Summary
considering a city ordinance case
Summary of this case from State ex rel. La Follette v. ReuterOpinion
January 9, 1967. —
January 31, 1967.
APPEAL from an order of the circuit court for Milwaukee county: WILLIAM I. O'NEILL, Circuit Judge. Affirmed.
For the appellant there was a brief by Peregrine, Schimenz Marcuvitz, attorneys, and Alan Marcuvitz of counsel, all of Milwaukee, and oral argument by Alan Marcuvitz.
For the respondent there was a brief by John J. Fleming, city attorney, and Theophilus C. Crockett, assistant city attorney, and oral argument by Mr. Crockett.
Petitioner Baer is employed as manager of the Golden Cue, a pool hall in the city of Milwaukee. On June 29, 1965, petitioner Baer was convicted in county court for violating sec. 87-13.57 of the Milwaukee Code, enacted as part of Ordinance No. 326, regulating pool halls and billiard parlors located in the city of Milwaukee. He was fined $50 or, in lieu thereof, sentenced to thirty days in county jail. Petitioner chose jail and then brought a habeas corpus proceeding, alleging that his detention, restraint and imprisonment were illegal because the ordinance upon which this detention was based was unconstitutional.
Sec. 87-13.5 contains the following definitions:
" Billiard hall as used in this ordinance means any place at which three or more billiard tables are provided to be played on for compensation.
" Billiard table means any table surrounded by a ledge or cushion with or without pockets upon which balls are impelled by a stick or cue and which include all forms of games known as `Carom,' `billiards,' `pocket billiards,' `3-cushion billiards,' `English billiards,' and all other games played on a billiard, pool, or snooker table and which also include the games known as `15-ball pool,' `8-ball pool,' `bottle pool,' `pea-pool,' and all other games played on a so-called billiard table and also all games played on a so-called `pigeon-hole table.'"
Sec. 87-13.51 requires that:
"No person or persons, firms, association, corporation, club or organization shall maintain, operate, conduct or pursue the business or occupation of keeping any billiard hall within the city of Milwaukee without a license as herein provided. The licensing and regulations provisions of this ordinance do not apply to:
"a) Billiard halls provided on premises of religious, charitable, educational, or fraternal organizations for the use of members or their guests and not for private profit although a charge is made for playing; or
"b) Billiard halls provided on the premises of bona fide clubs or social organizations not operating for private profit which provide other membership privileges and activities although a charge is made for playing."
Sec. 87-13.57 provides that:
"No person under the age of 18 years shall be admitted to or permitted to play pool or billiards in any licensed premises or to frequent, lodge, congregate or gather in such place unless accompanied by his parent or guardian.
"In no event shall card playing be permitted on such licensed premises even if such card playing is for social purposes.
"All premises in which the game of pool and billiards are played shall be so arranged and shall be so lighted at all hours that a full view of the interior shall be seen from the public thoroughfare or from adjacent rooms to which the public is admitted.
"There shall be conspicuously posted and displayed in any premises licensed under this ordinance:
"a) The license issued pursuant to this ordinance.
"b) A copy of this ordinance which shall be supplied to the licensee by the city clerk.
"c) Not less than one sign giving notice that no person under the age of 18 years is permitted on the licensed premises unless accompanied by his or her parent or guardian.
"No person while in a billiard hall shall gamble or make any bet.
"No person while in a billiard hall shall have in his possession any intoxicating liquor or fermented malt beverage unless such premises is also licensed as a Class `B' tavern pursuant to the provisions of Chapter 90 of the Milwaukee Code of Ordinances or Chapter 176, Wisconsin Statutes."
Petitioner contended that the ordinance was unconstitutional because it denied to petitioner the equal protection of the law in that the ordinance did not apply equally and impartially to those situated similarly to plaintiff. Petitioner also contended that the ordinance was unreasonable and in conflict with the right of the plaintiff to use his property. The following facts were stipulated between the parties and are the only facts in the record upon which the petitioner's claim of unconstitutionality is based.
"That there were at the time of the alleged ordinance violations and are, within the City of Milwaukee, bowling alleys, movie theatres, archery ranges, golf courses and driving ranges, game arcades, roller skating rinks, karting tracks, miniature golf courses, riding stables and various stadia and gymnasiums where athletic contests are carried on on a public and private school level and where admission is charged,
". . .
"That there were at the time of the alleged ordinance violation and are in the City of Milwaukee and on the premises of various religious, charitable, educational, fraternal and social organizations, billiard and pool tables, for the use of which there is a charge made either per player or per unit of time."
The trial court upheld the validity of the ordinance and ordered that petitioner be remanded to the custody of the sheriff. Petitioner appeals from this order.
Two issues are raised on this appeal in which the constitutionality of the Milwaukee ordinance regulating pool halls and billiard parlors is attacked:
(1) Is the ordinance unconstitutional because there is no reasonable basis for the regulation of pool halls and billiard parlors by a municipality?
(2) Is the ordinance discriminatory because it regulates billiard parlors and not other recreational facilities or because it regulates particular billiard parlors and excludes others or because it excludes pool halls or billiard parlors with less than three tables?
While appellant maintains that there is no reasonable basis for the city of Milwaukee to enact an ordinance regulating billiard parlors, the city contends that the ordinance regulating billiard parlors is a valid exercise of police power. Police power is an inherent attribute of government and encompasses regulations for "the protection of the lives, health, and property of citizens, and the promotion of good order and good morals."
Chicago, M. St. P. R. Co. v. Milwaukee (1897), 97 Wis. 418, 422, 72 N.W. 1118.
Concerning the underlying presumption of constitutionality of a municipal ordinance and its effect, we have said:
". . . [A]n ordinance is presumed to be constitutional and the attacking party must establish its invalidity beyond a reasonable doubt. If there is any reasonable basis for its enactment, the ordinance must be sustained. Furthermore, this court will not interfere with a municipality's exercise of police power unless it is clearly illegal."
J N Corp. v. Green Bay (1965), 28 Wis.2d 583, 585, 137 N.W.2d 434.
In short, a person who attacks an ordinance as unconstitutional must carry a burden of proof, beyond a reasonable doubt, that no reasonable basis exists for the enactment of the ordinance. Appellant's proof in this case is too vague and is of too little consequence to show that no basis exists for regulating pool halls. Appellant asserts, although there is no factual proof in the record, that the modern pool hall is a clean recreational area bearing no relation to the pool hall of other eras. In the absence of concrete evidence to this effect, appellant has not established a sufficient amount of proof to overcome the presumption of constitutionality.
J N Corp. v. Green Bay, supra, footnote 2; Clark Oil Refining Corp. v. Tomah (1966), 30 Wis.2d 547, 141 N.W.2d 299.
Regulation of pool halls has been sustained countless times by courts in other states. Poolrooms tend "towards a disturbance of the public welfare" and may "become congregating places for idlers and loafers." One court has said that pool halls may become a nuisance "by the presence of the professional billiardist and gambler, ready to fleece the unwary and to inculcate the gambling habit in the youth of the city." Another court concluded "The ordinance is not aimed at the game but at the place."
See Anno. 20 A.L.R. 1482, Anno. 53 A.L.R. 149, and Anno. 72 A.L.R. 1339.
Atwood v. Otter (1921), 296 Ill. 70, 81, 129 N.E. 573, 577.
Ex Parte Murphy (1908), 8 Cal.App. 440, 444, 97 P. 199, 201.
Murphy v. California (1912), 225 U.S. 623, 629, 32 Sup.Ct. 697, 56 L.Ed. 1229.
One composer, describing the pool hall in the mythical River City, put to song America's common impression of the pool hall and its bad effect on young people.
Say Boob Shove A Ball in a Pocket. Then
YA GOT TROUBLE from "The Music Man" by Meredith Willson 1957 Frank Music Corp. and Rimmer Corporation.
We conclude that there is a reasonable basis for the regulation of pool halls and billiard parlors.
Discrimination.
Appellant contends that the ordinance is discriminatory and is therefore unconstitutional because it denies him the equal protection of the laws guaranteed by the Fourteenth amendment. He first argues that the ordinance discriminates by regulating and controlling billiard rooms, while failing to do the same for many other similar businesses in the entertainment and recreation industry.
Five standards for proper classification in an ordinance were promulgated by this court in State ex rel. Ford Hopkins Co. v. Mayor. They are:
(1937), 226 Wis. 225, 222, 276 N.W. 311.
"(1) All classification must be based upon substantial distinctions which make one class really different from another.
"(2) The classification adopted must be germane to the purpose of the law.
"(3) The classification must not be based upon existing circumstances only. [The following sentence was added to No. 3 by State ex rel. Risch v. Trustees: `It must not be so constituted as to preclude addition to the numbers included within a class.']
(1904), 121 Wis. 44, 54, 98 N.W. 954.
"(4) To whatever class a law may apply, it must apply equally to each member thereof.
". . .
"`(5) That the characteristics of each class should be so far different from those of other classes as to reasonably suggest at least the propriety, having regard to the public good, of substantially different legislation.'"
The fifth rule was added in State ex rel. Risch v. Trustees, supra, footnote 10, at page 54.
Before appellant can avail himself of these rules to challenge any distinctions among classes of recreation or classes of pool halls, he again must overcome a presumption that the classifications are reasonable and proper. This court stated this presumption in Kiley v. Chicago, M. St. P. R. Co. as follows:
(1910), 142 Wis. 154, 159, 125 N.W. 464.
". . . On the other hand, the question whether there is room or necessity for classification is one resting primarily with the legislature, and no court is justified in declaring classification baseless unless it can say without doubt no one could reasonably conclude that there is any substantial difference justifying different legislative treatment."
The burden of proof is on appellant to show that no basis for the classifications of the Milwaukee city council exist. Appellant has produced no evidence on this issue and therefore has not overcome the presumption of constitutionality of the classifications made by the ordinance.
Notwithstanding appellant's failure of proof, on the merits his contention that pool halls may not be regulated when other recreational and entertainment industries are not regulated cannot be sustained. This court has said that legislation in the exercise of the police power may proceed piecemeal depending on the seriousness of the evil presented in a particular industry and occupation. The United States supreme court states the principle as follows:
Kuhl Motor Co. v. Ford Motor Co. (1955), 270 Wis. 488, 503, 71 N.W.2d 420; Borden Co. v. McDowell (1959), 8 Wis.2d 246, 260, 99 N.W.2d 146. See also concurring opinion by Mr. Chief Justice CURRIE in J N Corp. v. Green Bay, supra, footnote 2, at page 588.
"Evils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think. . . . Or the reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind."
Williamson v. Lee Optical Co. (1955), 348 U.S. 483, 489, 75 Sup.Ct. 461, 99 L.Ed. 563.
The legislature, based on its knowledge and experience with local conditions, could conclude that loitering and gambling in pool halls was more serious than in other types of recreation or entertainment. Moreover, the difficulty in policing pool hall establishments for these evils may warrant stronger sanctions and regulations.
"The legislature is `free to recognize degrees of harm and it may confine its restrictions to those classes of cases where the need is deemed to be clearest.' If `the law presumably hits the evil where it is most felt, it is not to be overthrown because there are other instances to which it might have been applied.'"
West Coast Hotel Co. v. Parrish (1937), 300 U.S. 379, 400, 57 Sup.Ct. 578, 81 L.Ed. 703.
Second, appellant argues that the ordinance is discriminatory because it excludes particular types of pool halls. The ordinance does not cover tables on premises of organizations described as religious, charitable, educational, and fraternal. It also excludes tables provided by bona fide clubs and social organizations. These classifications and exclusions appear to be based on substantial distinctions which are germane to the purpose of the law. The ordinance evinces, on its face, a strong policy toward supervision of play by minors under eighteen. The ordinance allows children under eighteen to go into any pool hall as long as they are accompanied by a parent or guardian. The basis of excluding pool halls in a religious, charitable, educational or fraternal organization, or pool halls on the premises of bona fide clubs or social organizations might very well be that play is supervised there. Moreover, the likelihood of loitering or public disturbances in pool halls of this nature would be substantially less. These considerations furnish a reasonable basis for a classification by the Milwaukee council which excludes pool halls of this type from regulation and we conclude that the ordinance is not unconstitutionally discriminatory in this connection.
Appellant also argues that the ordinance is discriminatory because it excludes pool halls where there are less than three tables. Again, a reasonable basis exists for this classification. The ordinance is aimed at controlling the congregation of too many youths. Pool halls where there are only two tables are easier to control as to public disturbances and gambling. The legislative body could well conclude that loitering would also be easier to control and supervision would be easier to impose. These considerations provide a reasonable basis for the city council to adopt the classification of pool halls according to the number of tables.
We conclude that the ordinance is not unconstitutional.
By the Court. — Order affirmed.