Meade v. Dane County
155 Wis. 632
Wis.
1914
Check Treatment
TimliN, J.

By sub. 1 of sec. 39j, Stats., no ordinance passed by tbe council of any city except such cities as are organized under secs. 925ot — 301 to 925m — 317, inclusive, of tbe statutes, and no ordinance or resolution of any county board, shall go’into effect within twenty days from the time of its passage. This would seem to apply only to ordinances of a city council and ordinances or resolutions of a county board were it' not for sub. 3, which in apparent forgetfulness of sub. 1, which provides no stay of twenty days for resolutions of a city council, permits, nevertheless, a petition by qualified electors of the city praying that1 the operation of such resolutions be suspended, and provides for their suspension. Cities referred to in secs. 925m — 301 to 925m — 317 are those organized under the so-called commission form of government. Upon petition of a stated number of qualified electors filed with the city or county clerk, as the case may be, the city council or county board must at it's next meeting either repeal the ordinance or resolution or submit it to the electors at the next regular election, or at a special election to be called for that purpose if there is no general election or no special election for other purposes to be held within ninety days. If the ordinance or resolution shall be approved by a majority of the electors voting thereon it shall take effect and be in force after twenty days from the date *638of the election. If it be not so approved it shall stand repealed from and after twenty days next following the election. The contention of counsel for respondent is that this applies to all ordinances and all resolutions of any kind and upon any subject except those granting a franchise for a public utility or authorizing the issue of municipal bonds. The contention is that the statute applies to resolutions of condolence or of thanks, resolutions of adjournment', for the purchase of lead pencils, stamps, or stationery, for the repair of roads, for the relief of the poor, for the sale of tax certificates, for the settlement of a cause of action, the repair of county buildings or their insurance, the apportionment and levy of taxes or the manner and form of keeping the public records, the encouragement of agricultural fairs or the purchase of land,- the making of the lists of jurors or the borrowing of money, the diet of the inmates of the jail or the publication of the proceedings of the county board, the fees of officers and magistrates in vagrancy prosecutions had before them, the vacation and change of the boundaries of towns, the laying out and discontinuing of roads, the allowance of bounties for the destruction of wild animals, the change of the name of any town or village or. person, the vacation of any city, town, or village plat, the granting of charters to build and maintain toll and free bridges, the incorporation of literary, benevolent, charitable, and scientific institutions, the granting of charters and conferring of corporate powers upon turnpike companies, the establishment of dock or wharf lines upon navigable waters, the erection of monuments to the memory of distinguished citizens of the county, the procuring of transcripts or abstracts of the records of other counties affecting the title of real estate, the making of leases, contracts, or other conveyances in relation to lands acquired for public purposes, and the many other matters of a temporary or administrative nature which *639might be acted upon by a county board of supervisors or by the common council of a city. Ch. 36, Stats.

In the case of a large city where the common council meets fortnightly, after the lapse of the first' ninety days it would be in the power of twenty per centum of the electors to enjoy an election in each alternate week in review of the resolutions of the city council, and another series of county elections sandwiched in between these numerous city elections to review the resolutions of the county board of supervisors adopted at one of its numerous meetings. Taken literally the statute reads that way. To those who enjoy elections it gives promise of almost unlimited hilarity; to those who pay the bills almost unlimited expense. But it is contended that the good sense of the people would be a sufficient safeguard against such a superabundance of elections. This is in effect an argument that the good sense of the people at election is superior to the good sense of the statute as well as to the good sense of the city council or county board. If the statute authorizes such a condition of affairs its validity cannot be tested by any such consideration as this. An invalid statute is not rendered valid merely because those whom it attempts to authorize will probably have too much good sense to avail themselves of such authority. The plaintiff is here endeavoring to assert rights under this statute.

It is noticeable in scanning this statute that all ordinances and resolutions, whether of the class called “emergency ordinances and resolutions” or not, are subject to this referendum review, the only difference being that an emergency ordinance or resolution goes into effect immediately, while all others do not go into effect until twenty days from the time of their passage, and perhaps not then if the petition for an election is filed. But there is a referendum review in either case. An emergency ordinance or resolution is described as one declared by a two-thirds vote of the mem*640bers elected to tbe city council or county board to be necessary for some immediate purpose, or else an ordinance or resolution making an appropriation for maintaining the city or county government or maintaining any public institution. In ordinances or resolutions of tbis description tbe part of-sucb appropriation not exceeding tbe next previous annual appropriation for tbe same purpose shall take effect and be available at tbe time fixed by law, apparently discriminating between tbe time fixed by law and tbe time fixed by this statute. Tbe increase in any sucb appropriation, however, shall only take effect as in tbe case of other ordinances or resolutions, and sucb increase or any part thereof specified in tbe petition may be referred to a vote of tbe people upon petition. Tbis last would seem to indicate that only sucb increase or only such part thereof as was specified in tbe petition might be referred to a vote of tbe people. But sub. 3 includes all ordinances or resolutions, and sub. 4 provides that “an emergency ordinance or resolution shall remain in force notwithstanding any petition filed upon it, but such ordinance or resolution shall stand repealed from and after twenty days after being rejected by a majority of tbe qualified electors voting thereon.” Tbis last is general and apparently applies to all emergency ordinances; therefore in-ckides ordinances making appropriations for maintaining tbe city or county government or maintaining or aiding any public institution as defined in sub. 2.

With a view to upholding tbis statute we have diligently scanned it for some limitation upon tbis general right of appeal from .the laws or resolutions of tbe city council or county board to the'city or county electors. But having due regard to tbe language employed and the nature of tbe subject' legislated upon, we find none, and, as heretofore stated, counsel for respondent will admit of none. We cannot limit it to those doings of the board which are required by law to be published, because that requirement covers all tbe pro-*641eeedings. Appellant’s counsel argue tbat tbis referendum review must be limited to such exercise of power by the county board or city council as other statutes require to be exercised by ordinance or resolution. Hence, there beifig no such requirement concerning the proceedings in question^ there was no right of referendum review under sec: 39/* Of the statutes, sec. 653 provides that the county board may by ordinance or resolution direct the clerk to sell and convey certain real estate; sec. 658 negatively that bonds shall not be issued except in pursuance of a resolution or ordinance; sec. 668 that the board may by resolution authorize the chairman to appoint committees; sec, 670 that all powers thereby conferred shall be carried into effect by ordinance; sec. 671m speaks of ordinances or resolutions for the division, etc., of towns; sec. 694 authorizes the county board, to change by resolution the manner of compensating th& sheriff; sec. 697^ extending the duties of certain trustees by resolution; sec. 697 — 1 provides for acquiring land upon which to maintain a house of correction and providing by resolution for such acquisition; sec. 697 — 32 et seq. for expressing by resolution an opinion that it is for the best interests of the county and the inhabitants thereof that a viaduct or bridge be erected, etc.; sec. 697 — 40 that the board may by resolution direct the chairman to sign and the clerk to countersign bonds; sec. 1519 that the county board may by resolution abolish the distinction between county poor and town poor, etc. At the same time secs. 654, 656, 669, 682, 69Ó, 693, 694, 697a, 697o, 697 — 5, 697 — 11, 697 — 15, 697 — 18, 697 — 22, 697 — 23, and other sections, authorize the board, without mentioning the manner of exercise, to “fix and designate,” to “appoint,” to “order,” to “direct,” to “prescribe,” to “perform,” to “grant,” to “make,” to “establish,” etc. These different modes of expressing the authority conferred upon the board by the legislature seem to be entirely •haphazard and cannot be classified either with reference to *642tbe object to be acted upon or with reference to the nature of the power exercised. The statutory requirement or permission that the act be by ordinance or resolution has no apparent relation to the desirability of or to the right of a referendum review. Besides, it was held' in Green Bay v. Brauns, 50 Wis. 204, 6 N. W. 503, that when an oral motion is adopted by the common council it becomes a resolution or order of that body. See, also, El Paso G., E. L. & P. Co. v. El Paso, 22 Tex. Civ. App. 309, 54 S. W. 798; Pierson v. Dover, 61 N. J. Law, 404, 39 Atl. 675.

While there are in some instances and for some purposes fundamental distinctions between an ordinance and a resolution, there is no such broad distinction between a resolution and other acts of an administrative or quasi-legislative board. Almost any one of these acts not required to be by ordinance may be in the form of a resolution. Alma v. Guaranty Sav. Bank, 60 Fed. 203, 8 C. C. A. 564.

We are led to the conclusion that the words “ordinance or resolution” cover all exercise of power by the county board which either may lawfully be or is exercised in the form of a resolution, and hence that the acts in question are within sec. 39j. The county board for many purposes and in the exercise of many administrative, local legislative, and quasi-judicial functions represents the county as a local government and also as an administrative unit of the state. Instead of conferring authority upon an officer as is done under other systems, the state avails itself of its local subdivisions and the officers thereof to administer locally laws of general character in the administration of which all the people of the state are interested, such as the maintenance of highways, public charities, support of the poor, schools, and police regulations generally. In the exercise of such power the county acts by delegated authority, and the state constitution (sec. 22, art. IV) expressly authorizes the legislature to confer upon the boards of supervisors of the several *643counties “such powers of a local, legislative and administrative character.”

Tbe question arises whether the legislature could make such powers of the county board so conferred, which affect the whole people of the state and the state itself in its sovereign capacity and which the county through its board of supervisors exercises as an administrative unit or officer of the state, take effect upon the contingency that only the voters of a single county approve it at an election ? Again, the county board may allow or disallow the claim of any person against a county. Secs. 676 to 682. Suppose it allows the claim. No appeal to the courts is authorized in such case. May the matter then go by referendum to the electors to disallow it? In many other cases the county board is authorized to act in a quasi-judicial capacity upon rights of action. Is it due process of law to permit the electors to determine such matters? These questions have not been argued and we express no opinion upon them. It is clear, however, that the action or resolution of the county board in question is, within the terms of sec. 39/, an emergency order or resolution, because it makes an appropriation for or is in aid of a public institution, and that by sub. 4 the action of the county board is not merely to go into effect upon the contingency that a majority of the electors declare it, but, on the contrary, takes effect from the time of its passage and is repealed by the action of the electors in case the majority so decide. We think there is no doubt that this is the clear meaning of the law. This is not making the decision of the board go into effect only upon condition. It is delegating to the electors the legislative power of repeal. Moreover, it is vesting in the electors of the county the powers which the constitution says may be vested in the county board. The constitution provides for and authorizes a delegation of such powers to a specified body. Hxpressio unius est exclusio ’alierius. In that sec. 39/ conflicts with the constitution. *644Ex parte Vallandigham, 1 Wall. 243, 252; State ex rel. Crawford v. Hastings, 10 Wis. 525, 531.

In at least these respects, therefore, this statute conflicts with the constitution: (1) because it violates sec. 22 of art. IV in attempting to delegate to the electors powers which that section, interpreted by the regular rules of interpretation applied in the Vallandigham Case and in the Hastings Case, supra, requires to be otherwise delegated; (2) because as regards emergency resolutions there defined, which includes the resolutions in question here, the statute is an attempted delegation of the legislative power of repeal. In this latter respect the case is unlike State ex rel. Van Alstine v. Frear, 142 Wis. 320, 125 N. W. 961, and cases there cited, where the legislation was to go into effect upon the occurrence of a designated event such as the result of an election. (3) Sec. 39;i grants to the electors of the county the power to repeal and annul ordinances as well as resolutions. The grant is inseparable. As to all ordinances, and as to those resolutions which are in effect ordinances, declared by said section to be in force and effect until repealed by the electors, this is a delegation of legislative power and forbidden by constitutional law. As to some other resolutions it is a delegation of judicial power and likewise forbidden. The power to review and reverse the otherwise final decisions of an administrative officer or department or of a quasi-judicial tribunal is judicial power expressly conferred elsewhere (sec. 8, art. VII, Const.). Therefore it cannot be conferred upon the electors under the rule here-inbefore referred to. State ex rel. Crawford v. Hastings, 10 Wis. 525, 531; State ex rel. New Richmond v. Davidson, 114 Wis. 563, 518 (88 N. W. 596, 90 N. W. 1061), and cases cited. See, also, pp. 580, 581.

Hundreds of illustrative instances going back to the earliest-times showing the exercise of such power by the judicial department might be cited. Even the judicial power in this *645direction is limited. As to all other resolutions of tbe county board tbis is a delegation of administrative power, and tbis class of powers tbe constitution, sec. 22, art. IV, permits to be delegated only to tbe county board. Besides tbe indications of intention in tbis respect appearing upon tbe face of tbe constitution by ordinary and fair interpretation there are fundamental reasons. Tbe action of tbe board of supervisors might in a proper case be coerced by mandamus. Tbe electors could not be compelled to vote aye or nay. Tbe state would in tbe latter case then surrender to tbe voters in one county its right and duty to administer tbe laws in tbe instances mentioned in which tbe whole people of the state are interested. Tbe voters might refuse to provide prisons or workhouses, hospitals, highways or schools or courthouses, support of tbe poor, or police protection, and tbe state would be powerless if tbis statute were valid. Tbe statute in question seems to have been framed in entire unconsciousness of fundamental principles, and we have no reasonable doubt of its invalidity. No other questions need be considered.

By the Court. — Judgment reversed, and tbe cause remanded with directions to dismiss tbe complaint.

BaeNes, J., dissents.