Bingham v. Bd. of Sup'rs of Milwaukee Cnty.

• Decision Date: 23 February 1906
• Citation: 127 Wis. 344,106 N.W. 1071
• Parties: BINGHAM v. BOARD OF SUP'RS OF MILWAUKEE COUNTY ET AL.
• Court: Wisconsin Supreme Court

127 Wis. 344

106 N.W. 1071

BINGHAM

v.BOARD OF SUP'RS OF MILWAUKEE COUNTY ET AL.

Supreme Court of Wisconsin.

Feb. 23, 1906.

Appeal from Circuit Court, Milwaukee County; Lawrence W. Halsey, Judge.

Suit by Joel W. Bingham against the board of supervisors of Milwaukee county and others. From a decree in favor of defendants, plaintiff appeals. Affirmed.Edward T. Fairchild, for appellant.

W. J. Turner, Turner, Hunter, Pease & Turner, Francis E. McGovern, Chester B. Masslich, and Eugene Dupee, for respondents.

WINSLOW, J.

This is an action in equity, brought by a taxpayer of Milwaukee county to enjoin the issuance and sale of negotiable county bonds amounting to $450,000 for the purpose of building a viaduct across the Menominee Valley, connecting Grand avenue on the east side of said valley with Grand avenue entended on the west side thereof. Certain corporations and firms which had contracted to purchase said bonds were made defendants, together with the county officers. The bonds were about to be issued under the provisions of chapter 444, p. 731, of the Laws of 1903. The defendants answered jointly, and, the plaintiff having demurred generally to the answer, the demurrer was overruled as a demurrer to the answer, but sustained as a demurrer to the complaint, and the plaintiff appeals.

The first and most important contention made by the appellant is that said chapter 444 is a special or private law, and hence is unconstitutional under the provisions of section 31 of article 4 of the Constitution, which prohibits the enactment of special or private laws for various purposes, including the laying out of highways, assessment or collection of taxes, and for the granting of corporate powers or privileges. The law thus attacked is entitled: “An act to authorize the building and construction of viaducts across valleys, gullies, running streams or railroad tracks by counties in this state of a population of 150,000 or more and for the issuing of county bonds therefore.” The first sections provides that “the county board of supervisors of any county within this state which now has or may hereafter have according to any state or national census taken a population of 150,000 or more, is hereby authorized and empowered to erect, construct and maintain any viaduct or bridge over and across any gully, river or valley, or railroad track or tracks agreeable to the conditions and provisions of this act and subsisting laws applicable thereto, when in the opinion of such county board the erection of such viaduct or bridge shall be for the best interests of the county and inhabitants thereof, which opinion shall be rendered by resolution duly adopted by the county board of supervisors of such county, at any legal meeting thereof. Such viaduct or bridge shall be constructed of such length, width and height as the said county board of supervisors may by resolution determine.” The remaining sections of the act contain detailed provisions governing the manner in which the work shall be done, the contracts let, and the bonds issued, as well as provisions for the levying of taxes to pay the principal and interest of the bonds.

The county of Milwaukee is the only county in the state having a population of 150,000, and the claim is that this law is evidently a law passed solely for Milwaukee county, and is consequently a special or private law, and not a general one. The ultimate and controlling question is whether classification of counties by population is a proper classification as relating to legislation concerning the building of public improvements. If it be proper classification, then the law is a general one, notwithstanding the fact that there is now but one member of the class. If not, then the law must be held special. Adams v. Beloit, 105 Wis. 363, 81 N. W. 869, 47 L. R. A. 441. The general rules governing classification have been frequently stated, and may be said to be briefly as follows: The classification must be based on substantial and real differences in the classes, which are germane to the purpose of the law and reasonably suggest the propriety of substantially different legislation, the legislation must apply to each member of the class, and the classification must not be based on existing circumstances only, but must be so framed as to include in the class additional members as fast as they acquire the characteristics of the class. State ex rel. Risch v. Trustees, 121 Wis. 44, 98 N. W. 954, and cases cited on page 53, of 121 Wis., and page 957 of 98 N. W. Applying these general rules to the where attacked, it is at once seen that the classification is not based on existing facts only, but is so framed as to admit additional members, so that there is but one question, and that is whether the classification is based upon a substantial and real difference which is germane to the purpose of the law, and suggests the propriety of such a law to govern a county of 150,000 inhabitantswhile denying it to counties with lesser population. A marked and substantial difference in population is, of course, a real difference, but does it suggest the propriety of greater powers in the matter of the construction of such public inprovements than the ordinary powers possessed by smaller counties? If this question related to cities instead of counties, then there would seem to be no doubt that it should be answered in the affirmative. That large and populous cities need better, safer, and more expensive highways and bridges for the accommodation of their teeming populations, than small communities, no one will deny. The simple rural highway and the inexpensive bridge may be ample for all purposes in the village or small city, while for the congested conditions of the great city the asphalt pavement and the broad and expensive bascule bridge may be not only proper, but absolutely essential to human safety. Classification of cities by population, and the enactment of general laws for each class according to its needs, has been so often approved by this court that it has become part of the fundamental law of the state. State v. Risch, supra. No good reason is perceived why the same considerations, in a somewhat modified degree perhaps, do not justify...