(dissenting).
The majority opinion states the facts which brought this action to this court and concludes that the plaintiffs have already had a complete adjudication in the State courts of all of the issues they raise here and thus are now barred from litigating these issues by the doctrine of res judicata. Our dissent is prompted by the belief that the issues raised in this action were not finally adjudicated in the State action, and that plaintiffs are entitled to an adjudication of these issues.
In the complaint which plaintiffs filed in the Circuit court of Milwaukee County, Wisconsin, plaintiffs alleged that subchapter 3 of Chap. 111, Wis.Stats.1947 was void in that it was in conflict with the Wisconsin Constitution, the Federal Constitution and the Labor Management Relations Act.
The judgment of the Circuit Court adjudicated each of the issues raised in the plaintiffs’ complaint in that action. This judgment was then appealed to the Supreme Court of the State of Wisconsin, and that court issued an opinion and affirmed the judgment of the Circuit Court.1 The majority opinion herein holds that the Circuit Court judgment, affirmed by the Wisconsin Supreme Court, is conclusive to bar plaintiffs in this action.
I question first the assertion that the judgment of the Circuit Court of Milwaukee County is a bar in this action. When a party appeals from a judgment of a Circuit Court of, Wisconsin to the Wisconsin Supreme Court, and the Circuit Court’s judgment is affirmed, is the judgment which then determines the rights of the parties to that action the judgment of the Circuit Court? The Wisconsin Supreme Court has said that it is not.
In the case of Ean v. Chicago, Milwaukee & St. Paul Ry. Co., 101 Wis. 166, 76 N.W. 329, the Supreme Court considered the effect of its affirmance of a Circuit Court judgment. In that instance, the Supreme Court had affirmed a judgment of an action commenced in the superior court of Milwaukee County. After the appeal was determined, the cause was remanded. Then, within one year of the date of the entry of the judgment in the superior court, that court entered an order vacating its judgment and permitted the plaintiff to plead further. The order purported to be made under the provisions of R.S.1878, sec. 2832. The provisions of this section, according to the Supreme Court opinion, .were “substantially to the effect that the court or judge may, in his discretion, and upon such terms as may be just, at any time within one year after notice thereof relieve a party from a judgment against him ‘through his mistake, inadvertence, surprise or excusable neglect.’ ” The court held that the section applied only to judgments of the Circuit Court and “not to those which by operation of law have become judgments of this court.” The court clearly held that when a mandate is remanded and the lower court enters a final judgment in accordance therewith, “the judgment so entered is, in legal effect, the judgment of this court. It is none the less true in cases where there is an affirmance than when some other directions are given.” In other words, the court noted that after an appeal, the judgment in any case is the judgment of the Supreme Court and that *353the legal consequences of that judgment are not necessarily identical as those which attach to the lower court judgment. To the same effect see Crowns v. Forest Land Co., 100 Wis. 554, 76 N.W. 613 and Hoan v. Journal Co., 241 Wis. 483, 6 N.W.2d 185. Thus we see that when a judgment of the Circuit Court is considered by the Supreme Court and the Supreme Court renders an opinion as to the propriety of that judgment, the Supreme Court has, in legal effect, issued a new judgment which becomes the judgment of that case. Therefore, it is only the judgment of the Supreme Court which can be pleaded in bar under the doctrine of res judicata.
The full faith and credit clause of the United States Constitution requires that in any particular instance a Federal Court must give to a judgment of a State Court the same legal effect as the courts of that state would give to it. Covington v. First National Bank, 198 U.S. 100, 25 S.Ct. 562, 49 L.Ed. 963; Jarrard v. Southeastern Shipbuilding Corporation, 5 Cir., 163 F.2d 960. In the instant case, we must consider the judgment which is pleaded in bar in the light in which it should be considered by a Circuit Court of Wisconsin had the plaintiffs commenced this action in such a court. We think that in striving to determine what legal effect the courts of Wisconsin would give to the judgment now pleaded in bar, it is proper that we look to the opinion which the Supreme Court rendered at the time it handed down its judgment in that case. In so doing we recognize that there is a distinction between a judgment or findings of fact and an opinion. 49 C.J.S., Judgments, § 4. But we believe that since an opinion explains the basis in law upon which the judgment is rendered, it is a proper guide in determining what the legal effect of that judgment should be. It is proper for a Federal Court to examine the opinion of a State Court to see what issues were determined. San Jose Land & Water Co. v. San Jose Ranch Co., 189 U.S. 177, 23 S.Ct. 487, 47 L.Ed. 765; Gross v. United States Mortgage Co., 108 U.S. 477, 2 S.Ct. 940, 27 L.Ed. 795; Carson v. Three States Lumber Co., C.C., 142 F. 893, affirmed 6 Cir., 149 F. 377.
The majority opinion herein dismisses the Supreme Court opinion with the observation that it contains “some equivocal language which furnishes some foundation for the contention of plaintiffs herein that all of the issues were not squarely met.” They pass over language which seems to us clearly to indicate that the Supreme Court-felt it should not pass on certain constitutional questions until a factual situation was presented to the Court at a later date. The majority opinion places complete reliance on the words “Judgment Affirmed”, which appear at the end of the opinion.
If the Supreme Court had merely affirmed without opinion there would be no dissent, and if the Supreme Court’s opinion had discussed only one of the constitutional questions and remained silent on the other questions raised by plaintiffs, we would have reluctantly concurred.
The clear language of the Supreme Court’s opinion on its position on certain constitutional questions requires, in my mind, the same consideration and treatment that was given by a distinguished court in the case of Moran Towing & Transportation Co., Inc., v. Navigazione Libera Triestina, S. A., 2 Cir., 92 F.2d 37. We think the Second Circuit Court of Appeals was there confronted with the same problem we face here. The Moran Company had furnished tugboat service and a tug master as a pilot for the N. L. T. under a contract which provided: “‘When the captain of any tug engaged in the service of assisting a vessel which is making use of her own propelling power goes on board said vessel or any other licensed pilot goes on board said vessel, it is understood and agreed that said tugboat captain or any other licensed pilot becomes a servant of the owner in respect to the giving of orders to any of the tugs engaged in the assisting service and in respect to the handling of said vessel and neither the tugs or their owners or agents shall be liable for any damage resulting therefrom.’ ”
During the maneuvering of the vessel, property of The Robins Company was damaged and it sued Moran and N. L. T. in the New York State Courts for damages. The *354trial coürt found negligence on the part of the pilot; directed judgment for The Robins Company against Moran, and dismissed the complaint against N. L. T. The trial judge filed an opinion, Robins Dry Dock & Repair Co. v. Navigazione Libera Triestina, S. A., 154 Misc. 788, 279 N.Y.S. 257, which was made part of the judgment roll in the State Court in which he indicated that he adjudged that Moran could not divest itself of liability to a third person by means of such a contractual provision and also that the contractual provision would not relieve Moran even as to N.- L. T. because the tug master who performed the pilot duties was not a licensed pilot such as the clause called for.
An appeal was taken from this judgment to the New York Appellate Division which affirmed the judgment without opinion. 235 App.Div. 841, 257 N.Y.S. 908. Then an appeal was taken to the Court of Appeals which also affirmed the judgment and issued an opinion. 261 N.Y. 455, 185 N.E. 698. Thereafter, Moran paid the judgment and brought action in Federal Court against N. L. T. to recover the amount of the judgment and its disbursements, claiming that N. L. T. was an indemnitor under the terms of the “pilotage clause”. The trial court dismissed the libel on the ground that the issue of liability for the acts of the pilot had been determined by the State Court and could not again be litigated. This judgment was appealed to the Circuit Court of Appeals, and it is the opinion of this court, composed of Circuit Judges Learned Hand, Augustus N. Hand and Harrie B. Chase (the opinion was written by Augustus Hand) which we cite in support of our position. The court looked to the language of the State Court opinions to determine what it was that the trial court and then the Court of Appeals had decided. It concluded that while the Court of Appeals had affirmed the judgment of the trial court, the language which the Court of Appeals used in its opinion indicated that it did not agree with the total adjudication of the trial court. This conclusion was based upon the assumption that it was proper to look to the opinion of the State Courts to determine what was there decided. The propriety of this assumption was discussed by the court
“The appellee, however, cites Russell, v. Russell, 3 Cir., 134 F. 840, and Oglesby v. Attrill, 20 F. 570 (Wallace, J., in U. S. Circuit Court), as holding that an unconditional affirmance of a judgment by an appellate court, though rendered on entirely different grounds or only on some of the grounds upon which the decision of the lower court was rendered, leaves the questions determined by the lower court as res judicata in all respects. To treat as controlling the findings of a trial court when the appellate court upsets or disregards them and renders a decision of affirmance on different grounds furnishes parties to other litigations affected by the decision a false guide. There seems to be a paucity of authority on this question, and with all due respect we cannot subscribe to such a formal treatment of the situation. * * * ”
We, too, feel it is not proper to deprive parties of substantial rights by “a formal treatment of the situation”.
In the Moran case the Circuit Court of Appeals did not hesitate to look to the opinion of the State Appellate Court to determine that the judgment of the appellate court was different than that of the State trial court. So in the instant case we look to the opinion of the Wisconsin Supreme Court which, to us, indicates clearly that its judgment was different than that rendered by the circuit court.
Let us now examine the opinion of the Wisconsin Supreme Court in this case in the light of the Moran case. The plaintiff public utility employees and their union claimed they were aggrieved by an act of the Wisconsin legislature and commenced an action for declaratory relief, alleging that the act of the legislature was violative of their rights under the Constitutions of the United States and State of Wisconsin and repugnant to the Labor Management Act of ' 1947. The defendants demurred and the circuit court sustained the demurrer and entered judgment finding against plaintiffs on each of these grounds. The matter was appealed to the Wisconsin Supreme Court and that court, after reciting the facts, began its opinion with the following language:
*355“We are first confronted with a fundamental rule of law that the constitutionality of a statute is not to be determined as a hypothetical question or upon assumed facts or unreal possibilities. The court should not anticipate a question of constitutional law before it is to be applied to the precise facts before it and should not attempt to test the operation of a law under every conceivable set of circumstances. This rule is illustrated by the following quotations from prior decisions of this court:
“ ‘Sound judicial policy precludes the court from considering the question of the constitutionality of a legislative act unless a decision respecting its validity is essential to the determination of some controversy calling for judicial solution.’ State ex rel. Rosenhein v. Frear, 138 Wis. 173, [176], 119 N.W. 894, 895.
“ ‘The legislature, subj ect to the Constitutions of the United States and of this state, is supreme in its particular field, and this court will not declare laws unconstitutional unless it clearly appears beyond reasonable doubt that they contravene constitutional provisions. See Payne v. Racine, 217 Wis. 550, 259 N.W. 437; Petition of Breidenbach, 214 Wis. 54, 252 N.W. 366; Doering v. Swoboda, 214 Wis. 481, 253 N. W. 657; State ex rel. Carnation Milk Products Co. v. Emery, 178 Wis. 147, 189 N.W. 564, and the numerous earlier decisions cited therein.’ State ex rel. Attorney General v. Wisconsin Constructors, 222 Wis. 279 [284], 268 N.W. 238, 240.
“ ‘A constitutional question will not be decided until it is brought directly in issue by the facts involved in the instant case.’ Democrat Printing Co. v. Zimmerman, 245 Wis. 406 [411], 14 N.W.2d 428, 430.
“Therefore, upon this record, we can only determine whether or not ch. 414, Laws of 1947, is a valid and constitutional enactment. The plaintiffs contend that it is not because it contains unlawful delegations of legislative and judicial powers. * * * ” [225 Wis. 154, 38 N.W.2d 694]
The court’s opinion proceeds to a discussion of the questions of delegation of legislative and judicial powers (neither of which issues is involved in these proceedings), decides the issue of delegation of legislative powers, and continues with the following language: “Upon the record here there is no question of the delegation of judicial power. This question and other contentions and arguments of the plaintiffs can be, disposed of best when a case involving a particular question is presented and fully argued. If any person or agency, in the enforcement of the law, should attempt to usurp unlawful legislative or judicial powers there is an adequate remedy.”
The Wisconsin Court’s opinion in effect says: We will not decide the principal constitutional objections raised by the plaintiffs. We will only decide the question of whether the statute in question involves an unlawful delegation. The door, however, is not closed on your grievances. At a more propitious time and place, when a matured fact situation has developed, you will have your day in court.
Abbreviating the court’s own language, it said: “The court should not anticipate a question of constitutional law before it is to be applied to the precise facts before it and should not attempt to test the operation of a law under every conceivable set of circumstances. * * * Therefore, upon this record, we can only determine whether or not (the statute) is a valid and constitutional enactment. * * * This question (delegation of judicial power) and other contentions and arguments of the plaintiffs can be disposed of best when a case involving a particular question is presented and fully argued. * * * ” Such language would never have been used by a court which did not conclude that a final disposition of the issues again raised in these proceedings was open to a future determination such as sought here.
We must also remember that the action in the State court was one for declaratory judgment. A judgment resulting from a declaratory judgment action is not res judicata to issues which were not actually determined. Restatement of Judgments, Sec. 77, Comment b. states:
“Effect of declaratory judgment on subsequent controversies. The effect of a declaratory judgment in subsequent contro*356versies between the parties depends upon the scope of the declaration of rights made by the judgment. As to matters declared by the judgment, the parties are precluded from relitigating them; as to matters not declared by the judgment, although a declaration might have been made as to them, the parties are not so precluded.
“Where a plaintiff seeks a declaratory judgment, he is not seeking to enforce a claim against the defendant. He is seeking rather á judicial declaration as to the existence and effect of a relation between him and the defendant The effect of the judgment, therefore, unlike a judgment for the payment of money, is not to merge a cause of action in the judgment or to bar it. The effect of a declaratory judgment is rather to make res judicata the rriatiers declared by the judgment, thus precluding the parties to the litigation from relitigating these matters.”
The majority opinion places great reliance on the case of Angel v. Bullington, 330 U.S. 183, 67 S.Ct. 657, 91 L.Ed. 832. I feel that the Angel case is clearly distinguishable from the case at bar. The majority opinion in the Angel case held that the North Carolina Supreme Court adjudicated all of the federal issues involved when it ruled that it had no jurisdiction to consider the claim of Bullington. In other words, when the North Carolina Court ruled that a state statute removed from North Carolina courts jurisdiction to consider Bullington’s claim, there was implicit in that ruling the determination that the state statute was constitutional. I think it is impossible to find in the Wisconsin Supreme Court’s statement, that certain issues are not before it because a proper factual situation has not developed, any implicit ruling that the Wisconsin statute is not in conflict with the Federal Constitution or the Labor Management Relations Act.
Another clear basis of distinction rests in the fact that the action before the Wisconsin State court, unlike the Angel case, was one seeking a declaratory judgment, and that a declaratory judgment, as noted in Restatement of Judgments, sec. 77, is conclusive only as to matters actually determined and not as to those which might have been determined.
The plaintiffs in the instant case went first to the Wisconsin courts to obtain a ruling on the validity of the Wisconsin statute. The Wisconsin Supreme Court, in my opinion, denied them a complete ruling at that time, but held open the door of the court for their return at some later date when the factual situation warranted such a return. Following this a strike occurred and the challenged statute was put into operation. Plaintiffs then came to this court and asked for a ruling on the validity of the statute. This we have denied them by the application of res judicata. The doctrine of res judicata is a wholesome one, but I do not believe it was ever intended to work such a result.
The decision of this court has not only refused them that ruling, but by holding that the Wisconsin decision was res judicata on all the issues raised here, are we not then closing the door to the Wisconsin courts that the Supreme Court of the state held open? There seems substantial authority for the proposition that this court’s ruling on the question of res judicata, if it becomes final, will, in turn, be res judicata on that issue and thus bar the plaintiffs from ever returning to the Wisconsin court. Freeman on Judgments, 5th Ed., p. 1498.
. United Gas, Coke & Chemical Workers v. Wisconsin Emp. Relations Board, 255 Wis. 154, 38 N.W.2d 692.