State ex rel. Harbach v. Mayor

• Decision Date: 08 December 1925
• Citation: 206 N.W. 210,189 Wis. 84
• Parties: STATE EX REL. HARBACH v. MAYOR, ETC., OF CITY OF MILWAUKEE.
• Court: Wisconsin Supreme Court

189 Wis. 84

206 N.W. 210

STATE EX REL. HARBACH

v.MAYOR, ETC., OF CITY OF MILWAUKEE.^a1

Supreme Court of Wisconsin.

Dec. 8, 1925.

Petition for mandamus by the State, on the relation of Frank M. Harbach, against the Mayor and Members of the Common Council of the City of Milwaukee, to compel them to levy a state tax for the repair of school buildings in said city. An alternative writ of mandamus was issued, and respondents moved to quash such writ. Motion to quash denied, and peremptory writ of mandamus issued.Wehe & Landry, of Milwaukee (Benjamin Poss, of Milwaukee, of counsel), for petitioner.

John M. Niven, City Atty., and Clifton Williams, Sp. Asst. City Atty., both of Milwaukee, for respondents.

Walter H. Bender and Charles E. Hammersley, both of Milwaukee, and Frank R. Bentley, of Madison, amici curiæ.

OWEN, J.

This action was instituted in this court upon the petition of Frank M. Harbach,secretary of the board of school directors of the city of Milwaukee, praying for a writ of mandamus compelling the mayor and common council of the city of Milwaukee to levy a certain tax for the repair of school buildings in said city.

Chapter 247, Laws 1921, made it the duty of school boards in cities of the first class to report to the common council the amount of money required for the next fiscal year for the repair and keeping in order of school buildings, fixtures, and the repair of broken and worn-out furniture, the making of material betterments to school property, and the purchase of the necessary additions to school sites. It then made it the duty of the common council to levy and collect a tax equal to the amount of money required by the board of education for such purpose, provided that such tax should not exceed eight-tenths of a mill upon the dollar of the total assessed valuation of the taxable property of the said city. Chapter 285, Laws 1925, amended chapter 247, Laws 1921, by changing the limit of taxation for such purpose from eight-tenths of one mill to one mill.

The petition sets forth that, by virtue of his office as secretary of the board of school directors of the city of Milwaukee, he caused an examination to be made of the various school buildings to ascertain the repairs required to be made on said buildings during the year 1926, resulting in an estimate that $750,000 would be required for that purpose; that the board of school directors requested the mayor and common council to levy taxes in the sum of $750,000 to be used for the repair of school buildings in said city; that said amount exceeds eight-tenths of a mill, but is less than one mill, of the assessed valuation of the taxable property of the city of Milwaukee; that the mayor and common council have evidenced their intention of levying a tax equal only to eight-tenths of one mill upon the assessed valuation of the taxable property of the city, and petitioner believes they will levy said amount unless directed to do otherwise as a result of this action. Upon this petition an alternative writ of mandamus was issued out of this court, directed to the mayor and common council of the city of Milwaukee.

The case comes before the court upon the motion of the respondents to quash the alternative writ. The respondents concede that it is the duty of the mayor and common council to levy a tax for the purpose of raising a fund not to exceed eight-tenths of a mill for the repair of the school buildings of the city of Milwaukee. They claim, however, that chapter 285, Laws 1925, which raises the limit from eight-tenths of a mill to one mill, is unconstitutional because it is in conflict with the so-called Home Rule Amendment, which amended section 3, art. 11, of the state Constitution. That section of the Constitution, as so amended, which was in force at the time chapter 285, Laws, 1925, was enacted, reads:

“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.”

It is contended that the repair of school buildings constituted a local affair of the city of Milwaukee, and that by the constitutional provision just quoted the Legislature is prohibited from legislating upon that subject except by general law, which “shall with uniformity affect every city or every village”; that as chapter 285, Laws 1925, affected only cities of the first class, it was not a law which “uniformly affected every city or every village.”

It is obvious that the limitation placed upon the power of the Legislature, with reference to laws which “shall with uniformity affect every city or every village,” is confined to the “local affairs and government” of cities and villages. With reference to all subjects that do not constitute “local affairs,” or relate to the government of cities and villages, the Legislature has the same power of classification that it had before the adoption of the Home Rule Amendment. Respondents' contention, therefore, must rest upon the proposition that the repair of school buildings within the city of Milwaukee is a local affair of said city. If not, respondents' contention must fall. In undertaking a consideration of this question we shall not attempt any general definition of the term “local affairs,” or to set the boundaries thereof. We shall address ourselves solely to the proposition of whether the repair of school buildings in the city of Milwaukee constitutes the “local affairs” of said city within the meaning of the constitutional provision here under consideration.

Turning to the provisions of the Constitution as they existed at the time of the adoption of the so-called Home Rule Amendment, we find that by section 3, art. 11, it was made the duty of the Legislature “to provide for the organization of cities and incorporated villages,” and that by section 3, of article 10, it was provided that:

The “Legislature shall provide by law for the establishment of district schools, which shall be as nearly uniform as practicable; and such schools shall be free and without charge for tuition to all...