author: Hallows, J.

text:
    Dunwiddie, Respondent, v. Rock County, Appellant.

      October 6

    November 2, 1965.

      For the appellant there were briefs by Campbell, Brennan, Steil & Ryan and James E. Brennan, all of Janesville, and oral argument by James E. Brennan.

    For the respondent there was a brief by Stephens, Bieber-stein, Cooper, Bruemmer & Gartske of Madison, and oral argument by John L. Bruemmer.

   Hallows, J.

In Holytz v. Milwaukee (1962), 17 Wis. (2d) 26, 115 N. W. (2d) 618, this court abolished governmental immunity in tort actions. The present appeal raises the question of the scope and the extent of that decision in its application to counties and state trunk highways. At the outset a question is raised whether the complaint is sufficient to state a cause of action because of the lack of an express allegation of the existence of a contract between Rock county and the state highway commission requiring Rock county to maintain that part of State Trunk Highway 81 within its boundaries. Without such an allegation, sec. 84.07, Stats., would apply to the complaint. This section imposes the duty upon the state of Wisconsin to maintain state trunk highways. Since the duty of a county to keep a state trunk highway in repair can only arise by contract, we hold the allegation of the complaint in respect to the duty of Rock county to keep the state trunk highway within its boundaries in repair is sufficient under the liberal rules of pleading to withstand the challenge of the demurrer.

In Holytz, we reviewed the doctrine of governmental immunity from torts and pointed out the doctrine was of judicial origin and, therefore, could be withdrawn. The refusal of the court to recognize governmental immunity in the future did not create any causes of action but abrogated the defense of nonliability. In discussing the scope of the abrogation we stated it applied to all public bodies within the state, including counties, and for clarity we added (p. 39), “. . . henceforward, so far as governmental responsibility for torts is concerned, the rule is liability — the exception immunity.” It was pointed out that, “If the legislature deems it better public policy, it is, of course, free to reinstate immunity. The legislature may also impose ceilings on the amount of damages or set up administrative requirements which may be preliminary to the commencement of judicial proceedings for an alleged tort. See, for example, the notice provisions and the limitation of the amount of damages in sec. 81.15, Stats.”

Rock county contends Holytz does not affect its immunity from torts in the area of defective state highways even though it has a contractual duty to repair and maintain such highways because secs. 81.15 and 84.07, Stats., constitute an expression of legislative intent granting immunity to the county in respect to state trunk highways. It is contended in this respect the county’s immunity is not of judicial but legislative origin. There is no doubt that at the time of the Holytz decision a county had limited liability in respect to damages caused by the insufficiency or want of repair of a highway which the county by law or by agreement with any town, city, or village, was bound to keep in repair and had immunity in respect to state trunk highways. While we find in the legislative history of secs. 81.15 and 84.07 an intent not to remove immunity from counties in respect to state trunk highways which by agreement they undertake to maintain, we find no affirmative granting of such immunity by any legislative action.

In 1917 the state legislature created a state trunk highway system by enacting ch. 175, Laws of 1917, and placed upon each county the duty of maintaining the state trunk highways lying within its boundaries. Counties were also made liable for claim for damages due to the insufficiency and lack of repair of such highways. However, in 1931 by sec. 3, ch. 22, Laws of 1931, sec. 84.07 of the statutes was re-created and provided the state trunk highway system should be maintained at state expense, thus shifting the duty of maintaining such highways from the counties to the state. This section also permitted the state highway commission to contract with any county to maintain state trunk highways within its limits and to be reimbursed for such maintenance. Nothing was provided concerning county liability but it follows that in the absence of governmental immunity, either of legislative or judicial origin, a county undertaking by contract to keep a state trunk highway in repair would be liable for its failure to do so.

In Larsen v. Kewaunee County (1932), 209 Wis. 204, 244 N. W. 578, relied on by the appellant, it was held that since under sec. 84.07, Stats., a county had no duty to maintain a state trunk highway and although the county had a contract with the state to keep the state trunk highway in repair, the county under sec. 81.15 was not liable for its negligence in failing to keep such highway in repair because it was so bound by contract and not “bound by law.” The court thus recognized that sec. 81.15 did not remove governmental immunity from a county in respect to state trunk highways. This doctrine was followed in Crowley v. Clark County (1935), 219 Wis. 76, 261 N. W. 221. In that case the plaintiff was injured while a passenger in a car which collided with a road grader on a state trunk highway which Clark county by contract with the state was required to maintain. After the Crowley Case, the legislature amended sec. 81.15 to provide a county was liable for insufficiency or want of repair of any road which it by agreement with any town, city, or village, was bound to keep in repair, but this amendment did not include a contract between a county and the state. The effect of this omission was raised in Firemen’s Ins. Co. v. Washburn County (1957), 2 Wis. (2d) 214, 85 N. W. (2d) 840, wherein it was held this omission indicated the rule of Larsen and Crowley was not changed and governmental immunity from torts still attached to counties in the area of defective state trunk highways even though it agreed with the state by contract to maintain such highways and keep them in repair.

This legislative history does not as claimed by Rock county reinstate governmental immunity or even preserve such immunity and isolate a county from the effects of the Holytz decision. The failure of the legislature to abrogate governmental immunity of counties in respect to defects in state trunk highways which they by contract agreed to maintain did not create any greater preferred standing for counties than the failure of the legislature to abrogate governmental immunities in other tort areas. The immunity contended for by Rock county finds no basis in any affirmative legislation but existed by virtue of judicial creation and was impliedly recognized in the omission or failure of the legislature to abrogate it in whole or in part. The failure of the legislature to act is not tantamount to affirmative action granting an immunity the county already had.

In Holytz we contemplated the abrogation of the doctrine of governmental immunity would affect the area covered in sec. 81.15, Stats., and, in fact, pointed out that that section in respect to its notice provisions and limitation of amount of damages would stand and be a limitation upon the right to recover. In Lang v. Cumberland (1962), 18 Wis. (2d) 157, 165, 118 N. W. (2d) 114, in explaining the effect of Holytz in relation to sec. 81.15, we stated, Before Holytz, liability of the municipality arose by virtue of sec. 81.15 upon the giving of notice. Since Holytz, the liability would exist in the absence of the statute, and the statute is a limitation upon it.” But the only limitations of this section are in respect to notice, the limit of the amount of damages, and the requirement that accumulated snow and ice must be of three-weeks’ duration.

In deciding Holytz, it was no more necessary to expressly overrule the Larsen, Crowley, and Firemen’s Insurance Company Cases than it was the numerous other cases involving governmental immunity. With the abrogation of the doctrine those cases are no longer applicable to common-law negligence arising from the duty of a municipality or government, which in this case is the duty of Rock county to keep State Trunk Highway 81 in repair.

By the Court. — Orders affirmed.

       It is to be noted: On February 5, 1963, Bill No. 158, A., was introduced in the state assembly. Its purpose was to reinstate governmental immunity. The assembly on June 24, 1963, by a vote of 56-26 indefinitely postponed consideration of the bill. However, sec. 81.15 was amended by ch. 435, Laws of 1963, to increase the amount of liability from $10,000 to $25,000 and the notice required from thirty to one hundred and twenty days.


source: Caselaw Access Project

author: Beilfuss, J.

license: Public Domain

text:
    Frye, Plaintiff and Appellant, v. Angst, Defendant: Ohio Farmers Insurance Company and another, Defendants and Respondents.

      October 6

    November 2, 1965.

      For the appellant there was a brief by Kaftan, Kaftan & Kaftan, and oral argument by Don R. LeDuc, all of Green Bay.
    For the respondent Ohio Farmers Insurance Company there was a brief by Cornelisen, Denissen, Kranzush & Kuehn, and oral argument by David J. Condon, all of Green Bay.
    For the respondent Mutual Service Casualty Insurance Company there was a brief by Lontkowski & Lontkowski of Green Bay, and oral argument by Edward Lontkowski.

   Beilfuss, J.

The sole issue before the court is whether on these pleadings the insurance companies, or either of them, may be named as parties to the action and be sued by the plaintiff before liability under the policies is established. The questions of direct liability of the insurers to the plaintiff and coverage under the policies are not before this court.

The two pertinent statutes are:

“204.30 (4) Any bond or policy of insurance covering liability to others by reason of the operation of a motor vehicle shall be deemed and construed to contain the following conditions : That the insurer shall be liable to the persons entitled to recover for the death of any person, or for injury to person or property, irrespective of whether such liability be in praesenti or contingent and to become fixed or certain by final judgment against the insured, when caused by the negligent operation, maintenance, use or defective construction of the vehicle described therein, such liability not to exceed the amount named in said bond or policy.” (Emphasis added.)
“260.11 (1) ... In any action for damages caused by the negligent operation, management or control of a motor vehicle, any insurer of motor vehicles, which has an interest in the outcome of such controversy adverse to the plaintiff or any of the parties to such controversy, or which by its policy of insurance assumes or reserves the right to control the prosecution, defense or settlement of the claim or action of the plaintiff or any of the parties to such claim or action, or which by its policy agrees to prosecute or defend the action brought by the plaintiff or any of the parties to such action, or agrees to engage counsel to prosecute or defend said action, or agrees to pay the costs of such litigation, is by this section made a proper party defendant in any action brought by plaintiff in this state on account of any claim against the insured. The right of direct action herein given against an insurer against liability for damages to persons other than the insured arising out of the negligent operation, management or control of a motor vehicle shall exist whether the policy of insurance sued upon was issued or delivered in the state of Wisconsin or not and whether or not the policy or contract of insurance contains a provision forbidding such direct action, provided the accident or injury occurred in the state of Wisconsin.” (Emphasis added.)

Sec. 204.30 (4), Stats., provides for the direct liability of the insurer to the injured party when the conditions of that section are met. Sec. 260.11 (1) is a procedural statute to allow direct action by the injured party against the insurer when the conditions of that section are met.

The history of these statutes, as pointed out in Snorek v. Boyle (1962), 18 Wis. (2d) 202, 206, 207, 118 N. W. (2d) 132, and Smedley v. Milwaukee Automobile Ins. Co. (1961), 12 Wis. (2d) 460, 465, 466, 107 N. W. (2d) 625, requires that these statutes be considered together. Morgan v. Hunt (1928), 196 Wis. 298, 220 N. W. 224, held valid under what is now sec. 204.30 (4), a no-action clause prohibiting any action on the policy until the liability of the insured was established. The legislature, at its very next session in 1929, renumbered that section and amended it by providing that direct liability should exist even though the liability of the insured may not yet be fixed. However, the next case, Bergstein v. Popkin (1930), 202 Wis. 625, 233 N. W. 572, held that the statute did not authorize direct action against an insurer where a no-action clause existed in its policy. The court suggested that the direct-liability statute needed a supplemental procedural statute to allow a plaintiff to make an insurer a party defendant despite the no-action clause in its policy.

The legislature responded to the Berg stein Case by amending sec. 260.11 (1), Stats., to its present status. Thus, the history makes clear, as pointed out in Snorek v. Boyle, supra, at page 207, that we look to sec. 204.30 (4) to determine if there is direct liability and to sec. 260.11 (1) to determine if the insurer may be made a party to the action despite its no-action clause.

For purposes of this case we may assume that Ohio Farmers and Mutual Service are directly liable to the plaintiff under the language “negligent operation, maintenance, use or defective construction of the vehicle. ...” in sec. 204.30(4), Stats. (Emphasis added.) However, we do not decide that point, as it is not in issue on this appeal.

Plaintiff contends that the two statutes are coextensive because there appears to be no reason for the legislature to grant direct liability and refuse to allow direct action against the insurer. Plaintiff further contends that the language “management or control” of sec. 260.11 (1), Stats., is broad enough to encompass the maintenance situation admittedly involved here.

We are unable to agree with plaintiff’s contentions. The plain language of secs. 204.30 (4) and 260.11 (1), Stats., indicates that they are not identical. Sec. 204.30 (4) provides for direct liability when injury is “caused by the negligent operation, maintenance, use or defective construction of the vehicle . . . .” (Emphasis added.) This language is extremely broad. It encompasses a myriad of situations in which a motor vehicle may be in some way involved with injuries to third parties. The obvious public policy is to incorporate into automobile liability policies, by operation of law, the broadest possible coverage to protect third parties. Insurance companies should not be permitted to avoid liability to third parties by contracting with the insured to narrowly restrict coverage.

On the other hand, sec. 260.11 (1), Stats., provides for direct action against an insurer “[i]n any action for damages caused by the negligent operation, management or control of a motor vehicle, . . .” (Emphasis added.) It appears that the legislature chose to grant broad direct liability but to somewhat restrict direct action. In 1929, as noted in Bergstein v. Popkin, supra, at pp. 628, 629, the legislature had before it bills to grant direct liability and to allow direct action. (Bills 221, S., and 578, A.; Bills 220, S., and 579, A.) Only the direct-liability bill passed. This court stated in regard to the legislative action:

“If it had been the purpose of the legislature to enact a statute which would prevent an insurer from making a contract with the insured, postponing the time when an action might be brought against it to a time when the injured party had secured judgment against the insured, or the matter had been agreed upon by the parties, it failed to use language which conveys that thought. The act which was passed . . . by its terms related wholly and solely to ‘liability,’ while the bill which was refused passage related distinctly to who might be made parties defendant. The legislature quite evidently was willing to make the liability of the insurer to the injured person as absolute as possible but was not willing to deprive the insurer of the right to postpone suit against it until the amount of the damage had been ascertained as provided. . . .” Bergstein v. Popkin, supra, at page 629.

Thus, the legislature determined to provide direct liability in certain situations and to disallow direct actions. The legislature has since provided for direct action, but it is limited to the terms of sec. 260.11 (1), Stats., and is not necessarily coextensive with sec. 204.30 (4).

Sec. 260.11 (1), Stats., is not identical to or as broad as sec. 204.30 (4) ; it is much narrower when one places the language in the context of the sequence of events leading to its passage. Sec. 260.11 (1), as it stands today, grew out of a series of statutory amendments following judicial construction of existing statutes. After the Bergstein Case in 1930 held that sec. 204.30 (4) [then sec. 85.93] did not provide any procedural machinery for naming the insurer as a defendant, the legislature provided this machinery. Sec. 260.11 (1) is the result. The legislature was presented with a very specific and narrow problem when it created sec. 260.11 (1). The legislature necessarily looked at sec. 204.30 (4), since the interpretation of that section in Bergstein pointed out the need for a procedural statute. Its failure to use in sec. 260.11 (1) the identical language of sec. 204.30 (4) cannot be considered an oversight. The difference in language under these circumstances compels the construction that the statutes are not coextensive.

This conclusion becomes more obvious when one looks at the language of sec. 260.11 (1), Stats., in its legal context. The statute is a procedural one involving who can be named parties in a lawsuit. The language “operation, management or control” has a familiar ring in automobile accident litigation. For decades lawyers and judges have spoken of management and control as elements in the manipulation of a moving motor vehicle in considering the negligence of the driver. “Maintenance” of an automobile has never been considered a part of operation, or of management and control. Maintenance connotes a state of physical repair; management and control refers to the manner of its use. And even in their dictionary senses these words do not readily admit of the inclusion of maintenance.

Plaintiff contends that sec. 260.11 (1), Stats., is a remedial statute and is therefore deserving of liberal construction, as announced in Ermis v. Federal Windows Mfg. Co. (1959), 7 Wis. (2d) 549, 97 N. W. (2d) 485. However, while that section is to be liberally construed as remedial, it cannot be construed beyond the scope of the legislature’s intention as it appears from the language used. Courts must pay deference to the legislature in statutory matters, and if sec. 260.11 (1) is to be broadened, it should be amended by the legislature, not by strained judicial construction.

The legislature has not announced a general policy of granting direct liability and allowing direct actions against all insurers. The policy of direct action is found only in the language of secs. 204.30 (4) and 260.11 (1), Stats. The court should not extend this policy beyond the pronouncement of the legislature.

In view of the foregoing, we conclude that in an action based on the negligent maintenance of an automobile, sec. 260.11 (1), Stats., does not apply so as to allow insurers to be joined directly as defendants to the action.

By the Court. — Order affirmed.


author: Wilkie, J. Currie, C. J. Hallows, J.

text:
    J & N Corporation, Appellant, v. City of Green Bay and another, Respondents.

      October 7

    November 2, 1965.

      For the appellant there was a brief by Byron Swidler, attorney, and Seymour Gimbel of counsel, both of Milwaukee, and oral argument by Mr. Swidler.

    For the respondents there was a brief by Clarence W. Nier, city attorney, and Richard G. Greenwood, assistant city attorney, and oral argument by Mr. Greenwood.

   Wilkie, J.

There are two issues presented on this appeal:

First, is Green Bay ordinance sec. 16.18 (2) (i) discriminatory as to gasoline stations and therefore unconstitutional ?

Second, is sec. 16.18 (2) (i) unconstitutional because it operates as an ex post facto law ?

Discriminatory Effect.

It is elementary that an ordinance is presumed to be constitutional and that 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. That the regulation of billboards and signs is a valid exercise of a municipality’s police power is well recognized.

Sec. 16.18 (2) (i) provides, in part:

“16.18 (2) (i) All signs, with the exception of one identity sign, shall be located beyond the building set-back established for the abutting street or 15 feet from the street property line, whichever is greater. . .

Appellant contends that this section is discriminatory and therefore a denial of equal protection in that only gasoline station signs, as opposed to signs of other types of drive-in businesses, are regulated. In State ex rel. Ford Hopkins Co. v. Mayor, this court promulgated five standards which must be followed in enacting “class” ordinances. In the present case, the ordinance could be defective only in regard to the first and fifth tests, which basically require substantial distinctions in the characteristics of each class.

Here, there was little evidence introduced by either side on the peculiarities of gasoline station billboards and signs. Captain Ray Sloan, who was in charge of the traffic division of the Green Bay police department, testified that he had received numerous complaints from citizens, aldermen, and policemen in regard to these types of signs. He opined that sec. 16.18 (2) (i) would particularly promote safety because filling stations as a rule generated more traffic and were open longer than other businesses. Appellant claims that gasoline stations are no different than grocery stores, hamburger stands, or other drive-in businesses because each has ingress and egress facilities. But no proof was submitted to show that these businesses have the same number of approaches as a gas station or that the volume of traffic is identical, or that similar traffic dangers attend each type of operation.

In light of the distinctions which Captain Sloan testified actually existed in this case, and in the absence of affirmative evidence demonstrating that the dissimilarities are unreal, sec. 16.18 (2) (i) must be sustained as a valid exercise of the police power in the interests of public safety.

Ex Post Facto.

Assuming it to be valid in regard to classification, the ordinance cannot be attacked on the ground that it is an ex post jacto law since that proviso of the Wisconsin constitution only applies to criminal prosecutions. Appellant can only urge that the ordinance simply not be given a retroactive sweep so as to destroy vested rights. In Cream City Bill Posting Co. v. Milwaukee, a comprehensive Milwaukee billboard ordinance was attacked by an advertising company which had 35,000 lineal feet of billboards in the city and a payroll of $18,000. In rejecting an argument that the ordinance, which ordered the removal of all nonconforming signs within one year, was tainted because of its retroactive sweep, this court said:

“The retroactive feature of this ordinance is probably the most drastic and doubtful requirement contained in it. These structures were lawful when erected, and the ordinance in effect requires that they be torn down and replaced by others complying with its terms. In favor of the ordinance it may be said that these structures are of a flimsy and temporary character and that they must be frequently replaced. Furthermore, that there seems to be a substantial need for some alterations to be made therein within a reasonable time. The making of these alterations must practically necessitate the reconstruction of the billboards. The reasonableness of the provision must depend on the extent of the interference with the private right as well as the extent to which public welfare is involved. In case there is any reasonable doubt upon the point, it must of course be resolved in favor of the validity of the ordinance.”

If it was not unreasonable to apply retroactively an ordinance which had a profound and substantial impact on a firm actually engaged in the billboard business, it is likewise not unreasonable to require appellant to move two four-by-six-foot signs back several feet at most to conform to the ordinance. Appellant does not lose its signs as such; it must merely relocate them and, under the circumstances, this does not appear to be too onerous a requirement.

By the Court. — Judgment affirmed.

Currie, C. J.

{concurring). To follow plaintiffs contention to its logical conclusion, a legislative body could never legislate to correct a prevalent evil in one occupation or industry without offending the equal-protection-of-the-laws clause, if it were found that the same type of evil, but to a far lesser extent, existed in some other occupation or industry. This is not the law. The extent or prevalence of a particular evil sought to be regulated by exercise of the police power may in itself constitute a reasonable basis for classification.

The evidence here discloses that filling station signs of the category here involved were so prevalent as to present a safety hazard causing the city council to enact the instant ordinance. Such an ordinance is not rendered unconstitutional as an unreasonable classification merely because one drive-in liquor store had signs of the same general size located in close proximity to the street and a Good Will Industries’ collection box was located on a supermarket parking lot close to the street.

Particularly pertinent is this statement made in Kuhl Motor Co. v. Ford Motor Co.:

“While all the citizens of the state are entitled to be protected against unfair dealing by others, this does not mean that the legislature must by one sweep prohibit all unfair dealing and cannot proceed piecemeal to remedy particular types of unfair dealing which manifest themselves in particular occupations or industries.”

The opinion then proceeded to quote from the United States supreme court’s opinion in Williamson v. Lee Optical Co. including this highly significant statement:

“Evils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think. Tigner v. Texas, 310 U. S. 141 [60 Sup. Ct. 879, 84 L. Ed 1124]. 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. Semler v. Dental Examiners, 294 U. S. 608 [55 Sup. Ct. 570, 79 L. Ed. 1086].”

See also Borden Co. v. McDowell wherein this court again stated the principle that legislation in the exercise of the police power may proceed piecemeal depending on the seriousness of the evil presented in a particular industry or occupation.

Hallows, J.

(dissenting). I would reverse on the ground sec. 16.18 (2) (i) is discriminatory and, therefore, unconstitutional. I do not challenge the exercise of the police power to regulate signs which are hazardous to public safety. This section is discriminatory in my opinion because it picks out only gasoline station signs and not other drive-in businesses whose signs equally create traffic' hazards. The amount of traffic in and out of a gasoline service station furnishes no basis for a distinction between such stations and other drive-ins. It is common knowledge there is sufficient traffic to justify regulating signs of all drive-in types of businesses. The hazards of getting on and off the street and the inability to see other traffic because of the signs are the same. The size and location of the sign prohibited by the section are equally dangerous whether it advertises gasoline, root beer, hot dogs, hamburger, or a movie.

I am authorized to state Mr. Justice Gordon and Mr. Justice Beilfuss join in this dissent.

       See Odelberg v. Kenosha (1963), 20 Wis. (2d) 346, 122 N. W. (2d) 435; Courtesy Cab Co. v. Johnson (1960), 10 Wis. (2d) 426, 103 N. W. (2d) 17; Highway 100 Auto Wreckers v. West Allis (1959), 6 Wis. (2d) 637, 96 N. W. (2d) 85, 97 N. W. (2d) 423; Madison v. Chicago, M., St. P. & P. R. Co. (1958), 2 Wis. (2d) 467, 87 N. W. (2d) 251.

        Courtesy Cab Co. v. Johnson, supra, footnote 1, at page 432.

       Ibid.

        Cream City Bill Posting Co. v. Milwaukee (1914), 158 Wis. 86, 147 N. W. 25; Thomas Cusack Co. v. Chicago (1917), 242 U. S. 526, 37 Sup. Ct. 190, 61 L. Ed. 472; People v. Arlen Service Stations (1940), 284 N. Y. 340, 31 N. E. (2d) 184; Slome v. Chief of Police of Fitchburg (1939), 304 Mass. 187, 23 N. E. (2d) 133; New York State Thruway Authority v. Ashley Motor Court, Inc. (1961), 10 N. Y. (2d) 151, 176 N. E. (2d) 566.

       A second sentence of sec. 16.18 (2) (i) concerns identity signs. It provides: “The identity sign shall not exceed 10 feet in height or width nor 35 square feet in area. The bottom edge of said identity sign shall be not less than 12 feet above sidewalk grade. No sign shall be located within 25 feet of any residentially zoned property.” Neither the complaint, the testimony, nor the lower court’s decision concerned itself with this section of the ordinance and the validity or invalidity of this section is not before us on this appeal. .

       (1937), 226 Wis. 215, 222, 276 N. W. 311.

       “(1) All classification must be based upon substantial distinctions which make one class really different from another.”

       “‘(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.’ ”

       Sec. 12, art. I, Wis. Const.

         State ex rel. Prahlow v. Milwaukee (1947), 251 Wis. 521, 527, 30 N. W. (2d) 260.

        Supra, footnote 4.

       Id. at page 96.

       (1955), 270 Wis. 488, 503, 71 N. W. (2d) 420.

       (1955), 348 U. S. 483, 488, 75 Sup. Ct. 461, 99 L. Ed. 563.

       (1959), 8 Wis. (2d) 246, 260, 99 N. W. (2d) 146.


author: Gordon, J.

text:
    State ex rel. White, Respondent, v. Simpson, by Guardian ad litem, Appellant.

      October 7

    November 2, 1965.

      For the appellant there was a brief by Cannon & Cannon of Milwaukee, and oral argument by David J. Cannon.

    For the respondent the cause was argued by James E. Talaska, assistant corporation counsel of Milwaukee county, with whom on the brief were Bronson C. La Follette, attorney general, William A. Plats, assistant attorney general, and Robert P. Russell, corporation counsel.
   Gordon, J.

“We are in bondage to the law in order that we may be free.”
—Cicero,
Pro Cluentio 53

In a significant series of cases, the United States supreme court has made it unmistakably clear that warrants for search or for arrest must meet certain minimum standards under the Fourth amendment to the United States constitution. Jaben v. United States (1965), 381 U. S. 214, 85 Sup. Ct. 1365, 14 L. Ed. (2d) 345; United States v. Ventresca (1965), 380 U. S. 102, 85 Sup. Ct. 741, 13 L. Ed. (2d) 684; Aguilar v. Texas (1964), 378 U. S. 108, 84 Sup. Ct. 1509, 12 L. Ed. (2d) 723; Giordenello v. United States (1958), 357 U. S. 480, 78 Sup. Ct. 1245, 2 L. Ed. (2d) 1503; Johnson v. United States (1948), 333 U. S. 10, 68 Sup. Ct. 367, 92 L. Ed. 436; Nathanson v. United States (1933), 290 U. S. 41, 54 Sup. Ct. 11, 78 L. Ed. 159.

The guaranties of the Fourth amendment are enforceable against the states through the due-process clause of the Fourteenth amendment. Ker v. California (1963), 374 U. S. 23, 30, 83 Sup. Ct. 1623, 10 L. Ed. (2d) 726; Mapp v. Ohio (1961), 367 U. S. 643, 655, 81 Sup. Ct. 1684, 6 L. Ed. (2d) 1081; Browne v. State (1964), 24 Wis. (2d) 491, 502, 129 N. W. (2d) 175, 131 N. W. (2d) 169. These guaranties apply to warrants of arrest as well as to search warrants. Wong Sun v. United States (1963), 371 U. S. 471, 481, 83 Sup. Ct. 407, 9 L. Ed. (2d) 441; Giordenello v. United States, supra, at page 485.

As a result of the United States supreme court cases, it is constitutionally essential that the magistrate be mindful of the underlying circumstances before he authorizes the issuance of a warrant. The magistrate may not accept without question the suspicions or conclusions of a complainant but, on the contrary, must determine the existence of probable cause after being apprised of the relevant facts. In performing this function, the magistrate or court commissioner serves as a judicial officer and must act in a neutral and detached manner. He must receive an adequate answer to this hypothetical question: “What makes you think that the defendant committed the offense charged?” Jaben v. United States (1965), 381 U. S. 214, 224, 85 Sup. Ct. 1365, 14 L. Ed. (2d) 345.

The underlying facts need not be derived solely from the written complaint. Nevertheless, upon review it must appear that sufficient facts were brought to the magistrate’s attention even though they are not contained in the written complaint. In the Jaben Case, at page 224, Mr. Justice Harlan stated that what was required was

“. . . that enough information be presented to the Commissioner to enable him to make the judgment that the charges are not capricious and are sufficiently supported to justify bringing into play the further steps of the criminal process.”

In Giordenello v. United States (1958), 357 U. S. 480, 486, 78 Sup. Ct. 1245, 2 L. Ed. (2d) 1503, the rule was framed as follows:

“The Commissioner must judge for himself the persuasiveness of the facts relied on by a complaining officer to show probable cause. He should not accept without question the complainant’s mere conclusion that the person whose arrest is sought has committed a crime.”

In Aguilar v. Texas (1964), 378 U. S. 108, 112, 84 Sup. Ct. 1509, 12 L. Ed. (2d) 723, the court stated that Giordenello did not depend upon a requirement of the Federal Rules of Criminal Procedure but rather was based upon constitutional requirements of probable cause as expressed in the Fourth amendment.

We have scrutinized the manner in which the warrant in the instant case was issued. The respondent has urged that the relevant constitutional requirements do not apply to civil actions. Two basic challenges are made by the appellant. It is claimed, first, that the complaint is insufficient to show the presence of probable cause and, secondly, that the corporation counsel is not a disinterested, neutral officer who is entitled to issue a, warrant.

1. Arrest in a Civil Action.

Under sec. 52.45, Stats., a paternity action is a civil special proceeding; the defendant was arrested as a result of a warrant issued pursuant to sec. 52.25.

Neither the Fourth amendment to the United States constitution nor sec. 11, art. I of the Wisconsin constitution distinguishes between civil and criminal cases as far as the issuance of warrants is concerned; we perceive no distinction. The right of an individual to be protected from improper arrests or searches applies with equal vitality to those which stem from civil actions as well as those which stem from criminal actions. The immediate impact on the individual is precisely the same whether the arrest arises from one type of case or the other. See One 1958 Plymouth Sedan v. Pennsylvania (1965), 380 U. S. 693, 85 Sup. Ct. 1246, 14 L. Ed. (2d) 170.

2. The Showing of Probable Cause.

The complaint in the case at bar contains a declaration of the expectant mother, pursuant to sec. 52.25, Stats., that “she is pregnant with a child, which, when born is likely to be born out of wedlock” and “that the defendant above named is the father of said child.” The record does not contain any further disclosure of additional information which may have been brought to the attention of the assistant corporation counsel who authorized the issuance of the warrant.

The complaint was made by one who had direct knowledge of the facts. We believe that the unmarried mother’s affidavit that the defendant was the father of the child with which she was then pregnant sets forth a sufficient basis for a finding of probable cause. This would not be true, however, if the complaint were made upon information and belief or if the complaint purported to assert a crime which required a specific intent.

As noted above, in Giordenello, at page 486, the court observed that a magistrate should not accept the “mere conclusion” of a complainant that a crime has been committed by the person whose arrest is sought. However, in a paternity complaint, the essential facts are that the woman is pregnant with a child which will be (or has been) born out of wedlock and that the defendant is the responsible male. More artfully, her complaint should have asserted the facts rather than her conclusion. We do not regard the distinction as constitutionally fatal in a paternity complaint.

3. The District Attorney as Magistrate.

In the case at bar, the arrest warrant was authorized by an assistant corporation counsel. This is authorized by secs. 52.22 and 52.25, Stats. As to counties having a population of over 500,000, the former section of the statutes imposes upon the corporation counsel or his assistants the powers and duties conferred upon the district attorney.

We must determine whether a district attorney is the equivalent of a neutral and detached magistrate who may constitutionally be empowered to authorize the issuance of the warrant. Our conclusion is that he is not. In Johnson v. United States (1948), 333 U. S. 10, 13, 68 Sup. Ct. 367, 92 L. Ed. 436, Mr. Justice Jackson, speaking for the court, commented as follows:

“The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.”

The effect of this rule is to interpose the impartial judgment of a judicial officer between the citizen and the police and also between the citizen and the prosecutor, so that ah individual may be secure from an improper search or an improper arrest.

We recognize that the district attorney holds an office of great dignity and that in some respects he has quasi-judicial responsibilities. His decision to initiate prosecution or to refuse to do so is, in a sense, a judicial determinaton. See O’Neil v. State (1926), 189 Wis. 259, 261, 207 N. W. 280. He is a “sworn minister of justice.” State v. Russell (1892), 83 Wis. 330, 338, 53 N. W. 441.

It is one thing to acknowledge that a district attorney is capable of making quasi-judicial judgments; it is a vastly different thing to assert that as a government enforcement agent he can qualify as the neutral, deliberate, and impartial magistrate who is authorized to determine probable cause under the Fourth amendment within its meaning and spirit as interpreted by the United States supreme court.

The disqualification of the district attorney under the Fourth amendment is as necessary in a paternity proceeding under the Wisconsin statutes as in a criminal case. We note that the corporation counsel is obligated to prosecute the putative father if the mother of the illegitimate child fails to do so under sec. 52.23, Stats. In our opinion, the determination of the district attorney does not constitute the determination of a neutral and detached magistrate, as required in Johnson v. United States (1948), 333 U. S. 10, 14, 68 Sup. Ct. 367, 92 L. Ed. 436. It is only an impartial magistrate who can accomplish “the essential purpose of the Fourth Amendment to shield the citizen from unwarranted intrusions into his privacy.” Jones v. United States (1958), 357 U. S. 493, 498, 78 Sup. Ct. 1253, 2 L. Ed. (2d) 1514.

With reference to the issuance of process, sec. 954.01 (2), Stats., provides that “district attorneys are not magistrates. . . .” However, under sec. 954.02 (4), a district attorney may initiate a prosecution by issuing a summons instead of a warrant. It is defensible to permit a corporation counsel or district attorney to issue a summons even though he may not issue a warrant, because a summons (unlike a warrant) does not authorize an arrest.

By the Court. — Order reversed.


author: Heffernan, J.

text:
    Spellman, Appellant, v. Ruhde and others, Respondents.

      October 7

    November 2, 1965.

      For the appellant there were briefs and oral argument by Vernon Molbreak of Madison.
    For the respondents there was a brief by Roberts, Board-man, Suhr & Curry, attorneys, and Thomas G. Ragats of counsel, all of Madison, and Aberg, Bell, Blake & Metsner of Madison, and Frank & Hiller of Milwaukee, and oral argument by Mr. Ragats.

   Heffernan, J.

The plaintiff alleged in his complaint that there was fraud in the 1964 agreement, and he therefore asked that that agreement be adjudged rescinded and annulled. The trial court concluded that the plaintiff was right in his contention and, on the basis of fraud, set aside the 1964 agreement. The trial court, however, held that the setting aside of the 1964 agreement revived the agreement of 1963. The plaintiff objects to this portion of the judgment, for the 1963 agreement acknowledged in substance that the plaintiff had relinquished shop rights to his employer. He argues that the 1964 agreement was a novation, which completely extinguished the previous agreement. Rather than a novation, however, it appears that this was a new contract which was intended to replace the 1963 agreement and, had it been valid, would have discharged the obligations of the earlier contract. Since this agreement in 1964 has been found to be a nullity and both of the parties to this appeal agree that it was properly set aside, the rights under the 1963 agreement have not been extinguished.

As this court has previously said:

“To rescind a contract is to annul the contract and restore the parties to their relative positions which they would have occupied if no such contract had ever been made.” First Wisconsin Nat. Bank v. Pedley (1932), 208 Wis. 628, 635, 242 N. W. 512. Generally, see 17A C. J. S., Contracts, p. 552, sec. 440, and 17 Am. Jur. (2d), Contracts, p. 1002, sec. 516.

Another standard textbook on the subject has stated the general rule to be:

“. . . the substituted contract may itself be voidable for fraud, infancy, or other reasons; and if the power of avoidance is exercised, the avoided contract is nullified both as an executory contract and as a discharge. The prior claim then becomes again enforceable.” 6 Corbin, Contracts, p. 196, sec. 1293.

The trial court properly concluded that the 1963 agreement must be considered viable upon the demise of the 1964 agreement. The facts show that the Shovelveyor was not conceived or originally manufactured on the premises of Onley Corporation or the Shovelveyor Corporation. However, for reasons best known to the plaintiff, he elected to acknowledge that shop rights were vested in the Onley Corporation. He agreed that, in the 1963 contract, Onley Corporation had the right to fabricate the device, and that it assisted in the development and the financing of Shovel-veyor.

Having, at least by implication, acknowledged that Onley Corporation could properly exercise its shop rights, the plaintiff will not now be heard to impeach his own prior agreement.

While the courts traditionally have favored inventors as a class particularly beneficial to society, they nevertheless can contract away their rights. The United States supreme court has said:

“Inventors are a meritorious class. They are public benefactors. They add to the wealth and comfort of the community, and promote the progress of civilization.” Consolidated Fruit-Jar Co. v. Wright (1876), 94 U. S. (4 Otto) 92, 96, 24 L. Ed. 68.

Clearly, Spellman in this case contracted away whatever rights the law might otherwise have reserved to him as an inventor.

There is no substantial dispute in regard to the initial use of the name of “Shovelveyor.” Plaintiff Spellman states that this was one name, among others, that he had considered prior to the time that he commenced employment with Onley Corporation. However, he first proposed it while working for the Onley Corporation. When this proposal met the approval of Mr. Ruhde, Spellman stencilled the name on the device that was being manufactured by Onley, and subsequent sales were made under that name. There is no evidence to the contrary, and, ' in any event, the court’s finding that the name, “Shovelveyor,” was first used under these circumstances is a finding of fact which this court will disturb only if it is contrary to the great weight and clear preponderance of the evidence. Kirchen v. Gottschalk (1965), 26 Wis. (2d) 123, 126, 131 N. W. (2d) 885. This finding must be sustained.

The court found that the assignment of the patent rights for the Shovelveyor was predicated on the existence of the 1964 agreement. Since that agreement is a nullity, the assignment of the patent also is a nullity. However, the facts clearly show that Spellman did nothing to secure the patent in his own name. He, in fact, assumed that what he had devised was not of such novelty as to be patentable. However, Mr. Urso of Shovelveyor Corporation thought otherwise, and, at the expense of Shovelveyor Corporation, caused a patent search to be made and, eventually, due to the efforts of Urso and the work of the patent attorney hired by Shovelveyor Corporation, the application for patent was granted. The trial court properly held that, under these circumstances, it would be inequitable for the plaintiff to receive the patent which had been secured, not through his own efforts or his own expense, but at the expense of Shovelveyor Corporation, unless he were willing to at least reimburse Shovelveyor Corporation for these costs.

We conclude that the trial court did not abuse its discretion in directing that the assignment back of the patent be conditioned on the payment of the expenses for the patent application.

The defendants, however, maintain that the plaintiff has at this juncture lost his right to acquire the patent, because he neither paid the attorney fees within the sixty days set by the court nor filed an undertaking pursuant to sec. 274.23, Stats., to suspend the execution of the judgment. Sec. 274.23, upon which the respondent relies, provides:

“If the judgment appealed from direct the doing or not doing of any other particular act or thing, and no express provision is made by statute in regard to the undertaking to be given on appeal therefrom, the execution thereof shall not be stayed by an appeal therefrom unless an undertaking be entered into on the part of the appellant . . . .”

The judgment in this case, however, does not direct that the plaintiff do a particular act or thing. Rather, it directs the defendant to do a particular act or thing, namely, to assign the patent rights in the event the plaintiff seeks to exercise his option. It appears, therefore, that the situation envisaged by sec. 274.23, Stats., is not present in the portion of the judgment we are here considering. Our court has long taken the position that it is the established common-law rule that, in the absence of a specific statutory provision to the contrary, a properly taken appeal from one tribunal to another stays the proceedings below. Slabosheske v. Chikowske (1956), 273 Wis. 144, 153, 77 N. W. (2d) 497; David Adler & Sons Co. v. Maglio (1929), 198 Wis. 24, 28, 223 N. W. 89; Hedberg v. Dettling (1929), 198 Wis. 342, 344, 224 N. W. 108. Generally, see 4A C. J. S., Appeal and Error, p. 423, sec. 627.

We conclude, therefore, that the sixty-day period within which the judgment gave the plaintiff the option to act was tolled by the filing of the appeal.

The plaintiff in his reply brief contends for the first time that, even though it be held that Onley Corporation acquired shop rights to this device by the 1963 agreement, the Shovelveyor Corporation could not acquire these rights, since shop rights are personal and not subject to assignment.

This court has long adhered to the rule that we will not consider matters that are raised for the first time on appeal and have not been presented to the trial court. Berning v. Giese (1957), 274 Wis. 401, 403, 80 N. W. (2d) 270. Because this question is presented for the first time on appeal, we are not obliged to decide the question. We note, however, that the defendants cite cases in 61 A. L. R. (2d) 356, which hold that, although shop rights are not assignable, they nevertheless do pass to a successor corporation.

By the Court. — Judgment affirmed..

       Shop rights are defined in 35 Am. Jur., Master and Servant, p. 523, sec. 95, as follows:
      “Under the ‘shop right’ rule, an employee who, during his hours of employment and while working with his employer’s materials and appliances, or with the assistance of helpers provided by the employer, conceives and perfects an invention which he patents must accord to his employer a right or license to use the invention.” Note that shop rights generally do not give the employer the title to a patent that the employee may have received. See Barlow & Seelig Mfg. Co. v. Patch (1939), 232 Wis. 220, 226, 286 N. W. 577.


author: Currie, C. J. Hallows, J.

text:
    Jordan and others, Respondents, v. Village of Menomonee Falls, Appellant.

      October 7

    November 2, 1965.

      For the appellant there were briefs by Puls & Puls of Milwaukee, and oral argument by C. Morse Puls.

    For the respondents there was a brief by Lichtsinn, Dede, Anderson & Ryan of Milwaukee, and oral argument by Eldred Dede.

       Motion for rehearing denied, with costs, on January 4, 1966.

   Currie, C. J.

The issue on this appeal is the constitutionality of the ordinance pursuant to which the $5,000 equalization fee was paid. Defendant asserts that the ordinance is a valid exercise of its police power in controlling subdivision development to assure its burgeoning population adequate parks and schools. Plaintiffs contend that sec. 8.03 of the ordinance levies a tax which is not authorized by the legislature and unconstitutional.

In 1955 the legislature made extensive revisions in ch. 236, Stats., governing the subdividing and platting of land. Sec. 236.45 was revised so as to permit those localities which are feeling strong pressure of rapid urban growth and development, to legislate more intensively in the field of subdivision control than the legislature has provided for the state at large. In order for a municipality to take advantage of sec. 236.45 it is necessary that it have created a planning agency. Defendant was so qualified inasmuch as it had created a village planning commission in 1958. The pertinent parts of sec. 236.45 read as follows:

“Local subdivision regulation. (1) Declaration of legislative intent. The purpose of this section is to promote the public health, safety and general welfare of the community and the regulations authorized to be made are designed to lessen congestion in the streets and highways; to further the orderly layout and use of land; to secure safety from fire, panic and other dangers; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate adequate provision for transportation, water, sewerage, schools, parks, playgrounds, and other public requirements; to facilitate the further resubdivision of larger tracts into smaller parcels of land. The regulations provided for by this section shall be made with reasonable consideration, among other things, of the character of the municipality, town or county with a view of conserving the value of the buildings placed upon land, providing the best possible environment for human habitation, and for encouraging the most appropriate use of land throughout the municipality, town or county.
“(2) Delegation of power, (a) To accomplish the purposes listed in sub. (1), any municipality, town or county which has established a planning agency may adopt ordinances governing the subdivision or other division of land which are more restrictive than the provisions of this chapter. Such ordinances may include provisions regulating divisions of land into parcels larger than 1)4 acres or divisions of land into less than 5 parcels, and may prohibit the division of land in areas where such prohibition will carry out the purposes of this section.. Such ordinances may make applicable to such divisions any of the provisions of this chapter, or may provide other surveying, monumenting, mapping and approving requirements for such division. . . .
“(b) This section and any ordinance adopted pursuant thereto shall be liberally construed in favor of the municipality, town or county and shall not be deemed a limitation or repeal of any requirement or power granted or appearing in this chapter or elsewhere, relating to the subdivision of lands.” (Italics supplied.)

Preliminary to considering the constitutionality of the equalization-fee provisions of the ordinance, we deem it advisable to pass on the requirement that the subdivider, where practicable, be required to dedicate a portion of the subdivision for sites for school, park, and recreational needs of a value of $200 per residential lot. If this provision of the ordinance is unconstitutional, then of course the provision for payment of a cash fee in lieu of dedicating land for school, park, and recreational sites would of necessity also be unconstitutional.

No claim has been asserted in this litigation that the $200 per lot value of land required to be dedicated by the subdivision owner is unreasonable in amount. Nelson, defendant’s municipal planning expert, testified that the experience of municipal planners throughout the country has shown that for a good environment for human habitation, for each family in the area, there must be a minimum of 3,000 square feet of land devoted to park and school purposes. After some study of average land values in the village, the village planning commission and the village board determined that land valued at $200 would by and large provide the added park and school lands required for each family brought into the village by creation of the subdivision.

The grounds of the attack upon the land-dedication requirement are that it is not authorized by statute and is an unconstitutional taking of private property for public use without just compensation.

Upon careful analysis of sec. 236.45, Stats., we conclude that it does authorize the land-dedication requirement of the instant ordinance. Sub. (1) of this statute declares that the purposes of the statute include facilitating “adequate provision for transportation, water, sewerage, schools, parks, playgrounds and other public requirements.” The common practice of providing for transportation in a subdivision is for municipal platting ordinances to require dedication of land for streets by the subdivider. Likewise the accepted way to provide water and sewerage facilities for a proposed subdivision is to require the subdivider to provide the same as a condition to the municipality approving the proposed plat. In Zastrow v. Brown Deer this court stated :

“The village could require as a condition of its approval of a plat that the subdivider make and install any public improvements reasonably necessary, including a water system, and it could require as a condition for accepting the dedication that the designated facilities previously constructed and provided be without cost to the village, and that such facilities be according to the village’s specifications and under its inspection, including water mains and laterals.”

Similarly it would seem to follow that the way to facilitate provision for schools, parks, and playgrounds to serve the subdivision would be to require the subdivider to dedicate a portion of the subdivision for such purposes. Sec. 236.13 (2) (a) and (b), Stats., which apply statewide to all municipalities, irrespective of whether they have planning commissions, grants to municipalities the right to require the subdivider to pay for such public improvements as water and sewer mains, and to dedicate land for public streets, as a condition to the municipality approving the proposed subdivision plat. Sec. 236.45 was intended by the legislature to vest additional authority in those municipalities which had created planning commissions to impose further requirements upon the subdivider. In addition to the aforequoted language spelling out legislative purpose in sub. (1) of this statute, the first sentence of sub. (2) (a), of sec. 236.45, makes clear this intent. The third sentence of this subsection reads, “Such ordinances may make applicable to such divisions any of the provisions of this chapter, or may provide other surveying, monumenting, mapping and approving requirements for such division.” Standing alone the statutory words “other . . . approving requirements” would normally be confined to requirements of the same general nature as the antecedent enumerated specific words “surveying, monu-menting, mapping.” We reject such a restrictive interpretation in favor of the broader one which will encompass the objectives stated in sub. (1). We are further motivated in favor of such a broad interpretation by the direction of sub. (2) (b) requiring a liberal construction of sec. 236.45.

Having concluded that sec. 236.45, Stats., does authorize the land-dedication provisions of the instant ordinance, we turn now to the question of whether they constitute an unconstitutional taking of private property for a public purpose. The Illinois supreme court in Pioneer Trust & Savings Bank v. Mt. Prospect laid down this test of the constitutionality of a requirement placed upon a subdivider, as a condition for approval of the subdivision plat:

“If the requirement is within the statutory grant of power to the municipality and if the burden cast upon the subdivider is specifically and uniquely attributable to his activity, then the requirement is permissible; if not, it is forbidden and amounts to a confiscation of private property in contravention of the constitutional prohibitions rather than reasonable regulation under the police power.”

We deem this to be an acceptable statement of the yardstick to be applied, provided the words “specifically and uniquely attributable to his activity” are not so restrictively applied as to cast an unreasonable burden of proof upon the municipality which has enacted the ordinance under attack. In most instances it would be impossible for the municipality to prove that the land required to be dedicated for a park or a school site was to meet a need solely attributable to the anticipated influx of people into the community to occupy this particular subdivision. On the other hand, the municipality might well be able to establish that a group of subdivisions approved over a period of several years had been responsible for bringing into the community a considerable number of people making it necessary that the land dedications required of the subdividers be utilized for school, park, and recreational purposes for the benefit of such influx. In the absence of contravening evidence this would establish a reasonable basis for finding that the need for the acquisition was occasioned by the activity of the subdivider. Possible contravening evidence would be a showing that the municipality prior to the opening up of the subdivisions, acquired sufficient lands for school, park, and recreational purposes to provide for future anticipated needs including such influx, or that the normal growth of the municipality would have made necessary the acquisition irrespective of the influx caused by opening up of subdivisions.

There also may be situations, unlike the instant one, where there is no substantial influx from the outside and the proposed subdivision only fulfils a purely local need within the community. In those situations it may be more difficult to adduce proof sufficient to sustain a land-dedication requirement.

We conclude that a required dedication of land for school, park, or recreational sites as a condition for approval of the subdivision plat should be upheld as a valid exercise of police power if the evidence reasonably establishes that the municipality will be required to provide more land for schools, parks, and playgrounds as a result of approval of the subdivision.

We deem that the evidence in this case does establish such reasonable connection. There is the testimony of planning expert Nelson that for a good environment for human habitation for each family in the area there should be a minimum of 3,000 square feet of land devoted to park and school purposes. Because of its close proximity to Milwaukee, Menomonee Falls has felt the tremendous impact of urban development in recent years. Between July 23, 1959, and March 15, 1963, 41 plats containing 638 lots were approved pursuant to the instant ordinance. There were five dedications of land by the subdividers, four utilized for parks and one for building an addition to a public school. During this period the village also purchased additional park sites. The increase in school population by school years has been as follows:

Increase Year

342 1958-59

512 1959-60

773 1960-61

531 1961-62

685 1962-63

The village population increased from 6,262 in 1950 to 18,276 in 1960, and to an estimated 25,000 in 1964. Part of the increase in population between 1950 and 1960 was due to the entire town of Menomonee Falls being annexed to the village in 1958.

We do not consider the fact that other residents of the village as well as residents of the subdivision may make use of a public site required to be dedicated by subdivider for school, park, or recreational purposes is particularly material to the constitutional issue. This is also true of land required to be dedicated for public-street purposes.

The test of reasonableness is always applicable to any attempt to exercise the police power. The basis for upholding a compulsory land-dedication requirement in a platting ordinance in the nature of the instant ordinance is this: The municipality by approval of a proposed subdivision plat enables the subdivider to profit financially by selling the subdivision lots as home-building sites and thus realizing a greater price than could have been obtained if he had sold his property as unplatted lands. In return for this benefit the municipality may require him to dedicate part of his platted land to meet a demand to which the municipality would not have been put but for the influx of people into the community to occupy the subdivision lots.

For the reasons stated we determine that the provision of the ordinance requiring dedication of land when practicable for school, park, and recreational sites is constitutional as a proper exercise of police power.

We turn now to the issue of the constitutionality of the equalization-fee provision contained in sec. 8.03 of the ordinance whereby the subdivider is required to pay a total of $200 per lot in lieu of dedicating land of that value for school, park, or recreational needs where the village planning commission finds dedication of land for such purposes is not feasible. In respect to this provision, the question which poses the greater difficulty is not whether there is an attempted illegal taking which cannot be justified as a reasonable exercise of the police power, but whether the legislature has authorized such a provision.

The reason why we consider that the exercise-of-police-power aspect of the equalization-fee question, as distinguished from a requirement that land be dedicated for school, park, or recreational purposes, is not troublesome, is because the same reasons which under the facts of this case prompt us to hold that the land-dedication requirement constitutes a reasonable exercise of the police power apply with equal force to the equalization-fee requirement. The evidence reasonably supports the conclusions that: (1) The approval of the instant and other subdivision plats during the four-year period following the enactment of the ordinance has required defendant village and the encompassing school districts to expend large sums for acquisition of park and school lands and construction of additional school facilities; (2) these expenditures were made necessary by the influx of people into these subdivisions; and (3) these expenditures are greater than the amount which has been exacted from the subdividers by way of land-dedication and equalization fees paid in lieu of land dedication. For example, in 1962 a 13-room addition to the Shady Lane School, which is located in the vicinity of plaintiffs’ subdivision, was completed at a cost of $28,000 per room or $364,000. During the four-year period following enactment of the ordinance, the total value of all land dedications made and equalization fees collected amounted to only $127,000.

However, even though the equalization-fee-requirement provision can be sustained as a reasonable exercise of the police power, it is unconstitutional unless authorized by the legislature. The provision possesses sufficient attributes of a tax so that it cannot be grounded upon the home-rule amendment, sec. 3, art. XI of the Wisconsin constitution. While under this amendment, and the implementing statutes, secs. 61.34 and 62.04, Stats., villages and cities have wide powers to tax for the general welfare, they can only resort to the types of taxes that the legislature has authorized them to use.

Is the equalization fee such a concomitant of the land-dedication provision of the ordinance that its authorization can be found in the language of subs. (1) and (2) of sec. 236.45 hereinbefore relied upon to sustain the land-dedication requirement of the ordinance? We conclude that it is.

Where a comparatively small tract of land is subdivided, as in the instant situation, and there is no adjoining land already devoted to school, park, or playground purposes to which a portion of the proposed subdivision might be attached, it usually would be impracticable to require dedication of any land of the subdivision. The two alternatives are either to relieve the subdivider from any obligation whatever in this direction, or to require payment of an equalization fee of the nature of that here imposed. The latter is in keeping with the stated purpose of the statute.

While sec. 8.03 (2) of the ordinance permits use of the proceeds of the equalization fee for capital improvement of schools, parks, and recreation areas in addition to site acquisition, nevertheless the making of these capital improvements is encompassed by the words of sub. (1) of sec. 236.45 which declare that the purposes of the statute include facilitating “adequate provision for . . . schools, parks, playgrounds and other public requirements.”

The equalization fee exacted pursuant to the ordinance is not a property tax. It is not imposed upon the land in the subdivision as such but is imposed on the transaction of obtaining approval of the plat. Thus, if a tax, it partakes of the nature of an excise tax and does not violate the uniformity clause found in sec. 1, art. VIII of the Wisconsin constitution.

While plaintiffs do not openly contend that the equalization fee is in the nature of a special assessment, they employ arguments that tend in that direction. Thus they point to the fact that the ordinance does not require that park and school sites purchased with funds paid in lieu of dedication bear any relationship to the subdivision providing the funds. This argument would be pertinent if the equalization fee’s validity were dependent on justifying it as a special assessment. The argument, however, does have some pertinency on the previously considered issue of unconstitutional taking of private property for a public purpose as opposed to a reasonable exercise of police power.

To conclude, we determine that the imposition of the instant $5,000 equalization fee is not invalid as unconstitutional. In so holding we are cognizant that this result is contra to the conclusions reached by the Illinois and Kansas courts in the well-considered cases of Rosen v. Downers Grove and Coronado Development Co. v. McPherson with respect to the issue of the validity of the attempted exercise of the police power. While we have great respect for these courts, we believe that there is a reasonable basis for upholding the exercise of the police power voiced in the instant ordinance.

By the Court. — Judgment reversed, and cause remanded with directions to dismiss the complaint.

Hallows, J.

(dissenting). I must disagree with the interpretation that sec. 236.45, Stats., authorizes the land-dedication requirement found in secs. 8.02 and 8.03 of the village ordinance. I can find no such grant of power in the language “other surveying, monumenting, mapping and approving requirements for such division.” A liberal construction required by sec. 236.45 (2) (b) does not justify the disregarding of a fundamental rule of construction. The conferring of such an important power as a police power whose exercise curtails the rights of individuals should be expressed in nothing less than clear and concise language. Consequently, the power to require land to be given for school and park purposes, as a condition of the approval by a municipality of a plat .of a subdivision should be granted in more definite language than the terms “approving requirements” and “to facilitate adequate provision for . . . schools, parks, playgrounds.” Specific language authorizing the requirements for dedication of land for school and park purposes could have been used as it has been used in reference to roads, waters and sewers in sec. 236.13 (2) (a) and (b).

Assuming sec. 236.45, Stats., authorizes the land-dedication provisions of the village ordinance, the provisions especially the requirement of the payment of $200 in lieu of land dedication constitute an unconstitutional taking of private property for public purposes. The majority opinion reasons these provisions may be justified on the ground a subdivider receives some benefit by the approval of the plat and in return the municipality may require him to dedicate part of his land to meet a demand of the municipality because of the influx of people to the community who occupied the subdivided lots. That may be a justification if there is a reasonable relationship between the amount of land taken and the need of the proposed plat for parks and schools. The majority opinion seems to indicate prior need for public land caused by other subdividers who have not so contributed justifies the exaction of land from a subsequent subdivider.

By analogy, any dedication of land for parks and school purposes or. money in lieu thereof should be governed by the same rules which apply to public roads and sewer and water in the subdivision. When land is dedicated for public streets or for the furnishing of water mains and sewers, their location insures some definite benefit to the rest of the land in the plat. While these are of special benefit to the lots, they are, of course, incidentally of benefit to the community at large.

In respect to the alternative provision for the payment of money in lieu of land for school and park purposes, I find no authority for the municipality to enact such an alternative and no restriction or requirement that the money be used for parks and schools in the vicinity of the subdivision. The money may be used anywhere in the municipality and is not restricted for the direct benefit of the subdivision. Consequently, this requirement of the payment of a fee which a municipality has the option to demand in lieu of land is nothing more than a revenue-raising device for the general welfare of the municipality and as such is in the nature of a tax and cannot be justified as an exercise of the police power. Milwaukee v. Milwaukee and Suburban Transport Corp. (1959), 6 Wis. (2d) 299, 94 N. W. (2d) 584; 51 Am. Jur., Taxation, p. 35, sec. 3, and p. 46, sec. 12. I think the trial court was correct in finding the requirement to be in the nature of a tax and the village had no power and was not authorized by the legislature to impose it. Whitney v. Department of Taxation (1962), 16 Wis. (2d) 274, 114 N. W. (2d) 445. There is no implementing authorization conferring the power to impose such a tax nor does the home-rule amendment (sec. 3, art. XI, Wis. Const.) authorize it since a tax is not a local matter. Plymouth v. Elsner, ante, p. 102, 135 N. W. (2d) 799. Being in the nature of a tax it makes no difference whether the tax is a property tax bound by the uniformity requirement or an excise tax not so restricted.

It is quite apparent the so-called equalizing fee bears no reasonable relationship to the subdivision since it is not restricted to its benefit. The placing of such payments in the general treasury of the municipality cannot be justified on the theory that parks and schools will eventually be built or have been built in the subdivision area out of the general fund. Such a view ignores the vital distinction between the taxing power and the police power.

The unconstitutionality of the provisions requiring sub-dividers to pay such fees has been held in Coronado Develop ment Co. v. McPherson (1962), 189 Kan. 174, 368 Pac. (2d) 51; Haugen v. Gleason (1961), 226 Or. 99, 359 Pac. (2d) 108; Resen v. Downers Grove (1960), 19 Ill. (2d) 448, 167 N. E. (2d) 230. Under slightly more narrow enabling statutes the requirement of payment of fees for approval of subdivision plats was found unauthorized in Kelber v. Upland (1957), 155 Cal. App. (2d) 631, 318 Pac. (2d) 561, and Santa Clara County Contractors & Homebuilders Asso. v. Santa Clara (1965), 232 Cal. App. 564, 43 Cal. Rptr. 86. A town ordinance which requires the dedication of land or payment in lieu thereof for a neighborhood-park playground for recreational purposes was held unconstitutional so far as it provided for the payment of money in lieu of a dedication because the payment exacted could be spent on any recreational area in the city and not necessarily for the benefit of the subdivision. Gulest Associates, Inc., v. Newburgh (1960), 25 Misc. (2d) 1004, 209 N. Y. Supp. (2d) 729; see also Jenad, Inc., v. Scarsdale (1965), 23 App. Div. (2d) 784, 258 N. Y. Supp. (2d) 777, which held a village code was unconstitutional insofar as it provided for payment in lieu of dedication of land where the statute authorizing a land requirement was silent as to the alternative payment.

I would affirm.

       Ch. 570, Laws of 1955.

       See Interpretive Commentary with respect to sec. 236.45, 27 W. S. A., p. 534.

       (1960), 9 Wis. (2d) 100, 100 N. W. (2d) 359.

       Id. page 108.

       These subsections provide: “(a) As a further condition of approval, the governing body of the town or municipality within which the subdivision lies may require that the subdivider make and install any public improvements reasonably necessary or that he execute a surety bond to insure that he will make those improvements within a reasonable time.
      “(b) Any city or village may require as a condition for accepting the dedication of public streets, alleys or other ways, . . . that designated facilities shall have been previously provided without cost to the municipality, . . .”

       (1961), 22 Ill. (2d) 375, 176 N. E. (2d) 799.

       Id. page 380.

         Stierle v. Rohmeyer (1935), 218 Wis. 149, 162, 260 N. W. 647.

        Billings Properties, Inc., v. Yellowstone County (1964), 144 Mont. 25, 394 Pac. (2d) 182; Cutler, Legal and Illegal Methods for Controlling Community Growth on the Urban Fringe, 1961 Wisconsin Law Review, 370, 388, 389; Comment, Subdivision Regulation: Requiring Dedication of Park Land or Payment of Fees as a Condition Precedent to Plat Approval, 1961 Wisconsin Law Review, 310; contra, Pioneer Trust & Savings Bank v. Mt. Prospect (1961), 22 Ill. (2d) 375, 176 N. E. (2d) 799.

       See Plymouth v. Elsner, ante, pp. 102, 106, 107, 135 N. W. (2d) 799, and cases cited.

        Barnes v. West Allis (1957), 275 Wis. 31, 37, 81 N. W. (2d) 75; and cases cited in Plymouth v. Elsner, ante, pp. 102, 105, footnote 1.

       (1960), 19 Ill. (2d) 448, 167 N. E. (2d) 230.

       (1962), 189 Kan. 174, 368 Pac. (2d) SI.


text:
    E. M. Boerke, Inc., Respondent, v. Williams, Appellant.

      October 6

    November 2, 1965.

      For the appellant there were briefs by Wright & Mueller, attorneys, and Donald H. Mueller of counsel, all of Milwaukee, and oral argument by Donald H. Mueller.

    For the respondent there was a brief and oral argument by Donald R. Hunter of Milwaukee.
   Heffernan, J.

The defendant on appeal, for the first time, alleges that the cause of action is fatally defective because there was a failure to allege or prove that the plaintiff was a licensed real-estate broker as required by sec. 136.11, Stats.

A defense of this nature cannot be raised initially in the appellate court. Berning v. Giese (1957), 274 Wis. 401, 80 N. W. (2d) 270; Discher v. Industrial Comm. (1960), 10 Wis. (2d) 637, 103 N. W. (2d) 519.

The defendant contends that this issue was raised by the general language of its motion for dismissal which included the prayer to the court that the action be dismissed “on its merits pursuant to the laws of Wisconsin.” This vague standard motion lacks the specificity to support the particular objection that defendant now wishes to raise. Defendant contends, however, that this omission is of such a nature that the failure to plead the existence of a license is fatal to the cause of action irrespective of when the absence of the allegation of licensure is first brought to the attention of the court. Levy v. Birnschein (1932), 206 Wis. 486, 240 N. W. 140, is cited in support of this proposition. It should be noted, however, that in Levy the question was raised not on appeal but in the civil court of Milwaukee county. Had the matter been timely raised in the case before us, there is no doubt that this defect could have been cured on the trial court level. We have taken judicial notice of the public records of the Wisconsin Real Estate Brokers’ Board. They indicate that E. M. Boerke, Inc., 611 North Broadway, Milwaukee, has been licensed as a real-estate broker in the state of Wisconsin since 1945. We mention this not to cure the defect in the record, but to point out the patent inequity of allowing an objection of this nature to be raised at the appellate level when the matter was easily curable at the trial stage. We conclude that the question is not properly before us now.

It is undisputed that the eventual sale was made within six months of the termination. We also conclude that the Sanderson Art Company, to whom the property was eventually sold, was a party with whom the broker “negotiated during the life of this contract.”

In Munson v. Furrer (1952), 261 Wis. 634, 639, 53 N. W. (2d) 697, we concluded that “negotiated” within the terms of a listing contract “means that the efforts of the broker to interest a prospect must have proceeded to the point where the prospect would be considered a likely purchaser.” The rule of the Munson Case was correctly applied by the trial judge in his memorandum opinion. He emphasized that the agent of the plaintiff met with the Sandersons during the life of the contract, and that a thorough examination of the premises inside and out was made. The Sander-sons indicated that they were interested in the property by reason of the fact that they owned property immediately adjacent to the Williams property. Subsequent to this first examination there were several contacts by telephone. The trial judge found that the Sandersons “told Mr. Kahn [agent for Boerke] what a reasonable price for the building was,” but no formal offer was ever made. Not only is it reasonable to conclude that Sanderson Art was “a likely purchaser,” but it also could be inferred that the examination of the premises and the negotiations were the direct result of the efforts of Boerke.

Though it is clear that Boerke did negotiate with Sander-son during the life of the contract, that fact is not decisive of this particular lawsuit.

The contract required not only “negotiation” during the life of the contract, but, in addition, that the names of persons with whom negotiations are carried on must be ‘‘‘'filed with me in writing prior to the termination of this contract.” (Emphasis supplied.) Thus, two added requirements must be met by the plaintiff if he is to recover. He must “file” the names in writing, and this action is required prior to the termination of the contract.

We conclude that the plaintiff’s case' fails to meet these criteria.

Admittedly, Mrs. Williams did not receive the actual list until sometime after January 15, 1957. It is the contention of the plaintiff that the contract expired at the end of the day, i.e., midnight on January 15th. The defendant insists that the contract expired 24 hours earlier, i.e., at the end of the day of January 14th. If the defendant is correct, the action of the plaintiff in mailing a list on January 15th is not sufficient, for it is clear that the first action the plaintiff took in notifying the sellers was on that date. The contract provided that it “shall remain in force until January 15, 1957.” If “until” is a word indicating the exclusion of the date that follows, plaintiff’s action has not been timely. Decisions can be cited to support the position of either party to this lawsuit.

The word, “until,” is ambiguous and not a word susceptible to exact definition. Webster’s Third New International Dictionary lists the expression “up to” as being synonymous. “Up to” when referring to time is defined in the same dictionary by the following usages, “up to that date they had been generally successful,” “up to the war rural areas were always the dwelling place of the surplus population.” In referring to distances, the example used is, “painted the wall green up to the side door.”

The Webster’s Third New International also states, “until” is “used as a function word to indicate continuance (as of an action, condition, or state) up to a particular time.” As so defined, the word is one of exclusion. On the other hand, 52 Am. Jur., Time, p. 350, sec. 25, admits the literal definition is one of exclusion, but the “popular use is quite as likely to give it an inclusive as an exclusive sense.”

This court has previously examined an analogous problem (Scheuer & Tiegs, Inc., v. Benedict (1921), 173 Wis. 241, 181 N. W. 129) where a notice to terminate a tenancy used the phraseology, “You are ... by April 30, 1920, to quit.” Our court held that “by” was an ambiguous word which could be either inclusive or exclusive of the date. In that instance, the interpretation that the word was one of exclusion would have meant that the notice was insufficient, “because under a tenancy from month to month the notice must be to terminate the tenancy at the end of the month and not before.” Supra, page 242. The court there concluded, “conceding that the term has two meanings, one including the date expressed and the other excluding it, the reasonable construction is the one that gives validity to the thing sought to be done, for no one ought to presumé that a nugatory act is intended.” Supra, page 243. It is clear that in Scheuer the court gave effect to the obvious intent of the parties — to terminate the tenancy at the end of the month. In this case, however, we have no such guideline of interpretation. We can only conclude that the word is ambiguous. We have had occasion to construe another portion of an identical listing contract. In Dunn & Stringer Investment Co. v. Krauss (1953), 264 Wis. 615, 619, 60 N. W. (2d) 346, we stated:

“The listing agreement having been a printed form supplied by the plaintiff broker, the same must be most strongly construed against the broker in case of any ambiguity or doubt. 12 Am. Jur., Contracts, p. 795, sec. 252; 17 C. J. S., Contracts, p. 751, sec. 324.” was still in effect, that would not satisfy the requirement that the notice be “filed with me.”

In view of this well-established rule of construction, we conclude that the doubt must be resolved in favor of the defendant’s position that the contract terminated at the end of the day of January 14, 1957. Hence, the action taken by the plaintiff on January 15th was not timely.

We would conclude, also, that had the mailing taken place on the last day of the term of the contract, while it

Webster’s Third New International Dictionary defines “file” “to deliver (as a legal paper or instrument) after complying with any condition precedent ... to the proper officer . . .”

To construe or define “mailing” as “filing” is to ignore the plain meaning of the word. Mailing merely initiates the process by which an article in the due course of the post will be delivered. The requirement of the contract in question is that the notice be filed or delivered to the party offering property for sale.

We agree with the trial judge that mailing is frequently sufficient to satisfy the legal requirements imposed in the day-to-day conduct of business. For example, the acceptance of an offer is binding from the moment an offeree deposits a properly addressed letter of acceptance in the mailbox, but only if there is an express or implied authorization that the mails are to be used. Such an implied authorization would arise when the offer is communicated by mail. There is nothing in the record in this case that would expressly or by implication authorize the posting of the notice in lieu of filing. We do not consider that the statutory procedure for service of papers by mail is analogous. The circumstance under which sec. 269.34 (4), Stats., is applicable is clearly not that contemplated by the contract before us. The statute, sec. 269.36, also recognizes that when mailing is an appropriate method of service, additional time is given for the other party to act. This is legislative recognition that the ordinary time requirement should in fairness not be applicable when a person elects to accomplish a jural act through the mails instead of personally.

A real-estate broker is not unable to protect himself against these infirmities in his contract. The termination date can be simply stated. It requires no great drafting skill to clearly specify the hour and date on which a contract shall terminate. If it is intended that the requirements of notice are to be satisfied by mailing and delivery thereafter in due course of post, the contract should say so.

In view of the failure of the broker to notify the vendor as provided by the contract, we need not consider the defendant’s additional contentions that the action is barred by laches or the running of the statute of limitations.

By the Court.- — -Judgment reversed.

       Sec. 136.11, Stats., reads as follows:
      “Limitation on actions for commissions. No person engaged in the business or acting in the capacity of a real estate broker or salesman within this state shall bring or maintain an action in the courts of this state for the collection of a commission or compensation for the performance of any act mentioned in this chapter without alleging and proving that he was a duly licensed broker or salesman at the time the alleged cause of action arose.”

       Currie, Judicial Notice, 1960 Wisconsin Law Review, 39, 43.

       43 Words and Phrases (perm, ed.), Until, p. 404.

       17 C. J. S., Contracts, p. 719, sec. 52b; 17 Am. Jur. (2d), Contracts, p. 387, sec. 48, p. 389, sec. 49; and 1 Corbin, Contracts, p. 333, sec. 78.

       Sec. 269.34 (4), Stats., provides:
      “Service may be made by mailing such copy where the person making the service and the person on whom it is made reside in different places between which there is a communication by mail. Service by mail is complete upon mailing.”

       Sec. 269.36, Stats., provides:
      “Mail service INCREASES time allowed. If a certain time before an act to be done is required for the service of any paper and if, after service of any paper, a specified time is allowed a party to do an act in answer to or in consequence of such service, service by mail shall increase by S days the time required or allowed to do such act in case of personal service.”


text:
    Telemark Company, Inc., Appellant, v. Department of Taxation, Respondent.

      October 7

    November 2, 1965.

      For the appellant there was a brief by La Follette, Sinykin, Anderson, Davis & Abrahamson, attorneys, and Robert H. Friebert of counsel, all of Madison, and oral argument by Mr. Friebert.

    For the respondent the cause was argued by E. Weston Wood, assistant attorney general, with whom on the brief were Bronson C. La Follette, attorney general, and Harold H. Persons, assistant attorney general.
   Hallows, J.

The facts are not in dispute and raise the sole question of whether the gross income received by Telemark from furnishing rides on ski tows is taxable as the furnishing for a fee the privilege of having access to or the use of a recreational facility within the meaning of sec. 77.52 (2) (a) 2, Stats.

Telemark does business in Bayfield county where it owns 90 acres of land consisting of 10 slopes which it maintains for skiing during the winter months including the operation of an artificial-snow-making system. Besides three T-bar lifts and 10 rope tows to assist skiers to get from the bottom to the top of the slopes, Telemark operates a parking lot and owns a chalet which is rented out to an operator. No fee is made for parking automobiles in its supervised parking lot or for admission to the chalet or for admission to the recreational area. However, Telemark does charge for the use of the rope tows and T-bar lifts on a daily basis by selling colorful large-size tickets which are attached to the outside of the garments of skiers. On peak days it employs as many as 40 persons as parking-lot attendants and as mechanics and attendants for the rope tows and T-bar lifts. Three ticket offices are operated, one in the parking lot, one between the parking lot and the chalet, and one in the chalet. Skiers are not required to purchase daily tickets in order to use the slopes for skiing but few people do not buy tickets because of the difficulty of getting up the slopes without the mechanical assistance furnished. Telemark prevents persons not having tickets from using the ski tows.

By sec. 77.52 (2), Stats., Wisconsin imposed a selective three-percent sales tax upon the sale of, the performing or furnishing certain types of services at retail. Sub. (2) (a) 2, pertinent to this case, provides “The sale of admissions to places of amusement, athletic entertainment or recreational events or places and the furnishing, for dues, fees or other considerations, the privilege of access to clubs or the privilege of having access to or the use of amusement, entertainment, athletic or recreational facilities.” In considering this section the trial court in its written opinion stated, “It was obviously the intention of the Wisconsin legislature to levy a tax upon fees for participants as well as admissions for spectators. While it is to be conceded that if there is any ambiguity in a taxing statute, any doubt shall be resolved in favor of the taxpayer, Wadhams Oil Co. v. State (1933), 210 Wis. 448, 460, 246 N. W. 689, a court is not to search for doubt in an endeavor to defeat an obvious legislative intention.” We agree.

Telemark argues a ski-tow ride is not amusing, entertaining, athletic, or recreational and the ski tow itself is not a facility but merely a transportation device. Without personal experience or testimony on the point, we cannot vouch for the nonamusing, entertaining, or athletic qualities of a ski-tow ride, and while the rope tow or T-bar lift furnishes transportation in a sense, it does not because of that quality immunize itself from being a recreational facility. Telemark cites Fisher v. Mt. Mansfield Co. (2d Cir. 1960), 283 Fed. (2d) 533, but that case, holding a ski tow is a common carrier for the purpose of determining negligence, is not in point on the question of whether it is a facility for taxation purposes. True, ski tows are not specifically mentioned in the statute, but a selective-sales-tax enactment does not need to itemize each specific object of taxation. Individual objects or services may be taxed as members of a designated class. We find no merit in Telemark’s argument that to hold the ski tows a recreational facility would lead to overlapping and inconsistency with other parts of the selective sales tax or that such interpretation would destroy any exemption provided by sec. 77.54 (10), Stats.

Telemark contends the word “facilities” in the statute should be construed to mean only “place, location, or situs” and thus the hills and slopes are the recreation “facilities” for the participants. Under this concept T-bar lifts and rope tows are but devices or equipment and since people can ski down the slopes for free, there can be no tax for charging for rides on the ski lifts to go up the slopes.

This statute has not been previously construed by this court, but we do not think it can be given so narrow an interpretation as contended for by Telemark. Words in a statute should be given their ordinary and accepted meaning. Snorek v. Boyle (1962), 18 Wis. (2d) 202, 118 N. W. (2d) 132; Estate of Riebs (1959), 8 Wis. (2d) 110, 98 N. W. (2d) 453. The trial court construed a facility in terms of Webster’s Third International Dictionary definition as, “5 a: something that promotes the ease of any action, operation, transaction, or course of conduct . . . .” It might have also accepted the definition, “b: something . . . that is built, constructed, installed, or established to perform some particular function or to serve or facilitate some particular end.” Ski tows are certainly built and constructed to perform the particular function of pulling people on skis from the bottom of a hill to its top and thus facilitate the enjoyment of skiing.

Sec. 77.52 (2) (a) 2, Stats., taxes both spectator and participation activities. An admission charge to a place of amusement as provided in the first sentence may be either an admission to a theater as a spectator charge or an admission to a dance or skating rink where the entrant participates and thus be a participation charge. Some activities do not depend upon admission to a confined place but upon access to or use of facilities whether they be the place, such as a golf course, or equipment such as a pool or billiard table. It is apparent sec. 77.52 (2) (a) 2 is more extensive than a strict admission-tax statute and being a selective is less extensive than a full-tax statute. But this does not mean that because the business of a ski resort is not taxed as such that the furnishing of facilities for skiing must be restricted to the hills and slopes.

If the furnishing for a fee the privilege of having access to or the use of amusement, entertainment, athletic, or recreational facilities were to be construed to mean only access to or use of a place, we would have to disregard the choice of using both “places” and “facilities” in sec. 77.52 (2) (a) 2. That section uses “places” in the first part of the sentence in connection with admissions and “facilities” in the latter part of the sentence in connection with access to or use of. Having used the word “places” in relation to the sales of admission which may include both spectator and participation charges, the legislature must have intended by “facilities” to include something more than a place or location. Consequently, facilities applied to the facts of this case cannot be restricted only to Telemark’s ski slopes but must also include the ski tows. We hold the income for the access to or the use of the ski tows is taxable under sec. 77.52 (2) (a) 2, Stats.

By the Court. — Judgment affirmed.