State v. Neveau

• Decision Date: 20 November 1940
• Citation: State v. Neveau, 237 Wis. 85, 294 N.W. 796 (Wis. 1940)
• Parties: STATE v. NEVEAU.
• Court: Wisconsin Supreme Court

237 Wis. 85

294 N.W. 796

STATE

v.NEVEAU.

Supreme Court of Wisconsin.

Nov. 20, 1940.

Appeal from a judgment of the Circuit Court for Milwaukee County; Gustav G. Gehrz, Judge.

Affirmed.

This action was begun on March 26, 1940, by the state of Wisconsin, plaintiff, against Edgar Neveau, defendant, to enjoin the defendant from continuing to operate his barber shop until the license fees were paid. The case was tried to the court. The court made and filed findings of fact and conclusions of law, holding the act under which the application was made unconstitutional and void. From the judgment dismissing the plaintiff's complaint, the plaintiff appeals.

The complaint alleges that the trade practice standards for the barber trade have been issued under sec. 100.205 of the statutes and are in effect; that the defendant is operating a barber shop within the city of Milwaukee without a license; that the trade practice standards for the barber trade provide that barbering shall not be done for less than the following reasonable costs: hair cut, 50 cents, plain shampoo, 40 cents, hair tonic application, 25 cents; that the trade practice standards for the barber trade provide: “Also each of the following is an unfair trade practice and an unfair method of competition, and is forbidden: (1) To offer, contract, undertake, or advertise to do or sell, or to do or sell, barbering for less than the foregoing schedule of reasonable cost, directly or indirectly, by: *** (g) any method or device.”

Upon information and belief it is alleged that the defendant is selling and threatens to sell hair cuts for 35 cents, and is advertising to sell and selling, and threatens to advertise and sell, shampoos for 25 cents and hair tonic applications for 15 cents. The plaintiff asks that the defendant be enjoined pending the action from operating his barber shop without the license required by sec. 100.205 of the statutes and from violating the trade practice standards.

The defendant appeared and answered. The answer is long and argumentative but admits the issuance of the trade practice standards; alleges that sec. 100.205 of the statutes of 1939 and the trade practice standards promulgated pursuant thereto are void and unconstitutional on nearly all the grounds on which any regulatory law has been declared to be unconstitutional, and by way of counterclaim asks judgment declaring sec. 100.205 unconstitutional and that the plaintiff be restrained from enforcing its provisions. Upon motion the counterclaim was stricken.

The parts of sec. 100.205 material on this appeal are set out in the margin.¹

The trial court found, among other things, that the Department of Agriculture and Markets for the State of Wisconsin appointed a trade practice examiner, Fred M. Wiley, an attorney duly admitted as such; that said trade practice examiner by order dated March 4, 1940, promulgated “Trade practice standards for the barber trade”; that by paragraph 32 of said standards certain code areas were fixed and determinedand certain exemptions therefrom were made, to-wit: “Towns, villages and cities of more than 5,200 population situated in counties of more than 30,000 population (both by the last federal census), except the cities of Beaver Dam, Marshfield, and Portage, are the code areas”, and set out written reasons therefor; that “there are numerous towns, villages and cities in the state of Wisconsin with populations of 5,200 or less and 41 (of a total of 71) counties with populations of 30,000 or less, according to the last federal census, to all of which non-code areas, the provisions of said Section 100.205, Stats., and said Trade Practice Standards do not apply with the result that all persons engaged in the barber trade therein are excluded by said statute and standards from the provisions thereof and are not affected or regulated thereby.”

That “Milwaukee County is the only county in the State of Wisconsin having a population of 500,000 or more and is therefore the only county in said State in which said Trade Practice Standards are effective without their approval by a majority of the electors voting thereon, under the following express proviso contained in sub-section (6) (a) of said Section 100.205, Stats., to-wit: (italicizing by court)

“*** provided that in any event no standards shall be effective in any such county or in any such town, city or village other than those in a county having a population of five hundred thousand or more unless such standards are approved by a majority of the electors voting thereon in such county or town, city or village. **”

The court found the allegations of the plaintiff's complaint to be true but that no other violations than those relating to price for service were proven. The court further found that “at the time of the enactment of sec. 100.205, the barber-trade, or the business of barbering, and all elements thereof, were subjected to effective regulation in the public interest under and by virtue of the following Wisconsin statutes, namely:

“Chapter 158, regulating licensing and training of barbers and sanitation.

Chapter 101, containing standard Industrial Commission regulation of working conditions.

Chapter 103, providing for employment, minimum wage and maximum hour regulations for women and minors.

Chapter 104, providing for minimum, or living, wages for women and minors.

Section 100.15, regulating the giving away of premiums and other free articles of merchandise.

Section 100.18, dealing with the subject of fraudulent advertising.

Section 100.30, forbidding the sale or advertising of loss leaders.”

The court also found: “Any conditions or claimed evils sought to be improved or remedied by the enactment and enforcement of Section 100.205, Statutes, are incident to the barber trade everywhere in the State of Wisconsin, and do not affect the public differently in counties having over 30,000 population or in towns, cities or villages having over 5,200 population than in those having a lesser population. The same is true as between Milwaukee County and the other counties of the state. The mere fact that a larger number of persons may be affected presents no conceivable difference in any respect germane to the true and clearly indicated purposes of said statute.”

The court held as conclusions of law:

“1. The statute is unconstitutional and void because the pretended and equivocal classification made thereby (Subsec. (6) (a) according to population does not constitute an actual, genuine classification at all, and in any event must fail in that it is not based on characteristics legitimately distinguishing the members of one class from those of other classes in respects germane to the public purpose and object of said statute, all with the result that the same deprives the defendants and others similarly situated of the equal protection of the law and discriminates against their liberty and their personal and property rights guaranteed them by the federal and state constitutions.

2. The classification so attempted, although studiously, artfully and comprehensively drawn, negatives upon its face an actual, genuine conclusion on the part of the lawmaking body to classify counties and cities, or towns and villages, according to population. It convincingly betrays the unreasonable and purely arbitrary purpose to single out and discriminate against more populous localities, and Milwaukee County in particular, in a manner which offends against the rights, privileges and liberty of their citizens affected thereby as safeguarded by the federal and state constitutions.

3. Three different and inconsistent bases of classification are stated in said sub-section (6) (a) in an equivocal and alternative manner to accomplish the final result set forth in conclusions 1 and 2, supra. They are: (1) the 30,000 and 5,200 population basis; (2) that failing as invalid, then by prescribing a prima facie rule of evidence with respect of necessity or convenience as to the favored localities by way of obstacle to the legitimate resort to the courts by citizens injuriously affected; and finally, (3) a proviso effectively confining the application of the statute to Milwaukee County only by the arbitrary provision that ‘in any event’ no standards shall be effective in any other county ‘unless such standards are approved by a majority of the electors voting thereon in such county.’ The population clause ‘of five hundred thousand or more’ can only apply to Milwaukee County.

4. The proviso numbered (3) in the last conclusion plainly confining the application of the statute to Milwaukee County only, clearly makes said statute a local law with a title purporting to state that said law is of statewide interest, concern and scope; it is such local law to the extent necessary to bring into operation the constitutional requirement, Art. IV, § 18, as to title applicable to such laws. Its title, in so far as it applies to the statute in suit, is insufficient under that requirement.

5. Even though the statute states that any and all provisions and limitations thereof are severable, sub-section (6) (a) is a vital and indispensable part of the entire enactment without which the legislature would not have passed the statute and no complete law would remain in some reasonable aspect; said sub-section is not severable from the remainder of the statute or any other provision thereof. Its invalidity affects the entire act.

6. [Not involved on this appeal.]

7. Subsections (3) (c) and (3) (d) constitute an unconstitutional delegation of legislative power to the examiner in that they rest in him the power and authority to classify persons, places and other things, delimit certain areas, make specific exemptions, and to refuse to issue standards, and to revoke such, in any area where he deems the same impracticable of enforcement. These provisions vest in an administrative officer the power and discretion to say whether or not the statute...