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$ '1 ,fir '.4. <br /> 'fit, ;.:ti:!? <br /> E4 <br /> w <br /> a' <br /> 'fY,, <br /> s • <br /> 24 SUPREME COURT OF WISCONSIN. [OCT. <br /> Just v. Marinette County,56 Wis.2d 7. <br /> people have a present right.6 The ordinance does not <br /> create or improve the public condition but only preserves <br /> nature from the despoilage and harm resulting from the <br /> • unrestricted activities of humans. <br /> We note the lower court dismissed the action com- <br /> menced by the Justs, although it sought a declaratory <br /> judgment and the rights of the Justs were declared. <br /> This dismissal is in conflict with the procedure which <br /> this court has made clear should be followed, namely, that <br /> the complaint should not be dismissed when contrary to <br /> the plaintiffs' contention, but rather the judgment should <br /> set forth the declaratory adjudication. City of Milwaukee <br /> v. Milwaukee County (1965), 27 Wis. 2d 53, 67, 133 N. <br /> W. 2d 393; David A. Ulrich, Inc. v. Saukville (1959), 7 <br /> Wis. 2d 173, 181, 96 N. W. 2d 612; Denning v. Green Bay <br /> (1955), 271 Wis. 230, 72 N. W. 2d 730. <br /> In commenting on the propriety of its deciding the issue <br /> of constitutionality of the ordinance, the trial court <br /> quoted State v. Stehlek (1953), 262 Wis. 642, 645, 56 N. <br /> W. 2d 514: I <br /> "The exercise of the power to declare laws unconsti- <br /> tutional by inferior courts should be carefully limited and <br /> avoided if possible. The authorities are to the effect that <br /> unless it appears clearly beyond a reasonable doubt that <br /> the statute is unconstitutional, it is considered better <br /> practice for the court to assume the statute is constitu- <br /> tional, until the contrary is decided by a court of appellate <br /> jurisdiction." <br /> This view has consistently been followed. State ex rel. <br /> Fieldhack v. Gregorski (1956), 272 Wis. 570, 574, 76 N. <br /> W. 2d 382; White House Milk Co. v. Reynolds (1960), <br /> S <br /> 6 On the letterhead of the Jackson County Zoning and Sanita- <br /> tion Department, the following appears: "The land belongs to the <br /> people . . . a little of it to those dead . . . some to those living <br /> i . . . but most of it belongs to those yet to be born. . ." <br /> I <br /> i <br /> k 4 <br /> 1 <br />