Ritholz v. Johnson

• Decision Date: 18 January 1944
• Citation: 244 Wis. 494,12 N.W.2d 738
• Parties: RITHOLZ et al. v. JOHNSON et al.
• Court: Wisconsin Supreme Court

244 Wis. 494

12 N.W.2d 738

RITHOLZ et al.

v.JOHNSON et al.

Supreme Court of Wisconsin.

Jan. 18, 1944.

Appeal from an order of the Circuit Court for La Crosse County; Robert S. Cowie, Judge.

Affirmed in part, reversed in part.

This action was begun on June 15, 1943, by Benjamin D. Ritholz, Samuel J. Ritholz, Fannie Ritholz, Sophie Ritholz and Morris J. Ritholz, copartners under the firm name and style of Optical Stores Company, plaintiffs, against Earl W. Johnson, Henry R. Tavs, Charles F. Behnke, Ottmar C. Beeck and E.W. Newton Lenz, as the Wisconsin Board of Examiners in Optometry, and Stanley C. Olson, Sheriff for La Crosse County, Wisconsin, defendants, to enjoin the defendants, their deputies, agents and employees from conducting any activities toward the enforcement of sec. 153.10 of the Statutes of Wisconsin, and for such other relief as might be equitable.

There was a temporary injunction, the defendants demurred to the complaint and moved to vacate the injunction. The demurrer to the complaint was overruled and the motion to vacate the temporary injunctionwas denied. From the order dated September 23, 1943, the defendants appeal.

The facts will be stated in the opinion.

John E. Martin, Atty. Gen., and Warren H. Resh, Asst. Atty. Gen., for appellants.

Gordon, Law, Brody & Johns, of La Crosse, for respondent.

Richardson, Reeder, Stearns & Weidner and Kaumheimer, Alt & Likert all of Milwaukee, amici curiae.

ROSENBERRY, Chief Justice.

In the view that we take of this matter, it is not necessary to state in detail all of the facts set out in the plaintiffs' complaint. It appears from the complaint that the plaintiffs are copartners residing in Chicago and are engaged in Wisconsin in the retail sale of eyeglasses on prescription in various cities. Details of the plan upon which they conduct their business are to be found in Ritholz v. Ammon, 1942, 240 Wis. 578, 4 N.W.2d 173. The defendants are the persons who compose the Wisconsin Board of Examiners in Optometry and the Sheriff, Stanley C. Olson, in his official capacity.

It is alleged: “That in the cities of Appleton, Madison, Milwaukee and La Crosse in the State of Wisconsin, the plaintiffs have opened retail stores for the conduct of their business and for the purpose of merchandising and selling optical supplies to purchasers upon prescription of optometrists. That the business conducted in each of the cities named is devoted exclusively to the sale of such supplies and is not connected in any way with the practice of optometry and that none of their agents or servants or store managers within the State of Wisconsin have ever been engaged as such optometrists, and have never attempted to treat eyes for disease or injury, and have never attempted to prescribe any type of eye glass for any patron or customer.”

The complaint then sets out the facts relating to the enactment and publication of ch. 273 of the Laws of 1943. (The material parts are printed in the margin.¹)

It is further alleged that said statute “is unconstitutional and invalid insofar as it deprives these plaintiffs as tradesmen and merchants of their right to truthfully and fairly advertise their merchandise and the prices and descriptions of the same, and that it attempts to deprive these plaintiffs of the right and privilege possessed by the other retail merchants of the State of Wisconsin, and is discriminatory and unfair to the plaintiffs. That it is an arbitrary and unlawful invasion of the rights of these plaintiffs as citizens guaranteed by the Federal and Wisconsin constitutions, and that it interferes and restricts the rights of these plaintiffs to freely engage in trade and commerce, the right to advertise being necessarily a part of free enterprise itself, and that the said Act attempts to discriminate and segregate from all merchants of the State of Wisconsin the one class of merchants to which these plaintiffs belong.”

Paragraphs Sixth, Seventh, Eighth, Ninth, Tenth and Eleventh relate to the damages which the plaintiffs have sustained and the injury to their business through the threatened enforcement of the provisions of ch. 153, Stats., by the defendants or some of them.

The plaintiffs pray judgment that the defendants be perpetually enjoined from the enforcement of the provisions of said chapter. Upon the complaint there was issued by a court commissioner in La Crosse county an order restraining the defendants, their agents and servants from causing the arrest of or interfering in any way with the advertising of the plaintiffs' merchandise prices in any paper, over any radio or in any periodical pending the trial of the issues.

This case is here upon a general demurrer to the plaintiffs' complaint which quite obviously states only those facts which in the opinion of the plaintiffs tend to support their claim that the statute is unconstitutional. The fact that this court has no knowledge or information of the business in which the plaintiffs are engaged compels us to consider a matter of constitutional law, which we have not heretofore definitively dealt with.

Attention is directed to the fact that a general demurrer to the complaint in an action challenging the constitutionality of a statute does not admit the allegations of the complaint to be true. State ex rel. Scanlan v. Archibold, 1911, 146 Wis. 363, 131 N.W. 895. The question then arises, what facts may the court properly consider in determining whether a statute is constitutional? In State ex rel. Attorney General v. Cunningham, 1892, 81 Wis. 440, 508, 51 N.W. 724, 738,15 L.R.A. 561, the court held that:

“In order that the court may be justified in declaring an act of the legislature void, the repugnance between it and the express provisions of the constitution and those limitations necessarily or conclusively implied from it must be clear and irreconcilable; and in all matters of unlimited discretion, or involving only considerations of public policy, the determination of the legislature is final and conclusive on the courts. * * *

“An issue of fact cannot be framed and tried by a jury or otherwise with a view of determining by its result the validity of an act of the legislature, but the court is to be confined to matters of which it may take judicial notice; for otherwise a jury might find on the issue one way to-day, and another way to-morrow; and this would beget a distressing condition of uncertainty.”

In State ex rel. Scanlan v. Archibold, supra, [146 Wis. 363, 131 N.W. 898], it was held: “The law must be tested as to its constitutionality by its language in the light of such matters as the court will take judicial notice of.”

In State ex rel. Kellogg v. Currens, 1901, 111 Wis. 431, 438, 87 N.W. 561, 564,56 L.R.A. 252, the court said: “The reasons for a given statute are for the legislature, if there are any which can fairly have weight. They are not for the courts. The latter have no control over the validity of a law unless they can say with substantial certainty that no argument or consideration of public policy exists which could have weight with any reasonable and honest man. If any such argument or reason can be suggested, its weight or sufficiency is not debatable in the courts. The existence of legitimate and adequate reasons for any law should not lightly be denied. Human minds differ, and what may seem inadequate or irrelevant to one may seem cogent to another. One is not justified, therefore, in assuming that all who differ from him are unreasonable or are not acting in good faith. It is from such considerations as these that the courts have laid down for themselves the rule that only in a clear case-clear beyond reasonable doubt-will they venture to assert that a law is without reason to support either its purpose or the classifications it may make.”

This general rule underwent some modification in the case of State ex rel. Carnation M.P. Co. v. Emery, 1922, 178 Wis. 147, 189 N.W. 564, 569. The action was an original one in this court and was brought by the plaintiff to enjoin the state from enforcing ch. 409 of the Laws of 1921, so far as that law sought to prohibit the sale by the plaintiff of a product known as “Hebe”. Upon the filing of a complaint an answer was served raising certain issues of fact which were referred to a referee to hear and report his findings. The referee filed findings in due course and found that hebe was not a harmful or deleterious food. The case was argued to the court upon the pleadings and the findings made by the referee. The court held:

“The findings of the referee are not conclusive on the court. They may be considered only to refresh the memory of the court as to matters of which the court will consider as common knowledge and of which it takes judicial notice, or for the purpose of bringing to the attention of the court scientific facts which would otherwise devolve upon the court undue labor.

“If there is any reasonable basis upon which the legislation may constitutionally rest, the court must assume that the Legislature had such fact in mind and passed the act pursuant thereto. The court cannot try the Legislature and reverse its decisions as to the facts. All facts necessary to sustain the act must be taken as conclusively found by the Legislature, if any such facts may be reasonably conceived in the mind of the court.”

The court then set forth a statement of facts from which it was held that the Legislature might reasonably infer that “the manufacture and sale of the compounds in question were conducive to fraud and deception, and likely to be injurious to the public health,” and on that...