28 Wis. 464 | Wis. | 1871
Tins is an appeal from the taxation of costs in this court by the clerk The costs were taxed in favor of the plaintiff, Durhee, who was the prevailing party,
The principle thus clearly shown by the decisions, if applicable to the acts under consideration, seems conclusive against their validity. And I think- they are invalid. Certainly no ■discrimination more arbitrary, unjust and odious, between one individual or corporation and another, or every other, in a matter where the rights and privileges of all should be equal, could •well be, than would thus be established, if such acts were valid. The city of Janesville would have a special privilege or advantage not given to any other like corporation under the same circumstances. But the most odious feature of the law would
In Massachusetts, tbe authority of tbe legislature to suspend tbe operation of a general law in favor of an individual was denied upon tbe ground that it was “ manifestly contrary to tbe first principles of civil liberty and natural justice, and to tbe spirit of our constitution and laws, that any one citizen should enjoy privileges and advantages which are denied to all others under like circumstances; or that one should be subjected to losses,. damages, suits or actions, from which all others under like circumstances are exempted.” 11 Mass., 405.
“I do not hesitate to declare,” says Mr. Justice JOHNSON, in Fletcher vs. Peck, 6 Cranch, 143, “that a state does not possess the power of revoldng its own grants. But I do it on a general principle, on the reason and nature of things; a principle which will impose laws even on the deity.” And the same principles are announced and fully approved by the court in Wilkinson v. Leland, 2 Peters, 656, 658, and Terrett v. Taylor, 9 Cranch, 50, 52.” See also opinions of Walworth, Chancellor, 5 Paige,
It is undoubtedly a safe and sound general proposition, that for tbe court to declare an act of tbe legislature void for unconstitutionality, some specific clause or provision of tbe constitution must be pointed out, wbicb bas been violated. But tbe rule is not without its exceptions, as tbe above references show, and as might be shown by reference to numerous other decisions. If we take, for example, tbe numerous cases where acts of tbe legislature authorizing tbe taking of private property for private use, have been held void, even though full compensation bas been made or provided for tbe property taken, we shall find that in none of them was there any express or positive prohibition of such legislation in tbe constitution or fundamental written law of tbe state. And tbe same remark is true of those cases where taxation for private purposes bas been held invalid, though authorized, or attempted to be, by tbe legislature. And to these it is presumed other citations might be added, showing a want of power in the legislature in other respects, when the constitution interposes no direct or positive restraint. It seems to be true, therefore, of written constitutions as of statutes, that “ when made, there are some things which are exempted and fore-prized out of the provisions thereof, by the law of reason, though not expressly mentioned.” Potter's Dwarris, 123. The grant of legislative powers, though without prohibition or restraint that the legislature shall not discriminate and do gross and palpable injustice between man and man by the passage of unequal and partial laws, does not carry with it the power to pass such laws. Such a power, from its very nature, and of necessity, is “ fore-prized ” and taken out of the grant, without any express exception or limitation ; and the act, though in form of law, yet, not being within the scope of the authority conferred, is not legislation at all, and so is void.
In Tennessee, acts of this kind are adjudged invalid as contravening tbe declaration in tbeir bill of rights, that no freeman shall be disseized of bis freehold or deprived of bis property, but by tbe judgment of bis peers, or the laio of the land. Tbe clause “ law of the land," is held to mean a general public law, equally binding upon every member of tbe community. 2 Yerg., 554, 599. We have not that clause in our declara
Certainty of remedy implies uniformity of remedy and equality of rights and privileges in all things respecting it, which can only be obtained by general laws, equally binding upon every member of the community. The language denotes that there can be but one remedy for all similar cases, which must operate upon all persons or parties alike, and be equally free and favorable to all.
The objection taken before the clerk, that $20 of the item of $34, in the bill of costs, for “ printing case,” was improper, because such printing was not done in preparing the case for this court, is abandoned on this appeal. An examination of the printed case shows that the $34 item was properly taxed for printing which was actually done in preparing the case for this court. That sum, and even more, if the same had been expended, might have been taxed according to the rule of taxation in such cases.
See Durkee v. The City of Janesville, 26 Wis., 697.