City of Eau Claire v. Department of Natural Resources

210 N.W.2d 771, 60 Wis. 2d 751, 1973 Wisc. LEXIS 1387

Opinion

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 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. See. 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.