State ex rel. Progreso Dev. Co. v. Grootemaat

• Decision Date: 23 June 1930
• Citation: 202 Wis. 155,231 N.W. 628
• Parties: STATE EX REL. PROGRESO DEVELOPMENT CO. v. GROOTEMAAT ET AL., REAL ESTATE BROKERS' BOARD.
• Court: Wisconsin Supreme Court

202 Wis. 155

231 N.W. 628

STATE EX REL. PROGRESO DEVELOPMENT CO.

v.GROOTEMAAT ET AL., REAL ESTATE BROKERS' BOARD.

Supreme Court of Wisconsin.

June 23, 1930.

Appeal from a judgment of the Circuit Court for Dane County; August C. Hoppmann, Judge.

Proceeding by the State, on the relation of the Progreso Development Company, for a writ of certiorari to review a determination of E. H. Grootemaat and others, constituting the Wisconsin Real Estate Brokers' Board, denying relator's application for renewal of its real estate broker's license. From a judgment affirming the board's finding, relator appeals.--[By Editorial Staff.]

Reversed with directions.

Action begun March 15, 1930; judgment entered April 15, 1930. Real estate broker's license. The relator is a corporation organized under the laws of the state of Texas, duly licensed as a foreign corporation to transact business in the state of Wisconsin. The individuals named as respondents constitute the Wisconsin Real Estate Brokers' Board, organized under chapter 231 of the Laws of 1929 (chapter 136, Wis. Stats. 1929 [sections 136.01 to 136.16]), hereinafter referred to as the board.

The relator had been licensed as a real estate broker from October, 1927, down to and including December 31, 1929, and had been carrying on the business of a broker during that period; the annual licenses having been issued by the real estate brokers' board then in existence of which board the defendants are the successors. On December 2, 1929, the relator filed with the defendant board an application for a renewal of its license for the year 1930. The application was upon the regular printed forms furnished by the board. The required fees were paid. Additional questions were propounded by the board to which the relator submitted answers including copies of documents, instruments, agreements, and contract such as were used by the relator in its business as a real estate broker. A hearing was held on the 18th and 19th days of December, and upon that hearing the board found that the applicant had “failed to furnish this board with satisfactory proof of its trustworthiness and competency to transact the business of a real estate broker in the state of Wisconsin in such manner as to safeguard the interest of the public,” and denied the application of the relator.

This action was begun by petition in the circuit court for Dane county. In the petition the facts hereinbefore stated were set out in greater detail, and it was further alleged: “There is no evidence submitted to the defendants * * * warranting the defendants in denying relator's application for a renewal license for the year 1930 as a real estate broker, and that the act of the defendants in denying said application is irregular, erroneous, illegal, void, unreasonable, arbitrary, unwarranted, without authority and contrary to the evidence and contrary to law.” Upon the petition a writ of certiorari was issued to which the board made return. The matter was heard in circuit court upon the return. The circuit court affirmed the findings of the board, and from the judgment affirming the findings the relator appeals.Harvey C. Hartwig, Miller, Mack & Fairchild, and J. G. Hardgrove, all of Milwaukee, for appellant.

John W. Reynolds, Atty. Gen., Frank W. Kuehl, Asst. Atty. Gen., and William Doll, Sp. Asst. Atty. Gen., for respondents.

ROSENBERRY, C. J.

A determination of the issues raised upon this appeal requires a consideration of the so-called Wisconsin Real Estate Brokers' Law, being chapter 136, Wis. Stats. 1929. The material parts of the law are printed in the margin.¹

[1] The act specifically provides that a corporation may be a broker. The relator, although a foreign corporation having been licensed to do business in the state of Wisconsin, is entitled to the same privileges and rights in that respect as a domestic corporation. While the state may exclude foreign corporations, when once admitted they have the same rights and are entitled to the protection of the constitutional guaranties the same as is a domestic corporation. Maryland Casualty Co. v. Industrial Commission, 198 Wis. 202, 221 N. W. 747, 223 N. W. 444;Thronson v. Universal Mfg. Co., 164 Wis. 44, 159 N. W. 575.

[2] The only qualifications prescribed by the act are that the licensee shall be trustworthy and competent. “Competency” is defined by subsection (2) of section 136.05. The issues in this case present no question in regard to the competency of the applicant. The term “trustworthy” is not defined in the act. What the Legislature had in mind as constituting trustworthiness is indicated to some extent by the provisions of section 136.08 (printed in the margin), wherein is set out the matters which constitute grounds for revocation of a license. Certainly no applicant who was found to have done any of the things which constitute grounds for revocation could be held to be trustworthy. The Legislature, however, did not limit the board to consideration of those matters in determining what constitutes trustworthiness. It becomes necessary for the court therefore to determine what power or authority was conferred upon the board in that respect. In this connection specific attention is called to section 136.09, which provides for a public hearing upon notice with an opportunity to be heard and requires that the testimony presented and proceedings had in such hearing shall be taken in shorthand and preserved as the record of the board and requires the board to make its findings and determination thereon and send a copy to the interested party.

We have recently had occasion to consider the term “findings” as used in the Workmen's Compensation Act. Tesch v. Industrial Commission (Wis.) 229 N. W. 194. The findings are required to be upon the testimony presented and the proceedings had upon the hearing and are obviously meant to be findings of fact. Upon these findings the board was required to make its determination or conclusion. The conclusion reached by the board in this case was that “the applicant has failed to furnish this board with satisfactory proof of its trustworthiness and competency.” This manifestly is not a finding of fact but the board's determination. The findings of fact are extended, and we shall not set them out in extenso.

By way of introduction to its findings the board inserted a paragraph entitled “The Board's Position,” in which it is said:

“We wish to make it clear in this order that the action of this board in denying the above application must not be construed as passing upon the lower Rio Grande Valley, as a declaration of the commission that the projects of the lower Rio Grande Valley are not legitimate, nor as an act to discriminate against the State of Texas. This board has made the same careful inquiry relating to all projects located in states outside of Wisconsin and has gone so far as to make close inquiry of all Wisconsin brokers who were selling Wisconsin land of any questionable character. The board has uniformly denied applications of several organizations to sell land in the State of Florida during the Florida boom, lands also located in the State of California and in various other states.”

“This board also has in mind that the granting of a license to a person who proposes to sell Texas land in the State of Wisconsin particularly after the exhaustive hearings which have been conducted by the board, carries with it a commendation of the project which is to be offered for sale to Wisconsin residents. It virtually amounts to giving the project a stamp of approval and the board must be very hesitant in granting such application where it appears that such project is extremely speculative and, if in any reasonable degree doubtful in this respect should not grant the application.”

The board makes an extended quotation from the case entitled Durham Tropical Land Corp. v. Wis. Real Estate Brokers' Board, 192 Wis. 396, 211 N. W. 292, 294.

The findings are under eight heads: (1) Purpose for which land is to be sold. (2) Methods of sale. Under this head is the following finding: “The land is to be offered for sale by the applicant as an investment opportunity, applicant making promises of an annual net return after the first four years of 10 per cent upon the investment of the purchaser. This feature, however, is not contained in the written instruments which are signed by the applicant and given to purchasers but is a matter of sales talk.” (3) Price at which land is to be offered for sale. (4) The Texas boom. (5) Experimental stage, under which heading is the following: “When we consider that the land of the applicant is to be sold for the average purchase price of $1,250.00 per acre in a project which must be regarded as experimental, this board in view of the high duty which it owes to the public interest must exercise great care and caution before granting permission to sell such land to Wisconsin residents for investment purposes.” (6) Care and attention. (7) Vendor Lien Notes. (8) Water supply. Upon these findings, which contain nothing in any way reflecting upon the character or business methods of the applicant or its officers, the board bases its determination as to the trustworthiness and competency of the applicant. From the findings it is clear that the board placed a very broad interpretation upon that part of the act which defines its powers. It did this very largely, if not wholly, in reliance upon the decision of this court in the Durham Tropical Land Corp. Case, supra. However, we see nothing in that decision which warrants the conclusion that the board reached in this case. In that case the applicant had refused to furnish a financial statement which had been called for under the provisions of what now appears as subsection (e) of section 136.05 (1). The board was of the opinion that the refusal of the applicant to furnish evidence of its financial status constituted grounds for denying its...