State ex rel. Ohlenforst v. Beck

Tbe following opinion was filed January 26, 1909: Siebeckee, J. Cb. 230, Laws of 1903, provided: “After tbe passage of this act no new bakery shall be established in a room the floor of which is more than five feet below the level of tbe street, sidewalk or adjacent ground.” Any violation of the act was made a misdemeanor and1 punishable by fine or imprisonment. This provision was39 amended by ch. 486, Laws of 1907, providing that thereafter “no new bakery or confectionery establishment shall be established or operated in a room the floor of which is more than five feet below the level of the street, sidewalk or adjacent ground, nor in any room the ceiling of which is less than eight feet high from the floor.” This act is entitled “An act to amend secs. 1, 2, 3, 6 and 7, ch. 230, Laws of 1903,” etc. The context of the amendment affecting sec. 3 shows that the former provision as to the establishment of new bakeries is continued and a provision prohibiting the operation of these bakeries is added. It also includes confectionery establishments. The petitioner avers that the effect of this amendment was to repeal all of ch. 230, Laws of 1903, and to enact a new law on the subject of the sanitary regulation of bakeries, which is embraced in ch. 486, Laws of 1907. To effect such a result the new legislation must show with reasonable clearness that such was the legislative intent. This we do not find from this chapter. The title declares that it is an act to amend certain portions of the former law and to create new sections. The amendatory act contains many of the provisions of the old act, modifies others, and incorporates new provisions. In dealing with sec. 3, above quoted,, the original provision prohibiting the establishment of new bakeries in “rooms the floor of which is more than five feet below the level of the street, sidewalk or adjacent ground” is bodily continued. This presents an instance where the amendment does not change the original provision, hut adds others. Under such circumstances the portion so continued is not considered as repealed and again enacted, but as having existed and continued from its original enactment. It is manifest from a comparison of the two enactments that only such parts of the original enactment are repealed as are not embraced in the amendatory act, that the portions retained continued in force from their first enactment, and that the new and changed portions took effect from [40] the time of the amendatory act. The rule that a re-enactment of an existing statute in substantially the same words operates to continue it is well settled and has been frequently followed by this court. Fullerton v. Spring, 3 Wis. 667; Glentz v. State, 38 Wis. 549; Laude v. C. & N. W. R. Co. 33 Wis. 640; Bentley v. Adams, 92 Wis. 386, 391, 66 N. W. 505. Applying the statute to petitioner’s case, it results that he is within the regulations of the original act of 1903, forbidding the establishment of a new bakery unless it is in compliance with the regulations prescribed. Concededly petitioner established his bakery after the passage of this law, ■ and it did not become a legally established bakery under the law so as to warrant petitioner in operating it. The record shows, and it was conceded in oral argument, that petitioner’s bakery does not comply with the regulations of the original law, in that the floor is more than five feet below the level of the street, sidewalk, or adj acent ground. It also appears that the ceiling of the bakery is less than eight feet from the floor! Under the facts the defendants, as oflicers authorized to issue licenses for conducting a bakery, properly denied petitioner’s application. By the Court. — The order appealed from is reversed, and the cause remanded with directions to grant appellants’ motion to quash the alternative writ of mandamus and to dismiss the petition. Upon motion for a rehearing there was a brief for the respondent signed by ILenry F. Foelslce, of counsel. The motion was denied April 30, 1909.