*1 agree defendant-appellant’s We contention that allegations injury throwing caused children an object enough predicate and of themselves are not liability upon possessor object. of the
By overruling the Court. —Order the defendant’s de- murrer is reversed and the cause is remanded with plaintiffs’ complaint that the directions be dismissed. Cayo, on similarly behalf of himself and all others situ City
ated, Appellant, Respond of Milwaukee, v. ent.* March 4, Argued February 4,
No. 159. 1969. Decided 1969. (Also reported 198.) in 165 N. 2dW. * rehearing denied, Motion for costs, May 6, without on *4 Michael, Best appellant a brief there was
For the Fred- and attorneys, and Lee J. Geronime Friedrich, & Milwaukee, and oral counsel, all of Rikkers erick T. of argument by Mr. Geronime. J. John respondent a brief there was
For Sonnenberg, F. Herbert Fleming, city attorney, by Mr. argument city attorney, and oral assistant Sonnenberg. 2-235.5 as Appellant ordinance attacks J. Wilkie, protection equal denial an unconstitutional
either an military reservist, or as unconstitu- nonveteran this legislature express policy of our conflict tional reaching merits guard. regarding Before the national consider contentions, must first appellant’s we action if a cause of has question of whether unconstitutional. 2-235.5 is ordinance in deter- correct the trial court was is clear that if It appellant, as valid, mining ordinance 2-235.5 be *5 648 class, in no of action for as others his has cause
well military additional leave benefits because the ordinance right. gives However, assuming, even as him no such unconstitutional, appellant contends, that the ordinance is appears it he a cause of The that is still without action. right giving pay repealed a to full ordinance him was Thus, presently in there no effective ordinance 1963. is giving right appellant a or to the relief he seeks. statute (1936), Appellant the claims that cases cited annot. authority proposition for the 102 A. L. R. are 2-235.5 as un- if recreated ordinance were struck down constitutional, then old be re- ordinance 2-235.5 would giving vived, appellant thus a cause of action. analysis However, an cited of the authorities the they question deal the annotation reveals with whether, circumstances, any, and in if the uncon- what containing specific repealing stitutionality a of a statute taking prevent repealing clause the ef- will clause fect, i.e., specific repealing the clause fall the does rest of the statute. general appears
The the thrust the cases to be that repealing can clause will fall with statute unless it clearly legislation be shown that the new is not sub- specific repealing stitutional in character or that closely not clause the remainder of the statute are so purpose repealing related as to make the of the clause dependent upon validity legislation.1 of the new specific
Because ordinance 2-235.5 a is devoid of repealing clause, no cases cited have application.
Thus, appellant prevail cannot if ordinance 2-235.5 valid, prevail is and he cannot if it is void. though appears
Even the constitutional issue to be proceed ap- moot we nevertheless consideration of pellant’s unconstitutionality on contentions of the disputed ordinance.
1 Rogers 51), (1860), (* See State ex rel. v. Burton 60Wis. *6 right deny appellant’s equal Does ordinance 2-235.5 to guaranteed protection by of the law as the United States Constitution? appellant’s challenge
The heart of is that ordi- unlawfully nance discriminates between those officers employees qualify preference who for veterans under 63.37, Stats., not, 16.18 and in sec. sec. and those who do pay city Mil- the former receive full from the of period training military for the waukee and the latter military only receive the difference between their basic pay regular city salary. and their proper
The standards for classification an ordi- within Ford in State ex rel. nance were established this court Hopkins Mayor.2 They v.Co. are: “(1) upon All classification must be based substantial really distinctions which make one class another. different
“(2) germane adopted to The classification must be purpose of the law. “ (3) upon The classification must not be based exist ing only. following circumstances sentence was [The State ex rel. Risch v. Trustees: by3 added to No. ‘It must preclude as to addition to the num not be so constituted included a class.’ bers within 3] “(4) may ap- apply, To whatever class law it must ply equally to each member thereof.
“ ‘(5) That the characteristics of each class should be
far different from those of other classes as to reason-
so
ably suggest
propriety, having regard
at least
to the
” 4
legislation.’
substantially
public good, of
different
appellant
However,
can
avail himself
“[b]efore
5
challenge any
legis
distinctions”
these rules
between
2
215, 222,
311;
(1937),
see also
ex
226
276 N. W.
State
Wis.
624,
(1967),
Milwaukee
2d
148
2d
rel. Baer v.
33 Wis.
N. W.
21.
3
44, 54,
(1904),
650 classifications, presumption lative he “must overcome a that the proper.” are classifications reasonable and Kiley Chicago, Ry.,7 In v. M. & St. P. this court stated: question necessity “. . . the whether there is room or resting primarily legis- for classification one is with the lature, justified declaring and no court is classifica- say tion baseless unless it can without doubt that no one reasonably any could conclude that there is substantial justifying legislative difference different treatment.” Thus the burden is on the show there no is basis for the classifications as determined noted, Milwaukee council. As the trial court *7 allegation pleaded “There is no are nor there facts that no for basis the of the classifications Milwaukee city presumption council ordinance exists. the Thus of constitutionality of the classification made the ordi- nance has not been overcome.” Appellant also contends that ordinance 2-235.5 is un- being constitutional for in direct conflict with secs. 21.14 21.145, and Stats. 21.145, Stats., part
Sec. states that: purpose “. . It the . is of this section and s. 21.14 to protect guard a member of the said national from dis- advantage in his liberty means of livelihood and therein give any preference advantage but not to count of him or on ac- membership guard.” his in said national Appellant argues detrimentally that the ordinance af- compensation guards- fects the of reservists and national thereby eligible capable young men and deters and men employed by city joining organi- who are the from these Appellant system compensa- zations. submits that the of repealed just. tion under the ordinance was Under the old practice military all members of the service who attended Id. 6. 7 (1910), 154, 125 142 Wis. N. W. 464. page 169; Id. at Milwaukee, ex supra, State rel. Baer v. foot page note at equally compensated and treated reserve activities were fairly they preparation the for time contributed adequate an defense force. and maintenance of places ap- Appellant that ordinance concludes disadvantage in and pellant a means of livelihood at his liberty direct and unconstitutional virtue of its thus is policy legislature. express the state conflict with the of way observed, the trial the ordinance in no As court continuing enjoy city employee “deprives a any employment.” is there sub- benefits his Neither salary just certain to the contention because stance plaintiff fringe prevailed the time entered benefits at city employment they are remain conditions must change job. The council is free to attached common unless, noted, court as the trial these conditions negotiations representa- between “. . . as result of city employees accord is and the a certain tives of wages, hours, and other covers conditions reached which any supersedes employment, ordi- then that contract in conflict it.” nance no here and conten- are circumstances this There such by appellant fall. must tion concerning the ordi-
Appellant two other raises issues adoption. and its nance Interpretation.
Ordinance *8 construing ordinance court err in Did the trial 2-235.5? of Milwaukee Code Ordinances of the 2-235.5
Sec. as follows: reads city employees of of shall the Milwaukee “Officers and pay, in absence, an amount granted a of leave be by subtracting the basic the obtained equal to difference employee by pay or for such such such officer received federal city salary training the of total which
period regular employment employee receive for or would officer during period, leave not to exceed 15 such successive said days including Sundays, legal Saturdays, holidays, and during years training the calendar to take as members Organized Reserve, Corps of the Air Force Reserve of the Army, Reserve, Corps Reserve, Naval Marine Coast Guard, Reserve or National the Guard under direction of granted state or federal leave authorities. Said shall be department head of in the officer or which employee upon presentation satisfactory works of evi- military authority dence of air force or naval take such training; provided employees further that officers and of city who, the in veterans waukee, of because Milwaukee honorable service of any States, eligible the wars the United are for of of preference city for of Mil- employment provided as in Section 16.18 and of Section 63.37 city (1961), pay Wisconsin Statutes shall receive full during (Emphasis added.) leave of such absence.”
Appellant contends that the trial court erred in defin- ing persons eligible that class of are pay who for full military for leave under the terms of sec. 2-235.5. By enacting ordinance, this the Milwaukee common provided pay given council that full would be to officers employees and of of Milwaukee while on active duty training military with the United States services if persons any said “because of honorable service in of the States, eligible wars of the United prefer- are for veterans provided ence” as 63.37, in secs. 16.18 and Stats. 63.37, Stats., provides, part, prefer- Sec. in “. . . given ence shall any be in favor of veterans of the wars of the provides United States.” Sec. 16.18 preference given “. . . a shall be in favor of veterans any of the wars of the United States accordance specified with the (5a).” dates in s. 45.35 The dates of the provided wars of the United States as (5a), Stats., sec. 45.35 are as follows: “(a) Indian war: Between 1860 and 1898. “ (b) Spanish American April 21, war: Between 1898, April 11,1899. and “(c) Philippine April 12, 1899, insurrection: Between July (extended 4, July 15, actually if engaged in Moro hostilities). Province *9 16, 1900, and “(d) June Boxer rebellion: Between May 12,1901. “ 19,1916, (da) Between June Mexican border service: April 5,1917. and “ April 6, 1917, (e) and No- I: Between World War (extended April 1, 1920, if service to vember Russia). inwas August “(f) 27, 1940, and II: World War Between July 25,1947. 27, 1950, “(g) and Korean June conflict: Between January 31,1955.” using argued erred in the definition It is court (5a), Stats., in con- found in 45.35 of “veteran” as sec. struing 2-235.5, Milwaukee Code of Ordinances. sec. incor- it true that ordinance 2-235.5 does not is
While porate in 45.35 the definition of veteran as found sec. incorporate dates (5a), Stats., ordinance does the war provides for found in that Thus the ordinance as statute. they employees pay or who because for those officers full honorably any “in of the United served of the wars have pro- eligible preference States, are for veterans ... as 63.37 of the vided in 16.18 Section Wisconsin Section (1961).” provides . . 16.18 “. Sec. Statutes given any in preference be favor of veterans of shall in accordance of the United wars States (5a).” specified in dates s. 45.35 (5a), necessary it to refer to sec. 45.35 Therefore is Stats., determine the dates. to war using
Any in error committed the trial court Stats., (5a), in 45.35 of veteran as found sec. definition properly ordi- in that under the construed was harmless ineligible pay. for full nance is still Bargained. Not Ordinance coun- 2-235.5 void because the common 2. Is ordinance promulgated the ordinance cil of the of Milwaukee violative of the law a manner as be Wisconsin such bargain good employer requiring an faith with employees? recognized representatives of his 653a *10 Appellant
This is before on case this court demurrer. allegations charging made no the ordinance was promulgated requiring city in violation of the statutes the bargain good recognized representatives faith with employees. of its We therefore not do reach issue. this By the Court. —Order affirmed. (on rehearing). motion On rehear- Per Curiam for
ing, appellant copy submits to this court a of Milwaukee City Daily Ordinance appeared 2-235.5 as it Re- the porter January 2, published on 1964. The ordinance as specific repealing therein contains clause which is ab- sent the appears ordinance as it in the Milwaukee Therefore, appellant requests Code of Ordinances. modify opinion the court its appellant, to hold that on published Daily basis of the ordinance as in the Re- porter, ahas cause of action.
Appellant’s contention comes too late in that it is based on part information that is not of the record. The court’s appears decision was based on the ordinance as it in the Milwaukee Code of presented it Ordinances as was parties appeal. court appellant’s on Thus rehearing motion for denied, must be without costs. However, precluded we conclude that is not ruling proceeding in this case from with a new attempt action he wherein can to establish that passed by ordinance as the Milwaukee council con- specific repealing tained a clause and that on the basis of that ordinance he has a cause of action.