An analysis and exposition of the constitution of the state of Wisconsin

Front matter

AN

Copy 1

ANALYSIS AND EXPOSITION

Preface

The reason for the existence of this little book is to be found in the amendment to our school law, enacted by the legislature of 1871, which requires the constitution of the United States and of the state of Wisconsin to be taught in our common schools, and studied by our teachers in order to receive certificates.

'The object of this law is to acquaint our citizens with the principles of our government and the machinery used in carrying it on. The only way in which this knowledge of our civil government can be enforced, by law, is through our common schools and their teachers. Directly, this law affects only the teachers and pupils in our public schools; but, indirectly, it reaches a great number of parents and friends whose attention is called to the subject through them.

The author hopes that this little work will supply the demand thus created for a short and simple exposition of the constitution of this state, which shall unfold the principles and philosophy of our government, as well as explain the legal phraseology of the constitution, and which shall be adapted for school use, while at the same time it may be a convenient hand book of study and reference for those citizens who care to study the theory of their government.

For the benefit of students an analysis of the whole constitution, and of each article is given. For the benefit of teachers some suggestions upon the methods of teaching the constitution are given in an appendix. For the benefit of citizens, abstracts of those decisions of the supreme court which interpret the constitution, are given in foot notes. These abstracts are usually

4 Preface.

quoted from Simmons' Digest, but every reference has been carried back to the original reports of the supreme court, and wherever Simmons' abstract did not answer the purpose of this work a new one has been made. Every effort has been made to secure absolute accuracy in the references to these decisions. In order to give the text of the constitution as it now is, the amendments are inserted in their proper places, while the sections amended are given in the original form in the foot notes ; and those parts of the constitution which have expired by their own limitation or which are indirectly abolished by amendments are enclosed in brackets, except in the case of the first legislative apportionment, given in article XIV, section 12, which, because of its length, is omitted.

In the preparation of this work a prime object has been to make it concise and, therefore, cheap in price, so as to bring it within the means of every voter and of every teacher and advanced pupil in our schools. It has not been possible within these limits, therefore, to answer every, collateral question that could be asked about matters referred to in this constitution. Readers of this work are referred- to the Legislative Manual, to the statutes of the state or to any good lawyer for answers to such questions.

The thanks of the author are due to Gen. Samuel Fallows, state superintendent of public instruction, for the first suggestion of the plan of this work, and for much valuable assistance and counsel since. His thanks- are also due to H. H. Hatch, Esq., of New Lisbon, one of the soundest lawyers in this state, for much valuable help, especially upon articles I and VII, where a clear knowledge of legal terms and methods is most needed.

TABLE OF CONTEXTS.

Page.

PRELIMINARY MATTER 3-7

Preface 3

Table of Contents 5

General Analysis of the Constitution of Wisconsin 7

ANALYSIS AND EXPOSITION 9-164

Preamble 9

Art. I. Declaration of Rights 12

II. Boundaries

III. Suffrage 46

IV. Legislative 54

V. Executive 80

VI. Administrative

VII. Judiciary 97

VIII. Finance 119

IX. Eminent Domain and Property of the State 125

X. Education 130

XI. Corporations 136

XII. Amendments 144

XIII. Miscellaneous Provisions 147

XIV. Schedule 154

APPENDICES 165-175

Suggestions to Teachers 165

Questions for Oral Teaching 170

Topics fob Collateral Sttjdt 174

GENERAL ANALYSIS

OP THE

THE GOVERNMENT OF WISCONSIN.

1. Preamble, Art.

2. What the Governing is For (Declaration of Rights), I

3. What is to be Governed (Jurisdiction), II and IX

Who represent the people (the voters), - - III

Legislative, - IV

4. How it is to be Governed (Forms and Powers of Government).

Who represent the vot- Executive, - - V

ers (Representative < Administrative, VI

Powers). j Judicial, - -VII

Educational, - X

Financial, - VIII

(Special limitations). -( Corporations. - XI

[ Miscellaneous, XIII

5. How the Government may be Changed (Amendments), - - XII

6. How the Change from Territory to State shall be Made

(Schedule), XIV

CONSTITUTION OF WISCONSIN.

PREAMBLE.

TVe, ] the people of Wisconsin, -grateful to Almighty God for our freedom, Hn order to secure its blessings, 4 form a more perfect government, Mnsure domestic tranquillity and "promote the general welfare, do establish this constitution.

This preamble is plainly taken from the preamble to the United States constitution, with some changes. Notice the order in which the objects of the constitution are given: First freedom, then govemmemt, and then the two great ends of government, domestic tranquillity and the general welfare.

'The people are the source of all political power in Wisconsin, and "the people of Wisconsin" establish this constitution. Thus the very first words of the constitution show the republican form of government in this state, which is guaranteed to all the states by the United States constitution. This constitution is not granted by a monarch who can take it away again when he pleases; nor is it established by a few nobles for their own benefit. Here, in America, we are all sovereigns, and make laws and constitutions to suit ourselves. And, therefore, the preamble states that it is the people of Wisconsin who make this constitution.

*It is very proper for the people of the state in framing the constitution to express their thanks to God. This does not establish any religion, for this constituio Constitution of Wisconsin.

tion (Art. I, sects. 18 and 19) guarantees complete freedom of religion. But it does mean this: That the people of Wisconsin believe in God and worship Him; and believe, moreover, that they owe their freedom to Him.

3 The first and greatest object of Americans always is " to secure the blessings of freedom." And in accordance with this, the first article of our state constitution is a declaration of rights, intended to secure the blessings of freedom to every person in Wisconsin, citizen or foreigner, of whatever color, race, age or sex. And then the constitution goes on to arrange the machinery of government, so as to " insure domestic tranquillity and promote the general welfare."

4 To secure the blessings of freedom, we need a settled government with good laws, justly carried out. It is not enough to be free ; we must be protected in our freedom from being oppressed by any one else ; and this can only be done by a regular and a just government.

Before this constitution was adopted and the state admitted to the union, the government of Wisconsin was territorial. It was a territory of the United States, and it was governed by the United States. The governor and judges of the territory were appointed by the President, and the laws passed by the territorial legislature could be overruled at any time by Congress, and, indeed, Congress could, if it pleased, have abolished the legislature altogether, and itself made laws for the territory. But when this constitution was adopted and Congress had made the territory of Wisconsin a state, with this constitution as its fundamental law, " a more perfect government " was formed. Within the limits fixed

Constitution of Wisconsin. n

by the United States constitution, the people of the state can now manage their government to suit themselves. The state government is "a more perfect government" than the territorial government was.

6 A good government will " insure the domestic tranquility " by preventing riots and insurrection, by restraining crimes of every kind, and by defending the state against war or invasion. And these things the constitution provides for.

e Besides these, a good government will " promote the general welfare " by promoting education, by fostering agriculture, manufactures and commerce, and by securing to every man, woman and child in the state, a fair chance in life. These things the constitution provides for either directly or indirectly. And thus the constitution fulfills the objects set forth in this preamble, as we shall see by the farther study of it.

Constitution of Wisconsin.

ARTICLE I.

DECLARATION OF RIGHTS.

Sec.

1. General Principle — Government is established to secure personal

freedom 1

a. Slavery prohibited, 2

b. Freedom of speech guaranteed, 3

c. Freedom' of assembly and petition guaranteed, - 4

d. Legal justice guaranteed— 1. Trial by jury guaranteed, - - 5

tv* /i^f^n/i 2 - Excessive bail and punishment

ants i forbidden,

anib, 3< A fair trial guarantee( j i .

t 4. Fair preliminaries guaranteed, - To prosecutors,

1. Treason defined, -

2. Rights of search limited,

3. Bills of attainder and corruption! of blood forbidden, - - - !

2. Sticial I 4. Ex post facto laws forbidden. Applications. • 5. Contracts not to be impaired, - J

6. Private property respected by the

Powers of State, -....- 13

Govern- 7. Feudal tenures prohibited, - 14

ment a- J 8. No distinction against resident

gainst in- 1 aliens, 15

dividual s [Freedom of per-

limited, q -n phtnrQ , ri<yllt « j son, - - 16

y. Debtors rights -j Exemptiou f

L property, - 17 ( For ihdivid-

10. Religious Freedom -j uals, - 18 ( For officers, 19

11. Military always subordinate, - 20

12. Writs of error guaranteed, 21

3. How Freedom is to be Maintained, 22

Section I

! A11 men are born equally free and independent, and 2 have certain inherent rights ; among these are life, liberty, and the pursuit of happiness. 3 To secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.*

1 All men are born equally free and independent; but freedom and independence do not consist in having a

* This section is taken with very slight change, from the Declaration of Independence. Compare the following extract from that document with the section of the constitution of Wisconsin, given above:

" We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are life, liberty and the pursuit of happiness, that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.' 11 voice in the government, but only in being justly ruled and protected by a government of our own choice.

2 There are two kinds of rights, inherent rights and conventional rights. Inherent rights are those rights that belong to everybody everywhere, and which it is the business of the law always to secure. Conventional rights are those that are given by law or by custom that has the force of law; and since they are given by law, they can be repealed by law. Inherent rights can be taken away by law, unjustly; for laws are not always just. Conventional rights may justly be taken away by law; for what the law has given, the law can take away.

For instance, the right to vote is a conventional right. The constitution, for various reasons, forbids certain persons to vote — women, children, persons who have come into the state within a year, wild Indians, convicts, United States soldiers and sailors. These persons cannot complain that the principle stated in this section has been violated; for the right to vote is not an inherent, but a conventional right. The people of the state, should they see fit, can extend the right to vote to any or all of these classes; or, if they see fit, can still further restrict the right to vote by shutting out other classes, and no one can reasonably complain. But if, because of the restriction or the extension of the suffrage, the inherent rights of any class are put in danger, they can rightfully complain; not because of that restriction or extension of the suffrage, but because of the consequences that flow from it in violation of their inherent rights.

Again, the right to hold property, subject to a reasonable taxation from the state, is an inherent right.

The government has no right to take any one's property from him without paying him for it, or to let any one else take it from him at all without his consent. A man has always the right to his earnings ; for it is with them that he buys the means of life and happiness, and it is the business of government to protect him in that right. But nobody has an inherent right to some particular kind of property ; like land, for instance. The ownership of land is only a conventional right, and, therefore, the state reserves to itself, in Article IX, the right of " eminent domain," and will take a man's land whenever it is needed for a street or any other public purpose, whether he is willing to let it go or not. But, though the state can thus justly break through his conventional right to hold land, it cannot justly take away his inherent right to his property, and, therefore, the Constitution provides (I, 13) that whenever the state takes away anyone's land, it must pay him a fair price for it.

These examples will show the distinction between inherent and conventional rights, which must be kept carefully in mind all through this article. The object of this Declaration of Rights, with which our State Constitution so nobly begins, is to secure the inherent rights of every person who comes within the jurisdiction of the State. The line between inherent and conventional rights is very carefully and ably dra;vn. And it is to secure these rights by some power stronger than a bit of printed paper that the machinery of the state government was established in the rest of the constitution.

3 The end of all government is to secure us in our individual freedom. A government that does not do this, is not worth having. The first duty of every government, whether it is that of a king, of a few nobles, or of the people, is to secure the subjects or citizens of that government in those inherent rights, without which they cannot be truly free. The right to life, to personal liberty, to have a fair chance in life, and to seek our happiness as we please, so long as we do not infringe on the rights of any one else, are inherent rights. To secure them is the object of all government. There is no peculiar sacredness in any institutions of government. They are but the means by which the end of good government is attained. Any form of government needs the consent of those who are governed, and, if it becomes oppressive, they have a right to change it. Acting on this principle, expressed in the Declaration of Independence," the founders of American liberty revolted from the English government and established one of tleir own. And should the government of this State ever become oppressive and unjust, the people of the State will, doubtless, change it — peaceably if they can, forcibly if they must.

Section II

1 There shall be neither slavery nor involuntary servitude in this state, -other than for the punishment for crime, whereof the

party shall have been duly convicted.

"When the state constitution was adopted, African slavery was allowed in many states of our union, and it was, therefore, necessary for the state of Wisconsin to

*"That to secure these rights governments are instituted among: men, deriving their just powers from the consent of the governed; and that whenever any form of government becomes destructive" of these ends, it is the right of the people to liter or abolish it. and to institute a new government, laying its foundation on such principles, and organizing its powers in such form as to them shall seem most likely to effect their safety and happiness."

put itself on one side or the other of this question. This state prohibited slavery by this section. This provision in our state constitution is now made needless by the thirteenth amendment to the United States constitution, which prohibits slavery everywhere in the United States, and, of course, in Wisconsin as well as elsewhere ; so that now, even if the people of Wisconsin should repeal this section, that would not bring slavery here*.

Slavery violates the inherent right to liberty and the pursuit of happiness, and is, therefore, prohibited justly and consistently with section I. of this article.

2 A person may be shut up in the state's prison, and thus have his liberty taken away, whenever he shows that he is a dangerous character by doing some crime. His right to liberty and the pursuit of happiness is taken away from him for these reasons : to stop him for a time from infringing on other people's rights, to reform him, if possible, and to prevent others from committing like crimes, by fear of a like penalty.

Section III

Every person may freely speak, write and publish his sentiments on all subjects, 2 being responsible for the abuse of that right, and no laws shall be passed to restrain or abridge the liberty of speech or of the press. 8 In all criminal prosecutions or indictments for libel, the truth may be given in evidence ; and if it shall appear to the jury that the matter charged as libelous be true, and was published with good motives and for justifiable ends, the party shall be acquitted, 4 and the jury shall have the right to determine the law and the fact.

*Next to the right to life and to liberty of body, is the liberty of speech. In most countries it has been thought that it is not safe to let people speak or write what they

*The wording of the thirteenth amendment to the U. S. constitution is plainly taken from this section and other similar sections in the constitutions of other states, and from the Ordinance of 1787.

please. Bin in the United States the people govern, and, therefore, we are not afraid to allow free speech. In Wisconsin, as in the rest of our country, everybody can speak or write or print whatever he pleases, with one exception, named in this section.

"We have found out in America that the truth will take care of itself, if we only let it alone and give it a fair chance; and that the more we try to help the truth by law, the more we really hurt it. Freedom is the best atmosphere for truth to live in. Tennyson's words in praise of England are just as true of America:

" It is the land that freemen till,

That sober-suited Freedom chose; The land where, girt with friends or foes, A man may speak the thing lie will;

"Where faction seldom <rather< head; But by degrees t<» fufinesfl wrought, The strength of some diffusive thought Hath time and space to work and spread/' 1 The liberty of speech is limited by the rights of other

people. If we were free to say anything we chose, we

might harm other people very greatly. Therefore,

although we may speak our minds, we must not do it so

as to injure any one's reputation.* This is the rule of

the English common law, which would be our own law

on the subject, were it not for the rest of this section, as

the common law is adopted by this constitution (XIV, 13).

3 Under the common law, the rule was M the greater

the truth, the greater the libel."

*" A libel is a malicious publication, either by printing or writing, or by signs or pictures, which accuses a person of a crime, or blackens his character, or tends to expose him to public ridicule, contempt or hatred." i,Sinimons' Digest, p. 481. Wis. Reports, vol. iv.. p. 231.)

"An action for libel may be sustained for words published, which tend to bring the plaintiff into public hatred, contempt or ridicule, even though tha same words spoken would not have been actionable/' (Simmons' Digest, p. 431. Wis. Reports, vol. ix. p. 540.)

B

But under this section of our constitution, any one may tell that which will injure the reputation of another, on certain conditions: First, it must be true.* Second, the one who tells it must tell it with good motives — that is, not maliciously or spitefully. Third, he must tell it for justifiable ends, that is, not for the sake of hurting some one's reputation, but to do some good.

Under this provision of our constitution, an editor may warn his readers against swindlers by name, or publish the names and actions of any wrongdoers; any one may tell a District Board that a certain teacher is unfit to teach, or tell a merchant that his clerk is stealing from the money-drawer, or publish charges against public officers, and so on through an endless variety of cases.

4 Usually, the judge determines the law, and the jury the facts in the case; but in libel suits, under this section, the jury decide everything — the fact whether the thing charged was actually said, or written, or printed, and the law whether the thing charged is a libel within the meaning of the law. By this it is not meant that the judge has nothing to say about the law; he instructs the jury as to what the law is, and then the jury decide for themselves.

Section IV

The right of the people peaceably to assemble to consult for the common good, and 2 to petition" the government or any department thereof, shall never be abridged.

*"ln order to justify in such a case, it is not sufficient to show that the libelous matter was previously published by a third person, and that the defendant, at the time he published it, disclosed the name of such person, and believed all its statements to be true; but he must aver and prove that the plaintiff' was actually guilty of the matters reported to have been charged against him, just as he would be required to do if he had charged such plaintiff directlv with actual guilt." [Simmons 1 Digest, p. 481, Wis. Reports, vol. xiv. p. 668. ]

Constitution of Wiscoru 19

'In many countries, the government is afraid to let the people have political meetings or get up petitions for the redress of grievances. Here, any number of people may come together in any sort of societies, religious, social or political, or even in treasonable conspiracies, and, so long as as they behave themselves and do not hurt anybody or make any great disturbance, they may express themselves in public meetings by speeches and resolutions as they choose.

2 There are very few countries in which the government is so despotic that it refuses to receive petitions and to hear the complaints of its subjects or citizens. And ours being a free government, of course gives this right to its citizens. If any person or persons wish to have the laws changed in any way, they have a right to petition the legislature for that change. The legislature must receive and listen to the petition, and then it may make the change in the laws, or not, as the members may see fit. So also with city councils and county, village, town and district boards. On all things that are under their care, they nn/st receive and listen to all petitions that anybody chooses to send them; and then they may do as they please about acting on them. So, also, for anything that is in charge of any executive or judicial officer. The Governor must receive all petitions for pardon, but he can do as he chooses about granting the pardon.

The right of trial by jury shall remain inviolate: -and shall extend to all cases' at law, without regard to the amount in controversy; 3 but a jury trial may be waived by the parties in all cases, iri the manner prescribed by law.

ir Trial by jury is an ancient English custom that was meant to secure fair trials, so that the decision should not depend upon the judge alone, but also upon a number of unprejudiced citizens. With the rest of the English common law, trial by jury was brought over to this country by the English colonists, and has been adopted in every state in our Union. The constitution therefore says that the right of trial by jury shall remain inviolate.*

A jury generally consists of twelve persons chosen in such a way that they shall be impartial.f In suits before a justice of the peace, the number is usually six. In any verdict of a jury, all must agree.

2 Under the United States constitution, trial by jury is guaranteed in all criminal cases (III, 2) and in all civil suits where the value in controversy shall exceed twenty dollars (Amendment VII.). Under this section the right of trial by jury is extended to all cases at law. Equity cases are decided by the judge alone.J

*"The provision in our state constitution (I. 5), that ; the right of trial byjury shall remain inviolate, 1 refers to that right as it then existed, and means that it shall remain as fall and perfect alter the adoption of the constitution as it was at the time of its adoption. 1 ' (Simmons 1 Digest, p. 446; Wis. Reports, Vol. i., p. 401; Vol. ii., p. 22; Vol. vi., p. 503; Vol. xvi., p. 461)

t" The common-law writers applied the term ' trial by jury ' only to a trial by a jury of twelve men, and that was the legal number of jurors for the trial of all issues of fact in all courts of record in Wisconsin, at the time of the adoption of the constitution, except in cases where the parties consented to a different number: and the right to a trial by a jury of twelve is the right preserved and secured by the constitution. 11 (Simmons 1 Digest, p. 447; Wis. Reports, Vol. ii., p. 22; Vol. iii., p. 219.

The "courts of record 11 now in existence in this state are the supreme and circuit courts and the county courts, so far as they have jurisdiction of " cases at law. i; The courts of justices of the peace are not courts of record.

" An alien who has declared his intention to become a citizen, but has never been fully naturalized so as to be a citizen of the United States, is not a competent juror. 11 (Simmons 1 Digest, p. 446: Wis. Reports, Vol. v., p. 324: Vol. xvii., p. 674.)

t u The right of trial by jury does not extend to equity cases, in which by the law and practice existing at the time the constitution was adopted, the

Sarties were not as a matter of right entitled to a jury trial. 11 (Simmons' igest, p. 447; Wis. Reports, Vol. xiv., p. 461.)

Constitution of Wi 21

: A jury trial may be waived by a criminal when he pleads "guilty" in open court. There is no need of a jury to establish his guilt, since he has himself confessed it in a regular and lawful way. In criminal cases, the jury can determine only the fact, and that is determined when the plea of " guilty" is put in, and therefore no jury is needed to determine it.

In civil suits, a jury trial may be waived where both parties agree to it. In cases brought before a justice of the peace, the presumption is that a jury will not be wished, and the case will be tried without one unless either party call for a jury. In that cue . call can-

not be denied, under this section of the constitution. In civil suits before a judge, the presumption is that a jury is wished, and the case will be tried before a jury unless both parties agree to waive it.

Section VI

Excessive bail shall not be required, nor -shall excessive fines be imposed, nor 3 cruel and unusual punishment inflicted.

1 Bail is the security given that a person arrested fur any offense will appear in court and stand his trial when the time comes. When no bail is given, the person charged with the offense will be kept in jail till his trial comes off; not to punish him, for that is unlawful, under section 2; for he has not yet been " duly oonvicted n of any crime, but to make sure that he will be on hand to be tried. Should a justice of the peace ask too great bail, the case can be carried before a circuit or countv judge or a court commissioner, (VII, 23,) on a writ of

*This is copied, word for word, from the United Stare:? Constitution, (Amendment VIII) with two txiiling exceptions that do not change the sense.

habeas corpus, and the bail be reduced by him, should he think it is excessive. If a circuit judge asks too great bail, the case would be carried in the same way before the supreme court.

2 Fines and punishments are prescribed by law for each offense. The law prescribes the greatest and the least fine or other punishment, and the court must not impose a greater punishment than the greatest, or a less one than the least prescribed by law. If the law, itself, should fix too severe a penalty, the judge could decide that the law is unconstitutional, and refuse to punish the offender so heavily. No such case, however, has yet arisen in this state.