State ex rel. Hicks v. Stevens

Bardeen, J.

The decisions in the cases of State ex rel. Att’y Gen. v. Cunningham, 81 Wis. 440, and State ex rel. Lamb v. Cunningham, 83 Wis. 148, settled the question that the'legislature had no power to break up county lines and boundaries in apportioning assembly districts; that the provisions of sec. 4, art. IV, of the constitution, that assembly districts should “be bounded by county, precinct, town or ward lines,” was mandatory; and that any apportionment act in violation thereof was void. No doubt has been thrown upon the correctness of those decisions. Counsel for the defendants have argued at considerable length that under Slauson v. Racine, 13 Wis. 398, we should hold that the provisions of the constitution are only applicable when the legislature is making a general apportionment act. Without attempting to combat or overrule the exact point decided in that case, we do not think this contention can be sustained, as applied to this case. The cases are nowhere near parallel in facts, and we have no disposition to stretch the rules there laid down to weaken the fundamental law. If this act can be sustained, it must be upon other and different grounds.

Although no express power to organize new counties is given by the constitution, the existence of that power cаnnot now be questioned. It was assumed to' exist in the Slauson Case, and has been exercised by the legislature for more than fifty years as a part of its legislative power... The discussion in State ex rel. Graef v. Forest Co. 74 Wis. 610, sets at rest any possible question that can be raised as to its existence. Of course, the exercise of that power must be undei\ the restrictions and limitations otherwise contained in the constitution. Its importanсe to the state renders it necessary to go as far as can be gone, within reason, to harmonize legislative action with constitutional provisions. The rule of all courts is that ^a statute will be declared unconstitutional only when it is shown beyond reasonable doubt that it conflicts with the fundamental law. It is equally true that the courts will seek every reasonable mode of reconciliation of the statute with the constitution, and it is only when reconciliation has been found impossible that it will be declared void. The exercise of constitutional powers and the carrying of them into effect by legislative enactment not infrequently results in apparent conflict. The present case is a striking example. On the one side is the constitutional mandate that members of assembly shall be chosen from districts to be bounded by county lines. On the other is the power and apparent necessity for the creation of a new county. In the exercise of the power and in obedience to that necessity, the legislature erects a new county from an’existing assembly district, covering but a portion of its territory. It says, in effect, the detachеd territory shall remain a part of the old district for legislative purposes until a new apportionment is made. Leaving out of sight for the moment the legal effect of this latter provision, we then have an assembly district that on- its face is not-bounded by county lines. This ‍​​​‌‌​​‌‌‌​‌‌​​​​​​​​‌​​​​​​​‌​‌​​​‌‌‌‌​‌‌‌‌​‌‌​‍is said to be a plain and palpable violation of sec. 4, and renders the new county act void. The power оf the legislature to erect new counties is said to have run counter to the constitutional declaration, and the former must yield to the latter. But is this necessarily so? Is there no ground upon which this apparent hostility can be reconciled ? If there is, it is the plain duty of the court to seek it. If the act may exist without violating the spirit or essence of the constitution, the court should nоt be eager to declare it void. On the contrary, it should reconcile the hostility if it can be done in reason, giving the law the benefit of all reasonable doubts. In seeking a construction, the court may not consider or rest it upon the necessity or want of necessity for the erection of a new county. The legislature is the sole judge of that question. The court is bound to adopt such construction, if possible, as will uphold the legislative act, and at the same time preserve the constitution from infraction.

This leads ns to a careful examination and analysis of those features of the law which are said to make it unconstitutional. No objection is made that it does not provide for the complete institution and organization of a county, аnd for the assumption and full exercise of duties by its officers as county officers. The particular feature of the law considered bad, as already noted, is the making of the county a part of the second district of Chippewa county. It is virtually conceded that the legislature had the power to make the new county, if in so doing it had readjusted districts so that they did not contrаvene sec. 4. It will be observed ‘by comparison of sec. 11 of the county act with the apportionment law (ch. 164) that no change has been made in the assembly district as originally erected. Such district, so far as the voters who may take part in the election are concerned, remains precisely as it was before. The legal effect of sec. 11 is to leave the apportionment entirely unchanged. The question then arises whether it is competent for the legislature, in the exercise of its power to create new counties, to give the new county life and vigor as to all county functions, and still permit the territory of the new county to remain, for legislative purposes, a part of the original district. That this is the legal effect of sec. 11 is very clear. If it had said in express language that for purposes of electing senator, assemblyman, and congressman, the district set off should remain a part of the several districts to which it originally belonged, until another apportionment was made, the legislative intent would not have been clearer. The language used being capable of that construction, and such being the obvious purpose of the legislature, it should be adopted, and the act upheld, unless there is some grave objection against it.

We are not without precedents of helpful value in solving this question. In times past, quite a number of the counties of this state were created and attached to some adjoining county for judicial purposes. Lincoln county was made from a part of Marathon county, and the act provided that when organized it should “ constitute a separate county, except that the same shall be and remain attached to the county of Marathon for all judicial purposes under the law of this state.” It did not provide for the election of a district attorney, sheriff, or clerk of the court. The validity of this legislation was most vigorously assailed in Cathcart v. Comstock, 56 Wis. 590, and the court said:

“We apprehend there is no constitutional objection to the two counties remaining united for judicial purposes, notwithstanding the organization of the new county for •other purposes. Such acts have often been passed, and we are not aware that they have ever been questioned.”

While not directly in point on the question involved, it establishes the proposition that a county may be lawfully created with some of its attributes yet to be given it.

In Michigan an apportionment having been duly made, the division into representative districts must remain unaltered until the return of another enumeration. By an act •of the legislature the cities of Saginaw and East Saginaw were consolidated. Saginaw city and two townships comprised one district, and the city of East Saginaw the other. The act of consolidation ‍​​​‌‌​​‌‌‌​‌‌​​​​​​​​‌​​​​​​​‌​‌​​​‌‌‌‌​‌‌‌‌​‌‌​‍provided that the two representative districts should remain the same. This legislation was .attacked as being contrary to the constitution, but the court held that, when the act of consolidation brought the two cities into one municipality, the express provision that it did not change the districts saved it from the taint of unconstitutionality. Smith v. Saginaw, 81 Mich. 123, following Bay Co. v. Bullock, 51 Mich. 544. See Pistorius v. Stempel, 81 Mich. 133. The court distinguished the situation from an earlier case (People ex rel. Att'y Gen. v. Holihan, 29 Mich. 116) on the ground that no provision was made in the legislation under consideration therein preserving the integrity of the representative districts as they stood. The discussion bears with some directness here, and we quote the following from the opinion:

“Nothing in the act is contrary to public рolicy, or operates as a denial or abridgment of any right guaranteed to the citizen. On the contrary, it appears from the answer, which must be taken as true, that it was for the interest of the inhabitants of the two cities that they be united under one municipal government. The power of the legislature to consolidate two municipal corporations is not questioned. In a new and growing state, cases must often arise where it is for the interest of the people that territory lying in different representative districts should, for the purpose of local self-government, be comprised in one municipality. Yet, upon the relator’s interpretation of the constitution, this can only be accomplished, if at all, as often as an enumeration is made, and then only by the legislature, which provides for redistricting. That the framers of the fundamental law of the state intended such a result is wholly improbable. The constitutional provisions are fully satisfied when the legislative districts are preserved intact, and the territories united for municipal purposes only, preserving to the electors the necessary provisions for electing their representatives.”

Massachusetts has a somewhat similar constitutional provision. As early as 1833 the supreme court of that state, in answer to a question propounded by the legislature, said:

“ In answer to the second question, we are of opinion that it is within the constitutional power of the legislature, when incorporating a new town, consisting of territory set off from another town, or from two or more towns, to provide by law that the new town, or the inhabitants of that part of the new town which ‍​​​‌‌​​‌‌‌​‌‌​​​​​​​​‌​​​​​​​‌​‌​​​‌‌‌‌​‌‌‌‌​‌‌​‍was taken from the old town, shall be and remain a component part of the town or towns to which such territory originally belonged, for the purpose of electing the representatives to which said original towns were entitled by the preceding census of polls, until a new decennial census of polls shall be taken.” Opinion of Justices, 6 Cush. 575.

In 1873 the legislature sought to unite the cities of Boston and Charlestown. The act provided that, until legally changed, the territory comprised within the limits of the latter city, for the purpose of electing members of the legislature and Congress, should remain and be the same as then constituted. An effort to overturn it was met by the assertion that it was within the power of the legislature to change the boundary line of towns and counties, provided they did not affect the representative or senatorial districts as established, and that the act in question, having preserved the existing districts, was not unconstitutional, even though the election machinery was placed in the hands of the officers of the city of which the territory in question was made a part. Stone v. Charlestown, 114 Mass. 214. In other words, notwithstanding the constitution provided that no changes should be made in representative districts, after an apportionment had been made, until a new enumeration of inhabitants, yet the legislature might change the boundaries of towns and counties at will, provided the original election districts were preserved in their former integrity until a new enumerаtion.

In Kinne v. Syracuse, 3 Keyes, 110, the court of appeals of ISTew York .held that the general power of the legislature to change the boundaries of municipalities was subject to the injunction of the constitution that assembly districts shall not be altered, and that, if it become desirable to make such changes, the act adopted for that purpose should be so framed as to take effect at the next reorganization of assembly districts, or in some other mode consistent with the constitution. Later, when a new constitution was adopted, a provision was inserted in the apportionment section that nothing therein should prevent at any time a division of counties or towns, or the erection of new ones. The provision that districts should remain unaltered was also inсluded, and also one that no town should be divided in the formation of assembly districts. These apparently hostile provisions came up for consideration in People ex rel. Henderson v. Westchester Co. 147 N. Y. 1,—a proceeding to test the validity of an act of the legislature annexing a portion of the county of Westchester to the county of New York. The act of annexation provided that the detached territory should constitute a part of the city and county of New York “in every respect and to the same extent as if it had originally been included therein.” The difficulties of the situation are apparent. County, judicial, assembly district, and senate district lines were changed. Harmony was wrought out of the confusion by holding that for all purposes of election of senator, member of assembly, and of the state judiciary, the annexed territory should be considered as remaining. a part of the original districts, the same as if the act of annexation had not been passed, and that the words above quoted were satisfied by construing them as referring to municipal burdens and municipal rights in which, the annexed territory and its inhabitants were to share; the upshot of it all being that for municipal purposes the act of annexation was complete, while for purposes of election of state officers mentioned the original districts were to be considered unchanged.

Another case sustaining the principle that for municipal purposes territory may be considered ‍​​​‌‌​​‌‌‌​‌‌​​​​​​​​‌​​​​​​​‌​‌​​​‌‌‌‌​‌‌‌‌​‌‌​‍part of one municipality, and for political elections a part of another, is Wade v. Richmond, 18 Grat. 583. In Howard v. McDiarmid, 26 Ark. 100, the cоnstitution divided the state into senate and representative districts, and provided that no other apportionment should be made until after a later enumeration. The court held that this did not prevent the legislature from detaching territory from a county in one district and attaching it to a county in another.

Comm'rs of Granville v. Ballard, 69 N. C. 18, is meagerly reported, and the opinion is so scanty in discussion as not to bе very convincing. Under their constitution, legislative districts must remain unaltered until after another census. Territory in one senatorial district was set off and attached to a county in another, the act being silent as to a change in the districts. The act was sustained on the ground that the voters of the detached territory might still vote in the original district, although for all other purposes but voting they wеre inhabitants of the new one.

Lanning v. Carpenter, 20 N. Y. 447, is a seeming authority the other way; but a careful reading of the opinion will disclose the fact that it rests largely upon the peculiar provisions of the state constitution then in force, preventing changes in judicial districts. The act creating Schuyler county provided that the elections for choice of members of the legislature and justiсes of the supreme court should be conducted according to the existing arrangement of districts until after the next state census. It was immediately to be a separate county for all other purposes, and after the state census for all purposes whatever. But by a direct constitutional provision the former allotment of judicial districts was to remain in force and could not be changed. As we understand it, it was for this reason the act creating the new county was held void.

The cases cited sustain the proposition that, although the constitution provides that election districts shall remain unaltered, still territory may be lawfully taken from one district and'attached to another, or new municipalities may be formed, provided that for politicаl purposes the original district shall remain intact. In the Cathcart Case, 56 Wis. 590, Lincoln county had all the attributes of a fully organized county, except for judicial purposes. In this case Gates county is a fully organized county, except in the matter of the election of assemblyman. In that regard, conventions must be held, nominations made, votes ‍​​​‌‌​​‌‌‌​‌‌​​​​​​​​‌​​​​​​​‌​‌​​​‌‌‌‌​‌‌‌‌​‌‌​‍cast, and returns sent in, tha same as though it had no existenсe. There is nothing in the act of creation that contravenes public policy, hlo right guaranteed to any citizen is denied or abridged. If the position assumed by the relators is correct, then either the legislature has no power to create a new county intermediate the apportionment years, or, if it creates one, it must rearrange the apportiоnment so as not to infract the constitution. Bo doubt, one of the objects of the constitutional provision was to prevent juggling with apportionments. If new counties may be created and the apportionment rearranged and readjusted to suit legislative whims, the power-might be subject to abuse, and the real purpose of the restrictions defeated. Under the construсtion we feel compelled to adopt, the legislature may meet the growing demands of the increase of population,— may create new counties and endow them with life and vitality as to matters of local administration,— provided the original legislative districts are not disturbed. In other words, it is no evasion-of the real spirit and purpose of the constitution to permit, new counties to be created, even though the designated boundaries may cross the lines of an assembly district, provided that for the purpose of electing the assemblyman the original district is preserved. For those purposes the new county may be treated as nonexisting. The argument as to-destroying county representation would be of greater weight if the unit of- reprеsentation was limited to counties, but it is not. Two or more counties may be joined in one assembly district, so that no right of the people as a county is infringed because a new county line is drawn through an assembly district between apportionment acts. A county,, as such, has no representation in the assembly. Its chief value to its people is the right to arrange and handle loсal affairs, largely independent of the rest of the state. The right to representation in the assembly rests rather.upon .residence in an assembly district than in any given county, so that no right of the individual as a resident of a particular locality is in the least affected by the circumstance that the south boundary line of Gates county divides the Second-, district of Chippewa county.

A suggestion is thrown out at the close of appellant’s brief that the act is void, because it locates the county seat at a particular place. .It was not pressed on the oral argument, and is only barely referred to in the brief. It is enough to ■say that, even if it be considered that that portion of the act was void, it would not affect the result of the case. The •authorities of the county might still locate the county seat under the general statutes. We therefore pass the point without decision.

By the Court.— The order is affirmed.

Marshall, J., took no part.

Case Details

Case Name: State ex rel. Hicks v. Stevens

Court Name: Wisconsin Supreme Court

Date Published: Nov 29, 1901

Citation: 88 N.W. 48

Court Abbreviation: Wis.