Lerner v. City of Delavan
| Decision Date | 09 December 1930 |
| Citation | 203 Wis. 32,233 N.W. 608 |
| Parties | LERNER v. CITY OF DELAVAN. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Walworth County; E. B. Belden, Circuit Judge.
Action by Art Lerner against the City of Delavan. From the judgment, plaintiff appeals.--[By Editorial Staff.]
Affirmed.
The plaintiff brought this action on October 22, 1929, to restrain the defendant from attempting to enforce against the plaintiff an ordinance forbidding the keeping of a junk shop or yard without first obtaining a license. The plaintiff appeals from a judgment entered April 9, 1930, dismissing plaintiff's complaint.
The plaintiff is a resident of the city of Delavan, and maintains a small junk yard. He has conducted the junk yard at the same location for about fifteen years, living on the premises and depositing junk in the yard to the rear of his house. The yard is 77 by 160 feet deep, and part of it is used for storing junk. Paper is kept in bales, and rags are kept in bags and stored in the barn on the premises. The yard is inclosed on the north and east sides by a tight board fence six feet high. On a few occasions the junk has been stored a few feet higher than the fence, but generally it has been so stored as to be obscured by the fence. It is contended by the plaintiff that the vicinity of his junk yard is not a desirable residence district. The stockyards are one block north of the plaintiff's property; a large factory is in the vicinity; two lumber yards are in the next block; and the depot is one block from the plaintiff's premises. There is much vacant and unoccupied property in the vicinity. There is a coal yard about a block from the junk yard, which is kept about the same as plaintiff's yard. When the plaintiff commenced his business there were no houses in the neighborhood, except one. Since then houses have been built on Bradley avenue a considerable distance east of plaintiff's property. The witnesses agree that plaintiff's yard is kept more neatly than the average junk yard, and that he is not an unsuitable person to operate such a business.
An ordinance of the city of Delavan, passed in 1911, forbids the keeping of a junk yard or other place for the deposit and keeping of old iron, copper, rags, and bones, within the limits of the city of Delavan, without first having obtained a permit so to do from the common council. It requires that applications for licenses be submitted in writing to the common council, setting forth the name, residence of the applicant, a correct and accurate description of the premises for which a permit is asked, a statement of the business to be carried on, and an enumeration, as nearly as may be, of the articles and merchandise to be handled. It provides that the common council may issue a permit, in its discretion, to conduct a business at the location described in the permit, for a period of one year, and that the council may revoke the permit on thirty days' notice.
Plaintiff has never conformed to the ordinance. On February 15, 1929, a petition by property owners in the vicinity of plaintiff's business was presented to the council, asking that plaintiff's junk business be discontinued on the ground that it diminished the value of their property, and, further, that the “deposit of rags, papers and other organic materials is highly unsanitary and dangerous to the health of the community.” The council ordered the removal of the junk on or before May 21, 1929. On August 15, 1929, plaintiff, without conceding the validity of the ordinance, made application for a license or permit, which was denied.Fiedler, Garrigan & Grimm, of Beloit, for appellant.
Ray Bowers, City Atty., of Delavan (Simmons, Walker, Wratten & Sporer, of Racine, of counsel), for respondent.
The ordinance in question is attacked as invalid for the reason that it furnishes no standard by which the council may exercise its discretion in granting permits; that consequently it vests the council with a wholly arbitrary power to grant or deny or revoke permits; and that it puts it within the power of the council to destroy what is conceded to be a legitimate business.
[1] It is clear from the authorities that dealers in junk and secondhand articles are subject to control and regulation for several reasons: First, there is a strong likelihood that, innocently or otherwise, such dealers will frequently receive stolen goods; second, they are apt to gather together quantities of inflammable matter in combustible buildings; and, third, they frequently have in their possession clothing or other articles infected with disease. They are consequently subject to reasonable regulation, either by statute or ordinance. The authorities to this effect are overwhelming, and are collected in Stroll v. State, 95 Tex. Cr. R. 611, 255 S. W. 620, 30 A. L. R. 1427.
At the time the ordinance in question was passed, the general city charter law contained specific authority to the common council to “license and regulate * * * keepers or proprietors of junk shops and places for the sale and purchase of secondhand goods, wares and merchandise.” Subdivision (46), § 925--52, St. 1911. Subdivision (5), § 62.11 St., which is a part of the general city charter law, provides:
There can exist no doubt that the city of Delavan had the power to pass and enforce a reasonable ordinance regulating plaintiff's business. While in some cases it might make a difference whether the power of the common council had its source in specific authority given it by statute, or in a general welfare clause, it is not necessary to consider this question in the view that the court takes of the ordinance.
[2] Does the ordinance in question vest in the common council a purely arbitrary power to grant and to revoke licenses for the carrying on of the junk business? It is concluded that it does not. The factors which the cases recognize as the proper bases for regulating junk yards are taken into account in the ordinance. It will be noticed that the ordinance requires the person applying for the permit to give his name, the place where the business is to be carried on, and an enumeration of the articles and merchandise to be handled therein. It is fairly to be implied that there was no intention to vest an arbitrary...
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City of Juneau v. Badger Co-Operative Oil Co.
...a permit from the common council. [1] The respondent claims this ordinance is valid under the decision of this court in Lerner v. Delavan, 203 Wis. 32, 233 N.W. 608. While the city under the Lerner Case no doubt has power, under the power conferred by section 62.11, Stats., “to act for the ......
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State ex rel. American Oil Co. v. Bessent
...business, and the type of articles or merchandise to be handled by a junk shop were held sufficient standards in Lerner v. City of Delavan (1930), 203 Wis. 32, 233 N.W. 608, and the single factor of traffic conditions in a designated area constituted a sufficient standard to make an excepti......
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La Crosse Rendering Works, Inc. v. City of La Crosse
...No. 1074 contains sufficient, definite standards to satisfy the requirements under the decisions of this court in Lerner v. Delavan, 203 Wis. 32, 233 N.W. 608;City of Juneau v. Badger Co-operative Oil Co., 227 Wis. 620, 279 N.W. 666;City of Milwaukee v. Ruplinger, 155 Wis. 391, 145 N.W. 42.......
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Smith v. City of Brookfield
...of Juneau v. Badger Co-operative Oil Co., 1938, 227 Wis. 620, 279 N.W. 666 (bulk oil storage and filling stations); Lerner v. Delavan, 1930, 203 Wis. 32, 233 N.W. 608 (junk yards); Pinkerton v. Buech, 1921, 173 Wis. 433, 181 N.W. 125 (private detectives); and City of Milwaukee v. Ruplinger,......