McRae v. Hogan

Cole, J". The invalidity of ch. 458, P. & L. Laws of 1869, is to our minds a point too plain to admit of discussion. The act requires the town treasurers of the several towns in Chippewa county to pay over to the county treasurer of the county all moneys received by them for highway taxes on all lands lying north of a designated east and west line; and the county treasurer is directed to pay over such moneys on the order of the county board of supervisors. The county board is authorized and required to expend these moneys in the building of wagon roads up the Chippewa river and its tributaries, the roads to commence at the designated line referred to above and to extend up said river and tributaries. This is the substance of the act in question. Its manifest purpose and design are, to take from the possession and control of the officers of the towns a portion of the moneys raised in the towns for highway purposes, and intrust its expenditure to the county board. The act is clearly and flagrantly in violation of sec. 23, art. IV of the constitution, as that provision was interpreted by this court in the cases of State ex rel. Peck v. Riordan, 24 Wis., 484; State ex rel. Keenan v. The Supervisors of Milwaukee County, 25 id., 339; and State ex rel. Walsh v. Dousman, 28 id., 542. Under the general law (ch. 19, K. S.), the supervisors of the several towns are, by virtue of their office, commissioners of highways in their respective towns, and have power to lay out highways. It is made the duty of such supervisors, and of the overseers of highways, to keep the highways and bridges in their respective towns in sufficient repair; and towns are 'made liable for any damage which shall happen to any person 533 by reason of tbe insufficiency or want of repair of any bridge or public highway. Provision is made for levying and collecting highway taxes, which are expended by the officers of the town. This is the general system. While the liability of the towns affected by the act continues, a portion of the highway taxes raised in the towns is taken from the control of the town officers, and placed under the control of the county board. And in respect ■ to the control and expenditure of that amount of the highway tax, the act attempts to confer upon the county board all the powers and duties of the town officers. It is difficult to imagine a more plain and palpable violation of the principle of uniformity in the system of town and county government than is furnished by the act. The cause of action stated in the complaint is founded on this law, and falls with it. By the Gourt.— The order of the circuit court sustaining the demurrer to the complaint is affirmed.