Josam Mfg. Co. v. State Bd. of Health

• Decision Date: 02 March 1965
• Parties: JOSAM MANUFACTURING CO., a corporation, Respondent, v. STATE BOARD OF HEALTH of Wisconsin, Appellant.
• Court: Wisconsin Supreme Court

Page 301

133 N.W.2d 301

26 Wis.2d 587

JOSAM MANUFACTURING CO., a corporation, Respondent, v. STATE BOARD OF HEALTH of Wisconsin, Appellant.

Supreme Court of Wisconsin.

March 2, 1965.

Bronson C. LaFollette, Atty. Gen., James H. McDermott, Asst. Atty. Gen., Madison, for appellant.

Mount & Keck, Milwaukee, for respondent.

BEILFUSS, Justice.

The defendant-appellant, Board of Health, first contends that the circuit court did not have jurisdiction to determine the facts at issue and that the action should, therefore, be dismissed.

This action for declaratory judgment was commenced in the circuit court for Dane county by summons and complaint pursuant to sec. 227.05, Stats. After preliminary motions concerning the complaint were made and disposed of, the defendant answered the complaint but did not move to have any factual issues referred back to the board for determination. The defendant's answer admitted that plaintiff had urged the defendant to reconsider its position but that defendant refused to do so.

Sec. 227.05, Stats., provides in part as follows:

'(1) Except as provided in sub. (3) hereof, the exclusive means of judicial review of the validity of a rule shall be an action for declaratory judgment as to the validity of such rule brought in the circuit court for Dane county. * * * The court shall render a declaratory judgment in such action only when it appears from the complaint and the evidence presented in support thereof that the rule or its threatened application interferes with or impairs, or threatens to interfere with or impair, the legal rights and privileges of the plaintiff. A declaratory judgment may be rendered whether or not the plaintiff has first requested the agency to pass upon the validity of the rule in question.

'(2) Whenever an issue of fact is raised concerning the applicability of a rule to a party or affecting the validity or proper interpretation of a rule, the court shall, before deciding the pertinent legal question, refer the case to the agency for determination of the fact issue under the declaration ruling procedure provided in sec. 227.06. * * *'

Concededly, factual questions encompassed by the statute were at issue.

At the commencement of the trial the following colloquy took place between the court and Mr. McDermott, the assistant attorney general, representing the defendant:

'THE COURT: I take it, Mr. McDermott, that you are satisfied that the Court has jurisdiction over the subject matter?

'MR. McDERMOTT: I am. I feel this, your Honor: that this is a cause of action challenging the validity of an administrative rule. There is no doubt in my mind that this Court has jurisdiction under Sec. 227.05 of the statutes, to determine that challenge.'

The case then proceeded to trial. The testimony of several witnesses, many from considerable distance, took about six days. The record is in excess of 700 pages. It was not until the testimony was closed that counsel for the defendant objected to the jurisdiction of the court.

Clearly, the circuit court for Dane county had jurisdiction over the parties and the subject matter. Sec. 227.05(1), Stats., quoted above, provides that the exclusive means of judicial review of the validity of a rule shall be by action in the circuit court for Dane county, commenced by summons and complaint, and that the board be the party defendant.

The requirement of sub. (2) of sec. 227.05, Stats., that issues of fact be referred to the agency or the board, is a statutory procedural direction which does not divest the court of its substantive jurisdiction. By answering the complaint without objection to the jurisdiction of the court the defendant came within the personal jurisdiction of the court. The statute gave the court subject matter jurisdiction of the controversy. The defendant was then obligated to object to procedural deficiencies or be deemed to have waived them. It is fundamental that procedural errors in civil matters are waived unless timely objection is made thereto. The defendant cannot sit by without objection to a procedural matter during an expensive and time-consuming trial and then voice objection. An objection timely made could prevent a procedural error.

We conclude that the defendant waived any procedural right it may have had to have issues of fact referred back to the agency.

The principal issue before us on this appeal is,--does the evidence sustain the court's finding and conclusion that the State Board of Health's threatened application of secs. H 62.01(12), 62.03(1), 62.06(2), 62.06(5)(c), and other provisions of the Wisconsin State Plumbing Code, ch. H 62, 2 Wis.Adm.Code, so as to effectually prohibit plaintiff Josam Manufacturing Company from selling its Unitron double chair carrier, wall hung, single vent, horizontal type, fitting in the state of Wisconsin interfere with and impair the legal right and privilege of the plaintiff Josam Manufacturing Company to sell a legitimate product and carry on a lawful business, all in violation of the said plaintiff's constitutional rights and in excess of the statutory authority of the defendant State Board of Health of Wisconsin.

The pertinent statute involved is as follows:

'145.01 Definitions. (1) Plumbing. In this chapter, 'plumbing' means and includes:

'* * *

'(e) A plumbing and drainage system so designed and vent piping so installed as to keep the air within the system in free circulation and movement and to prevent with a margin of safety unequal air pressures of such force as might blow, syphon or affect trap seals, or retard the discharge from plumbing fixtures, or permit sewer air to escape into the building.'

2 Wis.Adm.Code sections involved are as follows:

'H 62.01(12) The House drainage system shall be so designed that there will be an adequate circulation of air in all pipes, no danger of siphonage, aspiration, or forcing of trap seals under conditions of ordinary use.'

'H 62.03 Fixture unit design basis. (1) Intermittent Flow Fixtures. The fixture unit value and the size of traps, vents, and piping shall be as designated in the following table for any fixture named therein. * * *' (At page 211, 2 Wis.Adm.Code, there appears a chart which provides that 'Water Closet, any type' shall have a minimum vent size of two inches.)

'H 62.06(2) Size. * * * Not more than two water closets shall be connected to a 3 inch soil stack. * * * Two water closets located back to back shall be connected to a 3 inch soil stack with a 3 X 3 inch double wye and one-eighth bends or similar fittings or fitting. * * *'

'H 62.06(5)(c) Change in direction. * * * No common pattern double sanitary 'T', 'Y', or straight through fitting shall be used on either a vertical or horizontal stack or branch, serving wall-hung closet bowls installed back to back. * * *'

'H 62.07(4) Unit Vent. * * * Where bath rooms, water closets or other fixtures are located on opposite sides of a wall or partition in the same building, or are directly adjacent to each other, such fixtures may have a common soil or waste pipe and vent pipe stack. * * *'

The 'To Whom It May Concern' letter of July 3d is considered to be a rule. It was a statement of agency policy of general application. While it arose out of the 'Unitron case', nothing appears to indicate that the policy expressed in the letter is limited to only Josam Unitron fittings. The testimony was that it was lodged against all single vent double chair carrier fittings.

In Frankenthal v. Wisconsin Real Estate Brokers' Board (1958), 3 Wis.2d 249, 253, 88 N.W.2d 352, 355, 89 N.W.2d 825, we considered a comparable matter thusly:

'We have no hesitancy in holding that the issuance by the board in 1956 of the mimeographed instructions for renewal of real estate broker's licenses, which contained the requirement that all members of a partnership must be licensed as a condition to licensing the partnership, constituted the making of a rule reviewable by the declaratory relief procedure set forth in sec. 227.05, Stats. The facts [sic] that no hearing was held before adoption, if such hearing was required, and that such rule was not filed and published as prescribed by ch. 227, Stats., are wholly immaterial on the issue of whether the same was so reviewable.' ¹

In deciding the issue we must first determine whether any or all of the agency rules and the statute quoted above apply. If they do apply, then the plaintiff, as to those rules which restrict it, must prove they are unconstitutional.

'Rules, regulations, and general orders enacted by administrative agencies pursuant to the powers delegated to them have the force and effect of law, * * *' 2 Am.Jur. (2d), Administrative Law, p. 119, sec. 292.

In State v. Stehlek (1953), 262 Wis. 642, 645, 56 N.W.2d 514, this court stated that it is a fundamental principle of statutory construction that a regularly enacted statute, or an order of an administrative body, made pursuant to statutory authority will be presumed constitutional. The burden of proof is beyond a reasonable doubt. In Thomson v. City of Racine (1943), 242 Wis. 591, 9 N.W.2d 91, it was held that commission orders are superior to municipal ordinances, where the two conflict. Commission rules, established within the jurisdiction of a commission, have the effect of public law. The court said, at page 597, 9 N.W.2d at page 94: "* * * The legislative control, either directly or through its designated administrative body, is superior to any conflicting action of the legislative body of the municipality.' * * *'

Should the rules be found applicable to plaintiff, it had the duty to prove their unconstitutionality by proof beyond a reasonable doubt. It had to show that there is no reasonable basis upon which the legislature (and hence the Board of Health) could have based its legislation (and hence the rule prohibiting single vented fitting). See Borden Co. v. McDowell (1959), 8 Wis.2d 246, 99 N.W.2d 146; City of Madison v. Chicago, M....