Kroeplin v. County of Milwaukee

[427] The following opinion was filed November 8, 1922: Crownhart, J. The regulation of places where nonintoxicating liquors, as defined in ch. 441, Laws 1921, are sold is well within the police power of the state. That power may be delegated to counties provided the system of town and county government remains “as nearly uniform, as practicable.” Secs. 22, 23, art. IV, Const. Those sections read as follows: “Section 22. The legislature may confer upon the boards of supervisors of the several counties of the state such powers of a local, legislative and administrative character as they shall from time to time prescribe.” “Section 23. The legislature shall establish but one system of town and county government, which shall be as nearly uniform as practicable.” We are met at the threshold with the question as to whether the constitutional prohibition in sec. 23 is offended by ch. 321, Laws 1909, in so far as it attempts to confer upon counties having a population of 250,000 or more, alone, power to regulate such places. The tests laid down by the courts for determining the constitutionality of an act of the legislature are sufficiently enumerated in State ex rel. Carnation M. P. Co. v. Emery, 178 Wis. 147, 189 N. W. 564, and we have no disposition to modify them as there stated. But as said by Mr. Chief Justice Winslow in Borgnis v. Falk Co. 147 Wis. 327, 349, 133 N. W. 209: “Constitutional commands and prohibitions, either distinctly laid down in express words or necessarily implied from general words, must be obeyed, and implicitly obeyed, so long as they remain unamended or unrepealed.” Here we have in the constitution an express command and prohibition to establish but one system of town and county government, “which shall be as nearly uniform as practicable.” Any other system is unconstitutional. It is [428] by this express command and prohibition that we must test the validity of the act of the legislature in its attempt to delegate authority to one county of the state to enact certain police legislation, and withholding such authority from every other county in the state. Is this giving to the counties of the state a system of government as uniform as practicable? To state the question in another way. Is it not entirely practicable to give all the counties of the state the same power that is attempted to be given to Milwaukee County alone? We have examined these questions with care, and have searched in vain for any reason, practical or otherwise, for breaking the system of uniform county government in the delegation of such police powers. The need for such legislation in Mihvaukee County may lie greater than it is in other counties in the state, but the law is optional there, as it would be if applied to other counties. The need for legislation in one count}'- of the state does not make it impracticable to vest the power in other counties of the state. The county board of supervisors is the judge of the necessity of the local legislation in Mihvaukee County, and there is no reason apparent why the county boards of other counties should not be allowed to exercise the same judgment. It is a matter of public knowledge that there are many licensed places under ch. 441, Laws 1921, in other counties of the state as well as in Mihvaukee County. If the evils appertaining to such places are necessarily to be restrained in one county, they are likewise necessarily to be restrained in any other place where found.' The reasons for applying restrictive measures are of the same kind, if not in the same degree, in every county in the state. As was said by Mr. Chief Justice Siebecker, speaking of the rent law, in State ex rel. Milwaukee S. & I. Co. v. Railroad Comm. 174 Wis. 458, 465, 183 N. W. 687: “The evils resulting therefrom, and which this legislation seeks to remedy, were incident to the conditions wherever [429] they existed and were equally pernicious in their effects upon tenants everywhere. It is urged, however, that the legislative judgment in applying the law only to the class of landlords operating the business in thickly settled communities necessarily implies that the resultant evils were found to be a greater menace to the public welfare, health, and morals in such communities than in the sparsely settled districts of the state. But can it reasonably be said that such is the fact? Do the evils enumerated in the act in fact affect the public differently in counties having 250,000 population and over than in those having a lesser population ? It is a matter of common knowledge that the oppressive exactions denounced by the act are as objectionable in their effects upon the public in the smaller cities of the state as in the larger ones and that the evil produced no different conditions in the county of Mihvaukee than in other counties of the state. True, a larger number of persons were affected in Milwaukee County than in any other county, but this in no way caused a different economic, social, or political condition in this county than in any other county of the state where the evil existed. We find nothing in the conditions and characteristics affecting persons and property of landlords and tenants embraced in this act that distinguishes those in one county from those of any other county of the state in any respects germane to the purposes of this act.” The reasoning in that case is applicable to the instant case. To the same effect is the decision in State ex rel. Melms v. Young, 172 Wis. 197, 178 N. W. 481. We 'conclude that ch. 321, Laws 1909, as applied to the facts in this case, is unconstitutional and void. This makes it unnecessary to consider the other questions raised. By the Court. — The order is reversed, with directions to enter judgment granting the relief prayed for in the complaint. A motion for a rehearing was denied, without costs, on May 1, 1923.