*1 It is also for defendant that there urged by attorneys was no of the and minds of Woodward meeting part Gatzke sufficient to establish the of a contract. As making herein, previously out has rendered pointed performance moot issue toas indefiniteness of the original agree- fact, ment. The testified that the to be Woodward price net, to him not was to be less than cents paid sixty per bag while Gatzke testified that the was to be cents price eighty less does not establish per bag picking hauling expense, that there was no of the minds as to It was meeting price. within the of the to believe Woodward and province jury disbelieve Gatzke. affirmed.
By Judgment Court.-— others, Company City ex State rel. Bank Trust & Ilsley Bank, vs. Marshall Respondent. Appellants, & 3, May 5 June *4 For the there were briefs and oral appellants argument by A. W. Schuts of Milwaukee.
For Quarles, there was a brief Herriott respondent Clemons, & Herriott, and Maxwell H. attorneys, William Churchill, K. and Duback McKibbage, & Churchill of coun- sel, and oral Maxwell Herriott argument by and William H. Churchill, Jr., H. all of Milwaukee. The is court that the demurrer opinion
Wingert, J. overruled, should have been that therefore and the judg- ment the action must be reversed. dismissing in Propriety remedy warranto. Sec. quo 294.04 authorizes an action of war- (1) (a), quo into, ranto “when shall any intrude or unlaw- person usurp, hold or exercise . . . franchise within this state.” fully In the action attack no is made the defendant’s present upon to exist as and conduct its busi- right corporation banking ness at its main office on North street. The conten- Water tion is rather that the of the branch in the new operation will, tanto, location or exercise a fran- pro usurp unlawfully words, chise; in that other will be unlaw- corporation terms, franchise its its fully beyond exercising banking the excess. this excess thus over Only operation, usurping statute, the limit what is said to be imposed by above to be sought prevented.
Quo warranto is such a case and lies proper to exclude from the exercise of its the defendant business banking the limit law. Thus one imposed by beyond authorized at a certain maintain a dam be height may stopped quo the dam at warranto from level. State ex keeping higher Norcross, 534, 547-549, v. 132 Wis. rel. General Attorney rule to accord with 40. This appears 112 N. W. pre- *5 320 in other rel. states. See Commonwealth ex
vailing Woodruff 136, 497, Club, v. American Baseball Pa. 138 Atl. Anno. 53 L. R. 1038. A. Quo
2. warranto vs. scire Out of abundance facias. in war- caution causes of action both quo plaintiff pleaded common-law ranto and scire in mind an old facias, having distinction to which scire was where according proper facias a which had abused there was legally existing corporation where there its while warranto was quo powers, appropriate was a de but not de stat- body facto, jure. Under present ute, 294.04, Stats., secs. 294.01 which substitutes a civil writs, for the action old distinction is no im- longer For the action convenience we refer to as quo portant. warranto, and that to be in terminology appears general use, action jure even where the de ex- recognizes corporate attacks istence and abuse See 13 Am. only power. Jur., 1181, 1182, sec. 1326. Corporations, pp.
3. Action not Defendant cites premature. Attorney 604, 614, v. St. Croix R. Co. 93 Wis. Superior General & 1138, 615, warranto cannot quo 67 N. W. point for what it may be maintained intend corporation against do, but lies al- only challenge or threaten to usurpations The amended does not complaint committed. ready allege a branch in already that the defendant new operating location, that it “has now but leased for premises in branch office the Bockl build- maintaining purpose of its branch office at 414 ... lieu W. National ing to the as an exhibit is a avenue.” Attached complaint of an announcement of a de- report copy newspaper close its office on that it old West National fendant plans 1, 1957, location it the new with May avenue reopen for The date action was opening. present as the target 21, March commenced the action The not consider com- premature.
We do had leased that the defendant quarters discloses plaint *6 office, the of a purpose new branch and that it operating had announced its intention to make the publicly move a date a little over a after month the commencement the of action. In such a situation it was not for necessary the relators to wait the new office to to its doors open the The lease of and the announcement public. space took the matter out of the mere inten- of category general tion. The of to a new location was process shifting already imminent; the matter become had overt acts had underway; taken “Like warranto is a injunction, to place. quo large Warranto, a extent preventive remedy.” Jur., Am. Quo 98, Milwaukee, State ex 17. See rel. Vilter M. Co. v. p. 142, 546, B. & L. R. Co. 116 92 N. where G. Wis. W. written franchise to street railroad acceptance operate was held sufficient to warrant warranto to quo challenge franchise, exercise the to no to build or right although steps been taken. the railroad had operate Action not barred to in the by proceed depart- failure Defendant contends that the commission- banking. ment of er of banks has exclusive of the matter jurisdiction subject action, this to review the review board subject by banking is in turn decision reviewable courts under by whose Act; of the Administrative Procedure sec. 227.15 statutory relators failed to avail of the and that themselves having them, afforded cannot maintain remedies thus warranto quo under sec. 294.04. “shall that the have banking department
It is true charge 220.01, of the laws to banks” execution relating (sec. of the commissioner of banks is that the vested by and Stats.), to “enforce all and laws authority relating the duty law with and “to enforce and 220.02 out (3)), carry banks” (sec. 220.02 and to “ascer- (4)), to banks” (sec. relating all laws its business at the bank transacts place such tain whether whether its articles of incorporation, designated manner law” prescribed by in the (sec. is conducted business 220.04 and that if a bank violates (2)), any provision 221, Stats., ch. with the of its directors and knowledge after a the commissioner continues such from warning conduct, of the commissioner it become the may duty charter of the bank to forfeit the institute proceedings its affairs wind Thus the commissioner (sec. 221.41). up has make an of banks administrative determina- authority in location of tion as to whether defendant’s change relators, branch office will violate the statute invoked by statute, and if he considers that the move is prohibited move, the bank not to make the and to take order appro- if action it so. priate persists doing *7 case, however, In the the amended present complaint that the commissioner of banks was alleges timely requested relators, them, one of the on behalf all of of to the by enforce of sec. 221.04 (f), defend- provisions (1) against office, ant in to the removal of its branch but the respect action, commissioner take declined to the considered being courts; that the for is and it is further question opinion further demands on him be futile. would alleged in This our was as far as the relators were opinion required in relief to from When go seeking banking department. act, the commissioner of banks refused to and when the in his turn declined to commence an action attorney general in under sec. 294.04 relators were position (1), proceed in the name of the state under 294.04 (2). banks, like official,
The commissioner of any law-enforcing in has substantial discretion whether or not determining violators, take action against suspected where particularly the act it is doubtful whether of is a violation complained commissioner, the law. Here doubt on that being discretion and declined to act. exercised His refusal point, review under the subject judicial not Admin- directly was 227.15, Act. Procedure (Sec. Stats.) istrative We do not think relators were to the obliged appeal review banking board before proceeding quo warranto. That board has “to jurisdiction review the acts and decisions of the commissioner” 220.035 (sec. if a (2) (a), Stats.), for review is petition act, filed within ten after “the days order, or determination to be if reviewed” and such petition shows that “is petitioner aggrieved directly affected by act, order, or determination.” After board, hearing, on “the record made the commissioner” acting which evidence,” it affirm, “additional may supplement by may action, order, or reverse the modify, or determination under review.
We have some doubt that to the appeal review banking from a board refusal of the commissioner of discretionary banks to a bank for of a proceed against violation alleged statute is available to member of the even public, though it be a bank or for it is competitor group competitors; whether the commissioner’s nonaction is an questionable “act, order, or determination” or that the member of the is affected” The word “directly thereby. “directly” However, not to be we need not decide the disregarded. if relators even could have invoked the point, reviewing review, of the board of were not banking they re- power to do so. quired *8 220.035, Stats.,
In sec. our should not be con- opinion recourse to the strued to exclude sec. remedy provided by 294.04, members of the who have by to applied banks to enforce the law an commissioner of against alleged has been in a like rejected violator and whose case request one. the present
Here the case stated the amended by complaint appears a of law. to involve The statute question said to have violated, been 221.04 (1) provides— n (f), bank shall “. . . but no establish more than one office of or offices, discount establish branch and branch deposit shall banks, stations, this bank prohibition or provided branch bank established not to branch office or apply 1909, 14, bank station or any and maintained prior May 17, 1947, ...” to May established and maintained prior is branches and bank stations The prohibition against “established and absolute as branches or stations except a are to certain dates Whether maintained” exempted. prior from moved branch or station loses its upon being exemption location, nonconform- in the case of some other its as exempt 371, 378, Fonk, uses v. 3 Wis. ing (Yorkville (2d) ambulatory N. or whether the exemption W. (2d) 319), station bemay branch or and wherever applies pre-existing moved, of this is a law. In the solution question, of question for banking- such matters as the needs of neighborhood available, relative service, and service sufficienc)^ already of for the serve the contenders right merit of competing is a lay review board area are not involved. The banking bankers, in their whose expertness body mainly composed a court in over advantage pass- field them no particular gives sec. 221.04 law by (1) (f), on the presented ing question Stats. demurrer, relies defendant strongly
In support 464, 213 192 Wis. Carley, v.Co. Telephone Commonwealth action an court held premature this There N. W. 469. from the defendants operating enjoin company a telephone vio- community alleged in plaintiff’s exchange a telephone Public Utility of the provision the antiduplication lation of from utility furnishing Law, telephone which prohibited another which telephone municipality in any service local first served no- having without serving, already was utility commission, or service) (now public railroad tice on notice, after such days commission, twenty within if the not do necessity convenience that public find should This court quoted service. new company’s require the rail- others granting referred in question statute *9 enforcement commission broad regulative powers road utilities, as follows and summed its decision over up (p. 471):
“Therefore, have resulted if the acts of the defendants as inasmuch to the of the rights plaintiff, damage property the statu- such are resort must be had to statutory, rights relief; and where tribunal created to afford tory such a primarily the the by tribunal is created statutory legislature, until stick has body of the courts is jurisdiction acted, suspended the time is exclusive.” its jurisdiction being effect in a has been The same given general principle number of other cases. be the rule of the Case to Carley equally applica-
Assuming banks, we think ble to violations of the laws banking by re- of them when they relators did all that was required take of banks to the commissioner steps prevent quested of the To the violation law defendant. by para- alleged Case, “resort was had” relators to the by the Carley phrase banks; of the of the courts jurisdiction may commissioner the commission- been “until such body (here have suspended acted,” commissioner’s jurisdiction and the may has er) “for the time the exclusive When com- being.” have been however, act, the remedy refused to provided missioner 294.04, available. became is not to be understood as this going point Our ruling that here the case. We facts of present repeat beyond of law as only question present appears complaint statute, to which of a nature relative of a construction review board gives banking the technical expertness found in the courts. not to be competency it no special which was Merits. of demurrer ground Since warranto as a propriety quo sustained goes failure of the to avail themselves plaintiffs and to remedy laws, the remedies under the banking administrative their case, i.e., whether the facts constitute alleged of the merits *10 Stats., violation of sec. 221.04 are not before (1) us (f), for decision. reversed, the
By with directions to Judgment Court.— overrule the demurrer to the amended complaint. I cannot
Broadfoot, with the (dissenting). agree J. decision of the of the court that the majority demurrer to the amended herein should be complaint overruled. The amended states that one the complaint merely relators, unnamed, on behalf of others who are requested the commissioner of banks enforce the provisions 221.04 (1) and that the commissioner (f), de- clined to take action and any therefore to exert any attempt further on him was futile compulsion further formal any that an demand to end idle ceremony.
The statutes the commissioner of charge banks with the enforcement of all laws to banks. The relating rules of the that banking department action require requests commissioner shall be part in by petition writing, verified. There is duly no allegation complaint indicates with this attempt comply regulation. At- tached to the is a of complaint copy directed petition to the if a attorney general. Surely had been proper petition filed with the commissioner a thereof would have been copy likewise attached to the The inference to complaint. be from drawn is that there was an informal complaint an to the commissioner and informal answer. The request that a formal demand would be an idle allegation ceremony an an unwarranted statement about efficient and conscien- tious official. In the trial my court was clear- opinion correct demurrer. ly sustaining I am authorized to state that Mr. Chief Martin Justice in this dissent. joins