This is an appeal from an order sustaining a demurrer to a complaint in an action brought by a taxpayer in his own behalf, and on behalf of all other owners of taxable property in the county of Milwaukee similarly interested in the matters and things hereinafter set forth, to restrain the county and its board of supervisors and officers from further proceeding in the matter of constructing the viaduct therein mentioned, and from issuing, selling, or disposing of the bonds therein mentioned, or any part thereof, and from assessing, levying, or providing for the collection of any taxes upon the taxable property in the county for the purpose of paying such bonds or any part thereof.
The complaint alleges, in effect, that the proposed viaduct was to be constructed over what is known as the “Menominee Valley,” from Grand avenue west, at a point described, pursuant to the authority given by ch. 310, Laws of 1899; that at a regular meeting of the board the resolutions, set out in full, were regularly introduced November 27, 1900, reciting that such viaduct was to be at the place described, and to be eighty feet wide and 1,744 feet long, and provid
The act in question is entitled “ An act to authorize the building of viaducts across gullies, running streams, or railroad tracks, by the counties in this state, and for the issuing of county bonds therefor.” The first section of the act provides, among other things, that “ the county board of supervisors of any county within this state is hereby authorized and empowered to alter, erect, construct and maintain any viaduct not less than 1,000 feet in length, the cost of construction of which, together with the right of way therefor, shall be not less than the sum of $80,000, over and across any gully, river, valley or depression in land, for the purpose of connecting two or more highways, streets or roads, or different parts of the same highway, street or road; . . . but no such viaduct shall be constructed by any such county at the expense thereof which shall be less than 1,000 feet in length or less than sixty feet in width, or of an average height of less than eighteen feet, or the cost of which, including the right of way therefor, to be determined by estimate procured' by such county board, shall be less than the sum of $80,000.” The fourth section provides, in effect, the manner of construction, and the kind of material to be employed; the size, strength, and dimensions of the different parts of the foundation, and the material from which it must be constructed; and when constructed over a navigable river it must have a suitable draw, and when across or overa railroad track must be not less than twenty-
Counsel contends that the act in question is void for the-reason that it is repugnant to the provisions of the constitution whieh declare that “ 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.” “ The-legislature shall establish but one system of town and’’ county government, which shall be as nearly uniform as practicable.” Secs. 18, 23, art. IV, Const. There can be no question but that the title of the act is general, and may apply to any county in the state, if the provisions of the act do-not prevent. So most of the sections of the act, in terms, apply to any county within this state. But it is contended thát by reason of the provisions of the act set forth in the-complaint, and above mentioned, the act is local and special. As indicated, such viaduct must not be less than 1,000 feet in length, nor less than sixty feet wide, nor less than an average height of eighteen feet, nor cost less than $80,000, and the amount of bonds issued by such county for the-purpose of raising money. to pay for such, structure and right of way should “ not, exclusive^ of interest, exceed a sum equal to one fifth of one per cent, of the value of all taxable property of said county, as determined by the last assessment and equalization for state and county taxes next-prior to the issue thereof.” The complaint alleges, and the-
This court has held that an act authorizing counties to aid in the construction of bridges, which provided that it should not apply to a particular county named, was in violation of the constitutional provision last quoted. State ex rel. La Valle v. Sauk Co. 62 Wis. 376. On the other hand, it has been held by this court that an act of the legislature applicable only to towns containing villages of a certain population did not violate the provisions of the constitution requiring “but one system of town and county government.” Land, L. & L. Co. v. Brown, 73 Wis. 294, 302. In that case, Mr. Justice Tatloe, speaking for the court, impliedly declared that in enacting such laws the legislature might have “ regard to the wealth, population, or other peculiarities of such towns.” Just what the learned justice meant by “ other peculiarities ” is not apparent. It may have reference to different classes of property or people, but we do not think it can be properly applied to the mere present and existing peculiar topography of particular localities; otherwise there might be almost an unlimited number of classes, since there is almost an unlimited number of such peculiarities. In a more recent case, our late brother New-mah stated some general rules in respect to class legislation, as follows:
“ It is not required that all general laws shall be equally general. A law legislating for a class is a general law when it is for a class requiring legislation peculiar to itself in the matter covered by the law. A law relating to particular persons or things as a class is said to be general, while a law relating to particular persons or things of a class is deemed special and private. Whether such laws are to be deemed general laws or special laws depends very much*607 upon whether the classification is appropriate. . . . All classification must be based upon substantial distinctions which make one class really different from another. . . . The classification adopted must be germane to the purpose of the law. . . . The classification must not be based upon existing circumstances only. It must not be so constituted as to preclude addition to the numbers included within a class. ... To whatever class a law may apply, it must apply equally to each member thereof.” Johnson v. Milwaukee, 88 Wis. 383, 390-392.
See Boyd v. Milwaukee, 92 Wis. 460; Chicago & N. W. R. Co. v. Forest Co. 95 Wis. 80; Burnham v. Milwaukee, 98 Wis. 128, 135; Adams v. Beloit, 105 Wis. 363, 369, 371; Milwaukee Co. v. Isenring, 109 Wis. 19. In addition to the authorities there cited by Justice Newman, see Restrictions Upon Local and Special Legislation, by Mr. Binney (pages 54, 55, 59, 78), where such rules are summarized. The author, among other things, says:
“The underlying principle of general legislation is the same in all cases. A law applying to and embracing within its operation all persons or things which are in or which may come into like situations and circumstances is general, no matter what the persons or things may be, either in character or in number.”
“ If the membership of a class be unchangeable, then the law applies only to the individual members, and never can apply to others. Such a law is clearly special.” Id.
The principal difficulty, after all, is in the application of, such rules to the particular conditions present in a given case, and in such classification courts differ. In a Pennsylvania case it is held that “there can be no proper classification of cities or counties, except by population. Geographical distinctions cannot be resorted to without enteriug the domain of special legislation.” Comm. ex rel. Fertig v. Patton, 88 Pa. St. 258, 260. The court there said that “ the moment we resort to geographical distinctions we enter the domain of special legislation, for the reasomthat such classification operates upon certain cities or counties to the per
“ The only ground upon which the classification of cities for purposes of legislation . . is or can be sustained is the evident necessity for the possession by some cities of corporate powers unsuited for others, the great differences in their population rendering necessary corresponding differences in the number, character, powers, and duties of the municipal officers. That classification does not authorize legislation for a class of cities upon subjects not relating to municipal affairs. A law which will not bear the test that it must apply to all members of the class to which it relates, and be directed to the existence and regulation of municipal powers, is a local law, and as such it is invalid, if it be upon one of the subjects as to which locaL and special legislation is forbidden by the constitution.” Ruan Street, 132 Pa. St. 257.
So, in New Jersey, an act of the legislature concerning-bridges and turnpikes, which declared that it should not apply to any county having a county road board, was held to be special and local, and hence void. Lodi v. State, 51 N. J. Law, 402. So an act of the legislature authorizing the formation of borough governments in seaside resorts was held to be local and special, and hence void. State ex rel. Att'y Gen. v. Sommers Point, 52 N. J. Law, 32.
We must hold that the act in question is local and special, within the meaning of the provision of the constitution quoted. Moreover, it attempts to give to the county of Milwaukee powers of local government not possessed by any other county in the state, and hence is repugnant to sec. 23, art. IV, Const.
Attention is called to another clause of the constitution, not mentioned on the argument nor referred to in the brief of counsel on either side. It is the clause which prohibits the legislature “ from enacting any special or private laws,” “for laying out, opening or altering highways, except in cases of state roads extending into more than one county, and military roads to aid in the construction of which lands
“An extensive bridge . . . for the purpose of conducting a road or a roadway over a valley . . . where an embankment would be impracticable or inconvenient; more widely, an elevated roadway . . . established.” Cent. Dict.
“A bridge-like structure, especially a large one. of arched masonry, to carry a roadway or the like over a valley or ravine or across another roadway.” Stand. Dict.
Worcester’s Dictionary is quite similar. The same is true with the Imperial Dictionary, after stating that it is “ the name usually given to an extensive bridge.” The same is true with one definition given by Webster, whe gives as another definition simply “ a bridge,” and then defines “ bridge ” as “ a structure . . . over a river or other watercourse, or over a ravine, railroad, etc., to make a continuous roadway from one bank to the other.” So a “ bridge ” is defined as “ any structure which spans a body of water, or a valley, road, or the like, and affords passage or conveyance.” Cent. Diet. The complaint expressly alleges that the proposed viaduct over and across the Menominee valley was to con
By the Court.— The order of the superior court of Milwaukee county is reversed, and the cause is remanded with direction to overrule the demurrer and for further proceedings according to law.