author: Beilfuss, J.

text:
    First American State Bank, Respondent, v. Aetna Casualty & Surety Company and others, Appellants.

      September 28

    October 27, 1964.

      For the appellants there were briefs by Elmer W. Beasley of Hartford, Connecticut, and E. L. Everson of Green Bay, attorneys, and Everson, Whitney, O’Melia, Everson & Brehm of Green Bay of counsel, and oral argument by Mr. Beasley and Mr. E. L. Everson.

    For the respondent there was a brief by Smith, Puchner, Tinkham & Smith, attorneys, and C. Duane Patterson of counsel, all of Wausau, and oral argument by Mr. Patterson.

   Beilfuss, J.

On this appeal we have determined that the unsigned copies of invoices in question and the written assignments of accounts receivable which these invoice copies purported to represent were neither counterfeited nor forged as to the signature of any person signing in any capacity.

In holding that no forgery as to signature exists in this case, we must decline to follow the lead of the Seventh circuit in Security Nat. Bank v. Fidelity & Casualty Co. (1957), 246 Fed. (2d) 582, holding on facts almost identical to ours that unsigned copies of invoices were forged. That case relied on Quick Service Box Co. v. St. Paul Mercury Indemnity Co. (7th Cir. 1938), 95 Fed. (2d) 15, for the proposition that a false making might be accomplished by the application of a false signature to a true instrument or a true signature to a false instrument. The Quick Service Box Case involved the signature of an employee on a company check in an amount he was not authorized to sign. It was held this constituted a forgery. See also Anno. 41 A. L. R. 229, supplemented 46 A. L. R. 1529, and 51 A. L. R. 568.

It is pointed out in Anno. 52 A. L. R. (2d) 207, 210, that forgery under the coverage of a forgery bond is generally defined at least as broadly as the criminal statutes of the jurisdiction construing the bond. Under our forgery statute, sec. 943.38, a writing may. be forged if it is falsely made or altered. In our view, false making relates to genuineness of execution, Marteney v. United States (10th Cir. 1954), 216 Fed. (2d) 760, while alteration may relate to falsity of content. In Quick Service Box there was a false making in that the agent’s execution purported to be made by authority of one who did not give such authority. The same cannot be said for the Security Nat. Bank Case.

Security Nat. Bank, supra, also relied on sec. 343.56, Stats. 1953, which provided that assignment of a bill of exchange, promissory note, or other assignable instrument was a subject of. forgery. It is difficult to see how an unsigned copy of an invoice could fall within that definition. Subsequent cases from other jurisdictions have rejected Security Nat. Bank. State Bank v. Maryland Casualty Co. (8th Cir. 1961), 289 Fed. (2d) 544; North Carolina Nat. Bank. v. United States Casualty Co. (4th Cir. 1963), 317 Fed. (2d) 304.

In holding that these copies of invoices were not counterfeited, we'decline to follow Fidelity Trust Co. v. American Surety Co. (3d Cir. 1959), 268 Fed. (2d). 805, holding on facts similar to ours that unsigned copies of invoices were counterfeited. In that case the court said (p. 807) :

“We think that common usage would indicate that counterfeit is something that purports to be something that it is not. And that is just what these spurious invoices were.”

This view has been rejected by the Fourth circuit in First Nat. Bank v. Glens Falls Ins. Co. (1962), 304 Fed. (2d) 866, and North Carolina Nat. Bank v. United States Casualty Co. (1963), 317 Fed. (2d) 304. Those cases construed “counterfeited” to be modified by the phrase “as to the signature.”- The North Carolina Nat. Bank Case goes further by way of dictum (p. 309) :

“. . . [copies of invoices] having no intrinsic value in themselves and being non-negotiable, are not the usual subjects of counterfeiting or forgery. When they are fictitious only in the sense that they contain an implicit or explicit representation that a valid, collectible, but uncollected, receivable exists, it is very doubtful, whatever writing appeared upon them, they could be held to be the subject of counterfeiting or forgery so long as the writing did not misrepresent their origin.”

We are not willing to restrict the counterfeiting coverage of Clause (E) to signatures. However, we consider these writings to be exactly what they purport to be — copies of invoices. That goods covered by the original invoices had been shipped to fill purchase orders was a false representation contained in the body of the invoices and made by delivering the copies to plaintiff. Sischo obtained his loans by false pretenses, not by uttering forged or counterfeited writings.

Defendants also argue that invoices are not “securities, documents or other written instruments,” within the meaning of Insuring Clause (E) of the bond, citing Rockland-Atlas Nat. Bank v. Massachusetts Bonding & Ins. Co. (1959), 338 Mass. 730, 157 N. E. (2d) 239. That case held that a balance sheet accompanied by a letter of purported certification from a certified public accountant whose signature had been forged thereto was not a document or instrument within the meaning of Clause (E). The Massachusetts court considered “instrument” to be the broadest term in the phrase and defined it as, “ ‘A writing, made and executed as the expression of some act, contract, or proceeding

Under sec. 943.38 (1) (a), Stats., writings whereby legal rights or obligations are created, terminated, or transferred, and those which are commonly relied upon in business or commercial transactions as evidence of debt or property fights, are the subject of forgery. We assume that the bank extended credit on the faith of the false copies of invoices, an inference which defendants do not dispute. This is evidence prima facie that copies of invoices are commonly relied on in business and commercial transactions.

The issue reduced to its simplest terms is whether Clause (E) was intended to cover only those writings which have legal efficacy. We reserve this question for future determination, meanwhile commending it to the attention of the draftsmen of the bond.

In view of our disposition of the coverage issues, there is no need to discuss the issues as to notice of loss and waiver thereof.

By the Court. — Judgment reversed, and cause remanded with directions to dismiss the complaint.


source: Caselaw Access Project

author: Heffernan, J.

license: Public Domain

text:
    Travelers Insurance Company, Plaintiff, v. George McArthur & Sons, Defendant and Respondent: Welded Tube Company of America, Impleaded Defendant and Appellant.

      September 28

    October 27, 1964.

      For the appellant there was a brief by Petersen, Sutherland, Axley & Brynelson of Madison, and oral argument by Robert J. Sutherland.

    For the respondent there was a brief by Hill, Miller & Quale of Baraboo, and oral argument by James H. Hill, Jr.

   Heffernan, J.

The pleadings do not reveal how, when, or where the contract between McArthur and Welded Tube was entered into.

The impleaded defendant demurred to the cross complaint on the ground that upon the face thereof the court lacks jurisdiction over the person of Welded Tube, in that “Welded Tube Company of America is not engaged in substantial or in isolated activities within this state, whether such activities are wholly interstate, intrastate or otherwise; and further that ... the action does not arise out of any act or omission within this state by the defendant, . . .”

The trial court overruled the demurrer on the basis that the policy of the law was to avoid multiplicity of suits, and in the event the action could not be maintained here it would mean the commencement of another lawsuit in Pennsylvania.

The circuit court found that jurisdiction was based on sec. 262.05 (3), Stats., in that the contract was entered into in Wisconsin and that this, therefore, constituted an “act or omission” within Wisconsin by the defendant. We cannot agree with the learned trial judge.

Ch. 262, Stats., relates to the commencement of civil actions, and sec. 262.06, Stats., describes methods of obtaining personal service over defendants. No objection is raised to the method of service, but the defendant by its demurrer claims that there are no facts alleged that are sufficient to confer personal jurisdiction as provided in sec. 262.05.

The trial court relied upon sub. (3) of sec. 262.05, Stats., which provides as follows:

“262.05 PERSONAL JURISDICTION, GROUNDS FOR GENERALLY. A court of this state having jurisdiction of the subject matter has jurisdiction over a person served in an action pursuant to s. 262.06 under any of the following circumstances :
“(3) Local act or omission. In any action claiming injury to person or property within or without this state arising out of an act or omission within this state by the defendant.”

The trial court reasoned that this section was applicable since the injury occurred without the state as the result of an act or omission within this state by the defendant, and that act within the state was when they [Welded Tube] stepped across the line and entered into a contract in Wisconsin.

We can find no allegations in the cross complaint, in the stipulation, or elsewhere that lead to the conclusion that this was a Wisconsin contract or that there was an act or omission by Welded Tube in Wisconsin. The only fact that can be gleaned from the cross complaint or stipulation is that McArthur ordered hammock stands from Welded Tube, but that at the request of McArthur these stands never came into Wisconsin and were sent from Pennsylvania to Orange, Connecticut. If jurisdiction is to be predicated on the situs of the contract, the facts as alleged are not dispositive of that question. The facts are not sufficient to resolve this problem on the basis of any rules of contract law.

McArthur in its argument before the circuit court attempted to found jurisdiction upon sec. 262.05 (4), Stats., which provides as follows:

“262.05 Personal jurisdiction, grounds for generally. A court of this state having jurisdiction of the subject matter has jurisdiction over a person served in an action pursuant to s. 262.06 under any of the following circumstances :
“(4) Local Injury; foreign act. In any action claiming injury to person or property within this state arising out of an act or omission outside this state , by the defendant, provided in addition that at the time of the injury either:
“(a) Solicitation or service activities were carried on within this state by or on behalf of the defendant; or
“(b) Products, materials or things processed, serviced or manufactured by the defendant were used or consumed within this state in the ordinary course of trade.”

.We agree with the trial judge that this section does not confer jurisdiction under the facts of this case. There was no injury within this state, and whether the stands were used or consumed in this state, as required by sub. (4) (b) is therefore irrelevant. It would appear, also, that the stipulation of the parties, that the stands never came physically into the state of Wisconsin, but were upon the orders of McArthur shipped directly from Pennsylvania to Connecticut, negates a use or consumption in Wisconsin in the physical sense.

The defendant, McArthur, in its brief on appeal attempts to base jurisdiction upon sec. 262.05 (1) (d), Stats., which provides as follows:

“262.05 Personal jurisdiction, grounds for generally. A court of this state having jurisdiction of the subject matter has jurisdiction over a person served in an action pursuant to s. 262.06 under any of the following circumstances :
“(1) Local presence or status. In any action whether arising within or without this state, against a defendant who when the action is commenced:
“(d) Is engaged in substantial and not isolated activities within this state, whether such activities are wholly interstate, intrastate, or otherwise.”

McArthur claims that its allegation, “That said hammock stands were used or consumed within the state of Wisconsin in the ordinary course of trade at the times mentioned in the complaint,” is an allegation that the defendant, Welded Tube, is “engaged in substantial and not isolated activities within this state.” Professor G. W. Foster in his extensive revision notes dealing with the adoption of sec. 262.05, Stats., and which appear in 30 W. S. A. (1964 pocket part, p. 21), sec. 262.05, points out that this subsection contemplates a recjuirement similar to that of “doing business” within the state which requires not just an isolated contact but “substantial activities” which are “continuous and' systematic.” The facts alleged' by McArthur are not sufficient to ground jurisdiction upon this portion of the statute. In Flambeau Plastics Corp. v. King Bee Mfg. Co. (1964), 24 Wis. (2d) 459, 129 N. W. (2d) 237, the court, though not directly ruling on the point, indicated its doubt that the defendant’s action in entering into the single contract alleged, with a Wisconsin resident and to be performed in Wisconsin, gave the defendant a sufficient local status to subject it to personal jurisdiction under sec. 262.05 (1) (d). We hold that the' facts as herein alleged are not sufficient to give rise to jurisdiction under this portion of the statute.

Under none of the theories advanced by the defendant, or which can be advanced on his behalf giving his pleadings the most favorable construction, are the allegations sufficient for a finding that the court has jurisdiction.

We give full recognition to the expression of legislative intent that ch. 262, Stats., be liberally construed to the end that actions be speedily and finally determined on their merits, and we are fully appreciative of the learned trial judge’s efforts toward that end. It may well be that facts can be alleged which will make possible the speedy disposition of this lawsuit within the jurisdiction of the court. However, the facts as alleged show an extremely minimal contact by Welded Tube within the state of Wisconsin. Under the facts alleged we see no power under the statutes to subject this corporation to the jurisdiction of the Wisconsin courts. While it may well be more convenient for the domestic corporation to dispose of its litigation in its own forum, it cannot do so unless Welded Tube has had such contact with this jurisdiction “that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.’” International Shoe Co. v. Washington (1945), 326 U. S. 310, 316, 66 Sup. Ct. 154, 90 L. Ed. 95. Such contact has not been alleged.

The trial judge in his exhaustive memorandum decision correctly pointed out that this is “virgin territory.” In the event that the defendant, McArthur, can allege facts that will bring Welded Tube within the provisions of the statute, he is at liberty to try again.

We reverse the decision of the trial court and sustain the demurrer, with leave to the defendant, McArthur, to plead over within twenty days, with that period to run from the date this record is returned to the circuit court.

By the Court. — Order reversed with leave to plead over within twenty days, with that period to run from the date this record is returned to the circuit court.


author: Fairchild, J.

text:
    McDonald, Appellant, v. Chicago, Milwaukee, St. Paul & Pacific Railroad Company and another, Respondents.

      September 28

    October 27, 1964.

      For the appellant there were briefs and oral argument by A. M. Frederickson of Milwaukee.
    For the respondent Chicago, Milwaukee, St. Paul & Pacific Railroad Company there was a brief by Bender, Trump, Davidson & Godfrey and Rodger S. Trump, all of Milwaukee, and oral argument by Rodger S. Trump.

    For the respondent Brotherhood of Maintenance of Way Employees there was a brief by Shea & Hoyt of Milwaukee, and Mulholland, Hickey & Lyman of Toledo, Ohio, attorneys, and Ralph M. Hoyt of Milwaukee, and Richard R. Lyman and Donald W. Fisher, both of Toledo, of counsel, and oral argument by Mr. Ralph M. Hoyt and Mr. Fisher.

   Fairchild, J.

1. Jurisdiction. The circuit court was of the opinion that because this action would involve interpretation of a collective-bargaining agreement between a railroad and a union the Congress, by the Railway Labor Act, had vested exclusive jurisdiction in the national railroad adjustment board.

The Railway Labor Act classified railroad labor disputes into two large categories, labeled by the supreme court as “major” and “minor” and established separate procedures for handling each. Major disputes involve agreements not yet reached; i.e., negotiations for future contracts. They present the large issues over which strikes ordinarily arise. Such disputes are submitted to mediation under the auspices of the national mediation board, arbitration upon consent of both parties, and possible ultimate presidential intervention. As the disputes involve agreements not yet reached, the act does not compel agreement, but only requires that its voluntary procedures be exhausted before the parties resort to economic self-help.

Minor disputes involve agreements already entered into and rights already accrued. They consist of disputes and differences as to interpretation of agreements in effect, and the effect of those agreements upon situations and problems which arise incidentally in the course of employment. With respect to “minor” disputes “the Act does not leave the parties wholly free, at their own will, to agree or not to agree.” The act established the national railroad adjustment board. Sub. (i) of the act provides:

“The disputes between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions, including cases pending and unadjusted on June 21, 1934, shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes; but, failing to reach an adjustment in this manner, the disputes may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board with a full statement of the facts and all supporting data bearing upon the disputes.”

The board has “jurisdiction” to determine grievances and make awards; either party may submit a dispute to the board whether or not the other is willing. The board’s decisions are final and binding. Unions may be enjoined from calling strikes over such controversies. This procedure for the handling of minor disputes has been referred to by the federal courts as compulsory arbitration in a limited area.

A claim of wrongful discharge of an employee is a “minor” dispute and falls within the board’s jurisdiction. The federal courts have held as a .general rule that in cases where the board has primary jurisdiction, such jurisdiction is exclusive. However, in Moore v. Illinois Central R. Co. the supreme court held that there was nothing in the Railway Labor Act to prevent a state court, and on removal a federal court, from entertaining an action for wrongful discharge.

In Slocum v. Delaware, L. & W. R. Co. relied upon by-respondents and the trial court, the court held that a state court could not entertain an action for a declaratory judgment with respect to a jurisdictional dispute between two unions. The court stated that the dispute concerned interpretation of an existing bargaining agreement, and that settlement of the dispute “would have prospective as well as retrospective importance to both the railroad and its employees, since the interpretation accepted would govern future relations of those parties.” The action was thus within the exclusive jurisdiction of the national railroad adjustment board. However, the court went on to say:

“Our holding here is not inconsistent with our holding in Moore v. Illinois Central R. Co., 312 U. S. 630. Moore was discharged by the railroad. He could have challenged the validity of his discharge before the Board, seeking reinstatement and back pay. Instead he chose to accept the railroad’s action in discharging him as final, thereby ceasing to be an employee, and brought suit claiming damages for breach of contract. As we there held, the Railway Labor Act does not bar courts from adjudicating such cases. A common-law or statutory action for wrongful discharge differs from any remedy which the Board has power to provide, and does not involve questions of future relations between the railroad and its other employees. If a court in handling such a case must consider some provision of a collective-bargaining agreement, its interpretation would of course have no binding effect on future interpretations by the Board.”

In a case decided the same day, the court held that a railroad could not seek an interpretation of a collective-bargaining contract by declaratory-judgment action in a state court in a dispute arising from claims by continuing employees to extra pay for certain work.

In Transcontinental Air v. Koppal the supreme court stated:

“This case presents two questions: (1) whether a discharged employee of a carrier that is subject to the Railway Labor Act is precluded by that Act from resorting to a state-recognized cause of action for wrongful discharge and, if not, (2) whether, in such action, he must show that he has exhausted his administrative remedies, under his contract of employment. For the reasons hereafter stated, our answer to the first question is no and to the second, yes, provided the applicable state law so requires.”
The court went on to state:
“The important point is that while the employment contract conforms to the policy of the Railway Labor Act and the Act provides a procedure for handling grievances so as to avoid litigation and interruptions of service, the Act does not deprive an employee of his right to sue his employer for an unlawful discharge if the employee chooses to do so.”

And after quoting portions of the Moore and Slocum decisions to the effect that a discharged employee may bring a common-law action for damages in a court, the opinion went on:

“The result is that, whereas, under the Railway Labor Act, the Adjustment Board has exclusive jurisdiction to adjust grievances and jurisdictional disputes of the type involved in the Slocum case, that Board does not have like exclusive jurisdiction over the claim of an employee that he has been unlawfully discharged. Such employee may proceed either in accordance with the administrative procedures prescribed in his employment contract or he may resort to his action at law for alleged unlawful discharge if the state courts recognize such a claim. Where the applicable law permits his recovery of damages without showing his prior exhaustion of his administrative remedies, he may so recover, as he did in the Moore litigation, supra, under Mississippi law.”

In cases determined after the Koppal decision the supreme court has more narrowly limited the doctrine of Moore. In Pennsylvania R. Co. v. Day, the court held that claims of a retired employee to extra pay for work done before retirement constituted a dispute within the exclusive jurisdiction of the board. With respect to the Moore decision, the court stated:

“Our decision in Moore v. Illinois Central R. Co., . . . does not stand in the way of this. The decision in that case has been given its proper, limited scope in Slocum v. Delaware, L. & W. R. Co., . . . Moore carved out from the controlling doctrine of primary jurisdiction the unusual and special situation of wrongful discharge where the aggrieved employee had been expelled from the employment relationship. Moreover, since the discharge had been accepted as final by the employee, it is probable that the damages accrued primarily after the employment relationship had terminated.”

And in Union Pacific R. Co. v. Price the court held that once a discharged employee had voluntarily submitted his claim to the board and suffered an adverse ruling he was precluded from maintaining an action in court. The court stated in a footnote:

“Despite the clear import of the statutory language and the legislative history the respondent argues that this Court’s holding in Moore v. Illinois R. Co., .... requires us to hold that the instant suit is not precluded. However, the holding in Moore was simply that a common-law remedy for damages might be pursued by a discharged employee who did not resort to the statutory remedy before the Board to challenge the validity of his dismissal. A different question arises here where the employee obtained a determination from the Board, and, having lost, is seeking to relitigate in the courts the same issue as to the validity of his discharge.”

On the basis of the decisions just referred to the federal courts of appeal have dismissed actions where the object of the discharged employee was reinstatement in his former position. And actions have been dismissed where the employee refuses to accept the discharge as final or where it is proved that he was not in fact discharged. But the courts have uniformly held that the Railway Labor Act does not deprive a discharged employee of the right to maintain an action- for damages. And numerous decisions have stated that a discharged railroad employee has an option to challenge the validity of his discharge before the board and seek reinstatement and back pay, or, after accepting the dismissal as final, bring a civil suit against the railroad for damages for unlawful discharge. As was stated by the court of appeals for the Fourth circuit in a case decided March 2, 1964:

“Relying upon the established doctrine that a discharged railroad employee may at his option challenge the validity of his discharge before the Railroad Adjustment Board and seek reinstatement and back pay or, after accepting the dismissal as final, bring a civil suit against the railroad for unlawful discharge, Rumbaugh further asserted in his complaint that he was electing to pursue the latter course. He also joined the union as a defendant because it wrongfully procured his discharge by the railroad.
“While it is indisputable that a claim for wrongful discharge is judicially cognizable, an action of this type is essentially one at common law for breach of contract and does not arise under the Railway Labor Act. Consequently, original federal jurisdiction can attach only when there is diversity of citizenship.”

In addition the issue has come before a number of state courts which have reached the same conclusion.

In the complaint against the railroad now before us plaintiff alleged that he “accepts the railroad’s action in discharging him as final” and seeks damages for the wrongful discharge. He thereby brought himself within the rule of the Moore and Koppal Cases. Accordingly the circuit court had jurisdiction to entertain the action. The circuit court erred when it sustained the demurrer on jurisdictional grounds.

2. Sufficiency of the alleged cause of action against the railroad. The circuit court did not rule upon the general demurrers, because of its conclusion that it had no jurisdiction.

Liberally construed, the complaint against the railroad sufficiently alleges the existence of a contract granting plaintiff certain tenure in his employment, and a discharge on grounds which had no foundation in fact. The complaint does not tell us what grievance procedure or other remedy was available under the contract, nor that plaintiff exhausted such remedy.

We have held that where an employee brings an action for reinstatement in employment, claiming that a discharge violated the terms of a collective-bargaining agreement, he must prove (and presumably plead) that he has exhausted the remedies provided by the agreement or that there were circumstances excusing resort to such remedies. We did not decide whether the same rule would apply to an action by an employee who accepts the discharge as final and sues the employer for damages, as in the instant case.

In Kopke v. Ranney where a union member sued the union for damages for wrongful expulsion we held, for stated reasons of policy, that an expelled member must have exhausted the remedies available within the union before he can maintain an action for damages, unless there were circumstances which excused his resort to those remedies. One of the considerations mentioned was that there would be sounder justification for imposing liability for wrongful expulsion on the union treasury if an appellate body within the union had first been given an opportunity to limit damages by granting reinstatement.

The employment relationship is different from the membership relationship, of course, and we do not conclude, as a matter of law, that an employer who discharges an employee in violation of contract must always be given an opportunity to limit damages by reinstating the employee pursuant to whatever grievance procedure may be provided in the contract.

In Kopke we also held that the expelled union member must plead the exhaustion of his remedies within the union or facts which excuse his resort to them. In the present case, however, we conclude that if it is to be claimed that some provision of the collective-bargaining contract cuts off a wrongfully discharged employee’s right of action for damages for breach of contract, that is a matter of affirmative defense, and the facts must be pleaded by defendant.

. Accordingly we hold that the general demurrer to the complaint against the railroad must be overruled.

3. Sufficiency of the alleged cause of action against the union. Plaintiff appears to claim that the union failed negligently or wilfully to represent plaintiff in connection with his discharge. We think it clear that under our decision in Fray v. Amalgamated, etc., Local Union No. 248, no cause of action has been stated. The complaint does not allege facts sufficient to show that plaintiff exhausted his remedies within the union before bringing action. Neither does it allege the pertinent terms of the union constitution or other membership contract, nor of the collective-bargaining agreement. Absent those allegations, the complaint states only conclusions of law with respect to the union’s duty to protect plaintiff’s rights and its failure to do so.

The general demurrer to the complaint against the union must be sustained. Presumably the circuit court denied leave to plead over because of the ruling that the court had no jurisdiction in any event. We- think that plaintiff should be given an opportunity to plead over and remedy the deficiencies in his complaint if the facts permit him to do so.

4. Costs on appeal. Although the issues presented are issues of law, arising upon demurrers to complaints, plaintiff failed to include in his appendix either the complaints or the decision of the learned circuit judge. Because of these and other inadequacies in his presentation, we deny costs on appeal.

By the Court. — Judgment reversed, cause remanded for further proceedings not inconsistent with the opinion on file. No costs allowed to any party.

       45 U. S. Code, p. 462, sec. 151 et seq.

        Elgin, J. & E. R. Co. v. Burley (1945), 325 U. S. 711, 65 Sup. Ct. 1282, 89 L. Ed. 1886.

       Id., at page 725.

       45 U. S. Code, p. 529, sec. 153.

       45 U. S. Code, p. 530, sec. 153, First- (m). See Union Pacific R. Co. v. Price (1959), 360 U. S. 601, 79 Sup. Ct. 1351, 3 L. Ed. (2d) 1460.

        Trainmen v. Chicago R. & I. R. Co. (1957), 353 U. S. 30, 77 Sup. Ct. 635, 1 L. Ed. (2d) 622; Brotherhood of Locomotive Engrs. v. Louisville & N. R. Co. (1963), 373 U. S. 33, 83 Sup. Ct. 1059, 10 L. Ed. (2d) 172.

         Trainmen v. Chicago R. & I. R. Co., supra, footnote 6; Cook v. Missouri Pacific R. Co. (5th Cir. 1959), 263 Fed. (2d) 954; California v. Taylor (1957), 353 U. S. 553, 558, 559, 77 Sup. Ct. 1037, 1 L. Ed. (2d) 1034; Louisville & N. R. Co. v. Brown (5th Cir. 1958), 252 Fed. (2d) 149; Russ v. Southern R. Co. (6th Cir. 1964), 334 Fed. (2d) 224, 229.

        Pennsylvania R. Co. v. Day (1959), 360 U. S. 548, 79 Sup. Ct. 1322, 3 L. Ed. (2d) 1422.

       (1941), 312 U. S. 630, 61 Sup. Ct. 754, 85 L. Ed. 1089.

       (1950), 339 U. S. 239, 70 Sup. Ct. 577, 94 L. Ed. 795.

       Id., at page 242.

       Id., at page 244.

        Order of Conductors v. Southern R. Co. (1950), 339 U. S. 255, 70 Sup. Ct. 585, 94 L. Ed. 811.

       (1953), 345 U. S. 653, 73 Sup. Ct. 906, 97 L. Ed. 1325.

       Id., at page 654.

       Id., at page 660.

       Id., at page 661.

        Supra, footnote 8.

       Id., at pages 553, 554.

       (1959), 360 U. S. 601, 79 Sup. Ct. 1351, 3 L. Ed. (2d) 1460.

       Id., at page 609, footnote 8.

         Haley v. Childers (8th Cir. 1963), 314 Fed. (2d) 610; Hodges v. Atlantic Coast Line R. Co. (5th Cir. 1962), 310 Fed. (2d) 438; Hanson v. Chicago, B. & Q. R. Co. (7th Cir. 1960), 282 Fed. (2d) 758; Alabaugh v. Baltimore & Ohio R. Co. (4th Cir. 1955), 222 Fed. (2d) 861; Walters v. Chicago & N. W. R. Co. (7th Cir. 1954), 216 Fed. (2d) 332; Butler v. Thompson (8th Cir. 1951), 192 Fed. (2d) 831; Broady v. Illinois Central R. Co. (7th Cir. 1951), 191 Fed. (2d) 73.

        In Ferro v. Railway Express Agency, Inc. (2d Cir. 1961), 296 Fed. (2d) 847, 852, the court stated: “The fatal defect in appellants’ position is their unwillingness to allege that their employee status has been terminated and thus to allege a cause of action for wrongful discharge which would be properly before the district court. The district court offered an opportunity to appellants to come within its jurisdiction by alleging wrongful discharge but they did not choose to avail themselves of this offer. Under these circumstances the district court properly dismissed this part of the complaint.” And see, Anno. 61 A. L. R. (2d) 917, 929, sec. 9.

        Hundley v. Illinois Central R. Co. (6th Cir. 1959), 272 Fed. (2d) 752; Spires v. Southern R. Co. (4th Cir. 1953), 204 Fed. (2d) 453; Priest v. Chicago, R. I. & P. R. R. (8th Cir. 1951), 189 Fed. (2d) 813.

        Rumbaugh v. Winifrede R. Co. (4th Cir. 1964), 331 Fed. (2d) 530, 538, 539; Cook v. Missouri Pacific R. Co., supra, footnote 7; Cranston v. Baltimore & Ohio R. Co. (3d Cir. 1958), 258 Fed. (2d) 630; Oswald v. Chicago, B. & Q. Co. (8th Cir. 1952), 200 Fed. (2d) 549; Newman v. Baltimore & Ohio R. Co. (3d Cir. 1951), 191 Fed. (2d) 560; Priest v. Chicago, R. I. & P. R. R., supra, footnote 24.

        Rumbaugh v. Winifrede R. Co., supra, footnote 25; Haley v. Childers, supra, footnote 22; Ferro v. Railway Express Agency, Inc., supra, footnote 23; Cook v. Missouri Pacific R. Co., supra, footnote 7; Woolley v. Eastern Air Lines (5th Cir. 1957), 250 Fed. (2d) 86; Barnett v. Pennsylvania-Reading Seashore Lines (3d Cir. 1957), 245 Fed. (2d) 579; Thompson v. Moore (5th Cir. 1955), 223 Fed. (2d) 91; Walters v. Chicago & N. W. R. Co., supra, footnote 22; Newman v. Baltimore & Ohio R. Co., supra, footnote 25; Broady v. Illinois Central R. Co., supra, footnote 22.

        Rumbaugh v. Winifrede R. Co., supra, footnote 25, at pages 538, 539. And see Rocha v. Missouri Pacific R. Co. (D. C. Tex. 1963), 224 Fed. Supp. 566.

        Wise v. Southern Pacific Co. (1963), 223 Cal. App. (2d) 50, 35 Cal. Rptr. 652; Martin v. Southern R. Co. (S. C. 1964), 136 S. E. (2d) 907; Donahoo v. Thompson (Mo. 1956), 291 S. W. (2d) 70, 61 A. L. R. (2d) 911; Jorgensen v. Pennsylvania R. Co. (1955), 38 N. J. Super. 317, 118 Atl. (2d) 854; Payne v. Pullman Co. (1957), 13 Ill. App. (2d) 105, 141 N. E. (2d) 83; Atkinson v. Thompson (Tex. Civ. App. 1958), 311 S. W. (2d) 250; Crockett v. Union Terminal Co. (Tex. Civ. App. 1960), 342 S. W. (2d) 129.

        Widuk v. John Oster Mfg. Co. (1962), 17 Wis. (2d) 367, 374, 117 N. W. (2d) 245.

       (1962), 16 Wis. (2d) 369, 114 N. W. (2d) 485.

       See also Fray v. Amalgamated, etc., Local Union No. 248 (1960), 9 Wis. (2d) 631, 101 N. W. (2d) 782, an action by a union member against a union for negligent failure to process a grievance.

        Supra, footnote 31.


text:
    Applied Power Industries, Inc., Respondent, v. Department of Taxation, Appellant.

      September 28

    October 27, 1964.

      For the appellant the cause was argued by Harold H. Persons, assistant attorney general, with whom on the briefs was George Thompson, attorney general.
    For the respondent there was a brief by Whyte, Hirsch-boeck, Minaban, Harding & Harland, and A. William As-muth, Jr., all of Milwaukee, and oral argument by Mr. Asmuth.

   Fairchild, J.

1. Is the taxpayer engaged in business without the state? Sec. 71.07 (2), Stats., allowing a taxpayer to apportion his income, applies only to persons “engaged in business within and without the state.” The Department of Taxation contends that the taxpayer is not “engaged in business . . . without the state” and therefore is not entitled to apportion its income.

It is clear that the mere presence of promotional people or the engagement in promotional activities in other states is not sufficient to constitute the taxpayer as doing business (under our income tax statute) without Wisconsin. Nor does the mere presence of corporate property in other states constitute a taxpayer as doing business without the state. Here, however, there are additional activities in California and New York.

The property stored in New York and California is owned by the taxpayer. It is not property merely incidental to the derivation of income, as may be said of the property located outside the state in the Blatz Case. It is rather the very product, the sale of which will produce the income sought to be taxed. The property is delivered to customers of the taxpayer by the warehousemen pursuant to orders placed directly with the warehousemen. However, these sales are not made for the account of the warehousemen; the ware-housemen at no time assert ownership of the goods. The warehousemen exercise no discretion as to the price of the goods; that price is set at the main office. The warehouse-men exercise no discretion as to the ultimate receivers of the goods; the eligible customers and the maximum amounts which may be delivered to them are set by the taxpayer. The taxpayer thus rents space in New York and California, stores unsold goods which it owns there, has the goods sold and delivered to its customers by the warehousemen there. There is no contract of sale between taxpayer and one of these customers until the order is accepted and filled at the warehouse. The contract is made by the warehousemen on the taxpayer’s behalf. We are of the opinion that the ware-housemen’s activities as agents of the taxpayer in entering into and fulfilling contracts for the taxpayer are sufficient to constitute the taxpayer as engaged in business (under our income tax statute) in New York and California.

The department contends that the taxpayer is not itself engaged in business in those states. It argues that the only business related to the taxpayer in New York and California is being conducted by the warehousemen, and that by the terms of the warehousing agreements the warehousemen are not to be construed to be agents or employees of the taxpayer. But, as the trial court held, a person may be the agent of another for one purpose and not for another. If the independence of the warehousemen from control by the taxpayer be sufficient to insulate taxpayer from liability for torts of the warehousemen in general, the warehousemen are, nevertheless, the taxpayer’s agents in effecting sales. The warehousemen did not sell goods for their own account. They delivered goods to the taxpayer’s customers upon orders placed with them to a specified limit. In accepting and filling orders, they did so on behalf of the taxpayer and bound the taxpayer thereto. They performed functions which would otherwise have been performed by employees of the taxpayer. They did it as part of the taxpayer’s business. They held themselves out as representatives of the taxpayer, used its stationery, and operated in its name. They had the power, and indeed it was their function, to enter into contracts in the name of the taxpayer. We are of the opinion that these activities of the warehousemen constituted the doing of income-producing business by the taxpayer itself in the states in which the warehouses were located.

2. Were the orders filled by the warehousemen sales made through or by offices located in Wisconsin? Sec. 71.07 (2), Stats., provides that persons engaged in multistate business activity are to be taxed “only on such income as is derived from business transacted and property located within the state.” It affords ratios for determining the amount of income to be apportioned to Wisconsin. The third ratio is as follows:

“(c) In the case of trading, mercantile or manufacturing-concerns the ratio of the total sales made through or by offices, agencies or branches located in Wisconsin during the income year to the total net sales made everywhere during said income year.”

The department contends that the sales in question were actually made through or by the taxpayer’s main office in Wisconsin. It relies' on the facts that the warehousemen may fill orders only of customers whose credit has been approved by the main office and only to the extent of such approval, that the sale price is set by the main office, and that the billing and collection work is handled by the main office.

The court recently dealt with the sales ratio of sec. 71.07 (2) (c), Stats., in Globe-Union, Inc., v. Department of Taxation. In the Globe-Union Case the taxpayer delivered its products from its factories located in many states to customers in many states. The sales were made pursuant to long-term, comprehensive, written agreements with its large customers by which the taxpayer agreed to manufacture and sell to the customers a stated percentage of the customers’ annual requirements of the types of products manufactured by the taxpayer. The agreements were negotiated by the Wisconsin officers in addition to other activities of the Wisconsin office such as formulating price structure, making cost determinations, and the handling of payments and bookkeeping. We held that the sales were properly treated as being made through the Wisconsin office.

The factor distinguishing the Globe-Union Case from the case at bar is the absence here of overriding contracts negotiated in Wisconsin which were merely performed from time to time by deliveries from inventories located outside the state.

In the case at bar, although the main office sets the prices, does the billing, and operates as a credit manager, no sale, no binding contract, no actionable transaction, exists until an order is placed with the warehousemen. The warehousemen fill an order if it comes within the limit set by the taxpayer at the price set by the taxpayer, but do not check with the taxpayer before entering into the contract. They are in effect agents of the taxpayer empowered to make sales in their respective states though limited in their authority.

We are of the opinion that for the purpose of our apportionment statute the sales from the warehouses were not made by or through the Wisconsin office. We agree with the determination reached by the learned trial court.

By the Court.- — -Judgment affirmed.

Wiukie, J., took no part.

        Department of Taxation v. Blatz Brewing Co. (1961), 12 Wis. (2d) 615, 108 N. W. (2d) 319.

       (1963), 20 Wis. (2d) 213, 121 N. W. (2d) 894.


author: Hallows, J. Per Curiam

text:
    State ex rel. City of La Crosse and others, Appellants, v. Rothwell, State Superintendent of Public Instruction, Respondent. [Cases Nos. 37, 38.]

      September 29

    October 27, 1964.

      For the appellants there were briefs and oral argument by William J. Sauer of La Crosse.
    For the respondent the cause was argued by Harold H. Persons, assistant attorney general, with whom on the brief was George Thompson, attorney general.

       Motion for rehearing denied, with costs, on December 21, 1964.

   Hallows, J.

Sec. 40.035, Stats., reflects the policy of the state that all territory within the state shall be within school districts operating high - schools. Prior to June 30, 1962, territory not included in a district operating a high school could be attached to, created into, or consolidated with a district operating a high school by any of the various procedures provided by secs. 40.03, 40.06, 40.07, 40.12, and 40.14. On and after July 1, 1962, any territory which was not included in a district operating a high school was required to be attached to, created into, or consolidated with such a district by order of the county school committee not later than July 31, 1962. The order affecting such a result was made retroactive to July 1, 1962, and was subject to appeal to the state superintendent but not to a referendum, sec. 40.035 (3) (a) and (b).

On July 1, 1962, certain territory lying outside the city of La Crosse had not been attached to a district operating a high school. On July 2, 1962, the joint county school committee of La Crosse and Vernon counties called a meeting for July 30th to consider the attachment to the La Crosse city school district of certain territory involved in Case No. 37. After a hearing, an order was made attaching six school districts and part of two others to the La Crosse school district. The appellants, city of La Crosse, which operates under the city school plan provided by secs. 40.80 to 40.827, Stats., Robert Abbott and Harold E. Lee, property owners and electors of said city, and Justin Hall, a property-owner elector and parent of a child of school age in the territory to be attached, appealed the order to the state' superintendent of public instruction.

In Case No. 38 the joint county school committee of La Crosse, Vernon, and Monroe counties on July 20, 1962, attached an area to the Westby school district. This order was appealed by a resident of the area attached. On August 21, 1962, the state superintendent of public instruction held an informal hearing on each appeal. He later affirmed the order in Case No. 37 attaching territory to the La Crosse city school district and reversed the order attaching the territory to the Westby school district in Case No. 38 and attached that territory to the city of La Crosse school district. These two orders were then brought for review by certiorari to the circuit court and affirmed.

The state superintendent questions whether the city of La Crosse may raise the constitutionality of sec. 40.035, Stats. It is not contended the individual appellants do not have the capacity to raise such issue. The general rule has been that a municipality or state agency cannot question the constitutionality of a statute and was thoroughly discussed in Columbia County v. Wisconsin Retirement Fund (1962), 17 Wis. (2d) 310, 116 N. W. (2d) 142. See also Marshfield v. Cameron (1964), 24 Wis. (2d) 56, 127 N. W. (2d) 809. The general rule is subject to two exceptions: (1) If it is the agency’s official duty to do so, or the agency will be personally affected if it fails to do so and the statute is held invalid, and (2) if the issue is of “great public concern.”

The appellants argue the constitutional question is of great public concern, but in the Columbia County Case we pointed out these exceptions apply only to cases between private litigants and a municipality or state agency and not to suits between agencies of the state, or between an agency or municipal corporation and the state. Here, a municipality is suing the state superintendent of public instruction and consequently the city of La Crosse has no capacity to raise the constitutionality of the statute. However, so far as the constitutional question affects the rights of the individual appellants, such question is properly before us.

The appellants argue the determination of school-district boundaries is no longer a political or legislative question beyond constitutional limitations but a justiciable question, relying on Gomillion v. Lightfoot (1960), 364 U. S. 339, 81 Sup. Ct. 125, 5 L. Ed. (2d) 110, and Baker v. Carr (1962), 369 U. S. 186, 82 Sup. Ct. 691, 7 L. Ed. (2d) 663. To the same effect the appellants might well have cited State ex rel. Reynolds v. Zimmerman (1964), 23 Wis. (2d) 606, 128 N. W. (2d) 16, 128 N. W. (2d) 349. But these cases are not applicable unless the appellants can show a constitutional right which has been violated. They state they do not question the wisdom or seek a review of the specific policy question of where a particular- school boundary should lie but rather they attack the general legislative policy of revamping school-district boundaries over the opposition of the majority of the people involved — a result which apparently has happened in this case under sec. 40.035 (3) (a), (b), Stats., which provides an attaching order of the county school committee made between July 1 and July 31, 1962, is not subject to a referendum.

If we understand the appellants’ argument on this point it is that parents have a constitutionally protected interest in the education of their children. They rely on Meyer v. Nebraska (1923), 262 U. S. 390, 43 Sup. Ct. 625, 67 L. Ed. 1042, 29 A. L. R. 1446; Farrington v. Tokushige (9th Cir. 1926), 11 Fed. (2d) 710, affirmed 273 U. S. 284, 47 Sup. Ct. 406, 71 L. Ed. 646; and Pierce v. Society of Sisters (1925), 268 U. S. 510, 45 Sup. Ct. 571, 69 L. Ed. 1070, 39 A. L. R. 468. These cases involve the control of the type of education prescribed by the law and did not reach the question of the parents’ rights to determine directly or indirectly the location of school districts or their boundaries. We think no constitutional right exists in parents to determine school-district boundaries by direct vote or referendum. The established law in Wisconsin affirmed by a long line of decisions is that the determination of school-district boundaries is a legislative function, which may be delegated. The dis-tricting decision, however, may not be made against the educational interests of the students.- See State ex rel. Moreland v. Whitford (1882), 54 Wis. 150, 11 N. W. 424; State ex rel. Joint School Dist. v. Sweeney (1899), 103 Wis. 404, 79 N. W. 420; State ex rel. Zilisch v. Auer (1928), 197 Wis. 284, 221 N. W. 860, 223 N. W. 123; School Dist. v. Callahan (1941), 237 Wis. 560, 297 N. W. 407; Zawerschnik v. Joint County School Comm. (1955), 271 Wis. 416, 73 N. W. (2d) 566; and School Board v. State Superintendent (1963), 20 Wis. (2d) 160, 121 N. W. (2d) 900. True, such legislative process is also subject to constitutional limitations. The power may not be exercised arbitrarily or to discriminate and deny equal protection of the laws, but such claims are not made in this case.

However, contention is made that as to appellant Hall who is not a resident or an elector of the city of La Crosse that sec. 40.035, Stats., is unconstitutional in denying him equal protection of the laws because he has no voice by ballot over school affairs. Hall lives in the annexed area but has no vote in electing members of the school board. Members of the school board of the city of La Crosse are elected by the common council pursuant to sec. 40.803 (1) (b) 2. Provision is made by sub. (1) (a) for the council to appoint at least one member of the board from the attached area which lies outside the city. Assuming appellant Hall has a constitutional right to vote for members of the school board of the school district in which he lives this argument should be addressed to sec. 40.803, not sec. 40.035. The validity of sec. 40.035 dealing as it does only with duties of school board members after election or appointment does not depend upon the validity of sec. 40.803. We find no merit in this argument as applied to sec. 40.035.

It is contended sub. (6) of sec. 40.035, Stats., exempts Milwaukee county from provisions of the section and therefore the section violates the constitutional requirement of equal protection of the laws and the section also violates the requirement of the uniformity of county governments in sec. 23, art. IV, of the Wisconsin constitution. Under sub. (6) of sec. 40.035, which exempts a county containing a city having a population of half million or more, a city under certain circumstances may annex for all city purposes that portion of a territory which was not operating a high school and which was annexed to the city school system by order of the county school committee. The legislative history of sec. 40.035 makes it clear the language referring to “section” in the exclusion sentence refers only to sub. (6) and not to the entire section. But even if this exclusion were considered an invalid classification, which we do not, the appellants have no standing to raise the issue since they are in no way affected by it and it cannot be applied to their disadvantage. The exclusion is a discrimination against Milwaukee county and only that county can complain. Pedrick v. First Nat. Bank (1954), 267 Wis. 436, 66 N. W. (2d) 154.

As a result of the exclusion, cities in Milwaukee county cannot change their boundaries by the special annexation procedure of sec. 40.035 (6), Stats., while cities in other counties can. The appellants contend this result violates the requirement of uniformity of county government. This contention was made in an analogous situation in Zweijel v. Milwaukee (1925), 185 Wis. 625, 201 N. W. 385, wherein it was pointed out the annexation of territory to a city was no part of the system of town or county government. The power of the city to change its boundary line by ordinance under some circumstances as provided in sec. 40.035 (6) refers to cities and does not concern itself with the form of county government within the meaning of sec. 23, art. IV, of the constitution.

The final issue raised by the appellants is whether the procedure followed by the state superintendent in making his orders violated due process. On appeal of the orders of joint county school committees the state superintendent held an informal hearing or conference but based his decision not only upon the evidence and information produced at such hearings but also upon facts, data, and information within his own knowledge and experience and within the knowledge of his staff and communicated to him. The appellants contend the superintendent cannot so act and in determining school boundaries the school superintendent is either acting in a quasi-judicial capacity or in a legislative capacity. If the former, the doctrine of fair play and due process applies and he cannot consider evidence outside the record made at the hearing and if the superintendent is acting in a legislative capacity, which does not require a court-type hearing, such function is an improper delegation of legislative power.

We do not consider either horn of the proposed dilemma valid. The determination of school boundaries is not a judicial or quasi-judicial function but a legislative function which can be delegated by the legislature. Appeals to the state superintendent provided under sub. 3 (b) of sec. 40.035, Stats., are governed by the procedure applicable to' appeals taken under sec. 40.06 (3). The reasoning of Ford v. Rothwell (1964), 23 Wis. (2d) 80, 126 N. W. (2d) 489, is not restricted to appeals from the superintendent to the circuit court. There is no requirement by statute relating to school-district reorganizations or to the duties of the state superintendent of public instruction which requires on appeal that he shall hold a formal or trial-type hearing as a necessary part of his consideration. The appeal to the superintendent, which in nature is a de novo determination, was conducted according to the procedures of 5 Wis. Adm. Code, sec. PI 2.05, which do not require a formal or court-type hearing. The legislative process does not require a court-type hearing which has for its purpose the determination of facts and the rights dependent upon them. The purpose of a hearing in the legislative function is informative but not determinative of the result.

In some prior cases this court has said the function of the state superintendent of public instruction was not a direct legislative function. This did not mean it was not a legislative function but meant one which could be delegated to an agent for performance by the legislature. It is true as far back as 1860 in Joint School Dist. v. Wolfe, 12 Wis. 765 (*685), this court applied the term “quasi-judicial” to the superintendent’s power, but through the years while this court continued to use the phrase “quasi-judicial” in spite of the growth of administrative agencies, it held that no formal or court-type hearing was required of the state superintendent in his determination of school boundaries. School Dist. v. Callahan, supra; School Board v. State Superintendent, supra.

Appellants contend that since it used certiorari to secure a review by the circuit court of the orders that the doctrine of State ex rel. Ball v. McPhee (1959), 6 Wis. (2d) 190, 94 N. W. (2d) 711, applies and the state superintendent was required by common-law concepts of due process and fair play to hold a court-type hearing and to base his decision upon the record made at that hearing. The appellants misread the Ball Case. True, when an administrative agency acts in a quasi-judicial capacity it must base its decision on findings upon evidence or information obtained at a formal or court-type hearing upon valid notice. State ex rel. Cities Service Oil Co. v. Board of Appeals (1963), 21 Wis. (2d) 516, 124 N. W. (2d) 809. However, an administrative agency may act in a legislative capacity and when so acting it is not required by due process to hold a formal type of hearing and restrict its decision to facts appearing in the record unless required by statute. Whether the review is taken by certiorari or by petition under ch. 227, Stats., does not change these rules.

Nor does it follow that because a review is taken by cer-tiorari the proceedings before the state superintendent constituted a contested case within the meaning of sec. 227.13, Stats. A contested case is defined as “a proceeding before an agency in which, after hearing required by law, the legal rights, duties or privileges of any party to such proceeding are determined or directly affected . . .” Sec. 227.01 (2). Recently in two cases we pointed out the fair-play provisions of ch. 227, relating to notice of public hearing, right of cross-examination and the limitation that the decision must be based on matters placed in the record, are not applicable to decisions made in the exercise of the legislative function but are limited in their application to contested cases. We agree with the trial court that in determining school-district boundaries on appeal under sec. 40.035 the state superintendent does not violate due process in arriving at his decision by relying on facts and information not produced at a hearing or without providing for a court-type hearing.

By the Court. — Judgments affirmed.

The following opinion was filed December 21, 1964:

Per Curiam

{on motion for rehearing). Appellants’

brief in support of their motion for rehearing points out that it was not their original contention that sec. 40.035, Stats., denies due process to the city of La Crosse but rather that it denies due process to its citizens. Thus the city raised this constitutional issue in its representative capacity. This distinction was recognized in Associated Hospital Service v. Milwaukee (1961), 13 Wis. (2d) 447, 468, 469, 109 N. W. (2d) 271, which held that a city when acting in such a representative capacity may raise the question of the unconstitutionality of a state statute when the issue presented is one of great public concern or interest.

However, the reason for such an exception disappears when electors and taxpayers of the city are parties to the action. Under such circumstances there is no necessity for the city acting in a representative capacity. Here two electors and taxpayers of the city of La Crosse are parties to the action and have raised the identical constitutional issue raised by the city.

The motion for rehearing is denied with costs.

        Associated Hospital Service v. Milwaukee (1961), 13 Wis. (2d) 447, 109 N. W. (2d) 271.

         Fulton Foundation v. Department of Taxation (1961), 13 Wis. (2d) 1. 108 N. W. (2d) 312. 109 N. W. (2d) 285.

         State ex rel. Horton v. Brechler (1925), 185 Wis. 599, 202 N. W. 144; State ex rel. Zilisch v. Auer, supra; School Dist. v. Callahan, supra; Zawerschnik v. Joint County School Comm., supra.

        State ex rel. Moreland v. Whitford, supra; State ex rel. Horton v. Brechler, supra; School Dist. v. Callahan, supra; and Zawerschnik v. Joint County School Comm., supra.

         Ashwaubenon v. State Highway Comm. (1962), 17 Wis. (2d) 120, 115 N. W. (2d) 498; Ashwaubenon v. Public Service Comm. (1963), 22 Wis. (2d) 38, 125 N. W. (2d) 647, 126 N. W. (2d) 567.


author: Gordon, J. Hallows, J.

text:
    Maahs, Respondent, v. Industrial Commission and others, Appellants.

      September 29

    October 26, 1964.

      For the appellant Industrial Commission the cause was argued by Gordon Samuelsen, assistant attorney general, with whom on the brief was George Thompson, attorney general.
    For the other appellants there were briefs by W. L. Jack-man and Hart, Kraege, Jackman & Wightman, all of Madison, and oral argument by W. L. Jackman.

    For the respondent there was a brief and oral argument by Frederick F. Hillyer of Madison.
   Gordon, J.

The principal problem in the instant case is whether an employee’s deviation from his employment for the purpose of satisfying his personal curiosity defeats coverage. There are two Wisconsin decisions which unmistakably assert the strict rule that an employee breaks the master and servant relationship when he momentarily steps aside from his employment for the purpose of satisfying an idle curiosity. In Peterman v. Industrial Comm. (1938), 228 Wis. 352, 358, 280 N. W. 379, the court said:

“Such a departure from the scope of one’s employment, measured in terms of time and space, may be very slight. Nevertheless, if the act performed by one is in furtherance of his own purposes and without the scope of his employment, the master may not be liable.”

Several cases from other jurisdictions are analyzed at page 360 of the Peterman Case in support of the rule there announced “that an employee may not recover for an injury suffered while engaged in satisfying his idle curiosity.” The other Wisconsin case which expresses the aforesaid view is Guenther v. Industrial Comm. (1939), 231 Wis. 603, 286 N.W. 1.

The trial court concluded that the doctrine of the Peter-man and Guenther Cases was outmoded; instead the trial court adopted what it deemed to be the more reasonable and modern view expressed in 1 Larson, Law of Workmen’s Compensation, p. 372, sec. 23.66:

“On the whole, however, the newer curiosity cases lend considerable support to the view that foolery, whether in the form of horseplay participation or some momentary act inspired by curiosity, should have the benefit of the general rule that trifling and insubstantial deviations, which do not measurably detract from the work, should not be treated as departures from the scope of employment.”

There are numerous cases from other jurisdictions which support the rule espoused by the circuit court. Moore v. Superior Stone Co. (1955), 242 N. C. 647, 89 S. E. (2d) 253; Jordan v. Dixie Chevrolet, Inc. (1950), 218 S. C. 73, 61 S. E. (2d) 654; Simon v. Standard Oil Co. (1949), 150 Neb. 799, 36 N. W. (2d) 102; Franck v. Allen (1946), 270 App. Div. 960, 61 N. Y. Supp. (2d) 728; Bernier v. Greenville Mills, Inc. (1944), 93 N. H. 165, 37 Atl. (2d) 5; Derby v. International Salt Co. (1931), 233 App. Div. 15, 251 N. Y. Supp. 531; Miles v. Gibbs & Hill, Inc. (1929), 255 App. Div 839, 232 N. Y. Supp. 818.

We believe that there is a sound basis for questioning the strict rule of Peterman and Guenther. The doctrine of those cases, which denies compensation to an employee for even the slightest deviation, was criticized in Bethlehem Steel Co. v. Parker (4th Cir. 1946), 64 Fed. Supp. 615, 618; it referred to the Peterman Case as one of those which was “decided many years ago when the courts were still under the influence of the narrow and technical construction of the scope of the Compensation Acts; . . .”

Professor Larson has recognized that those cases in which awards were made to employees who had been injured while satisfying their curiosity generally involved acts which were “insubstantial and impulsive.” 1 Larson, Law of Workmen’s Compensation, p. 370, sec. 23.66. The author also points out that when the deviation is a deliberate, conscious, and substantial excursion which involves the temporary abandonment of the employee’s regular duties, such deviation is not covered by the act. See Secor v. Penn Service Garage (1955), 35 N. J. Super. 59, 113 Atl. (2d) 177; Robertson v. Express Container Corp. (1953), 13 N. J. 342, 347, 99 Atl. (2d) 649.

In many ways, the present case is factually identical to Walker v. Woldridge (1954), 58 N. M. 183, 268 Pac. (2d) 579. The court denied compensation, although in that case the employee was specifically instructed not to disturb the property in the car he was cleaning. On the other hand, compensation was granted in another tear-gas bomb case. Jordan v. Dixie Chevrolet, Inc. (1950), 218 S. C. 73, 61 S. E. (2d) 654.

The record in the case at bar discloses that the Peterman Case was brought to the attention of the Industrial Commission at the time it made its decision. Under the circumstances of this case, the determination whether the employee was performing service growing out of and incidental to his employment required the application of law to the facts. While the order of the commission does not expressly so indicate, we think it is probable that its order was made in contemplation of the strict rule of Peterman and Guenther. Under that rule, a momentary or minor deviation would have barred compensation. We recognize that the conduct of Mr. Maahs was such that the commission may have determined that his acts were deliberate, conscious, and substantial and of such a nature as to preclude his receiving an award of compensation; however, it is also possible that the commission could have decided that his deviation was impulsive, momentary, and insubstantial, which would result in his being granted an award of compensation.

Since we are now prepared to reject the Peterman and Guenther doctrine in favor of the rule referred to by Professor Larson and by the trial court, we deem that Mr. Maahs is entitled to a reconsideration of the record in his case by the Industrial Commission in light of the change in the law reflected in this opinion. Upon remand it will remain discretionary with the Industrial Commission whether to hold further hearings.

By the Court. — Judgment reversed, and cause remanded with directions.

Hallows, J.

(dissenting). I would reverse but not remand the case to the Industrial Commission for a finding. The facts are undisputed and only a question of law is presented, i.e., the application of the law to the evidentiary facts. The acts of Maahs as a matter of law meet the new test adopted by the court that a deviation to preclude an award of workmen’s compensation in curiosity cases must be a deliberate and conscious excursion.

Maahs picked up the box from the car floor and opened it. This he had no right to do, curiosity or not. What was in the sheriff’s car was none of his business. Maahs removed the billy from the box, unfastened the safety catch, looked into the barrel and pushed the button or trigger. At any one of these steps after opening the box he could have stopped. These acts considered individually or serially were not impulsive or thoughtless but deliberately induced and motivated by curiosity. The mere fact the acts probably did not take up a great deal of time is not dispositive. They amounted to deliberate nosiness involving a temporary abandonment of the employee’s duties to wash the car.

The finding of the Industrial Commission should be affirmed. Upon the facts I believe the Industrial Commission upon remand has no choice but to find Maahs’ conduct was deliberate and conscious and not such a momentary impulsive act as amounted to an insubstantial deviation from his duties. Consequently, I would reverse the trial court and affirm the Industrial Commission.

I am authorized to state Mr. Justice Beilfuss joins in this dissent.


text:
    Balen, d/b/a Balen and Associates, Respondent, v. Franklin, Appellant.

      September 29

    October 27, 1964.

      For the appellant there were briefs by Anderson, Bylsma & Eisenberg of Madison, and oral argument by Donald S. Eisenberg.

    For the respondent there was a brief by Lawton & Cates and John C. Carlson, all of Madison, and oral argument by Mr. Carlson.

   Beilfuss, J.

The issues resolve themselves into the single question — Is there credible evidence to support the verdict?

The defendant states that his basic contention is that the plaintiff architect is not entitled to compensation under any theory of law because of his failure to submit plans and specifications for the construction of a building in accordance with the cost maximum agreed to by the parties. In support of this contention he cites several authorities to the effect that where the owner specifies that a building is not to exceed a specified price and makes this fact known to the architect at the time of entering into the contract and the owner does not thereafter direct alterations which increase the price, the architect cannot recover for his services under the contract or upon quantum meruit unless he provides plans and specifications for a building that can be erected for the sum named.

The plaintiff does not dispute that this is a correct statement of the law on the facts as alleged by the defendant.

The plaintiff, however, insists this general principle has no application here for the reason that the jury found that the agreement of the parties was not conditioned upon the cost of the building amounting to no more than approximately $150,000. We agree that the plaintiff cannot be denied compensation for his services (assuming the contract was otherwise substantially complied with) unless there was a building-cost limitation agreed to by the parties. The issue, therefore, becomes — Is there any credible evidence which under a reasonable view supports the verdict ?

As we stated in Presser v. Siesel Construction Co. (1963), 19 Wis. (2d) 54, 60, 119 N. W. (2d) 405 :

“Citation of authority is not needed for the oft-quoted rule that the evidence must be viewed in the light most favorable to the verdict and if there is any credible evidence which under any reasonable view will sustain a verdict, which has the approval of the trial court, this court ought not upset it.”

The jury found that the parties, on or about May 15, 1962, mutually agreed that the plaintiff was to perform the architectural services for the defendant, and further found that the parties did not agree to a building-cost limitation of $150,000.

Our review of the record convinces us that there is sufficient credible evidence to sustain these findings.

Under the facts as set forth above, the jury could reasonably conclude that the plaintiff and Shomberg had originally agreed that plans and specifications should be prepared for a building not to cost in excess of $150,000; they could further conclude that Shomberg so advised the defendant. The building that Shomberg and the plaintiff agreed should not exceed $150,000 was a building with 18 apartments and three underground offices. It appears without dispute that Shom-berg ordered that the plans be revised to provide for a 21-unit apartment. Because of applicable building codes substantial changes were necessary. The apartments could not be below ground which meant a four-story rather than a three-story building. The building could not be of block construction as originally planned but must be constructed as a fire-resistant building. These and other changes, and selection of materials which unquestionably raised the ultimate cost, were discussed between the plaintiff and the defendant. Although the record does not reveal any specific discussion as to increased cost, the jury could infer that defendant knew or should have known that these changes would probably increase the cost of the building.

The jury could consider the defendant’s affirmative response to the demand for fees as evidentiary of the fact that the parties had not agreed upon a cost limitation. It could further consider the defendant’s participation in the loan transactions as bearing on his credibility as a witness, insofar as cost limitations were concerned.

The verdict reveals that the jury affirmatively found that the parties did mutually agree upon the compensation to be paid for the architectural services and amount due the plaintiff under such agreement to be $5,358.18. These answers, too, are within the credible evidence of the case.

The plaintiff’s statement of fees sent to defendant claimed $6,236.38. The plaintiff called the defendant by telephone on June 22d and advised the defendant that inasmuch as the construction of the building had been abandoned by the defendant, the fee for architectural services would not be six percent of the total as originally agreed upon but that his charges would be only for time and expense. The plaintiff testified that the defendant told him that he appreciated this consideration and to send him the bill. The letter of transmittal of June 25th accompanying the bill contained the statement, “I am submitting our statement indicating all our expenses incurred in connection with this building as we had discussed in our telephone conversation of June 22, 1962.”

The statement reveals the architect’s fee at six percent would have been $11,592.18, and at four and one-half percent $8,694.12, but the amount claimed upon a time and expense basis was $6,236.68. It is undisputed that Shomberg had paid the plaintiff $878.50 for work on the plans. This payment subtracted from the $6,236.68 leaves $5,358.18, the same amount as awarded by the jury. While the record may reveal additional credible evidence to support the verdict as to the agreement for compensation, the facts related are sufficient.

Upon motions after verdict the trial judge reviewed the evidence and approved the verdict. We agree this verdict should be sustained and judgment entered thereon in behalf of the plaintiff'.

The portion of the defendant’s brief designated “Issues Involved” sets forth several other alleged trial errors as to the form of the verdict, instructions to the jury, and rulings on the evidence. The body of the brief advances no argument and cites no authorities in support of his position on such issues. Because no argument has been made on these issues, if they' be such, we do not deem ourselves obligated to do more than briefly comment upon them. Sawdey v. Schwenk (1958), 2 Wis. (2d) 532, 87 N. W. (2d) 500.

The defendant’s “issues” inquire as to whether it was error to submit a damage question on quantum meruit' recovery and instruct the jury in that respect.

The jury was instructed in the verdict not to answer the quantum meruit damages question if it found damages based upon agreement between the parties. The jury, pursuant to that instruction, did not answer the quantum meruit damage question. While we do not intend to intimate it was error to submit the question and the instruction, the submission to the jury could not be prejudicial error for the reason the' jury did not answer the question.

The defendant’s statement of issue inquires as to whether it was error to admit Exhibits 9, 9A, and 18 into evidence. Exhibits 9 and 9A are the letter of transmittal and the statement of fees sent by plaintiff to defendant on June 25th. The letter contains a gratuitous statement to the effect that the building with a construction cost of $194,000 would be a profitable venture and that other persons were interested in the proposed building or the plans. While these portions of the letter were immaterial and could have, in the discretion of the trial judge, been obliterated or stricken, or the letter reproduced with objectional material omitted before it went to the jury, there is no showing that this information affected the jury and we do not deem it to be prejudicial.

Exhibit 18 was the mortgage-loan application. It was admissible if for no other reason than to challenge the credibility of the witness.

The defendant, through his counsel, upon oral argument, but not in his brief, contends that an architect by virtue of his skill and training has a legal fiduciary obligation to inform the owner of the probable costs during the planning stage. No authority for this contention was furnished to us, but more critically no request of any kind was made to the trial court for an instruction on this subject. The question cannot be raised in this manner nor at this time.

The plaintiff is entitled to judgment upon the verdict, together with his costs.

By the Court. — Judgment affirmed.

Wilkie, J., took no part.

       6 C. J. S., Architects, p. 310, sec. 14; 5 Am. Jur. (2d), Architects, p. 679, sec. 17; Clas v. State (1928), 196 Wis. 430, 220 N. W. 185.


author: Wilkie, J. Gordon, J.

text:
    State, Appellant, v. Fogle, Respondent.

      September 29

    October 27, 1964.

      For the appellant the cause was argued by Betty R. Brown, assistant attorney general, and John Peyton, district attorney of Racine county, with whom on the briefs were George Thompson, attorney general, and William A. Plats, assistant attorney general.
    For the respondent there was a brief by Rex Capwell and Foley, Capwell, Foley & Kolbe, all of Racine, and oral argument by Rex Capwell.

       Motion for rehearing denied, without costs, on December 21, 1964.

   Wilkie, J.

The sole question on this appeal is whether the trial court properly dismissed the action against respondent under the provisions of Wisconsin’s Disposition of Intrastate Detainer Act. This statute, patterned after the Uniform Mandatory Disposition of Detainer Act, permits an inmate of a state prison to request a prompt disposition of any charges pending against him. Sec. 955.22 (2), Stats., provides:

“(2) Duty of District Attorney in Felony Cases. If the crime charged is a felony, the district attorney shall either move to dismiss the pending case or arrange a date for preliminary hearing as soon as convenient and notify the warden or superintendent of the prison thereof, unless such hearing has already been held or has been waived. After the preliminary hearing or upon waiver thereof the district attorney shall file an information (unless it has already been filed) and mail a copy thereof to the warden or superintendent for service on the inmate. He shall bring the case on for trial within 180 days after receipt of the request unless:
“(a) No term of court at which the case may be tried is held within such period;
“(b) The trial is continued for cause upon notice to the defendant or his counsel or upon motion of defendant, or is continued by stipulation; or
“(c) The trial cannot be held within such period because of the absence, disability, or disqualification of the judge and inability to obtain the services of another judge within the period. In any case, the-.trial shall be held at the earliest possible time after the expiration of said period of 180 days.” (Emphasis added.)
Sec. 955.22 (7), Stats., provides :
“(7) When Further Prosecution Barred. If the district attorney moves to dismiss any pending case or if it is not brought on for trial within the time herein specified the case shall be dismissed unless the defendant has escaped or otherwise prevented the trial, in which case the request for disposition of the case shall be deemed withdrawn and of no further legal effect. Nothing in this section prevents a trial after the period herein provided if a trial commenced within such period terminates in a mistrial, or a new trial is granted as provided by law.” (Emphasis added.)

The state argues that the phrase “bring the case on for trial” in sec. 955.22 (2), Stats., means only that the district attorney, as here, must perform his duties prescribed in sec. 955.22 (2). When the respondent was arraigned and the prosecutor was standing ready for trial that was enough to comply with sec. 955.22. We do not agree.

The whole thrust' of sec. 955.22, Stats., is to provide a legislative definition of what constitutes a reasonable time for bringing an accused to trial where intrastate detainers have been issued, and where there has been a request for a speedy trial. One hundred and eighty days will ordinarily be plenty of time for the complete trial and disposition of such a charge.

It is clear from all of the provisions of sec. 955.22, Stats., that the legislature intended actual trial or the commencement of a trial, when it provided in sec. 955.22 (2) that the district attorney “shall bring the case on for trial within 180 days after receipt of the request . . .” Such a conclusion is also supported by the language employed in sec. 955.22 (7), which provides for the dismissal of a case “if it- is not brought on for trial” within the specified time.

In the recent case of State ex rel. Fredenberg v. Byrne the court stated at page 511:

“This section [955.22] applying only to intrastate de-tainers requires, with some exceptions, the trial within one hundred and eighty days of the request by the prisoner or the dismissal of detainer filed against him.”

Sec. 955.22 (2), Stats., contains three specific escape hatches to excuse bringing a case to trial within the one hundred and eighty-day period: (1) Where no term of court is held at which the case “may be tried” (sec. 955.22 (2) (a) ) ; (2) where “the trial is continued for cause upon notice to the defendant or his counsel or upon motion of defendant, or is continued by stipulation” (sec. 955.22 (2) (b)) ; (3) where no judge is available to try the case (sec. 955.22 (2) 00).

Everyone of these exceptions is couched in terms of a “trial” or a case being “tried.” That the matter may be postponed beyond the one hundred and eighty-day period for good cause is covered by sec. 955.22 (2) (b), Stats., which specifically contemplates that the cause may be continued for good cause on motion of either party. If there is good cause why the state cannot be ready to try the accused within the one hundred and eighty days all the district attorney has to do is bring on a soundly based motion for a continuance. In the instant case the district attorney took his time about bringing the matter on for trial. We are not impressed by his complaint that the defendant’s motion was dilatory. If he was of that opinion at the time the motion was made, be could have moved to have the motion dismissed on that ground. In the end, if the district attorney was concerned about the time limit, all he needed to do was move for a continuance.

In this case, however, the defendant’s own motion to suppress that was not disposed of as of the date when the one hundred and eighty-day period expired was, in effect, a motion that the trial be continued for cause within the meaning of sec. 955.22 (2) (b), Stats. Thus one of the escape hatches was opened so that the state was excused from the requirement that the trial at least be commenced within the one hundred and eighty-day period. The last sentence of sec. 955.22 (2) (c) provides:

“In any case, the trial shall be held at the earliest possible time after the expiration of said period of 180 days.”

Under this section the trial court maintaining jurisdiction of the case on proper motion should have set the matter down for trial at the earliest possible time, after the expiration of the one hundred and eighty-day period, thus complying with the provisions of this subsection.

By the Court. — Order reversed and cause remanded for further proceedings not inconsistent with this opinion.

Gordon, J.

{dissenting). Sec. 955.22, Stats., is clearly designed to provide for the prompt disposition of pending intrastate charges against persons in prison. If the prisoner makes a formal request for the disposition of a charge outstanding against him, the statute directs that such charge must be brought on for trial within one hundred and eighty days. Sec. 955.22 (2). If it is not so brought on for trial, the statute requires dismissal of the charge. Sec. 955.22 (7). There are, however, several exceptions to the requirement of dismissal recited in the statute; one exception is if “the trial is continued for cause upon notice to the defendant or his counsel or upon motion of defendant. . .”

In the instant case, the trial was never expressly continued for cause, although the defendant did bring certain motions before the court. In a rather remarkable piece of judicial legerdemain, the majority has determined that a motion by the defendant to suppress certain evidence “was, in effect, a motion that the trial be continued for cause.” To say that Mr. Fogle made a motion for a continuance when, in fact, he moved to suppress evidence is, in my opinion, fallacious. It is “correct” only because the majority of the court has said it; it has little else to sustain it.

I believe that the trial court properly granted the accused’s motion to dismiss, and the court’s order should therefore be affirmed.

I am authorized to state that Mr. Justice Hallows and Mr. Justice Beilfuss join in this dissent.

       Sec. 955.22, Stats.; ch. 109, Laws of 1961.

       9B U. L. A., 1963 Supp., p. 101.

       See State v. Goetz (1960), 187 Kan. 117, 120, 353 Pac. (2d) 816, 818, which holds that a Kansas statute, substantially similar to sec. 955.22, Stats., means that the case must be tried within the one hundred eighty-day period.

       (1963), 20 Wis. (2d) 504, 123 N. W. (2d) 305.

       Sec. 955.11, Stats.


text:
    Pire and others, Appellants, v. State Aeronautics Commission, Respondent: WKBH Television, Inc., Intervening Respondent.

      September 29

    October 27, 1964.

      For the appellants there was a brief by Ramsdell, King, Carroll & Barland of Eau Claire, attorneys, and J. Curtis McKay of Milwaukee of counsel, and oral argument by Mr. McKay and Mr. Thomas H. Barland.

    For the respondent the cause was argued by George B. Schwahn, assistant attorney general, with whom on the brief was George Thompson, attorney general.
    For the intervening respondent there was a brief by Johns, Pappas & Flaherty of La Crosse, and oral argument by Robert D. Johns.

   Heffernan, J.

The appellants are individual aviators, and they contend that:

1. The commission exceeded its delegated authority granted it by the legislature when it allowed consideration other than aeronautical safety to control the granting of a construction permit.

2. The action of the commission in rejecting the report of the hearing officer and the recommendations of its own staff violated the spirit of the Administrative Procedure Act.

3. Evidence was improperly excluded by the hearing officer to the prejudice of the appellants.

The essence of the appellants’ first contention is that the decision of the commission was based upon economic factors, rather than upon the question of safety to air navigation. Though economic information was submitted to the commission, at the very outset the hearing officer made it clear that the decision would be based upon'the question of air hazards and not upon problems of economics as they might affect the television industry. The counsel for the commission objected to the introduction of economic evidence because it had no bearing on safety “or the primary cause of this hearing.” The examiner stated that information as to economics was allowed to come in only for the purpose of showing the interest of the parties.

Since the decision of the commission is not based upon the economic evidence in the record, it is not necessary to reach that question in this appeal. The decision of the commission is supported by other evidence that the appellants concede is proper under the authority delegated to the commission. That evidence is the evidence concerning the hazard to air navigation. The fact is that the references to economic factors were merely incidental to the basic finding and decision of the commission that the proposed tower did not constitute an unacceptable hazard to the safe operation of aircraft.

Emphasis is placed upon the conduct and votes of the members of the commission at the meeting of the commission on December 16, 1962, when the report of Mr. Leonard, the hearing officer, was submitted to the entire commission.

Mr. Leonard’s position, in accordance with his report, was that the tower was a hazard to air navigation.

Mr. Love stated he did- not believe the tower to be an unacceptable hazard and that if the tower were denied, the commission would be limiting the right of the applicant to serve the public.

Mr. Cole stated he did not believe the tower was a hazard.

Mr. West, although he indicated that the commission had an obligation to television users, indicated that he disbelieved the pilots, who, in his words, “were against all towers.” His decision was based, therefore, upon a refusal to give credence to testimony that the proposed tower was a hazard.

Vice-chairman Olson objected to the consideration of the question at all, because he felt that he had not had sufficient time to study the record.

The circuit court, in analyzing the vote at this particular meeting, stated:

“. . . we conclude that the majority of the commission by its decision, and supporting minutes of the December 16th meeting, have found that the proposed tower will not invade a recognized VFR flyway and will not create an unacceptable hazard to aviation traffic in the vicinity.”

Subsequently, on a motion for rehearing, Mr. Olson, together with the other members of the commission, voted to deny a rehearing. There is no intimation in the record or the brief of counsel that Mr. Olson gave any weight to the economic factors.

Two of the members of the commission expressed some concern for the problems of the television industry, but even those two indicated, supra, that they believed the tower was not a hazard or disbelieved those who testified it was. The majority of the commission based its decision on the evidence that the proposed tower was not a hazard to air navigation.

The question, therefore, is whether the commission’s decision is supported by substantial evidence. The question before the commission was the determination of whether the tower at that location was a hazard unacceptable to the aviation traffic. Upon reviewing the entire record, it appears that this conclusion is supported by such evidence. Substantial evidence in a case of this kind is evidence upon which reasonable minds could arrive at the same conclusion reached by the commission. Ashwaubenon v. State Highway Comm. (1962), 17 Wis. (2d) 120, 131, 115 N. W. (2d) 498.

The F.A.A., prior to the hearing in question, made a determination that the tower in question was not a hazard to air navigation. This report was submitted in evidence in the course of the hearing. Expert testimony, particularly that of Mr. Lowell Wright, a former employee of the Civil Aeronautics Administration, indicated that the tower would not constitute an unacceptable hazard to the safe operation of aircraft in the vicinity of La Crosse. Mr. Lappas, an aeronautical consultant, testified that the tower would not constitute an unacceptable hazard to IFR flying with necessary adjustments as prescribed by the F.A.A., nor would it constitute an unacceptable hazard to VFR flying. The proposal for the tower was also submitted to the La Crosse aviation board. It did not object to the erection of the tower at the proposed site, even though earlier proposed locations had been rejected.

There was expert testimony submitted by Mr. Wright to show that the height of a tower was not necessarily a significant factor in the incidence of aircraft collisions and evidence that during the past four years midair collisions between aircraft have occurred from between 17 to 20 times per year, while in the past twelve years there have only been 18 collisions with tall towers.

These are all factors upon which the commission may well have concluded that the tower did not constitute an unacceptable hazard to the safe operation of aircraft.

It is true that 21 aviators from other parts of the state objected to the erection of the tower, but it is equally significant that no local objections were made. The weight, however, of their testimony was for the commission, and it is not within the province of the court to review that determination.

There was also evidence to show that the proposed tower was just outside of the La Crosse airport control area. Under the rules promulgated by the F.A.A., anyone flying in the area must fly at an elevation of 700 feet or more and must have visibility of at least three miles. Anyone flying in the area or in its immediate vicinity and having the visibility required would not be placed in greater hazard because of the height of the tower. Although the rules of the La Crosse control area do not completely eliminate all hazards, they are significant in reducing the hazards created by the tower, and this fact was properly considered by the commission.

It appears, therefore, that there was substantial evidence to show that this tower was not an unacceptable hazard to air navigation and that such evidence was more than a mere scintilla and was such that a reasonable mind could accept in arriving at the same conclusion as that reached by the commission.

The appellants have also contended that rejection of the recommendation of one of its members, the hearing officer, and one of its staff was improper. Sec. 114.135 (6), Stats., provides that:

“No person shall erect . . . any . . . tower or any other object the height of which exceeds the limitations set forth in sub. (7) without first filing an application and procuring a permit from the state aeronautics commission.” (Emphasis supplied.)

To accept the contention of the appellants would be a grave departure from the authority delegated to the commission by the legislature. The hearing officer acts only for the commission, and in this case was but one member of it. It is crystal clear from the very words of the statute that the authority delegated is not to a hearing officer or the staff. The authority is vested in the commission acting as a body. Kavanaugh v. Wausau (1904), 120 Wis. 611, 98 N. W. 550.

The appellants also contend that they were prejudiced in that Chairman Leonard, acting as a hearing officer, stated that economic factors would not be considered and that the hearing would be confined to the aeronautical aspects of the tower application. There is no evidence, however, that any economic evidence was offered by the appellants, nor that it was excluded by the hearing officer.

Furthermore, the review of the record and of the decision of the commission makes it apparent that the decision of the commission is supported by substantial evidence relevant to whether the tower was an unacceptable hazard to air navigation, and there is no contention that the appellants were denied any right to submit evidence on this subject. On the contrary, their right to submit evidence and testimony on this controlling aspect of the commission’s decision was unlimited.

Upon a review of the record, we conclude that the commission did not exceed its statutory authority in granting the permit. It is also presumed that orders and acts of administrative agencies are prima facie valid and must be shown to be otherwise by clear and satisfactory evidence. Madison Bus Co. v. Public Service Comm. (1953), 264 Wis. 12, 14, 58 N. W. (2d) 463; Halsey, Stuart & Co. v. Public Service Comm. (1933), 212 Wis. 184, 195, 248 N. W. 458.

The appellants have not successfully assumed the burden of showing that there was any irregularity or invalidity in the decision-making process of the commission. The decision of the commission is supported by substantial evidence of the nature which even the appellants concede is proper for the determination here in question, namely, whether the tower is an unacceptable hazard to air navigation.

By the Court. — Judgment affirmed.