State ex rel. Haswell v. Cram

16 Wis. 343 | Wis. | 1863

By the Court,

Dixon, C. J.

By act approved July 6, 1853, (Laws 1853, chap. 100,) the legislature organized the county of Buffalo, with an area of less than nine hundred square miles. At the next session, January 24th, 1854, (Laws 1854, chap. 1.) several townships were set o f from Chippewa, an adjoining county of more than nine hundred square miles in extent, and attached to the county of Buffalo. After such annexation, the area of Buffalo exceeded nine hundred square miles. At the same session (Laws 1854, chap. 2,) the county of Trempeleau was created fronUpart of the county of Buffalo, thus enlarged, and adjacent counties, again leaving Buffalo with an area of less than nine hundred square miles, but with different boundaries and of different territory from that out of which it was originally organized. Both the latter acts were pending before the legislature at the same time, and approved, the last three days after the first, namely on the 24th day of January, 1854. Neither act was submitted to a vote off the people of Buffalo county. The question presented involves the validity of these acts, whether it was competent for the legislature thus to sever the county of Buffalo, as originally constituted, and to cause a part of it to be formed into the county of Trempeleau, without submitting the question to a vote of the people. The constitution, sec. 7, art. 13, declares, “ no county with an area of nine hundred square miles, or less, shall be divided, or have any part stricken therefrom, without submitting the question to a vote of the people of the county, nor unless a majority of all legal voters' of the county, voting on the question, shall vote for the same.” The argument is, that as the legislature before attaching the townships from Chippewa, had no power to divide the county of Buffalo without submitting the question to a vote of the people, they had none after, because they cannot make that lawful by two acts, which would have been void if done by one, that they cannot walk round the barriers set up by the constitution in the way of their power. The principle is not denied, but its applicability is. There is no doubt. of the general truth, that in questions of this nature, the means are not to be regarded, but only the end, and that the restraints of the fundamental law cannot be avoided by indirection. But I think the present case constitutes an exception ; that the legislature may, so to speak, confer upon themselves the power to divide a county where' if they had attempted it directly, the act would have been void. And I think it no violation of the constitution, certainly not of the letter, and I do not, of the spirit. At all events I doubt whether their ac-action could in any case be the subject of judicial revision. It seems to me when properly understood,, that the provision under consideration was never intended to apply to those newly" settled portions of the state where new' counties were to be erected and where it was. obvious that in the progress of settlement and the growth of population and business, changes in the boundaries of counties already established would sometimes be absolutely required; that it was not the design in any case of adjoining counties either of which exceeded the - constitutional limits, to restrict the legislative power so that terri-. tory might not he taken from one and added to another, making either divisible at the pleasure of the legislature. In the progress of division, and in the older and more densely populated districts it was doubtless supposed, as the fact is, that for convenience in the transaction of business, few counties would, remain with an area exceeding; that named in the constitution, and where they did not and there was no adjoining territory which the legislature might constitutionally annex, then the power to divide without submitting the question to a vote of the people should cease.

This view, it seems to me, is the only one that can be maintained consistently with the acknowledged power of the legislature to enlarge counties, whenever the adjoining territory is not within the restriction of the constitution. This power is not denied. It is conceded the act of January 24th of itself was open to no constitutional objection and if the legislature had stopped there, the townships annexed from- Chippewa became lawfully a part of the county of Buffalo. If this be so, and there can be no doubt of it, how, I ask, could the subsequent enactment of another law, not inconsistent or conflicting, arrest its constitutional operation and destroy its validity? If effectual, it became so from the moment of its passage and publication, and for three days at least, intervening before the passage of the lást act, the added townships constituted part of Buffalo county for the contingency upon which the court is asked to declare it void, had' not happened. The last act was not passed and might never be. If the legislature had waited three years instead of three days before dividing Buffalo or creating the new county of Chippewa, or if they had postponed it until the next session, it is not probable, upon the theory advanced by the counsel, that any question would ever have been made as to either act. But no w it is insisted, that neither can stand, and that Buffalo county remains aá originally organized. The turning point in the minds of counsel seems to be, that both acts received the sanction of the same legislative body, and taken together evince an intention of the part of the individual members favoring their passage, to evade the restriction of the constitution. In other words, the validity of the acts is made to depend on the motives of the framers. If these Were proper, if the voting majority had no sinister purpose of evasion, the acts must stand, but otherwise they must fall — a principle of adjudication which has been often repudiated and never once sustained.

Now does the doctrine, that statutes in pari materia are to be taken together and construed as one act, affect the question. It is a rule of construction resorted to in cases of doubt and is never applicable where the statute is plain and unambiguous. Sedgwick on Statutory Law, 281, 247. The acts in question are of the latter character. No doubt arises upon the face of either, and it would seem to be a perversion of the rule to apply it for the purpose of defeating the will of the legislature so plainly expressed. Besides, if I am correct in the view I have taken of the constitution, the motives which led to the passage of the acts are wholly immaterial.

Having the power arbitrarily to enlarge the county, the legislature might do so for the express purpose of enabling them to divide it, and when it was enlarged their power to divide it became equally insuperable and supreme. The true inquiry is, had the legislature power at the time of its passage to enact the law in question? If they had, it is valid. Being a question of mere power, the court can look neither forward nor backward, nor canvass motives for cause of impeachment.

Demurrer overruled.