98, 40 N. E. 454, 20 L. R. A. 79, 46 Am. St. Rep. 315;Gillespie v. People, 188 Ill. 176, 58 N. E. 1007, 52 L. R. A. 283, 80 Am. St. Rep. 176;Com. v. Perry, 155 Mass. 117, 28 N. E. 1126, 14 L. R. A. 325, 31 Am. St. Rep. 533;In re Jacobs, 98 N. Y. 98, 50 Am. Rep. 636;People v. Coler, 166 N. Y. 1, 59 N. E. 716;City of Janesville v. Carpenter, 77 Wis. 288, 301, 46 N. W. 128, 8 L. R. A. 808, 20 Am. St. Rep. 123. In Allgeyer v. Louisiana, supra, the court said by Mr. Justice Peckham: “The liberty mentioned in that [fourteenth] amendment means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation; and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned.” In Carew v. Rutherford, 106 Mass. 1, 14, 8 Am. Rep. 287, it is pointed out that the very existence of the ordinary labor union rests upon the inherent liberty of individuals to contract or refuse to do so, otherwise such organizations would be criminal at common law. In that case, too, are collected actual instances of governmental restriction of liberty deemed legitimate before our constitutions, but now clearly prohibited thereby. Some of these are acts making it criminal to take excessive wages; requiring handicraftsmen, meet to labor, to work by the day for their neighbors in certain work; fixing the price of labor; and the like. In Allen v. Flood [1898] App. Cas. 1, the complaint was that certain union iron workers confederated and threatened to quit unless certain nonmembers were...