son and to the opposing party, apply to the court for an order making such third person a party defendant in order that the rights of all parties may be finally settled in one action, and the court may in its discretion make such order." We think that in cases such as this the court should exercise its discretion and deny the application. contribution. The suggestion that the case should be reversed for this reason becomes more absurd when we reflect that a new trial of the action will settle nothing between Schwab and Wilkinson. Their rights are not at issue, and cannot be until the judgment has been paid, because until that time an action for contribution does not accrue. The only thing to be accomplished by a new From what has already been said it is trial is to save defendant Schwab from a con- plain that the interest of Schwab did not reclusive judicial determination of a single quire the bringing in of Wilkinson. In such fact necessary for him to establish in order case the judgment rendered will not affect to recover contribution, namely, the fact that the right of the party held liable, to contriWilkinson's negligence did not concur in pro-bution from those whose wrongs contributed ducing the actionable wrong. If the defend- to the liability. The judgment rendered canant Wilkinson had not been made a party, no not dispose of the rights of the defendants question of res adjudicata would have arisen. as between each other upon the question of Why will not justice be done by leaving contribution. Such action will not accrue Schwab and Wilkinson in the same position until the judgment has been paid. There they would have been if he had not been made can be no cross-issue between the defendants a party? It seems to us that not only the upon this subject. The reason for the proapplication of well-established legal prin- visions of section 2610 is to enable the court ciples, but considerations of justice as well, to determine the rights of all interested in dictate the conclusion that the judgment ap- the controversy in the one action. From the pealed from is not res adjudicata upon this very nature of things this cannot be done question. in an action of this nature. There is no pur It follows that Schwab is not aggrieved by pose or object, therefore, in bringing in other that feature of the judgment releasing Wil-parties who may also be liable. Their preskinson. He cannot appeal therefrom, and ence only adds confusion. This troublesome cannot secure a reversal and new trial be- question would not have arisen if the court cause the court erred in releasing Wilkinson. had denied the application to make WilkinThe judgment will have no more force or ef- son a party to the action. Immemorially it fect in this respect than if Wilkinson had has been the right of the plaintiff to make not been made a party to the action. This his own election in the matter of joining tortleaves not only Schwab, but any independ-feasors as defendants. It has been his priv ent tort-feasor, at liberty to bring his action for contribution against any and all persons who it is claimed were in part responsible for the wrong, and this whether they were made parties to the original action or not, and the judgment cannot be used by a party discharged in the original suit, in an action for contribution, for the purpose of showing that his negligence did not concur in producing the wrong. ilege to institute his action against one or part or all tort-feasors responsible to him. We can see no reason why this venerable rule should be changed, nor why the plaintiff should be compelled to involuntarily liti gate with parties not of his own choosing. We are impelled to make these observations not only because the record here brings the matter forcibly to our attention, but because in the Ellis Case, where it was held [6] While what has already been said is that contribution may be had between tortall that is necessary to dispose of the issues feasors who are guilty of no intentional or of this case, we deem it proper to refer brief-conscious wrong, the same practice was inly to the practice indulged in bringing in Wil-dulged. As nothing was said concerning the kinson as a party defendant at the instance of practice in the opinion rendered in that case, Schwab. Schwab's action in this respect was it may be considered to have met with our based upon section 2610 of the Statutes, approval. The dominant question there conwhich makes provision for the bringing in sidered was whether there could be contriol all parties necessary to a complete deter-bution between such tort-feasors. No point mination of the controversy, and especially was made on the practice indulged, and it of the provision added thereto by section 6, c. 219, of the Laws of 1915, which provides that: was not considered by us. The Ellis Case and this may be regarded as supplementary of each other. The Ellis Case deals with the question of substantive law, and this deals with the matter of procedure. There "A defendant who shows by affidavit that if he be held liable in the action he will have a right of action against a third person not a party to the action for the amount of the recovery is no conflict between the two. against him, may, upon due notice to such per- Judgment affirmed. WISCONSIN ASS'N OF MASTER BAKERS TION. said chapter are required to pay a further license by reason thereof; that some of the individual members of the association petltioner, in addition to operating a bakery, are engaged in baking macaroni, manufacturing candy and ice cream for wholesale trade, manufacturing candy and ice cream for their own retail trade and conducting a lunch counter for their own retail trade, manufacturing pop and soda water for retail trade, and that for carrying on these businesses they are also required to procure a license; Laws 1917, c. 648, 87, providing that amount of license for bakers be based on baking surface operated, violates Const. art. 1, § 1, and Const. U. S. Amend. 14, § 1, in that it exempts bakers subject to license having less than 20 square feet baking surface from paying any license fee, thereby imposing unequal burdens. 2. LICENSES 7(4)—VALIDITY-CLASSIFICA- that respondent is the dairy and food comLaws 1917, c. 648, § 7, providing that amount of license for bakers be based on baking surface operated, does not provide an unreasonable basis of classification, although the amount of baking surface operated may not bear an exact ratio to amount of business done. 3. CONSTITUTIONAL LAW 68(4) — JUDICIAL POWER-ENCROACHMENT ON LEGISLATURE. Legislature having adopted proper basis of classification, fixing fees for licenses, the courts cannot set it aside as unreasonable if there is any reasonable argument to support it. 4. CONSTITUTIONAL LAW 38-VALIDITY OF STATUTE. Although Legislature has wide discretion, its acts are void if they contravene provisions of the Constitution, although the departure is followed by comparatively slight inequalities from a pecuniary standpoint. Original proceeding in mandamus by the Wisconsin Association of Master Bakers and others to compel George J. Weigle, Dairy and Food Commissioner, to issue certain licenses. Motion to quash alternative writ denied, and peremptory writ ordered to issue. missioner of the state of Wisconsin, and as such is charged with the duty of enforcing the provisions of chapter 648 of the Laws of 1917 and of prosecuting any persons who conduct a bakery business without first procuring a license therefor; that 125 baking establishments operate 20 square feet or less of baking surface each; that 88 baking estab lishments operate more than 20 and less than 51 square feet of baking surface each; that 450 operate more than 51 and less than 100 square feet of baking surface each; that 375 operate more than 100 and less than 150 square feet of baking surface each; that 45 operate more than 150 and less than 400 square feet of baking surface each; that 23 operate more than 400 and less than 1,000 square feet of baking surface éach; that 2 operate more than 1,000 and less than 1,500 square feet of baking surface each; that 5 operate more than 1,500 square feet of baking surface each. (a) That the aggregate annual expenditure for bakery and confectionery license and regulation by the state commission administering the bakery and confectionery license and regulation law, immediately prior to the enactment of chapter 648 of the Laws of 1917, was about $3,500, apportioned approximately as follows, as to the bakeries: (1) For bakeries operating less than 20 square feet of baking surface $1 each; (2) for bakeries operating more than 20 and less than 51 square feet of baking surface $2 each; (3) for bakeries operating more than 51 and less than 100 square feet of baking surface $3 each; (4) for bakeries operating more than 100 square feet of baking surface $5 each, and $2 additional for each baking device more than one. This is a proceeding brought under the original jurisdiction of this court praying for a writ of mandamus to compel the dairy and food commissioner of the state of Wisconsin to issue to the petitioners and those similarly situated licenses in accordance with the law without payment of the fee prescribed by chapter 648 of the Laws of 1917, the purpose of this proceeding being to test the constitutionality of section 7, c. 648, of the Laws of 1917. The original petition has been twice amended. In the statement of facts the petition will be treated as if originally filed as now amended, without further comment as to the amendments. Without attempting to set out all the purely formal matters alleged in the petition, the material facts are as follows: That the individual petitioners and the members of the Wisconsin Association of Master Bakers, which operate bakeries in this state, are required by the terms of section 7, c. 648, Laws of 1917, to pay a fee to the state for a license to operate such bakeries, and that unless such fee is paid the license required by the laws of this state to operate a bakery cannot be procured, and petitioners will be liable to criminal prosecu-ing devices of between 80 and 150 square feet tion and punishment; that many of the individual members of the association petitioner bake ice cream cones, and by the terms of (b) There are operated in the state of Wisconsin in the bakeries subject to the bakery license and regulation law the following baking devices: (1) Eight baking devices of between 400 and 500 square feet of baking surface; (2) 6 baking devices of between 300 and 400 square feet of baking surface; (3) no baking devices between 150 and 300 square feet of baking surface; (4) 400 bak of baking surface; (5) the balance of the baking devices operated are of less than 80 square feet of baking surface. The petition also sets out in detail the facts and circumstances as to the operation of other business jointly with the baking business, such as the baking of macaroni, manufacture of ice cream, confectionery, and other edibles, which in the view we take of this case are not material here. It is also alleged that: "The license fees required to be paid by bakeries of the state by the terms of chapter 648, Laws of 1917, are calculated only to meet the expense of licensing and supervising the bakeries and confectioneries enumerated in chapter 648 of the Laws of 1917, and the aggregate of the license fees that would be paid by the bakeries and confectioneries of the state under the terms of said chapter 648 would only equal the expense contemplated by the said law. Inspection service is rendered in and regulatory supervision exercised over bakeries and confectioneries in the state, independent of the number of square feet of baking surface, by public health officers as well as by the bakery inspector and other representatives of the state dairy and food commission. The license fee provisions of said chapter 648 were designed as a police measure, and not as a tax measure." The petition further alleges that the danger to public health arising from the operation of bakeries is in proportion to the number of square feet of baking surface. Upon the filing of the petition an alternative writ was issued requiring the respond ent to issue to each of the petitioners, and to all others similarly situated, a license to operate a bakery and other licenses referred to in said petitions, without the payment of the license fees provided by chapter 648, Laws of 1917, and that in default thereof he show cause before this court why he has not done so. The matter was continued by stipulation. There was subsequently on the part of the respondent a motion to quash the alternative writ, on the ground that neither the petition nor the alternative writ states facts showing that any of the parties are entitled to the writ of mandamus as prayed. Upon such motion the matter was argued orally to the court and briefs presented by counsel on both sides. Crownhart & Wylie, of Madison, for petitioners. Spencer Haven, Atty. Gen., and Winfield W. Gilman, Asst. Atty. Gen., for respondent. ROSENBERRY, J. (after stating the facts as above). Prior to the passage of chapter 648 of the Laws of 1917, except as to the payment of license fees, the law regulating bakeries and providing for the inspection thereof and other establishments referred to in the petition was substantially as it now is. It is not claimed that the law as it stood prior to the enactment of chapter 648 of the Laws of 1917 is unconstitutional or void. The law has been before this court in State ex rel. Ohlenforst v. Beck, 139 Wis. 37, 119 N. W. 300, and in Benz v. Kremer, 142 Wis. 1, 125 N. W. 99, 26 L. R. A. (N. S.) 387, 135 the aspects there considered has been upheld as a constitutional exercise of the police power of the state. That part of the law now assailed is the provisions of section 7, c. 648, being section 1410d6, subd. 2a, Stats. 1917: "The license fee for establishing or operating a bakery shall be five dollars for every bakery or other baking device or devices having more equipped with a stove or stoves, oven or ovens, than twenty square feet and less than fifty-one square feet of baking surface, and ten dollars for every bakery equipped with a stove or stoves, oven or ovens, or other baking device or de vices having fifty-one or more square feet of baking surface. No fee shall be required for the ing device having less than twenty square feet use or operation of a stove, oven or other bakof baking surface; five dollars for every cone bakery and every macaroni bakery; ten dollars for every confectionary establishment, manufac turing candy or ice cream for wholesale trade; two dollars for every confectionary establishment manufacturing candy or ice cream for their own retail trade only." In the consideration of the questions raised here we assume that the whole law is an exercise of the police power in the interest of the public health, that the fee required to be paid as a condition of procuring the license is not exacted for the purpose of reve nue, but that its object is the reimbursement of the state for licensing and the supervisory service rendered under and pursuant to the law. It is argued that the classification made by the subsection in question is not based upon distinctions germane to the purpose of the law and that it is arbitrary and unjust. [1, 2] We must hold that the amount of baking surface operated by each establishment is a proper basis of classification. For aught that appears in this case, no more just basis of classification could be adopted. While in individual cases the amount of baking surface operated may not bear an exact ratio to the amount of business done, still it is doubtless as accurate and fair as any basis of classification that could be adopted, particularly when the admitted fact that the menace to the public health is in proportion to the number of square feet of baking surface operated by each bakery is considered. [3] The Legislature having adopted a proper basis of classification, we cannot say that the classification made offends any constitutional provision, unless we can say that no argument or consideration of public policy exists which could have weight with a reasonable and honest man in making the classification adopted; for, if such reason or argument does exist, the weight or sufficiency of it is not for the courts, but is for the Legislature. We cannot assume that no legitimate and adequate reasons exist for the classification made. It is only when it is made to appear clear beyond reasonable doubt that there are no just arguments or considerations of public policy which exist upon which the classification may be based that the court reasonable in a legal sense, and therefore void. State ex rel. Kellogg v. Currens, 111 Wis. 431, 87 N. W. 561, 56 L. R. A. 252. The provision in question may be subjected to many valid criticisms, many weighty arguments may be directed against it, and a classification much more likely to do justice may be suggested, but these are matters which are properly for the consideration of the Legislature, and we cannot say that in this case it is clear beyond a reasonable doubt that there is no legitimate reasonable grounds for the classification made. It is argued that, even if the classification be upheld, the exemption of part of the licensed class from the payment of any license fee is discriminatory. This contention is sound and rests upon the most elementary principles. In the exercise of the police power of the state the Legislature is limited by the constitutional provision that restraints and burdens imposed shall affect all persons equally. Section 1, art. 1, Wis. Const.; section 1, Const. U. S. Amend. 14; State v. Whitcom, 122 Wis. 110, 99 N. W. 468. Uniformity and equality under the Constitution of the United States as well as of the state of Wisconsin are so construed as to enable a practical application to be made in the conduct of governmental affairs. The rule permits the separation of persons and of property into classes, provided they have characteristics legitimately distinguishing the members of one class from those of another in respects germane to some general public purpose. State ex rel. Kellogg v. Currens, 111 Wis. 431, 87 N. W. 561, 56 L. R. A. 252; State v. Whitcom, 122 Wis. 110, 99 N. W. 468. Having in the exercise of the police power declared that all bakeries in the interest of the public health should be licensed, and that a fee for such licensing should be exacted to cover in whole or in part the cost of licensing and supervision, upon what principle can it be said that a part of the licensed class can be wholly exempted? Such a provision clearly offends against the rule of equality. While it is within the province of the Legislature within established rules to make classifications and subclassifications and to determine the amount of fees to be paid by each of the respective classes and subclasses, it is nevertheless beyond the power of the Legislature to wholly exempt a part of the licensees and cast the whole burden upon the nonexempted subclasses. feet of baking surface do require licensing, inspection, and supervision, and having declared that the licensed class shall bear the expense of licensing and inspection, it cannot wholly exempt a part of the licensees and cast the whole burden upon the nonexempted subclasses. Such a provision is clearly arbitrary and discriminatory. [4] While the Legislature has a wide discretion acting within constitutional limits, its acts are void if they contravene the provisions of the Constitution. Although the departure in this case is followed by comparatively slight inequalities, the character of these inequalities, however, is not affected by their size as measured in dollars and cents. Equality before the law is one of the fundamental principles upon which our institutions rest, and, like the virtue of a woman, it must be held sacredly inviolate or it does not exist. We are of the opinion that the exemption of a part of the licensed class from bearing any part of the expense of licensing and inspection renders section 7 of chapter 648 of the Laws of 1917 void. The remainder of the law, having stood substantially in its present form prior to the enactment of chapter 648 of the Laws of 1917, is not affected by this decision and continues in full force and effect. The motion to quash the alternative writ is denied, and it is ordered that a peremptory writ as prayed for issue. No costs to be taxed. STATE ex rel. DOWNEY-FARRELL CO. v. WEIGLE, Dairy and Food Com'r. (Supreme Court of Wisconsin. June 19, 1918.) 1. COMMERCE ~41(1)-WHAT CONSTITUTES— TRADING STAMPS. In view of the federal law regulating the manufacture, packing, and shipment of oleomargarine, the placing by a nonresident manuits original shipping boxes and provisions for facturer of a jobbers' profit-sharing coupon in the redemption thereof are all parts of one commercial transaction, and as such constitute interstate commerce. 2. COMMERCE 60(1) — TRADING STAMPS — PUBLIC POLICY. If the Legislature had said that those bakeries which came within the definition of the exempted class did not require inspection and licensing, and thereby have exempted them from licensing and inspection as well as the payment of the fee, it would have acted wholly within the constitutional field; but, having said that in the interest of the public health bakeries operating less than 20 square Issue.] and Phrases, First and Second Series, Any; [Ed. Note.-For other definitions, see Words For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (Wis. 4. GAMING 68(4)-TRADING STAMPS-RE- | did, and thereupon made and filed his findings of fact herein. DEMPTION. When a nonresident manufacturer, issuing profit-sharing coupons to persons other than the original purchaser, as to whom the transaction is not interstate commerce, provides in the coupons for their redemption by a company engaged in the trading stamp business, such company is an independent contractor, rather than an agent, and the issuance of such coupons is in violation of Laws 1917, c. 480, § 1 (St. 1917, § 1747m), requiring redemption by the person issuing them. 5. GAMING 68(4) TRADING STAMPS "STATED CASH VALUE"-"CASH VALUE." The provision of Laws 1917, c. 480, § 1 (St. 1917, § 1747m), that a profit-sharing coupon shall have a "stated cash value" is not violated, where the coupon designates the amount of the sale, and states the redemption allowance as a certain percentage thereof. Original proceeding by the State, on the relation of the Downey-Farrell Company, against George J. Weigle, as Dairy and Food Commissioner. Judgment for plaintiff for part of the relief asked. This is an original proceeding in this court wherein the plaintiff prays that the defendant, as dairy and food commissioner of the state of Wisconsin, be enjoined and restrained from a threatened enforcement, as against the plaintiff, of the provisions of chapter 480 of the Laws of 1917. An answer was interposed to the complaint, and the issues of fact thereby raised were referred by this court to Hon. A. G. Zimmermann, county judge for Dane county, as referee to take testimony, which he The material facts necessary for consideration in this case as they appear from these findings are substantially as follows: The plaintiff is a Delaware corporation doing business in Chicago, Ill., and has not taken out a license under section 1770b, Wis. Stats., to do business in this state. It makes a high grade of oleomargarine, and sells the same at a uniform price to jobbers all over the country. In compliance with the federal law this oleomargarine is put up at the fac tory in Chicago in weights of 1, 2, and 5 pounds respectively, each such weight being wrapped in parchment paper, inserted in and packed in boxes containing generally pasteboard cartons, which are then closed either 10, 20, 24, 30, 60, or 100 pounds of such packages, and shipped in such boxes to the jobbing trade all over the United States. are sold by jobbers to retail dealers or hotel Such boxes of original shipment unopened keepers. 10 pounds. All sales at retail are required No sales permitted of less than to be from such boxes of original shipment, and such cartons are not to be removed therefrom until the sale at retail is made to the consumer. board cartons at the place of business in At the time of the packing of these pasteChicago there is inserted in each of them what is designated as a consumer's coupon substantially as follows: |