to conclude that the appointments here prescribed, in immediate connection with elections by the local voters, and by a convention intent on localizing and popularizing authority, were meant to be made at the discretion of the central authority, in accordance with an usage not prevalent since the days of the Stuarts, and which even then was regarded, both in England and America, as antagonistic to liberty and subversive of corporate rights. So far, then, as the act in question undertakes to fill the new offices with permanent appointees, it cannot be sustained, either on general principles, or on the words of the constitution. [The learned Judge then discussed the question whether the legislature might make provisional appointments to put the new system in operation, and whether the first members named in the act would rightfully hold office as provisional incumbents until appointees were named by the common council. He answered these questions in the affirmative, and held that the persons named in the act were entitled to the office as provisional appointees. CAMPBELL, C. J., CIIRISTIANCY, J., and GRAVES, J., also delivered opinions. They all concurred in the view that the legislature could not appoint members of the board of public works as permanent officers for the full term. On the question whether the legislative appointments could be sustained as a provisional measure, CHRISTIANCY, J., concurred with COOLEY, J., in holding the affirmative. CAMPBELL, C. J., and GRAVES, J., held contra.] STATE OF WISCONSIN, EX REL. BOARD OF EDUCATION OF THE CITY OF OSHKOSH v. HABEN. 1868. 22 Wisconsin, 660.1 APPEAL from the Circuit Court. Alternative mandamus to require the city treasurer of Oshkosh to pay orders drawn by the board of education in favor of Alger, a contractor on the high school building. By an act passed in 1866, the board were authorized to raise, by special tax, money for the erection of a high school building; and were also authorized, if in their judgment it was necessary, to appropriate the money so raised to the purpose of establishing a state normal school in said city. The said act further empowered the board to raise, by special tax, money for the establishment of a state normal school. Under a resolution of the board, money was raised by taxation for a high school building, and was paid over to the city treasurer. The board did not set apart any of this money for a normal school, nor did they raise any money by taxation for a normal school. In 1867, an act was passed providing, 1 Statement abridged. Arguments omitted. ED. in substance, that $10,000 of the money raised by the said tax in 1866 shall be retained in the city treasury, and that the purchase money for the site selected for a normal school in said city shall be paid out of said $10,000 when the title of said site shall be approved by the regents of the normal schools. Motion to quash the writ of mandamus. fendant appealed. Jackson & Halsey, for appellant. Freeman & Hancock, for relators. stated thus: 1. Motion denied. De DIXON, C. J. This case presents two questions, which may be Was the defendant justified in refusing payment of the orders set forth in the alternative writ? 2. If he was not, are the relators the proper parties to apply to the court for a writ of mandamus to compel him to pay them? The answer to the first question depends on the validity of so much of section 1, chap. 348, Private and Local Laws of 1867, as sets apart and retains in the treasury of the city of Oshkosh, or attempts so to do, the sum of ten thousand dollars out of the tax levied in the year 1866 under the authority conferred by chapter 236, Private and Local Laws of 1866, entitled "An act to authorize the board of education of the city of Oshkosh to levy a tax to build a school-house," which said sum of ten thousand dollars, so to be set apart and retained, was to be paid out as the purchase money for the site for a normal school in said city, to be selected and the title approved and accepted by the board of regents of normal schools. The tax levied in the year 1866, of which this sum of ten thousand dollars was a portion, was, in the words of the act by which it was authorized, levied "to be used for the purpose of erecting a suitable high school building in said city." It was lawfully so levied. It is true that the board of education of the city of Oshkosh, under whose direction the levy was made, were authorized to raise a portion of the sum or sums specified in the 6th section of the act "for the purpose of aiding in the establishment of a state normal school in said city." This authority was, however, purely discretionary; and as the board of education saw fit not to raise any money for that purpose, the inquiry is the same as if no such authority had been conferred. The question then is: Was it competent for the legislature, without the assent of the city or its inhabitants, thus to divert the funds raised and in the hands of the treasurer for the purpose of erecting a suitable high school building, and to declare that they should be appropriated, not for that purpose, but for the purpose of purchasing the site for a state normal school in the city? We are clearly of opinion that it was not. It is well settled as to all matters pertaining to vested rights of property, whether real or personal, and to the obligation of contracts, that municipal corporations are as much within the protection of the federal constitution as private individuals are. The legislature cannot divest a municipal corporation of its property, without the consent of its inhabitants, nor impair the obligation of a contract entered into with or in behalf of such corporation. See Milwaukee v. Milwaukee, 12 Wis., 93, and authorities cited. What was the act in question but a most obvious attempt, at the mere will of the legislature, to deprive the city of Oshkosh of so much money lawfully acquired for a proper municipal purpose, and, without the assent of the inhabitants, to apply it to another purpose, not municipal, but one in which all the people of the state have a common interest? Clearly no other effect can be given to it. A state normal school, as its name indicates, is a state institution established for the benefit of the people of the entire state and maintained by funds provided by the state. This will readily appear from an examination of the several statutes under which those schools are organized, and which prescribe the powers and duties of the board of regents of the same. R. S. ch. 22; Laws of 1859, ch. 94; Laws of 1865, ch. 537; Laws of 1866, ch. 116. The regents are appointed by the governor by and with the approval of the senate, and the title of the lands, buildings, furniture, books, apparatus and all other property and effects, is vested in the board, which has the exclusive management and control of the same. Το say, therefore, that the legislature can, without the assent of the proper municipal authorities or of the inhabitants, take the money of the city of Oshkosh and appropriate it to the establishment of a state normal school, is to say that it can take the money of any municipal corporation and apply it to any general state purpose. If the act had directed the money in question to be deposited in the state treasury as part of the general fund belonging to the state, or had appropriated it toward the completion of the state capital now in process of construction, the violent nature of the proceeding might have been more manifest, but it would not have been more unauthorized. The advantages incidentally accruing to the citizens of Oshkosh from the establishment of a state normal school at that place, though sufficient, with the consent of the legislature, to justify the citizens themselves, or the proper municipal officers, in levying a tax to aid in the purchase of a site or the erection of buildings, do not change the nature of the question here presented. The tax so levied must be with the assent of the citizens or proper city officers. The legislature has no power arbitrarily to impose such a tax, as that would not only be in plain conflict with the rule of uniformity in taxation prescribed by the constitution, but contrary to the general principles of law governing such proceedings. If, therefore, the legislature cannot impose a tax for such a purpose, it follows that it cannot for the same purpose arbitrarily appropriate the money of the city already lawfully raised by taxation for another. As well might the legislature, without the assent of the city, appropriate the high school building itself, after its completion, for a state normal school, as seize the funds provided by the city for the purpose of erecting it. This, we think, would be regarded by every one as wholly unjustified by any sound principle of legislation a mere act of lawless violence. The act in question, though the injustice of it may not be quite so apparent, in reality stands on no better foundation. 2. Are the relators the proper parties to apply for this writ? We think not. [On the latter ground the order below was reversed.] DARLINGTON v. MAYOR &c. OF NEW YORK. SUIT, in the Superior Court, under the statute of April 13, 1855 (Chapter 428), which provides that, whenever any property shall be destroyed or injured in consequence of any mob or riot, the city or county in which such property was situated shall be liable to an action by the owner for the damages so sustained. The statute further provides that, whenever any final judgment shall be recovered against any such city or county, the treasurer of said city or county shall, upon the production of a certified copy of the judgment roll, pay the amount of such judgment, and charge the amount thus paid to said city or county. On the trial, defendants admitted the destruction of plaintiff's personal property, by a riotous assemblage, on July 13, 1863. Defendants moved for a nonsuit; one ground of the motion being, that the effect of the statute was to deprive the defendants of their property without due process of law. The court nonsuited the plaintiff. The General Term made an order reversing the judgment of nonsuit and directing a new trial. From this order, the defendants appealed. John K. Hackett and Wm. Fullerton, for defendants. Thomas Darlington, plaintiff, in person. Cephas Brainerd and James S. Stearns, of counsel for nine hundred and fifty plaintiffs in like cases. DENIO, C. J. [After deciding another point.] The other objection is that by force of the act, if it shall be executed, what is termed the private property of the city may be taken for a public use without due process of law, and without a provision for compensation. It cannot be doubted but that the general purposes of the law are within the scope of legislative authority. The legislature bave plenary power in respect to all subjects of civil government, which they are not prohibited from exercising by the Constitution of the United States, or by some provision or arrangement of the Constitution of this State. This act proposes to subject the people of the several local divisions of the State, consisting of counties and cities, to the payment of any damages to property in consequence of any riot or mob within the county or city. 1 Statement rewritten. Arguments omitted; also the dissenting opinion of INGRA HAM, J., and portions of the opinion of DENIO, C. J. — ED. The policy on which the act is framed, may be supposed to be, to make good, at the public expense, the losses of those who may be so unfortunate, as without their own fault to be injured in their property by acts of lawless violence of a particular kind which it is the general duty of the government to prevent; and further, and principally we may suppose, to make it the interest of every person liable to contribute to the public expenses to discourage lawlessness and violence, and maintain the empire of the laws established to preserve public quiet and social order. These ends are plainly within the purposes of civil government, and, indeed, it is to attain them that governments are instituted; and the means provided by this act seem to be reasonably adapted to the purposes in view. If this were less obvious, the practice of the country from which we derive so many of our legal institutions would leave no doubt on the subject. Laws of this general character have existed in England from the earliest period. It was one of the institutions of Canute the Dane, which was recognized by the Saxon laws, that when any person was killed, and the slayer had escaped, the ville should pay forty marks for his death; and if it could not be raised in the ville, then the hundred should pay it. This irregular provision," says an able author, "it was thought would engage every one in the prevention and prosecution of such secret offenses." (1 Reeve's History of Eng. Law, 17.) Coming down to the reign of the Norman kings, we find in the statute of Winchester (13th ed., I, ch. 1, p. 1) a provision touching the crimes of robbery, murder and arson - that if the country, i. e., the jury, would not answer for the bodies of the offenders, the people dwelling in the county were to be answerable for the robberies, and the damages sustained, so that the whole hundred where the robbery was committed, with the franchises thereof, should be answerable. It is upon this statute that the action against the hundred, for robberies committed therein, of which so many notices are met with in the old books, is grounded. (Reeve, vol. I, p. 213; Second Ins., ch. 17, p. 569.) Passing by the statutes of subsequent reigns, and particularly several in that of Elizabeth, in which this remedy has been somewhat modified while its principle is steadily adhered to, we come to the 7th and 8th Geo. IV, ch. 31, which was an act for consolidating and amending the laws of England, relative to remedies against the hundred. It repeals several prior acts providing remedies against the hundred for the damages occasioned by persons violently and tumultuously assembled, and enacts a series of provisions very similar in effect with, and in some respects more extensive in their scope than those of the statute under consideration. As the hundreds were not corporations, the action was to be brought against the high constable; and on judgment being rendered, the sheriff was to draw his warrant on the county treasurer for the amount of the recovery. Ultimately, the money was to be collected by local taxation in the hundred made liable. These provisions have no direct bearing upon the present case, but are re |