Local government in Wisconsin

ERSITY'

in

LOCAL GOVERNMENT

IN

WISCONSIN

JOHNS HOPKINS UNIVERSITY STUDIES

IN

HISTORICAL AND POLITICAL SCIENCE

HERBERT B. ADAMS, Editor*

History is past Politics and Politics present History — Freeman.

EIGHTH SERIES
III

LOCAL GOVERNMENT

IN

WISCONSIN

BY DAVID E. SPENCER, A. B.

Inttructor in History, University of Wisconsin

BALTIMORE

PUBLICATION AGENCY OP THE JOHNS HOPKINS UNIVERSITY
March, 189O

COPYRIGHT, 1890, BY N. MURRAY.

JOHN MURPHY A CO., PRINTERS.

BALTIMORE.

LOCAL GOVERNMENT IN WISCONSIN.

The three general types of local government in the United
States, the town, the county and the mixed system, repre-
sented respectively by New England, Virginia and New York,
have contended for the mastery on the soil of Wisconsin. It
is the special aim of this sketch to set forth only what had a
direct bearing on this struggle, passing by, also, those features
of the town or the district, such as the courts and the admin-
istration of justice, in which Wisconsin, from the present
point of view, offers nothing peculiar.

The present Wisconsin was a part of Illinois Territory.
Owing partly to the original claim of Virginia to the region
which became the State of Illinois, a claim strengthened by
the conquests of George Rogers Clark in 1778, and partly
to the geographical relations of Virginia, Kentucky and Illi-
nois,- the population of Illinois in 1818, confined to the
northern half of the State, was mainly of Southern origin ;
and Southern influences controlled all political affairs and
moulded the institutions. Thus the local institutions of the
South were left as a heritage to Wisconsin, in common
with Michigan, when severed from Illinois. In 1818 a
law of Michigan Territory made it the duty of the gov-
ernor to appoint for each county three commissioners, with
the usual power over local matters. The confirmation of
this system in a Territory whose inhabitants were then mostly
of Northern birth, was probably due to the sparse settle-
ment, which would have made the town organization imprac-
ticable. This law remained in force until 1827; but it was
2 5

6 Local Government in Wisconsin. [94

provided in 1825, that the commissioners should be elected by
the people of the county.

In that portion of the Territory west of Lake Michigan,
however, the act of 1818 had little effect for several years.
Green Bay, which in 1824 had only about six hundred inhab-
itants, and Prairie du Chien, with an even smaller population,
were the only settlements in the State.1 At the former settle-
ment there were justices of the peace; but their jurisdiction,
besides being, as a matter of course, limited in extent, was
very irregular in exercise ; and military rule prevailed till
1824. In that year regular terms of a new court established
by law of Congress the year before were held at Prairie du
Chien and Green Bay by Judge James D. Doty. And there-
after the civil power bore complete sway.

At Prairie du Chien a civil jurisdiction above the com-
petence of a justice of the peace seems to have been established
a little earlier than at Green Bay.3 But there, too, the gov-
ernment was essentially military until 1822.4 In that year
the borough of Prairie du Chien was incorporated. There
were to be elected a warden and two burgesses, corresponding
to the president and trustees of our villages. The organiza-
tion and powers of Prairie du Chien " borough " were essen-
tially the same as those of villages in Wisconsin and other
States. With the exception of Green Bay, incorporated in
1838, this is the only instance of the use of the term " bor-
ough " in Wisconsin. These early laws were copied from the
codes of Eastern States, and the one for the incorporation of
Prairie du Chien was taken from the statutes of Connecticut

1 Except a very small one at La Pointe, which, for the present purpose,
may be left out of account.

8 For some account of rude frontier justice and an idea of the kind of
government west of Lake Michigan prior to 1825, see, besides the refer-
ences in the note below, Wisconsin Historical Collections, I, 59-61 ; II, 87-90,
105-7, 120-2, 126; III, 248-9; IV, 165-6.

3 See especially Wis. Hist. Coll., II, 115.

4 Instances of arbitrary and oppressive acts on the part of the officers of
the posts may be found in Wis. Hist. Coll., II, 84-6, 128-9, 229-30, 250.

95] Local Government in Wisconsin. 7

and Ohio. Pennsylvania, New Jersey and Connecticut are
the only States that have " boroughs." And the name as
applied here, doubtless came from the Connecticut laws.
" The borough," says the annalist of Prairie du Chien, " passed
and repealed by-laws for about three years and stopped busi-
ness in 1825."

It was the influence of Governor Cass, who, born and bred
in New Hampshire, was thoroughly imbued with New Eng-
land ideas of local government, that led Congress in 1827 to
establish the New York system in Michigan Territory. The
county commissioner system was abolished, and towns were
organized. Each town was to elect one supervisor, and the
supervisors from all the towns in the county were collectively
to form a county board. The towns had the more important
business, e. g., control of highways, management of poor-
houses, supervision of schools ; but town accounts were audited
and allowed by the county board.

As far as the present territory of Wisconsin is concerned,
this law is of little account. The towns of Green Bay and
St. Anthony, which included respectively the villages of
Green Bay and Prairie du Chien, were then the only settled
portions of Wisconsin, and hence the only parts having
regular civil government. These towns were specially ex-
cepted from this law of 1827, and given a special organization
better suited to the scant population. In each were to be
elected three supervisors, who were to perform the duties of
both town and county supervisors. This was virtually the
old system. There appear to have been no towns organized
in the present Wisconsin, under this law.

Many acts relating to the county, town and school district
may be found on the Michigan Territory statute books from
1827 to 1835.1 But these had little operation in the unsettled

1 It is worthy of note that there was some confusion in the use of the
terms "town" and "township "in these and after years, the latter term
being sometimes used to designate the civil sub-division. See page 15 of
the present sketch for a quite recent instance of confusion of these words
on the part of our law-makers.

8 Local Government in Wisconsin. [96

and undeveloped country west of the lake, and such changes
as were made in the distribution of powers between county
and town were very slight. It was not until after the organi-
zation of Wisconsin Territory in 1836 that any important
alteration took place. The discovery of lead in southwestern
Wisconsin in 1827, brought a large immigration, chiefly from
Southern States, into that region during the next decade.
Thus, in the new territory, the Southern people of the lead
region formed the majority, and in 1837 established the system
of county commissioners. This shows the strong sympathies
of southwestern Wisconsin with Southern institutions.

In 1836 was passed a general law of village incorporation,
and in 1838 towns were organized for judicial and police pur-
poses, and given some minor power in regard to roads.

The statute books of the first years of the Territory show
numerous instances of direct control of local affairs through
special acts of the legislature. Thus counties were authorized
to build bridges and levy taxes therefor, to borrow money, set
off towns, sell lands, open roads, etc. So also towns were
empowered to borrow money and school districts to levy taxes.
But by the law of 1841, presently to be described, this inter-
ference with local concerns was largely prevented by the
enactment of general regulations. The more extensive and
complex the local business the greater becomes the evil and in
fact the impracticability of special legislation.

The Black Hawk expedition of 1832 had reported a rich
farming region on the western shore of Lake Michigan. The
land was purchased from the Indians, and an immense immi-
gration immediately took place from New England and New
York. This new element soon overbalanced the population
of the lead region. A demand arose for the restoration of the
more democratic form of local government, and in 1841 North-
ern influences and ideas once more triumphed.1 Numerous

1<(An act to provide for the government of the several towns in the
Territory and for the revision of county government" (1841).

97] Local Government in Wisconsin. 9

petitions for the change had been presented to the legislature,
chiefly from citizens of the eastern counties, while petitions on
the other side came from the lead region. In some localities
the results of the county commissioner system had caused
considerable dissatisfaction. Newspaper editorials denounced
the existing system as "anti-democratic," and as causing
" heavy taxes and unequal and improper assessments." " Each
town," said The Milwaukee Sentinel of September 8, 1 840, " is
most competent to judge of its own wants and regulate its own
affairs, and if left to itself would better secure the interests of
its inhabitants than a more remote, expensive, and to them, in
a measure, irresponsible body." These extracts sum up the
chief grounds on which the county-commissioner plan was
opposed. In some localities also, as in Washington county,
the requirements of the increasing population burdened the
three commissioners with an excessive amount of work in
regard to roads, schools, valuation, and levy of taxes. A
larger body became necessary to cope with the growth of local
business. The continued attachment of the people of the lead
region to the existing system was doubtless due solely to their
Southern proclivities.

The new law provided that the people of each county might
vote " for " or " against " county government. The vote was
taken at the general election in 1841 ; and the returns, as
reported to the legislature on February 3, 1842, show that the
eastern counties, settled by Northern people, voted by large
majorities against county government, while Green, Crawford,
and Iowa counties voted for the old system.1 In the spring
of 1842 the change was thus effected in the counties of Jeffer-
son, Milwaukee, Wai worth, Racine, Fond du Lac, Rock and
Brown. Others made the change in succeeding years, so that
when Wisconsin was admitted as a State, in 1848, all had
adopted the town organization except the southwestern coun-
ties,— Grant, Green, La Fayette, Iowa and Sauk. In these
the Southern influence still prevailed.

1 House Jour., Wis. Terr. Legis., 1841, p. 224.

10 Local Government in Wisconsin. [98

By the new State constitution, the legislature was required
to establish " but one system of town and county government,
which shall be as uniform as practicable."1 Accordingly the
New York system, substantially what we now have, was
adopted, and the southwestern counties were obliged to re-or-
ganize on this plan.2

Perhaps no feature of the changes made is more important
than that concerning the control of the common schools. Up
to 1848 the arrangements for school management were very
complicated. At first local school powers were vested in three
sets of officers, namely, three town commissioners to pay wages,
lay out districts, call meetings, three district directors to locate
school houses, hire teachers and levy school taxes, and five
town inspectors to examine and license teachers and inspect the
schools. In 1839 the town commissioners were abolished,
their powers being divided between the inspectors and the
county commissioners. But in 1841 the town commissioners
were restored, and five district officers, a clerk, a collector and
three trustees were provided for. The outcome of such a system
was the greatest confusion and consequent dissatisfaction.8
Yet it continued substantially unchanged till 1848. Since
then a large part of the powers formerly vested in the town
officers have been exercised by the district boards of three
chosen in the respective districts themselves. The town com-
missioners and inspectors were replaced by a town superin-
tendent, who retained the functions of supervision and licens-
ing of teachers, while the other powers formerly exercised by
the town through its officers were given up to the districts.
While this was an improvement on the cumbrous system

1 Const, of Wis., Art. IV., sec. 23.

* A mark of the peculiarity of the southwestern counties is seen in Art.
XIV, sec. 12, of the Constitution ; the Assembly districts of Grant, Iowa
and La Fayette counties consisted of "precincts" instead of towns. The
same, however, is true also of an eastern county, Sheboygan.

3 For the early school system in Wisconsin see Whitford, Historical Sketch
of Education in Wisconsin, pp. 24-28.

99] Local Government in Wisconsin. 11

it superseded, a still further advance was made in 1862, when
the town superintendency was abolished, the greater part of
the duties of the office being transferred to a superintendent
elected for the entire county. Abler men are thus secured for
the work of school supervision, which is accordingly far more
intelligent and effective.1

Doubtless the southwestern counties would have retained
the old system for many years but for the provision in the
constitution requiring uniformity. The lead region must then
have contained a large element, perhaps a majority, of citizens
bred under Northern influences ; but other causes than sec-
tional prejudice or tradition were operating in favor of
Southern methods of local government. It was urged, in
numerous petitions to the legislature, that the system of three
county commissioners involved less expense than that in which
the governing body consisted of as many individuals as there
were towns in the county. These petitions came from all
portions of the State.

Section 22, article IV, of the constitution reads, in part,
" The legislature may confer upon the boards of supervisors
of the several counties " certain powers, thus implying that
the " uniform " system established by the legislature should
be the supervisor system. This term and that of Commis-
sioner had come to have definite and distinct meanings;
and were in common usage, in legal signification, and in the
intent of the framers of the constitution, not interchangeable.
The one, by general and legal usage, designated the system of
New York, in which the county board consists of supervisors
from the towns ; by the other was understood the system of
commissioners chosen for the entire county. The bill pre-
sented to the legislature provided that the " county board of
supervisors should consist of three electors," one to be elected
in each of the three districts in which the county was to be
divided. But in those counties that contained three or more

1 The development of town control of schools is spoken of, p. 15, below.

12 Local Govwnment in Wisconsin. [100

assembly districts a supervisor was to be elected in each
assembly district, and one additional supervisor for the county
at large where there was an even number of assembly districts.
This arrangement was made with the purpose of making
the number of supervisors proportionate to the population of
the respective counties ; and, in consequence, to the amount of
business in regard to roads, schools, taxes, etc., to be transacted
in each. Each county board would consist of at least three
members, but the number in every county would be much
smaller than under the existing system. As far as the rather
limited business of the county is concerned, this was at least
an approach to the spirit of the Virginia plan, with its con-
centration of power in the hands of a few. But the main
purpose of the supporters of the new plan was to have a
smaller body to transact county business, and at the same time
to adjust the number composing it to the population and public
business of each county. The system in which each town fur-
nishes a member of the county board, making a comparatively
large number in that body, was regarded as too cumbersome
and expensive for the newer and more thinly settled counties of
the State. It was thought that, in these at least, business
would be transacted with greater efficiency and dispatch by a
board of three or five members. On the other hand, in the
older counties, where population was denser and more com-
pact, and where local affairs had attained a great extent and a
considerable complexity, a larger board, securing representa-
tion to each small locality, was deemed necessary. The extent
of the financial and general interests involved in such counties
demanded a large body to secure careful attention to the inter-
ests of each locality.

The people of these counties, therefore, regarded the new
plan as a step backward ; as a return to the spirit of institu-
tions that the constitution had specially sought to avoid. The
petitioners generally used the term " county commissioners "
to express the desired system, but the legislators who framed
the law used the word " supervisors," and thus evaded the
plain and well-known intent of the constitution.

101] Local Government in Wisconsin. 13

The opponents of the proposed plan accordingly argued
that it was unconstitutional, and also urged its repugnance to
the spirit and forms of democratic institutions. The minority
report of the committee on town and county organization *
declared that the bill " contracts the representative privileges
of the people and concentrates power in the hands of the few."
Further, — " Person and property are periled. It is a miserly
policy that seeks to put money into the scale against popular
rights."

In accordance with a very general desire for a change in the
county organization, the bill became a law.2 The town organi-
zation, however, remained intact ; and as the town with us is
more prominent than the county, having in charge the most
important local interests, this change in the county organiza-
tion was of relatively small consequence.

But it was of sufficient moment to secure repeated con-
sideration on the part of succeeding legislatures ; 3 and from
1867 on, a series of successful attempts on the part of some
counties to secure an organization similar in effect, if not in
form, to that which had prevailed from 1849 to 1861. We
may take the case of Washington county as an example. There,
a special law of 1868 provided for a board of eight members,
while its population entitled it to but three under the general
law. The question was brought before the supreme court,
which decided that the board of eight members was clearly
illegal as being hostile to the uniformity in the different
counties required by the constitution.4 But several other
counties,5 in the two or three years previous to 1870, made

1 Wis. Assembly Jour., 1861, p. 563.
« Laws of Wis., 1861, chapter 129.

8 See especially Laws of Wisconsin, 1862, chapter 399; 1865, chapter 75.
By the latter act the biennial election provided for by the acts of 1861 and
1862 was retained, but only part of the supervisors were to go out of office
each year.

4 State ex rel. Peck vs. Eiordan and others, 24 Wis., 484.

6 Sheboygan, Green and Calumet.

14 Local Government in Wisconsin. [102

similar changes in such manner as to conform to the constitu-
tional provision ; at least, the question of the legality of their
organization was not brought before the supreme court.

In 1870 the supervisor system was restored. As in 1861,
the unconstitutionally of the existing system, as evinced by
the wording of the constitution, the debates in the conven-
tion, and the manner in which the law was put in force, was
urged on one side, while cheapness was the main argument on
the other. Representation of each town in the county board
was thought necessary to prevent injustice toward any one
town and to bring the governing body into closer relations of
responsibility to the tax-payers. The transfer of local busi-
ness from the legislature to the county boards and the conse-
quent reduction of the length of the sessions was also urged
by the advocates of the change. The argument in regard to
cost was very strong, but the spirit of republican government
triumphed over the consideration of expense, and the New
York system was re-established and has continued in opera-
tion to the present time.

The general type and spirit of our local organisms, county,
town and district, are not likely soon to undergo any change.
Indeed the system of local government originating in New
York and copied by Michigan, Illinois, Wisconsin and Ne-
braska, is the model to which the other States of the Union
will, it is very probable, ultimately conform. And while
rearrangements in the details, the minor and unessential points,
are constantly taking place with every session of the legis-
lature, there is at present no tendency to disturb the balance
of power between the Wisconsin local organisms in respect to
highways and general taxation.

But as regards the two other most important local concerns,
care of the poor and management of schools, there are tenden-
cies toward important changes.

It is at the option of any county to take the entire care of
paupers into its own hands to the exclusion of the town.
Where this is done the whole management is put into the

103] Zoca£ Government in Wisconsin. 15

hands of three superintendents of the poor, chosen by the
county board. Many counties have adopted this plan. In
the same line, but in this case at the expense of the State,
is the tendency to place the insane in county asylums instead
of in the State hospitals, to which latter, accordingly, their
name of hospital comes more fittingly to correspond. In 1888
sixteen counties had county asylums for the chronic insane.
This movement is due to the efforts of the State Board of
Charities and Reform who advocate the county asylum as fur-
nishing for the patients greater opportunities for occupation,
freedom and individual treatment, and as being cheaper.1
Here, then, the county is somewhat gaining over the town. On
the other hand, mention may be made of the town local option
law, of which, however, few localities have taken advantage.
As respects elementary education, now the very foremost
object of local government, the establishment of town high
schools, toward which a current, though yet very slow, has
set in, will have a very great influence for the improvement
and elevation of the whole public school system. In 1869
the township system2 of school government, in which the clerks
of the sub-districts constitute the town school board, was made
optional ; but it had no popular hold, and in 1875 a law pro-
viding for free high schools was passed, partly to encourage
the adoption of the township system.3 Comparatively few
towns, however, have established it, but in some of these
its value has been conclusively demonstrated. And one of
the things at present most earnestly desired by leaders in
school matters in the State is the general establishment of
these town high schools.4

1 See Biennial Report of the State Board of Charities and Reform, 1887-8,
p. xiv.

For a comparison of the arguments for and against county system of poor
relief see the Report for 1885-6, pp. 179-82, xv-xx. See also Report of
1887-8, p. viii.

* This, of course, ought to have been called in the statute the town system.
3 See Report of State Superintendent, pp. 33-34.

* For the advantages of the town as compared with the district system,
see School Laws of Wisconsin, 1885, pp. 150-2.

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