State v. Lamping
| Decision Date | 03 October 1967 |
| Citation | 153 N.W.2d 23,36 Wis.2d 328 |
| Parties | STATE of Wisconsin, Appellant, v. F. Lorenz LAMPING, Respondent. |
| Court | Wisconsin Supreme Court |
Bronson C. La Follette, Atty., Gen., Robert B. McConnell, Asst. Atty., Gen., Madison, for appellant.
Orville S. Luckenbach, Shawano, for respondent.
These issues are presented by the instant appeal:
(1) Does the circuit court's memorandum decision constitute an appealable order?
(2) Did the circuit court have jurisdiction to receive additional evidence?
(3) On remand to the circuit court, will that court be authorized to remand to the commission for the purpose of permitting defendant to adduce further evidence?
(4) Is there credible and competent evidence in the record to support the Commission's finding that the point was a floating bog?
While the parties have not raised the issue of whether the circuit court's memorandum decision constitutes an appealable order, the parties cannot be failure to raise the issue confer jurisdiction upon this court to review an order that is not appealable. 2
The instant enforcement proceeding was instituted in circuit court pursuant to sec. 30.03(4)(a), Stats. 3 This statute incorporates by specific reference sec. 111.07(7). The effect of such specific reference is the same is if the incorporated section was set forth verbatim and at length therein. 4
Sec. 111.07(7), Stats., provides not only for the enforcement of an order but for the judicial review of an order. The only appeal from the court's judgment and decree in such proceeding shall be to this court. Thus, there is no ch. 227 judicial review via sec. 196.41. Since a review pursuant to secs. 227.15 to 227.20, inclusive, has been held to be a special proceeding, 5 it is only consistent to hold that a sec. 30.03(4)(a) enforcement proceeding is a special proceeding.
'A final order affecting a substantial right made in special proceedings' is expressly made appealable by sec. 274.33(2) Stats.
A final order in a special proceeding is one which determines and disposes finally of the proceeding--one which, so long as it stands, precludes any further steps therein. 6 Here, the memorandum decision achieved the requisite finality.
This court has held that the final ruling of a court, even if incorporated in a memorandum decision, constitutes an order, 7 although it is preferable for the trial court to to draft and enter a separate order. Thus there is a final order in a special proceeding, which has affected a substantial right. The order is appealable.
As previously pointed out herein, the provisions of sec. 111.07(7), Stats., are made applicable to an enforcement proceeding, such as the instant proceeding, by sec. 30.03(4)(a). Sec. 111.07(7) provides in part as follows:
This court has clearly held that sec. 111.07(7), Stats., does not authorize the taking of additional evidence by the circuit court. That court's power is limited to granting a party leave to adduce additional evidence before the Commission. The circuit court must confine itself to the record in a sec. 111.07(7) enforcement proceeding.
As stated in Wisconsin Employment Relations Board v. Allis-Chalmers W. Union: 8
* * *'
The circuit court misconstrued sec. 111.07(7), Stats., as authorizing the adducing of additional evidence before the court rather than the Commission. As a result a substantial amount of evidence was adduced before the court in the enforcement proceeding. This court has held that a trial court exceeded its jurisdiction under sec. 111.07(7) by having received into evidence in an enforcement proceeding a single affidavit. 9
Because the circuit court exceeded its jurisdiction in permitting additional evidence to be offered before it, its order grounded in part on this evidence
must be reversed and the cause remanded.
Authority of Circuit Court of Remand to
Sec 111.07(7), Stats., expressly authorizes the circuit court in its discretion to grant leave for the adducing of additional evidence before the Commission 'where such evidence appears to be material and reasonable cause is shown for failure to have adduced such evidence in the hearing * * *.'
The attorney general contends that defendant is barred from being accorded the right to adduce further evidence before the Commission because no request to be permitted to do so was made to the circuit court prior to the scheduled hearing in that court. He contends that sec. 111.07(7), Stats., should be interpreted as embodying the same requirement as sec. 227.19(1). The latter statute provides that application to present additional evidence before the agency must be made 'before the date set for trial' 10
Prior to the enactment of the Wisconsin Administrative Procedure Act (ch. 227), sec. 111.07(8), Stats., provided for a judicial review which was to be conducted in the same manner as sec. 111.07(7). 11 Sec. 111.07(8) was repealed in 1943 as one of the subsections intended to be superseded by ch. 227. 12 It was recreated to read, as it does today:
'The order of the board shall also be subject to review in the manner provided in Chapter 227, except that the place of review shall be the circuit court of the county in which the appellant or any party resides or transacts business.'
Ch. 227, Stats., was drafted by the Committee on Administrative Tribunals of the State Bar Association, of which Mr. Ralph Hoyt was chairman. The committee found it necessary to change over some 70 separate statutes prescribing methods of review. Mr. E. E. Brossard, then Revisor of the Wisconsin Statutes, wrote Mr. Hoyt a letter in 1943 suggesting that the committee's proposed bill had overlooked sec. 111.07(7). On april 3, 1943, Mr. Hoyt wrote Mr. Brossard that sec. 111.07(7) was not to be affected by ch. 227, because sec. 111.07(7) concerned enforcement proceedings and not judicial review. 13
Sec. 111.07(7), Stats., says nothing about a party having to make a request for leave to present additional evidence prior to the hearing. It simply states that, '* * * The court may, in its discretion, grant leave * * *.'
Although, generally, a statute covering the subject matter of a former statute repeals it, it is a question of legislative intent. 14 Here, the intent was clear. Even though this provides an exception to the uniformity of judicial review of administrative actions, it was a intentional exception.
In Wisconsin Employment Relations Board v. Allis-Chalmers W. Union Case, 15 the party made no request for leave to present additional evidence until during the enforcement proceeding. (Appellant's brief, p. 12, citing pp. 250--52 of the record as set forth in appellant's appendix at pp. 240--42). The appellants there made the same argument as to timeliness as the appellants do here. This court rejected that argument when it remanded the case in the following fashion:
16
Therefore, the circuit court upon remand of the cause pursuant to our mandate herein is authorized to proceed in similar fashion. 17 Under the facts of this record we determine that it would not be an abuse of discretion for the circuit court to hold that reasonable cause exists for defendant's failure to have adduced additional evidence before the Commission.
Inasmuch as it will lie within the discretion of the circuit court whether to remand to the Commission for the adducement of further evidence, there exists the possibility that the circuit court may refuse defendant's request so to do. Because of this contingency we deem it advisable to pass on the issue of whether there exists sufficient credible and competent evidence adduced before the Commission's examiner to sustain the finding of floating bog.
Sec. 111.07(7), Stats., provides:
'* * * The findings of fact made by the board, if supported by credible and competent evidence in the record, shall be conclusive. * * *'
The Commission expressly found that the Lamping point was a...
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