State ex rel. First Nat. Bank of Wisconsin Rapids v. M & I Peoples Bank of Coloma
| Citation | 263 N.W.2d 196,82 Wis.2d 529 |
| Decision Date | 07 March 1978 |
| Docket Number | No. 75-730,75-730 |
| Parties | STATE ex rel. the FIRST NATIONAL BANK OF WISCONSIN RAPIDS, Wisconsin, and Farmers and Merchants Bank of Rudolph, Wisconsin, Appellants, v. M & I PEOPLES BANK OF COLOMA, Wisconsin, Banking Review Board and Erich Mildenberg, Commissioner of Banking, State of Wisconsin, Respondents. |
| Court | United States State Supreme Court of Wisconsin |
Cole, Conway & Brazeau, Wisconsin Rapids, submitted briefs, for appellant, The First National Bank of Wisconsin Rapids; Anderson, Fisher, Shannon, O'Brien & Rice, Stevens Point, of counsel.
James W. Nellen II, David J. Cannon and Michael, Best & Friedrich, Milwaukee, submitted brief, for defendant-respondent, M & I Peoples Bank of Coloma.
Bronson C. La Follette, Atty. Gen., Lowell E. Nass, Asst. Atty. Gen., and Robert A. Patrick, Madison, of counsel, submitted brief, for respondents, Banking Review Bd. and Erich Mildenberg, Commissioner of Banking.
The First National Bank of Wisconsin Rapids, Wisconsin (First National) seeks a determination that it can raise by a complaint in quo warranto issues which could have been resolved in an action for review under the Administrative Procedure Act, ch. 227, Stats. The trial court determined that chapter 227 review was the exclusive remedy available to First National. We affirm.
On January 17, 1973, the M & I Peoples Bank of Coloma, Wisconsin (M & I) made application to the Office of the Commissioner of Banking, pursuant to sec. 221.04(1)(j), Stats., 1 for permission to establish a branch bank facility in the Town of Rome, Wisconsin. First National was informed of M & I's application on March 1, 1973, and First National filed a formal protest.
On March 6, 1973, the Commissioner of Banking and the Banking Review Board approved M & I's branch bank application. First National was notified of this decision by certified mail the following day. Both parties agree that this notification triggered the thirty-day time period within which First National as a party aggrieved by the decision of the Banking Review Board was required to petition for judicial review. 2
On March 13, 1973, First National served upon the Banking Review Board a "notice of appeal" requesting a rehearing before the Board. By letter dated April 6, 1973, the Banking Review Board informed First National that the Board's decision to approve the application was final and that the Board had no authority to rehear the case.
Within thirty days of receiving the letter regarding its "notice of appeal," but more than thirty days after receiving notification of the Board's final decision of March 6, 1973, First National filed a petition in the Dane County Circuit Court for chapter 227 review of the Board's decision. The circuit court dismissed First National's petition for review on the ground that it was not filed within the thirty-day time period required by sec. 227.16(1), Stats. First National did not appeal this order.
On August 13, 1974, First National commenced a Declaratory Judgment action in the Circuit Court for Dane County, seeking to set aside the order by which the Commissioner of Banking and the Banking Review Board had approved M & I's application for a branch bank. The circuit court dismissed the action, holding that chapter 227 review was the exclusive remedy available to First National. First National attempted to appeal this order but the appeal was defective; the matter was never decided on the merits.
The present action against M & I, the Banking Review Board, and the Commissioner of Banking was commenced on April 30, 1975, by First National and Farmers and Merchants Bank of Rudolph, Wisconsin (Farmers). The first cause of action in quo warranto pursuant to sec. 294.04, Stats., 3 seeks a determination that M & I's franchise is null and void. As a second cause of action Farmers seeks a declaratory judgment pursuant to sec. 269.56, Stats., adjudicating the rights of the parties and interpreting the statute under which M & I's application for a branch bank was granted. The following allegations were offered in support of both causes of action: (1) sec. 221.04(1)(j), Stats., under which M & I's application for a branch bank was granted, is unconstitutional because it fails to make adequate provision for notice to interested parties or for an opportunity for interested parties to be heard 4; (2) the approval of M & I's application for a branch bank is void because the statute authorizing the approval is unconstitutional; and (3) even if sec. 221.04(1)(j) were constitutional, M & I's application for a branch bank would be void, because the location allowed by the Banking Commissioner and the Banking Review Board directly contravenes the terms of sec. 221.04(1)(j), Stats.
On December 31, 1975, an order was entered granting the motions of M & I, the Commissioner of Banking and the Banking Review Board to dismiss the complaint brought by First National. The trial court ruled that the issues raised by First National in its complaint in quo warranto could have been raised in a chapter 227 review and that First National's attempt to secure relief outside of that review must be denied.
First National contends that the circuit court erred in dismissing its complaint in quo warranto. In support of that contention First National argues (1) that the legislature cannot be said to have precluded recourse to remedies preserved in the Wisconsin Constitution where it has not done so specifically; (2) that the writ of quo warranto initiates a public proceeding to which the rules governing private proceedings cannot be held applicable; and (3) that constitutionally or jurisdictionally void administrative action may be attacked by means other than a petition for judicial review.
First National notes that Article VII, section 8 of the Wisconsin Constitution specifically vests the circuit courts with quo warranto jurisdiction and that neither the general banking laws nor the administrative procedure act (chapter 227) specifically precludes recourse to quo warranto review.
Article VII, section 8 of the Wisconsin Constitution provides as follows:
5
Sections 221.04(1)(j) and 220.035(3), Stats., read together, provide that an administrative decision approving an application for a branch bank is subject to judicial review under chapter 227. Section 221.04(1)(j) provides that an application for a branch bank by a state chartered bank must be approved by both the Commissioner of Banking and the Banking Review Board, and sec. 220.035(3) provides that "(a)ny final order or determination of the banking review board shall be subject to review in the manner provided in ch. 227."
First National argues that because the legislature did not specifically state in section 220.035(3) or in chapter 227, Stats., that it intended to preclude quo warranto review of decisions of the Banking Review Board, such quo warranto review necessarily remains available. M & I on the other hand notes that sec. 220.035(3), Stats., provides that "(a)ny final order of the banking review board shall be subject to review" pursuant to the provisions of chapter 227. This mandatory language, argues M & I, is clear evidence of a legislative purpose to require parties who seek judicial review of decisions of the Banking Review Board to abide by the provisions of the administrative procedure act.
In a continuing line of cases this court has set forth the general principle that where a statute specifies a method of review, the method so prescribed is exclusive. 6 We have not excluded from the operation of this rule proceedings initiated by the writs of mandamus and certiorari although these writs, like quo warranto, are preserved in Article VII, section 8 of the Wisconsin Constitution and are nowhere specifically excepted from the operation of the administrative procedure act. In Underwood v. Karns, 21 Wis.2d 175, 124 N.W.2d 116 (1963), petitioner, whose motor vehicle operator's license had been suspended pursuant to sec. 344.14, Stats., commenced mandamus proceedings for the purpose of compelling the Commissioner of the Motor Vehicle Department to reinstate his driving privileges. Citing our previous holding in Perkins v. Peacock, 263 Wis. 644, 58 N.W.2d 536 (1953), we reversed the trial court's judgment that the writ should issue:
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