City of West Allis v. Milwaukee County

• Decision Date: 07 June 1968
• Citation: 159 N.W.2d 36,39 Wis.2d 356
• Parties: CITY OF WEST ALLIS et al., Appellants, v. COUNTY OF MILWAUKEE, in the State of Wisconsin, Respondent.
• Court: Wisconsin Supreme Court

Page 36

159 N.W.2d 36

39 Wis.2d 356

CITY OF WEST ALLIS et al., Appellants, v. COUNTY OF MILWAUKEE, in the State of Wisconsin, Respondent.

Supreme Court of Wisconsin.

June 7, 1968.

Rehearing Denied Sept. 9, 1968.

William T. Schmid, City Atty., West Allis, Quarles, Herriott, Clemons, Teschner & Noelke, Milwaukee, for Village of West Milwaukee.

Milton F. Burmaster, Wauwatosa, Francis W. Cathlina, City Attys., South Milwaukee, L. C. Hammond, Jr., and Ross R. Kinney, Milwaukee, of counsel, for appellants.

Robert P. Russell, Corporation counsel, Milwaukee, for respondent.

HEFFERNAN, Justice.

Does the legislative grant to the county of Milwaukee to construct and tax for the purpose of constructing refuse-disposal facilities infringe on the home-rule rights of municipalities?

Ch. 62, Stats., constitutes the general charter for cities in the state of Wisconsin, and ch. 61 contains a grant of powers to villages. Sec. 62.11(5) authorizes city councils to act 'for the health, safety, and welfare of the public.' Sec. 61.34 grants to village boards the power to act for the 'health, safety, welfare and convenience of the public.'

In Hack v. City of Mineral Point (1931), 203 Wis. 215, 233 N.W. 82, the statutory grant of power to cities was discussed. Mr. Chief Justice Rosenberry, speaking for the court (p. 219, 233 N.W. p. 84) stated:

'That sec. 62.11 confers power far beyond that conferred in the so-called general welfare clause of the general charter as it stood prior to 1921 is plain, and a city operating under the general charter finding no limitations in express language has under the provisions of this chapter all the power that the Legislature could by any possibility confer upon it.'

The mere fact that certain activities of a municipality are not proscribed and are therefore within the legislative grant of power, however, has nothing to do with the determination of the constitutional question of whether such activities are of local, as contrasted to state-wide, concern. For example, sec. 62.11, States., in general terms, confers law enforcement authority upon the local municipality. Yet, we have pointed out in Van Gilder v. City of Madison (1936), 222 Wis. 58, 267 N.W. 25, 268 N.W. 108, 105 A.L.R. 244, that certain phases of law enforcement are matters of state-wide concern.

While the power of villages and cities to construct and operate refuse-disposal facilities and incinerators is clearly within the general charter grant of power, ch. 328 of the Laws of 1957 also, and specifically, gives that authority to a county when its population exceeds 500,000.

Plaintiffs contend that this grant to the counties violates art. XI, sec. 3, of the Constitution, which provides:

'Cities and villages organized pursuant to state law are hereby empowered, to determine their local affairs and government, subject only to this constitution and to such enactments of the legislature of state-wide concern as shall with uniformity affect every city or every village. The method of such determination shall be prescribed by the legislature. * * *'

In Van Gilder v. City of Madison, supra, we concluded that, when the legislature deals with matters that are primarily of state-wide concern, it may deal with them free of any restriction contained in the home-rule amendment. The legislature can thus make effective a law touching on a matter of state-wide concern in one city and not in another, provided that the classification is proper. The home-rule amendment does not limit the right of the legislature to deal with matters of state-wide concern, even if, in so dealing, some cities and not others are affected. If however, the matter enacted by the legislature is primarily of local concern, a municipality can escape the strictures of the legislative enactment unless the enactment applies with uniformity to every city and village.

It is contended by the plaintiffs that because sec. 59.07(52)(b) and 67.04(1) (w), Stats., apply only to Milwaukee county, the law is not uniform in application and, hence, if it concerns a local affair, must yield to the constitutional right of municipalities to determine their local affairs and government.

The trial court concluded that the erection of waste-disposal facilities in municipalities was a local affair. We conclude, because he discussed them in the context of charter grants of power, that he merely was saying that it was within the legislatively delegated authority of a municipality to engage in such activities. Both parties, however, appear to assume that the trial judge made a determination in constitutional terms. The determination of that point is not necessary for the solution of this case. It should be pointed, out, however, that in construing home-rule amendments, it has generally been concluded that the disposition of garbage is a matter of state-wide concern. 2 McQuillin, Municipal Corporations (1966 Rev.Vol.), sec. 4.98, p. 175. The trial judge, however, did not base his decision on the determination of whether or not a municipality was protected from the exercise of state power by its constitutional prerogatives of home-rule. He concluded, correctly, that the home-rule amendment was irrelevant to the issue in this case.

A careful reading of the home-rule amendment, art. XI, sec. 3, makes it clear that not all of the relations between the cities and the state were to be governed by the home-rule amendment. The home-rule amendment, although empowering cities and villages to determine their 'local affairs and government,' further states that, 'The method of such determination * * * shall be prescribed by the legislature.' The legislature in sec. 66.01, Stats., prescribed the method by which those powers shall be exercised. We do not herein determine that no home-rule powers exist unless exercised by charter ordinance, but sec. 66.01 ¹ does make it clear that a city or village is to manifest its election not to be governed by a state law by the passage of a charter ordinance. The legislature intended the constitutional right 'to determine their local affairs and government' to be exercised by the passage of a charter ordinance electing not to be governed by a legislative enactment that would otherwise limit municipal activity.

The record fails to show that the municipalities herein attempted to exercise their home-rule powers by charter ordinance, the only way prescribed by statute. It is reasonable that they should not have done so, for there is no law applicable to them which they might seek to avoid. The law they object to delegated powers to Milwaukee county, an administrative branch of the state government itself. We see no evidence that the home-rule amendment was in any way intended to limit the power of the state to deal with its own agencies. Even assuming, without deciding, that the construction of incinerators and refuse-disposal facilities is a matter of local concern in a constitutional sense, it is apparent that the state is not thereby limited from conferring the same powers upon a county. The powers guaranteed by the home-rule amendment are those of self determination for a particular municipality and cannot be exercised by it to determine the affairs of other branches of government. The trial judge correctly stated that the legislative enactments that the municipalities object to:

'* * * deal with a grant of powers to counties. They do not restrict or limit any municipality in the ownership, construction and operation of incinerator facilities and dump sites not require them to use or contract for the use of facilities which may be constructed by the County.'

The plaintiffs appear to recognize the validity of the trial judge's conclusion but contend, conceding that the legislation on the face of it does not limit the cities' power, that nevertheless the practical effect is to make it financially impossible for a municipality to have its own separate refuse-disposal facilities. Although the home-rule amendment and the legislative grants of power give municipalities wide latitude in their activities, there is, however, no legislative or constitutional guaranty that those powers can be exercised with immunization from the fiscal realities of municipal government. We have said in State ex rel. Thomson v. Giessel (1953), 265 Wis. 207, 213, 60 N.W.2d 763, 766, that 'The legislature has plenary power over the whole subject of taxation.' There is no constitutional guaranty that the state's power to tax will be exercised in such a manner as to make it financially possible for a municipality to exercise all the powers that it might conceivably have. Yet, the argument of the municipalities herein is that the legislature's power to authorize a county tax is constitutionally circumscribed by the fact that such a tax calls into question the wisdom of a municipal tax for the same purpose or undermines the ability of a municipality to collect such tax. While, obviously, legislative policy questions are thus presented, they are not of constitutional proportions and are better resolved by political than judicial means.

It is undoubtedly true that our many-layered structure of local government sometimes results in an expensive duplication of function. This is the price that Wisconsin citizens have been willing to pay for substantial local autonomy. However, it has never been claimed that efficiency is the principal virtue of democracy. It may be conceded that the erection of a county-wide facility may make it unnecessary and uneconomical for local municipalities to maintain their own waste-disposal facilities. This, however, does not affect the constitutionality of the delegation to the county.

Nor do we see any objection properly cognizable by the courts in the fact that county facilities may be in part a duplication of municipal facilities. For example, county parks result in a tax upon the city taxpayer, yet they may be so located as to be of little beneficial use to the...