Flannagan v. Buxton

129 N.W. 642, 145 Wis. 81, 1911 Wisc. LEXIS 13

• Court: Wisconsin Supreme Court
• Decided: January 31, 1911
• Status: Published

Opinion

Siebeoker, J.

The contention of the defendants is that the funds of the village were properly applied to a village debt which had been rightfully incurred in the execution of corporate functions in administering the government of the village. Sec. 893, Stats. (1898), grants villages the power to establish ordinances and by-laws for the government and maintenance of good order of the village, the prevention of crime, and the suppression of vice and immorality, and authorizes the village board “to appoint policemen, nightwatchmen and superintendent of police, and to prescribe their duties. . . .” No express grant of power is conferred authorizing these village boards to employ private detectives for the purpose of conducting an investigation to ascertain whether the criminal laws have been violated within the village. It is ¿rgued that, though such power is not expressly conferred, it is an incident to the corporate functions which impose on the village officers the duty of employing the measures necessary to maintain security and good order and to enforce the law by the prosecution and punishment of offenders.

The policy of the state is that municipal corporations are to exercise only such powers as are clearly embraced within the legislative grant or those derived therefrom by necessary implication, and to this end municipal grants of power are construed so as to confine the corporate authorities to the employment of such means and measures as are necessary to effectually execute the powers conferred. Upon this, subject this court in Butler v. Milwaukee, 15 Wis. 493, declared:

“Implications of authority in bodies corporate, more especially those created for municipal purposes, should be clear and undoubted. . . . Implications spring from the necessities of some power actually conferred, and not from notions of wbat would be convenient or expedient under particular circumstances.”

See, also, Davis v. Cherry, 53 N. J. Law, 173, 20 Atl. 825; McQuillin, Mun. Ord. § 53 et seq.; 28 Cyc. 262, “(d) Implied Powers.”

Applying these principles of construction to the instant case, can it be said that the powers conferred and the duties imposed on the village officers authorize the employment of detectives to conduct an investigation to ascertain whether the laws have been or are being violated within the village ? The legislature has conferred authority on village boards to appoint officers for policing the village. This express grant provides a means for carrying into effect its general police authority to secure peace and good order in the village and the enforcement of the criminal law. In the judgment of the legislature this provided a proper and adequate means to execute these corporate functions in the state of affairs that is generally and ordinarily expected to exist in these communities, and negatives any implication of authority to employ other and private agencies to discharge these corporate functions. Should an extraordinary and unusual state of affairs arise respecting the violation of criminal law, which of necessity called for special and extraordinary means on the part of the village authorities to discharge these corporate functions, an implication of authority might arise for the employment of means and measures, in addition to those expressly conferred, which would be commensurate to meet the necessities of such an occasion. But no such occasion is presented under the allegations of the complaint.

We are of opinion that the trial court properly held that under the facts as alleged the village officers acted without authority in authorizing the employment of a private detective to investigate and report upon violations of the law in the village and in applying village funds in payment of such service.

By the Court. — The order appealed from is affirmed.