Summary
In Johnston v. Sheboygan (1966), 30 Wis.2d 179, 140 N.W.2d 247, the issue presented was whether a local food retailing licensing ordinance was inapplicable to bakeries because bakeries were licensed by the state.
Summary of this case from 63 Op. Att'y Gen. 34Opinion
February 2, 1966. —
March 1, 1966.
APPEAL from a judgment of the circuit court for Sheboygan county: FERDINAND H. SCHLICHTING, Circuit Judge. Affirmed.
For the appellants there was a brief by Federer, Grote, Hesslink, Rhode Neuses and Theodore A. Grote, all of Sheboygan, and oral argument by Theodore A. Grote.
For the respondents there was a brief and oral argument by Clarence H. Mertz, city attorney.
This is an action seeking a declaratory judgment concerning the alleged invalidity of a Sheboygan city licensing ordinance and seeking a permanent injunction restraining the city from enforcing the ordinance. The ordinance in question is General Ordinance 23-63-64 creating sec. 13.14 of the Sheboygan Municipal Code.
Each of the appellants is a proprietor of a bakery in Sheboygan and at all times material herein was licensed to operate a bakery under the provisions of secs. 97.10 and 97.12, Stats. They refused to apply for licenses under sec. 13.14 of the Municipal Code, alleging that the city is without authority to require them to purchase the additional license because the state has already granted them the authority to operate their bakeries. The appellants assert that the licensing provisions of sec. 13.14 are illegal and invalid.
A stipulation of facts was entered into by the parties, and the trial court upheld the licensing provisions of sec. 13.14 of the Municipal Code. The trial judge found that under sec. 97.10, Stats., the state licenses a specified activity, namely baking, while the city ordinance licenses a different activity, namely the retail sale of food products. The circuit court ruled that the city had authority to enact such an ordinance pursuant to sec. 3, art. XI of the Wisconsin constitution and sec. 62.11 (5), Stats. The court also found that the ordinance constituted a reasonable regulation under the police power.
Constitutional and Legislative Provisions Involved.
Sec. 3, art. XI, Wisconsin constitution:
"Cities and villages organized pursuant to state law are hereby empowered, to determine their local affairs and government, subject only to this constitution and to such enactments of the legislature of state-wide concern as shall with uniformity affect every city or ever village. . . ."
Sec. 62.11 (5), Stats.:
"Except as elsewhere in the statutes specifically provided, the council shall have the management and control of the city property, finances, highways, navigable waters, and the public service, and shall have power to act for the government and good order of the city, for its commercial benefit, and for the health, safety, and welfare of the public, and may carry out its powers by license, regulation, suppression, borrowing of money, tax levy, appropriation, fine, imprisonment, confiscation, and other necessary or convenient means. The powers hereby conferred shall be in addition to all other grants, and shall be limited only by express language."
Sec. 13.14 (1), Sheboygan Municipal Code:
"License Required: No person, firm, corporation or agent thereof shall sell, offer for sale, exchange or deliver in the City of Sheboygan, or with the intent to do so, have in his possession, food or food products without first having procured a license to do so from the Board of Health of the City of Sheboygan.
"The License fee shall be $5.00 for each establishment
"This ordinance shall be applicable to, but no fee shall be charged where there is in effect a current city license regulating eating and drinking establishments, dairy plants and milk distributors, liquor establishments, fermented malt liquor establishments, slaughter houses and sausage and luncheon meat processing establishments."
Sec. 97.10, Stats.:
"BAKERY LICENSE. No person shall operate a bakery without a license from the department as provided in s. 97.12. The term `bakery' means any place where bread, crackers, pies, macaroni, spaghetti, or any other food product of which flour or meal is the principal ingredient are baked, cooked or dried, or prepared or mixed for baking, cooking or drying, for sale as food; provided, that the term `bakery' shall not include a restaurant, hotel or other place wherein such products are prepared and sold exclusively with meals or lunches."
Sec. 97.12, Stats.:
"BAKERY AND CONFECTIONARY LICENSE REQUIREMENTS. (1) Application for a license to operate a bakery or a confectionary shall be in writing, shall state such pertinent information as the department may require and shall be accompanied by a fee of $15.
"(2) Licenses shall be granted under such reasonable rules and regulations as the department may prescribe pertaining to the proper handling and storing of food and the construction and sanitary condition of the place and equipment to be used.
"(3) All licenses shall expire on February 28 following the effective date. No license shall be transferable. A transfer of the business or the discontinuance of its operation by the licensee at the place covered by the license voids the license and the license certificate shall be surrendered to the department immediately.
"(4) Sections 97.10 and 97.11 and this section shall apply to any person operating a bakery or a confectionary in a vehicle or in any portable structure at a fair, carnival or other temporary location, but a separate license shall be required for each vehicle or portable structure so used. No such license shall be void on account of operation by the licensee at different locations, providing each location and the period of its occupancy by the licensee is registered with and approved by the department."
The appellants urge that sec. 13.14 (1) of the Sheboygan Municipal Code is invalid because it collides with an enactment of the legislature on the same subject, because it is discriminatory in its application, because it is designed to produce revenue, and because it exceeds the basic authority of a city. We will consider each of these challenges to the enactment.
The appellants point to secs. 97.10 and 97.12, Stats., and urge that the ordinance of the city of Sheboygan purports to regulate the same subject which has been fully covered (and thereby pre-empted) by secs. 97.10 and 97.12. In Milwaukee v. Piscuine (1963), 18 Wis.2d 599, 602, 119 N.W.2d 442, this court held that an ordinance adopted by a city under its home-rule authority and police power will be upheld unless it is in direct conflict with a state statute on the same subject or is found to be unreasonable or arbitrary.
We do not regard the ordinance in question as being in conflict with secs. 97.10 and 97.12, Stats. The latter statutes provide that "no person shall operate a bakery without a license." A "bakery" is defined as a place where enumerated food products are "baked, cooked or dried, or prepared or mixed for baking, cooking or drying, for sale as food." Thus, the aforesaid Wisconsin statutes would appear to regulate the production activities of a bakery, while the ordinance relates to the sale of food products, including baked goods. While the statute regulates one operation of a bakery, the ordinance regulates another, and no direct conflict results. In Milwaukee Childs Co. (1928), 195 Wis. 148, 151, 217 N.W. 703, this court stated:
". . . municipalities may enact ordinances in the same field and on the same subject covered by state legislation where such ordinances do not conflict with, but rather complement, the state legislation."
La Crosse Rendering Works v. La Crosse (1939), 231 Wis. 438, 455, 285 N.W. 393; Fox v. Racine (1937), 225 Wis. 542, 545, 275 N.W. 513.
We recognize that the distinction that we make here is a narrow one. Nevertheless, it is a meaningful distinction, and our observing it is consistent with our responsibility to uphold the validity of an ordinance if there is any reasonable basis for so doing. Milwaukee v. Hoffmann (1965), 29 Wis.2d 193, 138 N.W.2d 223; Odelberg v. Kenosha (1963), 20 Wis.2d 346, 351, 122 N.W.2d 435; Milwaukee v. Piscuine (1963), 18 Wis.2d 599, 608, 119 N.W.2d 442.
The argument that the ordinance is discriminatory not persuasive. There is a section in the ordinance which relieves certain food establishments from paying a fee, but this is based upon a reasonable classification and does not support the charge of discrimination. The fact that portions of the ordinance apply to some persons and not to others does not render it discriminatory unless the classifications are arbitrary or unreasonable. Cf. State v. McKune (1934), 215 Wis. 592, 596, 255 N.W. 916. Liberally construing the ordinance, we must reject the claim that it is invalid by reason of an alleged discrimination. Milwaukee v. Hoffmann (1965), 29 Wis.2d 193, 138 N.W.2d 223; Dyer v. City Council of Beloit (1947), 250 Wis. 613, 616, 27 N.W.2d 733.
The appellants' argument that the ordinance is invalid because it has as its true purpose the raising of revenue is wholly unsupportable. In Milwaukee v. Hoffmann (1965), 29 Wis.2d 193, 199, 138 N.W.2d 223, this court stated:
"The charging of a reasonable fee does not corrupt the otherwise constitutional purposes of the ordinance."
In charging the modest fee of $5 for each establishment, the city of Sheboygan can hardly be said to have adopted a revenue-raising measure. A fair reading of the ordinance persuades us that in passing sec. 13.14 (1), the city has not attempted to enact a revenue measure but has instead invoked a reasonable technique for the regulation of the retail sale of food products within its boundaries.
The contention that the city of Sheboygan is not empowered to enact an ordinance is contradicted by the constitutional grant found in sec. 3, art. XI of the Wisconsin constitution and by the home-rule powers conferred by sec. 62.11 (5), Stats. In our opinion, sec. 62.11 (5) constitutes a broad grant of home-rule authority and vests the city with the authority to enact legislation to promote and protect "the health, safety and welfare of the public."
The authority which stems from the constitutional clause is limited upon its face to "local affairs." Plymouth v. Elsner (1965), 28 Wis.2d 102, 106, 135 N.W.2d 799; Muench v. Public Service Comm. (1952), 261 Wis. 492, 515c-515g, 53 N.W.2d 514, 55 N.W.2d 40; Van Gilder v. Madison (1936), 222 Wis. 58, 71, 267 N.W. 25, 268 N.W. 108. Although the functions of state and local governments often overlap, this court made the following observation in State ex rel. Ekern v. Milwaukee (1926), 190 Wis. 633, 640, 209 N.W. 860:
"We also recognize that many matters while of `statewide concern,' affecting the people and state at large somewhat remotely and indirectly, yet at the same time affect the individual municipalities directly and intimately, can consistently be, and are, `local affairs' of this amendment."
See Muench v. Public Service Comm. (1952), 261 Wis. 492, 53 N.W.2d 514.
We conclude that the protection of its citizenry from the sale of uninspected food in the city of Sheboygan is a local affair within the meaning of sec. 3, art. XI, Wisconsin constitution, even though it is also, simultaneously, of statewide interest.
There is applicable to the ordinance in question the statement of Mr. Chief Justice MARSHALL in the celebrated case of McCulloch v. Maryland (1819), 17 U.S. (4 Wheat.), 316, 421, 4 L.Ed. 579:
"Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional."
By the Court. — Judgment affirmed.
CURRIE, C.J., took no part.