Attorney General v. City of Eau Claire , 37 Wis. 400 ( 1875 )

RyaN, C. J.

I- There is, perhaps, no doubt, that the legis lature could grant, and the city, the defendant, could take power to improve the navigation of the Chippewa, within the limits of the city. Such power would not, perhaps, be impaired by the fact, that the improvement of the river authorised within the city might be of such a character as would improve it without the city. Indeed it might be assumed, for any question here, that the city could take express power to improve the navigation, outside of the city, of a public river flowing through it.

But the power conferred on the city by ch. 333 of 1875, cannot be supported on that ground, because the statute itself does not go upon that ground. Neither in its title nor in its purview is there any indication that the improvement of the river is an object, or within the object, of the legislature. The statute no where purports to make provision for the improvement of the river. It provides that the dam which it authorizes shall not materially obstruct the navigation of the river ; and to that end requires a lock, chutes and booms to be built. But, though it prohibits material obstruction of the river, there is in it no clause apparently looking to the improvement of the river; no word indicating that the improvement of the navigation of it is an object of the power conferred, or was within the legislative attention in conferring it. And there is not merely this negative, the absence of apparent intention. The prohibition of material obstruction by the dam positively repels all suggestion that the improvement of the river is an object of the dam. It is little likely that the legislature should provide against obstruction by that which was to be done for the purpose of improvement. The navigation of the river was within' the legislative attention, and provision is made, not that the dam should improve it, but that it should not obstruct it. Expressum. facit cessare taciturn. On the other hand, as will be seen, the statute plainly indicates other objects local to the city, without relation to the public use of the public river flowing through it.

It may be, as was said at the bar, that the dam authorized would, in fact, improve the navigation of the river. If so, that would be a consequence of the statute, not an object of it. The power conferred is independent of it. The statute was manifestly passed for no such purpose. And, if we could assume the fact, it could not aid the construction of the statute. We know of no rule which would authorize us to impute to the legislature an object not expressed or indicated by it, or to support a statute upon grounds foreign to it. Dwarris, 657, 718; Sedgwick, 230-238.

II. The charter of the city, ch. 16 of 1872, authorizes the city to establish reservoirs, and to provide for the erection of water works for the supply of water to its inhabitants; and to make other improvements proper for their health and welfare; and to lease, purchase and hold real and personal property for their convenience. The statute of 1875 gives authority to the city to construct waterworks, and drains, sewers and mains for the same.

It is not worth while to consider whether, in this connection, the latter statute adds to the power of the city under the former; or whether both give effective power to establish and maintain water works. If the power prove defective, the legislature can enlarge it. See Bonaparte v. C. & A. R. R. Co., Baldwin, 205. In considering this motion, we shall ássume that the city possesses adequate power to establish water works.

And that is so essentially a public and municipal purpose, that it is obvious that the city can take any legitimate power in aid of it. For that purpose, the legislature could unquestionably grant and the city take power to construct and maintain a dam, not obstructing the navigation of a public river, or violating other right, public or private. And the dam so authorized might well produce an excess of power. Superfina non noeent. In such case, as was frankly admitted on the argument, the surplus water need not run to waste. The legislature might well grant and the city take power to lease it. The power to construct and maintain the dam would still rest on the public, municipal use; not on the disposition of the accidental excess. Spaulding v. Lowell, 23 Pick., 71.

But power conferred on a municipal corporation to construct and maintain a dam, for the purpose of leasing the water power to private persons for private use, would be, independently of taxation, of questionable validity. Municipal corporations, “ an investing of the people of the place with the local government thereof,” as distinguished from “some people of a place united together in respect of' a mystery or business into a company” (Cuddon v. Eastwick, 1 Salk., 192), are properly political bodies, created for governmental purposes (2 Kent, 275), part of the machinery, as is somewhere well said, by which the sovereignty works. See the opinions of Stow, C. J., in State v. Supervisors, 2 Chand., 247 (2 Pin., 552), and of DIXON, C. J., in Milwaukee v. Milwaukee, 12 Wis., 93. The constitution of the state distinguishes the power to create them from the power to create other corporations (art. XI, secs. 1, 2, 3). And it would be interesting to consider whether and how far the power of the leigslature to grant franchises to public corporations is restricted to municipal, in the sense of public, purposes only. See Bushnell v. Beloit, 10 Wis., 195; State v. Tappan, 29 id., 664. But such consideration is unnecessary here. Eor the power to construct and maintain a dam conferred on the city by ch. 333 of 1875 is coupled with, and expressly rests on, the right to borrow money and to tax.

This court, as now organized, has, in submission to the rule stare decisis, reluctantly, against its own views, followed Newcomb v. Smith, 1 Chand. 71 (2 Pin., 131), in upholding the mill dam act. Fisher v. Horicon Co., 10 Wis., 351. But the court has never been disposed to extend the doctrine or authority of that case: probably never will. Newell v. Smith, 15 Wis., 101. Indeed the authority of that case would hardly aid this. And we cannot hesitate in holding, what was not questioned at the bar, that, if the statute under consideration grant power to the city to construct and maintain the dam, for the purpose of leasing the water power for manufacturing purposes, it is a power for a private and not a public use, and cannot be upheld. Curtis v. Whipple, 24 Wis., 350; Whiting v. S. & F. R. R. Co., 25 id., 167.

And it is equally certain that if the- power be alternative and optional, either for a public or for a private use — to construct a dam, to be used, when constructed, either for the purpose of water works, or for the purpose of leasing the water power for manufacturing purposes, in the discretion of the city, — it cannot be upheld. It seems too plain for discussion, that if the legislature grant an equivocal power, subject to the election of the grantee, for either one or other of two purposes, the one lawful and the other unlawful, the power cannot be upheld upon the chance of its being lawfully applied. In such a case the election is inherent in the grant, and cannot be separated from it. The validity or invalidity of the use resting in the subsequent discretion of the grantee, the power cannot be aided by anything dehors the grant itself. The discretion is in the statute; and the statute must be construed in the light of the discretion to put the work authorized to an unlawful use. When the purpose of such a statute is double, each purpose must be valid, to sustain the power. The case is not that of a statute valid in part, and void in part. In such a grant as we are considering, the valid and void purposes are inseparable; and the void purpose taints the whole statute. The case is not that of a statute susceptible of two constructions, the one valid and the other void. In such a statute as we are considering, the duplicity is not in construction, but in the power granted. Construction has done its office when it finds the discretion in the grant. And it is impossible to uphold a franchise granted to impose a public burthen, lawful or unlawful at the election of the corporation to which it is granted: to construct and maintain a dam at pub: lie expense, to be applied either to a public or a private use, as the city may see fit to determine.

The validity of the power in question, therefore, rests in the proper construction of the statute granting it; turning on the question whether the power to construct the dam is dependent on the construction of water works and incident to it.

And this must appear affirmatively in the statute, to support the power. Taxation is the absolute conversion of private property to public use. And its validity rests” on the use. In legislative grants of the power to municipal corporations, the public use must appear. Knowlton v. Rock Co., 9 Wis., 410; Soens v. Racine, 10 id., 271; Lumsden v. Cross, id., 282; Foster v. Kenosha, 12 id., 616; Hasbrouck v. Milwaukee, 13 id., 37; Brodhead v. Milwaukee, 19 id., 624; Curtis v. Whipple, supra; Whiting v. R. R. Co., supra; State v. Tappan, supra. The legislature can delegate the power to tax to municipal corporations for public purposes only ; and the validity of the delegation rests on the public purpose. Were this otherwise, as was said at the bar, municipal taxation might well become municipal plunder.

III.. We owe great deference to the legislative authority. It is our duty to give effect to all its enactments, according to its intention, as far as we have constitutional right and power. And to that end it behooves us, as far as we are able, to place such a construction -on statutes as will reconcile them to the constitution; and to give them effective operation, under the constitution, according to the intention with which they are passed. It would be a palpable violation of judicial duty and propriety to seek in a statute a construction in conflict with the constitution or with the object of its enactment; or to admit such a construction, when the statute is fairly susceptible of another in accord with the constitution and the legislative intention. And it would not only be unbecoming, it would be unwarrantable, as was well suggested by counsel, to impute insidious ambiguity, intent to violate the constitution per am-bages, to a statute. We shall surely not look for. intentio caeca mala in any statute. We shall hold all statutes framed and passed in good faith. And it is proper to say that we see in this statute, probably framed for the city and in its interest, no ground for criticism of mala fides. . It is possible that it is so inartificially framed as not to express the true legislative intention, though we do not think so.- 'But it appears to us direct and perspicuous, and we have little difficulty in putting a construction upon it. We shall, as our duty is, construe it fairly and favorably to give it effect, if we can: ut res magis valeat quam percal. But, in doing sq, we cannot overlook our duty to the constitution, or enforce a statute which will not fairly bear a construction consistent with the safeguards of that paramount instrument, which binds both legislature and judiciary, and to which their.powers and duties and ours are alike subordinate.

Sec. 1 of this statute authorizes the city to construct and maintain a dam across the Chippewa, within the limits of the city; to construct water works; to open and construct drains, sewers and mains for the same; to establish water rents, and provide for their collection.

Sec. 2 requires the city to construct booms and piers in the slack water of the dam, for protecting the navigation of the river and for assorting and storing logs, etc.

See. 3 authorizes the city to lease the water power of the dam for manufacturing purposes, except so much as may be needed by-the city for hydraulic purposes; and to lease the piers and booms, and to fix the rates of boomage and storage.

Sec. 4 requires the dam to be constructed with a lock for steamboats and with chutes for logs, lumber, etc.

Secs. 5, 6, 7 and 8 relate to the manner of construction, the navigation of the river, etc.

Secs. 9 and 10 require an election to accept the power; and, in case of acceptance, authorize the issue of bonds by the city in aid of the works, providing for their payment out of the revenues of the works, and for tax to supply deficiencies.

We are not to forget that, though this is the statute of the legislature, it was presumably framed and passed at the instance of the city. “ Almost invariably in practice, municipal charters have been granted or altered by our legislature, in accordance with the expressed will of the corporators.” G-REEN, C. J., in City of Paterson v. Society, etc., 4 Zab., 385.

And we think that there is little room for doubt, on the face of the statute, that its main purpose is the dam, and the piers, booms, etc., incident to it: the water power created by the one, and the commercial facilities accruing from the others. And we see no room for doubt that, the dam once created, its use for water works, and indeed the construction of the water works at all, are left by the terms of the statute wholly in the discretion of the city. The power to construct the dam, and the power to construct water works, appear plainly to be distinct and independent powers, with no words in the statute to connect them. There is nothing to make the construction of water works a condition of the construction of the dam, or to appropriate the constructed dam to water works. The city is not only authorized to construct the dam, without water works, but is also authorized to construct water works, without the dam; and indeed, having built the dam, to establish water works from any other available source, without using the dam or the water supplied by the dam. If water works be constructed, and the power of the dam be necessary or convenient to them, the city may reserve sufficient power from lease. That permission is the only connection of the two in the statute. But the city is not obliged to reserve power for water works, or prohibited from leasing the whole power, at its discretion.

Had water works been the principal object of the statute; had they been intended to be jurisdictional, so to speak, to the dam had the dam been regarded as an incident to them, nothing would have been easier than the expression of such purpose in the statute, nothing more natural than the indication of such understanding. But there appears to be a studious avoidance of language, phrase or word of such import; which satisfies us of the intention of the statute to leave the city free to use the dam, when constructed, for one purpose or the other; free, in its discretion, to lease all the water power for manufac turing; to establish water works or not; if established, to find water and power for them elsewhere. Everything tending to embarrass the freedom of discretion of the city, in the use of the dam, is carefully excluded from the statute. This is hardly to be called construction. It is the plain letter and palpable meaning of the statute, strongly confirmed by a critical examination of its provisions in detail.

If the dam were designed as means of supplying the city with water, it is very noticeable, at the outset, that, though the statute assumes to enlarge or renew the power of the city to construct water works, it does not begin in natural and logical order with the principal power, but with the incidental and subordinate power. If the statute looked to water works as the end, and a dam as means only, it would not be likely to begin with the dam, followed by water works and other uses as consequences, not causes, of the dam.

If the intent of the statute were to authorize a dam for water works, then the dam, drains, sewers and mains of the first section would all be equally means to that end. Yet in the terms used, the drains, sewers and mains are dependent, and the dam independent. It is hardly possible to regard this as accidental.

The first section is permissive. The city may build a dam; may build water works. But, if the dam be built, the second and other sections are mandatory in terms. The city must build the works designated for convenient use of the dam. If the dam look to water works for its end and authority, it is not easy to comprehend how the convenient use of the dam should be mandatory, and the jurisdictional use of the dam should be permissive only. The statute appears to distinguish mandatory and permissive provisions, in terms, and to use each intelligently.

The third section authorizes the leasing of all- the water power, except so much as may be needed by the city for hydraulic purposes. We agree with the counsel of the city that these hydraulic purposes include water works. But here again it seems unaccountable that, if water works were the object of the dam, and the power to lease relates only to a contingent overplus, the incident precedes the principal, and the principal figures only as a permissive exception to the incident.

And, finally, we have the pregnant significance of the fact that, the dam once erected, the right to use the power for water works, and the right to lease it for manufacturing, are of equal authority in the statute, both alike permissive in terms.

We can be in no doubt of the true construction of this statute. We cannot hold the power, to build the dam dependent on a public use. And we should be letting the power of taxation run wild, very much at the bidding and discretion of municipal corporations, to sustain such a statute resting on it.

It follows that the defendant, the city, has no authority of law to erect or maintain the dam in question across a public river, or to borrow money or levy tax for the purpose.

IY. It is unnecessary now to consider the question discussed at the bar, whether the proper proceeding to restrain measures looking to taxation in such a case, should be by the attorney general 'or by the owners of property to be affected by the tax. In either, case, the proper jurisdiction is in the circuit court. The mere fact that the attorney general may maintain such a suit, is not sufficient to authorize this court to entertain it. In ordinary cases, this court will not extend its original jurisdiction to restraint of local, municipal taxation for alleged irregularity or want of authority.

We assent to what was said by counsel for the information, of the nature of municipal corporations, and of their relations to the state, and of the part they play in the administration of the state. Of course every question of municipal taxation is publici juris. But it is equally so whether it be raised by a tax payer, or by the municipality, or by the state. It is not enough to put in motion the original jurisdiction of this court, that the question is publici juris; it should be a question quod ad statum rdpublicce pertinet': one “affecting the sovereignty of the state, its franchises or prerogatives, or the liberties of its people,” Att'y Gen. v. R. R. Companies, 35 Wis., 425.

It was repeated in that case, as it had been held in Al(y Gen. v. Blossom, 1 Wis., 317, that “this court takes the prerogative writs, for prerogative jurisdiction, with power to put them only to prerogative uses proper.” Prerogative writs often go in aid of private right or of local public right. But the original jurisdiction of this court is not only limited to the prerogative writs, but it is confined to prerogative causes. The word properly implies sovereign right. Jacob defines it as h that power, preeminence or privilege which the king hath .and claimeth over and beyond other persons,- and above the ordinary course of the common law, in- right of his crown.”' And so we find the object of the prerogative jurisdiction of this court declared in Att'y Gen. v. Blossom: “ Contingencies might arise, wherein the prerogatives and franchises of the state, in its sovereign character, might require the interposition of the highest judicial tribunal to preserve them.” And though the question did not arise in the case, it is quite evident from all that has any bearing on it in Att'y Gen. v. R. R. Companies, that to bring' a case properly within the -original jurisdiction of this court, it should involve, in some way, the general interest of the state at large. It is very true that the whole state has an. interest in the good administration of every municipality; so it has in the well doing of every citizen. Cases may arise, to apply the words of C. J. Stow, geographically local, politically not local; local in conditions, but directly affecting the state at large. Cases may occur in which the good government of a public corporation, or the proper exercise of the franchise of a private corporation, or the security of an individual, may concern the prerogative of the state. The state le.nds the aid of its prerogative writs to public and private corporations and to citizens in all proper cases. But it would be straining and distorting the notion of prerogative jurisdiction to apply it to every case of personal, corporate or local right, where a prerogative writ happens to afford an appropriate remedy. To warrant the assertion of original jurisdiction here, the interest of the state should be primary and proximate, not indirect or remote ; peculiar perhaps to some subdivision of the state, but affecting the state at large, in some of its prerogatives; raising a contingency requiring the interposition of this court to preserve the prerogatives and franchises of the state, in its sovereign character ; this court judging of the contingency, in each case, for itself. For all else, though raising questions puhlici juris, ordinary remedies and ordinary jurisdictions are adequate. And only when, for some peculiar cause, these are inadequate, will the original jurisdiction of this court be exercised for protection of merely private or merely local rights.

In this view we are called upon for special caution in cases of injunction ; because the writ does not indicate the jurisdiction. We hold that we have original jurisdiction by way of injunction, as a quasi prerogative and quasi original writ. We must see to it that we are not misled in practice into original jurisdiction of the writ in its ordinary use as a judicial writ.

It was with these views that we declared the rule in Att'y Gen. v. R. R. Companies, that all cases of original jurisdiction must proceed upon leave, showing prima facie “ that the case is one of which it is proper for this court to take cognizance.” And these were not altogether new views of the jurisdiction, as counsel seem disposed to think. As early as May v. Keep, 1 Chand., 285 (2 Pin., 801), approved in Hurlbut v. Wilcox, 19 Wis., 419, this court refused a writ of certiorari, because the circuit court had jurisdiction. And though the writs in these cases appertained to the appellate jurisdiction of the court, the reason applies equally to writs within the original jurisdiction. In cases of mandamus, the court made a rule in 21 Wis., 694, and enforced it in State v. Haben, 22 Wis., 101, applying in terms to cases of original jurisdiction, that the writ should not issue here when there is ample remedy in the circuit court. And there have been several instances since of refusal to issue both writs.

These cases rest indeed upon the concurrent jurisdiction of the circuit court. But the distinction is practically the same. In all cases of purely private or local interest, the jurisdiction of the circuit court is prima facie adequate. If it be inadequate in any case, it must generally be so because the interest in litigation is something more than private or local.

We cannot but confess the criticism of counsel that many cases in this court, especially of quo warranto, are inconsistent with the rule now declared, and with the doctrine in Att'y Gen. v. Blossom, and Att'y Gen. v. R. R. Companies. But the jurisdiction in those cases passed sub silentio, without attempt by bar or bench to define it or to limit its exercise. We think it may be hoped in future that there will be more care and accuracy by counsel and court.

It was suggested that we should establish general rules governing our original jurisdiction. That would be too bold an undertaking to venture on. Rules will arise, as cases come here, far more safely and properly than they could be prescribed in advance. We can now only declare the views which influence us in passing upon this motion. It is sufficient here to hold that proceedings to restrain municipal undertakings or municipal taxation, in ordinary cases, belong appropriately to the original jurisdiction of the circuit, and not of this court.

These are questions publici juris, as are title to local public office, performance of local official duty, use of local highways, maintenance of local public buildings, abuse of local power or franchise, and kindred local matters. But these are not generally questions directly involving the sovereign prerogative or the interest of the state at large, so as to call for the prerogative jurisdiction of this court. As a rule, no extraordinary jurisdiction is necessary or proper for them ; the ordinary jurisdiction of the circuit court being ample. Practically it would be impossible to take jurisdiction of them all here ; and we intend to assume jurisdiction of none of them, which are not taken out of the rule by some exceptional cause. When they are governed by some peculiarity which brings them within the spirit and object of the original jurisdiction of this court, we will entertain them. Otherwise they will be left to the circuit courts. And this we understand to be the true spirit and order of the constitutional grant of jurisdiction.

There is nothing to distinguish this case, in this aspect of it, from any other case of local works, involving local taxation, by a municipal corporation; with adequate remedy for all wrong in the circuit courts. And if the case rested here, we should be compelled to decline jurisdiction.

V. We have already intimated that we are indisposed to extend the original jurisdiction of this court to cases of encroachment on local highways. As Stow, C. J., says, it is difficult, in considering such things, to conceive what is not local in some sense. But in considering what is or what is not local for the purpose of jurisdiction, we should surely distinguish between a thoroughfare by railroad, of common interest to all, and an alley in some municipality known of few only. And there may be highways by water, local in this sense. But navigable waters leading into the Mississippi and St. Lawrence constitute a peculiar class of highways, which cannot be considered local for jurisdiction. They are not merely highways. They are a trust from the federal government to the state, accepted by the state, which the state is bound to keep as common highways forever free to the people of the state and of the United States. Ordinance of 1787, art. IY; Act of Congress, April 20, 1886, sec. 12; Act of Congress, August 6, 1846, sec. 3; Const., art. IX, sec. 1; Pollard v. Hagan, 2 Howard, 312; W. R. I. Co. v. Lyons, 30 Wis., 61.

What are properly local highways, in the sense we have been considering, are generally within the limits of one municipality, existing under its authority, in charge of its officers. These may generally be left to the protection of local authorities and local jurisdictions. Public rivers are highways by no local authority ; and are rarely, if ever, within a single municipality or in charge of its officers. They are in charge of the state, and the state cannot abdicate its charge of them. That charge is a duty to the federal government, and a trust for the whole people, not of the state only, but of the several states. An unauthorized encroachment upon any of them is a violation of the duty assumed by the state, in its aggregate and sovereign character, to keep them forever open. Every such encroachment is a pourpresture, which concerns the sovereign prerogative of the state, and the prerogative jurisdiction of this court. Original jurisdiction of such cases here is too manifest for discussion.

The question does not arise what works the legislature can, under the constitution, authorize in or over navigable waters. Neither does the question whether, under a valid statutory power, providing against material obstruction, an injunction could properly go against the work authorized, upon a mere averment in advance that it would unlawfully obstruct navigation. Because the statute of 1875, in our view, is inoperative either to give any power or to impose any restriction upon the city in relation to the dam in question. In our view of the statute, if the city should proceed with the work, it would dam a public river within the constitutional protection, without any statutory authority or statutory limitation. If the city do not take the power, it is not bound by the conditions of the power. It would act outside of the power, and without power. W e must consider the proceeding as if ch. 383 of 1875 had not been passed. And it is impossible not to regard an undertaking to build the dam as an unlawful attempt to obstruct the navigation of the river.

The actual navigation may be little, and the obstruction might be slight. So the affidavits tend to show. But neither the right nor the wrong is a question of degree. We cannot listen to one about to put an unlawful work in a public river, that it wil] not materially obstruct navigation. If the obstruction be undertaken, without valid authority, it is our duty, in a proper case, without counting convenience or inconvenience, to interpose the prerogative writ of the state to secure the prerogative right of the state from infringement.

And it is proper to say here that, if the court take jurisdiction of the information on this ground, it will not ignore the other branch of the case, although that was insufficient to give jurisdiction. The general rule is familiar, that a court of equity, when it has taken jurisdiction of a matter for one purpose, will give the remedies proper to it for all purposes.

YI. This motion was argued with ability and learning on both sides, with the understanding that the information contained sufficient averments to charge the city with undertaking to proceed under the statute to construct the dam. Upon examination, we do not find this to be the case. The information pleads an ordinance of the city, providing for an election under the statute; but no other act or purpose on the part of the city or its officers, looking towards the construction of the dam. The time for the election has passed; so that even that averment seems to fail. We are informed by the affidavits that the election was had, and the power of the statute accepted; but even that is not pleaded. Non constat, notwithstanding the ordinance and the election, that the citj^ intends to proceed. And so the information appears bare of averments upon which an injunction could properly go. We cannot entertain a cause, or send out a writ, to enjoin a naked claim of power, without apparent purpose to act upon it.

But as this is presumably an oversight which can be cured by formal amendment, and as the motion was so fully discussed on the merits, we deemed it due to the cause to pass upon the questions argued, without subjecting a new motion to a new argument. The attorney general may apply for leave to amend the information and then renew the motion. And if we find the necessary averments to authorize an injunction, we shall, so far as the questions argued go, grant the motion and issue the writ. But the argument was so satisfactory, and our time is so occupied, that we are not willing to hear the same questions argued upon another motion.

By ike Court. — Ordered accordingly.