Opinion
November 4, 1953 —
December 1, 1953.
APPEAL from an order and a judgment of the circuit court for Douglas county: CARL H. DALEY, Circuit Judge. Affirmed.
For the appellant there was a brief by Douglas Omernik of Spooner, and oral argument by W. W. Bitney of Shell Lake.
For the respondent State Department of Public Welfare there was a brief by the Attorney General and Stewart G. Honeck, deputy attorney general, and Beatrice Lampert, assistant attorney general.
For the intervening respondent city of Rice Lake there was a brief and oral argument by Bruce H. Dalrymple of Rice Lake.
The city of Rice Lake commenced a proceeding under the provisions of sec. 49.11(7), Stats., to recover relief furnished one William Jerry and family from the town of Lakeland. Both municipalities are located in Barron county.
The complaint alleged that at all times during the period the relief was furnished, from February 14, 1949, to May 23, 1950, said William Jerry had a legal settlement in said town of Lakeland. A hearing was held before the State Department of Public Welfare and the only issue was whether or not the Jerry family did have such legal settlement within the defendant town.
On May 14, 1952, the department made a finding that William Jerry moved to said town of Lakeland, with intent to reside there, on January 1, 1947, and that the town of Lakeland continued to be his residence, home, and place of abode continuously from that date to the first part of March, 1948. The department also filed conclusions of law, that by his residence in the town of Lakeland from January 1, 1947, to the first part of March, 1948, William Jerry gained a legal settlement in that town and that, relief having been furnished beginning February 14, 1949, less than one year from his removal from said town, he still had a legal settlement therein. An order was also entered directing the town to pay the city for the aid furnished.
The town of Lakeland then petitioned for a review of the determinations of the department by the circuit court for Douglas county, under the provisions of ch. 227, Stats. the town petitioned the circuit court for leave to present additional evidence before the department, as provided by sec. 227.19, Stats. An order was entered granting such permission, and a second hearing was held before the department. On December 2, 1952, the department, by findings, conclusions, and order affirmed its first decision. The record was then returned by the department to the circuit court, and the court set the matter for argument on January 26, 1953. On March 5, 1953, the town filed a second application for permission to present further evidence before the department. On April 20, 1953, the court entered an order denying said petition, and on the same date entered a judgment affirming the order of the State Department of Public Welfare. The town appealed, both from the order and the judgment.
The petition for leave to present additional evidence before the department was denied by the trial court on the ground that it was not timely made. This procedure is covered by sec. 227.19, Stats., which provides, in part as follows:
"If before the date set for trial, application is made to the circuit court for leave to present additional evidence. . . ."
The town quotes definitions of the word "trial" that indicate the word embraces both the judicial investigation and the determination of the issues before the court. Here we are concerned with a special kind of a trial, as provided for in ch. 227, Stats. This proceeding is variously referred to as a trial, a hearing, and as a review. The scope thereof is covered by sec. 227.20, Stats. Sub. (2) of sec. 227.19 makes provision for the setting of the date for trial by service of a notice. This notice had been served and the trial court had set a date, January 26, 1953. Arguments were made on that date, briefs had been filed, and the matter had been entirely presented to the court. Under the circumstances we agree that the petition for leave to present additional testimony was not timely made and the order must be affirmed.
The town next contends that the decision of the Public Welfare Department that the William Jerry family resided in the town of Lakeland from January 1, 1947, to March, 1948, was not supported by substantial evidence in view of the entire record as submitted. The words "substantial evidence in view of the entire record as submitted" as used in ch. 227, Stats. (sec. 227.20(1)(d)), have been interpreted by this court in Motor Transport Co. v. Public Service Comm. 263 Wis. 31, 56 N.W.2d 548. The trial court made the following comment about the evidence:
"This is the type of a case where one group, of witnesses testified to one fact very positively and effectively, and another group of witnesses testified to facts which are in direct conflict with the facts already testified to. So far as the evidence is concerned this is a very close case, in that there is probably about as much evidence to support one contention as there is to support the contrary contention. It might be that if this court was trying the case de novo and having seen all of the witnesses it might have come to a different conclusion. On the other hand, it might have come to the same conclusion that the Department of Public Welfare did. The examiner of the department had the privilege of observing all of the witnesses and hearing them testify verbally and observing their demeanor on the stand, and although the evidence is close and there are many inconsistencies in it, from the viewpoint of both parties we cannot say that the decision of the Department of Public Welfare is not supported by substantial evidence.
"We are, therefore, of the opinion that the findings and order of the State Department of Public Welfare should be affirmed."
The town disagreed with this statement by the trial court. It insists that the record here presents a different situation and insists that the witnesses for the city made such contradictory statements that they impeached their own testimony and made it incredible. We do not find this to be so. To summarize all of the testimony and the documents introduced into the record would unduly burden this opinion. The testimony was carefully reviewed in the memorandum decision of the Department of Public Welfare. We agree with the comment by the trial court that the finding of the Department of Public Welfare is supported by substantial evidence in view of the entire record.
By the Court. — The order and judgment appealed from are affirmed.