Van Gilder v. City of Madison

• Decision Date: 22 June 1936
• Citation: 222 Wis. 58,268 N.W. 108
• Parties: VAN GILDER v. CITY OF MADISON.
• Court: Wisconsin Supreme Court

222 Wis. 58

268 N.W. 108

VAN GILDER

v.CITY OF MADISON.

Supreme Court of Wisconsin.

June 22, 1936.

Appeal from a judgment of the Circuit Court for Dane County; A. G. Zimmerman, Judge.

Affirmed in part; reversed in part.

On motion for rehearing.--[By Editorial Staff.]

Motion denied.

For former opinion, see 267 N.W. 25.Darrell MacIntyre, of Madison (Lester C. Lee, of Madison, of counsel), for appellant.

Francis Lamb, City Atty., of Madison, for respondent.

PER CURIAM.

On motion for rehearing. A motion for rehearing was made in this case and supported by briefs which have received our careful attention. Among other things it is argued that in the decision in this case the court overlooked the provisions of article 13, § 9, of the Constitution of the state of Wisconsin, which provides: “All city, town and village officers whose election or appointment is not provided for by this constitution shall be elected by the electors of such cities, towns and villages, or of some division thereof, or appointed by such authorities thereof as the legislature shall designate for that purpose. All other officers whose election or appointment is not provided for by this constitution, and all officers whose offices may hereafter be created by law, shall be elected by the people or appointed, as the legislature may direct.”

[1] On the strength of the decision in O'Connor v. City of Fond du Lac (1901) 109 Wis. 253, 85 N.W. 327, 53 L.R.A. 831, the cases there cited, and People ex rel. Le Roy v. Hurlbut (1871) 24 Mich. 44, 9 Am.Rep. 103, it is argued that municipal corporations in the state of Wisconsin have certain so-called inherent powers particularly those relating to local self-government. The position of counsel would be more tenable if the question were an open one in this state. From Butler v. City of Milwaukee (1862) 15 Wis. 493, to City of Milwaukee v. Raulf (1916) 164 Wis. 172, 159 N.W. 819, it has been consistently held that municipal corporations have only such powers as were conferred upon them by statute or those necessarily implied therefrom. In Butler v. City of Milwaukee, the court said: “Implications of authority in bodies corporate, more especially those created for municipal purposes, should be clear and undoubted, and the party claiming through them should be able to point them out with certainty and precision. The fact that he cannot, is conclusive that they do not exist. Mere general arguments drawn from the convenience of possessing a power under certain circumstances in case of emergency--conclusions that, if possessed, it might be beneficially exercised, are very dangerous sources of corporate authority. * * * Implications spring from the necessities of some power actually conferred, and not from notions of what would be convenient or expedient under particular circumstances.”

In Sutter v. Milwaukee Board of Fire Underwriters (1915) 161 Wis. 615, 155 N. W. 127, Ann.Cas.1917E, 682, the court said: “A municipal corporation in Wisconsin today is of the kind mentioned in article 11 of our Constitution. The words now mean a body corporate consisting of the inhabitants of a designated area created by the Legislature with or without the consent of such inhabitants for governmental purposes possessing local legislative and administrative power, also power to exercise within such area so much of the administrative power of the state as may be delegated to it and possessing limited capacity to own and hold property, and to act in purveyance of public conveniences.”

[2][3] In this connection it is to be remembered that the clause of the charter of the city of Milwaukee, which was construed in Butler v. City of Milwaukee, supra, was very broad. In addition to those powers expressly granted, the charter provided that the municipality should have “the general powers of municipal corporations at common law.” Whatever the law may be in other jurisdictions, it has never been the law in Wisconsin that municipal corporations possessed inherent powers of local self-government independent of legislative control. If they now possess such powers, it is due to the adoption of the home rule amendment. It is true, as was held in O'Connor v. City of Fond du Lac, supra, that the power of the Legislature to deprive municipalities of the right to elect their officers is protected by article 13, § 9, of the Constitution. That section, however, does not attempt to confer powers, but prescribes how the officers therein specified shall be chosen, and leaves the definition of their functions to the Legislature. While there is some language in O'Connor v. City of Fond du Lac, supra, that lends color to the argument made here, the...