State ex rel. Voight v. Hoeflinger

Dixon, C. J.

We have no evidence that ch. 70, P. & L. Laws of 1871, was specially published, or that there was any publication until it appeared in the volume of private and local laws for that year, to which the certificate of the secretary of state is appended, bearing date September 29, 1871. Assuming the last as the true date of publication (which, according to the rule established by this court in such cases, we must do), the repealing act did not take effect until that time, and consequently not until more than a month after the trial and judgment in the court below, provided the act was a general one requiring publication before it could take effect, which will presently be considered.

It is not alleged in the answer, nor is it shown or pretended, *262 that the bridge commissioners had entered into any contract or incurred any obligation or expense under the act of 1870, before this action was commenced, or before that act was repealed.

Under these circumstances two questions arise: first, as to the nature of these acts published in the volume of private and local laws — whether they are so far public that publication must, have been made before they took effect, and that this court must take judicial notice of them; and, second, as to the effect upon this action, or upon the rights of the parties hereto, of the repeal of the first act after the trial and judgment in the court below, and before the cause was brought to a hearing in this court.

We are satisfied, upon the principles stated and authorities cited in the opinion of this court by Mr. Justice Paine, in State ex rel. Cothren v. Lean, 9 Wis., 286, 288 , that the acts are of such a public nature that judicial notice should be taken ofjhemby the courts, and that publication was required under the provision of the constitution. They were public because they regulated and disposed of a portion of the public funds of the state, previously regulated and disposed of by a general law of the state. They operated, or the first one did, as an excejotion or jiroviso to the general law, or as a repeal of it sub modo only. The building of the bridge to which a portion of the public funds were diverted from the purposes prescribed by the general law, was also a public object — a matter of public concern. The repeal of a public or general law can of necessity only be by public or general law. The repealing act was a general law, and the effect of it in this case was to restore the provisions of the previous general law. Smith v. Hoyt, 14 Wis., 252 .

The other question relates to the effect of such repeal upon the action and rights of the parties in this court. As the law now stands, there can be no question but that the relator is at this time entitled to demand and receive the money from the defendant, and that the judgment of the court below -awarding the peremptory mandamus is now right, however erroneous it *263 may Rave been at tRe time it was rendered by tRat court. No principle of law is better settled tRan tRat “wRatever is given by statute may be taken away by statute,” except vested rights acquired under it, and except also tRat tRe statute must not be in tRe nature of a contract on tRe part of tRe legislature. Some of tRe authorities go even farther, and hold that a law merely divesting antecedent vested rights of property, where there is no contract, is not inconsistent with the constitution. TRe cases illustrating this principle, and in which it has been enforced, are very numerous in the books, and we only refer to the following, some of which are strongly marked and presented questions quite analogous to that here involved. Baltimore & Susquehanna R. R. Co. v. Nesbit, 10 How., U. S., 395; Norris v. Crocker, 13 id., 429, and cases cited in brief of counsel on page 436; Watson v. Mercer, 8 Peters, 88, 110 ; Ex parte McCardle, 7 Wallace, 506; Butler v. Palmer, 1 Hill, 324 ; Foster v. The Essex Bank, 16 Mass., 245 ; Grim v. Weissenberg School District, 57 Pa. St. R., 432, 438.

There was nothing in the act of 1870 in the nature of a contract between the state and the bridge commissioners or any other party. The commissioners themselves were the creatures of the act, and the money donated or proposed to be expended in building the bridge was a mere gift, which the legislature could revoke or withdraw at any time before it was paid over to the commissioners or expended on their orders, or at all events at any time before the commissioners had entered into any contract or incurred any obligation on the faith of the act. Supposing it to have been competent for the legislature to pass the act, of which we entertain no great doubt, the money was that of the state by its legislature to give, and by the same sovereign power to withhold, whenever in the judgment of the legislature it was deemed expedient to do so. The repealing act was valid, and full effect must be given to it, which deprives the defendant of all power or authority to retain the money as against the demand of the relator.

*264 Under these circumstances we are of opinion that it is the duty of this court to affirm the judgment of the court below, without inquiry or investigation as to whether it was correct at the time it was rendered or not. It is clearly correct now, and that is enough. Were we to reverse it, it would only be to remand the cause with directions for that court to render the same judgment over again, which cannot be necessary.

By the Court.— The judgment is affirmed.