State ex rel. Cornish v. Tuttle

9 N.W. 791, 53 Wis. 45, 1881 Wisc. LEXIS 205

• Court: Wisconsin Supreme Court
• Decided: September 27, 1881
• Status: Published

Opinion

Lyon, J.

The constitution ordains that “ all city, town and village officers whose election or appointment is not provided for by this constitution, shall be elected by the electors of such cities, towns or villages, or of some division thereof, or appointed by such authorities thereof as the legislature shall designate for that purpose.” Article XIII, sec. 9. Manifestly, the term “ electors,” in this provision, is synonymous with “voters” in sections 7 and 8 of the same article,, which relate to the division of counties and the removal of county seats; and it is settled that the latter term, in section 8 means those persons who have the qualifications of electors • prescribed in article III of the constitution. State ex rel. Knowlton v. Williams, 5 Wis., 308; State ex rel. Cothren v. Lean, 9 Wis., 279. We cannot doubt, therefore, that the constitution gives to every person residing in the village of Whitewater, when any election for municipal officers is held, and who has the qualifications of an elector specified in article III,, the right to vote at such election. The> legislature has no-power to restrict that right by imposing additional qualifications. Hence, the provision of section 4 of the village charter, which enacts in substance that an elector, otherwise qualified, must reside in the village twenty days next preceding an election for municipal officers before he is entitled to vote at such ' election, is in contravention of section 9, article XIII of the constitution, and is therefore null and void.

But because the charter of .the village of Whitewater contains this void provision, it by no means follows that the whole net of incorporation is void. Strike out the void part, and the charter still contains valid provisions amply sufficient to ■enable the municipality fully to perform all of its functions. 'The rule in such a case, frequently asserted by this court, is, that unless-the void part was the compensation for or inducement to the valid portions, so that the whole act, taken together, warrants the belief that the legislature would not have enacted the valid portions alone, such portions will be operative. Slauson v. Racine, 18 Wis., 398; State ex rel. Walsh v. Dousman, 28 Wis., 541; Dells v. Kennedy, 49 Wis., 555. See also cases cited in the brief of counsel for defendant. Municipal corporations constitute a most important feature in our system of government. By them and through them the local and prudential public affairs of large communities are administered. They are the agencies of local self-government, easily reached and influenced by the people for the general good. So important were these corporations regarded by the framers of the constitution that they inserted in that instrument an express mandate to the legislature to “ provide for the organization of cities and incorporated villages.” Article XI, sec. 3. Since the adoption of the constitution, the legislature has, in obedience to snch mandate, created numerous municipal corporations, and has enacted a general law for the incorporation of villages. While it is true that quite a number of special charters contain restrictions upon the right to vote at municipal elections, similar to that in the charter of Whitewater, yet in very many of them no such restriction is found. Xeither is it found in the general law for the incorporation of villages. R. S., 291, sec. 873.

Considering that it is thus made the duty of the legislature to provide for the organization of municipal corporations, and that this duty has been performed in so many instances without inserting in the acts of incorporation the invalid restriction under consideration; and ponsidering also that there is no apparent reason why the legislature should deem it more important to restrict the right to vote in Whitewater than in many other municipalities of the state where no such restriction has been attempted,— it seems very clear to our minds that the void part of section 4 of the village charter was not' the inducement to, or consideration for, the enactment of the valid portions of the charter. On.tlie contrary, we have no doubt that the legislature would have as readily enacted the valid portions of the act, had the void provision been wholly omitted therefrom. In the examination of this subject we do not forget that in State ex rel. Knowlton v. Williams, 5 Wis., 308, it was held that an unconstitutional restriction of the right to vote on the question of the removal of a county seat invalidated the act submitting that question to a vote of the people. That decision goes upon the ground that the only, authority in that behalf conferred upon the legislature by the constitution, was to submit the question to the electors of the county, — that is, to those residents of the county having the constitutional qualifications of electors or voters,— and that-the act under consideration in that case submitted the question to a portion only of such electors, and was therefore ultra vires. The distinction between that and the present case is plain. Strike out the unconstitutional provision in the act submitting the question of.removing the county seat, and there is nothing left of the act. But, as already observed, we may strike out the void provision in the charter of Whitewater, and there remains a valid charter, which furnishes all the machinery for organizing the corporation and for performing all of its municipal functions. It must be presumed that the corporation was organized and the election of 1881 held under the valid provisions of the charter, rejecting the unconstitutional restriction in section é. It is not alleged in the complaint that any lawful voter has been disfranchised because of that provision; and had it been so alleged, it is not perceived how that could affect the validity of elections held under the charter.

Our conclusions are, that the village of Whitewater was legally incorporated and organized; that the election of 1881 was a valid election; that the persons elected thereat to the several village offices were legally elected and qualified; and that the defendant was legally appointed by the board of trustees, pursuant to the charter (section 16), to the office of president of the village, to fill the vacancy caused by the resignation of the president chosen at such election, and is entitled to that office. All this sufficiently appears from the complaint and the charter of the village, applying thereto those presumptions of regularity which the law recognizes and sanctions.

It was argued by counsel for defendant, that the complaint is defective in that it fails to show that the relator is a resident or tax-payer of Whitewater. It was claimed that a private person who brings an action lite this, must show some interest in the subject of the action, or he has no standing in court. We are inclined to concur in this proposition. We suppose, however, that this is merely an objection that the relator fails to show that he has capacity to sue; and we understand that if the complaint is demurrable for that reason, the objection must be made specially, or a demurrer will not reach it. R. S., 725, secs. 2649,2651. Whether the complaint is demurrable for that reason, or whether the want of capacity to sue (the complaint being silent on that subject) should be alleged by way of answer, is not here determined.

By the Court. — The order sustaining the demurrer to the complaint is affirmed.