Opinion
April 8, 1955 —
May 3, 1955.
APPEAL from an order of the county court of Green Lake county: G. E. OSTRANDER, Judge. Reversed.
For the appellant there was a brief by J. L. McMonigal, district attorney, attorney, and the Attorney General and William A. Platz, assistant attorney general, of counsel, and oral argument by Mr. Platz.
No brief or appearance for the respondents.
The proceeding is one to compel adult children of Bert and Addie Folsom to contribute to the support of their parents. The county court dismissed the proceeding and the appeal is from the order of dismissal.
Bert and Addie Folsom receive old-age assistance from Green Lake county. On representations made by the County Public Welfare Department that these people had three children able to contribute to the support of their parents, the district attorney of the county filed a petition with the court setting forth such facts and demanding that a hearing be had for the purpose of determining the legal responsibility of such children for the complete or partial support of their parents. The procedure followed was that prescribed by sec. 52.01, Stats. 1953. The court set a time and place for hearing the petition and the three children appeared by counsel and moved to dismiss the petition, alleging that sec. 52.01 is unconstitutional for numerous reasons. The court granted the motion on one such ground and denied it on all the others. No appeal was taken by the children from such denials. The board has appealed from the order dismissing the petition. The respondents have not filed briefs nor otherwise appeared in the appellate court.
The county court determined that sec. 52.01, Stats., is unconstitutional by reason of that part of sub. (4) which is inclosed in parentheses, as follows:
"The county court shall in a summary way hear the allegations and proofs of the parties and by order require maintenance from such relatives, if of sufficient ability (having due regard for their own future maintenance and making reasonable allowance for the protection of the property and investments from which they derive their living and their care and protection in old age) in the following order: First the husband or wife; then the father; then the children and the county court may consider whether or not the parents have supported the children in the manner prescribed by law; and lastly the mother. . . ."
The trial court's decision and order is:
"Now when we get down to the reason stated in the eighth ground for its being unconstitutional, I believe that it is clearly unconstitutional or at least is unenforceable because of uncertainty because of the following language:
"`Having due regard for their own future maintenance and making reasonable allowance for [the protection of the property and] investments from which they derive their living and their care and protection in old age.'
"I believe that this is so indefinite and uncertain that it makes the entire section unconstitutional. The court cannot leave out parts of a section, but must construe it as a whole. I dare say that without this wording I could uphold the reality, but with it in the statute I believe it must be held to be unconstitutional. This has given some concern in the past, but it has not become necessary for me to pass on it, but now it has been squarely put up to me and I do not see how I can uphold the section with that wording in it.
"The decision of the court is that section 49.07 as amended by chapter 275, Laws of 1953, and indexed in the 1953 statutes as chapter 52, section 52.01, subsection 4, is unconstitutional as indefinite and uncertain and I am so holding.
"Therefore this petition is dismissed."
We are extremely reluctant to determine constitutional questions at all upon presentation of only one side of the question and still more reluctant to hold an act of the legislature unconstitutional, even by affirmance of a trial court, when the party alleging the unconstitutionality offers nothing in support of his contention. Under such circumstances we will not attempt to determine the merits of the proposition if it can be avoided. Sec. 251.32, Stats. (Supreme Court Rule 32), states:
"When a cause is submitted or presented by counsel for appellant or plaintiff in error, but not by the opposing party, the judgment or order appealed from may be reversed as of course, without argument."
We invoke that statute now and in accordance with it, and solely because of it, reverse the order of the learned county court.
By the Court. — Order reversed, and cause remanded with directions to the county court to proceed with the hearing and determination of the petition as though the constitutionality of sec. 52.01, Stats., had been upheld on its merits.