Clarke v. Cnty. of Milwaukee

• Decision Date: 27 September 1881
• Citation: 53 Wis. 65,9 N.W. 782
• Court: Wisconsin Supreme Court
• Parties: CLARKE v. COUNTY OF MILWAUKEE.

53 Wis. 65

9 N.W. 782

CLARKE

v.COUNTY OF MILWAUKEE.

Supreme Court of Wisconsin.

Filed September 27, 1881.

Appeal from circuit court, Milwaukee county.

Thompson & Clarke, for respondent.

W. C. Williams, for appellant.

COLE, C. J.

Chapter 179, Laws 1861, created the office of county superintendent of schools and provided for his election. Among other things the act provided that in each county having over 15,000 inhabitants, according to the last preceding census, the county board of supervisors might, at any meeting prior to an election of county superintendent in any year, determine by resolution, to remain in force until rescinded, that two county superintendents should be chosen for such county; and the board was authorized to divide the county into two districts, to be called respectively “Superintendent District No. 1,” and “Superintendent District No. 2.” While the resolution remained unrescinded each district was required to elect a county superintendent for such district. This same act further provided that when a county contains more than one senate district, each such senate district should constitute a superintendent district, to be numbered as above provided, with an exception which we need not dwell upon. Any county which contained more than one senate district when the law took effect, would by the force of the act itself be constituted into as many superintendent districts as there were senate districts, without any action on the part of the county board. But the law not only operated upon the existing state of things, but had regard for the future. It therefore enabled the county board, whenever the county acquired a population of 15,000 inhabitants, according to the last census, to divide by a resolution the county into two superintendent districts.

Now, the obvious effect of the law, so far as Milwaukee county was concerned, which had two senate districts in 1861, was proprio vigore to make two superintendent districts corresponding with the senate districts, without any action of the county board. It appears, however, that the county board did, by a resolution adopted in October, 1861, attempt to divide Milwaukee county into two superintendent districts corresponding to the existing senate districts. It is manifest that this resolution was superfluous and unnecessary. because, as we have said, the law itself made that division and created the superintendent districts in that county. When the apportionment of 1866 was made (chapter 101, Laws 1866) the towns of Wauwatosa, Milwaukee, and Granville constituted the fifth senate district, and this had the effect to change, by implication, superintendent district No. 2, as created by the act of 1861, so as to embrace that territory, which was made the fifth senate district. The law of 1872 (chapter 178, Laws 1872) gave the county board of a county having 15,000 inhabitants, according to the last census, power at any meeting in any year to divide the county, by a resolution, into two superintendent districts. The policy of the legislature seems to have been still to make each senate district a superintendent district, except where a senate district lay wholly in an incorporated city, where a different system prevailed. This was the state of the statutes relating to this matter when chapter 342, Laws 1874, was enacted. That act was a revision of the statutes upon this particular subject, and made some changes as to the power vested in the county boards. The act still gave the county board of any county having 15,000 inhabitants, according to the last census, power, at any meeting of the board, to determine by resolution that there should be two superintendents for such county. Thereupon the board was required to divide the county into two superintendent districts, to be called, etc. This law abandoned the policy of making the limits of the superintendent districts in all c...