State ex rel. Keenan v. Supervisors of Milwaukee County

Paike, J. This was an application for a mandamus to compel the Board of Supervisors of Milwaukee County to comply with the requirements of chapter 372 of the Local Laws of 1869, in respect to furnishing the commissioners, whose appointment is provided for in that act, an office and other means- for discharging their duties. The object of the application is to test the validity of the act, which is questioned upon several grounds. Among others it is objected, that it violates the uniformity of the system of county government, and is, therefore, in conflict with section 23 of article iv of the constitution. That section is as follows: “The legislature shall establish but one system of town and county government, which shall be as nearly uniform as practicable.” I can see no answer to this objection. The powers which this act attempts to confer on these commissioners relate to the building of the court-house for that county. It is clear that they are powers which would otherwise belong to the county board, and that they are included among the general powers conferred on all county boards to ‘ ‘ build and keep in repair county buildings.” The act, then, so far as relates to this particular county building, is a substitution of the commissioners for the board of supervisors, so far as the powers of the commissioners extend. This general power to build and keep in repair the county buildings is one of the most important in the County government. It is of such vital necessity and of such paramount — 347 — importance, that it can scarcely be denied that it is an essential element of the system itself. And the courthouse, being the place where justice is administered for the county, is not only on that account the principal county building, but it usually contains, as it will in this case, nearly all the public offices of the county; so that the power to build the court-house is, really, in this instance, almost equivalent to the power to build the county buildings. If it is true, then, that this power is of such a character as to constitute an essential feature in the system of county government, does the act in question conflict .with the provision requiring this system to be as nearly uniform as practicable ? It seems impossible to say that it does not. It takes an important general power of the county board in that county, and confers it upon special commissioners designated by the legislature. That it is not a uniform system to provide that in one county the power to build the county buildings shall be vested in special commissioners selected by the legislature, while in other counties the same power is vested in the boards of supervisors elected by the people, is obvious. It is equally obvious that it is not as uniform as practicable, because it is self-evident that this power might be vested in the county boards in all the counties. Independent of this act, it was so vested in fact. There was, under the existing law, complete uniformity. The same board was clothed with the same general powers of county government in all the counties. A confession that such uniformity was not only practicable, but actually existed, is implied by the very enactment of this act; for its sole object was to change that state of things, and to withdraw from the county board of Milwaukee county a portion of the powers which it previously held in common with all the other boards of the state. Testing this act, therefore, by the provision of the constitution referred to, according to its plain and natural meaning, I cannot reconcile them. — 348 — But it is said that this provision should be construed by the light of the object which the framers had in enacting it; that there prevailed in territorial times different systems of town and county government in different parts of the territory; and that the only object of this clause was to prevent that in the state. But the answer to this is, that if such had been the only object, it would have been fully accomplished by the first part of the clause under consideration. When the framers of the constitution had said that the legislature should establish but one system of town and county- government, that would -have fully remedied the evil. But they did not stop there. They added, that this system should be as nearly uniform as practicable. In this they must have aimed at the evil of special legislation. That this is a great and serious evil, every one at all familiar with legislative experience knows. The members are constantly annoyed by persons among their constituents who are anxious to amend the laws regulating their local concerns. The local member naturally yields to the local pressure, whether in harmony with his own views or not; and 'the legislature, usually without much consideration, enacts such local measures as the local members may ask. And thus the public time and money are spent in enacting laws that, are frequently of an unwise and improvident character. It is an evil that there have been many efforts made to check; and I can conceive of no other motive for the clause in the constitution requiring the system of county and town government to be as uniform as practicable, except to prevent such special legislation, varying the system in different localities, as might not amount to an actual destruction of its unity. If such was its object, the act in question is as clearly • within the spirit of the clause as it is within the letter; for there could be no worse system of special legislation, than for the legislature to substitute special com — 349 — missioners to exercise some portion of the general powers of the county board on particular occasions. With snch a practice established, there would be no end of occasions for the exercise of the power; and if it may be exercised with impunity, the provision of the constitution under consideration is of no effect whatever. The entire powers that are exercised in county and town government might be withdrawn from the proper boards, and distributed in fragments among special commissioners selected by the legislature to exercise them in single instances. And whatever force there might be in the argument, made in answer to another objection to this law, that these commissioners were not to be regarded as county officers, because their functions were only transient and not permanent, yet that fact would not prevent the act from violating the uniformity of the system which the constitution requires. For if the power is of such a character, that to bestow it permanently on special commissioners would violate that uniformity, then it would equally violate it to bestow the power transiently on new commissioners as often as there was fresh occasion for its exercise. To hold otherwise would enable that to be done by indirection which could not be directly accomplished. But it was said, that the clause requiring uniformity was designed to relax the imperative character of the provision requiring a single system, and to allow legislation, which that alone would not have authorized. I cannot so regard it. Certainly, many variations might be imagined, in applying a system of county and town government in different localities, which would not be of such a nature as actually to • destroy its unity. At the same time, they might break its uniformity. Changes of a slight character might accomplish the latter result, while nothing less than a departure from — 350 — what constituted the essential elements of the system, as such, would accomplish the former. But the constitution requires the system to be only as uniform as practicable. And this, it is said, does not require absolute uniformity, nor that the same state of things should exist in all the counties. This is very obvious. A uniformity that is impracticable is not required; but, as already shown, that here in question is practicable. And the ' different boards of different counties may, in the exercise of their general powers of county government, produce very different results. But all that does not touch the unity or uniformity of the system. The legislative and administrative body of each county is the board of supervisors. They are clothed with the same general powers of county government. This is a single and uniform system. But, in exercising those general powers, they may produce results as various as the judgment and wisdom of the individuals composing them. It was suggested that geographical differences in different counties might require differences in applying the system of county government. If so, then a uniformity as great as those differences permitted would be all that was practicable, and therefore all that was necessary. But it was scarcely suggested that any geographical peculiarities in Milwaukee county disabled the board of supervisors from exercising these powers. Because some departures from absolute uniformity may be sustained under this clause, it will not do to say that, therefore, all departures can be, and that the provision itself is capable of no practical enforcement. Its language is positive and imperative, in no wise like that of provisions designed to refer questions wholly to the judgment and discretion of the legislature. When a case arises under it, where the question, whether a greater uniformity were practicable or not, is doubtful, as in all other such cases, the law would receive the — 351 — benefit of the donbt. But where, as in this case, the act seeks to disturb a condition of absolute uniformity' already existing, there is no room for doubt, and it cannot be sustained without, in effect, nullifying the provision of the constitution. If the power conferred on these commissioners were something new and unusual, not constituting any part of the ordinary general powers of county government, like that of issuing bonds in aid of railroads, sustained in Sheboygan County v. Parker, 3 Wall. 93, I should regard it as a different question. But I rest my conclusion upon the fact that the powers here conferred are a part of the ordinary general powers of county government, existing by the general statutes in all county boards, and that the act attempts to withdraw them from the county board in a particular instance, and confer them on a special body selected for the occasion. In the absence of a constitutional provision, the whole matter would of course be subject entirely to legislative control. And the practice of legislatures in other states and in this, concerning matters not governed by any such provision, can have no material bearing on the question. If there have been one or two instances in this state, where acts have been passed appointing commissioners to build a court-house, they have been passed and executed without question, and do not constitute any such practical construction as to justify the court in failing to enforce what seems to it the plain meaning of the constitution. The ■ respondents moved to quash the alternative writ; but, that all the questions in the case might be presented to the court at once, a return was filed, to which there was a demurrer by the relators, with a stipulation that this should not be a waiver of the motion. It is immaterial whether the motion is granted, or the demurrer to the return overruled, on the ground that the relation'is itself defective in substance. But, as the question upon — 352 — ••which, we have disposed of the case properly arose •upon the motion, without considering the return, we will direct that the motion to quash the alternative writ be granted. By the Court. — So ordered. A motion for a rehearing was denied at the January • term, 1870.