#### State ex rel. Village of Merrimac and others, Respondents, vs. Hazelwood and others, as the State Highway Commission, Appellants.

*May 5*

October 27, *1914.*

*Bridges: Constitutional law: System of town and county government: Uniformity: Taxation: Special law: Validity.*

1. Tlie general statutory plan or system for the construction of highway bridges is a part of the “system of town and county government” which, under sec. 23, .art. IV, Const., must “be as nearly uniform as practicable;” and where it is practicable to build a bridge under that system, a statute (ch. 586, Laws of 1913) providing for its construction in an entirely different way is invalid.

2. Ch. 586, Laws of 1913, providing for the construction of a certain bridge and requiring two counties to levy and collect certain fixed amounts of taxes for that purpose upon presentation to the county boards of petitions showing certain facts, is a special law for the assessment and collection of taxes and is void under sec. 31, art. IV, Const.

*406Appjsau from an order of tbe circuit court for Dane county: E. Ray StevbNS, Circuit Judge.

*Reversed.*

*Mandamus*action to compel tbe State Highway Commission to act under cb. 586, Laws of 1913.

An alternative writ of *mandamus*was duly sued out of tbe circuit court for Dane county requiring tbe State Highway Commission to proceed under such chapter or show cause why to tbe contrary. Tbe purpose was to test tbe constitutionality of such chapter. Issue in respect to tbe matter was joined by a motion to quash. Tbe motion was denied. This appeal is from the order in that regard.

Tbe purpose of tbe legislative act thus appears in its title:

“An act to authorize tbe erection, construction, and maintenance of a free wagon bridge across tbe Wisconsin river in tbe counties of Sauk, and Columbia at or near tbe village of Merrimac, Sauk county, Y/isconsin, and to make tbe state park at Devils Lake more accessible, and creating section 112 — 122 of tbe statutes, and making an appropriation therefor.”

Tbe act purports to authorize tbe construction of tbe particular bridge mentioned in tbe title; partly at the expense of particular municipalities in Sauk county and Columbia county, partly at tbe expense of tbe two counties, and partly at tbe expense of tbe state; any group of freeholders desiring tbe improvement being given authority, — by depositing with tbe county treasurer fifty per cent, of any minor municipality’s share which it may have refused to provide and presenting to tbe board of such municipality a petition stating tbe facts and including a receipt for such money signed by tbe county treasurer, — to obligate such municipality to burden itself with tbe other fifty per cent.

Tbe village and town of Merrimac in Sauk county and tbe towns of West Point, Caledonia, and Lodi, and village of Lodi, in Columbia county are tbe designated minor con*407tributing municipalities. Tbe burden was thus apportioned: $5,000 to tbe village of Merrimac, $5,000 to town of Merri-mac, $5,000 to town of West Point, $1,000 to town of Caledonia, $2,000 to town of Lodi, $2,000 to village of Lodi; each to raise its share either by issuance of bonds or by taxation or by the compulsory feature referred to. Provision is made for the matter being submitted to the electors in their respective minor municipalities. Upon providing their respective shares in any of the ways authorized, and the governing boards thereof making due presentment of the facts to their respective county boards, such boards are required to appropriate their respective county shares and to cause the same to be raised as other county taxes are required to be. Upon $40,000 being thus provided for, the state is required to pay the balance of the cost of the bridge, not exceeding $50,000, the same to be taken from any money in the treasury not otherwise appropriated.

The exact location of the bridge is left to such municipalities. The State Plighway Commission is required to provide the engineering service and superintend the construction, all of its services to be at the expense of the state.

The act provides that the bridge when completed “shall be operated and maintained in the first instance at the joint expense” .of the particular minor municipalities “in proportion to the amounts originally contributed” and “if any of such municipalities shall not provide or pay its full share of such expense in any year, any or all of the remaining municipalities may provide for or pay it, and upon paying the same may recover of the municipality or municipalities in default, its or their share- of the same” with interest and costs. The counties are required to reimburse the municipalities for - such expenditures to the extent of one fourth thereof.

The act provides that the money raised by tbe minor municipalities and counties shall be paid into the state treasury, *408and that all expenses of constructing-, the bridge shall be disbursed upon orders drawn by the State Highway Commission.

The State Highway Commission contended that the act in question is void, particularly because it violates .the constitutional mandate as to singleness and uniformity of town and county government, and the constitutional prohibition of special legislation for the assessment or collection of taxes. The circuit court decided' to the contrary and denied the motion to quash.

Eor the appellants there were briefs by the *Attorney General*and *Walter Drew,*deputy attorney‘general, and oral argument by *Mr. Drew.*

Eor the respondents' there were briefs by *Grotophorsl, Evans & Thomas,*attorneys, and *Richmond, Jackman & Bwansen,*of counsel, and oral argument by *Evan A. Evans*and *8. T. 8wansen.*

They contended, *inter alia,*that the law in question does not pertain to the system of town and county government. *Chicago & N. W. R. Co. v. Langlade Co.*56 Wis. 614, 623, 14 IST. W. 84-4; *Ex parte Wall,*48 Cal. 279, 17 Am. Rep. 425; *Enterprise v. State,*29 Fla. 128, 10 South. 740, 746; *Single v. Marathon Co.*38 Wis. 363, 372; *Cath-cart v. Comstock,*56 Wis. 609, 14 H. W. 842; *State ex rel. Graef v. Forest Co.*74 Wis. 610, 618, 43 H. W. 551; *Forest Co. v. Langlade Co.*76 Wis. 605, 45 H. W. 598 ; *Bryant v. Robbins,*70 Wis. 258, 35 H. W. 545; *Rock Co. v. Edgerton,*90 Wis. 288, 289, 63 H. W. 291; *Slate ex rel. McCoale v. Kersten,*118 Wis. 287, 292, 95 E. -W. 120; *Verges v. Milwaukee Co.*116 Wis. 191, 200, 93 É. W. 44. There is no system of town and county government in Wisconsin applicable to the situation disclosed in the petition. *Jensen v. Polk Co.*47 Wis. 298, 309, 2 E. W. 320. The exigencies of the situation demanded the legislation in question. The constitutional provision merely enacts that the system of- town and county government shall be as nearly uniform as *prac*
      *409
      *ticable.*Complete uniformity is neither required nor possible. Tbe degree in ■which differences are permissible must necessarily be a legislative question, unless indeed the departure from uniformity is so gross and. glaring that the court can say the legislature has not exercised judgment or discretion. *State ex rel. Peek v. Riordan,*24 Wis. 484; *State ex rel. Keenan v. Milwaukee Co.*25 Wis. 339; *State ex rel. McCoale v. Kersten,*118 Wis. 287, 95 U. W. 120; *State ex rel. Qrundi v. Abert,*32 Wis. 403, 405; *State ex rel. Sommer v. Erickson,*120 Wis. 435, 98 U. W. 253; *Cathcart v. Comstock,*56 Wis. 590, 14 TF. W. 833; *Rooney v. Milwaukee Co.*40 Wis. 23; *Rock Co. v. Edgerton,*90 Wis. 288, 291, 63 1ST. W. 291; *State ex rel. Att’y Gen. v. Cunningham,*81 AVis. 440, 484, 508, 518, 51 TT. AY 724; *State ex rel. Lamb v. Cunningham,*83 Wis. 90, 143, 53 U. W. 35; *Land, L. & L. Co. v. Brown,*73 Wis. 294, 40 1ST. W. 482.

AVikulow, C. J.

The questions in this case are two, viz.: (1) Does the law violate the requirement of uniformity of town and county government (sec. 23, art. IV, Const.) ? and (2) Is it a special or private law for assessment or collection of taxes (sec. 31, art. IV, Const.) ?

1. The first constitutional provision above cited provides for the establishment of but “one system of town and county government, which shall be as nearly uniform as practicable.”

AArere the question whether the construction of bridges is necessarily a part of the “system of town and county government” a new one, there might be room for serious doubt about it. It is not new, however. This court after mature deliberation has held that the building of bridges and viaducts is a function of town and county government and is within the constitutional provision. *State ex rel. La Valle v. Sauk Co.*62 Wis. 376, 22 N. W. 572; *Wagner v. Milwaukee Co.*112 Wis. 601, 88 N. W. 577. See, also, *Bryant v.*
      *410
      *Robbins,*70 Wis. 258, 35 N. W. 545, and *State ex rel. Busacker v. Groth,*132 Wis. 283, 112 N. W. 431. The question seems no longer open. Additional force is given to these decisions by the fact that the statutes now contain a general plan or system operative throughout the state for the construction of highway bridges, including bridges over navigable rivers like the present, and this system was materially enlarged and perfected by the very legislature which passed the present act. Secs. 1318, 1319, 1320, 1321, and 1321a, Stats. The attempt to provide for the construction of this bridge in an entirely different way from that provided in the general system must be held to violate the requirement of uniformity, inasmuch as it does not appear that it is impracticable to build the same under the general system.

2. The law is clearly a special law. Does it provide for the assessment or collection of taxes ? This question must be answered in the affirmative. It has been said by this court that the constitutional provision prohibiting special legislation for assessment or collection of taxes “forbids the enactment of special laws touching the entire subject of taxation.” *Kimball v. Rosendale,*42 Wis. 407; *Chicago & N.*W. *R. Co. v. Forest Co.*95 Wis. 80, 70 N. W. 77. As this law specifically requires the two counties named to levy and collect certain fixed amounts of taxes upon presentation to the county boards of petitions showing certain facts, it is impossible to see how it can be claimed that it does not provide for both the assessment and collection of taxes.

*By the Court.*— Order reversed, and action remanded with directions to quash the alternative writ of *mandamus.*

Baeites, J.

, I concur in the conclusion reached, on the second ground stated in the opinion only.