Forest County v. Langlade County

Taylor, J. On this appeal the learned counsel for the appellant county contend (1) that ch. 537, Laws of 1887, is — 609 — void under see. 23, art. IY, Const., relating to town and county government; (2) that the act is void because it attempts to establish a judicial tribunal not known to the constitution, and so is a violation of sec. 2, art. YII, Const.; (3) that the commissioners had no jurisdiction, because Forest county has not complied with the provision of secs. m, m, R. S. The learned counsel for the appellant has made a very exhaustive and able argument upon the first two objections to the law. Ve think, however, that this court has in repeated decisions held that these positions taken by the learned counsel are not tenable. The contention that the act of 188J is a violation of the uniformity of the laws establishing county government is clearly untenable. This court has held that the rights of new counties formed out of the territory of another county or counties, and the liabilities of such new counties to pay any part of the debts of the counties from which they are formed, depend entirely' upon the action of the legislature as declared at the time of forming such new counties. It is clear, therefore, that one legislature cannot, by enacting a general law, bind a future legislature as to its power to determine what rights or liabilities a new county may have or shall assume at the time of its creation. It is true that by ch. 334, Laws of 1885, the legislature did, by a general law, fix the rights of counties, towns, etc., when formed from other towns or counties, and such general law would probably be held to govern when the legislature thereafter made any divisions of or created new towns or counties, and made no declaration in the acts dividing or creating the same as to what their relative rights and liabilities should be. Ch. 334, Laws of 1885, does not in any true sense become a part of the system of town and county government referred to in the constitution. The creation of towns or counties, or the division of them, is not a part of such system of government, nor is — 610 — the question of the rights of such new towns or counties to the assets of the towns or counties out of which they are formed, or their liabilities for the debts of the old towns or counties out of which they are formed, any part of such system. It is a matter which pertains only to their creation, and not to their subsequent government. And the legislature has complete control of that subject, and may determine it in each particular case as it arises, and no former legislature, by the enactment of any general law on the subject, can deprive a subsequent legislature of the power to determine the rights and liabilities of such new organizations growing out of their creation. Crawford Co. v. Iowa Co. 2 Pin. 368; Milwaukee v. Milwaukee, 12 Wis. 93; Morgan v. Beloit City, 7 Wall. 613; Depere v. Bellevue, 31 Wis. 120; Mount Pleasant v. Beckwith, 100 U. S. 514; Knight v. Ashland, 61 Wis. 233; Schriber v. Langlade, 66 Wis. 616, 629, 631; Chicago & N. W. R. Co. v. Langlade Co. 56 Wis. 614, 622, 624; Cathcart v. Comstock, 56 Wis. 590, 608, 609; Yorty v. Paine, 62 Wis. 154, 161; Hall v. Baker, 74 Wis. 118; State ex rel. Graef v. Forest Co. 74 Wis. 610, 615. These cases, it seems to us, settle the question for this court at least, that the creation of new counties, or the division of one county and attaching a part of its territory to other territory, and thereby forming a new county, and the declaring the liabilities of such old county to the new and the new to the old, is not a part of the system of county government intended to be made uniform by said sec. 23, art. IY, of the constitution. Was the act of 1887 void under the provisions of sec. 2, art. VII, of the constitution? We think this question must also be answered in the negative. It is said that the act of 1887 conferred judicial powers upon the commissioners appointed to adjust and settle the rights of the respective parties, and is therefore void under this provision of the constitution. If this act be unconstitutional for that cause, — 611 — then all the laws of this state which submit questions involving the rights of persons to any officers, boards, or persons other than the regularly constituted courts of the state, are void for that reason; the laws requiring certain claims against towns, counties, cities, and villages to be first submitted to the boards of supervisors of towns and counties, to the trustees of villages and the common councils of cities, are all void; and all laws appointing commissioners to estimate the damages of parties whose lands are taken for highways or for railroad purposes, and other laws too numerous to mention, are void. But this court has held all such laws valid in all cases where the decisions of such boards or commissioners or appraisers are not made final, and an appeal is given from their decisions to the regularly constituted courts of the state. Gough v. Dorsey, 27 Wis. 119, 131, 133; Gaston v. Babcock, 6 Wis. 503, 507; and numerous decisions of this court, holding the laws valid w7hich require claims against counties, towns, cities, and villages to be presented and passed upon by the appropriate boards before action can be maintained thereon. There can be no difference in principle in requiring the county of Langlade to submit its claims against the county of Forest to the commissioners appointed under the law of 1887, than in requiring such county to submit its claims under the law dividing the county to the board of supervisors of Forest county in the first instance. In either case, it would be a preliminary proceeding required to be taken before the county should have the right to have the judgment of the court upon its rights. The right to have the judgment of the courts upon their claim is not taken away, but is secured by the right to appeal from the determination of the commissioners to such courts. There is perhaps another view of the case which might justify the legislature in ordering the rights of the respective counties to be finally fixed by the commissioners appointed and without giving to either party the right of ap — 612 — peal. As we have shown above, the legislature has plenary power over the question of the division of the assets and the liability for the debts of the old county from whose territory a new county, either in whole or in part, is created. And as the legislature might fix such rights absolutely, without referring the question to any other officers or to any court, it might be argued with great force they could provide for the determination of that question by commissioners or a board appointed for that purpose, and make their decision final. We do not, however, decide that question in this case. From what has been said above, it is very clear that the board of supervisors of Forest county were not obliged to collect their claim against the county of Langlade in the manner prescribed by secs. 676, 677, R. S. The claim of Forest county against Langlade countjq under the act creating Forest county and dividing Langlade county, was clearly not a claim coming within the letter or spirit of the said sections. And if the claim could have been enforced by proceedings under said sections, in the absence of any special provision for adjusting and enforcing it, such special provision was made, first, by the act dividing the county ot^Langlade and creating the county' of Forest, by sec. 10, ch. 436, Laws of 1885, and afterwards by ch. 537, Laws of 1887. We think sec. 10, ch. 436, Laws of 1885, and ch. 537, Laws of 1887, constitutional acts, and that the commissioners appointed under ch. 537, Laws of 1887, had jurisdiction of the matters referred to them, and that, upon an appeal from their decision, the circuit court acquired jurisdiction to try and determine the respective rights of the two counties arising out of the division of Langlade and the creation of Forest county by ch. 436, Laws of 1885. By the Court.— The order of the circuit court appealed from is affirmed, and the cause is remanded for further proceedings according to law.