Wisconsin Ass'n of Master Bakers v. Weigle

RoseNberry, J. Prior to the passage of ch. 648, Laws 1917, except as to the payment of license fees, the law regulating bakeries and providing for the inspection thereof and other establishments referred to in the petition was substantially as it now is. It is not claimed that the law as it stood prior to the enactment of ch. 648, Laws 1917, is unconstitutional or void. The law has been-before this court in State ex rel. Ohlenforst v. Beck, 139 Wis. 37, 119 N. W. 300, and in Benz v. Kremer, 142 Wis. 1, 125 N. W. 99, and in the aspects there considered has been upheld as a constitutional exercise of the police power of the state. That part of the law now assailed is the provisions of sec. 7, ch. 648, being sub. 2a, sec. 1410d — 6, Stats. 1917: ' “The license fee for establishing or operating a bakery shall be five dollars for every bakery equipped with a stove or stoves, [574] oven or ovens, or other baking device o'r devices having inore than twenty square feet and less than fifty-one square feet of baking surface, and ten dollars for every bakery equipped with a stove or stoves, oven or ovens, or other baking device or devices having fifty-one or more square feet of baking surface. No fee shall be required for the use or operation of a stove, oven or other baking device having less than twenty square feet of baking surface; five dollars for every cone bakery and every macaroni bakery; ten dollars for every confectionery establishment manufacturing candy or ice cream for wholesale trade; two dollars for every confectionery establishment manufacturing candy or ice cream for their own retail trade only.” In the consideration of the questions raised here we assume that the whole law is an exercise of the police power in the interest of the public health; that the fee required to be paid as a condition of procuring the license is not exacted for the purpose of revenue, but that its object is the reimbursement of the state for licensing and the supervisory service rendered under and pursuant to the law. It is argued that the classification made by the subsection in question is not based upon distinctions germane to the purpose of the law and that it is arbitrary and unjust. We must hold that the amount of baking surface operated by each establishment is a proper basis of classification. For aught that appears in this case no more just basis of classification could be adopted. • While in individual cases the amount of baking surface operated may not bear an exact ratio to the amount of business done, still it is doubtless as accurate and fair as any basis of classification that could be adopted, particularly when the admitted fact that the menace to the public health is in proportion to the number of square feet of baking surface operated by each bakery is considered. The legislature having adopted a proper basis of classification, we cannot say that the classification made offends any constitutional provision, unless we can say that no argument or considera575 ticxa of public policy exists wbicb could Rave weight with a reasonable and honest man in making the classification adopted; for if such reason or argument does exist, the weight or sufficiency of it is not for the courts, hut is for the legislature. We cannot assume that no legitimate and adequate reasons exist for the classification made. 4 It-is only when it is made to appear clear beyond reasonable .doubt that there are no just arguments or considerations of public policy which exist upon which the classification may be based that the court can declare the act of the legislature unreasonable in a legal sense •and therefore void. State ex rel. Kellogg v. Currens, 111 Wis. 431, 87 N. W. 561. The provision in question may be subjected to many valid .criticisms; mañy weighty arguments may' be directed against it, and a classification much more likely to do justice may be suggested; but these are matters which are properly for the consideration of the legislature, and we cannot say that in this case .it is clear beyond a reasonable doubt that there are no legitimate reasonable grounds for the classification made. It is argued that, even if the classification be upheld, the exemption of part of the licensed class from the payment of any license fee is discriminatory. This contention is sound and rests upon the most elementary principles. In the exercise of the police power of the state the legislature is limited by the constitutional provision that restraints and burdens imposed shall affect all persons equally. Sec. 1, art. I, Const. Wis.; sec. 1, Amend. XIV, Const. U. S.; State v. Whitcom, 122 Wis. 110, 99 N. W. 468. Uniformity and equality under the constitution of the United States as well as of the state of Wisconsin are so construed as to enable a practical application to be made in the conduct of governmental affairs. The rule permits the separation of persons and of property into classes, provided they have characteristics legitimately distinguishing the-members of one class from those of another in respects germane to some general public purpose. State ex rel. Kel [576] logg v. Currens, 111 Wis. 431, 87 N. W. 561; State v. Whitcom, 122 Wis. 110, 99 N. W. 468. Having in the exercise of the police power declared that all bakeries in the interest of the public health should be licensed and that a fee for such licensing should be exacted to cover in whole or in part the cost of licensing and supervision, upon what principle can it be said, that a part of the licensed class can be wholly exempted? Such a provision clearly offends against the rule of equality. While it is within the province of the legislature within established rules to make classifications and subclassifications and to determine the amount of fees to be paid by each of the respective classes and subclasses, it is nevertheless beyond the power of the legislature to wholly exempt a part of the licensees and cast the whole burden upon the nonexempted subclasses. If the legislature had said that those bakeries which came within the definition of the exempted class did not require inspection and licensing and thereby had exempted them from licensing and inspection as well as the payment of the fee, it would have acted wholly within the constitutional field; but having said that in the interest of the public health bakeries operating less than twenty square feet of baking surface do require licensing, inspection, and supervision, and having declared that the licensed class shall bear the expense of licensing and inspection, it cannot wholly exempt a part of the licensees and cast the whole burden upon the nonexempted subclasses. Such a provision is clearly arbitrary and discriminatory. While the legislature has a wide discretion acting within constitutional limits, its acts are void if they contravene the provisions of the constitution. Although the departure in this case is followed by comparatively slight inequalities, the character of these inequalities, however, is not affected by their size as measured in dollars and cents. Equality before the law is one of the fundamental principles upon which our [577] institutions rest, and like the virtue of a woman it must be 'held sacredly inviolate or it does not exist. We are of the opinion that the exemption of a part of the licensed class from hearing any part of the expense of licensing and inspection renders sec. 1, ch. 648, Laws 1917, void. The remainder of the law having stood substantially in its present form prior to the enactment of ch. 648, Laws 1917, is not affected by this decision and continues in full force and effect. By the Court. — The motion to quash the alternative writ is denied, and it is ordered that a peremptory writ as prayed for issue. ISTo costs to he taxed.