Mehlos v. City of Milwaukee

• Decision Date: 09 April 1914
• Citation: 146 N.W. 882,156 Wis. 591
• Parties: MEHLOS v. CITY OF MILWAUKEE ET AL.
• Court: Wisconsin Supreme Court

156 Wis. 591

146 N.W. 882

MEHLOS

v.CITY OF MILWAUKEE ET AL.

Supreme Court of Wisconsin.

April 9, 1914.

Appeal from an Order of the Circuit Court for Milwaukee County; John C. Ludwig, Circuit Judge. Affirmed.

Action to restrain enforcement of a city ordinance upon the ground of its being unconstitutional.

The following is such ordinance:

“Section 1. The term ‘public dance’ or ‘public dance hall,’ as used in this ordinance shall be taken to mean any dance or ball to which admission can be had by payment of a fee or by the purchase, possession or presentation of a ticket or token in which a charge is made for caring for clothing or other property or any other dance to which the public generally may gain admission with or without payment of a fee. The term ‘public dance hall,’ as used herein, shall be taken to mean any room, place or space in which a public dance or public ball may be held, or hall or academy in which classes in dancing are held and instruction in dancing given for hire.

Sec. 2. It shall be unlawful to hold any public dance or public ball or to hold classes in dancing within the limits of the city of Milwaukee until the dance hall in which the same may be held shall first have been duly licensed for such purpose. The application for such license shall be granted in the same manner as providing for the issuing of licenses under chapter 27 of the General Ordinances of the City of Milwaukee.

Each license granted hereunder shall expire on the first day of July of each year and the license shall be posted in a conspicuous place within the hall in which the dance is held.

The annual license fee shall be five (5) dollars. This ordinance shall be printed in full upon each license issued, and each license shall by its terms be made subject to revocation, as hereinafter provided.

Sec. 3. No license for a public dance hall shall be issued until it shall be found that such hall complies with and conforms to all ordinances, health and fire regulations of the city; that it is properly ventilated and supplied with efficient toilet conveniences and is a safe and proper place for the purpose for which it is to be used.

Sec. 4. The license of any public dance hall shall be forfeited or revoked by the mayor for disorderly or immoral conduct on the premises or for the violation of any of the rules, regulations, ordinances and laws governing or applying to public dance halls or public dances. If at any time the license of a public dance hall shall be forfeited or revoked, at least six months shall elapse before another license or permit shall be given for dancing on the same premises.

Sec. 5. Every licensed owner of a dance hall shall, immediately upon application being received by him from any person, club or society to lease or rent his hall for the purpose of holding a public dance or ball therein, report to the mayor of the city of Milwaukee the name and address of such person, club or society, and the date when such public dance or ball is proposed to be held. The mayor shall at once make, or cause to be made, an investigation for the purpose of determining whether such dance or ball shall be held. If the mayor shall determine that the proposed dance or ball ought not to be held, he shall, within five (5) days after receipt of the aforesaid notice of application for lease or rental, notify the licensed owner of such dance hall, in writing, that the proposed public dance or ball shall not be held therein, and the licensed owner of such dance hall shall thereupon refuse to permit such public dance or ball to be held in such hall. Failure on the part of the licensed owner of such hall to comply with the provisions of this section shall be sufficient cause for the revocation of the license of such licensed owner.

Sec. 6. All public dance halls shall be kept at all times in a clean, healthful and sanitary condition, and all stairways and outer passages and all rooms connected with a dance hall shall be kept open and well lighted. The chief of police, a captain, a lieutenant, or a sergeant of police, shall have the power, and it shall be their duty, to cause the place, hall or room where any dance or ball is held or given to be vacated whenever any provision of any ordinance with regard to public dances and public balls is being violated or whenever any indecent act shall be committed or when any disorder of a gross, violent or vulgar character shall take place.

Sec. 7. It shall be unlawful after 10 o'clock p. m. to permit any person to attend or take part in any public dance who has not reached the age of eighteen (18) years, unless such person be in company with a parent or natural guardian. It shall be unlawful for any person to represent himself or herself to have reached the age of eighteen years in order to obtain admission to a public dance hall or to be permitted to remain therein when such person in fact is under eighteen years of age, and it shall also be unlawful for any person to represent himself or herself to be a parent or natural guardian of any person, in order that such person may obtain admission to a public dance hall, or shall be permitted to remain therein when the party making the representation is not in fact either a parent or natural guardian of the other person.

Sec. 8. The mayor shall refer all applications for dance hall licenses to the chief of police, who shall investigate, or cause to be investigated, each application to determine whether the dance hall sought to be licensed complies with the regulations, ordinances and laws applicable thereto, and in the making of such investigation the chief of police shall, when desired, have the assistance of the building inspector, the commissioner of health and the chief of the fire department. The chief of police shall furnish to the mayor in writing the information derived from such investigation, accompanied by a recommendation as to whether a license should be granted or refused. No license shall be renewed except after inspection of the premises as provided herein.

Sec. 9. All public dances shall be discontinued and all public dance halls shall be closed on or before the hour of three o'clock a. m.

Sec. 10. Any person, persons, society, club or corporation who shall violate the provisions of this ordinance shall, upon conviction thereof, be fined not less than twenty-five ($25.00) dollars, and the cost of prosecution and not more than one hundred ($100) dollars and the cost of prosecution for each and every offense, and on default of payment thereof shall be imprisoned in the House of Correction, Milwaukee county, for a period of not exceeding ninety (90) days.”

The complaint contained appropriate allegations as to plaintiff being specially injured by the ordinance and challenged its validity.

The appeal is from a decision dissolving a temporary injunction. Such decision turned on whether the ordinance was valid.

Rubin & Zabel, of Milwaukee (Horace B. Walmsley, of Milwaukee, of counsel), for appellant.

Daniel W. Hoan, City Atty., and E. L. McIntyre, Asst. City Atty., both of Milwaukee, for respondents.

MARSHALL, J.

These are the basic propositions to be considered: Is the maintenance of public dance halls a proper subject for police regulation? Does the city of Milwaukee possess authority in respect to such matter? Are the means adopted legitimate?

The general nature of the police power has been too often defined to leave room for anything further to be said of a strictly original nature. This court dealt, generally, with the matter in the following and other cases: State, etc., v. Burdge, 95 Wis. 390, 70 N. W. 347, 37 L. R. A. 157, 60 Am. St. Rep. 123;State ex rel. Winkler v. Benzenberg et al., 101 Wis. 172, 175, 76 N. W. 345;State, etc., v. Chittenden, 127 Wis. 468, 519, 107 N. W. 500;State v. Redmon, 134 Wis. 89, 114 N. W. 137, 14 L. R. A. (N. S.) 229, 126 Am. St. Rep. 1003, 15 Ann. Cas. 408;Bonnett v. Vallier, 136 Wis. 193, 116 N. W. 885, 17 L. R. A. (N. S.) 486, 128 Am. St. Rep. 1061.

Notwithstanding mere reiteration is unnecessary and attempts to improve on what has gone before seems futile, we do well to follow that wise constitutional admonition:

“The blessings of a free government can only be maintained by a firm adherence to justice, moderation, temperance, frugality and virtue, and by frequent recurrence to fundamental principles.”

That is more than a mere admonition voicing in another way the thought often expressed as “eternal vigilance is the price of liberty.” It is a declaration giving emphasis to the declared purpose of the fundamental law as involving restraint of anything in legislation invading inherent rights,--that freedom for which we are “thankful to Almighty God” and for the conservation of which and security of “the blessings” for which “governments are instituted among men, deriving their just powers from the consent of the governed.” It points to the very vitals of the fundamental law and pictographs its spirit, making it visible to, and its beneficence appreciable by the commonest understandings.

[1] It were better, perhaps, to speak of exercisable police power in the collective sense,--as that broad conception involved in the expression: It is the sovereign authority exercisable directly, where not expressly inferentially prohibited, and otherwise, where not so prohibited, to pass laws regulating, reasonably, all those things which appertain to the public welfare.

Things may be within the police power, in the general sense, and not in the legal sense because expressly prohibited. Many things fall within such general sense which do not within the legal sense because impliedly prohibited. The heresy which once had some believers, that it is a power above fundamental restraints, has been so completely exposed as to only now exist as a matter of history, which more excites our curiosity as to its origin and how the idea could have originated, in the light of any worth-while appreciation of our...