Klein v. Barry

196 N.W. 457, 182 Wis. 255, 1923 Wisc. LEXIS 297

Opinion

Rosenberry, J.

We have not set out nor referred to all of the matters appearing in the record, but have set forth enough to present fairly the questions raised upon this appeal.

It is argued by Messrs. Williams & Williams, amici curia, that, independently of the provisions of sec. 1753 — 57 of the Statutes of 1921, the investigation by the Railroad Commission may proceed under other provisions of the act and that therefore the injunction was properly denied. A consideration of the whole record convinces us that, whatever the Railroad Commission might have done, it was in fact proceeding exclusively under the provisions of. sec. 1753 — 57 as amended by the Laws of 1921; that that was the issue presented to the circuit court and is the question fairly presented by the record to- this court. Such being the case, we are not disposed to undertake to spell out of the statute authority for some minor proceeding which may be authorized by the statute. It is quite clear that in this case the Railroad Commission was proceeding under the provisions of the section referred to, to hear, try, and determine all questions presented by the petition and was proceeding to enter its order ascertaining the facts, fixing and determining the rights of the parties so far as it might under the provisions of that section. We think that the question of the constitutionality of that section is squarely presented and it was the desire of all parties to the record upon the oral argument that the issues so presented should be determined.

Ch. 674 of the Laws of 1919 is an act relating to the prevention of fraud in the issuance, sale, and disposition of stocks, bonds, and other securities. Twenty-one new sections were added to the statutes and became secs. 1753 — 48 to 1753 — 68, inclusive. This enactment, which contained the provisions ordinarily found in the so-called Blue Sky Laws, provides that corporate securities shall not be issued or sold without first securing a permit therefor; provides that every person selling corporate securities to the public shall be licensed as a broker; and imposes upon the Railroad Commission the duty of making orders provided for in the act and of conducting investigations, and generally gave to the Commission broad powers in the matter of the authorization and sale of corporate securities.

Sec. 1753 — 57, Stats. 1919, provided:

“The sale of every security issued by any company without a permit of the commission authorizing the same then in effect, shall be void, and the sale of every security issued by_ any company with the authorization of the commission, but not in conformity with the provisions,' if any, which are required by the commission, shall be void.”

Sec. 1753 — 56 provides that orders of the Commission under the act should be subje'et to review in the same manner as other orders of the Railroad Commission, except that paragraphs (b) and (c) of sec. 1797 — 16 shall not apply to such appeal. The section referred to does not give a right of appeal, but authorizes the commencement of an action in the circuit court for Dane county to review the orders of the Commission and prescribe the procedure therein.

We do not set out in detail that portion of the act relating to the issue of corporate securities and of permits to brokers for the reason that the provisions of the law in that respect are not in any way brought in question in this action. The proceeding being ‘conducted by the Railroad Commission which the receiver sought to have enjoined related entirely to powers exercised by the Commission under the amendment of 1921. Neither the Oshkosh Tractor Company nor any one else was seeking permission to issue securities of the Oshkosh Tractor Company or to advertise them or to- do anything else relating to the sale and disposition thereof. As a matter of fact, it appears that an attempt had been made to dissolve the Oshkosh Tractor Company and that company was in process of liquidation. So far, therefore, as the constitutioñality of the act as a whole is challenged, we shall defer determination thereof until such time as the question is properly presented. The legislature of 1921, by the enactment of ch. 442, amended sec. 1753 — 57. By reason of its length, we set out the section as amended in the margin.¹

The constitutionality of sec. 1753- — 57 as amended by the Laws of 1921 is challenged upon two principal grounds: (1st) that it delegates to the Railroad Commission legislative power which is by the constitution vested in the legislature; and (2d) that it delegates to' the Railroad Commission judicial powers which are by the constitution vested in the courts. In the vieN which we take of the case it will not be necessary for us to consider other objections to the validity of this section as amended. We shall not consider here the objections urged against the validity of the act as a whole on the ground that it is discriminatory and that it improperly classifies securities. In our view of this case, if the Commission may not proceed under the provisions of sec. 1753 — 57 (Stats. 1921) it cannot proceed at all. There is-no petition before it invoking its jurisdiction in any other respect. The petition signed by George E. Williams recites that it is made “that a full investigation may be made as to whether said permit to- sell stock was not obtained by false representations made to your said Commission of material facts . . . and as to the commission by the officers, direc tors, and brokers selling stock of said company ... in wilful violation of the provisions of the permit obtained for the sale of the capital stock of said company, and in violation of sec. 1753 — 57 as amended; . . . that such suitable award as may be just and equitable in the premises be made.”

This is not an application for a permit authorizing the sale of stock of the corporation or for the granting of a permit to a broker or agent, or relating to any other of the administrative features of the act. For the reasons stated in Wisniewski v. State, 178 Wis. 73, 189 N. W. 142, we shall not further discuss the constitutionality of the act as a whole.

It is to be noted that prior to the amendment of 1921 the section in question ^provided that every sale of a security issued without a permit should be void and that every sale of a security issued in accordance with a permit but not made in conformity with the provisions of the permit should be void. As amended the section provides, first, that the sale of every security issued in violation of the act and the sale of every security authorized but not made in conformity with the representations made to the Commission or with the requirements of the Commission are voidable, at the discretion of the Commission. This part of the section clearly confers upon the Commission the power to say whether securities issued in noncompliance with the law or sold in nonconformity with the requirements of the permit are to be considered valid or voidable. No one could know nor could a court ascertain in a particular case the rights of parties, because the final determination rested with the Commission, and, that, too, after rather than before the event. Certainly the power of the legislature to declare as it did in the act of 1919 that a violation of the act should render the sales void was a legislative act and an exercise of legislative power. Here the legislature, instead of prescribing the rule, has left it to the determination of the Commission in each case. There is no claim that the power thus conferred has been abused on that the Commission has not endeavored to act with the highest motives in the public interest, but_the validity of the law is not to be determined by what has been done but by what it authorizes to be done. Arbitrary power may be wisely exercised, but it opens the door, to abuse and oppression. It has been our boast that this is a government of laws rather than of men. The basis of this statement is that the officers of the government under the constitution are subjected to constitutional restraints imposed by the people. Where officers are to exercise discretion it is carefully limited and controlled by the constitution. ^The statute in this case furnishes no guide, establishes no standard, makes no limitation, but by its terms vests in the Commission an unlimited and uncontrollable discretion.j

The second clause of the act provides that if upon investigation the Commission shall make certain findings, it may by an award require the company or broker who committed the act to pay such amounts as shall be just and necessary or proper to place the state, company, or the purchaser in the same situation that it or they would have been in had the law and the permit been complied with. This clause is a legal curiosity. If there has been a violation of the provisions of the act or of the permit the Commission is to first ascertain whether the violation was in good faith or not. It must then investigate to discover whether or not the injury sustained may be remedied. The Commission is then given plenary power over all the officers, directors, agents, and employees, and over all brokers and other persons who aided or consented to the violation of the act or conditions of the permit, and is authorized to require them to do what ? — to place the parties, not in statu quo, but in the position that they would have been in had the law or the permit been complied with or had the representations been true. The position that a purchaser would have been in, for instance, if the representa tions made had been true, would be a purely speculative thing. It would be one thing in the case of one stockholder and another thing in the case of another stockholder, depending on the character of the representations. ¿Tn order to carry out the provisions of - the statute the Commission would need to be vested not only with legislative and judicial powers but with powers of omnisciencey*

By the third clause, if the Commission shall find that the violation was not done in good faith, etc., it may in its'discretion give the purchaser the right to declare the transaction voidable, thus in its discretion conferring upon or withholding from the purchaser ■ the right to fix the legal status of the act, or it may make such other award as may be just and equitable in the premises. /If this clause does not and was not intended to' confer upon the Railroad Commission the powers of a court of equity, then-it is difficult to imagine language that would. Under clause 3 the Commission is not confined to- a determination of the rights of parties. It is authorized to prescribe their future conduct. Under this section the Commission not only exercises legislative, judicial, and administrative power, but also', in some particulars at least, may manage the affairs of the corporation.^ .While no doubt the Commission may be much wiser in regard to management than the persons who invested their capital in the enterprise, we have not yet reached a point where it is thought wise*to suppress entirely individual initiative. The right to life, liberty, and'the pursuit of happiness guaranteed to every person by the constitution includes the right to make some mistakes.

To further disclose the infirmities of this section we call attention to the status of the particular matter here in controversy. The Oshkosh Tractor Company had been or-, ganized; an application had been made to the Railroad Commission for a permit to sell its securities; the permit had been granted; the Oshkosh Tractor Company had entered into a contract with the La Crosse Tractor Company for the purchase of certain property; the capital stock of the Oshkosh Tractor Company had been subscribed for by a large number of persons; execution' had been returned unsatisfied and sequestration proceedings begun; a receiver appointed; an action was about to be begun by the receiver upon the stock subscriptions', which constituted the main, if not the sole, asset in the hands of the receiver. In construing its own powers the Commission said:

“The Railroad Commission does not require any complaint of zny sort — that is, any formal complaint of any sort, to be filed with it. The Commission does not consider itself limited by the complaint, if such is filed. . . . Almost never have we had verified complaint. If you will turn to the notice of hearing sent out, you will note that the notice sent out does not conform nor purport to conform to the complaint. As I understand the law, it provides that the Commission has a very broad power and discretion in holding these investigations and hearings, and, for that reason, I made the notice read In re Oshkosh Tractor Company, its application to sell its securities in the state of Wisconsin, the sale of its securities in the state of Wisconsin, its transactions with the La Crosse Tractor Company and other transactions in connection with said company. . . .

“For the present I think I will say that the Commission is interested not only in the specific matters set forth in this complaint, but it is interested in all of the various offshoots which are suggested by the notice'which was sent out by the Commission, and for the present, therefore, we will take the testimony, and if counsel for any party desires to enter any objection, that is his privilege and the testimony can be taken subject to the objection.”

Thereupon the Commission proceeded to inquire whether or not\j:he Oshkosh Tractor Company was legally incorporated for the reason that fifty per cent, of its capital stock had not been subscribed and twenty per cent, thereof paid in; as to whether or not the Oshkosh Tractor Company had paid excessive salaries to its officers; as to whether or not the Oshkosh Tractor Company had paid excessive commis sions on the sale of its capital stock; as to whether or not the Oshkosh Tractor Company was not legally 'dissolved at a meeting of its stockholders held on the 16th day of January, 1922; as to whether the surrender made by the Oshkosh Tractor Company to the La Crosse Tractor Company was a valid transaction; and there was testimony as to every transaction had by the Oshkosh Tractor Company, its promoters, officers, and agents covering a period from the month of March, 1921, until the dissolution of the company on the 16th day of January, 1922. Testimony was also taken regarding the incorporation and transactions of the Wisconsin Tractor Sales Company and the La Crosse Tractor Company from the dates of their, respective incorporation to the time of the hearing; and other matters, the general nature of which is indicated by that already set out. Upon this state of facts the Commission was proceeding without pleadings, without an issue being framed, to hear, try, and determine the entire controversy and to make such an award as should be just and equitable in the premises. Such an attempt to administer justice wholesale perhaps has never previous to this time been before the courts. Here were numerous questions vitally affecting citizens whose rights had already accrued and become fixed under the law, which .were to be reviewed, determined, and settled in this proceeding. It may be that a procedure such as that undertaken in this case would be more expeditious and less expensive than an orderly proceeding brought in the courts invested with authority under the constitution to make a determination of this character. It is equally true that the cost of a democratic government far exceeds that of an autocratic government, but it is also true that under the more expensive form of government people enjoy .greater liberty and they are better protected in the exercise of their rights as citizens. If the law of 1921 is a valid enactment the Commission no doubt made a justifiable interpretation of its provisions. Sec. 1753, Stats., provides that stock of a corporation issued “except in consideration of money or of labor or property estimated at its true money value, actually received by it, equal to the par value thereof,” shall be void. The permit no doubt required the Oshkosh Tractor Company to'comply with this section. If issued contrary to the terms of the permit, jurisdiction is conferred upon the Commission to declare the issue voidable in its discretion. It would scarcely be contended that the permit was of greater efficacy than the provision of the statute, but by this device the determination of the validity of an issue made' under a permit is in this respect taken from the courts and vested in the Commission. In the event the terms of the permit have been violated, the Commission may declare the transaction voidable or valid. The court could only declare it void if the statute had been violated.

By the fourth clause the method of procedure is prescribed in general language.

By the fifth clause findings of fact made by the Commission are to be reviewed, not in accordance with the provisions of sec. 1753 — 56, under which the review of other orders and decisions made by the Commission may be had, but as “other orders of the CommissionThis was no doubt intended to withdraw the right to review under sec. 1753 — 57 from the application of that part of sec. 1753 — 56 which provides that the provisions of paragraphs (b) and (c) of sec. 1797 — 16 shall not apply. So that in the event of a review the court would be obliged to return the record to the Commission for further experimentation.

The act of 1921 so plainly violates the fundamental principles of constitutional law that, a brief analysis of its provisions makes that fact clearly apparent. Were it not for the fact that there has- been an earnest good-faithi attempt to sustain its validity, and a fear has been expressed that if it be declared unconstitutional the validity of other acts of vital importance to the state would be drawn in question, we should not pursue the discussion further. Under the circumstances, however, we deem it not inappropriate to consider some of the arguments relied upon to sustain the validity of the statute. It is urged, for instance, that the industrial commission is vested with power to determine whether or not an employee is performing services growing out of and incidental to his employment, the extent of his injuries, what death benefits are fair and just, the reasonableness of medical and hospital bills, and many similar things. It is true that the law invests the industrial commission with very broad powers. Borgnis v. Falk Co. 147 Wis. 327, 359, 133 N. W. 209. But the law was sustained because it merely authorized the industrial commission to ascertain jurisdictional questions in cases of dispute, its jurisdiction depending upon the facts. The commission was authorized to ascertain whether or not the facts existed. When the facts were found, the law itself prescribed the compensation. The commission had no power to fix the compensation. It did not have the power to fix a! death benefit* as it might determine to be fair and( just. A fair and just benefit was limited by requiring the commission to take into consideration the death benefit allowed in other cases where the circumstances ’there referred to did not exist. Sub. (4) (c), sec. 2394 — 9, Stats. The statute fixed the standard and the commission was authorized within a limited field to make fair and just apportionment, depending upon the circumstances. Not only that, but Borgnis v. Falk Co., supra, did not pass upon the validity of every provision of the workmen’s compensation act. Specific objections to the law, which did not invalidate the entire act, were not passed upon but were expressly reserved for future consideration.

It is further argued that “the railroad commission law empowers that tribunal to pass upon the reasonableness of rates and various practices of common carriers and public utilities. Courts had formerly exercised the power to hold rates unreasonable.” This embodies an entire misconception of the province of the Railroad Commission.

In Minneapolis, St. P. & S. S. M. R. Co. v. Railroad Comm. 136 Wis. 146 (116 N. W. 905), at p. 164 the court said:

“If it were conceded that the Commission had power or discretion to fix one of several rates, either of which would be just and reasonable, it would be hard to say that this was not a delegation of pure legislative power to the Commission. But the theory of this law is to delegate to the Commission the power to ascertain facts and to make mere administrative regulations.”

And it was further said:

“But the theory and the mandate of the law is that this point [a reasonable rate] always exists under any combination of conditions and is always discoverable although not always discovered.”

The failure to apprehend the true import and meaning of this declaration has been the cause of much confusion in the books. Under the theory of the law there is but one rate which is just and reasonable. It is the duty of the Com-mission to discover and declare that rate, taking into account all of the necessary factors which must be considered to ascertain it. Courts have never had the jurisdiction to ascertain and declare a reasonable rate. The power, to do that rests entirely with the legislature. The legislature vests in the Commission the power to ascertain the fact;, when the fact is ascertained, the statute itself and not the order of the Commission makes the rate effective. Courts, upon the other hand, having no administrative power, can be called upon to act only when it appears that the rate is confiscatory under the constitution, or under the terms of the statute it is unreasonably low, or when it is so high as to be oppressive and therefore unreasonable'. The'power which the Railroad Commission exercises in discovering and de- daring a rate is an entirely different power than that exercised by the court when its jurisdiction is invoked to declare a rate confiscatory or unreasonable. One is a part of a legislative act and the other is the exercise of a purely judicial power. A similar analysis would dispose upon the same grounds of other suggested analogies. Commissions, boards, and other administrative bodies have often adopted the language of courts as well as their methods of procedure, and this serves to further obscure the line dividing these fields one from another.

Coming back to the statute under consideration,{"if the law did nothing more than authorize the Commission to ascertain whether or not a violation of the statute was inadvertent and not wilful and that when that fact was established the statute declared that a certain result should follow, the section would then be analogous to the statutes granting like powers to other bodies, j Analogy without analysis is not very helpful in any field and is quite apt to be misleading in constitutional law. The difficulty with the statute is that it leaves it in the discretion of the Commission to say what shall happen. This clearly brings it within the condemnation of the decision in Borgnis v. Falk Co. 147 Wis. 327, 133 N. W. 209, as a delegation of legislative power; the fact that it attempts to delegate to the Commission the power to make an award which shall be just and equitable without erecting any standard, but leaving it wholly within the discretion of the Commission, makes it a clear delegation of judicial power, using these terms in their commonest and best understood meaning. No refinements need to be indulged in in this case to show that the powers granted to the Commission are those which are vested by the constitution 'respectively in the legislature and the courts. Our attention is called to no case where a similar delegation of power has been sustained where the act itself did not prescribe some standard by which the discretion of the commission or other administrative body was to be controlled arid measured. Under this act the corporation or person might be penalized or punished at the will of the Commission. Even a court would be powerless to give relief, because it could not substitute its judgment for that of the Commission if the Commission was acting within its proper field. The right of review extends no further than to ascertain whether or not the Commission has acted within its jurisdiction. Courts cannot substitute their- discretion for that of an administrative body, because to do that would constitute the exercise of administrative power. In re Appointment of Revisor, 141 Wis. 592, 597, 124 N. W. 670. We are not called upon in this case to consider the distinction between legislative and administrative power. See State ex rel. Buell v. Frear, 146 Wis. 291 (131 N. W. 832), at p. 304 et seq.

Sec. 1753 — 57 as amended by the Laws of 1921 is void because it attempts to confer upon the Railroad Commission, an administrative body, both legislative and judicial power, in violation of the constitution. In arriving at this conclusion we give full weight and effect to the established principle that a law must be clearly in conflict with the constitution to warrant a court in holding it void and of no effect. Nor are we unmindful of what is said in In re Appointment of Revisor, 141 Wis. 592, 124 N. W. 670, regarding the nature of administrative powers which lie without the field both of the legislative and judicial departments of government. Nor do we in any respect depart from the principles laid down by this court in various cases sustaining the powers of various administrative bodies. The provisions of this enactment are so clearly in violation of constitutional principles that exposition is not necessary to further disclose their invalidity. Nor shall we attempt to lay down a rule which shall be a guide in future cases. Definition is much more difficult than classification. Classification relates to a particular thing or object. Definition seeks to cover the entire field and by terms of inclusion and exclusion to malee certain that which is included within it. As is pointed out in In re Appointment of Revisor, supra, “it is impossible to say at any given place: here is a «line where legislative power ends and judicial power begins; all on one side of this line is legislative and all on the other side is judicial, and no single power can be both.”

The statute being void because in violation of the constitution, the circuit court was in error in denying the motion of the receiver to enjoin the Railroad Commission from proceeding further in the matter embodied in the petition presented by George E. Williams. The Railroad Commission having ho jurisdiction nor authority to proceed in the premises, it is not entitled to the custody of the books, papers, documents, files, etc., relating- to the business of the Oshkosh Tractor Company, and the motion of the receiver in that respect should have been granted.

By the Court. — That part of the order appealed from is reversed, and cause remanded for further proceedings according to law as indicated in this opinion.

Footnotes

1

Section 1753 — 57. The sale of every security in violation of, or in noncompliance with, sections 1753 — 48 to 1753 — 68 of the statutes and the sale of every security with the authorization of the commission, but not in conformity with the representations made to the commission for the purpose of obtaining the permit, or with the provisions, if any, which are required by the commission, shall be voidable at the discretion of the commission. If after investigation of any such alleged acts, it shall appear to the commission, and the commission shall find, that such acts were done in good faith, and not for the purpose of evading the law or misleading the commission, or with intent to violate the provisions of the permit, or constitute a mere irregularity, and that the injury, if any, may be remedied, it shall make and file its findings upon all the facts involved in the controversy, and its award, which shall state therein its determination as to the rights of the parties; and by such award, may require the company and every officer, director, agent or employee thereof, and' any -broker or other person, who authorized, directed, aided or consented to, such acts, to do such things and pay such amounts as shall be just and necessary or proper, to place the state, the company, or the purchaser in the same situation that it, or they, would have been in had the provisions of'such sections and of such permit been complied with, or had the representations made to the commission been true or conformed to! If the commission shall find that such acts were not done in good faith, or were done for the purpose of evading the law, or that the representations made to the commission were made for the purpose of misleading the commission er that such acts were in wilful violation of the provisions of the permit, it shall make and file its findings and award as above provided, and in such award may declare the security to be voidable, at the election of the purchaser, or may make such other award as may be just and equitable in the premises. Provided, however, that no final determination and award shall be made by the commission, until after a public hearing-, unless the parties affected thereby shall have waived in writing their right to such public hearing, and provided, further, that • no such award shall be binding upon a party who has not so waived the right to public hearing, or who has not been given due notice thereof. The findings of fact made by the commission, acting within its powers, and the award, shall be subject to review by the courts in the same manner and subject to the same limitations as other "orders of the commission. If appeal shall not have been taken from such award in the mánner and within the time specified, the commission, or any party interested, may present a certified copy of the findings and award of the commission to- the circuit court for any county; whereupon said court shall, without notice, render judgment in accordance therewith, which judgment, until and unless set aside for lack of jurisdiction of the commission to make such award, shall have the same effect as though duly rendered in an action duly tried and determined by said court, and shall with like effect be entered and docketed. Nothing herein contained, and no action taken, or judgment rendered hereunder, shall have the effect of-relieving the persons responsible for any illegal acts from the liabilities imposed by the next section.'