Wagner v. Milwaukee Cnty.

• Citation: 112 Wis. 601,88 N.W. 577
• Parties: WAGNER v. MILWAUKEE COUNTY ET AL.
• Decision Date: 07 January 1902
• Court: United States State Supreme Court of Wisconsin

112 Wis. 601

88 N.W. 577

WAGNER

v.MILWAUKEE COUNTY ET AL.

Supreme Court of Wisconsin.

Jan. 7, 1902.

Appeal from superior court, Milwaukee county; J. C. Ludwig, Judge.

Action by Edward J. Wagner against Milwaukee county and others. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Reversed.Julius E. Roehr, for appellant.

W. H. Bennett and F. E. McGovern, for respondents.

CASSODAY, C. J.

This is an appeal from an order sustaining a demurrer to a complaint in an action brought by a taxpayer in his own behalf, and on behalf of all other owners of taxable property in the county of Milwaukee similarly interested in the matters and things hereinafter set forth, to restrain the county and its board of supervisors and officers from further proceeding in the matter of constructing the viaduct therein mentioned, and from issuing, selling, or disposing of the bonds therein mentioned, or any part thereof, and from assessing, levying, or providing for the collection of any taxes upon the taxable property in the county for the purpose of paying such bond or any part thereof. The complaint alleges, in effect, that the proposed viaduct was to be constructed over what is known as the “Menominee Valley,” from Grand avenue west, at a point described, pursuant to the authority given by chapter 310, Laws 1899; that at a regular meeting of the board the resolutions, set out in full, were regularly introduced, November 27, 1900, requiring that such viaduct was to be at the place described, and to be 80 feet wide and 1,744 feet long; that bonds to the amount of $275,000 should be issued, as prescribed in said chapter, to raise money for the building of such viaduct, and the proper officers of the county were thereby directed to assess, levy, and collect a direct annual tax upon all the property of the county sufficient to pay the interest on such bonds, as the same should fall due, and also to levy and assess a direct tax sufficient to pay the principal of said bonds as the same should mature, and collect the same; that such resolution prescribed the blank form of such bonds, and by whom such bonds and coupons attached were to be signed and countersigned; that such resolutions were, at a regular session of the board held December 11, 1900, duly and regularly adopted and enacted by the board; that, pursuant to such resolutions, further proceedings were had by the board for the purpose of constructing such proposed viaduct, and, as provided in said chapter, designated the tracts of land over and upon which the said viaduct should be placed, the same being of the dimensions therein prescribed; that the board had caused plans and specifications to be prepared and filed for the construction of the viaduct, as provided in the act, and had received bids for the work and materials and construction, and was about to let contracts for such work and materials; that the same would not cost less than $275,000, for which the board was about to obligate the county by such issue of bonds; that such bonds had been delivered to the county treasurer, and he was about to sell and dispose of the same, unless restrained; that the amount of the bonds does not, exclusive of the interest, exceed a sum equal to one-fifth of 1 per cent. of the value of all taxable property of the county, as determined by the last assessment and equalization for state and county taxes next prior to March 1, 1901, and that the county of Milwaukee is the only county in the state having at present an assessed valuation of taxable property exceeding $40,000,000, although a number of counties have but little less than that amount, and are increasing in their assessed valuation each year; that, pursuant to the action of the board at its regular meeting mentioned, the officials of the county were about to assess, levy, and collect such direct annual tax, and will unless restrained; that, if allowed to proceed, the plaintiff and other taxpayers would have no adequate remedy at law; that chapter 310, Laws 1899, was illegal and void, and such action of the board of supervisors thereunder was illegal and void.

The act in question is entitled “An act to authorize the building of viaducts across gullies, running streams or railroad tracks, by the counties in this state, and for the issuing of county bonds therefor.” The first section of the act provides, among other things, that “the county board of supervisors of any county within this state, is hereby authorized and empowered to alter, erect, construct and maintain any viaduct not less than 1,000 feet in length, the cost of construction of which, together with the right of way therefor, shall be not less than the sum of $80,000, over and across any gully, river, valley or depression in land for the purpose of connecting two or more highways, streets or roads, or different parts of the same highway, street or road; * * * but no such viaduct shall be constructed by any such county at the expense thereof which shall be less than 1,000 feet in length or less than 60 feet in width, or of an average height of less than 18 feet, or the cost of which, including the right of way therefor, to be determined by estimate procured by such county board, shall be less than the sum of $80,000.” The fourth section provides, in effect, the manner of construction, and the kind of material to be employed; the size, strength, and dimensions of the different parts of the foundation, and the material from which it must be constructed; and when constructed over a navigable river it must have a suitable draw, and when across or over a railroad track not less than 23 feet above the rails. The seventh section provides, in effect, that whenever the construction of a viaduct shall have been determined upon, agreeable to the conditions of the act, the county board is thereby authorized and empowered to issue bonds of such county for the purpose of raising money, as mentioned, “provided that the amount of bonds so issued shall not, exclusive of interest, exceed a sum equal to one-fifth of one per cent. of the value of all taxable property of said county, as determined by the last assessment and equalization for state and county taxes next prior to the issue thereof.”

Counsel contends that the act in question is void for the reason that it is repugnant to the provisions of the constitution, which declare that “no private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title.” “The legislature shall establish but one system of town and county government, which shall be as nearly uniform as practicable.” Sections 18, 23, art. 4, Const. There can be no question but what the title of the act is general, and may apply to any county in the state, if the provisions of the act do not prevent. So most of the sections of the act, in terms, apply to any county within this state. But it is contended that by reason of the provisions of the act set forth in the complaint, and above mentioned, the act is local and special....