APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH
A. POWER, Judge, presiding.
MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 17, 1975.
This appeal results from the quashing of a writ of habeas corpus by which relator-appellant, Peter Abeles, a resident of Illinois, sought to challenge the validity of an extradition order returning him to Wisconsin to answer an indictment in that State. Abeles contends (1) the indictment fails to charge a crime under Wisconsin law; (2) a Wisconsin trial judge illegally amended the indictment; and (3) due process required that he be given notice and an opportunity to be heard before the Governor of Illinois ordered his extradition.
On February 28, 1973, a Wisconsin grand jury for Dane County indicted Abeles for the offense of conspiring to restrain trade, in violation of section 133.01(1) and (3), *fn1 Wisconsin Statutes, 1971. Also named in the indictment were Waste Management of Wisconsin, Inc., of which Abeles was a vice president and its general manager in Dane County from 1969 through December 1972, and McKinley Standridge, an employee of Waste Management and its general manager in said county from December 1972 through the date of the indictment. In essence, they were charged with conspiring with others to submit collusive, noncompetitive or rigged bids on solid waste removal contracts in Dane County. Specifically, the indictment in pertinent part charged:
"16. Commencing in the year 1970, the exact date being unknown to the Grand Jury, and continuing thereafter until at least February, 1973, the defendants and co-conspirators named herein did feloniously engage in an unlawful combination and conspiracy intended to restrain competition in the supply or price of an article or commodity which is the subject of trade or commerce in this state.
17. The aforesaid combination and conspiracy consisted of a continuing agreement, understanding and concert of action between the defendants and co-conspirators to submit collusive, noncompetitive or rigged bids on solid waste removal to various public and private entities located in Dane County and to allocate solid waste removal jobs in Dane County among themselves."
Paragraph 18 set forth certain conduct which allegedly was in furtherance of the conspiracy, as follows:
"a. Attempted to secure agreements from other solid waste haulers whereby competitors would not take each others accounts and would call the solid waste hauler then servicing the account to obtain a price to quote and would exchange information about prices to be bid on public jobs which were required to be bid secretly and competitively.
b. During November 1971 and December 1971 continuing through February 1973, the exact dates being unknown to the Grand Jury, agreed not to take each others' accounts and agreed to effectuate the agreement by calling the solid waste hauler then servicing the account to obtain a price to quote.
c. Personally met to designate or attempt to designate the solid waste hauler who was to submit the low bid on public and private contracts being let on secret and on negotiated bid bases and engaged in a similar pattern of conduct by use of the telephone to accomplish or attempt to accomplish the same purpose.
d. Submitted noncompetitive bids and quotes on public and private contracts in agreement with other solid waste haulers bidding or quoting on the same project."
After reciting the effects of the combination and conspiracy, the indictment then concluded:
"The offense charged and the acts stated herein are contrary to sec. 133.01 (1) and (3) of the Wisconsin Statutes in such case made and provided and against the peace and dignity of the State of Wisconsin."
In Wisconsin, Abeles's co-defendants made a motion to dismiss the indictment as failing to charge a crime. They contended that the indictment charged a conspiracy to violate the second sentence of section 133.01 (1) in that they did feloniously combine "to restrain competition in the supply or price of an article or commodity," and they argued that Waste Management provided a service of waste disposal and not a sale of an "article or commodity." The Wisconsin Supreme Court had held that the second sentence did not apply to the rendition of services. (State v. Milwaukee Braves, Inc., (1966), 31 Wis.2d 699, 144 N.W.2d 1, ...