Silverberg v. Industrial Com'n

• Decision Date: 02 June 1964
• Citation: 24 Wis.2d 144,20 A.L.R.3d 588,128 N.W.2d 674
• Parties: , 20 A.L.R.3d 588 Joseph H. SILVERBERG, Appellant, v. INDUSTRIAL COMMISSION of Wisconsin, Respondent.
• Court: Wisconsin Supreme Court

Page 674

128 N.W.2d 674

24 Wis.2d 144, 20 A.L.R.3d 588

Joseph H. SILVERBERG, Appellant, v. INDUSTRIAL COMMISSION of Wisconsin, Respondent.

Supreme Court of Wisconsin.

June 2, 1964.

Glassner, Clancy & Glassner, Milwaukee, for appellant.

George Thompson, Atty. Gen., Beatrice Lampert, Asst. Atty. Gen., Wheeler, Van Sickle, Day & Goodman, Madison, Amicus Curiae, for respondent.

BEILFUSS, Justice.

The petitioner contends he is entitled to an employment agent's license; the commission contends that the application should be denied. Both parties to this appeal agree that the disputed issues should be resolved upon the record as it now appears and that the matter should not be remanded to the commission for further evidentiary consideration.

The principal statute involved is sec. 105.13:

'Refusal to issue and revocation of license. It shall be the duty of the industrial commission, and it shall have power, jurisdiction and authority to issue licenses to employment agents, and to refuse to issue such license whenever, after due investigation, the commission or a majority of the members thereof finds that the character of the applicant makes him unfit to be an employment agent, or when the premises for conducting the business of an employment agent is found upon investigation to be unfit for such use, or whenever, upon investigation by the commission, it is found and determined that the number of licensed employment agents or that the employment agency operated by the United States, the state or by the municipality or by two or more thereof jointly in the community in which the applicant for a permit proposes to operate is sufficient to supply the needs of employers and employes. Any such license granted by the commission may also be revoked by it upon due notice to the holder of said license, and upon due cause shown. Failure to comply with the duties, terms, conditions or provisions of sections 105.01 to 105.15, inclusive, of the statutes, or with any lawful orders of the commission, shall be deemed due cause to revoke such license.'

The statute directs the commission to issue a license and to refuse to do so if after investigation the commission or a majority of the members find (1) the character of applicant makes him unfit, or (2) the premises for conducting the business are unfit, or (3) that the number of licensed agencies, including state, federal or municipal agencies operating in the community, is sufficient to meet the needs of employers and employees.

The first grounds for refusal were resolved in favor of the petitioner and are not in dispute. Our consideration is limited to the third ground of refusal under the statute, i.e., whether the needs of employees and employers are sufficiently supplied.

The court has considered this portion of the statute on previous occasions. In Graebner v. Industrial Comm. (1955), 269 Wis. 252, 68 N.W.2d 714, we decided that the statute was constitutional in that it did not violate the due process clause of the Fourteenth Amendment and that it was a valid delegation of legislative authority.

'The business of conducting an employment agency is a legitimate one in which all persons similarly situated are lawfully entitled to engage, but it is one which is so far concerned with the welfare of the public that it is within the police power of the state to regulate it. State v. Howard W. Russell, Inc., 181 Wis. 76, 194 N.W. 43. Such power carries with it the right to require that one who desires to engage in the business shall have a license therefor. It is also the established law that a legislative act may validly confer upon an agency of the government authority to grant or to withhold a license, provided that where discretion is to be exercised by such agency proper standards of guides for the use of the discretion are established by the act and that the act may not be construed as conferring upon the agency the power to exercise its discretion unreasonably, arbitrarily or capriciously. Mehlos v. City of Milwaukee, 156 Wis. 591, 146 N.W. 882, 51 L.R.A.,N.S., 1009.' (p. 255 of 269 Wis., p. 716 of 68 N.W.2d)

'The statute involved in the instant case must be given similar construction. The standards prescribed are that the license is to be refused if the character of the applicant makes him unfit to be an employment agent or when the premises whereon he purports to operate is found to be unfit for use, or if the community in which he proposed to operate is adequately served by existing agencies. Upon the authority of the Wisconsin cases to which we have referred we must hold that the statute, in so far as it empowers the commission to grant or to refuse a license under the circumstances prescribed is valid.' (p. 257, of 269 Wis., p. 717 of 68 N.W.2d)

In oral argument petitioner has asked us to re-examine and overrule the Graebner Case, supra. While we are not precluded from a re-examination of a former case upon request at oral argument, we determine upon the record before us, it is inappropriate to do so in this instance.

The controlling case here is Harding v. Industrial Comm. (1961), 12 Wis.2d 274, 107 N.W.2d 273, 108 N.W.2d 155.

In the Harding Case we determined that a public hearing was required before an application for an employment agency license could be denied and reasserted the standards to be used by the commission as set forth in Graebner.

'If, on the other hand, the refusal of a license under sec. 105.13, Stats., be considered the final decision of the commission, without any possibility of gaining a hearing under sec. 101.15, sec. 105.13 should be construed as requiring a hearing before refusal of a license. Notwithstanding the use of the term 'investigation' as the basis for the findings, the commission has proceeded in the past as if the word were 'hearing.' Doubts would arise as to the validity of excluding persons from a lawful business by reason of determinations of fact reached without a hearing. Both the administrative practice, and the doubts referred to would support the construction that the investigation must take the form of a hearing.

'In this case, we are concerned only with the third ground for refusal specified in sec. 105.13, Stats., i. e., whether the needs of employers and employees in the Milwaukee community are sufficiently supplied.

'The validity of empowering the industrial commission to refuse a license upon a finding that such needs are sufficiently supplied by existing agencies was sustained in Graebner v. Industrial Comm., 1955, 269 Wis. 252, 68 N.W.2d 714. In discussing the standard for the exercise of the commission's power, the court said at page 258, 68 N.W.2d at page 717:

"We agree that the commission shall consider both the quality and the quantity of the service rendered...