State ex rel. Attorney Gen. v. Fasekas

• Decision Date: 10 November 1936
• Citation: 269 N.W. 700,223 Wis. 356
• Parties: STATE ex rel. ATTORNEY GENERAL v. FASEKAS.
• Court: Wisconsin Supreme Court

223 Wis. 356

269 N.W. 700

STATE ex rel. ATTORNEY GENERAL

v.FASEKAS.

Supreme Court of Wisconsin.

Nov. 10, 1936.

Appeal from orders of the Circuit Court for Milwaukee County; Gustave G. Gehrz, Judge.

Affirmed.

This action was begun by the State of Wisconsin on relation of the Attorney General on August 31, 1935, to compel William Fasekas, the defendant, to cease and desist from further violation of the code of fair competition for the intrastate business of the barber industry. From the order overruling defendant's demurrer to the complaint, dated July 30, 1936, the defendant appeals.

Pending the determination of the issues in the case, a restraining order was issued in accordance with the provisions of section 110.04(5), Wis. Stats. There was a motion to vacate the order, which motion was denied by order dated January 15, 1936, as to all of the defendants except William Manske, but a stay of proceedings was granted. A second contempt proceeding resulted in an order vacating the stay and adjudging the defendant guilty of contempt, which order was dated May 9, 1936. From each of these orders the defendant appeals.

FOWLER, FAIRCHILD, and NELSON, JJ., dissenting.

James J. Kerwin, of Milwaukee, for appellant.

James E. Finnegan, Atty. Gen., Fred M. Wylie, Sp. Counsel, of Milwaukee, C. J. Marsh, Counsel Trade Practice Commission, of Madison, and William A. Zabel, Dist. Atty., and Arthur Schmidt, Asst. Dist. Atty., both of Milwaukee, for respondent.

ROSENBERRY, Chief Justice.

[1] The order and judgment of the court finding the defendant, Fasekas, guilty of contempt must be sustained on the authority of State ex rel. Fowler v. Circuit Court (1898) 98 Wis. 143, 73 N. W. 788, and John F. Jelke, Co. v. Beck (1932) 208 Wis. 650, 242 N. W. 576. The defendant acted in entire disregard of the court's order, claiming that the code under and pursuant to which the order was made was invalid and unconstitutional. The defendant flouted the court and contumaciously refused to abide by an order made by a competent court having jurisdiction over his person and the subject matter of the controversy. Whether the order was right or wrong, it was the duty of the defendant to obey it until relieved therefrom in some one of the ways prescribed by law.

[2] By his demurrer to the complaint the defendant seeks to raise an issue regarding the constitutionality of the code of fair competition for the intrastate business of the barber industry. The code itself is not set out in the complaint nor are we referred in any way to a copy of the code. Inasmuch as we do not in this case reach the question sought to be raised, we shall not attempt to take judicial notice of it. The code was framed under and pursuant to chapter 110 entitled “Emergency Promotion of Industrial Recovery.” Section 110.04(4) provides: “All orders of the governor prescribing, approving, disapproving, modifying, amending or terminating codes shall be subject to review in the same manner in which orders and awards of the industrial commission are made reviewable by subsections (1), (2) and (3) of section 102.23, and by sections 102.24 and 102.25 of the statutes,” except that the word “governor” is substituted for the word “commission.”

Section 102.23 of the Workmen's Compensation Act relating to judicial review provides that findings of fact made by the commission shall be conclusive if the commission acts within its power and without fraud. It further provides that an award or order of the Industrial Commission may be reviewed by commencing an action in the circuit court for Dane county for that purpose. The statute then provides: “With its answer, the commission shall make return to said court of all documents and papers on file in the matter, and of all testimony which may have been taken therein, and of its order, findings and award. *** Said action may thereupon be brought on for hearing before said court upon such record by either party on ten days' notice to the other” etc.

The section further provides that the award or order shall be set aside only upon the following grounds: (a) That the commission acted without or in excess of its powers; (b) that the order or award was procured by fraud; (c) that the findings of fact by the commission do not support the order or award.

Section 102.24 relates to the remission of the record. Section 102.25 provides for an appeal from the judgment of the circuit court on the award to the Supreme Court.

The defendant sought no review of the order made by the Governor establishing the code. Chapter 110 of the Statutes of 1935 was held, when properly construed, to be constitutional. In re Petition of State ex rel. Attorney General (Tavern Code Authority) (1936) 220 Wis. 25, 264 N. W. 633, 640. In the course of the opinion in that case the distinction between a code of fair competition and a code which merely eliminates unfair competition and unfair trade practice was clearly pointed out, and it was there said: “By way of illustration, neither the Governor nor the code administrator can proceed under this act to deal with the whole subject of establishing maximum hours of labor, minimum rates paid, and working conditions not related to the matter of unfair trade practices and unfair methods of competition. Any regulation made under the provision of this chapter in relation to those subjects must, as already stated, bear a reasonable relation to the elimination of unfair methods of competition in business and unfair methods of trade practices in order to conform to the standard prescribed by the act. What is unfair is one thing; what is in the interest of the industry or the general welfare is quite another thing.”

Section 110.04(1) (a) provides: “The governor is hereby vested with the power and jurisdiction and it shall be his duty to investigate, ascertain, declare and prescribe reasonable codes or standards of fair competition and trade practices for the various trades and industries in the state. *** Such codes or standards of fair competition and trade practices shall be prescribed and approved by the governor after such reasonable public notice and hearing as he shall specify and if he finds (1) that such code or codes are not designed to promote monopolies or to eliminate or oppress small enterprisesand will not operate to discriminate against them and will tend to effectuate the policy of this chapter, and (2) that such code or codes are not inequitable and that the interests of the consumers and general public will be protected, and (3) that such code is necessary for the stabilization of the intrastate business of such trade or industry.”

[3] These provisions are limitations upon the power of the Governor. In order to comply with the decision in the Schechter Case (Schechter Poultry Corporation v. United States), 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570, 97 A.L.R. 947, the court held in the Tavern Case that a further consideration must be added, to wit, that the codes prescribed must have some reasonable relation to unfair methods of competition and unfair trade practices in business. These are the standards prescribed by the statute. Unless the provisions of the codes are so reasonably related to unfair methods of competition and unfair trade practices, the Governor is without authority under the terms of the act.

[4][5] No doubt the purpose of the Legislature in prescribing that the order of the Governor establishing a code could be reviewed only in the manner prescribed by section 110.04(4) was to insure bringing before the court the record upon which the Governor acted. There is nothing before us relating to the proceedings had before the Governor or the record made upon the hearing required to be held prior to the promulgation of the code. If the statutory procedure had been followed and a review had been sought in accordance with the statute, that record would be before us, and from it a determination could be made as to whether the Governor acted in excess of and beyond his jurisdiction. Without such a record it must be presumed that the Governor proceeded in the manner prescribed by statute, made the necessary findings, and that such findings are properly supported by evidence offered on the hearing. While section 102.23 limits the time for appeal to thirty days, we were advised upon the oral argument that a procedure has been laid down whereby any member of an industry adversely affected may have a review of the code at any time and that the order so made may be brought before the court in the manner prescribed by statute.

Section 110.05 provides that the Governor may modify or terminate any code or any specific provision thereof approved or issued under this chapter if he shall determine that such code or any specific provision thereof does not effectuate the purpose of this chapter. Each code approved under the provisions of this chapter shall contain an express provision to that effect.

In Corstvet v. Bank of Deerfield (1936) 220 Wis. 209, 263 N.W. 687, 697, it was held that a dissenting stockholder who had not sought a review of the act of the commissioner of banking approving a stabilization agreement was concluded, and it was there said: “It is a well-established principle of law that where a special tribunal is created by statute, charged with the duty and having the power to review the determination of an administrative agency, that tribunal must be first resorted to before resort is had to the courts” citing cases.

[6] It is an equally well-established rule of law that, where a new right is created or power conferred and a particular method of review is prescribed by the act creating the right or conferring the power, that method of review must be pursued. In re Jeness (1935) 218 Wis. 447, 261 N.W. 415.

[7] While no separate tribunal is created by statute with power to review the order of the Governor, the Governor may review such an order upon petition or upon his own motion under the...