A B C Auto Sales, Inc. v. Marcus
| Decision Date | 12 July 1949 |
| Citation | 38 N.W.2d 708,255 Wis. 325 |
| Parties | A B C AUTO SALES, Inc., v. MARCUS. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Done County; Kenneth S. White, Judge.
Reversed.
The Circuit Court judgment adjudged that certain provisions in Sec. 85.02(1)(c), Stats., which prescribe that the state ‘motor vehicle department shall issue a certificate of registration to an applicant for the sale of motor vehicles at retail only if he owns or leases a permanent building wherein there are facilities to display and repair functional and nonfunctional parts of automobiles * * *’ violates certain provisions in the state and federal Constitutions; and the judgment reversed an order which was made by B. L. Marcus as commissioner of said Department, and which denied the application of A B C Auto Sales, Inc., for such a certificate. From that judgment Marcus, individually and as Commissioner, appealed.Thomas E. Fairchild, Atty. Gen., Stewart G. Honeck, Deputy Atty. Gen., William E. Torkelson, Asst. Atty. Gen., for appellant.
Posner & Perkins, Milwaukee, for respondent.
L. L. Rieselbach, Milwaukee, amicus curiae.
In so far as material on this appeal, Sec. 85.02(1)(c), Stats., reads:
Upon an application of A B C Auto Sales, Inc., to the state motor vehicle department in November, 1948 for a certificate of registration under sec. 85.02(1)(c), Stats., an investigator for the department, who examined the applicant's premises, stated, in answer to questions in the commission's forms for a report-‘that the applicant (so far as here material) leases a lot 60' x 120' with a permanent frame building 10' by 18' which is only an office with no inside floor space which will be used for displaying or repairing cars; that the applicant does not operate a repair garage or have sufficient shop equipment and tools to perform a complete mechanical repair job or have a parts stock and service equipment sufficient to comply with Sec. 85.02(1)(c) and has no investment in new or used mechanical replacement parts or in repair shop equipment or mechanics' tools; that no mechanics are employed by applicant and it does not do its own repairing and service work, and in the investigator's opinion the applicant did not have adequate facilities to repair and service the cars he sells; but that it had definite arrangements with a qualified person or firm which is properly equipped to repair and service the cars the applicant sells and which is five blocks from applicant's place of business.’
Upon that report the applicant's petition was denied. Thereupon it duly requested a hearing for the commissioner's review of the denial; and pursuant to its request a hearing was duly ordered and held before Marcus as the commissioner of the motor vehicle department. At this hearing the president of the applicant corporation testified in relation to his place of business as follows: * * *’
On the evidence submitted on the hearing before the commissioner, he made findings that--
‘(1) Applicant corporation neither owns nor leases a permanent building wherein there are facilities to display automobiles.
‘(2) Applicant corporation has met all the requirements for a motor vehicle dealer's license other than the ownership or lease of a permanent building as stated in the preceding numbered paragraph.’
Upon these findings the commissioner concluded:
‘(1) Applicant corporation is not entitled to a motor vehicle dealer's license for the calendar year 1949.’
Upon the applicant's petition for a review of the commissioner's decision by the Circuit Court under Ch. 227, Stats., the Court adjudged--
(1) That in so far as Sec. 85.02(1)(c), Stats., provides that the Motor Vehicle Department shall issue a certificate of registration to an applicant for the sale of motor vehicles at retail only if he owns or leases a permanent building wherein there are facilities to display automobiles, the statute is not a proper or valid exercise of the police power of the State; and it is in violation of the Fourteenth Amendment of the United States Constitution and Secs. 1 and 13 of Article I of the Wisconsin Constitution; and
(2) That the...
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