223 Wis. 287 | Wis. | 1936
The complaint alleges in substance that the plaintiff is an administrative body, created by sec. 99.02 of the Wisconsin Statutes; that Charles L. Hill, Joseph D. Beck, and F. Schultheiss are commissioners thereof; that the defendant, William Laux, Jr., is a sole trader doing business as Service Bakery at the city of Appleton; that sec. 129.01 provides that no person shall engage in or follow the business or occupation of a trucker, hawker, or peddler within this state without having first obtained a license for that purpose; that sec. 129.06 provides that but one person shall be authorized to carry on business under the terms of any license provided for in secs. 129.01 to 129.24, inclusive, and that no person shall conduct business under the same license as copartners, agents, or otherwise; that sec.
“It is further provided that if before the final hearing of such application a suit shall have been brought in a court of the state having jurisdiction thereof under the laws of such state, to enforce such statute or order, accompanied by a stay in such state court of proceedings under such statute or order pending the determination of such suit by such state court, all proceedings in any court of the United States to restrain the execution of such statute or order shall be stayed pending the final determination of such suit in the courts of the state.”
The prayer for judgment or relief is as follows:
“Wherefore, plaintiff brings this suit to enforce chapter 129 of the Wisconsin Statutes and particularly the provi*291 sions of said chapter 129, relating to hawkers and peddlers, against the defendant, his agents and employees, and prays that said court enforce said statute, sections 129.01 to 129.24 of chapter 129- by the process of this court, and that this court grant a stay of all proceedings by the said plaintiff under said statute, pending the determination of this suit in the courts of the state, and that this court at once cause a notice of this suit, together with a copy of the stay order by it granted, to be sent to the United States district court for the Eastern district of Wisconsin; and for such further relief as to this court may seem just and proper.”
The defendant demurred to the complaint on the follow-' ing grounds: (1) That the plaintiff has no legal capacity to sue; (2) that the court has no jurisdiction of the subject of the action; (3) that the complaint does not state facts sufficient to constitute a cause of action.
Sec. 285.06, Wis. Stats., evidently adopted by the legislature of this state upon the enactment by the congress of section 266 of the United States Judicial Code (28 USCA, § 380), as it now exists, is as follows:
“285.06 Jurisdiction of state courts to determine validity of laws when attacked in federal court and to stay enforcement. Whenever a suit praying for an interlocutory injunction shall have been begun in a federal district court to restrain any department, board, commission or officer from enforcing or administering any statute or administrative order of this state, or to set aside or enjoin such suit or administrative order, such department, board, commission or officer, or the attorney general, may bring a suit to enforce such statute or order in the circuit court of Dane county at any time before the hearing on the application for an interlocutory injunction in the suit in the federal court. Jurisdiction is hereby conferred upon the circuit court of Dane county and on the supreme court, on appeal, to entertain such suit with the powers herein granted. The circuit court shall, when such suit is brought, grant a stay of proceedings by any state department, board, commission or officer under*292 such statute or order pending the determination of such suit in the courts of the state. The circuit court of Dane county upon the bringing of such suit therein shall at once cause a notice thereof, together with a copy of the stay order by it granted, to be sent to the federal district court in which the action was originally begun. An appeal may be taken within ten days after the termination of the suit in the circuit court to the supreme court of the state, and such appeal shall be in every way expedited and set for an early hearing.”
The defendant first contends that the plaintiff has no* legal capacity to sue. Sec. 285.06, Wis. Stats., just hereinbefore recited, expressly provides that “Whenever a suit praying for an interlocutory injunction shall have been begun in a federal district court to restrain any department, board, commission- or officer from enforcing or administering any statute or administrative order of this state, or to set aside or enjoin such suit or administrative order, such department, board, commission or officer, or the attorney general, may bring a suit to enforce such statute or order in the circuit court of Dane county at any time before the hearing on the application for an interlocutory injunction in the suit in the federal court.”
In our opinion the legislature clearly intended to authorize any department, board, commission, or officer sought to be restrained, or the attorney general, to bring a suit to enforce any statute of the state assailed, presumably upon constitutional grounds, in any federal district court, at any time before the hearing on the application for an interlocutory injunction in the suit in the federal court. In our opinion, defendant’s first contention is without merit.
The defendant next contends that the circuit court for Dane county has no jurisdiction of the subject of the action. This contention is likewise without merit, since sec. 285.06, Wis. Stats., specifically authorizes the bringing in that court of a suit to enforce any statute assailed in the federal court.
We, of course, do1 not decide whether ch. 129, Wis. Stats., violates any of the rights guaranteed to the defendant by the constitutions of the United States or of the state of Wisconsin.
By the Court. — Order affirmed.