(dissenting). We respectfully dissent from the opinion of the majority and conclude there is neither federal preemption of the Wisconsin law nor is the remedy sought by the state of Wisconsin in this action of a nature that the enforcement of the trial court's order will burden interstate commerce in the sense proscribed by the constitution. The majority opinion admits that the operations of baseball complained of clearly violate the well established standards of business behavior prescribed by Wisconsin antitrust statutes. Moreover, the majority opinion specifically subscribes to the trial court's findings that these specific violations of law by organized baseball have caused substantial injury to business activity in Wisconsin.
We are thus confronted with activities carried on by a business enterprise that, in the absence of some im*733munity, are clearly unlawful. The majority finds that there is such immunity and, alternatively, bases that conclusion upon two reasons: (1) That the silence of Congress evinces a congressional policy that baseball shall be free of all control, state as well as federal; and (2) that any state regulation of baseball is ipso facto a burden on interstate commerce, since, by its nature, professional baseball is an area of commerce that can be controlled, if at all, only by uniform rules that in a practical sense can be promulgated by Congress alone. It is noteworthy that the opinion of the majority does not reflect unanimity of its reasons but only the result.
The argument of the majority is that the failure of the Congress to act in the face of the importunings of the United States supreme court is equivalent to a positive declaration of congressional will that baseball should not only be unregulated federally but should also be free of state control. The acceptance of federal preemption under the circumstances of this case appears to be contrary to the past pronouncements of this court. In the recent case of Chicago & N. W. R. Co. v. La Follette (1965), 27 Wis. (2d) 505, 512, 135 N. W. (2d) 269, we restated the rule which this court has long followed and which follows the decisions of the United States supreme court on the subject — that “before pre-emption will be found to exist, that intention of Congress must be clearly manifested.”
In Welch Co. v. New Hampshire (1939), 306 U. S. 79, 85, 59 Sup. Ct. 438, 83 L. Ed. 500, the United States supreme court stated:
“ ‘In construing federal statutes enacted under the power conferred by the commerce clause of the Constitution ... it should never be held that Congress intends to supersede or suspend the exercise of the reserved powers of a State, even where that may be done, unless, and except so far as, its purpose to do so is clearly manifested.’ ”
*734That being the standard where specific legislation is involved, can there be a less rigorous criterion for the preemption of state police power where our only clue to congressional intent is nonaction? Can we conclude that congressional silence amounts to a manifestation that it is the national policy and the congressional will that baseball be free of all regulation? We think not.1 The majority opinion subscribes to the view “that the silence of Congress in this context sufficiently amounts to an expression of such policy.” No authority is quoted for this proposition, nor does a review of the briefs of the appellants reveal the citation of any prior adjudications which hold that we may predicate a policy of preemption upon silence. The most that possibly can be concluded from the failure of Congress to enact some regulation of baseball is that it reveals a congressional complacency with its own policy of nonaction and inertia. Even that is a strained interpretation since the record shows that there have been several unsuccessful attempts to enact congressional regulation which would clarify the attitude of Congress toward the regulation of organized baseball.
The supreme court of the United States in Federal Baseball Club v. National League (1922), 259 U. S. 200, 42 Sup. Ct. 465, 66 L. Ed. 898, held that baseball was not in interstate commerce and, therefore, not subject to the federal antitrust laws. Subsequent decisions make it abundantly clear that the rationale of Federal Baseball is invalid and that, in fact, baseball is in interstate commerce. However, the United States supreme court, relying upon stare decisis, has continued to extend the umbrella of protection from federal antitrust legislation over the baseball business. Congressional inaction can be construed as acquiescence in the court’s interpretation, *735but this in no way constitutes an expression of intent that Congress shall exclusively occupy the field or that there shall be no control whatsoever. As was pointed out in Graves v. New York ex rel. O’Keefe (1939), 306 U. S. 466, footnote 1, 479, 59 Sup. Ct. 595, 83 L. Ed. 927:
“The failure of Congress to regulate interstate commerce has generally been taken to signify a Congressional purpose to leave undisturbed the authority of the states to make regulations affecting the commerce in matters of peculiarly local concern, but to withhold from them authority to make regulations affecting those phases of it which, because of the need of a national uniformity, demand that their regulation, if any, be prescribed by a single authority.”
The majority opinion, moreover, hypothesizes a conflict between state and federal legislation where none exists in fact. In Huron Cement Co. v. Detroit (1960), 362 U. S. 440, 443, 80 Sup. Ct. 813, 4 L. Ed. (2d) 852, the court said:
“ ‘The intent to supersede the exercise by the State of its police power as to matters not covered by the Federal legislation is not to be inferred from the mere fact that Congress has seen fit to circumscribe its regulation and to occupy a limited field. In other words, such intent is not to be implied unless the act of Congress fairly interpreted is in actual conflict with the law of the State.’ ”
The United States supreme court in the same case referred to its “teaching . . . which enjoin seeking out conflicts between state and federal regulation where none clearly exists.” Huron Cement Co. v. Detroit, supra, page 446.
The majority opinion by construing the silence of Congress as conflicting with the state’s policy as expressed in its antitrust laws appears to disregard this admonition.
It seems clear that the proposition that the majority asserts is a novel one without prior foundation in con*736stitutional law and is an express repudiation of the doctrine that there shall be preemption or a superseding of state regulations only by express legislation.
A more difficult problem is presented by the second facet or alternate basis of the majority’s opinion. The majority states the proposition, “that the structure of the leagues, their decisions as to their own membership, location of franchises, and things of that nature, require uniformity of regulation, and since organized baseball operates widely in interstate commerce, the regulation, if there is to be any, must be prescribed by Congress.” It is generally stated:
“Absent congressional action, the familiar test is that of uniformity versus locality: if a case falls within an area in commerce thought to demand a uniform national rule, state action is struck down. If the activity is one of predominantly local interest, state action is sustained. More accurately, the question is whether the state interest is outweighed by a national interest in the unhampered operation of interstate commerce.” California v. Zook (1949), 336 U. S. 725, 728, 69 Sup. Ct. 841, 93 L. Ed. 1005.
This argument partakes of the theory that irrespective of congressional action or inaction, there is a certain sphere of interstate commerce within which a state may not operate at all. This area is one in which congressional intent is immaterial. Our federal system envisages the free flow of commerce, in the various meanings of that phrase, from one state to another unhampered by state action. Hence, if our federal political union is to thrive, certain aspects of interstate commerce cannot be interfered with, irrespective of congressional will or the claims of state police power. The majority opinion, as an alternative to the argument based on the manifestation of congressional will, follows this line of reasoning. The majority’s approach, however, overlooks the recognized necessity of balancing national interest versus *737local interest as such interests are juxtaposed in a given situation. As the United States supreme court pointed out in California v. Thompson (1941), 313 U. S. 109, 113, 61 Sup. Ct. 930, 85 L. Ed. 1219:
“The Commerce Clause, in conferring on Congress power to regulate commerce, did not wholly withdraw from the states the power to regulate matters of local concern with respect to which Congress has not exercised its power, even though the regulation affects interstate commerce.”
That case cites numerous instances where the United States supreme court has upheld the exercise of state police power which clearly regulated some phase of interstate commerce. In the same opinion, the United States supreme court, speaking through Mr. Justice STONE, stated:
“It has been recognized that there are matters of local concern, the regulation of which unavoidably involves some regulation of interstate commerce, but which because of their local character and their number and diversity may never be adequately dealt with by Congress. Because of their local character, also, there is wide scope for local regulation without impairing the uniformity of control of the national commerce in matters of national concern and without materially obstructing the free flow- of commerce which were the principal objects sought to be secured by the Commerce Clause. Notwithstanding the Commerce Clause, such regulation in the absence of Congressional action has, for the most part, been left to the states by the decisions of this Court, subject only to other applicable constitutional restraints.” California v. Thompson, supra, page 113.
The court concluded its discussion upholding a California police regulation by stating:
“In any case, until Congress undertakes its regulation, we can find no adequate basis for saying that the Constitution, interpreted as a working instrument of government, has foreclosed regulation ... by local authority.”
*738The majority opinion points out the cavalier disregard of either law or reasonableness in the exercise of the baseball monopoly. We cannot conclude that the state is less able to resist this treatment of its legitimate interests by organized baseball than it is to prevent the entrance into its boundaries of contagious disease, although such disease is carried in interstate commerce. Morgan’s Steamship Co. v. Louisiana (1886), 118 U. S. 455, 6 Sup. Ct. 1114, 30 L. Ed. 237; Compagnie Francaise v. Board of Health (1902), 186 U. S. 380, 22 Sup. Ct. 811, 46 L. Ed. 1209. The record, as the majority indicates, strongly ^suggests that the defendant gave little heed to the Milwaukee community and to the injury which the move of the Braves out of Wisconsin would cause. Organized baseball is engaged in a boycott of Wisconsin business. The argument is posed that, although this injury be admitted, for the state of Wisconsin by its decree either to order the Braves team to stay here or to direct the National League to furnish an expansion team would burden interstate commerce, which, if it is to be burdened at all, can be done uniformly only by congressional action. It appears, however, that in view of the particular circumstances of this case, the paramount interest in regulating baseball is a Wisconsin interest, not a national interest. As stated in California v. Thompson, supra, page 115:
“Fraudulent or unconscionable conduct of those so engaged which is injurious to their patrons, is peculiarly a subject of local concern and the appropriate subject of local regulation.”
The National League and the Milwaukee Braves, Inc., saw fit to come within the jurisdiction of the Wisconsin courts, and for thirteen years continued to play its home games in Milwaukee. It is not contradicted that as a result of the Braves’ presence in Wisconsin, transportation facilities were expanded, municipal services were augmented, and industries of various types were created *739or expanded to support organized baseball in Milwaukee. The record shows, and the findings of the court are not disputed by the majority, that the National League baseball team was a profitable enterprise during the time that;-it was located in Wisconsin. Admitting that the order of the trial court to either return the Braves to Milwaukee or, in the alternative, have the National League furnish an expansion team within a reasonable length of time is to prevent a boycott of Wisconsin commerce, does that factor ipso facto constitute a burden on interstate commerce ?
We think not. It is well settled that a state may exercise its police powers through such devices as the antitrust laws even though an incidental benefit may be to local commerce, providing that the law or its operation do not discriminate against interstate commerce or disrupt its required uniformity. Huron Cement Co. v. Detroit (1960), 362 U. S. 440, 448, 80 Sup. Ct. 813, 4 L. Ed. (2d) 852; Head v. New Mexico Board (1963), 374 U. S. 424, 83 Sup. Ct. 1759, 10 L. Ed. (2d) 983; Cooley v. Board of Wardens (1851), 53 U. S. (12 How.) 299, 13 L. Ed. 996. There is no intimation by the appellant that the Wisconsin antitrust laws are applied in a discriminatory manner. It is equally clear that state antitrust laws can be enforced concurrently with, or in the absence of, federal regulation. Watson v. Buck (1941), 313 U. S. 387, 403, 61 Sup. Ct. 962, 85 L. Ed. 1416; The Commerce Clause and State Antitrust Regulation, 61 Columbia Law Review (1961), p. 1469. Here, the Wisconsin antitrust laws concededly are being applied in exactly the same fashion that they would be applied to a wholly domestic corporation.
Clearly, the order of the trial court imposes some restrictions upon baseball’s conduct in interstate commerce, but this dissenting opinion concludes that the valid interests of the state of Wisconsin, which are entitled to protection, outweigh the restrictive effect on interstate commerce that might result from the enforcement *740of Wisconsin’s laws. Under such circumstances, the preemption argument or overriding-national-interest argument should be rejected and the state law sustained. See Constitutional Law, West Publishing Company (1963), 310, 319, reprinting Pre-emption as a Preferential Ground: A New Canon of Construction, 12 Stanford Law Review (1959), 208.
The violation of Wisconsin’s antitrust laws is apparent and the wrong that has been done to Wisconsin and its citizens is substantial. As the trial court determined in its findings, the unbridled exercise of monopoly by the Braves baseball team will deprive the public and various businesses located in Milwaukee of substantial economic and recreational benefits,2 and as the court concluded as a matter of law the conduct of the Braves ball club constitutes a violation of Wisconsin’s antitrust statutes. The majority in arriving at its conclusion concede the antitrust violation, if the application of the statute is not otherwise barred.
The trial court’s order directs that these wrongs shall be rectified by providing, in the alternative, that the baseball team shall either return to Milwaukee or that an expansion team be furnished by the league.
This would not appear to be an onerous burden upon baseball. The direction is merely to return to Milwaukee, where operations have been profitable and where, as a matter of fact, the trial court has found that continued profitable operations are feasible. The trial court also found, as a matter of fact, that expansion of the league is feasible. What the trial court has directed is not the curtailment or burdening of interstate commerce, but its emancipation from the monopolistic practices of baseball. It has directed that baseball, in its dealings with a community where it has prospered for thirteen years, act reasonably. All that is prohibited is the *741unreasonable use of monopoly power. It can hardly be argued that it is in the national interest to preserve a monopoly that may with impunity flout the laws of the state of Wisconsin and injure its citizens and economy. The appellant argues that the affirmance of the trial court’s ruling will undermine the very essence of organized baseball. It may well be that baseball as presently operated, above the law, should in some respects be modified, but we conclude that organized baseball underestimates the viability of the national pastime and exaggerates the potential state control that can emanate from an affirmance of the trial court’s order. Only in the unique case, as the facts reveal here, where a baseball club in collusion with others unreasonably determines to boycott in toto an area previously served would the relief sought by the state of Wisconsin be possible. It is not contended that an antitrust or other regulatory action could be brought where there had not been a prior offering of regular baseball exhibitions.
We are not convinced that for baseball to be successful it must be unlawful. Admittedly, the judgment of the Braves’ management (whose wisdom was severely challenged in the course of trial) to leave Milwaukee or for the league to totally abandon the area would be superseded by the affirmance of the order of the trial court. This, however, is a usual result where relief is sought under an antitrust statute. Management decisions are superseded if the compelling public interest so requires. The balance that must be struck in determining whether a state policy burdens interstate commerce is not dependent upon the effect it may have upon the particular item of commerce, but rather upon its impact on the national interest in preserving that commerce in its unregulated form.3 It is difficult to see that any national interest is served by preserving a flow of commerce that at will *742violates the laws of one of the states and the legitimate interests of its citizens.
The fact that Congress has not acted would appear to be persuasive reason for the state to act. As pointed out in Parker v. Brown (1943), 317 U. S. 341, 362, 63 Sup. Ct. 307, 87 L. Ed. 315, state regulations of interstate commerce are to be upheld “because upon a consideration of all the relevant facts and circumstances it appears that the matter is one which may appropriately be regulated in the interest of the safety, health and well-being of local communities, and which, because of its local character, and the practical difficulties involved, may never be adequately dealt with by Congress.” (Emphasis supplied.)
Baseball has heretofore successfully evaded all control. In Federal Baseball, supra, it contended, and successfully persuaded the United States supreme court, that it was purely in intrastate commerce and therefore immune from federal regulation. By a process of legal ossification it manages to preserve this immunity, while at the same time it asserts that it is in interstate commerce and therefore immune from state control. We are unwilling to ascribe to our legal system the impotency that the representatives of baseball would confer upon it.
The record shows that the Braves organization is no innocent, that has unexpectedly run afoul of an unreasonable state’s efforts to preserve its share of a monopoly. The record is rife with evidence that the corporation acted surreptitiously and deceitfully in an effort to prevent a timely exercise of Wisconsin’s jurisdiction. The officers of the club represented that no change in location was contemplated when, in fact, the negotiations for that change were substantially complete. The contract with Atlanta contained an exculpatory clause allowing the team to terminate its contract with Atlanta if litigation should force it to remain in Milwaukee. It is apparent that the baseball club contemplated the likelihood *743of being called to task for its conduct. The defendants have not sustained the burden of showing that Wisconsin’s reasonable enforcement of its antitrust law constituted a prohibited burden upon interstate commerce.
It is difficult to see what national interest is preserved by immunizing this organization from the consequences of its violation of state law. Where, as here, the Congress has failed to act to protect the states from monopolistic predators, it is apparent that in the balance the salutary effect of law enforcement upon local welfare outweighs any spurious national interest that allegedly exists in preserving an unlawful interstate conspiracy that claims freedom from all legal restraints and sanctions.
We would affirm.
See Federal Trade Comm. v. Dean Foods Co. (1966), 384 U. S. 597, 86 Sup. Ct. 1738, 16 L. Ed. (2d) 802; Helvering v. HalloCk (1940), 309 U. S. 106, 119-121, 60 Sup. Ct. 444, 84 L. Ed. 604.
One witness testified that the annual economic benefit to Milwaukee amounted to $18,000,000.
Parker v. Brown (1943), 317 U. S. 341, 362, 63 Sup. Ct. 307, 87 L. Ed. 315.