Fox v. City of Racine

• Decision Date: 12 October 1937
• Citation: 225 Wis. 542,275 N.W. 513
• Parties: FOX v. CITY OF RACINE et al.
• Court: Wisconsin Supreme Court

225 Wis. 542

275 N.W. 513

FOX

v.CITY OF RACINE et al.

Supreme Court of Wisconsin.

Oct. 12, 1937.

Appeal from a judgment of the Circuit Court for Racine County; E. B. Belden, Judge.

Reversed.

Action brought by S. M. Fox against the City of Racine and some of its officials to enjoin the enforcement of an alleged void and ineffective ordinance prohibiting marathon dances, walkathons, and similar endurance contests. Defendants demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The court overruled the demurrer, and entered judgment adjudging the ordinance void and enjoining enforcement thereof. Defendants appealed.

Cornelius M. Colbert, of Racine, for appellants.

Weisman & Weisman, of Racine, for respondent.

FRITZ, Justice.

[1] The ordinance, which the court adjudged void and unenforceable in the judgment under review, was enacted by the common council of the City of Racine in October, 1934, and prohibits entirely the promotion, conduct, etc., of “any mental or physical endurance contest in the nature of a Marathon, Walkathon, Skatathon or any” similar endurance contest. Subsequent to that enactment the Legislature (Laws 1935, c. 257) enacted section 352.48, Stats. 1935, which provides: “Section 1. A new section is added to the statutes to read: 352.48 Endurance contests; penalty. (1) No person, firm or corporation shall advertise, operate, maintain, attend, participate in, promote or aid in advertising, operating, maintaining or promoting any physical endurance contest, exhibition, performance, or show in the nature of a ‘marathon,’ ‘walkathon,’ ‘skathon,’ or any other physical endurance contest, exhibition, performance or show of a like or similar nature, whether or not an admission is charged or a prize is awarded to any person for participation in such physical endurance contest, wherein any person participates in such contest for a period of more than sixteen hours in any twenty-four hours over a period of more than six days in one month.”

The trial court considered the enactment of the ordinance within the powers of the City of Racine under section 3 of art. 11, Wis. Const., and section 62.11 (5), Stats., the provisions of which are, respectively, as follows:

“Cities and villages organized pursuant to state law are hereby empowered, to determine their local affairs and government, subject only to this constitution and to such enactments of the legislature of statewide concern as shall with uniformity affect every city or every village.” Article 11, § 3, Wis. Const.

“Except as elsewhere in the statutes specifically provided, the council shall have the management and control of the city property, finances, highways, navigable waters, and the public service, and shall have power to act for the government and good order of the city, for its commercial benefit, and for the health, safety, and welfare of the public, and may carry out its powers by license, regulation, suppression, borrowing of money, tax levy, appropriation, fine, imprisonment, confiscation, and other necessary or convenient means. The powers hereby conferred shall be in addition to all other grants, and shall be limited only by express language.” Section 62.11 (5), Stats.

As the court rightly concluded, it appears from the section last quoted “that the city may carry out its valid powers by license, regulation, or suppression *** and other necessary or convenient means, and that if any enterprise offends against its valid ordinances, the good order of the city, or the health, safety or welfare of the people, an issued license may be revoked and other means of regulation or suppression not inconsistent with state law invoked and enforced.” However, in that connection the court stated that by section 352.48 (1), Stats. 1935, the Legislature did limit by express language the provisions of the city ordinance; and “declared a physical endurance contest not exceeding the restrictions and limitations so prescribed by it to be legal.” Upon those statements, the court concluded that section 352.48 (1), Stats., does limit by express language the provisions of the city ordinance within the meaning and contemplation of the last provision in section 62.11 (5), Stats., to wit, “The powers hereby conferred *** shall be limited only by express language;” and that therefore the ordinance was superseded and was rendered null and ineffective by the statute.

An examination of section 352.48 (1), Stats. 1935, does not disclose any basis, in the nature of any express language in that statute, for that conclusion. In so far as legislative action is concerned, the most that can be said is that the Legislature, in prohibiting such contests only where their duration exceeds in point of time the period specified in the statute, has by implication indicated tolerance thereof when they are not conducted in excess of that period. But, even if such contests, when not conducted in excess of the period specified in section 352.48 (1), Stats., can be deemed legalized thereby by implication, that implication cannot be held to constitute such “express language” as is required by section...