Boden v. City of Milwaukee

• Decision Date: 03 November 1959
• Citation: 8 Wis.2d 318,99 N.W.2d 156
• Parties: Walter C. BODEN et al., Appellants, v. CITY OF MILWAUKEE, a municipal corporation, et al., Respondents.
• Court: Wisconsin Supreme Court

Page 156

99 N.W.2d 156

8 Wis.2d 318

Walter C. BODEN et al., Appellants, v. CITY OF MILWAUKEE, a municipal corporation, et al., Respondents.

Supreme Court of Wisconsin.

Nov. 3, 1959.

Boden & Lowry, Milwaukee, for appellants.

Walter J. Mattison, City Atty., John F. Kitzke, Asst. City Atty., Milwaukee, for respondents.

CURRIE, Justice.

The plaintiffs ground their contention, that the ordinance as so attempted to be applied is unconstitutional, upon the due process clause of the Fourteenth amendment and sec. 1, art. I, of the Wisconsin constitution. ¹ In State v. McKune, 1934, 215 Wis. 592, 255 N.W. 916, this court declared that such section of our state constitution, in absence of the police power, would prohibit any legislation which operated to restrict the rights and freedom of one individual or class and not of another. It has also been held that such provision of our state constitution is substantially equivalent to the equal protection of the laws and due process clauses of the Fourteenth amendment. Pauly v. Keebler, 1921, 175 Wis. 428, 185 N.W. 554. We are aware of no decision of this court which has determined that sec. 1, art. I, of the Wisconsin constitution, imposes any greater restriction on the exercise of the police power than do the due process and equal protection of the laws clauses of the Fourteenth amendment. No issue is raised on this appeal of any attempted unreasonable classification. It is only contended that the ordinance, as sought to be applied to the plaintiffs' building, deprives them of their property without due process of law.

We, therefore, deem that the issues on this appeal may be resolved by considering the following two questions:

(1) Does the attacked ordinance constitute a valid exercise of police power by the city of Milwaukee?

(2) If it does, is its attempted enforcement under the facts of this case against the plaintiffs' building an unlawful taking of property without due process of law?

It is well recognized that it is a legitimate exercise of the police power to require existing buildings used for human habitation to meet reasonable prescribed standards in order to protect the health and safety of the occupants. Brennan v. City of Milwaukee, 1953, 265 Wis. 52, 60 N.W.2d 704, and Adamec v. Post, 1937, 273 N.Y. 250, 7 N.E.2d 120, 109 A.L.R. 1110.

All of the affirmative acts required by the instant ordinance of the property owners clearly have a direct relationship to the health or safety of the occupants of the buildings to which such ordinace applies, except possibly the requirement that exterior wood surfaces shall be kept reasonably protected by paint. However, a dwelling house, whose wood surfaces are not so maintained soon become an eyesore and tends to depreciate adjoining property values. The photographs in the record taken of the plaintiffs' cottage, which depict its unpainted condition, afford a good example of this.

The city's police power with respect to enacting building regulations is not restricted to situations which only affect the public health and safety, but extends to anything which is for the good order of the city or the public welfare. Sec. 62.11(5), Stats. The prohibition of a condition that tends to depress adjoining property values falls within the scope of promoting the general welfare and does not violate due process. State ex rel. Saveland Park Holding Corp. v. Wieland, 1955, 269 Wis. 262, 270, 69 N.W.2d 217; Pierro v. Baxendale, 1955, 20 N.J. 17, 118 A.2d 401, 408, and Best v. Zoning Board of Adjustment, 1958, 393 Pa. 106, 141 A.2d 606, 612-613.

The police power of a municipal corporation is not absolute but always is subject to the test of reasonableness. However, except in clear cases of oppressiveness or unreasonableness, it is not within the province of the courts to interfere with the exercise of such police power. This is because the legislative bodies of municipal corporations are prima facie the sole judges of the reasonableness of an ordinance enacted under their police power, and every intendment is to be made in favor of the reasonableness of such ordinance. Highway 100 Auto Wreckers, Inc. v. City of West Allis, 1959, 6 Wis.2d 637, 646, 96 N.W.2d 85, 97 N.W.2d 423. We find nothing so oppressive in the affirmative requirements of the instant ordinance as would warrant this court in holding that it is unreasonable.

The constitutionality of municipal housing ordinances applicable to existing buildings, which contained many provisions fully as burdensome as those of the instant ordinance, was upheld in Paquette v. City of Fall River, Mass.1959, 155 N.E.2d 775 and Richards v. City of Columbia, 1955, 227 S.C. 538, 88 S.E.2d 683. It is our considered judgment that the instant ordinance constitutes a valid exercise by the defendant city of its police power and does not violate the due process clause of the Fourteenth amendment.

We now approach the narrower question of whether the manner in which it is sought to enforce this ordinance against the plaintiff property owners constitutes a denial of due process. It is conceded that the present condition of plaintiffs' building clearly violates the ordinance. Ostensibly it lay within the power of the plaintiffs to remedy the violations and escape all penalties, as there are no facts in the record that this was not the case. The maximum fine which may be levied is one hundred dollars, and that feature of the ordinance is not attacked as oppressive.

The plaintiffs center their attack upon the threatened invoking of the power granted to the commissioner of health by the ordinance to condemn the building as unfit for human habitation. This power of the commissioner to condemn cannot be invoked merely because of some defect, such as lack of exterior paint which only has a remote, if any, bearing on the health and safety of the occupants or the public. Such right to condemn is expressly limited to buildings falling in the following three categories:

'(a) One which is so damaged, decayed, dilapidated, insanitary, difficult to heat, unsafe, or vermin infested that it creates a hazard to the health or welfare of the occupants or of the public, or

'(b) One which lacks illumination, ventilation or sanitary facilities adequate to protect the health or welfare of the occupants or of the public; or

'(c) On which, because of its general condition or location, is insanitary or otherwise dangerous to the health or welfare of the occupants or of the public.'

The gist of the plaintiffs' argument is that such power of condemnation can only be exercised in the case of a building which constitutes a public nuisance. In support of such contention they quote the statement appearing in the opinion in City of Milwaukee v. Milbrew, Inc., 1942, 240 Wis. 527, 533, 3 N.W.2d 386, 390, 141 A.L.R. 277, that 'it is only a public nuisance that may be punished by a municipality in the exercise of its police powers.' Proceeding from this premise, it is argued that the plaintiffs' suilding does not constitute a public nuisance because its unsafe and insanitary condition affects but one person, the tenant.

The absence of window screens, and the existing conditions which render the premises favorable to the harboring of rodents, renders it highly likely that the health of the neighbors may also be endangered by the plaintiffs' building. These conditions also pose a threat to people who enter the building as licensees of the tenant.

The persons whose health and safety the ordinance was designed to safeguard are not limited to a few people but embrace all those in the city who occupy any building for the purpose of living or sleeping. ² It follows from this that the ordinance was enacted for the protection of the public welfare. However, the constitutionality of a regulatory measure enacted under the police power is not dependent upon the size of the class of persons it is intended to protect. Kuhl Motor Co. v. Ford Motor Co., 1955, 270...