Hall v. City of Racine

50 N.W. 1094, 81 Wis. 72, 1892 Wisc. LEXIS 8

• Court: Wisconsin Supreme Court
• Decided: January 12, 1892
• Status: Published

Opinion

LyoN, J.

This appeal is from an order sustaining a general demurrer to the complaint. The action is to recover for damages to plaintiff’s lot in the city of Racine, caused by the alleged unlawful grading of the street abutting such lot. It sufficiently appears from the complaint that the grading was done pursuant to a resolution of the common council of the city directing it, and that it was so ordered without any petition therefor by resident owners of lots fronting upon the proposed improvement. The only defect alleged ia the proceedings is that the resolution directing such grading to be done was not presented to the mayor of the city for his approbation, or approved by him. Whether the city charter requires that such resolution should have been presented to the mayor for his approval, is the only question for determination on this appeal.

The charter of the city of Racine is ch. 313, Laws of 1876, and the provisions therein necessary to be considered on this appeal are the following :

“ Title TV. The common council. Its generalpowers. Sec. 7- Every act, ordinance, by-law, regulation, resolution, or appropriation which shall have been duly passed by the common council, before it shall take effect, and within five days after its passage, shall be duly certified by the , city cleric, and presented to the mayor for his approbation. If he approve, he shall sign it; if not, he shall return it within five days, with his objections stated in writing, to the city clerk, and the clerk shall submit such objections to the common council at their next regular meeting thereafter, who shall enter said objections on the records of their proceedings, and shall proceed to reconsider the matter; and if,. after such reconsideration, two thirds of all the members elected should vote to pass such act, ordinance, by-law, regulation, resolution, or appropriation, it shall take effect and be in force as an act or law of the corporation; otherwise it shall be null and void. All such votes, after receiving the objections of the mayor, shall be taken by yeas and nays, and entered upon the journal of proceedings of the common council. If the mayor shall not return any act, ordinance, by-law, regulation, resolution, or appropriation so presented to him within five days after such presentation thereof, it shall take effect in the same manner as if he had signed it; and in case said ordinance shall not receive the signature of the mayor, thé certificate of the city clerk shall be attached thereto, showing the manner in which the ordinance was passed and acquired its validity.”

“ Title VI. City improvements cmd special assessments. Sec. 6. . . . The common council may order such work to be done; provided, that no such work . . . shall be ordered, unless a petition therefor shall first be presented to the common council, signed by the residents of the city owning a majority of the feet front of all the lots fronting upon such proposed improvements owned by residents of such city; or unless, in the absence of such petition, the resolution of the common council ordering such work shall receive the votes of three fourths of the aldermen elected, and shall declare why it is necessary for the public interest to proceed without such petition; but no such resolution ordering work without a petition therefor shall be passed at the same meeting at which it is first considered, but the same shall lie over until a future meeting of the common council, and the vote on its passage shall be taken by yeas and nays and duly entered in the journal of proceedings. . . .”

It will be observed that in a case in which it is proposed to order a street to be graded without the preliminary petition therefor of resident abutting lot-owners (as in tbe present case) tbe resolution tberefor must be considered at some meeting of tbe common council, and then must lie over until a future meeting thereof, before it can be lawfully adopted, and tbe vote on tbe adoption of tbe resolution must be taken by yeas and nays and duly entered on tbe journal of proceedings. Tbe affirmative votes of three fourths of tbe aldermen elected to tbe common council are required to pass tbe resolution. Tbe council consists of twelve aldermen; hence nine affirmative votes are required to pass it. Tbe effect of presenting a resolution to tbe mayor for bis approbation, if be disapprove it, necessarily is to postpone final action thereon until a future meeting of tbe council; and tbe vote on a reconsideration of tbe resolution by tbe council, after it has been returned without the mayor’s approval, must also be taken by yeas and nays and entered upon tbe journal of tbe council. On such reconsideration tbe affirmative votes of two thirds of tbe aldermen elect — that is, eight affirmative votes ■ — ■ are sufficient to pass tbe resolution over tbe mayor’s objection.

If the legislature intended that a resolution like tbe one here under consideration should be submitted to tbe mayor for his approbation before it can have validity, tbe questions suggest themselves, Why does sec. 6 of title VI of tbe city charter provide that tbe resolution shall lie over to a future meeting of tbe council, and that the vote upon its passage shall be taken by yeas and nays and entered upon the journal, when such would have been tbe results bad it been submitted to tbe mayor and by him disapproved? And why does tbe statute require nine affirmative votes in tbe first instance to pass tbe resolution, when only eight are required to pass it over tbe objections of tbe mayor? It seems to us that tbe two charter provisions above quoted are inconsistent with each other, in that more affirmative votes are required to pass tbe resolution in tbe first instance than are required to pass it over the mayor’s objections. It is difficult to conceive of a veto power, the exercise of which can have no influence whatever upon the passage of a proposed act or resolution. Yet such is the character of the veto power conferred upon the mayor if the charter requires that the resolution in question should have been submitted to him for approval. We should not impute any such inconsequential intention to the legislature unless such intention is clear and indisputable. It is not so in this case. On the contrary, by enacting in sec. 6 of title YI the material safeguards against hasty and improper action contained in sec. 1, title IV, and inserting in the former section a provision inconsistent with a corresponding provision in the latter, the legislature quite plainly manifested an intention to except the resolution under consideration from the operation of the provision contained in sec. 1. It is the duty of the court to effectuate that intention by applying to the case the elementary rule that, where a general intention is expressed, and the act also expresses an intention in a particular case incompatible therewith, such particular intention is to be considered as an exception to the general intention. State ex rel. Luftring v. Gœtze, 22 Wis. 363. See, also, other cases cited in the-brief of counsel for defendant.

The learned counsel for plaintiffs, in their very able argument, refer to the analogy between the veto power conferred upon the mayor by the city charter, and that conferred upon the governor by the constitution. No doubt such analogy exists. . Counsel also refer to the provision in the constitution to the effect that on the passage of appropriation bills and certain others, the yeas and nays shall be called in each house, and that three fifths of all the members elected to each house shall be required to constitute a quorum therein. Art. VIII, sec. 8. They argue that the rule of construction above suggested would render it unnecessary to present such, bills to the governor for bis approval. Tbe two cases are not analogous. Tbe constitution only requires tbe affirmative votes in eacb bouse of two thirds of tbe members present to pass a bill over tbe executive veto. Const, art. Y, sec. 10. Tbis presupposes, however, tbe presence of a quorum in eacb bouse. For tbe passage of appropriation and other bills enumerated in sec. 8 of art. Till, sixty members constitute the smallest quorum of tbe assembly, and twenty of the senate. Hence, when only a bare quorum of eacb bouse is present, bills specified in sec. 8, art. VIII, may be passed over tbe executive veto by an affirmative vote of forty in tbe assembly and fourteen in tbe senate. When both bouses are full, such bills may be passed over tbe executive veto by an affirmative vote of sixty-seven in tbe assembly and twenty-two in tbe senate.

Now, if tbe constitution contained a provision that, on tbe passage of an appropriation bill, tbe question shall be taken in eacb bouse by yeas and nays, which shall be duly entered on- tbe journal, and an affirmative vote of three fourths of tbe members elected to eacb house shall be required to pass tbe bill,— that is to say, seventy-five affirmative votes in tbe assembly and twenty-five in tbe senate,— tbe provision would be analogous to that in tbe charter of Raoine under consideration, in that it would be inconsistent with tbe veto power conferred by sec 10, art. V, of tbe constitution, and would render tbe exercise of such power in the case supposed entirely nugatory. We think tbe approved rules of constitutional and statutory construction would require tbe courts to bold that tbe provision above supposed would withhold from tbe executive tbe veto power in respect to appropriation bills. However, there is no provision in tbe constitution which restricts tbe exercise of that power by tbe executive in respect to any act of tbe legislar-ture on any subject, or which is at all analogous in principle to the provisions of the charter of Raoine, contained in sec. 6, title YI, thereof, here under consideration.

It follows that the demurrer to the complaint was properly sustained, and that the order in that behalf must be affirmed.

By the Gourt.— Order affirmed.

Wktslow, J., took no part.