Town of Ashwaubenon v. State Highway Commission

• Citation: 17 Wis.2d 120,115 N.W.2d 498
• Parties: TOWN OF ASHWAUBENON, Respondent, v. STATE HIGHWAY COMMISSION of Wisconsin, Appellant.
• Decision Date: 05 June 1962
• Court: Wisconsin Supreme Court

Page 498

115 N.W.2d 498

17 Wis.2d 120

TOWN OF ASHWAUBENON, Respondent, v. STATE HIGHWAY COMMISSION of Wisconsin, Appellant.

Supreme Court of Wisconsin.

June 5, 1962.

This is an action by the respondent, town of Ashwaubenon, a municipal corporation, to review under ch. 227, Stats., a decision of the appellant, state highway commission. The decision of the commission involved the relocation under sec. 84.025(3), Stats., of state arterial highway 41.

In 1955, the legislature by sec. 84.025, Stats., created a state arterial highway system. State trunk highway 41 from the Wisconsin-Illinois boundary line near the city of Kenosha to the Wisconsin-Michigan boundary line at Marinette was designated as part of that system under sec. 84.025(2)(h), Stats. Sec. 84.025(3), Stats., provides that the state highway commission may make changes in the state arterial system 'if it deems that the public good is best served by making such changes.'

The present route of highway 41 through the town of Ashwaubenon and the city of Green Bay was established by the highway commission in 1953. Construction of highway 41 in Ashwaubenon was completed in 1957. It is a four-lane divided highway.

The commission made studies concerning the desirability of making changes in state arterial highway 41 in and near the cities of Green Bay and DePere. The staff of the commission recommended that certain changes be made in the location of highway 41. The recommended changes would have relocated state arterial highway 41, 14.07 miles from its existing location. Because the proposed changes involved a distance of more than five miles, under sec. 84.025(3), Stats., it was necessary for the commission to hold a public hearing. The commission gave the proper notice of hearing, which contained the proposals of the commission for change. The relevant proposals were:

'(1) Locating a new Highway 41 on a new location from a point just West of the City of DePere to a point on present State Trunk Highways 41 and 141, just North of the City of Suamico in the Town of Suamico. The distance totaled 14.07 miles;

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(3) Removing a portion of present State Trunk Highway 41 from the state arterial system, but continuing it as a state trunk highway. This includes the balance of present State Trunk Highway 41 and is the portion of State Trunk Highway 41 from the point of beginning just west of DePere, designated as point 'A' on the hearing map to Velp Avenue in the northwest section of Green Bay, designated on the hearing map as point 'C'.'

A hearing was held on January 12, 1960, in the city hall at Green Bay. A transcript of the formal part of the hearing was taken. At the hearing, the town of Ashwaubenon produced witnesses who objected to changing that part of the route which passes through Ashwaubenon, that being a distance of 4.06 miles. The proposed change would take state arterial highway 41 away from the population center of Ashwaubenon.

On July 21, 1960, the commission made a finding and a decision that the public good and public travel would 'best be served by laying and adding to the state arterial highway system and to the state trunk highway system' a new road between designated points in DePere and in Suamico and that the remaining portion of state trunk highway 41 between designated points be continued as part of the state trunk highway system but discontinued as a state arterial highway.

The town of Ashwaubenon, under sec. 227.15, Stats., petitioned the circuit court for Dane county to review that part of the commission's decision and order which pertained to the relocation of state arterial highway 41 away from the population center of the town. The petition alleged that the commission's decision and order directly affected the legal rights of the town because it would result in economic harm to the town. Subsequently, the town filed an amended petition alleging the specific ways by which the town would be damaged. Both the original petition and the amended petition alleged that the commission's decision and order were: (a) unsupported by substantial evidence in view of the entire record as submitted; and (b) arbitrary and capricious.

The commission obtained an order to show cause why the amended petition for review filed by the town should not be dismissed on the ground that the proceedings under sec. 84.025(3), Stats., were not subject to review under sec. 227.15, Stats., because: (a) this was neither a decision in a contested case nor was it a rule under ch. 227, Stats.; and (b) the town is not an aggrieved party under secs. 227.15 and 227.16, Stats.

The circuit court denied the commission's motion to dismiss. The record, consisting of the transcript of the hearing in Green Bay and exhibits presented at the hearing, was returned to the circuit court. Subsequently, the commission requested the circuit court to allow it to supplement the record under sec. 227.19, Stats., and make a supplemental return of the commission files and interdepartmental correspondence which summarized those files. The supplemental return was requested upon the basis that this was information used by the commission in making its decision and was the evaluation of the opinions and information presented at the hearing and, therefore, was necessary in order to determine whether or not there was substantial evidence in the record to support the commission's findings. The circuit court refused to allow the supplemental return to be made a part of the record and also refused to take official notice of the commission's findings and would consider only the transcript of the commission's public hearing. The appellant contends that it was error to have excluded the supplemental return and has included the rejected materials in its appendix.

The circuit court determined that the relocation of state arterial highway 41 was subject to review under sec. 227.15, Stats.; that the town of Ashwaubenon was an aggrieved party under sec. 227.16, Stats.; that the commission's decision to relocate highway 41 was a decision in a contested case under sec. 227.01(2), Stats.; that the commission could not at such stage augment the record made at the hearing; and that the commission's decision and finding that the public good would best be served by the proposed relocation of state arterial highway 41 was not supported by substantial evidence in view of the entire record as submitted. The circuit court reversed the decision and remanded the matter to the commission for further proceedings. A judgment was entered, from which this appeal is taken.

John W. Reynolds, Atty. Gen., A. J. Feifarek, Asst. Atty. Gen., for appellant.

Davis, Soquet, Cherney & Ross, Green Bay, for respondent.

GORDON, Justice.

The following issues are presented: First, is the hearing under sec. 84.025(3), Stats., a hearing in a 'contested case'; second, does the state highway commission function in a legislative capacity in relocating a state arterial highway; and third, what is the nature of the judicial review under ch. 227 of a legislative decision by an administrative board?

Sec. 84.025(1) and (3), Stats., provide that:

'(1) The legislature finds and declares it is necessary in the interests of public safety, convenience and the general welfare that a part of the state trunk highway system be established as a state arterial highway system forming an integrated, state-wide interregional and inter-community network of highways for the purpose of facilitating the improvement of the state arterial highway system and accelerating the rate of improvement on the entire state trunk highway system. * * *

'(3) Changes may be made in the state arterial highway system by the commission, if it deems that the public good is best served by making such changes. The commission, in making such changes, may lay out new highways by the procedure under this subsection. Due notice shall be given to the localities concerned of the intention to make changes or discontinuances, and if the change proposes to lay a highway via a new location and the distance along such deviation from the existing location exceeds 5 miles, then a hearing in or near the region affected by the proposed change shall be held prior to making the change effective. Such notice shall also be given to the state conservation commission and to the state soil conservation committee by serving a copy upon the conservation director and by serving a copy upon the secretary of the state soil conservation committee either by registered mail or personally. A copy of the decision shall be filed in the office of the clerk of each county in which a change is made or proposed. Where the distance along the deviation from the existing location exceeds five miles the change shall constitute an addition to the state trunk highway system. The pre-existing route shall continue to be a state trunk highway unless the county board of each county in which any part of the relocation lies and the state highway commission mutually agree to its discontinuance as a state trunk highway. Whenever such county board or boards and the state highway commission cannot so agree the state highway commission shall report the problem to the next ensuing session of the legislature for determination.'

The highway commission's proposed relocation of state arterial highway 41 involved a deviation from the existing route of more than five miles. Pursuant to the requirement of sec. 84.025(3), Stats., a public hearing on the proposed relocation was held in the city of Green Bay. Does the validity of the commission's ultimate decision depend exclusively upon the record made at such hearing?

We are convinced that the hearing was merely a part of the investigative processes of the commission and was to aid the commission in its comprehension of the problems...