Gagnon v. Dep't of Agric.
| Decision Date | 12 September 1939 |
| Citation | 286 N.W. 549,232 Wis. 259 |
| Parties | GAGNON v. DEPARTMENT OF AGRICULTURE AND MARKETS. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Dane County; R. S. Cowie, Judge.
Reversed.
Action by Alwine Gagnon against the Department of Agriculture and Markets to vacate an order denying her a license as a milk dealer for the year 1939. From a judgment reversing the order of the Department the defendant appeals.
The plaintiff is the wife of C. J. Gagnon who for many years operated as a milk dealer in Racine. He owned a farm of seventy-three acres on which he kept a herd of about fifty cows and purchased milk from farmers. This and the milk from his own cows he treated in a pasteurizing plant which he owned and distributed both wholesale and retail, operating milk routes for the distribution. In 1934 he conveyed his farm, plant and cattle to the plaintiff, but has been connected with the active management and operation of the business down to the time of the denial of a 1939 license to the plaintiff.
The plaintiff was granted a license for the year 1937 and applied for a license for the year 1938, which was denied on December 30, 1937. The order merely stated as “Findings and conclusions” that “the allegations of the complaint are established and the applicant is unfit and unqualified for the business,” “Wherefore” the license was denied.
The complaint on which the denial of license next above referred to was based charged that: (1) plaintiff had been licensed previously and connected with a licensed dealer for several years; (2) during the several years she and the dealer with whom she had been connected had violated applicable statutes and orders of the Department repeatedly and after warnings. A specific charge in this respect was refusing to take butterfat tests and selling milk and cream with excessive butterfat content; (3) she had sold her business and the personal property used therein to a minor daughter and others who operated without a license; (4) had herself operated without a license as dealer for part of 1937 after taking back property sold; (5) she repeatedly had given evidence of lack of qualifications for the business and was unfit and unqualified.
Action to vacate the order denying the 1938 license was brought. It was dismissed by stipulation before judgment was entered after the court had filed an opinion in favor of the plaintiff directing judgment on the merits. The stipulation recited that the dismissal was without prejudice either because of the adverse opinion of the court or otherwise to the rights of the parties upon a new application for a 1938 license to be made by the plaintiff. A new application was made on June 4th. Hearing was had on this application on August 23, 1938, but no action was taken on it by the Department. Early in 1937 the plaintiff had sold the business, the stock and the personal property used in the business to her eighteen year old daughter, a son-in-law and one of her drivers who proposed to operate the business as a partnership. These persons applied to the Department for a license in March, 1937. Hearing was had upon it on April 20, 1937. Nothing was paid down by the partners but they gave a note and mortgage for the purchase price, $4,950. No order of denial was entered upon this application, but the parties were plainly told on this hearing that the “financial picture” was such that a license would not be granted to the “new organization.” The property was re-taken on the mortgage by the plaintiff. The business continued to run uninterruptedly after the sale without a new license being issued to either the purchasers or the plaintiff after the property was re-taken. Sec. 100.03 (4) (e), Stats., provides that a sale of a business as dealer voids the dealer's license. The facts stated respecting the sale and re-taking of the property and operation without a license form the basis of the charge on that ground in the instant complaint and that on the complaint of June 4, 1938.
The plaintiff applied for a 1939 license in the latter part of November, 1938. On the application being made the Department filed complaint against her and hearings were had thereon December 13th and 23d. An order denying the application was made February 3, 1939. It denied the application of plaintiff to a license to operate as a producer dealer of milk in the Racine district. The findings on which the order was based were: That applicant (1) had been licensed as a dealer for several years and had violated the statutes applicable to such dealers and Department orders repeatedly, particularly as shown by evidence taken upon license hearings December 28, 1937, and August 23, 1938; (2) in 1937 had sold the business to her daughter, son-in-law and driver who were without financial means and permitted these persons to operate without a license; (3) in 1937 after taking back the business from these persons had operated without a license; (4) had filed financial statements misrepresenting financial worth; (5) had since the denial of the 1938 license violated law and department orders and court injunctions by selling over-test milk, selling at less than the ordered minimum price, and had evaded the ordered prices to producers; (6) is unfit and unequipped for the business.
The plaintiff brought the instant action to vacate the order. The court entered judgment reversing the order of the Department and remanded the record for further proceedings.
Some further facts are stated in the opinion in discussion of the points upon which they directly bear.John E. Martin, Atty. Gen., and R. M. Orchard, Asst. Atty. Gen. (Fred M. Wylie, of Madison, of counsel), for appellant.
Thompson, Myers & Helm, of Racine (W. L. Jackman, of Madison, of counsel), for respondent.
As appears from the foregoing statement of facts the plaintiff applied to the Department for a license as a milk dealer in the Racine district for 1939. After hearings noticed and held pursuant to secs. 93.14 and 93.18, Stats., which govern the procedure the application was denied on February 3, 1939. The plaintiff duly brought action in the circuit court for Dane county for review of the order of denial. The order was based on findings of fact made by the Department. Findings (5) and (6) of these findings read as follows:
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