Thе improvements of which plaintiff complains were made by the County of La Crosse upon an undertaking by the City of La Crosse to save harmless the County of La Crosse from all damages which said county may be required to pay to any person on account of the making of said improvements under and pursuant to the provisions of seс. 66.12 of the Statutes. That section reads as follows:
“ (1) Any county containing a city of the third class may provide for the imprоvement of the water supply in any river within such county, for the purpose of preservation and protection оf the health and safety of the residents of such county, by replacing and restoring the banks of such river and the confinement of the waters of such river to its channel by means of closing all passages from such river, including chutes and sloughs, through which thе waters of such river flow, and by such other means as the board of supervisors of such county may deem necessary and proper.
“(2) The city council of any city of the third class within such county may by ordinance assume on behalf of said сity all liability on account, of any and all claims, demands, actions and causes of action of every nature аrising from injury to private property on account of flowage, inundation or seepage due to such improvеment, and such city council may appropriate such moneys as are necessary to pay, litigate or dеfend against all such claims.”
Although not suggested or argued by counsel, the constitutionality of this statute immediately challengеs our attention. It confers upon counties containing a city of the third class certain powers and governmental functions not conferred upon other counties. Sec. 23, art. IV, of the constitution provides that “The legislature shall еstablish but one system of town and county government, which shall
Where legislation upon a given subjeсt is required to be by general law, such requirement is complied with by proper classification and the law relating to the subject being made applicable to all within the classes created. The constitutional provision as to сounty uniformity, however, requires that there shall be but one system of town and county gov-, ernment, and that system shall be as nearly uniform as practicable. Deviations from the established system are permitted, but such deviations must arise from circumstances rendering the established system impracticable under the peculiar circumstances compelling the deviаtion.
In State ex rel. Melms v. Young,
“The significant thing is that a general law applicable to a class of counties providing for a departure from uniformity in county government must rest on facts and existing conditions showing that it is not practicable to carry "on the county government in such particular class in the*585 manner that the statute provides for carrying on the county governments in counties generally throughоut the state. It follows from this that the generally accepted grounds upon which a legislature may classify subjects for gеneral legislation are not sufficient when- it attempts to classify counties within the held relating to the system of county government under the mandate of sec. 23, art. IV. The terms of this constitutional provision expressly inhibit departure from the establishеd uniform system of county government unless it is manifest that it is not practicable to carry on such uniform system of government in a dеsignated class of counties.”
The classification here attempted is most unreasonable. It is based upon the fact that counties have within their borders cities of the third class. It authorizes such counties to make certain improvements in rivers for the purpose of promoting the public health. Why should counties having within their borders cities of the third class enjoy such powers while the same are denied to all other counties of the state? What is there about cities оf the third class, as distinguished from cities of all other, classes, which gives rise to problems concerning the public health which may not arise by reason of the presence of cities of any or all other classes? The classification is purely arbitrary, and very strongly suggests that the law was passed for the purpose of meeting a particular situation. We do not think the Reports of this court reveal a more flagrant disregard of the constitutional provision we are considering. Its offense against such constitutional provision is much plainer than were the laws considered in Kroeplin v. County of Milwaukee,
This conclusion effectuаlly disposes of the casé, and it becomes unnecessary to discuss the many interesting questions so ably briefed by counsel оn both sides of the case. It follows that the act of the county in diverting the waters of Black river over plaintiff’s lands is unauthorized, and that the plaintiff is entitled to the relief prayed for.
By the Court.- — Judgment reversed, and cause remanded for further proceedings according to law.