Appeal from a judgment of the Circuit Court for Marathon County: Ronald D. Keberle, Judge.
Foley, P.j., Dean and Cane, JJ.
The opinion of the court was delivered by: Cane
Fred and Ruth Butzlaff appeal a judgment dismissing their complaint for damages incurred as a result of Ralph Erdman seizing their horses under ch 173, Stats. *fn1 The Butzlaffs argue that their horses were seized pursuant to an unconstitutional statute and that they are entitled to actual and punitive damages as a result of the seizure. Because the Butzlaffs would not be entitled to damages from the respondents even if the challenged law were declared unconstitutional, we affirm.
The trial court's factual findings are not challenged. The Butzlaffs failed to properly maintain a portion of a fence on the border of their property and Erdman's. Four of the Butzlaffs' horses crossed this portion of fence onto Erdman's property and damaged his corn and hay crops. Pursuant to ch. 173, Erdman held the horses, mailed notice to the Butzlaffs, and applied to the town chairperson for appointment of three disinterested freeholders of the town to appraise the damage done by the horses. The horses were transferred to Van Der Geest & Sons, Inc., a livestock dealer, to be kept until damages were paid or the horses could be sold under ch. 173. The Butzlaffs then filed suit and recovered their horses after posting the damages with the circuit court.
The Butzlaffs' only claim on this appeal *fn2 is that they are entitled to actual and punitive damages from Erdman and Van Der Geest because they acted under an unconstitutional statute to deprive the Butzlaffs of property without notice or opportunity for hearing in violation of their civil and due process rights. The trial court denied the Butzlaffs' motion for an order to declare ch. 173 unconstitutional. Before addressing the constitutionality of ch. 173, we must determine whether the Butzlaffs would be entitled to damages from Erdman and Van Der Geest if the law is invalid. This court will not decide a constitutional issue if another issue can dispose of the appeal. Grogan v. PSC, 109 Wis. 2d 75, 77, 325 N.W.2d 82, 83 (Ct. App. 1982).
We conclude that the Butzlaffs would not be entitled to recover damages from Erdman and Van Der Geest. Wisconsin appellate courts have never decided whether private parties can be held liable for exercising rights and following procedures provided by statutes that are later declared unconstitutional. The supreme court has in the past treated unconstitutional statutes as if they had never existed. See State ex. rel. Commissioners of Public Lands v. Anderson, 56 Wis. 2d 666, 672, 203 N.W.2d 84, 87 (1973); State ex rel. Martin v. Zimmerman, 233 Wis. 16, 21, 288 N.W. 454, 457 (1939); State ex rel. Kleist v. Donald, 164 Wis. 545, 552-53, 160 N.W. 1067, 1070 (1917); State ex rel. Ballard v. Goodland, 159 Wis. 393, 395, 150 N.W. 488, 489 (1915); Bonnett v. Vallier, 136 Wis. 193, 200, 116 N.W. 885, 887 (1908). Those cases, however, did not address the question of whether private parties should risk liability for acting pursuant to statutes that might later be declared unconstitutional. In addition, the cases were based on an interpretation of Norton v. Shelby County, 118 U.S. 425, 442 (1886), that an unconstitutional law must be treated as if it had never been passed. See Kleist, 164 Wis. at 552-53, 160 N.W. at 1070; Ballard, 159 Wis. at 395, 150 N.W. at 489; Bonnett, 136 Wis. at 200, 116 N.W. at 887. The federal courts do not follow this interpretation. See Linkletter v. Walker, 381 U.S. 618 (1965); Wainwright v. National Dairy Products Corp., 304 F. Supp. 567, 572-73 (N.D. Ga. 1969). Seven circuit courts of appeal now follow the rule that, absent malice or bad faith, damages cannot be recovered for a violation of civil rights from private parties acting pursuant to a statute presumed valid at the time. See Hollis v. Itawamba County Loans, 657 F.2d 746 (5th Cir. 1981); Welsh v. Kinchla, 577 F.2d 767 (1st Cir. 1978), cert. denied, 439 U.S. 983 (1978); G.H. McShane Co. v. McFadden, 554 F.2d 111 (3rd Cir. 1977), cert. denied, 434 U.S. 857 (1977); Louisville Area Inter-Faith Committee for United Farm Workers v. Nottingham Liquors, Ltd., 542 F.2d 652 (6th Cir. 1976); Guzman v. Western State Bank, 540 F.2d 948 (8th Cir. 1976); Tucker v. Maher, 497 F.2d 1309 (2d Cir. 1974), cert. denied, 419 U.S. 997 (1974); Rios v. Cessna Finance Corp., 488 F.2d 25 (10th Cir. 1973). None have expressly rejected it.
Sound public policy supports adoption of the rule that, absent bad faith, individuals should not be liable for damages for acting pursuant to a statute later declared invalid. "Citizens and public officials have a right to accept the law as it is written until it is repealed or judicially condemned. They are not required to speculate upon the validity of a statute or to act under it at their peril." Downs v. Jacobs, 272 A.2d 706, 707 (Del. 1970). The Delaware Supreme Court in Downs held that a tenant was not entitled to recover damages from a landlord who seized the tenant's personal property for nonpayment of rent under a statute challenged by the tenant as unconstitutional. Id. at 707-08. The Arizona Supreme Court has stated that to hold a citizen liable for exercising rights under a statute later declared unconstitutional "would not only fail to recognize the prerogative of the legislature in the statutory field . . . but would result in grave inJustice to those citizens who acted in response thereto." Shreve v. Western Coach Corp., 540 P.2d 687, 690 (Ariz. 1975). We believe that requiring citizens to exercise statutory rights at the risk of personal liability would invite disrespect for the law and diminish its value to our society.
We recognize that people such as the Butzlaffs may suffer damage through the application of statutes that may be unconstitutional. A determination of constitutionality of ch. 173, however, can only be made in a case where the aggrieved party remains deprived of his or her property. Where, as here, the property has been returned, there is no remaining due process controversy. For repeal of a statute that no longer deprives them of property, the Butzlaffs must look to the legislature.
We therefore hold that Erdman and Van Der Geest are not liable for damages to the Butzlaffs. Although the Butzlaffs at trial advanced a theory that Erdman and his sons may have deliberately taken the Butzlaffs' horses onto the Erdman property, there was sufficient evidence for the trial court to find that the Butzlaffs failed to prove the allegations of their complaint. We will not impute bad faith to Erdman when the trial court's findings indicate otherwise. It is the trial court, not the appellate courts, that must weigh the evidence and determine the credibility of witnesses. Wurtz v. Fleischman, 97 Wis. 2d 100, 107, 293 N.W.2d 155, 159 (1980); Rucker v. DILHR, 101 Wis. 2d 285, 290, 304 N.W.2d 169, 172-73 (Ct. App. 1981). Since Erdman and Van Der Geest acted in good faith under ch. 173, which had not been declared unconstitutional, they cannot be liable for damages to the Butzlaffs.
By the Court. -- Judgment ...