author: Beilfuss, J.

text:
    Chicago & North Western Railway Company and others, Respondents, v. La Follette, Attorney General, and others, Appellants.

      April 28

    June 1, 1965.

      For the appellants the cause was argued by Beatrice Lampert, assistant attorney general, with whom on the briefs was Bronson C. La Follette, attorney general.
    For the respondents there was a brief by La Follette, Sinykin, Doyle & Anderson and James E. Doyle, all of Madison, and oral argument by James E. Doyle.

    A brief amicus curiae was filed by Wheeler, Van Sickle, Day & Goodman and Roland B. Day, all of Madison, for the Brotherhood of Railroad Trainmen.
    A brief amicus curiae was also filed by Ralph M. Hoyt of Milwaukee, attorney, and Harold C. Heiss of Cleveland, Ohio, of counsel, for the Brotherhood of Locomotive Firemen & Enginemen.
   Beilfuss, J.

The genesis of the instant litigation arose when the railroads and the unions exchanged “notices” pertaining to crews and work rules. Negotiations were had without success. A national strike was imminent. A presidential fact-finding commission was appointed. Public Law 88-108 (77 Stat. 132, 45 USCA, sec. 157 (1964 Supp.)) was enacted. Arbitration was ordered with a binding award to be made in respect to the fireman issue and the crew consist of train and engine crews. The job of fireman was eliminated, for the most part; the employment of individuals was to be terminated gradually. The crew-consist issue was remanded for local negotiations.

Two issues are presented. (1) Has Congress pre-empted the subject of full-crew regulation? And, (2) does the complaint state facts sufficient to constitute a cause of action ?

Pre-emption.

The question of federal pre-emption of this particular area of local concern is one of subject-matter jurisdiction. Respondents have pleaded Public Law 88-108; they have not pleaded pre-emption. The issue was discussed in the briefs. Suffice it to say, the issue is properly raised at any time, or on appeal for the first time. Moreland Corp. v. Retail Store Employees Union (1962), 16 Wis. (2d) 499, 114 N. W. (2d) 876.

However, before pre-emption will be found to exist, that intention of Congress must be clearly manifested. Minne apolis, St. P. & S. S. M. R. Co. v. Railroad Comm. (1924), 183 Wis. 47, 197 N. W. 352; Florida Lime & Avocado Growers v. Paul (1963), 373 U. S. 132, 83 Sup. Ct. 1210, 10 L. Ed. (2d) 248, rehearing denied 374 U. S. 858, 83 Sup. Ct. 1861, 10 L. Ed. (2d) 1082; International Union v. Wisconsin Employment Relations Board (1949), 336 U. S. 245, 69 Sup. Ct. 516, 93 L. Ed. 651, rehearing denied 336 U. S. 970, 69 Sup. Ct. 935, 93 L. Ed. 1121; Missouri Pacific R. Co. v. Norwood (1931), 283 U. S. 249, 51 Sup. Ct. 458, 75 L. Ed. 1010; Chicago, Rock Island & P. R. Co. v. Hardin, supra; New York Central R. Co. v. Lefkowitz, supra. The ultimate question is: Does the application of state law frustrate the purpose of the federal legislation? Teamsters Union v. Morton (1964), 377 U. S. 252, 84 Sup. Ct. 1253, 12 L. Ed. (2d) 280. See also Teamsters Union v. Oliver (1959), 358 U. S. 283, 79 Sup. Ct. 297, 3 L. Ed. (2d) 312.

The clear manifestation of a purpose to pre-empt state legislation should be considered in light of the rule that the states have considerable latitude respecting safety regulation of interstate commerce in the exercise of their police powers. Thus, it was said in Terminal Asso. v. Trainmen (1943), 318 U. S. 1, 8, 63 Sup. Ct. 420, 87 L. Ed. 571:

“As to both classes of runs, the effect of the order is in some measure to retard and increase the cost of movements in interstate commerce. This is not to say, however, that the order is necessarily invalid.. In the absence of controlling federal legislation this Court has sustained a wide variety of state regulations of railroad trains moving in interstate commerce having such effect.”

The pertinent Wisconsin and federal statutes are set forth as follows:

“192.25 (2) Freight Crew. No railroad operating more than 10 miles of route shall run outside of yard limits any freight train propelled by any form of energy of 3 cars or more with less than a full train crew consisting of an engineer, a fireman, a conductor and 2 brakemen. . . .
“(4) Engine Crew. It is unlawful for any railroad company in the state of Wisconsin operating more than 10 miles of route to move over its main line outside of yard limits an engine propelled by any form of energy with no cars attached with less than a full crew consisting of one engineer, one fireman and one pilot; said pilot to have had not less than 3 years’ experience in train or engine service and who shall have passed standard examination on book of rules and has qualified as a conductor or an engineer; except that such pilot need not be used if one is not available when it is necessary to run engine to the relief of an injured person or to raise a blockade of traffic.
“(4a) Extension Full Train Crew Requirement. It shall be unlawful for any railroad company in the state of Wisconsin to operate any locomotive, locomotive crane, pile driver, steam shovel, cut widener, gas-electric motor car, or gas-electric switch engine or any other similar self-propelled vehicle propelled by any form of energy whether properly denominated an engine or locomotive, when used on its tracks for the purpose of switching cars, with less than a full train crew consisting of one engineer, one fireman, one conductor and two helpers. Said train crew shall be selected from seniority lists of train and locomotive engine employes on the division of the railroad on which the crew is to be worked.”

Public Law 88-108, 77 Stat. 132, 45 USCA, sec. 157 (1964 Supp.), provides as follows:

“Sec. 1. [Settlement of disputes]. That no carrier which served the notices of November 2, 1959, and no labor organization which received such notices or served the labor organization notices of September 7, 1960, shall make any change except by agreement, or pursuant to an arbitration award as hereinafter provided, in rates of pay, rules, or working conditions encompassed by any of such notices, or engage in any strike or lockout over any dispute arising from any of such notices. Any action heretofore taken which would be prohibited by the foregoing sentence shall be forthwith rescinded and the status existing immediately prior to such action restored. . . .
“Sec. 3. [Decision of board]. . . . The arbitration board shall make a decision, pursuant to the procedures hereinafter set forth, as to what disposition shall be made of those portions of the carriers’ notices of November 2, 1959, identified as ‘Use of Firemen (Helpers) on Other Than Steam Power’ and ‘Consist of Road and Yard Crews’ and that portion of the organizations’ notices of September 7, 1960, identified as ‘Minimum Safe Crew Consist’ and implementing proposals pertaining thereto. The arbitration board shall incorporate in such decision any matters on which it finds the parties were in agreement, shall resolve the matters on which the parties were not in agreement, and shall, in making its award, give due consideration to those matters on which the parties were in tentative agreement. Such award shall be binding on both the carrier and organization parties to the dispute and shall constitute a complete and final disposition of the aforesaid issues covered by the decision of the board of arbitration.
“Sec. 4. [Award]. . . . The award shall continue in force for such period as the arbitration board shall determine in its award, but not to exceed two years from the date the award takes effect, unless the parties agree otherwise. . . .
“Sec. 6. [Collective bargaining for issues not arbitrated]. The parties to the disputes arising from the aforesaid notices shall immediately resume collective bargaining with respect to all issues raised in the notices of November 2, 1959, and September 7, 1960, not to be disposed of by arbitration under section 3 of this joint resolution and shall exert every reasonable effort to resolve such issues by agreement. The Secretary of Labor and the National Mediation Board are hereby directed to give all reasonable assistance to the parties and to engage in mediatory action directed toward promoting such agreement.
“Sec. 7. [Considerations affecting award; enforcement], (a) In making any award under this joint resolution the arbitration board established under section 2 shall give due consideration to the effect of the proposed award upon adequate and safe transportation service to the public and upon the interests of the carrier and employees affected, giving due consideration to the narrowing of the areas of disagreement which has been accomplished in bargaining and mediation. . . .
“Sec. 8. [Expiration date]. This joint resolution shall expire one hundred and eighty days after the date of its enactment, [Aug. 28, 1963], except that it shall remain in effect with respect to the last sentence of section 4 for the period prescribed in that sentence.”

For the reasons which follow, we conclude the state full-crew laws have not been pre-empted.

The following appears in 109 Congressional Record 16122 (Aug. 28, 1963) :

“Mr. Harris. This issue was raised in the course of the hearings before the committee. Questions were asked of the various people representing management and the labor industry and witnesses representing the labor brotherhoods, the employees’ representatives, and the Secretary of Labor. It was made rather clear in the course of the hearings that it would in no way affect the provisions of State laws. The committee in executive session discussed the question and concluded that it was not the intent of the committee in any way to affect State laws. On page 14 of the committee report we included, in order that this history might be made, this language:
“The committee does not intend that any award made under this section may supersede or modify any State law relating to the manning of trains.
“In a footnote on page 112 of the hearings before the committee on House Joint Resolution 565, the original bill, there is a discussion of the legal basis for State ‘full-crew’ laws, and a citation to several Supreme Court decisions upholding these laws, such as Missouri Pacific R. R. Co. v. Norwood (283 U. S. 249).
“Therefore, since this bill does not mention the subject of State laws, and since, as the committee report shows, we do not intend to affect these laws, I am confident they are not affected by the bill.
“I think that is about as clear as we can make it.”

The award of the arbitration board is as much a part of the law of the land as is the statute. The statute commands a study and award be made in respect to the fireman issue. That such a study and award were made does not ipso facto pre-empt state law. Note that the statute and the award expire by the terms of the statute.

The award itself provides:

“II. Use of Firemen (Helpers) on Other Than Steam Power
“Part A — Saving Clause
“A (1) All agreements, rules, regulations, interpretations and practices, however established, with respect to the employment of firemen (helpers) shall continue undisturbed except as modified by the terms of this Award.”

The award makes reference to the matter of safety. The matter of crew consist of trains and engines was left for local negotiation. Guidelines were set forth, one of which is, “State, county, or municipal regulations applicable with respect to highway, street, road, railroad, or other crossings or intersections.” This guideline is not squarely on point but it does reflect appreciation of local safety rules.

The opinion of the neutral members of the arbitration board states, at page 4:

“The provisions of our award are explained in general terms in this opinion, without reference to certain refinements spelled out in the award. In the event of any inadvertent conflict between the explanation given in this opinion and the precise language of the award, the latter is, of course, intended to govern.”

The award is silent on the question of pre-emption of the full-crew laws. The opinion should be read as explanatory of the award.

The opinion rejected the idea that there will be a wholesale elimination of personnel from the jobs which have been terminated. Several reasons were given. One is that the award provides for gradual elimination of the employees. And, further, "... a number of States, by law or administrative regulation, require the use of firemen in road freight or yard service.”

With respect to the crew-consist issue, the opinion states:

“It has been explained earlier in this opinion that the size of road and yard crews in other than engine service has never been the subject of a national rule in the railroad industry. The consist of these crews, involving primarily helpers and road brakemen, has been determined generally by local rules, practices, state full crew laws, or regulations issued by State Public Utility Commissions. Only a relatively few carriers are unrestricted in determining the size of crews, and it is doubtful if even they have complete freedom to change crew size as they wish. It is clear from the evidence before us that the myriad of local arrangements has led to numerous inconsistencies in the manning of crews. It is equally clear that some of the existing rules, originating as they did more than a half-century ago, are anachronistic and do not reflect the present state of railroad technology and operating conditions.” (Emphasis added.)

The board was directed to pass directly on the firemen and train-crew issues. Brotherhood of Locomotive Firemen & Enginemen v. Chicago, B. & Q. R. Co., supra. It did not, however, pre-empt the field, as shown by the award and the opinion of the neutral members.

There is a split of authority on the pre-emption question.

In Florida Lime & Avocado Growers v. Paul, supra, it was said that if physical compliance with both the state and federal law is impossible, state law is pre-empted. Such is not the case here. In the Florida Lime & Avocado Growers Case the court stated the standards for determining when there is pre-emption. Does state law operate as an “ ‘obstacle to the accomplishment and execution of the full purposes and objectives of Congress?’ ” The court said at page 142:

“The test of whether both federal and state regulations may operate, or the state regulation must give way, is whether both regulations can be enforced without impairing the federal superintendence of the field, not whether they are aimed at similar or different objectives.”

There is no pre-emption, as the court said:

“. . . in the absence of persuasive reasons — either that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained.”

The well-established rule that states may regulate in this area of safety, the fact that Public Law 88-108 and the award do not clearly manifest an intention to occupy this field warrant the conclusion that our full-crew laws have not been pre-empted. Whether such laws can withstand the challenge from other directions — and the sufficiency of such a challenge — are the next points to be considered.

The Complaint: The Right to a Judicial Determination As to the Constitutionality of Statutes.

At the outset, it should be observed that we express no opinion as to the merits of the respondents’ case. Nor, on demurrer, are we concerned with whether respondents can prove their allegations at trial. Merchandising Corp. v. Marine Nat. Exchange Bank (1960), 12 Wis. (2d) 79, 106 N.W. (2d) 317.

Whether any part of a statute may be upheld is a question of law for the courts. Stewart v. Stanley (1941), 199 La. 146, 5 So. (2d) 531. A regulatory statute cannot masquerade as an absolute exercise of police power. It must be reasonable. Whether it transcends the constitution must be decided by the court. Northern Pacific R. Co. v. Warner (1950), 77 N. D. 721, 45 N. W. (2d) 196.

A person claiming to be aggrieved by the application of a statute to his particular circumstances is entitled to challenge the constitutional foundation of that statute in our courts. The clear distinction must be understood between the right to a judicial determination as to the statute’s constitutionality, and the scope of judicial review which the court will undertake and what effect will be given to the evidence adduced at trial. A fair balance must be struck, in construing pleadings, between the status of a regularly enacted statute and the onerous burden of invalidating the statute. Proper balancing of the rules of pleading and the right to judicial review promote justice.

There is no dispute as to the rule that,

“All acts of legislative bodies are presumed to be constitutional unless established otherwise by a competent tribunal.” Courtesy Cab Co. v. Johnson (1960), 10 Wis. (2d) 426, 431, 103 N. W. (2d) 17.

In cases challenging the constitutionality of statutes we do not sit as judges of the merits of the controversy, as is done in other cases. Borden Co. v. McDowell (1959), 8 Wis. (2d) 246, 99 N. W. (2d) 146. We will not weigh the relative merits of this legislation. Courts are not concerned with the overall merits or wisdom of statutes. State v. Dried Milk Products Co-operative (1962), 16 Wis. (2d) 357, 114 N. W. (2d) 412; State v. Ross (1951), 259 Wis. 379, 48 N. W. (2d) 460. But, the court does become judicially concerned where the statute “clearly contravenes some constitutional provision.” Thielen v. Metropolitan Sewerage Comm. (1922), 178 Wis. 34, 189 N. W. 484; Knoll v. Shaler (1923), 180 Wis. 66, 192 N. W. 399.

We are obligated only to weigh statutes on the scales of reasonableness. See State v. Redmon (1907), 134 Wis. 89, 114 N. W. 137. The exercise of state police power must rest upon reasonable grounds. The means adopted thereby must be a reasonable accomplishment of that purpose. Wisconsin Telephone Co. v. Milwaukee (1936), 223 Wis. 251, 270 N. W. 336. In Nebbia v. New York (1934), 291 U. S. 502, 54 Sup. Ct. 505, 78 L. Ed. 940, it is said that the police power must be such that the “end shall be accomplished by methods consistent with due process.” Further, that “the means selected shall have a real and substantial relation to the object sought to be attained.” The burden on the challenger is heavy. All legislative acts are constitutional unless it appears they are unconstitutional beyond a reasonable doubt. State ex rel. McCormack v. Foley (1962), 18 Wis. (2d) 274, 118 N.W. (2d) 211.

Whether the scale will be tipped on the side of constitutional mandates which condemn statutory inroads into constitutional sanctuaries or on the side of the presumption of constitutionality of legislative enactments is ultimately resolved by the answer to this question: Is the legislative choice without a reasonable basis ? Onsrud v. Kenyon (1941), 238 Wis. 496, 300 N. W. 359.

A narrow view of what are ultimate facts or conclusions of law must not be indulged in when a statute is challenged. Constitutional rights are too fundamental — too important— not to be considered by this court. (A complaint must nevertheless meet minimum requirements for pleadings.) We should not lose sight of the function of courts in our society. That a statute will be upheld if there is any reasonable basis for it necessarily implies a determination of that very question, with the proviso that the court will not weigh the evidence. Our duty was stated in State ex rel. Attorney General v. Cunningham (1892), 81 Wis. 440, 477, 51 N.W. 724:

“How, then, can this court declare what the statutory law is, without first determining whether it conflicts with the constitution ? Without this power, this court would have no judicial functions whatever, and would be a useless appendage of the government. . . .
“ ‘By a course of judicial decisions reaching from the earliest history of American government to the present day, without a dissenting voice, it has been adjudged that courts of justice have the right and are in duty bound to test every law by the constitution as the fundamental and paramount law of the land, governing all derivative power and the exercise thereof. ... To contend that this is not so would be to assert that the legislative branch of the government is supreme in its authority.’ . . .
“ ‘Whether the legislature has transcended its power and passed an act in conflict with the constitution is essentially a question of law, and must necessarily be passed upon by the courts.’ ”

It is clear that the court has the obligation to take judicial notice, where it can, to uphold a statute. Ritholz v. Johnson (1944), 244 Wis. 494, 12 N. W. (2d) 738. And, it is the duty of the attorney general to appear on behalf of the people of this state to show why the statute is constitu- . tional. Sec. 269.56 (11), Stats. But, where the court has no adequate knowledge of the facts pertaining to the subject of the lawsuit, nor can it satisfactorily inform itself of such facts, a trial should be had. Ritholz v. Johnson, supra. Whether a trial will be had, or judicial notice taken, is a matter of discretion reposing in this court. Associated Hospital Service v. Milwaukee (1961), 13 Wis. (2d) 447, 109 N. W. (2d) 271.

In State v. Chippewa Cable Co. (1963), 21 Wis. (2d) 598, 602, 124 N. W. (2d) 616, it is said:

“The type of issue presented by an allegation that a statute violates the constitution, and a denial thereof or demurrer thereto, does not fit exactly into the usual classification of issues as fact or law. Primarily, it is an issue of law, but because of principles controlling judicial review of legislative acts, the issue often is: Whether there may be reasonably conceived in the mind of the court facts which the legislature could have deemed to exist and which would form a reasonable basis upon which the statute may constitutionally rest.
“The process of judicial notice may be adequate to resolve the question under some circumstances, but particularly where economic regulation is involved, it may be necessary for a court to make a judicial investigation of facts outside the ordinary scope of judicial notice. . . .
“It is clear, however, that where judicial notice can be taken of facts sufficient to form a reasonable basis upon which the statute may constitutionally rest, the assembling of further facts by way of trial could serve no useful purpose, and the Ritholz procedure need not be followed.”

The challenge raised by the respondents is of sufficient magnitude to warrant a judicial inquiry. Certainly, the studies made by the boards on the railroad issues, raise sufficient doubt about the entire subject of full-crew legislation. Whether facts will be presented at a trial to elevate that doubt to prove that there is no reasonable basis for the statute must abide the result of a hearing.

Appellants argue that respondents are required “to negate every conceivable basis which may reasonably support the statute’s constitutionality,” citing State v. Texaco (1961), 14 Wis. (2d) 625, 111 N. W. (2d) 918. In that case it was the opponent of the statute, Texaco, which demurred thereby attempting to preclude a full hearing on the merits. There, this court affirmed the order of the trial court which overruled the demurrer. Texaco does not apply any rule other than there must be a showing of no reasonable basis for a statute. For the pleader to set forth the minute details of proof in the pleading is neither required nor proper pleading.

The complaint fully and fairly advises the appellants and the court of what is claimed. Handy v. Holland Furnace Co. (1960), 11 Wis. (2d) 151, 105 N. W. (2d) 299; Aldrich v. Skycoach Air Lines Agency (1954), 266 Wis. 580, 64 N. W. (2d) 199; Wauwatosa v. Milwaukee (1954), 266 Wis. 59, 62 N. W. (2d) 718. The issue is very narrow in this case; the proof, however, might have to be very broad.

Allegations of unconstitutionality without supporting factual allegations are conclusions of law and improper. See Bieser v. Woods (1941), 347 Mo. 437, 147 S. W. (2d) 656; Juengel v. Glendale (Mo. 1942), 161 S. W. (2d) 408; Springfield v. Kable (1940), 306 Ill. App. 616, 29 N. E. (2d) 675. In Laun v. Kipp (1914), 155 Wis. 347, 355, 145 N. W. 183, it is said:

“Technical accuracy in statements of fact is not required. Facts need not, necessarily, be expressly alleged. No very narrow idea is to be indulged in as to what is a legal conclusion and what a matter of fact, or mixed law and fact. . . . All reasonable doubts are to be resolved in favor of the pleader. All facts expressly stated and all reasonably in-ferable therefrom, giving to the language of the pleading the broadest meaning which it will reasonably bear, are to be regarded as sufficiently alleged to meet any challenge for insufficiency.”

In its simplest form the complaint alleges that firemen are unnecessary; that the requirement that firemen be part of the crew in freight trains and in yard service bears no reasonable relationship to safety, and results in an unreasonable financial burden upon respondents; and, therefore, the statutes which require under the circumstances firemen violate enumerated sections of the state and federal constitutions. If respondents are able to sufficiently demonstrate that firemen are not needed and serve no useful purpose, and their function bears no relation to the safety of the crew or the public —within the bounds of reason — Query: Have not the respondents met their burden of proof ?

It would seem that the allegations that firemen perform no necessary function in the operation of the train and that their presence in the crew has no relation to safety represent an “ultimate collection” of those facts which the respondents must prove. What was said in Larson v. Lester (1951), 259 Wis. 440, 443, 49 N. W. (2d) 414, is apposite:

“The statement may be a conclusion of law, but this court has said:
“ ‘. . . Where the ultimate fact essential to a cause of action is brought into existence by a series of detail acts and events, it is entirely competent and sufficient to plead those detail acts according to their legal effect, . . .’ . . .
“ ‘Matters of mixed law and fact, the ultimate of which is, in a broad sense, a fact, may be pleaded according to their legal effect . . . every reasonable intendment must be indulged in in favor of the pleading.’ . . .”

Thauer v. Gaebler (1930), 202 Wis. 296, 232 N. W. 561, was an action by a minority shareholder on behalf of defendant corporation to require other defendants to account for and repay certain moneys. Defendants claim the allegations that certain increases in salaries to the officers are “excessive and unreasonable,” or “excessive and unlawful,” are but conclusions of law. The court said they are “really statements of mixed conclusions of fact and law, the ultimate of which is, in a broad sense, a conclusion of fact, and consequently may be pleaded according to their legal effect.” In State ex rel. Week v. State Board of Examiners (1947), 252 Wis. 32, 30 N. W. (2d) 187, it appears that the general allegation that certain portions of a statute are in violation of the Fourteenth amendment by depriving the party of his right to property without due process of law are sufficient.

Appellants argue that the complaint does not allege anything to take it out of the three Arkansas full-crew cases, especially the Norwood Case.

Full-crew laws are intended for the safety of the public, of the passengers, and employees of the railroad. Beal v. Missouri Pacific R. Corp. in Nebraska (8th Cir. 1940), 108 Fed. (2d) 897; see also Union Pacific R. Co. v. Anderson (1941), 167 Or. 687, 120 Pac. (2d) 578; Bressler v. Chicago & N. W. R. Co. (1950), 152 Neb. 732, 42 N. W. (2d) 617; New York Central R. Co. v. Public Utilities Comm. (1953), 160 Ohio St. 236, 115 N. E. (2d) 842. Whether the basis for these laudable purposes exists under present conditions is another question.

Full-crew laws are penal and in derogation of the common law. State v. Chicago & N. W. R. Co. (1931), 205 Wis. 252, 237 N. W. 132; Brotherhood of Railroad Trainmen v. Illinois Central R. Co. (1962), 243 Miss. 851, 138 So. (2d) 908; Bressler v. Chicago & N. W. R. Co., supra.

The Arkansas full-crew cases are not controlling. The net effect of the United States supreme court’s decisions were that the subject of full crews is a proper one for state regulation. The first two cases were decided upon a record. In the first case the court said the laws were enacted for the protection of those engaged in interstate commerce. The court did, however, express its doubt as to the necessity of the law.

In the second case the court held that, as in the first case, the testimony did not establish that the statute was an arbitrary exercise of power.

In the third case the pleadings alleged changing circumstances and improvements in the safe operation of the trains. The court said (atp. 255) :

“The burden is on the plaintiff by candid and direct allegations to set forth in its complaint facts sufficient plainly to show the asserted invalidity. . . .
“There is no showing that the dangers against which these laws were intended to safeguard employees and the public no longer exist or have been lessened by the improvements in road and equipment or by the changes in operating conditions there described. And, for aught that appears from the facts that are alleged, the same or greater need may now exist for the specified number of brakemen and helpers in freight train and switching crews. . . . There is no statement as to present efficiency of switching crews compared with that when the 1913 Act was passed, but it reasonably may be inferred that larger cars and heavier loading of today make for a lower switching expense per car or ton. While cost of complying with state laws enacted to promote safety is an element properly to be taken into account in determining whether such laws are arbitrary or repugnant to the due process clause of the Fourteenth Amendment, . . . there is nothing alleged in that respect which is sufficient to distinguish this case from those in which we have upheld the laws in question.”

Conditions may have changed sufficiently to warrant reexamination of Wisconsin law.

We think the reasoning in Pennsylvania R. Co. v. Driscoll (1938), 330 Pa. 97, 104, 198 Atl. 130, is most appropriate to this case. The opinion is long and will not be quoted at length. The following is pertinent to our discussion:

“But this challenge against the constitutionality of the Full Crew Act depends entirely on facts. We cannot determine whether the Act is confiscatory, unreasonable and arbitrary, or whether it does not reasonably tend to promote safety, until facts are presented to show the existence of any of these effects. Prima facie, the Act is valid and must be so considered by us until its invalidity appears. Whether the measure promotes safety, or has a tendency to do so, must indubitably turn on facts and circumstances regarding that subject, and the relation which the provisions of the Act bear to safety. An analysis of the statute and the statute’s requirements is necessary; we must compare these with the incidents of transportation, including the causes which create the need for safeguards, and the methods now employed to obtain the safety of the public and employees. When the result is reached, if it is found the statutory protection is of such slight consequence, or is so incidental as to cause the provisions of the Act to be wholly impractical, and not in promotion of the safety it seems to strive for, then its operation would be unreasonable and arbitrary. This situation could only be developed by evidence. In these circumstances, of course, it would be error to refuse to hear evidence. [Cases cited.]”

The Pennsylvania R. Co. v. Driscoll Case (1939), 336 Pa. 310, 336, 9 Atl. (2d) 621, was a decision on the merits. The full-crew law was held invalid. There was a 7,000 page record and 282 findings of fact. The court said the fact that the legislature has promulgated such regulations by its own general statute does not exempt them from judicial review. Further, the court said:

“What impressd us most was the highly speculative possibility of the danger of accidents alleged to exist. The resultant effectiveness of the Act under these circumstances could only be out of all reasonable proportion to the cost involved, . . .”

Respondents argue that Southern Pacific Co. v. Arizona (1945), 325 U. S. 761, 65 Sup. Ct. 1515, 89 L. Ed. 1915, is on point in respect to the issue of undue burden upon interstate commerce. It is not. Enough has been said on this point earlier in this opinion. As to the Arizona case, it is sufficient to say that the record made it abundantly clear that the Arizona Train Limit Law (which regulated the length of trains) substantially impaired the operation of interstate railroads. The regrouping of trains, made necessary to comply with the state law, had a stultifying effect on the free flow of commerce. Full-crew laws, on the contrary, do not necessarily have that effect.

We conclude that the complaint does state sufficient facts to entitle the respondents to a trial as to the constitutionality of the challenged portions of the “full crew” statutes.

The memorandum decision filed by the trial court directed the “defendants ... to advise the plaintiff railroads and the court by way of answer what they maintain is a reasonable justification for the imposition of the fireman requirement upon the plaintiffs in all of their yard and over-the-road freight operations conducted in Wisconsin.”

We disagree as to the learned trial court’s placement of the burden of proof. The burden of proof in this case is upon the respondent railroads to show that the statute is unconstitutional. The appellants should be free to choose the method and extent of their defense.

The order entered pursuant to the memorandum decision does not order the appellants to answer in any particular manner, and should be affirmed in this form.

“The subject matter of the instant action is far too vital to be summarily disposed of by demurrer upon inadequate information contained in the record on demurrer.” Gregory III v. Madison Mobile Homes Park (1964), 24 Wis. (2d) 275, 278, 128 N. W. (2d) 462.

By the Court. — Order affirmed.

       A review of this factual background is set forth in Brotherhood of Locomotive Firemen & Enginemen v. Chicago, B. & Q. R. Co. (D. C., D. C. 1964), 225 Fed. Supp. 11, affirmed 331 Fed. (2d) 1020, certiorari denied 377 U. S. 918, 84 Sup. Ct. 1181, 12 L. Ed. (2d) 187; In re Certain Carriers (D. C., D. C. 1964), 229 Fed. Supp. 259; Chicago, Rock Island & P. R. Co. v. Hardin (D. C. Ark. 1965), 239 Fed. Supp. 1; New York Central R. Co. v. Lefkowitz (1965), 46 Misc. (2d) 68, 259 NY Supp. (2d) 76.

       See also California v. Thompson (1941), 313 U. S. 109, 116, 61 Sup. Ct. 930, 85 L. Ed. 1219, wherein various cases upholding regulations of interstate commerce by the states are collected. In that case the court said: “If there is authority in the state, in the exercise of its police power, to adopt such regulations affecting interstate transportation, it must be deemed to possess the power to regulate the negotiations for such transportation where they affect matters of local concern which are in other respects within state regulatory power, and where the regulation does not infringe the national interest in maintaining the free flow of commerce and in preserving uniformity in the regulation of the commerce in matters of national concern,”

       In New York Central R. Co. v. Lefkowitz, supra, state law was held not pre-empted. The court said: “I do not believe that the language employed in the statute indicates a purpose to permit the Arbitration Board to determine that locomotives and trains may be manned, in states which had enacted full crew laws to eliminate the hazards of railway operations within their own borders, with smaller crews than those prescribed by such laws. Certainly, if there is such a purpose, it is not clearly expressed. On the contrary, both the language employed and the legislative history of the statute appear to evidence an intent not to interfere, in any way, with the operation of the state laws. Neither does the award of the arbitrators, when read in the light of its expressed purpose, evidence an intent to permit locomotives and trains to be manned in violation of state statutes. Unquestionably, as has been stated, the public law and the award made thereunder are part of the law of the land.” In Chicago, Rock Island & P. R. Co. v. Hardin, supra, a three-judge federal court held the state law was pre-empted. The court was divided. The minority opinion stated at page 30: “Thus contrary to the view of my brothers, I can find nothing in Public Law 88-108 or the arbitration award which manifests a Congressional intent to pre-empt the field covered by the Arkansas statutes.”

         Thus, the court does not resolve constitutional questions upon “fairly debatable issues.” Ferguson v. Skrupa (1963), 372 U. S. 726, 83 Sup. Ct. 1028, 10 L. Ed. (2d) 93. All doubts are resolved in favor of the legislation. State ex rel. Thomson v. Giessel (1953), 265 Wis. 558, 61 N. W. (2d) 903. So, when it is reasonably possible to uphold the validity of a statute it will be done. United Gas, Coke & Chemical Workers v. Wisconsin Employment Relations Board (1949), 255 Wis. 154, 38 N. W. (2d) 692. “Good intentions” do not prevent the court from inquiring whether the statute transcends constitutional limitations. Bonnett v. Vallier (1908), 136 Wis. 193, 116 N. W. 885.

       In Marbury v. Madison (18063), 5 U. S. 49, 58 (1 Cranch 137, 163), it is said: “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain the King himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court.” In State v. Redmon, supra, at page 106, it is said: “. . . all legislative regulations of human affairs interfering with personal liberty or other private rights, to be legitimate, tested by constitutional limitations, must be reasonably for the public benefit.” And, “Law can never legitimately go clearly beyond the boundaries of reason.”

        Chicago, Rock Island & P. R. Co. v. Arkansas (1911), 219 U. S. 453, 31 Sup. Ct. 275, 55 L. Ed. 290; St. Louis & Iron M. R. v. Arkansas (1916), 240 U. S. 518, 36 Sup. Ct. 443, 60 L. Ed. 776; and Missouri Pacific R. Co. v. Norwood (1931), 283 U. S. 249, 51 Sup. Ct. 458, 75 L. Ed. 1010.

       The Norwood Case, supra, followed relatively soon after the second Arkansas full-crew case. That the court was not impressed with the possibility of changed circumstances is understandable. Norwood antedates the “age of dieselization,” of which we take judicial notice. This notwithstanding the New York supreme court in New York Central R. Co. v. Lefkowitz, supra, just upheld the state full-crew laws. The opinion of the New York trial court, while entitled to due respect, cannot preclude us from making our own independent evaluation of conditions as they exist today in Wisconsin.

       See Terminal Asso. v. Trainmen, supra, and footnote 2, supra.


source: Caselaw Access Project

author: Fairchild, J.

license: Public Domain

text:
    Brink and others, Appellants, v. Industrial Commission and others, Respondents.

      April 26

    June 1, 1965.

      For the appellants there were briefs by Goldberg, Previ-ant & Uelmen of Milwaukee, and oral argument by Gerald A. Goldberg.

    For the respondent Industrial Commission there was a brief by Arnold J. Spencer, chief counsel of the unemployment compensation division, and Max J. Peltin of Madison, and oral argument by Mr. Spencer.

      For the respondent Journal Company there was a brief by Shea, Hoyt & Greene, and oral argument by Paul F. Meiss-ner, all of Milwaukee.
   Fairchild, J.

It was the employer’s position before the commission that at the time of discharge it became obligated to each plaintiff for an amount of money, due and payable as soon as the computation could be made; that for purposes of plaintiffs’ eligibility for unemployment compensation benefits, this amount represented wages which the employer could allocate, at the particular plaintiff’s full weekly wage rate to the successive weeks immediately following the discharge (which occurred in week No. 29); and that the notice of discharge sufficiently apprised each plaintiff of such allocation to be due notice under the applicable portion of the Unemployment Compensation Act. The commission found that the notice of discharge was insufficient notice of allocation, but that the notice given in week No. 34 was sufficient with respect to allocations to week No. 34 and subsequent weeks. The employer has not challenged the commission’s decision that there was insufficient notice with respect to allocations to weeks before No. 34.

Plaintiffs’ principal argument is that the notice given in week No. 34 was insufficient, also, because it allocated the entire amount due among a number of weeks without separating the amount into its components, i.e., dismissal pay, vacation pay, and pay in lieu of notice, and without specifying the particular weeks to which each type of pay was allocated.

There is no claim that the discharge was a breach of the collective-bargaining agreement, nor that it failed in any respect to terminate the relationship of employer and employee. As we see it, nothing of the contractual relationship survived the discharge except the employer’s obligation to pay each plaintiff an amount of money, ascertainable by computation according to the contractual formulae, using the length of service and weekly wage rate of the particular plaintiff.

We find nothing in this collective-bargaining agreement, express or implied, which affects in any way the allocation of the vacation pay or dismissal pay to particular weeks after discharge. Such allocation has meaning in this case only because the Unemployment Compensation Act treats those payments as wages and the allocation of them to certain weeks affects eligibility for benefits in those weeks.

Sec. 108.05 (4) (b), Stats. 1961, provided :

“An employe’s vacation pay shall, for benefit purposes, be treated as wages for a given week only if it has by the close of that week become definitely allocated and payable to the employe for that week and he has had due notice of such allocation and only if such pay (until fully assigned) is allocated at not less than the employe’s approximate full weekly wage rate.”

Sec. 108.05 (5), Stats. 1961, made virtually identical provisions with respect to allocation of “dismissal or termination pay.”

It may well be, as the employer argues, that under this collective-bargaining agreement the pay (labeled “vacation pay”) which represented accrued but unenjoyed vacation credits and which became due upon discharge, was not “vacation pay” within the meaning of sec. 108.05 (4) (b), Stats., but was, for the purpose of the Unemployment Compensation Act, a form of termination pay under sec. 108.05 (5). But whether this be true or not, we can discern no express direction nor other reason requiring that allocation or notice of allocation of the “vacation pay” in these circumstances be separate from allocation and notice of allocation of termination pay.

Decisions of this court which hold that when an employee is laid off and the employer desires to treat a week of layoff as a week of vacation, he must fulfill any contractual provisions which give the employee a right to a particular time for vacation have no application to the allocation in this case.

Plaintiffs also argue that the collective-bargaining agreement implies that the two weeks’ pay in lieu of notice was applicable to the two weeks during which the employer could have required plaintiffs to work after giving notice. They also argue that the collective-bargaining agreement implies that the dismissal pay must relate to the weeks immediately following discharge and therefore that double wages must be allocated to the first two weeks following discharge without notice. Assuming that this agreement implies anything with respect to allocation, it would appear equally logical that the pay in lieu of notice be applied to the first two weeks after discharge and that the dismissal pay be applied to the succeeding weeks. Here the employer attempted to allocate the aggregate amount due upon discharge (including all three types) to an unbroken series of weeks following the discharge. We see no reason under either the contract or the statute why the attempted allocation was improper. As decided by the commission it failed with respect to weeks prior to No. 34 only because the notice required by the statute was not given until that week.

We need not consider, in this case, whether the employer could properly have made any allocation different from the one which it attempted.

By the Court. — Judgment affirmed.

Wilkie, J., took no part.

       Ch. 145, Laws of 1963, amended both provisions and they are now identical in all matters of substance.

        Darling v. Industrial Comm. (1958), 4 Wis. (2d) 345, 90 N. W. (2d) 597; Danielson v. Industrial Comm. (1958), 4 Wis. (2d) 367, 90 N. W. (2d) 608; Cutler-Hammer, Inc., v. Industrial Comm. (1961), 13 Wis. (2d) 618, 109 N. W. (2d) 468; Oglebay Norton Co. v. Industrial Comm. (1962), 15 Wis. (2d) 396, 113 N. W. (2d) 35.

       Plaintiffs cite Kalen v. Director of Division of Employment Security (1956), 334 Mass. 503, 136 N. E. (2d) 257, 258.

       Plaintiffs cite Globe-Democrat Publishing Co. v. Industrial Comm. (Mo. 1957), 301 S. W. (2d) 846, 852.


author: Hallows, J. Gordon, J.

text:
    State ex rel. American Oil Company and others, Respondents, v. Bessent, Building Inspector, Appellant.

      April 26

    June 1, 1965.

      For the appellant there were briefs by H. J. Sanville, attorney, and Quarles, Herriott & Clemons and L. C. Hammond, Jr., of counsel, all of Milwaukee, and oral argument by Mr. Hammond.

    For the respondents there was a brief by Hippenmeyer & Reilly of Waukesha, and oral argument by William F. Reilly.

   Hallows, J.

The village of Elm Grove is in the eastern part of Waukesha county, lying west of the cities of Wauwa-tosa and Milwaukee and may generally be considered as a part of the Milwaukee metropolitan area. Since at least 1956 it has had a comprehensive zoning ordinance applicable to the entire village and dividing it into 10 districts for land use. The ordinance was enacted pursuant to sec. 62.23 ( 7) of the statutes which is applicable to villages by virtue of sec. 61.35.

Pursuant to this grant of police power, a municipality for the purpose of promoting health, safety, morals, or the general welfare of the community may regulate and restrict buildings in height and size, the percentage of lot which they may occupy, the size of yards, open spaces, density of population, and the location and use of buildings and land for trade, industry, residences, or other purposes. Such an ordinance is to be liberally construed in favor of the municipality by the express provisions of the section. This statute further provides a municipality may be divided into districts of such number, shape, and area as may be deemed best suited to carry out the purposes of zoning. Uniform regulations throughout each district may be provided in the comprehensive plan designed “to lessen congestion in the streets; to secure safety from fire, panic, and other dangers; to promote health and general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sewerage, schools, parks, and other public requirements. Such regulations shall be made with reasonable consideration, among other things, of the character of the district and its peculiar suitability for particular uses, with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such city.” Sec. 62.23 (7) (c), Stats.

The comprehensive zoning ordinance of Elm Grove provided for four classes of residential districts, a multiple-dwelling district, a general local-business district, a limited local-business district, a commercial and light-manufacturing district, a public building and institution district, and a conservancy district. The greater part of Elm Grove has been placed in the most restricted residential district. The general local-business district consists of about three blocks on both sides of Watertown Plank road which runs principally in an easterly and westerly direction in the village. Elm Grove road runs generally north and south and forms the west boundary line of the general local-business district and a T intersection with Watertown Plank road from the south. Some 200 feet west of this intersection Elm Grove road continues to the north. The southwest corner of the intersection of Watertown Plank and Elm Grove roads is zoned as a limited local-business district for a distance of 400 feet on Elm Grove road and 200 feet on Watertown Plank road. This area serves as a buffer district between the general local-business district to the east and north and the most highly restricted residential district to the west. The respondents’ property is located at this southwest corner and has been occupied for many years by a blacksmith and metal shop, a nonconforming use under the ordinance. On the southeast corner of the intersection in the general local-business district, there is a gasoline filling station and to the south thereof a farm-machinery and implement-sales and repair building. On the north side of Watertown Plank road across from the respondents’ property is a parking lot for a supermarket and a barbershop located to the east.

The material part of Section 8 of the ordinance (Limited Local-Business District) provides: “(a) Use Regulations. In the Limited Local Business District, no building or land shall be used, and no building shall hereafter be erected or altered except for one or more of the following uses: 1. Any of the following retail and customer service establishments, only after their location and plan of operation have been submitted to and approved by the Planning Commission: (a) Art Shop, (b) Barber Shop, (c) Beauty Parlor, (d) Bank or Savings and Loan Office, (e) Book or Stationery Store, (f) Clinic, (h) Delicatessen, (i) Florist Shop, (k) Interior Decorator, (1) Jewelry Store, (m) Music and Radio Store, (n) News Stand, (o) Parking area to serve Limited Local Business District, (p) Pharmacy, (q) Photographer, (r) Professional Office or Studio, (s) Radio and Television Service and Repair Shop, (t) Real Estate Office, (u) Shoe Store, except repair shops, (v) Tailor or Dressmaking Shop, (w) Utility Company Office, and (x) Any similar use, subject to the approval of the Planning Commission. 2. No retail business shall be permitted to locate which requires more than ten (10) employees for its operation.”

Section 9 (General Local-Business District) allows all the uses permitted in section 8 and then provides: “2. The following businesses or trades of a more general nature, serving a larger trade area, but only after their location and plan of operation have been submitted to and approved by the Planning Commission: (a) Appliance Store, (b) Automobile sales rooms for new or used cars, repair shops and storage garages, and used car lots adjacent to and when m conj'unction with automobile sales rooms, (c) Bakery, (d) Clothing or Dry Goods Store, (e) Drug Store, (f) Furniture Store, '(g) Fruit and Vegetable Market, (h) Grocery and other products Store, (i) Hardware Store, (j) Ice Cream Store, (k) Meat and Fish Market, (1) Parking Area to serve General Business District, (m) Restaurant, (n) Soda Fountain, (o) Tavern, (p) Telegraph and Telephone office and Telephone Exchange, (q) Theaters, (r) Delicatessen, (s) Notion or Variety Shop, (t) Shoe Repair Shop, (u) Any similar use subject to the approval of the Planning Commission.” There is no restriction in Section 9 on the number of employees who may be employed by a business located in the district.

Prior to bringing this suit the respondents unsuccessfully attempted to have their property rezoned from limited to general local business. They were also unsuccessful in securing a building permit for a gasoline station. Gasoline filling stations are not expressly enumerated as a permitted business in either business district but they have been determined to belong in a general local-business district by the planning commission as being a use similar to that classification. No appeal has been taken from the denial of the permit or such determination; the attack here is on the constitutional ground no valid distinction exists between the general local-business and limited local-business classifications.

In their argument the respondents rely primarily on State ex rel. Ford Hopkins Co. v. Mayor (1937), 226 Wis. 215, 276 N. W. 311, which involved an ordinance regulating the operation of a single business (restaurants), not a comprehensive zoning ordinance. In the course of that opinion this court laid down the principle that classifications of persons or businesses to be regulated must be reasonable and substantial and formulated five tests which had to be met for the valid exercise of the police power in such cases. The first test, which is applicable here, is whether the two business classifications in the ordinance are based upon a substantial distinction which makes them really different from one another. No question is raised that the classifications are not germane to the purpose of the ordinance or that the classifications are based upon existing circumstances only.

Classifications in a comprehensive zoning ordinance are viewed somewhat differently than an ordinance dealing solely with the regulation of a single business because of the necessity of considering the classifications in relation to the basic purposes and characteristics of the comprehensive zoning plan and the establishment of a proper relationship between districts in order to secure the benefits of community planning. As early in the history of zoning as State ex rel. Carter v. Harper (1923), 182 Wis. 148, 196 N. W. 451, this court considered a comprehensive zoning ordinance as justified in the exercise of the police power not only in the interest of public health, morals, and safety, but particularly for the promotion of public welfare, convenience, and general prosperity. General welfare was equated with the stabilization of the value of property and the promotion of the permanency of desirable home surroundings and of the happiness and comfort of the citizens. The court extolled the virtues and the community benefits of a planned development of a municipality as opposed to unplanned growth, concluding, “The one compares to the other about as a well-ordered department store compares to a junk-shop.” This opinion was favorably characterized as expressing “the broader view” of constitutionality in the first decision upholding a comprehensive ordinance by the United States supreme court. Euclid v. Ambler Co. (1926), 272 U. S. 365, 47 Sup. Ct. 114, 71 L. Ed. 303.

Because of the impossibility the law does not require in a comprehensive zoning plan that each district be drawn with scientific or mathematical accuracy, see Schmidt v. Board of Adjustment of Newark (1952), 9 N. J. 405, 88 Atl. (2d) 607, provisions are generally made for variances and hardship cases. Each district’s boundaries need not be independently and solely justified directly in relationship to the exercise of the police power. A comprehensive zoning plan as distinguished from the regulation of a single business or a single type of business more substantially rests upon the interdependency of adjoining parcels of land in a community and the appreciation that the value and usefulness of each parcel to the owner and to the community are affected by the use made of the adjoining parcel. A comprehensive zoning plan is a means by which the character of the community is to be preserved although devoting the land to its most-appropriate uses.

The early concept that the exclusion of a business from an area needed a basis akin to a nuisance has been abandoned, State ex rel. Algoma v. Peterson (1942), 239 Wis. 599, 2 N. W. (2d) 253, nor is the police power in respect to comprehensive zoning to be exercised only in cases of absolute necessity. The concept of public welfare is broad and inclusive and embraces in comprehensive zoning the orderliness of community growth, land value, and aesthetic objectives. State ex rel. Saveland Park Holding Corp. v. Wieland (1955), 269 Wis. 262, 69 N. W. (2d) 217; Berman v. Parker (1954), 348 U. S. 26, 75 Sup. Ct. 98, 99 L. Ed. 27; State ex rel. Miller v. Manders (1957), 2 Wis. (2d) 365, 86 N. W. (2d) 469.

However, unreasonable classifications in zoning ordinances, whether comprehensive or not, and restrictions which are not reasonably germane to legitimate objectives or which prohibit a particular use of land ignoring its natural characteristics for such use or which are arbitrary have been held to be unconstitutional on the facts presented. Hobart v. Collier (1958), 3 Wis. (2d) 182, 87 N. W. (2d) 868; Geisenfeld v. Shorewood (1939), 232 Wis. 410, 287 N. W. 683; Rowland v. Racine (1937), 223 Wis. 488, 271 N. W. 36. A restriction or use may be unreasonable because it must be said the private owner ought not bear so great a burden or such burden is not commensurate with the benefit to the public; Caledonia v. Racine Limestone Co. (1954), 266 Wis. 475, 63 N. W. (2d) 697. Although zoning is a matter within legislative discretion, when the exercise of that power exceeds the bounds of discretion or an ordinance is arbitrarily administered, the court will grant relief. State ex rel. O’Neil v. Hallie (1963), 19 Wis. (2d) 558, 120 N. W. (2d) 641.

We must start with the premise that a comprehensive zoning ordinance enacted pursuant to sec. 62.23, Stats., is presumed to be valid and such ordinance must be liberally construed in favor of a municipality. Consequently, an alleged invalidity of the ordinance must be clearly shown by the party attacking it. State ex rel. Humble Oil & Refining Co. v. Wahner (1964), 25 Wis. (2d) 1, 130 N. W. (2d) 304; Smith v. Brookfield (1956), 272 Wis. 1, 74 N. W. (2d) 770; Geisenfeld v. Shorewood, supra. It follows as a corollary to the presumption of validity and from the fact that the shaping of zoning districts for land use is primarily a legislative function that when the validity of the ordinance in this respect is fairly debatable it should be upheld and the court should not substitute its judgment for that of the municipality. State ex rel. Normal Hall, Inc., v. Gurda (1940), 234 Wis. 290, 291 N. W. 350; Downing v. Joplin (Mo. 1958), 312 S. W. (2d) 81; 8 McQuillin, Mun. Corp. (3d ed., 1957 rev.), pp. 200, 201, sec. 25.87.

But, the respondents claim a gasoline filling station is no different than the other uses in the limited business district. By stipulation they point out it has been agreed for the purpose of this case that a filling station is no greater fire hazard than other businesses in the limited local-business district; that such stations have a low fire insurance rate; that the lighting of the proposed station would not interfere with the use of adjacent property, pedestrians, or traffic; that the accident rate of car and pedestrian traffic arising from the ingress and egress to and from a gasoline station is no greater than the other businesses enumerated and that such station would not generate more traffic or more dust than other uses. While these facts may have a relevant bearing on public safety and health, they do not exclude the objectives of general welfare and other considerations justifying the creation of the limited local-business district or equate a gasoline station with the other uses. The testimony on property values goes no further than to indicate a filling station would not adversely affect property values compared with the present nonconforming use.

It is argued that there is no substantial distinction between general and limited business districts. We do not agree. So far as this issue is concerned the respondents have the burden of showing the village acted arbitrarily and unreasonably in eliminating gasoline filling stations from the limited local-business district. We find nothing in common or harmonious between a gasoline service station and an art shop, gift shop, interior decorator, shoe store, tailor or dressmaking shop, barbershop, beauty parlor, floral shop, or the other enumerated permitted uses. The method of operation is entirely different. The enumerated uses are, at least in a village, small shops for a limited trade area. Their presence next to residential districts is generally not objected to when confined to a small area. In this case instead of such uses being used as a neighborhood district, it is used as a buffer between the central general business district and the AA residential district. No place in this comprehensive zoning plan does general local business exist side by side with the three highest restricted residential districts. All these areas have buffer districts of local business in the least restricted residences.

Boundaries of districts must be drawn somewhere if there are to be districts. Lewis v. District of Columbia (D. C. Cir. 1951), 190 Fed. (2d) 25. Frequently, the most natural boundary between zoning districts are streets. La Salle National Bank v. Chicago (1955), 6 Ill. (2d) 22, 126 N. E. (2d) 643. The respondents claim it is unreasonable to have a limited business district on the west side of Elm Grove and general local business on the east side. However, it has been held that the zoning of one side of a street for purposes not permitted on the other side is not invalid per se. Scarborough Apartments, Inc., v. Englewood (1952), 9 N. J. 182, 87 Atl. (2d) 537. In the instant case the more-limited zoning on the west side of Elm Grove is justified in order to create a buffer zone between the highly restricted residential area west of Elm Grove road and the general business district. See: Oliva v. Garfield (1948), 1 N. J. 184, 62 Atl. (2d) 673.

While the testimony is not very definite on the distinctions of the various businesses allowed in the two zones, some general characteristics such as the operating characteristics or general mode of conducting business, the physical characteristics and the type and design of building used to conduct such businesses, and the size of the trade area from which customers are attracted was generally established. The most that can be said of respondents’ proof to the contrary is that the zoning classification for limited local business excluding gasoline stations was a matter of debatable legislative judgment. Their proof is not convincing that such classification is arbitrary or unreasonable in respect to the respondents’ proposed use of this property and, therefore, we cannot find the zoning ordinance unconstitutional on that ground. Euclid v. Ambler Co., supra; Mehlos v. Milwaukee (1914), 156 Wis. 591, 146 N. W. 882.

It is claimed the ordinance denies the equal protection of the laws because under the clause, “Any similar use subject to the approval of the Planning Commission” which appears in both sections 8 and 9, discretion is given to deny a permit after finding a use similar. We do not so read this language. A zoning ordinance, as other legislative enactments, must be construed as constitutional if the language thereof can be reasonably construed to sustain it. Building Height Cases (1923), 181 Wis. 519, 195 N. W. 544. We do not find the intent of the ordinance by the use of the word “approval” was to give unbridled legal discretion or any discretion to the planning commission not to allow a similar use. Because of the relationship of this language to the other parts of the ordinance it must be construed to mean that the planning commission is to determine what is a similar use. In practice the applicant, as here, decides his proposed use is a “similar use” and seeks a permit. “Approved by the Planning Commission” means as Webster’s New International Dictionary (3d ed., unabridged) states, “to judge and find commendable or acceptable,” — acceptable because of similarity. This clause gives the planning commission only the power to determine the issue of the similarity of the proposed use, not the discretion to keep out a similar use. If, in determining the issue of the similarity of the proposed use to the other uses in a district, the planning commission should act arbitrarily or be in error, the applicant has recourse to the courts for a review of that determination.

Finally, the respondents contend the ordinance is invalid because it delegates to the planning commission legislative power without adequate guides or standards governing its exercise. Both sections 8 and 9 require the “location and plan of operation” of the use of the land to be “submitted to and approved by the Planning Commission” before a permit is issued. We consider this issue to be controlled by Smith v. Brookfield, supra. In that case a comprehensive zoning ordinance almost in identical form with the instant case required the same approval of “location and plan of operation.” The plan and location of a gravel pit were involved. The delegation of the power to the planning commission was upheld and the court pointed out that the ordinance was a comprehensive zoning plan which declared the various purposes for which it was enacted and the planning commission could be expected to apply in each case the particular object or objective applicable thereto. The purposes and objectives expressed in the ordinance, and in the statute applicable thereto, are sufficient standards for the exercise of the power.

The instant case is not ruled by State ex rel. Humble Oil & Refining Co. v. Wahner, supra, and Juneau v. Badger Co-operative Oil Co. (1938), 227 Wis. 620, 279 N. W. 666, in which zoning ordinances were held unconstitutional. In the Wahner Case the zoning board of appeals was given no standards other than the general public objectives to determine when it was to grant a permit for a filling station in a commercial district. In the Juneau Case an ordinance forbade the construction of a gasoline station within the city without procuring the consent of the common council. The ordinance contained no standards and by its terms could apply to some but not all enterprises in such a way that its application was inconsistent. In the instant case we are dealing with the regulation of permitted uses in the light of the zoning objectives. The “location and plan of operation” is not to determine the classification of the use itself. When more than the general objectives have been provided as standards to a licensing agency, such standards have been generally upheld to guide the exercise of a legislative function. The character of the applicant, the proposed location of the business, and the type of articles or merchandise to be handled by a junk shop were held sufficient standards in Lerner v. Delavan (1930), 203 Wis. 32, 233 N. W. 608, and the single factor of traffic conditions in a designated area constituted a sufficient standard to make an exception to the prohibition of constructing a gasoline filling station within a certain distance of an intersection in Wadhams Oil Co. v. Delavan (1932), 208 Wis. 578, 243 N. W. 224.

The “location and plan of operation” contrary to the arguments of the respondents does not permit the planning commission to dictate in minute detail or to control the operation of the business of an applicant. The zoning ordinance does not go that far, nor do its purposes and objectives permit such detailed control. The purpose of submitting the location and plan of operation is to furnish sufficient data to the planning commission for its determination that the proposed building or land use by the applicant does not defeat the purposes and the objectives of the zoning plan by a permitted use.

By the Court. — Judgment reversed.

Gordon, J.

(dissenting). I do not believe that the classifications in sections 8 and 9 of the ordinance of the village of Elm Grove are based upon substantial differences. In State ex rel. Ford Hopkins Co. v. Mayor (1937), 226 Wis. 215, 222, 276 N. W. 311, this court asserted the following rule as to classifications in the exercise of police power:

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

The ordinance in question purports to zone land use in an arbitrary manner; it denies equal protection of the laws, and the trial court was correct in striking it down as unconstitutional. State ex rel. O’Neil v. Hallie (1963), 19 Wis. (2d) 558, 567, 120 N. W. (2d) 641; Geisenfeld v. Shorewood (1939), 232 Wis. 410, 287 N. W. 683.

I am authorized to state that Mr. Justice Wilkie joins in this dissent.


author: Heffernan, J.

text:
    Cmelak, Respondent, v. Industrial Commission and others, Appellants.

      April 27

    June 1, 1965.

      For the appellant Industrial Commission the cause was argued by Gordon Samuelsen, assistant attorney general, with whom on the brief was Bronson C. La Follette, attorney general.
    For the appellants Curtis Development Company and Liberty Mutual Insurance Company there was a brief by Wickham, Borgelt, Skogstad & Powell, attorneys, and Clayton R. Hahn of counsel, all of Milwaukee, and oral argument by Mr. Hahn.

    For the respondent there was a brief and oral argument by Ralph I. Podell of Milwaukee.
   Heffernan, J.

The questions on this appeal arise out of the statutory requirements that must be fulfilled to establish eligibility for workmen’s compensation. In this case we are particularly concerned with the requirements that the employee at the time of the accident “is performing service growing out of and incidental to his employment” and that the “accident . . . arises out of his employment.”

The first requisite, that the employee must be performing service growing out of and incidental to his employment, by statutory definition includes every employee “going to and from his employment in the ordinary and usual way, while on the premises of his employer.” Since a company-owned parking lot has been held to be part of the premises (American Motors Corp. v. Industrial Comm. (1962), 18 Wis. (2d) 246, 118 N. W. (2d) 181), the issue is whether Mrs. Cmelak was going to work “in the ordinary and usual way.” The hearing officer concluded that the “applicant was not going to or coming from work in the usual and customary manner [sic].” The commission affirmed this finding.

“Going to and from his employment in the ordinary and usual way” has been held to exclude an employee who caught a ride on the railroad cars that were leaving his place of employment when his usual and ordinary way was to walk home. In the instant fact situation, however, Mrs. Cmelak drove her car to work. This was her ordinary and usual way of going to her employment. The test, according to the statute, is not whether the accident and injury were ordinary and usual. The trial court adopted the following interpretation, in which we concur, of the statutory terms:

“The words ‘in the ordinary and usual way’ clearly refer to the mode and route of the transportation or ambulation,"

The second essential element necessary for recovery under the Workmen’s Compensation Act is that the accident causing injury must arise out of the employment. See sec. 102.03 (1) (e), Stats. This phrase does not mean that the employment must be the moving force which produces the accident, although this court has stated that this portion of the statute has something to do with a causal connection between the injury and the employment.

The Cutler-Hammer Case has made it clear, however, that the employment does not have to proximately cause the accident or injury, but it is required that the obligation or circumstances of employment have placed the worker at the particular place where the injury occurs. It is also required that the force be one not personal to the employee. This does not mean that no action or effort of the employee may not have concurred in or have caused the injury, rather it means that the occurrence cannot be of a solely idiopathic nature. For example, in Cutler-Hammer, liability was found when the employee fell on a stairway and was injured. The court there followed the findings of the examiner that a preexisting knee injury had not caused the leg to give out and the fall. Here there is no evidence of any idiopathic defect. It is' perfectly clear that the injury was sustained as the result of the coworkers suddenly releasing the car and allowing the weight to be borne by Mrs. Cmelak alone.

We have no difficulty in holding that this accident arose out of the employment since Mrs. Cmelak was in the parking lot as a circumstance of her employment, when she was injured through the agency of a third person (though she may have been negligent or participated in the conduct leading to the injury).

In the Cutler-Hammer Case this court concluded that the claimant was eligible under the “positional-risk” doctrine, when he fell on a stairway that he used to punch the time clock at the end of the day’s work. Here the claimant was in the same situation by virtue of the fact that her employment occasioned her being in the parking lot at the time the injury occurred.

Both the appellants maintain that the commission made a finding of fact and that the reviewing courts are bound by this finding if there is any credible evidence to support the finding. The commission also urges that the court invoke the rule that the findings of the commission are conclusive where it is possible to draw different inferences from undisputed facts.

With these well-accepted rules we have no quarrel, but they are not applicable here. It is equally axiomatic that when but one inference can be drawn from a set of facts that the conclusion is one of law and not of fact. Horvath v. Industrial Comm. (1965), 26 Wis. (2d) 253, 131 N. W. (2d) 876. Here it is undisputed that the claimant was going to work by precisely the same mode of transportation, following the same route, and arriving at the same destination as she had done during the whole course of her employment. We can only conclude as a matter of law that she was “going to her employment in the ordinary and usual way.”

We conclude that the commission applied erroneous law to these undisputed facts. Under these circumstances the courts are not bound by a conclusion of the Industrial Commission.

The commission on the undisputed facts concluded, “It is recognized and established that negligence is not a bar to recovery, but claimant herein created the hazard which caused her injury.” It was on this principle of law that the commission concluded that the accident did not arise out of the employment.

In a well-reasoned opinion the learned trial judge correctly stated that this expressed an improper application of law to the undisputed facts. As we have stated above, the fact that the claimant participated in the conduct that caused the injury does not render her ineligible for compensation, if she in other respects meets the statutory qualifications. We conclude that she has done so and affirm the judgment of the trial court.

By the Court. — Judgment affirmed.

       Sec. 102.03, Stats. “Conditions of liability. (1) Liability-under this chapter shall exist against an employer only where the following conditions concur: . . .
      “(c) 1. Where, at the time of the injury, the employe is performing service growing out of and incidental to his employment. Every employe going to and from his employment in the ordinary and usual way, while on the premises of his employer, . . . shall be deemed to be performing service growing out of and incidental to his employment; . . .
      “(e) Where the accident or disease causing injury arises out of his employment.”

        Foster-Latimer Lumber Co. v. Industrial Comm. (1918), 167 Wis. 337, 167 N. W. 453.

       See Cutler-Hammer, Inc., v. Industrial Comm. (1958), 5 Wis. (2d) 247, 252, 92 N. W. (2d) 824. Cf. 1 Larson, Law of Workmen’s Compensation, p. 42, sec. 6.10, in which he differentiates between these by stating- that “arising out of” refers to causal origin, and “course of employment” relates to the time, place, and circumstances of the accident in relation to the employment.

       Compare Larson, ibid. p. 48, sec. 7.00.


author: Wilkie, J. Beilfuss, J.

text:
    Strandberg, Plaintiff, v. Strandberg, Defendant. [Two appeals. Cases Nos. 259 and 319.]

      April 27

    June 1, 1965.

      For the plaintiff there were briefs by Ray T. McCann, attorney, and Leonard L. Loeb of counsel, both of Milwaukee, and oral argument by Mr. Loeb.

    For the defendant the cause was submitted on the brief of Eberlein & Eberlein of Shawano.
   Wilkie, J.

The court had jurisdiction of the divorce action only if Mrs. Strandberg was a bona fide resident of Milwaukee county for thirty days prior to the commencement of the suit pursuant to sec. 247.05 (3), Stats.

The first issue presented on this appeal is whether the order dismissing the complaint is void because of the procedure employed under which the family court commissioner took testimony and made findings on the jurisdiction issue with the formal decision and order of dismissal being made by the trial court without taking additional testimony.

Plaintiff contends that the procedure amounted to a reference wrongfully made under sec. 270.34 (1), Stats., since that section permits reference on any issue with the written consent of the parties “[e]xcept in actions for divorce or annulment of marriages.”

We do not believe that there was a reference as contemplated by that statute since the commissioner was merely called upon to take testimony, and the formal findings and decision were to be made by the court. It was expressly stated by the commissioner that he would make recommendations, that he would forward these together with a full transcript of the proceedings to the court, that additional evidence could be presented to the court and that arguments could be made to the court.

A summary examination of the detailed provisions of secs. 270.34 and 270.35, Stats., reveals that a much more formal and detached procedure is contemplated where a “referee” exercises his power under a formal reference. Formal findings by the “referee” are called for and the process prescribed for reviewing the referee’s report is much more formal than the procedure employed here. The fact that the commissioner here made recommendations or findings makes of the procedure something more than the mere taking of testimony. But the procedure was not thereby transformed into a “reference"’ which would have been in violation of sec. 270.34 (1).

The family court commissioner is given express authority to make temporary orders concerning “the care, custody and suitable maintenance of the minor children, requiring the husband to pay such sums for the support of the wife and the minor children in her custody and enabling her to carry on or defend the action, and in relation to the persons or property of the parties as in its discretion shall be deemed just and reasonable and may prohibit either spouse from imposing any restraint on the personal liberty of the other.” Beyond that a family court commissioner has all the powers of a court commissioner. Court commissioners may take “depositions and testimony when authorized by law or rule or order of any court within its jurisdiction . ...”

Here, the commissioner was taking testimony on order of the trial court on a precise issue that was within the court’s jurisdiction.

We believe that it is highly important that it was expressly understood that after the commissioner took testimony and made his report, either party could, if he or she so desired, put in more evidence before the court. Neither party asked the trial court for such an opportunity either before the court took the matter under advisement on May 21st or, in fact, at any time before the court’s decision on July 29th. After that decision, Mrs. Strandberg’s substituted counsel petitioned for an opportunity to present further evidence. The trial court denied that request and there is no appeal from that order.

We conclude that there was nothing invalid about the procedure used here, and that there was no abuse of discretion on the part of the trial court in ordering the taking of testimony in this way or in the process used in entering its decision and order.

This construction of the procedure employed in the instant case is consistent with the mandate of sec. 247.12, Stats., that in marital actions all hearings and trials “to determine whether judgment shall be granted shall be before the court,” and also with the requirement of sec. 262.16 (3), that jurisdictional matters be tried to the court.

Although there is understandable pressure, in view of crowded court calendars, to make increased use of the family-court commissioner to take testimony on issues in a divorce action with the final decision thereon to be made by the trial court, such practice should be sparingly used and avoided where it is apparent that the resolution of an issue may be substantially influenced by the credibility of witnesses (not the situation here since the findings in this case are not substantially predicated on accepting the credibility of one witness as against another), or where the result of taking testimony in this manner would be to undermine the position of the family court commissioner as investigator and conciliator.

We now turn to the second issue presented on this appeal, namely, whether the trial court erred in finding that Mrs. Strandberg was not a resident of Milwaukee county for at least thirty days before commencing her divorce action.

Mr. and Mrs. Strandberg made their home in Antigo. Mrs. Strandberg had visited her daughter in Milwaukee five or six times between July and December of 1963, and stayed two weeks on at least one occasion. She took a train to Milwaukee on December 22d, taking with her a suitcase and a cosmetic bag. She told Mr. Strandberg that he could come along, but that he would have to stay at a motel. He remained in Antigo. Mr. Strandberg spoke with her on New Year’s Day and said that he was coming to Milwaukee. Mrs. Strandberg told him not to come as she would be returning to Antigo that weekend. On January 4th Mrs. Strandberg’s daughter and son-in-law drove her to Antigo. When she arrived she either made out a grocery-list for Strandberg, or instructed him to purchase groceries. The daughter and son-in-law returned to Milwaukee January 5th, but before they left, Strandberg and his wife quarreled. The daughter admonished them that if they could not get along, they should separate. On Monday, January 6th, Mrs. Strandberg went to the dentist. On Tuesday or Wednesday she took down the Christmas tree. According to her testimony she washed and ironed, cleaned the house, and defrosted the refrigerator during the week. Strandberg denied that any of this was, in fact, ever done. Mrs. Strandberg claimed that once her daughter left, she no longer cooked for her husband. Strandberg testified that the only time she refused to feed him was after a dispute over money on Friday, January 10th. The evidence is uncontradicted that on that day Mrs. Strandberg told Strandberg that unless he deposited $100 in her account, she would no longer cook for him. On Saturday, Mrs. Strandberg went bowling with a friend, returned home, locked Strandberg out of the house, packed some clothing, and left in her own car for Milwaukee. She said something to the effect that she was leaving and would not be back for a long time. She has not returned to Antigo, although she left a considerable amount of clothing and personal items there.

In order to create a new residence, Mrs. Strandberg must have physically abandoned her Antigo home and moved to Milwaukee county with the specific intention of making her residence there. Mrs. Strandberg argues that she established residence in Milwaukee county on December 22, 1963, and that when she returned to Antigo for a week beginning January 4th, she did so merely to put her affairs in order. Strandberg, on the other hand, maintains that January 11th was the earliest date she could have become a resident of Milwaukee county.

The trial court’s decision that Mrs. Strandberg had not resided in Milwaukee for thirty days prior to the commencement of the action is not against the great weight and clear preponderance of the evidence. The frequency of Mrs. Strandberg’s previous visits, her journey by train with a minimal amount of luggage, the direction to Strandberg that he could come if he stayed in a motel, and the failure of Mrs. Strandberg to give any express or implicit indication of an intention to remain permanently, all point to the conclusion that the December 22d trip to Milwaukee was just another visit. Mrs. Strandberg’s leaving after a domestic quarrel over money, her comments to the effect that Strandberg would not see her again, the taking of her automobile, and her failure to return since that date all tend to suggest that January 11th was the first time she left Antigo for good. Mrs. Strandberg’s claim that she returned to Antigo on January 4th merely to put the house in order was weakened by Strandberg’s testimony that no tidying up was actually done. Even assuming that the tasks were performed, the trial court could reasonably believe that in leaving only after a spat over finances, that in taking eight days to clean the house, wash and iron, defrost the refrigerator, and dismantle a Christmas tree, and in finding time to bowl with a friend, Mrs. Strandberg’s conduct was inconsistent with her purported reason for returning to Antigo.

The third issue on this appeal concerns the payments granted Mrs. Strandberg by the trial court after dismissing the action. The trial court ordered Strandberg to continue to pay her alimony during the appeal and to pay her $250 toward attorneys’ fees plus the cost of the transcript. Such order was proper pursuant to sec. 247.39, Stats., which provides:

“Alimony oe other allowance pending appeal. Alimony or other allowance for the wife or children when an appeal of a divorce or legal separation action is pending before the supreme court may be allowed under Supreme Court Rule 251.72.”

The dismissal of Mrs. Strandberg’s action is now affirmed on appeal. She was entitled to relief provided in the order of December 18, 1964, the terms of which shall be effective until remittitur in Cases No. 259 and No. 319. Thereupon, her action shall be dismissed and Mrs. Strandberg’s claim for further temporary alimony, or for any other relief pending the outcome of the divorce litigation, will then become a proper matter to be considered by the circuit court for Langlade county where Mr. Strandberg’s divorce action has been commenced and is pending.

By the Court.- — -Order of August 21, 1964, affirmed. Order of December 18, 1964, affirmed. No costs to be taxed in either case.

Beilfuss, J.

(dissenting). I respectfully dissent insofar as the family court commissioner was permitted to take the testimony of the witness as to the question of jurisdiction. The question of jurisdiction is a crucial determination of one of the essential elements prerequisite to a valid judgment and is not at all akin to the preliminary and temporary problems that arise during the pendency of the action. As to these preliminary matters the family court commissioner does have authority to enter temporary orders.

I construe the majority opinion to hold that issues of a divorce or annulment action are not subject to reference, but that in this instance it was not reference but more of a direction for a deposition. “Depositions properly taken are admissible in divorce actions.” Block v. Block (1960), 9 Wis. (2d) 378, 381, 101 N. W. (2d) 101. The record before us is void of any showing of a statutory right to a deposition.

Actions for divorce and annulment of marriage are somewhat different than the ordinary case in that the public has an interest in them and divorce hearings are required to be public. Sec. 247.12, Stats., provides:

“Trial procedure. In actions affecting marriage, all hearings and trials to determine whether judgment shall be granted shall be before the court. . . .”

I would hold that the court must hold a public hearing to determine the question of jurisdiction and no authority exists to permit him to delegate others to conduct the hearing even for the limited purpose of just taking the testimony.

I am authorized to state that Mr. Justice Hallows joins in this dissent.

       “247.05 Jurisdiction in actions to determine questions of status. A court of this state having jurisdiction to hear actions affecting marriage may exercise jurisdiction ... to determine questions of status under any of the following circumstances: . . .
      “(3) Actions by or Against Residents for Divorce. Regardless of where the cause of action arose, an action for divorce by or against a person who has been a bona fide resident of this state for at least 2 years next preceding the commencement of the action shall be commenced in the county of this state in which at least one of the parties has been a bona fide resident for not less than 30 days next preceding the commencement of the action.” (Emphasis added.)

       “270.34 ... (1) Except in actions for divorce or annulment of marriages all or any of the issues in the action may be referred, upon the written consent of the parties. . . .”

       “270.34 Trial by referee. (1) Except in actions for divorce or annulment of marriages all or any of the issues in the action may be referred, upon the written consent of the parties. The court may upon application of either party or of its own motion, direct a reference of all or any of the issues in the following cases:
      “(a) When the trial of an issue of fact shall require the examination of a long account; in which case the referee may be directed to hear and decide the whole issue or to report upon any specific question of fact involved therein; or
      “(b) When the taking of an account shall be necessary for the information of the court before judgment or for carrying a judgment or order into effect.
      “(2) When a reference has been ordered, either party may deliver to the referee a certified copy of the order of reference, and the referee shall thereupon appoint a time and place for the trial, and give notice thereof to the parties; such time to be not less than ten nor more than thirty days after the delivery of the copy of such order, unless the proceeding before the referee be ex parte or some other time be appointed by written stipulation of the parties, with the assent of the referee, or unless the court shall otherwise order.
      “(3) All action upon a referee’s report shall be upon notice.”

       “270.35 Powers of referee. The trial by referee shall be conducted in the same manner as a trial by the court. They shall have the same power to grant adjournments and allow amendments to any pleadings as the court upon such trial, upon the same terms and with the like effect. They shall also have the same power to preserve order and punish all violations thereof upon such trial, and to compel the attendance of witnesses before them by attachment and to punish them as for a contempt for nonattendance or refusal to be sworn or testify, as is possessed by the court; and they shall give to the parties or their attorneys at least 8 days’ notice of the time and place of trial; they must state the facts found and conclusions of law separately and report their findings, together with all the evidence taken by them and all exceptions taken on the hearing, to the court; and the court may review such report and on motion enter judgment thereon or set aside, alter or modify the same and enter judgment upon the same so altered or modified, and may require the referees to amend their report when necessary. The judgment so entered by the court may be appealed from as in other cases, and the report of the referees shall be incorporated in the appeal record. When the reference is to report the facts the report shall have the effect of a special verdict.”

       Sec. 247.23 (1), Stats.

       Sec. 247.13 (2), Stats.

       Sec. 252.15 (1), Stats.

       “247.12 Trial procedure. In actions affecting marriage, all hearings and trials to determine whether judgment shall be granted shall be before the court except as otherwise required by s. 270.07 (1) . . . .” The exception required by sec. 270.07 (1) deals with issues of fact raised in divorces on the ground of adultery, and is not applicable here.

       “262.16 Raising objection to personal jurisdiction, general appearance. . . . (3) Jurisdiction Issues Tried to Court. All issues of fact and law raised by an objection specified in sub. (2) [the court’s jurisdiction] shall be tried to the court without a jury in advance of any issue going to the merits of the case. . . ,”

        Estate of Morey (1956), 272 Wis. 79, 74 N. W. (2d) 823; Will of Heymann (1926), 190 Wis. 97, 208 N. W. 913.

        Hope Acres, Inc., v. Harris, ante, p. 285, 134 N. W. (2d) 462; Klapps v. American Ins. Co. (1965), 26 Wis. (2d) 664, 133 N. W. (2d) 248.