(dissenting). I think the judgment of the circuit court should be affirmed. The complaint made by the Department of Agriculture and Markets of its own motion charges three facts and three only, (1) that the plaintiff violated orders of the department applicable to the Racine market fixing the price of milk to be paid to the producer, and (2) that he violated an order of the department requiring that producers should be paid on the 20th of each month for the milk delivered by them during the month previous. These allegations are followed by the general allegation, (3) that the plaintiff “is unfit and unequipped by reason of insufficient financial resources and responsibility for the business of a milk dealer.”
The department made an order denying the plaintiff’s application for a license that recited as “Findings and Conclusions” that “the allegations of the complaint are established and the applicant is unfit and unqualified for the business.” There is nothing to show whether the department denied plaintiff a license because of establishment of (1), (2), or (3), or two of them or all of them. The statute provides that a license may be denied if the applicant is *146“unfit or unequipped” for the business of a milk dealer, but whether he is “unfit or unequipped” is like a conclusion of law which must have as basis to rest upon specific findings of fact adequate to support the conclusion. An order denying an applicant a license should show the specific fact or facts on which the finding that the applicant is “unfit or unequipped” is based. Otherwise the court on review cannot determine whether the denial of the license was justified. The instant case illustrates this. The evidence shows that the plaintiff did in a few instances pay the producers less by trifling amounts than they were entitled to, but the plaintiff claims these trifling mistakes were due to errors in computation or in some instances to a misunderstanding as to compulsory deductions. To refuse the plaintiff a license because of this alone would in my opinion be manifest error. Also, the evidence shows that the plaintiff did fail, in many instances to pay his producers at the time fixed by the department’s order, but to deny him a license because of this alone would in my opinion be error. In my opinion also there is no sufficient basis for denying the plaintiff a license because he has not more capital, if in any case the department may constitutionally deprive a man of his right to do business merely because he has not as much capital as the department considers essential to enable him to do so. The plaintiff is not insolvent. He has net resources to' the amount of approximately $10,000. In his course of business for four years every producer has been ultimately paid every cent due him, except for the month preceding the instant hearing. No producer is complaining. From the evidence it is plain that the producers are satisfied and desire that plaintiff be permitted to continue in business. They being satisfied, it is difficult to see why anyone else may rightfully interfere in their behalf with his so doing.
The plaintiff has been denied the right to do' business as a milk dealer because in the opinion of the department he is *147“unfit and unqualified” to do such business. The statute by its terms authorizes the department to deny a license when the applicant is “unfit or unequipped.” I think the proper— the only reasonable construction of this provision is — that a dealer is “unfit” when from personal habits or otherwise he delivers to his customers milk that is unsanitary or deficient in quality or quantity, and he is “unequipped” when his machinery or place of operation is insufficient or unsanitary so that he cannot deliver milk in proper condition. The finding in this case is that the plaintiff is “unfit and unqualified.” “Unqualified” means the same as “unfit.” There is no allegation of unsanitary conditions of equipment or place of operation or of any improper condition of the milk delivered. Words in a statute should be given their ordinary meaning. The ordinary meaning of “unequipped” is want of equipment, and equipment is commonly understood to relate to machinery and place of operation. Want of capital is not want of equipment. One is not “unequipped” merely because his capital is insufficient. There is here no finding that plaintiff is “unequipped,” and no evidence that he is “unfit,” within the meaning of the term above indicated. There is thus no basis formed for denying the plaintiff a license.
But the refusal of the department to grant the plaintiff a license was in my opinion erroneous for much graver and more fundamental reasons than those above given. Many kinds of business may be regulated by law, but none can be prohibited unless it somehow affects public health, public safety, public morals, or public welfare. State v. Withrow, 228 Wis. 404, 280 N. W. 364. The plaintiff’s business affects the public in none of these ways. It is not charged or claimed that the plaintiff’s manner of conducting his business affects the public in any one of the three respects first named. The only way the public welfare could be otherwise affected would be by fraudulent practices, but the plaintiff *148has been four years in business, and it is not charged or claimed that in this period he has ever defrauded anybody. He started “from scratch,” and in four years has built up an extensive and remunerative business. As this business expanded he has been obliged to purchase equipment, particularly trucks, on credit. Necessity for-payment of equipment is as imperative as payment to producers. Payment to all producers precisely on the 20th of the month has at times been impossible. In such circumstances some latitude should be allowed. For the department to go the limit of its expressed statutory power, regardless of a dealer’s inherent rights, when no public interest required such action was oppressive. It was an abuse of discretion; it was an abuse of power. The plaintiff’s business is taken from him with less concern, apparently, than one would show in taking a bone from a dog. That the plaintiff can be deprived of his business merely because the Department of Agriculture and Markets thinks he should have more capital so that he can pay his producers on the exact day they have set for such payment, seems to me monstrous. We have here a department that is complainant, prosecutor, and judge. It is true administrative boards with powers so to function have been sustained as constitutional, but if such a board is by the terms of a statute given a power that courts are not given under our system of government, it would seem that in the execution of that power they should be subject to the same restrictions and limitations that courts are subject to in executing their powers. Courts cannot abuse their discretion or their powers. No nisi prius court would be permitted by an appellate court to do what has been done by the department in this case. It would seem a priori that the proper and only constitutional way to proceed in case of violations of the orders of the department fixing the time of payment to producers, and in the instant case that is the only thing that calls *149for any action by the department, would be to apply to the courts for an injunction as provided by sub. (6) of sec. 100.03, Stats. It would a priori seem that compliance with such orders should be enforced in the maimer that orders of administrative boards are commonly enforced, hy applying to the courts to compel obedience. Courts enforce orders of. such boards by imposing fines for disobedience, when such imposition is provided for by statute, or by the injunctive process. Courts concede to violators of regulative orders of administrative boards the right to continue in business. They only compel submission to regulation. They cannot prohibit the violator from doing business. That is confiscation. Confiscation of a property right or a personal right, and both are here involved, can no more be accomplished through administration of a licensing statute than in other ways.
Some of the statements above made touch constitutional questions, and no constitutional question has been expressly raised in the brief of respondent in this case. Courts do not ordinarily reach out to seize constitutional questions when the parties to the case have not raised them. But on proper occasion it has been done. In the case of Stierle v. Rohmeyer, 218 Wis. 149, 260 N. W. 647, we did so. The occasion was that a note on which approximately $5,000 was due, secured by a mortgage on real estate and some personal property, had been by the circuit court declared paid and canceled under a statute because the conduct- of the mortgagee on seizing a small amount of personal property under the chattel mortgage also securing the note, did not comply strictly with the terms of the statute prescribing conduct in enforcing a chattel mortgage and the statute provided that upon noncompliance the debt should be adjudged paid. The judgment of the circuit court destroyed practically the entire property of the mortgagee and was palpably unjust. The *150statute relied on to support the destruction was a priori unconstitutional. The court invited briefs upon the constitutionality of the statute in order to protect the mortgagee, in case on due consideration of the constitutional question the statute was determined to be invalid. The business of which the plaintiff is deprived in the instant case is perhaps more valuable than was the note involved in the Stierle Case, supra, and the injustice of the order of the department here involved seems to me as manifest as was the deprivation of the mortgagee in that case of his note. It seems to me that invitation of briefs on the constitutionality of the provisions of the statute relied upon by the department might well be invited here, if adjudication of unconstitutionality is essential to protection of the plaintiff’s inherent personal and property rights. Courts are not required to sit idly by and see parties before them deprived of their inherent constitutional rights merely because their counsel did not assign as error the deprivation of those rights. Courts are not so impotent to prevent confiscation of property rights. It is true that the constitutionality of the act .giving to the Department of Agriculture and Markets jurisdiction to regulate the milk business has been upheld. State ex rel. Finnegan v. Lincoln Dairy Co. 221 Wis. 1, 265 N. W. 197, 265 N. W. 851. But the portions of the act here relied on were not involved in that case. The act contains a severability clause, and the provisions here involved are subject to attack notwithstanding the decision in that case.
A section of the reply brief of counsel for the department is headed: “Perhaps judicial impartiality may require a warning to lower courts.” The suggestion is at least as applicable to the administrative boards of the state as to' trial courts. The department could not rightly complain if the court gave to them the admonition for fairness and justice *151and adherence to accepted principles of law that they would have us give to courts. I think such admonition should be here given.
A motion for a rehearing was denied, with $25 costs, on November 9, 1938.