12 Wis. 93 | Wis. | 1860
By the Oowri,
This is an action of ejectment commenced in the circuit court of Milwaukee county, by town against the city, to recover possession of forty acres 0 J , J land, situate within the present limits of tlie city. Tire town r was organized by act of the legislature of the territory of Wisconsin, approved January 3d, 1838. On the 31st of January, 1846, a portion of the town was set off and incorporated into the city. On the 14th of January, 1846, the supervisors of the town, “ in trust for the sole use and benefit of said town forever,” acquired, by purchase from James Murray and wife, a title in fee simple to the land in question. The conveyance was executed to the supervisors by name, as such, and their successors in office. On the trial, the conveyance from Murray to the supervisors was produced and proved, and a regular chain of title from the government to Murray traced and established. It was admitted that the defendant, the city, was in possession. At the time the land was thus acquired by the town, it lay within its limits, and so continued until the 20th of Eebruary, 1852, when, by an act passed by the legislature of the state of Wisconsin, entitled, “ an act to consolidate and amend the act to incorporate the city of Milwaukee, and the several acts amendatory thereof,” the Jimits of the city were extended so as to bring it within them. In the original act of the territorial legislature, incorporating the city, and the subsequent act of the legislature of the state, amending and consolidating the same, and the amendments thereto, no provision whatever was made respecting the partition or division of the common property. No mention whatever was made of it Because no such provision was made by the legislature, and because towns are not authorized to hold land outside of their boundaries, the counsel for the city moved for a judgment of nonsuit in the action, which was granted. Erom this judgment the present appeal is taken.
The grounds taken by the counsel for the defendant to sustain in this court the judgment at the circuit, are the same as those there urged upon the motion for a nonsuit. In support of them, he cites the cases of Denton vs. Jackson, 2 John. Ch. R., 320; North Hempstead vs. Hempstead. Hopk.,
By section 1 of chapter 2, part 1st, of an act to provide for the government of the several towns in the territory, and for the revision of county government, approved February 18, 1841, it was enacted, that every town then established, or which-might thereafter be established by the legislative assembly of the territory, should be a body corporate, and have capacity, 1. To sue and be sued in the manner prescribed by law. 2. To hold real estate for the public uses of the inhabitants, and to convey the same, either by a vote of the inhabitants or by a deed of their committee or agents. 8. To hold personal estate for the public uses of its inhabitants, and to alienate or dispose of the same, either by vote or otherwise. 4. To h old real and personal estate, in trust for the support of schools, and for the promotion of education within the limits of the town, 5. To make such contracts as may be necessary to the exercise of its corporate or administrative powers. 6. To make such orders for the disposition, regulation or use of its corporate property, as may be deemed conducive to the interests of its inhabitants.
The third section of the same chapter provided, that all acts or proceedings by or against a town, in its corporate capacity, should be in the name of such town, but every conveyance of lands within the limits of such town, made in any manner for the use or benefit of its inhabitants, should have the same effect as if made to the town by name. These provisions being in force at the 'time the conveyance was made to the supervisors, comment upon them is unnecessary, for the purpose of showing not only that they were enabled to receive it, but that immediately upon its execution and delivery, for the uses therein specified, the title vested abso-
The second section provided, that when any such town should be altered in its limits, by the annexing of a part of its territory to another town or towns, the supervisors of the town from which said territory should be taken, and of the town or towns to which the same should be annexed, should, as soon as might be after such alteration, meet for the purpose, and possess .the same power as provided in the first section. By the third section it was enacted, that if no agreement for the disposition of such lands should be made within six months after such division or alteration, then the supervisors of each town, in which any portions of such lands should lie, should proceed to sell and convey such part of said lands as should be included within the limits of said town, as fixed by the division or alteration, and that the proceeds should be apportioned between the several towns interested therein, according to the amount of taxable property in the town so divided or altered, as the same existed immediately before such division or alteration, to be ascertained by the last assessment list of such town. This act was not in force
It will be seen at once that these are'very grave and perplexing questions. In deciding them, we have endeavored to give to them that careful consideration which their weight and importance deserve. Questions of a similar character have involved courts of great ability and learning in' much doubt and anxiety. We may, therefore, well hesitate and be not too confident in the correctness of our judgment Within the range of our reading we know of no adjudged case so like the present that we may rest upon it as a direct authority. We are not, however, without expressions of opinion from various learned courts and judges, which tend directly to sustain the conclusions to which we have arrived, whilst we know of none of a clearly opposite tendency.
The operations of government depend, to a very great extent, for their success and accomplishment, upon the existence and agency of municipal corporations, such as counties, towns, cities and villages. Without the delegation of a portion of its powers to them, its ends and objects could not be attained. The purposes for which they are instituted, namely, the cheap, expeditious, and convenient promotion and preservation of good order and good government, demand that they should at all times be subject to legislative modification and control, in order that they may be varied with the ever varying condition of the country, and circumstances, habits and wants of the people. It is the apparent connection which these questions have with the exercise of this legislative power and discretion, that renders their decision perplexing and difficult. We would not unwisely or unnecessarily embarrass its exercise or impair its usefulness. Nevertheless, if by virtue of the provisions of our own constitution, or of the constitution of the United States, the legislature is prohibited from divesting or attempting to divest, without its assent, a municipal corporation of its rights of property lawfully acquired, it is plainly our duty so to declare. We think, under the circumstances of the present
Within the principles which we have above stated, the power of the legislature to enlarge, restrict, change, modify, control and repeal all merely public corporations, is undoubted. They are established as a part of the police of the state, and to meet the object of their creation, must be subject to such changes as the exigencies of the times require. Hence the power of the legislature to enlarge the limits of the city of Milwaukee so as to embrace within them the land in question, and subject it and those who occupied it, to the jurisdiction and government of the city, cannot be questioned. All persons residing within the limits of such corporations are obliged to be its members, and to submit to the duties imposed by law. All persons holding or owning property within them are, as to it, bound to the same rule of submission.
The difficulty about the question is, to distinguish between the corporation as a civil institution or delegatioffiof merely political power, and as an ideal being endowed with the capacity to acquire and hold property for corporate or other purposes. In its political or governmental capacity, it is liable at any time to be changed, modified or destroyed by the legislature; but in its capacity of owner of property, designed for its own, or the exclusive use and benefit of its inhabitants, its vested rights of property are no more the subject of legislative interference or control, without the consent of the corporators, than those of a merely private coiqooration or person. Its rights of property, once acquired, though designed and used to aid it in the discharge of its duties as a local government, are entirely distinct and separate from its powers as a political or municipal body. It might sell its
In the cases of Fletcher vs. Peck, 6 Cranch, 87, and Pawlet vs. Clark, 9 id., 292, it was held that grants of lands by states to individuals or corporations, were contracts within the foregoing provision of the constitution, and that the grantees were thereby protected from molestation by subsequent legislation on the part of such states. If the legislature, in the present instance, without the assent of the town, had attempted, by act, directly to transfer the lands in question from it to the city, or to declare the conveyance from Murray to the supervisors void, or to assert that the title of the town was forfeited, and that the same was vested in the state, could any lawyer be found who would hesitate for one moment to give his opinion, that such legislation was void ? And could the legislature, by indirect means, accomplish that which it was impossible for it to do by direct ? Did it possess this power as an incident to that of enlarging the limits of the city, or diminishing those of the town ? We think not. The only grounds upon which such a pretense could be justified, are, that the property of the town is the property of the state, and therefore subject to its disposal, which needs no argument to refute; or that the' separation destroyed the use, which carried with it the right, and that the city could seize and occupy the land as a sort of waif, until the true owner could be let-in. We cannot admit that the. loss of the use carries with it the right. Under certain circumstances, as in the case of land purchased and used as a highway, which is not designed for, or devoted to, the exclusive use of the inhabitants of the 'town, but is common to all the people of the state, it might. In such case, the exclusive title of the town, if it may be said to have ever had
We do not, however, wish to be understood as saying that the legislature may not, upon the repeal of the charter of a municipal corporation, or a division of its territory, provide
Upon the want of, power in the legislature of a state to deprive a municipal corporation of its right of private property, Mr. Justice Story, in delivering the opinion of the court in the case of Terrell vs. Taylor, supra, says: “ In respect, also, of public corporations which exist only for public purposes, such as counties, towns, cities, &c.,the legislature may, under proper limitations, have a right to change, modify, enlarge or restrain them, securing, however, the property for the uses of those for whom, and at whose expense it was originally purchased.”
And again, the same learned judge, in delivering his opinion in the case of Dartmouth College vs. Woodward, at page 694, says: “ It may also be admitted that corporations for mere public government, such as towns, cities and counties, may, in many respects, be subject'to legislative control. But it will hardly be contended, that in respect to such corporations, the legislative power is so transcendent, that it may, at its will, take away the private property of such corporation, or change the use of its private funds, acquired under the
The most frequent instances of the application of the rule that legislatures cannot interfere with the rights of property of municipal corporations, are to be found in those cases
Tbe court observe that Chief Justice MARSHALL, in delivering tbe opinion of tbe court in that case, says: “ Strictly speaking, public corporations are such only as are founded by tbe government, for public purposes, where tbe whole interests belong to tbe government;” and that no authority exists in tbe government to1 regulate, control, or direct a cor
To the same effect, likewise, is the case of Plymouth vs. Jackson, 15 Penn. St., 44, where officers elected by the owners of land within the original township of Plymouth, to take charge of funds arising from lands appropriated for the religious, literary and charitable uses of its inhabitants, which officers had by an act of the legislature been' declared to be a body corporate by the name of the “Proprietors of Plymouth,” were held to be in esse as such corporation, notwithstanding a subsequent act of the legislature; dividing the township of Plymouth, and erecting two new townships out of it and some adjoining territory, by the names of Plymouth and Jaclcson, and authorizing the inhabitants of Jaclc-son to elect officers who were to take charge of a portion of said funds within that township, and to be a corporation by the name of the “Trustees of the township of Jackson.” See, also, the cases of Harrison vs. Bridgeton, 16 Mass., 16; Commonwealth vs. Cullen, 1 Harris, 133; Brown vs. Hummel, 6 Barr, 86; and, Poulteny vs. Wells, 1 Aik., 180, cited by the court of Vermont.
Eor the reasons which we have thus imperfectly attempted to give, and upon the authorities we have cited, we answer the first question in the negative, and give it as our- opinion that the legislature has not the power, under the provision of our constitution and that of the constitution of the United States to which we have referred, either directly or indirectly to divest a municipal corporation of Its private property, without the consent of its inhabitants lawfully obtained. Our answer to this question renders it unnecessary for us to notice the other. We will do so only so far as it is necessary, in the opinion of the court, to acquit the legislature of all intention, by the act extending the limits of the city of Milwaukee, to injure or deprive the town of any of its just rights. It is evident to our minds, from all the circumstancés, that at the time of the passage of that act the interests of the town in the land were either unknown, or not thought of, and
? Contrary to our intention at the outset, we have examined many authorities and disposed of the case, before noticing those cited and relied upon by the counsel for the city, which we will now proceed to do. And, first, we may notice a view taken by the counsel, upon which hinges, to a great extent, the application which he seeks to make of' them to this case. The land in question was purchased on the 14th day of January, 1846. The city was originally chartered on the 31st day of the same month. ' So that, in reality, the territory constituting the city was, at the time the land was acquired, a part of the town. Upon these facts he says it is to be presumed that the land was paid for with funds raised from the whole taxable property of the town. He furthermore states, that the present limits of the city embrace a much larger portion of the taxable property of the town, as it was before the city was incorporated, than that which was left in the town after such act of incorporation of the city. He, therefore, contends that it was the intention of the legislature, by the separation of 1852, to transfer the property to the city, because the city, having contributed more towards the purchase money, has a better right in equity than the town. In answer to this argument, we may say, that it does not appear from the record that the city paid any portion of the purchase money, nor does the record show what the value of the taxable property of the city, as compared with that of the town, is. We cannot indulge in the presumption that the city paid any portion of the purchase money. The purchase of the land and original incorporation of the city were very nearly contemporaneous acts, and it is quite as natural to suppose that the town paid for the land put of money afterwards raised by the inhabitants, as with funds realized in any other way. But suppose it was paid for in the manner which the counsel invites us to presume, still the inhabitants of the city, by procuring it to be incorporated as such, without any provision as to the land, and by an acquiescence of six years and upwards, must be presumed to have released their interest in it, and to have consented that it re
It follows from the views we have taken, that the judgment of the circuit court must be reversed, and a new trial awarded.