The threshold question is whether the action of the legislatively created site committee is reviewable at all by the circuit court. Or, to put it another way, does the judiciary have the jurisdiction to review the recommendation of the site committee and of the final selection made by the Governor, the Co-ordinating Committee for Higher Education, and the Building Commission.
It seems clear, at the outset, that the decisions of the State's chief executive are not reviewable under ch. 227, Stats., because the Governor's office is not an administrative agency within the terms of that portion of the statutes. Both plaintiffs and defendants herein acknowledge that no appeal procedure specifically applicable to review the action of the site committee or the Governor, the Co-ordinating Committee for Higher Education, and the Building Commission is spelled out by the statute. The defendants, however, contend that the site committee falls within the statutory definition of those agencies whose determinations may be reviewed. Sec. 227.01, Stats., defines sub. (1):
"'Agency' means any board, commission, committee, department or officer in the state government, except the governor or any military or judicial officer of this state."
The defendants assert that the determinations were, therefore, reviewable under the Wisconsin Administrative Procedure Act and, as a consequence of plaintiffs' failure to file a petition for review within thirty days
It is apparent that the action of the site committee was advisory only. It is equally clear, though the action be denominated as a decision, which in itself is doubtful, that it affected the "legal rights, duties or privileges" of the plaintiffs only indirectly and not directly, as is required if the court is to consider the action to be reviewable. It is the plain meaning of the statute under which the site committee was organized that its action was advisory only and the final decision was to be the accord reached by the Governor, the Co-ordinating Committee for Higher Education, and the Building Commission. This concurring action is the only decision in the sequence of events alleged that might have the consequence of directly affecting the legal rights of the plaintiffs. The decision was thus, in part at least, that of the Governor, which is beyond peradventure excluded from review under the procedures of ch. 227. This factor alone is sufficient to vitiate the argument of the Attorney General that the complainants' remedy was under ch. 227. Moreover, in the absence of an allegation
However, it is within the province of the judiciary in a proper case to determine whether another agency of the government has properly performed its legislatively delegated function even though that function was a necessary antecedent to gubernatorial action. We are satisfied that this court may examine the recommendation of the site committee for the purpose of determining its nature and to inquire into whether the exercise of its powers should be reviewed or limited by this court.
As we have stated above, the site committee's conduct is not reviewable under the Administrative Procedure Act. The general rule was set forth in 1945 by Mr. Chief Justice ROSENBERRY, who stated in Clintonville Transfer Line v. Public Service Comm. (1945), 248 Wis. 59, 69, 21 N.W.2d 5, that:
"If no appeal or comparable procedure is prescribed for review, none exists. In the absence of legislative authorization to review the facts, administrative determinations can be reviewed only by certiorari, in which only questions of law are raised."
This rule, that the right of appeal is statutory and does not exist except when expressly given and cannot be extended to cases not within the statute, has been quoted with approval on numerous occasions. Greenfield v. Joint County School Comm. (1955), 271 Wis. 442, 447, 73 N.W.2d 580; Milwaukee v. Public Service Comm. (1960), 11 Wis.2d 111, 115, 104 N.W.2d 167.
However, concurrent with these decisions there developed the exception alluded to in the Clintonville Transfer Case, supra, permitting a review by certiorari in
Accordingly, we conclude that the review of the legislatively created site committee is not barred merely because no statutory method of review was provided. It is established that such a review of certain legal issues can be accomplished by certiorari.
Was plaintiffs' action for declaratory judgment appropriate as a substitute for certiorari
Although certiorari may be appropriate to reach questions of law in reviewing the actions of an administrative
". . . where a public body acts entirely without its jurisdiction, the rule against collateral attack, on an order of a board or commission, does not apply and even though a writ of certiorari were available the remedy of a declaratory judgment is likewise apposite. . . ."
We conclude, therefore, that the action for declaratory judgment is procedurally permissible.
May there be judicial inquiry into the propriety of the procedure used by a legislatively created committee whose function is advisory only
This court has taken judicial notice of the fact that on June 13, 1966, the date on which this complaint was filed, the Building Commission did in fact release planning funds for the purpose of commencing the process of constructing a university of the Green Bay-Shorewood
Any legal action that has as its end the circumscription of legislative power is viewed charily by this court. In Ashwaubenon v. State Highway Comm. (1962), 17 Wis.2d 120, 131, 115 N.W.2d 498, we referred to the "wide berth to be given to administrative decisions of a legislative character." This is the expression of a fundamental principle of constitutional law.
Moreover, it is discretionary with a court whether or not it will render or enter a declaratory judgment "where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding." Sec. 269.56 (6), Stats.
22 Am. Jur. 2d, Declaratory Judgments, p. 852, sec. 13, points out that a declaration of rights "should not be rendered if it will not finally settle an actual controversy or be of some practical help in ending the controversy or stabilizing disputed legal relations." The same paragraph (p. 853) also points out that there is authority to a stronger effect and that is "that a court may not grant declaratory relief unless it is convinced that its judgment will end the litigation and fix the rights of the parties."
Herein, all the plaintiffs seek is a declaration that the site committee failed to carry out the mandate of the legislature by neglecting to evaluate various sites according to its own established criteria and that it unlawfully changed the final criteria as a result of a meeting in secret session contrary to sec. 14.90, Stats., the antisecrecy law. No further relief is sought by the complaint. Counsel during oral argument was questioned in regard to what supplemental relief might be afforded to implement a declaration of rights, but he persistently refrained from suggesting any specifics. None that might
". . . one which seeks to determine an abstract question which does not rest upon existing facts or rights, or which seeks a judgment in a pretended controversy when in reality there is none, or one which seeks a decision in advance about a right before it has actually been asserted or contested, or a judgment upon some matter which when rendered for any cause cannot have any practical legal effect upon the existing controversy."
We conclude that any declaration of rights that might result from the defendants' complaint for declaratory judgment could only result in a request for supplementary remedies which this court would refuse to grant. Accordingly, a declaration of rights against either the state administrative bodies concerned or the individuals could not have the effect of terminating the controversy. As long ago as 1860, Mr. Justice COLE in Bushnell v. Beloit, 10 Wis. 155 (*195), 168, 169 (*225), stated:
"We suppose it to be a well accepted political principle that the constitution of the state is to be regarded not as a grant of power, but rather as a limitation upon the powers of the legislature, and that it is competent for the legislature to exercise all legislative power not forbidden by the constitution or delegated to the general government, or prohibited by the constitution of the United States."
Had the legislature seen fit to question the recommendation of the committee or the subsequent approval of the Governor, the Co-ordinating Committee for Higher Education, and the Building Commission, it could have done so. Yet subsequent to that action, the legislature has passed ch. 27 of the Laws of 1967, which would authorize any Wisconsin county to acquire and transfer property to the state for the location of these higher institutions of learning. Moreover, it refused to pass a bill (Assembly Bill 72, 1967) which would have reviewed the recommendation of the site committee and placed the university at the intersection of Highway 41 and State Trunk 54, a location that apparently would be more suitable to the desires of the complainants herein.
The defendants conclude that whatever errors might have existed in the procedures of the site committee and the officers who ratified its conduct thus were cured by subsequent legislative action. While a strong case for ratification might be made on these facts, we conclude that reliance on legislative ratification is unnecessary to reach the decision that judicial intervention in this controversy would be prohibited by the constitutional separation of powers. This court is without authority to intermeddle in matters of legislative concern. It is a well-settled principle of Wisconsin constitutional law that one branch of the government has no authority to compel
Sec. 39.024 (4) (f), Stats., which creates the site committee, is a part of ch. 259 of the Laws of 1965. The first section of that chapter states that:
"It is the legislative intent by the provisions of . . . 39.024 (4) of the statutes that it be the established state's policy that educational opportunities be spread as broadly throughout the state as is educationally and economically feasible. This policy recognizes that the expansion of educational opportunities to new geographical areas of the state eases the student's financial burden. To implement this policy, section 39.024 (4) of the statutes authorizes the creation of new collegiate institutions. . . ."
Thus, the preamble to the very legislation with which we are concerned leaves no doubt that the determination to be made by the site committee was for the purpose of enunciating and establishing more specifically the policy standards broadly outlined by the legislature. In re City of Beloit (1968), 37 Wis.2d 637, 155 N.W.2d 633, whose mandate comes down on the same date as this case, we had reason to consider whether the determination of "public interest" was a proper function of the courts. We therein held that it was not. Mr. Chief Justice HALLOWS, speaking for the court, said:
"What is `desirable' or `advisable' or `ought to be' is a question of policy, not a question of fact. What is `necessary'
While the Beloit Case involved a delegation of legislative power to the courts in respect to annexations, we consider the rationale of the court therein germane to the instant case. The site committee was directed to formulate criteria for locating a university in accordance with vaguely defined public interest policy considerations formulated by the legislature. This is clearly an exercise of the legislative function with which the courts should not and will not tamper.
This court will not interfere with the conduct of legislative affairs in the absence of a constitutional mandate to do so or unless either its procedure or end result constitutes a deprivation of constitutionally guaranteed rights. Short of such deprivations which give this court jurisdiction, recourse against legislative errors, nonfeasance, or questionable procedure is by political action only.
We are satisfied from a review of the record, however, that the plaintiffs were not dealt with with complete fairness. They placed reliance upon what they assumed to be the good faith representations of the site committee and expended substantial sums of money, and then, without notice, they allege that the criteria were changed. However, granting the comity that we must to a coordinate branch of the state government, no recourse is available in the courts. The grievances of which they complain did not rise to the dignity of an invasion of a constitutional right and as was stated in the case of State ex rel. Elfers v. Olson (1965), 26 Wis.2d 422, 132 N.W.2d 526, and as we may appropriately say here, "this decision, simply, is none of our business."
We should point out, however, that, while we are obliged to accept such ultimate facts as are properly pleaded in a complaint when it is before us on demurrer,
Accordingly, the petition for declaratory judgment should be dismissed as affording no remedy which would terminate the controversy. To grant a declaration of rights in the present instance would constitute an abuse of discretion.
By the Court.—Judgment reversed and the complaint is dismissed.
WILKIE, J., took no part.