STATE v. LAMPING, 36 Wis.2d 328 (1967)

153 N.W.2d 23

Supreme Court of Wisconsin.September 11, 1967. —
October 3, 1967.

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APPEAL from an order of the circuit court for Oconto county: AROLD F. MURPHY, Circuit Judge. Reversed.

Proceeding by the state against defendant F. Lorenz Lamping pursuant to secs. 30.03(4) and 111.07(7), Stats., to enforce an order of the public service commission (hereinafter the “commission”) requiring defendant to remove certain fill material alleged to have been placed in Boulder Lake in Oconto county.

Defendant owns a parcel of land on the east shore of Boulder Lake. One Neeck owns the land north of defendant’s property. A point or peninsula, approximately 150 feet in length and 40-120 feet in width, extends westerly from their properties in the lake. During the summer of 1963, defendant caused a mineral soil fill to be placed on the portion of the point adjacent to his property, without first obtaining a permit from the commission to do so.

It is undisputed that Boulder Lake is navigable water and that no bulkhead line has been established thereon. Other owners of property on the lake complained to the commission about defendant’s fill activities. The commission, pursuant to sec. 30.03(4)(a), Stats., gave notice of a hearing to defendant and others on December 3, 1963. The notice referred to complaints by defendant’s neighbors,

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investigations by its staff, and the alleged violation of sec. 30.12.[1] The notice then provided:

“The Commission deems that good cause exists for a formal investigation and hearing herein under section 30.03, Statutes.

“Notice is hereby given that the Commission will investigate the matters herein and will hold public hearing in the County Courthouse at Antigo on January 10, 1964 at 9:00 a.m.”

Defendant arrived at the hearing without counsel. There appeared as complainants an engineer from the public service commission, a biologist and a warden from the conservation department, a surveyor, and four property owners on Boulder Lake. One of the property owners was represented by counsel. Defendant protested that he had believed the proceeding was going to be an “informal hearing.” However, he allowed the hearing to continue, and had his wife bring in a lawyer who arrived before any relevant testimony was given.

This lawyer was totally unfamiliar with the case. He conferred with defendant during a five-minute recess in the morning session and during the recess between the morning and afternoon sessions. He cross-examined the complainants and directly examined defendant and defendant’s one witness. The main issue at the hearing was whether the point or peninsula was land or a floating bog. The testimony was at times complex, and counsel’s lack of preparation in the case was evident. Defendant’s witness was a retired engineer and surveyor. However, he gave no expert testimony but rather gave

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testimony as one who had lived on Boulder Lake for over fifty years. Defendant, a clergyman, also gave no expert testimony. Defendant’s counsel, at no time, asked for an adjournment, a recess, or a subsequent hearing.

Both defendant’s counsel and one of the complainants filed briefs after the hearing and prior to the commission’s order. Defendant’s counsel requested permission to file the deposition of a witness unable to be present at the hearing. His request was denied by the hearing examiner.

On April 27, 1964, the commission issued its findings and order. It found that the point was a floating bog and that the fill thereon in fact constituted a fill upon the bed of the lake in violation of sec. 30.12, Stats. Defendant was ordered to remove the fill material down to the natural bed of the lake.

Defendant never moved the commission for a rehearing pursuant to sec. 196.405, Stats., nor petitioned for judicial review pursuant to sec. 196.41. He did move the commission twice however, on May 12 and November 27, 1964, for reopenings pursuant to sec. 196.39. Defendant retained different counsel for the handling of the second motion. Both motions were denied. In the first motion, he did not state that he had any new evidence to present. The second was deemed not timely, and the commission expressed its impatience at defendant’s alleged stalling tactics in evading compliance with the order.

On March 30, 1965, the state petitioned the circuit court for Oconto county for enforcement of the April 27, 1964, order of the commission.

The circuit court held hearings on May 26, July 13, and July 21, 1965. Defendant was represented by yet a third counsel at these hearings. He adduced testimony from seven witnesses in addition to himself and introduced 13 exhibits. All evidence was received by the court. The state limited itself to cross-examining defendant’s

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witnesses and introducing into evidence one exhibit. At the close of the hearing on July 21st the court announced from the bench its memorandum decision denying enforcement of the commission’s order. The court stated in part:

“This court finds that the peninsula or spit of land going out into Boulder Lake owned by the respondent, F. Lorenz Lamping, was not a floating bog. The best testimony in this case is that the land was firmly attached to the bed of the lake and water did not go through or under the land called the peninsula. It is my opinion that the Public Service Commission applied the wrong rule of law in deciding that the peninsula was a floating bog. I refer for my authority to the definition of a floating bog in the case of Attorney General ex rel. Becket v. Bay Boom Wild Rice Fur Co. [(1920), 172 Wis. 363, 178 N.W. 569]. The petition of the Public Service Commission is denied for an enforcement judgment.”

The state has appealed.

For the appellant the cause was argued by Robert B. McConnell, assistant attorney general, with whom on the briefs was Bronson C. La Follette, attorney general.

For the respondent there was a brief and oral argument by Orville S. Luckenbach of Shawano.

CURRIE, C. J.

These issues are presented by the instant appeal:

(1) Does the circuit court’s memorandum decision constitute an appealable order?

(2) Did the circuit court have jurisdiction to receive additional evidence?

(3) On remand to the circuit court, will that court be authorized to remand to the commission for the purpose of permitting defendant to adduce further evidence?

(4) Is there credible and competent evidence in the record to support the commission’s finding that the point was a floating bog?

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Appealability of Circuit Court Decision.
While the parties have not raised the issue of whether the circuit court’s memorandum decision constitutes an appealable order, the parties cannot by failure to raise the issue confer jurisdiction upon this court to review an order that is not appealable.[2]

The instant enforcement proceeding was instituted in circuit court pursuant to sec. 30.03(4)(a), Stats.[3]
This statute incorporates by specific reference sec. 111.07(7). The effect of such specific reference is the same as if the incorporated section was set forth verbatim and at length therein.[4]

Sec. 111.07(7), Stats., provides not only for the enforcement of an order but for the judicial review of an order. The only appeal from the court’s judgment and decree in such proceeding shall be to this court. Thus, there is no ch. 227 judicial review via sec. 196.41. Since a review pursuant to secs. 227.15 to 227.20, inclusive, has been held to be a special proceeding,[5] it is only

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consistent to hold that a sec. 30.03(4)(a) enforcement proceeding is a special proceeding.

“A final order affecting a substantial right made in special proceedings” is expressly made appealable by sec. 274.33(2), Stats.

A final order in a special proceeding is one which determines and disposes finally of the proceeding — one which, so long as it stands, precludes any further steps therein.[6] Here, the memorandum decision achieved the requisite finality.

This court has held that the final ruling of a court, even if incorporated in a memorandum decision, constitutes an order,[7] although it is preferable for the trial court to draft and enter a separate order. Thus there is a final order in a special proceeding, which has affected a substantial right. The order is appealable.

Jurisdiction to Receive Additional Evidence.
As previously pointed out herein, the provisions of sec. 111.07(7), Stats., are made applicable to an enforcement proceeding, such as the instant proceeding, by sec. 30.03
(4)(a). Sec. 111.07(7) provides in part as follows:

“. . . Upon such hearing the court may confirm, modify, or set aside the order of the board and enter an appropriate decree. No objection that has not been urged before the board shall be considered by the court unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances. The findings of fact made by the board, if supported by credible and competent evidence in the record, shall be conclusive. The court may, in its discretion, grant leave to adduce additional evidence where such evidence appears

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to be material and reasonable cause is shown for failure to have adduced such evidence in the hearing before the board. The board may modify its findings as to facts, or make new findings by reason of such additional evidence. . . .”

This court has clearly held that sec. 111.07(7), Stats., does not authorize the taking of additional evidence by the circuit court. That court’s power is limited to granting a party leave to adduce additional evidence before the commission. The circuit court must confine itself to the record in a sec. 111.07(7) enforcement proceeding.

As stated in Wisconsin Employment Relations Board v. Allis-Chalmers Workers’ Union:[8]

“. . . In proceeding to take further evidence the court acted in excess of and beyond its jurisdiction. If the court was of the view that either of the parties was entitled to present further evidence it should, in accordance with the language of the statute [sec. 111.07(7)], have remanded to the board for further proceedings. The statute does not authorize the taking of additional evidence by the court. If additional evidence is to be adduced it must be adduced before the board, and the court was in error in proceeding as it did. . . .”

The circuit court misconstrued sec. 111.07(7), Stats., as authorizing the adducing of additional evidence before the court rather than the commission. As a result a substantial amount of evidence was adduced before the court in the enforcement proceeding. This court has held that a trial court exceeded its jurisdiction under sec. 111.07(7) by having received into evidence in an enforcement proceeding a single affidavit.[9]

Because the circuit court exceeded its jurisdiction in permitting additional evidence to be offered before it, its order grounded in part on this evidence must be reversed and the cause remanded.

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Authority of Circuit Court to Remand to Commission for Adducing Additional Evidence.
Sec. 111.07(7), Stats., expressly authorizes the circuit court in its discretion to grant leave for the adducing of additional evidence before the commission “where such evidence appears to be material and reasonable cause is shown for failure to have adduced such evidence in the hearing. . . .”

The attorney general contends that defendant is barred from being accorded the right to adduce further evidence before the commission because no request to be permitted to do so was made to the circuit court prior to the scheduled hearing in that court. He contends that sec. 111.07(7), Stats., should be interpreted as embodying the same requirement as sec. 227.19(1). The latter statute provides that application to present additional evidence before the agency must be made “before the date set for trial.”[10]

Prior to the enactment of the Wisconsin Administrative Procedure Act (ch. 227), sec. 111.07(8), Stats., provided for a judicial review which was to be conducted in the same manner as sec. 111.07(7).[11] Sec. 111.07(8) was repealed in 1943 as one of the subsections intended to be superseded by ch. 227.[12] It was recreated to read, as it does today:

“The order of the board shall also be subject to review in the manner provided in chapter 227, except that the place of review shall be the circuit court of the county in which the appellant or any party resides or transacts business.”

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Ch. 227, Stats., was drafted by the Committee on Administrative Tribunals of the State Bar Association, of which Mr. Ralph Hoyt was chairman. The committee found it necessary to change over some 70 separate statutes prescribing methods of review. Mr. E.E. Brossard, then Revisor of the Wisconsin Statutes, wrote Mr. Hoyt letter in 1943 suggesting that the committee’s proposed bill had overlooked sec. 111.07(7). On April 3, 1943, Mr. Hoyt wrote Mr. Brossard that sec. 111.07(7) was not to be affected by ch. 227, because sec. 111.07(7) concerned enforcement proceedings and not judicial review.[13]

Sec. 111.07(7), Stats., says nothing about a party having to make a request for leave to present additional evidence prior to the hearing. It simply states that, “. . . The court may, in its discretion, grant leave. . . .”

Although, generally, a statute covering the subject matter of a former statute repeals it, it is a question of legislative intent.[14] Here, the intent was clear. Even though this provides an exception to the uniformity of judicial review of administrative actions, it was an intentional exception.

In Wisconsin Employment Relations Board v. Allis-Chalmers Workers’ Union Case,[15] the party made no request for leave to present additional evidence until

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during the enforcement proceeding. (Appellant’s brief, p. 12, citing pp. 250-252 of the record as set forth in appellant’s appendix at pp. 240-242.) The appellants there made the same argument as to timeliness as the appellants do here. This court rejected that argument when it remanded the case in the following fashion:

“Upon the return of the record to the trial court it will be its duty to proceed in one of two ways. First, to determine upon the record made before the board whether the order of the board of December 26, 1946, should be confirmed, modified, or set aside. Second, if proper application is made under the provisions of sec. 111.07(7), Stats., if the court, in the exercise of its discretion is of the opinion that further evidence should be taken, the matter should be referred to the board in accordance with the provisions of that subsection.”[16]

Therefore, the circuit court upon remand of the cause pursuant to our mandate herein is authorized to proceed in similar fashion.[17] Under the facts of this record we determine that it would not be an abuse of discretion for the circuit court to hold that reasonable cause exists for defendant’s failure to have adduced additional evidence before the commission.

Credible and Competent Evidence to Support the Finding of Floating Bog.
Inasmuch as it will lie within the discretion of the circuit court whether to remand to the commission for the adducement of further evidence, there exists the possibility that the circuit court may refuse defendant’s request so to do. Because of this contingency we deem it advisable to pass on the issue of whether there exists

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sufficient credible and competent evidence adduced before the commission’s examiner to sustain the finding of floating bog.

Sec. 111.07(7), Stats., provides:

“The findings of fact made by the board, if supported by credible and competent evidence in the record, shall be conclusive. . . .”

The commission expressly found that the Lamping point was a floating bog and not riparian upland. These findings cannot be disturbed by a court, “unless they are unsupported by substantial evidence in view of the entire record submitted.”[18] This court, however, has also stated in relation to this provision of sec. 111.07(7), Stats., “`. . . Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'”[19]

The commission’s findings must be read in light of the fact that this court has defined a floating bog. In Attorney General ex rel. Becket v. Bay Boom Wild Rice Fur Co.[20]
the court held that floating bogs were not land and that they did not prevent the water on which they floated from being classified navigable water, where large expanses of the area in ordinary stages of water were in fact navigable. This court stated:

“. . . In fact, however, floating bog is a mass of grass, reeds, and other aquatic vegetation which grows and floats on the surface of water in warm weather, which may become frozen into the ice during the winter, and upon the recurrence of high stages of water is carried

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on its surface, is broken off, and may be moved by the winds and currents to deep waters, where it is ground to shreds and disappears as sediment on the bed of the water. When it so floats and before it is so destroyed and deposited on the water bed, it is in no sense soil or land. Wherever it forms in the summer season it indicates tha there is a substantial amount of water between it and the soil forming the bed of the water. . . .” (Emphasis supplied.)[21]

The attorney general in his reply brief states that such definition was a mere recitation of the factual situation of that case. Although it is true that the court seems to have drawn its definition from the testimony of one engineer who testified in the lower court proceedings, the language used by the court is not limited to the facts. It does not say “this floating bog” or “the floating bog,” but rather “In fact, however, floating bog is. . . .”

This definition seems to contemplate something less substantial than was involved in this case. The record of the proceedings before the commission reveals that the point has existed at its present location for more than fifty years, that people could walk on it, that at times there have been a duck blind and a skeet-shooting outfit on it, and that trees grew upon it.

However, the biologist from the Wisconsin conservation department testified, “It is the floating bog common in many Wisconsin lakes. It contains cedar, sphagnum, leather leaf and alders. The portion on which there was no mineral soil on the date [Oct. 16, 1963] these pictures were taken literally floated.” He also stated:

“In order to prepare myself to testify here today I reviewed a text on vegetation by John T. Curtis entitled `Vegetation of Wisconsin’, a publication of the University of Wisconsin press published in 1959. Dr. Curtis’ portrayal of sphagnum mats and floating bogs, particularly pages 235. . . .

“. . .

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“All I am saying is that I have reviewed the testimony of this professor of botany, a recognized text, and it substantiates my opinion in terms of plants that this is a floating bog. The floating bog that he described is substantially identical with what I saw here.”

The attorney general in his brief quotes from pages 235-237 of Professor Curtis’ work. Both he and the expert witness rely on a section that is found in ch. 12 — Northern Forests, Lowland. There is no mention of ch. 18 — Fen, meadow, and bog, particularly pages 378-384. On page 383, Professor Curtis states:

“. . . sphagnum bogs are one stage in the primary hydrosere succession from open-water lake, to conifer swamp, and eventually to climax mesic hardwood forest. The stage is very long lived. . . .

“. . . the bog frequently originates on a floating mat. . . .

“In the absence of disturbance, the bog mat gradually thickens, fills the entire lake bed, and becomes solidified in the process. . . Sooner or later, it is likely to be invaded by tamarack and black spruce, which rather quickly transform the area to a swamp forest.” (Emphasis supplied.)

Ch. 12 of the work indicates that the invasion of cedar trees (as present on the Lamping point) is an even later stage. The work also indicates that even inland bogs are quite spongy with a tremendously high water-retaining capacity. Thus, all the testimony before the commission of people getting their feet wet while walking on the point is not conclusive that the bog floated. It would seem, then, that there is a stage at which a floating bog may become a bog or swamp, which would certainly have to be considered land.

We also consider that a further material factor to be considered, in determining whether the instant peninsula is floating bog or land, is the degree to which it is anchored or fastened to the underlying lake bed. If it is so securely anchored or fastened thereto that its surface

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does not rise or fall with the raising or lowering of the lake’s water level, it would not longer constitute floating bog.[22]

While the commission’s finding that the peninsula is floating bog is not one that this court would have made on the evidence adduced before the examiner, we are compelled to hold that this finding is supported by the credible and competent expert opinion testimony of the conservation department’s biologist.

By the Court. — The order is reversed and cause remanded for further proceedings consistent with this opinion.