Wisconsin Elec. Power Co. v. City of Milwaukee

• Decision Date: 03 April 1956
• Citation: 76 N.W.2d 341,272 Wis. 575
• Parties: WISCONSIN ELECTRIC POWER CO., Appellant, v. CITY OF MILWAUKEE, a municipal corporation, Respondent.
• Court: Wisconsin Supreme Court

Page 341

76 N.W.2d 341

272 Wis. 575

WISCONSIN ELECTRIC POWER CO., Appellant, v. CITY OF MILWAUKEE, a municipal corporation, Respondent.

Supreme Court of Wisconsin.

April 3, 1956.

Rehearing Denied June 5, 1956.

Shaw, Muskat & Paulsen, Milwaukee, John F. Zimmermann, Milwaukee, of counsel, for appellant.

Walter J. Mattison, City Atty., Ralph J. Chmurski, Asst. City Atty., Ewald L. Moerke, Jr., Asst. City Atty., Milwaukee, for respondent.

BROWN, Justice.

The amended complaint does not differ in any material respect from the original complaint, nor does appellant contend that it does. It presents to us the identical issue which we considered and determined in Wisconsin Electric Power Co. v. Milwaukee, 1953, 263 Wis. 111, 56 N.W.2d 784. The reason for this appeal appears to be that since the first one the Supreme Court of the United States has considered once more the sufficiency of notice given by publication and in City of New York v. New York, N. H. and H. Ry. Co., 344 U.S. 293, 73 S.Ct. 299, 97 L.Ed. 333, has affirmed and somewhat strengthened the principle it announced in Mullane v. Central Hanover B. & T. Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (referred to in our former opinion, 263 Wis. 111, 112, 56 N.W.2d 784) namely, that when more certain means of communication are reasonably available, notice by publication is insufficient to meet the demands of due process of law. In effect, appellant does no more than to ask us to reconsider, in the light of this more recent authority, our previous decision that the notice of special assessments given by the city by publication did not offend constitutional requirements.

For many years, beginning almost with the creation of this court, we adhered strictly to the principle that an issue once thoroughly considered and determined was settled for the purposes of the action in which the determination was reached, beyond the court's power to alter it. Then, in McGovern v. Eckhart, 1929, 200 Wis. 64, 227 N.W. 300, 302, 67 A.L.R. 1381, the court, through Mr. Justice Eschweiler, exhaustively reviewed the earlier decisions bearing upon 'the 'law of the case" and announced a departure from the former hard and fast rule, to wit:

'1. The rule of the 'law of the case,' as heretofore established and strictly followed in this jurisdiction, is now and for the future modified so as to permit the correction of error made by the supreme court on a former appeal in the same case whenever for cogent, substantial, and proper reasons the court is convinced that the prior ruling in the particular case ought not to stand as the law of that case and other cases.' Headnote 1.

We have thus said that the application of the rule of 'the 'law of the case" is discretionary with this court. We have not said that the rule is abolished, nor do our...