City of Milwaukee v. Piscuine

Dieterich, J.

(dissenting). I disagree with the opinion of the majority of this court in two respects. First, I do not believe that the conduct by Miss Artis came within the prescribed prohibitions of the ordinance. Secondly, I believe that if the ordinance in question is broadly construed, the ordinance is unconstitutional.

The ordinance in question prohibits, among other things, a female employee from accepting a drink at the bar of her employer. For the purposes for which the statute was promulgated “employee” should not be construed to include an employee who is off duty, even though she is on the premises of her employer. When defendant Artis ceased to entertain for the evening, her employment relationship was terminated until she again undertook to entertain the bar patrons. Therefore, at the time she had a drink with the gentlemen in the Lamp Post Bar she occupied the same position with respect to the provisions of the Milwaukee ordinance in question as any other female patron.

Any other construction of Milwaukee ordinance 90-25 would lead to an absurd result. The result reached by the majority of this court imposes a penalty on defendant Artis *614 for conduct in the Lamp Post Bar which conduct by her would be deemed lawful in any other bar in the city of Milwaukee. If she had gone to the bar nearest the Lamp Post Bar after her act and had a drink with a gentleman, there would have been no violation. What would be the result if defendant Artis had left the premises for ten seconds and returned — could she then drink with a male patron or must she delay her return for ten minutes, an hour, or some other undetermined time? When does defendant Artis cease to be an employee and become a patron? The only reasonable answer is that when she has ceased performing that service for which she was employed, in the instant case playing the piano as an entertainer, then her status as an employee ceased for the purpose of the ordinance. In my opinion the enforcement of Milwaukee ordinance 90 — 25 as construed by the majority members of the court will be arbitrary and capricious.

Secondly, I believe the ordinance here in question, as construed by the majority of this court, is unconstitutional. I cannot take a light view of any law which is broader than necessary to accomplish those purposes for which the law was enacted. It is unquestionably the prerogative of the city of Milwaukee to create ordinances for the purpose of regulating the sale of liquor. When considering the constitutionality of this ordinance, however, it is vitally important to recognize a distinction between the regulation of liquor traffic and the regulation and restriction of the individual. Penalizing the owner of a bar for engaging in prohibitive conduct is a valid exercise of police power; penalizing the entertainer individually is an attempt at regulating an individual’s conduct, not liquor traffic. When the ordinance in question is construed, so that activities lawful on the premises of one establishment are unlawful on another, that ordinance becomes an unreasonable, arbitrary exercise of police power. It should be self-evident that overregulation of our society *615 through zealous exercise of the police power is inconsistent with the traditions of a free society. The gradual encroachment of individual liberties through the myriad of laws being promulgated on all levels of government results in the restriction and trammeling of our rights as surely as would the abolishment of the Bill of Rights. Only the courts stand between the individual and the great abundance of legislation threatening to overwhelm his rights to freedom in our democratic system of government. For that reason, I believe the court should become increasingly vigilant when determining questions involving 'matters- of due process, substantive or procedural. The Milwaukee ordinance in question, as construed by this court, is not reasonably related to the ends which it seeks to accomplish; nor reasonable because it unduly restricts the activities of the individual in order to accomplish the results for which it was enacted.