Opinion
February 7, 1939.
April 11, 1939.
APPEAL from an order of the circuit court for Milwaukee county: CHARLES L. AARONS, Circuit Judge. Affirmed.
For the appellant there was a brief by the Attorney Gen — eral, Harold H. Persons, assistant attorney general, Herbert J. Steffes, district attorney of Milwaukee county, and William M. Schneider, counsel for the Wisconsin Trade Practice Department, and oral argument by Mr. Persons.
For the respondent there was a brief by Mayer, Vandercook, Wilde Rice of Milwaukee, attorneys, and Gilbert E. Vandercook and Wright Hallfrisch, both of Milwaukee, and Hilbert Liess of Madison, of counsel, and oral argument by Mr. Gilbert E. Vandercook and Mr. Hallfrisch.
[EDITORS' NOTE: THE PUBLICATION STATUS OF THIS OPINION IS GOVERNED BY WIS. STAT. RULE 809.23 (2) AND (3).]
In the action, commenced February 5, 1938, the plaintiff, state of Wisconsin, seeks to enjoin the defendant, William B. Manske, from operating in the barber trade until he makes payment of an assessment levied against him by the Wisconsin trade practice department, under ch. 110 of the statutes (ch. 3, Laws of Sp. Sess. 1937), and also sought to restrain the defendant pendente lite from operating in the barber trade until he pays that assessment. In the complaint it is alleged, in substance, that the trade practice standards for the barber trade promulgated pursuant to ch. 110 of the statutes, were published and became effective on January 11, 1938; that the defendant is a member of the barber trade of this state and operates a barber shop at a certain location in the city of Milwaukee; that as such member he is subject to the provisions of said trade practice standards and is required by law to comply therewith; that sec. 110.08, Stats., provides, in part, as follows:
"The assessment shall be paid into the state treasury, and disbursed in accordance with law. Receipt shall be given therefor, and no person shall continue to operate in the trade or industry for more than thirty days after the mailing to the person, subsequent to the passage and publication of this, chapter, of a statement to a correct address or he is otherwise notified of his obligation, until he has paid such obligation and keeps conspicuously displayed in his place of business the receipt for the current assessment, or is presently unable to pay and has an extension permit likewise displayed, which permit is authorized for not to exceed thirty days at a time and ninety days in all;" —
that sec. 30 of said trade practice standards provides:
"The commissioner shall estimate and budget the expenses provided for by section 110.08 of the statutes and shall assess and collect the same as provided in said section, giving appropriate receipt therefor, which receipt each member of the trade shall keep conspicuously displayed in his place of business or in lieu thereof, an extension permit as provided in said section;" — that pursuant to said sec. 110.08, Stats., and sec. 30 of said standards the Wisconsin trade practice department estimated the cost of investigation, administration, and enforcement of said standards and assessed the same upon an equitable basis against the members of the trade, — said assessment being in the amount of $7 for each shop owner or manager and $5.50 for each employee employed by said owner or manager; that said assessment was estimated to cover the cost of investigation, administration, and enforcement up to April 1, 1939, a period of approximately fifteen months; that notice of said assessment was sent by mail to all licensed shop owners and managers in this state on January 19, 1938, as appears from the affidavit of the comptroller of the trade practice department, attached to and made a part of the complaint; that said assessment was due and payable on February 18, 1938; that said notice contained information regarding the means of obtaining an extension permit in the event any barber so notified was financially unable to pay; that thereafter, on March 5, 1938, the department, in the exercise of its administrative discretion, addressed a letter to all licensed barbers in this state who had not paid the assessment or applied for an extension permit, requesting payment of such assessment on or before March 15, 1938; that the defendant has failed, neglected, and refused to pay said assessment or to apply for an extension permit, and that such refusal and neglect on the part of the defendant is tending to spread disregard for the law, and is working a hardship on other members of the trade who have complied therewith. The plaintiff prayed that the defendant be enjoined and, pending judgment, be restrained from operating in said barber trade until he complies with the provisions of said sec. 110.08, Stats., and sec. 30 of said standards. Upon the verified complaint and the affidavit an order was issued requiring the defendant to show cause before the calendar branch of the circuit court for Milwaukee county on June 10, 1938, why he should not be restrained pending judgment, or until he shall pay the assessment levied against him, from operating in the barber trade in this state. The order to show cause was served upon the defendant with the summons and complaint. The defendant appeared at the appointed time and objected to the issuance of a restraining order pending the trial of the action, principally upon the ground that if sec. 110.08 be construed so as to require the trial court to restrain the defendant pendente lite, it is unconstitutional and void. The trial court, in response to the assault made upon sec. 110.08, after hearing arguments and being furnished with briefs, filed an extended decision in which it held that sec. 110.08 was unconstitutional because violative of sec. 2, art. VII, sec. 8, art. VII, sec. 13, art. XIV, sec. 9, art. I, sec. 11, art. I, sec. 6, art. I, sec. 17, art. I, of the constitution of this state and the Fourth and Eighth amendments to the constitution of the United States.
The trial court entered a formal order in which it was recited:
"Counsel for both parties thereafter submitted briefs to the court. The court considered the same and upon July 19, 1938, filed its decision, holding that the said injunctive provision contained in section 110.08 was unconstitutional and of no effect, and that therefore the state's motion for the injunctional order must be denied."
The order concluded as follows:
"Pursuant to said decision it is now hereby ordered that the motion of the plaintiff for a restraining order, pending judgment herein, be and the same is hereby denied, the plaintiff being, because of the reason herein stated, neither entitled to said restraining order, pending judgment herein, nor entitled to an injunction pursuant to said section 110.08, as prayed for in the complaint."
From that order, entered July 28, 1938, the state of Wisconsin appealed.
So far as we are able to discover from the record, the only question before the trial court at the time it rendered its decision was whether it should then issue an order restraining the defendant pending a judgment in the action or until the defendant paid the assessment levied against him by the Wisconsin trade practice department, from operating in the barber trade in this state. At that time the defendant had neither answered the complaint nor interposed a demurrer to it. Although the trial court filed an extended decision in which it held that sec. 110.08, Stats., violates numerous provisions of the constitution of this state and of the constitution of the United States, the order which it signed and entered could only relate to the restraining order sought to be obtained by the state of Wisconsin. It is clear from the language of the order that the restraining order was denied although the court went farther in its restraining order when it said:
"The plaintiff being, because of the reason herein stated, neither entitled to said restraining order pending judgment herein nor entitled to an injunction pursuant to said section 110.08, as prayed for in the complaint."
At that stage of the action the state of Wisconsin was obviously attempting to obtain an order restraining the defendant from pursuing his trade pending judgment in the action or until the assessment levied against him was paid. A somewhat similar situation existed in Gross v. Merrimac, 210 Wis. 682, 683, 247 N. W. 335. It was there said:
"The order complained of does not purport to be a temporary injunction but this must be held to be its effect. It was made before issue joined, upon an order to show cause why an injunction pendente lite should not issue, and the complaint of plaintiff and certain affidavits constitute the sole basis for the order. It cannot be supposed that the trial court intended finally to dispose of the merits of this controversy in such a fashion."
Whether a court should issue a temporary restraining order pending judgment in an action is a matter resting in the sound judicial discretion of the trial court. Pioneer WoodPulp Co. v. Bensley, 70 Wis. 476, 36 N. W. 321; Lancaster v. Borkowski, 179 Wis. 1, 190 N. W. 852; Fassbender v. Peters, 179 Wis. 587, 191 N. W. 973. Such a discretionary order will not be reversed unless abuse of discretion is shown. Gross v. Merrimac, supra. The function of a temporary restraining order is to maintain the status quo, not to change the position of the parties or compel the doing of acts which constitute all or part of the ultimate relief sought. Consolidated Vinegar Works v. Brew, 112 Wis. 610, 88 N. W. 603. Had the trial court issued the restraining order as prayed it would have been the duty of the defendant to obey it until reversed by this court on appeal or run the risk of being held in contempt of court with its serious attendant circumstances. John F. Jelke Co. v. Beck, 208 Wis. 650, 242 N. W. 576 Had the trial court issued the order and the defendant had paid the assessment, the issues in the action probably would have become moot. Under the circumstances, we cannot say that the trial court abused its discretion in refusing to issue the restraining order.
The attorney general has submitted to us an exhaustive brief which relates principally to the merits, that is to say, the constitutionality of sec. 110.08, Stats. The only question now before us is whether the trial court abused its discretion in refusing to issue a restraining order. That question is ignored by both parties and the case argued as though the merits were here. We do not pass upon the constitutionality of any of the laws assailed. We simply affirm the trial court in so far as it refused to issue a restraining order pendente lite. By the Court. — Order affirmed.