State v. Wadhams Oil Co.

SibbeoKER., J. Assuming, without deciding, that, upon the ground that tbe oil inspection law (Laws of 1909, cb. 363) was an invalid act, tbe circuit court commissioner bad jurisdiction to make tbe in junctional order in tbe action brought by tbe defendant against Edward L. Tracy as state supervisor of inspectors of illuminating oils and thereby to enjoin him from enforcing tbe provisions of tbe law providing for such inspection against tbe defendant and from interfering with tbe conduct of its business in selling such oils without having bad them inspected, we then have tbe question presented: Is this order a defense to tbe prosecution of tbe defendant criminally for violations of this law through sales made by it of oils not inspected as required by such law during tbe pendency of such injunctional order, since tbe law was challenged as invalid legislation in tbe action wherein tbe restraining order was made ? Tbe contention of tbe defendant is that tbe defendant is protected against tbe incurring of tbe penalties for selling [61] oils contrary to the mandate of the law during the pendency of such preliminary order. The injunctional order here involved restrained the oil inspectors from inspecting plaintiff’s oils and from instituting civil and criminal suits during its pendency. The order was unquestionably made upon the ground that the court had jurisdiction within its equity powers to enjoin such prosecutions in order to protect the plaintiff’s property rights and because it deemed that such rights would be imperiled by the execution of a void statute through wrongfully subjecting the plaintiff to a multitude of civil and criminal suits and through harassing it to an extent that would amount to a deprivation of the right which entitles every person to a certain remedy in the law for the redress of injuries he may receive in his person or property. Milwaukee E. R. & L. Co. v. Bradley, 108 Wis. 467, 84 N. W. 870; Joseph Schlitz B. Co. v. Superior, 117 Wis. 297, 93 N. W. 1120. The argument is made that whatever protection the defendant would have under such an order, had the law been unconstitutional, must be given it during the pendency of the order, though it was finally adjudged that the legislative act was constitutional, and that it must result from this that the defendant, by force of the preliminary order, was exempted from the operation of the statute during the pendency of the order. This gives an effect to such a preliminary restraining order wholly beyond its purpose and function. It is well recognized that such orders have been used and employed to maintain the status quo of the rights of parties and thus protect persons against irreparable injuries in the law. Its legal object is to preserve a person’s property or rights in controversy until a final adjudication is reached upon the merits of the controversy, but it does not in a legal sense conclude the rights of the parties. The very nature of the remedy suggests that it can have no other effect than to maintain the existing status of a party’s personal and property rights until a [62] court can finally adjudge whether they would be imperiled. The effect thereof is not to exempt a person from the operation of the law or to suspend it as to him. It does no more than postpone the enforcement of the law until the rights of the persons under the law are declared by a final judgment of a court exercising jurisdiction in the matter. As declared in Consolidated V. Works v. Brew, 112 Wis. 610, 88 N. W. 603: “The proper function of such an order (at least in ordinary cases) is simply to restrain the commission of some act or acts during the progress of the litigation, or, as otherwise expressed, to maintain the status quo." See, also, Milwaukee E. R. & L. Co. v. Bradley, 108 Wis. 467, 84 N. W. 870; McCord v. Akeley, 132 Wis. 195, 111 N. W. 1100; L. L. & G. R. Co. v. Clemmans, 14 Kan. 82; Audenried v. P. & R. R. Co. 68 Pa. St. 370. It necessarily follows that the defendant was subject to the legislative act during the pendency of the preliminary restraining order and during this time it acted at its peril in committing any act violating its provisions, if the act should finally be adjudged to be a valid legislative enactment. It therefore follows that the preliminary injunctional order in the equity action is no defense in this criminal prosecution against the defendant for violations of the law, as alleged in the information filed herein, for sales of petroleum products made by it during the pendency of such injunctional order. References in defendant’s brief to the litigation embraced in the equitable action brought by it against the supervisor of inspectors of illuminating oils as a prerogative cause are erroneous. The action was manifestly an ordinary suit in equity to restrain interference with rights and property under an invalid act and hence without authority of law. Income Tax Cases, 148 Wis. 456, 134 N. W. 673. The question submitted under the report of the case to this, court pursuant to sec. 4721, Stats. (1898), must be answered in' the negative., By the Court. — The question reported is answered No.