State ex rel. O'Neil v. Town of Hallie

• Decision Date: 02 April 1963
• Citation: 19 Wis.2d 558,120 N.W.2d 641
• Parties: STATE ex rel. Robert O'NEIL, Appellant, v. TOWN OF HALLIE et al., Respondents.
• Court: Wisconsin Supreme Court

Page 641

120 N.W.2d 641

19 Wis.2d 558

STATE ex rel. Robert O'NEIL, Appellant, v. TOWN OF HALLIE et al., Respondents.

Supreme Court of Wisconsin.

April 2, 1963.

Aberg, Bell, Blake, & Metzner, Madison, for appellant.

Wiley & Devine, Chippewa Falls, for respondents.

DIETERICH, Justice.

The town of Hallie is located between the cities of Eau Claire and Chippewa Falls in Chippewa county. A four lane divided highway (State Highway 53) connecting these two cities runs through the town. Zoning of the town is controlled by a Chippewa county ordinance. Sec. 59.97, Stats.

On May 7, 1960, O'Neil entered into an agreement to purchase 22 acres of land on Highway 53 in the town of Hallie. At that time the land was zoned for agricultural use. In June of 1960, O'Neil hired Richard H. Jann, an engineer, to prepare a topographic survey and map of the land, a survey of the land and a plat of the survey. The property was rezoned from agricultural to commercial in November of 1960, by the Chippewa county board. O'Neil contracted for engineering plans for an outdoor theater by Davel & Kohlbeck Engineering Company in January of 1961. The plans were approved by the industrial commission of Wisconsin on April 5, 1961.

O'Neil's property is located across the highway from a fruit stand, it is adjacent to that of a construction contractor to the northeast and within approximately one block of the O'Neil property there is a garage and a go-cart track. Two sides of the O'Neil property adjoin the property on which Gower grade school is located. This school has four classrooms and is a part of the city of Chippewa Falls school system.

O'Neil by his attorney requested a license for an outdoor theater at the April 1, 1961, meeting of the town board of Hallie. The matter was taken under advisement until the ordinance relating to the licensing of theaters could be found. At the meeting of April 21, 1961, the town board discussed a new ordinance relative to outdoor theaters.

The record discloses that the only town ordinance adopted by the town of Hallie, which was in effect on April 1, 1961, reads as follows:

'Section One. It shall be unlawful for any person, firm or corporation to engage in or follow in the town of Hallie, any business or occupation without having a license therefore, as hereinafter provided. The fee for each license shall be the amount named after the name of the enterprise or occupation.

'1. Circuses and Animal Shows. Exhibiting a combined circus and menagerie or trained animal show, with more than one ring or a smaller tent show or combined tent show and amusement devices, * * *

'2. Amusement Exhibition and Devices Without Circus or Animal Show. Operating amusement devices, rides and such forms of entertainment by the use of mechanical means * * *

'3. Theaters. Conducting or managing a theater, moving picture house, hall or area for the purpose of exhibiting movies, place of such entertainment $200 per year for each theater or area operated.

'Section Two. Licenses on an annual basis, shall end at midnight on the 31st day of December of each year; licenses for one month shall end on the last day of each month; licenses for a week shall end on the last day of each week; licenses for one day shall end at midnight on the day for which they are issued.

'Section Three. The town clerk shall have the power to issue licenses between meetings of the town board, which licenses shall be subject to any action the town board shall take at the next meeting of the board. All licenses shall be signed by the town clerk and issued only after payment of the fee has been received.

'Section Four. The town clerk to report the issuance of licenses at each meeting of the town board. Licenses issued by the clerk shall remain in effect until affirmed by the town board, and after affirmation by the town board shall continue to remain in effect. The town board may, for cause, revoke any license issued by the town clerk, or any license which has been issued by the town clerk and affirmed by the town board, but such action shall be taken, only after three days notice in writing to the licensee, of the time and place where he may be heard.

'Section Five. The town board in session may receive applications for such licenses and act thereon without previous action by the town clerk. The town clerk may, if he shall deem wise, refuse to grant a license under this ordinance, until the application has been presented to the town board.

'Section Six. Licenses prohibited. No license shall be issued for any indecent or immoral amusement or when there is reason to believe that the amusement devices operated, the entertainment or the business is not conducive to the safety, health or morals of the public.

'Section 7. Any person or corporation violating any of the provisions of this ordinance, shall be subject to a forfeiture of $50 for each day he or it operates a business or occupation within the town, without first having obtained a license as it is required by this ordinance. In case of failure to pay said forfeiture, the person or persons in violation whereof, will be confied in the county jail for a period not to exceed thirty days, or until such forfeiture is paid. In case the penalties set out herein are assessed in court, costs shall be taxed against the defendant * * *'

At some time during April, 1961, pursuant to Section one, sub. (3), of the zoning ordinance, O'Neil's attorney gave his personal check for $200 to the town clerk to cover the license fee for an outdoor theater.

On May 6, 1961, O'Neil appeared in person and submitted to the town board a petition for a license to operate an outdoor theater on his property. The town board voted unanimously against granting the license.

O'Neil petitioned the county court of Chippewa county for an alternative writ of mandamus commanding the town board of Hallie to issue him a license to operate an outdoor movie theater. An alternative writ of mandamus was issued. The return to the alternative writ of mandamus gave the following reasons for refusing to issue O'Neil a license to operate an outdoor theater:

'6. Defendants allege that the town of Hallie has, according to the 1960 census, 2,530 inhabitants and there is no police protection other than one elected constable, who is not on regular duty, and is only subject to call for the purposes set out in the statutes and that the only regular police protection available is the sheriff of Chippewa county, who has but one full time deputy in a county of 45,096 people according to the 1960 census.

'7. Further, that there is now operating in the town of Hallie one outdoor theater, which has been operating since 1952, and has more capacity for accommodating persons and automobiles than ever has been used.

'8. Further, that it has been the experience of this board that the outdoor theaters are largely attended by young people, including a high percentage of teenagers and operate without restrictions as to hours and types of productions shown and thereby creates a welfare and morals problem, which the town has no facilities to handle. It is common knowledge, based on frequent complaints, which the town board has received from parents and other interested citizens, that young people, because of the convenience and privacy of the automobile, bring beer and intoxicants to the outdoor theater under circumstances which are beyond the power of the town board to control.

'9. Further, it has been the experience of the town board that the roads and highways in the environs of an outdoor theater are covered with litter and debris far in excess of other areas of the town, and it is the considered opinion of the town board that one outdoor theater in a town, such as the town of Hallie, situated between the metropolitan areas of Eau Claire and Chippewa Falls, is the maximum that should be allowed in the town due to noise, distractions, traffic conditions, considering the lack of police protection and control in rural areas.

'10. That due to the fact that the proposed location for an outdoor theater is adjacent to the Gower School, a grade school, part of Chippewa Falls District No. 1, that such is an undesirable location for a theater.

'11. Further, on information and belief, after petitioner appeared at the town board meeting, the impression was given that this application was not made, bonafide, for purpose of building an outdoor theater, but in fact, for bargaining purposes to force down the value of the present outdoor theater in the town of Hallie, and force a sale at a price which would greatly depreciate values in the area as petitioner knows, or should know, that two such theaters in the town of Hallie are economically unsound and neither could operate at a profit and hence would lead to all type of practices, such as, fire works, noise and various special attractions attempting to gain a larger participation of the public at the theater, all of which is respectfully submitted in justification of the failure of the town board to...