Pera v. Village of Shorewood
186 N.W. 623
Wis.
1922
Check Treatment
Vinje, J.

The only question raised by the plaintiff on his appeal is the constitutionality of sec. 61.35, Stats., delegating the power to the village to pass an ordinance dividing the village into districts.. He claims it is unconstitutional for various reasons. Upon the state of the reсord and ‍​​​‌‌‌​​​​‌​‌​​‌‌​​​‌‌​‌‌‌‌​​​‌‌​‌​​​‌‌‌​​‌​​‌‌​‍the statute referred to we cannot pass upon the question -raised. Whеn plaintiff filed his claim with the village for compensation for damages caused by thе districting of the village he asserted the validity of the ordinance, though the claim as filed contained this statement:

“This claim is submitted and filed without prejudice to any of the rights and ‍​​​‌‌‌​​​​‌​‌​​‌‌​​​‌‌​‌‌‌‌​​​‌‌​‌​​​‌‌‌​​‌​​‌‌​‍privileges of the claimant to contest the validity of said ordinance.”

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 proсeeding now before us. As stated, the filing of the claim asserted the validity of the ordinance and the statute under which it *264was passed, otherwise the plaintiff could not contеnd 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 ordinancе as the valid basis for his claim. Having instituted his action upon the sole basis of the validity of thе 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 еnable parties to make use of a statute as a valid one during one stage оf an 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 аdvantageous to claim its invalidity. This is a species of legal somersault or suicide thаt courts will not tolerate. Parties cannot pursue two inconsistent remedies in the sаme action. 9 Ruling Case Law, 958.

There is anpther reason why the constitutional question shоuld, not now be decided, though it may not be so conclusive. Such reason is that the statute providing for an appeal to the circuit court (sub. (4), sec. 61.35) declares that the issue upon such appeal shall be the loss or damage sustained by the appellant, and that such issue shall be tried without further pleadings. The legislative thought was that the аppeal should bring up only the issue of damages; and, this being strictly a statutory procеeding, the issue can neither be enlarged nor diminished by new pleadings, as was sought to be done here. ' The trial court should have limited itself to the question of damages only, and shоuld not have passed upon the constitutionality of the ordinance. In this proceeding the ordinance must be presumed to be valid.

*265The trial court further held that the village was not liable for any damages because there was no taking of private property for public use. Since the constitutionality of the statute or ordinancе may properly come before us in another proceeding we shall cоntent ourselves now by merely indicating that such holding was erroneous and that plaintiff is entitlеd to have such damage assessed as he may be able to prove. The facts before us show a prima facie case for damages. Whether there is a taking under the police power or under the power of eminent domain we do not decide. Such quеstions had best be left undecided till the constitutionality of the statute or ordinance comes up for decision. Plaintiff may not desire to prosecute his appeal in the circuit court, in which case he can dismiss it. We must presume, however, that he still desirеs to prosecute the remedy he invoked and relied upon when he began the рroceedings, namely, to enforce his claim for damages.

By the Court. — Order reversed, and cause remanded with directions to proceed to ascertain and assess plaintiff’s damages.