State ex rel. Marinette, Tomahawk & Western Railway Co. v. Common Council of Tomahawk

PiNNet, J.

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- *82 difficulty involved in its decision. Yarious acts of a similar character, for issuing bonds on the vote or petition of taxpayers, io.xdble eleetors, or freeholders, have been passed, and some of them put in use. P. & L. Laws of 1853, ch. 165, sec. 2; P. & L. Laws of 1856, ch. 132, sec. 7; Id. ch. 502, sec. 7; P. & L. Laws of 1858, ch. 162, sec. 4; Id. ch. 138, sec 6; Laws of 1861, ch. 65, sec. 2; Laws of 1865, ch. 378, sec. 2; Laws of 1866, ch. 21, sec. 1; P. & L. Laws of 1871, ch. 2S7, sec. 1; Id. ch. 263, sec. 1. In 1872 the present act was passed (Laws of 1872, ch. 182, revised by ch. 289, Laws of 1873), and subsequently carried into the revision of the statutes in 1878 (secs. 945 et seq.).

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 *83 authority is to be found in favor of the proposition that the legislatures of the states, unless restricted by some special provisions of their constitutions, may confer upon municipal bodies the right to take stock in corporations created to build railroads, and to lend their credit to such corporations; also to levy the necessary taxes on the inhabitants and on property within their limits subject to general taxation, to enable them to pay the debts thus incurred.” In all these cases the decision has turned upon the question whether taxation to pay such obligations was for a public purpose, and in this state this question was long since put at rest, as already stated. Counties, cities, and towns are public agencies, created with certain powers of local government, and with certain general powers for the better and more effectual exercise of the powers of the state government. Their existence is recognized by the constitution, but they are subject to the constitutional control of the legislature. Levy Court v. Coroner, 2 Wall. 501 ; Board of Comm'rs of Hamilton Co. v. Mighels, 7 Ohio St. 109 ; People ex rel. Wood v. Draper, 15 N. Y. 541 ; Cheaney v. Hooser, 9 B. Mon. 333 ; Gorham v. Springfield, 21 Me. 58 ; Bank of Rome v. Rome, 18 N. Y. 43 . Taxation is essentially and wholly a legislative power, and while certain powers of taxation have been conferred on these local organizations, and local public officers chosen therein, there still remains in the state a reserved power of taxation, with authority on the part of the legislature to provide for its exercise, for public purposes, in such other manner as the legislature may prescribe, not forbidden by the constitution. The power to tax is universally acknowledged to be the strongest and the most pervading of all the powers of the government. In Mills v. Charleton, 29 Wis. 400 -411, it was said by Dixon, C. J., that “ the taxing power, when acting within its legitimate sphere, and unrestrained by positive constitutional provisions, is a far-reaching and unlimited power, which knows no stopping place nor mod *84 eration of force until it has accomplished the purpose for which it exists.”

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, *85 like that of isuing bonds in aid of railroads, sustained in Sheboygan Co. v. Parker, 3 Wall. 93 .” Per Paine, J., in State ex rel. Keenan v. Milwaukee Co. 25 Wis. 351 . In Single v. Marathon Co. 38 Wis. 372 , it was said by LyoN, J., that, “ were the question a new one, I apprehend it would not be difficult to show .that the purchasing of stock by towns or counties does not pertain to the system of town and county government, and hence that special acts of the legislature conferring powers to do so áre not within the constitutional provision under consideration,” requiring a uniform system of town and county government. It is firmly established in the cases already cited that the making of a subscription to the stock of railroad companies, and' issuing bonds in payment therefor, are transactions not-within the scope of the purposes for which towns, cities, or' counties are created. ' They have no authority, it is clear, to make such contracts, in the absence of some special enabling act authorizing the same.

,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 *86 cated) is, if possible, to give effect to both. In other words, it must not be supposed that the legislature intended, by a later statute, to repeal a prior one on the same subject, unless the last statute is so broad in its terms, and so clear and explicit in its words, as, to show that it was intended to cover the whole subject, and therefore to displace the prior statute.” Frost v. Wenie, 157 U. S. 46 -58; U. S. v. Tynen, 11 Wall. 88-93; Henderson's Tobacco, 11 Wall. 652 ; Red Rock v. Henry, 106 U. S. 596 -601; King v. Cornell, 106 U. S. 395, 396 . In all such cases we. ought to seek such construction as will reconcile them together. Attorney General ex rel. Taylor Brown, 1 Wis. 525 . The rule, as thus stated, is in accordance with the general result of the authorities on the subject. Each chapter must prevail as to its own subject matter (Woodbury v. Shackleford, 19 Wis. 55 ; Schieve v. State, 17 Wis. 253 ), and special provisions relating to a particular subject control-general ones to which they are repugnant (Western Bank v. Tallman, 17 Wis. 530 ). Upon well-settled rules, considering the scope and object of the two statutes, there is no necessai-y conflict or inconsistency in their provisions, and both, therefore, may well be held' operative as to the city of Tomahawk.

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 *87 into the city charter. It applies wholly to matter untouched by the charter, and the provisions of the general law and the statute, not being inconsistent, may well subsist and be executed together; for we think that the provisions of the charter, relied on by the defendant, cannot properly be considered •as a restriction- of the power of the city to issue bonds in exchange for the stock of a railway company, under the general law. The charter provisions are that “ the common council shall have authority, by ordinances, resolutions, or by-laws, to manage and regulate the finances,” and “ to adopt all legal and requisite measures for levying taxes and assessments, general and special” (Laws of 1891, ch. 58 [City Charter], subch. V, sec. 12); that “the common council of said city shall, by proper resolution, levy all taxes to be raised in said city, itemizing the amount so as to show the amount raised for general and special purposes” (sec. 15, subch. Y); that, “ in addition to the amount of taxes for general city purposes, special taxes may be levied for the purchase of fire engines, cemetery grounds, public squares, and lands for railway purposes, including depots, switch yards, side tracks, ■and such other purposes as are of public utility; but no such tax shall be levied, unless the same shall first be recommended by the common council, and afterward submitted to a vote ■of the people, and approved by them,” etc. (subch. IY, sec. 11). This provision seems to limit and explain the one Avhich follows, and to show that it extends only to debts or liabilities of any kind, name, or nature, for general municipal purposes, namely, that “ no debt shall be contracted against the city, or certificate of indebtedness be drawn upon the city treasury, unless the same shall be authorized by a majority of all the members-elect of the common council,” etc.; “provided, that the common council shall not, in any ease, or under any pretext, or for any purpose whatever, contract debts or liabilities of any kind, name, or nature, exceeding the amounts which it is authorized by the provisions of this act to levy *88 for the owrrent year.” Subch. IX, sec. 3. By subch. XIII., sec. 19, the common council has authority “ to issue bonds , of said city for such public improvements as shall be duly authorized by said common council by ordinance,” adopted by a vote of three fourths of its members, but not to exceed five per cent, of the assessed valuation, etc.-; the issuing of .the bonds to be submitted to and approved by a vote of the people. This is an affirmative statute merely, and does not prevent the city from exchanging its bonds for stock of the railroad company, up to the prescribed limit, should a valid contract therefor be made under the general law. It is a provision to secure public city improvements. The construction and effect of these various provisions of the charter 'is to be arrived at by considering them together and in their relation to municipal purposes and the ordinary administration of the affairs of the municipality.

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 *89 was in the charter, or in the special act, authority to levy a tax to pay them. Here we think that by the fair construction of sec. 3, subch. IX, ch. 58, Laws of 1891, relied on, the limitation was only upon the common council, in contracting debts for ordinary municipal purposes. The section provides, in substance and effect: (1) That no such debt shall be contracted, unless authorized by a majority of all the members-elect of the common council, theyote to be entered by ayes and nays; and (2) the proviso to the section limits the power of the common council, so that it should not “in any case, or under anjr pretext, or for any purpose whatever, contract debts or liabilities of any kind, name, or nature, exceeding the amounts which it is authorized by the provisions of this act to levy for the current year,”— showing that the entire section is a restraint only on the common council. The provision in the charter for issuing bonds, not to exceed five per cent, of the assessed valuation, for public improvements, and in the manner stated by subch. XIII, sec. 19, shows that the first limitation was not absolute, but was to have only the force and meaning already stated. Consequently, the power of the city, under the general law, by consent of its resident taxpayers, to make the contract in question, as well as the power of the city to issue bonds for public improvements, still remained, notwithstanding the provisions of sec. 3, subch. IX. In Perrin v. New London, supra, the prohibition was unqualified, and its broad general meaning was neither explained, modified, nor controlled by other provisions, as here, in the same or other sections of the charter. The proper rule of construction in such cases is recognized in Perrin v. New London, and in Quincy v. Cooke, 107 U. S. 549 , and Quincy v. Jackson, 113 U. S. 332 -336. The application and meaning of sec. 3 of subch. IX of the city charter, for the reasons indicated, .must be restricted to debts for strictly municipal purposes.,

3. The constitutional amendment to sec. 3, art. XI, pro *90 viding that “do city . ,. . shall be allowed to become indebted in any manner, or for any purpose, to any amount, including existing indebtedness, in the aggregate exceeding five per centum on the value of the taxable property therein, to be ascertained by the last assessment for state and county taxes previous to the incurring of such indebtedness,” was •a sufficient limitation of" the amount of indebtedness that might be contracted so as to satisfy the provisions of sec. 3, art. XI; but the power and duty of the legislature remained 'to impose still other restrictions or regulations, and several •such have been imposed by the general law under consideration. R. S. secs. 942-941. Whether the power of the municipal corporation to tax, to borrow money, to contract ■debts, and lend its credit, has been sufficiently restricted, is understood to be a question within the discretion of the legislature; and its action in the premises is not re viewable in the courts. Bank of Rome v. Rome, 18 N. Y. 38 . Some •of the provisions in the city charter which have been considered are restrictions on the power of the city, in these respects, as to debts of a strictly municipal character. 4. The proposition submitted to the resident taxpayers, •and accepted by the signatures of a majority of them, the statute declares, “shall be deemed obligatory as a mutual agreement on such company and on such municipality; . . . and the common council of such municipality shall, as soon as may be, cause subscription to be made on the books of such company for such stock or bonds thereof as were proposed- to be issued, and shall provide by ordinance or resolution for issuing such bonds of the municipality, in accordance with such agreement, by the proper officers, and the deposit of the same in escrow, if it be so agreed; ” and • it had been so agreed in this case. “ But no such bonds shall be delivered, or be valid if delivered, until the road, to aid in the construction of which such bonds were voted, shall have been completed and in opei’ation by the passage *91 •of oars continuously from one terminus to such point as such •company shall have agreed to construct the same, in consideration thereof.” [R. S. sec. 948.] By the amendment to sec. 3, art. XI, of the constitution, it is provided that “ any city . . . incurring any indebtedness ” as stated, in such amount, “ shall, before doing so, provide for the collection •of a direct annual tax, sufficient to pay the interest on such debt as it falls due, and also to pay and discharge the'principal thereof within twenty years from the time of contracting the same.” The contract is one for creating an indebtedness on the part of the municipality, upon conditions precedent, namely, the completion of the road and the legal ■capacity of the city at that time to become indebted on the bonds held in escrow. The phrases “ incurring such indebtedness,” and “incurring any indebtedness as aforesaid,” manifestly refer to the time when the contract is performed by the act of the company and it is entitled to the delivery ■of the bonds; and they must receive such construction as will be consistent with the nature of the transaction and •effectuate the intention of the parties. To incur an indebtedness is to become liable for or subject to an indebtedness. The incurring of the indebtedness in the present case consists •of several steps or proceedings, under the statute, resulting in the putting of bonds in escrow which are not to be delivered, ■or be valid if delivered, until the road is completed as stipulated. This is evidently the point at which the indebtedness is legally consummate. In Keystone Lumber Co. v. ■ Bayfield, 94 Wis. 491 , it was held that no tax could be levied to pay interest on bonds held in escrow, to be delivered in aid of a railroad at its completion, but which had not been completed. Interest could not accrue on bonds until they should become legal obligations for the payment of the. sum named therein, and it must logically follow that the time of ■the accruing of the indebtedness is the time stipulated for the delivery of the bonds. We think, therefore, that by the *92 “ last assessment for state and county taxes previous to the incurring of the indebtedness ” is intended the last assessment in the municipality, as equalized by its board of review, next before the time fixed for the completion of the road and the delivery of the bonds. The record does not give this date, but as the road was to be completed by December 1, 1895, it is a fair inference from the pleadings and finding that it was completed by that time. The assessment intended by the constitutional provision- is the assessment of the town, city, or village, as equalized by its board of review, made for the purposes of general taxation, and there is no other assessment, within the meaning of this provision, “for state and county taxes.” The so-called “state assessment ” is made on the third Monday of May, before the local assessments are made, and “ from all the sources of information accessible to the board, as a means of apportioning state taxes between the several counties.” A valuation of the property in the several counties is thus arrived at. R. S. sec. 1069. At the annual meeting of the county board in November, the local assessments, having been completed in the meantime, with statistical statements, are laid before the county board, and it is then “ to determine and assess the relative value of all the taxable property in each town, city, and village,” as a means of apportioning the state and county taxes between such towns, cities, and villages; but the taxes therein are computed and extended upon the local assessments, as determined by the local assessors and boards of review. The object of the provision, by which resort is to be had to the “ last assessment for county and state taxes,” is to prevent a resort to special assessments, which the legislature might authorize for the purposes contemplated in the amendment only, and as a safeguard against possible evasion of its true intent and purpose. There is no assessment distinctively made for county 'taxes, nor any distinctively made for state taxes, in any other sense than has been stated; *93 and to hold that there are such would be to render the provision indefinite and uncertain as to which so-calléd “ assessment ” was intended. The last assessment of the town, city, or village as fixed by the local board of review, upon which county and state taxes may be extended, as well as local taxes, is clearly the assessment intended. R. S. secs. 1073, 1076, 1078.

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 tha t 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 *94 the road, for the payment of which no certain and adequate-provision had been made from the funds in the treasury or from any tax in process of immediate collection, would have to be deducted, but not the amount of state, and county taxes levied on property in the said city, nor any part of the loan from the state of Wisconsin to the board of school directors of the town of Rock Falls, in Lincoln county. The facts found did not justify the conclusion that the city is indebted in any sum on account of such loan. No statute authority has been shown for apportioning said indebtedness between said city and the board of school directors of the-town of Rock Falls, and, if any exists, no such apportionment of such indebtedness appears to have been made. In the absence of any such showing, the indebtedness for that loan is the indebtedness only of the corporation contracting-it, and the facts found do not justify the conclusion that the-city is indebted in any sum whatever on account thereof.. All other items of alleged city indebtedness were either paid before December 1, 1895, or there were sufficient funds and' resources in the city treasury to discharge the same in the-course of current administration of the financial affairs of the city.

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.