Opinion
June 14, 1941 —
June 18, 1941.
ORIGINAL PROCEEDING in this court upon petition of the Department of Agriculture seeking a writ of mandamus directed to Hon. JOSEPH R. McCARTHY, circuit judge in and for Outagamie county, commanding the said circuit judge to forthwith enter judgment in favor of the relator and for such other and further relief as to the court may seem just and equitable. Writ issued.
R. M. Orchard, assistant attorney general, Fred M. Wylie, and Gilbert F. Lappley, all of Madison, for the petitioner.
Alk, Kresky, Cohen Hughes of Green Bay, and Benton, Bosser, Becker Parnell of Appleton, for the respondent.
In the petition it is alleged:
"(1) The relator, Department of Agriculture, state of Wisconsin, is a duly created administrative department of said state and as such is charged with the enforcement of section 100.03 of the statutes of the state of Wisconsin.
"(2) The relator, under its power has established a milk market which includes the cities of Appleton, Kaukauna and adjacent and intervening territory.
"(3) The relator on November 4, 1940, commenced an action in the circuit court of Outagamie county, Wisconsin, wherein the Quaker Dairy Company, of Appleton, Wisconsin, is named as defendant, and at said time caused an order to show cause to be served requiring said defendant to show cause on November 9, 1940 A. D., why a temporary restraining order should not be issued enjoining said defendant from selling regulated milk in said market area in violation of the said market order.
"(4) That said matter was duly argued and decision withheld because of the possibility of an early trial.
"(5) That after the trial of said action was set for April 19, 1941, said Quaker Dairy Company dismissed its attorney and retained Mark Catlin, Jr., as its attorney who forthwith moved said court for an adjournment under section 256.13 of the Wisconsin statutes.
"(6) That on May 20, 1941, said circuit judge signed a temporary injunction enjoining further violation of said market order.
It is further ordered and decreed that the defendant, its officers, agents, employees and servants, who shall have knowledge of this order, be and they hereby are forthwith enjoined and restrained from buying for resale or receiving, handling, or selling, either personally or through an agent of another, either at wholesale or retail, regulated milk in the Appleton regulated milk market, established under the order of the plaintiff, Department of Agriculture, in violation of the terms of the said Appleton Regulated Milk Market Order, a copy of which is hereto attached and made a part hereof; and said defendants, its agents, officers, employees and servants are hereby commanded and required to comply, without variation, with each and every provision of the market order hereto attached and in particular to charge and pay the prices set forth in said order, without rebate or discount, pending the trial and final determination of the above-entitled matter or until the further order of the court.
"(7) That on May 26, 1941, at the oral request of said defendant said circuit judge suspended the operation of said temporary injunction to May 23, 1941.
"(8) That on June 4, 1941, said circuit judge signed an order requiring said relator to show cause at 11:30 a.m., June 7, 1941, why said temporary injunction should not be stayed pending the outcome of proposed legislation before the adjournment of the legislature of this state, which might materially affect the rights of the parties' to said action, and stayed the restraining order pending the hearing.
"(9) That on May 16, 1941, said relator commenced a similar action against John Richter and Mrs. John Richter for selling regulated milk without a license as required by section 100.03, Wisconsin statutes, in the city of Kaukauna, within the regulated market area above described; that a peremptory restraining order was served with said summons and complaint, which was thereafter continued by order upon an order to show cause heard May 23, 1941.
It is ordered that the defendants, their agents, employees and servants, who shall have knowledge of this order, be and they hereby are forthwith enjoined and restrained from buying for resale or receiving, handling, or selling, either personally or through an agent of another, either at wholesale or retail, regulated milk in the Appleton regulated milk market, or any other regulated milk market in the state of Wisconsin, established under the order of the Department of Agriculture, state of Wisconsin, until a dealer's license to engage in such business has been issued and delivered by said Department of Agriculture pursuant to section 100.03, Wisconsin statutes; except that if either or any of them operate as a dealer under the exemptions for such license requirements pursuant to subsection 100.03(4) (a), Wisconsin statutes, that they shall comply, without variation, with each and every provision of the market orders, pending the trial and final determination of the above-entitled matter or until the further order of the court.
"(10) That on June 4, 1941, the court issued an identical order as is described in paragraph eight (8) above.
"(11) That on June 7, 1941, at about 11:40 a.m. said matters were heard by said JOSEPH R. McCARTHY, in his chambers, the plaintiff being represented by Gilbert F. Lappley, one of its attorneys; John Richter appearing in person and by counsel and said Quaker Dairy Company appeared by Ben Cherkasky, its president, and also by counsel.
"(12) That at the request of said circuit judge for plaintiff to state its position, counsel Gilbert F. Lappley pointed out that the legislature having adjourned without amending or repealing said section 100.03 that the motion was then without legal foundation and should be dismissed.
"(13) That Andrew W. Parnell, counsel for said defendants, then exhibited a newspaper report showing that the legislature had adjourned and which paper contained a statement that the director of the Department of Agriculture would enforce the section until its legal termination December 31, 1941, and stated that no injunction should be continued or issued because what the defendants were doing would be lawful after December 31, 1941, and that an injunction would cause them to lose the business which they had built up.
"(14) That said circuit judge then indicated that the stay would be vacated because the legislature had not extended the law and that what defendants were doing would become lawful after December 31, 1941.
"(15) That counsel for plaintiff then requested an immediate or early trial so that an appeal might be taken.
"(16) That thereupon said circuit judge made a statement (no reporter being present) to the following tenor: That no trial would be had in the matters as counsel had fully and ably presented all the facts and that a trial would be but a waste of the court's time; that the department and its counsel had well and ably presented its case and were performing their duty as required by the statutes; that the Quaker Dairy Company had retained legislator counsel for the sole purpose of delaying the court and that such action was deliberate and reprehensible; that as a matter of strict law that plaintiff was entitled to judgments as prayed for in its complaints; that said court realized the inconsistency of its position in denying said injunctions but that in view of the fact that the legislature had not extended the section that the court would deny any relief and thereupon directed counsel to draw an order dismissing the complaints.
"(17) That counsel for plaintiff thereupon stated that such an order would destroy the Appleton regulated milk market order and would end milk control in that area forthwith to which the court replied that it was aware of the result of its decision and that the court would give no assistance in enforcing the market order and that milk control in his jurisdiction was no longer in effect.
"(18) Your petitioner further alleges that it has no other speedy and adequate remedy for such refusal because the decision of said circuit court is not a matter of judicial error but is rather a direct refusal to uphold and support the lawfully enacted laws of the state of Wisconsin; that the matter is one of great and important public concern; that an appeal, if proper, from said judgment would delay the trial beyond the effective date of said statute; that said statute is an emergency statute and unless forthwith relief is granted great and irremediable damage will be inflicted upon the fluid milk industry in regulated markets; and that said exercise of power is arbitrary, unlawful and in excess of its judicial jurisdiction."
The matter having been brought on for hearing by an order to show cause, returnable at 2 o'clock p.m. on the 12th day of June, 1941, counsel for relator and the respondent appeared and counsel for respondent asked for additional time in which to prepare the return to the writ. The time for the filing of the return was extended to Saturday, June 14, 1941, at 9 o'clock in the forenoon of that day. Counsel were directed to submit the matter upon briefs. The respondent filed his return which is as follows:
"1. Admits paragraphs 1, 6, 8, 9, 10, and 11.
"2. Answering paragraph 2 respondent admits that relator claims it has established a regulated milk market in the city of Appleton and vicinity, but respondent alleges that the answer of the Quaker Dairy Company hereinafter referred to denied legal establishment of such a market.
"3. Answering paragraph 3 respondent admits that an action was commenced in his court against the Quaker Dairy Company of Appleton, Wisconsin, and that on the 1st day of November, 1940, this respondent caused an order to show cause to be issued requiring said Quaker Dairy Company to show cause why an order should not be entered in said action granting the plaintiff the temporary relief prayed for in the complaint. Respondent, however, alleges that the temporary relief prayed for was not to enjoin said defendant from selling regulated milk in said market area in violation of the said market order' but rather was to temporarily enjoin the defendant from selling regulated milk in any other manner or form than that employed by it at the time of its application for a regulated milk dealer's license.
"4. Answering paragraph 4 of said petition, respondent admits that a brief with respect to the granting of such temporary injunction was filed by the attorneys for the Quaker Dairy Company, but respondent alleges that no brief with respect to the plaintiff's claim was filed with him excepting however that a voluminous brief relating to the interpretation and constitutionality of the `Wisconsin Code Law for Certain Service Trades' was filed with this respondent. Respondent further sets forth that there has been no argument or hearing with respect to the merits of the controversy.
"5. As to paragraph 5, respondent admits that Attorney Catlin did appear as attorney for the defendant Quaker Dairy Company, and admits that pursuant to his request under section 256.13 of the statutes an adjournment of the trial of the action was granted.
"6. As to paragraph 7 respondent denies that on May 26, 1941, he suspended the operation of the temporary injunction to May 23, 1941, but admits that some temporary suspension was granted to the defendant Quaker Dairy Company.
"7. As to paragraphs 12 and 13, this respondent admits that on June 7, 1941, certain arguments were presented by attorneys for the plaintiff, and for the Quaker Dairy Company, and for John Richter and Mrs. John Richter, his wife, and that said arguments were duly considered by the court.
"8. As to paragraph 14, this respondent alleges that following the presentation of arguments to him on the 7th day of June, 1941, he determined in his discretion that the temporary injunction and orders theretofore granted to the plaintiff should be quashed pending the trial of said actions between the parties thereto solely for the reasons that such injunctions would work an irreparable hardship upon the said defendants, Quaker Dairy Company and John Richter and Mrs. John Richter, his wife, and might well have the effect of destroying their respective business enterprises and would have the effect of granting to the plaintiff the whole relief sought by it in said actions in advance of the trial of the issues of fact and law raised by the pleadings in said actions, and would thus effectively deny to the defendants their day in court.
"9. As to paragraph 15, this respondent admits that an oral request for an early trial or for the entry of such order or judgment as could be appealed from was made by plaintiff or plaintiff's attorney, but that no written motion for immediate trial was filed nor was any motion made for judgment on the pleadings, and that this court did deny plaintiff's request for an immediate trial on the ground that this court is occupied by prearranged dates of trial in this county and other counties in his circuit until the 1st day of July, 1941, and that this court will be unable to conduct the trial of said actions during the months of July and August, 1941, for the reason that numerous other cases are set for trial before said court during said months and that such time as will not be occupied by the trial of said actions, this respondent's reporter, the clerk of circuit court for Outagamie county, and this respondent will be absent on vacations from their respective duties.
"10. As to paragraphs 16 and 17 of the petition, this respondent alleges that after pronouncement of his order quashing and vacating the temporary injunctional orders in said actions, and on the 7th day of June, 1941, certain remarks were made by this respondent in the presence of the attorneys for all parties, which said remarks were not, and were not intended to be, a part of his formal orders in said matters, but were merely general remarks directed to the wisdom and advisability of carrying out the professed intention of the plaintiff to prosecute under the milk-market orders, in view of the fact that by the time said actions could be tried and finally determined that the statute upon which the same were based would expire by its own terms and the questions involved would therefore be moot and were general remarks complimenting the plaintiff's attorney, Gilbert F. Lappley, for his diligence in the conduct of the plaintiff's cause up to that stage of the proceedings therein.
"This respondent further alleges that he has not heretofore and does not now deny the plaintiff the right of trial in his court at such time as such trial may be had, giving due consideration to other matters and business pending before said court, as more particularly set forth in his affidavit dated June 13, 1941, on file, and of record herein, nor has this respondent determined the merits of the controversies between the plaintiff and the other parties to said actions, nor do any remarks nor statements not incorporated in the formal written orders of this respondent, represent the final judgment or opinion of this respondent.
"11. Answering paragraph 18, this respondent alleges that the only order entered or formally pronounced by him was the order quashing the temporary injunctional order and denying plaintiff's motion for immediate trial; that as hereinbefore set forth the order quashing the temporary injunction was based upon the discretion of this defendant acting as circuit judge for Outagamie county, and that the order denying immediate trial was based upon the fact that this defendant's calendar does not reasonably permit a trial of the issues involved in said action until after the 1st day of September, 1941, as more particularly set forth in this respondent's said affidavit on file and of record in these proceedings. Respondent further sets forth that the issues presented by the complaint and answer involve serious questions both of fact and of law and that such issues have not been presented and have not been argued before this respondent. Except as herein admitted, qualified, or explained, respondent denies the allegations contained in paragraph 18 of said petition."
Briefs of the parties were filed and the matter is before the court. The relator moves for judgment upon the return.
In aid of the record a certiorari was issued to the clerk of the circuit court for Outagamie county requiring him to return to this court the record in the cases: State ex rel. Department of Agriculture, v. Quaker Dairy Company and State ex rel. Department of Agriculture v. John Richter and Mrs. John Richter. The return of the clerk was filed in this court on June 12, 1941. Other facts will be stated in the opinion.
From the petition and the return and the records filed in this court, a regrettable state of affairs is disclosed. It appears that the action in which the Quaker Dairy Company is defendant was set for trial on April 19, 1941. Prior to the date of trial the defendant dismissed its attorneys and retained Mark Catlin, Jr., an attorney at law then serving as assemblyman at the regular session of the 1941 legislature. Mr. Catlin appeared as attorney for the defendant and in the exercise of the right conferred upon him by sec. 256.13, Stats., demanded an adjournment of the trial pending the adjournment of the legislature, which was granted. Upon the adjournment of the legislature on June 6, 1941, Mr. Catlin ceased to be attorney and the defendant is again represented by its original counsel. It is evident from the record that the sole purpose of retaining Mr. Catlin was to give the defendant the advantage of the provisions of sec. 256.13. We need not comment at this time upon the ethical questions involved in this procedure but point out that the defendant, having availed itself of this devious and most unusual procedure, is in no position to claim that it ever desired or now seeks an early trial of the issues involved in the action.
It appears without dispute that on May 23, 1941, the respondent granted plaintiff's motion continuing the restraining order issued by it on May 13, 1941, in the Richter case and ordered that the same be —
"kept in full force and effect pending the trial and determination of this action and until further order of the court or until a valid license shall have been first issued," —
ordered the plaintiff to show cause why the order issued on May 13, 1941, and served on the defendant on May 16, 1941, should not be stayed, and pending the hearing of the motion, stayed the order. This order was based upon an affidavit of the defendant setting forth that certain legislation was pending which would substantially vitiate and annul the force and effect of the Appleton-regulated milk-market order. When this order to show cause came on for a hearing, the court quashed the injunctional order continued on May 13, 1941, and denied plaintiff's motion for an immediate trial.
By order dated June 11, 1941, upon an affidavit made by the president of the defendant, Quaker Dairy Company, to the effect that —
"if this defendant is presently compelled to abide by said restraining order, it will lose its established market of supplies; and it will likewise lose its established customers; and if said Appleton-regulated milk-market order is vitiated by legislative act before the adjournment of the legislature, then this defendant will have suffered an irreparable loss," the court vacated the order of June 4, 1941.
When the order of June 11th was entered, the fact that the legislature had adjourned was a matter of common knowledge. The only basis therefore for the vacation of the restraining order was that unless vacated the defendant company would be obliged to comply with the law.
The legislature adjourned on June 6, 1941, and without having in any way amended or repealed sec. 100.03, Stats., under which section the Department of Agriculture was proceeding with respect to the regulation of the distribution of milk. This section by its terms will expire on December 31, 1941. The respondent in his return does not deny the allegations of paragraphs (13) and (14) of the petition except that he alleges that he granted the motion "solely" for the reason that such injunction would work an irreparable hardship upon the defendants, Quaker Dairy Company and John Richter and Mrs. John Richter. It is manifest from the return of the respondent that the only hardship that would be inflicted upon the defendants or any of them would be a requirement that they comply with the terms of the statute pending the trial of the action. We are cited to no authority and we find none which justifies a court in suspending the operation of a statute duly enacted by the legislature on the ground that it will work a hardship if it be enforced. Whether or not there shall be a law under which the production and sale milk should be regulated is a matter wholly within the province of the legislature. When a court undertakes to say that a law shall not be enforced, the court takes over the legislative function and in effect declares that the act of the legislature should be suspended. The enforcement of any regulatory law requires a change in the course of conduct of the persons or business regulated, otherwise there would be no call for regulation. We find no justification whatever for the position of the court with respect to the enforcement of this statute. If the court was of the view that the exigencies of the case were such that the matter should be speedily disposed of, he should have set the case down for an early trial. Especially is that the case here for it appears that the court a short time before was clearly of the view that the defendants in both cases should be restrained from continuing their operations. While it is alleged in the return that the order was issued "solely" for the reasons stated, we do not under all of the circumstances of the case feel bound by that allegation.
The circumstance admitted by the trial judge in the return and the plea upon which the order vacating the injunction was granted point clearly to the fact that respondent was of the view that because the statute would by its own terms expire in six months it ought not to be enforced because of attendant hardship to the defendants. Respondent's actions may do credit to his sympathies and in the proper forum his reasons might elicit considerable lay support. The proper forum, however, is not the court but the legislature. The actions here involved were for the purpose of effectuating a legislative policy which is presently in force. While the legislature has not extended the operation of the law under which these cases were brought, neither has it indicated that enforcement shall not proceed during a period when the law is actually in force. Under these circumstances it is not for a judicial officer to exercise a discretion or a decision which is the function of the legislature.
Sec. 9 of art. I of the Wisconsin constitution is as follows:
"Every person is entitled to a certain remedy in the laws for all injuries, or wrongs which he may receive in his person, property or character; he ought to obtain justice freely, and without being obliged to purchase it, completely and without denial, promptly and without delay, conformably to the laws."
The justice to be administered by the courts is not an abstract justice as conceived of by the judge, but justice according to law or as it is phrased in the constitution justice "conformably to the laws."
A judicial officer is required to administer the law without respect to persons so long as it is in force. Any other course would constitute an infringement upon the powers and functions of the legislature, interfere with the operation of law enforcement agencies which have no choice but to enforce the law as long as it is in force, and result in advantage to persons who disobey the law and disadvantage to those who obey it. It must be concluded that the grounds upon which the trial court acted did not constitute a sufficient or proper legal reason therefor and that this action constituted an abuse of judicial power.
In another respect the trial court appears to have erred seriously. It is alleged in the petition, paragraph (16), that at the hearing of June 7th, the judge made an oral statement relative to his position upon this matter, and from affidavits on file it appears that the trial court had dictated at least a part of his version of what took place when he denied the motion for an early trial on June 7th. Upon the oral argument respondent's counsel stipulated that they would produce either the reporter's notes so dictated or a transcription of them. Respondent has filed an affidavit from which it appears that he is unable to furnish this transcript because at his direction the reporter destroyed the notes; that the notes were destroyed because the contents were deemed immaterial and improper as merely containing remarks complimenting the diligence of one of plaintiff's attorneys; that the remarks were not material to the present controversy, were dictated out of the presence of opposing counsel, are not a part of the record or proceedings, do not express the views of the affiant upon any phase of this case or contain anything relevant or material to the action. Ordering destruction of these notes was highly improper. In this proceeding this court is the judge of the materiality of the notes. According to the affidavits the notes did present respondent's own statement of the reasons for his action. If true, the dictated statement had a direct bearing on the only debatable issue in this case, namely, the reasons actuating respondent. It should not be necessary to labor the point that the trial court in ordering destruction of the notes misconceived his function and mistakenly arrogated to himself the powers of this court. While in the state of the pleadings it is held that the grounds for the trial court's actions sufficiently appear without the notes, we can only say that if it were necessary to a decision, the destruction of evidence under these circumstances could only be open to, the inference that the evidence destroyed contained statements of fact contrary to the position taken by the person destroying the evidence. 2 Wigmore, p. 180, § 291, cases cited note 2. See also Dimond v. Henderson (1879), 47 Wis. 172, 175, 2 N.W. 73. It is the conclusion of the court that the record shows an infringement upon the prerogatives of the legislature amounting to an abuse of judicial power. This brings the matter within the scope of the supervisory jurisdiction. State ex rel. Fourth Nat. Bank of Philadelphia v. Johnson (1899), 103 Wis. 591, 79 N.W. 1081; 51 L.R.A. 1; March, 1941, Wisconsin Law Review, p. 153, The Power of Superintending Control of the Wisconsin Supreme Court, JOHN D. WICKHEM.
By the Court. — Upon all the records and files in this action, it is ordered, that a writ of mandamus be issued out of this court, directed to the respondent, requiring him forthwith, (1) to vacate the orders staying and vacating the injunctional orders issued in each case. (2) In the case of State ex rel. Department of Agriculture v. John Richter and Mrs. John Richter, to reissue and re-enter the restraining order of May 13, 1941, and to continue the same in force until the case is disposed of upon the merits by the entry of a final judgment. (3) In the case of State ex rel. Department of Agriculture v. Quaker Dairy Co., to reissue and re-enter the restraining order of May 20, 1941, and to continue the same in force until the case is disposed of upon the merits by the entry of a final judgment.