Graebner v. Industrial Commission

68 N.W.2d 714, 269 Wis. 252, 1955 Wisc. LEXIS 487

• Court: Wisconsin Supreme Court
• Decided: March 8, 1955
• Status: Published

Opinions

Gehl, J.

Plaintiff contends that the effect of the provisions of the statute which authorize the commission to deny a license upon the ground that the existing agencies are sufficient to supply the needs of employers and employees is to place in its hands power to decide arbitrarily, and uncontrolled by any prescribed rules of action, who may and who may not engage in the employment business.

The business of conducting an employment agency is a legitimate one in which all persons similarly situated are lawfully entitled to engage, but it is one which is so far concerned with the welfare of the public that it is within the police power of the state to regulate it. State v. Howard W. Russell, Inc., 181 Wis. 76, 194 N. W. 43. Such power carries with it the right to require that one who desires to engage in the business shall have a license therefor. It is also the established law that a legislative act may validly confer upon an agency of the government authority to grant or to withhold a license, provided that, where discretion is to be exercised by such agency, proper standards or guides for the use of the discretion are established by the act and that the act may not be construed as conferring upon the agency the power to exercise its discretion unreasonably, arbitrarily, or capriciously. Mehlos v. Milwaukee, 156 Wis. 591, 146 N. W. 882.

Plaintiff contends that the effect of the provision, which authorizes the denial of a license when the commission finds that the existing agencies are sufficient to supply the needs of employers and employees, is to grant to the commission the power to prohibit rather than to regulate the business and relies upon Adams v. Tanner, 244 U. S. 590, 37 Sup. Ct. 662, 61 L. Ed. 1336; Engberg v. Debel, 194 Minn. 394, 260 N. W. 626. The ruling in the Adams Case is not applicable. In that case there was involved a statute of the state of Washington which purported to prohibit absolutely the operation of employment agencies. The court held the statute invalid. Our statute does not prohibit — its purpose is to regulate. In the Engberg Case there was involved a statute almost identical in its provisions with ours. The court held it to be vio-lative of the Fourteenth amendment. The latter case might constitute persuasive argument in support of plaintiff’s contention were it not for the fact that we are bound by our own precedents.

Milwaukee v. Ruplinger, 155 Wis. 391, 395, 145 N. W. 42, was a prosecution for violation of a Milwaukee ordinance regulating the business of junk dealers. The common council had adopted an ordinance providing that no person should keep junk shops in the city without being thereunto licensed; that application for license should be made to the mayor who might “grant or refuse to grant such license as to him may seem best for the good order of the city.” The ordinance was attacked as being an unlawful delegation of power. The court refused to declare it invalid.

An ordinance concerning the operation of junk yards and the granting of license therefore was also involved in Lerner v. Delavan, 203 Wis. 32, 233 N. W. 608. The case did not have to do with the question of delegation of power but it may be considered in relation to the question whether its effect is to permit the council to destroy what was conceded to have been a legitimate business. The ordinance was attacked as invalid for the reason that it provided that the common council might issue a permit in its discretion and furnished no standard by which the council might exercise its discretion in granting or refusing permits for the operation of the business. The ordinance was sustained as being valid.

In State ex rel. Bluemound Amusement Park v. Mayor, 207 Wis. 199, 201, 240 N. W. 847, the court held valid an ordinance relating to the operation of public exhibitions. The power to revoke a permit issued therefore was granted to the mayor “whenever he shall consider it necessary or expedient for the good order of the city so to do.”

The grant of power in each of these cases is expressed in language exceedingly broad and could, if construed absent the limitations placed upon it by the courts, readily be interpreted as authorizing the arbitrary exercise of power. The court has said, however, that ordinances such as these confer upon the licensing authority administrative duties only which are to be exercised in an impartial manner and that they must be construed in connection with the whole ordinance and the scheme adopted to regulate the business or occupation concerned.

These cases were decided upon the theory that in each a study of the entire ordinance disclosed that tests and standards of qualifications upon which the agency was to act in granting or withholding a license were prescribed and that the specific provision authorizing the act of the agency must be construed in view of the object which prompted the licensing act. So construed, the ordinance or statute is not to be interpreted as granting power to act arbitrarily or capriciously.

The statute involved in the instant case must be given similar construction. The standards prescribed are that the license is to be refused if the character of the applicant makes him unfit to be an employment agent or when the premises whereon he purports to operate is found to be unfit for use, or if the community in which he proposed to operate is adequately served by existing agencies. Upon the authority of the Wisconsin cases to which we have referred we must hold that the statute, in so far as it empowers the commission to grant or to refuse a license under the circumstances prescribed, is valid.

Plaintiff contends that the order of the commission is unsupported by substantial evidence in view of the entire record submitted. Sec. 227.20 (1) (d), Stats. He contends that the word “needs” as used in sec. 105.13 must be interpreted to mean that the applicant must show, in addition to a demand by the public, a dissatisfaction by the public with the service presently available with the end in view of improving both the quality and the quantity of the service rendered. We do not construe the statute as meaning that the applicant must show a dissatisfaction by the public with the service presently available. We agree that the commission shall consider both the quality and the quantity of the service rendered and whether or not that would be improved by the grant of additional permits. In our opinion, the finding has the required support.

The manager of the Milwaukee office of the state employment service testified as to the effectiveness of the operations of that agency. An officer of an existing private employment agency testified that the number of job placements is declining; that an increased number of agencies does not increase placements, that the present capacity of the placement industry exceeds the load upon it, and that he had seen no evidence that an applicant needing employment had been unable to obtain competent assistance. The operator of another private agency testified that the existing facilities are adequate. An officer of the A. F. of L. testified that the existing services are adequate to handle the Milwaukee situation, as did an officer of the C. I. O. union.

Of course, the testimony of the witnesses offered in opposition to plaintiff’s application was disputed in some respects, but the matter of determining that dispute was for the commission. A question of fact was presented and since it is supported by credible evidence we may not disturb it. M. & M. Realty Co. v. Industrial Comm. 267 Wis. 52, 64 N. W. (2d) 413.

By the Court. — Judgment affirmed.