City of Milwaukee v. Milwaukee Cnty.

• Decision Date: 08 October 1940
• Citation: 294 N.W. 51,236 Wis. 7
• Parties: CITY OF MILWAUKEE v. MILWAUKEE COUNTY.
• Court: Wisconsin Supreme Court

236 Wis. 7

294 N.W. 51

CITY OF MILWAUKEE

v.MILWAUKEE COUNTY.

Supreme Court of Wisconsin.

Oct. 8, 1940.

Appeal from an order of the Circuit Court for Milwaukee County; Gustave G. Gehrz, Judge.

Action by the City of Milwaukee against the County of Milwaukee to recover on three causes of action, each involving an amount claimed to be due under statutes imposing costs of maintaining the district and municipal courts of the County of Milwaukee upon the two municipalities, wherein the County of Milwaukee by counterclaim demanded an offset to each of the causes of action of certain amounts for which the county claimed credit. From an order sustaining demurrers to replies to defendant's counterclaims, plaintiff appeals.-[By Editorial Staff.]

Affirmed.

Action by City of Milwaukee against the County of Milwaukee, commenced April 4, 1940. From an order sustaining demurrer to the reply to the defendant's counterclaims entered July 29, 1940, the plaintiff appeals. The facts are stated in the opinion.Walter J. Mattison, City Atty., and Ronold A. Drechsler, Asst. City Atty., both of Milwaukee, for appellant.

Herbert J. Steffes, Dist. Atty., O. L. O'Boyle, Corp. Counsel, and Henry S. Reuss, Asst. Corp. Counsel, all of Milwaukee, for respondent.

FOWLER, Justice.

The action is brought by the city of Milwaukee to recover from Milwaukee county over $100,000 on three causes of action, each involving an amount claimed to be due under statutes of the state imposing costs of maintaining the district and municipal courts of Milwaukee county upon the two municipalities. The county by counterclaim demands an off-set to each of the causes of action of certain amounts for which the county claims credit. The off-sets claimed reduce the amount to which the plaintiff is entitled to judgment to about $26,000. A demurrer for insufficiency of facts was interposed by the city to each of the county's counterclaims and sustained. The city thereupon replied to each of these counterclaims and the county demurred to each of the replies for insufficiency, and each of these demurrers was overruled. The replies of the city set forth the statutes which placed initial payment of the salaries and reporters' fees involved on the county and alleged that prior to 1937 the county did not claim credit for any of the items for which it claims off-set. The city appeals from the latter class of orders. The demurrer to the reply brings up for review the antecedent pleadings so that the real problem before the court is to determine what items of expense of the two courts must be shared equally by the parties. This requires a consideration of the original acts creating the two courts, and the changes of those acts made by subsequent statutory enactments.

The years involved in the three causes of action are 1937, 1938 and 1939, and the action involves an accounting between the parties for costs of the operation of the municipal and district courts. Three items of expense are in controversy, (1) the compensation paid the municipal court reporter, (2) the compensation paid the district court reporter, and (3) the fees collected by the clerk of these courts. These items will be considered separately.

(1) The municipal court was created by Ch. 199, Priv. and Loc. Laws of 1859. The court was given criminal jurisdiction of crimes and misdemeanors except those punishable by death or life imprisonment and of prosecutions for violation of city ordinances and the judge of the court was given all powers as a committing magistrate of a justice of the peace. Sec. 23 provided the clerk should procure and furnish “all the necessary blanks, stationery, court, jury-room and office furniture, book and paper cases, desks, record books, lights and fuel, for the use of the court, and of the clerks thereof” at the expense of the city of Milwaukee. Sec. 25 provided that within prescribed limits the salaries of the judge and the clerk should be fixed by the city council and “paid out of the city treasury.” Sec. 28 provided that “all fines, penalties and clerks fees collected in criminal cases and paid into the city treasury” should be “accounted for and paid over annually to the county treasury” and the county should annually “account to the city *** for one-half of the salaries” of the “judge, clerk, assistant clerk, blanks, stationery, record books, office furniture, lights and fuel” for the court “paid and furnished by said city.” Thus the original statute plainly provided that the entire cost of maintenance of the court was to be shared equally between the city and county, and for an accounting to determine what this cost was.

Ch. 202, Laws of 1875, provided a stenographic reporter for the municipal court who should be a sworn officer of the court and provided for him a per diem salary to be paid as provided by law for the payment of circuit court reporters. Said chapter also provided that the transcript fees of said reporter chargeable to the public should be paid in the same manner as his per diem was paid, and that the reporter's stationery was to be furnished in the same manner as the clerk's. Circuit court reporters were then paid, as was “provided by law for payment of the sheriff *** for attending upon the court.” The sheriff's compensation for attending circuit court was then paid by the county. See R.S.1858, Ch. 133, sec. 1, Twenty-second; Sec. 733, R.S.1878.

[1] The provisions relating to the municipal court were carried into R.S.1878. Sec. 2499 provides that “The municipal court of the county of Milwaukee *** is continued.” The provisions of the original act of 1875 are for the most part set out verbatim. The provision of Ch. 202, Laws of 1875, providing for the appointment of a reporter and making him a sworn officer of the court is so set out. Some changes from the original acts which were made are highly significant. Sec. 2508 provides for the appointment of a reporter as an officer of the court as provided by Ch. 202, Laws of 1875, but expressly declares that the salary and transcript fees of the reporter “shall be paid in the same manner that the other expenses of the court are paid,” instead of by the county as in Ch. 202. The words “account to” in the original act were changed to read “pay to” in sec. 2512, but the latter is used as synonymous with “account to,” for if the expenses of the court “paid *** by said city” were to be shared by the county an accounting for these expenses between the two municipalities was necessarily implied. The word “paid” in the phrase “paid *** by said city” obviously means “paid” in the first instance. These two changes clearly show that this item of expense was to be shared equally between the city and county. Revisions of statutes do not change the meaning of the statutes revised, unless the intent to change their meaning necessarily and irresistably follows from the changed language. Kugler v. Milwaukee, 208 Wis. 251, 242 N.W. 481. The changes above noted indicate not only that the expense of the reporter's compensation was to be shared by the city and county, but that that was the intendment of Ch. 202, Laws of 1875. The provisions of that statute that the compensation of the reporter should be “paid” as the sheriff was paid, meant merely paid by the county in the first instance, as the word “paid” in the phrase “paid and furnished by said city” in the original statute meant paid in the first instance. The city by implication was required under Ch. 202 to account to the county for the expense of the reporter just as under the original statute the county was required to “account to” the city for the other expenses of the court.

The municipal court provisions as contained in R.S.1878 were amended by Ch. 195, Laws of 1893, to fix the salary of the reporter at $2,000 per year, without saying by whom it should be paid, but by implication leaving it payable by the city. It made transcript fees of the reporter, so far as a public charge, payable by the county instead of by the city as theretofore. That the payment of these transcript fees was made payable in the first instance by the county instead of by the city as declared by the R.S.1878 provisions did not in our opinion change the obvious and fundamental purpose and intent that all expenses of the court, including those incident to the reporter, should be shared by the municipalities. No more does the fact that the transcript fees were made payable by the county in the first instance by said Ch. 195, change such purpose and intent that such fees as an expense of the court should be so shared.

The next statute bearing on the question before us is Ch. 59, Laws of 1905, which gave power to the board of supervisors of counties of 100,000 or more inhabitants to fix the salary of the judge of the municipal court of such county. Milwaukee county was the only county having such population, so that the statute was necessarily aimed at the municipal court of that county.

The next statute enacted relating to the salary was Ch. 473, Laws of 1907, which fixed the reporter's salary at $3,000 and made it payable monthly by the county. It left the reporter's supplies to be furnished him but does not say by whom they were to be furnished or paid. It made his transcript fees so far as payable by the public payable by the county.

The next statute involved is Ch. 228, Laws of 1909, which empowered the board of supervisors of the county to fix the salary of the clerk and deputy clerks of the court. It does not say by whom such salaries should be paid. They were thus left payable in the first instance by the city as theretofore.

Ch. 151, Laws of 1919, provided that the salary of the reporter of the municipal court should be fixed by the county board and paid by the county. The reporter's supplies were to be furnished him. Nothing was said as to by whom they were to be furnished or paid, and they were thus left as theretofore to be paid by the city. Transcript fees payable by the...