Frankenthal v. Wisconsin Real Estate Brokers' Bd.

• Citation: 3 Wis.2d 249,89 N.W.2d 825
• Parties: Ella FRANKENTHAL et al., co-partners d/b/a A. Frankenthal & Son, Respondent, v. WISCONSIN REAL ESTATE BROKERS' BOARD, an agency of the State of Wisconsin, Appellant.
• Decision Date: 06 May 1958
• Court: United States State Supreme Court of Wisconsin

Page 825

89 N.W.2d 825

3 Wis.2d 249

Ella FRANKENTHAL et al., co-partners d/b/a A. Frankenthal &amp Son, Respondent, v. WISCONSIN REAL ESTATE BROKERS' BOARD, an agency of the State of Wisconsin, Appellant.

Supreme Court of Wisconsin.

May 6, 1958.

Stewart G. Honeck, Atty. Gen., Harold H. Persons, Asst. Atty. Gen., Roy G. Tulane, Asst. Atty. Gen., Madison, for appellant.

Bernard Berk, Green Bay, Wis., for respondent.

CURRIE, Justice.

The brief filed by the attorney general takes sharp issue with the holding in our original opinion, that the mimeographed instructions issued by the board covering renewal of real estate broker's licenses, constituted a 'rule' within the purview of the Wisconsin Administrative Procedure Act (ch. 227, Stats.). We are far from being persuaded that such determination was error in so far as it related to the change in prior policy embodied in such mimeographed instructions by which it was attempted to require that an inactive partner in a partnership be licensed as a condition to licensing the partnership. It may well be that such mimeographed instructions may have contained other material which would not qualify as a 'rule', but we were not concerned with the same on this appeal.

Sec. 227.01(3), Stats., defines a 'rule' as follows:

"Rule' means a regulation, standard, statement of policy or general order (including the amendment or repeal of any of the foregoing), of general application and having the effect of law, issued by an agency to implement, interpret or make specific legislation enforced or administered by such agency or to govern the organization or procedure of such agency.'

The particular mimeographed instruction under attack in this case was a 'statement of policy * * * of general application and having the effect of law, issued * * * to interpret * * * legislation * * * administered by' the board. It does not fall within any of the exceptions stated in sec. 227.01(4) and (5).

When a party files an application for a license with an administrative agency and the latter points to some announced agency policy of general application as a reason for rejecting the application, such announced policy constitutes a rule, the validity of which the applicant is entitled to have tested in a declaratory action instituted pursuant to sec. 227.05, Stats. However, if the application is rejected because of some ruling which is not applicable generally but is limited to the facts presented by applicant, then the situation is governed by the exception set forth in sec. 227.01(4) ¹ and such a ruling does not constitute a 'rule' under ch. 227, Stats. The facts in the instant case clearly fall within the former category and not the latter.

It does not appear from the facts in Kubista v. State Annuity & Investment Board, 1950, 257 Wis. 359, 43 N.W.2d 470, whether the letter of the agency, which denied the state employee's application to change the plan of payment of an annuity as having been made too late, was based upon an agency ruling of general application. Therefore, we prefer to rest our determination, that a 'rule' was present in the instant...