Hall v. City of Madison

107 N.W. 31, 128 Wis. 132, 1906 Wisc. LEXIS 223

• Court: Wisconsin Supreme Court
• Decided: April 17, 1906
• Status: Published

Opinions

WiNsnow, J.

This is a taxpayer’s action in equity to restrain the city of Madison and its officers from issuing corporate bonds for tbe construction of a high school building. A general demurrer to tbe complaint was sustained, and tbe plaintiff appeals. It will only be- necessary to state very briefly tbe substance .of tbe complaint. It alleges that tbe ■common council of tbe city passed an ordinance authorizing tbe issuance of corporate bonds in tbe sum of $250,000 for tbe erection of a high school building in tbe city; that, pursuant to petition of more than one tenth of tbe voters, a special election was called and held at which 1,380 male voters voted for and 1,518 against tbe issuance, of bonds, and 1,098 female voters voted for and 673 against tbe issue. Tbe complaint also alleges that a part of tbe town of Blooming Grove is attached to tbe city of Madison for school purposes, and is ■a part 'of tbe school district, and that tbe voters of said at-tacbed territory were not allowed to vote at snob election. Certain alleged legal limitations on the power of the city to issue bonds are also pleaded, which will be more fully stated later in this opinion.

From the foregoing statement it appears that, according to the allegations of the complaint, the proposition to issue bonds was defeated if the votes of males only should have-been counted, but was carried if the votes of females should also be counted; so the question at once arises whether women are entitled to vote at such an election. The election in question was called and held pursuant to the provisions of sec. 943, Stats. 1898, as amended by ch. 312, Laws of 1903, which provides that no bonds shall be issued by any town, village, or city until the proposition shall have been submitted to the people of the municipality and adopted by a majority voting, thereon, and further provides that when any such bond issue is contemplated a special election for the purpose of submitting the question of such bonding to the electors shall be called and held. The law contains full provisions as to the manner-of conducting such an election, and also provides that it shall not apply to the issuance of bonds for school purposes, and certain other named objects, by a city, unless demanded by a petition signed by not less than ten per cent, in number of the voters who voted in said city at the last general state election. Adult women were allowed the right to vote at the election in question in this case, on the ground that such right had been conferred upon them by virtue of the provisions of sec. 1, ch. 211, Laws of 1885, now sec. 428a, Stats. 1898, which provides that every woman who is a citizen of this state of the age of twenty-one years or upwards (with certain exceptions unnecessary to state), “who has resided within the state one year, and in the election district where she offers to vote ten days next preceding any election pertaining to school matters, shall have a right to vote at such election.” This act was submitted to tl people at the general election in 1886, and approved by a majority of the votes cast. Tbe reason of this submission was that the constitution of the state, by sec. 1 of art. Ill, in specifying who shall be electors, limits the electorate to four classes of males, but provides that the legislature may “at any time extend by law the right of suffrage to persons not herein enumerated, but no such law shall be in force until the same shall have been submitted to a vote of the people at a general election and approved by a majority of all the votes cast at such election.” By ch. 285, Laws of 1901, a sentence was added to sec. 428a aforesaid, as follows;

“Separate ballot boxes shall be furnished at every election precinct in this state at every primary, general, municipal or special election, for the use of women desiring to vote on said school matters, and separate ballots shall also be provided at said elections for the use of said women.”

It should also be noted that by ch. 288, Laws of 1893, the legislature codified the laws of the state relating to electors and elections, and .by sec. 1 of that act, now sec. 12, Stats. 1898, classified electors into six classes; the sixth class being defined in subd. 6 as follows:

“Every woman who is a citizen of this state, of the age of twenty-one years or upwards, who has resided within the state one year and in the election district where she offers to vote ten days preceding any election pertaining to school district matters and the election of school district officers, and who is not a pauper or excluded by sec. 2 of art. Ill of the constitution, may vote at any election pertaining to such matters and the election of such officers in any town, city or village in which she has so resided.”

Such being the constitutional and statutory provisions bearing on the subject, the appellant claims, in substance, (1) that the constitution does not authorize the giving to any class of a right to vote at a special class of 'elections, but only to extend the right to vote at all elections, and hence that ch. 211, Laws of 1885, is unconstitutional; (2) -that in any event the act, as construed by this court in Brown v. Phillips, 11 Wis. , 36 N. W. 242, only gives women the right to vote for school officers or employees; (3) that even if the act be held valid, and extends beyond elections for school officers, the election in question was not an election pertaining to school matters; (4) that the term “electors,” as used in sec. 943, Stats. 1898, does not include women, who at best are only qualified electors.

Proceeding to the consideration of these objections, it must be said that the validity of sec. 1, ch. 211, Laws of 1885, now sec. 428a, Stats. 1898, can hardly be considered as fairly open to discussion. It was directly attacked in Brown v. Phillips, supra, and it was distinctly said in the opinion by the present chief justice: “We must hold the act in question to be a valid law.” In the following case of Gilkey v. McKinley, 75 Wis. 543, 44 N. W. 762, it was said concerning it:

“That section owes its vitality to a direct vote of the electors of the state, and a like vote would doubtless be required to repeal it. Although, under the special provisions of subd. 4, sec. 1, art. Ill, of the constitution, sec. 1, ch. 211, Laws of 1885, is in the form of a statute, yet it is essentially a part of the constitution

It is true that in both of these cases the right of women to vote at certain elections was denied because the law was not deemed self-executing, and no machinery had been provided by law for the proper exercise of the right; it is true, also, that the precise ground of invalidity now suggested was not suggested in either of them, but in each case the law was definitely declared valid by this court. The discovery of a new argument will hardly justify the overturning of a carefully considered decision, unless, indeed, the argument be of such convincing cogency as to compel the mind to believe not only that the former decision was legally indefensible, but that it would be palpably wrong to permit it to stand. No such situation is here presented. The present argument is ingenious, but not necessarily mind-compelling. It certainly does not possess the strength required to overcome the rule of stare decisis.

But it is said that this court decided, in Brown v. Phillips, supra, that the only right given to women, by the statute is the right to vote in the choice of school officers and employees. It seems to us that a very brief consideration of that case dem■onstrates the fallacy of the argument.' A decision is always to be construed bearing in mind the question presented. The exact question in that case is well stated in the opinion, upon ■.page 248 (36 N. W. 245), as follows:

“On the part of the defendants it is claimed that such right only extends to the voting directly for school officers. Upon the part, of the plaintiff it is contended that such right extends 'to the voting for any officer having any duties pertaining to school matters, however remotely.”

Upon this question, thus sharply presented, the decision was as expressed upon page 253 (36 N. W. 247) :

“An election for the choosing of any school officers or school •employees would be an ‘election pertaining to school matters’ .. . . the choosing or selecting of any other officers is not an ‘election pertaining to school matters’ within the meaning of the act.”

It is therefore clear that no question was considered or discussed save the question as to what officers women might vote for. The question whether women might vote at an election not involving the selection of officers, but involving merely the decision of a question pertaining to school matters, was neither considered nor decided, nor was it decided in the case of Gilkey v. McKinley, supra.

So we approach the question whether the election in question was an “election pertaining to school matters” within the meaning of the act, unembarrassed by any contrary intimation in the previous cases. In the first place it should be •■said that an “election,” within the meaning of the statutes of this state, includes a referendum vote to decide a question, of policy such as the issuance of bonds, the issuance of saloon, licenses or the amount thereof, just as well as it includes an ordinary election to choose between candidates for public office. The very first definition given of the word in Brown. v. Phillips, supra, is “the act of choosing; choice.” Whether-it is a choice between alternative policies or a choice between persons, it is equally an election. If further argument were-needed on this proposition it would be readily found in the fact that such referendum votes are always termed “elections”' by our statutes, as, for instance, a local option election (sec. 1565a, Stats. 1898), and an election to fix the saloon license-fee (sec. 1548), and, to come nearer home, the very referendum in question is called an “election” by the section which-requires it (sec. 948).

Being, therefore, an election, the question is: Can it be-properly said to pertain to school matters ? Upon this subject it is argued that the paramount question submitted is the question of the incurring a municipal debt, and that the purpose for which the debt is to be incurred is but an incident, and does not make the election .one which pertains to-school matters. This argument is not without force, but we-cannot deem it sound. The money, if borrowed, was to be-borrowed solely to build a school building; it could be used for no other purpose. Stripped to its essence, the question to be decided was: “Shall the city borrow $250,000 and build a high school therewith ?” Is not the borrowing of money to build a school house an act pertaining to school matters as-much as the expenditure of moneys in hand for that purpose ?' Suppose there were a law providing that, whenever a city proposed to build a school house or purchase a new school site-costing more than a given sum, the question whether such a sum should be spent for that purpose should be submitted to vote; would not the election held under such a law be strictly an election pertaining to school matters? Would the fact that the expenditure of municipal funds was involved take-from the proposition its character as an election pertaining to* school matters? In fact, does not any proposition relating, to the better management of the schools necessarily involve the question of the expenditure of corporate funds ? And if. women are to be denied the right to vote because the expenditure or the borrowing of money is involved, does not the law-become a mere husk without the kernel ?

-These questions bring us to the broader question of the general purpose of the law. It must, of course, be assumed that it was passed to give some substantial right to women which they did not before possess. To suppose that the legislature or the people intended by the use of.vague language or glittering generalities to “make a promise to the ear and bréale it to the hope,” or to seem to give a right which was, in fact, substantially withheld, cannot be entertained without an imputation of bad faith to both legislature and people. If the purpose had been to limit the right to school district meetings, or to voting for school officers or employees, it would have been easy to do so by simple and appropriate language. No-such purpose can, in our judgment, be spelled out either from the language of the act or its title. On the other hand, the very broad and general nature of the language used indicates clearly the intent to cover a broad field rather than a narrow one. The title of the act (ch. 211, Laws of 1885) exhibits, this intent most persuasively. It is: “An act relating to the-exercise of the right of suffrage by women upon school matters.” It is not the right to vote at school district meetings-(which can only be called the right of suffrage in a limited sense), or the right to vote for school officers, but the right of suffrage upon school matters, to which, the legislature declares by the title, the act refers. Nor is this declaration of intent narrowed or limited by the wording of the act itself. The act, in terms, gives women the right to vote at any election (not at any district school meeting) “pertaining to school matters/’ and further, it provides that the form of the ballots to be used by the people in voting upon the. law should be: “Eor woman suffrage in school matters,” and “Against woman suffrage in school matters.” These broad general words indicate the intent to give the full right of suffrage in school matters, or else they indicate an intent to deceive by appar■ently giving much while in fact giving little or nothing. The latter intent cannot be entertained for a moment.

The intent being, therefore, to give broad powers, powers substantially equal to those possessed by male voters, so far as such elections are concerned, the act should be construed to effect that intent so far as possible. Ut res magis valeat ■qucun pereat. There should be no narrow construction given, no paring down of the rights attempted to be given by the people’s mandate. Indeed, it is difficult to see upon what ground any attempt in that direction can be justified. Theoretically, women have fully as much interest in the conduct of the common schools as men; it is common knowledge that they display more interest in them practically. The nursery is the first schoolroom of the race; the mother is the first teacher, and from her lips come the earliest and perhaps the ■most important lessons. When the child goes to school the great majority of its teachers, from the kindergarten to the high school, will be women, and if either parent takes any interest in its progress by visiting the school, in nine cases ■out of ten it will be the mother. When the legislature and the people, therefore, attempted to give to women the right to participate with men in the management of the schools, they ■acted upon practical, not fanciful, reasons; they did an act of tardy justice rather than an act of bounty or grace. There was no reason why they should not so participate; there was every reason why they should. Giving the law, therefore, that reasonable breadth of construction which is necessary in order to make it fulfil its evident purpose, we have no difficulty in reaching the conclusion that an election to determine whether bonds shall be issued to build a school house-is strictly and truly an “election pertaining to school matters.” The difficulty found in the Brown and Gilkey Cases, namely, that further legislation was needed in order to render the law capable of execution, has now been removed by the provision of the necessary machinery for receiving and counting the votes of women (ch. 285, Laws of 1901), so that no-obstacle remains in the way of giving full effect to the law.

But it is urged that when the legislature provided, by sec. 943, Stats. 1898, that bonds should not be'issued by a municipality until their issue had been approved by a majority of the electors of the municipality, the word “electors” meant the same body of electors in all cases; i. e. that it did not mean one class of electors when the question is as to the issuance of bonds to improve streets or build sewers, and a larger class when the question is as to the issuance of bonds to build school houses. It was directly held in the Gillcey Case that ch. 211, Laws of 1885, became, after it was adopted by the people, “essentially a part of the constitution.” The class of voters thus added to the electorate in elections pertaining to school matters became substantially constitutional electors! It would seem to be a very serious question whether the legislature has any power to provide for an election at which only a certain part of the electors recognized by the constitution should be allowed to vote. Eor instance, could the legislature-provide for an election to determine whether bonds should be issued, and limit the right of voting at such election to property owners, or to voters between certain ages? We suggest the question, but d,o not find it necessary to decide-it. If, as we now hold, this election was in fact an election pertaining to school matters, and if, as we also hold, women are fully qualified constitutional electors at such elections, it must be presumed that when the legislature used the word' “electors” without qualification they used it advisedly, and meant the electors qualified by law to vote on any given prop•osition. Tbe fact that tbe legislature provided that no referendum should be necessary in case of tbe projiosed issuance ■of bonds for street improvements, school purposes, and certain other public improvements except when petitioned for by ten per cent, of the voters who voted at the last general election, seems to us as having no material or persuasive bearing. It certainly does not indicate an intention by the legislature to deny to any constitutional elector his right to vote at the election which might be rendered necessary by the filing of the petition. Such an intention, even if it could be effectual, should be clearly expressed. We have not found it necessary to consider or discuss the effect of ch. 288, Laws of 1893, now subd. 6, sec. 12, Stats. 1898, upon the question. It is plain that it did not and could not add to or subtract from the act of 1885, because it was never submitted to a vote of the people. The only thing that could be done by the legislature alone after the passage of ch. 211, Laws of 1885, was to provide the machinery for its execution, and this has been done by ch. 285, Laws of 1901.

Certain other objections are made by the appellant to the legality of the proposed bond issue, which will be briefly considered. It appears by the complaint that the common schools of the city of Madison are operated under the provisions of ch. 295, P. & L. Laws of 1861, and certain subsequent amendments thereto. The act named provides that the territory which is or may hereafter be included in the city of Madison shall constitute a separate school district; it also provides for the government of the district by a board of education of six members, to be chosen by the common council of the city, two members being chosen annually; that this board shall be a body corporate by the name of “the board of education of the city of Madison?’ shall elect a treasurer, president, and, clerk; shall have power to establish schools, and manage them, purchase sites, build school buildings, employ teachers, and generally manage the schools of the city, and to expend the school funds therefor which are to levied by the common council and paid over to the treasurer of the board. The act also authorizes the school board to buy a site and erect a union or high school, for which the common council was authorized to levy a tax or borrow a sum not exceeding $10,000, and issue city bonds therefor. It further appears that various contiguous portions of the town of Blooming Grove have been attached to the city of Madison for school purposes, and have been required to pay taxes for the support and maintenance of the schools of the city at the same.rate as the city, which taxes are paid over to the treasurer of the board of education of the city. Oh. 159, Laws of 1861; ch. 203, P. & L. Laws of 1867; ch. 127, Laws of 1877.

It is argued that the referendum vote is void because the voters in the attached territory were not allowed to vote, also because the power to borrow money to build a high school is limited to the sum of $10,000. Neither contention can be sustained. The situation of the inhabitants of the so-called attached territory seems simply to be that they have the privilege, on payment of their share of the expenses of operation of the Madison schools, to send their children to those schools. In this sense this territory and its inhabitants are part of the school district, but apparently in no other. The school district, so far as government is conóerned, is still the territory included within the city limits of Madison; that city, through its board of education, purchases and sells school sites, and builds, operates, and owns its school buildings without let, hindrance, or aid from the attached territory. If new school houses must be built, the city of Madison builds them. The attached territory and its inhabitants .receive school privileges, but do not participate in the ownership, control, or management of the schools. In this view it is .clear that such inhabitants have no right to vote on the question of bonding the city of Madison to build a school house.

As to the $10,000 limitation contained in the act of 1861, tbe objection is answered by reference to tbe provisions of sec. 926 — 11, Stats. 1898. Tbis is a general act passed expressly for tbe purpose, as its terms clearly express, of giving to all cities operating under special charters tbe power to issue bonds for certain purposes,- among wbicb is “tbe erection, construction, and completion of school buildings, and tbe purchase of school sites.”

There are no other points made which require treatment.

By the Court. — Order affirmed.