229 Wis. 151 | Wis. | 1938
Lead Opinion
The petitions for writ of mandamus set out the necessary allegations in regard to incorporation and the relation of the defendants to the corporations, allege the enactment of sec. 61.65, Stats.; that the village of Shore-wood has a population, according to the census of 1930, of 13,479; that it is the duty of the defendant village and of the defendant trustees to comply with the provisions of sec. 61.65; that demand has been made upon the defendants for compliance with the section, and that such demand has been refused; that a reasonable time has elapsed; allege the interest of the petitioners in the subject matter of the controversy, and set out other matters with particularity to which it is not necessary to refer at this time. Motion to quash the alternative writ is equivalent to a demurrer and raises the sufficiency of the complaint. The only ground upon which the defendants assert that the complaint does not state facts sufficient to constitute a cause of action is that sec. 61.65 is unconstitutional.
Sec. 61.65 provides: “Police and fire departments; pension funds. (1) Every village having a population of five thousand or more, according to the last federal census, shall
“(2) In the carrying out of the provisions of this section, the following words, whenever used in said section 62.13, shall, unless the context otherwise requires, have the following meaning:
“(a) ‘Mayor’ means village president.
“(b) ‘Comptroller’ means village clerk.
“(c) ‘City Treasurer’ means village treasurer.
“(d) ‘Council’ means village board.
“(e) ‘City’ means village.
“(3) When the amount in the firemen’s pension fund shall be fifty thousand dollars, only the income therefrom, with the other revenues of said fund, shall be available for the payment of pensions.
“(4) Persons who are members of the police and fire departments in villages of five thousand or more, according to the last federal census, at the time of the taking effect of this act, shall automatically and without examination, become members of the police and fire departments of such villages under this section and shall be entitled to pension benefits, in accordance with the provisions of this section, for all prior service rendered.
“(5) The provisions of this section shall be construed as an enactment of state-wide concern for the purpose of providing a uniform regulation of police and fire departments.”
The controversy arises over the fact that under the statutes of the state of Wisconsin, villages may be incorporated with a population of 150 to 400, depending upon the area.
It is strenuously contended that the classification under consideration is one not germane to the purpose of the law. It appears that according to the 1930 census there were in
This contention overlooks the fact that urban areas are by the constitution itself classified as villages and cities. Sec. 31, art. IV, provides:
“The legislature is prohibited from enacting any special or private laws in the following cases: . . .
“9th. For incorporating any city, town or village, or to amend the charter thereof.”
Sec. 32, art. IV, provides r “The legislature shall provide general laws for the transaction of any business that may be prohibited by section thirty-one of this article, and all such laws shall be uniform in their operation throughout the state.”
Sec. 3, art. XI, provides: “Cities and villages organized pursuant to- state law are hereby empowered,” etc.
These provisions clearly empower the legislature to create municipal corporations. Whether an urban area shall be incorporated as a village or a city is to be determined by the rule established by the legislature. By legislative enactment (sec. 61.01, Stats.), the inhabitants within the territorial limits there specified determine whether it shall be incorporated as a village. When so incorporated the village has all the powers prescribed by ch. 61, Stats. Sec. 61.58 provides another method by which the electors may determine that a village shall become a city. By sec. 62.06 any district containing a population of 1,500 or more and consisting of and containing an incorporated oi- unincorporated village may become a city.
The constitution authorizes the creation of two distinct classes of urban municipalities, and classification by the legislature being allowable within the constitutional classification, there is no basis for the contention that a village of 6,000 population, for instance, must have the same form of government as a city of 6,000 population, because they are not within the same constitutional class. Any contention therefore based upon the fact that a city of a specified population must be governed by the same law that governs a village of the same population is not sound. Sec. 61.65, Stats., creates two classes of villages, those having 5,000 population or more and those having less. So long as villages within these classes receive uniform legislative treatment, the constitutional provisions are fully complied with. The legislative classification is based not on urban area but upon the form of municipal organization. The contention that urban areas having equal population must be treated alike cannot be sustained.
It is next contended that sec. 61.65, Stats., is unconstitutional because it is contrary to sec, 3, art, XI, Const., com
“Cities and villages organized pursuant to state law are hereby empowered, to determine their local affairs and government, subject only to this constitution and to such enactments of the legislature of state-wide concern as shall with uniformity affect every city or every village. The method of such determination shall be prescribed by the legislature. ...”
It is contended that sec. 61.65, Stats., deals with local affairs and government within the meaning of the home-rule amendment. Sub. (5 ) of -the section provides:
“. . . This section shall be construed as an enactment of state-wide concern for the purpose of providing a uniform regulation of police and fire departments.”
In, addition to that, in the case of Van Gilder v. Madison (1936), 222 Wis. 58, 267 N. W. 25, 268 N. W. 108, where the matter was under consideration, the court arrived at the conclusion that the entire matter of regulation of police was primarily a matter of state-wide concern. It is considered that for the reasons there stated the matter of fire protection is equally so. The state very elaborately regulates the issuance of fire insurance policies and prescribes their terms; the office of fire marshal has been created with a state-wide jurisdiction; the conservation commission is given broad powers with respect to fire protection, covering large areas of the state; and there are many other considerations which lead to the conclusion that the legislature was here dealing not with a local affair but with a matter of state-wide concern. The legislature declared the section to be a matter of state-wide concern. While this is not conclusive on the court, it is persuasive. It is considered that the section is not in conflict with the home-rule amendment.
Sec. 1 provides: “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.”
Sec. 22 provides : “The blessings of a free government can only be maintained by a firm adherence to justice, moderation, temperance, frugality and virtue, and by frequent recurrence to fundamental principles.”
The case of Christoph v. Chilton (1931), 205 Wis. 418, 237 N. W. 134, is cited in support of this contention. In that case it was held that an act of the legislature which authorized the detachment of agricultural lands from cities of the fourth class only was invalid because based upon an arbitrary and unreasonable classification. What that act attempted to do was to classify farm lands. It put them in one class when they were within the limits of a city of the fourth class and put them in another classification when they were within the limits of cities of the third class. No' basis of classification was suggested except that of inclusion within city limits in cities of different classifications. This classification was held to be arbitrary. Upon the basis of that case it is argued that the classification embraced within the provisions of sec. 61.65, Stats., is arbitrary because under it a village of 6,000 is required to comply with certain provisions of the statute, while cities of the fourth class with an equal population are not required to do so. As has been pointed out, there is nothing in the constitution that requires all areas having an equal population to have uniformity of municipal government. If a village having over 5,000 population wishes to be governed by the same law which governs a city of-the fourth class, the legislature has provided a way by
It is also contended that ch. 148, Laws of 1937, which created sec. 61.65, Stats., is a special law and invalid because contrary to the provisions of sec. 31 9th, art. IV, Wisconsin constitution. This contention is based upon the provisions of sub. (4) which are:
“Persons who are members of the police and fire departments in villages of five thousand or more, according to the last federal census, at the time of the taking effect of this act, shall automatically and without examination, become members of the police and fire departments of such villages under this section and shall be entitled to pension benefits, in accordance with the provisions of this section, for all prior service rendered.”
Sec. 31 9th, art. IV, Const., already quoted is as follows:
“The legislature is prohibited from enacting any special or private laws in the following cases : . . .
“9th. For incorporating any city, town or village, or to amend the charter thereof.”
Inasmuch as sec. 61.65, Stats., provides that persons who are members of the police and fire departments at the time of the taking effect of this act, it is argued that the act is a special law because by its terms the provisions of sub. (4) can only apply to the members of the police and fire departments of villages of 5,000 or more at the time ch. 148, Laws of 193.7, went into effect. Whether or not this contention is sound depends upon the construction placed upon the language of sub. (4) “at the time of the taking effect of this act.” It may well be that the most obvious construction to be placed upon the section is that contended for, that is, that
“Every village having a population of five thousand or more . . . shall have a police and fire department,” etc.,
is inclusive and would apply clearly to' any village growing into the classification. When a village grows into the classification the act takes effect so far as that village is concerned, and it could not take effect in such a village before the happening of that event. It is not an act therefore which applies only to existing circumstances, because other villages may be added to the class and the members of the police and fire departments of such villages will receive the same benefits as if within the classification when the act was published. Statutes have been held unconstitutional because they created a closed class in many cases, among them are the following: Boyd v. Milwaukee (1896), 92 Wis. 456, 66 N. W. 603; Burnham v. Milwaukee (1897), 98 Wis. 128, 73 N. W. 1018; Neacy v. Drew (1922), 176 Wis. 348, 187 N. W. 218. There can be no doubt under the doctrine of these
“The cardinal principle of statutory construction is to save and not to destroy. We have repeatedly held that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the act. Even to avoid a serious doubt the rule is the same.” National Labor Relations Board v. Jones & Laughlin Steel Corp. (1937) 301 U. S. 1, 30, 57 Sup. Ct. 615, 81 L. Ed. 893.
To the same effect are Jessner v. State (1930), 202 Wis. 184, 231 N. W. 634; Dick v. Heisler (1924), 184 Wis. 77, 198 N. W. 734; 11 Am. Jur. p. 725, and cases cited on that and successive pages.
The construction placed upon the act is not strained or farfetched. Sub. (4) would have secured to members of the police and fire departments in villages having a population of 5,000 or more, on May 19, 1937, the benefit of the act if the words “at the time of the taking effect of this act” had been omitted. While the language is not well chosen, it seems to be the clear intent and purpose of the legislature to secure the same rights to members of the police and fire departments of villages which may grow into the classification as were accorded to^ members oí the police and fire departments of villages which already had a population of 5,000 or more. The subsection also provides that members of the police and fire department “shall be entitled to pension
By the Court. — The orders appealed from are affirmed.
Dissenting Opinion
{dissenting). I agree with the opinion of the court that the words of ch. 148, Laws of 1937, “at time of the taking effect of this act,” should be construed as the time a village acquires the population designated by the act, according to the last federal census, instead of the time of “the passage and publication” of the act, just as the phrase “last federal census” in this act and in the statute classifying cities according to population does not mean the census next previous to the passage of the acts, but the one next previous to the time the population reaches the designated number.
But I think the act is unconstitutional because discriminatory under the Fourteenth amendment under the rule of Christoph v. Chilton, 205 Wis. 418, 237 N. W. 134. The Chilton Case involved a statute that provided for the detachment of agricultural lands from cities of the fourth class, but did not apply to villages of population equal to that of the fourth class or to other cities. The basis of the decision was that the act involved granted to owners of land in cities of the fourth class privileges that were not granted to owners of like property in like situations in other cities and villages. The action was brought, as here, by a citizen who invoked the statute and demanded its enforcement. The city in defense attacked the statute as unconstitutional. If the city of
The burden of taxation imposed by the instant act is vastly greater than that imposed by the act involved in the: Chilton Case. I agree, of course, that population is a proper basis for classification of cities and villages, and that different-forms of government and governmental regulation may properly be provided for villages and for cities of different classes. But this is not a mere matter of difference in form of government or governmental regulation. It is a matter
For the reasons stated, I think the judgments of the circuit court should be reversed with directions to dismiss the complaints.
Dissenting Opinion
{dissenting). It is provided in sec. 2 of ch. 148, Laws of 1937, that “this act shall take effect upon passage and publication.” The wording of that usual provision is so plain and unambiguous that it probably has never been construed heretofore to mean anything else than that the act became effective on the date of its publication. That was on May 19, 1937, in this case. Consequently, that date was undoubtedly the time intended by the legislature in using the words “at the time of the taking effect of this act” in sub. (4), which provides:
“Persons who are members of the police and fire departments in villages of. five thousand or more, according to the last federal census, at the time of the taking effect of this act, shall automatically and without examination, become members of the police and fire departments of such villages under this section and shall be entitled to pension benefits, in accordance with the provisions of this section, for all prior service rendered.”
That language is likewise plain and unambiguous. Its meaning clearly is that the persons upon whom there was thereby intended to be conferred, — “automatically and without examination,” — the status and benefits created thereby were those who “at the time of the taking effect of this act,” i. e., on May 19, 1937, “are members of the police and fire departments in villages of five thousand or more, according to the last federal census.” And correspondingly, the burdens resulting by reason of the status and benefits thus conferred
“That this act, when so amended, is special legislation amending the charter of the city of Milwaukee, and thus within the inhibition of sub. 9, sec. 31, art. IV, Const., is plain from a mere reading of the acts and reference to* the principles laid down in Johnson v. Milwaukee, 88 Wis. 383, and Boyd v. Milwaukee, 92 Wis. 456. Milwaukee is the only city to which the act can possibly apply. It is the only city of the first class, i. e., having a population of 150,000 and over. No other city can come into that class during the year 1897, or before the taking of the next census in 1900. Laws of 1895, ch. 238. It could be no' more certain that the act applied to Milwaukee alone if it had been so expressed in words. The case is plainly ruled in this respect by Boyd v. Milwaukee, supra."
The conclusions stated above compel me to dissent herein.
