State ex rel. Scanlan v. Archibold

146 Wis. 363 | Wis. | 1911

KeuwiN, J.

Tbe only question involved in tbis case is whether cb. 398, Laws of 1907, is constitutional. Sec. 5 of tbis act adds to tbe statute a new section which reads as follows :

“Sec. 663a. Tbe county board of supervisors in all counties, having a population of at least two hundred and fifty thousand, according to the last state or United States census, shall be composed of supervisors chosen from each assembly district within said county. Each assembly district of said county shall be entitled to one supervisor who shall be elected for a term of two years by the electors of said assembly district.. Said election to be held on the first Tuesday in April, following the passage of this act,, and every two years thereafter. Said supervisors shall perform all the duties now prescribed by law and each member thereof shall be paid out of the county treasury the sum of eight hundred dollars per annum.”

It is claimed that this section contravenes sec. 23, art. IV,. of the constitution of the state of Wisconsin, which reads as follows:

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

This constitutional provision has often been before this, court for construction, and a very full collection and discussion of the cases will be found in the late case of State ex rel. Busacker v. Groth, 132 Wis. 283, 112 N. W. 431. The cases-in this court have been so elaborately considered in the case referred to that further discussion of them is unnecessary. It seems sufficient to say that the principle justifying the legislation in question is fully sustained by numerous decisions of this court. It may be conceded, as insisted by appellants’' counsel, that the question of uniformity is subject to review by the courts, but it must also be remembered that under the repeated decisions of this court a broad discretion is vested in the legislature in determining whether the system of government under sec. 23, art. IY, of the constitution is as nearly uniform as practicable. State ex rel. Peck v. Riordan, 24 Wis. 484, 490; Cathcart v. Comstock, 56 Wis. 590, 14 N. W. 833; State ex rel. Busacker v. Groth, supra.

It is also well settled in this state that only when the unconstitutional purpose is clear beyond reasonable doubt will a court be justified in declaring void an act of the legislature. State ex rel. Busacker v. Groth, supra; Verges v. Milwaukee Co. 116 Wis. 191, 93 N. W. 44; State ex rel. Grundt v. Abert, 32 Wis. 403.

The main contention of counsel for appellants appears to be that the classification is not germane to the objects sought to be accomplished, nor the system as uniform as practicable. It is said that, if representation by assembly districts in the county board is good for Milwaukee county, no reason can be advanced why it would not be equally as good for every county in the state. But this contention involves the question of power of the legislature to make classification.

This court laid down the general rule in Bingham v. Milwaukee Co. 127 Wis. 344, 347, 106 N. W. 1071, as follows:

“The general rules governing classification have been frequently stated, and may be said to be briefly as follows: The classification must be based on substantial and real differences in the classes, which are germane to the purpose of the law and reasonably suggest the propriety of substantially different legislation, the legislation must apply to each member of the class, and the classification must not be based on existing circumstances only, but must be so framed as to include in the class additional members as fast as they acquire the characteristics of the class. State ex rel. Risch v. Trustees, 121 Wis. 44, 98 N. W. 954.”

The election of supervisors by assembly districts was in force when State ex rel. Peck v. Riordan, 24 Wis. 484, was decided, and sucli system does not appear to be questioned by appellants provided the classification of counties be proper. But it is argued that the classification is not proper or germane to the object of the law, because many other counties in the state having a much smaller population have as large a number of supervisors as Milwaukee county with more than 250,000 population, therefore it is claimed that the system is not as nearly uniform as practicable.

Counsel contends that, because facts alleged are admitted by demurrer, the conditions set up in the complaint as existing in different counties should, for the purpose of determining the validity of the law, be taken as true. This position is untenable. The law must be tested as to its constitutionality by its language in the light of such matters as the court will take judicial notice of. State ex rel. Att'y Gen. v. Cunningham, 81 Wis. 440, 51 N. W. 724; Tenement House Dept. v. Moeschen, 179 N. Y. 325, 72 N. E. 231; State v. Cantwell, 179 Mo. 245, 78 S. W. 569.

That classification of counties according to population is proper is no longer an open question, and that, too, even though there be but one county falling within the class at the time of the passage of the law, when others may grow into the class. Bingham v. Milwaukee Co., supra; Verges v. Milwaukee Co., supra.

In State ex rel. Busacker v. Groth, 132 Wis. 283, at page 295 (112 N. W. 431), this court said:

“When we reflect that in Verges v. Milwaukee Co., supra, the question whether the law there under consideration was valid under sec. 23, art. IV, Const., was raised and decided, and when we reflect that the mandate of the constitution prohibiting the incorporation of cities or the amendment of their charters is much more direct and positive in its inhibition than sec. 23, art. IV, Const., the decision in Bingham v. Milwaukee Co. is very significant to indicate that the legislature may by general law applicable to a class of counties bring about changes in county government in particulars where it is not practicable to carry on snob government in that particular class of counties in tbe same manner in which it is carried on in other counties outside of that class.”

It must be remembered that the change made by the law under consideration affects only the number and manner of election of supervisors in the counties within the class designated in the law. The powers, duties, and functions of the county boards remain the same. The decisions of this court recognize the validity of the law now assailed, and that the conditions in populous counties, where the population is largely urban, justify legislation different than in counties of small population, mostly rural. Bingham v. Milwaukee Co. 127 Wis. 344, 106 N. W. 1071; State v. Douglas, 26 Wis. 428; State ex rel. Grundt v. Abert, 32 Wis. 403; State ex rel. McCoale v. Kersten, 118 Wis. 287, 292, 95 N. W. 120. Ch. 292, Laws of 1883, providing that: “All powers relating to villages and conferred upon village boards by the provisions of ch. 40 of the revised statutes, and all acts amendatory thereof, excepting those the exercise of which would conflict with the provisions of law relative to towns and town boards, are hereby conferred upon towns and town boards of towns, containing one or more unincorporated villages, having each a population of not less than one thousand inhabitants, and are made applicable to such unincorporated village or villages, and may be exercised therein when directed by a resolution of the qualified electors of the town,” etc., was held by this court not to violate sec. 23, art. IY, Const. Land, L. & L. Co. v. Brown, 73 Wis. 294, 40 N. W. 482.

Whether the limit of population in the class should have been placed at 250,000 or less was a legislative question. The classification is germane to the objects sought to be accomplished by the law, and the rule of uniformity under see. 23, art. IY, Const., is not infringed.

By the Gourt. — The order is affirmed.