City of Milwaukee v. Piscuine

• Decision Date: 05 February 1963
• Citation: 18 Wis.2d 599,119 N.W.2d 442
• Parties: CITY OF MILWAUKEE, Respondent, v. Charles PISCUINE, Appellant. CITY OF MILWAUKEE, Respondent, v. Martha Mathilda ARTIS, Appellant.
• Court: Wisconsin Supreme Court

Page 442

119 N.W.2d 442

18 Wis.2d 599

CITY OF MILWAUKEE, Respondent, v. Charles PISCUINE, Appellant.

CITY OF MILWAUKEE, Respondent, v. Martha Mathilda ARTIS, Appellant.

Supreme Court of Wisconsin.

Feb. 5, 1963.

Rehearing Denied April 2, 1963.

Walter J. Steininger, Milwaukee, Thomas P. Maroney, Milwaukee, of counsel, for appellants.

John J. Fleming, City Atty., Maurice L. Markey, Asst. City Atty., Milwaukee, for respondent.

WILKIE, Justice.

The whole contest on this appeal is on the validity of City of Milwaukee Ordinance 90-25. The appellants do not challenge the sufficiency of the evidence supporting the convictions. They make three assertions:

1. The city of Milwaukee does not have the power to enact this ordinance.

2. The ordinance is unconstitutional because it violates the equal rights of women.

3. The ordinance is arbitrary and unreasonable and hence an invalid exercise of the police power.

1. Does the city of Milwaukee have the power to enact this ordinance? The broad home-rule powers granted to Milwaukee under sec. 62.11(5), Stats. ² , with respect to the police power are ample authority for the enactment of this ordinance provided (1) it is not directly in conflict with a state statute on the same subject and (2) it is not unreasonable or arbitrary.

The power of the city of Milwaukee to legislate in this field and to enact this ordinance is supplemented by the provisions of sec. 66.054(12), (13) ³, and SEC. 176.43 , STATS⁴., permitting cities to place additional regulations beyond the state statutes in or upon the sale of fermented malt beverages or intoxicating liquors.

If a regulation enacted by a city under the police power is not in conflict with a state statute but merely goes further in its regulation that regulation is not invalid.

The case of Fox v. Racine (1937), 225 Wis. 542, 275 N.W. 513, discussed whether a city ordinance which completely prohibited an endurance test (walkathon) was in conflict with sec. 352.48(1), Stats.1935, which prohibited such endurance tests unless certain conditions were met. This section, the lower court held, superseded the city ordinance and the ordinance was therefore null and void. The supreme court reversed, holding at pages 546, 547, 275 N.W. at page 515 'The statute, as well as the ordinance, in the case at bar, is prohibitory, and the difference between them is only that the ordinance goes farther in its prohibition--but not counter to the prohibition under the statute. The city does not attempt to authorize by this ordinance what the Legislature has forbidden; nor does it forbid what the Legislature has expressly licensed, authorized, or required. Under those circumstances there is nothing contradictory between the provisions of the statute and of the ordinance because of which they cannot coexist and be effective. Unless legislative provisions are contradictory in the sense that they cannot coexist, they are not to be deemed inconsistent because of mere lack of uniformity in detail. Bodkin v. State ( Neb. ), 272 N.W. 547; City of Mobile v. Collins, 24 Ala.App. 41, 130 So. 369. Consequently, there is no conflict or inconsistency between the statute and the ordinance in question because of which the latter has been superseded by the statute, and, therefore, rendered invalid and ineffective. It follows that the court erred in overruling the demurrer.'

The appellants contend that the ordinance is in direct conflict with the provisions of 'the equal rights for women' statute, sec. 6.015, Stats. ⁵ Their basic contention is that since the ordinance singles out female entertainers or employees and does not contain any restrictive provisions affecting male entertainers or employees it is in violation of sec. 6.015, Stats., and of the equal protection provisions of both the state and federal constitutions. ⁶ (Issue discussed under 2 below.)

Appellants also contend that the ordinance is unreasonable and arbitrary and hence an invalid exercise of the police power. (Issue discussed under 3 below.)

2. Does the ordinance violate the equal rights for women as provided under sec. 6.015, Stats., or the equal protection provisions of the State of Wisconsin and United States Constitutions? As to sec. 6.015, Stats., we held in Nickel v. Hardware Mut. Casualty Co. (1955), 269 Wis. 647, at page 650, 70 N.W.2d 205, at page 206:

'It has been said by this court that its only purpose was to remove those disabilities which a woman incurred upon her marriage at the common law and to restore to her the rights which she enjoyed as a feme sole.'

No rights of women under sec. 6.015, Stats., have been violated by the ordinance. ⁷

On the contended violation of the constitutional guarantee of equal protection, a leading federal case is Goesaert v. Cleary (1948), 335 U.S. 464, 69 S.Ct. 198, 93 L.Ed. 163. In that case the U. S. Supreme Court dismissed an argument similar to the appellants' contention that the ordinance in the case at bar is unconstitutional. A Michigan statute was involved which provided that no female may be a licensed bartender unless she be the 'wife or daughter of the male owner' of a licensed liquor establishment. The court held that the statute involved was constitutional, stating at pages 465, 466, 69 S.Ct. at page 199:

'The Fourteenth Amendment did not tear history up by the roots, and the regulation of the liquor traffic is one of the oldest and most untrammeled of legislative powers. Michigan could, beyond question, forbid all women from working behind a bar. This is so despite the vast changes in the social and legal position of women. The fact that women may now have achieved the virtues that men have long claimed as their prerogatives and now indulge in vices that men have long practiced, does not preclude the States from drawing a sharp line between the sexes, certainly, in such matters as the regulation of the liquor traffic.'

The court further stated at pages 466, 467, 69 S.Ct. at pages 199, 200:

'While Michigan may deny to all women opportunities for bartending, Michigan cannot play favorites among women without rhyme or reason. The Constitution in enjoining the equal protection of the laws upon States precludes irrational discrimination as between persons or groups of persons in the incidence of a law. * * * Since bartending by women may, in the allowable legislative judgment, give rise to moral and social problems against which it may devise preventative measures, the legislature need not go to the full length of prohibition if it believes that as a defined group of females other factors are operating which either eliminate or reduce the moral and social problems otherwise calling for prohibition.

'* * * Suffice it to say that 'A statute is not invalid under the Constitution because it might have gone farther than it did, or because it may not succeed in bringing about the result that it tends to produce.' Roschen v. Ward, 279 U.S. 337, 339, 49 S.Ct. 336, 73 L.Ed. 722.'

Anderson v. City of St. Paul (1948), 226 Minn. 186, 32 N.W.2d 538, dealt with an ordinance of the city of St. Paul which was similar to the Michigan statute as presented in the Goesaert case, supra. The Minnesota Supreme Court came to the same result as did the U. S. Supreme Court in the Goesaert case. The Minnesota court stated (226 Minn. p. 191, 32 N.W.2d p. 541):

'Because prohibiting one from engaging in the business of selling intoxicating liquor does not constitute a deprivation of either liberty or property, state and local regulations prohibiting the employment of women in places where intoxicating liquor is sold for consumption on the premises do not deprive women of liberty or property.'

On the equal protection of the laws question, the court said at page 195, 32 N.W.2d at page 543:

'A distinction for purposes of legislative classification based on sex does not deny equal protection where it bears some reasonable relation to the object sought to be accomplished by the legislation.'

Although it is true that in both the Goesaert case, supra, and the Anderson case, supra, the legislation prohibited female employment as bartenders in taverns the Milwaukee ordinance has nothing to do with prohibiting employment but regulates the conduct or female employees in taverns. Both of these cases hold that legislation prohibiting such female employment is not contrary to the constitutional guarantee of equal protection. It follows that mere regulation of the conduct of female employees as in the Milwaukee ordinance does not violate that guarantee.

Wisconsin has unequivocally stated that legislative power is most extensive in the regulation of the liquor industry traffic. ⁸ This court in Vieau v. Common Council (1940), 235 Wis. 122, held at page 124, 292 N.W. 297, 298: 'The regulation of the sale of intoxicating liquors does not come within the equality provisions of the United States Constitution.'

The appellants rely on Matter of Maguire (1881), 57 Cal. 604, 40 Am.Rep. 125. In that case, the California court held that Miss Maguire could work in a tavern and that the ordinance prohibiting her from so doing was unconstitutional. Anderson v. City of St. Paul, supra, discusses that case and states at page 192, 32 N.W.2d at page 542:

'The authorities with but a single exception, Matter of Maguire, 57 Cal. 604, 40 Am.Rep. 125, hold that prohibiting the employment of women as bartenders, waitresses, or otherwise in places where intoxicating liquor is sold to be drunk on the premises does not abridge any privilege or immunity of women as citizens of the United States in violation of the Fourteenth Amendment or deny to them the equal protection of the laws in violation of the equal protection clause thereof.'

We conclude that this ordinance does not violate the equal protection provisions of either Article I of the Wisconsin Constitution or Article XIV of the United States Constitution.

3. Is the ordinance an unreasonable and arbitrary exercise of the police power?...