State ex rel. Boycott v. Mayor of La Crosse

Winslow, J. The facts in the present case are similar to those presented in the case of Adams v. Beloit, 105 Wis. 363, with the important difference that in the Adams Case the ordinance of adoption included the whole of subch. XVIII, set forth in the statement of facts, except sec. 174, whereas the ordinance attacked in the present case omits secs. 172, 173, 174, 176, 199, and 200. The conclusions reached in the Adams Case were, in substance, that the statutory provision authorizing a city acting under a special charter to adopt a part of the general charter law is valid, at least as applied to the adoption of an integral part of the law, complete in itself; that this is option legislation, uniform in its operation, and is not special legislation, although the option is confined to a class. The discussion of the general subject in that case was the result of the fullest consideration which we were able to give it, assisted by very complete and able arguments. We have seen no reason to re-examine the positions there laid down, nor were we asked to do so in the present case. Counsel for the appellant in the present case accept the result reached in the Adams Case, but contend that the attempt has been made here to adopt only a fragment of a law, and to leave out important sections which are essential parts of the scheme — 659 — for city improvements as enacted by the legislature, and that this cannot be legally done under the well-established principles applicable to option legislation. This contention presents for consideration serious and interesting questions. The principle.that an option law, in order to be valid, must be a ■complete law in all its terms and provisions, when it leaves the legislative branch of the government, so that nothing is left open, save the determination of the prescribed fact upon the happening of which it is to go into effect, is so well settled as to require no discussion. It must be a complete law in all its details in prmmtñ, but may be left to take effect in futuro. Dowling v. Lancashire Ins. Co. 92 Wis. 63. An^ other rule would result in a practical delegation of legislative power. If the governing body of a municipal corporation can take such parts as it chooses from a complete law, and reject such parts as it chooses, the result will be, not the law which the legislature has enacted, but a law which the corporation has enacted. In such a case the legislature has never said that the parts chosen by the corporation should constitute a law, standing by themselves, but the governing body of the corporation has said so. This must be legislation, or it is nothing; and, if it be legislation, it is legislation by the municipal corporation, and not by the legislature. It may be said that this view is inconsistent with the result reached in the Adams Case, but we think not. In that case it was, in effect, held that a part of the general charter governing a particular subject, and which was complete in itself, might and should be considered as a separate and complete law upon the statute book, and thus might legally come under the general principle sustaining option legislation. It may be that the rule adopted in that case carried the doctrine by which option legislation is sustained to the limit, but it must be remembered that when laws are attacked as unconstitutional the courts will go as far as possible, consistent with reason and sound legal principles, to sustain the laws. In that case the whole of subch. XYIII, except — 660 — seo. 174, was adopted, and it was deemed the adoption of a. complete law on the subject of city improvements; the omission of sec. 174 not being regarded as important, and the question as to the effect of its omission not having been raised or argued in the case. Indeed, the provision of sec. 174 would seem to add nothing to the law, for the reason that its provisions are simply a reaffirmation of provisions either expressly or impliedly contained in every municipal charter, and which have been universally applied from time immemorial. In the present case, however, a number of additional sections were omitted; and the. question is whether it can be said, in view of these omissions, that the council has exercised a valid option by accepting a completó law as it left the legislature, or has it attempted to accept a part only of a law, and thus in effect legislated for itself ? The legislative scheme for the construction of city improvements, as disclosed by subch. XYIII, may be briefly stated as follows: The power to establish and change grades is vested in the council, with the proviso that any property owner damaged by the change of an established grade shall be entitled to recover such damages. The council are required to establish grades and cause them to be recorded in the clerk’s office, and no street can be worked until after the establishment and recording of the grade. Streets may be graded,, paved, or improved by vote of the council, and the expense, either in whole or in part, paid by the city, or the property benefited; but no assessment of benefits shall exceed the' actual benefit, except in case of sidewalks. When the owners of more than one half the lots fronting on a street shall petition for a specified pavement, approved by certain officials,, such paving may be done, and the expense charged against the abutting lots by the front-foot rule. Cross walks and repairs shall be paid for out of city or ward funds. The benefits and damages resulting from change of established grade or from any street work to be done at the expense of — 661 — property benefited shall be assessed and fixed by the board of public works, subject to final review and correction by the •council. A landowner may appeal from such assessment, •and the remedy by appeal is exclusive. Bids for the work shall be secured in a specified way, and contractors shall be paid either in certificates, improvement bonds, or cash, as •determined by the council. Improvement bonds may be issued at the option of lot owners, with certain specified characteristics and legal effect. So far as necessary for the present purpose, the foregoing may be said to be the substance and effect of the law governing street improvements as it left the legislature. Can this be said to be the substance and effect of the law which the council of the city of La Crosse attempted to adopt? We think this question must be answered in the negative. It may be granted that the city had and still has power, under its special charter, to establish and change grades, so that the failure to adopt the first clause of sec. 172 is immaterial. Leaving this omission, therefore, out of consideration, we find that the council has attempted to eliminate from the law passed by the legislature (1) the provision that a property owner may recover his damages for a change of established grade; (2) the requirement that the grade of all streets shall be established and recorded; (3) the prohibition against the working of any street until the grade is established and recorded; (4) the provision allowing the owners of more than one half the frontage on a street to cause the street to be paved, and paid for by assessments on abutting lots under the front-foot rule. With these substantial omissions, we do not see how it is possible to say that any complete law passed by the legislature, governing street improvements, has been adopted by the council. It was argued that the omission of the proviso in sec. 172 giving a property owner the right to recover damages for a change of established grade is immaterial, because all the legal machinery for the recovery of such damages is contained in — 662 — secs. 178 eb seq. of the chapter, and that these latter sections were all adopted by the ordinance. Admitting (but not deciding) that this contention may be sound, what can be said which will excuse the omission of sec. 173, which requires the establishment and recording of the grade of all streets, and prohibits the working of any street until its grade is established and recorded? Here is a positive requirement, which the legislature deemed an essential part of the system, which has been dropped out by the council, and which does not appear, either in form or in substance, in any part of the special charter of the city of La Crosse. It cannot be called trivial or unimportant. It was evidently framed to secure to the property owner the right to have a permanently established grade fixed, and recorded where he can examine it, before any work be done on the street, or assessments made against his property. Without this provision, the council might actually work the street and change its surface up or down as many times as they chose, and levy assessments therefor every time, and the property owner would have no redress for the change of actual grade, so long as the council had not permanently established a grade. This seems to be the very thing that the legislature intended to guard against,— the safeguard which the property owner was intended to have, — r and it is the very safeguard which the council' have denied him. The legislature have said that he should have it. The council have said he should not have it. This is not the exercise of an option on existing legislation. It is legislation itself. Regardless of the effect of the elimination of sec. 176 (which is also a serious question), we cannot but regard the omission of sec. 173 as a substantial and material change in the law as passed by the legislature, and hence fatal to the ordinance. We are not unmindful of the importance of the question presented, nor of the probable far-reaching effects of this ruling, and for those reasons have given the case most care — 663 — ful consideration. As a result of this consideration, the conclusions reached seem inevitable and free from all reasonable doubt, and, such being our conclusions, we should fail in our duty, did we not declare them. By the Coivrt.— Judgment reversed, and action remanded with directions to reverse the proceedings of the city council by which the ordinance was adopted.