The State of Wisconsin ex rel., William H. Lord, Relator, vs. The Board of Supervisors of Washington County, Respondents

The State of Wisconsin ex rel., William H. Lord, Relator, vs. The Board of Supervisors of Washington County, Respondents. Where the right, which is sought to be enforced, is doubtful, or the performances of the duty which is oxactod, rests in the discretion of the person or body of whom performance is requirod, a writ of mandamus ought not to issuo to enforco obedience. Where this process is applied for, to enforce a statutory requirement, the provisions of the Statute must be so clear and distinct as not to admit a doubt, to justify this Court in the allowance of. such process. Where, by Statute, the Legislature required the Supervisors of a^ County to lot to tho lowest bidder tho construction of county buildings, such as a Court House, Jail, Clork and Register’s Office, at a particular place, and to bo completed at a specified time, and to levy a tax upon the taxable inhabitants and property of tho county, for defraying the oxpensos of construction, tho provisions, specifications and requirements of the act must be so clear, specific and distinct as that doubt cannot exist as to roturn of the duty enjoined. If there be reasonable doubt, under tho provisions of the act an regard to the duty, or as to tho specific mode of performance, or any other thing incident to tho performance, tho Court will not grant the writ. Where a County Seat has been located at a particular place, where it continued for a time, and then, by an act of the Legislature, was temporarily remqvod to another place, there would be no rq^ version, after the lapse of tho time for which it was removed, to the placo from which it had been temporarily removed, unless further Legislation should intervene to establish its locality there. The relator, on the fifteenth day qf May, in the yea? 1850, applied to the Chief Justice for an order upon the Supervisors of Washington County, to show cause on the first day of the next Succeeding term of the Supreme Court, why a peremptory writ of mandamus should not issue, commanding them to proceed forthwith, to let the contract for the erection for a Court House and Jail, and fire-proof Cleric's and Register’s Office, at the Village of Port Washington, in said County, and to proceed to the erection of the same without delay, and to levy a tax to defray the expense of the same as was required by an act of the Legislature of the State of Wisconsin approved February 8th, 1850, entitled “ An Act to provide for the permanent location of the Seat of Justice in thé county óf Washington, and fix the division of said county, and the organization of the county of Tuskola. An order to that effect was made by the Chief Justice, founded upon an affidavit made by the Relator and then presented to the following effect, to-wit: “ William H. Lord, of Port Washington, Washington County, being duly sworn, doth depose and say, that by act of the Legislature of the State of Wisconsin approved, February 8th, 1850, entitled An Act “ to provide for the permanent location of the Seat of Justice of the County of Washington, and for the division of the same, and for the organization of the County of Tuscola,” the Board of Supervisons of said county were directed to let the contract for building a Court Plouse and Jail, and fireproof Clerk’s and Register’s Office, at the Village of Port Washington, in said county, on the first Monnay of May, 18.40, and to proceed to the erection of the same without delay. That the said Board did meet in purpuance of said law, .and organized itself by the election of a Chair-n^n, but wholly neglected and refused either to let thp contracts aforesaid, or to provide for any paeans for the erection of said .buildings as aforesaid; but as y.our depo-nentes informed and believes, refused to do so because the members of the said board believed, or said they believed the act aforesaid to be unconstitutional and void. Your deponent further states that the said Board1 met on the day succeeding the said first Monday, in pursuance of a call signed by a majority of the members, and’ without taking any steps, either to let the contract or provide for the erection of the buildings as is by said act required, immediately adjourned without day. And your deponent further, s.ays that he is informed and believes that the,said Board, or a majority, of the members thereof, give out and assert that they should wholly disregard the requisition of the s,aid act. And your deponent believes that unless commanded by the mandate of the Supreme Court, they will continue so to neglect and refuse.” The Board of Supervisors, .put in an answer in justification of thus doing, which the reporter is unable to obtain, and which it is, apprehended is not material to be set out, inasmuch as the decision of the court does not involve the consideration of it. To this answer the relator demurred. Upon these proceedings the motion came before the Court. A wide range of discussion, upon various points raised by the counsel, was indulged on the argument and ably conducted; the greater part of which has not been referred to by the controling opinion of the Court; and therefore need not be stated. But the additional opinion of f'he Chief Justice discusses very fully a question arising to4er the 18th Section of the Fourth Article of the Constitution, which was madp by the respondents counsel, on the argument, t'ó-wit: 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. Larrabee Judge, was not upon the bench.' É. G. Ryan Jl. D. Smith, for Relator. J E. Arnold fy J. Holliday, for Respondents. [MAJORITY — 'Jackson, J.] By the Court. 'Jackson, J. An application is made to this Court for a peremptory Mandamus, to Toe directed tó the Board of Supervisors of Washington County, -commanding them to proceed,.under the act of the.last session of the Legislature, to let to the lowest bidder, the contract for the erection of the County Buildings, and to levy an additional tax upon th'e taxable property of the county, for the purpose of defraying the expense and cost of their erection. A writ of Mandámus is the highest judicial writ knowh to oúr Constitution and laws, and according to the lohg approved and well established authorities, only issues in cases where there is a specific legal right to be enforced, hr where there is a positive duty to be, and which can be performed, and where there is no otheir specific legal remedy. Where the legal right is doubtful, or where the perform--'anee of the duty rests in discretion, a writ of Mandamus cannot rightfully issue. Kendall vs. United States, 12 Peters, 613; 18 Wendell, 89; 5 Binney, 103; 12 Johhson, 416; 1 Cowen, 423. Tested by these principles of law, should the' present application be gránted 1 The following is the act tfrhich is sought to be enforced by this writ: “The Board of Supervisors shall, on. the first Monday of Máy next, proceed to let to the lowest bidder, the contract for the erection of d good and commodioüs CourtHouse upon the plan and style generally adopted by the different counties of this State, a good and sufficient Jail, and good and commodious fire-proof Clerk’s and Register’s Office, upon grounds in the village of Port Washington, to be located by the Supervisors of the County of Washington, said buildings to be erected and ordered during the summer of 1850, and finished by the first day of July 1851; and 'for the purpose of defraying the expense and cost of erecting said buildings, the said Supervisors are directed to levy an additional tax upon the taxable property of said county, in addition to the ordinary taxes of said county, for the year 1850, equal to the amount of the contract price of said buildings.” Various objections were raised by the respondents, and ably argued to this Court, which it is not necessary to deeide ; among which is the constitutionality of the act of 1850. The Court are all of opinion that the power to award the writ, in a case like the present, is clearly conferred by the constitution and laws of the State. Nor is there any division of sentiment in regard to the operation of the law of 1847, by which the county seat of Washington county, was located at the village of Port Washington, for a period of five years. There cannot be two separate and distinct locations, at one and the same time; nor can there be a right of reverting or returning to a former location, without ah express law to that efiect. In this case there is none. The act of 1847 operated as an abrogation of- all previous acts on that subject; and when the .term of five years expires, there will be no established location of the county seat of Washington County. It will be the duty of the Legislature, on .the, happening of that event, to provide by law, for the 'establishment of a now location; and that can-bo done, without any conflict with the provision of the Constitution regulating the removal of Copnty, Seats. But until the Legislature shall ■make some additional statutory provision, touching the permanent or temporary location of the County Seat, it must be regarded as fixed at Port Washington. (See sec. 8th, article 13th Cons.) The main objection to the allowance of the writ, prayed for by the relator, arises-from the, vagueness and uncertainty of the law prescribing'the duty of the respondents. The Board of Supervisors were required, on the first Monday of May, 1850, to “proceed to let to the lowest bidder, .the contract for the erection of a good and-commodious Court-House.” No provision is made for advertising or obtaining proposals, and it might well have happened, that there would be no bidders, in which case the respondents could not have, let the contract in the manner required by law. . • Nor was there any provision made fop the purchasing or obtaining, a site for the County Buildings; and it would seem to me to be unreasonable,, if not impracticable, fe? compel the Board of Supervisors to contract for the erocr tion of a Court-House, Jail, and Clerk’s Office, without naming any lot or place for their location, and without its being known where, in fact, they were to be erected. But I have much greater difficulty with another clans*? <pf the act, The respondents are required to enter into a contract, for the erection of a good and commodious Court-House, “ upon the plan and sty Ip generally adopted by the different counties of this State.” There is no criterion,¡ that I am aware of, by which to determine what is the “'plan and style generally adopted by the different countiesr-of this State,” in the erection of their Court-Houses. It is believed that there are no two Court-Houses, in the State, which are alike in their form, material, dimensions, and arrangements.^ Every member of the Board of Supervisors might have his individual opinion, and maintain with equal sincerity, that his plan ,and style approached the nearest to the\ “ plan and style generally adopted.” And the members of this Court might be equally variant, in their own views, upon the subject. It is clear, therefore, to my mind, that there is not, in this case,¿on part of .the relator, a specific legal right to be enforced, nor, on the part of the respondents, a positive duty to be performed and which can be performed. While.,-therefore, in a case wherein the facts were such as, to justify the awarding of a writ of mandamus, this Court would-not hesitate to interpose its authority to compel any;individual or public body to discharge a duty, or perform an act required by law, I am satisfied that this is -not one, in which it would be safe or proper, to exercise such authority. The writ- must be denied. [CONCURRENCE — The Chief Justice.] The Chief Justice. While I Concur in denying the ■ Mandamus in this case, the mandatory part-of the law-being too vague to be thus summarily enforced, I do not •think it becomes me, or my position, to permit the grave constitutional question which is involved, to pass unnoticed. That question, which is one of great importance to the people of Washington County, and of great interest to the whole State, has been formally presented to our consideration; and it has been discussed with an ability and research never surpássed in this forum. It is the •question in (he case. The one which all parties are anxious to have settled-, and for the determining of which this proceeding, as I understand, was instituted. I think it is the duty of this Court to meet it at once, and to put it forever to rest. The other members of the Court, however, take a different view of the subject; and the opinion which I now' deliver, is my own alone. None of my brethren are responsible for it; nor is it to be regarded at all as a judicial decision, or binding authority. The County Seat of Washington County, after having been for years the subject of controversy, and of various legislative action, was by the act of 1847, p. 37, fixed at Port Washington, for the term of five years. This act repealed in its terms, “ all acts, or parts of acts, theretofore passed, which contravened its provisions.” The first enquiry then, is: What legislation did contravene the provisions of this act of 1847? I answer, unhesitatingly, all previous legislation affecting the location of the County Seat. In the case of La Fayette County, argued at this term, and already passed upon, we have held that the removal of a County Seat, even for temporary purposes, to a new place, by necessary implication, repeals the law locating it at the old one. That, as far as this question is involved, is precisely this case; for I do not suppose it can fee fcontended, that a distinction is to be made between a temporary location of five years, and a temporary location, the term of which depended on a popular vote. In either case the location, for the time being, was unqualified'; and of necessity inconsistent with a location at any other place. The most that can be said in both instances against the rights of the places thus possessing the county seat, is that in one case, the right was subjéet to be determined by legislative action after the specified period; and in the other, at any time by • popular majority. Port Washington then was, at the adoption of the Coni' stitution, for the time being, the county seat; and was, as has already been held in the case of La Payette County; within the constitutional provision — at least, until the expiration of the term provided by the act of 1847. A curious enquiry might here arise, whether this legislative location of five years was not by the constitution made permanent; but as I do not deem it material; in the view which I take of the act of last winter, I pass it by: One of two things is certain: either that Pdrt Washington had become, by the constitution acting on the law of 1847, the permanent county seat; or, that after the expiration of five years, there would be no legal county scat, and that in the absence of any, the Legislature would have the power, as in the case of organizing a new county, to locate one — tho constitutional restriction not applying. If the first position is the correct one, there is of course an end to the real question involved in this case. But assuming the othef position, the enquiry is then directly presented, has the Legislature by its act of last session, made Port Washington the permanent county seat 1 In. my opinion it has. And all concede this to be sOj iffthat act is-constitutional. And why is it not 1 Because .it is,said to--be local; to embrace more than one subject; and not truly to express its object in its .title, as requmcd by the constitution in regard to private and local laws. How-this act can be saidfto be Ipcal, in a political, and in the constitutional sense- of tha$ word, passes pay understanding. It is ai publi^ law, concerning the police and municipal organizations! the- State. The State itself as an integral sovereignty is ipade up of lesser muni- , cipal organizations; the mqst essential and important of which is the .county organization. An admirable system! and our greatest safeguard against the invention of modern despotism,, centralization. A% catastropby, by the way, of which democratic republics are in quite as much danger as are constitutional monarchies. Through the counties the sovereignty perforins many of its most important acts. Its judicial functions are exercised thrqugh the instrumentality of,the counties; and through county officers the state revenue is levied and collected. Indeed, it is only by an aggregation of the counties,.^ and i the harmonious ^performance of their appropriate fqnc- v tipns,. that we obtain the idea of the sovereignty — the. State.. JJEtat c'^est moil is an idea more foreign to the American, mindw than is the language of the despot who-, uttered it. The State, with us, is composed of lesser municipalities, and acts by and through them, and per-. vfides them all; and counties, in a political sense, can no , more be considered local, in reference to the State,' than, can the arteries be, in -reference to th'e heart. The act,-inakes provision for a-,new-Qircuit vQpurt, whq§.e, jurisdic-. tion, as I had occasion to remark in the<okse of Putnam vs. Sweet, is of the most plenary character; and hy requiring the erection of a County Jail, .provides, as the law now is, for a new States Prison. Geographically the law is local, but politically it is not. As well might it be ' said that a law of Congress establishing a new 'collection 'district; admitting a Territory into the Union as a State,; •or annexing a-foreign nútion to the .Republic, is local. Nay indeed in'such' a sense it is difficult to conceive what ■ is not local. But admitting, for the purpose of ¡argument, the law undér consideration to be local;, what is the objection to • it 1 That it contains more than one subject. More than one subject! How sol What is its ¡subject ! Is it not ‘that portion of the Territory of the State inown as Washington Countyl And, though it-.may embrace many and Various provisions, Ss not Washington County its proper and only subject! Clearly so. Subject, says Webster, is, “ that on which any mental operation is performed; that which is treated, or handled.” Washington County, its Police, its Officers, its County Seat, its Courts, its’ County Buildings, and, in a particular contingency, its division — was the subject of the law. The various details of the law were not'its subjects. There is no plural in its subject. The object that it contemplated — the thing it acted upon — the locality it particularly concerned— Washington County, was its subject. It will not do to refine away laws in this manner. Few Statutes could stand sucha hypercritical test. An act conferring a pension on the widow, and making provision for the support and education of the infant children, of a meritorious soldier killed in the public service; an act dividing a Town, mid providing for the organization of a new one, (which, is exactly this case;) an act making appropriation to op® person for fire-wood, and to another for sawing it, for the use of this court room; and almost every other act, which under the contracted sense assumed of this beigg a local law, could be: caljed local or private, would he deemed unconstitutional;- and the persons receiving money,, or performing service, under it, would be held liable to an action to r.efund, or to answer in trespass, or otherwise, for their acts. No. The true test is, not tire details oí the law; but its general scope, its subject. And if it be in its nature one — such a matter as the mind acts upon by one operation, and need not necessarily be - disintegrated in order to be intelligible — then it is one subject, and is not obnoxipus to the constitutional interdict. And. he-r-e-. I am nipt with the objection that, though this law may not be unconstitutional for duplicity, it is so, being lopal, because its subject is not correctly expressed iii its titlp. I have had no experience in legislation, and my studies have not-been,particularly directed to the minutiee of constitutional law;,- but I confess that this objection, that the act does not in, its title correctly express its subject, has taken me by surprise. It seems to me -that the constitutional provision is merely directory to the Legislature; and is not, the subject of judicial review. To regard it in any other light, would be to make the judiciary a supreme and despotic censor of the Legislature, in regard to all that mass of legislation which is not general and public. It cannot be that the constitution, its framers, and adopters, intended to confer this censorious and monstrous power upon the judiciary; especially, as that semie cpn-stitution had takon'care that each department of the government should be constituted and remain independent ant}, co-ordinate in its sphere; and tho judicial, to be removed from those popular influences which may very properly address themselves to the legislative department. But suppose it is otherwise — suppose this Court, and for, that matter every other, from a Justice oí the Peace upwards, is invested with the power of pronouncing a iaw unconstitutional, because its title does not correctly .state its. subject; what is the meaning of the constitutional provision 1 It is that the title should indicate — should call the reader’s attention to — the nature of the law; and'if so* that is enough. The constitution cannot mean, as the respondent’s argument assumes, that to mako the law valid, the title must be a correct syllabus of it. All that can be required is, that the title should correspond with, and not be incongruous to, the provisions of the law. The probable object of the constitution was to guard members - of the Legislature from unwittingly voting for an objee-tionable law under a captivating title. It is simply directory; and ought not to be regarded as a kind of condition precedent, on which the validity of a law depends. In any other view of the subject, in order to be safe, it would be necessary for the title to recite the whole body of the act — a piece of bungling machinery that I think the common-sense statesman of our day would hardly try to set in operation. There is no magic in a name. The subject matter of the law is Washington County — that territory — that part of the State, known as such; and it is immaterial what1 title the act bears, as long as its provisions are intelligible,, practicable,, and constitutional, In my opinion, the law is constitutional; and, though this Court cannot now enforce it, I think the Supervisors and people of Washington County, as good citizens, should in good faith carry it into effect. Mandamus denied.