The complaint charged that defendant Ralph Peck on September 21, 1940, engaged in the business and occupation of a journeyman painter without obtaining a license therefor as provided in sec. 101.40, Stats. There was a plea of not guilty, and thereafter the matter was tried to the court upon a stipulation of facts to the effect that on the date above mentioned defendant actually engaged in the occupation of journeyman painter without a license; that prior to that date defendant had applied for a license and had been refused; that before this application he had taken an examination under the provisions of sec. 101.40; that defendant was thirty-four years of age, not involved in a strike or lockout, and not a disabled veteran; that the amount of compensation to which defendant would have been entitled exceeded $25. On the agreed facts the court found defendant guilty and certified to this court the following questions:
"(1) Should the defendant Ralph Peck have been found guilty under section 101.40, statutes of the state of Wisconsin, upon the facts stipulated in the record?
"(2) Do the facts stipulated in the record sustain and warrant the finding of guilt of defendant as made by the court?
"(3) Is section 101.40, statutes of the state of Wisconsin, constitutional?
"(4) Is section 101.40, statutes of the state of Wisconsin, constitutional as applied to this defendant?" *Page 597 The questions certified for answer by the municipal court in this case involved the question whether sec. 101.40, Stats., was constitutional and valid. Mr. Justice FOWLER, Mr. Justice FRITZ, Mr. Justice FAIRCHILD, and Mr. Justice MARTIN are of the view that sec. 101.40 is unconstitutional and void. Mr. Chief Justice ROSENBERRY and Mr. Justice MARTIN are of the view that sec. 101.40 is unconstitutional 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to the preparation of a formal opinion in the matter it has come to the attention of the court that the legislature has repealed sec. 101.40, it is considered unnecessary and inadvisable to give an extended statement of the conflicting views of the court concerning the validity of this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.
Each question certified by the court is answered "No." The record is remanded to the municipal court.