The decision from which plaintiffs appeal holds that an applicant for permission to operate under an *86ordinance such as this cannot accept the permit and simply “by reason of the language in the application for the permit in question” reserve at the same time the right to contest the constitutionality of the ordinance under which the permit is issued.
The learned trial judge was of the opinion that a party cannot pursue two inconsistent remedies in the same action, and, citing 9 R. C. L., Election of Remedies, p. 958, and other authorities, he ruled that the controlling question before him related solely to the right to contest the constitutionality of the ordinance after accepting its benefits, because of an attempted reservation of such right; and then that the “questions should be answered in the negative and that the motion of the defendant for summary judgment should be granted.”
In this ruling the circuit court followed the precedents which have established the law applicable to this particular situation. One is not injured while acting under and having the advantage of the terms of the ordinance. Our authorities are to the effect that, although in a proper case a court may declare whether the legislative body, including a common council, has exceeded its constitutional powers in an enactment complained of, “it is a rule of universal application that no one but a person injured can question the constitutionality of a law.” Boyd v. State (1935), 217 Wis. 149, 258 N. W. 330; Appeal of Van Dyke (1935), 217 Wis. 528, 259 N. W. 700; Goodland v. Zimmerman (1943), 243 Wis. 459, 466, 10 N. W. (2d) 180. In the Goodland Case, supra, it was said: “For these reasons the question of constitutionality sought to be raised by the pleadings is not presented in this case.” It seems self-evident that a stipulation, however fair on its face, cannot overturn a policy so fixed by authority and precedent as is the rule which was followed by the court below.
Recognizing the fact that under the existing laws serious questions may arise where the issues are accompanied by substantial doubt, courts and authorities have endeavored to *87afford reasonable relief when the questions are properly presented.
The trial court, in his memorandum decision, cited the case of Pera v. Shorewood (1922), 176 Wis. 261, 263, 186 N. W. 623, and quoted the following:
“This reservation may well preserve the right of the plaintiff to contest the validity of the ordinance in a proper proceeding, but it cannot have that effect in the proceeding now before us. As stated, the filing of the claim asserted the validity of the ordinance and the statute under which it was passed, otherwise the plaintiff could not contend that his claim had any validity. When he took his appeal to the circuit court from its disallowance by the village he did so as an aggrieved party, again asserting by his acts the validity of the ordinance. So he came into court relying upon the ordinance as the valid basis for his claim. Having instituted his action upon the sole basis of the validity of the ordinance, he cannot now seek to maintain it by asserting the invalidity of that which enabled him to come into court. This case is parallel with that of Hurley v. Commission of Fisheries (U. S.) 42 Sup. Ct. 83, decided by the supreme court of the United States December 5, 1921, where it was held that a plaintiff could not claim under a statute and assail it in the same proceeding. To do so would enable parties to make use of a statute as a valid one during one stage of action, and then, upon a certain point therein being reached, continue it upon the basis that it is invalid because from thence on it seems to be more advantageous to claim its invalidity. This is a species of legal somersault or suicide that courts will not tolerate.”
See also Booth Fisheries Co. v. Industrial Comm. (1924), 185 Wis. 127, 200 N. W. 775; and Fahey v. Mallonee (1947), 332 U. S. 245, 67 Sup. Ct. 1552, 91 L. Ed. 2030, at page 255, where it is said by Mr. Justice Jackson : “It is an elementary rule of constitutional law that one may not ‘retain the benefits of the act while attacking the constitutionality of one of its important conditions.’ ”
By the Court. — Judgment affirmed.