#### State ex rel. Johnson and others, Respondent, vs. County Boards of Supervisors of La Crosse and Trempealeau Counties, Appellants.

*April 30*

May *21, 1918.*

*Constitutional law: County government: Uniformity: Classification: Bridges over county boundaries: Maintenance*

Sec. 1325i, Stats. 1915, providing that public bridges *heretofore constructed,*across waters forming county boundaries shall be operated, maintained, and repaired at the joint expense (apportioned as there stated) of the counties directly joined thereby, violates sec. 23, art. IV, Const., which requires a uniform system of town and county government — the classification made by said statute being based upon circumstances as they existed at the time of its enactment alone, and not permitting any subsequent additions to the class in question.

Appeal from an order of the circuit court for Trempealeau county: James Wickham, Judge.

*Reversed.*

*418Tbe appeal is from an order denying a motion to quasb an alternative writ of *mandamus.*

Tbe Black river is tbe boundary line of La Crosse and Trempealeau counties in tbis state and was crossed by a bridge from tbe town of Caledonia in Trempealeau county to tbe town of Holland in La Crosse county on wbat was known as tbe McGilvary highway. Tbis highway connects, among other points, tbe county seats of tbe respective counties.

Resident taxpayers of tbe respective towns made demand in October, 1915, upon tbe defendant counties that such bridge, alleged to have been out of repair and unfit for service for a long time, should be repaired so that tbe same might become open to public travel and afford petitioners access to their respective lands bordering on tbe McGilvary road. No steps were taken by tbe counties pursuant to'such notice, and thereafter a petition was filed in tbis court asking that a writ of *mandamus*should be issued under tbe original-jurisdiction of tbis court to tbe respective counties requiring them to repair such bridge pursuant to sec. 1325i, Stats., being cb. 565, Laws 1915. Tbis court certified tbe proceedings to tbe circuit court for Trempealeau county for bearing and determination. *State ex rel. Johnson v. Gounty Boards,*165 Wis. 164, 161 N. W. 356.

In tbe court below tbe defendant counties moved to quasb tbe alternative writ of *mandamus,*which was based upon tbe said petition. From tbe order of tbe circuit court denying such motion to quasb tbe defendant counties have appealed.

*Blmer E. Barlovj*of Whitehall and *Otto M. Schlabach*of La Crosse, for tbe appellants.

For tbe relators there was a brief by *B. S. Gowie*of Whitehall and *Edward Lees*of La Crosse, and oral argument by *Mr. Gowie.*

Eschweileb, J.

Tbe court below in tbis matter in effect held that tbe defendant counties were obliged to repair and *419put in fit condition for public travel tbis bridge crossing tbe Black river between the two counties and that they should proportionately pay the expenses thereof, basing his ruling upon the provisions of sec. 1325Í, Stats. 1915, which was created by ch. 565 of the Laws of 1915, and which reads as follows:

> “Section 1325i. All public bridges, and the necessary approaches and appurtenances thereto, heretofore constructed across any river, stream or other waters forming the boundary line between two or more counties in this state by any county or any municipality or municipalities or by any county and municipality or municipalities, shall be operated, maintained and repaired at the joint expense of the counties directly joined thereby, and the expense of operating, maintaining and repairing the same, and all approaches and appurtenances thereto, shall be apportioned to and borne by each such county in proportion to the taxable property therein, as shown by the last preceding equalization by the state tax commission. Any matters relating to the repair of any such bridge, including the necessity and character thereof, upon which the county boards of such counties or the committees thereof cannot agree, may be submitted by any such county board or committee to the state highway commission for determination and the determination by said commission shall be binding upon all the counties liable for the maintenance and repair of such bridge. If any county shall not provide for or pay its full share of such expense in any year the other county or counties may provide for and pay the same, and may, at any time after thirty days after demand in writing served upon the county treasurer of the county in default, recover of such county the moneys so paid out for it, with in- . terest from the time of payment and costs of suit.”

It is contended by the defendant counties that such statute must be held null and void because in contravention of sec. 23, art. IV, Const., which is as follows:

> “The legislature shall establish but one system of town and county government, which shall be as nearly uniform as practicable.”

*420Tbat legislation concerning tbe building of bridges by towns or counties and legislation sucb as bere in question must, in order to meet tbe constitutional requirements, comply. witb tbis section of our constitution, is not an open question in tbis state. *State ex rel. Merrimac v. Hazelwood,*158 Wis. 405, 149 N. W 141.

Tbe plain language of tbis statute, speaking as it does as of tbe time of its enactment in August, 1915, applies only, to sucb bridges as were *heretofore,*tbat is in 1915, already constructed across streams wbicb formed county boundaries. Tbis language admits of no reasonable construction wbicb would allow it to apply to any bridge tbat may be constructed after August, 1915, over just sucb a boundary stream. In determining whether a bridge across a stream dividing two counties is to come within tbe intendment of tbis section it would be necessary to ascertain tbe fact whether sucb bridge bad been constructed before or after August, 1915. If tbe former it is within, if tbe latter without, tbe intention of tbe statute. Tbe bridges in tbis state tbat could be affected by tbis statute are therefore as definitely prescribed as though listed by name, number, or location in tbe act itself.

Tbe classification thus made, therefore, is based upon circumstances as they existed at tbe time of its enactment alone, and will not permit of additions to sucb class to be made from time to time. Uniformity of town and county government under tbis clause of tbe constitution requires tbat legislation affecting sucb a subject as we have bere under consideration must not be confined to present conditions or subjects only, and must be elastic enough to include conditions and subjects that may come into existence after tbe enactment of tbe legislation. *State ex rel. Merrimac v. Hazelwood,*158 Wis. 405, 149 N. W. 141; *Bingham v. Milwaukee Co.*127 Wis. 344, 347, 106 N. W. 1071; *Battles v. Doll,*113 Wis. 357, 361, 89 N. W. 187; *Wagner v. Milwaukee Co.*112 Wis. 601, *421608, 88 N. W. 577; *State ex rel. La Valle v. Sauk Co.*62 Wis. 376, 22 N. W. 572.

The same subject of uniform classification according to eonstitutional provisions is treated of in a number of other cases reaching the same conclusion. *Burnham v. Milwaukee,*98 Wis. 128, 135, 73 N. W. 1018; *Maercker v. Milwaukee,*151 Wis. 324, 329, 139 N. W. 199; *Kiley v. C., M. & St. P. R. Co.*138 Wis. 215, 220, 119 N. W. 309, 120 N. W. 756; *Bloomer v. Bloomer,*128 Wis. 297, 307, 107 N. W. 974; *State ex rel. Risch v. Trustees,*121 Wis. 44, 54, 98 N. W. 954.

We are therefore forced to hold that this sec. 13257, Stats, (ch. 565, Laws 1915), does violate the provisions of sec. 23, art. IY, Const., and is void and affords no basis for the relief for which the petitioners ask.

While there may be great practical difficulties in the way of petitioners obtaining relief from the unpleasant predicament in which they find themselves with reference to this bridge, as would appear from their petition, from the apparent disinclination of the respective towns involved to do the necessary work of reconstruction or repair in the manner provided for under secs. 1319, 1320, and 1321, Stats., yet we cannot permit such a consideration to outweigh our plain duty to declare that the courts must refuse to enforce compliance with statutes enacted in violation of constitutional provisions.

This determination of the one question renders it unnecessary to dispose of any of the other questions raised or suggested on this appeal.

*By the Court.*— The order of the circuit court is reversed, and the cause remanded with directions to quash the alternative writ of *mandamus*herein.