State Ex Rel. Department of Agriculture v. Marriott

293 N.W. 154 | Wis. | 1940

The same issue is involved in each of the four cases. We will make a brief statement of facts in the case of John Marriott and another, as it is typical of all of the cases.

The action was begun on the 29th day of November, 1939, by the state of Wisconsin on relation of the Department of Agriculture, plaintiff, against John Marriott and Heddie Christianson, defendants. The relief sought was that the defendants be enjoined from further violation of sec. 100.03 of the statutes and the market order under said section for the Milwaukee regulated market and that they be restrained from said acts and violation pending this action. The defendants answered. There was a trial. The court found for the plaintiffs, and judgment was entered in accordance with the prayer of the complaint on March 30, 1940. The judgment restrained the defendants from doing certain things alleged to be in violation of sec. 100.03 of the statutes and of the orders of the Department of Agriculture made pursuant thereto. From that judgment the defendants appealed.

The defendants moved that the court fix the amount of the undertaking as provided in sec. 274.23, Stats. The amount of the undertaking was fixed at $1,000 and was in addition to the $250 undertaking. Upon the filing of the undertaking, judgment was stayed by order of the court as prescribed by sec. 274.30. The trial court was of the opinion that under the statutes quoted it had no discretion. The court said:

"I am of the opinion that after such compliance with the statutes the court has no discretion to deny such relief but it becomes mandatory upon the court to enter an order staying the execution on the judgments."

The relator appeals from the order staying the judgment. Upon motion, the appeal was brought on for decision and heard on June 17, 1940. This court is of the view that under sec. 274.23, Stats., the trial court was required to stay execution of the judgment pending the determination of the appeal upon the giving of the undertaking prescribed by the section; that when the undertaking is given, the judgment is stayed by virtue of sec. 274.30. State ex rel. Boysa v.Fritz (1927), 192 Wis. 358, 212 N.W. 655.

On behalf of the state it is argued that the last clause of sec. 274.23, Stats., "and to such further effect as such court or judge shall in discretion direct," confers upon the trial court or the judge thereof power to refuse a stay, or if the stay is not refused, to require the defendants to give an undertaking which shall be conditioned on the payment by the defendants of all damages which may be sustained by third parties.

The trial court in this case did not order that the undertaking should be for the benefit of third parties nor does it appear that third parties will sustain special damage. InHalsey, Stuart Co. v. Public Service Comm. (1933)212 Wis. 184, 248 N.W. 458, a temporary injunction was continued upon the filing by the plaintiff of an undertaking of $100,000 for the payment of all damages and costs which the defendant might sustain by reason of the entry of the order and also for the payment of all damages which might be recovered by citizens of Wisconsin as a result of the sales by plaintiff during the time the order was in effect. In that case, the persons who might recover upon the undertaking were identified as being those persons to whom the plaintiff should sell securities in the meantime and the court directed the undertaking to be of "further effect." Here it appears that the defendants or some of them have been in business for a number of years. The damages which other dealers will sustain will be the loss of that part of the business done by the defendants which might come to them by reason of the defendants continuing to violate the statutes and orders of the department. It is considered that the trial court did not abuse its discretion in failing to require that the undertaking should provide for the recovery of such losses.

It is further contended that the stay granted by the circuit court is itself stayed under the provisions of sec. 274.26, Stats. That section provides:

"When the state, or any state officer, or state board, in a purely official capacity . . . shall take an appeal, service of the notice of appeal shall perfect the appeal and stay the execution or performance of the judgment or order appealed from, and no undertaking need be given. But the appellate court or tribunal may, on motion, require security to be given in such form and manner as it shall prescribe as a condition of the further prosecution of the appeal."

In Halsey, Stuart Co. v. Public Service Comm., supra, where the same contention was advanced, this court said (p. 191):

"It is clear to us that sec. 274.26 applies to all orders, directed at the state or any state officer, which are mandatory in character. It is our opinion, however, that an order which is prohibitive merely is not within the scope of sec. 274.26, which expressly deals with the circumstances under which `the execution or performance of the judgment or order appealed from' should be stayed."

We have re-examined the question and the determination made in Halsey, Stuart Co. v. Public Service Comm.,supra, is approved. Here the state which appeals is not required by the order appealed from to execute or perform the order. Therefore its appeal from the order fixing the amount of the undertaking and providing for a stay does not affect the stay granted by the circuit court. It merely leaves the matter in status quo until the determination of the appeal.

A consideration of those sections of the statutes relating to stay of orders and judgments indicates quite clearly that they were not framed with the idea that they would ever be applied to actions where the relief sought was the enforcement of a police regulation by the state or some of its agents. While that procedure was not unknown at the time of the adoption of these sections it was a very unusual procedure and resorted to only in very exceptional cases. If the state wishes to have its laws enforced by injunction during the period that the validity of the law is being determined, the statutes should be amended to make them applicable to such a situation. The amendment is a matter for the legislature and not for the courts.

The order appealed from in each case is affirmed.