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

65 N.W.2d 43, 267 Wis. 91, 1954 Wisc. LEXIS 294

• Court: Wisconsin Supreme Court
• Decided: June 8, 1954
• Status: Published

Opinions

Brown, J.

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), pars, (a), (b), and (c), Stats;, 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 liberallv 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 Wauwa-tosa 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. 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.” 8 McQuillin, Mun. Corp. (3d ed.), p. 106, 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., p. 152. Nectow v. Cambridge (1928), 277 U. S. 183, 48 Sup. Ct. 477, 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 near-by homes and will deter the building of new homes in the area. Other detriments are easily thought of. Eut, 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 heneé 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., Constitutional Law, p. 153, sec. 481. Respondent cites Catholic Bishop of Chicago v. Kingery (1939), 371 Ill. 257, 20 N. E. (2d) 583, and Miami Beach v. State ex rel. Lear (1937), 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 cannot 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.; chs. 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. 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 interests are pursued and the fact that the standards are different commonly raises no suspicion that an illegal discrimination is thereby imposed or that the difference between municipality and citizen is insufficient to support separate classifications. For example, who considers he has a right to ignore speed laws because they need not be observed by the fire department responding to a call? Sec. 85.40 (5). Nor is the state controlled by a building requirement which an individual must observe. Milwaukee v. McGregor (1909), 140 Wis. 35, 121 N. W. 642. It may be that the essential differences between government and governed are so great that the two are in different classes per se at any time when governmental functions are involved and no ordinance is void by reason of discrimination, alone, merely because it gives a preference to the government, acting in its governmental capacity, which it withholds from private corporations or individuals.

However, we decide the present appeal on the narrower ground that tangible differences material to the classifications of the ordinance can be readily pointed out which sustain the distinction made by the ordinance between the schools. To begin with, the term “public” is the antithesis of “private.” The public school is not a private one. They serve different interests and are designed to do so. The private school is founded and maintained because it is different. Is that difference material to the purpose of zoning? In many respects the two schools perform like functions and in probably all respects concerning noise, traffic difficulties, and the other objectionable features already mentioned they stand on an equality, so that in several of the objects of zoning ordinances, — the promotion of health, safety, and morals, as laid down by sec. 62.23 (7) (a), Stats., and developed by respondent’s brief, we may not say that the two schools differ. But when we come to “the promotion of the general welfare of the community,” — “Ay, there’s the rub.” The public school has the same features objectionable to the surrounding area as a private one, but it has, also, a virtue which the other lacks, namely, that it is located to serve and does serve that area without discrimination. Whether the private school is sectarian or commercial, though it now complains of discrimination, in its services it discriminates and the pub-' lie school does not. Anyone in the district of fit age and educational qualifications may attend the public high school. It is his right. He has no comparable right to attend a private school. To go there he must meet additional standards over which the public neither has nor should have control. The private school imposes on the community all the disadvantages of the public school but does not compensate the community in the same manner or to the same extent. If the private school does not make the same contribution to public welfare this difference may be taken into consideration by the legislative body in framing its ordinance. If education offered by a school to the residents of an area without discrimination is considered by the council to compensate for the admitted drawbacks to its presence there, that school may be permitted a location which is denied to another school which does not match the offer, and we cannot say that such a distinction is arbitrary or unreasonable or that such discrimination between the two schools lacks foundation in a difference which bears a “fair, substantial, reasonable, and just relation” to the promotion of the general welfare of the community, which is the statutory purpose of zoning laws in general and of the ordinance in question.

While we have not found any decisions sustaining the public versus private distinction between schools in zoning cases and respondent has found two to the contrary, supra, it has not been difficult to find supporting examples in other activities. Thus, an ordinance permitted only municipal parks in a residence district. A property owner set up a bathing beach ostensibly run as a private club but actually open to the public. He asserted that it was a park and that there was an illegal discrimination by the ordinance which permitted a municipal park but not a private one. The court said: “There is nothing unreasonable in the classification that makes a distinction between municipally owned and privately owned playgrounds and parks.” McCarter v. Beckwith (1936), 247 App. Div. 289, 285 N. Y. Supp. 151, 154. The decision was affirmed without opinion, 272 N. Y. 488, 3 N. E. (2d) 882, and was denied certiorari, 299 U S. 601, 57 Sup. Ct. 193, 81 L. Ed. 443.

In Golf, Inc., v. District of Columbia (C. C. A. D. C. 1933), 67 Fed. (2d) 575, a corporation established a driving range in a residential area. The ordinance prohibited this activity although it would have been permitted if conducted under public auspices. The corporation contended that the zoning ordinance was void because it made an unreasonable classification. The decision rested on the distinction between public benefit and a more restricted advantage which we make in the instant case.

The headnote states:

“Zoning regulations held not discriminatory because permitting use of lands in residential districts for public recreational purposes while denying to private individuals similar use, ...”

In the opinion on page 577 the court said:

“It is also contended by the corporation that the regulations are discriminatory in that they permit the use of lands in residential zones in the District of Columbia for public recreational purposes, but deny a similar use to private individuals.

“We cannot agree with this contention. A use of public parks or recreational grounds in a residential area for the common benefit of all the people of the district is not to be compared with the use of lands by a private corporation for its exclusive profit in a manner forbidden by the zoning regulations.”

In Cincinnati v. Wegehoft (1928), 119 Ohio, 136, 162 N. E. 389, an effort was made to enjoin the city from building a firehouse in an area zoned for residential purposes only, except that the ordinance provided that the city was exempt from such restriction as far as the erection of its own municipal buildings was concerned. The court held that this discrimination did not violate the state and federal constitutions.

Even more persuasive is our own leading case on zoning ordinances, State ex rel. Carter v. Harper, supra. The ordinance there under consideration contained a provision which allowed a public service corporation, upon a finding of public necessity and convenience, to erect buildings and put its property to use in its business in any zone. We said, at page 162:

“It must be apparent that an ordinance enacted pursuant to state authority which prevents the erection of buildings or the conduct of business deemed inimical to public interest need not also prohibit the erection of buildings or the conduct of business which is essential to the comfort and convenience of the public and which the duly constituted authority of the state determines to be necessary for the public service which a public utility is required to render.”

The private corporation, because affected by the public interest, was enabled to conduct activities in zones where similar industries not so affected were forbidden to operate. If such preferential treatment of a mere private corporation did not invalidate the ordinance because of the public interest in the utility, how much stronger is 'the position of the appellants whose contention rests on an ordinance which gives the preference to the public, — the municipality, — itself! We consider the authority very strong in support of the conclusion which we have already reached independently, that no unconstitutional or otherwise illegal discrimination appears in the Wauwatosa zoning ordinance by reason of its exclusion of private high schools from “A” residence zones while accepting public schools of the same rank. Consequently, the refusal of appellant building inspector to issue a building permit for the erection of respondent’s private high school was proper and must be sustained.

By the Court. — Orders and judgment reversed. Cause remanded with directions to quash the writ of mandamus.

The following opinion was filed June 18, 1954: