Bonnett v. Vallier

Citation136 Wis. 193,116 N.W. 885
PartiesBONNETT v. VALLIER ET AL.
Decision Date05 June 1908
CourtUnited States State Supreme Court of Wisconsin
OPINION TEXT STARTS HERE
Syllabus by the Judge.

A person specially injuriously affected by enforcement of an unconstitutional law may in judicial proceedings challenge the validity thereof.

An action against state officials to enjoin them from enforcing an unconstitutional legislative enactment is not an action against the state. In such circumstances the law, so-called, affords such state officers no protection. They are judicially regarded as acting in their personal capacities only.

An unconstitutional legislative enactment, though law in form, is in fact not law at all. “It confers no rights; it imposes no duties; it affords no protection; * * * it is in legal contemplation as inoperative as though it had never been passed.”

A court, upon its jurisdiction being properly invoked for the purpose, is in duty bound to test a legislative enactment by all constitutional limitations bearing thereon and condemn it if it be found illegitimate and thus uphold the Constitution as superior to legislative will.

In testing a legislative enactment as regards its constitutionality, all reasonable doubts must be resolved in favor of legislative power.

Legislative authority in the field of police power, the same as in any other, is fenced about on all sides by constitutional limitations. It cannot properly extend beyond such reasonable interferences as tend to preserve and promote the enjoyment, generally, of those “unalienable rights” with which all men are endowed and to secure which “governments are instituted among men.” When it goes beyond that it enters the field of the destructive and so offends against some constitutional limitation.

What constitutes a proper subject for regulation under the police power is a judicial question. Matters of mere expediency in respect thereto are wholly for legislative cognizance. What is reasonable is primarily for legislative judgment, but in the ultimate it is a judicial question. There must be reasonable ground, having regard for the public welfare, for the interference, and the means adopted to accomplish the purpose in view must be reasonably necessary.

What is reasonable in any given case being a matter resting in human judgment and difficult of ascertainment, in all doubtful cases judicial authority must defer to legislative wisdom, but where the interference is plainly excessive the duty of the court to repel the encroachment is absolute.

What is reasonable is not necessarily what is best but what is fairly appropriate to the purpose, under all the circumstances. The scope of the term “reasonable” as regards any situation must be measured having regard to the fundamental principles of human liberty as understood at the time of the formation of the Constitution, adapting the same to modern conditions.

In determining what is reasonable the court must look to the language of the statute and the facts which appear because of judicial knowledge thereof or otherwise.

The regulation and maintenance of tenement, lodging and boarding houses is a proper subject for legislative regulation, but the degree of regulation permissible varies greatly according to circumstances.

A police regulation in the field mentioned in the last foregoing paragraph which is not excessive as to a large city might be held unreasonable if applied to the state at large.

Limitations in the field suggested impossible or impracticable to comply with, either because of absence of facilities necessary therefor or expense so great as to render the regulation prohibitive in many situations, are unreasonable.

A general police regulation down to minute particulars of the construction and maintenance of tenement houses rendering it impracticable to safely comply therewith in the absence of any official approval of plans and specifications in advance and containing no provision for such approval, is unreasonable.

Where the penal feature of a police regulation is so severe, having regard to the nature of the regulation, as to efficiently intimidate property owners from using their property at all for tenements or lodging house purposes and from resorting to the courts for redress or defense as to their honestly supposed rights, is highly unreasonable. It is a defiance of the equal protection of the laws rendering the act void irrespective of whether its provisions would otherwise be valid.

To penalize good faith resistance to the enforcement of a law by judicial interference is unreasonable and indefensible from any point of view. It denies the equal protection of the laws; it violates the constitutional guaranty to every person of a certain remedy in the law for all injuries to persons and property, and violates every principle of civil liberty.

A law regarding the construction of tenement houses requiring street courts to be six feet in width between the lot line and the opposite wall of the building under all conditions and in all localities to be at least six feet wide, is an unreasonable interference.

A police regulation making every habitation regardless of locality a boarding or lodging house in case the proprietor allows a person not a member of his family to have a sleeping room in the house, and regulates the maintenance of the house as regards light, location of beds, equipment with water-closets, etc., is an unreasonable interference.

There is a wide interval between the ideal and the practical, the latter standard should prevail as to legislative regulations as to the construction and maintenance of tenement, lodging and boarding houses. Common sense as to what is reasonable in such matters should prevail, not the extreme views of well-meaning persons, as to what is for the best.

Where parts of a law viewed by themselves are unconstitutional and other parts so viewed are not, the former may be condemned and the latter upheld if the two are separable, otherwise not. In case the act as a whole has one or more features pervading the entire act it must be regarded as an entirety and all be condemned as unconstitutional.

Appeal from Circuit Court, Milwaukee County; Lawrence W. Halsey, Judge.

Action by John Bonnett against Joseph E. Vallier, factory inspector, and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Action by a property owner specially affected by chapter 269, p. 910, Laws 1907, against public officers required by the terms of such chapter to enforce its provisions, to restrain them from doing so by interfering with the plaintiff in the construction of a building upon a lot owned by him in the city of Milwaukee.

The complaint sets forth facts sufficient to entitle plaintiff to the relief prayed for if the law referred to is unconstitutional. Among others these things are substantially stated: Plaintiff entered into a contract in writing with a construction company for the building of a four story flat building upon a lot owned by him in the city of Milwaukee, Wisconsin, having a frontage of fifty feet on one of the streets of said city and a depth of one hundred and fifty feet; the plans for the building were duly approved by the building inspector of said city before the contract was let and that they complied in all respects with chapter 269, p. 910, Laws 1907, except as to street courts. The plans call for a building 44 feet wide, except the rear portion for a length of 22 1/2 feet, which is 50 feet wide. For a distance of 72 feet from the street on each side of the building there is to be an open space known as a street court three feet wide, open from the ground to the sky, whilst the law aforesaid required said courts to be six feet wide. The courts as planned satisfy all reasonable necessities. To require them to be six feet wide would be unreasonable, would render his plans for the building useless, his lot unsuitable for such a building and irreparably damage him. Defendants unless enjoined by the court in case the construction company proceeds with the building as planned will cause plaintiff or his agents, or the officers, agents and employés of the company to be arrested, his permit to construct the building will be revokedand he will be prevented from going on with the work as planned. Said law is so unreasonable as to be unconstitutional and void. It applies to all towns, cities and villages of the state, whereas it is impracticable to comply with it in the absence of a sewer system and system of water supply. There are many such cities, villages and towns where it would be impossible to equip a building as required by the law. Plaintiff and all those who may act in his behalf in the construction of a building upon his lot as planned are menaced with arrest and prosecution under said law for each and every day they persist in the work. Plaintiff has no adequate remedy at law for the injuries to him threatened as aforesaid.

An interim injunction was granted restraining defendants from doing the things pending the action which the same was instituted to permanently restrain, a bond for $250, being given.

The defendants demurred to the complaint for insufficiency and the demurrer was overruled. Defendants appealed from the order generally. It covered the ruling as to the demurrer and the one regarding the temporary injunction.

The defendants entered a motion in this court to dismiss the action upon the ground of its being an action against the state and to dissolve the temporary injunction and for a temporary injunction restraining the plaintiff and all persons acting for him from proceeding with the construction of the building mentioned in the complaint pending the action.

F. L. Gilbert, Atty. Gen., A. C. Titus, First Asst. Atty. Gen., and Edward W. Frost, for appellant.

Rose, Witte & Rose, for respondent.

MARSHALL, J. (after stating the facts as above).

The complaint shows that respondent would be specially injuriously affected by enforcement of chapter 269, p. 910, Laws 1907. Therefo...

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