State ex rel. Sonneborn v. Sylvester

• Decision Date: 05 January 1965
• Citation: 26 Wis.2d 43,132 N.W.2d 249
• Parties: STATE ex rel. Harry L. SONNEBORN et al., Relators, v. Richard L. SYLVESTER, County Clerk of Waukesha County, et al., Respondents.
• Court: Wisconsin Supreme Court

Page 249

132 N.W.2d 249 26 Wis.2d 43 STATE ex rel. Harry L. SONNEBORN et al., Relators,
v.
Richard L. SYLVESTER, County Clerk of Waukesha County, et
al., Respondents. Supreme Court of Wisconsin. Jan. 5, 1965.

The relators are Harry L. Sonneborn and Robert H. Wills, residents of Waukesha county, Wisconsin. The respondents are Richard L. Sylvester, Carlyn Neumann, Harold W. Clemens, Donald Stewart, the county clerk of Waukesha county, city clerk of the city of Delafield, village clerk of the village of Lac La Belle, town clerk of the town of Ottawa, respectively, and the County Board of Supervisors of Waukesha county. The respondents are sued in their individual capacities and as representatives of classes consisting of all the county clerks, city clerks, village clerks, town clerks, and county boards of supervisors. A demurrer on the ground of lack of jurisdiction of this court has been previously overruled. State ex rel. Sonneborn v. Sylvester (1964), 25 Wis.2d 177, 130 N.W.2d 569. A demurrer to the merits of the complaint is now before this court for determination.

Foley, Sammond & Lardner, Marvin E. Klitsner, James P. Brody, Timothy C. Frautschi, Milwaukee, for relators.

Harold J. Wollenzien, Corp. Counsel, Waukesha, Quarles, Herriott & Clemons, L. C. Hammond, Jr., and Ross Shumaker, Milwaukee, of counsel, for respondents.

Philip B. Morrissy, Elkhorn, special counsel, for amicus curiae Wisconsin County Boards Ass'n.

Shirley S. Abrahamson, Madison, for amicus curiae League of Women Voters of Wisconsin.

Page 251

Alberg, Bell, Blake & Metzner, Madison, for amicus curiae Herman eisner.

[26 Wis.2d 47] Edwin C. Conrad, City Atty., and David Pappas, Asst. City Atty., Madison, amici curiae.

Foley, Capwell, Roley & Kolbe, by Garth R. Seehawer, Racine, for amicus curiae J. D. McMurray.

H. William Ihrig, Milwaukee, amicus curiae.

Karl P. Baldwin, Appleton, for amicus curiae Appleton Area Chamber of Commerce, Outagamie County, Wisconsin.

HALLOWS, Justice.

The complaint alleges the operation of sec. 59.03(2), Stats., specifying the composition of county boards of supervisors in all Wisconsin counties excepting Milwaukee and Menominee counties has resulted in large disparities in county-board representation. An exhibit attached to and made a part of the complaint sets forth on the basis of the 1960 census and county-board-composition figures these disparities in all counties in terms of population, number of supervisors, and percentages of the norm for each county. An overall average of the 70 counties shows the ratio of representation between the most under-represented and the most over-represented unit which elects a supervisor is over three to one, and in 67 of the counties the ratio is over four to one. In 42 of those counties the disparity ratio is over ten to one and in Wood, Racine, Iowa, Waukesha and Dane counties, this ratio is respectively 39, 46, 59, 66, and 69 to one.

As a result, a small minority of citizens in many counties can control a majority of the votes cast of their supervisors. For example, in Waukesha county 26.1 percent of the population elect a majority of the county board and the districts vary in population from 276 in the village of Lac La Belle to 18,276 in the village of Menominee Falls; in Racine county 24.7 percent of the population elect a majority of the county board and the districts range from 264 in the village of North Bay to 12,358 in the town of Mount Pleasant. In Vilas county 33.1 percent of the people elect a majority of the county board, in Marinette 23.2 percent, in Marathon 23.8 [26 Wis.2d 48] percent, in Florence county 19 percent, and in Eau Claire 21.1 percent. In Dane county 17.2 percent of the people elect a majority of the county board of supervisors and the village of Blue Mounds (population 227), the village of Brooklyn (population 216), and the village of Rockdale (population 191) each get one supervisor; the same number as the town of Blooming Grove (population 9,709) and the village of Monona with a population of 8,178). There can be no dispute that sec. 59.03(2) does in fact result in an unequal representation of the population and these facts are admitted by the demurrer.

Furthermore, sec. 59.03(2) ¹ on its face

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does not purport to provide for the election of county-board members[26 Wis.2d 49] on an equal population basis. The composition of the county board consists of the chairman of each town board, a supervisor from each city ward or part thereof in the county and a supervisor from each village or part thereof in the county. The supervisors from the cities and villages are elected as such but the town chairmen are not directly elected supervisors but hold such offices by virtue of being town chairmen, and elective office. The representation on the county board so far as the people in towns and villages are concerned is based upon such political units without regard to the number of people therein. Since the statute on its face does not purport to apportion the representative districts on the basis of population and the exhibits attached to the complaint admittedly demonstrate the disparity in the weight of votes in different districts caused by the present method of selecting county boards of supervisors, a single question is presented: Does sec. 59.03(2), Stats., specifying the composition of the county boards of supervisors in all counties containing less than a half million population and more than one town violate: (1) The equal protection clause of the 14th Amendment of the United States Constitution, and (2) Art. I, Sec. 1, of the Wisconsin Constitution?

Preliminarily, we point out that Art. I, Sec. 1, of the Wisconsin Constitution ² is framed in language of a Declaration of Rights and reminiscent of the Declaration of Independence, and many times has been held to be substantially equivalent of the due-process and the equal-protection clauses of the 14th Amendment to the U.S. Constitution. In Black v. State (1902), 113 Wis. 205, 89 N.W. 522, the court said that the section must mean 'equality [26 Wis.2d 50] before the law if it means anything,' and '[t]he idea is expressed more happily in the fourteenth amendment.' Again, in Pauly v. Keebler, (1921), 175 Wis. 428, 185 N.W. 554, it was said in referring to the 14th Amendment that the first article of the Declaration of Rights in our constitution was a substantially equivalent limitation of legislative power and 'our legislature is bound to accord all persons within its jurisdiction the equal protection of the laws.' More recently we reaffirmed the concept that Art. I, Sec. 1, is to be equated with the 14th Amendment in Boden v. City of Milwaukee (1959), 8 Wis.2d 318, 99 N.W.2d 156; Lathrop v. Donohue (1960), 10 Wis.2d 230, 102 N.W.2d 404; and Haase v. Sawicki (1963), 20 Wis.2d 308, 121 N.W.2d 876. Since there is no substantial difference between the two constitutions, we will henceforth refer only to the 14th Amendment of the U.S. Constitution.

The petitioners contend the recent decisions of the U.S. supreme court require equal representation on the one man-one vote principle and although these decisions involved the election of members of congress, state legislature or state offices, they are equally applicable to county-board elections. It is also argued the decisions of other states support the proposition...