State ex rel. Hammann v. Levitan

228 N.W. 140, 200 Wis. 271, 1929 Wisc. LEXIS 380
CourtWisconsin Supreme Court
DecidedDecember 3, 1929
StatusPublished
Cited by16 cases

This text of 228 N.W. 140 (State ex rel. Hammann v. Levitan) 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
State ex rel. Hammann v. Levitan, 228 N.W. 140, 200 Wis. 271, 1929 Wisc. LEXIS 380 (Wis. 1929).

Opinions

Rosenberry, C. J.

The right of the conservation commission to proceed to carry out the provisions of this legislation is challenged on the ground that the acts are unconstitutional and void because as to ch. 475 in contravention of the provisions of art. IV, sec. 18, of the constitution of the state of Wisconsin, which provides:

“No private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title.”

[276]*276Both chapters are challenged on the ground that they are in conflict with art. VIII, sec. 10, the material part of which is as follows:

“The state shall never contract any debt for works of internal improvement, or be a party in carrying on such work. ...”

In support of the first proposition it is argued, first, that the act is local. This much must be at once conceded, — the act relates to the creation of a wild-life refuge on the Hori-con marsh and within the decisions it is a local act. State ex rel. Richter v. Chadbourne, 162 Wis. 410, 156 N. W. 610, and cases there cited.

It is next argued that it embraces in its title more than one subject and contains provisions which are not disclosed by the title. In Evans v. Sharp, 29 Wis. 564, this court definitely accepted the interpretation of this clause of the constitution placed upon similar language contained in the constitution of the state of New Jersey by the court of that state and quoted with approval the following language:

“The unity of the object must be sought in the end which the legislative act proposes to accomplish, and not in the details provided to reach that end. The degree of particularity which must be used in the title of an act rests in legislative discretion, and is not defined by the constitution. There are many cases where the object might with great propriety be more specifically stated, yet the generality of the title will not be fatal to the act, if by fair intendment it can be connected with it.”

To the same effect are the prior decisions of this court. See Dean v. Charlton, 23 Wis. 590; Mills v. Charleton, 29 Wis. 400.

Because the title to the bill in this case is specific, it is argued that the specific and particular provisions constitute more than one subject and are not parts of a whole. The quite evident purpose of ch. 475 is to authorize the institution by the conservation commission of a wild-life refuge [277]*277on Horicon marsh. In order to accomplish the general purpose certain other specific things are necessarily or properly incident thereto. There must be a dam to raise the water level. When the wild-life refuge is instituted, certain incidental steps in the. judgment of the legislature should be taken, such as the establishment of a fish hatchery, the establishment of a fur farm, and, so far as the works authorized by the statute permit, the control of the flood waters of Rock river. If any one of these subsidiary steps were to be entered upon by the state as a sole and distinct enterprise, other and serious questions would be presented. It is very doubtful whether the "legislature could authorize the state to enter into the business of raising fur. It is equally doubtful whether it could authorize the agricultural college to enter into the business of raising wheat, tobacco, or other agricultural products. However the state does all of these things as a necessary and proper incident to the carrying on of a school of agriculture. If the authorities charged with the execution of the law should depart from the fundamental purpose and make the incidental the dominant purpose, it is quite probable they could be brought within their proper sphere by court action. The erection of a dam for the purpose of controlling flood waters would undoubtedly be a work of internal improvement. Here the dominant purpose is the creation of a wild-life refuge, and as an incident to it the establishment of a fur farm, dam, and a fish hatchery. We see nothing in the title to the bill which within established principles makes it unconstitutional as violative of sec. 18 of art. IV.

In November, 1912, sec. 3a of art. XI became a part of the constitution of this state by way of amendment.

“Section 3a. The state or any of its cities may acquire by gift, purchase, or condemnation lands for establishing, laying out, widening, enlarging, extending, and maintaining memorial grounds, streets, squares, parkways, boulevards, parks, playgrounds, sites for public buildings, and reserva[278]*278tions in and about and along and leading to any or all of the same; and after the establishment, layout, and completion of such improvements, may convey any such real estate thus acquired and not necessary for such improvements, with reservations concerning the future use and occupation of such real estate, so as to protect such public works and improvements, and their environs, and to preserve the view, appearance, light, air, and usefulness of such public works.”

The question of whether or not the state may expend public funds in the creation of a wild-life refuge was argued in the original briefs without reference to this section, which came to the court’s attention during the consideration of the case. Thereupon the court directed counsel to file briefs on the following proposition:

“Is chapter 475 of the Laws of 1927, relating to a state wild-life refuge, fur farm, and dam on Horicon marsh, an exercise of the power vested in the state by section 3a of article XI of the constitution of the state of Wisconsin?”

Such briefs have been filed and the whole matter has again been reconsidered. Ch. 475 of the Laws of 1927 has already been set out in extenso and it is not necessary to repeat its provisions at this point. That the project authorized in ch. 475 does not conform to the conventional idea of what constitutes a park must be conceded at the outset. Blackstone defines a park as follows:

“A park is an inclosed chase, extending only over a man’s own grounds. The word ‘park,’ indeed, properly signifies an inclosure; but yet it is not every field or common which a gentleman pleases to surround with a wall or paling and to stock with a herd of deer that is thereby constituted a legal park; for the King’s grant, or at least ‘immemorial prescription,’ is necessary to make it so.” Blackstone’s Commentaries, Book II, p. 38.

In the United States the word “park” is most frequently used to designate a piece of ground maintained for the benefit of the public, or ornament, scenic beauty, and as a place for the resort of the public for recreation and amusement. 20 Ruling Case Law, p. 638 and cases cited.

[279]*279In Riverside v. MacLean, 210 Ill. 308, 71 N. E. 408, 414, a park was defined as “a place for the resort of the public for. recreation, air, and light.”

In Northport W. G. C. Asso. v. Andrews, 104 Me. 342, 71 Atl. 1027, 1030, it is defined “as a piece of ground set' apart to be used by the public as a place of rest, recreation, exercise, pleasure, amusement, and enjoyment.”

In Comm. v. Hasen, 207 Pa. St. 52, 56 Atl. 263, 264, the court had under consideration whether or not a private game and fish preserve came within the meaning of the word “park.” It is there said:

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Bluebook (online)
228 N.W. 140, 200 Wis. 271, 1929 Wisc. LEXIS 380, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-hammann-v-levitan-wis-1929.