*1 Bоos, County, Petitioner, v. ex State rel. Milwaukee Auditor, County Respondent.
October 5 November 1959. *2 were briefs C. Stanley Perry, For the there petitioner Devitt, counsel, R. E. Rice and John and George corporation counsel, and oral Mr. argument by assistant corporation Perry. Stats.,
For the to sec. 269.56 (11), pursuant petitioner, Tulane, assistant there G. by Roy was оral argument the brief was John W. with whom on attorney general, Reynolds, attorney general. and oral there was brief argument
For respondent William J. of Milwaukee. O’Connor *3 in has a Milwaukee county population Dieterich, J. miles, a 1,000,000 in 246 residing square excess of people mile, 4,036 to the with about density square population in next- the state’s 1957. The cent of population per 205,000. is Milwaukee county Dane with is county largest has town any govern- in character. It no longer industrial $80,279,000. It was ments. Its 1959 budget expenditure dis- of 24 members elected by assembly has a county in towns, cities as other of by villages, tricts instead 5,484 20, 1957, it had officers county As counties. of June and the Problems of Government County and employees. Government, Univеrsity Bureau of Urban Expansion, 2, 1959, xii, 12. ix Wisconsin, March pp. pp. in- it on occasions many has had before This court constitution. art. IV Wisconsin of sec. terpretation constitution the Wisconsin provides: art. IV of Sec. but one of town system shall establish “The legislature be as uniform nearly which shall county government, as practicable.”
Thе 1959 enacted ch. 327 entitled “County Counties,” which Populous follows: provides Executive— County populous “59.031 executive in counties. Election and term (1) In each a county having of office. 500,000 more, population or a executive shall be county for a elected term of four at election to years be held on the first in each Tuesday in which April year county elected, are supervisors Monday May and he shall take office on the first in his following election. execu- tive shall be elected from residents of the at large aby vote of all majority electors qualified in the election. The first voting election under this section in a 500,000 cоunty presently (1959) having population or more shall be held on the first 1960. Tuesday April, In any county hereafter attains such such population, first election shall be held on the first Tuesday April the year the official following announcement of the federal census. Duties and powers. duties and powers be,
county executive shall without restriction because of enumeration, to: Co-ordinate and
“(a) direct executive order or other- wise all administrative and functions of the management not otherwise vested law in boards commissions, inor other elected officers. the heads of all
“(b) in the Appoint departments classi- fied service where the statutes except provide that the shall be ab)? made appointment board or commis- officers; shall, sion or other elected but he subsequent effective date this section (1959), also all appoint heads where the law that the department ment provides appoint- *4 be shall made the chairman the by or county board the county board. Such shall appointments not require the confirmation of the board. county The county execu- removal, for the tive file may charges or discharge, suspen- so sion of any persons appointed. the members of all boards
“(c) Appoint and commissions such are where after the appointments effective of this section and where the the (1959) date statutes provide shall be made that such appointment county board or the chairman of the boards and All board. to county appointments executive shall be county
commissions the to the subject county confirmation the board. executive; Administrative to “(3) county secretary The executive an administrative county may appoint staff. shall secretary who be from civil service and county exempt such additional the board staff assistants as county may to 16.44. secs. to provide pursuant executive, deputy, Compensation “(4) county fix assistants. shall the county board compensation staff executive, secretary, his administrative county assistants, staff the his that the salary county provided be to days executive shall established at least ninety prior to be increased may held fill the office and any election nor such term his term office decreased during during without his consent. hoard; to submission annual county the Message shall and otherwise county annually executive
budget. the board of county be to may necessary, communicate and shall recommend the condition of county, supervisors such matters to them for may their as he deem consideration law, other any provision Notwithstanding expedient. the аnnual for submission of he shall be responsible exercise the power to the board and may budget under sub. budget veto increases or decreases any (6). or or veto resolutions executive approve “(6) County ordinances; veto. resolution ordi- Every on proceedings shall, it becomes board before nance passed by effective, If he to the executive. ap- be presented not, it his it; if he shall return with sign he shall proves, objections, be entered at large shall objections upon shall to reconsider and the board proceed journal in whole or may be approved matter. Appropriations shall part executive and approved by the part become be law, objected returned and the part in other resolutions or for same manner as provided reconsideration, If, two thirds of the after such ordinances. the resolu- agree to pass members-elect of the resolution or ordinance or the part or оrdinance tion effective on the date to, prescribed it shall become objected *5 but not earlier than the date of passage reconsider- following ation. In cases, all such the votes of the members of the county board shall be determined by ayes and the nays names of the members for or voting the resolutiоn against or ordinance or the thereof part objected be entered on the journal. If any resolution ordinance is not re- turned the by county executive county board at its first meeting less than occurring six days, Sundays after it excepted, him, has been presented to it shall become effective unless the county board has recessed or adjourned for a in period excess of in which sixty days, case it shall not be effective without his approval. “(7) Removal office; how vacancy, The from filled. county executive bemay removed from office by gov- for ernor cause sec. pursuant to 17.16. A vacancy
office of executive shall be filled by appointment by board, chairman of the county subject to confirmation board, by electors among from the same manner as vacancies the office of county super- visor are filled under sec. 17.21 (5).”
At the time of the adoption constitution there were in operation several different systems county government. Most notably “supervisor” and the type “commission” The enactment of IV, Const., sec. art. type. was ob- intended viously to eliminate the defects and controversies inherent in a situation where multiple systems side, existed side each by carry out the same to it powers delegated legislature. to the legislature, рursuant mandate of the constitu- tion, established county governmental under system duties, all system powers, functions of government were in a board of reposed each supervisors county. 59.02, Stats.,
Sec. provides: of a as a powers can body corporate thereof, be exercised inor pursuance of a resolution or ordinance it. adopted *6 a and resolutions be adopted by Ordinances “(2) may as be may vote a such vote majority quorum by larger . law. . . a seat A of the entitled to majority supervisors All on the board shall constitute a questions quorum. un- a be determined majority supervisors present less otherwise provided.” sum-
It at this time to serve some useful may purpose matters involving this court has taken on marize position constitution, as applied art. IV Wisconsin sec. two dis- This encompasses to government. position of county government tinct First: One system aspects. adopted shall be established. Second: systems as While shall be as uniform nearly praсticable. duties in be variation out specific there may carrying in the can no variation in there be county government, problem itself. This court realizes the practicable system in a population confronts Milwaukee county having 1,000,000 $80,279,000 with an annual budget excess of and, addition, an efficient system county government, in hesitаte that not to find application and we do Stats., 59.031, counties a popula- class of having sec. 500,000, which Milwaukee is presently tion member, the “uniform as practicable” does not violate only enacted does find that sec. 59.031 presently We do tests. “one test. system” violate Stats., the executive (b), sec. 59.031 (2)
Under control beyond entirely has broad of appointment powers of supervisors. Stats., the execu- (5) (6), sec. 59.031 Under ordinances, resolutions, over veto powers has broad tive budget. of the practicable problems not unmindful
This court is functions out of government in the carrying existing rural, character, i.e., urban, counties in size and varying semirural, and semiurban.
However, the referred to can be in the changes partic char ulars of and not in the substantive county government Thus, acter a statute or nature of county government. an a commis to exercise counties allowing option adopt sion form of was held unconstitutional State government ex rel. Adams v. 257 N. W. Wis. (1934), Radcliffe 171. be made where it is
Changes government may on such in a carry practicable particular class of in the manner as counties same is carried on other *7 counties, a for there is reasonable basis diversity provided duties, and the and functions of the board county powers, remain the same. the classificаtions of counties Accordingly, v. Board was held according proper. Bingham population Milwaukee 127 Wis. Supervisors County (1906), of of 1071, and State ex rel. Scanlan v. Archibold 106 N. W. 146 131 N. Wis. W. 895. (1911), An under analysis operation county government 59, Stats., 59.031, Stats., the enactment of ch. sec. prior enactment, after its will illustrate which diversity and 500,000 will exist in a or countiеs having population the state. more and all other counties of Stats., a Under sec. 59.02 could (1), powers county be exercised board of A only by county supervisors. of the board constitutes a There vote majority quorum. 24 districts in Milwaukee are so assembly presently 24. A of the board is vote of the majority membership Milwaukee would be seven for county. quorum Stats., an Under sec. 59.031 ordinance or (6), resolution effective for six days. would be n Stats., the sec. 59.031 executive is (6), Under all acts of the board of veto over power supervisors granted can be Milwaukee overruled two- thirds be members in vote would Milwau- majority kee county. Stats.,
Sec. 59.06 (1), provides: “The board by resolution may, designating purpose manner duties thereof and prescribing reporting, authorize their chairman before 1st in to appoint any June board, committees from the members of the and the year committees the duties and re- so appointed perform such resolution.” port prescribed Stats., seс. or chairman if Under 59.06 the board (1), all committees. authorized appoints Stats., 59.031 Sec. that (2) (c), provides executive all members all boards and commis- appoint sions. 59.031, Stats., find that the of sec. following
We portions are unconstitutional: Sec. 59.031 “Such (2) (b) appoint- ments shall not the confirmation the county require exercise board.” “and may power Sec. (5) or in the under sub. veto increases decreases any budget (6).” Stats., entitled execu-
And that sec. 59.031 (6), “County ordinances; resolutions or tive to veto approve proceed- in its veto” is unconstitutional entirety. on ings enactment un- above-quoted an established execu- independent constitutional provisions *8 over the acts branch of with veto power tive government created a thereby board and check-and-balance of the county 500,000 a of or for counties more having population system mandate but one in of the constitutional requiring violation for the state. of system county government 59.031, Stats. Sec. Severability of 990.001, Stats., provides: Sec. In construing laws; rules for. of “Construction rules shall be observed unless following laws
Wisconsin 224 in
construction with a rule accordance would a produce result inconsistent with the manifest intent of legislature: of the statutes are Severability. provisions severable. The of session law are any severable. provisions If a in- the statutes or of session law is any provision valid, . . . such affect not other invalidity provisions or which can be effect without the invalid applications given provision application.”
In State ex rel. v. Zimmerman Broughton (1952), court, 398, 903, in Wis. 52 N. this State W. (2d) citing ex rel. Wisconsin Co. v. Telephone Henry Wis. (1935), 302, 316, 486, 260 N. W. said : 409) (p.
“ ‘It is well ma- established thаt elimination of even enacted, terial in an act the in- as because of provisions such does render the validity provisions, remaining ineffective, if valid thereof con- provisions part upheld stitutes, of the invalid law portion, complete independently unless it from the act some reasonable aspect, appears itself that the intended it to be effective as legislature an have enacted the valid and would not entirety part ” alone.’ 59.031, Stats., as the intent is silent of the legis-
Sec. and, therefore, lature with severability respect intent embodied sec. general prevails. stands, it executive under the rule as now after therеof, can still serve as the invalid
eliminating provisions an factor the orderly growth development important 327, ch. find the remaining provisions of a We county. law, 1959, to be a a reasonable serving complete Laws system and do not violate one purpose, 23, art. sec. IV of Wisconsin constitution. that those is declared adjudged the Court.—It
By Laws sec. 59.031 of ch. (2) (b), portions
CMCM Stats., which shall not “Such provides appointments require board,” the confirmation the of and sec. 59.031 (5), which confers the veto increases or decreases power and all of sec. budget, entitled (6), “County ordinances; executive to or veto resolutions or approve pro- veto,” 327, 1959, on are invalid. ceedings Ch. Laws is severable and of these invalidity portions chapter does not invalidate the act as a whole. denied,
The is demurrer overruled and the motion quash writ of mandamus peremptory granted. I from dissent (dissenting part). Fairchild, J. the court’s part declares the veto judgment provi- 327, sion part Laws appointment рrovision ch. 1959, unconstitutional. We must that the had in mind all presume legislature 23, constitutional art. IV. We requirements, including sec. should view the from which it departures uniformity pro- 500,000 vided for counties with more than inhabitants as modifications which the deemed legislature necessary order to make the aof government metropolitan concluded that the needs practicable. special of a an that there be metropolitan administrative officer elected at but that he have the large, and veto appointive powers provided. is before court whether the only question legis- so fanciful or
lative on is finding practicability completely unfounded that it could not have been made reality men. In the size reasonable and concentration my opinion the size and county, population complexity and the of its machinery, its governmental multiplicity all tend to reasonably conclu- support special problems ch. made Laws of that modifications sion in order to necessary provide practicable county were in a Ch. 327 county. should not metropolitan *10 as an but creation of a second system, be viewed as the needs. existing system special adaptation that Mr. Chief I am to state Martin authorized Justice in this opinion. Mr. join Broadfoot Justice County City v. Appellant, Milwaukee, Milwaukee Respondent. Committee, School 3, 1959. 5 November October