59 Wis. 591 | Wis. | 1884
Sec. 32, ch. 34, R. S. 1858, provided that the majority of the board of supervisors of any county may determine to abolish all distinction between county poor and town poor in such county, and have the expense of maintaining all the poor therein as a county charge, and the board shall have authority to levy and collect on the taxable property in such county such expense in the same manner as other county charges. Sec. 16, ch. 35 of the same revision, provided that in counties where the county system of supporting the poor has been adopted, all moneys derived from licenses for the sale of intoxicating liquors shall be paid by the treasurers of the towns, cities, and villages, into the treasury of the county, semi-annually, and they shall be
In 1817, the plaintiff, Richland County, by force of the first-above statute, adopted the county system of supporting the poor. In 1882 the village of Richland Cantar, in said county, collected, for licenses .for the sale of liquors, the sum of $560, and failed to pay the same over to the county treasurer, and the trustees of said village, by resolution, determined to retain said fund to be expended for general village purposes. Sec. 1, ch. 156, of the Laws of 1883, provided that “ the action of the various town boards, village trustees, and common councils in counties where the county system of supporting the poor shall have been adopted, providing for a different way of disposing of the license moneys tham their payment into the county treasury for the support of the poor of the county, is hereby in all respects legalized.”
This last statute makes it optional with any town, city, or village, by ordinance or resolution, to devote this fund to other purposes than the support of the poor of the county in which the county system of supporting the poor had been adopted, and legalizes any such diversion of said fund which hád already been made. The portion of this fund collected by the defendant village in 1882 had been retained and expended for common village purposes, by resolution of its trustees, and was as clearly within the power of disposition by the legislature as any fund that might thereafter be derived from the same source. So far as the plaintiff county is concerned with it, it was a fund already collected, and liable to be paid over to the county semi-annually, and still in the village treasury, the payment of which could be enforced by action at law; so that the act of 1883 was not really, though in form, a legalizing act. It was rather an act providing that all of such fund now in the hands of the village treasurer, and that may hereafter come into his hands, from licenses of the sale of liquors, may be devoted
The resolution of the trustees diverting this fund already collected from the purpose prescribed by the then existing law, and its actual expenditure for some other purpose, would not place the village in default so as to give the county a right of action for it — if any such right they may have; there must have been a demand of the moneys for that year and a refusal to pay by the village treasurer before' any action could have been brought for them, and before the act of 1833 took effect, in order to raise the question of a vested right of action.
The question of a vested right of action for, depended upon a vested right of property in, this fund, after the act of 1883. There is no reason for the distinction between the fund already in the hands of- the village treasurer and that which might be thereafter collected from such source, so far as the operation and effect of the act of 1883 is concerned. The vested right of the county is in the fund and in that nob collected as much as in that already collected. It is only the fund paid into the village treasury that that act attempts to dispose of for general village purposes, whether already paid in or to be paid in thereafter. Such moneys are not available for any purpose until they are collected from licenses. The right of the county does not attach to them until they are collected. The act of 1883 is no more unconstitutional as violating the vested right of property of the county in this fund paid to the village treasurer than in that not collected, for it is by the law existing previously that the whole of such fund is given to the county to aid in the support of the poor. Bo we say that this act is in no sense retroactive,
It may be argued that this right is in the nature of a contract, because it formed the consideration, in part at least, for the action of the board of supervisors of the county in adopting the county system of supporting the poor, relying upon this fund to aid the county in so doing. (1) It may be answered that the law authorizing the adoption of such system also authorized the county to-assess a tax upon the property of the county to defray such expenses, without any reference to this fund; and, indeed, this fund was not then devoted by law to such purpose, and. not until 1855; and; since it has been, the same provision for taxation to support the county poor remains in force. We need to trace that law only to the Revision of 1849, and the Revision of 1858 retains the authority to collect such a tax, and also provides that this fund derived from licenses shall be paid into the county treasury, to be used in support of the poor. (2) The plaintiff county adopted the county poor system in 1817, before these moneys were, collected, and they, at least, could not have been an inducement to such action by the county board. It follows that the appropriation of this fund to the county for the support of the county poor was a
Yery many reasons suggest themselves for not treating this fund as the property of the county, or this right as a vested one.
First. The licensing of intoxicating liquors is not the exercise of the taxing power of the state to raise revenue, which must be governed by constitutional provisions of grant and prohibition, but of th q police power of the state. Knowlton v. Supervisors, 9 Wis., 410; Fire Dep't of Milwaukee v. Helfenstein, 16 Wis., 136; Carter v. Dow, id., 298; Tenney v. Lenz, id., 566; Cooley’s Con. Lim., 706. As said by Chief Justice Shaw in Comm. v. Alger, 7 Cush., 53: “All property in the commonwealth is held subject to those general regulations which are necessary to the common good and general welfare.” Judge Cooley says: “All contracts and all rights, it is declared, are subject to this power, and not only may regulations which affect them be established by the state, but all such regulations must be subject to change from time to time, as the general well-being of the community may require,” etc. Cooley’s Con. Lim., 710. Under this power the legislature imposes the necessity of obtaining a license for a given sum, to be paid into the treasury of the municipality granting the same; and, as a matter of course, the subordinate power of disposition of all such moneys must, under the same power, be vested in the legislature without constitutional restraint. This police power of the state not within constitutional provisions rests upon the maxim, sie utere tuo ut alienum non Icedas, and it must, of course, be within the range of legislative action to define the mode and manner in which every one may so use his own as not to injure others, and to control the product of such legislation. If, under such an unlimited power, it would be proper to consider expediency, then the municipality which may derive some compensation by a license fee
Second. If the county, under the existing law, had a vested right to the moneys from this source, then the legislature could not repeal the license laws, or diminish the amount of license moneys, without an infringement of such right; and this may now'be done at the pleasure of the legislature, by giving the authorities power to grant or refuse such license at pleasure. State v. Downer, 21 Wis., 274. If these license moneys of- the village, belong to the county they cannot be diminished by the village board fixing a lower rate of licenses. If they can be diminished, they may be taken away.
Third. The right of property in goods or money implies a complete dominion over them,— to have and possess, and to sell or give them away at the pleasure of the owner. This is elementary law. This fund appropriated to aid in support of the poor of the county, in the hands of the county treasurer is a mere trust in the county for such purpose. And may not the state, the creator of such a trust, change its trustee, as well as the objects of the trust, at pleasure? The county does not own the money. If it did, then it could dispose of it for any purpose in the interest of the county. But it may be said even a trustee may sue for such trust moneys. Not after the creator or principal in the trust has taken such right away by appropriating the trust moneys to another purpose, and appointing another trustee.
Fourth. Such a fund consists of public moneys belonging to the state, as the result of the exercise of the police power
Fifth. Suppose the law of 1855 had provided that this fund should bo paid into the state treasury on account of its general fund, and this same law of 1883 had authorized the retention of the fund for the general use of the towns, cities, and villages, would any one question the legislative power to do so? And yet,'there would be just as much vested right of the state, in such a case, as in the present case of the county, which is a merely subordinate political and municipal body.
Sixth. Even if this fund became the corporate property of the county, absolutely, by grant of the legislature, the legislature could take it away. “ It is an unsound and absurd proposition, that political power conferred by the legislature can become a vested right, as against the government, in any individual or body of men. It is repugnant to the genius of our institutions, and the spirit and meaning of the constitution, for by that fundamental law all political rights not then defined and taken out of the exercise of legislative discretion were intended to be left subject to its regulation. If corporations can set up a vested right against the government to the exercise of this species of power, because it has been conferred upon them by the bounty of the legislature, so may any and every officer under the government do the same.” It is competent for the legislature to transfer the control of the streets even to a body foreign to the corpora
Seventh. By the law of 1855, the state employed the agency of the county to expend this fund. The state may change such agencies at pleasure for the expenditure of any fund, or the disposition of any property, which has been derived from the state, or obtained by the exercise of the ordinary powers of government. Butler v. Pennsylvania, 10 How., 402; U. S. v. Hartwell, 6 Wall., 385; Newton v. Commissioners, 100 U. S., 548; Warner v. People, 2 Denio, 272; People v. Green, 58 N. Y., 295; Perkins v. Corbin, 45 Ala., 103; People v. Lippincott, 67 Ill., 333; Augusta v. Sweeney, 44 Ga., 463; County Commissioners v. Jones, 18 Minn., 199; State ex rel. Tesch v. Von Baumbach, 12 Wis., 310; State ex rel. Martin v. Kalb, 50 Wis., 178.
Eighth. If the position of the learned counsel of the respondent is tenable, that this fund cannot be transferred to the town, then the right of the county to it has never attached, for by the sovereign will of the legislature this fund has been taken away from the towns, cities, and villages to which it formerly belonged, and conferred upon the counties by the same right.
We will close this opinion by the citation of authorities deemed pertinent to the question.
First. The sale of intoxicating liquors is under the control of the legislature in every respect (1 Dillon on Mun. Corp., 362), and the power to license it may be transferred from one municipal body to another, in the discretion of the
Second. Municipal corporations have no private powers or rights as against the state. They may have lawfully entered into contracts with third persons, which contracts will be protected by the constitution, but beyond that they hold their powers from the state, and they can be taken away by the state at pleasure. 1 Dillon on Mun. Corp., 90.
Third. The legislature can legalize what they could have originally authorized. Single v. Supervisors, 38 Wis., 363; Knapp v. Grant, 27 Wis., 147; Kimball v. Town of Rosendale, 42 Wis., 412. There can be no doubt but that the legislature might have originally authorized the use of this fund by the village for general purposes, and, if so, then the use of the fund in this way by the village may be legalized.
Fourth. There is no constitutional inhibition against the passage of retrospective laws as such. The only question in such case is whether the legislature intended them to have a retroactive effect, and, if so, such effect is given to them by the courts. The objection in respect to such laws is not because they are retroactive, but that they disturb vested rights or impair the obligation of contracts which, were acquired or assumed under them and dependent upon them. In such cases they are invalid, not because retroactive, but on other constitutional grounds. Hasbrouck v. Milwaukee, 13 Wis., 37; Cooley’s Con. Lim., 230; People v. Morris, 13 Wend., 325; Baltimore & S. R. R. Co. v. Nesbit, 10 How., 395; Norris v. Crocker, 13 How., 429; Watson v. Mercer, 8 Pet., 88; Ex parte McCardle, 7 Wall., 506; Butler v. Palmer, 1 Hill, 324; Foster v. Essex Bank, 16 Mass., 245; Grim v. Weissenberg School District, 57 Pa. St., 432.
Many other authorities might be cited to the same effect, but this opinion is much longer than it should be already in respect to a question of however great importance, yet concerning which there can be but little doubt when the nature of such public funds is considered. The very proposition that a municipal corporation, created and existing for public purposes only, can hold its public property or funds independent of the legislature, or as a vested right, unless private contracts depend upon them, is a contradiction in itself.
This court has been greatly aided in the investigation of this question by the very able briefs of the counsel on both sides, and especially by the brief of the learned counsel of the appellant, which reflects great credit upon his ability, learning, and research.
By the Court.— The judgment of the circuit court is reversed, and the cause remanded with direction to dismiss the suit.