Menzer v. Village of Elkhart Lake

• Decision Date: 04 May 1971
• Docket Number: No. 95,95
• Citation: 186 N.W.2d 290,51 Wis.2d 70
• Parties: Henry MENZER, Plaintiff-Appellant, v. VILLAGE OF ELKHART LAKE et al., Defendants-Respondents, State of Wisconsin, Intervening Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 290

186 N.W.2d 290

51 Wis.2d 70

Henry MENZER, Plaintiff-Appellant, v. VILLAGE OF ELKHART LAKE et al., Defendants-Respondents State of Wisconsin, Intervening Defendant-Respondent.

No. 95.

Supreme Court of Wisconsin.

May 4, 1971.

Rehearing Denied June 25, 1971.

The plaintiff-appellant, as a property owner in the town of Rhine and the owner of a power boat, commenced an action on July 10, 1969, for a declaratory judgment declaring invalid an ordinance prohibiting the use of power boats on Elkhart Lake during the hours of 12:01 a.m. to midnight on Sundays from the second Sunday in June to the third Sunday in September.

On September 25, 1969, the plaintiff made a motion for summary judgment. On the same day, the State of Wisconsin moved to be made a party defendant. The state's motion was granted on October 10, 1969. On February 23, 1970, the plaintiff's motion for summary judgment was denied. Plaintiff appeals.

Brady, Tyrrell, Cotter & Cutler, Milwaukee, Richard W. Cutler, Samuel J. Recht and Michael J. Spector, Milwaukee, of counsel, for appellant.

Holden, Halvorsen & Bjork, Sheboygan, Peter A. Bjork, Sheboygan, of counsel, for defendants-respondents.

Robert W. Warren, Atty. Gen., Robert B. McConnell, Asst. Atty. Gen., Madison for intervening defendants-respondents.

ROBERT W. HANSEN, Justice.

This lawsuit involves two identical ordinances, one state statute and all lakes in Wisconsin.

THE LAKES. The lake here involved is Elkhart Lake, a 300-acre body of water in Sheboygan county, lying entirely within the limits of the town of Rhine and village of Elkhart Lake. However, the legal issues raised relate to all lakes, ranging in size from the millpond in Neosho to Lake Winnebago. Actually, discussion of issues raised begins with asking, what in law is a lake? Appellant stresses a lake being a navigable body of water, seeing a prohibition of power boating as the equivalent of banning horseless carriages from a highway to prevent interference with its use by horse-drawn vehicles. Respondents stress the lake as a recreational area and place for 'enjoyment of natural scenic beauty.' With this emphasis, the ordinance becomes an effort to deal with 'the competition of conflicting uses for a body of water.' Like the blind men of Ind in the fable, each of whom described an elephant in terms of the portion of the animal he had encountered, neither is wrong, but neither gives the full picture. Actually a lake is many things to many people. The totality of its preciousness as a public asset or state resource is not caught in the uses to which it is put--swimming, fishing, boating (canoeing, rowboating, sailboating, power boating), skin diving, resting, relaxing, just looking and enjoying the view. While all users may concur in not wanting a lake to become an open sewer, the public concern and interest in preventing pollution goes beyond the accommodation of users, actual or potential. It extends to what is reasonable in the preservation or restoration of a lake as a valuable natural resource of a state and its people.

THE STATUTE. The statute, sec. 30.77, Stats., provides, in pertinent part, that no municipality may: '* * * Except as provided in subs. (2) and (3), enact any local regulations which in any manner excludes any boat from the free use of the waters of this state or which pertains to the use, operation or equipment of boats * * *.' The two subsections, noted as exceptions to the ban on local regulations as to boating, read as follows:

'(2) Ordinances conforming to state law. Any municipality may enact ordinances which are in strict conformity with ss. 30.50 to 30.71 or rules of the department enacted pursuant thereto.

'(3) Local regulations. (a) Any town, village or city may, in the interest of public health or safety, adopt local regulations not contrary to or inconsistent with this chapter, relative to the equipment, use or operation of boats or relative to any activity regulated by ss. 30.60 to 30.71, but no such local regulation which in any manner pertains to the equipment, use or operation of a boat on an inland lake is valid unless all towns, cities and villages having jurisdiction on the waters of the lake have enacted an identical local regulation. * * *' THE ORDINANCES. The village of Elkhart Lake and the town of Rhine enacted identical ordinances providing:

'no power boating on Elkhart Lake, during the hours of 12.01 a.m. to midnight on Sundays, beginning the second Sunday in June and ending the third Sunday in September, each year.'

THE DELEGATION. The first question is whether subsec. (3) is limited by subsec. (2) or delegates an area for local action beyond enactment of ordinances which are in strict conformity with secs. 30.50 to 37.71, Stats., or commission rules enacted pursuant thereto. There would be neither point nor purpose to having subsec. (3) at all if it were limited by the subsection which precedes it. Each is a boat that sails on its own bottom. Indeed the jurisdictional requirement in subsec. (3) that all towns, cities and villages having jurisdiction of a lake enact identical local regulations reveals a legislative realization that differing regulations might be enacted by the various municipalities bordering upon a lake. We read subsec. (3) as it is written to confer upon any 'town, village or city' the power to adopt local regulations 'relative to the * * * use or operation of boats,' requiring only that such local ordinance be: (1) A 'local regulation;' (2) 'not contrary to or inconsistent' with ch. 30 of the state statutes; and (3) be 'in the interest of public health or safety.' These are the three tests to be met in evaluating an ordinance enacted under subsec. (3).

'LOCAL REGULATION.' The position of appellant is that the ordinance here involved cannot be held to be a 'local regulation' because it is in an area of state-wide concern. ¹ Once established that a local ordinance related to a lake, the contention is: it is invalid as being in an area that can only be regulated by the state or an agency of statewide jurisdiction. In the emerging development of a comprehensive public action program against polluted lakes and waters, this would find a constitutional bar to the delegation of any area or share of authority or responsibility to local units of government. Principal reliance for this contention is upon the Muench case, ² and the reference in it to the '* * * right to fish and hunt, or to enjoy scenic beauty, as an incident to the right to navigate the navigable waters of this state * * *' as an example of the type of legislation '* * * which affects the interests of the people of the entire state * * *.' ³

The Muench case dealt with the legislative powers conferrable upon county boards under the applicable constitutional provision. ⁴ The legislature had by statute provided that, if the county board of the county in which a dam was proposed to be built voted to approve the construction, the public service commission could not deny a permit to build the dam on the grounds that the construction of such dam would violate the public right to fishing, hunting or enjoyment of scenic beauty. The doctrine of 'paramount interest' was developed in Muench to prevent '* * * the impairment or the destruction of hunting, or fishing, or the right to enjoy scenic beauty on that part of a particular navigable stream lying within the limits of a county * * *.' ⁵ However, it is a sweeping application of the 'paramount interest' doctrine to find in it a holding with respect to navigable waters, that there is no room left for local action limited to health and safety or similar pressing matters of public concern. Rejecting the claim of a blanket prohibition of any local action as to lakes, claimed to be in Muench, the trial court noted the delegation of legislative authority in this area over a period of years. ⁶ Additionally, the trial court found delegation of authority evidenced in the committee report, a detailed study of boating regulations from which sec. 30.77, Stats., was prepared and recommended for passage. ⁷ Additionally, the trial court noted that a determination by the legislature of what is a local affair, is to be accorded great weight, and this court has so held. ⁸ We agree as to the applicability of the rules of construction relied upon by the trial court, but would go further. We would hold Muench to its facts, a situation where the authority delegated was that of vetoing state action furthering the right to fish, hunt and enjoy the scenic beauty. We see a distinction between assigning a right to block advancement of paramount interests, and the delegation of a limited authority or responsibility to further proper public interests. The purpose of the delegation as well as the area of concern in which it is made appear relevant and material on the issue of whether delegation of state authority to local municipalities is proper or permissible.

Appellant cites the Tolzmann case ⁹ where this court invalidated an ordinance requiring an annual license fee for boats operating within the city's jurisdiction. However, we view Tolzmann as far from helpful. In Tolzmann, the city had not the delegated authority, express or implied, to charge a fee for the use of the lake. In Tolzmann, a municipal safety ordinance requiring a certain number of life preservers in a boat was upheld. This clearly upheld a local safety regulation, applicable to boaters on a lake, as validly enacted under a constitutional legislative delegation of state authority.

'INCONSISTENT WITH * * *' The second test for a local ordinance enacted pursuant to sec. 30.77(3), Stats., is that it be '* * * not contrary to or inconsistent with this chapter, relative to the equipment, use or operation of boats or relative to any activity regulated by ss. 30.60 to 30.71 * * *.' Appellant argues that since ch. 30 does not exclude any boat from any waters of this state because of its size, weight,...