Town of Ashwaubenon v. Public Service Commission
| Decision Date | 06 February 1962 |
| Citation | 15 Wis.2d 445,113 N.W.2d 412 |
| Parties | TOWN OF ASHWAUBENON, Respondent, v. PUBLIC SERVICE COMMISSION, Appellant. |
| Court | Wisconsin Supreme Court |
The town of Ashwaubenon enacted an ordinance establishing a bulkhead line along the west bank of the Fox river. As required by sec. 30.11, Stats., the ordinance was subject to the approval of the public service commission. The town applied to the commission for approval. The commission denied it.
The town filed a petition for review in the circuit court for Dane county. Fort Howard Paper Company, which had intervened before the commission in support of the approval of the ordinance, filed a notice of appearance, supporting the petition for review.
The commission moved to dismiss the petition for review, asserting that the order involved is not subject to review, that the town has no standing to challenge it, and that the petition, upon its face, does not state facts sufficient to show that the town is aggrieved and directly affected by the order. On April 10, 1961, the circuit court denied the motion and the commission has appealed.
John W. Reynolds, Atty. Gen., William E. Torkelson, Chief Counsel, Public Service Commission, Madison, for appellant.
Davis, Soquet, Cherney & Ross, Green Bay, Everson, Whitney, O'Melia & Everson, Green Bay, of counsel, for respondent.
If the order of the circuit court denying the motion to dismiss is not appealable, this court has no jurisdiction to decide whether the order was correct or erroneous, and it is our duty to dismiss the appeal. 1
The town sought judicial review of the commission's order by following the procedure prescribed in sec. 227.16, Stats., for reviews authorized by sec. 227.15. The procedure and scope of review are prescribed by secs. 227.16 to 227.20, inclusive. The remedy is referred to therein as 'proceedings for review' and 'proceeding for review.' The procedure is entirely different from that prescribed for a civil action.
Sec. 227.15, Stats., provides that the administrative decisions to which it refers 'shall be subject to judicial review as provided in this chapter * * *.' Sec. 227.21, entitled appeals,' provides as follows:
No other provision of ch. 227, Stats., provides for an appeal from a determination at any stage of a proceeding for review.
Although sec. 227.19(3), Stats., authorizes a motion to dismiss based upon one of the grounds asserted by the commission in its motion, there is no provision for an appeal from an order denying the motion. Thus we have a unique remedy prescribed by a series of statutory provisions, containing specific authority for an appeal from a final judgment, but not authorizing an appeal at any other stage. The maxim 'expressio unius est exclusio alterius' seems applicable.
We have examined the statutes relating generally to appeals to discover whether they expressly or by clear implication authorize an appeal from an order denying a motion to dismiss a proceeding for review, notwithstanding the presence in sec. 227.21, Stats., of a provision for an appeal from a final judgment and the absence of any provision for appeal from any order.
Sec. 274.09, Stats., provides:
'(1) Appeals to the supreme court may be taken from the circuit courts unless expressly denied and also from the county courts except where express provision is made for an appeal to the circuit court and from any court of record having civil jurisdiction when no other court of appeal is provided. Appeals may be taken from interlocutory judgments.
'(2) Said right of appeal applies to final orders and judgments rendered upon appeals from or reviews of the proceedings of tribunals, boards and commissions, and to final judgments and orders whether rendered in actions or in special proceedings without regard to whether the action or proceeding involves new or old rights, remedies or proceedings and whether or not the right to appeal is given by the statute which creates the right, remedy or proceeding.'
The foregoing section adds no more to sec. 227.21, Stats., than authority to appeal from a final order, as well as a judgment, rendered upon review of the proceedings of a commission. Had the circuit court granted the motion to dismiss, the order would have been final, and appealable under sec. 274.09(2) if not under sec. 227.21. But an order denying a motion to dismiss is not final. 2
A proceeding for review under secs. 227.15 to 227.20, Stats., inclusive, is a special proceeding. 3 Sec. 274.33(2) authorizes an appeal from a final order affecting a substantial right made in special proceedings, whether or not the right to appeal is given by the statute which created the proceeding. But the order here was not final.
It was suggested on oral argument that the order appealed from decided a question of jurisdiction and is therefore appealable because an order which 'decides a question of jurisdiction' is one of the appealable orders listed in sec. 274.33(3), Stats.
The order appealed from does not decide a challenge to jurisdiction over the person. As recently pointed out, 4
'* * * The context of the order of this court which added this type of order to the list of appealable orders suggests that the court was mainly concerned with orders deciding a question of the court's jurisdiction over the person of a defendant.'
We have not held that an order deciding a challenge to jurisdiction of subject matter was thereby rendered appealable.
Sec. 274.33(3), Stats., lists orders which are normally entered as intermediate orders in a civil action. Sub. (3) does not contain any language similar to that in secs. 274.09 and 274.33(2) providing that the specified appeal is authorized whether or not the right to appeal is given by the statute which created the proceeding involved. Many of the orders listed in sec. 274.33(3) relate to matters which are foreign to a proceeding for review: provisional remedy, attachment, new trial, demurrer, and summary judgment. We find no implication that the amendment which added an order which decides a question of jurisdiction to the list of appealable orders in sec. 274.33(3) was intended to apply to a proceeding for review under ch. 227.
Several earlier decisions require comment and qualification.
In 1944, an appeal was taken to this court from an order overruling a demurrer to a petition for review of an administrative decision. 5 The order was reversed. There was no discussion of the appealability of the order, and we are of the opinion that the appeal should not have been entertained.
In 1947, this court affirmed a judgment of the circuit court reversing an administrative decision, and affirmed other orders entered in the course of the proceedings. 6 The agency had appealed from the judgment and the orders. This court acquired its jurisdiction to review the intermediate order by appeal from the judgment. Any implication that it acquired jurisdiction by the appeals from the orders is erroneous and is withdrawn.
The same statement is made concerning two other cases where there were appeals from both a judgment and an intermediate order in a proceeding for review under ch. 227, Stats. 7
In 1959, we reversed an order of the circuit court sustaining a demurrer to a petition for review (in form of a...
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