171 Wis. 299 | Wis. | 1920
Ch. 516, Laws 1919, is entitled “An act to detach a portion of the town of Richmond and add such detached portion to the city of Shawano, all in Shawano county.”
By sec. 1 of that chapter it was provided that all that portion of section 36 in the said town of Richmond not then included within the corporate limits of the city of Shawano, “is hereby detached from the said town of Richmond and attached to and made a part of the said city of Shawano.”
By sec. 2 provision was made for apportioning to the city of Shawano the assets and liabilities of the town of Richmond.
Sec. 3 provided for a meeting of the supervisors of the town of Richmond and of the city council of the city of Shazvano for the purpose of making a settlement between the city and town according to thé provisions of the act.
The supervisors of the town refusing to meet with the common council, these proceedings were instituted.
The trial court sustained the contention of'the respondents, supervisors of the town/that said ch. 516 was void in that it was a special act and in effect amended the charter of said city and was within the inhibition of sec. 31, art. IV, Const., which, so far as material here, now provides as follows: “The legislature is prohibited from enacting any special or private law in the following cases: . . . 9th. For incorporating any city, town or village, or to amend the charter thereof.”
The appellant city contends:
(1) That not being under a special charter, but having come under the provisions of the general charter, being ch. 45i, secs. 925 — 1 to 925 — 169, Stats., it receives its power
(2) That in any event the act in question, merely providing -for the annexation of territory, is not in the nature of an amendment to any charter, if there be one, of the city of Shawano, and is therefore not, within the prohibition of the constitution above quoted.
(3) And lastly, that the act in question is a proper exercise of legislative power as an expression of the judgment of the legislature that the objects of the corporate powers of the appellant city cannot be attained under the general laws providing for the annexation of territory in the manner prescribed in ch. 451, Stats., and that therefore it is valid under a reasonable construction of the legislative powers and duties found in the three following provisions of the constitution, viz.:
Art. IV, sec. 32. “The legislature shall provide general laws for the transaction of any business that may be prohibited by section thirty-one of this article, and all such laws shall be uniform in their operation throughout the state.!’
Art. XI, sec. 1. “Corporations without banking powers or privileges may be formed under general laws, but shall not.be created by special act, except for municipal purposes, and in cases where, in the judgment of the legislature, the objects of the corporation cannot be attained under general laws. All general laws or special acts enacted under the provisions of this section may be altered or repealed by the legislature at any time after their passageand
Art. XI, sec. 3, which, so far as> material here, is as follows: “It shall be the duty of the legislature, and they are hereby empowered, to provide for the organization of cities and incorporated villages, . . .”
On the first point it is clear that the city of Shawano is in existence under the general charter law, ch. 451, Stats., as a municipal corporation, functioning as such under the powers
We can see no valid reason for not applying the same rule to a municipality obtaining its charter under a general law that is applicable to a private corporation obtaining a charter under a general incorporation law, and such rule is well recognized as to private corporations. Lindsey & Phelps Co. v. Mullen, 176 U. S. 126, 136, 20 Sup. Ct. 325; Att’y Gen. v. Perkins, 73 Mich. 303, 41 N. W. 426; State ex rel. Ross v. Anderson, 31 Ind. App. 34, 67 N. E. 207; Baker v. Smith, 41 R. I. 17, 26, 102 Atl. 721; 1 Words & Phrases (2d series) 651.
The city of Shawano therefore is existing and operating under a “charter” as the term is used in sub. 9, sec. 31, art. IV, Const., supra.
On the second point, as to whether or not the description of the territory included within the corporate limits of such a chartered corporation as is the appellant is a part of its charter, we have no difficulty in holding that the description of the territory included within its corporate limits is as essential a part of its charter as any other provision therein contained.
While it is true that under sec. 925 — 5, Stats., as now amended by ch. 183, Laws 1917, the patent which the governor must issue under the great seal constituting a city a body corporate need no longer contain a description defining the boundaries of the city, as was required to be inserted therein prior to said last mentioned amendment, yet a particular description of such boundaries is still, as be.fore such amendment, required to be filed in the office of the
Appellant further contends that the ’ city, being incorporated under the general 'Charter law and receiving its corporate powers by virtue of such general law, cannot be differentiated in the transaction here involved from such a corporate entity ás a town or county, each of which is declared by statute to be a body corporate by secs. 773 and 650, Stats., respectively; and this court having held in the cases of State ex rel. Ervin v. County Board, 163 Wis. 577, 582, 158 N. W. 358; Cathcart v. Comstock, 56 Wis. 590, 608, 14 N. W. 833; and State ex rel. Graef v. Forest Co. 74 Wis. 610, 615, 43 N. W. 551, that the changing of boundaries of such bodies corporate,'viz. towns and counties, and annexing or detaching territory thereto and therefrom, can be lawfully done by act of the legislature, the same rule should apply to a municipal corporation such as the city here.
That’ there is a substantial distinction between local organizations for governmental purposes, such as towns and counties, which may be and almost universally are created by action of the legislature with or without the consent or application of the residents thereof and which have been uniformly designated as qMiwi-municipal corporations, and municipal corporations proper, such as cities and villages, which become such corporate entities ,by virtue o;f the expressed wish and initial action of and on the part of the inhabitants of the included territory, was recognized at an
This substantial distinction, therefore, makes rulings with reference to the gwoN-municipal corporations which, have no charter as such from the state inapplicable to the situation here concerning a municipal corporation proper which has such charter as is referred to in Const., art. IY, sec. 31, sub. 9, supra.
The boundaries of the city of Shawano, therefore, being a part of its charter, any change therein by increase or diminution thereof is necessarily a change and therefore an amendment to its charter and within the constitutional prohibition. Smith v. Sherry, 50 Wis. 210, 215, 6 N. W. 561; State ex rel. Att’y Gen. v. Cincinnati, 20 Ohio St. 18; Copeland v. St. Joseph, 126 Mo. 417, 426, 29 S. W. 281; Conklin v. Hutchinson, 65 Kan. 582, 70 Pac. 587; Extension of Boundaries of City of Denver, 18 Colo. 288, 32 Pac. 615; Little Rock v. Parish, 36 Ark. 166; Levitt v. Wilson, 72 Kan. 160, 83 Pac. 397.
On the third and last point, which in effect is that the duty is mandatory upon the legislature to provide for the incorporation of cities and villages by general law: that ‘when the objects of such corporate powers cannot be attained under general laws, namely, such' provisions as are found in secs. 925 — 17 to 925 — 21a in ch. 45f of the general charter law for the annexation and detaching of territory to and from cities under the general charter law, then if the legislature determines in its judgment that the particular annexation here involved could not, for any reason, be carried out under those general provisions of the charter law,
We can, however, recognize no sufficient weight to such argument as will support the validity of the enactment of ch. 183, Laws 1917, in face of the plain prohibitory provision in Const., art. IV, sec. 31, sub. 9.
It follows therefrom that the circuit court was right in holding said act unconstitutional and void, and the judgment should therefore be affirmed.
By the Court. — Judgment affirmed.
