231 Wis. 16 | Wis. | 1939
[EDITORS' NOTE: THE PUBLICATION STATUS OF THIS OPINION IS GOVERNED BY WIS. STAT. RULE
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
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 *17
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.
"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
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
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 judgmentherein, be and the same is hereby denied, the plaintiff being, because of the reason herein stated, neither entitled to saidrestraining order, pending judgment herein, nor entitled to an injunction pursuant to said section
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 *20
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.
"The plaintiff being, because of the reason herein stated, neither entitled to said restraining order pending judgment herein norentitled to an injunction pursuant to said section
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,
"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 injunctionpendente 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 *21
sound judicial discretion of the trial court. Pioneer WoodPulpCo. v. Bensley, 70 Wis. 476, 36 N. W. 321; Lancaster v.Borkowski,
The attorney general has submitted to us an exhaustive brief which relates principally to the merits, that is to say, the constitutionality of sec.
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