Chi. & N. W. Ry. Co. v. Langlade Cnty.

• Decision Date: 30 January 1883
• Citation: 56 Wis. 614,14 N.W. 844
• Parties: CHICAGO & N. W. RY. CO. v. LANGLADE COUNTY AND OTHERS.
• Court: Wisconsin Supreme Court

56 Wis. 614

14 N.W. 844

CHICAGO & N. W. RY. CO.

v.LANGLADE COUNTY AND OTHERS.

Supreme Court of Wisconsin.

Filed January 30, 1883.

Appeal from circuit court, Langlade county.

This action is brought to set aside alleged taxes attempted to be imposed on the lands of the appellant in Langlade county in the year 1881. Two grounds are charged in the complaint as the basis of the action. The first is that the legislation which provided for the incorporation of towns in that county and for the organization of the county is unconstitutional, and therefore the persons assuming to exercise the taxing power had no jurisdiction or authority, and their attempted imposition of taxes is utterly void. The second is that if there was such jurisdiction the assessment was void because it was made contrary to legal rules of appraisement. The trial court held against the plaintiff upon the first ground stated, and for the plaintiff upon the second ground stated, and hence ordered a reassessment, and the tax debt legally liquidated to be paid as a condition of relief, but dismissed the complaint so far as it proceeds upon the first ground of action stated, and judgment was entered accordingly. From that order and judgment the plaintiff has brought this appeal, and claims judgment according to the prayer of the complaint.

The legislation thus complained of is, in substance and effect, as follows: Chapter 114, Laws 1879, purported to change the boundaries of the counties of Shawano and Oconto, and to create the counties of Marinette and New. The first 11 sections defined the boundaries and provided for the organization of Marinette county. Sections 12, 13, and 14, among other things, provided that all the remaining portion of the county of Oconto included within the boundaries named should constitute and be known as the county of New, which was thereby attached to and made a part of the county of Shawano, for all county and judicial purposes, until it should appear to the secretary of state, from a census duly taken, that said county of New had a population of 1,000, when said county should be organized by the election of county officers, as in other counties in this state, and also for a division of the property and liabilities of the respective counties, and that all tax certificates on lands embraced within the county of New be assigned to Shawano county, and by it held in trust for the county of New until the same should be organized, and then to be turned over to it, and that as soon as the county of New should contain the requisite population the secretary of state should give public notice of an election for all county officers, to be held and conducted at the time and in the manner provided by law for the holding of general elections.

By chapter 19, Laws 1880, the name of the county of New was changed to Langlade. Chapter 247, Laws 1880, was enacted to correct and fix the boundaries between Langlade and Shawano, and to repeal such portions of sections 12 and 13, c. 114, Laws 1879, as conflicted therewith. Chapter 7, Laws 1881, entitled “An act to change the boundaries of the counties of Shawano, Oconto, and Langlade, and to create and perfect the county of Langlade, and to establish certain towns therein,” went into effect February 19, 1881. This act newly defines the boundaries of Langlade so as to include two new townships from Shawano--towns 30 of ranges 11 and 12--and excludes six towns--31, 32, and 33 of ranges 13 and 14--embraced in the boundary prescribed by the former act, and declares these six townships to be detached from Langlade, and together with 12 sections of township 31 of range 15--detached from Oconto--to be attached to Shawano county. Sections 3 and 4 read as follows:

“Sec. 3. The said county of Langlade is hereby organized and established with all the rights, powers, and privileges by law granted and possessed by other counties of this state, and subject to all the general laws of the state prescribed for the government of such counties, except as hereinafter provided.

Sec. 4. Within 10 days after the passage and publication of this act, the governor shall appoint, in and for Langlade county, all county officers, except the chairman and members of the county board, and the said officers so appointed shall, within 15 days after the first meeting of the county board of supervisors of said Langlade county, duly qualify and enter upon the duties of their several offices, and shall, except the county judge and superintendent of schools, hold such offices until the first Monday in January, 1883, and until their successors shall be elected and qualified. The county judge and superintendent of schools shall hold their offices until the first Monday in January, 1882, and until their successors in office shall be elected and qualified. Such officers shall, for the above named terms, receive the following salaries per annum: County clerk, $600; county treasurer, $600; county judge, $100; county superintendent of schools, $300; district attorney, $300. All other officers shall receive as compensation the fees prescribed by law and no other.”

Section 5 fixed the boundaries and divided the territory of Langlade county into six towns, to go by the names of Rolling, Norwood, Antigo, Polar, Gagen, and Carpenter, and provided that they should have all the powers and privileges conferred by general laws upon other towns of this state, provided that in Antigo, Polar, Gagen, and Carpenter there should be no greater amount of taxes levied or raised by either of said towns for all purposes than $1,500 a year for the ensuing five years, except that nothing therein should affect the powers of said town boards in relation to state and county taxes. Section 6 provided that none of the towns named should be changed or vacated except by a majority vote at an annual town meeting. Section 7 fixed the place for holding the first annual town meeting in each of said towns. Section 8 fixed the time and place for holding the first meeting of the county board, and that the same should fix the amount of and approve the bonds of the county officers, with proper sureties, locate the county seat, provide offices for county officers, and transact such other business as might be necessary to complete the organization of the county. Section 9 prohibited the county board from raising a larger amount than $1,000 per year for county buildings for the five ensuing years. Section 10 directed the county board to provide for settlement between the town of Langlade (which embraced substantially the same territory as the county when first created) and three towns organized by the board of Shawano, legalized by said chapter 247, Laws 1880.

Section 11 attached the county to the tenth judicial circuit, and directed two terms therein each year, at times to be fixed by the circuit judge and at a place to be fixed by the county board. Section 12 repealed as much of all acts or parts of acts as conflict with the provisions of that act. Soon after the passage of chapter 7, Laws 1881, the governor, in pursuance of said section 4, appointed all the county officers for said county named therein, who duly qualified as such county officers, and they or their successors have ever since that time discharged the duties of their respective offices. Upon the passage of the act, and in the spring of 1881, town meetings were held in pursuance thereof in each of said several towns, and town officers elected in each of said towns, who duly qualified, and they or their successors have since continued to discharge their duties as such town officers. Rolling and Norwood each contained 36 square miles, Antigo 252, Polar 216, Gagen 420, and Carpenter 480, and all were composed substantially of wild lands. There were inhabitants in each of these several towns, some of them, however, consisting of a single settlement. In Gagen eight persons voted, six of whom had resided there for a year or more, and two were temporarily there, and there were no other residents. In Carpenter there were five persons who voted, and there were no other residents therein entitled to vote in 1881.

W. F. Vilas, for appellant, C. & N. W. Ry. Co.

Geo. W. Latta and Sloan, Stevens & Morris, for respondents, Langlade county and others.

CASSODAY, J.

Since Langlade county contained more than 900 square miles of territory, the legistature had power to change its boundaries without first submitting the question to a vote of the people, as required by section 7, art. 13, Const. The territory of the county was divided into six towns, and a name and certain prescribed limits given to each, and each declared to have all the powers and privileges conferred by general laws upon other towns of this state, except as therein provided. The act also fixed the several places for holding the first annual town meeting in each of the towns, and also the time and place for holding the first meeting of the county board of supervisors in the county. And it further appears that the several town officers in each of said towns were elected at the time of holding annual town meetings in the spring of 1881. We do not think these provisions were “ incorporating any town,” within the meaning of subdivision 9 of section 31 of the amendments to article 4 of the constitution, for the reasons given at length in Cathcart v. Comstock, ante, 833, 844, and which need not be here repeated. Not being within the prohibition of that subdivision, it clearly was not within the prohibition of section 32 of that amendment, for that provides for the enactment of general laws only for the transaction of such business as is prohibited by said section 31.

In construing the ninth subdivision of section 31, Mr. Justice TAYLOR says, in Smith v. Sherry, 50 Wis. 213; [S. C. 6 N. W. REP. 561:] “If the ninth subdivision of the amending section (31) had been omitted altogether, it is probable that the amendments would have been construed as not...