State v. Russell

• Decision Date: 05 June 1923
• Citation: 194 N.W. 43,181 Wis. 76
• Parties: STATE v. RUSSELL.
• Court: Wisconsin Supreme Court

181 Wis. 76

194 N.W. 43

STATE

v.RUSSELL.

Supreme Court of Wisconsin.

June 5, 1923.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Civil action by the State against Howard W. Russell.From the order of the circuit court overruling a demurrer to the complaint, defendant appeals.Affirmed.Lamfrom & Tighe, of Milwaukee (Leon B. Lamfrom, of Milwaukee, of counsel), for appellant.

Herman L. Ekern, Atty. Gen., and Wm. R. Curkeet, Deputy Atty. Gen., for the State.

JONES, J.

[1] The complaint alleged:

“(1)Defendant is a corporation organized and existing under the laws of the state of Wisconsin and having its principal place of business in the city of Milwaukee, Milwaukee county, Wis.

(2) Between the 1st day of August, 1920, and the 1st day of November, 1920, defendant was engaged in the business of furnishing, to persons seeking employment, information enabling or tending to enable such persons to secure the same, and was likewise engaged in the business of furnishing, to employers seeking laborers or other help, information enabling or tending to enable such employers to secure such help, and by reason of engaging in such business defendant was during all of said period an employment agent within the meaning of section 2394--82, Stats.

(3) On or about the 16th day of August, 1920, defendant performed services as such employment agent by furnishing to one Gustave Affeldt information enabling or tending to enable him to secure employment, and by furnishing to the Wausau Open Shop Association of Wausau, Wis., an employer of labor, information enabling or tending to enable said association to secure the services of said Gustave Affeldt as an employee; all of which information was furnished pursuant to the contract or contracts referred to in paragraph 4 hereof for the purpose of securing the services of said Gustave Affeldt as a so-called strike breaker, as is more fully explained in said paragraph 4.

(4) For the furnishing of such services, defendant received compensation in the following manner, to wit: During the period referred to in paragraph 2 hereof, defendant was under contract with the Wausau Open Shop Association to furnish said association with strike guards, strike breakers, and the supervisory services of defendant's vice president, in attending to the proper delivery of the said strike breakers, their care and protection while at work, and the proper placing of guards to protect both the workmen and the premises of employment during a certain strike then in progress at Wausau.By the terms of said contract or contracts, defendant was to receive, and as plaintiff is informed and believes did receive from the Wausau Open Shop Association, a certain sum of money (the amount being unknown to plaintiff) as compensation for each strike guard furnished, and a certain amount of money per day (the exact amount being unknown to plaintiff) as compensation for the services of its vice president.None of the sums so paid were specifically designated in the said contract or contracts as compensation for furnishing strike breakers, but defendant offered and agreed to furnish the said strike breakers as an inducement to the Wausau Open Shop Association to purchase the other services of the defendant above referred to, and did furnish them pursuant to such offer and agreement; and by reason of said facts, some portion of the compensation received by the defendant and designated as compensation for strike guards and for the services of defendant's vice president is in law attributable to, and constitutes direct or indirect compensation for, the furnishing of strike breakers in the manner hereinbefore set forth.Defendant was further compensated for the furnishing of said strike breakers in the fact that by doing so, defendant automatically increased the number of strike guards to be furnished by it and to be paid for by said association, the proportion of guards to strike breakers being about one to three.

(5) At none of the times hereinbefore mentioned was the defendant licensed by the Industrial Commission of Wisconsin to operate as an employment agent for compensation, as required by section 2394--86, Stats., nor has any application ever been made by said defendant to said commission for such a license.

(6) By reason of defendant operating as an employment agent without a license in the manner hereinbefore set forth, defendant became liable to the forfeiture fixed by section 2394--70 of the Statutes(as made applicable by the provisions of section 2394--95 of the Statutes) to wit, not less than $10 nor more than $100 payable into the treasury of the state of Wisconsin.

(7) This action is brought by the Attorney General of Wisconsin pursuant to request of the Industrial Commission as provided in section 2394--66 of the Statutes.”

For other causes of action the complaint repeated the foregoing allegations, but substituted for the name of Gus Affeldt, other names.The following are sections of the statute on which the action is based:

“The term ‘employment agent’ shall mean and include all persons, firms, corporations or associations engaged in the business of furnishing to persons seeking employment, information enabling or tending to enable such persons to secure the same, or furnishing employers seeking laborers or other help of any kind, information enabling or tending to enable such employers to secure such help, or keeping a register of persons seeking employment or help as aforesaid.”Section 2394--82, Stats.

“No person, firm, corporation or association shall engage in the business of an employment agent for profit, or receive any fee, charge, commission or other compensation, directly or indirectly, for services as an employment agent without first having obtained a license from the industrial commission of Wisconsin and executing a bond as hereinafter provided.Said license shall constitute a license from this state to operate as an employment agent for compensation and shall not be transferable to any other person or persons whatever, or inure to the benefit of any person other than the licensee.”Section 2394--86.

[2] It is clear that the paragraph of the complaint quoted properly states that defendant is an employment agent within the meaning of the statute.It is also plain that the complaint states that defendant performed service for Gustave Affeldt by giving him information tending to enable him to secure employment and to the Wausau Open Shop Association of Wausau, Wis., an employer, tending to enable the association to secure the services of Affeldt as a strike breaker.By the dem...