The trial court gave judgment for the plaintiffs in this controversy which was submitted to the court as a stipulated case under the provisions of sec. 269.01, Stats. The facts recited herein are taken from the stipulation. The plaintiff city of Marshfield is a municipal corporation operating a joint school district under the city school plan as provided by secs. 40.80 to 40.827. The plaintiff L.E. Buchmiller is the treasurer of the city of Marshfield. The territory of the school district lies partly in Wood county, which has a population of more than 50,000, partly in Marathon county, which also has a population of more than 50,000, and partly in Clark county, which has a population of less than 50,000. The defendant towns of Cameron, Marshfield, Lincoln, Rock, and Richfield are situated in Wood county, and the defendant town of McMillan is situated in Marathon county.

Each of these towns includes a part of the territory of the school district operated by the plaintiff city. The six intervenors are all property owners, electors, citizens, and taxpayers residing in the aforesaid towns. These individuals intervene on their own behalf and on behalf of all other persons who are electors, citizens, and taxpayers residing in each of the towns represented by an individual intervenor.

During the year 1961, there were certain utilities which operated and had property in the towns in which parts of the school district conducted by the plaintiff city are located. These utilities paid taxes into the state treasury on or about December 1, 1961, on account of such utility operations and property, pursuant to the provisions of ch. 76, Stats., and in lieu of payment of general property taxes from which these utilities were exempt under the provisions of secs. 70.112 and 76.23, Stats. From these taxes paid into the state treasury, the state treasurer, on or about December 15, 1961, distributed to the following municipalities the following amounts:

The following amounts have been paid to the city of Marshfield for the use of the school district by the following municipalities:

The city alleges, and the defendants and intervenors deny, that sec. 76.28, Stats., should be construed to require the defendants to pay to the city the amounts which the city claims. The defendants and the intervenors allege, and the city denies, that sec. 76.28 is unconstitutional and repugnant and violative of the Fourteenth amendment to the United States constitution.

On the basis of this stipulated case, the trial court rendered judgment for the plaintiffs and ordered:

"1. That plaintiffs are entitled to an apportionment from the defendants [towns] of the utility tax receipts received by said defendants for the year 1961 upon the basis set forth in Section 76.28 of the Wisconsin Statutes;

"2. That the defendants, and each of them, are hereby ordered to compute the portion of said 1961 utility taxes due the plaintiffs and make payment thereof forthwith."

The defendants and intervenors appeal from this judgment.

Statute Involved.

"76.28 APPORTIONMENT OF TAX RECEIPTS; TERMINALS.

". . .

"(3) In all counties having a population of 50,000 or less, 50 per cent of the amount of taxes received by any town or village from the state treasurer as specified in subsection (1) shall be retained by the treasurer thereof for general town or village purposes, and the remaining 50 per cent shall be equitably apportioned by the town board or village trustees to the various school districts or parts of school districts in which the property of such company is located, in proportion to the amount which the property of such company within each such school district bears to the total valuation of the property of such company in the town or village or part thereof; provided, that no such school districts shall in any event receive from this fund an amount, which when added to all other aids received from both county and state, shall exceed the actual cost of operating and maintaining its school. Where any joint school district lies partly in a county having a population of 50,000 or less and partly in a county having a population of more than 50,000 such apportionment shall be made to the district by the governing body of every city, village and town in which a portion of such joint school district lies. Any excess above this amount shall be retained by and is allotted to the town or village; provided, however, no such apportionment shall be made by the governing body of any town, village or city to a joint school district unless the governing body of every other town, village and city located within such joint school district is required by law to likewise make such apportionment of its share of such taxes to the joint school district, and in such case the amount which otherwise would have been apportioned to the joint school district shall be retained by the town, village or city for its general purpose. Where property of any such company is situated on a highway which divides 2 districts, the value of such property shall be apportioned equally between such 2 districts."

GORDON, J.

Pursuant to the stipulated case, the plaintiffs sought an order requiring the defendants to pay a portion of the latters' receipts from the 1961 utility taxes. The defendants, on the other hand, sought a determination that sec. 76.28, Stats., is unconstitutional. The trial court rejected the defendants' contention and entered judgment in favor of the plaintiffs.

In support of their contention that sec. 76.28, Stats., is unconstitutional, the appellants make two principal arguments. First, they contend that sub. (3) of the statute is void for indefiniteness and uncertainty. Secondly, it is urged that sec. 76.28 is arbitrary and capricious in its classifications and thereby contravenes both the due-process and the equal-protection provisions of the Fourteenth amendment to the United States constitution.

I. Indefiniteness and Uncertainty of the Statute.

Our reading of sec. 76.28(3), Stats., brings to mind the dour observation that "law is common sense as modified by the legislature." The appellants refer to sec. 76.28(3) as "a monstrosity" which is laden with "mumbo jumbo." It is undeniable that the meaning of the statute is elusive and that it is not easily comprehensible. Nevertheless, it is the burden of the judiciary, in examining legislative enactments, to uphold such pronouncements if any reasonably intelligible analysis can result. It is not the court's function to determine the wisdom of legislative enactments. Appleton v. Outagamie County (1928), 197 Wis. 4, 220 N.W. 393.

In State ex rel. Carlson v. Kingston (1933), 210 Wis. 301, 304, 246 N.W. 426, the court noted with reference to sec. 76.28, Stats. (prior to the 1939 and 1947 amendments): "If the statute works inequitably, the remedy lies with the legislature and not with the courts."

Careful and patient reading of the 1939 amendment (ch. 516, Laws of 1939) results in our conclusion that the legislature directed that whenever a joint school district extends into one or more counties with 50,000 population or less and also into a county with more than 50,000 population, in such case every municipality (including cities in such districts) must apportion.

The 1947 amendment (ch. 237, Laws of 1947) reflects a legislative determination that whenever a joint school district lies wholly within counties with 50,000 population or less and such joint school district also contains a city, the latter fact will excuse all municipalities in such district from sharing for the reason that a city is not required "by law" to share.

While the legislative intent behind the various distinctions made in the statute is not crystal clear, we cannot subscribe to the appellants' argument that the statute is so confounding as to be constitutionally offensive.

II. Arbitrary and Capricious Classifications.

The statute in question, sec. 76.28, Stats., apportions utility tax receipts in a different manner for counties having various size populations. Sub. (3) distinguishes between counties having more or less population than 50,000. This court has often upheld classification by population. In State v. Evans (1907), 130 Wis. 381, 385, 110 N.W. 241, we said:

"That there are distinctions between large and dense communities and small and sparser ones as separate classes is, of course, obvious. That such differences are germane and relevant to some purposes of legislation has been declared, almost without limit, by courts."

A comparable conclusion has been expressed in other Wisconsin cases. Estate of Ebeling (1919), 169 Wis. 432, 437, 172 N.W. 734; Rinder v. Madison (1916), 163 Wis. 525, 532, 158 N.W. 302.

A broad constitutional attack against sec. 76.28, Stats., was made in the case of State ex rel. Joint School Dist. v. Becker (1928), 194 Wis. 464, 215 N.W. 902. There, at page 469, the court concluded that there was no violation of due process since the apportionment of taxes was within the province of the legislature. See State ex rel. Superior v. Donald (1916), 163 Wis. 626, 158 N.W. 317.

Municipal corporations, being creatures of the state, are not permitted to censor or supervise the activities of their creator. Accordingly, a municipality may not challenge the action of the legislature in enacting sec. 76.28, Stats. State v. Mutter (1964), 23 Wis.2d 407, 127 N.W.2d 15; In re Application of Racine (1928), 196 Wis. 604, 220 N.W. 398. Although towns are denominated "quasi-municipal corporations," they are likewise "political subdivisions and governmental agencies of the state." Milwaukee v. Sewerage Comm. (1954), 268 Wis. 342, 349, 67 N.W.2d 624.

It is also well established that municipalities may not invoke privileges and immunities under the federal constitution in opposition to the will of the state. Thus, a municipality cannot complain of a denial of the equal protection of the laws or of a violation of due process within the meaning of the Fourteenth amendment when the issue pertains to the effect of a state statute upon such municipality. Williams v. Baltimore (1933), 289 U.S. 36, 53 Sup. Ct. 431, 77 L.Ed. 1015; Trenton v. New Jersey (1923), 262 U.S. 182, 43 Sup. Ct. 534, 67 L.Ed. 937.

However, in the instant case we have the presence of individual intervenors who are "property owners, electors, citizens, and taxpayers," and they do not suffer from the same limitations as the defendant towns. Accordingly, the question of constitutionality has been properly raised.

We conclude that sec. 76.28, Stats., as amended, does not violate either the federal or the state constitutions and is not arbitrary or capricious in its classifications.

By the Court. — Judgment affirmed.