231 Wis. 147 | Wis. | 1939
In its petition for a writ of mandamus the relator, Madison Airport Company, alleged the following matters. The defendants, Voyta Wrabetz and Harry R. Mc-Logan, are commissioners of and constitute the Industrial Commission of this state. Eleanore Anderson filed an application with the commission for compensation by reason of the death of her husband, Harold Anderson, who, she alleged, was an employee of the relator and killed in the course of his employment. The relator denied that Harold Anderson was in its employment; that he met his death in the course thereof; and that it was subject to the Compensation Act. Hearings upon the issues were had before one examiner and later before another examiner, and the testimony presented by the parties was taken in shorthand by phonographic re
“Petition for review in the above matter having been presented to the Industrial Commission alleging error in the findings and order of the examiners made on July 13, 1937; and the Industrial Commission having reviewed the entire record, and particularly the testimony upon which petitioner relies in support of his contention, and having reached its conclusion in respect to the matter set out in the petition;
“Now, therefore, The Industrial Commission does order— That such findings and order be, and the same are hereby affirmed. . . .
“Industrial Commission of Wisconsin, “By Voyta Wrabetz,
“Harry R. McLogan,
“Commissioners.”
The relator further alleged that it had duly commenced an action in the circuit court against the commission and Eleanore Anderson for a review of the order and award of the commission; that the record returned by the defendants in that action is erroneous in that it fails to show the facts and circumstances attending the alleged review by the commission; and that, as the relator alleges upon information and belief,—
“the order of August 12, 1937, aforesaid is in fact false in that it contains a recitation that the Industrial Commission had reviewed the entire record and particularly the testimony upon which the petitioner relied in support of its contention,*150 whereas in fact the alleged review was and is void and of no-effect for the following' reasons :
“a. Two examiners separately heard parts of the testimony only and neither examiner heard the whole thereof, or any transcription thereof, or any reading of the stenographer’s notes thereof in making the purported findings and order of July 13, 1937.
“b. The Industrial Commission did not meet as a commission in making the alleged review referred to- in the order of August 12, 1937, or in entering said order.
“c. The Industrial Commission did not read or have read to them any transcript of the testimony presented upon the hearings conducted by the examiners aforesaid, nor the notes of the phonographic reporter taken at such hearings, and did not read or have read to them the exhibits introduced upon such hearings.”
The relator also alleged that the defendants threaten to bring the action to* review the award in the circuit court on for a hearing upon the false and erroneous record, which the commission failed to correct as duly demanded by the relator to conform to the facts as alleged by it; and that the relator has no adequate remedy at law or of any kind except by mandamus tO' compel the defendants to- correct said record to conform to the facts as alleged by it.
On this appeal the relator contends that it is entitled to have the record, which the commission returned in the action to-review its award, corrected to conform to- the true facts material and necessary to due process in proceedings on an application for workmen’s compensation; and that mandamus is a proper remedy to- compel the correction of a return, which contains misstatements of fact and imputes verities contrary to the fact. On the other hand, Wrabetz and McLogan contend, in support of their motion to quash the alternative writ, and the court’s order thereon, that in compensation cases the circuit court acquires jurisdiction solely from the compensation act, and has no- authority to issue a writ of mandamus in compensation cases; that mandamus can be issued only to compel performance of a clear legal duty; and that the com
As this court has said :
“Mandamus is a remedy only to- be applied in extraordinary cases where there is no other adequate remedy. Where the applicant has an adequate remedy by action the writ will not be awarded.” State ex rel. Burg v. Milwaukee Medical College, 128 Wis. 7, 12, 106 N. W. 116.
“The existence or nonexistence of an adequate and specific remedy at law, in the ordinary forms of legal procedure, is therefore one of the first questions to be determined in all applications for the writ of mandamus; and whenever it is found that such remedy exists, and that it is open to the party aggrieved, the courts uniformly refuse to interfere by the exercise of their extraordinary jurisdiction by mandamus.” Board of Education v. State ex rel. Reed, 100 Wis. 455, 462, 76 N. W. 351; State ex rel. Baraboo v. Page, 201 Wis. 262, 229 N. W. 40.
“Where a statute prescribes a remedy which is plain, clear, specific, and adequate, it is generally held that such remedy is exclusive. See 38 C. J. p. 568, § 39, where it is said: ‘Applying general principles already considered, it is very generally held that the existence of a specific statutory remedy will exclude mandamus, although the act sought to be compelled is purely ministerial in its nature.’ ” State ex rel. Wisniewski v. Rossier, 205 Wis. 634, 640, 238 N. W. 825.
Sec. 102.23 (1), Stats., provides, in relation to an award made by the commission, that the award,—
“. . . shall be subject to review only in the manner and upon the grounds following: Within thirty days from the date of the order or award of the commission as a body any party aggrieved thereby may commence, in the circuit court for Dane county, an action against the commission for the review of such order or award, in which action the adverse-party shall also be made defendant. . . . Said action may thereupon be brought on for hearing before said court upon such record by either party on ten days’ notice to the other. . . . Upon such hearing, the court may confirm or set aside such order or award; and any judgment which may theretofore*152 have been rendered thereon; but the same shall be set aside only upon the following grounds :
“(a) That the commission acted without or in excess of its powers.
“(b) That the order or award was procured by fraud.
“(c) That the findings of fact by the commission do not support the order or award.”
If, in the action thus authorized by statute, the relator can have adequate relief and remedy for the correction or avoidance of the alleged errors in the commission’s return by reason of the alleged false recitals in its order affirming the examiner’s award, then there is no necessity for and the relator cannot maintain this collateral action to compel the correction of that return by mandamus. Sec. 102.18 (2), Stats., provides, in respect to findings and orders made by an examiner, that,—
“. . . Any party in interest who is dissatisfied with the findings or order of a commissioner or examiner may file a written petition with the industrial commission as a commission to review the findings or order.”
And it is prescribed in sub. (3) of sec. 102.18, Stats., that,—
“. . . Within ten days after the filing of such petition with the commission the commission shall either affirm, reverse, set aside or modify such findings or order in whole or in part, or direct the taking of additional testimony. Such action shall he based on a review of the evidence submitted. ...”
The use of the terms “commission” and “as a commission,” instead of requiring but a commissioner, in those provisions relating to a review of and action by the commission upon examiners’ findings or orders, has significance in the law. In view of the use of those terms, those provisions do not admit of action on a review by but one of the commissioners, or action which is not based, in fact, upon a review of the evidence. Consequently, if, in the action brought by the relator to vacate the commission’s affirmation of the examiners’ find
“If the one who determines the facts which underlie the order has not considered evidence or arguments, it is manifest that the hearing has not been given. . . . It is no answer to say that the question for the court is whether the evidence supports the findings and the findings support the order. For the weight ascribed by the law to the findings — their conclusiveness when made within the sphere of the authority conferred — rests upon the assumption that the officer who makes the findings has addressed himself to the evidence and upon that evidence has conscientiously reached the conclusions which he deems it to^ justify. That duty cannot be performed by one who has not considered evidence or argument. It is*154 not an impersonal obligation. It is a duty akin to1 that of a judge. The one who decides must hear. . . . And to give the substance of a hearing, which is for the purpose of making determinations upon evidence, the officer who makes the determinations must consider and appraise the evidence which justifies them. That duty undoubtedly may be an onerous one, but the performance of it in a substantial manner is inseparable from the exercise of the important authority conferred.”
The reasons and conclusion thus stated are equally applicable to acts of the Industrial Commission in the exercise of its powers under sec. 102.18 (3), Stats., and compel the conclusion that the purported action thereunder by the commissioners, if they did not in fact read or hear read the transcript, or the phonographic notes of the evidence taken by the examiners or did not otherwise address themselves thereto, was clearly without or in excess of the commission’s powers, because of which there was such a jurisdictional defect that its action must be set aside under par. (a) of sec. 102.23 (1), Stats.
That was recognized by Ducat v. Industrial Comm. 219 Wis. 231, 232, 262 N. W. 716, when we said,—
“Plaintiff contends that in this case the commission failed to consider and review testimony offered by plaintiff at. a hearing before an examiner; that this constituted a jurisdictional defect which required that the award be set aside and the record remanded for further proceedings. The contention is doubtless sound in principle, although its merits need not be determined here.”
In respect to the right of an aggrieved party to offer proof in contradiction of a recital in a commission’s findings and award, the court said in Hackley-Phelps-Bonnell Co. v. Cooley, 173 Wis. 128, 133, 179 N. W. 590,—
“It would be indeed surprising if a party had no opportunity to show, if such be the fact, that a document in the record purporting to be the findings and award of the commission was in fact not the act of the commission. We are not*155 convinced that this assumption is correct. If the charges of counsel amount to allegations of fraud there was an ample remedy by offering proof of the facts alleged. International H. Co. v. Industrial Comm. 157 Wis. 167, 172, 147 N. W. 53.”
And in the International H. Co. Case then cited, the court said (p. 172) :
“Where an award is attacked as having been procured by fraud, it is probable that the statute contemplates that evidence may be taken on this issue in the circuit court. Whether this be correct or not, it is certain that this is the only ground on which the circuit court can consider any facts not found in the record as returned. Both parties must offer any testimony they wish to adduce before the commission except on the issue of fraud.”
Thus this court has recognized that when an order or award of the commission is challenged in an action to vacate it because of alleged illegal acts or conduct on the part of the commission, subsequent to the taking of the testimony upon which it should have based its order or award, then the circuit court may take evidence in that action in relation to such acts or conduct. An order or award made in a proceeding conducted in disregard of the procedural safeguards prescribed by the statute authorizing the exercise of authority by the commission, or in disregard of the rudiments of fair play required by the federal and state constitutions, is certainly without and in excess of the commission’s powers; and under the power vested in the circuit court by sec. 102.23, Stats., in an action brought to set an order or award aside on that ground, it is within the jurisdiction of the court to receive evidence to establish such disregard or noncompliance on the part of the commission. If the courts did not have the power to take evidence in relation to such defects in procedure leading up to the entry of an order by an administrative body, the statutory safeguards and constitutional guaranties of due process would be meaningless. Although it is not within the court’s
It follows that the relator is entitled to introduce proof in its action for the vacation of the award to establish, if it can, that the defendants did not in fact base their review on the evidence, as required by sec. 102.18 (3), Stats., in that they did not read or have read to them a transcript of the testi
By the Court. — Order affirmed.