Gilbert-Arnold Land Co. v. City of Superior

91 Wis. 353 | Wis. | 1895

Maiíshall, J.

It is not claimed, and indeed cannot be seriously, that the common council of the appellant city had any authority, under sec. 72, ch. 312, Laws of 1893, to adopt the repealing clause of that act in place of sec. 239 of the city charter, prohibiting the payment of salaries to certain officers named therein, and thereby pave the way for granting salaries to such officers. The action of the common council in that regard is without even the semblance of legal authority. The' substituted section does not constitute any part of the general law for the organization of cities; none whatever. The finding of the trial court that the purpose of the entire ordinance was to prepare the way for the granting of salaries prohibited by sec. 239 of the charter is abundantly supported by the evidence, and, as its purpose in that regard wholly failed because, notwithstanding the ordinance, the prohibitory clause referred to still remained in. force, the question is presented, What becomes of the balance of the ordinance ?

We hold that the rule in regard to unconstitutional laws applies, which may be stated as follows: If the void' part of the act is the compensation for or the inducement to the valid portion, so that, looking at the whole act, it is reasonably clear that the legislative body would not have enacted the valid portion alone, then the whole act will be held inoperative and void. Slauson v. Racine, 13 Wis. 398; State ex rel. Walsh v. Dousman, 28 Wis. 541; Slinger v. Henne-man, 38 Wis. 504; Dells v. Kennedy, 49 Wis. 555; State ex rel. Cornish v. Tuttle, 53 Wis. 45; State ex rel. La Valle v. Sauk Co. 62 Wis. 376. From the foregoing it follows that the entire ordinance under consideration, by which it was attempted to amend the charter of the appellant city, is void, and that such charter stands the same as before the attempted amendment, with the prohibition against the paying of salaries to the officers mentioned in sec. 239 in full force, and sec. 15, requiring the council to fix the salaries of city officers in March, in force as well.

If the attempt to amend the charter had been successful, the result of this case would necessarily be the same. Sec. 37 of the charter expressly provides that all ordinances shall be published within fifteen days after their passage and before they shall take effect. Under this provision, that in no event could the amendatory section have been made effective till after the time the salaries for 1894 were fixed is too clear for argument. Hence it follows,-as stated, that in any view of the case the salaries of the officers for 1894 were limited and fixed by the action of the council at the meeting of March 6th of that year.

A question of costs is presented, in that it is claimed that costs should not have been awarded by the court below to respondent. That was a matter in the sound discretion of the trial court, and, as we are unable to say '(¡here was any abuse of discretion in the matter, the judgment cannot be disturbed on that ground.

It follows from the foregoing that the judgment appealed from was right and should be affirmed.

By the Court.— Judgment affirmed.