96 Wis. 73 | Wis. | 1897
1. The validity of subscriptions to the stock of railroad companies, and the issue of bonds in payment therefor, by towns, cities, and counties, when authorized by law, has in this state long been settled [Phillips v. Albany, 28 Wis. 357), and that it is not necessary that the question of subscribing for stock and issuing such bonds be submitted to a vote of the qualified electors of the town, city, or county. The legislature may confer directly the necessary authority,for such purposes, on the proper town, city, or county authorities to represent and act for the municipal corporation or organization. Thompson v. Lee Co. 3 Wall. 327; Railroad Co. v. Otoe Co. 16 Wall. 677. A proposition submitted on behalf of the railroad company, and properly accepted on behalf of the municipality, as by a vote of its electors, becomes a contract mutually binding [Bound v. W. C. R. Co. 45 Wis. 543; Platteville v. G. & S. W. R. Co. 43 Wis. 493); and the municipal authorities may be compelled to issue the bonds if the contract has been performed on the part of-the railway company [State ex rel. G. B. & M. R. Co. v. Jennings, 48 Wis. 549).
It is contended, however, that the legislature could not lawfully provide that the assent of the municipality may be. given by a majority of the signatures of the resident taxpayers, as specified in the statute, so as to bind it and render the contract obligatory on the city; that such, consent could-only be given by the body of electors, or through boards or officers elected by them according to law. The provision-for giving the assent of the municipality by' the signatures of a majority of the resident taxpayers has been in force fora period of nearly twenty-five years, and the question becomes extremely important, in consequence of'the great-interests depending upon it, rather than from any intrinsic-
The validity of a contract perfected in the manner stated has been frequently determined in the courts of several states, and so uniformly sustained that the question may, perhaps,, be properly said to have been put at rest by contemporaneous legislative and judicial exposition. We have not been referred to, nor are we aware of, any provision of the constitution which forbids, expressly or by implication, the legislation relied on; but the argument against it resolves itself substantially into the position that the right of local self-government and the spirit of the constitution are opposed to it. Plenary power in the legislature, for all purposes of civil government, is the rule, and prohibition to exercise a particular power is an exception; and it is for those who' rely on such exception to point it out. People ex rel. Wood v. Draper, 15 N. Y. 541. The making of such a contract and the issuing of bonds under it is regarded as the exercise of the power of taxation, for it can only be fulfilled by a resort to taxation, and its validity necessarily depends upon the power to levy the tax. Taxes are understood to be burdens or charges imposed by the legislature upon persons or property, to raise money for public purposes. Cooley, Const. Lim. *479. In Loan Asso. v. Topeka, 20 Wall. 660, it was said by Miller, L, “ that a decided preponderance of
The city, in this case, was a mere creation of the legislative power, It possessed no inherent power of taxation, and only suph as the legislature conferred on it. The validity of the contract in question must necessarily depend upon the will of the state. Hence how the consent of the city should be given, whether by city officers, resident taxpayers, or by vote of its electors, was clearly a matter wholly in the discretion of the legislature, and, when given in the- manner prescribed, a valid, contract was created, and the performance of such contract by the city became, by reason of such consent, obligatory on the city. R. S. sec. 948; Stale ex rel. G. B. & M. R. Co. v. Jennings, 48 Wis. 549. This is in accord with the decisions of many of the most respectable courts in the country. Duanesburgh v. Jenkins, 57 N. Y. 177, 189-194; Williams v. Duanesburgh, 66 N. Y. 140, 141; Bennington v. Park, 50 Vt. 195; People ex rel. Blanding v. Burr, 13 Cal. 343, 357-359; Queensbury v. Culver, 19 Wall. 84; Bernards v. Morrison, 133 U. S. 523; Scipio v. Wright, 101 U. S. 665; Van Hostrup v. Madison City, 1 Wall. 291; Woods v. Lawrence Co. 1 Black, 404, 405; Mercer Co. v. Hacket, 1 Wall. 83; Mentz v. Cook, 108 N. Y. 504, 509; Rich v. Mentz, 134 U. S. 632, 644. The vesting of the power to consent to such a contract in the resident taxpayers, so deeply interested in the enterprise and in the public welfare of the city, and who are to contribute of their means to pay the debt incurred, is clearly much more judicious and conservative than to provide that it shall be given by the qualified . electors. There is no provision in° the constitution which, either expressly or impliedly, forbids the legislature to authorize the taxpayers of the town, city, or county, to' represent it and act for it in making a contract in relation to “ something new and unusual, not constituting any part of the ordinary general powers of such local organizations,
,2. The general law under consideration was in force at the time the city charter (Laws of 1891, ch. 58) was enacted, and it undoubtedly applied to cities that might thereafter be incorporated, as well as to those in existence at the time, unless-repealed by implication. No .express -repeal is relied on. There is no repugnancy between the general law and the city charter. They respectively apply to different subjects, namely, the former to matters not within the ordinary scope and purpose of the city charter, and the latter wholly to matters of strictly municipal administration. The restrictions contained in the charter against contracting debts are, as a matter of fair implication, to be limited to the contracting of debts for strictly municipal purposes. It is well set-: tied that repeals by implication are not to be favored, and- “ where two statutes cover, in whole or in part, the same matter, and are not absolutely irreconcilable, the duty of the court (no purpose to repeal being clearly expressed or indi
The provisions of sec. 4986, R. S., to the effect that all the laws contained in the Revised Statutes “ shall apply to, and be in force in each and every city and village in the state, so far as applicable and not inconsistent with the charter of any such city or village; but when the provisions of any such charters are at varimice with the provisions of the Revised Statutes, the provisions of such charters shall prevail, unless a different intention be plainly manifested,”- — lead to the same result, namely, that, where the provisions of the general law are not inconsistent or at variance with the charter, the provisions of each will be construed to be operative as to all matters within its purview.
There is no reason, therefore, for reading the general law
The case of Perrin v. New London, 67 Wis. 416, is much, relied on by the respondent as showing the invalidity of the contract in question, but we think that the cases are distinguishable. In Perrin v. New London, 67 Wis. 417, the charter declared that said village should have no power; except when specially authorized thereunto by law, to borrow money, etc., “ nor shall said village incur any debt or liability, in any year, greater than the amount of tax allowed by this act to be raised in said village in the year in which such debt or liability was incurred.” In 1872, when the bonds there in suit were issued, the charter conferred no authority upon the village, or its trustees, to raise money by taxation to pay such bonds in that or any other year, and the special act of 1867 (oh. 93, P. & L. Laws of 1867), under which the bonds in suit were issued, contained no provision for levying a tax to pay the principal of the bonds, but only annual interest thereon. The limitation in that case was on the power of the corporate body, and the court proceeded upon the theory that the bonds would be void unless there
3. The constitutional amendment to sec. 3, art. XI, pro
5. In order to ascertain the amount of the indebtedness of the city existing at the time the railroad was completed and the bonds were required to have been delivered, so as to determine whether, after deducting such indebtedness from five per centum on the assessment of 1895, as equalized by the city board of review,— that being the limit of indebtedness the city has power to contract, under the amendment to sec. 3, art. XI, of the constitution,— the city had power to issue the bonds in question, not only municipal bonds, but all forms of city indebtedness, must be deducted, except warrants for money actually in the treasury and contracts for ordinary expenses within the current revenue. In Earles v. Wells, 94 Wis. 285, where this question was fully considered and discussed, it was held that so long as the current expenses of the municipality are kept within the limits of the moneys and assets actually in the treasury and the current revenues collected or in process of immediate collection,, the municipality may be fairly regarded as doing business on a cash basis, and not upon credit, even though there may be for a short time some unpaid liabilities. But the moment an indebtedness is voluntarily created ‘ in any manner or for any. purpose,’ with no money nor assets in the treasury, nor current revenues collected or in process of immediate collection, for the payment of the same, that moment such debt must be considered in determining whether such municipality has or has not exceeded the constitutional limit of indebtedness.” It follows, therefore, that the amount of water bonds outstanding at the time of the completion of
The judgment of the circuit court dismissing the proceedings herein upon the ground that the contract made by the relator with the city for the issue of bonds and subscription to its capital stock was null and Void, is erroneous and must, be reversed.
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.