White House Milk Co. v. Thomson

• Decision Date: 05 March 1957
• Citation: 275 Wis. 243,81 N.W.2d 725
• Parties: WHITE HOUSE MILK CO., Inc., a New York corporation, Respondent, v. Vernon W. THOMSON, Atty. Gen., et al., Defendants, Pure Milk Products Cooperative, Proposed Intervenor and Appellant.
• Court: Wisconsin Supreme Court

Page 725

81 N.W.2d 725

275 Wis. 243

WHITE HOUSE MILK CO., Inc., a New York corporation, Respondent, v. Vernon W. THOMSON, Atty. Gen., et al., Defendants, Pure Milk Products Cooperative, Proposed Intervenor and Appellant.

Supreme Court of Wisconsin.

March 5, 1957.

Michael, Spohn, Best & Friedrich, Milwaukee, Kenneth K. Luce and John K. MacIver, Milwaukee, of counsel, for respondent.

CURRIE, Justice.

Sec. 100.22, Wis.Stats., which the plaintiff seeks to have declared unconstitutional, is a criminal statute which prohibits a purchaser of milk, cream or butter fat from paying different prices for such products in different communities of the state, unless justified by a commensurate difference in quantity or quality, or in transportation charges or other expense of marketing involved in the purchase. It is apparent from the express wording of the statute that its purpose is to prevent unfair discrimination in the purchase of such dairy products between different communities or sections of the state.

The brief of the cooperative asserts that among its producing members which it represents are 728 farmers who sell milk, cream or butter fat to the plaintiff. The plaintiff is interested in having sec. 100.22 declared unconstitutional so that it can pay lower prices in certain communities than would be the case if compliance with this statute were required. On the other hand, it is to the interest of the cooperative, and its members who sell to the plaintiff, that sec. 100.22 be determined to be constitutional in order that the plaintiff not be permitted to reduce the prices paid by it for these dairy products anywhere in the state below the highest prices, which it is forced to pay to meet competition in any of the five communities of the state where it is engaged in business.

In a common law jurisdiction, such as Wisconsin, intervention is a matter of statutory creation, it not having been recognized at common law. 67 C.J.S., Parties, § 53 b, p. 975. Counsel for the cooperative ground their clients claimed right of intervention upon that portion of sec. 260.19, Stats., which provides that 'when persons not parties have such interests in the subject matter of the controversy as require them to be parties for their protection, the court shall order them brought in.'

It was the conclusion of the learned trial judge, as stated in his memorandum opinion, that while the cooperative and its farmer members have a general interest in the outcome of the pending action, this is not a sufficient interest to entitle them to be made defendants. The memorandum opinion points out that other producers of milk, cream or butter fat, not members of the cooperative as well as all consumers of such products, also have this same general interest.

The attorney general is one of the three original defendants in the action, and it is his duty to uphold the constitutionality of the attacked statute. In so doing he is acting in a representative capacity in behalf of all the people of the state, including those who are members of the cooperative. This being so, we find it extremely difficult to perceive how their interests 'require' that the cooperative be made a party for the protection of interests which are already being adequately protected. 39 Am.Jur., Parties, p. 934, sec. 60, states:

'It is universal that no one has any right to intervene in any action unless he has some right to protect which is not being protected.'

Certainly the cooperative is not a necessary party to the controversy presented in the pending action. We hesitate to hold that it is even a proper party, absent any allegation in the petition for intervention that the attorney general has failed in his duty to properly defend the action and uphold the constitutionality of the challenged statute. Nevertheless, even if it were conceded to be a proper party, the cooperative cannot prevail on this appeal without demonstrating that the trial court abused its discretion in denying the application for intervention. Schatzman v. Town of Greenfield, 1956, 273 Wis. 277, 281, 77 N.W.2d 511; Fish Creek Park Co. v. Village of Bayside, 1956, 273 Wis. 89, 93, 76 N.W.2d 557; and Muscoda Bridge Co. v. Worden-Allen Co., 1928, 196 Wis. 76, 98, 219 N.W. 428.

This court held in the Muscoda Bridge Co. case that the village of Muscoda and town of Eagle, because of being partly liable for the construction of the bridge, possessed sufficient interest in the subject matter of the controversy to make them proper parties to the action. The denial of their application for intervention by the trial court was affirmed as not being an abuse of discretion on the ground that their interest would be sufficiently protected by reason of the state and counties having been made parties. We deem such decision to be decisive of the instant appeal. Here the interests of the cooperative and its members are sufficiently protected by having the attorney general as a party defendant.

The provisions of the trial court's order granting to the cooperative the right to file a brief amicus curiae, and to make an oral argument at the conclusion of the trial, further negative any charge of abuse of discretion on the part of the trial...