(concurring). I concur in that part of the opinion which holds that the plaintiff lacks capacity to sue but I cannot agree with the majority in holding that the complaint states a cause of action.
This is not because I fail to recognize that the case is embraced in the language of State ex rel. Attorney General v. Thekan (1924), 184 Wis. 42, 198 N. W. 729, and State ex rel. Cowie v. La Crosse Theaters Co. (1939), 232 Wis. 153, 286 N. W. 707. It is because I do not think the resort to injunction to by-pass the criminal law with its presumption of the defendant’s innocence and its trial by jury is a proper procedure or one to be resorted to except perhaps in cases where the protection of society by prosecution for crime has clearly failed. I do not regard the present case to be so extreme and do not think that the doctrine of the Thekan and La Crosse Theaters Co. Cases should be extended to control cases which can be distinguished from them in material respects. The present action is such a one, in that the legislature has not declared the alleged violation here to be a public nuisance, as it had in Thekan, nor are the acts which *95the defendant’s employees are accused of performing of such a nature that they cannot lawfully be performed as in La Crosse Theaters Co. Here the act is all right; the vice is only that the actor is unlicensed, which is not coextensive with lack of skill but may be for many a reason under the statute, — even that he does not happen to have $35. (Sec. 153.05, Stats.)
Contemplating the possibility that the law might be broken, what did the legislature do? By sec. 153.11, Stats., it prescribed punishment for a first offense by a fine from $50 to $200 or imprisonment for not more than three months, or both; and for a subsequent offense a fine of from $200 to $500 or imprisonment of not less than three nor more than six months, or both.
“The law is well settled that equitable relief will not be granted where the legal remedy is adequate. . . .
“ ‘Any attempt of equity to restrain purely criminal acts would be a denial to the defendant of his right to a trial by jury.
“A court of equity ordinarily will not interfere by injunction to restrain the commission of a criminal act or to restrain the violation of public or penal statutes:” State ex rel. Fairchild v. Wisconsin Auto. Trades Asso. (1949), 254 Wis. 398, 402, 37 N. W. (2d) 98, citing authorities.
To this the state replies that the remedy under the criminal statutes is inadequate for two reasons, (1) that the penalties are insufficient to prevent repetition of the offense and (2) thát the difficulties of successful prosecution are prohibitive. No past convictions followed by a resumption of forbidden practices are alleged in the complaint nor were they presented in argument. The relator does not think the penalty of a $500 fine and six months in jail is sufficient to deter offenders. I may think it is, but the thoughts of either are immaterial. What counts is the thought of the legislature. It said that those penalties were appropriate to the offense. There is no experience to the contrary and without *96allegations based on experience that the penalties do not deter, the unsupported conclusion, that the legal remedy is inadequate, is not entitled to weight.
Then there is the contention, advanced in the argument, of the difficulty of prosecution under the criminal statutes. The complaint alleges that defendant conducts its business on the ground floor of premises in the principal business district of the city of Milwaukee and alleges that the offenses in question constitute the daily practice of said defendant and are repeated and continuous violations of the statutes, that defendant has so offended constantly for more than eight years, and that the unlawful actions make up the greater portion of its business. This being true, as the demurrer requires us to accept, it would not seem that an industrious detective would experience great difficulty in securing evidence upon which a competent prosecutor would obtain a conviction. Since the criminal statutes do not appear ever to have been invoked, I am not much impressed by the reasons given for not using them to support the state’s claim that there is no adequate remedy at law. The state also argued that the defendant is a corporation and therefore cannot be imprisoned, wherefore, they say, another inadequacy of the legal remedy appears. But as a corporation, if it is a domestic one and habitually violates the law in the conduct of its business, its charter may be forfeited and if it is a foreign corporation its license to do business in the state may be revoked. The state need not complain that it cannot imprison when it has the power to inflict death or exile.
The course the state has adopted in this action contemplates proof of guilt sufficient to satisfy a judge (not a jury) by a preponderance of the evidence (not beyond a reasonable doubt), and, for a second offense so proved, punishment not as directed by statute for the crime but as selected by the judge for contempt of court. I cannot find in the complaint justification for so drastic a process. On the ground *97that the complaint did not state facts sufficient to constitute a cause of action, as well as on the ground that plaintiff lacked capacity to sue, the demurrer should have been sustained.
I am authorized to say that Mr. Justice Hughes and Mr. Justice Gehl join in this opinion.