Knapp v. Grant

27 Wis. 147 | Wis. | 1870

Dixon, C. J.

This case differs from the case of Fisk v. Kenosha, lately decided [26 Wis. 21], in this, that the bond here, for the payment of which the plaintiff seeks to restrain the levy and collection of taxes, was issued under chapter 105, Pr. Laws of 1853, which limited the amount of bonds to be issued under it to a sum not exceeding $150,000. It is not a case, therefore, where the legislature, by reason of its omission to restrict the power of the city in contracting debts, had no power to pass the act in the first instance, and consequently could not ratify it or the proceedings had under it by a subsequent general statute recognizing the validity of all debts contracted under it, without regard to the amount and without its appearing that the legislature knew the amount, which was held insufficient for that purpose in Fisk v. Kenosha. The legislative discretion .respecting the amount of indebtedness which the city ought to be permitted to incur for the object named, had been exercised here, and that question determined, and the sum fixed in due form under the constitution. The act failed, or rather the valid execution of the bond failed, by reason of a noncompliance, at the time it was issued, with a requirement of the constitution in another particular, which related, not to the action of the legislature itself, which was regular and sufficient, but to the time when such action should become completely efficacious and operative as an expression of the legislative will in proper form. The legislative consent, so far as the legislature itself could act, had been duly given before the bond in question, with others, was issued, but was inoperative at that time because the act had not been published. The substance of the thing required — the actual consent of the legislature — existed; but the form necessary to give it due force and effect under the constitution was absent. It was not a case, therefore, where the legislative consent can be said to have been entirely wanting, and yet it was assumed in Fisk v. Kenosha that the legislature might ratify even in a case of that kind, or if that were the only objection. And that is the only question here. It is, whether it was competent for the legislature, with the assent of the proper city authorities, to ratify the execution and delivery of the bond in controversy by subsequent enactment, and whether the legislature has done so. The only objection taken to the validity of the bond, or to the legality of the action of the common council in proceeding to levy and assess the tax to pay it, is, that it was issued before the act was published, which is no more than that previous legislative consent was not duly obtained. This avoided the bond at the option of the city, unless it has since been ratified. The power of the legislature, with the assent of the proper municipal authorities, under such circumstances, to ratify, is not only conceded in Fisk v. Kenosha, but is too well settled by the numerous adjudications of this and other courts to admit of doubt or discussion. If previous legislative consent merely be wanting, that may be supplied by subsequent enactment; and then, if the corporation confirms' or treats as valid its former proceedings, they are valid. It was conceded in Fisk v. Kenosha also, but for the mistake of the supreme court of the United States, in the case of Campbell v. the City of Kenosha there referred to, in supposing that the scrip was or might have been issued under the above act of 1853, or if it had in fact been so issued, that the court was right in holding that the provisions of the revised charter of the city, passed in 1857, were a legislative ratification of the issue of the bonds. And so we think now. We think abundant evidence of such ratification as to the bond in question is found in section 3 of sub-chapter VI of the revised charter. Chap. 133, Private Laws of 1857, p. 296. And if such evidence were not found there, it would still be found in the two first sections of chapters 152, Pr. Laws of 1862, and 407, Pr. Laws of 1868.

And as to evidence of a ratification by the city, the complaint in this action furnishes it. It appears not only that the common council were proceeding to levy and assess á tax to pay the bond, but that they are likewise resisting this action by which an injunction is sought to prevent them.

Such being the only grounds upon which the validity of the bond, or the legality of the tax proceedings, is contested, we must hold that the court below was in error in overruling the demurrer to the complaint, and must reverse the order, and remand the cause for further proceedings according to law.

By the Court. — It is so ordered.