State ex rel. Wisconsin Lutheran High School Conference v. Sinar

• Decision Date: 08 June 1954
• Citation: 65 N.W.2d 43,267 Wis. 91
• Parties: STATE ex rel. WISCONSIN LUTHERAN HIGH SCHOOL CONFERENCE, v. SINAR et al.
• Court: Wisconsin Supreme Court

Page 43

65 N.W.2d 43

267 Wis. 91

STATE ex rel. WISCONSIN LUTHERAN HIGH SCHOOL CONFERENCE, v. SINAR et al.

Supreme Court of Wisconsin.

June 8, 1954.

Dissenting Opinion June 18, 1954.

Rehearing Denied Oct. 5, 1954.

Action in mandamus brought by plaintiff-respondent which is a private, non-profit corporation and, for the purposes of this opinion, is an owner of land in a class 'A' residence zone of the city of Wauwatosa. Its action sought to compel the defendant-appellant Sinar, as building inspector of the city, to issue a permit for the construction of plaintiff's private high school with appurtenant athletic grounds and facilities. The building inspector had previously denied an application for such permit on the ground that the proposed use of the premises is not allowed by the zoning law of the city of Wauwatosa which he has the duty to administer. He filed a motion to quash the alternative writ and, after hearing, the motion was denied by Otto H. Breidenbach, circuit judge, but with leave to file a return to the writ, which was done. In the meantime, E. L. Vanderjagt, a Wauwatosa resident, property owner and taxpayer, was interpleaded and filed an answer to plaintiff's petition. Plaintiff interposed a general demurrer to both the return and the answer.

After a hearing the demurrers were sustained and an order entered directing the entry of judgment and the issuance of a peremptory writ of mandamus. Judgment was entered and the writ issued but execution stayed pending appeal. Defendants appeal from the order denying the motion to quash, the order sustaining the demurrers, and from the judgment entered and docketed on the 10th day of December, 1953. At present there is no high school, public or private, in the class 'A' residence zone.

Other material facts will be stated in the opinion. For convenience the arguments advanced by the defendants severally will be treated as though made jointly.

Herbert L. Mount, Milwaukee, for Sid H. Sinar.

Bender, Trump, McIntyr, Trimborn & Godfrey, Milwaukee, for Vanderjagt.

Von Briesen & Von Briesen, C. R. Dineen, and Richard J. McGinn, Milwaukee, for respondent.

BROWN, Justice.

Ch. 62, Stats., is the General Charter Law for the government of cities below the first class. The city of Wauwatosa is a city of the third class and is subject to ch. 62. Sec. 62.23(7), subsections (a), (b) and (c) grants to cities the power to zone their areas, as follows:

'(a) Grant of power. For the purpose of promoting health, safety, morals or the general welfare of the community, the council may by ordinance regulate and restrict the height, number of stories and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts and other open spaces, the density of population, and the location and use of buildings, structures and land for trade, industry, residence or other purposes provided that there shall be no discrimination against temporary structures. This subsection and any ordinance, resolution or regulation, heretofore or hereafter enacted or adopted pursuant thereto, shall be liberally construed in favor of the city and as minimum requirements adopted for the purposes stated. It shall not be deemed limitation of any power elsewhere granted.

'(b) Districts. For any and all of said purposes the council may divide the city into districts of such number, shape, and area as may be deemed best suited to carry out the purposes of this section; and within such districts it may regulate and restrict the erection, construction, reconstruction, alteration or use of buildings, structures or land. All such regulations shall be uniform for each class or kind of buildings and for the use of land throughout each district, but the regulations in one district may differ from those in other districts.

'(c) Purposes in view. Such regulations shall be made in accordance with a comprehensive plan and designed to lessen congestion in the streets; to secure safety from fire, panic and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sewerage, schools, parks and other public requirements. Such regulations shall be made with reasonable consideration, among other things, of the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such city.'

Pursuant to this authority the common council of Wauwatosa adopted a zoning ordinance whose provisions, material to this action, are as follows:

'5. That Section 14.03(1) of said Zoning Code defines 'A' Residence District Regulations as follows:

'(1) Use: No building or premises shall be used and no building shall be hereafter erected or altered within any 'A' Residence District, unless otherwise provided in this ordinance, except for the following uses:

'(a) Single Family Dwellings.

* * *

* * *

'(e) Public Schools and Private Elementary Schools.'

The constitutionality of the general power of the state to zone property in the public interest is well established. It is a police power and it may be delegated by the state to the cities. State ex rel. Tingley v. Gurda, 1932, 209 Wis. 63, 243 N.W. 317; State ex rel. Carter v. Harper, 1923, 182 Wis. 148, 196 N.W. 451, 33 A.L.R. 269. Like other examples of regulation under the police power, a specific zoning ordinance must meet the constitutional demands of due process and the equal protection of the law. It must '* * * provide those in similar circumstances, among whom no reasonable basis for distinction exists, with equal protection of the law, as is constitutionally required of all ordinances as well as statutes. * * *' McQuillin, Municipal Corporations, 3d Ed., Sec. 25.61.

Reference to sec. 14.03(1)(e) of the ordinance discloses that the erection of public high schools is permitted and the erection of private schools above the elementary rank is forbidden in the 'A' residence district. The defendant inspector relied on this prohibition in refusing to issue a building permit to the plaintiff.

The power to zone is granted to cities in order to promote the 'health, safety, morals or the general welfare of the community'. Sec. 62.23(7)(a), Stats., supra. We have recognized that the term 'general welfare' includes considerations of public convenience, and general prosperity. State ex rel. Carter v. Harper, supra. The means adopted to promote these ends must, of course, bear a reasonable relation to the declared purpose. Id., 182 Wis. at page 152, 196 N.W. 451; Nectow v. City of Cambridge, 277 U.S. 183, 48 S.Ct. 447, 72 L.Ed. 842. Appellants have made it abundantly clear that respondent's projected school has many features which seriously impair the social and economic benefits to the entire community which the zoning law is designed to preserve and promote. It will add to the congestion of the surrounding streets. Athletic events will bring noisy crowds and if the contests are held at night, there will be bright lights to interfere with the peace and comfort of the neighborhood. The school property will be taken from the tax roll, thus increasing the financial burden of the city's taxpayers. The presence of the school will lessen the taxable value of nearby homes and will deter the building of new homes in the area. Other detriments are easily thought of. But, as respondent points out, each such discordant feature attends the presence of a public school to an equal degree.

Respondent submits, therefore, that there is no difference in the effect on the community between the permitted public high school and the prohibited private one and hence the ordinance's discrimination between them is unreasonable, not founded on a difference in fact material to the object sought to be attained by building ordinances, and is a measure which denies to respondent the equal protection of the laws and deprives it of property without due process of law, contrary to the provisions of the Fourteenth Amendment of the United States Constitution. Therefore, it asserts, so far as this case is concerned, the ordinance is void.

'* * * a classification to be valid must always rest on a difference which bears a fair, substantial, natural, reasonable, and just relation to the object, act, or persons in respect to which it is proposed. * * *' 12 Am.Jur. p. 153, sec. 481, Const.Law. Respondent cites Catholic Bishop of Chicago v. Kingery, 371 Ill. 257, 20 N.E.2d 583, and City of Miami Beach v. State ex rel. Lear, 128 Fla. 750, 175 So. 537. These are cases whose facts are practically identical with the present one. In them the respective courts held that there was no substantial difference between public and private schools in relation to the object sought to be accomplished by the zoning ordinance and therefore, in so far as it prohibited the presence of a private school while allowing a public one, it was void. If these decisions were controlling authority upon us we would necessarily affirm the learned trial court for we can not distinguish them from ours in any material respect. But their authority is persuasive, only, and it fails to persuade.

The subject of public education and the establishment and operation of public schools is a governmental function of this state. Art. X, Wis.Const. Chapters 36 to 42, Stats. The City School Plan, secs. 40.50 to 40.60, Stats., has made the city the municipal entity for the administration of school affairs of those cities which have come under it, as the city of Wauwatosa has done. State ex rel. Board of Education v. City of Racine, 1931, 205 Wis. 389, 236 N.W. 553. In the performance of other governmental functions we do not restrict the behavior of persons or the use of property to the same extent that we do when only private...