#### Outagamie County, Respondent, vs. Zuehlke, Appellant.

*December 6, 1916*

January *16, 1917.*

*Constitutional law: Legislative power: Counties: Authority to engage in abstract business: Uniformity in county government: “Corporate powers:" Special acts: Repeal: Register of deeds: Refusal to turn over fees to county: Estoppel: Officers: Compensation.*

1. The state constitution not being so much a grant as a limitation of power, the legislature has authority to exercise any and'all legislative powers not delegated to the federal government nor expressly or by necessary implication prohibited by the national or state constitution.

2. The matter of title to lands and abstracts of title being one of public concern, and there being no constitutional provision which expressly or by necessary implication forbids such legislation, the legislature had power to enact eh. 270, Laws 1878, as amended by ch. 200, Laws 1881, which provided, among other things, that a set of abstract books compiled for and purchased by Outagamie county should be a part of the official records of the office of its register of deeds, that they be open to the public under certain specified restrictions, and that the register should keep up and continue such abstracts and should furnish abstracts on payment of prescribed fees, one half thereof to be retained by him and one half to be paid to the county.

3. Such keeping of abstract books by a county .is not a governmental function in the sense that a law authorizing it in a particular county violates the uniformity of the system of town and county government required by sec. 23, art. IV, Const.

4. While by said ch. 270, Laws 1878, as amended, the abstract books are made a part of the official records of the office of register of deeds, they are made so under the limitations provided therein, and hence the restriction upon their use does not conflict with sec. 700, Stats., which requires that the records in the office *33of the register of deeds be open to the public without limitation. *Bock Co. v. 'Weirick,*143 Wis. 500, distinguished.

5. Said ch. 270, as amended, does not grant “corporate powers” to a county within the meaning of sec. 31, art. IV, Const. — prohibiting the legislature from enacting any special or private laws granting corporate powers except to cities.

6. In view of sec. 4987, Stats., — providing in effect that no special act relating to a particular county shall be deemed to be repealed by the revised statutes, unless enumerated in the acts thereby repealed, — ch. 270, Laws 1878, as amended, was not repealed by the enactment of the revision of 1898.

7. One who, as register of deeds of Outagamie county, performed the services and received the fees prescribed by said ch. 270, as amended, cannot now allege the unconstitutionality of that statute as a ground for refusing to pay over to the county its proportion of the fees so collected.

8. A public officer takes his office *cum, onere*and is entitled to no salary or fees except what the statute provides.

Appeal from an order of the municipal court of Outa-gamie county: Albeet M. SpenceR, Judge.

*Affirmed.*

This action was brought against the defendant to recover one half of the money charged and collected by defendant for making abstracts while he was register of deeds between October 1, 1910, and December 31, 1912, under the provisions of ch. 270, Laws 1878, as amended by ch. 200, Laws 1881.

The defendant answered, and among other things set up that ch. 270, Laws 1878, as amended, was unconstitutional and. denied plaintiff’s right to recover. The plaintiff demurred to the answer for the reason that it did not state facts sufficient to constitute a defense. The court below sustained the plaintiff’s demurrer, and from the order sustaining such demurrer this appeal was taken.

For the appellant there was a brief by *Albert H. Krug-meier*and *Fred.-V.*Heinemann> both of Appleton, and oral argument by *Mr. Krugmeier.*

For the respondent there was a brief by *Morgan & Benton*of Appleton, and oral argument by *John Morgan.*

*34Kerwin, *J.*

The contention of the appellant is that the law is unconstitutional because (1) it authorizes the county to engage in private business; (2) that, if the business is governmental, the act breaks the unity and uniformity of county government; (3) that the act is a special act, in violation of sec. 31 of art. IY of the constitution.

The answer alleges that the county board of *Outagamie County*procured certain abstracts of title to real estate in .said county according to Walton’s system of abstracts at an •expense of $8,989.26, and that afterwards the legislature of the state of Wisconsin passed ch. 270, Laws 1878, which was later amended by ch. 200, Laws 1881; that ch. 270, Laws 1878, as amended by ch. 200, Laws 1881, made said abstracts of title compiled for and purchased by said *Outagamie County*a part of the official records of the office of the register of deeds of said county, and further provided, among other things, that the register of deeds should have the custody of and safely keep the same, and that, the same should be open to the public for reference at all times during business hours, but that no person should be permitted to take any memorandum or abstract therefrom except of the lands .and real estate owned by such person, or which he was negotiating to purchase; that the register of deeds was required *to*keep up and continue said abstract of title affecting real ■estate in said-county and should receive a fee therefor to be paid by those at whose request and for whom the same should ■he entered; and that the register of deeds should at all times, •on demand and upon payment of fees, deliver an abstract of title of any land in said county, one half of the fee to be retained by the register for his own use and the other half paid into the treasury of the county, and that said register shall provide himself with books at the expense of the county for such purposes as provided in the act. The act further provides that the register of deeds shall report the number and character of instruments by him entered and file the *35same with tbe county clerk of said county, which report shall' contain such other things as the act requires; that the county board of supervisors of said county may at all times make general regulations as to accounts to be kept by the register of deeds of the fees by him received for transcripts from such abstract.

1. It seems to be conceded by counsel for appellant that there is no specific provision of the constitution of Wisconsin which forbids in terms the legislation in question, but it is said its prohibition is implied, and counsel in support of this contention rely upon *Atkin v. Kansas,*191 U. S. 207, 24 Sup. Ct. 124; *Rock Co. v. Weirick,*143 Wis. 500, 128 N. W. 94; *Wis. K. I. Co. v. Milwaukee Co.*95 Wis. 153, 70 N. W. 68; *Curtis’s Adm’r v. Whipple,*24 Wis. 350; *State ex rel. Garrett v. Froehlich,*118 Wis. 129, 139, 94 N. W. 50. *Atkin v. Kansas, supra,*turns upon the constitutionality of the eight-hour law as applied to municipalities. Wis. *K. I. Co. v. Milwaukee Co.,*supra, is a case where it was sought to support a purely private institution by public taxation, and it was held that the public could not be taxed for a private purpose. To the same effect is *Curtis’s Adm’r v. Whipple*and *State ex rel. Garrett v. Froehlich, supra.*In *Rock Co.*v. *Weirick, supra,*this court merely held that a county could not, without legislative authority, go into the abstract business for profit. The case is therefore no authority in favor of the appellant’s position. In the instant case there is no pretense that the public is taxed for a private purpose, hence the contention that a particular county cannot engage in private business at the expense of the public has no application! here. The matter of title to lands and abstract of title is: matter of public concern and has been so regarded by the legislature. Under the law in question here the abstract launder the supervision of a public officer, register of deeds,, and it is made open to the public under certain limitations-which the legislature had a right to impose. It is estab*36lished by tbe decisions of tbis court tbat our state constitution is not so much a grant as a limitation of power, therefore tbe state legislature bas authority to exercise any and all legislative powers not delegated to tbe federal government nor expressly or by necessary implication prohibited by tbe national or state constitution. *Bittenhaus v. Johnston,*92 Wis. 588, 595, 66 N. W. 805; *State ex rel. Graef v. Forest Co.*74 Wis. 610, 43 N. W. 551, *State ex rel. Lamb v. Cunningham,*83 Wis. 90, 146, 53 N. W. 35. An examination of tbe law under consideration, ch. 210, Laws 1878, as amended, clearly shows tbat it violates neither expressly nor by necessary implication any constitutional provision.

2. It is contended by counsel for appellant tbat tbe law breaks tbe unity and uniformity of county government, hence violates sec. 28, art. IY, of tbe state constitution, which provides tbat “tbe legislature shall establish but one system of town and county government, which shall be as nearly uniform as practicable.” The law in question makes tbe abstract of title to real estate in *Outagamie County*purchased by the county board of supervisors of said county a part of tbe official records of tbe office of tbe register of deeds of said county, tbe same to be open to tbe public for reference under certain restrictions specified in tbe law. Tbe act in no way interferes with uniformity of tbe system of town and county government.

There is no doubt under tbe repeated decisions of tbis court but that the legislature can confer special powers such as were conferred by tbe statute under consideration without violating tbe constitutional provision relating to uniformity of town and county government. *Single v. Marathon Co.*38 Wis. 363; *Bryant v. Robbins,*70 Wis. 258, 35 N. W. 545; *Forest Co. v. Langlade Co.*76 Wis. 605, 45 N. W. 598; *Rock Co. v. Edgerton,*90 Wis. 288, 63 N. W. 291; *State ex rel. Marinette, T. & W. R. Co. v. Tomahawk Common Council,*96 Wis. 73, 71 N. W. 86.

*37It must also be borne in mind that courts will not declare a statute unconstitutional unless it appears clearly to conflict with the constitution. *State ex rel. Hicks v. Stevens,*112 Wis. 170, 88 N. W. 48; *Peterson v. Widule,*157 Wis. 641, 147 N. W. 966. It should also be remembered that the constitution only requires that the system of town and county government be as “nearly uniform as practicable.” *State ex rel. Busacker v. Groth,*132 Wis. 283, 112 N. W. 431.

The cases relied upon in this court by appellant do not reach the question here. They relate to matters of local and governmental concern, hence are a part of the system of town and county government, such as *Rooney v. Milwaukee Co.*40 Wis. 23; *State ex rel. Keenan v. Milwaukee Co.*25 Wis. 339; *State ex rel. Walsh v. Dousman,*28 Wis. 541; and *State ex rel. La Valle v. Sauk Co.*62 Wis. 376, 22 N. W. 572.

The history of legislation in this state on the subject under consideration as well as the decisions of this court show that ch. 270 as amended does not violate the constitutional provision respecting uniformity of town and county government. .The legislature passed an act, ch. 352, Laws 1864, authorizing any county in the state on or before the 1st day of December, 1864, to purchase a set of abstract books and make them a part of the official records of the office of the register of deeds. The time was extended by the legislature by ch. 39, Laws 1867, to June 1, 1867. From June 1, 1867, to 1881 there was no general statute authorizing any county to purchase a system of abstract books. By ch. 326, Laws 1909, the legislature authorized counties to create the office of county abstractor. It is clear from decisions of this court and the history of legislation upon the subject that the keeping of abstract books is not a governmental function in the sense that it interferes with the system of town and county government within the meaning of the constitution.

It must be borne in mind in considering ch. 270 as *38amended in connection with see. 700'of the Statutes that they in no manner conflict and that all records in the office of the register of deeds required to be made and kept.by sec. 700 are open to the public, and that the restrictions in ch. 270 as amended are confined to the abstract books purchased by *Outagamie County,*and that while the abstract books are made a part of the official records they are made so under the limitations provided for in the act, and in this respect the case under consideration is distinguishable from *Rock Co. v. Weirick,*143 Wis. 500, 128 N. W. *94.*So the restriction in ch. 270 as amended, making the abstract books accessible only to certain persons, in no manner conflicts with sec. 700, Stats. Sec. 700 makes the records therein referred to open to the public without limitation, while ch. 270 as amended, in speaking of the abstract books, provides, “and the same shall be open to the public for reference at all times during business hours, but no person shall be permitted to take any memorandum or abstract therefrom, except only of lands and real estate owned by any such person, or which he is negotiating; to purchase.” This restriction refers only to the abstract books and has no reference to the general records in the office of the register of deeds.

3. It is further contended that ch. 270 as amended is prohibited by sec. 31, art. IY, of the state constitution. This provision of the constitution prohibits the legislature from enacting any special or private laws granting corporate powers except to cities. .Oh. 270, Laws 1878, as amended, does not grant “corporate powers” within the meaning of the constitution. , Nothing need be said upon this point except to cite the ruling of this court against the appellant upon the proposition. *Linden L. Co. v. Milwaukee E. R. & L. Co.*107 Wis. 493, 83 N. W. 851; *Att’y Gen. v. Railroad Cos.*35 Wis. 425; *State ex rel. Att'y Gen. v. Portage City W. Co.*107 Wis. 441, 83 N. W. 697.

4. It is also argued by appellant that ch. 270 has been re*39pealed. This contention cannot be upheld. Ch. 270 is a special act. See. 4987, Stats., provides:

> “None of the general provisions of these revised statutes ■shall be construed so as to affect or repeal the provisions of any special acts relating to particular counties, towns,' cities or villages or the officers or offices thereof unless such special acts are enumerated in the acts hereby repealed.”

This provision was in force when ch. 270, Laws 1878, was passed and rules the question here, hence there was no repeal.

. 5. The argument is made by respondent that the appellant is estopped1 from now contesting the validity of the law under which he acted. It is admitted by the demurrer that the plaintiff paid nearly $9,000 for the abstract of title which has become part of the records of the office of the register of deeds under the provisions of ch. 270, Laws 1878, as amended. '

It is alleged in the answer that defendant kept this abstract of title up to date, furnished abstracts to persons requesting the same, kept a record of the abstracts furnished, the number of entries therein, and the amount of fees received therefor, and performed the services and received the fees prescribed by ch. 270, but neglected and refused to pay over to the county its proportion of the fees provided by the law under which he acted. It is clear under the authorities that upon the undisputed facts the defendant cannot act under the law, receive the benefits, and now defend on the ground that he had no authority to collect, and because the law is unconstitutional. *Bullwinkel v. Guttenberg,*17 Wis. 583; *Cairns v. O’Bleness,*40 Wis. 469; *La Pointe v. Ashland,*47 Wis. 251, 2 N. W. 306; *Remington v. Ward,*78 Wis. 539, 47 N. W. 659.

Some claim is made by counsel for appellant that one half the fees collected was not sufficient compensation and that certain fees were not and could not have been collected by appellant, and that some of the instruments noted upon ab*40stract were taken from other pffices. This claim is wholly immaterial. A public officer takes his office *cum onere.*He is entitled to no salary or fees except what the statute provides. St*ate v.*Cleveland, 161 Wis. 457, 152 N. W. 819, 154 N. W. 980; *Quaw v.*Paff, 98 Wis. 586, 74 N. W. 369; *Burgess v. Dane Co.*148 Wis. 427, 134 N. W. 841; *Kewaunee Co. v.*Knipfer, 37 Wis. 496; *Security Nat. Barde v. St. Croix P. Co.*117 Wis. 211, 94 N. W. 74; *Madison v. American S. E. Co.*118 Wis. 480, 485, 95 N. W. 1097.

We are convinced that the answer states no defense and that the demurrer thereto was properly sustained.

*By the Court.*— The order appealed from is affirmed.