Milwaukee Horse & Cow Comm'n Co. v. Hill

• Decision Date: 08 March 1932
• Citation: 207 Wis. 420,241 N.W. 364
• Court: Wisconsin Supreme Court
• Parties: MILWAUKEE HORSE & COW COMMISSION CO. v. HILL ET AL. WEISFELDT v. HILL ET AL.

207 Wis. 420

241 N.W. 364

MILWAUKEE HORSE & COW COMMISSION CO.

v.HILL ET AL.

WEISFELDT

v.HILL ET AL.

Supreme Court of Wisconsin.

March 8, 1932.

Appeal from orders of the Circuit Court for Dane County; A. G. Zimmerman, Circuit Judge.

Affirmed.

These are two actions: The first by the Milwaukee Horse & Cow Commission Company, a Wisconsin corporation, plaintiff, commenced on the 5th day of October, 1931, against the defendants C. L. Hill, W. F. Renk, and J. D. Beck, commissioners of agriculture and markets of the state of Wisconsin, Ralph Ammon, director, and A. W. Kalbus, associate director of the Wisconsin State Fair, and Albert Becker and Paul Winkelman, individually and as copartners; and the second by Max Weisfeldt, plaintiff, commenced on the same day against the same defendants, praying for injunctions. Orders sustaining demurrers to the complaints were entered on the 14th day of October, 1931. An order vacating a restraining order issued in the action commenced by the Milwaukee Horse & Cow Commission Company was vacated by an order entered on the 17th day of October, 1931. From these various orders the plaintiffs appeal.LaFollette, Rogers & Roberts, of Madison (Daniel H. Grady, of Portage, and W. Wade Boardman, of Madison, of counsel), for appellants.

John W. Reynolds, Atty. Gen., Fred M. Wylie, Deputy Atty. Gen., and Kuehl & Crownhart, of Madison, for respondents.

OWEN, J.

The Milwaukee Horse & Cow Commission Company is a Wisconsin corporation. Max Weisfeldt is the president of the corporation. These actions are brought to restrain state officials, whom we shall, for brevity, designate as the state fair board, from leasing certain stock barns on the state fair grounds to the defendants Albert Becker and Paul Winkelman.

The complaint of the Milwaukee Horse & Cow Commission Company alleges that on the 24th day of September, 1931, the state fair board caused to be executed to the defendants Becker and Winkelman a purported lease of certain barns and stables located on the state fair grounds; that the buildings so attempted to be leased are to be used to receive horses and cattle which said Becker and Winkelman may purchase throughout the state for resale, and which will be kept in said stables and barns pending their resale; that said defendants Becker and Winkelman will conduct public sales of horses and cattle in said premises each Wednesday during the term of said alleged lease, and that they sought and accepted said lease because they could procure the same at a less rental than they would have to pay for similar quarters elsewhere, and for the further reason that the very location of said business in the state fair park constitutes a distinctly advantageous position over every other competitor in the same business; that the state fair board refused to execute to the Milwaukee Horse & Cow Commission Company a similar lease, on the ground that the state fair board had determined, as a state policy, that no cattle or horses other than cattle or horses shown and displayed at the annual state fair should be kept in the barns and stables in the state fair park, and that, relying on said declared policy, plaintiff leased adjacent lands across from the state fair park, upon which it erected barns and stables at a cost of approximately $15,000, where it conducts its business as a live stock commission company; that the lease to the defendants Becker and Winkelman constitutes an unjust discrimination against the plaintiff, and that it will in effect give defendants Becker and Winkelman a monopoly in the rental of all unoccupied barns on the said state fair park, contrary to the public policy of this state; that, in addition to the $15,000 which the plaintiff commission company has invested in its barns and stables, it has an additional investment of approximately $17,000 in its business, and that, if Becker and Winkelman are permitted to operate under their lease, plaintiff will suffer a serious and irreparable damage to its business, the amount of which, while extensive, is impossible of ascertainment. It declares the invalidity of the lease upon various grounds, the principal one being that the statutes vest no authority in the state fair board, or any other state official, to thus lease the barns and stables on the state fair grounds.

The complaint of Max Weisfeldt is that of a taxpayer's action, pure and simple. He alleges that the attempted lease of said barns and stables by the said state fair board to Albert Becker and Paul Winkelman is without any authority of law; that none of the defendants in this action have any authority to lease the said state fair park, or any part thereof, for any private purposes at a time when the state fair is not in progress; that the operations of defendants Becker and Winkelman, under the pretended lease, will result in a loss of prestige, good will, and patronage of the Wisconsin annual state fair; that plaintiff is informed and verily believes that many breeders of high-grade stock object to the housing of private stock in the barns of the state fair park because of the fear of contagious diseases and other contamination; that the agricultural exhibitions and showings of the state fair are likely to suffer considerably and the public deprived of the benefits of such showings; that, in addition thereto, the barns and other property of the state fair park will suffer considerable wear, tear, and physical depreciation; that such damage is irreparable, and that plaintiff and other taxpayers of the state of Wisconsin are without any remedy at law or any other remedy in equity. The prayer is for judgment declaring the lease illegal and void and for its cancellation, and that the defendant state fair board be enjoined and restrained from in any way entering into the terms of said pretended lease, or permitting or allowing any compliance with said terms, and from in any way leasing the said Wisconsin state fair park, or any part thereof, for any purpose other than that provided by law.

It will be seen that the plaintiffs in these two cases are allied in interest, and that these actions are brought for the purpose of securing the same relief. They were briefed and argued together, and will be disposed of in a single opinion.

The lower court sustained the demurrers to the complaints on the ground that plaintiffs have no legal capacity to bring these actions. Before proceeding to review the correctness of this ruling, we desire to advert to a practice on the part of trial courts of which the Attorney General complains with much feeling.

A temporary restraining order was issued in the action brought by the commission company, ex parte, and without any notice to the defendants. The Attorney General complains that there is an apparent disposition on the part of trial judges to regard the interference of state government by injunction as a mere casual matter, and that they are too prone to embarrass state officers by temporary restraining orders issued ex parte and without any opportunity for the state officers to be heard, laying upon them the burden of instituting unnecessary proceedings to secure a vacation of such restraining orders.

[1] We agree with the Attorney General that interference with the affairs of state government is not a light or trifling matter, and seldom, if at all, should be done upon a mere ex parte motion. The federal government attaches such seriousness to the interference with the ordinary and usual operations of state government, that it requires a conference of three sitting judges before an injunction shall issue. We think it entirely proper that, wherever it can be done without apparent serious results, trial courts refrain from interfering with the course of state government, except on motion and an opportunity given the officials interested to be heard.

The serious question presented upon this appeal is whether these actions, or either of them, may be maintained by the plaintiffs. It was said in Judd v. Town of Fox Lake, 28 Wis. 583, at page 587: “The general principle that equity possesses no power to revise, control, or correct the action of public, political or executive officers, or bodies, is of course well understood. It never does so at the suit of a private person except as incidental and subsidiary to the protection of some private right, or the prevention of some private wrong, and then only when the case falls within some acknowledged and well defined head of equity jurisprudence.” The court cited in support of this proposition Doolittle v. Supervisors of Broome County, 18 N. Y. 155, 163, where it was said: “Where there is a question of official discretion, it must be decided by the officers in whom the constitution and laws have vested the discretion. If it be one of jurisdiction, a party who, in common with his fellow-citizens, is menaced by it, must, in respect to his legal remedy, wait until his individual rights are invaded. If the grievance consists in an alleged illegal exercise of official functions, those who question them, if they would have a preventive remedy, must invoke the action of the officer whom the law has appointed to sue in such cases. No private person or number of persons can assume to be the champions of the community, and in its behalf challenge the public officers to meet them in the courts of justice to defend their official acts.”

And again it is said: “Every person may legally question the constitutional validity of an act of the legislature which affects his private rights; but if a citizen may maintain an action for such a purpose in respect to his rights as a voter and tax-payer, the courts may regularly be called upon to revise all laws which may be passed.” As illustrative of this doctrine, may be cited the general principle that one may not maintain an action to abate a nuisance, unless he suffers special injury therefrom in addition to that suffered by the public generally; that an...