Gottlieb v. City of Milwaukee

• Decision Date: 10 January 1967
• Citation: 33 Wis.2d 408,147 N.W.2d 633
• Parties: Manuel GOTTLIEB et al., Appellants, v. CITY OF MILWAUKEE, a municipal corporation, Respondent.
• Court: Wisconsin Supreme Court

Page 633

147 N.W.2d 633

33 Wis.2d 408

Manuel GOTTLIEB et al., Appellants, v. CITY OF MILWAUKEE, a municipal corporation, Respondent.

Supreme Court of Wisconsin.

Jan. 10, 1967.

Frinzi, Catania, Neubecker & Styler, Milwaukee, for appellants.

John J. Fleming, City Atty., Harry G. Slater, Deputy City Atty., Milwaukee, for respondent.

Brady, Tyrrell & Bruce, Milwaukee, Richard W. Cutler and John S. Sammond, Milwaukee, of counsel, amici curiae for Time Ins. Co.

Quarles, Herriott & Clemons, Milwaukee, Richard R. Teschner, Dale L. Sorden, Robert H. Diaz, Jr., Milwaukee, of counsel, amici curiae.

Kaumheimer, Reinhart, Boerner, Van Deuren & Norris, Milwaukee, Richard H. Norris III, Milwaukee, of counsel, amicicuriae curiae for Wis. Clybourn Urban Redevelopment Corp.

Goldberg, Previant & Uelmen, Milwaukee, amici curiae for Wis. State AFL-CIO.

Julian Bradbury, Madison, for League of Wis. Municipalities.

Bronson C. La Follette, Atty. Gen., Arlen C. Christenson, Deputy Atty. Gen., Harold H. Persons, Madison, of counsel, for Attorney General.

HEFFERNAN, Justice.

This court takes the position that the constitutionality of a statute may be raised by a general demurrer when the complaint alleges that the statute upon which th defendant bases his conduct is unconstitutional (Bonnett v. Vallier (1908), 136 Wis. 193, 116 N.W. 885, 17 L.R.A.,N.S., 486; State ex rel. Week v. Wisconsin State Board of Examiners (1947), 252 Wis. 32, 34, 30 N.W.2d 187) or when the demurring defendant contends that the plaintiff grounds his cause of action on an unconstitutional statute (State v. Texaco, Inc. (1961), 14 Wis.2d 625, 631, 111 N.W.2d 918; Ocean Accident & Guar. Corp. v. Poulsen (1943), 244 Wis. 286, 12 N.W.2d 129, 152 A.L.R. 810).

When a case comes before the court on an appeal sustaining a demurrer, the facts set forth in the complaint must be accepted as true. Villege of Brown Deer v. City of Milwaukee (1956), 274 Wis. 50, 58, 79 N.W.2d 340. Hence, by demurring, the city of Milwaukee has conceded, for the purpose of this portion of the action, the truth of the factual assertions set forth in the plaintiffs' complaint. It has chosen only to contest the legal premises upon which the plaintiffs ask for relief.

When a case comes to a court in this posture, the complaint must be liberally construed to state a cause of action if it is at all possible to do so. Schlicht v. Thesing (1964), 25 Wis.2d 436, 441, 130 N.W.2d 763; Walley v. Patake (1956), 271 Wis. 530, 74 N.W.2d 130. We have said:

'* * * every reasonable intendment and presumption is to be made in favor of the complaint and the plaintiff is entitled to all reasonable inferences which can be drawn from the facts pleaded.' Conrad v. Evans (1955), 269 Wis. 387, 390, 69 N.W.2d 478, 480.

On the other hand, it is a legislative enactment that is attacked as being unconstitutional, and the cardinal rule of statutory construction is to preserve a statute and to find it constitutional if it is at all possible to do so. We have recently said:

'* * * the duty of this court is * * * if possible, to so construe the statute as to find it in harmony with accepted constitutional principles.' State ex rel. Harvey v. Morgan (1966), 30 Wis.2d 1, 13, 139 N.W.2d 585, 590.

All legislative acts are presumed constitutional, and every presumption must be indulged to sustain the law if at all possible. State ex rel. McCormack v. Foley (1962), 18 Wis.2d 274, 279, 118 N.W.2d 211; School Dist. No. 6 of City of Greenfield v. Marine Nat. Exchange Bank of Milwaukee (1960), 9 Wis.2d 400, 403, 101 N.W.2d 112. If any doubt exists it must be resolved in favor of the constitutionality of a statute. State ex rel. Thomson v. Giessel (1953), 265 Wis. 558, 564, 61 N.W.2d 903. We as a court are not concerned with the merits of the legislation under attack. We are not concerned with the wisdom of what the legislature has done. We are judicially concerned only when the statute clearly contravenes some constitutional provision. Chicago & N.W.R. Co. v. La Follette (1965), 27 Wis.2d 505, 521, 135 N.W.2d 269.

This challenge to the Urban Redevelopment Law comes to us on a complaint asking for a declaratory judgment, seeking not only a declaration in regard to the constitutionality of the statute, but, in addition, for an injunction against further conduct under the statute. To obtain such a declaration there must be a showing of a justiciable controversy between persons whose interests are adverse, and the plaintiff must have a legally protectible interest in a controversy that is ripe for judicial determination (see Borchard, Declaratory Judgments, p. 26--57). State ex rel. La Follette v. Dammann (1936), 220 Wis. 17, 22, 264 N.W. 627, 103 A.L.R. 1089. The trial court made specific findings that the plaintiffs had a substantial interest in the controversy as taxpayers of the city of Milwaukee and that they were proper parties to bring the action for a declaratory judgment. This finding was not challenged on appeal, and at oral argument counsel for the respondent city conceded that plaintiffs had proper standing to sue. Accordingly, that question is not before the court.

Standards of tax uniformity required by Art. VIII, sec. 1, of the Wisconsin constitution

The language of the constitution relevant to this question is simple:

'The rule of taxation shall be uniform * * *. Taxes shall be levied upon such property * * * as the legislature shall prescribe.' ¹

Nonetheless, this provision of the constitution has been the subject of litigation for well over one hundred years. The Wisconsin Reports show that more than 40 cases have been concerned with the interpretation of this portion of Art. VIII. In 1906 Mr. Justice Marshall in Chicago & N.W.R. Co. v. State, 128 Wis. 553, 587, 108 N.W. 557, 561, sought to dispel for all time any doubts as to its meaning. He stated:

'It seems quite unaccountable that, after the lapse of nearly 60 years since the constitution was framed, and half a century since that feature of the article in question was first considered by this court, notwithstanding the seemingly clear decision then made on the point at that time primarily involved. Followed soon thereafter by a second decision covering the precise matter now in hand, that we should find ourselves at this late day face to face with a controversy as to the precise meaning of the words of our organic law: 'The rule of taxation shall be uniform, and taxes shall be levied on such property as the legislature shall prescribe.' That language seems plain, this court, as we shall see, early said it was very plain, and yet it has been treated time and again as ambiguous, and still seems to be so regarded, notwithstanding all that this court has in fifty years said on the subject. And so it must be regarded, especially since men of the highest attainments, lawyers, jurists, and learned laymen, have read different meanings out of it, having regard, as it has been thought, to the object of state constitutions and the broad powers possessed by the prople, unrestrained by a charter on the subject. No better objectlesson, perhaps, could well be presented to illustrate the rule that ambiguity requiring judicial construction may as well arise through the apparent consequences of applying words in their literal sense to the subject with which they deal as from uncertainty of sense in the words themselves, than by the matter in hand. By such application, especially in the light of the varying views entertained of what this court has decided, the words of the Constitution speak one way, seemingly, to some and another way to others. It is to be hoped that by the treatment of the subject in the three cases now before us all obscurities may be cleared up.'

In view of the approximately 20 cases on the same subject that have come before the court since Mr. Justice Marshall wrote, it is apparent that his hopes have not been realized. In view of past experience, this court does not have the temerity to assume that this case will lay to rest all future uncertainties concerning the meaning of Art. VIII, sec. 1, of the constitution. We do hope, however, to restate what we deem to be the uniform holding of this court almost from its very inception, and in so doing determine the question presently before us.

We adhere to the rule of Knowlton v. Board of Supervisors of Rock County (1859), 9 Wis. 378 (*410) This case is over one hundred years old and is, for all practical purposes, the seminal case interpreting that portion of the constitution. Its current viability is shown by the fact that we have found it applicable and quoted it with approval in cases decided within the last two terms of court. Ehrlich v. City of Racine (1965), 26 Wis.2d 352, 132 N.W.2d 489, and City of Plymouth v. Elsner (1965), 28 Wis.2d 102, 135 N.W.2d 799.

The Knowlton case involved a statute which provided that rural property within the limits of the city of Janesville was not to be subject to an annual city tax exceeding one-half that levied upon other property in the city. The court held that this tax differential violated the uniformity clause of the constitution and held that the 50 percent exemption was invalid. The supreme court therein rejected the theory that partial exemptions were permissible, and dismissed as untenable the contention that the legislature could classify property to be taxed at different rates so long as there was uniformity within the class. In Knowlton the court held that once property is selected for taxation it must be taxed in its entirety and the same rate must be applied to it as to all property in the tax district.

The court stated therein, 9 Wis. at page 388 (*420):

'* * * when property is the object of taxation, it should all alike, in proportion to its value, contribute towards paying the expense of such benefits and protection. These are plain and obvious propositions of equity and justice, sustained as we believe by the very letter and spirit...