115 Wis. 470 | Wis. | 1902
Ob. 292, Laws of 1883, wbicb has, in substance, been embodied into' subd. 13, sec. 776, Stats. 1898, conferred on towns and town boards “All powers relating to villages and conferred upon village boards by the provisions of chapter 40, of the Revised Statutes, and all acts amenda-tory thereof,” with certain exceptions not material to this case, conditioned, as to each such town, upon its containing “one or more unincorporated villages, having each a population of not less than one thousand inhabitants,” with authority, acting by its supervisors, to exercise such powers “when directed by a resolution of the qualified electors of the town, at the last preceding annual town meeting.” All the conditions requisite to enable respondent to exercise the powers mentioned, existed at the time of the making of the contract in question, the village of Hurley being situated within the town of Vaughn and satisfying all the calls of the - statute. That, part of ch. 40, R. S. 1878, referred to- in the a<*fc of 1883, and which is retained in the present Revised Statutes, material to this case, is subd. 10, sec. 893. It confers on village boards power to provide a water supply for the ex-tinguishment of fires by the “erection or construction of pumps, water mains, reservoirs or other waterworks.” It confers no power, by its terms, upon villages or-village boards, to obtain a public water supply by contract with a private party. It is conceded that unless, at the time the contract in question wasi made, there was some provision of law which in legal effect amended such chapter, giving villages the right to make such a contract as the one before us, then the making thereof was an ultra vires act and the judgment appealed from must be affirmed.
By what has been said it will be noticed that the grant to towns regarding the exercise of the powers relating to vil
A statute may be amended or repealed by implication. Courts have oftener to deal with repeal of statutory law by that means than with amendments thereof; but that a change in such law may be as efficiently accomplished in the latter case as in the former, is, we think, too- well understood to admit of serious dispute. Of course, whether such change was wrought in any given case presents a question of legislative intent, to be determined by certain well-established judicial rules. Gilkey v. Cook, 60 Wis. 133, 18 N. W. 639; Oleson v. G. B. & L. P. R. Co. 36 Wis. 383; Goodrich v. Milwaukee, 24 Wis. 422. One of such rules, applicable to this case, is that where the laier act can stand without necessarily working any change in the earlier one, and there is nothing in- such later act clearly indicating a .purpose to change the former, it will be presumed that it was the legis
Auother rule applicable to this case is that, in determining-the real purpose of a legislative enactment, one must look to the whole thereof, to its objects, to its subject-matter, to its-effects and consequences. Harrington v. Smith, 28 Wis. 43; Hartford v. N. P. R. Co. 91 Wis. 374, 64 N. W. 1033. Probably the few familiar propositions referred to will suffice for the purposes of this case.
Applying what has been said to the subject before us, at the time of the enactment of the law of 1879 the authority to-incorporate villages and all the powers relating to village corporations organized under the general law, were contained in ch. 40, R. S. 1878. The purpose of that chapter was to-cover the entire field of village organization and government. A law thereafter enacted, prohibiting the doing of any act which a village by such chapter was empowered to do, though not referring to such chapter, necessarily worked a pro tanto repeal thereof. A change of such powers, whether by adding thereto or taking therefrom by a general law not referring to such chapter in any way, necessarily amended it. By such chapter power was given to villages to provide a water supply by constructing waterworks and operating the same at public-expense. The manner of providing a supply of water for public needs was one of the .most important subjects with which the legislature had to deal in enumerating the powers-which villages might exercise. The construction of waterworks and operation thereof at public expense was the sole-
It is contended in support of the judgment that the ordinance upon which the contract in question is based is unreasonable and void because, if the town of Vaughn had power to contract with a private corporation to furnish a water supply for the village of Hurley, a bargain binding the town in that regard for thirty years was a manifest abuse of such power. True, there is a limit to the exercise of discretionary power by the governing board of a municipal corporation. The limit is the boundary of reason to be marked by judicial authority in the last resort, giving to the primary instrument of government the benefit, substantially, of all reasonable doubts. Hayes v. Appleton, 24 Wis. 542; Clason v. Milwaukee, 30 Wis. 316; Stafford v. C. V. E. R. Co. 110 Wis. 331, 85 N. W. 1036; 17 Am. & Eng. Ency. of Law (1st ed.) 247; 1 Beach, Pub. Corp. §§ 512-514; Elliott, Railroads, § 1082. This court has heretofore ruled that a contract for water supply for a municipal corporation running thirty years is not unreasonable as a matter of law. Oconto City W. S. Co. v. Oconto, 105 Wis. 76, 80 N. W. 1113. That rules this case on the point under consideration.
It is further suggested that by the law of the state all contracts for the performance of work in a village, costing more than fifty dollars, must be let to the lowest bidder (sec. 921, Stats. 3898), and that the contract in question is void because not so let. It is a sufficient answer to that proposition that the law authorizing towns to contract with private corporations to furnish water in villages situated within their boundaries, contemplates that the contract in each case shall be made with a corporation organized, in the main, 'for the special purpose of furnishing water in the village. Clearly, the legislature did not have in mind that there would be numerous such corporations for one village. In the very nature
The foregoing covers all the questions discussed by counsel that seem to call for special treatment in this opinion. The judgment of the circuit court must be reversed and the cause remanded for a new trial.
By the Gourt. — So ordered.