State ex rel. Busacker v. Groth

• Citation: 112 N.W. 431,132 Wis. 283
• Parties: STATE EX REL. BUSACKER v. GROTH ET AL.
• Decision Date: 21 June 1907
• Court: United States State Supreme Court of Wisconsin

132 Wis. 283

112 N.W. 431

STATE EX REL. BUSACKER

v.GROTH ET AL.

Supreme Court of Wisconsin.

June 20, 1907.

Dissenting Opinion, June 21, 1907.

Appeal from Circuit Court, Milwaukee County; Warren D. Tarrant, Judge.

Quo warranto by the state, on relation of Carl F. Busacker, against John A. F. Groth and others. From a judgment dismissing the complaint, relator appeals. Affirmed.

Quo Warranto. Appeal from a judgment of the circuit court for Milwaukee county dismissing the complaint after order sustaining a demurrer thereto, and time to plead over had expired. The respondents, John A. F. Groth, Louis Manegold, Timothy Driscoll, August F. Zentner, and W. E. Chase, were elected by the county board of supervisors of Milwaukee county, trustees under chapter 94, p. 157, Laws 1905, and were holding and exercising such office under said appointment. The relator is a member of said county board, a citizen, taxpayer, and freeholder. Milwaukee county had adopted the county system of support of the poor, and for such purpose a county hospital, a county poor farm, and almshouse, waterworks, and a department of outdoor relief had been established. It is contended that chapter 94, p. 157, Laws 1905, is unconstitutional and void because in conflict with section 23, art. 4, Const. Wis. The provisions of that law will be found stated in the opinion.

Cassoday, C. J., and Winslow and Dodge, JJ., dissenting.Lyman G. Wheeler and Charles B. Perry, for appellant.

Churchill, Bennett & Churchill and John A. F. Groth, for respondents.

TIMLIN, J. (after stating the facts).

“The Legislature shall establish but one system of town and county government which shall be as nearly uniform as practicable.” Section 23, art. 4, Const. This section of the Constitution has been many times before the court, more frequently with reference to counties than to towns, although it refers to each in the same terms. At and prior to the time of the adoption of the Constitution there existed considerable diversity in town and county government in the territory of Wisconsin. In some counties there were three county commissioners elected at large, and in some a board of supervisors consisting of the chairmen of the town boards of the constituent towns. By the Revised Statutes of the territory (Rev. St. 1839, pp. 103, 104, §§ 1-9) there appears to have been a uniform system of county government vested in a board of three county commissioners whose general powers were provided for by section 13, p. 105. Soon after this the Territorial Assembly began to organize town governments by special acts and also to organize new counties, some of which were governed by a board of county commissioners and some by supervisors. Towns were organized, but the local governments thereof were not uniform. So that on the whole there was considerable diversity in town and county government. Rev. St. 1849, § 25, c. 10, provided that the county board of supervisors should consist of the chairmen of the boards of supervisors of the several towns and the supervisors in any city in the county who were authorized to sit in the county board (section 7, Id.); that the powers of a county as a body politic and corporate could only be exercised by the board of supervisors thereof; and (section 27, Id.) prescribed the general powers of the county board in outline similar to the present statute; (section 28, Id.) conferred certain special powers upon them subject to such modifications and restrictions as the Legislature should from time to time prescribe. Subdivision 6 of section 27 provided among the general powers of the county board that such board should have power “to represent the county and to have the care of the county property and the management of the business and concerns of the county in all cases where no other provision shall be made.” This continued in force down to the present time. Subdivision 6, § 669, St. 1898. The earlier decisions of this court construing section 23, art. 4, Const., seem to place considerable stress on this section as a prohibition against the enactment of special laws for a particular town or county. State ex rel. Peck v. Riordan, 24 Wis. 484, 492 (1869); State ex rel. Keenan v. Supervisors of Milwaukee County, 25 Wis. 339 (1870). In the case last cited it is said: “In this they must have aimed at the evil of special legislation. That this is a great and serious evil every one at all familiar with legislative experience knows. The membersare constantly annoyed by persons among their constituents who are anxious to amend the laws regulating their local concerns. The local member naturally yields to the local pressure, whether in harmony with his own views or not; and the Legislature, usually without much consideration, enacts such local measures as the local members may ask. And thus the public time and money are spent in enacting laws that are frequently of an unwise and improvident character. It is an evil that there have been many efforts to check; and I can conceive of no other motive for the clause in the Constitution requiring the system of county and town government to be as uniform as practicable except to prevent such special legislation, varying the system in different localities, as might not amount to an actual destruction of its unity.” Somewhat similar views are expressed in State ex rel. Peck v. Riordan, supra, which was the first case that arose calling for the construction of this constitutional provision. If we look at the volume of Private and Local Laws each year, swelling from 396 pages in 1861 to 1,469 pages in 1868, and glance through the pages of the latter, we will find much to confirm the statement of the learned justice that special legislation at that time had grown to be a great and serious evil. Of the first 100 acts of the Legislature recorded in the Private and Local Laws for 1868, 40 are special acts relating to the local government of towns and counties and a cursory examination of the remainder of the volume would indicate that about that proportion held good throughout. In 1871 an amendment to the Constitution was consummated by which it was provided:

“Sec. 31. The Legislature is prohibited from enacting any special or private laws in the following cases: 1st. For changing the name of persons or constituting one person the heir at law of another. 2d. For laying out, opening or altering highways, except in cases of state roads extending into more than one county, and military roads to aid in the construction of which lands may be granted by congress. 3d. For authorizing persons to keep ferries across streams at points wholly within this state. 4th. For authorizing the sale or mortgage of real or personal property of minors or others under disability. 5th. For locating or changing any county seat. 6th. For assessment or collection of taxes or for extending the time for the collection thereof. 7th. For granting corporate powers or privileges, except to cities. 8th. For authorizing the apportionment of any part of the school fund. 9th. For incorporating any town or village or to amend the charter thereof.

Sec. 32. The Legislature shall provide general laws for the transaction of any business that may be prohibited by section thirty-one of this article and all such laws shall be uniform in their operation throughout the state.”

These sections are now a part of article 4 of the Constitution except that section 31 has been since amended so as to prohibit special or private laws for incorporating any city, as well as for towns or villages. It may be useful to classify the cases that have arisen under section 23, article 4, with reference to the subject of litigation, rather than to arrange them chronologically, or merely classify them into those which hold certain legislative acts valid and those which hold other legislative acts invalid.

First. With reference to the number of supervisors in counties: Where a special law provided for a county board of eight supervisors in a certain county which under the general statute relating to county government would have but three, there is a conflict with the section of the Constitution in question, and the special act is void. It is said that uniformity was here attainable, the diversity unnecessary, and that the act was special. State ex rel. Peck v. Riordan, supra. Notice that this same opinion treats as valid a general law regulating the number of supervisors not uniform in its operation, but only uniform with respect to a class created by other laws making assembly districts. Where a general law provided that in counties containing only one town the board of super visors of that town should constitute the county board, while in all other counties the county board consisted of the chairman of the several town boards of supervisors, the law was held valid. Cathcart v. Comstock, 56 Wis. 590, 14 N. W. 833. Where the general law provided for the election of one member of the county board of supervisors from each ward and part of a ward of every city, and the city of Chilton, in Calumet county, had three wards, but the charter of that city provided that the mayor of the city should be the sole representative of the city in the county board of supervisors, thus giving the county two less supervisors than other like counties electing under the general statutes, the charter provision was held valid upon the ground that absolute uniformity is not demanded, but only uniformity as nearly as practicable, and that the Legislature determined that such uniformity of representation in this county board as so constituted would thus be secured within the scope and intent of this constitutional provision. Nothing is said as to whether the charter provision was or was not considered a special act of the Legislature. State ex rel. McCoale v. Kersten, 118 Wis. 287, 95 N. W. 120 (1903).

Second. Additional officers authorized to perform part of the duties which the general statutes impose...