Gray v. City of Waupun ( 1924 )

The following opinion was filed October 14, 1924:

Vinje, C. J.

The question for decision is whether the trial court was justified in deducting from the return of the federal census the inmates of the state prison and the inmates of the asylum. If the court was so justified, then the judgment is correct, but if not, then the judgment must be reversed with directions granting judgment for the plaintiff. Sub. (27), sec. 4971, of our Statutes provides:

“The word ‘population,’ when used in connection with a classification of towns, villages, cities -or counties for the exercise of their corporate powers or for convenience of legislation, means the population of such towns, villages, cities or counties according to the last national census.”

It is clear that the word “population” as used in sec. 62.13 is used in a statute classifying towns, villages, cities, or counties for the exercise of their- corporate powers. It is equally clear that when the legislature has by statute provided for a reasonable test as to what constitutes the population of a city there is no power in the court to alter such test, or to exercise its own judgment as to whether or not such test is a proper one. The necessity for the legislature to fix a test for determining what shall constitute the population of a city for purposes of classification is obvious. Its selection of the national census as a conclusive test of what the population is, is certainly reasonable.

Were this a case where the court, free from a legislative declaration, could go into the question of what constitutes the population of the city of Waupun for the purposes of classification, it might well come to the conclusion reached by the trial court. The city of Waupun is not required to legislate in any respect with reference to the convicts. The state prison has its own police force, and no- ordinance passed by the city of Waupun can in an«y way affect the government of the state prison or the inmates contained therein. The convicts are not true residents within the city as the term “resident” is usually understood. They have no voice in the government, and it would be eminently proper for the legislature to exclude them in the counting of the population of the city. But the question is, Has it done so? It has said by definite and unmistakable language that the population of a city shall be the number returned by the United States federal census. That return is without question and admitted to be 4,440. The fact that the census report shows in its detail that some of these persons enumerated in the city of Waupun were convicts and some inmates of the insane asylum cannot affect the validity of the total number returned, nor change its population as returned by the census bureau. The census shows many detailed facts, such as the occupation, birth, race, and color of its inhabitants', but no matter what detailed facts are shown by the census the conclusion reached by the federal government as to the number that should be returned as a city’s population becomes conclusive, because the statute has said that it shall be. The reason why the legislature made the federal census conclusive upon questions of this kind is evident. It was for the purpose of obviating the necessity of making counts as to the population of a certain district. It is well known that there is scarcely a more difficult fact to prove than the true population of a city, village, or county. This matter was submitted to the attorney general in April, 1921. He said as a part of his opinion:

“We have no authority to go behind the official figure of the national census and determine how many of the persons enumerated in that census are bona fide residents and how many are not. The law takes the census enumeration as the standard, regardless of the standards of the persons included therein with respect to citizenship or permanent residence.”

This court no more than the attorney general has a right to go behind the legislative mandate and inquire into the correctness of the federal census. We concur thoroughly with what was said by the attorney general. It follows from what has been said that the judgment of the circuit court must be reversed.

By the Court. — Judgment reversed, and cause remanded with directions to enter judgment in favor of plaintiff as claimed in his complaint.