Summary
explaining that “where a matter affects the interests of local residents as well as the interests of the people in other areas of the state, the test to be applied in resolving the matter is that of paramount interest....”
Summary of this case from Madison Teachers, Inc. v. WalkerOpinion
June 4, 1956 —
June 22, 1956.
APPEAL from an order of the circuit court for Fond du Lac county: RUSSELL E. HANSON, Circuit Judge. Affirmed.
For the appellants there was a brief by St. Peter Hauer of Fond du Lac, and oral argument by George M. St. Peter and Albert J. Hauer.
For the respondent there was a brief by Frederick K. Foster corporation counsel, and Worthing Calhoun, special counsel, and oral argument by Mr. Kenneth E. Worthing and Mr. Foster.
A brief was filed by Willink Thompson of Madison, for the Wisconsin Farm Bureau Federation, Co-operative, as amicus curiae.
A brief was filed by Roy W. Thiel of Fond du Lac, for the town of Taycheedah, as amicus curiae.
The action was commenced by the city of Fond du Lac against the town of Empire and the individual members of the town board of said town seeking a declaratory judgment as to the validity of certain town ordinances. The complaint alleges that the city operates a municipal water utility; that its water supply is from wells located within the city but that its water supply, because of an increase in population and in the use of water, is inadequate for present purposes and that a water shortage Will result as the population grows and water uses increase; that surveys were made to locate an additional source of water and that an underground water basin was located under lands located in the towns of Empire, Taycheedah, and Forest, in Fond du Lac county; that the city has purchased a tract of approximately four acres in the town of Empire and has secured options to purchase approximately 1,100 additional acres of land, most of which are in said town of Empire; that it is drilling a test well upon the four-acre tract and plans to drill additional wells on the lands which it plans to acquire, said wells to be approximately 12 inches in diameter; that there is no other adequate, feasible, and proper source of water available to the city; that the town board of the town of Empire has the powers of village boards as provided in' sec. 60.18 (12), Stats. The town board of the town of Empire enacted three ordinances, the validity of which is attacked.
The first ordinance is entitled:
"An ordinance prohibiting the drilling of a well in the town of Empire with a casing in excess of 6" in diameter, except by permission of the town board upon a showing that such well will not adversely affect or reduce the availability of water for private wells in the town of Empire."
The title of the second ordinance is as follows:
"An ordinance prohibiting the commercial sale or use of water from wells in the town of Empire other than on the premises in the town of Empire from which the water is removed, except by permission of the town board upon a showing that such use and sale will not adversely affect or reduce the availability of water for private wells in the town of Empire."
Those titles sufficiently describe the contents of the ordinances. The third ordinance complained of is designated as an interim zoning ordinance and by the terms thereof certain specified uses of property are prohibited, among which are commercial wells. Said ordinance further provides that where water is to be transported from the township, wells may be constructed only in case the town board shall have made findings similar to those stated in the other ordinances and the proprietor of the well gives adequate security against damage to users of well water in the town by the posting of a bond or contract. The city further alleges, upon information and belief, that the construction of such wells may possibly affect to some degree the level of water available in wells of landowners in the vicinity. Further, upon information and belief, that under said ordinances permission to operate and construct the proposed wells cannot be obtained from the defendant town board for the reason that such wells must of necessity be larger in diameter than six inches and for the further reason that the construction thereof may adversely affect the availability of water to a number of private users of well water in said town of Empire.
The defendants demurred to the complaint. On May 3, 1956, an order was entered overruling the demurrer and the defendants appeal. On motion duly made and because of the importance of the question involved, the case was advanced to the June, 1956, assignment.
The defendants vigorously contend that they had ample authority to enact the three ordinances. It is conceded that the town board has been granted the powers of a village board.
The powers of villages are derived solely from the state through the legislature, except where the people of the state by a constitutional home-rule provision vest the village with some degree of local sovereignty. The legislature of Wisconsin has never been hostile to granting a large measure of local self-government to villages and cities. Some attempts to do so by the legislature have been held to be unlawful delegations of legislative authority. Accordingly, in 1924 a home-rule amendment to the constitution (sec. 3, art. XI) was enacted, which reads as follows:
"Cities and villages organized pursuant to state law are hereby empowered, to determine their local affairs and government, subject only to this constitution and to such enactments of the legislature of state-wide concern as shall with uniformity affect every city or every village. The method of such determination shall be prescribed by the legislature." (Emphasis supplied.)
Thereafter enabling legislation was enacted by the legislature. Now, under the provisions of sec. 61.34, Stats., villages have been vested with very broad, if not full, police powers in local affairs. In Van Gilder v. Madison, 222 Wis. 58, 267 N.W. 25, 268 N.W. 108, this subject was thoroughly reviewed. In that case the court said (p. 83):
"The power granted cities and villages by the home-rule amendment is the power to determine their local affairs and government. The amendment confers upon cities and villages no power to deal by way of charter ordinance with matters which are primarily of state-wide concern."
The home-rule amendment was a direct grant of power to cities and villages but it did not give to the legislature any additional power to delegate legislative authority to cities or villages in matters primarily of state-wide concern. Thus, the case of Muench v. Public Service Comm. 261 Wis. 492, 53 N.W.2d 514, 55 N.W.2d 40, is in point. Although in that case we were concerned with the power of the legislature to delegate legislative authority to county boards, the principle is the same.
In the Van Gilder Case, supra, it was pointed out that no attempt had been made to define what are local affairs and what are matters of state-wide concern, nor does the home-rule amendment lodge the power in the legislature to define said terms. However, matters of public policy are primarily for the legislature and a determination by it that a certain matter is of state-wide concern is entitled to great weight. By enacting sec. 144.03, Stats., the legislature has indicated that the use of subterranean waters of the state is a matter of state-wide concern, although it has done very little to regulate the use thereof. This state has always been blessed with a large supply of water, both surface and subterranean. Until recently its water supply has been abundant. However, in recent years, because of the growth of population and a concentration thereof and because of the increased use of water from subterranean sources on farms, by industries, and in homes, our supplies thereof have begun to cause concern. The legislature has further shown its interest in the matter by appropriating money for a study of the subject by a groundwater working group of the natural resources committee of state agencies. Other studies are being made by the United States geological survey and the University of Wisconsin. Presumably, when the legislature receives what it considers to be sufficient information it will enact laws that will permit some state agency to regulate the use of subterranean and other waters. We have no hesitancy in saying that the water supply of the state is a matter of state-wide concern.
In a companion case, Menne v. Fond du Lac, post, p. 341, 77 N.W.2d 703, the complaint alleges that the water basin which the city intends to tap extends not only under the town of Empire, but also under the towns of Taycheedah and Forest. We can readily concede that the tapping of this water basin by the city is a matter of local concern to the towns that will be affected thereby, and to the residents thereof. However, as was stated in the Muench Case, supra, where a matter affects the interests of local residents as well as the interests of the people in other areas of the state, the test to be applied in resolving the matter is that of paramount interest, and we deem that the interest of the people generally is paramount to that of the residents of the town of Empire. Therefore, we can find no authority, either under the home-rule amendment or under ch. 61, Stats., that would authorize the town of Empire to adopt the ordinances under attack. They are therefore declared to be invalid.
Further, in the case of Voss v. Lenerz, 256 Wis. 183, 40 N.W.2d 519, it was held that village ordinances under the police power must be consistent and not in conflict with the law of the state. As of the date of the commencement of the action, the law of the state with reference to subterranean, percolating waters is controlled by the case of Huber v. Merkel, 117 Wis. 355, 94 N.W. 354. In that case the court was considering the validity of ch. 354, Laws of 1901, which read as follows:
"Where there are two or more artesian wells in any vicinity or neighborhood, one or more of which are operated or used by any person or owner, the person or owner of such well shall use due care and diligence to prevent any loss or waste or unreasonable use of any water therein contained or flowing from the same, as would deprive or unnecessarily diminish the flow of water in any artesian well, to the injury of the owner of any other well in the same vicinity or neighborhood.
"Any person who shall needlessly allow or permit any artesian well owned or operated by him, to discharge greater quantities of water than is reasonably necessary for the use of such person so as to materially diminish the flow of water in any other artesian well in the same vicinity, shall be liable for all damages which the owner of any such other well shall sustain."
The action was brought to restrain the defendant from wasting or unreasonably using the water from two artesian wells upon defendant's land, on the ground that such use interfered with the flow of water from plaintiff's artesian well situated on his land. In the town of Germantown, Washington county, there was an area about two and one-half miles in width by five miles in length within which there were about 30 artesian wells. The plaintiff's farm was located on higher ground than that of the defendant. Apparently all of the well owners except the defendant had caps or plugs on their wells to check the flow of water when the well was not in use. The defendant refused to cap his wells and as a result thereof the water in plaintiff's well would not rise above the surface but could only be raised by means of a pump. The trial court found that the defendant maliciously allowed his wells to flow to their full capacity; that he used some of the water from his wells to supply a fishpond on his land; that he sold some, and intentionally and maliciously wasted the remainder by allowing it to flow and soak into the ground. The trial court granted the injunction and awarded the plaintiff nominal damages. Upon appeal to this court the judgment of the trial court was reversed. The court held that an owner of land had a right to sink wells thereon and to use the water from them, if the supply was percolating water, in any way he chose, or to allow it to flow away, even though he would be diminishing the water in his neighbors' wells, and even though in so doing he was actuated by malicious motives. The court further held that such right of a landowner is a property right which cannot be taken away or impaired by legislation unless by the exercise of the right of eminent domain or by proper exercise of the police power. The court held that the legislation in question was in no sense a condemnation law nor could it be sustained as a proper exercise of the police power, because it did not pretend to serve any public interest but was for the purpose of promoting the welfare of one citizen by preventing his neighbor from using his own property. So much of the decision in the Huber Case as is applicable to the facts before us is controlling, and is the general law of the state.
In addition to sec. 144.03, Stats., our attention has been called to only one other section dealing with the subject of water supply, sec. 66.066 (1a), which authorizes municipalities to acquire, own, and operate a source of water supply and necessary transmission facilities beyond its corporate limits. The ordinances of the town of Empire conflict with these general laws of the state, and that is a second reason for holding that they are invalid.
By the Court. — Order affirmed.