In re State ex rel. Attorney Gen.

• Decision Date: 07 January 1936
• Citation: 264 N.W. 633,220 Wis. 25
• Parties: IN RE STATE EX REL. ATTORNEY GENERAL (TAVERN CODE AUTHORITY).
• Court: Wisconsin Supreme Court

220 Wis. 25

264 N.W. 633

IN RE STATE EX REL. ATTORNEY GENERAL (TAVERN CODE AUTHORITY).

Supreme Court of Wisconsin.

Jan. 7, 1936.

This is an original action begun in this court by the State on the relation of the Attorney General, petitioning the court to determine under section 269.56, Wis. Stats., whether chapter 110 of the Wisconsin Statutes of 1933, as amended by chapter 182 of the Laws of 1935, is invalid because it attempts, in violation of the Constitution, to delegate power conferred upon the legislature.

James E. Finnegan, Atty. Gen., and Fred M. Wylie, of Milwaukee (Joseph A. Padway, of Milwaukee, of counsel), for plaintiff.

Howard P. Haberla, of Milwaukee (Fred R. Wright, Roland J. Steinle, and Herbert S. Thatcher, all of Milwaukee, of counsel), for defendant.

Lloyd D. Mitchell, of Oshkosh, C. J. Marsh, Counsel Wisconsin Recovery Administration, of Madison, Bitker, Tierney & Puchner, and Lines, Spooner & Quarles, all of Milwaukee (Louis Quarles, Leo Mann and Maxwell H. Herriott, all of Milwaukee, of counsel), amici curiæ.

Jurisdiction.

ROSENBERRY, Chief Justice.

[1] A preliminary question is raised. It is urged that this court has no jurisdiction of an original action brought under section 269.56 (Uniform Declaratory Judgments Act). By that section it is provided: “(1) Courts of record within their respective jurisdictions shall have power to declare rights, status,” etc. It cannot be argued that the Supreme Court of the State of Wisconsin in the exercise of its original jurisdiction is not a court of record. It is pointed out, however, that the Constitution of this state provides: Article 7, § 3. “The supreme court, except in cases otherwise provided in this constitution, shall have appellate jurisdiction only. * * * The supreme court shall have a general superintending control over all inferior courts; it shall have power to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, and other original and remedial writs, and to hear and determine the same.”

It is argued that the Uniform Declaratory Judgments Act as adopted in this state is an enlargement of the jurisdiction of this court; that it is beyond the competency of the Legislature under the Constitution to add to or take from the jurisdiction conferred upon this court by the Constitution. Consequently the court has no jurisdiction of an action brought under section 269.56. If the premise is sound, the conclusion inevitably follows.

We address ourselves therefore to the inquiry of whether or not the Uniform Declaratory Judgments Act enlarges the jurisdiction of this court. The whole philosophy underlying the Uniform Declaratory Judgments Act is that it enables controversies of a justiciable nature to be brought before the courts for settlement and determination prior to the time that a wrong has been committed or threatened. Borchard, Declaratory Judgments, 3. No court takes jurisdiction under the Uniform Declaratory Judgments Act of a subject-matter of which it would not have jurisdiction in a remedial action. The Uniform Declaratory Judgments Act merely authorizes the court to take jurisdiction at a point earlier in time than it would do under ordinary remedial rules and procedure. If an act of the Legislature provided that an action of replevin could be maintained without proving a demand for the return of the property, that act would not enlarge the jurisdiction of any court. In determining whether or not this court should take jurisdiction in response to a petition of a litigant for leave to institute an action in this court, the court does not look to the Uniform Declaratory Judgments Act as a basis for decision. It looks to the Constitution as expounded and applied by this court. The principles upon which the court proceeds are summarized and laid down in In re Income Tax Cases, 148 Wis. 456, 134 N.W. 673, 135 N.W. 164, and subsequent decisions of this court.

When it appears from the petition that a controversy is presented which falls within some one of the classes enumerated in that case, the court takes jurisdiction. After the court has taken jurisdiction and pursuant to leave granted complaint has been filed and issue joined, the court may then examine the complaint to see whether or not under the Declaratory Judgments Act, a cause of action is stated. The jurisdiction of this court is not enlarged because of certain procedural changes in the law. As was said by the Supreme Court of the United States in Nashville, Chattanooga & St. Louis Ry. v. Wallace, 288 U.S. 249, at page 264, 53 S.Ct. 345, 348, 77 L.Ed. 730, 87 A.L.R. 1191: “The judiciary clause of the Constitution defined and limited judicial power, not the particular method by which that power might be invoked. It did not crystallize into changeless form the procedure of 1789.”

In Ellis v. Davis, 109 U.S. 485, 486, 3 S.Ct. 327, 334, 27 L.Ed. 1006, it was said: “It has been often decided by this court that the terms ‘law’ and ‘equity’ * * * do not restrict the jurisdiction conferred by it [the constitution] to the very rights and remedies then recognized and employed, but embrace as well not only rights newly created by statutes of the states * * * but new forms of remedies to be administered in the courts of the United States, according to the nature of the case.” Borchard, Declaratory Judgments, 136, and cases cited.

[2] It is the nature of the controversy presented by the petition which determines whether or not this court will take jurisdiction, not the procedure to be followed by the court after jurisdiction has been taken. This case seems to be well within the classification set out in the Income Tax cases, supra. It is alleged in the petition that: “The question of the constitutionality of ch. 110 of the Wisconsin statutes affects innumerable members and employees of industry throughout Wisconsin and is of vital concern also to the entire public. Until the question is determined finally by this court, uncertainty and doubt of their legal obligations will exist in the minds of innumerable citizens of the state, and confusion and inability to stabilize will exist in many Wisconsin industries.”

It further appears that pursuant to the provisions of chapter 110 certain codes of fair competition and trade practices have already been set up which include maximum hours, minimum wages, health provisions, and other measures for the protection of the public; if the statute under which the various state agencies have proceeded is invalid and unconstitutional, that illegal burdens will be imposed upon the citizens of the state. From the very nature of the case it appears that the sovereignty of the state is involved for the reason that the lawmaking power of the state is to be exercised by certain administrative agencies. The case therefore seems beyond doubt to be publici juris, involves the exercise of the sovereign power of the state, the conduct of its high officials, and the welfare of its citizens.

There is no doubt from the allegations of the petition that an actual controversy exists as between the officials charged with the administration and enforcement of the law and members of the tavern industry and that the issue is real and not feigned. For the reasons given in State ex rel. Wisconsin Telephone Co. v. Henry (Wis.) 260 N.W. 486, 99 A.L.R. 1267, the court takes jurisdiction of this action.

Constitutionality of Chapter 110 of the Statutes of 1935.

On behalf of the state of Wisconsin, the Attorney General argues that the Legislature acted within constitutional limitations of its powers in the enactment of chapter 110, Stats.1935. The representatives of the tavern industry, petitioners here, argue that the act is void because it attempts to confer upon the Governor and administrative agencies to be created by him legislative powers which cannot be delegated. Chapter 110 of the Stats. of 1935 is commonly referred to as the Wisconsin Recovery Act (W.R.A.). Because of the fact that in the course of the opinion it will be necessary to refer to chapter 110 of the Stats. of 1933, which has also been described as the Wisconsin Recovery Act, we shall be obliged to resort to the chapter number in each instance where reference is necessary. An orderly consideration of the question presented requires us to point out the changes made in chapter 110, Stats.1933, by the enactment of chapter 182 of the Laws of 1935. Section 110.01 being a declaration of policy was not changed. Section 110.02 relating to the duration provides that the chapter and the codes adopted pursuant thereto should remain in effect until July 25, 1937, unless sooner terminated by the Governor. Section 110.03 provides that the Governor may delegate certain of the powers and functions conferred upon him by the chapter.

Section 110.04 was entirely rewritten and is set out in the margin. ¹

The other sections were not amended in any respect material to the issues in this case.

Section 110.10 is new and is as follows:

“ Separability of provisions. The legislature intends that the provisions contained in sections 110.01 to 110.09, inclusive, shall be independent of each other and that the invalidity for any reason of any of said sections, or any subsection, paragraphor clause thereof, shall not affect the validity of any other section, subsection, paragraph or clause thereof.”

[3] It is our duty, in the event we find that the act is ambiguous or the interpretation to be placed upon it doubtful, to so construe it that it may be upheld if that is possible. If, however, the act is plain and unambiguous and in contravention of the Constitution or if, subject to construction, it cannot be so construed that it will meet constitutional requirements, then we must as a matter of duty declare it unconstitutional.

[4] A determination of the matters presented for decision involves the consideration of certain circumstances which do not ordinarily arise in cases of this kind. Chapter 110, Stat...