Opinion
March 6, 1964 —
March 31, 1964.
APPEAL from an order of the circuit court for Vilas county: BRUCE F. BEILFUSS, Circuit Judge of the Seventeenth circuit, Presiding. Affirmed.
For the appellant there were briefs by Edward D. Cleveland, attorney, and Whyte, Hirschboeck, Minahan, Harding Harland of counsel, all of Milwaukee, and oral argument by Mr. Cleveland.
For the respondent the cause was argued by Roy G. Tulane, assistant attorney general, with whom on the brief was George Thompson, attorney general.
The defendant appeals from an order of the circuit court for Vilas county which denied the motion of the defendant to dismiss the criminal complaint, such order also having the effect of affirming a judgment of the county court which convicted the defendant for violation of sec. 26.06(2), Stats. A criminal complaint had been made on January 4, 1962, by the district attorney of Vilas county against the defendant, Anthony Mutter. The complaint charged the defendant with unlawfully removing eight seizure notices of the state conservation commission, a violation of sec. 26.06(2).
The record includes a stipulation of facts entered into for the purpose of the trial in the county court. According to the stipulation, Vilas county, in its proprietary capacity as a body corporate and political subdivision of the state, was the owner of certain lands. Between certain specified dates from 1933 to 1945, such lands were formally entered as forest crop lands pursuant to the Forest Crop Law, ch. 77, Stats.
The defendant, Anthony Mutter, was appointed as the Vilas county forester with the approval of the county board on November 13, 2957. Pursuant to a Vilas county order of November 10, 1953, the Vilas county forester has the general duty to administer all county lands entered under the Forest Crop Law.
On August 3, 1961, the Vilas county board sent a declaration of withdrawal of said lands as forest crop lands to the Wisconsin conservation commission. On September 21, 1961, Mutter, as county forester, sent a letter to the director of the Wisconsin conservation department. The purpose of the letter was to reaffirm the Vilas county declaration of withdrawal of all Vilas county owned lands from under the Forest Crop Law effective September 30, 1961. The letter stated that Vilas county was not withdrawing these lands for purposes of sale and that as a result sec. 28.12, Stats., did not apply.
On October 5 and 12, 1961, pursuant to authority of the Vilas county forestry and land committee, Mutter caused to be published in the Vilas County News-Review an advertisement of timber sales with respect to the lands described in the stipulation. Mutter entered into timber-sale agreements on behalf of the county with four named persons, such contracts being entered into on October 2, 1961, and on November 18, 1961. Cutting and removal operations were commenced in furtherance of timber-sale agreements on all of the lands described.
After the start of cutting and removal of the timber, between December 19 and 21, 1961, the Wisconsin conservation commission caused tags to be attached to decked pulpwood so cut under said agreements on the land described. On December 24, 1961, Mutter removed eight of such tags from decked pulpwood on three of the parcels of land described in the stipulation. It is this act of removing the eight tags that constituted the offense for which the defendant stands convicted.
Mutter gave an affidavit dated May 17, 1962, which was also made part of the record when the case was before the Vilas county court. The affidavit reiterates the general nature of the duties of the defendant. An additional stipulation was entered into by Mutter's attorney and the Vilas county district attorney on October 8, 1962, which provided that on the appeal to the circuit court the said circuit court could utilize the record and stipulation from the county court. It was further stipulated that the circuit court could decide the issues on the record, papers, and proceedings filed in the county court.
The sentence, if any, imposed in the county court is not given, but sec. 26.06(2), Stats., provides that the punishment for a violation shall be as provided in sec. 26.15. The latter section provides that a violation shall constitute a misdemeanor and that punishment shall be by a fine of not less than $10 or more than $50, or by imprisonment in the county jail for not less than ten days or more than thirty days, or by both fine and imprisonment,
In the order appealed from, dated September 23, 1963, it was noted that in the circuit court the case was decided on the record which was made in the county court with no additional hearing in the circuit court.
This case presents a difficult problem in the construction of statutory law and brings to mind the comment attributed to Lord Coke:
"If it be common law, I should be ashamed if I could not give you a ready answer; but if it be statute law, I should be equally ashamed if I answered you immediately."
— Woolrych, Life of Coke, page 197. As the defendant analyzes the statutory history of the Forest Crop Law, he draws the conclusion that Vilas county was legally entitled to withdraw its lands from the state program. He bases this conclusion on the provisions of ch. 77, Stats., and particularly sec. 77.03, which the defendant urges was the controlling section at the time that Vilas county entered its lands. Such entry occurred before the enactment of ch. 195, Laws of 1959, and there is not much doubt that prior thereto a county could withdraw its forest crop lands for purposes other than sale without reimbursement to the state.Since the amendment in 1959, sec. 77.10(2)(a), Stats., provides that, "A county may withdraw county-owned lands from this chapter under s. 28.12." The latter section, which had been enacted in 1947, required reimbursement to the state and set up a formal procedure to be observed by the county board in connection with a withdrawal. The defendant argues that the 1959 change was not intended to present an exclusive means by which a county could withdraw its lands. We, however, are not able to adopt the defendant's construction. Our interpretation of the statutory language requires the conclusion that the 1959 amendment is aimed at all proposed withdrawals of county-owned lands. Accordingly, the contemplated withdrawal on the part of Vilas county required that such county follow the provisions of sec. 28.12.
The defendant also claims that the county had a contractual right under the pre-existing statutes of the Forest Crop Law, which right was constitutionally inviolable. We recognize that the language of sec. 77.03, Stats., on its face appears to support the defendant's contention. The language of the statute, in part, is here quoted:
"The passage of this act, petition by the owner, the making and recording of the order hereinbefore mentioned shall constitute a contract between the state and the owner, running with said lands, for a period of fifty years, unless terminated as hereinafter provided, with privilege of renewal by mutual agreement between the owner and the state, whereby the state as an inducement to owners and prospective purchasers of forest crop lands to come under this chapter agrees that until terminated as hereinafter provided, no change in or repeal of this chapter shall apply to any land then accepted as forest crop lands, except as the conservation commission and the owner may expressly agree in writing."
Notwithstanding the above-quoted statute, we are obliged to conclude that the legislature was not legally bound by it. The law is clear in Wisconsin that the legislature, in its relationship with municipal or quasi-municipal corporations of the state, is not obliged to heed prior legislative expressions. Thus, the legislature by statute can take away from a municipality what it has previously given to it by statute. Madison Metropolitan Sewerage Dist. v. Committee (1951), 260 Wis. 229, 242, 50 N.W.2d 424. We recently expressed a related concept in Ashwaubenon v. Public Service Comm. (1963), 22 Wis.2d 38, 125 N.W.2d 647, when we pointed out that fixed and vested rights are not obtained in connection with a waterway intrusion which had been authorized by the legislature. At page 49 of the Ashwaubenon Case, we said:
"It cannot be denied that the riparian owners have only a qualified title to the bed of the waters. The title of the state is paramount and the rights of others are subject to revocation at the pleasure of the legislature."
This court has often said that a municipal corporation does not have a vested right in an enactment of the legislature. The state retains the inherent power to redefine the relative rights of the county in the forest crop program.
The right of a county to challenge acts of the legislature is sharply restricted. State ex rel. Martin v. Juneau (1941), 238 Wis. 564, 571, 300 N.W. 187. This view is based on the fact that the county is a creature of the state and exists in large measure to help handle the state's burdens of political organization and civil administration. We recognized this concept in School Dist. v. Callaban (1941), 237 Wis. 560, 570, 297 N.W. 407, wherein we quoted from Hunter v. Pittsburgh (1907), 207 U.S. 161, 178, 179, 28 Sup. Ct. 40, 52 L.Ed. 151:
"`Municipal corporations are political subdivisions of the state, created as convenient agencies for exercising such of the governmental powers of the state as may be intrusted to them. . . . The state, therefore, at its pleasure, may . . . expand or contract the territorial area, unite the whole or a part of it with another municipality, repeal the charter and destroy the corporation. All this may be done, conditionally or unconditionally, with or without the consent of the citizens, or even against their protest. In all these respects the state is supreme, and its legislative body, conforming its action to the state constitution, may do as it will, unrestrained by any provision of the constitution of the United States. Although the inhabitants and property owners may, by such changes, suffer inconvenience, and their property may be lessened in value by the burden of increased taxation, or for any other reason, they have no right, by contract or otherwise, in the unaltered or continued existence of the corporation or its powers, and there is nothing in the federal constitution which protects them from these injurious consequences. The power is in the state, and those who legislate for the state are alone responsible for any unjust or oppressive exercise of it.'"
We reached a comparable conclusion in the recent case of Columbia County v. Wisconsin Retirement Fund (1962), 17 Wis.2d 310, 317, 116 N.W.2d 142. See also Douglas County v. Industrial Comm. (1957), 275 Wis. 309, 81 N.W.2d 807; State ex rel. Bare v. Schinz (1927), 194 Wis. 397, 216 N.W. 509.
Since the lands from which the seized logs were cut had never validly been withdrawn from entry under the Forest Crop Law, we conclude that the defendant was properly convicted of a violation of sec. 26.06(2), Stats., for his unlawful removal of the seizure notices.
By the Court. — Order affirmed.
BEILFUSS, J., took no part.