Lester M. Robbins was charged in the district court, Milwaukee county, with unlawfully engaging in the occupation of master painter without obtaining a license therefor contrary to the provisions of sec. 101.40, Stats. After first entering a plea of guilty, the court permitted withdrawal of the plea and the entry of a written plea of not guilty upon the ground that sec. 101.40 is unconstitutional. The district court found defendant guilty and imposed a fine of $25. Defendant appealed to the municipal court of Milwaukee county, and there entered a demurrer to the information setting forth in detail the alleged unconstitutional features of the statute. On October 10, 1940, the municipal court overruled the demurrer and set the case for a trial de novo on October 18, 1940. On that date defendant was arraigned and pleaded not guilty, a jury trial was waived, and the matter was tried upon stipulation of facts. The stipulation is to the effect that in the month of November, 1939, in Milwaukee county, defendant engaged in business as a master and *Page 595 contracting painter without first having secured a license as required by sec. 101.40, and that neither defendant nor his employment was within any of the exemptions or exceptions from licensing provided by sec. 101.40. It was further stipulated that in November, 1939, or shortly prior thereto, defendant was instructed to procure a license and did not do so. The trial court found the defendant guilty as charged and assessed a fine of $25 and costs with the usual alternative provision for committal to the house of correction. Defendant appeals from the judgment of conviction. This appeal involves the constitutionality of sec. 101.40, Stats. Mr. Justice FOWLER, Mr. Justice FRITZ, Mr. Justice FAIRCHILD, and Mr. Justice MARTIN are of the opinion that sec. 101.40 is unconstitutional and void. Mr. Chief Justice ROSENBERRY and Mr. Justice WICKHEM are of the view that the law is constitutional and valid. Since prior to the preparation of a formal opinion in the matter it has come to the attention of the court that the legislature has repealed sec. 101.40, it is considered unnecessary and inadvisable to give an extended statement of the conflicting views of the court concerning the validity of this law.
Judgment reversed, and cause remanded with directions to discharge the defendant. *Page 596