115 Wis. 32 | Wis. | 1902
This case presents for consideration and decision, not the inherent limits of the general power of appropriation of public moneys conferred upon the legislature in the grant of the legislative power, nor the inherent limits of the general power to provide for good government of the state, for the protection, of the “lives, limbs, health, comfort, good order, morals, peace, and safety of society” (State v. Heinemann, 80 Wis. 253, 49 N. W. 818), called the “police power,” but, instead, presents the question whether, waiving discussion of the extent of such powers as a general proposition, the legislature is expressly forbidden to enact legislation such as that before us. The prohibition relied on is sec. 10,
The history of the federal and state governments during the quarter century preceding our* constitutional convention seems to throw much light on the reason for the presence of this section in our constitution, and on the meaning of the words used therein. From about 1820 there had been vigorous debate and partisan difference over the propriety of a federal policy of construction of “internal improvements” within the several states, among the concrete illustrations of
“Internal improvements shall be encouraged by the government of this state; and it shall be the-duty of the legislature as soon as may be, to make provision by law for ascertaining the proper objects of improvements, in relation to roads, canals, and navigable waters.” Const. Mich. 1835, art. XII, § 3; American Commonwealths (Mich., Cooley) p.. 280.
This behest was promptly and vehemently obeyed. Very shortly thereafter the bubble hope of direct profit to the state treasury from the governmental ownership and operation of such enterprises collapsed in the blast of one of those greatest of educators in political economy, — a financial panic; and, in the ten years intervening before our own constitutional discussions, the pendulum of popular sentiment had swung to the extreme of opposition to a policy such as Michigan had first adopted. In 1846 the first constitutional convention of Wisconsin included am article as follows (Journal of Convention, p. 219) : “This state shall encourage internal improvements by individuals; associations and corporations, but shall not carry on, or be a party in carrying on, any work of internal improvement;” the words “by individuals, associations and corporations” having been in-
There cannot be doubt that this quarter century of vehement discussion had produced a fairly definite conception of what had come to be designated “internal improvements,” which either the government Was to undertake, or was to leave to private enterprise, according as one policy or the other prevailed. We think it clear that such conception included those things which ordinarily might, in human experience, be expected to be undertaken for profit or benefit to the property interests of private promoters, as distinguished from those other things which primarily and preponderantly merely facilitate the essential functions of government. . Of course, this line of classification does not exclude possibility that the dominant characteristics of one class may be present in illustrations of the other. A toll-earning canal which gathers spreading waters within its banks may promote public health, as also may a drainage
The decided cases generally in their facts support the foregoing conception and distinction, although not always stating it accurately. Thus, in Rippe v. Becker, 56 Minn. 100, 57 N. W. 331, in holding that a statute authorizing the state railway and warehouse commission to erect and run elevators infringed the constitutional provision, the court overruled a contention that it merely facilitated a legitimate police purpose of regulating the weighing and storing of grain; also that “internal improvements” meant only channels of travel and commerce. The first contention was overruled on the ground that building an elevator could have no relation to police regulation of weighing and storing grain, — a position to which we should hesitate to assent. . A more conclusive answer to the police-power argument would obviously have been that if the work was one of internal improvement, within the constitutional meaning, it was forbidden, although it might facilitate execution of a police power and purpose. In disposing of the latter contention (that works of internal improvement included only means of travel and transportation), the court said (Mitchell, J.; 56 Minn. 117, 57 N. W. 335), that it included
“ ‘any kind of work that is deemed important enough for the state to construct,’ except, of course, as indicated in Leavenworth Co. v. Miller, 7 Kan. 479, 493, those which are used exclusively by and for the state, as a sovereign, in the performance of its governmental functions, such as a state capitol, state university, penitentiaries, reformatories, asylums, quarantine buildings, and'the like; for education, the prevention of crime, charity, and the preservation of public health are all recognized functions of state government.”
In the light of tire historical situation surrounding the framing of our constitution, and of the construction, both practical and judicial, since given, we cannot doubt that, prima facie, levees or dikes to restrain the waters of a navigable river are works of internal improvement, within the meaning of the prohibitory section invoked by the attorney general; and that, too, whether the main ptapose be.promotion of navigability, creation of water power, or reclamation of adjoining lands. In any of these there is enough of pecuniary benefit to warrant belief in the possibility, at least, that they may be undertaken by private enterprise or local
At this point the relator presents the argument that in protection of life and property, or otherwise, there may be found a public purpose in the construction of the proposed levees, whereby they are brought within the police power of the legislature. This may well be conceded arguendo, without changing the result. Important public and general interests may be, doubtless are, subserved by railroads, canals, street railways, and telegraphs; else the state’s right of -eminent domain could not be conferred in their aid. But that fact does not prevent them from being works of internal improvement, forbidden to the general state government. It • is on the ground that such works do serve a public purpose, .and are within the ordinary police powers conferred by the general vesting of legislative power, that it has been held that
By the Court. — Judgment reversed, and cause remanded with directions to dismiss the proceedings.