Sawejka v. Morgan, No. 204

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtCONNOR T. HANSEN
Citation56 Wis.2d 70,201 N.W.2d 528
Docket NumberNo. 204
Decision Date31 October 1972
PartiesFrank SAWEJKA et al., Appellants, v. James R. MORGAN, Respondent.

Page 528

201 N.W.2d 528
56 Wis.2d 70
Frank SAWEJKA et al., Appellants,
v.
James R. MORGAN, Respondent.
No. 204.
Supreme Court of Wisconsin.
Oct. 31, 1972.

Niebler & Niebler, John H. Niebler, Menomonee Falls, for appellants.

Robert W. Warren, Atty. Gen., E. Weston Wood, Asst. Atty. Gen., Madison, for respondent.

[56 Wis.2d 73] CONNOR T. HANSEN, Justice.

As we view this appeal, the following issues are presented:

1. Does this court have jurisdiction to entertain this appeal?

2. Is it within the jurisdiction of the tax appeals commission to render a declaratory judgment concerning the applicability and constitutionality of sec. 77.52, Stats., as applied to plaintiffs' business?

3. Does the circuit court, under the provisions of sec. 269.56, Stats., have jurisdiction to render a declaratory judgment concerning the applicability and constitutionality of sec. 77.52, as applied to plaintiffs' business or does sec. 73.01 grant exclusive jurisdiction to the tax appeals commission?

4. If the circuit court has concurrent jurisdiction with the tax appeals commission, did the circuit court abuse its discretion in declining jurisdiction?

Page 530

JURISDICTION OF THIS COURT.

The defendant argues that the plaintiffs should have appealed from the order sustaining the demurrer, and not having done so, this court has no jurisdiction to review the subsequent judgment dismissing the complaint on its merits.

An order sustaining a demurrer is an appealable order as provided in sec. 274.33(3), Stats. This is true whether or not the order sustaining the demurrer allows time to serve an amended complaint. This court, in Dick v. Shawano Municipal Hospital (1969), 43 Wis.2d 430, 433, 168 N.W.2d 824, 825 held:

'. . . The demurrers on behalf of the doctor and hospital were sustained but with an attached provision that plaintiff could file and serve an amended complaint within thirty days. To the extent that these orders were a granting of leave to amend pleadings, they would not be appealable. To the extent that such orders were a final [56 Wis.2d 74] disposition, the sustaining of a demurrer, they are appealable. . . .'

It is only that part of the order allowing the amendment of pleading which is not appealable. 1 Although plaintiffs have appealed from the judgment and not the order sustaining the demurrer, the order can be reviewed under the provisions of sec. 274.34.

Section 274.34, Stats., provides:

'Upon an appeal from a judgment, and upon a writ of error, the supreme court may review any intermediate order which involves the merits and necessarily affects the judgment, appearing upon the record.'

An appeal from the judgment brings up for review the order sustaining the demurrer upon which it is based. 2 The judgment dismissing the action on its merits disposes of the order sustaining the demurrer.

This court has jurisdiction in the instant case.

JURISDICTION OF THE TAX APPEALS COMMISSION.

Section 73.01, Stats., provides, in part:

'(4) Powers and duties defined. (a) Subject to the provisions for judicial review contained in the statutes, the commission shall be the final authority for the hearing and determination of all questions of law and fact arising under the tax laws of the state, except such as may be otherwise expressly designated. . . .

'. . .

'(5) Appeals to commission. (a) Any person who has filed an application for abatement or a claim for refund[56 Wis.2d 75] with the department of revenue or assessor of incomes and who is aggrieved by a determination of the department or assessor denying such application for abatement or claim for refund, may, within 30 days after such denial but not thereafter, file a petition for review of the action of the department or assessor and 4 copies thereof with the clerk of the commission. . . .'

'. . .

'(c) Whenever an appeal is taken from any determination of the secretary of revenue under sub. (4)(a) and no other procedure for appeal is specified in ch. 73 or ch. 76, the person feeling aggrieved

Page 531

by such determination shall file with the clerk of the commission. . . .'

Section 73.01(4), Stats., is a broad grant of authority to the commission to hear and determine all questions of law and fact arising under the tax laws of the state, except as may be otherwise expressly designated. In Neu's Supply Line v. Department of Taxation (1968), 39 Wis.2d 584, 159 N.W.2d 742, this court determined that the enactment of sec. 73.01(6)(c), renumbered sec. 73.01(5)(c) by ch. 276, sec. 333, Laws of 1969, gave the commission jurisdiction to review all question of law and fact arising out of determinations by the secretary of the department of revenue. Previous to the enactment of sec. 73.01(5)(c), the commission's review authority was restricted solely to review of applications for abatement and claims for refund. 3

In the present case we have a situation where the secretary of the department of revenue has determined that the provisions of the selective retail sales' tax (sec. 77.52, Stats.) are applicable to plaintiffs' business. This is a determination which adversely affects the plaintiffs. We are of the opinion that the commission has authority to hold declaratory proceedings arising from such a determination by the secretary of department of revenue.

[56 Wis.2d 76] Section 227.06, Stats. 4 does not, as contended by the state, provide for the institution of a declaratory judgment proceeding before the commission. Section 227.06 says in clear language that the 'agency' may make a declaratory rule with respect to 'any rule or statute enforced by it.' Section 73.01 does not define the duties of the commission to be 'enforcement' of the tax laws of the state. Section 73.03 provides that the 'enforcement' of the tax laws is delegated to the department of revenue.

The tax appeals commission is an independent tribunal exercising quasi-judicial functions. State ex rel. Thompson v. Nash (1965), 27 Wis.2d 183, 195,

133 N.W.2d 769;

Kaukauna v. Department of Taxation, supra

. CONCURRENT JURISDICTION OF CIRCUIT

COURT AND COMMISSION OF TAX APPEALS.

Defendant contends that, as a matter of subject-matter jurisdiction, the commission has exclusive jurisdiction over the review of any question of fact or law arising under the tax laws of Wisconsin. Whereas, the plaintiffs never actually challenge the...

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28 practice notes
  • State v. Olson, No. 84-1537-CR
    • United States
    • Court of Appeals of Wisconsin
    • 21 November 1985
    ...Sec. 227.015(1). Since no administrative proceedings are under way, the exhaustion doctrine cannot apply. Sawejka v. Morgan, 56 Wis.2d 70, 79, 201 N.W.2d 528, 533 (1972). Moreover, the state contended at the trial that "accepted medical use" means FDA approval of a new drug application. Tha......
  • Gross v. Midwest Speedways, Inc., No. 75-551
    • United States
    • United States State Supreme Court of Wisconsin
    • 30 November 1977
    ...4 "An appeal from the judgment brings up for review the order sustaining the demurrer upon which it is based." Sawejka v. Morgan, 56 Wis.2d 70, 74, 201 N.W.2d 528, 530 5 Richie v. Badger State Mut. Casualty Co., 22 Wis.2d 133, 137, 138, 125 N.W.2d 381 (1963). See also: Maxwell v. Kennedy, 5......
  • Maryland-National Capital Park and Planning Commission v. Washington Nat. Arena, MARYLAND-NATIONAL
    • United States
    • Court of Appeals of Maryland
    • 23 May 1978
    ...or, because of their routine nature, are not properly suited for resolution in formal adjudicatory proceedings. See Sawejka v. Morgan, 56 Wis.2d 70, 201 N.W.2d 528, 533 Page 598 Thus, with rare exception, we have insisted that taxpayers pursue their statutory remedies under Article 81 whene......
  • Castelaz v. City of Milwaukee, No. 77-346
    • United States
    • United States State Supreme Court of Wisconsin
    • 4 March 1980
    ...of exhaustion of administrative remedies does not apply where there are no administrative proceedings under way. Sawejka v. Morgan, 56 Wis.2d 70, 79, 201 N.W.2d 528 (1972); State v. Dairyland Power Cooperative, 52 Wis.2d 45, 54, 187 N.W.2d 878 (1971); See, Beal v. First Fed. Sav. & Loan Ass......
  • Request a trial to view additional results
27 cases
  • State v. Olson, No. 84-1537-CR
    • United States
    • Court of Appeals of Wisconsin
    • 21 November 1985
    ...Sec. 227.015(1). Since no administrative proceedings are under way, the exhaustion doctrine cannot apply. Sawejka v. Morgan, 56 Wis.2d 70, 79, 201 N.W.2d 528, 533 (1972). Moreover, the state contended at the trial that "accepted medical use" means FDA approval of a new drug application. Tha......
  • Gross v. Midwest Speedways, Inc., No. 75-551
    • United States
    • United States State Supreme Court of Wisconsin
    • 30 November 1977
    ...4 "An appeal from the judgment brings up for review the order sustaining the demurrer upon which it is based." Sawejka v. Morgan, 56 Wis.2d 70, 74, 201 N.W.2d 528, 530 5 Richie v. Badger State Mut. Casualty Co., 22 Wis.2d 133, 137, 138, 125 N.W.2d 381 (1963). See also: Maxwell v. Kennedy, 5......
  • Maryland-National Capital Park and Planning Commission v. Washington Nat. Arena, MARYLAND-NATIONAL
    • United States
    • Court of Appeals of Maryland
    • 23 May 1978
    ...or, because of their routine nature, are not properly suited for resolution in formal adjudicatory proceedings. See Sawejka v. Morgan, 56 Wis.2d 70, 201 N.W.2d 528, 533 Page 598 Thus, with rare exception, we have insisted that taxpayers pursue their statutory remedies under Article 81 whene......
  • Castelaz v. City of Milwaukee, No. 77-346
    • United States
    • United States State Supreme Court of Wisconsin
    • 4 March 1980
    ...of exhaustion of administrative remedies does not apply where there are no administrative proceedings under way. Sawejka v. Morgan, 56 Wis.2d 70, 79, 201 N.W.2d 528 (1972); State v. Dairyland Power Cooperative, 52 Wis.2d 45, 54, 187 N.W.2d 878 (1971); See, Beal v. First Fed. Sav. & Loan Ass......
  • Request a trial to view additional results

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