121 Wis. 44 | Wis. | 1904
We are asked to review the intermediate -order striking out the stipulation entered into between appellant’s counsel and the city attorney and determining that respondent was entitled to an attorney of its own choosing. 'The effect of the stipulation, if carried out, would have been to submit the question of appellant’s right to a pension to the decision of the court on the facts stated in the petition. The city attorney subsequently filed a demurrer which raised thé same question. The motion of the attornéy employed by respondent to quash the writ raised a like question. The decision of such motion in favor of respondent is the foundation of the judgment complained of. Whether the case was submitted to the court for decision according to the stipulation or the demurrer, or on the motion, the result would necessarily have been the same. Therefore, we cannot perceive how the order sought to be reviewed, striking out the stipula
It is suggested by appellant’s counsel that her right to the pension under ch. 287, Laws of 1891, became fixed by. the circumstance that her husband died in the service of the city as a policeman after such law became operative, leaving a widow. Sec. 8 of such law provides that:
“If any member of such fire or police department shall, while in the performance of his duty, be killed, or die as the result of an injury received in the line of his duty or of any disease contracted by reason of his occupation, or if any member of spell fire or police department shall while, in said service, die from any cause, . . . and shall leave a widow . . . surviving, said board of trastees shall direct the payment from said pension fund” of $30 per month to such widow while she remains unmarried.
There are some other conditions mentioned in the section, which do not need attention.
The idea advanced by counsel is that, by the continuance' of appellant’s husband in the service of the city as a policeman after the act of 1891 took effect, contractual relations-with reference to the pension fund were created between him and the city or the pension hoard which could not be disturbed by any legislative enactment without violating his-constitutional rights. We do not understand that there are-any such relations between a municipality and its officers. In the absence of some constitutional limitation upon the right of the legislature to change such relations — and there is none-in this state — they are wholly under legislative control. The-compensation of municipal officers or their terms of office can be changed, or the office can be abolished altogether. The-
“It is well settled in the United States that an office is not the property of the office holder, but is a public trust or agency; that it is not held by contract or grant; that the officer has no vested right therein; and that, subject to constitutional restrictions, the office may be vacated or abolished, the duties thereof changed, and the term and compensation increased or diminished.”
The same doctrine was declared and applied early in this state in State v. Douglas, 26 Wis. 428.
The suggestion is made that, independently of the rule above stated, a right accrued to the relator by reason of her husband’s having contributed out of his salary $2 per month' to the pension fund. As suggested by respondent’s counsel, the feature of the law in form requiring police officers to contribute to the pension fund $2 per month out of their salaries, found in ch. 265, Laws of 1899, is not found in the law of 1891, upon which appellant relies; but if it were otherwise, it does not seem that .such feature would have the effect claimed therefor. While the law of 1899 and similar laws, in form, require the officers to pay a certain sum per month out of their salaries into the pension fund, they in fact are not required to do so. The contribution to the fund is made by the public out of public money. It is not first segregated from the public funds so as to become private property and then turned over to the control of the pension board, but is set aside from one public fund and turned over to another, regardless of the mere words of the law. The effect thereof is to scale down the salaries of the officers in form by so much as measures the contribution by each to the pension fund, but to really fix such salaries at the amount actually paid and to require the payment by the city into the pension fund of the amounts, per month, mentioned as being taken from the
“Though called part of the officer’s compensation, he never received it or controlled it, nor could he prevent its appropriation to the fund in question. He had no such power of disposition over it as always accompanies ownership of property.
“Being a fund raised in that way, it was entirely at the disposal of the government, until, by the happening of one of the events stated, . . . the right to the specific sum promised became vested in the officer or his representative. It requires no argument or citation of authorities to show, that in making a disposition of a fund of that character, previous to the happening of one of the events mentioned, the state impaired no absolute right of property in the police officer. The direction of the state, that the fund should be one for the benefit of the police officer or his representative, under certain conditions, was subject to change or revoca*51 tion at any time, at tbe will of tbe legislature. . . . Until tbe particular event should happen upon which the money or a part of it was to be paid, there was no vested right in the officer to such payment. His interest in the fund was, until then, a mere expectancy created by the law, and liable to be revoked or destroyed by the same authority. The law of April 1, 1878, having been repealed before the death of the intestate, his expectancy became impossible of realization.”
That seems to be decisive of every question raised upon this appeal necessary to be considered, except that of whether the law of 1891 was so modified or repealed by ch. 265, Laws •of 1899, that circumstances did not exist as regards appellant at the time of the death of her husband, answering to the calls of the later law.
There is hardly room for serious controversy but that •ch. 265, Laws of 1899, was intended to cover the same subject as ch. 287, Laws of 1891, and ch. 879, Laws of 1895. Each provides for the creation of a pension fund for the benefit of policemen and their families, and the accumulation thereof to a considerable degree, at least, from the same source, to be disbursed, however, under different conditions. Two such funds derived largely from the same source for the same purpose would be too absurd to justify holding that •such a system exists by legislative creation, if the law on the subject will admit of a construction that will avoid it.
The law of 1891 under which appellant claims, applied to nil cities whose population exceeded 100,000 having a paid fire department. It was made, by express provision, amenda-tory of the charters of all cities containing a population exceeding 150,000. Ch. 312, Laws of 1893, made all cities containing a population of 150,000 or over cities of the first •class. The law of 1895 was made applicable to any city having a population of 150,000 or over and a paid fire department. It expressly superseded the law of 1891 in cities of the first class, and provided for certain proceedings by the
We think the position of counsel for respondent, that the acts referred to were not intended to amend the city charter of Milwaukee, has no support. True, the city of Milwaukee was not referred to by name, but cities of the first class were, and Milwaukee was the only such city in the state. Therefore, in letter and spirit it must be said that the manifest legislative intention was to amend such city’s charter.
Appellant’s counsel confidently rely on this court’s holding, as above indicated, respecting whether the purpose of the law of 1899 was to amend the city charter of Milwaukee, and insist that if such be its character it is void under the constitutional prohibition respecting the creation of cities or the amendment of city charters by special legislation.
“The power [of classification] existed at the time of the adoption of the constitution; it had been exercised by tbe legislature from the foundation of tbe government; it was incident to legislation, and its exercise was necessary to the promotion of tbe public welfare. Tbe true question is, not whether classification is authorized by the terms of tbe constitution, but whether it is expressly prohibited.”
That doctrine has received approval here on numerous occasions. Johnson v. Milwaukee, 88 Wis. 383, 60 N. W. 270; Boyd v. Milwaukee, 92 Wis. 456, 66 N. W. 603; Burnham v. Milwaukee, 98 Wis. 128, 73 N. W. 1018; Adams v. Beloit, 105 Wis. 363, 81 N. W. 869; Wagner v. Milwaukee Co. 112 Wis. 601, 88 N. W. 577; Battles v. Doll, 113 Wis. 357, 89 N. W. 187. We have no constitutional prohibition against the legislative classification of cities for the purposes of general legislation, therefore it has been uniformly held that power in that regard exists notwithstanding special legislation creating cities or amending city charters is not permitted. General legislation for cities is legislation for all or for a legitimate class thereof.
“It is not necessary, in order to. make a law affecting municipal corporations a general law, that it should affect every city in the state. Cities may be classified, and, if the classification be proper, laws may be passed affecting only a single class, and such laws will be general laws, and uniform in their operation throughout the state, within the meaning of the constitution.” Adams v. Beloit, supra.
“The true practical limitation of the legislative power to classify is that the classification shall be based upon some apparent natural reason, — some reason suggested by necessity, by such a difference in the situation and circumstances of the subjects placed in different classes as suggests the necessity or propriety of different legislation with respect to them.”
With this additional rule we still do not have a certain test by which the constitutionality of a legislative class may be determined. The particular facts of each particular situation must necessarily be considered, it being kept in mind that the necessity and propriety for classification are primarily legislative questions, the judgment of the legislature not to be disturbed unless it shall clearly appear that the limits of its constitutional authority have been overstepped.
It being established that there may be a constitutional class of cities for tbe purposes of general legislation, tbe fact that at tbe time of a particular enactment applicable thereto there is only one member thereof does not militate against ¡the validity of tbe legislation. Adams v. Beloit, supra. A class, when formed, must have regard for the peculiar needs of such cities as presently do, or in tbe future may, satisfy tbe calls thereof. There may be no such city at tbe time of tbe creation of tbe class. Subsequently there may be many. Members may grow into tbe class and may drop out. Tbe number thereof at any time does not cut any figure as regards the principles involved. The creation of a class on legitimate lines for tbe purposes of general legislation is one thing; tbe creation of a class for tbe purposes of a special enactment, as in Burnham v. Milwaukee, quite another thing. Again, tbe creation of a class of cities on legitimate lines for legitimate purposes is one thing, and tbe subdivision of such'
Counsel cite many authorities to our attention to support their position, but none condemning the classification of cities for the purposes of general legislation primarily according to population, each class being distinct from all others so as to reasonably suggest a necessity for different legislative treatment, and condemning legislation for one of the classes so established, though in the particular matter other classes might well be dealt with in the same way. Hibbard v. State ex rel. Ward, 65 Ohio St. 574, 64 N. E. 109, to which counsel refer with confidence, deals with an enactment that was not designed ever to apply to but one city. The law was condemned for that reason, in conformity to the holding of this court in Burnham v. Milwaukee.
Counsel contend that the act of 1899 subdivided the cities of the first class into those having a paid police department and those not having such a department, thereby making a class not based on population, and for a particular species of legislation, hence that it violates the first and second of the rules heretofore stated, and the doctrine of Verges v. Milwaukee Co. 116 Wis. 191, 93 N. W. 44, suggesting that generally the primary distinction in classifying cities is difference in population. The primary distinction in the law under discussion is in population; so if that were essential, it is satisfied. The next distinction is’ in regard to the paid police department feature. That would seem to be such a
Further, it is said that the law does not apply even to all cities of the first class having a paid police department; that it is limited to all such having a population exceeding 150,000. Counsel refer to the language of sec. 17. It seems quite clear that the legislature, by the use of the term “population exceeding 150,000,” intended to refer to cities of the first class created by ch. 312, Laws of 1893, and incorporated into sec. 925 — 1, Stats. 1898, but inadvertently used the term “exceeding 150,000” instead of “150,000 or over.” Sec. 17, as before indicated, doubtless refers to the same cities as sec. 1. By reading sec. 1 in connection with sec. 17, it seems quite clear that both refer to cities of the first class as they existed at the time of the enactment, and that it did not malee a subclass of cities of the first class, as regards population.
Counsel suggests for our consideration the question of whether, since the constitution prohibits certain species of special legislation, including that for the enactment or amendment of city charters, and commands the enactment of general laws, enabling the prohibited matters to be done without direct legislative action, such method is not exclusive. We think that must be answered in the negative. The legislature, within the limitations of the federal constitution, is supreme except as otherwise provided in the state constitution. That prohibits certain special legislation, the prohibition being accompanied with a requirement for an indirect general method of doing the things prohibited; but power to legislate generally, directly effecting such matters, is the same as before.
The foregoing seems to render other points discussed in the briefs of counsel unimportant. In our judgment the law of 1899, as regards appellant, refers to the law of 1891, is
The point is made that the court erred in rendering a judgment for costs against appellant. The question of costs in mandamus actions was left in some doubt in State ex rel. School Dist. v. Wolfrom, 25 Wis. 468; State ex rel. G. B. & M. R. Co. v. Jennings, 56 Wis. 113, 14 N. W. 28, and State ex rel. Buchanan v. Kellogg, 95 Wis. 672, 70 N. W. 300. In the first case cited the court said:
“Costs for the proper fees and charges of officers and all necessary disbursemerfts follow judgment, as a matter of course, in proceedings of this nature. They are taxable under the general provisions of statute, though, perhaps, not attorney’s fees allowed to parties in civil actions.”
Why costs of one character were allowable and not those of another was not suggested. Costs do not follow a judgment as a matter of course in proceedings of this nature, or any other, in the absence of some statute on the question. As has often been said, the right to reasonable costs in an action or other judicial proceeding is a creature of the statute, it not being understood that English statutes on the subject were a part of the common law adopted in this country. Wis. Cent. R. Co. v. Kneale, 79 Wis. 89, 48 N. W. 248; In re Donges’s Estate, 103 Wis. 497, 79 N. W. 786. The court said, in State ex rel. G. B. & M. R. Co. v. Jennings and State ex rel. Buchanan v. Kellogg, supra:
“A proceeding by mandamus is essentially a suit, and when issue is joined by the return it becomes a civil action, within the meaning of the statutes, and as to the form and sufficiency of the. several pleadings must be governed by the same rules which prevail in other civil actions.”
The term “action” in the costs statutes, secs. 2918 and 2920, was evidently intended to be understood in the same sense as “action” in sec. 2595 as regards civil matters. The purpose thereof was to give to the prevailing party in any civil action costs, except as otherwise expressly provided. There is no provision otherwise as to actions of this kind. It follows that the court rightly granted costs to respondent as in ordinary actions, and that the judgment should be in all respects affirmed.
By the Court. — The judgment is affirmed.