State ex rel. Grundt v. Abert

LyoN, J.

The demurrer to the relation or complaint raises the single question, whether the provisions of the act of 1868, by virtue of which the defendant claims that he is entitled to the office in controversy, contravenes that provision of the constitution which ordains that “ the legislature shall establish but one system of town and county government, which shall be as nearly uniform as practicable.” Art. IV., sec. 23.

The objects and scope of this provision are quite fully discussed in the cases of State ex rel. Peck v. Riordan, 23 Wis., 484 ; State ex rel. Keenan v. The Supervisors of Mil. Co., 25 id., 339; and State ex rel. Walsh v. Dousman, 28 id., 541. The principle to be deduced from these cases is, that an enactment which destroys the unity of the system, or which unnecessarily interferes with its uniformity in any material respect, is not a valid law. The “ system ” which we are to consider in this case, is *405 the plan of supporting public paupers by counties, instead of doing the same thing by towns, cities or villages. Surely the act of 1868 does not destroy or affect the unity of such system. The county system of supporting paupers still remains in the county of Milwaukee, and the act of 1868 does not attempt to destroy or impair it.

But the question remains, Does that act unnecessarily interfere with the uniformity of the system in any material respect ? The points of difference between the act of 1868 and the general law on the same subject (R. S., ch. 84, secs. 82 to 39), to which our attention has been directed by the counsel for the relators, are, that the act of 1868 provides for the election by the people of one superintendent of the poor in Milwaukee county, who may be removed from office by the board of supervisors for cause, while, in the absence of that act, and under the general laws, the board of supervisors of Milwaukee or any other county has or would have power to appoint three superintendents of the poor, and to remove them at pleasure.

Absolute uniformity is not required by the constitution, but only that the system of town and county government shall be as nearly uniform as practicable. Unless (as in the cases above cited) we can say that the act of 1868 breaks the unity of the system, or unnecessarily disregards the rule of uniformity in some material particular, we must hold the act valid. "We have already said that the act does not impair the unity of the system. We are unable to say that it interferes with or contravenes the rule of uniformity prescribed by the constitution. The alleged restriction therein upon the power of removal is too trifling and unimportant to merit serious consideration. The change in the number of superintendents is also a matter of minor importance. We cannot say, as a legal proposition, that the situation of Milwaukee county in relation to the support of its paupers was not such, that it was impracticable to entrust that business to three superintendents. And could we say this,, it is not easy to perceive how the uniformity of the general sys *406 tem could be materially disturbed by sucb change. The only provision in the law of 1868, which at first view might seem to be an innovation upon the general system, is that which deprives the board of supervisors of the power to appoint the superintendent. But inasmuch as the power of such board over the pauper affairs of the county, and over the superintendent and his assistants, is as ample and complete as it would be under the general law, we are of the opinion (and so hold) that the change in the mode of choosing the superintendent does not affect the uniformity of the system, at least, it does not affect the same in any material respect, or in any manner prohibited by the constitution.

The courts will not hold, and ought not, that acts of the legislature are unconstitutional, unless they are clearly so. If there is room for reasonable doubt, the validity of the act should be asserted and sustained. Applying this rule to the act of 1868, we are entirely unable to say that the act contravenes the provision of the constitution under consideration. We must therefore hold that the act under which defendant holds the office in question is a valid law, and that he is entitled to such office.

By the Court. — The demurrer to the complaint is sustained, and the defendant must have judgment thereon.