City of Milwaukee v. Milwaukee County

Decision Date05 March 1965
Citation133 N.W.2d 393,27 Wis.2d 53
PartiesCITY OF MILWAUKEE, a municipal corporation, Plaintiff-Respondent, v. COUNTY OF MILWAUKEE, a body corporate, Defendant-Appellant.
CourtWisconsin Supreme Court

Robert P. Russell, Corp. Counsel, James J. Bonifas, Asst. Corp. Counsel, Milwaukee, for appellant.

John J. Fleming, City Atty., John F. Kitzke, Asst. City Atty., Milwaukee, for respondent.

HALLOWS, Justice.

In the construction of the statutory language the legislative intent should be sought from the language of the statute in relation to its scope, history, context, subject matter and the object intended to be remedied or accomplished, Scanlon v. City of Menasha (1962), 16 Wis.2d 437, 114 N.W.2d 791, and when there are several statutes relating to the same subject matter they should be read together and harmonized, if possible, Harris v. Halverson (1927), 192 Wis. 71, 211 N.W. 295. This appeal deals with three statutes enacted at different times relating to the same subject, the cost of keeping Milwaukee city prisoners in Milwaukee county penal institutions.

Milwaukee, like other cities, has for many years exercised the power to enact municipal ordinances and to provide monetary forfeiture or fines for their violation and for failure to pay the forteiture or fine to provide for imprisonment until such forfeiture is paid but not exceeding a designated namber of days of confinement. The city of Milwaukee does not own or operate any penal institution in which to keep its prisoners after judgment for failure to pay forfeitures. For many years under various statutory authority such prisoners have been kept either in the Milwaukee county jail or in its house of correction.

County jails were first required to be built and maintained at county expense by ch. 10, sec. 16, of the revised statutes of 1849. Chapter 153, sec. 2, of that statute provided 'the expenses of keeping and maintaining' all prisoners were to be borne by the county from which the prisoner was taken. Milwaukee county was authorized by ch. 318, Laws of 1855, to build a house of refuge, the predecessor of the house of correction, and section 6 of that chapter provided that the expenses of maintaining the institution including the cost of support of prisoners was to be paid by the county. The house of correction was established for the reformation and the employment of persons sentenced for confinement therein and includes the operation of a farm. A city prisoner in lieu of being committed to the Milwaukee county jail may under some circumstances be committed to the house of correction.

Prior to 1919 no statutory authority permitted Milwaukee county to charge the city of Milwaukee for the keep of city prisoners either in a county jail or in a house of correction. By ch. 351, Laws of 1919, sec. 56.18(2) was created which provided that each city or village in Milwaukee county should pay $1,50 per week for each of its prisoners confined in the house of correction. Four years later by ch. 242, Laws of 1923, this section was amended to read substantially as it now does 1 and requires each city or village in Milwaukee county to pay for the 'actual and reasonable costs of maintenance' of its prisoners in the house of correction as determined by ordinance of the county board. This section is a part of the chapter on prison labor and relates only to the prisoners in the Milwaukee county house of correction.

Shortly after the repeal of prophibition in 1933, sec. 176.43(1), Stats., 2 was created. This section, a part of the chapter on intoxicating liquors, authorized cities to prescribe regulations for the sale of intoxicating liquors by ordinance not in conflict with state laws and provided that when a person was committed to the county jail or house of correction for the violation of such ordinance, 'his board shall be paid by the municipality where such violation was committed.' In 1953 sec. 66.12(1)(b), now (c) 3 was created by ch. 448, Laws of 1953. This section, a part of the chapter on municipal law, applied to all cities and villages and provided that prisoners confined in the county jail or in some other penal or correctional institution for the violation of a city or village ordinance, resolution or bylaw, 'shall be kept at the expense of the city or village.' We thus have posed the question of whether the language referring to the keep of prisoners, 'actual and reasonable costs of maintenance' in sec. 56.18(2), Stats., 'board' in sec. 176.43(1), and 'be kept at the expense of' in sec. 66.12(1)(c) mean the same thing or carry different connotations and in either case, what meaning?

The dispute between the parties is not so much that these three statutes have radically different meanings taken separately as what they mean taken together. Chronologically, the language for imposing liability on the city for the actual and reasonable costs of maintaining city prisoners preceded the terms 'his board' and 'to be kept at the expense of.' We find no reason why 'his board' used in connection with intoxicating liquor violators logically should have any different content or be less restrictive than the actual and reasonable costs of maintenance; both apply to the same prisoner in the house of correction and necessarily must be construed to mean the same. This construction is supported by the historical use of the two phrases. Likewise, the phrase 'be kept at the expense of' covers the same prisoner in the house of correction and must be construed the same as 'actual and reasonable costs of maintenance' in view of the other sections existing prior in time. The phrase would seem not to be used as much as a measure of liability as a designation of a liability. However, we consider its use under both aspects because it applies to prisoners in the county jail as well as those in the house of correction.

Commencing in 1928 for the house of correction and in 1939 for the county jail, Milwaukee county established a weekly rate of $6 for prisoner keep. In 1955 the county established per diem charges based upon all accounting costs of operating and maintaining the house of correction and the county jail. These separate charges for each institution were determined annually in accordance with the operating costs for the penultimate year. The city was billed monthly and it paid these billings without protest until January 1, 1962.

The trial court in construing 'actual and reasonable costs of maintenance,' 'to be kept at the expense of,' and 'board' held the language embraced only out-of-pocket expenses directly affecting prisoner keep and did not include, as claimed by the county, charges based on a cost-accounting share of salaries, heating, lighting, gas, water, insurance, supplies, capital construction, maintenance, and other items. These excluded charges included, among others, such items for the county jail as boiler insurance, general insurance, printing, stationery, charges made by other county departments for trucking, preparing and packaging supplies furnished the jail, maintenance of a car assigned to the jail, household supplies, office supplies, athletic equipment used in the gymnasium by the sheriff's deputies assigned to the jail, machinery and equipment, such as typewriters, adding machines, and jurors' meals. In the itemization for the house of correction we find items including all salaries of employees, advertising of the sale of livestock, registration fees for livestock and veterinarian's fees, various types of insurance for cars and trucks, postage, printing and stationery, repairs and maintenance to buildings, including the barns, the hog house, the bull house, 23 chicken coops, and the superintendent's and farm-superintendent's residences, and many other accounts referring to the operation of the farm run by the institution and to the buildings. The question is whether such items, which are directly referable to the maintenance of either the buildings constituting the jail or the house of correction or to the operation thereof as a jail, are to be considered as actual and reasonable costs of maintaining or keeping the prisoners.

There is no prior case in Wisconsin construing the language of these three sections. There are cases construing related statutes which give some indication of the intent of the legislature in the use of the language under discussion. Historically, a county provided the jail as a building and the sheriff was in charge of operation and had custody of the prisoners. It was his duty to run a jail or place of safekeeping and was reimbursed by the county for expenses as provided by the statutes.

In the early case of Hartwell v. Supervisors of Waukesha County (1877), 43 Wis. 311, the court held 'the expense for maintaining' and 'expenses for safekeeping' did not include the services or board of a deputy sheriff who acted as jailer so as to allow recovery therefor by the sheriff. The court considered the language 'expenses for maintaining' to refer to the maintenance or necessary support but not personal services of a jailer or custodian. In Bell v. Fond du Lac County (1881), 53 Wis. 433, 434, 10 N.W. 522, the sheriff demanded $3.50 per week per prisoner from the county. The court held that the language in the statute, 'all charges for maintaining convicts' and 'the expense of maintaining' meant 'what it would actually and necessarily cost the sheriff to furnish the board, which he [was] required to furnish' and he was to be indemnified only for 'actual charges or expense which he incurs in boarding or maintaining.'

In the first case directly involving the question of recovery by a county against a municipality it was held that a county was chargeable for the board and laundry of prisoners and for the fees for discharge and admittance, and these expenses of keeping a prisoner could be recovered by the sheriff. Nickell v. Waukesha County (1885), 62 Wis. 469, 22 N.W. 737. This case was followed in ...

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