State v. Chippewa Cable Co.

• Decision Date: 26 November 1963
• Citation: 21 Wis.2d 598,124 N.W.2d 616
• Parties: STATE of Wisconsin, Respondent, v. CHIPPEWA CABLE CO., Inc., Appellant.
• Court: Wisconsin Supreme Court

Page 616

124 N.W.2d 616

21 Wis.2d 598

STATE of Wisconsin, Respondent, v. CHIPPEWA CABLE CO., Inc., Appellant.

Supreme Court of Wisconsin.

Nov. 26, 1963.

Wiley & Devine, Chippewa Falls, for appellant.

George Thompson, Atty. Gen., George B. Schwahn, Asst. Atty. Gen., Madison, for respondent.

FAIRCHILD, Justice.

1. The statutes involved. Sec. 114.30, Stats., provides for a state aeronautics commission. Its orders are subject to review under CH. 227. SEC. 114.135² is entitled 'Airport protection.' Subs. (1) declares that it is in the public interest that the navigable airspace over the state and the aerial approaches to any airport be maintained in a condition best suited for the safe operation of aircraft and to that end the height of any structure and the use of land may be regulated.

Sec. 114.135(6), Stats., forbids the erection of a tower the height of which exceeds the limitations set forth in subs. (7) without first filing an application and procuring a permit from the state aeronautics commission. A rule of the commission specifies the information to be included in the application and provides that upon receipt of an application and after such investigation as the commission deems necessary, the commission will either grant such permit with such conditions as it deems necessary for the safe operation of aircraft or notify the applicant of a time and place for hearing. ³

The height limitation in sec. 114.135(7), Stats., controlling in this case is '500 feet above the ground or surface of the water within one mile of the location of the object * * *.'

2. The demurrer to the first defense. The first defense consists only of an allegation that subs. (6) and (7) of sec. 114.135, Stats., deprive defendant of its property without due process of law and deny equal protection of the law, in violation of both federal and state constitutional provisions.

The type of issue presented by an allegation that a statute violates the constitution, and a denial thereof or demurrer thereto, does not fit exactly into the usual classification of issues as fact or law. Primarily, it is an issue of law, ⁴ but because of principles controlling judicial review of legislative acts, the issue often is: Whether there may be reasonably conceived in the mind of the court facts which the legislature could have deemed to exist and which would form a reasonable basis upon which the statute may constitutionally rest. ⁵

The process of judicial notice may be adequate to resolve the question under some circumstances, but particularly where economic regulation is involved, it may be necessary for a court to make a judicial investigation of facts outside the ordinary scope of judicial notice.

Thus in Ritholz v. Johnson, supra, a complaint alleged that a statute prohibiting a certain type of advertising was invalid, and sought to enjoin enforcement. Defendants demurred. This court held the demurrer had been properly overruled, but solely on the ground that the court had no knowledge of the facts relating to the business being regulated, nor any satisfactory method of informing itself through encyclopedias and the like. It was decided that defendants should answer, alleging facts which might warrant enactment of the statute, and the trial court should make a judicial investigation of any disputed facts.

In White House Milk Co. v. Reynolds, ⁶ the complaint alleged that a statute pertaining to pricing of dairy products deprived plaintiff of property without due process and denied equal protection of the laws. The attorney general demurred. We required that the procedure in Ritholz be followed.

State v. Texaco, Inc. ⁷ was an action to enforce an administrative rule relating to unfair competition. Defendant demurred, and argued that the rule could not be applied to it because in conflict with a federal statute. We held that the claim of conflict could not be determined without facts beyond judicial notice, and that an answer would be required so that the relevant facts could be investigated.

It is clear, however, that where judicial notice can be taken of facts sufficient to form a reasonable basis upon which the statute may constitutionally rest, the assembling of further facts by way of trial could serve no useful purpose, and the Ritholz procedure need not be followed. ⁸

Defendant in the case before us urges that the Ritholz procedure be followed. We consider it unnecessary.

It is clear that the public safety is involved in protecting navigable airspace, and that regulation of the height of structures is appropriate for that purpose. We need not consider whether an inflexible prohibition of structures extending more than 500 feet above the ground or surface of the water within a mile would take property without due process or deny equal protection. The statute before us does not wholly prohibit higher structures but leaves to administrative determination, subject to judicial review, the question whether particular structures of greater height are permissible. The administrative rule provides for a hearing unless the permit be granted upon ex parte investigation by the commission.

The purpose of the statute is clearly legitimate, and judicial review sufficiently assures due process and equal protection in its administration.

The demurrer was properly sustained.

3. The demurrer to the second defense. The second defense consists of allegations that sec. 114.135, Stats., is void because it requires defendant to answer for an alleged criminal offense without due process of law and deprives it of the right to obtain justice freely and conformably to the laws. ⁹ For reasons similar to those already stated, we find no merit in this defense.

4. The demurrer to the third defense. Defendant alleged that subs. (6) and (7) of sec. 114.135, Stats., are so vague and indefinite that it is impossible to determine in advance whether or not a certain act will constitute a violation of these sections. Presumably this defense was intended to raise a due process question, although no constitutional provisions were referred to.

When the case was here before, on demurrer to the complaint, defendant argued that for the purpose of the height limitation prescribed in subs. (7) of sec. 114.135, Stats., the 500 feet must be measured from the elevation of the highest point on the surface of the ground or water within one mile of the tower. Because the tower allegedly rises 400 feet above the ground at its base, it would then follow that it did not rise higher than 500 feet above the elevation of the highest point. Defendant argued for strict construction in its favor because the statute is in derogation of common law and is penal.

The state contended that the 500 feet must be measured from the elevation of the lowest point within a mile. Its argument was that the statute should be liberally construed to achieve its remedial purpose and that the construction for which it contended would be more nearly consistent with the concept of navigable airspace as defined in federal laws and regulations. ¹⁰

We rejected the construction contended for by defendant (500 feet above elevation of highest point within one mile). It was not necessary, however, in order to resolve the issue on demurrer, to adopt conclusively the construction advocated by the state (500 feet above elevation of lowest point within one mile). Although, if we relied only on the words of the statute in the light of its apparent purpose, we would agree with the state's conclusion, it seemed conceivable that the interpretation might be affected by facts not yet before us. Such facts might conceivably be (as illustrations only) proof of past uniform administrative practice or expert testimony as to principles or accepted techniques in topographical surveying.

Therefore, we said:

'Whether proper construction of the statute requires the measurement of 500 feet to begin at the lowest point in the area or at the average of ground level in the area may depend on facts not now before the court.' ¹¹

The existence of a degree of ambiguity in the language of the statute, however, does not establish that it is so vague that enforcement of it violates due process requirements. '* * * If, by the ordinary process of construction, a practical or sensible meaning may be given to the act, it is not void for uncertainty. * * *' ¹²

Unless facts appearing upon the trial show a good reason for construing the statute to require the 500 feet to be measured from an average elevation, it will necessarily follow that it must be measured from the elevation of the lowest point within a mile. In either case the meaning will have been determined by resort to the ordinary rules of construction.

The demurrer was properly sustained.

5. The demurrer to the fifth defense. The complaint alleged that on August 26, 1960, defendant applied to the commission for a permit to erect its tower to a height of 400 feet above the ground at its base and that on October 20, 1960, the director of the commission informed defendant that its tower (which had already been erected) was a hazard to the safe operation of aircraft, and a permit would not be issued. In the fifth defense it is alleged that the commission has never notified defendant of a hearing upon its application as required by the commission's rule.

It should also be noted that the complaint alleges that the tower is in fact a hazard to the safe operation of aircraft and has been found by the federal aviation agency to be objectionable to aviation interests. These allegations are denied in the answer. The complaint does not allege the number of feet by which the tower exceeds the height which would have been lawful without a permit. Thus the degree as well as the existence of the violation is still at issue.

This action was commenced promptly, on November 14, 1960, and the failure to hold a hearing on the application by that date is not surprising. The answer, however,...