Opinion
No. 404.
Submitted under sec. (Rule) 251.54 April 10, 1975. —
Decided May 6, 1975.
APPEAL from an order of the circuit court for Milwaukee county: HARVEY L. NEELEN, Circuit Judge. Affirmed.
For the appellants the cause was submitted on the brief of Robert E. Sutton and Samson, Friebert, Sutton, Finerty Burns, all of Milwaukee.
For the respondent the cause was submitted on the brief of Robert W. Warren, attorney general, and Sverre O. Tinglum, assistant attorney general.
In an order dated March 14, 1972, the Wisconsin tax appeals commission (hereinafter commission) affirmed respondent Wisconsin Department of Revenue's (hereinafter department) denial of certain income tax relief to appellants Peter D. and Carol S. Ryan.
Sec. 227.16(1), Stats., provides that in order to have judicial review of the commission's determination, a petition therefor must be served upon the clerk of court ". . . within 30 days after the service of the decision of the agency upon all parties. . . ." See also: Sec. 73.015. The decision was served upon the respondent on March 14, 1972, and upon the appellants, by registered mail, on March 15, 1972.
On April 11, 1972, appellants, by their attorney, sent the original and a copy of their petition for review to the Wisconsin tax appeals commission. The attorney expected that the original would be sent back to him by return mail.
On April 12th the attorney called the commission in Madison from his office in Milwaukee and spoke to a secretary or clerk who described herself as the person who accepts service of papers and forwards files for appeals. She informed him that she was forwarding the case file to the clerk of courts in Milwaukee and would send the original petition along with it. A day or two later, after learning that the petition had not yet been filed with the clerk of courts in Milwaukee, he again telephoned the commission and spoke to the same woman, who informed him that she had not yet "gotten around" to forwarding the file or petition.
The attorney filed a copy of the petition with the clerk of courts on April 20, 1972. The original was finally filed on April 21st, after being sent from Madison by the commission.
The attorney testified that he was at all times aware of the statutory time period for filing. He further testified that he could not remember the name of the woman at the commission to whom he spoke, that he could not remember if he ever asked for it, and that he doubted if he ever wrote the name down.
No attempt was ever made to travel to Madison to retrieve the original petition in order to accomplish a timely filing.
Since thirty-six days elapsed between service of the commission's decision and the filing of the petition with the clerk of court, the trial court held that even if the statutory period was extended five days pursuant to sec. 269.36, Stats., the petition was not timely filed and dismissed it for lack of jurisdiction.
"269.36 Mail service increases time allowed. If a certain time before an act to be done is required for the service of any paper and if, after service of any paper, a specified time is allowed a party to do an act in answer to or in consequence of such service, service by mail shall increase by 5 days the time required or allowed to do such act in case of personal service."
The trial court held that this section was inapplicable, but noted that even if it pertained, the petition would have been filed one day late. Apparently on the theory that the equities weigh more heavily in their favor if they were only one day late rather than five days late, the appellants urge that the above section does apply, citing Chequamegon Telephone Cooperative v. ILHR Department (1972), 55 Wis.2d 507, 200 N.W.2d 441.
In that case, while this court held that sec. 269.36, Stats., was applicable, we specifically stated at page 511: "The appeal here is from a judicial action — a judgment rendered by the circuit court Dane county — and not an administrative proceeding before the department." Thus the case does not contradict the holding in Kohnke v. ILHR Department (1971), 52 Wis.2d 687, 191 N.W.2d 1, relied upon by the court below, wherein this court concluded that sec. 269.36 applies only to judicial actions or proceedings and does not apply to proceedings before or appeals from administrative tribunals.
The appellants contend, due to the representation of the woman at the commission to the effect that she would file the petition, and due to the appellants' allegedly justifiable reliance to their detriment upon such representation, that the department is estopped from asserting the untimeliness of the filing the petition.
We hold that estoppel is inappropriate here because: (1) It is being asserted against the government, and (2) the appellants have failed to establish justifiable reliance on the representation.
With respect to the fact that estoppel is being asserted against the government, it should be noted that it was not an agent of the respondent who made the representation. The respondent is the Wisconsin Department of Revenue. The woman who allegedly made the representation was an employee of the tax appeals commission, which is attached to the department of administration, an executive administrative department entirely separate from the Wisconsin Department of Revenue. Thus the appellants are attempting to assert the acts of an employee of one governmental agency as a basis for estoppel against a different governmental agency.
As a general proposition, a government or one of its agencies is not subject to estoppel to the same extent as an individual. Libby, McNeill Libby v. Department of Taxation (1952), 260 Wis. 551, 555, 51 N.W.2d 796; Jefferson v. Eiffler (1962), 16 Wis.2d 123, 133, 113 N.W.2d 834; Surety Savings Loan Asso. v. State (1972), 54 Wis.2d 438, 445, 195 N.W.2d 464. In order to establish estoppel, the acts of the state agency "must amount to a fraud or a manifest abuse of discretion." Surety Savings Loan Asso., supra, page 445; Jefferson, supra, page 133. As stated in Monahan v. Department of Taxation (1963), 22 Wis.2d 164, 169, 125 N.W.2d 331:
". . . there is no estoppel in pais if the party seeking to invoke it was aware of facts which made it its duty to inquire into the matter. There may be situations where the party, against whom an estoppel in pais is asserted, has been guilty of an intentional wrongful act which has misled the injured party. In such a situation it might well be inequitable to permit the wrongdoer to escape the consequences of the doctrine of estoppel in pais on the ground that the injured party did not exercise diligence to discover the true facts. However, this is not the situation here because there is nothing in the record before us to even suggest that the chairman of the board, in executing the admission of service, acted from an improper motive."
With respect to any justifiable reliance on the part of the appellants, as stated in Monahan, supra, page 168, "the right to assert estoppel in pais does not arise unless the party asserting it has acted with due diligence."
In the instant case, the appellants' attorney admitted to being fully aware, at all relevant times, of the pertinent filing deadlines. Yet even after his second conversation with the woman at the commission, at which time he learned that with only one day left in the filing period the petition still had not been filed, he made no attempt to go to Madison to get the petition and did not file a copy of the petition with the clerk of courts until about five days later, after the filing period had expired. In view of the attorney's knowledge of the deadline and of the fact that the petition had not been filed, it can hardly be said that he acted with due diligence or that he was justified in relying upon the woman's original representation.
This court has consistently demanded strict compliance with the requirements of sec. 227.16, Stats., for judicial review. Cudahy v. Department of Revenue (1974), 66 Wis.2d 253, 259, 224 N.W.2d 570; Brachtl v. Department of Revenue (1970), 48 Wis.2d 184, 187, 179 N.W.2d 921. As stated in Kohnke v. ILHR Department, supra, at page 690:
"To dismiss an appeal because it comes one day late may seem harsh. However, if statutory time limits to obtain appellate jurisdiction are to be meaningful they must be unbending."
We hold, therefore, that appellants have failed to make an adequate showing of facts sufficient to create an estoppel, and thus must affirm the order of the circuit court dismissing appellants' petition for lack of timely filing. By the Court. — Order affirmed.
The question of the timeliness of the appeal to this court, while briefed by both parties, was decided by order prior to oral argument and hence is not discussed here.