Opinion
March 4, 1963 —
April 2, 1963.
APPEAL from a judgment of the circuit court for Dane county: EDWIN M. WILKIE, Circuit Judge. Reversed.
For the appellants the cause was argued by Richard E. Barrett and John E. Armstrong, assistant attorneys general, with whom on the brief was John W. Reynolds, attorney general.
No brief or appearance for the respondents.
A brief amici curiae was filed by Charles C. Collins and C. R. Gray of Washington, D.C., for the American Automobile Association, and by Stephens, Bieberstein, Cooper, Bruemmer Gartzke of Madison, for the Wisconsin Division, American Automobile Association.
Warren H. Fuller and Wayne H. Fuller, as individuals and as representatives of a class similarly situated, brought this action to test the constitutionality of sec. 84.30, Stats., and certain administrative regulations promulgated thereunder.
The trial court held sec. 84.30, Stats., to be constitutional in all respects. However, secs. Hy 19.03 (2), (3), and (4) and 19.05 (4), (6), and (9), 2 Wis. Adm. Code, were held to be unconstitutional because of their being discriminatory and unreasonably restrictive.
The State Highway Commission appeals only from that portion of the judgment which declared the regulations invalid.
Additional facts will be given in the opinion.
Regulations.
"Hy 19.03 LOCATION AND SPACING OF SIGNS. Within the zone of regulation prescribed by section 84.30 (3), Wis. Stats., and of the classes defined by paragraphs (c), (d), and (e) of said section, and considered independently for each of the two directions of travel on each interstate system highway, no sign visible to interstate system travel is permitted which is:
". . .
"(2) Within 1,000 feet of another sign or in excess of two signs within any mile distance measured from any point;
"(3) In excess of six signs located between two and five miles in advance of an intersection of the main-traveled way of an interstate highway and an exit roadway;
"(4) In excess of an average of one sign per mile in the space which is more than five miles in advance of an intersection as described in subsection (3) preceding;"
"Hy 19.05 ANNUAL PERMITS. Within the zone of regulation prescribed by section 84.30 (3), Wis. Stats., and of the class defined by paragraphs (b), (c), (d), and (e) of said section, no sign may be erected or maintained unless it is covered by an annual permit issued by the commission under authority of section 84.30 (5), Wis. Stats. In issuing and regulating such permits:
". . .
"(4) Except as provided in subsection (9) following, a permit for an eligible sign location shall be issued to the first applicant to submit to the commission's main office at Madison a proper and satisfactory application as determined by the commission. All applications received during the commission s normal office hours during the same day shall be construed as having been received simultaneously. In the case of a tie between applicants and upon notification thereof by the commission they shall determine by lot which shall receive the permit.
". . .
"(6) Permits and assignment of location are transferable by the permittee upon notice in writing to the commission.
". . .
"(9) Holder of a permit who has complied with the applicable statutes and these rules shall have right of renewal for the following year provided that his application is filed before the old permit expires."
The only matter before us is the defendants' appeal from the judgment which declared the above-recited regulations to be unconstitutional. The plaintiffs did not participate in this appeal.
In 1958, Congress included in the Federal-Aid Highway Act provisions which were designed to encourage and assist the states in the control of outdoor advertising on the national system of interstate and defense highways. Public Law 85-767, 72 U.S. Stat. at L., p. 904 (1958), 23 U.S.C. § 131 (1958). The act announced that it was in the public interest to encourage and assist the states in controlling the erection and maintenance of outdoor advertising signs and declared it to be the national policy to regulate billboards within 660 feet of the edge of the right-of-way and visible to the main-traveled part of the interstate highway system.
The states, although legally obliged to do nothing, could receive a "bonus" of one half of one percent in their applicable federal-aid allotments on projects on which advertising was controlled in accordance with the national standards.
The Federal Act provided that specific regulations were to be formulated by the secretary of commerce and that in order for a state to acquire the "bonus," said state must comply with those regulations. 23 C. F. R. (1963 Supp.), secs. 20.1-20.10. For discussions of outdoor advertising in connection with the interstate highway system, see 46 California Law Review (1958), 796, 8 Kansas Law Review (1959), 81, and 38 Nebraska Law Review (1959), 541.
In 1959, in order to comply with the National Act, Wisconsin passed ch. 458, Laws of 1959, appearing as sec. 84.30, Stats. In sub. (4) of this statute, the State Highway Commission is directed to establish rules consistent with sec. 84.30 and the national policy expressed in the Federal-Aid Highway Act. The dispute upon this appeal relates to some of the regulations formulated by the State Highway Commission.
The Fullers have a total of nine signs on their property, two of which advertise their restaurant business, the other six their gas station. The record also contains testimony of other merchants in this same locality who have signs located on their property. In addition, there is testimony of an owner of land adjacent to Highway I-94 who leased a portion of his land for advertising purposes.
The appellants have urged us to pass upon the constitutionality of the basic statute. We decline to do so since there has been no appeal from that portion of the judgment. Malco v. Midwest Aluminum Sales (1961), 14 Wis.2d 57, 63, 109 N.W.2d 516; Gallagher v. Gallagher (1921), 174 Wis. 32, 35, 182 N.W. 323. The validity of the quoted regulations is the subject of this appeal. Supreme Court Rule 32, sec. 251.32, Stats., provides as follows:
"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."
Since we have not had the benefit of a brief or oral argument by the respondents, we reverse "as of course," pursuant to Rule 32. State ex rel. Gresholdt v. Board of Appeals (1961), 12 Wis.2d 516, 107 N.W.2d 484; In re Folsom, (1955), 270 Wis. 100, 70 N.W.2d 30.
By the Court. — The portion of the judgment appealed from is reversed under sec. 251.32, Stats., without costs.
WILKIE, J., took no part.