Condura Const. Co. v. Milwaukee Bldg. & Const. Trades Council AFL

• Decision Date: 01 December 1959
• Citation: 99 N.W.2d 751,8 Wis.2d 541
• Court: Wisconsin Supreme Court
• Parties: , 45 L.R.R.M. (BNA) 2273, 38 Lab.Cas. P 65,975 CONDURA CONSTRUCTION CO., a Wis. corporation, Appellant, v. MILWAUKEE BUILDING & CONSTRUCTION TRADES COUNCIL AFL et al., Respondents.

Page 751

99 N.W.2d 751

8 Wis.2d 541, 45 L.R.R.M. (BNA) 2273,

38 Lab.Cas. P 65,975

CONDURA CONSTRUCTION CO., a Wis. corporation, Appellant, v. MILWAUKEE BUILDING & CONSTRUCTION TRADES COUNCIL AFL et al Respondents.

Supreme Court of Wisconsin.

Dec. 1, 1959.

Lamfrom, & Peck, Milwaukee, Leon B. Lamfrom, Jacob L. Bernheim, Milwaukee, of counsel, for appellant.

Goldberg, Previant & Cooper, David L. Uelmen, Milwaukee, for respondents.

BROWN, Justice.

In the time which has passed since the judgment of the trial court first restrained defendants' conduct the Supreme Court of the United States has determined that the Congress of the United States completely preempted the field of labor relations affecting interstate commerce, thus denying to the states all jurisdiction over such matters and has confided the regulation of such matters to the National Labor Relations Board. Guss v. Utah Labor Relations Board, 1957, 353 U.S. 1, 77 S.Ct. 598, 1 L.Ed.2d 601.

The injunction contained in the judgment obtained by the plaintiff against the defendants was a permanent injunction. However, permanent injunctions are not irrevocable. They are permanent so long as the conditions which produce the injunction remain permanent. 28 Am.Jur., Injunctions, pp. 830-831, sec. 316, states the rule thus:

'With regard to the causes or occations which may call for the modification or suspension of a permanent injunction, the rule seems to be that the court, in its discretion, may always permit or order such modification or suspension where it believes the ends of justice will be thereby served. Where the grounds and reasons for which the injunction was granted no longer exist, by reason of changed conditions, it may be necessary to alter the decree to adapt it to such changed conditions, or to set it aside altogether, as where there is a change in the controlling facts on which the injunction rests, or where the applicable law, common or statutory, has in the meantime been changed, modified, or extended. Such change in the law does not deprive the complainant of any vested right in the injunction because no such vested right exists. On application to modify the decree, the inquiry is simply whether changes since its rendition are of sufficient importance to warrant such modification. However, the injunction, whether right or wrong, cannot on such a hearing be impeached in its application to the conditions that existed at its making.'

And, Id., pp. 832-833, sec. 319:

'* * * But in so far as the final decree is executory in effect, the court which entered it has inherent power to modify or vacate the injunction to conform to a change of conditions occurring after it was awarded.'

In support of their motion to dissolve or modify the injunction, defendants filed an affidavit alleging that the facts upon which the injunction was granted now no longer exist, for the plaintiff's business has so changed that it now does affect interstate commerce and, also, the law upon which the injunction depended has changed in that it no longer permits the state to exercise any jurisdiction over the subject of picketing in an industry which affects interstate commerce, as determined by Guss v. Utah Labor Relations Board, supra, Amalgamated Meat Cutters v. Fairlawn Meats, 1957, 353 U.S. 20, 77 S.Ct. 604, 1 L.Ed.2d 613, and San Diego Bldg. Trades Council v. Garmon, 1957, 353 U.S. 26, 77 S.Ct. 607, 1 L.Ed.2d 618.

The trial court has the inherent power of inquiry to ascertain whether present conditions of fact or law, or both, permit or require the court to continue the executory effect of the injunction or to make appropriate modifications in it. A party to the action who is adversely affected by the injunction may initiate inquiry by a petition to the court or by a motion with supporting affidavits showing to the court the changes in the conditions upon which the moving party relies. The motion to the trial court here is sufficient to bring these matters to the court's attention.

But until the changes in facts and law alleged by defendants have been proved to the satisfaction of the court and the effect of such changes is what the defendants claim for them, it is not error for the trial court to deny the defendants' motion to dissolve or modify the injunction.

Sec. 274.33(3), Stats., declares an order appealable to the Supreme Court when the order grants, refuses, modifies or dissolves an injunction. These parts of the order from which defendants appeal neither grant an injunction nor refuse to grant it, nor do they modify or dissolve an injunction. The statute does not make appealable an order which only refuses to modify or dissolve an injunction which is what the court did. Nor is this order a final one. Therefore, we conclude that paragraphs 1 and 2 of the order are not appealable nor is that part of paragraph 3 which denies vacation of the injunction.

In the remainder of paragraph 3 of the order the order purports to grant a new trial in the interests of justice for reasons given in the court's memorandum of January 2, 1959. These are as follows:

'There should be no modification of the present injunction unless the defendants, after a full and complete trial of the issues, justify such modifications. The...