Village of Menomonee Falls v. Michelson

• Decision Date: 24 June 1981
• Docket Number: No. 80-1026,80-1026
• Citation: 104 Wis.2d 137,311 N.W.2d 658
• Parties: VILLAGE OF MENOMONEE FALLS, a municipal corporation, Plaintiff-Respondent, v. Esther MICHELSON, Defendant-Appellant. *
• Court: Wisconsin Court of Appeals

Page 658

311 N.W.2d 658

104 Wis.2d 137

VILLAGE OF MENOMONEE FALLS, a municipal corporation, Plaintiff-Respondent, v. Esther MICHELSON, Defendant-Appellant. ^*

No. 80-1026.

Court of Appeals of Wisconsin.

Submitted on Briefs April 30, 1981.

Opinion Released June 24, 1981.

Opinion Filed June 24, 1981.

Chester J. Niebler of Niebler & Niebler, Menomonee Falls, for defendant-appellant.

William C. Gleisner, III, of Gleisner & Schmaus, Menomonee Falls, for plaintiff-respondent.

Before VOSS, P. J., and BROWN and SCOTT, JJ.

SCOTT, Judge.

Esther Michelson appeals from a judgment which declared that sec. 15.10(8) of the Menomonee Falls Municipal Code is constitutional and that she was in violation of those provisions of the ordinance which require persons to disconnect any drain or other connection on their premises through which rain or surface water may be discharged into the public sanitary sewer system and to install sump pumps in all building foundation drains. She argues that her constitutional rights were violated by both a retroactive application and a selective enforcement of the ordinance. In addition, she argues that the Village of Menomonee Falls failed to prove she had violated the ordinance, and she appeals from a circuit court order denying her demand for a jury trial. We hold that the ordinance was not unconstitutionally applied in a retroactive fashion, and we uphold the trial court's finding that the ordinance was not being selectively enforced. We further hold that Michelson was entitled to a jury trial in the circuit court. Accordingly, we remand the case to that court for a jury determination of whether she was in violation of the ordinance, and we do not decide whether the trial court's finding that she violated the ordinance was supported by the evidence.

On March 3, 1978, a summons and complaint were served on Michelson directing her to appear before the municipal court of the Village of Menomonee Falls and to answer the complaint's allegation that she was in violation of sec. 15.10(8) of the village ordinances. Trial to the court was held on April 13 and May 6. On July 31, the court issued a written decision finding Michelson guilty of violating the ordinance and ordering her to pay a $25 fine plus $1 per day from August 1 until she complied with the ordinance.

On August 21, 1978, Michelson filed a notice in the circuit court stating she was appealing the judgment of the municipal court and filed a bond obligating herself to pay the amount of the municipal court judgment if that judgment were affirmed On December 1, 1978, the circuit court, Judge Harold Wollenzien presiding, issued a written decision denying Michelson's jury trial demand. The court stated it was of the opinion that sec. 300.14, Stats. (1977), applied to her appeal and gave her no right to a jury trial. The court subsequently entered an order denying the jury trial demand.

on appeal. On September 18, she filed a written demand for jury trial. The Village opposed the demand on the ground that under sec. 300.14, Stats. (1977), effective July 1, 1978, a trial de novo on appeal to the circuit court from a municipal court judgment must be without a jury.

The case was later transferred to Judge John Buckley, and trial to the court was held on December 27 and 28, 1979. The court found that Michelson had violated the ordinance and that the ordinance was not being selectively enforced. The court concluded that the ordinance did not have a retroactive effect in violation of the due process clause and entered judgment for the Village. Michelson presently appeals.

Upon this court's own motion, this appeal was ordered to be decided by a three-judge panel.

RETROACTIVE APPLICATION

Michelson argues that Menomonee Falls once had an ordinance which required landowners to install drain tile around building foundations and to connect the tile to the sanitary sewer system. She argues that the present ordinance, enacted in 1974, has a retroactive application because it not only prohibits persons from having a drain or other connection by which rain or surface water may be discharged into a public sanitary sewer but also requires persons, after they have received official written notification from the Village of an ordinance violation, to disconnect existing drain connections within six months. She argues that this retroactive application (i. e., the absence of a grandfather clause permitting existing drain connections to continue) violates her constitutional right to due process.

We have discovered nothing in the record showing that foundation drains were ever required to be connected to the sanitary sewer system. Even if they had been, we disagree that Michelson's constitutional rights are violated merely because the ordinance requires her to disconnect, at her own expense, a drain which was once required to be connected.

The synonymous terms "retroactive" and "retrospective" describe a legislative act which operates on transactions which have occurred or rights and obligations which existed before passage of the act. 2 C. Sands, Sutherland Statutory Construction § 41.01, at 245 (4th ed. 1973).

The Fourteenth Amendment does not make an act of state legislation void merely because it has some retrospective operation. What it does forbid is taking of life, liberty or property without due process of law. Some rules of law probably could not be changed retroactively without hardship and oppression, and this whether wise or unwise in their origin.

Chase Securities Corp. v. Donaldson, 325 U.S. 304, 315, 65 S.Ct. 1137, 1142, 89 L.Ed. 1628 (1945).

Each legislative act is presumed constitutional, and a heavy burden is placed on the party challenging its constitutionality. Sambs v. City of Brookfield, 97 Wis.2d 356, 370, 293 N.W.2d 504, 511, cert. den. 449 U.S. 1035, 101 S.Ct. 611, 66 L.Ed.2d 497 (1980). Any doubt must be resolved in favor of constitutionality. Id.

We hold that Michelson had no vested right to have a drain connection between her premises and the public sanitary sewer system. Because she had no right to such a connection, her constitutional rights were not violated when the Village required her to disconnect the drain.

Any license to connect with a municipal sewer system must at all times be contingent upon the ability of the system to dispose of the sewage. Ericksen v. City of Sioux Falls, 70 S.D. 40, 54, 14 N.W.2d 89, 95 (1944). No one has any vested rights in the use of the sewers, nor can a municipality As a rule, the right given to a property owner to connect with a municipal sewer is in the nature of a license only, and does not become a vested right merely because he was put to considerable expense in constructing a drain from his premises and connecting with the sewer. Such a license may be revoked for cause at any time. The municipality has a right, therefore, if the sewer with which the connection is made becomes a nuisance, to require such drain to be disconnected therefrom, without being liable to the owner of the drain in damages.

grant such a vested right. Id. If, for any reason, the system will not handle sewage from a particular source by reason of its nature or quantity, it is within the power of the municipality to require that the sewer connection be discontinued, and it may be the duty of the municipality to do so in order to protect itself from possible liability for the creation of a nuisance. Id., 70 S.D. at 54, 14 N.W.2d at 95-96.

11 E. McQuillen, The Law of Municipal Corporations § 31.31, at 241 (3rd ed. 1977).

The ordinance involved in the present case is a valid exercise of the Village's police powers and is consistent with the Village's contractual and legal obligations. As the Village points out, when a large amount of clear water is permitted to flow into sanitary sewers, as during a rainstorm, the sewers may overflow and sewage may back up into basements. Further, the influx of clear water into sanitary sewers may reduce the ability of sewage treatment plants to dispose of sewage. See City of Milwaukee v. Illinois, --- U.S. ----, 101 S.Ct. 1784, 68 L.Ed.2d 114 (1981).

The record shows that the Village has a contract with the Milwaukee Metropolitan Sewerage District regarding the District's treatment of sewage from the Village. One of the terms of the contract is that the Village cannot allow drains or other connections which do not carry sanitary sewage to be connected to the sanitary sewers. Further, the record shows that the Department of Health and Social Services requires storm and clear water wastes to be discharged into storm sewers, where available, and prohibits their discharge into sanitary sewers. Wis.Adm.Code, secs. H 62.04(8)(c) and H 62.12(1).

SELECTIVE ENFORCEMENT

As a further defense to the Village's action against her, Michelson argues that the Village was enforcing the ordinance against only about fifty percent of the real estate parcels which had a drain connection in violation of the ordinance. She argues that such selective enforcement violates her right to equal protection of the law. We disagree.

The equal protection clause of the fourteenth amendment is violated if an ordinance is administered "with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights." Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 65 S.Ct. 1064, 1072-73, 30 L.Ed. 220 (1886); State ex rel. O'Neil v. Town of Hallie, 19 Wis.2d 558, 567, 120 N.W.2d 641, 646 (1963). Nevertheless, evidence that a municipality has enforced an ordinance in one instance and not in others would not in itself establish a violation of the equal protection clause. State ex rel. Cities Service Oil Co. v. Board of Appeals, 21 Wis.2d 516, 544, 124 N.W.2d 809, 823 (1963). There must be a showing of an intentional, systematic and arbitrary discrimination. State ex rel. Murphy v. Voss, 34 Wis.2d 501, 510, 149 N.W.2d 595,...