Milwaukee County v. Lake

Full title: MILWAUKEE COUNTY, Plaintiff and Respondent, vs. TOWN OF LAKE and others…

Court: Supreme Court of Wisconsin

Date published: May 8, 1951

48 N.W.2d 1 (Wis. 1951)

48 N.W.2d 1

Opinion

April 4, 1951 —

May 8, 1951.

APPEAL from a judgment of the circuit court for Milwaukee county: ROLAND J. STEINLE, Circuit Judge. Affirmed.

For the appellants there was a brief by George A. Bowman and William H. Bowman, both of Milwaukee, and oval argument by George A. Bowman.

For the respondents there was a brief by William J. McCauley, district attorney, and Oliver L. O'Boyle, corporation counsel, for Milwaukee county, and by Dougherty, Arnold Waters of Milwaukee, for the Boynton Cab Company and Robert De Meaux, and oral argument by Mr. O'Boyle and Mr. Suel O. Arnold.

Milwaukee county began an action August 10, 1949, against the town of Lake, Alvin O. Lieber, and Louis L. Hibicke to enjoin them from instituting proceedings or arresting operators of taxicabs pending a determination of the issues described in the complaint and for a determination of the constitutionality of ordinances adopted by the town of Lake. Judgment was in favor of the plaintiff. Defendants, town of Lake and Louis L. Hibicke, appeal.

On the 24th day of October, 1949, the complaint was amended by adding to it the following:

"16. That as this plaintiff is informed and believes, subsequent to the institution of the above action, the above defendant town of Lake, at a regular meeting of its town board, held on the 29th day of August, 1949, adopted an ordinance known and referred to as ordinance No. 336, entitled `Taxicab and limousine stands and regulations,' which said ordinance appears and is set forth in full in interpleaded defendant Boynton Cab Company's amended answer and cross complaint as Exhibit H thereof, and, as this plaintiff is informed and believes, the defendant town of Lake threatens to enforce said ordinance.

"That as this plaintiff is informed and believes, said ordinance No. 336 is now and was at all times hereinafter mentioned, null and void in that it is an unreasonable exercise on the part of said defendant town of Lake of its police power to regulate taxicabs and limousines within the limits of said town, and that it is unconstitutional and void and an illegal interference by said defendant town of Lake with plaintiff Milwaukee county's right to permit, in its discretion, ingress to and egress from its own county-owned premises constituting General Mitchell Field and the approaches thereto by such taxicab or limousine or common-carrier owners or operators as said plaintiff county may, in its discretion, choose; and that the enactment and enforcement of said ordinance No. 336 constitutes a violation of existing contracts between Milwaukee county and various aviation companies, which said contracts guarantee access by taxicabs, limousines, and other transportation facilities to General Mitchell Field and the administration building thereon located as may be necessary, in the opinion of said aviation companies, to the adequate and prompt transportation of the general public using the facilities of said field.

"Further, plaintiff alleges that said ordinance No. 336 is vague and uncertain as to the location of said proposed taxi stand and the manner and method of regulating taxicabs and other vehicles proposed to be located thereon, and the absence of any provision as to the manner and the cost of providing employees necessary for the operation of said taxi stand and upon whom said cost shall fall; and for the reason that said proposed taxi and limousine stand would, according to the provisions of said ordinance No. 336, be located within the limits of the public highway, to wit: Layton avenue, described in said ordinance, and would constitute a hazard upon said highway as far as the traveling public is concerned and would interfere with the proper use and maintenance of said highway and would constitute a violation of the parking ordinances enacted by plaintiff county and applicable to said highway and the specific portion thereof referred to in said ordinance."

And to the prayer of the complaint there was added the following:

". . . and declaring town of Lake ordinance No. 336 null and void for the reasons set forth in paragraph 16 of plaintiff's amended complaint, and enjoining the proposed and threatened enforcement of said ordinance; . . ."

The Boynton Cab Company, a corporation, and Robert De Meaux were interpleaded as defendants. The issues were so framed, by the pleadings consisting of the amended complaint, the cross complaints of the Boynton Cab Company and of Robert De Meaux, and the answers to the amended complaint and cross complaints, as to raise the questions of the constitutionality of the ordinances of the town of Lake and the lawfulness of the conduct of Milwaukee county in the operation of the airport owned by it but situated within the limits of the town of Lake. The trial court, being satisfied that Milwaukee county was entitled to maintain its suit in equity to preserve the rights of all concerned while the suit was pending, granted a writ of prohibition restraining the enforcement of the ordinances of the town of Lake. Other material matters will be referred to in the opinion.

The case was tried to the court and the following findings of fact were made:

"1. The plaintiff is a county duly organized under the laws of the state of Wisconsin.

"2. The defendant, town of Lake, is a municipal corporation, located in the county of Milwaukee, state of Wisconsin, immediately to the south of the city of Milwaukee.

"3. The defendant, Alvin O. Lieber, was at the commencement of this action, the duly elected, qualified, and acting justice of the peace of the town of Lake, but is now deceased. Pursuant to agreement of the parties, the action has been abated as to the said defendant.

"4. The defendant, Louis L. Hibicke, at all of the times since the commencement of this action, has been the acting constable of the defendant, town of Lake.

"5. The interpleaded defendant, Boynton Cab Company, is a Wisconsin corporation, and is engaged in the business of owning and operating taxicabs in the city of Milwaukee, and other municipalities in the county of Milwaukee, including the town of Lake. Its principal office and garage and repair shop is located at 1232 North Edison street in downtown Milwaukee, nine miles from the airport. The defendant, Boynton Cab Company, is also engaged in the business of owning and operating airport limousines to and from the city of Milwaukee and General Mitchell Airport, under a permit issued by the public service commission of Wisconsin, establishing the route to be followed in the town of Lake, between the airport and the city of Milwaukee.

"6. The defendant, Boynton Cab Company, is duly licensed by the city of Milwaukee, to operate taxicabs in the said city. The drivers of said taxicabs are likewise duly licensed by the city of Milwaukee. The said limousines I operated by the interpleaded defendant, Boynton Cab Company, are also licensed as taxicabs by the city of Milwaukee, and the drivers of said limousines are also licensed as taxicab drivers by the city of Milwaukee. Neither the said taxicabs nor the said limousines are licensed as taxicabs or limousines by the defendant, town of Lake.

"7. The interpleaded defendant, Robert De Meaux, resides in the city and county of Milwaukee, and his occupation is that of a limousine and taxicab driver and is employed by the interpleaded defendant, Boynton Cab Company.

"8. The county of Milwaukee is the owner and operator of General Mitchell Airport, which is located in the defendant, town of Lake, approximately nine miles from the downtown section of the city of Milwaukee.

"9. The said airport is under the control and supervision of the highway committee of the county board of supervisors; the said supervisors have engaged Reginald J. Schmitz as the acting manager of said airport. The county of Milwaukee has entered into contracts with Capital Airlines, Inc., Northwest Airlines, Inc., American Airlines, Inc., United Airlines, and Wisconsin Central Airlines, Inc., all of which air lines have been duly licensed by the civil aeronautics board to operate common-carrier airplanes for the transportation of passengers for the use of General Mitchell Field and the administration building located thereon in the conduct of their business as common carriers of passengers. Each of said contracts gives to the said air lines the right of ingress to and egress from the said airport and confers the right upon each of said air lines to furnish ground transportation between Milwaukee and the said airport for the passengers using said air lines.

"10. The said contracts entered into between the county of Milwaukee and the said air lines are similar in form and content to contracts entered into between air lines and other counties in the United States.

"11. Pursuant to the rights conferred by the said contracts between the plaintiff, Milwaukee county, and the air lines, Capital Airlines, Inc., Northwest Airlines, Inc., American Airlines, Inc., and Wisconsin Central Airlines, Inc., have entered into written contracts with the interpleaded defendant, Boynton Cab Company, and United Airlines has entered into an oral contract with the Boynton Cab Company, for the transportation of passengers using said air lines between the city of Milwaukee and the said airport.

"12. The said contracts entered into between the said air lines and the Boynton Cab Company impose the duty on the interpleaded defendant, Boynton Cab Company, to provide transportation service for all passengers using said air lines between the said airport and the central business district of the city of Milwaukee, together with the baggage of said passengers, and, subject to the availability of space, such material and mail as the said air lines shall request the said interpleaded defendant, Boynton Cab Company, to carry, and which may be reasonably transported in the vehicles operated by the said Boynton Cab Company. The defendant, Boynton Cab Company, agreed to provide as many vehicles as may be needed to service all inbound and outbound flights of said air lines, and the said vehicles used by the Boynton Cab Company shall be made available for operation twenty-four hours each day. In order to take care of the necessary transportation at the airport, the Boynton Cab Company is required to supply a sufficient number of employees to act as starters. The Boynton Cab Company is required, at its own expense, to provide vehicles and proper authorization for the operation thereof from appropriate federal, state, municipal, or other governmental authorities. The Boynton Cab Company is required to have its drivers in proper uniforms and to use vehicles acceptable to the said air lines. Workmen's compensation for its employees must be furnished by the Boynton Cab Company, and liability insurance, with a limit of not less than $50,000 for death or injuries to any one person, and a minimum of $100,000 for injuries resulting from any one accident and property-damage liability, with a limit for each accident of $5,000 must be furnished by the Boynton Cab Company. The Boynton Cab Company shall charge and collect from each passenger conveyed under the agreement, the sum of seventy-five (75¢) cents for a one-way trip between the central business district of Milwaukee and the said airport. In the event the said air lines are compelled to cancel any flight, the Boynton Cab Company is required to return passengers from the airport to the central business district of Milwaukee, for the sum of fifty (50¢) cents, which sum will be paid by the said air lines, and is required to refund to any passenger who has been transported from Milwaukee to the airport, and who is unable because of said cancellation of flight to leave Milwaukee, the sum of seventy-five (75¢) cents which was paid by said passenger for said transportation, and the air lines will pay to the Boynton Cab Company the sum of fifty (50¢) cents for such transportation. In the event there is sufficient space in the vehicles provided by the Boynton Cab Company, employees of the air lines may use said vehicles and the Boynton Cab Company shall be paid at the rate of thirty-five (35¢) cents for each of said passengers for a one-way trip between the city of Milwaukee and the said airport. The said contracts expressly provide that the air lines will encourage its air-line passengers to use the service provided by the Boynton Cab Company under the agreements with the air lines, but it is provided in said contracts that the passengers of said air lines retain the privilege of choosing the type of transportation that they desire to use between the General Mitchell Field Airport and the business district of the city of Milwaukee. During the term of the contracts, however, the air lines agree not to enter into a similar contract with any comparable surface transportation agency. The said contracts provide that they may be terminated on thirty days' notice by either party.

"13. At the time said contracts were entered into between the interpleaded defendant, Boynton Cab Company, and the said air lines, some of the said air lines attempted to obtain a similar contract from other taxicab companies, but no other taxicab company operating in the county of Milwaukee will enter into a contract similar to that which was negotiated with the interpleaded defendant, Boynton Cab Company.

"14. The said air lines advertise in their timetables that ground-transportation service is available at Milwaukee to and from the downtown section of Milwaukee and the airport, for the sum of seventy-five (75¢) cents.

"15. The said contracts entered into between the interpleaded defendant, Boynton Cab Company, and the said air lines are similar in form and content to contracts entered into between air lines and ground-transportation companies at other airports in the United States.

"16. The Boynton Cab Company pursuant to the said contract with the said air lines has owned and operated airport limousines between the said airport and downtown Milwaukee. Airport passengers are picked up and discharged at the Schroeder, Plankinton, and Pfister hotels.

"17. Airport passengers are picked up and discharged at the administration building located on said airport. The said administration building is located on the northern boundary of the said airport and approximately one hundred fifty (150) feet south of East Layton avenue, which is a public highway running in an easterly and westerly direction along the north boundary of the said airport. The said Layton avenue is 84.5 feet wide. The width of the highway north of the center line is sixty feet, the pavement is forty feet in width, twenty feet of which is north of the center line, and twenty feet south of the center line. The entrance to the said administration building is effected by means of an entrance and exit in the form of a horseshoe. The entrance and the exit are twenty feet wide and run in a northerly and southerly direction from East Layton avenue. There is a grassplot between the entrance and the exit. The entrance to the administration building which is used by passengers is at the south end of the horseshoe, which has a width of fifty feet in front of the administration building. The traffic the administration building enters the west leg of the horseshoe and departs from the administration building on the east leg. West of the west leg and east of the east leg, there are public parking stations for automobile traffic. The airport manager, in order to provide for expeditious regulation of traffic, has established a stand for the airport limousines of the interpleaded defendant, Boynton Cab Company, adjacent to the entrance to the said administration building, which said stands, under said regulations, are used exclusively by the said limousines. The airport manager has likewise provided for the movement of taxicabs, and has established a taxicab stand at the south end of the said grassplot between the said entrance and exit. The said regulations provide that all taxicabs shall solicit passengers from said stand. All taxicabs, regardless of ownership, and including taxicabs of Checker Cab Company, Airways Cab Company, Veterans Cab Company, and cabs operated by the Boynton Cab Company, use said stand. The drivers of said taxicabs have equal rights, and no discrimination has been practiced by the airport management with respect to the use of said taxicab stand by said taxicabs.

"18. The public-transportation facilities in the town of Lake, in addition to the operation of taxicabs and the said airport limousines, consist of buses operated by the Milwaukee Electric Railway Transport Company. One bus line operates in the town of Lake to St. Francis, on the shore of Lake Michigan. This bus line does not operate in the vicinity of General Mitchell Airport. Another bus line operates between the streetcar terminal on Howell avenue approximately one fourth of a mile north of East Layton avenue, to the airport and returning to said terminal. Other buses operate over the same route but continue east past the airport to the city of Cudahy, and return from the city of Cudahy past the said airport. Such bus service is not attractive for airport passengers, and is utilized mainly by employees of the airport and student flyers. The said bus service is afforded only during certain hours of the day and early evening, and the interval between buses is twenty-five minutes.

"19. Despite the population of the town of Lake, which is approximately 20,000, there are very few prospective taxicab passengers who live in the town of Lake, or who desire to be discharged in the town of Lake, at any point other than the airport. The interpleaded defendant, Boynton Cab Company, does not operate either its limousines or its taxicabs in transporting passengers wholly within the town of Lake, and its operations are confined to interurban transportation between the said airport and the town of Lake, city of Milwaukee, and other municipalities both in and out of Milwaukee county.

"20. In the latter part of the month of July, 1948, Edwin F. Puzia, who resides at 1200 South Fifth street, in the city and county of Milwaukee, and who operates under the firm name and style of Airways Cab Company, commenced operating two taxicabs and two so-called limousines in the town of Lake. His taxicab stand was located on the north side of East Layton avenue, a short distance west of the entrance to General Mitchell Field. He maintained no other taxicab stand in the town of Lake, and his taxicab business consisted almost entirely in the transportation of passengers between the said airport and the city of Milwaukee.

"21. In the month of November, 1948, the town of Lake adopted a taxicab ordinance No. 326. The said ordinance provided that taxicabs could not be operated within the limits of the town of Lake unless they were licensed by the town of Lake as provided in the ordinance. The minimum requirement for taxicabs was specified at one cab for each 2,000 population. No license would issue unless the applicant was a resident of the town of Lake, if an individual, or unless the records and main office of a corporation were located in the town of Lake. Violation of the ordinance might result in a fine of $10 to $100 and in default of the payment of the fine, imprisonment in the house of correction of Milwaukee county, not less than one nor more than thirty days.

"22. Pursuant to the said ordinance, the town of Lake issued a license to the said Edwin F. Puzia in the latter part of December, 1948, for two taxicabs and two limousines, and thereafter the said vehicles were operated by the said Edwin F. Puzia pursuant to said license. During the trial of this action the said license issued to the said Edwin F. Puzia was suspended by reason of his inability and refusal to procure automobile liability insurance policies in conformity with ordinance No. 333 of the town of Lake.

"23. On the 13th day of July, 1949, an ordinance No. 332, licensing taxicabs, limousines, and buses, was adopted by the town board of the town of Lake. It was stipulated by counsel for the defendants, town of Lake, Alvin O. Lieber, and Louis L. Hibicke, that the said ordinance was invalid, under the decision in Keefe v. Schmiege, 251 Wis. 79, for the reason that the said ordinance provided for both fine and imprisonment for a violation thereof.

"24. On the 22d day of August, 1949, the town board of the town of Lake adopted ordinance No. 333, which purports to regulate taxicab, limousine, and bus operations in the town of Lake. The said ordinance contains practically the same provisions as ordinance No. 326, except that the ordinance, in addition, regulates the operation of limousines and buses.

"25. On the 22d day of August, 1949, the town of Lake adopted ordinance No. 335, providing for the regulation of common-carrier motor carriers of passengers in the town of Lake, requiring such common carriers to obtain a license from the town of Lake and requiring compensation for the repair and maintenance of pavement and bridges, and for the regulation of street traffic in accordance with the following schedule:

"`For motor vehicles having the largest seating capacity regularly operated by the owner or operator of such vehicles in the town of Lake, the following maximum annual license fee: One hundred ($100) dollars.

"`For all other motor vehicles having a smaller seating capacity, the annual license fee charged shall not exceed a proportionate sum based on the ratio of the seating capacity thereof to the seating capacity of the largest motor vehicle regularly operated in the town of Lake by such owner or operator.

"`For motor vehicles operated in local passenger service over a regular route which extends from the town of Lake into one or more adjoining or successive cities or villages within Milwaukee county, and the traversed territory intervening between any such municipality and the next such municipality served does not exceed six thousand (6,000) feet, the license fee to be paid to the town of Lake for the operation of motor vehicles over such route shall be that portion of the regular license fee, namely, one hundred ($100) dollars, represented by the proportion which the number of motor-carrier miles operated in the town of Lake bears to the total number of motor-vehicle miles operated over such route by the operator seeking licenses, except that mileage traveled by such motor vehicles through any municipality or municipalities not permitted by law to receive motor-vehicle license fees shall not be included in computing the fee due to the town of Lake.'

"The said ordinance contains appropriate provisions for penalties for a violation thereof.

"26. On the 29th day of August, 1949, the town board of the town of Lake adopted ordinance No. 336. The said ordinance established a taxicab stand on the south side of Layton avenue, as follows:

"`On Layton avenue, south side, from a point west of the entrance to the administration building of Billy Mitchell Field to a point one hundred (100) feet west thereof six (6) cabs.

"`Taxicab stands may hereafter be created and maintained in other sections of the town of Lake. Such taxicab stands shall be confined to places alongside the curb and the center of any street where the roadway, exclusive of the sidewalk, is forty feet in width or more.

"`The constable of the town of Lake shall arrange to provide suitable signs which shall clearly designate said taxicab and limousine stands, which signs shall be attached to a post or stanchion adjacent to said stand.'

"The said ordinance further provided that no taxicab or limousine waiting for employment should enter the entrance to the administration building at the airport except from said stand, and only in single file.

"The said ordinance provided that no person, firm, municipal corporation, or officer or agent, should grant any exclusive right to any taxicab or limousine driver or owner in discrimination of any other licensed taxicab driver or owner.

"The said ordinance contained the following provision:

"`It shall be unlawful for any taxicab operator or chauffeur not licensed to do business and operate his taxicab in the town of Lake to daily solicit passengers from the Billy Mitchell Field or any other point in the town of Lake.

"`It shall be unlawful for any taxicab and/or limousine operator or chauffeur not licensed to do business and operate its taxicab or limousine in the town of Lake to set up a taxicab or limousine station in the town of Lake for the purpose of daily soliciting passengers from said airport or any other point in the town of Lake.'

"Air-line companies operating at the Mitchell Airport were forbidden by said ordinance from entering into agreements for ground transportation of their passengers in the following language:

"`It shall be unlawful for any taxicab operator or chauffeur not licensed in the town of Lake to enter into an exclusive contract with any air-line company to carry by taxicab or limousine passengers of said air-line company for the purpose of discriminating against licensed taxicab operators or chauffeurs, and for evading the town of Lake taxicab ordinance, contrary to the statutes in such case made and provided.

"`It shall be unlawful for any air-line company to enter into any exclusive contract with any taxicab company not licensed in the town of Lake whereby such unlicensed taxicab operators or chauffeurs in discrimination against licensed operators and chauffeurs and for the purpose of evading the town of Lake taxicab and limousine ordinance.'

"Appropriate provisions were contained in said ordinance with respect to a violation thereof.

"27. Prior to the adoption of said ordinances Nos. 326, 332, 333, 335, and 336 by the town board of the town of Lake, no complaint had been made to the town board of the town of Lake with respect to the insufficiency of taxicab service at the General Mitchell Airport or in the town of Lake. The sole complaint with respect to the operation of taxicabs in the town of Lake was complaint received from the said Edwin F. Puzia, doing business as Airways Cab Company, which said complaint consisted in the charge against Reginald J. Schmitz and county employees at the said airport that the said Reginald J. Schmitz and said employees were discriminating against the taxicabs operated by the said Edwin F. Puzia. The purpose of the town board in enacting said ordinances Nos. 326, 332, 333, and 336 was to restrict the operation of taxicabs and limousines at the said airport to those operated by an individual or corporation licensed by the town of Lake.

"28. The volume of air-line passengers now using the air-line facilities at Mitchell Field is in excess of 200,000 per year, and the number of said passengers is constantly increasing. On occasions, due to weather conditions, it is necessary to ground airplanes at the said airport, and in the past there have been as many as thirty-six air-line passenger airplanes grounded on said field at one time. In order properly to take care of the ground-transportation needs of said passengers, a large number of limousines and taxicabs are required. There is no evidence to show that any individual now residing in the town of Lake, or any corporation maintaining its principal office in the town of Lake has sufficient vehicles available for taxicab and limousine service to take care of the ground-transportation needs of the said air-line passengers at said airport.

"29. On the 28th day of June, 1949, the county supervisors of the county of Milwaukee, enacted ordinance No. 4.07 (8), which provides that operators of taxicabs and limousines on the General Mitchell Airport property for the purpose of transporting passengers for hire to or from the airport premises shall secure a permit from the highway committee of the Milwaukee county board of supervisors for such purpose. Pursuant to the provisions of said ordinance, the Boynton Cab Company secured a permit from Milwaukee county for the operation of its vehicles on the said airport property.

"30. On the 3d day of November, 1949, the county board of supervisors of Milwaukee county enacted ordinance No. 11503, which said ordinance provided that there should be no parking on the south side of East Layton avenue, north of the said General Mitchell Airport. Counsel for the defendants, town of Lake and Louis L. Hibicke, have stipulated in open court that such ordinance has superseded and rendered null and void the said ordinance No. 336 adopted by the town of Lake.

"31. By means of the said ordinances adopted by the town of Lake, the said town has attempted to interfere with the management of said airport by the county board of supervisors of Milwaukee county.

"32. On a number of occasions subsequent to the adoption of said ordinance No. 326, the defendant Louis L. Hibicke has attempted to control the operation of taxicabs on the airport property owned by Milwaukee county, and has arrested drivers of taxicabs and limousines employed by the interpleaded defendant, Boynton Cab Company. Such arrests consist, among others, in the arrest of the interpleaded defendant, Robert De Meaux, on the 28th day of June, 1949, which said arrest culminated in a conviction under ordinance No. 326 of the said Robert De Meaux by the defendant, Alvin O. Lieber, as justice of the peace of the town of Lake, the said charge having consisted in the fact that Robert De Meaux, who was then operating one of the airport limousines of the defendant Boynton Cab Company, had solicited passengers in violation of said ordinance No. 326, since he was not licensed as a taxicab driver by the town of Lake at said time.

"33. On several occasions, the said defendant Louis L. Hibicke acted in a loud, boisterous, and unruly manner in the administration building in the presence of passengers using the said air lines, and has caused embarrassment to the said air lines and to the management of the said airport, and has thereby adversely affected the relations between the said air lines and the airport management and the said air-line passengers.

"34. The said Louis Hibicke gives out and threatens that he will continue to interfere with the operation of taxicabs on the said airport unless enjoined and restrained by the circuit court for Milwaukee county.

"35. The drivers employed by the said Edwin F. Puzia have on several occasions violated the regulations of the airport manager with reference to the operation of taxicabs on the said airport property, and it has been necessary to have the said drivers arrested by deputy sheriffs employed at said airport.

"36. Neither the county of Milwaukee, through its county board, its county highway committee, or Reginald J. Schmitz, the manager of General Mitchell Airport, or any other county employees, have combined, confederated together, or conspired with any of the air lines operating as passenger common carriers at the said General Mitchell Airport, or with the Boynton Cab Company, for the purpose of discriminating against any operator or taxicabs at the General Mitchell Field, and no conspiracy between anybody has ever existed for the purpose of discriminating against any operator of taxicabs licensed as a taxicab operator by the defendant, town of Lake.

"37. Milwaukee county, its county board of supervisors, its county highway committe, [committee] Reginald J. Schmitz, the airport manager, and the employees of the county of Milwaukee at said airport have at all times treated fairly and impartially all operators of taxicabs at General Mitchell Field."

FAIRCHILD, J.

A municipality owning an airport and operating it under a valid statute is entitled, through its governing body, to provide for the enforcement of regulations duly adopted by the municipality, ch. 114, Stats. 1949.

Because of the nature and purpose of airports, they are usually located a sufficient distance from thickly settled areas to provide safety for the planes utilizing the facilities, as well as for the safety and comfort of the residents of a given territory. The location of the airport, therefore, at a distance from a populous city of the county owning such airport would necessarily place upon the governing body the duty of giving consideration to ground transportation of the patrons. Reasonable rules and regulations must be adopted. See Anno. 161 A.L.R. 748. It was held in Weinstein v. McKenzie, 177 Misc. 451, 30 N.Y. Supp. 2d 733, that New York City had the power to adopt a regulation specifying the manner in which taxicabs may solicit passengers at the La Guardia Field, a municipal airport. From textbooks on the subject of managing and operating airports, there appears to be a general recognition of the right to make workable and reasonable regulations.

The appellants here take the position that the county of Milwaukee, the owner of the airport, has exceeded its authority in the exercise of its controlling power with relation to ground transportation within the airport. This claim of excess of authority is based upon regulations of the respondent county and the contracts entered into by it with the airplane companies which use the facilities of the airport.

Acting under the terms of ch. 114, Stats., the county has entered into certain contracts providing for the use of the field by certain air-line companies and has made provision for the management and maintenance thereof as described in the findings of fact in the statement of facts preceding this opinion. The contracts referred to are with the Capital Airlines, Inc., Northwest Airlines, Inc., American Airlines, Inc., United Airlines, and Wisconsin Central Airlines, Inc. These companies have been duly licensed by the civil aeronautics board to operate common-carrier airplanes for the transportation of passengers using the General Mitchell Field. The contracts also relate to the use of the administration building located on the field in the conduct of the business of these common carriers of passengers. As appears in finding of fact No. 9, "Each of said contracts gives to the said air lines the right of ingress to and egress from the said airport and confers the right upon each of said air lines to furnish ground transportation between Milwaukee and the said airport for the passengers using said air lines." The contracts, however, so far as they relate to management, are in the interests of the traveling public and the maintenance of efficient service essential to the business of the planes and the owner of the airport. It is insisted on the part of the appellants that there are advantages resulting to the intervening defendants, the respondent Boynton Cab Company and its drivers, over others desiring to compete with them. But the cab company has contracted with the air lines to stand by with sufficient transportation facilities to carry patrons to and from the city of Milwaukee. As appears from the facts stated in finding of fact No. 12, there is imposed upon the Boynton Cab Company the obligation to provide transportation service for all passengers using said air lines between the airport and the central business district of the city of Milwaukee. However, the air lines are required to recognize the fact that passengers of said airplanes retain the privilege of choosing the type of transportation they desire in traveling to and from the airport and the business district of the city of Milwaukee. It is to be borne in mind on the question of the existence of a monopolistic result that at the time the contracts were entered into between the Boynton Cab Company and the air lines, some of the air lines attempted to obtain a similar contract from other taxicab companies, "but no other taxicab company operating in the county of Milwaukee will enter into a contract similar to that which was negotiated with the interpleaded defendant, Boynton Cab Company." (See finding No. 13.) The so-called advantages are peculiar to the nature of the business and are warranted as reasonable provisions for convenience and do not go beyond proper limitations in providing accommodation for individuals using the air lines as passengers.

Preceding the adoption of certain ordinances referred to in the statement of facts, ground transportation at the airport was handled by the use of taxicabs, the cabs getting in line in the horseshoe referred to in the findings of fact, moving from the west around the horseshoe. When limousines began to be used for ground transportation, they got into line both east and west of the administration building and filled the loading space. We here quote the following from' appellant's brief:

"The taxicabs, which came into the airport to meet the planes, finding the line next to the administration building full, made a line of their own across the horseshoe street, across from the limousine line. The taxicabs could also park in the limousine line, if there was room for them there . . . .

"After Milwaukee county passed its ordinance sec. 4.07 (8) on June 28, 1949, giving its airport manager power to regulate parking in the horseshoe highway, the airport manager established in this highway two parking stands. The first was for limousines, extending next to the entrance of the administration building west along the horseshoe. The second was for taxicabs across the horseshoe street from the limousine stand, and extending west along the horseshoe . . . .

"Ordinance 4.07 (8) also provided that the drivers of vehicles while on duty and soliciting trade shall remain within ten feet of their vehicles; drivers and operators are prohibited from soliciting in the administration building; except that any permittee under the direction of the airport manager may install a telephone for a starter . . . .

"On July 6, 1949, Constable Louis Hibicke began to enforce the town of Lake taxicab ordinance by arresting Robert De Meaux for driving a Boynton cab in the town of Lake without a license from the town. He also arrested drivers of the Veterans, Radio, and Checker cabs for the same reason. While Hibicke was handing out these tickets for the arrest of these drivers, the airport manager protested, but after a conference with J.P. Robertson, manager of the Boynton Cab Company, told the various drivers to accept those tickets . . . .

"Mr. Schmitz then changed the limousine parking sign to a `Common Carrier' sign, and when limousines of other cab companies refused to get out of the `Common Carrier' line, he issued tickets for their arrest . . . .

"When these cases finally came before Judge BARRY of the Milwaukee county traffic court, he dismissed them for the reason that this ordinance carried no penalty and the rule laid down by Mr. Schmitz had not been published . . . ."

Objection was made by individuals who claimed that the contracts entered into between the air lines operating at the field and the Boynton Cab Company were illegal and monopolistic, pointing to the arrangements made for taxicab stands as they affected the readiness of access to the passengers disembarking from the airplanes and thus interfering with the opportunity to solicit passengers.

The county of Milwaukee regarding the situation as seriously affecting the business of the airport seeks relief in this suit in equity. The questions involved were presented to the trial court in a thoroughly complete manner. This appears from a record consisting of more than thirteen hundred pages of testimony together with many illuminating exhibits. The learned trial judge, in a very studied analysis of the testimony made the findings of fact. These findings are supported by the evidence and warrant the conclusion of law there reached. We have set forth in the statement preceding this opinion the complete findings of fact and a review of the testimony here is unnecessary beyond an occasional reference thereto. The decision in the circuit court is based on evidence tending to show that the rules regulating the operations of the taxicabs and taxicab drivers are designed to protect the rights of the air-line companies and the traveling public. The traveler is not bound to use the Boynton service, although Boynton agrees to have at hand transportation to be paid for at a fixed rate to be charged to passengers if they choose to use the Boynton service in leaving the airport. The provisions in the contracts respond to the limitations calculated to prevent a monopoly. The contracts are subject to termination, and any competitor was and is free to compete for the privilege. These contracts of the Boynton Cab Company contain provisions exacting from the company a supply of an available number of cabs, whether used or not, the furnishing of workmen's compensation and personal-injury-damage liability insurance, as well as other stipulations well designed to attract patronage for the air lines of individuals desiring to visit for business or other reasons the city of Milwaukee.

An important fact appears in the case by the certificate issued pursuant to the provisions of ch. 194 of the statutes granting the Boynton Cab Company authority to operate vehicles upon the public highways of the state of Wisconsin as a common motor carrier of passengers over the route "between Billy Mitchell Field (county airport) in the town of Lake, Milwaukee county, on the one hand, and points in the city of Milwaukee, on the other hand, over various city streets, and via South Howell avenue, South Pine avenue, and East Layton avenue between the city limits and Billy Mitchell Field."

Appellants further insist that sec. 85.82, Stats. 1949, does not authorize the engagement of a taxicab or taxicab driver as provided by the arrangement here under discussion, although such cab and driver are duly licensed by the city of Milwaukee. It appears clearly enough that there could be no objection to the use of the cabs by the passengers desiring to go to the airport or to Leave the airport in the absence of the arrangement under which this stand-by facility is provided for. A proper journey carrying a passenger from Milwaukee to the airport or a passenger from the airport to Milwaukee does not change its character by reason of the fact that repeated journeys of that nature are made day after. day. The legality of a series of acts does not necessarily depend upon the number of them. Under sec. 85.82 the cabs and drivers duly licensed by the city of Milwaukee have the right to visit the airport day after day in the manner set forth in the findings and stand by in readiness to accommodate the passengers of the airplanes, as the Boynton Cab Company is bound to do under the contract which exists between that company and the airplane companies. They are operating under the provisions providing for interurban carriage and are not operating wholly within the town of Lake. The sphere and extent of the operation of respondents, Boynton Cab Company and Robert De Meaux, is so limited that they are within the terms and provisions of sec. 85.82. The material portion reads: ". . . Any person licensed by any city or village as a chauffeur and operator shall not be required to procure either a chauffeur's and operator's license or a taxicab license in any other municipality for the purpose of carrying taxicab passengers for hire from one municipality to another, but this exception shall not permit such chauffeur or operator to operate a taxicab wholly within the limits of any municipality in which such chauffeur or operator is not licensed." Under this statute the frequency of the operation does not carry over to the town of Lake authority to impose a license fee upon the interpleaded defendants, and they are at liberty to carry on so long as the operations are purely interurban. There is no dispute over the fact that the Boynton Cab Company and the other intervening defendant, Robert De Meaux, were duly licensed in their respective capacities by the city of Milwaukee to operate the cabs. The trial court reached the conclusion that the contracts "entered into between the air lines operating at the said General Mitchell Field and the Boynton Cab Company are not illegal, are not monopolistic, and do not violate the provisions of sec. 27.05, ch. 114, or ch. 133, of the Wisconsin statutes, or any other law of Wisconsin, and are designed to and do in fact provide for safe and efficient ground transportation at a reasonable rate for the air-line passengers at General Mitchell Field."

With the facts as determined and the conclusions based thereon becoming inevitable, other questions involved in this long dispute are in large measure disposed of, and the town of Lake may not, by ordinance seeking to overthrow or invade the statutes of the state or the ordinances and regulations duly adopted and made by the owner of the airport and its duly authorized agents, do that which would create a situation making it unnecessarily difficult for the county to operate its airport.

The judgment of the trial court holding that the county of Milwaukee "as the owner of General Mitchell Field has the exclusive right to manage said field, including the right to regulate the ground transportation to be furnished to airline passengers arriving at and departing from General Mitchell Field on the property of Milwaukee county, including the entrances to and exits from the said field adjacent to Layton boulevard" must be affirmed.

These exits are not part of the highway. They are on the property of the airport owned by Milwaukee county, and the supervisors of the county in engaging Reginald Schmitz as acting manager of said airport were exercising a duty imposed upon them by the legislation governing the airport. The county, having entered into contracts with the different air lines, all of them duly licensed by the civil aeronautics board to. operate common-carrier airplanes, was bound to regulate the matters affecting the use of the field so as to produce efficiency and good order and to prevent confusion which necessarily would arise at an airfield where hundreds of thousands of passengers are annually passing through the gates, and which if left without regulation would hobble operations and seriously interfere with the safety and comfort of the traveling public.

With relation to the validity of the ordinances under which the town of Lake attempts to exercise certain powers by reason of its municipal character, limiting and to some extent exercising control over the service which Milwaukee county is endeavoring to afford those who desire to use the facilities of the airport, the trial court concluded, and it is considered that it did so correctly, that the ordinances described as Nos. 326 and 333 of the town of Lake are void because they are an attempt to deprive the Boynton Cab Company and Robert De Meaux of their property rights without due process of law. They deny to the Boynton Cab Company and Robert De Meaux the equal protection of the law in violation sec. 1 of art. I of the constitution of the state of Wisconsin and sec. 1 of the Fourteenth amendment to the Federal constitution. In the judgment entered below, it is declared: "That portion of ordinances Nos. 333 and 335 of the town of Lake, requiring operators and drivers of limousines to obtain licenses from the town of Lake, for the operation of limousines for which the public service commission of Wisconsin has issued permits to operate interurban between the city of Milwaukee and the General Mitchell Field, is illegal and void . . . . That portion of ordinance No. 335 of the town of Lake, which levies a tax against Boynton Cab Company on account of the operation of limousines for which permits have been granted by the public service commission of Wisconsin for interurban service between the city of Milwaukee and General Mitchell Field, is void . . . . The contracts entered into between Milwaukee county and the common-carrier passenger air lines concerning the use by the latter of the facilities of General Mitchell Field, are legal and valid and a proper exercise of the power of Milwaukee county in the management of General Mitchell Field . . . . . The contracts entered into between Boynton Cab Company and the air lines operating as common-passenger carriers at General Mitchell Field are legal and valid."

And we agree with the trial court's conclusions that "ordinance No. 336, in so far as it purports to regulate the operations of limousines by the interpleaded defendant, Boyton Cab Company (permits have been issued by the public service commission of Wisconsin to said cab company) is invalid in that it violates the provision of sec. 194.18 of the Wisconsin statutes, as interpreted by the decision in Safe Way Motor Coach Co. v. Two Rivers, 256 Wis. 35 . . . . Ordinance No. 336, in so far as it prevents the operator of a taxicab licensed by the city of Milwaukee and a taxicab driver licensed by the city of Milwaukee from daily soliciting passengers at the General Mitchell Airport, violates the provisions of sec. 85.82 of the statutes, and is invalid and void as to the interpleaded defendants, Boynton Cab Company and Robert De Meaux . . . . Ordinance No. 336, in so far as it purports to regulate the contracts entered into between airline operators at General Mitchell Field and Milwaukee county and contracts entered into between said air-line operators and the interpleaded defendant, Boynton Cab Company, is invalid, in that it violates the provisions of sec. 27.05 and ch. 114 of the Wisconsin statutes, and in that it unlawfully interferes with the operation of General Mitchell Field by its owner, the plaintiff, county of Milwaukee."

Because of the facts found to exist and the law applicable thereto, it follows that the town of Lake, its officers and agents, are rightly enjoined and restrained from interfering with Milwaukee county in the operation of the General Mitchell Field and from attempting to regulate the conduct of those lawfully using the property of the Milwaukee county airport, "including the entrances to and exits from the administration building adjacent to Layton avenue, the vehicular traffic to and from said General Mitchell Field, including taxicabs and airport limousines operating pursuant to permits issued by the public service commission of Wisconsin." The judgment entered provides for the recovery of costs of the action, and this provision also must be affirmed.

Among the objections raised by the appellants to the proceedings is one to the effect that the action was not properly commenced. It is true that in the beginning there was no formal authorization directing the bringing of the action. However, the county board of supervisors did, on October 6, 1949, adopt a resolution approving of all that had been done in the matter of instituting the action and directing the corporation counsel to appear in behalf of Milwaukee county at the trial of said action. Thereafter the trial proceeded, and the trial court announced that Milwaukee county "is recognized as a proper party in this suit." In view of all that occurred in this case and the completeness of the trial, we are of the opinion that no error has occurred in this respect. Hughes County v. Ward (C. C.), 81 Fed. 314. In the expediting of business under circumstances such as here prevailed, where no prejudice has resulted, there is every reason for holding that the county board's ratification of the beginning of the action was proper during the pendency of the suit.

By the Court. — Judgment affirmed.