Doering v. Swoboda

• Decision Date: 06 March 1934
• Citation: 253 N.W. 657,214 Wis. 481
• Parties: DOERING v. SWOBODA, MAYOR, ET AL.
• Court: Wisconsin Supreme Court

214 Wis. 481

253 N.W. 657

DOERING

v.SWOBODA, MAYOR, ET AL.

Supreme Court of Wisconsin.

March 6, 1934.

Appeal from an order of the Circuit Court for Racine County; E. B. Belden, Circuit Judge.

Suit by E. F. Doering, a sole trader doing business as the Doering Jewelry Company, against William J. Swoboda, Mayor of the City of Racine, and others. From an order overruling a demurrer, all the defendants appeal.--[By Editorial Staff.]

Reversed, with directions.

This action was commenced by the plaintiff on October 13, 1933, for the purpose of restraining the defendants, William J. Swoboda, mayor, Cornelius M. Colbert, city attorney, Grover C. Lutter, chief of police (all officers of the city of Racine), John A. Brown and Miles A. Hulett, district attorney and sheriff, respectively, of the county of Racine, from interfering with the plaintiff's asserted right to conduct an auction sale of his stock of jewelry after 6 o'clock in the evening. The defendants demurred to the complaint. The court overruled the demurrer. From the order overruling the demurrer entered on October 21, 1933, all of the defendants appealed.

John R. Brown, Dist. Atty., and O. M. Edwards, both of Racine (Walter D. Corrigan, Sr., and A. C. Backus, both of Milwaukee, of counsel), for appellants.

Cornelius M. Colbert, City Atty., of Racine, for defendants.

Wilbershide & Baumblatt, of Racine, for respondent.

NELSON, Justice.

The complaint alleges, in substance: That the plaintiff is a resident of this state; that he has conducted a retail jewelry business in the city of Racine for several years; that on October 5, 1933, he duly applied to the mayor of Racine for a permit to conduct an auction sale of his stock of jewelry; that thereafter he paid to the city treasurer the sum of $300 for the purpose of licensing a nonresident auctioneer to conduct the auction; that he had had such auctioneer furnish a bond, which was approved by the city treasurer, and that he had otherwise complied with all of the provisions of said ordinance relating to the conduct and inspection of auction sales; that he had paid a fee of $25 for such permit; that thereupon a license had been duly granted to him for a term of one year from October 5, 1933, permitting him to conduct an auction in his place of business; that on October 7, 1933, he had proceeded to conduct an auction sale of his said stock, and in so doing had duly complied with the laws of the state of Wisconsin and the ordinances of the city of Racine; that section 10.05 (15) of the ordinances which provides, “Sales, by public auction, of the stock of any person, firm or corporation, shall be held on successive days, Sundays and legal holidays excluded, and shall continue not more than thirty days in all within the period of one year. And no such auction shall be held between the hours of six P. M. and eight A. M. of the following day,” and section 130.07 (1), 1933 Stats., which provides, “Auction sales at night, limitation. (1) No person, firm or corporation shall sell or dispose of or offer for sale at public auction, between the hours of six o'clock in the evening and eight o'clock the following morning, any gold, silver, plated ware, precious or semiprecious stones, watches, clocks or jewelry of any nature whatsoever,” are unconstitutional and void; that he desires to conduct the auction sale of his stock of jewelry after the hour of 6 o'clock and until approximately 10 or 11 o'clock in the evening of each day for a period of 30 days from October 7, 1933, but that he has been advised and warned that if he attempts to do so the mayor of Racine will revoke his permit, that he will be subject to arrest and fine, and that he will be arrested by the sheriff of Racine county and subject to the forfeiture provided by law; that he has no desire to violate either the laws of the state or the ordinances of the city, but in the event he follows the advice of his counsel and treats as null and void the provisions of section 130.07 of the statutes and section 10.05 (15) of the ordinances and conducts his auction sale after 6 o'clock in the evening he verily fears that he will be subject to prosecution, to a multiplicity of suits, and the revoking of his license, all to his serious inconvenience and handicap in the conduct of his business, and that he has no remedy at law.

An order signed by a court commissioner, and served with the complaint, required the defendants to show cause why an injunction should not issue restraining the defendants from interfering with the plaintiff's conducting an auction sale, etc., for a period of 30 days from the 7th day of October, 1933, between the hours of 6 p. m. and 8 a. m. Hearing was promptly had on the order to show cause, and the court held that section 130.07, Stats., and section 10.05 (15) of the ordinances were unconstitutional and void, and enjoined the defendants from interfering with the plaintiff's auction. Subsequently the defendants demurred to the complaint, and the court overruled the demurrers.

[1] The plaintiff first contends that since more than 30 days have elapsed since October 7, 1933, and since the time has now expired during which the plaintiff might hold an auction sale under his permit or license, all questions involved in this litigation are moot. It is, of course elementary, “that courts sit only to decide actual controversies, and not to answer moot questions of law or fact, nor to declare abstract principles or rules of law not applicable to issues or controversies,” Hogan v. City of La Crosse, 104 Wis. 106, 80 N. W. 105; that “this court (will not) entertain an appeal unless the appellant has an existing right which the order or judgment appealed from, if erroneous, has substantially prejudiced.” Lamoreux v. Williams, 125 Wis. 543, 104 N. W. 813, 814. It was recently held that an order modifying a judgment of divorce as to the technical custody of a child for a limited period was not moot, although the period had expired at the time the appeal was heard. Smith v. Smith, 209 Wis. 605, 245 N. W. 644. The present action involves the constitutionality of a statute which declares the public policy of this state as to the holding of jewelry auctions after 6 o'clock in the evening and also an injunction which restrained certain officers, whose duty it is to enforce the laws, from interfering with the plaintiff in conducting an auction, contrary to the express provisions of the law. While the injunction did not specifically enjoin the district attorney and sheriff from prosecuting the plaintiff for violating section 130.07, we think it clearly had that effect. Hence the right of the state effectively to enforce chapter 130 has been questioned. If, under the circumstances, the questions involved in this controversy must now be held to be moot, then it will be exceedingly difficult, if not impossible, to find a way in which the constitutionality of section 130.07 may be tested, for it appears that such an auction may continue for only thirty successive days during any year and that all that need be done by one desirous of holding such an auction, contrary to the prohibitions of the statute, is to start to conduct it after 6 o'clock, and, when threatened with prosecution, obtain an injunction, upon the authority of the decision of the court below, continue the auction for a period of 30 days, and thereafter assert that the controversy is moot. If such is the law, review by this court can be continually and successfully evaded. In this action it is the plaintiff who asserts that the controversy is moot. In another action brought in a different court the law might be held to be constitutional, in which event the plaintiff would be denied the right to have a review of such holding by the defendants therein asserting that the question is moot. Such situations cannot but give rise to confusion, embarrassment, and uncertainty as to the duty of district attorneys with respect to the enforcement of this law.

We confess that a careful search for authorities has brought to light no case in which an identical situation has existed.

As to whether appellate courts will determine controversies which are otherwise moot but in which questions of great public importanceare involved, the authorities are not in harmony. 3 Cor. Jur. § 113, p. 359. But many courts have retained and determined such controversies. The New York Court of Appeals in an election case, which involved questions relating to an election that had already been held, and which therefore were of no practical importance to the parties, retained the case for decision to prevent embarrassment in the future from conflicting judicial opinions of the lower courts. Matter of Madden, 148 N. Y. 136, 42 N. E. 534. Later on, in Matter of Fairchild, 151 N. Y. 359, 45 N. E. 943, the court retained a similar action for determination of the questions therein for the reasons that the questions were sufficiently important and a decision on the merits would prevent future embarrassment in the congressional district to which the controversy related. Barrs v. Peacock, 65 Fla. 12, 61 So. 118, and State ex rel. R. R. Comm. v. So. Tel. & Con. Co., 65 Fla. 67, 61 So. 119, are authority for the proposition that an appellate court may retain for determination questions properly presented which involve the duties and authority of state officials, and which are of general interest to the public. In State ex rel. Dakota Trust Co. v. Stutsman, 24 N. D. 68, 139 N. W. 83, 86, Ann. Cas. 1914D, 776, answering the contention that the controversy therein was moot, the court stated: “The questions involved, however, are of so great public interest, and the real merits of the controversy are still so unsettled, that we can and will consider the questions involved.” (Citing cases.)

In Riley v. Bell, 184 Ind. 110, 109 N. E. 843, it was intimated that if there had been involved in that case an important matter such as the proper...