State ex rel. Neacy v. City of Milwaukee , 150 Wis. 616 ( 1912 )

The decision was announced October 15, and the following .opinion was filed October 29, 1912:

Winslow, O. J.

A number of objections to the plaintiff’s procedure are made by the demurrants which we do not find it necessary to consider. The importance of a decision upon the merits is such that it would certainly not be good administration to base a decision upon some defect in procedure when it is possible to take up and decide the vital question in the case, namely, the question of the validity of the redistricting ordinance. The importance of an early decision upon this question is greatly increased by the fact that the general biennial election is impending, tbe result of which might be ■wholly invalidated, or at least thrown into lamentable confusion, so far as the city of MilwcuuJcee is concerned, if the question of the validity of the ordinance were now to be put aside and at some later period taken up and decided adversely.

We therefore proceed at once to a consideration of the ordinance. Here also we find it. unnecessary to consider a number of the questions which were vigorously presented both in the briefs and upon the oral argument.

Undoubtedly substantial equality of population is the primary object sought to be attained by the law under which the ordinance was passed, but whether the council might not lawfully consider the growth of population and make allowance for the changes which that growth-was reasonably certain to produce within a very short period in the future is a question upon which we express no opinion.

There is no constitutional requirement that a city shall be divided into wards of equal population, or that it shall be divided according to population. - The general question of the division of a city into wards is & legislative question, at least within limits which have not been passed in the present case.

If, therefore, it were to be admitted, for the purposes of the case, that the ordinance was void when passed because the wards created by it were not “as nearly equal in population as mp,y be,” still, if the legislature by subsequent act recognized and ratified the ordinance, it undoubtedly became valid by such legislative ratification.

This court has frequently recognized the power of the legislature to cure by subsequent legislation defects or irregularities. in municipal proceedings which it might have dispensed with or made immaterial by prior law. May v. Holdridge, 23 Wis. 93; Single v. Marathon Co. 38 Wis. 363; Cawker v. Central B. P. Co. 133 Wis. 29, 113 N. W. 419; State ex rel. Clancy v. McGovern, 100 Wis. 666, 76 N. W. 593. It is also well established that such ratification or curative effect may result by implication as well as by direct legislative act. Fisk v. Kenosha, 26 Wis. 23; Knapp v. Grant, 27 Wis. 147; Hasbrouck v. Milwaukee, 21 Wis. 217; Campbell v. Kenosha, 72 U. S. 194; Mattingly v. District of Columbia, 97 U. S. 687; Brown v. Mayor, etc. 63 N. Y. 239.

By cb. 661 of tbe Laws of 1911, published July 17, 1911, the legislature redistricted the state for legislative purposes, divided the county of Milwaukee into nineteen assembly districts and six senatorial districts, bounded the various districts by ward lines, and distinctly provided that the wards named in the law should be construed to be the wards- created by the ordinance in question.

This was beyond question a complete and unequivocal recognition and approval of the ordinance. It is argued that the act cannot be operative for this purpose for the reason that changing the ward boundaries of a city amounts to an amendment of its charter and is prohibited by sec. 31 of art. IV of the constitution. The objection falls because the constitutional provision cited only prohibits the amendment of a city charter by “special or private” law, and by no stretch of imagination can a statewide apportionment law be called either a special or private law.

So far as this case is concerned, ch. 661 of the Laws of 1911 must be considered as a valid general law. The mere fact that it incidentally affects a given locality in some of its provisions cannot logically make it a special or private law or deprive it of constitutionality.

By the Court. — Order reversed, and action remanded with directions to sustain the demurrer to the complaint.