City of Milwaukee v. McGregor

Wisconsin Supreme Court

City of Milwaukee v. McGregor

121 N.W. 642, 140 Wis. 35, 1909 Wisc. LEXIS 230

CourtWisconsin Supreme Court

DecidedJune 3, 1909

StatusPublished

Cited by47 cases

This text of 121 N.W. 642 (City of Milwaukee v. McGregor) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

City of Milwaukee v. McGregor, 121 N.W. 642, 140 Wis. 35, 1909 Wisc. LEXIS 230 (Wis. 1909).

Pincite

Opinion

■MaRshall, J.

The only question requiring solution upon the appeal is this: Do the provisions of a city charter, and ordinances duly adopted pursuant thereto, regulating the construction of buildings in such city, apply to a public school building proposed to be erected or in process of erection for the state by the Board of Normal School Regents, under special legislative authority to erect the same according to plans adopted by it and approved by the governor? If not, the judgment appealed from is right.

Counsel for appellant present the case as if the Board of Normal School Regents is- to be treated the same as an individual, acting for himself or for a piúvate corporation, which is manifestly wrong. The building in question is for the public use as state property. The situation is the same as if [37]*37the structure was to be used for the care of the insane or for any other of the many state purposes which might be named. The fact that the board is made a state agency to take and hold title to property for state purposes does not cut any figure in the matter. The building is not designed to be, in any proper sense, tire property of the board, except as representing the state.

So the question comes down to whether the ordinary charter ■and ordinance regulations of a city requiring submission to local supervision, as regards the manner of constructing, altering, and repairing buildings, have any application to state buildings. That must be answered in the negative. It is plainly so ruled by the familiar principle that statutes-, in general terms, do not apply to acts of the state. Moreover, express authority to a state agency to do a particular thing in a particular way supersedes any local or general regulation conflicting therewith. Sandberg v. State, 113 Wis. 578, 89 N. W. 504; Dollar Sav. Bank v. U. S. 86 U. S. 227, 239; U. S. v. Verdier, 164 U. S. 213, 219, 17 Sup. CJt. 42; Dist. of Columbia v. Johnson, 165 U. S. 330, 17 Sup. Ch 362.

The infirmity of appellant’s position has been, from the first, in supposing that the state, in respect to constructing a building in the city of Milwaukee, has no more free hand than .a private person or corporation, while the fact is that the people of the state, in their sovereign capacity, except as restrained by some constitutional limitation, and there is none in this case, is as exempt from mere general or local laws as the king was of old in the exercise of his sovereign prerogatives .as “universal trustee” for his people. So it has been said, “The most general words that can be devised (for example, any person or persons, bodies politic or corporate) affect not” the sovereign “in the least, if .they may tend to restrain or diminish any of his rights and interests.” So general prohibitions, either express or implied, apply to all private parties, but “are not rules for the conduct of the state.” [38]*38Dollar Sav. Bank v. U. S., supra. That lias been auplied in many ways. Eor examples: The state may sue as freely a& an individual, but cannot be sued except by its consent. It may have the benefit of a general cost statute, but it is not liable for costs without express written law to-that effect. It may plead the statutes of limitations the same as an individual, or recover interest as use or damages, but is not subordinate in adversary proceedings to the law on either subject, unless expressly named therein showing unmistakable legislative intent to that effect.

Applying the-foregoing, it is plain, that the assumption by the building inspector of the city of Milwaukee of authority over the state agent in the execution of the statutory command to build the structure in question according to plans approved by the governor, was an unwarranted interference — a pure, but not intentional, of course, usurpation. The state was not only not expressly included in the charter power of regulation, but the general law of the state passed subsequently to the enactment of the charter quite plainly commanded the Board of Regents to erect the building without regard to the judgment of any one outside of its own members, except as to approval of the plans by the governor.

By the Gourt. — The judgment is affirmed.

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■MaRshall, J.

The only question requiring solution upon the appeal is this: Do the provisions of a city charter, and ordinances duly adopted pursuant thereto, regulating the construction of buildings in such city, apply to a public school building proposed to be erected or in process of erection for the state by the Board of Normal School Regents, under special legislative authority to erect the same according to plans adopted by it and approved by the governor? If not, the judgment appealed from is right.

Counsel for appellant present the case as if the Board of Normal School Regents is- to be treated the same as an individual, acting for himself or for a piúvate corporation, which is manifestly wrong. The building in question is for the public use as state property. The situation is the same as if [37]*37the structure was to be used for the care of the insane or for any other of the many state purposes which might be named. The fact that the board is made a state agency to take and hold title to property for state purposes does not cut any figure in the matter. The building is not designed to be, in any proper sense, tire property of the board, except as representing the state.

So the question comes down to whether the ordinary charter ■and ordinance regulations of a city requiring submission to local supervision, as regards the manner of constructing, altering, and repairing buildings, have any application to state buildings. That must be answered in the negative. It is plainly so ruled by the familiar principle that statutes-, in general terms, do not apply to acts of the state. Moreover, express authority to a state agency to do a particular thing in a particular way supersedes any local or general regulation conflicting therewith. Sandberg v. State, 113 Wis. 578, 89 N. W. 504; Dollar Sav. Bank v. U. S. 86 U. S. 227, 239; U. S. v. Verdier, 164 U. S. 213, 219, 17 Sup. CJt. 42; Dist. of Columbia v. Johnson, 165 U. S. 330, 17 Sup. Ch 362.

The infirmity of appellant’s position has been, from the first, in supposing that the state, in respect to constructing a building in the city of Milwaukee, has no more free hand than .a private person or corporation, while the fact is that the people of the state, in their sovereign capacity, except as restrained by some constitutional limitation, and there is none in this case, is as exempt from mere general or local laws as the king was of old in the exercise of his sovereign prerogatives .as “universal trustee” for his people. So it has been said, “The most general words that can be devised (for example, any person or persons, bodies politic or corporate) affect not” the sovereign “in the least, if .they may tend to restrain or diminish any of his rights and interests.” So general prohibitions, either express or implied, apply to all private parties, but “are not rules for the conduct of the state.” [38]*38Dollar Sav. Bank v. U. S., supra. That lias been auplied in many ways. Eor examples: The state may sue as freely a& an individual, but cannot be sued except by its consent. It may have the benefit of a general cost statute, but it is not liable for costs without express written law to-that effect. It may plead the statutes of limitations the same as an individual, or recover interest as use or damages, but is not subordinate in adversary proceedings to the law on either subject, unless expressly named therein showing unmistakable legislative intent to that effect.

Applying the-foregoing, it is plain, that the assumption by the building inspector of the city of Milwaukee of authority over the state agent in the execution of the statutory command to build the structure in question according to plans approved by the governor, was an unwarranted interference — a pure, but not intentional, of course, usurpation. The state was not only not expressly included in the charter power of regulation, but the general law of the state passed subsequently to the enactment of the charter quite plainly commanded the Board of Regents to erect the building without regard to the judgment of any one outside of its own members, except as to approval of the plans by the governor.

By the Gourt. — The judgment is affirmed.

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Bluebook (online)

121 N.W. 642, 140 Wis. 35, 1909 Wisc. LEXIS 230, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-milwaukee-v-mcgregor-wis-1909.

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