Town of Ashwaubenon v. Public Service Commission, 41
| Decision Date | 03 March 1964 |
| Docket Number | No. 41,41 |
| Citation | 126 N.W.2d 567,22 Wis.2d 38 |
| Parties | TOWN OF ASHWAUBENON, Petitioner and Respondent, Fort Howard Paper Company, Intervenor and Respondent, v. PUBLIC SERVICE COMMISSION of Wisconsin, Respondent and Appellant, State of Wisconsin, Intervenor and Appellant. |
| Court | Wisconsin Supreme Court |
George Thompson, Atty. Gen., Roy G. Tulane, Asst. Atty. Gen., William E. Torkelson, Madison, Wis., for Public Service Commission in behalf of motion for rehearing by appellants.
Everson, Whitney, O'Melia & Everson, Green Bay, Wis., for respondent Paper Co.
Davis, Soquet & Cherney, Green Bay, Wis., for respondent Town of Ashwaubenon.
(on rehearing).
Normally on rehearing this court would not write a memorandum except to clarify or correct the opinion. We are at a loss to understand why both counsel seem to assume that on the remand the commission has been ordered to approve the town's proposed bulkhead line. We thought the opinion was clear in holding a bulkhead line or its predecessor 'established shore line' is not to be determined solely by an approximation to the geographical shore line. In so determining, we did not hold a bulkhead line could be established by a municipality at a location which would be proper for a pierhead line which a municipality under sec. 30.11(1), Stats., does not have the power to establish.
We stated the record did not contain facts to support the commission's conclusion that the two statutory standards for the establishment of a bulkhead line had not been met. Arguments of counsel are not a substitute for evidence upon appeal. The Public Service Commission must support on the record its denial of an approval. For such purpose, this court remanded clearly, stating, 'The commission upon remand may, if it deems it to be appropriate, take further testimony or supplement the record with additional materials and, in such event, the commission should then exercise its discretion upon such expanded record.'
Rehearing denied.
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