John F. Jelke Co. v. Hill

Decision Date10 May 1932
Citation242 N.W. 576,208 Wis. 650
PartiesJohn F. JELKE CO. v. HILL et al., Commissioners of Agriculture and Markets.
CourtWisconsin Supreme Court


Appeal from an order and judgment of the Circuit Court for Dane County; A. G. Zimmerman, Circuit Judge.

Action by the John F. Jelke Company against C. L. Hill, W. F. Renk, and J. D. Beck, as Commissioners of the Department of Agriculture and Markets, wherein a temporary injunctive order was issued against defendants. From a judgment and order finding defendant Beck guilty of contempt of court in violating such injunctive order, and imposing punishment for such contempt, such defendant appeals.––[By Editorial Staff.]


Punishment for contempt. On August 25, 1931, the plaintiff, a manufacturer of oleomargarine, commenced an action in the circuit court for Dane county, against C. L. Hill, W. F. Renk, and J. D. Beck, as commissioners of the department of agriculture and markets. The purpose of the action was to test the validity of chapter 96 of the Laws of 1931, it being alleged that the enforcement of the law would result in the impairment of the plaintiff's constitutional rights under the constitutions of the state of Wisconsin and of the United States. The complaint contained the necessary pertinent allegations to raise the issue, and upon the trial the court held chapter 96 to be invalid. From that part of the judgment there is no appeal, and the issues raised upon the trial as to that question need be given no further attention.

The complaint also alleged that, following the enactment of chapter 96, the defendant Beck, who will be hereafter referred to as the defendant, had been engaged in unfair trade practices and had given to the press written statements for the purpose of having the same generally circulated and published, and which were in fact published, in which statements, among other things, is contained the following: “This commission has a list of every merchant in the state that sold oleomargarine last year. It will secure a list of every merchant proposing to sell oleomargarine in the future, and every farmer in Wisconsin will be notified through the press as to what merchants have a sufficient interest in the welfare of the farmer to refrain from selling oleomargarine in competition with butter. * * * Commissioner Beck is now sending lists of merchants to the newspapers of the state, giving the names of those merchants who are not selling oleomargarine so that the farmers may know who their friends are. * * * We may not win this battle, but if we don't it will be the farmers' fault, not mine.”

The complaint also alleged that, in addition to sending out the statements, the defendant had sent to various newspapers in the state of Wisconsin letters which contained, among other things, after stating that the inspectors of the department of agriculture and markets would check on the stores in the state that deal in oleomargarine, the following: “I am sure that the farmers of your community will be pleased to know that the enclosed list of grocery stores in your city recognize the plight that the farmers of Wisconsin are in, by refusing to handle and sell oleomargarine.” Inclosed with these letters were lists of stores for publicity purposes. In the prayer for relief the plaintiff asks that a temporary restraining order be issued pending the hearing of the action upon its merits.

Under date of September 28, 1931, after a full and complete hearing and after the filing and consideration of briefs, the court, in addition to holding that chapter 96 was unconstitutional and void, held that, as to the publication of the names of retail oleomargarine dealers and the alleged unfair trade practices, while there might have been some justification in the commissioners so indulging themselves at a time when they were led to believe that the Legislature could properly practically suppress the oleomargarine industry, now having been informed that the highest legal authority to which the matter had been submitted had determined that the law was invalid, and that the oleomargarine industry was entitled to the same fair and considerate treatment as the dairy or any other legitimate industry, they would no doubt desist therefrom; that, while the commissioners may, under section 99.07 (5), “obtain and furnish lists of persons engaged in the production or distribution of products, yet they have no right to cause such lists to be published with the view of attempting to intimidate grocers and endeavoring to hamper the distribution of such products in the interests of competitors. And, indeed, it is made the duty of such Commissioners, under section 99.14 of the statutes, to prevent others from indulging in unfair trade practices and a fortiori it is likewise their duty not to so indulge, and they may be properly restrained from so doing.”

Pursuant to its findings and determination, the court, on October 3d, issued an injunctional order which provided that: “During the pendency of the above entitled action and until the further order of the court, the defendants C. L. Hill, W. F. Renk and J. D. Beck, as Commissioners of the Department of Agriculture and Markets * * * be, and they are hereby enjoined and restrained, from issuing, circulating or causing to be issued or circulated, communications, statements or lists of the various dealers in oleomargarine, with the purpose of intimidating dealers therein or endeavoring to hamper the distribution and/or sale of oleomargarine, or otherwise engaging in unfair trade practices relating to the manufacture and/or sale of oleomargarine.” The order was properly issued and served upon the defendant commissioners.

Under date of November 13, 1931, the plaintiff filed a petition supported by affidavit, in which it was alleged that the defendant had given out interviews to the press and had sent out various letters, and that the acts of said Beck constituted a violation of the rights of the plaintiff and were interfering with the business of the plaintiff in that the publication of the articles was intimidating various retail dealers, and that the same constituted unfair trade practice, and asked for the issuance of an order to show cause, directed to the defendant Beck, why he should not be punished as and for a civil contempt. On the return day of the motion, the defendant appeared personally and by his attorney. The Attorney General and Mr. Becker, special counsel, appeared for the department of agriculture and markets and the state of Wisconsin. The defendant first filed an affidavit of prejudice; objection was made that it was not timely and was improper; and the court held that, there having been one affidavit of prejudice in the original action, under the statute there could not be two affidavits of prejudice in the same action, and denied the motion.

A plea was next filed to the jurisdiction of the court on the ground that the petition and affidavits did not state facts sufficient to constitute a cause of action for contempt; that the defendant was not charged with disobedience of any lawful process or order of the court; that the issue was not submitted in the form provided by section 268.27 and chapter 376 of the Laws of 1931; and, further, that the acts alleged to have been performed were such as the defendant was authorized, directed, and required by law to perform. This plea was overruled, and the defendant then filed a demand for a jury trial, which was also overruled. Answer was thereupon filed to the petition for contempt. The answer admitted the proceedings in the original action and the entry of the orders of the court, and that subsequently thereto the defendant sent out letters on the stationery of the department of agriculture and markets to various newspapers for the purpose of having the same published, giving the names and addresses of the dealers selling, not selling, and those not selling in the past but expecting to sell in the future. Copies of the lists sent out to certain counties were annexed. The answer denied that the conduct of defendant constituted a violation of any valid injunctional order or that the same was deliberate or with knowledge that the act constituted a violation; that he had consulted counsel with reference to the sending out of the lists prior to their issuance; that such lists were sent in fulfillment of and in pursuance of what he deemed his duty and right as a citizen and an official of the state. It was then alleged that the defendant's acts were within his rights as a citizen of the state, and that any order of the court was a denial of the constitutional rights guaranteeing freedom of speech and freedom of the press. It was further denied that he consciously violated any injunctional order, and denied that the lists were obtained or furnished for any purpose prohibited by the court. The answer also alleges that the court was without jurisdiction to enter the original restraining order.

The cause proceeded to a hearing upon the petition and answer, and on November 24, 1931, the court rendered a decision in which it held that it had jurisdiction of the party and of the subject–matter, and that the entering of the original restraining order was a valid exercise of its power, and that it prohibited the defendant Beck from engaging in unfair trade practices which he had no right to follow either under the statute or in the absence of the statute. The court further held:

(a) That Beck, after the service of the restraining order, sent to newspaper publishers distinguishing lists of names and addresses accompanied by letters to newspaper publishers in various counties.

(b) That, at about the time of sending the lists, Beck sent to the Capital Times and to the Holmes News Service letters advising them that he had sent out letters and lists showing those who were and those who were not dealing in oleomargarine.

(c) That Beck “otherwise furthered the publicity as to...

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