116 N.W. 885 (Wis. 1908), Bonnett v. Vallier

Citation116 N.W. 885, 136 Wis. 193
Opinion JudgeROUJET D. MARSHALL, J.
Party NameBONNETT, Respondent, v. VALLIER, Factory Inspector, and others, Appellants
AttorneyFor the appellants there was a brief by the Attorney General and A. C. Titus, first assistant attorney general, and oral argument by Mr. Titus. For the respondent there was a brief by Rose, Witte & Rose, and oral argument by D. S. Rose. A brief was also filed by Edward W. Frost on behalf of the C...
Case DateJune 05, 1908
CourtUnited States State Supreme Court of Wisconsin

Page 885

116 N.W. 885 (Wis. 1908)

136 Wis. 193

BONNETT, Respondent,

v.

VALLIER, Factory Inspector, and others, Appellants

Supreme Court of Wisconsin

June 5, 1908

Argued May 18, 1908.

Page 886

APPEAL from an order of the circuit court for Milwaukee county: LAWRENCE W. HALSEY, Circuit Judge. Affirmed.

Action by a property owner specially affected by ch. 269, Laws of 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 they complied in all respects with ch. 269, Laws of 1907, except as to street courts. The plans call for a building forty-four feet wide, except the rear portion for a length of twenty-two and one-half feet, which is fifty feet wide. For a distance of seventy-two 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 employees of the company to be arrested, his permit to construct the building will be revoked, and 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.

Order affirmed.

For the appellants there was a brief by the Attorney General and A. C. Titus, first assistant attorney general, and oral argument by Mr. Titus. They contended, inter alia: (1) The action seeks to enjoin the enforcement of the criminal laws of the state, and therefore cannot be maintained. It is a general rule that a court of equity will not lend its aid to prevent an illegal act nor to enjoin the enforcement of criminal laws. 1 High, Injunctions (4th ed.) §§ 20, 68; Tyler v. Hamersley, 44 Conn. 419; Holderstaffe v. Saunders, 6 Mod. 16; Tiede v. Schneidt, 99 Wis. 201, 214; Hemsley v. Myers, 45 F. 283; Gault v. Wallis, 53 Ga. 675; Yates v. Batavia, 79 Ill. 500; Creighton v. Dahner, 70 Miss. 602; Davis v. Society, etc. 16 Abb. Pr. N. S. 73; Kramer v. Board of Police, 21 Jones & Sp. (53 N.Y. Super.) 492; Balogh v. Lyman, 6 A.D. 271; Kenny v. Martin, 11 Misc. 651; M. Golden & Co. v. Guthrie, 3 Okl. 128, 41 P. 350; Burnett v. Craig, 30 Ala. 135; Poyer v. Desplaines, 123 Ill. 111; Skakel v. Roche, 27 Ill.App. 423. The only exceptions to this general rule are in certain cases where property rights are being destroyed or are threatened with destruction or with being taken away, as in the case of Schlitz B. Co. v. Superior, 117 Wis. 297; or where the plaintiff in the injunction action is being subjected to repeated or unreasonable prosecutions or actions, as in Wallack v. Society, etc. 67 N.Y. 23; Shunkle v. Covington, 83 Ky. 420; Milwaukee E. R. & L. Co. v. Bradley, 108 Wis. 467. Some cases hold that prosecutions for criminal offenses may be restrained when the statute under which such prosecutions are brought is alleged to be unconstitutional. M. Schandler B. Co. v. Welch, 42 F. 561; Ex parte Young, 209 U.S. 123. Other cases hold to the contrary. Burnett v. Craig, 30 Ala. 135; Skakel v. Roche, 27 Ill.App. 423; S. Cohen & Co. v. Comm'rs, 77 N.C. 2. (2) The action, though in form against individuals, is in fact an action against the state, and consequently cannot be maintained without the consent of the state. It is elementary that the state cannot be sued except as the legislature shall provide by law therefor. Const. art. IV, sec. 27; C., M. & St. P. R. Co. v. State, 53 Wis. 509; Houston v. State, 98 Wis. 481, and cases cited; State ex rel. New Richmond v. Davidson, 114 Wis. 563; Taylor v. Hall, 71 Tex. 206, 213. Such immunity of the state from suit may not be avoided by indirection. 26 Am. & Eng. Ency. of Law (2d ed.) 488, 490. A suit to restrain the attorney general of the state from enforcing a penal statute is a suit against the state. Union T. Co. v. Stearns, 119 F. 790; Cotting v. Kansas City S. Y. Co. 183 U.S. 79; Rhodes & J. Mfg. Co. v. New Hampshire, 70 F. 721; W. U. Tel. Co. v. Myatt, 98 F. 335. This statute is penal and offenders against it may be punished as for a misdemeanor, and this court has held that "the administration of the criminal laws is a state affair, and the officers engaged in such duties represent the sovereign power of the state." Northern T. Co. v. Snyder, 113 Wis. 516, 538; State ex rel. New Richmond v. Davidson, 114 Wis. 563, 579. (3) The complaint is defective because it does not allege or show that plaintiff will suffer irreparable injury if an injunction be not granted. (4) The act in question, ch. 269, Laws of 1907, is valid. Health Dept. v. Rector, etc. 145 N.Y. 32, 49; Prentice, Police Powers, 253-255, 260, and cases cited; 3 Birdseye, R. S. of N.Y. 3622 et seq.; 4 id. (Supp.) 931 et seq.; People ex rel. Kemp v. D'Oench, 11 N.Y. 359; New York v. Herdje, 68 A.D. 370; Tenement House Dept. v. Moeschen, 179 N.Y. 325; Moeschen v. Tenement House Dept. 203 U.S. 583; Welch v. Swasey, 193 Mass. 364, 79 N.E. 745; Freund, Police Power, §§ 127, 128; Tiedeman, Lim. of Police Power, § 122e; Knoxville v. Bird, 12 Lea, 121, 47 Am. Rep. 326; Willy v. Mulledy, 78 N.Y. 310, 314; In re Wilshire, 103 F. 620; State v. Robb, 100 Me. 180, 185, 186.

For the respondent there was a brief by Rose, Witte & Rose, and oral argument by D. S. Rose.

A brief was also filed by Edward W. Frost on behalf of the Children's Betterment League of Milwaukee.

OPINION

Page 887

[136 Wis. 199] ROUJET D. MARSHALL, J.

The complaint shows that respondent would be specially injuriously affected by enforcement of ch. 269, Laws of 1907. Therefore we will regard as the sole matter submitted for consideration that of whether such law is unconstitutional.

That it is competent under the police power by legislative enactments to regulate the construction and maintenance of tenement and lodging houses to some extent, and that legislative activity in that field within all proper limits is commendable, are not open to serious controversy. In some situations such regulations are imperative in the interest of public safety and public health. The court approaches the [136 Wis. 200] consideration of the law in question fully appreciating, it is thought, the worthy motives of those within and those without the legislature to whose efforts the legislation is attributable. Good intentions in the passage of a law or a praise-worthy end sought to be attained thereby cannot save the enactment if it transcends, in the judgment of the court, the limitations which the constitution has placed upon legislative power. In such cases the law, so called, is not a law at all. As has been aptly said:

"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." Norton v. Shelby Co. 118 U.S. 425, 442, 6 S.Ct. 1121, 30 L.Ed. 178.

The appeal is often made to courts directly or indirectly to look favorably upon a law because of the worthy purpose in the minds of the promoters in securing its place upon the statute books. That cannot go to the extent of causing hesitancy or failure to condemn a legislative act which clearly exceeds the lawmaking power. Courts have their duty to perform in a case like this and, however unpleasant it may be, they cannot turn aside on any account whatever, even in the face of manifestly the very best of intentions upon the part of the lawmakers and promoters. The greatest constitutional lawyer of our country during its early history aptly said:

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87 practice notes
  • 146 N.W. 882 (Wis. 1914), Mehlos v. City of Milwaukee
    • United States
    • Wisconsin United States State Supreme Court of Wisconsin
    • April 9, 1914
    ...rel. Milwaukee Med. Coll. v. Chittenden, 127 Wis. 468, 519, 107 N.W. 500; State v. Redmon, 134 Wis. 89, 114 N.W. 137; Bonnett v. Vallier, 136 Wis. 193, 116 N.W. 885. Notwithstanding mere reiteration is unnecessary and attempts to improve on what has gone before seem futile, we do well to fo......
  • 195 N.W. 544 (Wis. 1923), State ex rel. Klefisch v. Wisconsin Telephone Company
    • United States
    • Wisconsin United States State Supreme Court of Wisconsin
    • October 16, 1923
    ...as an unreasonable and improper classification under the doctrine laid down by this court in the case of Bonnett v. Vallier, 136 Wis. 193, 116 N.W. 885, the Tenement House Law. So far as the claimed purposes of the law are concerned, namely, the exercise of the police power of the legislatu......
  • 228 N.W. 895 (Wis. 1930), State ex rel. La Follette v. Kohler
    • United States
    • Wisconsin United States State Supreme Court of Wisconsin
    • February 4, 1930
    ...Co. 103 Wis. 537, 79 N.W. 780 (drainage of lake); State v. Redmon, 134 Wis. 89, 114 N.W. 137 (upper berth regulation); Bonnett v. Vallier, 136 Wis. 193, 116 N.W. 885 (tenement-house regulation); Trading Stamp Cases, 166 Wis. 613, 166 N.W. 54. [44] See Sikes, Corrupt Practices Legislation, p......
  • 291 N.W. 550 (N.D. 1940), 6607, Federal Farm Mortg. Corp. v. Berzel
    • United States
    • North Dakota United States State Supreme Court of North Dakota
    • March 7, 1940
    ...and promote enjoyment generally of those "inalienable rights" with which "all men are endowed." Bonnett v. Vallier, 136 Wis. 193, 116 N.W. 885, 17 L.R.A.(N.S.) 486, 128 Am. St. Rep. 1061. Alvin C. Strutz, Attorney General, and A. M. Kuhfeld, Assistant Attorney General, f......
  • Request a trial to view additional results
87 cases
  • 146 N.W. 882 (Wis. 1914), Mehlos v. City of Milwaukee
    • United States
    • Wisconsin United States State Supreme Court of Wisconsin
    • April 9, 1914
    ...rel. Milwaukee Med. Coll. v. Chittenden, 127 Wis. 468, 519, 107 N.W. 500; State v. Redmon, 134 Wis. 89, 114 N.W. 137; Bonnett v. Vallier, 136 Wis. 193, 116 N.W. 885. Notwithstanding mere reiteration is unnecessary and attempts to improve on what has gone before seem futile, we do well to fo......
  • 195 N.W. 544 (Wis. 1923), State ex rel. Klefisch v. Wisconsin Telephone Company
    • United States
    • Wisconsin United States State Supreme Court of Wisconsin
    • October 16, 1923
    ...as an unreasonable and improper classification under the doctrine laid down by this court in the case of Bonnett v. Vallier, 136 Wis. 193, 116 N.W. 885, the Tenement House Law. So far as the claimed purposes of the law are concerned, namely, the exercise of the police power of the legislatu......
  • 228 N.W. 895 (Wis. 1930), State ex rel. La Follette v. Kohler
    • United States
    • Wisconsin United States State Supreme Court of Wisconsin
    • February 4, 1930
    ...Co. 103 Wis. 537, 79 N.W. 780 (drainage of lake); State v. Redmon, 134 Wis. 89, 114 N.W. 137 (upper berth regulation); Bonnett v. Vallier, 136 Wis. 193, 116 N.W. 885 (tenement-house regulation); Trading Stamp Cases, 166 Wis. 613, 166 N.W. 54. [44] See Sikes, Corrupt Practices Legislation, p......
  • 291 N.W. 550 (N.D. 1940), 6607, Federal Farm Mortg. Corp. v. Berzel
    • United States
    • North Dakota United States State Supreme Court of North Dakota
    • March 7, 1940
    ...and promote enjoyment generally of those "inalienable rights" with which "all men are endowed." Bonnett v. Vallier, 136 Wis. 193, 116 N.W. 885, 17 L.R.A.(N.S.) 486, 128 Am. St. Rep. 1061. Alvin C. Strutz, Attorney General, and A. M. Kuhfeld, Assistant Attorney General, f......
  • Request a trial to view additional results