City of Eau Claire v. Department of Natural Resources

60 Wis. 2d 751 (1973)

210 N.W.2d 771

CITY OF EAU CLAIRE, Respondent, v. DEPARTMENT OF NATURAL RESOURCES, Appellant.

No. 221.

Supreme Court of Wisconsin.

Submitted September 11, 1973.

Decided October 2, 1973.

For the appellant the cause was submitted on the briefs of Robert W. Warren, attorney general, and James A. Rogers, assistant attorney general.

For the respondent the cause was submitted on the the brief of Frederick W. Fischer, city attorney.

A brief amicus curiae was filed by Jerry A. Edgar and Jean G. Setterholm, both of Madison, for the League of Wisconsin Municipalities.

Submitted under sec. (Rule) 251.54 September 11, 1973.

PER CURIAM.

We decline to reach the merits of this appeal because the Department of Natural Resources does not have standing to raise the constitutional issue *752 which is the only issue in this case. In a case between a state agency and a municipal corporation, the constitutionality of a statute may not be questioned by either party. Columbia County v. Wisconsin Retirement Fund (1962), 17 Wis. 2d 310, 116 N.W.2d 142; State ex rel. La Crosse v. Rothwell (1964), 25 Wis. 2d 228, 130 N.W.2d 806, 131 N. W. 2d 699.

This was a review proceeding under the Administrative Procedure Act. Sec. 227.20, Stats., provides that the reviewing court may affirm, reverse, or modify the decision of the agency. This does not prevent dismissal in a case where the court's review powers are not properly invoked. However, a declaration that the order being reviewed is void, followed by a dismissal of the petition for review as moot, is not authorized.

The judgment is modified to provide that the order of the department is reversed. As modified, the judgment is affirmed.