Vill. of Whitefish Bay v. Milwaukee Cnty.

• Decision Date: 09 February 1937
• Citation: 224 Wis. 373,271 N.W. 416
• Parties: VILLAGE OF WHITEFISH BAY et al. v. MILWAUKEE COUNTY et al.
• Court: Wisconsin Supreme Court

224 Wis. 373

271 N.W. 416

VILLAGE OF WHITEFISH BAY et al.

v.MILWAUKEE COUNTY et al.^*

Supreme Court of Wisconsin.

Feb. 9, 1937.

Appeal from an order of the Circuit Court for Milwaukee County; Otto H. Breidenbach, Judge.

Reversed.

This action was begun on January 14, 1936, by the Village of Whitefish Bay and Wynand G. Isenring, treasurer of the village, plaintiffs, against Milwaukee County and C. M. Sommers, county treasurer, defendants, to require the county treasurer to pay over to the village certain moneys collected by the county treasurer on delinquent tax rolls of the village for the years 1928, 1931, 1932, 1933, and 1934. The defendants demurred to the complaint and, from the order overruling the demurrer, entered on July 2, 1936, the defendants appeal.Herbert J. Steffes, Dist. Atty., Oliver L. O'Boyle, Corp. Counsel, and C. Stanley Perry, Asst. Corp. Counsel, all of Milwaukee, for appellants.

Geo. H. Gabel, of Milwaukee, for respondents.

ROSENBERRY, Chief Justice.

The plaintiffs seek to compel the county treasurer to comply with the provisions of section 74.19(3) as amended by chapter 504, Laws of 1935. The defendants base the refusal of the county treasurer to pay the funds in question upon the proposition that chapter 504, Laws of 1935, is unconstitutional. Whether the act is valid is the matter for decision on this appeal.

Chapter 504 of the Laws of 1935, which amended section 74.19(3) and section 74.28 of the Wisconsin Statutes for 1931, is printed in the margin. ¹ The amendments are italicized.

The defendant contends that the amendment is unconstitutional upon three grounds: (1) It offends section 23, art 4, of the Wisconsin Constitution:

“Uniformity of town and county government.Section 23. The legislature shall establish but one system of town and county government, which shall be as nearly uniform as practicable.”

(2) It offends paragraph 6 of section 31, article 4:

“Special or private laws. Section 31. The legislature is prohibited from enacting any special or private laws in the following cases: ***

“6th. For assessment or collection of taxes or for extending the time for the collection thereof.”

(3) It offends section 18, art. 4, of the Constitution:

“Private and local bills. *** No private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title.”

[1] First. Inasmuch as the amendment made by chapter 504 related only to the distribution or allocation of funds after the funds were in the treasury, it did not affect uniformity of county government. Rock County v. City of Edgerton (1895) 90 Wis. 288, 63 N.W. 291;State ex rel. Superior v. Donald (1916) 163 Wis. 626, 158 N.W. 317;State ex rel. Joint School Dist. v. Becker (1927) 194 Wis. 464, 215 N.W. 902.

[2] Second. The contention that chapter 504 is invalid because it offends against section 31, article 4, which prohibits the enactment of any special law for the assessment or collection of taxes or extending the time for the collection thereof, cannot be sustained. The defendants rely upon Pedro v. Grootemaat (1921) 174 Wis. 412, 183 N.W. 153. In that case the court had under consideration an act of the Legislature which attempted to except Milwaukee County from those provisions of the statute which required in all other counties the posting and publishing of a statement of all lands upon which taxes were unpaid and notice of sale thereof. This clearly related to the collection of taxes and enforcement of payment by tax sale. This was held to be in violation of section 23, article 4. The act under consideration in this case has nothing to do with the collection of taxes. It merely relates to distribution or allocation of the tax fund after it is in the treasury of the County of Milwaukee and therefore falls within the rule laid down in State ex rel. Superior v. Donald, supra, and State ex rel. Joint School Dist. v. Becker, supra.

[3][4] Third. We come now to a consideration of whether or not chapter 504 is a local law within the meaning of section 18, article 4. A law may be general within the meaning of section 21, article 7, of the Constitution (providing no general law shall be enforced until published), and at the same time be local within the meaning of section 18, article 4 (providing that no private or local bill passed by the Legislature shall embrace more than one subject and that expressed in the title). State ex rel. Richter v. Chadbourne (1916) 162 Wis. 410, 156 N.W. 610. In that case chapter 518 of the Laws of 1915, which abolished the county court of Fond du Lac County and created a superior court in Fond du Lac County being limited in its effect to the boundaries of that county, was held to be a local law. Chapter 504 is in form a general law because it applies to counties having a population in excess of 500,000. Into this classification other counties in the state may grow. Johnson v. City of Milwaukee (1894) 88 Wis. 383, 60 N.W. 270;Milwaukee County v. Isenring (1901) 109 Wis. 9, 85 N.W. 131, 53 L.R.A. 635.

[5] That counties may be classified according to population has been said to be no longer open to doubt. State ex rel. Scanlan v. Archibold (1911) 146 Wis. 363, 131 N.W. 895. However, in order that a classification may be valid, the basis of classification, whether it be population, area, or other basis, must be germane to the purpose of the law. This is fundamental. Johnson v. City of Milwaukee, supra, 88 Wis. 383, at page 391, 60 N.W. 270;Maercker v. City of Milwaukee (1912) 151 Wis. 324, 139 N.W. 199, L.R.A. 1915F, 1196, Ann.Cas.1914B, 199;Oliver v. Burlington (1907) 75 N.J.Law, 227, 67 A. 43.

[6] In briefs of counsel for defendant the real reason for the enactment of this statute is set out. The reason the law applicable to other counties is not practicable for Milwaukee County is that the City of Milwaukee has a special charter by which it collects its own taxes. Because of that fact, a situation exists in Milwaukee County which exists, and can exist, in no other county in the state. Counsel do not suggest, and we are unable to discover, any basis for classification resting upon population applicable to Milwaukee County that does not apply equally to every other county in the state so far as the distribution of tax moneys is concerned. This case therefore falls within the rule of Pedro v. Grootemaat, supra. While the classification in the act under consideration in Pedro v. Grootemaat, supra, was based on cities of the first class, that too has been held to be a proper classification where it is germane to the purpose of the act. As a matter of fact, the thing which makes it highly desirable to have a different system of allocating tax funds in Milwaukee than exists in other counties grows out of the fact that the City of Milwaukee as already stated has a special charter. While other counties may in the future have cities of the first class, such cities will...