Argued September 4, 1974. —
Decided October 1, 1974.
APPEAL from orders of the circuit court for Racine county: HOWARD J. DUROCHER and THOMAS P. CORBETT, Circuit Judges. Order in Case No. 218 affirmed; appeal from orders in Case Nos. 219, 220 and 221 dismissed.
For the appellant there were briefs by Jack Harvey, city attorney, and Edward A. Krenzke, deputy city attorney, and oral argument by Mr. Krenzke.
For the respondent there was a brief and oral argument by William D. Whitnall of Racine.
As appears from the caption, the parties in all four actions are the same. The cases have been consolidated for the purposes of appeal. At the times in question the defendant-respondent J-T Enterprises of America, Inc., operated two businesses on the first floor of a building in the city of Racine. One was a mercantile establishment selling primarily magazines, books and pictures. It occupied the front part of the first floor. The other, in the rear part of the first floor, was a theater with about 60 fixed seats. It was conducted to show adult-type films.
These actions are based upon alleged failures of J-T Enterprises to comply with the building code and theater licensing ordinances of the city of Racine. In each action the city set forth two causes of action — one for an injunction to restrain the operation of the businesses, as long as the noncompliance with the ordinance continued, and the second to collect forfeitures for violations of the ordinance.
On or about March 20, 1971, respondent J-T Enterprises made application for a building permit to the appellant city of Racine for the purpose of effecting certain improvements in the premises at 410 Main Street, Racine, Wisconsin, J-T Enterprises' principal place of business. At the time of such application the officers of J-T Enterprises were verbally informed by the chief building inspector of the city of Racine that section IND 55.05, 4 Wis. Adm. Code, required that the theater portion of the premises be separated from any other occupancy on the premises by an absolute occupancy separation as described in sec. IND 51.08, 4 Wis. Adm. Code.
"IND 55.05. Separation from other occupancies. (1) Every theater and assembly hall shall be separated from any other occupancy by an absolute occupancy separation as specified in section Ind 51.08 . . . ."
"IND 51.08 Occupancy separations. (1) When a building is used for more than one occupancy purpose, each part of the building comprising a district occupancy division shall be separated from any other occupancy division as provided for under the occupancy requirements of this code.
"(2) . . . (a) An absolute occupancy separation shall have no openings therein and shall have walls and floors of not less than 4-hour fire-resistive construction as specified in section Ind 51.04."
On April 13, 1971, J-T Enterprises opened the premises for business in violation of sec. IND 55.05 in that the motion picture viewing area was not adequately separated from the retail area. J-T Enterprises, through its officers, informed the chief building inspector for the city of Racine that it would not comply with the Wisconsin Administrative Code provisions in question, which are incorporated by reference in the ordinances of the city of Racine. On April 14, 1971, the city attorney for the city of Racine commenced action 71-212-CI (Supreme Court Case No. 218) in the name of the city of Racine, alleging the foregoing circumstances and seeking: (1) A forfeiture in the amount of $200 for respondent's operation and occupancy of the premises on April 13, 1971, in violation of sec. IND 55.05, 4 Wis. Adm. Code, and (2) an order enjoining and restraining respondent and its officers and agents from operating and occupying said premises in violation of sec. IND 55.05 and the Racine Building Code ordinance. The complaint was verified by the chief building inspector of the city of Racine.
"13.01 (5) Use and Maintenance. No person shall maintain, occupy or use a building or structure, or part thereof, that has been erected or altered in violation of the provisions of this code.
"(6) Wisconsin State Building Code. The Wisconsin State Building Code as it now exists and shall from time to time be amended by the Industrial Commission of Wisconsin is hereby adopted as a part of this section and violations of any provisions of the said code shall constitute a violation of this code."
In response, J-T Enterprises filed a "motion to dismiss" the action on the ground that the city of Racine had not authorized the commencement of the action. In support of this motion it filed an affidavit by one of its officers setting forth that a search of the published proceedings of the Racine common council disclosed no record of authorization prior to commencement of the action. No countervailing affidavit nor other proof was offered by the city to dispute this allegation.
On August 4, 1972, the circuit court, by Judge Du ROCHER, concluded ". . . that appropriate legislative authorization in an action of this kind is indispensable to its continuation and that the defendant's [J-T Enterprises'] motion to dismiss must be granted . . . ."
The order to dismiss the action followed and is now before this court on appeal.
On May 18, 1971, the common council of the city of Racine adopted Resolution 594 authorizing the city attorney to commence legal actions to secure compliance with the city's newly enacted theater licensing ordinance. In the complaint in action 71-291 (Supreme Court Case No. 219), commenced May 26, 1971, the appellant city of Racine alleged the foregoing, and further alleged that J-T Enterprises was operating its business in violation of Ordinance sec. 22.13 (4) in that the corporation had failed and refused to secure a license for the operation of its theater (such license could not be issued to J-T Enterprises until it had complied with the absolute separation requirement of sec. IND 55.0.5., 4 Wis. Adm. Code). In a first cause of action the city sought an order restraining and enjoining J-T Enterprises, its agents and officers, from using the premises as a motion picture house without first obtaining a license. In a second cause of action the city sought a $200 forfeiture for each day the premises had been used for the display of motion pictures for profit without a license ($2,600).
"RESOLVED, that the City Attorney be and he is hereby authorized and directed to take any and all legal action necessary to secure compliance with Section 22.13 of the Municipal Code of the City of Racine relating to theaters and the licensing of theaters."
Sec. 22.13 (4) "Licensing of Motion Picture Houses. (a) Motion Picture House defined. The term `Motion Picture House' as used in this ordinance is defined as any building or land area, or part thereof, used for purpose of showing or exhibiting moving pictures of any kind for admission to which entrance money is received, but not including municipally owned and operated motion picture houses.
"(b) Licenses Required. No person, firm, association or corporation shall conduct, or operate a motion picture house in any building or on any land area, nor give or conduct any show or performance therein, within the limits of the City of Racine, without first having obtained a license therefor, as provided by this ordinance.
"(c) Certificate from Building Inspector. Any person, firm, association, or corporation desiring to obtain a license to operate or conduct any motion picture house, within the limits of the City of Racine shall, before any license shall be issued, procure from the Racine Building Inspector a certificate that said applicant has fully complied with all the provisions and requirements of the ordinances of the City of Racine, and the laws of the State of Wisconsin governing the construction and equipment of such motion picture house, and that the location is in conformity with the zoning ordinance of the City."
J-T Enterprises demurred to the first cause of action on the grounds: (1) That appellant had no legal capacity to maintain an equitable cause of action for an injunction for a violation of sec. 22.13 (4) of the Racine ordinance, and (2) that the complaint did not state facts sufficient to constitute a cause of action.
The trial court sustained the demurrer on the ground that the complaint did not state facts constituting a cause of action for injunction and dismissed the appellant's first cause of action by order dated October 23, 1972. The second cause of action for forfeiture was not affected by the order sustaining the demurrer.
It is apparent from the trial court's opinion that it relied primarily upon our decision in Wind Point v. Halverson (1968), 38 Wis.2d 1, 155 N.W.2d 654. It is to be noted the legislature amended sec. 62.23 (9) (a), the basic statute, and may have done so to enlarge the right of the city in response to Wind Point.
In Cases 71-415 and 72-297 (Supreme Court Nos. 220 and 221), commenced July 23, 1971, and May 12, 1972, respectively, the city again alleged failure on the part of respondent to secure a theater license and prayed, in a first cause of action in each complaint, for an injunction; and in second causes of action for $200 per day forfeitures for each preceding day since the time the prior action was filed.
J-T Enterprises again demurred to the causes of action seeking injunctions. By stipulation and order dated January 22, 1973, the parties agreed that the decision and order of the trial court with respect to Case 71-291 (Supreme Court Case No. 219) should be binding with like effect to Cases 71-415 and 72-297 (Supreme Court Nos. 220 and 221). Judges DUROCHER and CORBETT entered orders in the last two cases sustaining the demurrers to the city's first cause of action.
The city of Racine appeals from all four orders.
1. Did the building inspector for the city of Racine have authority to commence the action alleging a violation of the building code ordinance (Supreme Court Case No. 218)?
2. Did the trial court properly deny injunctive relief for violation of a theater licensing ordinance in Supreme Court Case Nos. 219, 220 and 221?
Sec. 62.23 (9)(a), Stats., provides that the city council may provide for the enforcement of laws and ordinances relating to buildings by withholding building permits, imposition of forfeitures and injunctive action and for such purpose may establish and fill the position of building inspector. The statute is not a direct grant of power to the building inspector, but rather authorizes the city, through the common council, to invest him with such of the enumerated powers (sec. 62.11 (5)) as it may deem appropriate.
"The city council may provide for the enforcement of this section and all other laws and ordinances relating to buildings by means of the withholding of building permits, imposition of forfeitures and injunctive action, and for such purposes may establish and fill the position of building inspector. . . ."
The only provision cited to this court by the appellant purporting to authorize the city building inspector to commence action 71-212 (Supreme Court Case No. 218) is a portion of sec. 13.04 (1) (d) (i) of the Racine municipal ordinances relating to the "Powers and Duties of Building Inspector," which provides:
". . . the Building Inspector shall institute an appropriate action or proceeding at law or in equity, to restrain, correct or remove such violations and compel compliance . . ."
Standing alone, this provision might well serve as a general authorization to commence actions of the type under consideration; however, when taken in context, a quite different concept emerges. Sec. 13.03, (1) outlines a definite procedure to be followed by the building inspector with respect to code violations. An original notice of violation must be served on the violator upon discovery of the violation. The violator then has ten days to vacate or conform. If the violator has not complied at the expiration of the ten days, a second notice must be served. Only if there has not been compliance within thirty days after the second notice is the building inspector authorized to commence an action under the provision relied upon by appellant. We conclude that sec. 13.04 (1) did not vest the building inspector with authority to commence this action (Supreme Court Case No. 218) because the second notice was not served.
"13.04 (1) Powers and Duties of Building Inspector. . . . (d) Whenever any building or portion thereof is being used or occupied contrary to the provisions of this Code, the Building Inspector shall order such use or occupancy discontinued and the building or portion thereof vacated by notice served on any person using or causing such use or occupancy to be continued, and such person shall vacate such building or portion thereof within 10 days after receipt of such notice, or make the building or portion thereof comply with the requirements of this Code. . . .
"(i) If at the expiration of the time as set forth in the first notice, the instructions as stated have not been complied with, a second notice shall be served personally upon the owner, his agent or the person in possession, charge or control of such building or structure or part thereof, stating such precautionary measures as may be necessary or advisable to place such building or structure or part thereof in a safe condition. Should the necessary changes not be made within 30 days after service of such second notice, the Building Inspector shall institute an appropriate action or proceeding at law or in equity, to restrain, correct or remove such violations and compel compliance. In case of emergency or where such second notice has not been complied with, the Building Inspector may proceed with the work specified in such notice, and cause the cost of same to be paid and levied as a lien against the property."
The city further contends that by virtue of city council Resolution 594, adopted May 18, 1971, the city council ratified the commencement of this action. Resolution 594, however, specifically authorized the city building inspector ". . . to take any and all legal action necessary to secure compliance with Section 22.13 of the Municipal Code of the City of Racine relating to theaters and the licensing of theaters." Since sec. 22.13 was not enacted until April 19, 1971, and since the instant action was commenced on April 14, 1971, five days earlier, it seems that the resolution can in no way be construed as a ratification, since to do so the city council would in effect be authorizing the enforcement of an ordinance before it was enacted.
See footnote 4, supra.
The order dismissing the complaint in Supreme Court Case No. 218 must be affirmed because the common council of the city of Racine had not authorized the commencement of that action.
In the remaining three cases the question for determination is whether injunctive relief is available to prohibit noncompliance with a theater licensing ordinance.
At oral argument it was revealed that Messrs. Ruetz and Witheril, the sole owners of J-T Enterprises, had sold their interest to an individual who subsequently terminated business operations and absconded. The premises in question are presently being used as a department store. The question of mootness therefore arises. There are two facets to this question: (1) Are the causes of action for injunction moot, and (2) should this court nonetheless consider this case on the merits?
This court has consistently adhered to the rule that a case is moot when "a determination is sought which, when made, cannot have any practical effect upon an existing controversy." Schwarzbauer v. Menasha (1966), 33 Wis.2d 61, 63, 146 N.W.2d 402; State ex rel. Hernandez v. McConahey (1969), 42 Wis.2d 468, 471, 167 N.W.2d 412; Fort Howard Paper Co. v. Fort Howard Corp. (1956), 273 Wis. 356, 360, 77 N.W.2d 733; State v. Zisch (1943), 243 Wis. 175, 177, 9 N.W.2d 625; Thoenig v. Adams (1940), 236 Wis. 319, 322, 294 N.W. 826; Smith v. Smith (1932), 209 Wis. 605, 608, 245 N.W. 644. The general rule is that the court will not determine abstract principles of law.
In this case we conclude it is apparent that the question of the right to injunction is moot. The complaints all sought to enjoin the illegal use of the specific premises at 410 Main Street, Racine, Wisconsin. Since those premises are no longer occupied by the defendant-corporation and are being used for another purpose, the issuance of the requested injunctions could have no "practical effect upon an existing controversy." Appellant contended at oral argument that an injunction was needed because the city had no assurance that the defendant would not commence illegal use of the premises at some future time. This contention is not very realistic and also not in accord with existing case law.
In Walder v. Allen (1966), 31 Wis.2d 70, 141 N.W.2d 867, plaintiffs, owners of the Maple Beach Resort, sought to enjoin the defendants' use of a sign advertising the "Maple Beache Gift Shop." The defendants voluntarily removed the sign but plaintiffs nonetheless prosecuted the appeal. This court held that the complaint, which sought a perpetual injunction, was moot because its ". . . demands have been met by the removal of the sign." There was no guarantee that the defendant would not resurrect the sign at some time in the future, but the court found mootness nonetheless.
See also: Schwarzbauer v. Menasha, supra.
". . . Generally, if a question becomes moot through a change in circumstances, it will not be determined by the reviewing court. . . . It is a well-recognized exception that a reviewing court will retain jurisdiction and decide the issue if the question is one of great public importance. Carlyle v. Karns (1960), 9 Wis.2d 394, 101 N.W.2d 92; Wisconsin E. R. Board v. Allis-Chalmers W. Union (1948), 252 Wis. 436, 32 N.W.2d 190. . . ."
This court, in its discretion, has decided moot cases on the merits where the constitutionality of a statute is involved, Doering v. Swoboda (1934), 214 Wis. 481, 253 N.W. 657; and where the precise situation under consideration arises so frequently that a definitive decision is essential to guide trial courts in similar instances, Carlyle v. Karns (1960), 9 Wis.2d 394, 101 N.W.2d 92.
Moot cases will be decided on the merits only in the most exceptional or compelling circumstances.
All that could be accomplished by the issuance of an injunction would be to force compliance with the ordinance or prohibit the use of the premises in violation of the theater licensing ordinance. In this case the theater business has been discontinued and the use of the premises drastically changed. The use of the premises as a department store is in no way in violation of the theater license ordinance and there is no use nor persons left to restrain.
We, therefore, conclude the injunction issue is moot and not within an exception which would warrant a decision on the merits, and the appeal in Supreme Court Case Nos. 219, 220 and 221 should be dismissed. (We note, however, the causes of action for forfeitures in the last three cases are not affected by this decision.)
From the record, the briefs and oral argument, it is apparent that the city has pursued its remedy diligently and in good faith. It had no control over the facts which made the principal issue moot. Therefore no appeal costs should be taxed against it.
By the Court. — The order in Supreme Court Case No. 218 is affirmed; the appeal from the orders in Supreme Court Case Nos. 219, 220 and 221 is dismissed. No costs to be taxed.