State ex rel. Town of Holland v. Lammers

113 Wis. 398 | Wis. | 1902

Lead Opinion

The following opinions were filed June 20, 1901:

BaRdeeh, J.

Two reasons are urged why the order appealed from should he reversed: (1) The territory sought to he incorporated does not contain the requisite population; (2) it does not appear that a majority of the ballots given at the meeting of the electors to determine the question of incorporation had thereon the word “Tes,” as required by sec. 865, Stats. 1898.

1. A determination of the first proposition calls for a construction of sec. 854, which reads as follows:

“Any part of any town or towns, not less than one half square mile in area and not included in any village and all lying in the same county, which shall contain a resident population of not less than three hundred persons thereon, or any part of any town or towns, not less than one square mile in area and not included in any village and lying in two adjoining counties and which shall contain a resident population of at least four hundred persons to every square mile thereof, may, upon compliance with the conditions of this chapter, become incorporated as a village . . .

The theory of relators’ counsel is that a fair construction of the section requires that there should be at least 300 persons on each-half square mile of territory incorporated, or that there must be at least 400 persons to every square mile thereof. To secure this construction, he insists that the words “and which shall contain a resident population of at least four hundred persons to every square mile thereof” constitute a modifying clause, and relate to. and modify both! disjunctive parts of tbe subject. ■ lie admits tbe general rule tbat a qualifying or limiting clause in a statute is to be referred to tbe next preceding antecedent, but be insists tbat to do so in this case would violate tbe evident purpose of tbe legislature. Black, Interpretation of Laws, 150. We are not convinced tbat tbe situation demands any sucb forced and unnatural construction. Tbe section as a whole seems plain and easy of interpretation. We will not' attempt to defend tbe legislative policy therein expressed. It may be tbat it would have been wiser to have, placed a limit upon tbe amount of territory tbat might be included in tbe proposed corporation, and to have enacted more definite limitations as to density of population therein; but we cannot say tbat tbe failure to do so violates any provision of tbe constitution, or renders the law so unreasonable as to be void. Tbe constitution gives tbe power and makes it tbe duty of tbe legislature to provide for tbe incorporation of cities and villages, and to restrict their power in certain directions (sec. 3, art. XI), but it does not attempt to prescribe any limitations as to size or density of population. Regulations in tbat regard rest with the legislative branch of tbe government, and generally tbe courts must accept its will as manifested in statutes enacted covering tbe subject. A brief discussion of this subject may be found in Smith v. Sherry, 50 Wis. 210, which bolds tbat tbe territory of sucb organizations must be contiguous. Turning now to tbe statute under consideration, we find tbat tbe legislature has said tbat any part of any town or towns lying in tbe same county, not less than one-half square mile in area, may be organized or become incorporated as a village, provided it shall contain not less than 300 persons thereon. If tbe territory lies in two adjoining counties, then it must be not less than one mile square in area, and contain a resident population of at least 400 persons to every square mile. Tbe fact tbat there are no restrictions as to' density of population as to territory -wholly contained in one connty, "beyond the required 300, does not make the act void, although it may be sufficient to impeach the legislative policy in the minds of its critics. We are unable to find any support to the theory contended for in the history of this legislation, or by reference to see. 861. That section merely requires the court to be satisfied that the population, “in number and in proportion to quantity of land therein required” "by sec. 854, is found upon the territory sought to be incorporated. He so found in this case, and thus the demands of the law have been met.

2. Counsel for the relators assumes that, because the certificate of the inspectors recites that ninety-one votes were ■cast by the electors of the district, the subsequent finding that only forty-four ballots had thereon the word “Yes” shows ■affirmatively that the majority required by sec. 865 were not in favor of incorporation. This, however, is not a fair construction of the certificate. The first statement is but a recitation of the number of voters who exercised the privilege of voting. That which follows is the finding and determination of the inspectors upon the canvass of the votes cast. They definitely find that eighty votes were cast, forty-four of which were in favor of incorporation. In absence of allegation to the contrary, we must assume that the excess of votes over eighty were rejected for some valid reason. The law makes the regulations applicable to the election of town officers and the canvass of votes at a town meeting apply to ■such an election. If any of the ballots cast were illegal, as where several are folded together, it was their duty to reject them. The presumption is that they performed their duty according to law. So, when they found and determined that there were only eighty ballots cast, we must assume that the excess were illegal and properly rejected. The finding must prevail over the recitation of fact, and the integrity of the election be sustained, unless impeached upon some legal grounds. Tbe majority of the ballots necessary under sec-865 to determine tbe question of incorporation must be construed to mean tbe majority of tbe legal ballots cast on the-proposition. Sucb was long ago established as tbe rule at tbe election of officers (State ex rel. Holden v. Tierney, 23 Wis. 430), and nothing is apparent in .the section referred to to indicate that a different rule should be applied to tbe situation under consideration. Tbe majority required is not of’ those who vote or attempt to vote, but a majority of tbe legal ballots cast, as shown by tbe canvass of tbe inspectors. Tbe record showing sucb majority to be in favor of tbe project of incorporation, it must stand until overturned or impeached in a proper way.

By the Court. — Tbe order appealed from is affirmed.

Cassoday, O. T.

Sec. 854, Stats. 1898, is copied into tbe opinion of my brother BabdbbN in this case. That section is a literal copy of sec. 7, cb. 287, Laws of 1897. It provides for tbe incorporation of two classes of villages; tbe first containing “not less than one-balf square mile in area . . . and all lying in tbe same county,” and tbe second containing “not less than one square mile in area . . . and lying in two adjoining counties.” Tbe precise question presented is whether tbe words which follow relate back and qualify tbe first class as well as tbe second class. Sucb qualifying-words are as follows:

“And which shall contain a resident population of at least four hundred persons to every square mile thereof, may, upon compliance with the conditions of this chapter, become incorporated as a village,” etc.

Unless it does so relate back to tbe first class, it is obvious that, by the terms of that section, tbe only limitation on the area of a village where all tbe territory is situated in tbe same county is that it shall not be less than half a square mile, and the only condition as to population is that it shall' contain not less than 300 resident population. In other words, if it contains 300 resident population, it may include ¡any number of square miles of territory, provided only that ¡such territory is all included in the same county. Such an absurd result should not be sanctioned unless the language of the statute imperatively requires it. If the language of the statute is fairly open to construction, then the words “a resident population of at least 400 persons to every square mile thereof” should' apply to the first class, where the territory is all in the same county, as well as to the second class, where the territory is “in two adjoining counties.” Certainly the reason for the one is just as persuasive as it is for the other. It is a cardinal rule of construction that words are to be interpreted with reference to the general scope and object of the statute. Thus, it has been held by the highest court in England:

“Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman’s unskillfulness or ignorance of law, except in the case of necessity or the absolute intractability of the language used.” Salmon v. Duncombe, 11 App. Cas. 627, followed in Manitowoc Co. v. Truman, 91 Wis. 12; Somo L. Co. v. Lincoln Co. 110 Wis. 286; State v. Shove, 96 Wis. 9.

In this last case the language of a leading case in New York (Coster v. Lorillard, 14 Wend. 297) is quoted, as follows :

“In construing statutes, the usual and proper mode is to ■ascertain the intention of the legislature from the language they have used, connectéd with the state of the law on the same subject anterior to the passage of the statute. When the courts know for what particular mischief the legislature intended to provide a remedy, it is their duty so to construe the statute as most effectually to suppress the mischief and ■advance the remedy.”

So it was held in this state thirty years ago:

“The true rule for the construction of statutes is to look to the whole and every part of the statute, and the apparent intention derived from tbe whole, to the subject-matter, to. the effects and consequences, and to the reason and spirit of the law, and thus to ascertain the true meaning of the legislature, though the meaning so ascertained may sometimes, conflict with the literal sense of the words.” Harrington v. Smith, 28 Wis. 43, followed in State ex rel. Heiden v. Ryan, 99 Wis. 128.

“Where the intent of a statute is manifest, effect should be-given to that, rather than to the letter.” Haentze v. Howe, 28 Wis. 293.

So it is said to be “a fundamental rule in the construction of statutes so to interpret their language, if possible, as to-give them some force and effect; and, where the construction is elliptical, the words which are obviously necessary to com-•píete the sense will be supplied.” Nichols v. Halliday, 27 Wis. 406.

By examining the prior legislation on the subject, and' keeping in mind the object thereby sought to be attained, the construction of the statute in question would seem to be-very plain. For many years there was no ’authority to incorporate a village upon territory of two adjoining counties.. Thus, the statutes of 1849 declared:

“Any part of any town or towns, not included within any incorporated village, and containing a resident population of' not less than three hundred persons, and if it shall include-within its boundaries a territory of more than one.square mile-in extent; containing a resident population of at the rate of not less than three hundred persons to every square mile of’ territory included within such boundaries, may be incorporated as a village under the provisions of this chapter.” Sec. 1, ch. 52, B. S. 1849.

The same section was carried forward into the Revised' Statutes of 1858 (ch. 70, sec. 1). The statute of 1872 provided that no village should be incorporated which contained' less than five -hundred resident population, and that if it should include within its boundaries a territory of more than one square mile, then it should contain “a resident population of not less than three hundred persons to every square mile of territory included within such boundaries.”’ Sec. 1, ch. 188, Laws of 1872. The revision of 1878 declared:

“Any part of any town or towns not less than one square mile in area, and not included in any village, and all lying in the same county, which shall contain a resident population of at least five hundred persons, and not less than three hundred persons to every square mile thereof, may . . . become incorporated as a village,” etc. Sec. 854, R. S. 1878.

In 1880 that section was amended so as to read:

“Any part of any town or towns not less than one square mile in area and not included in any village, and lying in the same county, or in two adjoining counties, which shall contain a resident population of at least four hundred persons, and not less than three hundred persons to every squarg mile thereof, may . . . ■ become incorporated as a. village,” etc. Sec. 1, ch. 203, Laws of 1880.

That was the first attempt to authorize the incorporation of a village “in two adjoining counties.” In the following year the legislature professed to amend that section by striking out the words “one square mile,” and inserting in place thereof the words “one-half square mile,” hut added “so that said section will read as follows” (sec. 854) :

“Any part of any town or towns not less than one-half square mile in area, and not included in any village, and all lying in the same county, which shall contain a resident population of not less than three hundred persons thereon, may •. . . become incorporated as a village,” etc. Oh. 92,' Laws of 1881.

Whether that operated to repeal the former statute on the subject, not therein re-enacted, it is unnecessary here to determine, since it is obvious that by sec. 7, ch. 287, Laws of 1897, the legislature intended to’ revive-, re-enact, and continue all the essential provisions of sec. 854, R. S. 1878, as amended by ch. 203, Laws of 1880. True it allowed a village of “not less than one-half square mile in area,” where the territory was all in the same county, instead of “one square mile,” but it revived and continued tbe authority to incorporate a village “not less than one square mile in area . . . lying in two adjoining counties.” In tbe act of 1880 there is no room for doubt but that the qualifying words, “which shall contain a resident population of at least four hundred persons, and not less than three hundred persons to every square mile thereof ” applied not only to a proposed village “in two adjoining counties,” but also to a proposed village in one county. Why should not the qualifying words found in sec. 7, ch. 287, Laws of 1897, “which shall contain a resident population of at least four hundred persons to every square mile thereof,” also apply to a proposed village wholly in one county, as well as to a proposed village “in two adjoining counties” ? The words, “may, upon compliance with the conditions of this chapter, become incorporated as a village,” which immediately follow, certainly do relate back to a proposed village wholly in one county, as well as to a proposed village in two adjoining counties. The reason for holding that such qualifying words do relate back to a proposed village ip, one county is equally potent. True, the arrangement of the words employed, and the punctuation, are not as well calculated to secure such construction as they might have been. But punctuation is not to be regarded in construing a statute. Browne v. Turner, 174 Mass. 150; In re Gyger’s Estate, 65 Pa. St. 311. In this last case it was held:

“In construing a statute, the plain, common-sense interpretation of the words should be adhered to, rather than to apply refined technical rules of grammar.”

See, also, Sedgwick, Construction of Stat. & Const. Law (2d ed.), 225.

“The correct rule of interpretation is,” said Mr. Justice Watub, speaking for the whole court, “that, if divers statutes relate to the same thing, they ought all to be taken into consideration in construing any one of them; and it is an established rule of law that all acts in pari materia are to be taken together, as if they were one law. If a thing contained in a •subsequent statute be within the reason of a former statute, it shall be taken to be within the meaning of that statute; .and, if it can be gathered from a subsequent statute in pari materia what meaning the legislature attached to the words of a former statute, they will amount to a legislative declaration of its meaning, and will govern the construction of the first statute.” U. S. v. Freeman, 3 How. 564, 565.

In another case in the same volume it is held:

“In affirmative statutes, such parts of the prior as may be incorporated into the subsequent statute, as consistent with it, must be considered in force.” Daviess v. Fairbairn, 3 How. 636.

In this state the rule seems to be well settled that where a •statute has been repealed, and then wholly or partially reenacted, such re-enacted portion of the statute will be regarded as a continuation of the old statute. Fullerton v. Spring, 3 Wis. 667; Laude v. C. & N. W. R. Co. 33 Wis. 640; Glentz v. State, 38 Wis. 549; Scheftels v. Tabert, 46 Wis. 439; Gilkey v. Cook, 60 Wis. 133; State ex rel. Rochester v. Board of Sup’rs of Racine Co. 70 Wis. 543; Cox v. North Wisconsin L. Co. 82 Wis. 141. In view of the .several provisions of the statutes cited, it seems to me to he in violation of the rules of construction quoted to hold that a village may be created with a resident population of •only 300 persons, scattered over several square miles of territory, provided it is all in one county, but, if the territory is in two adjoining counties, then it must “contain a resident population of at least four hundred persons to every square ■.mile thereof.” But there is another reason why see. 854, Stats.' 1898, should be construed as I have contended; and that is that sec. 14, ch. 287, Laws of 1897, copied into sec. 861, Btats. 1898, provides:

“If the court, after such hearing, shall be satisfied of the •correctness of any such survey or resurvey and census, that all the requirements of the statutes have been complied with, .and that such territory as is proposed to be included contained, at tbe time sucb census was first or subsequently taken, the population in number and in proportion to the quantity of land therein required in sec. 7 [sec. 85b Stats. 1595] of this act, it shall make an order declaring that such territory . . . shall be an incorporated village,” etc.

Such language is appropriate when applied to a proposed village in two adjoining counties, but is without significance-when applied to a proposed village with 'one, two, three, or more square miles of territory, all situated in the same-county, as construed by the majority of the court; but with the qualifying words, “which shall contain a resident population of at least four hundred persons to every square mile thereof,” applied to such proposed village, situated wholly in. one county, it is significant and harmonious. ■

A motion for a reheating was granted September 24, 1901,. and the cause was re-argued February 1, 1902.

For the appellants there was a brief by Timlin, Glicksman & Conway, and oral argument by W. H. Timlin. They contended, inter alia, that sec 3, art. XI, Const., taken in connection with sec. 23, art. IV, thereof, prohibits the legislature from enacting any law whereby, without any distinction based on density of population or other substantial basis: of classification, the inhabitants of any area may at will remain under the town government or come in under the-village government. C. & N. W. Ry. Co. v. Oconto, 50 Wis. 189; Enterprise v. State ex rel. Atty. Gen. 29 Fla. 128; State ex rel. Shumway v. Bennett, 29 Mich. 451; 1 Dill. Mun. Corp. (4th ed.), § 183; Fleta, Lib. 6, Cap. 51; Co. Litt. 115b, 1 Bl. Com. 115; Enfield v. Jordan, 119 U. S. 684; Russell v. Detroit Mut. F. Ins. Co. 80 Mich. 407; Borough of West Philadelphia, 5 Watts & S. 281; Cooley, Const. Lim. (5th ed.), 78 (notes 2, 3), 210, 211; State. ex rel. Childs v. Minnetonka, 57 Minn. 526; State ex rel. Childs v. Fridley Park, 61 Minn. 146; State ex rel. Hammond v. Dimond, 44 Neb. 154; State ex rel. Loy v. Mote, 48 Neb. 683; Page v. Allen, 98 Am. Dec. 272; State ex rel. La Valle v. Sauk Co. 62 Wis. 376; Rooney v. Milwaukee Co. 40 Wis. 23; State ex rel. McCurdy v. Tappan, 29 Wis. 664; State ex rel. Walsh v. Dousman, 28 Wis. 541; State ex rel. Keenan v. Milwaukee Co. 25 Wis. 339; State ex rel. Peck v. Riordan, 24 Wis. 484; State ex rel. Atty. Gen. v. Boyd, 19 Nev. 43; Singleton v. Eureka Co. 22 Nev. 911; Bloss v. Lewis, 109 Cal. 493; McClesky v. State, 4 Tex. Civ. App. 322; County Comm’rs v. Bladensburg, 51 Md. 465; State v. Eidson, 76 Tex. 302; Judd v. State, 62 S. W. Rep. 543.

Dor the respondents there was a brief by Simon Gillen, attorney, and Burr W. Jones, of counsel, and oral argument by Mr. Gillen and Mr. Jones.

The following opinions were filed February 18, 1902:

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Rehearing

BaedebN, J.

A rehearing of this action was granted, and the argument was limited to the question of the constitutionality of sec. 854, Stats, 1898. Under the construction we have given this section, “any part of any town or towns” not less than one-half square mile in area, not included in any village, lying all in the same county, and having a resident population of not less than 300 persons thereon, may become incorporated. The law, as thus construed, is attacked, because sec. 3, art. XI, of the constitution, declaring that “it shall be the duty of the legislature,, and they are hereby empowered to provide for the organization of cities and incorporated villages,” taken in connection with sec. 23, art. IY, which provides that “the legislature shall establish but one system of town and county government, which shall be as nearly uniform as possible,” prohibits the legislature from enacting a law Whereby, without any distinction based on density of population or other substantial basis of classification, the inhabitants of any area may at will remain under town government or come in under village government. The argument of this question has been both interesting and learned. In any aspect, tbe points involved are important .and troublesome. It will be observed that tbe constitution nowhere contains any limitation upon tbe power of tbe legislature to incorporate cities or villages, as to area or density of population, except sucb as may be implied from tbe use of tbe words “cities and incorporated villages.” We fully concede tbat if tbe law, properly construed, permits rural territory, possessing none of tbe attributes of villages, to ■change from town to village government at will, it cannot be sustained. Tbe law, as construed in tbe former opinion, fixes no limitation as to maximum size of territory tbat may be •incorporated, except tbat it is limited to “part of any town or towns.” It prescribes no restriction as to density of population except tbat it shall contain a resident population of not less than 300 persons. As to cities tbe limitations are •even less definite. Sec. 925 — 1, Stats. 1898, permits “any district containing a population of fifteen hundred or over and .not heretofore incorporated as a city” to take on tbe attributes of a regularly incorporated city. Tbe objection raised ■to sec. 854 applies with equal force to tbe one last mentioned. ■Such objections are not without some force, and tbe argument in their support is not without plausibility. But tbe magnitude of tbe interests' involved, and tbe importance of ■the question to tbe many cities and villages of tbe state tbat have become incorporated under these laws, require us to approach tbe question with tbe utmost caution, examine it in every possible aspect, and ponder upon it as long as deliberation and patient attention will throw any new light on tbe ■subject. Tbe rule has been many times repeated tbat courts .should not declare an act of the legislature void unless, when •considered in all its aspects, sucb invalidity appears beyond a reasonable doubt. Cooley, Const. Lim. 216. Tbe question is always one of great delicacy, often involving most important rights, and its solution as frequently far-reaching in its results. Tbe implication always exists tbat tbe legislature did not intend a violation of tlie organic law. The presumption is that the law-making body acted with integrity, and with a just desire to keep within the restrictions of the constitution. The law in question is not attacked for what it contains, hut rather for what it does not contain. Its alleged' infirmity rests upon the fact that it fails to contain certain-limitations, which, if there, would prevent the infraction of the constitutional rule as to uniformity of town government. As observed, the section authorizing the organization of cities and villages contains no mandate requiring any limitation as to size or density of population. Undoubtedly, when the constitution was formed, its makers had in mind the three political subdivisions existing in the older sections of the country — towns, cities, and villages. It is true that in popular parlance these words had a- somewhat indefinite meaning; especially so as to towns and villages. This fact is fully illustrated in the opinion of Mr. Justice Beadley in Town of Enfield v. Jordan, 119 U. S. 680. But we need not hesitate- or be misled by that fact. We may refer to the constitution itself to ascertain the scheme of government had in mind by its framers, and also seek aid from such collateral sources as are deemed helpful in that regard. It is a fact of common knowledge that very many of the members of our constitutional convention were from Hew England and Hew York. In those states the town was the political unit of territory into which the county was subdivided, and a mere inspection of the constitution demonstrates that where the word “town” is used therein it was used with reference to this idea. The word “city” undoubtedly refers to a municipal corporation of the larger class, somewhat densely populated, governed by its mayor and board of aldermen, with other officers having special functions. A “village” means an assemblage of houses less than a city, but nevertheless urban or semi-urban in its character, and having a density of population greater iban can usually be found in rural districts. A' very common •definition of á village found in tbe boobs is as follows:

“Any small assemblage of bouses, for dwelling or business, •or botb, in tbe country, whether situated upon regularly laid out streets and alleys or not.” Ill. Cent. R. Co. v. Williams, 27 Ill. 48.

■ A note to tbe case of People v. McGune (Utah), 35 L. N. .A. 396, collects tbe cases on what constitutes a village, and may be consulted with profit. See State ex rel. Ohilds v. Minnetonha, 57 Minn. 526. Assuming that tbe framers of tbe ■constitution bad these ideas in mind when that instrument was framed, we must also assume that when tbe legislature passed a law in obedience thereto for tbe creation and organi-sation of cities and villages such law must be interpreted and .applied according to those ideas, unless a contrary intent plainly appears. In other words, if tbe law contains no restrictions upon tbe size or density of population of tbe territory ■sought to be incorporated, a restriction must be implied from the name of tbe corporation and tbe purpose for which it is to "be created. When tbe law says that any district containing a population of 1,500 or over may become incorporated as a ■city, it means that any district having tbe ordinary and usual characteristics of a city may thus become incorporated. Who are empowered to create such corporations ? Tbe inhabitants ■of a territory which has tbe attributes and characteristics of urban settlements. What may they incorporate? A city, with such territory as is distinctly urban in character, with •such adj acent lands as are naturally connected with, and are reasonably appurtenant and necessary for future growth, in view of tbe surroundings and circumstances of location and prospects of future prosperity. Tbe same limitations must be held to apply to tbe incorporation of villages. Tbe exigencies of tbe situation will not permit any very fine lines to be drawn. Under tbe law in question tbe territory seeking incorporation as a village must be harmonious with tbe idea •of wbat a village actually is. It may not include large areas of rural or agricultural lands, sparsely settled, or widely distributed. It may only include tbe settled portion, — that is, the part having the distinctive characteristics of a village,— with such additions as have a natural connection with, and seem reasonably appurtenant and necessary for, future growth. Just where the line should be drawn as to cutting off additional territory may be difficult to determine. It must depend largely upon the location, surroundings, and immediate prospects of each particular village. In absence of some expression of the legislative will, the question becomes one of fact to be determined in each case as the question arises. It is insisted, however, that the boundaries of such corporations are a question to be determined by the legislature, and not by the courts. This may be true as to such municipalities as have been created by special enactment. So, also, if the legislature had provided that cities and villages proposing to incorporate under general laws should be empowered to embrace territory lying beyond their actual borders to any prescribed limit, it may be that in the clear abuse of the power it would be the duty of the court to respect the legislative will, and hold an incorporation including such additional territory valid. See Washburn v. Oshkosh, 60 Wis. 453. But, as we construe the law, no such power has been granted, and the question before us is whether or not the attempted corporation of the village of Cedar Grove is reasonably within the law and the constitution. This is a judicial, and not a'legislative, inquiry. See Ewing v. State ex rel. Pollard, 81 Tex. 172; State ex rel. Childs v. Minnetonka, 57 Minn. 526; S. C. 25 L. R. A. 755, and note. With the implied limitations we have mentioned surrounding each attempt to incorporate villages under the general law, it may be upheld as a valid enactment, and impervious to the attach upon it that it violates the •constitutional rule of uniformity of town government,

Our attention has been called to the case of People ex rel. Shumway v. Bennett, 29 Mich. 451, wbicb beld an act relating to the incorporation of villages unconstitutional for the reason that it delegated to private citizens tbe legislative function of fixing boundaries and compelling the incorporation of separate villages and intervening farming lands without any opportunity for a hearing. We have no criticism of the result of the case, but do not subscribe to the proposition that the legislature may not, within reasonable limits, delegate to the inhabitants of a proposed city or village the right to fix the boundaries to be incorporated in'the first instance. Where the legislature enacts a general law for the incorporation of such municipalities, and even fixes minimum and maximum limits, the right to determine the area to be included in a given incorporation must rest with the inhabitants perforce of the situation. We get but little assistance from decisions in other states, because the laws being construed vary, and the decisions often turn upon the exact wording of the law under consideration. In State ex rel. Childs v. Minnetonka, 57 Minn. 526, the statute permitted “any district, sections or parts of sections which have been platted into lots and blocks, also the lands adjacent thereto, . . . said territory containing a resident population of not less than 175, may become incorporated as a village.” The corporation attacked contained nearly thirty square miles. The court held that the act did not authorize the incorporation of large tracts of rural territory having no natural connection with any village and no adaptability to village purposes. This case was followed by State ex rel. Childs v. Fridley Park, 61 Minn. 146, wherein the incorporation of a village including more than fifteen square miles, much of it being agricultural lands, was held void. In St. Paul G. L. Co. v. Sandstone, 73 Minn. 225, the point that the statute was unconstitutional because legislative functions were delegated to the petitioners, who were authorized under the statute to take the initiative, was directly overruled. It was held that the statute did not confer discretion upon the petitioners arbitrarily to determine what territory should be included in the village. So here we hold that the power to incorporate territory as a village under sec. 854, Stats. 1898, is limited to such territory as possesses the characteristics mentioned. It must be a village in fact, with a reasonably compact center or nucleus of population, and not a mere agricultural community. If territory beyond the thickly settled limits is included, such territory ought reasonably to possess some natural connection with and adaptability to village purposes, and seem reasonably to be necessary for future growth and development. In absence of some specific legislation regulating the matter more closely, the courts must meet and determine in each given case the fact of whether these restrictions have been overstepped. In this case the territory sought to be incorporated covers two square miles, and has over 300 inhabitants. The former opinion shows the grounds upon which the incorporation was attacked. A demurrer to the complaint was sustained by the court below and affirmed here. The only question left open on this rehearing is the one we have discussed and decided adversely to the appellant. The order appealed from is affirmed, and the cause is remanded for further proceedings according to law. •

By the Court. — So ordered.

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Dissenting Opinion

Cassoday, C. J.

Upon the former hearing of this case I respectfully dissented from the construction given to the statute in question by my brethren, and gave my reasons at considerable length. Had the statute been construed as, in my judgment, it should have been, no question as to its validity could have arisen. Since the construction given by my brethren must prevail, I am forced to dissent from the conclusion now reached, as being repugnant to the constitutional provisions cited in the opinion of my brother Babdeen. With that construction, the parts of several towns “all lying in tbe same county,” and wbicb may comprise several square miles of territory, with only 300 inhabitants, may be incorporated into a village, while a very much less amount of adjoining-territory, containing a very much greater number of inhabitants, may remain a town. In the case at bar more than two square miles of territory, containing only 317' inhabitants, is allowed to become an incorporated village. In my judgment, the constitutional objection is not obviated by assuming or leaving it open for proof that the inhabitants may be mostly in a small part of the territory, leaving the balance with very few, if any, inhabitants. I am unwilling to subscribe to the proposition that such an extensive amount of territory, with few, if any, inhabitants, may become incorporated as a part of a village with only 300 or 317 inhabitants. Nor am I willing to subscribe to the proposition that the constitutionality of the statute turns upon the fact, to be determined by a court or jury, whether such 300 inhabitants are clustered upon a small portion of the territory, or scattered throughout its whole extent. The result of such a ruling will very likely be that a corporation may be held to be valid in one jurisdiction and void in another jurisdiction, where the facts are substantially the same. Instead of settling the question presented, it seems to me that the decision unsettles the law, and opens the door for endless litigation.