State ex rel. Thompson v. Nash

• Decision Date: 30 March 1965
• Citation: 133 N.W.2d 769,27 Wis.2d 183
• Parties: STATE ex rel. George THOMPSON, Attorney General, Respondent, v. Harold NASH, as Court Commissioner for Milwaukee County, State of Wisconsin, Appellant.
• Court: Wisconsin Supreme Court

Page 769

133 N.W.2d 769

27 Wis.2d 183

STATE ex rel. George THOMPSON, Attorney General, Respondent, v. Harold NASH, as Court Commissioner for Milwaukee County State of Wisconsin, Appellant.

Supreme Court of Wisconsin.

March 30, 1965.

Godfrey & Kahn, Milwaukee, John M. Byers and James Ward Rector, Jr., Milwaukee, of counsel, for appellant.

Bronson C. La Follette, Atty. Gen., Madison, Harold H. Persons and A. J. Feifarek, Asst. Attys, Gen., for respondent.

CURRIE, Chief Justice.

Three issues are presented by this appeal:

(1) Does sec. 326.12, Stats., authorize the examination of an employee of the Wisconsin Department of Taxation as an incident of a proceeding pending before the Wisconsin Board of Tax Appeals?

(2) Does sec. TA 1.13, 6 Wis.Adm.Code, authorize such an examination before a court commissioner?

(3) Does the circuit court have such supervisory control over the Board of Tax Appeals as to authorize it to direct the holding of such an examination?

Scope of Sec. 326.12, Stats.

Sub. (1) of sec. 326.12, Stats., is entitled, 'When Depositions May be Taken,' and provides:

'In any civil action or proceeding, any party may examine any person, including a party, by deposition upon oral examination at any time before final determination thereof, for the purposes of discovery or for use as evidence in the action or for both purposes.'

The key words for the purpose of this appeal are: 'In any civil action or proceeding.' Clearly, 'civil action' is confined to actions in court. 'Proceeding' is a more ambiguous term, and, standing alone, could refer to a proceeding before an administrative agency as well as one in court. The Attorney General asserts that secs. 260.02 and 260.03, Stats., control the sense in which 'proceeding' is employed in sec. 326.12. Sec. 260.02 provides that remedies in courts of justice are divided into civil actions and special proceedings; sec. 260.03 defines 'action' and then states, 'Every other remedy is a special proceeding.' However, the express wording of sec. 260.02 makes it crystal clear that these two sections are limited to remedies in courts of justice. Furthermore, ch. 260 is Part of Title XXV, Stats., and sec. 260.01 limits the scope of Title XXV to civil actions in courts of record. Sec. 326.12 is found in Title XXX. Thus we cannot resort to the definition of special proceeding in sec. 260.03 as our initial approach to determine the meaning of 'proceeding' as used in sec. 326.12.

If the word 'proceeding' were given a general meaning so as to include court actions as well as administrative proceedings the word 'action' would be superfluous. It is a principle of statutory construction that all words are to be given effect, if possible. The doctrine of ejusdem generis in statutory construction prevents words from becoming superfluous. It provides that where a general word follows a specific word in an enumeration the general word is construed to embrace something similar in nature to the specific word. Sutherland, Statutory Construction (3d ed.), p. 395, sec. 4909. Since 'action' means a specific type of court proceeding the word 'proceeding' in sec. 326.12(1), Stats., is restricted to a proceeding in court. We, therefore, construe 'proceeding' to mean a special proceeding in the sense in which the latter term is employed in sec. 260.03. While the doctrine of ejusdem generis is not to be applied where there is a clearly manifested legislative intent that the general term be given a broader meaning than the doctrine requires, there is no such legislative intent manifested here.

This construction is further substantiated by sub. (3) of sec. 326.12, Stats., which reads:

'After notice is served for taking a deposition, upon motion reasonably made by any party or by the person to be examined, and, upon notice and for good cause shown, the court may make an order that the deposition shall not be taken, or that certain matters shall not be inquired into, or any other order which justice requires to protect the party or witness from annoyance, embarrassment or oppression.' (Italics supplied.)

The words 'the court' necessarily mean the court in which the action or proceeding mentioned in sub. (1) of sec. 326.12, Stats., is pending. If the legislature had intended that sec. 326.12 be applicable to proceedings before administrative agencies it would have specified in sub. (3) the court to which application was to be made for relief under that subsection.

The Attorney General's brief traces the history of sec. 326.12, Stats., and its predecessor statutes back to the Revised Statutes of 1858. From time to time amendments and revisions occurred, and there is nothing in this statutory history which lends any support to appellant's contention that present sec. 326.12 is applicable to a proceeding pending before an administrative agency.

In 1931 and again in 1933 this court utilized its rule making power to amend sec. 326.12, Stats. See 204 Wis., page ix, and 212 Wis., page xix. This action on our part is inconsistent with appellant's theory that the statute is applicable to administrative agency proceedings, since such agencies are creatures of the legislature, apart from the judicial branch of state government. Our rule making power does not extend to prescribing procedures to be followed by administrative agencies. In Gray Well Drilling Co. v. Wisconsin State Board of Health (1953), 263 Wis. 417, 419, 58 N.W.2d 64, 65, we stated:

'The functions of administrative agencies and courts are so different that the rules governing judicial proceedings are not ordinarily applicable to administrative agencies, unless made so by statute. It is not the province of courts to prescribe rules of procedure for administrative bodies, as that function belongs to the legislature. The legislature may either prescribe rules for pleadings and procedure before such bodies, or it may authorize the administrative board or agency to prescribe its own rules.'

See also State ex rel. Wasilewski v. Bd. School Directors (1961), 14 Wis.2d 243, 268, 111 N.W.2d 198.

Appellant places reliance upon sec. 102.17 (1) (bm), Stats., of the Workmen's Compensation Act, which provides:

'(bm) Section 326.12 shall not apply to proceedings under this act except, as to a witness:

'1. Who is beyond reach of the subpoena of a commissioner or examiner; or '2. Who is about to go out of the state, not intending to return in time for the hearing; or

'3. Who is so sick, infirm or aged as to make it probable that he will not be able to attend the hearing; or

'4. Who is a member of the legislature, if any committee of the same or the house of which he is a member, is in session, provided he waives his privilege.'

The inference appellant draws from this provision is that the legislature must have interpreted sec. 326.12, Stats., to be applicable to workmen's compensation proceedings before the industrial commission. We fail to find such argument persuasive because the construction placed on a statute by a different legislature than enacted it is not binding upon the courts. See State ex rel. Larson v. Giessel (1954), 266 Wis. 547, 555, 64 N.W.2d 421, and cases cited. Furthermore, the provision of sec. 102.17(1)(bm), that sec. 326.12 shall not apply to proceedings under the Workmen's Compensation Act except as thereafter provided, may well have been inserted out of a sense of caution on the part of the draftsmen.

The Federal Rules of Civil Procedure for discovery are not applicable to administrative agency proceedings. 1 Davis, Administrative Law Treatise, p. 588, sec. 8.15. See also Okun v. Kastner (D.C.R.I.1941), 1 F.R.D. 599.

This is the first time to our knowledge that the issue of whether sec. 326.12, Stats., is applicable to administrative agency proceedings has been raised in this court. We deem that this indicates that it is the general consensus among the members of the bar of the state that this statute is not so applicable.

For the reasons stated, we determine that sec. 326.12, Stats., standing by itself, has no applications to administrative agency proceedings.

Board's Rule TA 1.13.

The board has adopted the following rule of practice and procedure:

'Except as otherwise provided herein, the practice and procedure before the board shall substantially follow that before the circuit courts of this State.' Sec. TA 1.13, 6 Wis.Adm.Code.

It is appellant's position that once a review proceeding is instituted by a taxpayer before the board the rule authorizes all practice and procedure applicable to a civil action in circuit court, including a discovery examination under sec. 326.12, Stats. The Attorney General, on the other hand, contends the rule only applies to the conduct of the hearing before to the conduct to the procedure that precedes the hearing. We deem that either interpretation is reasonable and tenable. This being so, the proper interpretation of the rule lies within the province of the board, and not the courts.

Neither party cites to us any official interpretation of this rule by the board, except that appellant's brief asserts that it is the customary practice of the board to refuse to issue subponenas for the adverse examination before hearing of department employees. Even if the board were to interpret its rule as applying to practice and procedure in a pending board proceeding prior to the hearing, we determine that the circuit court's judgment properly directed issuance of the writ of prohibition. This is because the rule does not confer subpoena power upon appellant as Court Commissioner, and the subpoena power conferred upon court commissioners by sec. 252.15(1), Stats., is limited to court actions and proceedings. ¹

Although the subpoena ordering the discovery examination was captioned 'STATE OF WISCONSIN, Wisconsin Board of Tax Appeals' it was signed by appellant, 'Court Commissioner in and for Milwaukee County, Wisconsin.' Appellant was not acting as authorized agent of the board...