Smith v. City of Brookfield

• Decision Date: 07 February 1956
• Parties: Melvin W. SMITH, as adm'r etc., et al., Respondents, v. CITY OF BROOKFIELD, a municipal corporation, Appellant, James D'Amato, District Attorney, Waukesha Co., Defendant.
• Court: Wisconsin Supreme Court

Page 770

74 N.W.2d 770

272 Wis. 1

Melvin W. SMITH, as adm'r etc., et al., Respondents, v. CITY OF BROOKFIELD, a municipal corporation, Appellant, James D'Amato, District Attorney, Waukesha Co., Defendant.

Supreme Court of Wisconsin.

Feb. 7, 1956.

Rehearing Denied April 3, 1956.

Action commenced by plaintiffs Melvin W. Smith, as administrator of the estates of Emery W. Smith and Louella E. Smith, deceased, and Melvin W. Smith, individually, and Shirley M. Alles, against defendants City of Brookfield, a municipal corporation, and James D'Amato, district attorney for Waukesha county, to enjoin said defendants from enforcing the provisions of a zoning ordinance of the city of Brookfield and to declare certain provisions of said ordinance to be null and void. After issue was joined, defendants were permitted to file a supplemental answer to which plaintiffs demurred. From the order sustaining the demurrer and from the judgment in favor of the plaintiffs, defendants appeal.

The facts will be stated in the opinion.

Richard W. Cutler, T. L. Tolan, Jr., Wood, Warner, Tyrrell & Bruce, Milwaukee, for appellant.

Love, Davis & McCraw, Waukesha, for respondent.

Lowry & Hunter, Waukesha, amicus curiae.

MARTIN, Justice.

The zoning ordinance involved, originally adopted by the Town of Brookfield and later adopted by the City of Brookfield when the area involved in this litigation was incorporated within the city in 1954, provides in part:

'Whereas, the Town Board of Supervisors of the Town of Brookfield deem it necessary in order to provide adequate light, pure air, and safety from fire and other dangers, to conserve the taxable value of land and buildings throughout the township, to avoid congestion in the public streets and highways and to promote the public health, safety, comfort, morals, and welfare, all in accordance with a comprehensive zoning plan; now, therefore,

'Be It Ordained by the Town Board of Supervisors of the Town of Brookfield, Waukesha County, Wisconsin.

'Zoning

* * *

* * *

'Section 7. Agricultural District.

'(a) Use regulations * * * In Agricultural Districts no buildings or lands shall be used and no building shall be hereafter erected or altered except for one or more of the following uses: * * *

'4. For uses enumerated below, providing the location and plan of operation have been submitted to and approved by the board of appeals after recommendation of the planning commission and after public hearings in the matter: Cemeteries and mausoleums for the burial of human remains only, quarries, sand and gravel pits, riding academies, golf courses, air ports, nurseries, green houses, camps and other similar semi-public uses, as well as uses enumerated in Section 60.09 under Public Buildings.'

In August of 1953, after the adoption of this ordinance, respondents began operating a commercial sand and gravel pit in an area zoned as agricultural, without first applying for a permit under the ordinance.

The primary question raised on the appeal is whether sec. 7(a) 4 of said ordinance is unconstitutional on the ground that it establishes insufficient guides with which to judge an application for a permit to conduct a gravel pit operation in an agricultural district in the City of Brookfield.

The trial court held:

'There are no rules or regulations in the ordinance defining the extent or limitations of the use so as to protect the lawful rights of the user, and, therefore, the granting of the petition is left to the discretion of the Board of Appeals after a public hearing. As a result the Board of Appeals can be swerved by outside influences not germane to the issue and to the damage of the user, and, therefore, Section 7 Subsection 4, of the said ordinance is unconstitutional.'

That courts will presume in favor of the constitutionality of a statute is so elementary as to require no citation of authority. As to ordinances:

'A zoning ordinance is presumed to be valid and he who asserts its invalidity must 'establish his claim,' La Crosse v. Elbertson [205 Wis. 207, 237 N.W. 99]; 'must make the fact of its invalidity clearly appear,' State ex rel. Newman v. Pagels, 212 Wis. 475 , 250 N.W. 430, 432 * * *.' Geisenfeld v. Shorewood, 1939, 232 Wis. 410, 416, 287 N.W. 683, 685.

Sec. 7(a) 4 of the ordinance requires that before certain enumerated uses (including sand and gravel pits) may be made of the property 'the location and plan of operation' shall be submitted to the board of appeals for approval. Respondents contend this requirement means nothing, provides no standards or guides for the board in the issuance or denial of permits for such use. It is apparent, however, from a reading of the preamble setting forth the purposes of the ordinance--to conserve taxable values of land, avoid congestion in the streets, promote public health, safety, etc.--that the facts submitted to the board in the 'location and plan of operation' are to be considered from the standpoint of whether or not they are consistent with those declared purposes. Moreover, sec. 16 of the ordinance provides that it shall be interpreted and applied as establishing the minimum requirements for the protection of public health, safety and welfare.

Respondents contend that reference may not be had to the preamble as an aid in construing sec. 7(a) 4. It is true that the preamble of a statute cannot enlarge its scope and operation, Pulis v. Dearing, 1858, 7 Wis. *221, but it may be considered in determining the intent of the act.

As stated in 6 McQuillin, Municipal Corporations (3rd ed.) sec. 20.59, p. 141:

'Notwithstanding the English rule that the title cannot be resorted to in construing an enactment, it has been recognized from an early date in this country that the title and preamble of an ordinance or statute may be considered in construing it.'

In construing a statute or ordinance its intent must be derived from the act as a whole. Maloney v. Industrial Comm., 1943, 242 Wis. 165, 7 N.W.2d 580, 9 N.W.2d 623.

Again, in McQuillin, supra, sec. 20.54, p. 132, it is stated:

'An ordinance must be construed as an entirety, and the legislative intention that is contained within it must be determined accordingly, and not from a part thereof. As sometimes stated: 'Legislative intent must be gathered from the four corners of the ordinance, and, if lawful, given effect by the courts.' 'It is an established rule in the exposition of statutes that the intention of the lawgiver is to be deduced from a view of the whole and every part of a statute, taken and compared together. The real intention, when accurately ascertained, will always prevail over the literal sense of terms.' Hence, provisions of an ordinance are to be read and construed in the light of the whole ordinance, to the end of resolving, if possible, any doubt or conflict in meaning.'

Respondents would have us interpret sec. 7(a) 4 without any thought of the purposes this ordinance is intended to accomplish, as set out in the preamble and sec. 16. This view we cannot adopt. Every authority on the subject holds that the preamble can and should be used as an aid in the construction of a statute or ordinance.

In Nazro v. Merchants' Mutual Insurance Company, 1861, 14 Wis. *295, 298, this court held:

'Legislative enactments are not to be defeated on account of mistakes, errors or omissions, any more than other writings, provided the intention of the legislature can be collected from the whole statute. If the mistake renders the intention doubtful, we may look to the title and preamble, as well as the body or purview of the act, for assistance in arriving at it; and not until all these fail can the act be held inoperative.'

Again, in Bloch v. American Ins. Co., 1907, 132 Wis. 150, 164, 112 N.W. 45, 49, this court stated:

'The title and preamble of the act may be considered if the meaning of the act is doubtful (Nazro v. Merchants' Mut. Ins. Co., 14 Wis. 295; Mundt v. Sheboygan & F. R. Co., 31 Wis. 451), at least for the purpose of discovering the scope and purpose of the statute from the mischiefs which are to be remedied and the objects to be accomplished by its provisions. Pulis v. Dearing, 7 Wis. 221.'

May the preamble be resorted to in a situation, as in the instant case, to provide limits and guides to the discretion to be exercised by the zoning board of appeals? In other words, where there is no patent ambiguity in the enacting clause of an ordinance, may the preamble be resorted to in order to save the constitutionality of the ordinance? We concede that to do so gives greater effect to the preamble than this court has previously done in any of our prior decisions. However, we consider such result to be in accord with the better reasoned authorities on the subject.

2 Sutherland, Statutory Construction, (3d ed.), p. 349, sec. 4804, states:

'More accurate interpretations will be achieved if the preamble is considered the same as the enacted part of the law and the 'whole act' manner of interpretation is followed.'

Further, the same author, at p. 352, sec. 4808, of the same volume, states:

'Although the preamble has been in disuse for many years there is a modern tendency to use it or a policy section to explain the basis for legislative action on the theory that it will assist in the establishment of the constitutionality of the act. The preamble is useful in constitutional litigation where it is alleged that the act, (1) conflicts with specific constitutional prohibitions, and (2) where the act is alleged to be unreasonable and arbitrary.' (Emphasis supplied.)

In a note entitled 'Legal Effect of Preambles--Statutes,' in 41 Cornell Law Quarterly, pp. 134, 137, the author states:

'But where the enacting clause is sufficiently broad, the preamble may be employed by the court to restrict its meaning and application, especially in a case where it otherwise might be held unconstitutional.'

Applying these principles to the ordinance before us for construction, we...