60 OAG 18 (1971)
 
60 OAG 18 TOP 18 19 20 21 22 23 24 25 26 END

ORAP - County Facilities - (Formal)

Although counties may charge reasonable fees
for the use of facilities in their county
parks, they may not charge such fees only
to out-of-state residents while allowing
all Wisconsin residents to utilize such
facilities free of charge simply because
ORAP or ORAP-200 funds are involved.

Such action would create an arbitrary and
unreasonable distinction based on residence
and unconstitutionally deny residents of
other states equal protection
of the laws.

U. S. Constitution,
Amendment XIV, Section 2;

Wisconsin Constitution,
Article I, Section 1;

Section 27.015(7)(f), Stats.

January 22, 1971.

JOSEPH J. SALITURO

Corporation. Counsel, Kenosha County

You advise that the number of out-of-state
people utilizing your county parks has become
so large that Wisconsin residents are being
denied the full utilization of these parks.

This situation has apparently generated a
desire to somehow control the use of your
county parks by nonresidents.

You further advise that your county is also
interested in generating revenue at its parks
to assist in paying for the cost of obtaining
and maintaining them.

With the foregoing goals in mind, your County
Park Commission has requested that you obtain
my opinion in reference to three somewhat
interrelated questions.

You first inquire as follows:

60 OAG 18 TOP 18 19 20 21 22 23 24 25 26 END

   Can we charge a fee to out-of-state
   residents who use any of our parks?

Generally speaking, parks are provided
for the benefit of and are held in
trust by government for the public.

10 McQuillin, Municipal Corporations
(3d ed., 1966 Rev. Vol.)
Section 28.52, p. 169

State ex rel. Hamranann v. Levitan (1929),
200 Wis. 271, 278, 279,
228 N.W. 140.

Thus, the dominant aim in their establishment
appears to be the common good of mankind,
rather than the special gain or private
benefit of a particular municipality.

39 Am. Jur., Parks, Squares, and Playgrounds
Section 18, p. 815.

As stated in 67 C.J.S., Park, at pp. 860-861:

    The word "park" generally means a
    public park, and the customary use
    of the term is to designate a piece
    of ground Maintained for the benefit
    and use of the public generally, a
    place open for everyone; and it
    carries no idea of restriction
    to any part of the public.

In modern times, the principal purpose of
most parks is public recreation, and included
in the word "recreation" is the right of
assemblage, aesthetic recreation and mental
and cultural entertainment as well as
physical recreation.

Committee for Industrial organization v.
Hague (1938), D.C.N.J., 25 F. Supp. 127, 145,
mod. on other grounds in 101 F. 2d 774 and
307 U.S. 496, 83 L.ed. 1423, 59 S.Ct. 954;
Bernstein v. City of Pittsburgh (1951), 366
Pa. 200, 77 A. 2d 452, 455.

Normally, however, local government may
establish reasonable fees relating to the use
of the park facilities if such fees are
designed to provide funds for the continuing
operations of such park facilities.
 

As stated in 64 C.J.S., Municipal
Corporations, Section 1818, at p. 303:

    Fees.
    As a general rule, municipal authorities
    may, in case of expense in maintaining
    service in a public park, demand a
    reasonable fee for individual use.

    So a reasonable fee may be charged for
    the use of a bathhouse, swimming pool,
    or pavilion.

See also
10 McQuillin, Municipal Corporations
(3d ed., 1966 Rev. Vol.)
Section 28.54, p. 191.

60 OAG 18 TOP 18 19 20 21 22 23 24 25 26 END

In Wisconsin, counties have specific
statutory authority to impose fees for
the use of county park facilities.

A county park commission established pursuant
to Section 27.02, Stats., possesses and
exercises all of the powers and duties
of a county rural planning committee
under Section 27.015, Stats.

See Section 27.015 113).
Section 27.015(7)(f), Stats., in turn,
provides that a county rural
planning committee:

   . . .may under the direction of the county
   board, operate a county park or parks for
   tourist camping and general public
   amusement, and may establish fees,
   concession privileges and grants
   and employ such help as is needed
   to operate the park or parks for
   the best county interests.

   The county board shall establish rules
   and regulations governing the conduct
   and behavior of patrons in and on
   any such park and shall provide
   for penalties for infraction
   of these rules and regulations . .. .

Even where authority to impose fees exists,
however, unless clearly evident from the
statute, such charges may not be established
for general revenue purposes.

Obviously, if our parks be viewed merely as a
source of revenue, the broad public purposes
they are intended to serve could be
frustrated in large measure and those
who would most benefit from them
might be deprived of their use.

39 Am. Jur., Parks, Squares, and Playgrounds,
Section 18, p. 815; 10 McQuillin, Municipal
Corporations (3d ed., 1966 Rev. Vol.)
Section 28.10, p. 23.

Therefore, since the above statute appears to
authorize charges for the use of county park
facilities only if related to current needs
for operation, (which term I construe as
sufficiently broad to include rehabilitation,
repair and other expenditures necessary to
maintain service), it cannot be viewed as
statutory authorization for the establishment
and utilization of public park fees for
the purpose of producing revenue for such
capital expenditures as the acquisition of
county parks.

In response to your first question, then, it
is clear from the foregoing that your county
may charge individuals, including
out-of-state residents, reasonable fees for
the use of facilities in your county park or
park system if such are imposed for the
purpose of providing funds for the continuing
Operation of such facilities.

60 OAG 18 TOP 18 19 20 21 22 23 24 25 26 END

Your second and third questions more
specifically inquire whether your county may
impose fees only on nonresidents of
Wisconsin.

You ask:

   Can we charge a fee to out-of-state
   residents and not state residents at those
   parks in which ORAP (one-cent cigarette
   tax) funds have been used since Wisconsin
   taxpayers, by paying this tax,
   help pay for the parks?
 

   Can we charge a fee to out-of-state
   residents and not Wisconsin residents at
   those parks in which ORAP 200 funds will
   be used since this will be a tax on all
   Wisconsin taxpayers?

Nonresidents and residents can be treated
differently where there are valid reasons
for doing so.

American Commuters Ass'n v. Levitt
(D.C.N.Y. 1967), 279 F. Supp., 40,
affirmed 405 F. 2d 1148.

See also 16A C.J.S., Constitutional Law,
Section 470, p. 209; 16 Am. Jur. 2d,
Constitutional Law, Section 474, pp. 828-829.

Thus, the courts will apparently allow a
municipality to make different provisions for
the use of specific public facilities for
people residing outside a municipality from
those residing in it, if the classification
is based on a reasonable distinction.

MeClain v. City of South Pasadena (1957),
155 Cal. App. 2d 423,
318 P. 2d 199, 207 (municipal plunge);

Schreiber v. City of Rye (1967),
53 Misc. 2d 259, 278 N.Y.S. 2d 527
(city golf course and swimming pool);

People ex rel. Village of Larchmont v.
Gilbert (1954), Co. Ct. 137 N.Y.S. 2d 389
(parking lot); People ex rel. Village. of
Lawrence v. Kraushaar (1949), 195 Misc. 487,
89 N.Y.S. 2c1 685 (parking lot);

Cartwright v. Sharpe (1968), 40 Wis. 2d 494,
162 N.W. 2d 5 (transportation of students).
And it has been held that a classification
may reasonably be based upon residence in a
county as against nonresidence.

Jones v. Hammer (1927), 143 Wash. 525,
255 P. 955, 957.

The foregoing cases clearly suggest that a
county may reasonably distinguish between
residents and nonresidents of the county
for the purpose of insuring that its
county parks remain available for
the use of inhabitants of the county.

60 OAG 18 TOP 18 19 20 21 22 23 24 25 26 END

However, while discrimination between
citizens and non-citizens or residents and
nonresidents, is not necessarily improper,
it often raises constitutional questions
requiring judicial consideration.

And as a general rule, unless required under
the police power of the state for the
protection of the local citizens, laws
establishing unequal burdens on the basis of
residence are held unconstitutional and void
as violating some constitutional provision,
including the privileges and immunities
clause of Article Four, Section Two and the
equal protection clause of Section One of the
Fourteenth Amendment, U.S. Constitution,
61 A.L.R. 63.

See also
Edgerton v. Slatter (1935),
219 Wis. 381,
263 N.W. 83;

Whipple v. South Milwaukee (1935),
218 Wis. 395,
361 N.W. 235;

Toomer v. Witselt (1948), 334 U.S. 385,
68 S.Ct. 1156, 92 L.ed. 1460, rehearing
denied 335 U.S. 837, 69 S.Ct. 112,
93 L.ed. 389.

The provision of the Fourteenth Amendment
which insures that "no state shall . . deny
to any person within its jurisdiction the
equal protection of the laws," not only
applies to the state but to all units of
government of the state, including counties.

5 McQuillin, Municipal Corporations
(3d ed., 1969 Rev. Vol.), Section 19.13,
Page 425, 16 Am. Jur. 2d, Constitutional Law,
Section 491, Page 856.

See also
State v. Dering (1893),
84 Wis. 585,
54 N.W. 1104.

In addition, equal protection of the law as
well as due process is also guaranteed to
all persons by Sections 1, 13 and 22 of
Article I, Wisconsin Constitution.

Chicago & N. W. Ry. v. La Follette (1969),
 43 Wis. 2d 631, 636,
169 N.W. 2d 441.

See also
State ex ret. Sonneborn v. Sylvester (1965),
26 Wis. 2d 43,
132 N.W. 2d 249,

Haase V. Sawicki (1963),
20 Wis. 2d 308,
121 N.W. 2d 876.

Since the equal Protection of the laws
guaranteed by both the Federal and our State
Constitution forbids only unreasonable
classification, the ultimate test is whether
the basis for the classification proposed in
your letter is reasonable.

5 McQuillin, Municipal Corporations
(3d ed. 1969 Rev. Vol.), Section 19.14.

See
State ex ret. Schopf v. Schubert (1969),
45 Wis. 2d 644, 651,
173 N.W. 2d 673;

Johnston v. Sheboygan (1966),
30 Wis. 2d 179, 184,
140 N.W. 2d 247.

It is elementary that all legislative acts
are presumed constitutional and every
presumption must be indulged to sustain the
law if at all possible.

60 OAG 18 TOP 18 19 20 21 22 23 24 25 26 END

Gottlieb v. City of Milwaukee (1967),
 33 Wis. 2d 408, 415,
147 N.W. 2d 633.

A legislative body, therefore, has very broad
discretion as to matters of classification
and its judgment in reference thereto enjoys
the presumption of reasonableness.

Gottlieb v. Milwaukee (1969},
41 Wis. 2d 643, 649,
165 N.W. 2d 198;
 

State ex rel. Baer v. Milwaukee (1967),
 33 Wis. 2d 624, 633,
148 N.W. 2d 21;

Associated Hospital Service, Inc. v.
Milwaukee (1961),
13 Wis. 2d 447,
109 N.W. 2d 271;
38 A.L.R. 2d 1395;

Kiley v. Chicago, M. & St. P. Ry. (1910),
142 Wis. 154, 159,
125 N.W. 464.

Such a presumption collapses, however,
in light of evidence which tends
to establish the contrary.

Schlichtinq v. Schlichting (1961),
15 Wis. 2d 147,
112 N.W. 2d 149.

See
29 Am. Jur. 2d, Evidence,
Section 165, p. 203.

The court will then scrutinize the
distinction in light of the standards for
constitutional classification established
by our Supreme Court in

State ex rel.
Ford Hopkins Co. v. Mayor (1937),
226 Wis. 215, 222,
276 N.W. 311,

which requires in part that all
classifications be based upon substantial
distinctions which make one class really
different from another, that the
classification be germane to the purpose
sought to be accomplished and that the
law apply equally to each member of a class.

See
Cayo v. Milwaukee,
supra, at pp. 649-650

and

State ex rel. Baer v. Milwaukee,
supra. at p. 633.

Chapter 427, Laws of 1961, referred to as the
Outdoor Recreation Act of 1961 or ORAP,
provided for the establishment of a long
range plan for a comprehensive statewide
system of recreational facilities to be
developed under the guidance of a state
recreation committee and financed by a
"penny-per-pack" cigarette tax.

The program included a number of specific
provisions authorizing state aid to assist
eligible counties in the acquisition and
development of outdoor recreational
facilities.

The general outdoor recreation program,
including those provisions relating to state
aids for county recreational facilities, was
significantly altered and greatly expanded by
the enactment of Chapter 353, Laws of 1969,
better known as ORAP-200.

Although the cigarette tax instituted under
the initial ORAP program continues, it is now
paid into the state general fund, and the new
program is financed through bonding and an
allotment from the general fund.

60 OAG 18 TOP 18 19 20 21 22 23 24 25 26 END

Normally, costs associated with the operation
and maintenance of parks and other outdoor
facilities have not been eligible for state
aid under either of these laws.

Since the occupational and use tax which
supported the original ORAP program was
ultimately passed on to the people who
purchased and used cigarettes in Wisconsin,
regardless of their residence, it does not
appear to form any reasonable justification
for discriminating against non-residents
of Wisconsin in the manner contemplated.

Under the ORAP-200 program this tax and all
manner of other general state revenues
which make up the general fund are
utilized to support the program.

However, these revenues are also obtained
from nonresidents of Wisconsin as
well as residents of this state.

Therefore, it appears that the ORAP200
legislation also fails to provide any
reasonable basis for the proposed
distinction.

Further, a primary purpose and intent of both
ORAP programs has been "to facilitate and
encourage the fullest public use" of our
outdoor recreation resources rather than
limit utilization of such facilities.

Your letter suggests that the capacity of the
public park facilities of your county are
limited and insufficient to meet the needs
of both county residents and the non
residents of your county who
seek to use them.

It is therefore understandable that your
county would and should take some appropriate
action designed to avoid excessive breakdown
and deterioration of your park facilities
which might result from overcrowding.

While parks normally provide recreational
opportunities for the public at large, it
is well recognized that parks of local
governmental units are intended for
the comfort and enjoyment of
the local inhabitants.

Baird v. Board of Recreation Com'rs. of
Village of South Orange,
108 N.J. Eq. 91,
154 A. 204, 208, 209;

Archer v. Salinas City,
93 Cal. 43, 28 p. 839;

Ramstad v. Carr,
31 N.D. 504,
154 N.W. 195, 200;

Bushard v. Washoc County,
68 Nev. 217,
236 P. 2d 793, 796;

Borough of Fenwick v. Town of Old Sorybrook,
133 Conn. 22,
47 A. 2d 849, 853.

60 OAG 18 TOP 18 19 20 21 22 23 24 25 26 END

Indeed, this concept appears to be recognized
in Section 27.015(7)(d), Stats., which
provides that county park authorities shall:
 

   27.015(7)(d)

   Consider and provide for the establishment
   of community parks and woodlands,
   proportioned and situated so as to provide
   ample and equal facilities for the
   establishment of community parks
   and residents of the county.

However, the congestion at your parks may be
caused or aggravated by nonresidents of your
county who reside in other Wisconsin counties
just as well as by nonresidents of Wisconsin.

Under such circumstances, the act of singling
out nonresidents of Wisconsin as the only
individuals to pay the subject fees would
appear to be based merely on the fact that
these people are citizens of other states.

In this regard, the discrimination which
would result from requiring a fee from some,
but not all, nonresidents of the county, is
similar to that considered in People ex rel.
Village of Lawrence, supra, in that case the
court held that where a village ordinance
fixed a municipal parking lot fee for
residents of two communities outside the
village limits at the same rate as for
village residents while charging all other
nonresidents a substantially higher fee,
it unconstitutionally discriminated as to
persons within a class of non-residents of
the village in violation of the equal
protection clauses of both the state and
federal constitutions.

As pointed out above, the fees authorized by
Section 27.015(7)(f), Stats., were presumably
intended to relate mainly to expenses of
operating county park facilities rather
than for the prevention of congestion
in your parks.

This is not to say that a legislative body
may not limit the number of people who will
engage in a particular activity, which if
carried on without restraint as to numbers
will be injurious to the public welfare,
by the imposition of a charge or fee
upon those engaging in the activity.

Milwaukee v. Hoffmann (1965),

29 Wis. 2d 193,
138 N.W. 2d 223.

But even if such fees were effective in
dissuading nonresidents of Wisconsin from
using your park facilities, the question
remains as to whether their numbers would
simply be replaced with an equal number of
residents from other Wisconsin counties.

Under such circumstances, of course,
the congested park conditions
would obviously continue.

60 OAG 18 TOP 18 19 20 21 22 23 24 25 26 END

For the foregoing reasons, I am of the
opinion that a county may not charge fees for
the use of facilities in their county parks
only to out-of-state residents while allowing
all Wisconsin residents to utilize such
facilities free of charge simply because
ORAP or ORAP-200 funds are involved.

Such action would create an arbitrary and
unreasonable distinction based on residence
and unconstitutionally deny residents of
other states equal protection of the laws.

In so concluding, however, I do not mean to
intimate that situations may not arise which
could form a reasonable basis for such
distinction or that a county may not
determine that circumstances justify the
establishment of fees for the use of such
park facilities which would apply to all but
residents of the county in which the park or
park system is located.

RWW :JCM

60 OAG 18 TOP 18 19 20 21 22 23 24 25 26 END