# Van Gilder v. City of Madison > Wisconsin Supreme Court · June 22, 1936 · 222 Wis. 58 URL: https://www.frixlaw.com/law-library/cases/8198999 ## Case - **Full name:** Van Gilder, Special Administratrix v. City of Madison - **Court:** Wisconsin Supreme Court - **Decided:** June 22, 1936 - **Citations:** 222 Wis. 58; 268 N.W. 108; 105 A.L.R. 244; 1936 Wisc. LEXIS 587 - **Precedential status:** Published - **Opinion:** On rehearing - **Judges:** Rosenberry - **Cited by:** 66 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8198999 ## How later opinions describe it (automated extraction) - stating that "when the Legislature deals with local affairs and government of a city, if its act is not to be subordinate to a charter ordinance, the act must be one which affects with uniformity every city" - holding that "[w]hen the Legislature deals with matters which are primarily matters of state-wide concern, it may deal with them free from any restriction contained in the home rule amendment" - noting that "[e]ven though the determination made by [the legislature] should be held not to be absolutely controlling, nevertheless it is entitled to great weight because matters of public policy are primarily for the legislature" - observing that the phrases "local affairs" and "statewide concern" are "practically indefinable" ## Opinion text The following opinion was filed June 22, 1936: Per Curiam (on motion for rehearing). A motion for rehearing was made in this case and supported by briefs which have received our careful attention. Among other things it is argued that in the decision in this case the court overlooked the provisions of sec. 9, art. XIII, of the constitution of the state of Wisconsin, which provides: “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 and villages, or of some division thereof, or appointed by such authorities thereof as the legislature shall designate for that purpose. All other officers whose election or appointment is not provided for by this constitution, and all officers whose offices may hereafter be created by law, shall be elected by the people or appointed, as the legislature may direct.” On the strength of the decision in O’Connor v. Fond du Lac (1901), 109 Wis. 253 , 85 N. W. 327 , the cases there cited, and People ex rel. Le Roy v. Hurlbut (1871), 24 Mich. 44 , 9 Am. Rep. 103 , it is argued that municipal corporations in the state of Wisconsin have certain so-called inherent powers particularly those relating to local self-government. The position of counsel would be more tenable if the question were an open one in this state. From Butler v. Milwaukee (1862), 15 Wis. *493, to Milwaukee v. Raulf (1916), 164 Wis. 172 , 159 N. W. 819 , it has been consistently held that municipal corporations have only such powers as were conferred upon them by statute or those necessarily implied therefrom. In Butler v. Milwaukee the court said: “Implications of authority in bodies corporate, more especially those created for municipal purposes, should be clear *86 and undoubted, and the party claiming through 'them should be able to point them out with certainty and precision. The fact that he cannot, is conclusive that they do not exist. Mere general arguments drawn from the convenience of possessing a power under certain circumstances in case of emergency— conclusions that, if possessed, it might be beneficially exercised, are very dangerous sources of corporate authority. . . . Implications spring from the necessities of some power actually conferred, and not from notions of what would be convenient or expedient under particular circumstances.” In Sutter v. Milwaukee Board of Fire Underwriters (1915), 161 Wis. 615 , 155 N. W. 127 , the court said: “A municipal corporation in Wisconsin today is of the kind mentioned in art. XI of our constitution. The words now mean a body corporate consisting of the inhabitants of a designated area, created by the legislature, with or without the consent of such inhabitants, for governmental purposes, possessing local legislative and administrative power, also power to exercise within such area so much of the administrative power of the state as may be delegated to' it, and possessing limited capacity to own and hold property and to act in purveyance of public conveniences.” In this connection it is to be remembered that the clause of the charter of the city of Milwaukee, which was construed in Butler v. Milwaukee, supra, was very broad. In addition to those powers expressly granted, the charter provided that the municipality should have “the general powers possessed by municipal corporations at common law.” Whatever the law may be in other jurisdictions, it has never been the law in Wisconsin that municipal corporations possessed inherent powers of local self-government independent of legislative control. If they now possess such powers, it is due to the adoption of the home-rule amendment. It is true, as was held in O'Connor v. Fond du Lac, supra, that the power of the legislature to deprive municipalities of the right to elect their officers is protected by sec. 9, art. XIII, of the constitu *87 tion. That section, however, does not attempt to confer powers, but prescribes how the officers therein specified shall be chosen, and leaves the definition of their functions to the legislature. While there is some language in O'Connor v. Fond du Lac, supra, that lends color to the argument made here, the question there under consideration was the power of the legislature to deprive the municipality of the right to choose its own police officers. In the case under consideration, the legislature in no way attempted to interfere with the appointment of local police and fire officers. Under the law as it now exists and declared in this case, not only the choice of officers but to a considerable extent their duties are left wholly to local authority. The board of police and fire commissioners is just as local as the common council. The whole controversy comes back to the question of what was meant by “local affairs and government.” It is said that the fixing of salaries of policemen is a local affair. In a certain sense that is true, and it is so regarded by the legislature, because the power to fix salaries is lodged with local authorities. It is argued that the case of State ex rel. Harbach v. Mayor (1926), 189 Wis. 84 , 206 N. W. 210 , is not in point because it deals with the matter of education, which by the terms of the constitution (art. X) is vested in the state superintendent and such other officers as the legislature shall direct. The difficulty with this argument is that it proves too much. The end sought to be attained by the provisions of art. X of the constitution was to require the state to assume the duty of providing for the establishment of free schools. Sec. 3, art. X, provides: “The legislature shall provide by law for the establishment of district schools, which shall be as nearly uniform as practicable ; and such schools shall be free and without charge for *88 tuition to all children between the ages of four and twenty years; and no sectarian instruction shall be allowed therein.” At the time the constitution was adopted, some states did not consider the furnishing of free education a state function. Where it was a state function it was one which had been assumed within comparatively recent times. In order that there might be no doubt as to where the responsibility lay, the constitution made it the duty of the legislature to provide free education. It is true that the constitution nowhere specifically provides that it shall be the duty of the state to preserve order and protect life and property unless it is to be found in the preamble, and if there it is expressed in very general terms. The reason why it was not expressed was because the preservation of order and the protection of life and property, in the language of the declaration of independence, the right to “life, liberty and the pursuit of happiness,” are of the very essence of government and an essential function of a state. States have been organized for that express purpose from time immemorial. Education, especially two hundred years ago, stood upon a different basis. It was considered that the furnishing of free education was a duty which a state might or might not assume. What was said, therefore, in State ex rel. Harbach v. Mayor, supra, about the field of legislation relating to education, applies with greater instead of less force when we come to consider the duty of the state with respect to the preservation of order and the protection of life and property. To carry out its functions, the constitution provides for the creation of municipal corporations by the state. These from the beginning have been held to be agencies of the state with respect to these primary functions. While they may in many respects serve the locality in these highly important respects, they also discharge state functions, and the discharge of these functions is not a local affair or a matter of local government, but is a matter of state-wide concern and of state government. *89 There is a great deal of confused thinking upon the subject because of the failure to recognize the fact that many of the things which municipalities do seem to be local when they are in fact part of the obligations imposed upon the state by the constitution itself. It is said that certainly salaries of policemen are a local affair. As already pointed out, the legislature so considers them, and they are fixed by local authority. Because the state has vested the power in localities to fix these salaries, it has not made it a matter of local affair in the sense that it can be deprived of its right to see that an efficient, dependable police force is functioning in all parts of the state. After a reconsideration of the entire matter, we adhere to our former determination. The motion for rehearing is denied. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8198999. Public record. Not legal advice.