Benz v. Kremer

The following opinion was filed Eebruary 22, 1910:

EeRwiit, J.

While the complaint avers in great detail numerous grounds upon which it is claimed the law attacked is unconstitutional and void, the scope of investigation here is greatly narrowed by particular allegations. The only ground for refusal of license in this case, hence prosecution for carrying on the bakery business on the premises in question, as appears from the complaint, is that the plaintiff’s bakery was constructed after passage of the law requiring the floor to be not more than five feet below the level of the street, and that the plaintiffs violated the law by constructing the bakery with the floor more than five feet below. No claim is made that the plaintiffs have in any other way violated the law, or that any prosecution is threatened or has been or will be maintained for any other cause.

It is a general rule that a court of equity will not take jurisdiction to enjoin enforcement of the criminal law. But there are some exceptions to this general rule, and it has been *4 held that, where property rights are being destroyed or threatened with destruction by action under a void ordinance or law, courts of equity will take jurisdiction to prevent the injury or destruction in a proper case. Joseph Schlitz B. Co. v. Superior, 117 Wis. 297, 93 N. W. 1120; Milwaukee E. R. & L. Co. v. Bradley, 108 Wis. 467, 84 N. W. 870; Ex parte Young, 209 U. S. 123, 28 Sup. Ct. 441; Bonnett v. Vallier, 136 Wis. 193, 116 N. W. 885. And in a proper case courts of equity will enjoin enforcement of an unconstitutional law. Bonnett v. Vallier, supra; Ex parte Young, supra. Courts of equity, however, will not take jurisdiction to enjoin the enforcement of an unconstitutional law at the suit of one who does not show himself injured by it. State ex rel. Kellogg v. Currens, 111 Wis. 431, 442, 87 N. W. 561; Strange v. Oconto L. Co. 136 Wis. 516, 524, 117 N. W. 1023; Wadhams Oil Co. v. Tracy, 141 Wis. 150, 123 N. W. 785; State ex rel. Rosenhein v. Frear, 138 Wis. 173, 119 N. W. 894; Jones v. Black, 48 Ala. 540, 542; Kansas City v. U. P. R. Co. 59 Kan. 427, 53 Pac. 468; Franklin Co. v. State ex rel. Patton, 24 Fla. 55, 58, 3 South. 471; McGinness v. Davis, 7 Idaho, 665, 65 Pac. 364; Gibbs v. Green, 54 Miss. 592, 608. The foregoing cases very clearly illustrate the principle. In Wadhams Oil Co. v. Tracy, supra, the action was brought to enjoin execution of ch. 363, Laws of 1909, upon the ground that it was unconstitutional. At page 155 of 141 Wis. (123 N. W. 787) this court said:

“Doubtless when an enactment is wholly, or in greater part, unconstitutional, or in such part void that it is clear the person invoking equitable interference against persons assuming to have authority, as public officers, to enforce it, has no other way of adequately remedying the wrong, the doors of that ultimate resort should swing open freely. Put it will not do to make of the courts, by equitable interference, a sort of superior upper house to consider and pass, in general, and particular as well, upon legislative enactments, as the court is requested to do in this ease. If an enactment, in its general *5 scope and dominan! particulars, is legitimate, as a general rule, equity jurisdiction for an attack upon the law should not be invokable to test mere minor features, but they should be left to their fate as cases arise specially involving them.”

In State ex rel. Rosenhein v. Frear, 138 Wis. 173, 176, 119 N. W. 894, 895, it is said:

“Sound judicial policy precludes the court from considering the question of the constitutionality of a legislative act., unless a decision respecting its validity is essential to the de? termination of some controversy calling for judicial solution.”

And in State ex rel. Kellogg v. Currens, 111 Wis. 431, 442, 87 N. W. 561, and Strange v. Oconto L. Co. 136 Wis. 516, 524, 117 N. W. 1023, it is held that one cannot be heard to assail as unconstitutional a law which does not affect him injuriously. To the same effect are authorities in other states. In Kansas City v. U. P. R. Co. 59 Kan. 427, 53 Pac. 468, it is held that one cannot be heard to complain against a statute which discriminates between classes of persons in the imposition of burdens as being a denial of the equal protection of the laws, unless he belongs to one of the classes discriminated against. In Gibbs v. Green, 54 Miss. 592, 612, the doctrine is thus stated:

“Neither an executive nor a ministerial officer can be enjoined generally from putting a law in force. Mississippi v. Johnson, 4 Wall. 475. The complainant who seeks an injunction must be able to specify some particular act, the performance of which will damnify him, and it is such act alone that he can restrain. This court has no power to examine an act of -the legislature generally and declare it unconstitutional. The limit of our authority in this respect is to disregard as in violation of the constitution any act or part of an act which stands in the way of the legal rights of a suitor before us; but a suitor who calls upon a court of chancery to arrest the performance of a duty imposed by the legislature upon a public officer must show conclusively, not only that the act about to be performed is unconstitutional, but also that it will inflict a direct injury upon him.”

*6 As appears from the allegations of the complaint, the only provision of the law attacked as unconstitutional which affects-the plaintiffs injuriously is the following’:

“Sec. 1636 — 63. After the passage of this act no new bakery or confectionery establishment shall he established or operated in a room the floor of which is more than five feet helow the level of the street, sidewalk or adjacent ground.. . . [Laws of 1907, ch. 486.]

If this provision can stand as a valid constitutional enactment independent of the others, then the others become wholly immaterial in this action, whether constitutional or not, under the authorities heretofore cited. That bakeries are within the field of regulation under the police power is unquestionable. This is not denied by counsel for appellants, as we understand their contention. But it 'is claimed that the law under consideration is an unreasonable invasion of property rights and falls within the condemnation of the rules of law as laid down in Bonnett v. Vallier, 136 Wis. 193, 116 N. W. 885, and other' cases in this and other courts.

After all that has been said by this court in the numerous cases which have come before it in defining the police power and what is and what is not a reasonable exercise of it, it would seem unnecessary, if not useless, to attempt further discussion on the subject with a view of laying down general rules. Each case as it arises must turn upon its own particular facts under the rules of law laid down by the courts to the effect that when the legislation comes within the field of police regulation it will be sustained if within the bounds of reason, although to some extent property rights be affected. It would perhaps be difficult to imagine a police regulation which would not in some degree affect the property rights of' persons coming within the field of the regulation. And the-property of every person is held subject to the burden imposed by such reasonable regulation. State v. Heinemann, 80 Wis. 253, 49 N. W. 818; State ex rel. Adams v. Burdge, 95 Wis. 390, 398, 70 N. W. 347. All laws for the protection of’ *7 health, as well as for the quiet of the person and the security of property, fall withiu the general' police power. State ex rel. Adams v. Burdge, supra; State ex rel. Zillmer v. Kreutzberg, 114 Wis. 530, 90 N. W. 1098; State ex rel. Milwaukee Med. Coll. v. Chittenden, 127 Wis. 468, 107 N. W. 500; State v. Redmon, 134 Wis. 89, 114 N. W. 137. The manifest purpose of the legislature in passing the five-foot-limit provision heretofore quoted was in the interest of health — a health regulation, — and as such we think it a valid exercise of the police power. In State ex rel. Adams v. Burdge, 95 Wis. 390, 398, 399, 70 N. W. 349, this court said:

“As the police power imposes restrictions and burdens upon the natural and private rights of individuals, it necessarily depends upon the law for its support; and, although of comprehensive and far-reaching character, it is subject to constitutional restrictions, and, in general, it is the province of the lawmaking power to determine in what cases or upon wha.t conditions this power may be exercised.”

And in State v. Redmon, 134 Wis. 89, 112, 114 N. W. 137, 142, the court said:

“The judgment of the legislature, of course, as to all of them is to be taken as correct, unless it appears to be clearly wrong, and also it is to be taken as true that its' ostensible is its actual purpose, unless the contrary clearly appears.”

That places where breadstuff for public consumption is prepared should be sanitary would not be questioned, nor that such places where sun and air are admitted would be much more so than basements so far below the surface of the ground as to practically, or in a large degree, exclude sunlight and an abundance of pure air, and thereby render the bakery less sanitary than if constructed not mqre than five feet below the level of the street. Obviously such a regulation could not be held unreasonable when its purpose and the effect of its observance would be to promote the production of wholesome food. But it is said that the plaintiff’s bakery, though more than five feet below the surface of the ground, is still as sani *8 tary as any other, because of the physical condition of the location ; hence that there is no necessity for enforcing the law in the instant case. But individual cases cannot determine the necessity of a general law on the subject, nor indeed rule the question of classification. The question is whether, in general, the public health will be promoted by the rule, and not whether 'isolated cases do not need such a rule. If the rule be in the interest of the public health it must be general and all within the class controlled by it. State ex rel. Kellogg v. Currens, 111 Wis. 431, 442, 87 N. W. 561; State v. Evans, 130 Wis. 381, 110 N. W. 241; Kiley v. C., M. & St. P. R. Co. 138 Wis. 215, 119 N. W. 309, 120 N. W. 756; Tenement House Dept. v. Moeschen, 179 N. Y. 325, 72 N. E. 231. In dealing with the subject under consideration this court in State ex rel. Kellogg v. Currens, 111 Wis. 431, 438, 439, 87 N. W. 564, said:

“The reasons for a given statute are for the legislature, if there are any which can fairly have weight. They are not for the courts. The latter have no control over the validity of a law, unless they can say with substantial certainty that no argument or consideration of public policy exists which could have weight with any reasonable and honest man. If any such argument or reason can be suggested, its weight or sufficiency is not debatable in the courts. The existence of legitimate and adequate reasons for any law should not lightly be denied. Human minds differ, and what may seem inadequate or irrelevant to one may seem cogent to another. One is not justified, therefore, in assuming that all who differ from him are unreasonable or are not acting in good faith. It is from such considerations as these that the courts have laid down for themselves the rule that only in a clear case — clear beyond reasonable doubt — will they venture to assert that a law is without reason to support either its purpose or the classifications it may make.”

The five-foot clause of the law was considered by this court-in tire late case of State ex rel. Ohlenforst v. Beck, 139 Wis. 37, 119 N. W. 300, and, while the opinion is not direct authority upon the point involved here, it at least recognizes the *9 right of the legislature to impose such regulation. The five-foot provision must of course be a reasonable regulation in the light of the authorities cited. The appellants rely largely upon State v. Redmon, 134 Wis. 89, 114 N. W. 137; Bonnett v. Vallier, 136 Wis. 193, 116 N. W. 885; and Lochner v. New York, 198 U. S. 45, 25 Sup. Ct. 539. But these cases are not controlling here. In Bonnett v. Vallier, supra, the regulations imposed, as well as the penalty, were unreasonable, drastic, and destructive of property rights, as will be seen by an examination of the opinion. In State v. Redmon, supra, the act was an unreasonable invasion of property rights by attempting to give the occupant of a lower berth in a sleeping car control of the upper berth, thereby depriving the owner of the use and enjoyment of his property without compensation, not in the interest of the public, but of the occupant of the lower berth. And in Lochner v. New York, supra, the main question upon which the case turned was the right of liberty to contract respecting the hours of labor; that a law limiting the hours of labor could not be justified as a health law to safeguard the public health, or the health of the individual following the occupation of a baker.

Other provisions of the law are exhaustively discussed and claimed to be unconstitutional by counsel for appellants; but we need not consider them and do not decide whether valid or not because they do not injuriously affect the appellants here.

We are convinced that the provision for the violation of which prosecutions have been commenced and are threatened is a reasonable and valid exercise of the police power, and therefore the complaint states no cause of action.

By the Court. — The order appealed from is affirmed.