State ex rel. Beierle v. Civil Service Commission of City of Cudahy

• Decision Date: 07 January 1969
• Citation: 41 Wis.2d 213,163 N.W.2d 606
• Parties: STATE of Wisconsin ex rel. Clarence B. .BEIERLE, Appellant, v. CIVIL SERVICE COMMISSION OF the CITY OF CUDAHY, Anthony Luljak, Chairman, and James Mattingly, Ralph Lewandowski, John Gronski and Howard Sobocinski, as members thereof, Respondents.
• Court: Wisconsin Supreme Court

Page 606

163 N.W.2d 606

41 Wis.2d 213

STATE of Wisconsin ex rel. Clarence B. .BEIERLE, Appellant, v. CIVIL SERVICE COMMISSION OF the CITY OF CUDAHY, Anthony Luljak, Chairman, and James Mattingly, Ralph Lewandowski, John Gronski and Howard Sobocinski, as members thereof, Respondents.

Supreme Court of Wisconsin.

Jan. 7, 1969.

David F. Kopplin, Milwaukee, for appellant.

James E. Boren, Cudahy, for respondents.

HALLOWS, Chief Justice.

While Beierle argues three grounds for reversal, all of them merge into the question of whether the interpretation by the Civil Service Commission of the city of Cudahy of sec. 12.04(7) of the Cudahy city code was reasonable. The material facts are not in dispute. The appellant sold his electrical business to Phillips, partly for cash and a promissory note of $4,000 payable in two instalments within two years. While he continued to finish work in process through employees, this work does not seem to have been the basis for his discharge.

The acts complained of consist in making eight applications for electrical permits in the city of Milwaukee as a master electrician on behalf of Phillips because Phillips was not qualified to do so. These applications were made between August 31, 1965, and March 3, 1966. The appellant testified he went to Milwaukee to apply for these permits but he did not work on the jobs, do any wiring, go to the job sites, or receive any compensation. His interest was solely to see Phillips get the jobs so Phillips would be able to pay the appellant the deferred purchase price of the business. In making these applications, the appellant was required to represent he was a fulltime employee or acting in a supervisory capacity for Phillips. Thus in making these applications, the appellant either intended to obtain them through fraud or misrepresentation or he intended to perform his duties as a master electrician for Phillips. The commission apparently took the view the appellant was in fact acting for Phillips and also that certain payments made contrary to the sales contract represented something more than payments on accounts receivable which were not sold to Phillips.

The scope of review by writ of certiorari of an administrative agency's action has been the subject of many recent pronouncements by this court. In respect to the sufficiency of the evidence, we said in State ex rel. Ball v. McPhee (1959), 6 Wis.2d 190, 94 N.W.2d 711, the review was limited to whether the evidence was such that the agency might 'reasonably' make the order or determination in question. This somewhat nebulous test of reasonableness has been followed in subsequent cases. ¹ In Wasilewski, we said in effect that findings are conclusive if in any reasonable view the evidence sustains them. This rule is of some years standing. State ex rel. A. Hynek & Sons Co. v. Board of Appeals (1954), 267 Wis. 309, (rehearing 315a), 64 N.W.2d 741, 66 N.W.2d 623; Wisconsin Labor R. Board v. Fred Rueping L. Co. (1938), 228 Wis. 473, 493, 279 N.W. 673, 117 A.L.R. 398.

In Copland v. Department of Taxation (1962), 16 Wis.2d 543, 114 N.W.2d 858, in respect to the test of substantial evidence as set forth for a review of an administrative agency in ch. 227, Stats., we equated reasonableness with substantial evidence in view of the whole record with such relevant evidence as a reasonable man might accept as adequate to support a conclusion. See also Stacy v. Ashland County Dept. of Public Welfare (1968), 39 Wis.2d 595, 159 N.W.2d 630; Gateway City Transfer Co. v. Public Service Comm. (1948), 253 Wis. 397, 34 N.W.2d 238; Town of Ashwaubenon v. State Highway Comm. (1962), 17 Wis.2d 120, 115 N.W.2d 498.

In applying the substantial-evidence test, this court in Stacy v. Ashland County Dept. of Public Welfare, supra, after observing the test of sufficiency of the evidence was no different under the writ of certiorari than under sec. 227, Stats., stated this court 'must evaluate the evidence, which has been determined to be credible and accepted by the trier of the fact to see if its sufficiency reaches that degree of substantiality in terms of burden of proof to support a finding or of convincing power that reasonable men acting reasonably might reach the decision the administrative agency did.'

The Cudahy city code in sec. 12.04(7) provide...