White Construction Co. v. City of Beloit
206 N.W. 908
Wis.
1926
Check Treatment
Vinje, C. J.

The constitutionality of the curative act, ch. 332, Laws of 1923, is challenged by the defendant in *7this case and by the defendant in the case of White Const. Co. v. West Allis, post, p. 8, 206 N. W. 909, on the ground that it violates the provisions of sub. 9, sec. 31, and of sec. 32 of art. IV of the constitution, prohibiting the incorporation of any city, town, or village, or the amendment of the charter thereof, by any special law.

This subject has been dealt with so fully by the court in the cases of Boyd v. Milwaukee, 92 Wis. 456, 66 N. W. 603; Burnham v. Milwaukee, 98 Wis. 128, 73 N. W. 1018; Cawker v. Central B. P. Co. 140 Wis. 25, 121 N. W. 888; and in Neacy v. Drew, 176 Wis. 348, 187 N. W. 218, that little need now be added. It is firmly established by those cases that in order to render a classification valid the class must admit of additions to it. If it does not, it violates the constitutional provisions referred to. The same rule has been applied to sec. 23, art. IV, of the constitution, requiring uniformity in town and county government (State ex rel. La Valle v. Sauk Co. 62 Wis. 376, 22 N. W. 572; State ex rel. Merrimac v. Hazelwood, 158 Wis. 405, 149 N. W. 141; State ex rel. Johnson v. La Crosse and Trempealeau, Counties, 167 Wis. 417, 167 N. W. 822), and to sec. 18, art. IV, of the constitution (State ex rel. Joint School Dist. v. Nyberg, 183 Wis. 215, 197 N. W. 724).

It is sought to distinguish the cases at bar from the cases of Cawker v. Central B. P. Co. 140 Wis. 25, 121 N. W. 888; Boyd v. Milwaukee, 92 Wis. 456, 66 N. W. 603; and Neacy v. Drew, 176 Wis. 348, 187 N. W. 218, because in the latter cases there was only one city to which the act could apply, while here there are at least two, namely, Beloit and West Allis, and there may be more. The distinction is as to a fact quite immaterial. The basis which justifies a classification is not whether there is one city or there are several cities in a class, but whether the class is so defined that other cities may grow into it. -Thus it has been repeatedly held that laws pertaining to cities of the first class, of which there is at present only one, namely, Milwaukee, *8are valid. Adams v. Beloit, 105 Wis. 363, 81 N. W. 869; State ex rel. Risch v. Trustees, 121 Wis. 44, 98 N. W. 954; Wis. Cent. R. Co. v. Superior, 152 Wis. 464, 140 N. W. 79; State ex rel. Bloomer v. Canavan, 155 Wis. 398, 145 N. W. 44; Milwaukee v. Reiff, 157 Wis. 226, 146 N. W. 1130; State ex rel. Binner v. Buer, 174 Wis. 120, 182 N. W. 855. But if the class be closed so that no cities in the future can grow into it, then it violates the constitutional provisions mentioned under the rulings in the cases first cited. It needs no analysis of the alleged curative act relied upon in this case to show that the cities there described constitute a class that is irrevocably closed by facts existing at the time the act was. passed. It is immaterial whether there be two, three, or more cities so circumstanced as to come within its provisions. It is the closed, condition of the class that renders the act invalid. If that be true .as to an act which includes all the cities in a class, it is all the more true of an act that includes only a part of the cities of a class. The argument that the legislature can validate what it could do in the first instance is true, but it does not apply because the legislature in the first instance could not lawfully create a'closed class.

By the Courts — Order reversed, and cause remanded with directions to sustain the demurrer to the complaint. •