Havemeyer v. Iowa County

THE constitution of Wisconsin, adopted in 1848, provides that no general law shall be in force until published; and an act of 1852 makes it the duty of the secretary of state and the attorney-general to divide all the laws passed by the legislature into two classes, and directs that each class shall be published in a separate volume; that the first class shall include laws of a general nature; the second class all laws which are not included in the first class; and that 'the title-pages of the respective volumes shall express whether they contain acts of a general nature or the private and local acts,' & c.

Subsequently to the passage of this act of 1852-that is to say, in March, 1853-the legislature of Wisconsin passed an act authorizing counties through which a certain railroad should pass Iowa County being one of the counties-to aid its construction by subscribing to its stock and issuing bonds of the county to pay for it. But by the terms of the act, no bonds were to be issued except a majority of the electors should authorize the issue by vote at an election, the mode of holding which and the duties of the county officers in regard thereto were prescribed in the statute.

This act of March, 1853, coming, soon after its passage and in ordinary course, before the secretary of state and attorney-general for classification, they decided that it was not an act of a general nature, but was a local act, and classified it accordingly. No volume containing the act was published till October, 1853.

Between these two dates-and between the time, of course, when the secretary of state and the attorney-general classified the act as a local act, and the time when the act was 'published' in a volume-the election, which the act itself authorized, was held, and the bonds were issued by the county. A number of them passed into the possession of one Havemeyer, and the interest on them being unpaid, he now brought debt in the Circuit Court of Wisconsin to obtain payment of it.

On the trial, the judges of the Circuit Court were divided in opinion, and sent here a certificate of division accordingly, on the following questions:

1. Whether the act of March, 1853, authorizing the subscription, and under which the bonds were issued, is a 'general law' within the meaning of the constitution of Wisconsin?

2. Whether the said act, not being published as a general act, and having been first published, after its passage, in the volume of local and private acts, in October, 1853, and after the issuing of the bonds, is not such an exercise of power by the State government or legislature, showing that the act is not a general act, and is binding on the courts?

3. Whether, if the said act is such a general law, any act or omission of the said county, its officers or electors, short of an election under the act, after the act was published in October, 1853, will render the bonds valid, or estop the defendant from questioning their validity in the hands of bon a fide holders?

The case came here, of course, under the act of Congress of 29th April, 1802, which authorizes a decision of this court upon it, 'whenever any question shall occur before a Circuit Court upon which the opinions of the judges shall be opposed,' and a certificate of it is sent up.

There were no recitals on the bonds, and the record disclosed no great deal more than the act authorizing the election, subscription, issue, and the fact that these had all been made, and that Havemeyer was owner of the instruments now due and unpaid.

The difficulty of resolving the question below was caused in part, perhaps, from a conflict in the decisions in the Supreme Court of Wisconsin, as to the character of the act of March, 1853, or of others just like it. The late decisions of that tribunal, beginning with State v. Leon, A.D. 1859, followed by several others afterwards, held the acts to be general laws; herein departing from the view taken, A.D. 1858, in Hewett v. The Town of Grand Chute, where a contrary idea was assumed as of course. And how far this departure from precedent was owing to a truer conception of the nature of general and particular laws, and how far to the fact, that the judiciary of Wisconsin was a body elected by popular suffrage at short intervals, and which might have come to the bench suffused with the feelings and ideas and wishes of a constituency wishing to disown an obligation which it had been found much easier to contract than to pay, was a matter not seen perfectly alike by all sides.

Mr. M. H. Carpenter, for Havemeyer, holder of the bonds.

The first and second points may be argued together. The act authorizing the subscription is not a general law, and does not require to be published in order to be valid. The distinction was long since truly taken by an authoritative writer of the English law,-a no less authority than Chief Baron Gilbert. Under the title of 'General and Particular Laws,' he says in his book on evidence:

'The distinction between a general and a particular law is, whatever concerns the kingdom in general, is a general law; and whatever concerns a particular species of men, or some individuals, is a special law.'

It is impossible to cite higher authority, though here found in a text-book, and unnecessary, therefore, to cite other. The same distinction, however, it may be said, runs through all judicial decisions. It has been declared in Wisconsin itself, and nowhere more emphatically. In Hewett v. The Town of Grand Chute, decided in 1858, long after these bonds had been sold, the question was not even thought of being raised. The action was on bonds issued, by the town, in pursuance of an act almost identical with this one. The question was, whether, being a private act, the act was properly pleaded? That it was a private act, no one was hardy enough to deny. The difficulty of the case would have disappeared had the act been a public one. The Supreme Court of Wisconsin say, and this court will specially note their language:

'The cause of action is founded upon a private statute; or rather upon certain instruments or contracts in writing, which derive their validity from such private statute. By the common law it was necessary to set out such statute in the declaration, otherwise the court would not take notice of its provisions: unlike, in this respect, a public statute, of which the court was bound to take judicial notice, though the latter were not pleaded. But section sixty-nine of the Code of Procedure provides as follows: 'In pleading a private statute, or a right derived therefrom, it shall be sufficient to refer to such statute by its title and the day of its passage, and the court shall thereupon take judicial notice thereof.' In this case the plaintiff in his complaint did refer to the statute from which his right was derived, by reference to its title and the day of its passage, and he thus brought the whole statute within the judicial knowledge of the court,' &c.

This view-a unanimous one of the old Supreme Court of Wisconsin-the view also taken previous to it by the secretary of state and the attorney-general-remained unquestioned and without doubt as to its being true law, until 1859, when the tax-payers woke up to the truth that it is easy to contract debt, but not always easy to pay it, and a majority of our Supreme Court,-three judges elected by the people-discovered in State v. Leon, the saving fact that such statutes are of a 'general nature;' declaring a few years later that an election before the publication authorizing the issue, was 'an idle act, wholly unauthorized and of no importance whatever.' This departure from precedent, is the consequence of a judicial tenure for less than good behavior; a bench of justice elected as that in Wisconsin, at short terms, by general suffrage.