Action commenced by Ray C. Schutt and Dean Milk Company, a corporation, against the city of Kenosha, August 29, 1949. There was an order to show cause and the issuance of a temporary restraining order, based upon the pleadings and affidavits.
Among other things, the plaintiffs' complaint alleged that the following section of the Kenosha milk ordinance is unconstitutional:
"b. Inspection fee: Plant, processing milk and any of whose products shall be delivered in Kenosha, shall pay one half of one cent per hundred pounds of all milk processed in such plant. This fee shall be computed and paid on or before the 5th day of each month for the previous month."
The record shows the following: On August 1, 1949, the city of Kenosha issued a milk dealer's license to Dean Milk Company. On August 31, 1949, plaintiffs appeared at the city hall in response to a letter from the Kenosha health department stating that it had been found that milk which had not been inspected by that department had been received at the Dean Milk Company's pasteurization plant, that the health department considered this a violation of the ordinance, and that plaintiff would be given a hearing as to why its permit should not be revoked. As a result of an informal discussion held at the hearing, the following stipulation was drawn up:
"Whereas the parties agree that the only real issue in dispute is the constitutionality of the inspection fee of the Kenosha milk ordinance as applied to this plaintiff, and that the other matters upon which the said temporary injunction was issued have become moot, and,
"Whereas the parties are desirous of eliminating all unnecessary preliminary motions, and to present the real issue involved in said case without delay and undue expense.
"Now, therefore, it is stipulated as follows:
"1. That the city of Kenosha waives any right to revoke the said permit for any alleged prior violation, and any similar violation, during the pendency of this action in this court.
"2. That the plaintiff will file with the city a statement as provided in the city ordinance showing the pounds of milk processed at the Chemung, Illinois, plant, and will pay the amount of the inspection fee over and above any credits due to the plaintiffs to the clerk of this court to abide the final judgment of this court.
"3. That the temporary order issued on August 29, 1949, is hereby vacated."
Pursuant to the stipulation, the temporary injunction was vacated on September 8, 1949. On September 17, 1949, the city filed a general demurrer to plaintiffs' complaint, on November 14, 1949, the court granted plaintiffs leave to file an amended complaint, and on December 3, 1949, defendant served an answer to the amended complaint and a motion for summary judgment. In its decision of December 28, 1949, denying said summary judgment, the court said that the pleadings raised issues of fact regarding the amount of milk sold in Kenosha, whether the fees were designed to recover a reasonable portion of the cost or whether they exceeded the same, and whether the fees were reasonable or unreasonable. Thereafter, in an order of March 31, 1950, following an order to show cause served by defendant on plaintiff January 6, 1950, the court refused to relieve defendant from the terms of the stipulation, refused to dismiss plaintiffs' complaint, but granted defendant leave to amend its answer. Thereupon defendant added in its amended answer the following allegation:
"Alleges that by reason of plaintiffs' election to apply for and receive a license or permit to deliver milk within the city limits of Kenosha, Wisconsin, and thereby having enjoyed the privileges accorded thereto, it is estopped from asserting or litigating the constitutionality of the ordinance or any portion thereof under and pursuant to the terms and conditions of which said license or permit was issued."
On April 1, 1950, defendant made another motion for summary judgment, which was heard April 10, 1950; and on May 10, 1950, the court rendered its decision in favor of defendant. Judgment dismissing plaintiffs' complaint and taxing costs against them was entered May 26, 1950. Plaintiffs appeal.
FAIRCHILD, J.
The decision from which plaintiffs appeal holds that an applicant for permission to operate under an ordinance such as this cannot accept the permit and simply "by reason of the language in the application for the permit in question" reserve at the same time the right to contest the constitutionality of the ordinance under which the permit is issued.
The learned trial judge was of the opinion that a party cannot pursue two inconsistent remedies in the same action, and, citing 9 R.C.L., Election of Remedies, p. 958, and other authorities, he ruled that the controlling question before him related solely to the right to contest the constitutionality of the ordinance after accepting its benefits, because of an attempted reservation of such right; and then that the "questions should be answered in the negative and that the motion of the defendant for summary judgment should be granted."
In this ruling the circuit court followed the precedents which have established the law applicable to this particular situation. One is not injured while acting under and having the advantage of the terms of the ordinance. Our authorities are to the effect that, although in a proper case a court may declare whether the legislative body, including a common council, has exceeded its constitutional powers in an enactment complained of, "it is a rule of universal application that no one but a person injured can question the constitutionality of a law." Boyd v. State (1935), 217 Wis. 149, 258 N.W. 330; Appeal of Van Dyke (1935), 217 Wis. 528, 259 N.W. 700; Goodland v. Zimmerman (1943), 243 Wis. 459, 466, 10 N.W.2d 180. In the Goodland Case, supra, it was said:"For these reasons the question of constitutionality sought to be raised by the pleadings is not presented in this case." It seems self-evident that a stipulation, however fair on its face, cannot overturn a policy so fixed by authority and precedent as is the rule which was followed by the court below.
Recognizing the fact that under the existing laws serious questions may arise where the issues are accompanied by substantial doubt, courts and authorities have endeavored to afford reasonable relief when the questions are properly presented.
The trial court, in his memorandum decision, cited the case of Pera v. Shorewood (1922), 176 Wis. 261, 263, 186 N.W. 623, and quoted the following:
"This reservation may well preserve the right of the plaintiff to contest the validity of the ordinance in a proper proceeding, but it cannot have that effect in the proceeding now before us. As stated, the filing of the claim asserted the validity of the ordinance and the statute under which it was passed otherwise the plaintiff could not contend that his, claim had any validity. When he took his appeal to the circuit court from its disallowance by the village he did so as an aggrieved party, again asserting by his acts the validity of the ordinance. So he came into court relying upon the ordinance as the valid basis for his claim. Having instituted his action upon the sole basis of the validity of the ordinance, he cannot now seek to maintain it by asserting the invalidity of that which enabled him to come into court. This case is parallel with that of Hurley v. Commission of Fisheries (U.S.) 42 Sup. Ct. 83, decided by the supreme court of the United States December 5, 1921, where it was held that a plaintiff could not claim under a statute and assail it in the same proceeding. To do so would enable parties to make use of a statute as a valid one during one stage of action, and then, upon a certain point therein being reached, continue it upon the basis that it is invalid because from thence on it seems to be more advantageous to claim its invalidity. This is a species of legal somersault or suicide that courts will not tolerate."
See also Booth Fisheries Co. v. Industrial Comm. (1924), 185 Wis. 127, 200 N.W. 775; and Fahey v. Mallonee (1947), 332 U.S. 245, 67 Sup. Ct. 1552, 91 L.Ed. 2030, at page 255, where it is said by Mr. Justice JACKSON: "It is an elementary rule of constitutional law that one may not `retain the benefits of the act while attacking the constitutionality of one of its important conditions.'"
By the Court. — Judgment affirmed.