Maercker v. City of Milwaukee

• Citation: 139 N.W. 199,151 Wis. 324
• Parties: MAERCKER v. CITY OF MILWAUKEE.
• Decision Date: 10 December 1912
• Court: United States State Supreme Court of Wisconsin

151 Wis. 324

139 N.W. 199

MAERCKER

v.CITY OF MILWAUKEE.

Supreme Court of Wisconsin.

Dec. 10, 1912.

Error to Circuit Court, Milwaukee County; Orren T. Williams, Judge.

Otto Maercker was convicted of violating an ordinance of the City of Milwaukee, and he brings error. Affirmed.

This is a writ of error to the municipal court of Milwaukee county to review a judgment of that court. The plaintiff in error was found guilty of violating section 1 of an ordinance of the city of Milwaukee and sentenced to pay a penalty of $25 and costs. The ordinance prohibits the rendering of any animal or animal matter within the limits of the city of Milwaukee and within a distance of four miles therefrom, “except where the product when rendered is to be used for human food, and excepting the fresh material from animals, slaughtered on the premises where rendered.” The ordinance also provides that the Milwaukee, Menominee, and Kinnickinnic rivers with their branches, to the outer limits of the county of Milwaukee, and all canals connected with said rivers together with the lands adjacent to said rivers and canals, or within 100 rods thereof, shall be deemed to be within the jurisdiction of the city. Section 2 of this ordinance provides a penalty by fine of not less than $25 nor more than $200 for each offense, and that each and every day upon which any such rendering shall be done shall be a separate offense. A demurrer was interposed to the amended complaint and overruled, and defendant pleaded not guilty. Objection was made to any evidence under the complaint upon the ground that it does not show on its face that defendant violated any ordinance of the city of Milwaukee, and that the common council had no power to pass the ordinance. At the close of the evidence counsel for plaintiff in error moved for discharge on several grounds, which motion was denied. The following verdict was rendered:

“(1) Q. Did the defendant on August 12, 1911, at his place of business on Vogel's Island, on Canal street, in the city of Milwaukee, render about 10,000 pounds of animal matter known as meat market scraps or offal, collected from meat markets within the city of Milwaukee, not to be used for human food, and not from animals killed on the premises? A. Yes.

(2) Q. Do you find the defendant, Otto Maercker, guilty or not guilty of a violation of the ordinance on August 12, 1911, as charged in the complaint? A. Guilty.

(3) Q. Did the business of rendering the class, amount, and condition of material such as rendered by the defendant on the 12th day of August, 1911, within the limits of the city of Milwaukee, on Vogel's Island, and upon a slip or branch of the Menominee river opening into said river, create a public nuisance? A. No.

(4) Q. Was there, with relation to the public health, comfort, and welfare of the citizens of Milwaukee, a material difference in fact between the rendering of a like amount of fresh material taken from animals slaughtered on the premises where rendered, and the rendering of a like amount of such material as was rendered by the defendant known as meat market scraps or offal, on the 12th day of August, 1911? A. No.

(5) Q. Did the rendering of the class and condition of material such as was rendered by the defendant on August 12, 1911, materially interfere with the public health, comfort, and convenience of the citizens of Milwaukee? A. No.”

Lenicheck, Robinson, Fairchild & Boesel, of Milwaukee, for plaintiff in error.

Daniel W. Hoan, City Atty., and E. L. McIntyre, Sp. Asst. City Atty., both of Milwaukee, for defendant in error.

KERWIN, J. (after stating the facts as above).

The plaintiff in error, hereinafter called the defendant, was convicted below of violating an ordinance of the city of Milwaukee, and brings the judgment here for review by writ of error.

The conviction was under an ordinance prohibiting the rendering of any animal or animal matter within the limits of the city of Milwaukee and within four miles therefrom, subject to certain exceptions. The main contention of the defendant is that the ordinance on which the proceedings are based is invalid, because it creates an unjust, unreasonable classification, and is discriminatory.

Under this head counsel for defendant cites us to the following authorities: State ex rel. Garrabad v. Dering, 84 Wis. 585, 54 N. W. 1104, 19 L. R. A. 858, 36 Am. St. Rep. 948;Crowley v. West, 52 La. Ann. 526, 27 South. 53, 47 L. R. A. 652, 78 Am. St. Rep. 355;People v. Wilber, 198 N. Y. 1, 90 N. E. 1140, 27 L. R. A. (N. S.) 357, 19 Ann. Cas. 626;Bear v. Cedar Rapids, 147 Iowa, 341, 126 N. W. 324, 27 L. R. A. (N. S.) 1150; New Hampshire v. Pennoyer, 65 N. H. 113, 18 Atl. 878, 5 L. R. A. 709;Fulton v. Norteman, 60 W. Va. 562, 55 S. E. 658, 9 L. R. A. (N. S.) 1196;State v. Whitcom, 122 Wis. 110, 99 N. W. 468;Simrall v. Covington, 90 Ky. 444, 14 S. W. 369, 9 L. R. A. 556, 29 Am. St. Rep. 398;Kosciusko v. Slomberg, 68 Miss. 469, 9 South. 297, 12 L. R. A. 528, 24 Am. St. Rep. 281;Hudson v. Thorne, 7 Paige (N. Y.) 261;State v. Miksicek, 225 Mo. 561, 125 S. W. 507, 135 Am. St. Rep. 597;Servonitz v. State, 133 Wis. 231, 113 N. W. 277, 126 Am. St. Rep. 955. An examination of the foregoing cases cited by counsel for defendant will show that they turn mainly upon the question of classification, and some involve the questions of reasonableness, conflict with charter provisions, statutes, and general principles of the common law and Constitutions, state and federal.

An examination of the ordinance under consideration will show that the question here is one of classification only. If the classification can be sustained, the ordinance is valid. The part of the ordinance attacked as void is as follows: “Section 1. The rendering of any animal or animal matter, except where the product when rendered is to be used for human food, and excepting the fresh material from animals slaughtered on the premises where rendered, is hereby prohibited within the limits of the city of Milwaukee and within a distance of four miles therefrom. * * *”

There is no question about the authority of the common council of the city of Milwaukee to regulate the subject under consideration. Express authority is conferred by the Legislature. Section 3, c. 4, Milwaukee Charter 1905. After the general enumeration of powers of the common council, subdivision 7, sec. 3, c. 4, provides: “To direct the location and management of, and regulate breweries, tanneries, packing houses, livery stables, and sale stables; and to direct the location, management and construction of, and regulate, license, restrain, abate or prohibit within the city, and the distance of four miles therefrom,distilleries, slaughtering establishments, establishments for steaming or rendering lard, tallow, offal, and such other substances as can or may be rendered, soap factories, and all establishments or places where any nauseous, offensive or unwholesome business may be carried on; provided, that for the purpose of this section the Milwaukee, Menominee and Kinnickinnic rivers, with their branches, to the outer limits of the county of Milwaukee, and all canals connected with said rivers, together with the lands adjacent to said rivers and canals, or within one hundred rods thereof, shall be deemed to be within the jurisdiction of the city.”

It will be seen from the foregoing provisions of the charter that express authority is delegated to the city to “license, restrain, abate or prohibit within the city, * * * slaughtering establishments, establishments for steaming or rendering lard, tallow, offal, and such other substances as can or may be rendered. * * *”

[1] The city having express authority to pass an ordinance regulating or prohibiting rendering within the city, the question arises whether the classification is valid. It is well established by the decisions of this court that the policy of classification, subject to constitutional limitations, is within legislative discretion. Servonitz v. State, 133 Wis. 231, 113 N. W. 277, 126 Am. St. Rep. 955;State v. Evans, 130 Wis. 381, 110 N. W. 241;State ex rel. Kellogg v. Currens et al., 111 Wis. 431, 87 N. W. 561, 56 L. R. A. 252. In Servonitz v. State, supra, the court, said, at page 239 of 133 Wis., on page 280 of 113 N. W., 126 Am. St. Rep. 955: “In considering the subject we must bear in mind that the policy of classification is a matter wholly within legislative discretion, and that whether there is room for the classification made in any given case is primarily a legislative question and can never become a judicial one except for the purpose of determining, in any given situation, whether legislative action passed the boundaries of reason; reasonable doubts to be resolved in the negative.”

[2] Legislative authority having been delegated to the city to deal with the subject within the field of regulation, the question arises whether it exceeded legislative bounds as regards classification. In Bartlett v. Eau Claire County, 112 Wis. 237, at page 247, 88 N. W. 61, at page 64, this court said: “Nevertheless, the very fact of delegation of Legislative power to regulate carries an implication that there is a considerable field for legislative discretion within which the depository is not subject to judicial review. Only when the just bounds of that field are clearly exceeded will courts deny validity to the legislation.” See, also, on this point, Bonnett v. Vallier, 136 Wis. 193, 116 N. W. 885, 17 L. R. A. (N. S.) 486, 128 Am. St. Rep. 1061;La Pointe v. O'Malley, 47 Wis. 332, 2 N. W. 632;Borgnis v. Falk, 147 Wis. 327, 133 N. W. 209, 37 L. R. A. (N. S.) 489.

[3] The general rule governing proper classification has often been laid down by this court. The classification must be germane to the purpose of the law. It must not be based upon existing circumstances only, or so constituted as to preclude additions to the number included within a class, and the law must apply equally to each member of the...