State ex rel. Consolidated Stone Co. v. Houser

Cassoday, C. J. 1. The question for determination is whether the legislature had power to make the appropriations mentioned in the chapter of the statute cited (ch. 3&7, Laws of 1903). The attorney general contends that the. act is void upon either of two grounds. The first is that it is in violation of the provision of the constitution which declares that “the legislature shall never grant any extra compensation to any public officer, agent, servant, or contractor, •after the services shall have been rendered or the contract ■entered into.” Sec. 26, art. IV, Const. The case made certainly does not come within the letter of such prohibition, since neither of the relators was the “public officer, agent, ■servant, or contractor” of the state. Mr. Bentley was the ■only person entering into any contract with the state, or who placed himself under any obligation to the state, or who had any contract relation with the state. The relators were each subcontractors under Mr. Bentley, and to him alone were they answerable. Counsel for the relators state in their brief that “the subcontractor was agent under the contractor to do work for the state.” If this were true there would be much force in the claim of thé attorney general that the appropriation was expressly prohibited by the provision of the constitution quoted, or at least that it was within the spirit of that prohibition and the mischief thereby sought to be prevented. But the view we have taken of this case makes it unnecessary to determine that question. 2. The second ground upon which the attorney general claims that the appropriations are unconstitutional is that they were not either of them made for a public purpose, but that each' was made for a private purpose. It must be con [260] ceded that the Staté Historical Library building, in the erection ánd construction of which the materials furnished and delivered by the relators were actually used, was a public institution. It appears that the state entered into a contract with Mr. Bentley for the erection and construction of a portion of that building. That contract required him to furnish the materials and perform the labor. In making that contract the state did not require Mr. Bentley to give any bond or security for the payment of claims of subcontractors or others who furnished materials for or performed labor in or upon the building. It is conceded that Mr.. Bentley fully performed his contract and that the state paid him in full for all the work and materials covered by his contract. The state was only concerned in having its contract with Mr. Bentley performed, and when it was SO' performed and paid for the public purpose of that contract was satisfied. The state made no contract with the re-lators or either of them, and had no dealings with them or either of them. It was no concern of the state, nor of the people of the state, nor of the public, whether Mr. Bentley procured such stone, crushed stone, and brick from the rela-tors or some one else; nor whether he paid for them on delivery or obtained them on credit. In no event was the state liable for such material so furnished by the relators. This is conceded. The contracts for such materials between Mr. Bentley and the relators, respectively, were personal and private contracts. Stripped of all verbiage, the act in question was merely an attempt to donate from the public treasury the amounts therein mentioned to the private persons therein named in payment of Mr. Bentley’s private indebtedness to them. Its only purpose was to pay the indebtedness-of one private person who had failed in business to the other private persons therein named. In other words, the purpose of the act was to appropriate the public moneys of the state to the payment of private debts. The question recurs261 whether the legislature had the power to make such contributions from the public treasury to pay such priyate debts. Certainly the power of the legislature to appropriate moneys out of the public treasury is not unlimited. “It can only be •so appropriated ‘by law/ and that means a valid law.” Sec. 2, art. VIII, Const.; State ex rel. New Richmond v. Davidson, 114 Wis. 563, 513, 88 N. W. 596, 90 N. W. 1067. “No •construction is permissible which defeats the obvious purpose and object of constitutional restrictions.” Id. In the ease last cited it is said by way of quotation from standard text-writers: , “The power of the government to embark in enterprises of public charity and benefit can only be limited by the restrictions upon the power of taxation, and to that extent alone can these subjects in American law be said to fall within the police power of the state. ... It is implied in all definitions of taxation that taxes can be levied for public purposes only. - •. . It may be regarded as a settled doctrine of American law that no tax can be authorized by the legislature for any purpose which is essentially private; or, to state the proposition in other words, for any but a public purpose.” Id. It was held by this court forty years ago, in the language of Chief Justice DixoN, that: “The legislature cannot create a public debt, or levy a tax, or authorize a municipal corporation to do so, in order to raise funds for a mere private purpose. It cannot, in the form of a tax, take the money of the citizens and give it to an individual, the public interest or welfare being in no way connected with the transaction. The objects for which money is raised by taxation must be public, and such as sub-serve the common interest and well-being of the community required to contribute.” Brodhead v. Milwaukee, 19 Wis. 624, 652. In a later case Chief Justice RyaN said: “Taxation is the absolute .conversion of private property to public use; and its validity rests on the use.” Att’y Gen. v. Eau Claire, 37 Wis. 400, 438. But it is unnecessary to cite authorities to propo [262] sitions which have repeatedly been sanctioned by this court, and from which this court has recently and repeatedly drawn the conclusion that no apjDropriation can be made and no tax can be levied for a mere private purpose. Wis. Neeley Inst. Co. v. Milwaukee Co. 95 Wis. 153, 159—161, 70 N. W. 68 and cases there cited, particularly Lowell v. Boston, 111 Mass. 454; State ex rel. Griffith v. Osawkee, 14 Kan. 418; Wis. Ind. School v. Clark Co. 103 Wis. 651, 666-668, 79 N. W. 422; Putney Bros. Co. v. Milwaukee Co. 108 Wis. 554, 84 N. W. 822; State ex rel. New Richmond v. Davidson, 114 Wis. 563, 573-578, 88 N. W. 596, 90 N. W. 1067, and cases there cited; State ex rel. Garrett v. Froehlich, 118 Wis. 129, 134-144, 94 N. W. 50, and cases there cited. As already indicated, the appropriations in question were purely for private purposes and hence were unconstitutional and void. By the Gourt. — The judgment of the circuit court is reversed, and the cause is remanded with directions to dismiss the relation.