I agree with the conclusion of the court that this case is not moot for the reasons stated in *Page 444 the opinion and on the authority of the cases there cited. A determination that the case should not have been held to be moot assumes that it was not dealt with on its merits in the lower court and the case is remanded for the purpose of such consideration. Ordinarily this should end our consideration because if the trial court has not dealt with the matter on its merits we have nothing to review in that respect. In this case, however, it appears to me that the situation calls for some suggestion by this court as to the merits, all of which, with one possible exception, are determinable from the record. The trial court in its memorandum stated in part:
"It now conclusively appears that said order limiting the picketing arose out of and was related to the strike then in progress. The evidence now shows that the strike has been terminated. . . . I am therefore of the opinion that the factual situation which existed and which prompted the board, the plaintiff board, to enter the order herein referred to and sought to be enforced by the judgment, no longer exists, and therefore that the order and the petition herein is moot."
While the trial court used the word "moot" it appears from the context that the term might have been loosely used that the court intended to dispose of the case on its merits. If he did I should not want the impression to exist upon remand that such a determination is erroneous on the basis of the record made. The record discloses that on May 3, 1946, upon complaint of the company followed by a full hearing the board found that the union had engaged in mass picketing in blocking entrances and in coercing employees from entering the plant. The board entered the usual general order requiring the union to cease and desist from all practices condemned by the statutes as unfair. This order was enforced by a judgment of the circuit court entered September 9, 1946. On December 6, 1946, the company filed a new complaint alleging continuance and increase of prohibited activities by the union notwithstanding the previous order. Upon hearing of *Page 445 testimony sustaining the complaint the board entered the order here involved. This order repeated its prohibition of mass picketing and other unfair practice and in addition specifically limited the number of pickets. The memorandum accompanying the order states:
"The number of pickets allowed concededly is small. It is, however, sufficient so that all persons approaching the premises of the Allis-Chalmers Manufacturing Company will at all times be aware of the fact that there is a strike on. Such limitation has been demonstrated to be necessary if any pretense is to be made toward the maintenance of law and order in the city of West Allis while this strike continues. It can no longer be assumed, . . . that the leadership of the organization now on strike, intend to be law-abiding citizens."
The order here involved therefore has two distinct parts. The first part is an order to cease conduct specifically condemned as unfair by the statute. The second part does not deal with conduct specifically condemned by the Statute as an unfair labor practice. It simply implements its general orders by a specific limitation of the number of pickets. This part of the order was addressed to the lawless manner in which this strike was being conducted. It appears to me that such an order does not survive the strike to which it relates and that it should not be enforced if the strike has ended. To do so would be against the apparent intention of the order, would give force and scope to the order which is beyond the powers of the board and would transmute the order into a sort of permanent administrative rule to be applied in the future without regard to the conditions that might obtain in future strikes.
Sec. 111.07(7), Stats., provides that upon resort to the circuit court the court may affirm, reverse, or modify the order of the board. I assume that this commits to the court such discretion as usually vests in a court of equity. This includes the power to refuse enforcement of an order where such action is either improper or unnecessary. It appears to me that it *Page 446 would be within the discretion of the trial court to refuse to enforce the first part of the order because there is already in force such an order coupled with an injunctive decree. It appears to me that it would be error for the court to enforce the second portion, that relating to limitation of pickets, if the strike has actually ended. I agree that under the doctrine ofCentury Building Co. v. Wisconsin E. R. Board,235 Wis. 376, 291 N.W. 305, the question whether the strike is ended goes to the merits and if there is an issue of fact upon that the matter should be remanded to the board for a finding. However, the doctrine of that case relates only to issues of fact and if it is conceded that the strike is over or if, as seems entirely likely, that fact is of sufficient notoriety to bring it within the doctrine of judicial notice, the trial court would be in a position to decide this case without remand to the board.
I am authorized to state that Mr. Justice HUGHES concurs in this opinion.