*1 obliga- insane. court held that in the absence of an imposed statute, obligation tion no husband had pay for his maintenance under wife’s such circum- stances.
Richardson relied on the common law rule that a hus- obliged when, band is to maintain wife his without consent, living away reasonably his she is from the home by him. selected There no are facts the record before bring us which would this case within that De- rule. hospital temporary periods fendant’s wife entered the for days. charges hospitalization of 10 and 13 for her during temporary periods these were not for maintenance away Rather, they charges while from home. were for care, part medical which is of the defendant’s common obligation support. Heritage law Fee v. Mutual In- surance Co. 117 N. W. 2d By Judgment affirmed. Court. — Westring, statutory representative
Incorporation Allouez, County, of the Town of Brown Wisconsin, Appellant, acting director, James, Regional Bureau of Local & Planning, Respondent. (1974). Argued 27, 1975. No. 125 October Decided February 23, 1976.
(Also reported 695.) in 238 W. 2d *3 L. appellant David For there was a brief the Milwaukee, attorney, Hailing Walther, & Walther and Hanaway and & Westring & Condon and Martinson argument by Mr. Bay, and counsel, all of oral Green Walther. argued by respondent John C.
For the cause was . general, attorney with whom on Murphy, assistant attorney general. Miller, A. Victor brief was appeal judgment is from a J. This which Heffernan, acting respondent, the determination affirmed Regional which Planning, director of Bureau of Local & brought petition recommended dismissal of a Westring incorporation and for the Richard W. others county, Allouez, of the town of Brown Wisconsin. We planning affirm the trial and court conclude statutory authority, did director not exceed his upon proper procedure, was and lawful decision based support planning that the evidence was sufficient by the decision, powers and that the exercised director’s (d), planning (2) Stats., under sec. 66.016 were director delegation legis- the result of an unconstitutional power. lative general incorporation procedure
The this under which 66.018, brought petition 66.013 to is outlined in secs. village Insofar con Stats. required cerned, incorporations approved for it is only when, hearing, referendum after it is found requirements (1) 66.0151 and sec. sec. planning found, (2)2 are director after satisfied. 1 Compliance Stats., 66.015, the standards forth sec. with set questioned appeal. are not on applied by planning to be the head of the “66.016 Standards may approve function. head of function proposed incorporations those which meet referendum following requirements: territory. territory “(a) Characteristics The entire city reasonably homogeneous shall be and com- drainage taking boundaries, into natural natural pact, consideration transportation potential basin, present facili- conditions, soil political districts, boundaries, previous of school ties, boundaries *4 municipality have shopping An shall and social customs. isolated including community center, reasonably developed all or some post telephone stores, churches, office, retail such features as of exchange activity. community of centers and similar beyond territory Territory beyond most “(b) the core. the The (1) square specified in. densely .populated mile 66.015 s. one-half specified square densely populated 66.015 mile s. or the most housing per average of than 30 units more (2) have an shall (1) value, as defined s. assessed quarter or an section purposes, than of more which (b) tax real estate for 25% hearing, statutory that of requirements all the were satis- fied exception with the of that set forth in sec. 66.016 (d). (2) portion That of requires: the statutes express “There finding shall be an proposed the incorporation substantially will not hinder the solution governmental problems affecting metropolitan the community.” by initial petitioners, Westring attack the and others, ground on (2) the Stats., (d), sec. 66.016 existing potential attributable to mercantile, manufacturing or or public utility territory beyond densely popu- uses. The the most square specified lated mile (3) as (4) in s. 66.015 shall have potential the for development residential or other urban land use on years. a substantial scale within the next 3 The head the planning may requirements function waive these extent the water, geography prevents development. terrain or such “(2) complying In applicable addition to with each of the any proposed standards set forth in 66.015, sub. and in- s. corporation approved in order to be for referendum must be public by the interest as determined head upon following: function consideration “(a) present potential Tax revenue. The sources of tax appear defray anticipated govern- revenue sufficient to cost compares favorably mental services at local tax rate which with the tax rate ain similar area for the level same of services. “(b) Level governmental services. level of services de- sired or needed territory compared residents of the level of services offered city contiguous level municipality available from which files a cer- copy provided tified of a resolution (6). in s. 66.014 Impact “(c) on the remainder impact, town. The fi- upon otherwise, nancial and the remainder town from which territory incorporated. tois Impact “(d) metropolitan community. on the The effect rendering governmental the future services both inside territory proposed and elsewhere within the metropolitan community. express finding There shall be an proposed incorporation substantially will not hinder the solu- governmental problems affecting metropolitan tion of com- munity.” *5 legislative unconstitutionally delegates head power of the function.
Basically, the attack the is twofold —that statute delegation legislative hedged power about the legis- with definitive standards which circumscribe administrator, may lative which duties be exercised supplied and that void in the standards cannot be give any indication because statute itself fails to legislative aspects purpose. these two believe that We delegation power inter- propriety are of the so they together. twined that must be considered Stats., purpose Sec. defines the legislature sought under to have served sections It consideration. states: policy “It is declared be this state territory incorporated development status from town orderly proceed in manner and uniform incorporation toward end each provided territory city reviewed as compliance assure with certain ss. 66.013 to 66.019 to the needs minimum both which take into account standards
urban and rural areas.” very purpose of the statutes was of these sections Scharping (1966), 32 v. Johnson considered in 383, 145 Therein we 2d 691. said: W. “ made in its 1959 session substantial ‘The governing prob- changes statutory law overall A incorporation expansion. municipal and urban
lem of many recognition legislative change dominant experiencing a substantial were localities of state existing legislation permitted growth and that the urban competitive expansion unrealistic, with- haphazard, development probable future regard present and out (P. 396) . public . .” interest.’ overall the best Assembly Bill legislative No. note attached “The part: legislative reads A, session “ metropolitan impact on of an ‘The frag- prevent To community also be considered. must *6 to required an area the director is mentation of urban incorpora- finding express make “an that govern- substantially of tion mental not hinder the will solution community” metropolitan problems affecting ” 397) (p. 2) (Pp. 396, territory part.’ of which is purpose provisions been of has therefore these clearly in set forth in and the statutes has been stated these Under decisions heretofore made court. this circumstances, of this court Watchmak statement 526, ing Examining (1971), 49 2d Board v. Husar Wis. controlling. 536, in that 257, 182 N. 2d is We stated W. case: delegation legislative power “A of to a subordinate delegating agency statute is guards upheld purpose will be if the of the procedural and there are safe- ascertainable agency to insure that within the board or acts legislative purpose.” Department In Schmidt and Devel- Local of Affairs
opment 306, (1968), 46, 2d 158 N. 2d Wis. W. carefully delegation question court of the considered legislative power agency planning director, of to the an wholly legislature. within the control em-We phasized legislative grants powers therein that broad permitted judicial will procedural be where there are and safeguards against arbitrary, unreasonable, oppressive or agency. conduct of the stated in Schmidt We planning legis- upon director is dependent will of the powers, abused, subject lature and that if his are to legislative addition, correction. In we as have stated above, legislative the statutes define broad area of purpose agency permitted within operate. which the is hedged procedural
The statute is also about with safe- guards, and the decision of the head of the specifically subject function made review courts Stats. sec. supra, emphasizes
Schmidt, legislative the fact may delegated powers very which be to the are courts Village Incorporation In re limited. Schmidt discusses (1896), 93 67 N. W. Milwaukee Wis. North 637, 155 City Beloit re and In legis- delegated the cannot The courts be 2d 633. W. determining “in what responsibility of lative municipal- respect creation of public interest” may legislative function ities. This is emphasized: delegated but, branch, Schmidt to another fact, arm legislative agency is, in director “The or very agent existence itself. agency dependent or director is the administrative powers, legislature; duties its his the will by the scope authority and circumscribed are fixed change. ad- legislative An legislature ministrative subject *7 footing agency on the stand same does not separation considering the doctrine of a court when as of Chicago North 57) & (Pp. 56, also: powers.” See Railway Comm. Co. v. Public Service Western 570,169 2d 65. 2d N. W. 43 Wis. incorpora- finding required the case In the instant not finding could concluded he the director tion —the not will “that the make —was governmental prob- substantially hinder the solution of community.” affecting metropolitan While the lems exceedingly general terms, as we phrased in is standard facing director Schmidt, problem the the pointed out in application of more not admit of the that does was one general standards broad standards. Similar the most than Jeffrey v. Milwaukee in David Co. upheld have been 362, 559, 2d and Smith 66 W. (1954), 267 Wis. 74 N. (1956), 272 Wis. W. Brookfield latter case delegation page respect to the stated, in by city council: power entire purposes the “Having the various which declared accomplish, the council intended zoning ordinance particular apply case in each expect the board could Certainly it objective applicable thereto. particular the- ignore not would board properly assume could purposes its declaration of in but would effectuate them discharge of its duties. . . .” principle applicable The same is no here. There is requirement regard specific that there be standards with legislature thought worthy to all of the which items Every incorporation of consideration. its will differ on facts, legislative delegation and it within the respects administrative director to determine in which pertinent the enumerated are considerations to the ef- legislative fectuation power broad standards. The is, conferred addition, administrator limited procedural requirements set forth in the statute authority and the of the courts to review the director’s requirements determination in accordance with the Administrative Procedure Act. conclude, respect petitioners’
We argument sufficiently that there were legislative defined stand- ards, general that the stated purpose with clarity sufficient it can be determined that it legislature’s will and not that of the administrator which by following guidelines was served consideration enum- erated in 66.016 sec. Stats. argue herein also statutorily
director exceeded his authority conferred be- finding cause he made no respect to the level of governmental services referred to in sec. (2) (b), reading Stats. A careful statute, however, indi- *8 cates planning that the head of the function is re- not quired “finding” to amake respect. in that Rather, the director must find that proposed the incorporation must public upon be “in the interest” the consideration the of of level services. That respect sec. 66.016 at least in (a), (b), (c), require to and does not express finding respect reviews, to tax level services, of impact and town, on the remainder of the is confirmed the differ- statutory required ent mandate respect director in incorporation the metro- (d), impact to the (d), community. politan section, 66.016 That finding incorpora- proposed requires express that “an govern- substantially hinder the tion will not solution community.” affecting metropolitan problems mental findings Although respect first express to the with required, be considered are not three matters planning found that the level director nevertheless adequate com- “are for the and services favorably adjoining pare with the service levels municipalities.” findings made the director under
Nor are the sec. (2) (d), Stats., peculiar- The deficient. statute is ly incorporation proceed worded, in that can finding substantially a that it hinder if there is will governmental problems. Obviously, this the solution of finding very requirement places a a for substantial incorporation. proponent director on the The burden duty record, that, when he stated under the fulfilled his finding required express incorporation proceed could not to referendum be made. petitioners conclusion, it fault this because
alleged generalized that the director relied that on studies adjacent indicated small areas metropolitan city prob- would hinder the solution of metropolitan community. lems affect part true, nevertheless, While the record director then these shows distilled generalized propositions applied specific them to the community metropolitan under consideration. The record ap- particularly the director utilized shows studies plicable part to the area of which Allouez was a generalized specifically applied standards Allouez situation. again emphasized
It should be that the had negative. proving difficult burden use generalized alongside which the studies director laid *9 merely specific Allouez situation demonstrated finding required were insufficient to make facts by the statute. also contend that see. 227.10 Administrative was violated in Procedure Act least, decision, part director based his in at government reports four United States that were part record,
never made a but of which took he judicial (2) provides: notice. Sec. 227.10 “227.10 Evidence official notice. In contested cases: “(2) evidence, including All records and documents possession agency of which it desires itself, duly avail part shall be offered and made a Every party record in the case. quate opportunity ade- be afforded shall countervailing evi- rebut or offer dence.”
As the itself provides, evidentiary statute rule applies only in “contested cases.” “Contested case” defined in sec. 227.01 Stats.: “ proceeding agency ‘Contested means case’ before an which, required by law, legal after rights, any affected privileges party proceeding, duties or determined or such of are such directly by a decision or order proceeding by and which party the assertion one any right, duty privilege such con- denied or by party proceeding.” troverted another to such recently This court has summarized the elements appear proceeding must before a becomes a “contested case”: “First, hearing required must be a by there . . law. . Second, legal rights, privileges duties or party of one adversely must have been determined affected proceeding. Third, . . . rights; assertion of those privileges duties or must have been denied or contro- party verted proceeding.” another Daly
Natural Resources Board (1973), 208, 216, 60 Wis. 2d 217, 208 2dW. *10 (1962), Highway 17 Ashwaubenon State Comm. Wis. v. director 120, 2d 2d relied 115 N. W. is proceedings did a that the not constitute demonstrate evidentiary and, therefore, provisions contested case n ofsec. 227.10 Stats., applicable. (2), are not stating director that the The are correct in application gave the circuit court overbroad legislative general proceeding proposition cannot that a specifically precludes Ashwaubenon be a contested case. a generalization points of out that the existence hearing necessarily legislative-type mean does not in proceeding stated is not a contested one. As we supra, the .in- Seharping Johnson, proceeding for essentially corporation village is, however, a matter aof legislative legislative policy. It implementation of of is in But as Ashwaubenon action the true sense word. out, in not determinative points that factor itself is Ashwau- evidentiary applicable to rule contested cases. held, page benon 128: interest “The town of Ashwaubenon had same any proposed munici- in relocation as other affected any landowner; special pality or did not have kind it of proceedings
interest before which would convert the highway a case. commission into contested a case defined contested “When contemplated special in- (2), Stats., it 227.01 some sec. terest Banking Hall v. Review Board such as occurred in (Emphasis (1961), 2d 543.” N. W. supplied.) statutes, apparent the head Under the it is obliged to find that the function is public interest.” Sec. “must be general therefore, is criterion, This Stats. any public policy and and not statecraft a matter question. Incorporation In re judicial See: sense 616, 624, Village North Milwaukee 93 Wis. W. general in the instant fall under the issues case aegis category, of Askwaubenon and not under the Hall because, particular Hall, under the issue whether licensed, bank case, should be while in the instant Askwaubenon, question basically public a matter of policy question and not of fact. distinction is This Requirement Davis, Trial-Type referred to in aof Hearing, 70 Harv. L. Rev. : designed type “. . . disputed the trial for particular parties necessarily facts about and is not re- quired general facts or for issues development *11 policy (P. 194) law or discretion.” problem hearing, “The of type the need for a trial of is, that a for what the Administrative Act Procedure calls opportunity determination ‘on the record after for an agency hearing,’ problem problem is the same ... the facts, fully of of developed use extrarecord in discussions judicial purposes of official and notice. For of this problem, adjudicative legis- are of facts two kinds: and Adjudicative lative. facts are parties facts about the and activities, businesses, their properties, usually and an- swering questions what, where, when, the of how, who did why, roughly case. adjudicative with intent; what motive or are facts go jury jury the kind of that to a in a facts Legislative usually facts do not the concern im- general parties mediate tribunal decide help but are facts which the questions of law, policy, and discretion.” (P.199) proceedings These the and facts of which the director judicial of took notice apply did not to a particular party, generalized were, rather, but of a nature upon questions and law, policy, bore discretion; is, that incorporation whether the would hinder the solu- governmental problems tion metropolitan of the com- munity. petitioners The “special in any this case lacked kind of necessary finding interest” that for the of a only type contested The case. scrutiny interest under public instant case the was interest, and whether incidentally are served private served interests under the statute. is not criterion accordingly no contested that there conclude was We meaning (2) Ad- of the of sec. 227.10 within the case Ashwaubenon, the in Procedure Act. As ministrative investigative hearing part in the instant case was delegated the process to the head was planning function, purpose comprehension problems in his to aid the director duty statutory in of determin- and to assist his involved ing would serve whether the govern- public reliance interest. director’s permissible. The reports record outside was mental finding respect in in that was accordance circuit court’s law. and settled case with the statutes argue erred circuit court also concluding requirement substantial-evidence (d), Stats., inapplicable was and state sec. only capriciousness of arbitrariness and test agree petitioners that applicable. with the the sub- We applicable case. stantial-evidence rule is to the instant cases, While, Daly, supra, upon and in some which relied, judge held trial we have substantial- applied cases, test to be contested evidence *12 specifical- particular which we are statute with concerned ly provides planning of the that the decision of head subject judicial provided shall be to review as function Stats.). (sec. (2), Moreover, 66.017 have in we ch. Johnson, Scharping supra, and Town in stated (1967), 8, 148 Prairie v. Johnson Pleasant Wis. 2d planning of the 27, that a review director’s N. W. by under statutes is to be controlled determination though 227.20, an even director’s decision is sec. legislative function. exercise provides part Stats., in that a court Sec. modify agency may reverse or a decision if it is: “ by (d) Unsupported substantial view evidence submitted; Arbitrary caprici- (e) entire or record as ous.” provision
It is clear from that both statute arbitrary-and- the substantial-evidence test and the capricious must under test be satisfied whenever review 227.20, noted, Stats., mandatory. sec. It should be however, any that, in mind, almost case comes to supported by decision which is substantial evidence ordi- narily arbitrary to capricious. would be held not
The test of substantial evidence was stated Ash waubenon, supra, page said, at . . Therein we “. the test whether reasonable could at the minds arrive same conclusion reached the commission.” one While disagree may planning with the conclusion that di eventually reached, rector it cannot be said that a reason person able could have reached the he conclusion replete reasoning did. record is with the course of planning utilized the director of to reach conclu his said, It therefore, sion. cannot be that on the basis of the wholly it evidence was unreasonable reach conclu Gateway sion the director did. See City also: Trans Co. v. Public Service Comm. fer proposition. N. W. 2d for the same applied The test which we have whether determine light there was substantial evidence in the record affirm the director’s disposi- conclusion is also question tive of whether the director’s action was arbitrary capricious. The standard of arbitrariness capriciousness Scharping, discussed in supra, page 390: “ is, general, ‘It flagrant the most violations of the delegated scope discretionary powers which are de- capricious. scribed as In usage, common the term refers unreasoning whimsical, departure to a from established standards;
norms or it describes action which is mer- curial, unstable, inconstant, legal or fickle. In usage, a *13 to “shock capricious if it is unreasonable as so decision is careful justice lack of fair and and indicate sense consideration.” “ capricious epithet ‘Typical in which of the cases agency has may properly applied are those where be respondents given circumstances, in identical different treatment two unfairness an irrational or has exhibited Cooper, suggests discrimination.’ malice or which State Administrative p. (1965), Law 761.” 239, 137 233, 2d In Olson Rothwell Wis. 2d we stated: W. it “Arbitrary capricious . . when action . occurs not or does that action is unreasonable can be such said Arbitrary the result . action is have a rational of an . . basis. of con unconsidered, irrational choice wilful and sifting’ ‘winnowing and duct and not the result Railway Chicago process.” North Western See also: & v. Public Comm. Co. 582, 169 Service 2d 65. N. W. from Again, drawn while the conclusion was may have been one with which evidence the director might persons disagree, it cannot other reasonable choice it wilful or irrational said constituted conduct. accordingly not decision was conclude
We arbitrary supported by capricious and was substantial of the entire record. evidence view Judgment By affirmed. the Court. — parting (dissenting). The J. Robert W. Hansen, majority point ways comes at with the court majority holds these were where petition for and fair on their entitled to full village.1 incorporation of their town as petition of Allouez as a town county pursuant filed in the Brown circuit court 66.013-66.018, Stats. secs. *14 hearing That a full statutorily required and fair is agency an hearing, prior administrative disposition any acknowledged case, contested is and not at issue.2 requirement One play” provisions of the “fair procedure administrative evidence, statute all including documents, part record, shall be made of the parties with all adequate to be afforded an opportunity to countervailing rebut or offer evidence. The subsection requires: involved “(2) evidence, including All records and documents possession agency of the of which it desires itself, duly avail shall be part offered and made a Every party record the case. shall be afforded ade- quate opportunity countervailing to rebut or offer evi- dence.”3 unchallenged
It is requirement that this for a full and hearing fair key was not here met. impact On the issue of incorporation neighboring hearing on the city, the officer’s quoted decision relied and from four federal government reports that were part never made of the re- port, appellant and which the opportunity had no Additionally, rebut. given no notice appellant was reports these by were hearing to be used officer.4 procedural Thus the requirements play” for a “fair hearing were not here parties met. All involved concede they were not met. hearing
Unless the petition on this can be held to have been contested, it follows through 227.13, commonly Secs. 227.07 Stats., referred to as “fair-play provisions” of the Wisconsin Pro Administrative (ch. 227). cedure Act Sec. Stats. providing: Stats., “Agencies Sec. 227.10 may take official any generally recognized notice of any fact or established technical fact; parties or scientific but shall be notified either before or during hearing by or preliminary reports full reference or otherwise, of noticed, they the facts so shall be afforded an opportunity validity to contest of the official notice.” appellant’s right hearing to a full and fair denied. statute defines “contested in an administra- case” adjudication tive as follows: “ proceeding agency- case’ ‘Contested means before which, rights, in duties or determined or required by law, legal after privileges any party proceeding are to such directly by affected a decision order proceeding
in party such and in which the one assertion any right, duty privilege such denied or party proceeding.”5 controverted another to such *15 1973, case, Daly controlling In Case,6 in a the here toas given the statute, construction to be this our court held: “Prom the it is statute clear three elements must appear First proceeding before the becomes a contested case. required by a hearing there must . . be law. . Second, legal rights, privileges the party duties or of one adversely by must have been determined or the affected proceeding. Third, rights, . . . the assertion those privileges or by duties must have been contro- denied or party proceeding.”7 verted another (Emphasis supplied.) required
All three elements are in the us. case before First, hearing being required hearing as to by law, by required here (9), involved was sec. 66.014 Stats. Second, rights being adversely toas determined or af- fected, right privilege to residents of the town incorporate as a under secs. 66.013-66.018 was certainly adversely determined and affected deci- Third, sion director. the assertion of that right privilege incorporate was denied and con- hearing by city troverted at the attorney of Green Bay, acting on municipality. behalf such Unless language clear equally of the statute and the man- clear Daly date of the ignored, Case are to it is evident 5 Sec. Stats. 6 Daly v. Natural Resources Board 2d 839. N. W. pages 216, Id. at requirements these three this were met and that
hearing was indeed a “contested case.” years Daly holding
Eleven Case, before the three only determining elements are involved in if an ad- hearing contested, ministrative this court in Ashwau- benon,8 attempt dealt with the a town challenge a highway by relocation of a state arterial highway state commission. The commission had held hearing “merely on relocation which court held was part investigative processes of the commission comprehension aid the commission its problems (That involved.”9 would not describe us, case before mandated sec. 66.014 (9), Stats.) It doubted that the town of Ashwaubenon aggrieved party was “an entitled to seek review of (That commission’s decision.”10 would not describe appellant filing petition incorporation under secs. for. 66.013-66.018, Stats.) It held that the town there involved any special “did not have kind of proceed- interest” in the ing, but “the same interest in the relocation any municipality other affected or landowner. . . (That would describe village.)
of their town aas It affirmed what it termed *16 [highway] “the breath of the power lay- commission’s in ing highways. out state . . .”12 reasons, For all of these it held the not case to be contested and concluded that the “fair-play provisions (secs. of ch. 227 227.07-227.13, Stats., inclusive) apply do not to the case at bar.”13
The reference “special to lack of a kind of interest” in Ashwaubenon is not be read to as an addition aof 8 Highway Ashwaubenon v. State (1962), Commission 17 Wis. 120, 115 2d N. 2dW. 498. 9 page Id. at 126. 1 0 page Id. at 128. 11 page Id. at 128. 12 page Id. at 130. 13 page Id. at 127. statutory requirements as to the three fourth element court intent, this being If that were contested. case re- years fourth added, later, eleven such have would Daly. In three-only forth quirement to the test set suggestion is cited but no Daly, Ashwaubenon Case is threefold requirement to the that it added a fourth made and set specified in the statute to fact of contest test as Ashwaubenon, was Daly. Actually, the court forth in it, applying changing (2), It was Stats. not sec. 227.01 (2), later finding requirements of three sec. all by the town Daly, met not to have been stated Ashwaubenon. Daly incomplete make Ashwaubenon is read to
Even if In respondent here. incorrect, help the it not would Ashwaubenon, court “When said: Stats., it con in sec. 227.01 defined a contested case in Hall special as occurred templated interest such some 359, 108 Banking Board Review Wis. that, saying Hall “in the bank 533,” Case such 2dW. adversary interest particularized and there was a case existing affecting and the new both bank hearing us, Hall, In in the case before bank.”14 testimony by Hall, required In there was held statute. was banking existing opposition license in to a by bank in being granted applicant. In the case to the Glendale in opposition petition us, there was before attorney by city on presented behalf corporation Bay. in Hall city The court held “this the' Green opposition because of proceeding a contested case Bay Bank.”15 State application Whitefish similarly us, that the it is clear In the case before opposition it case because contested became us, Bay. city In the case before of Green adversary parties but, on the issue have two do we page at Id. page Banking supra, Board, 2d at Review Hall v. *17 367.
impact upon metropolitan community,16 we have ring hearing present principal or at the the two seeking incorporation adversaries —residents town legal largest city a and the counsel for the metropolitan area involved. Both had in- adverse terests, special to themselves. hearing up- can denial a
Nor full fair and ground hearing on held that the before issues “legislative” director can be labeled rather than “adjudicative.” “legislative” This distinction between “adjudicative” being applies only specific facts processing determined the fact finder. In the of an application for lake-fill, public our court held that discharging legislative service commission “was func- 17but, being contested, provi- tion” the case fair-play “the through sions secs. 227.07 227.13 Ad- State apply proceedings.”18 ministrative Procedure Act hearing Even Askwaubenon held that “a legislative-type necessarily preclude being does not the matter from (2)]. contested case sec. 227.01 . . .”19 Our court [under challenged the attempting legis- has wisdom of to draw lative-adjudicative agency distinction in administrative for single cases proceeding obvious reason that ain agency commonly such acts in both roles.20 If the claim officer held the area for incor poration statutory except met all standards that set forth in sec. Stats., providing: (d), Impact “(d) metropolitan on the community. rendering governmental The effect the future territory proposed services both inside the metropolitan community. elsewhere within the There shall be express finding proposed incorporation will not sub stantially governmental problems hinder solution of affecting metropolitan community.” 17Hixon v. Public Service 608, 621, Comm. (1966), 32 Wis. 2d 2d 146 N. W. 577. page Id. at 622. Highway Commission, Askwaubenon supra, v. State footnote page at Margoles v. State Board See: Medical Examiners 499, 508, stating: 47 Wis. 177 N. 2dW. this court “The
483 director 66.016, Stats., planning that under sec. were than rather delegated power to make the law a been has to pursuant and authority under be exercised an to delegation law, an unconstitutional that would be In legislature power the law.21 to make of its cer- legislature us, determined has case before in- before must met or standards be tain conditions referendum. corporation petition is submitted complied with is have been these standards Whether delegated head adjudication, of administrative hearing requiring be conducted function, a to planning but procedures if it play” the “fair notice and under with contested. remand, directions and with would reverse writer full and that a and director the circuit court
to petition for held on the fair be under conducted Allouez as a the town of of provisions play” procedures of the “fair and the rules through 227.13) Adminis- (secs. Wisconsin Act. trative Procedure legislative-judicial attempting a distinction
wisdom draw agency Kenneth criticized Professor administrative cases was Trial-Type Hearing, Requirement a 70 Harv. L. in The Davis (1956), 193, 202: Kev. “ properly proceedings why cannot whole reason ‘One obvious single proceed- “legislative” “judicial” in a or be labeled legislatively. commonly judicially ing acts both tribunal particular parties resolving disputed processes facts about type process judicial a trial and calls for is the essence stating: page 200, “. . . the author hearing.’” at See also: Id. categories line is some- two borderland between impossible draw, and in the borderland ... or difficult times utility.” , no often little or has the distinction Village Incorporation Milwaukee North In re See: “ holding: 1033, ‘The 616, 622, this court N. W. Wis. law, power delegate it can to make but its cannot power delegate determine some state law to make a fact make, makes, its action intends to own law which the facts Dowling Lancashire Ins. Co. (Quoting v. depend.’” Local & 738.) also: v. Schmidt 63, 69, W. See 65 N. Affairs 306, 2d Dept. (1968), W. 158 N. Development 39 Wis. that Mr. I am authorized to Justice state Leo B. Hanley join in this Mr. T. Hansen Justice Connor dissent. Weger Appellant, Weger, Erasmus, re
In Estate : *19 Weger, personal representative of the Estate of deceased, others, Respondents.* February Argued (1974). December 1975. Decided No. 23, 1976. (Also reported 522.) in 238 N. 2dW. specific required to make not be adding, should “The necessary regard to be items it felt all of the provisions with its facts and differ on Each will considered. facts come these whether determines director administrative legislative standards.” within * costs, April 7, denied, rehearing 1976. on without Motion April filed Memo