City of Wauwatosa v. Milwaukee County

• Decision Date: 20 December 1963
• Parties: CITY OF WAUWATOSA, a municipal corporation, Plaintiff-Appellant, v. COUNTY OF MILWAUKEE, a body corporate, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 386

125 N.W.2d 386

22 Wis.2d 184

CITY OF WAUWATOSA, a municipal corporation, Plaintiff-Appellant, v. COUNTY OF MILWAUKEE, a body corporate, Defendant-Respondent.

Supreme Court of Wisconsin.

Dec. 20, 1963.

Milton F. Burmaster, City Atty., Wauwatosa, Herbert L. Mount, Milwaukee, of counsel, for appellant.

Robert P. Russell, Corp. Counsel, George E. Rice, First Asst. Corp. Counsel, Milwaukee, for respondent.

HALLOWS, Justice.

The complaint was grounded upon sec. 59.07(52)(a), Stats., ¹ which authorizes the defendant to reimburse municipalities in which county buildings are situated for the expense of the transmission and disposal of sewage from such buildings. Our decision turns upon the meaning of the word 'may' as used in the section. If the word 'may' means may and is discretionary, the trial court was correct in dismissing the complaint, but if 'may' means must or shall and is thus mandatory, a reversal is required.

The facts are not in dispute. For many years in what was the town of Wauwatosa the defendant has operated a group of public institutions including a general hospital, hospital for mental disease, orphanage, county farm, tuberculosis sanatorium, home for the aged, and similar public buildings. Sewage originating in these buildings and that emanating from the rest of the plaintiff-city is deposited in and transmitted by the Metropolitan Sewerage System, as is other sewage originating in Milwaukee county, to the facilities of the Sewerage Commission of the City of Milwaukee for treatment and disposal. The expense of transmission and disposal of sewage is allocated by the Sewerage Commission to the various municipalities pursuant to sec. 59.96, Stats. Upon receipt of the allocation report, each municipality is required to levy and assess taxes sufficient to pay its share of the expense against all the taxable property within its boundaries which is also in the drainage area, Sec. 59.96(9)(a), Stats., and to pay said share to the treasurer of the city of Milwaukee, secs. 59.96(8)(a) and (9)(a), Stats. Thus a municipality is under a duty to pay for all the sewage emanating within its municipal territory but may only assess the cost against taxable property.

In 1930 approximately 90 percent of the total sewage emanating within the then town of Wauwatosa originated in the nontaxable county institutions. In 1929, by ch. 314, Laws of 1929, sec. 59.07(52)(a), Stats., was created as sec. 59.08(13) at the request of the defendant and related to special powers of the county boards rather than to general powers of the county boards as it now does.

Pursuant to this section of the statute from the time of its passage until 1953, the defendant paid or reimbursed the town of Wauwatosa for the cost of the disposal of the sewage emanating from the county institutions. In 1953 by annexation that area including the territory surrounding the public institutions became a part of the plaintiff-city to whom payments were then made by the defendant until 1958. In September of that year the defendant paid the plaintiff for the 1957 cost of sewage disposal and gave notice that it would make no payments in future years.

The population of the county institutions has averaged between 5,000 and 6,000 persons for a number of years. According to the 1960 census, the population of the plaintiff is 5.5 percent of the total population of the defendant. In recent years the sewage from the county institutions has amounted to 20-30 percent of all the sewage emanating within the plaintiff-city. The plaintiff has continued to demand of the defendant the payment of the charges for this sewage, which claims have been denied and this action has resulted.

The plaintiff contends sec. 59.07(52)(a), Stats., should be given a mandatory construction called for by the doctrine of contemporaneous construction and official interpretation. It is argued the defendant was instrumental in having the legislature enact this section because the defendant believed it proper to pay to the town of Wauwatosa its share of the expense of sewage disposal that the county has made payments for some 30 years and two corporation counsels of the defendant have given opinions the section is mandatory and requires the defendant to make the payments. We have no difficulty with the doctrine of contemporaneous construction and official interpretation. Such doctrine has been recognized generally and in this state. 6 McQuillin, Municipal Corporations (3rd), p. 107, sec. 20.45; State ex rel. State Association of Y.M.C.A. v. Richardson (1928), 197 Wis. 390, 222 N.W. 222; Mauel v. Wisconsin Automobile Ins. Co. (1933), 211 Wis. 230, 248 N.W. 121; Wright v. Forrestal (1886), 65 Wis. 341, 27 N.W. 52; Dean v. Borchsenius (1872), 30 Wis. 236. The difficulty is not with the doctrine but with its applicability to particular facts. To resort to the doctrine as an aid of construction, the statute must first need interpretation and be sufficiently ambiguous to call for construction. The language of sec. 59.07(52)(a) on its face is permissive and grants a discretionary power to pay the expense of the transmission and disposal of sewage. But the plaintiff contends the parties have not so considered it in fact. We do not agree.

At the time of the enactment of the statute, no duty, much less a power, existed in the defendant to make payments for sewage disposal to municipalities which were under a statutory obligation of sec. 59.96, Stats., to pay the expense of disposal of all the sewage originating in their municipality. The action by the defendant in securing the power to reimburse, in effect, such municipalities did not in itself create a duty to exercise the power. Nor does the payment for nearly 30 years by the county to the town of Wauwatosa and subsequently to the plaintiff indicate a mandatory character of the statute to the exclusion of an exercise of a permissive power for reasons which then appealed to the defendant.

A legislative intent of creating a duty is not shown by such an interpretation of the statute followed by a consistent course of conduct by an agency charged with its enforcement. Defendant's corporation counsel in December, 1957, gave an opinion to the defendant that the statute was mandatory. Likewise in 1960, the corporation counsel gave a similar opinion, but there is no course of conduct on the part of the defendant relying on these opinions. The defendant repudiated them by making no payments pursuant thereto. The 1958 payment for 1957 charges was made after the rendering of the first opinion and was coupled with a notice that no further payments would be made.

Plaintiff contends in its second argument that the word 'may' in the statute must be construed as 'shall' because the statute affects public rights and interests. Generally in construing statutes, 'may' is construed as permissive and 'shall' is construed as mandatory unless a different construction is demanded by the statute in order to carry out the clear intent of the legislature. Scanlon v. City of Menasha (1962), 16 Wis.2d 437, 114 N.W.2d 791. The courts have construed language couched in permissive, directory or enabling language as mandatory where the circumstances so indicate an intention of the legislature or the context and subject matter compel such a construction. 50 Am.Jur., Stats., p. 53, sec. 31. This is sometimes done when public rights or interests demand such a construction....