State v. McKune

• Decision Date: 26 June 1934
• Citation: 215 Wis. 592,255 N.W. 916
• Parties: STATE v. MCKUNE.
• Court: Wisconsin Supreme Court

215 Wis. 592

255 N.W. 916

STATE

v.MCKUNE.

Supreme Court of Wisconsin.

June 26, 1934.

Appeal from an order of the Superior Court of Dane County; S. B. Schein, Judge.

Criminal prosecution by the State of Wisconsin against Francis McKune for the violation of a statute prohibiting the exchange of bakery goods previously delivered to dealers for purpose of sale. From an order sustaining a demurrer to the complaint, the State appeals.--[By Editorial Staff.]

Order affirmed.

Defendant was arrested for violation of section 352.56(3), Stats., under a warrant issued September 25, 1931, alleging that on July 29, 1931, the defendant, in violation of said statute, unlawfully exchanged certain bakery goods which he had previously delivered to certain dealers for the purpose of sale. The defendant demurred to the complaint, claiming among other things that section 352.56, Stats., was unconstitutional, as violating section 1, art. 1, and section 22, art. 1, of the Wisconsin Constitution, and the Fifth Amendment and section 1 of the Fourteenth Amendment of the Constitution of the United States. The trial court sustained the demurrer on the grounds that (1) the statute is so indefinite and uncertain as to render it unconstitutional, and (2) that it is unconstitutional because unreasonable and arbitrary. From the order sustaining the demurrer, plaintiff appeals.

WICKHEM, J., dissenting.

James E. Finnegan, Atty. Gen., and R. M. Orchard, Asst. Atty. Gen., for the State.

R. M. Rieser, of Madison (Olin & Butler, of Madison, of counsel), for respondent.

FAIRCHILD, Justice.

However the courts may defer to the good judgment and good faith of the Legislature, any citizen whose constitutional rights are transgressed against by legislation may require the courts to pass upon regulations claimed to be passed under the police power.

Subdivision (3) of section 352.56, Stats., provides as follows: “No person, or the servant or agent of any person, shall directly or indirectly, return or accept the return or exchange of any bakery products that have been delivered or received for the purpose of sale, nor shall any consideration be given by any person in lieu of the return or exchange of such bakery products. The provisions of this subsection shall not prevent the return or exchange by any person of bakery products having marked defects as to preparation or quality that would cause persons desiring to purchase such articles of average quality to reject such defective articles, nor shall it prevent the giving of any consideration in lieu of an exchange of such defective bakery products.”

In view of respondent's demurrer, it must be taken as undisputed that he did deliver to certain dealers certain bakery products for purposes of sale, that subsequently he exchanged these products, although at the time of the exchange they had no marked defects as to preparation and quality that would cause persons desiring to purchase such bakery products of average quality to reject them. There is no question but that such an action on the part of respondent constitutes a violation of section 352.56 (3), Stats. The only question here is whether this section is constitutional.

Article 1, § 1, of the Wisconsin Constitution provides: “All men are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”

Section 1 of the Fourteenth Amendment of the Constitution of the United States provides, in part, as follows: “* * * No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

[1][2] These constitutional provisions, which have been held to be substantially equivalent in their restrictive scope, Pauly v. Keebler, 175 Wis. 428, 185 N. W. 554, prescribe a rule of equality, and standing by themselves would prohibit any legislation which operated to restrict the rights and freedom of one individual or class and not of another, Wisconsin Ass'n of Master Bakers v. Weigle, 167 Wis. 569, 168 N. W. 383. While the breadth of this rule has been greatly limited by the exercise of the police power, that again is to be tested by rules of reasonableness, both as to purpose and means employed. Lowe v. Conroy, 120 Wis. 151, 97 N. W. 942, 66 L. R. A. 907, 102 Am. St. Rep. 983, 1 Ann. Cas. 341;State v. Redmon, 134 Wis. 89, 114 N. W. 137, 14 L. R. A. (N. S.) 229, 126 Am. St. Rep. 1003, 15 Ann. Cas. 408;Mehlos v. Milwaukee, 156 Wis. 591, 146 N. W. 882, 51 L. R. A. (N. S.) 1009, Ann. Cas. 1915C, 1102;State ex rel. Owen v. Donald, 160 Wis. 21, 151 N. W. 331;State ex rel. Blaine v. Wisconsin Tel. Co., 169 Wis. 198, 172 N. W. 225; Pauly v. Keebler, supra; State ex rel. Carter v. Harper, 182 Wis. 148, 196 N. W. 451, 33 A. L. R. 269.

[3] The statute here objected to seeks to prohibit the return or acceptance of return of any bakery products that have been delivered or received for the purpose of sale, and to prohibit the giving of any consideration by any person in lieu of the return or exchange of bakery products. The declared purpose of the act is to prevent the distribution of contamination, infection, or disease among consumers and to protect the food supply of the state against waste. But these declarations are not controlling except to the extent that they may be disclosed on the face of the act or inferable from its operation. 6 Ruling Case Law, p. 110, § 110.

[4][5] Even though it be assumed that the act in question is appropriate as a health measure and consistent with the exercise of the police power, there still remains the question of whether it involves a classification which is reasonable, or whether it is arbitrary and discriminatory. The police power, in order that it may satisfy the rule of reason and avoid conflict with the constitutional clauses insuring equal protection of the law, must not be discriminatory in operation. If the statute representing the exercise of the power applies to less than all of the citizens, it must be justified upon the ground that there is a reasonable basis for classification.

There are two respects in which this enactment is asserted to be discriminatory. One is that it...