State ex rel. Mueller v. Thompson ( 1912 )

Maesiialx, J.

As indicated in the. foregoing, the motion raised the issue of whether ch. 416, Laws of 1911, commonly called the “Home Rule” act, is constitutional. The trial court decided in the affirmative.

When our state government was formed, the people adopted for the paramount law, a declaration of principles modeled after the prevailing constitutions in this country. It Was intended to be exact in its limitations of power, not to be open to change except in such particular and deliberate way as to render as certain as practicable that the electors desired it, evidenced by an expression of judgment after ample time and facility for investigation and maturity of thought on the subject, not to be subject to violation at all, and to create an instrumentality, — a court, — to efficiently guard it in that respect. One might exhaust his capability of using the great resources of our language in portraying the necessity for such a foundation for a people’s government to rest upon, — in picturing the dignity which should be accorded to it by every department of affairs and by the people in their individual capacities, and yet leave the matter incomplete. One might "do likewise as to the particular duty resting here to hold up the constitution safely above every act of lawmaking power which would otherwise violate it, without exaggerating the importance to the people of its faithful performance. Such ■performance is a judicial function, overshadowing in its significance. That it is sometimes viewed with impatience by ' those called to face constitutional restraints, cannot have any weight whatever as to whether the duty should be performed or not. History shows, to the great credit of average intelligent comprehension of our system of government, that firm, conservative judicial administration in the field of testing legislative enactments by the constitution, is quite sure to be approved, in general, by the deliberate judgment of the people. In no field have the people, under our form of government, won more distinction than in loyalty, in the ultimate, to their courts.

In our constitutional scheme there are three co-ordinate, substantially independent branches, namely, executive, legislative, and judicial. Each, so long as operating within its 'legitimate field, is supreme. It is for the court, in the ultimate, to determine whether the boundaries of a particular field have been overstepped and, if so, to nullify or stay the transgression.

The power to make law, commonly called legislative power, is dealt with by sec. 1, art. IY, of the constitution in these words: “The legislative power shall be vested in a senate and •assembly.” In thus limiting power to make law to the representative bodies the people, by necessary implication, parted with authority to do so directly; as the court has held, though not to determine by legislative permission whether a law, enacted in the constitutional way, shall be put into operation. State ex rel. Boycott v. Mayor, etc. 107 Wis. 654, 84 N. W. 242; State ex rel. Van Alstine v. Frear, 142 Wis. 320, 125 N. W. 961.

So, it is plain that, power to make law, — to exercise the function contemplated by that part of the constitution under consideration, — was reserved exclusively to the legislature, and any attempt to abdicate it in any particular field, though valid in form, must, necessarily, be held void. Just what falls within the scope of this power is not always easy to determine; but, as to a particular subject plainly recognized by the constitution as within such field, there is no room for doubt. Such is the case as to granting corporate charters to cities, as we shall see.

Sec. 1, art. XI, of the constitution vests in the legislature power to form municipal corporations by either general or special laws. Sec. 3 of such article provides that “it shall be the duty of the legislature, and they are hereby empowered, to provide for the organization of cities . . . and to restrict their power of taxation, assessment, borrowing money, contracting debts and loaning their credit, so as to prevent abuses in assessments and taxation, and in contracting debts by such municipal corporations.”

Those provisions have always been treated, and unavoidably so, as embodying the fundamental law as regards the granting of corporate charters to cities. Such a municipal corporation can only be created by a legislative act; that is by legislative charter, determining its form of government and its powers. No attempt has ever, before the act in question, been made to grant or change a municipal corporate charter, except by general or special act of the legislature, particularly .covering the subject. Such has been a feature of civil government from time immemorial. Such charters, anciently, emanated from the crown as a prerogative function and went into force by consent of the community afforded the grant. Later such grants were made by legislative power by sovereign permission and went into operation with or without the assent of the community affected according'to legislative purpose. The later method became, by adoption, a part of the common law >of this country, — the prerogative power in the matter being regarded as vested in the people’s representatives. At the time of the adoption of our constitution there was no way of forming a city corporation, except by act of the legislature, specifying its form of government and powers. That was entrenched in the fundamental law by sec. 13, art. XIV, providing that “such parts of the common law as are now in force in the territory of Wisconsin, not inconsistent with this constitution, shall be and continue part of the law of this state until altered or suspended by the legislature.”

Thus it will be seen power to grant corporate charters for cities, to change and repeal the same, was a legislative function at common law, and made exclusively such by our constitution. While power, in general, was reserved to the legislature to change the common law it was withheld in case of reservation to the legislature of exclusive authority in a particular field, as that of granting, amending, and repealing municipal charters.

In view of the foregoing, very little need be said in testing the act in question by constitutional restrictions. As we have seen, determination of the form of government and everything appertaining to the fundamentals of a city charter are essentially legislative functions. Power in that respect was so universally regarded before the constitution and thereby the legislature was disabled from delegating it. Can one read the act under consideration and doubt that, in terms and effect, it involves an attempt at legislative abdication of that power, to a large extent? In answering that we need look but to the first section, which we quote. All which follows is subsidiary thereto and must, necessarily, fall if the substructure cannot stand the constitutional test.

“Every city, in addition to the powers now possessed, is hereby given authority to alter or amend its charter, or to adopt a new charter by convention, in the manner provided in this act, and for that purpose is hereby granted and declared to have all powers in relation to the form of its government, and to the conduct of its municipal affairs not in contravention of or withheld by the constitution or laws, operative generally throughout the state.”

Note the two distinct grants of power: first, to alter or amend an existing charter or adopt an entirely new one; second, to exercise all powers in relation to the form of government and conduct of municipal affairs not conflicting with the fundamental or any general law. The second is subsidiary to and in aid of the first and a limitation thereof in some respects. The first is broad, with unmistakable purpose to enable any city in this state to make its organic law to suit the pleasure of its people, — to change its existing charter or make a new one without any legislative interference. The second is in the nature of a proviso to the first; that as to the mere form of government and the conduct of municipal business, the exercise of the latter shall be within the designated limitations, leaving the fundamentals of the charter, in general, to local discretion.

It seems plain that, by the first clause of the section, thei’e is indicated, with great clearness, a purpose to delegate power to make law of the nature which was clearly reserved to the legislature, and that in the means attempted to be afforded in aid thereof, there is likewise a manifest purpose to delegate authority which the constitution so reserved. The form of a city government is of vital importance, — the very foundation stone of the creation.

It is not intended to suggest that there was any intent on the part of those responsible for placing the enactment on the statute book to violate the constitution. It is one thing to misconceive or fail to appreciate constitutional limitations, and quite another to intentionally act in violation thereof. One may do the former in the utmost of good faith and intended fidelity to his oath of office. Unconstitutional enactments Rave occurred from time to time, attributable to tbe former cause, but rarely, if ever, rightly attributable to tbe latter. So it happens, as we venture to say, that tbe good faith, characterizing a legislative enactment such as we have under consideration, which it is our duty and pleasure to accord to a coordinate branch of the state government, in general, invites, as it were, and approves careful, firm performance of duty here to test such enactments by constitutional safeguards and guarantees willing submission to the result. It is only through such deference by each co-ordinate branch of our system to the other, and submission to and commendation of conscientious, firm, full performance of duty,, that the people may enjoy the blessings intended to be secured by our constitutional system.

The only room, it seems, there could be, as an original matter, for fair doubt as to the illegitimacy of a delegation of power to create, amend, or repeal corporate charters, is in the fact that, accompanying sec. 31, art. IV, of the constitution, — adopted in 1871, except the ninth subdivision relating to towns, cities, and villages added in 1891, prohibiting the incorporation of any city, town, or village or amending the charter thereof by special laws, — sec. 32 of such article was adopted declaring that “The legislature shall provide general laws for the transaction of any business” within the prohibition of “section thirty-one,” such laws to “be uniform in their operation throughout the state.” Whether it was intended thereby to authorize the legislature, by a general law, to delegate the power theretofore exercised by the legislature in re=-gard to granting corporate ehaz-ters by special act to some local body or the people themselves; or whether the intent was that the constitutional mandate should be exercised by the legislature making a law complete in itself forming the whole or part of a general charter system and leaving it with the community desiifing to be a city corporation to adopt the general charter law and with an existing city to adopt it or any com-píete part thereof in place of its charter .or portion of it,— was a subject for thought in State ex rel. Boycott v. Mayor, etc. 107 Wis. 654, 84 N. W. 232. The conclusion was that the change in the constitution did. not take the function of making the fundamental law for cities from the legislature, or give authority to delegate it; that “transaction of any business” prohibited, within the meaning of the language used, goes no further than some method of adopting a law formulated and enacted by the legislature. The idea that the .amendment contemplated delegating authority to do the business in the sense of making the law itself, was, by necessary implication at least, repudiated. The court said, in effect, that any exercise of power in the matter by an existing municipal corporation further removed from direct legislative interference than by adopting a corporate charter or a complete sub-part thereof covering a subject, as formulated by the lawmaking power, would be legislation by the corporation and not by the legislature, and so inhibited by the constitution.

True, the precise question here was not discussed or treated in the opinion of the court in the case mentioned; but the plain logic of the decision is that a legislative delegation of authority to make a city charter, or any part of it, — a power other than to adopt a legislative creation, — would be a delegation of legislative power and so void. The writer deemed a contrary view, at least as to special city charters, of sufficient merit to warrant discussing it at length to aid in reserving the question for future consideration in case of a situation being presented in which it might be vital. The case then in hand was not thought to be such. In the years which have since elapsed the writer has come to the conclusion that the logic of the court’s decision, carried to its fullest extent, is right. So while, if the question were open as to whether the legislature can properly delegate power to make or change a city charter, in the sense of determining the form of government and the fundamentals, in short, except by the option law method, it would Rave to be answered in the negative, it should be regarded as thus ruled by State ex rel. Boycott v. Mayor, etc., supra, and subsequent cases.

The foregoing is reinforced by the plain intent of the constitution that city charters shall be uniform, throughout the state, as nearly as practicable. Before subd. 9 of sec. 31, art. IV, was adopted the general charter law was enacted. The scheme of it was to classify existing cities for general legislation and to afford opportunity, without legislative interference, to adopt an entire charter, or any portion thereof covering any particular subject, in place of an existing special charter or portion thereof. The general law and the new subdivision of sec. 31, art. IV, were companion laws to effect uniformity in city charters. The enactment in question is plainly in violation thereof. Under it facilities for changes in city charters, in number, character, and frequency, regardless of uniformity, would be immeasurably greater than under the system prior to 1891.

We thus reach a very satisfactory conclusion that the law in question is unconstitutional and so did not impose any duty upon appellant to perform that which he refused to do. We have reached that conclusion from the plain purpose of the several constitutional provisions referred to, and the likewise plain violation thereof which the enactment in question, if sustained, would accomplish. We have not found it necessary or advisable to go outside of the very narrow field indicated in order to obtain aids in reaching such conclusion, or illustrations to support its correctness. That will explain why no reference had been made to many features of the arguments of counsel who favored the court with the results of their efforts to assist.

It is correctly claimed on the one side, and not effectually, if at all, denied upon the other, that in most cases where legislation of the nature of that in question has been adopted it was preceded by a constitutional amendment expressly authorizing it, while in those not so preceded the legislation was'condemned as unconstitutional. The most striking instance of that is found in Elliott v. Detroit, 121 Mich. 611, 84 N. W. 820. The court’s disapproval of such attempted delegation of authority as we have here was expressed very emphatically and without qualification. Such an enactment, as there indicated, has no support whatever in the competency of the legislature to delegate limited powers of local legislation of an administrative character, to cities. All such regulations are, in a broad sense, within the fundamental lines of the legislative charter. The difficulty here is in the attempted delegation of power to make, change, or repeal the charter itself. The distinction between such a power and authority universally exercised by cities before the constitution and preserved under it, — to enact by-laws or ordinances in the administration of specific charter powers, is quite marked and commonly understood.

The result of the foregoing is that the order appealed from must be reversed, and the cause remanded with directions to sustain the motion to quash the alternative writ and to dismiss the mandamus action with costs.

By the Court. — So ordered.