Opinion
November 8, 1950 —
December 5, 1950.
APPEAL from a judgment of the circuit court for Kenosha county: ALFRED L. DRURY, Circuit Judge. Affirmed.
For the appellants there was a brief by McGowan, Geffs, Geffs Block of Janesville, and oral argument by Jacob Geffs.
For the respondent there was a brief by Robert V. Baker, city attorney, and Cavanagh, Mittelstaed, Sheldon Heide of Kenosha of counsel, and oral argument by Mr. Baker and Mr. William A. Sheldon.
Action commenced by Ray C. Schutt and Dean Milk Company, a corporation, against the city of Kenosha, August 29, 1949. There was an order to show cause and the issuance of a temporary restraining order, based upon the pleadings and affidavits.
Among other things, the plaintiffs' complaint alleged that the following section of the Kenosha milk ordinance is unconstitutional:
"b. Inspection fee: Plant, processing milk and any of whose products shall be delivered in Kenosha, shall pay one half of one cent per hundred pounds of all milk processed in such plant. This fee shall be computed and paid on or before the 5th day of each month for the previous month."
The record shows the following: On August 1, 1949, the city of Kenosha issued a milk dealer's license to Dean Milk Company. On August 31, 1949, plaintiffs appeared at the city hall in response to a letter from the Kenosha health department stating that it had been found that milk which had not been inspected by that department had been received at the Dean Milk Company's pasteurization plant, that the health department considered this a violation of the ordinance, and that plaintiff would be given a hearing as to why its permit should not be revoked. As a result of an informal discussion held at the hearing, the following stipulation was drawn up:
"Whereas the parties agree that the only real issue in dispute is the constitutionality of the inspection fee of the Kenosha milk ordinance as applied to this plaintiff, and that the other matters upon which the said temporary injunction was issued have become moot, and,
"Whereas the parties are desirous of eliminating all unnecessary preliminary motions, and to present the real issue involved in said case without delay and undue expense.
"Now, therefore, it is stipulated as follows:
"1. That the city of Kenosha waives any right to revoke the said permit for any alleged prior violation, and any similar violation, during the pendency of this action in this court.
"2. That the plaintiff will file with the city a statement as provided in the city ordinance showing the pounds of milk processed at the Chemung, Illinois, plant, and will pay the amount of the inspection fee over and above any credits due to the plaintiffs to the clerk of this court to abide the final judgment of this court.
"3. That the temporary order issued on August 29, 1949, is hereby vacated."
Pursuant to the stipulation, the temporary injunction was vacated on September 8, 1949. On September 17, 1949, the city filed a general demurrer to plaintiffs' complaint, on November 14, 1949, the court granted plaintiffs leave to file an amended complaint, and on December 3, 1949, defendant served an answer to the amended complaint and a motion for summary judgment. In its decision of December 28, 1949, denying said summary judgment, the court said that the pleadings raised issues of fact regarding the amount of milk sold in Kenosha, whether the fees were designed to recover a reasonable portion of the cost or whether they exceeded the same, and whether the fees were reasonable or unreasonable. Thereafter, in an order of March 31, 1950, following an order to show cause served by defendant on plaintiff January 6, 1950, the court refused to relieve defendant from the terms of the stipulation, refused to dismiss plaintiffs' complaint, but granted defendant leave to amend its answer. Thereupon defendant added in its amended answer the following allegation:
"Alleges that by reason of plaintiffs' election to apply for and receive a license or permit to deliver milk within the city limits of Kenosha, Wisconsin, and thereby having enjoyed the privileges accorded thereto, it is estopped from asserting or litigating the constitutionality of the ordinance or any portion thereof under and pursuant to the terms and conditions of which said license or permit was issued."
On April 1, 1950, defendant made another motion for summary judgment, which was heard April 10, 1950; and on May 10, 1950, the court rendered its decision in favor of defendant. Judgment dismissing plaintiffs' complaint and taxing costs against them was entered May 26, 1950. Plaintiffs appeal.
The decision from which plaintiffs appeal holds that an applicant for permission to operate under an ordinance such as this cannot accept the permit and simply "by reason of the language in the application for the permit in question" reserve at the same time the right to contest the constitutionality of the ordinance under which the permit is issued.
The learned trial judge was of the opinion that a party cannot pursue two inconsistent remedies in the same action, and, citing 9 R.C.L., Election of Remedies, p. 958, and other authorities, he ruled that the controlling question before him related solely to the right to contest the constitutionality of the ordinance after accepting its benefits, because of an attempted reservation of such right; and then that the "questions should be answered in the negative and that the motion of the defendant for summary judgment should be granted."
In this ruling the circuit court followed the precedents which have established the law applicable to this particular situation. One is not injured while acting under and having the advantage of the terms of the ordinance. Our authorities are to the effect that, although in a proper case a court may declare whether the legislative body, including a common council, has exceeded its constitutional powers in an enactment complained of, "it is a rule of universal application that no one but a person injured can question the constitutionality of a law." Boyd v. State (1935), 217 Wis. 149, 258 N.W. 330; Appeal of Van Dyke (1935), 217 Wis. 528, 259 N.W. 700; Goodland v. Zimmerman (1943), 243 Wis. 459, 466, 10 N.W.2d 180. In the Goodland Case, supra, it was said:"For these reasons the question of constitutionality sought to be raised by the pleadings is not presented in this case." It seems self-evident that a stipulation, however fair on its face, cannot overturn a policy so fixed by authority and precedent as is the rule which was followed by the court below.
Recognizing the fact that under the existing laws serious questions may arise where the issues are accompanied by substantial doubt, courts and authorities have endeavored to afford reasonable relief when the questions are properly presented.
The trial court, in his memorandum decision, cited the case of Pera v. Shorewood (1922), 176 Wis. 261, 263, 186 N.W. 623, and quoted the following:
"This reservation may well preserve the right of the plaintiff to contest the validity of the ordinance in a proper proceeding, but it cannot have that effect in the proceeding now before us. As stated, the filing of the claim asserted the validity of the ordinance and the statute under which it was passed otherwise the plaintiff could not contend that his, claim had any validity. When he took his appeal to the circuit court from its disallowance by the village he did so as an aggrieved party, again asserting by his acts the validity of the ordinance. So he came into court relying upon the ordinance as the valid basis for his claim. Having instituted his action upon the sole basis of the validity of the ordinance, he cannot now seek to maintain it by asserting the invalidity of that which enabled him to come into court. This case is parallel with that of Hurley v. Commission of Fisheries (U.S.) 42 Sup. Ct. 83, decided by the supreme court of the United States December 5, 1921, where it was held that a plaintiff could not claim under a statute and assail it in the same proceeding. To do so would enable parties to make use of a statute as a valid one during one stage of action, and then, upon a certain point therein being reached, continue it upon the basis that it is invalid because from thence on it seems to be more advantageous to claim its invalidity. This is a species of legal somersault or suicide that courts will not tolerate."
See also Booth Fisheries Co. v. Industrial Comm. (1924), 185 Wis. 127, 200 N.W. 775; and Fahey v. Mallonee (1947), 332 U.S. 245, 67 Sup. Ct. 1552, 91 L.Ed. 2030, at page 255, where it is said by Mr. Justice JACKSON: "It is an elementary rule of constitutional law that one may not `retain the benefits of the act while attacking the constitutionality of one of its important conditions.'"
By the Court. — Judgment affirmed.
I am of the opinion that the authorities cited in the majority opinion have no application to the factual situation which exists in the instant case.
Booth Fisheries Co. v. Industrial Comm. (1924), 185 Wis. 127, 200 N.W. 775, holds simply that an employer who had the right to operate outside or within the Workmen's Compensation Act and who elects to come under the provisions of the act must accept such act in its entirety.
In Pera v. Shorewood (1922), 176 Wis. 261, 263, 186 N.W. 623, the plaintiff sought to recover on a claim for damage to his property occasioned by districting under a village zoning ordinance. His claim was disallowed and he brought suit to recover under a section of the ordinance. In connection `with that suit he also sought to challenge the validity of the ordinance. The court there said:
"The only question raised by the plaintiff on his appeal is the constitutionality of sec. 61.35, Stats., delegating the power to the village to pass an ordinance dividing the village into districts. He claims it is unconstitutional for various reasons. Upon the state of the record and the statute referred to we cannot pass upon the question raised. When plaintiff filed his claim with the village for compensation for damages caused by the districting of the village he asserted the validity of the ordinance, though the claim as filed contained this statement:
"`This claim is submitted and filed without prejudice to any of the rights and privileges of the claimant to contest the validity of said ordinance.'
"This reservation may well preserve the right of the plaintiff to contest the validity of the ordinance in a proper proceeding, but it cannot have that effect in the proceeding now before us. As stated, the filing of the claim asserted the validity of the ordinance and the statute under which it was passed, otherwise the plaintiff could not contend that his claim had any validity. When he took his appeal to the circuit court from its disallowance by the village he did so as an aggrieved party, again asserting by his acts the validity the ordinance. So he came into court relying upon the ordinance as the valid basis for his claim. . . ."
The appellants in the instant case have a right to do business in Kenosha in the absence of any ordinance. They likewise have the right to concede that Kenosha may pass valid ordinances under the police power for protection of its citizens. It would also appear that they should have the right to comply conditionally during the pendency of litigation challenging the provision. This they attempted to do.
If the majority opinion is sound, then in the event that any city should by ordinance levy a confiscatory tax under the guise of expense of inspection and enforcement of a health measure, every established business operating within such city and affected thereby would have to cease business and suffer the consequential losses in order to test the validity of the ordinance.
The city, of course, had the right to refuse appellants a permit in the absence of complete compliance with the ordinance. The city did deny appellants' application once because of a reservation in the application of the right to contest the validity of the ordinance. Later, upon an application containing the identical reservation, the city entered into the stipulation for payment of the moneys into court and issued its permit. Appellants had a right to retain their funds, but were induced by the city's stipulation to pay into the hands of the clerk of court to abide the decision of the court. This is not a maneuver engaged in by one seeking to gain advantages under an ordinance while seeking to avoid its obligations. I can see nothing sly or contrary to public policy in the appellants' conduct.
If the assessments required by the ordinance are valid, appellants are willing to pay; if not, they expect the clerk of court to refund their money. Either way, they are entitled to do business in Kenosha, and have gained no unfair advantage by the terms of their stipulation with the city.
There is no reason why the appellants should not have a determination in this litigation of the validity of the ordinance questioned.
I am authorized to say that Mr. Justice MARTIN and Mr. Justice GEHL concur in this dissent.