Elroy-Kendall-Wilton Schools v. Cooperative Educational Service Agency, Dist. 12 (CESA 12), ELROY-KENDALL-WILTON

• Citation: 306 N.W.2d 89,102 Wis.2d 274
• Decision Date: 27 April 1981
• Docket Number: No. 80-513,ELROY-KENDALL-WILTON,80-513
• Parties: SCHOOLS, Plaintiff-Appellant, v. COOPERATIVE EDUCATIONAL SERVICE AGENCY, DISTRICT 12 (CESA 12), Defendant- Respondent. *
• Court: Court of Appeals of Wisconsin

Page 89

306 N.W.2d 89

102 Wis.2d 274

ELROY-KENDALL-WILTON SCHOOLS, Plaintiff-Appellant, v. COOPERATIVE EDUCATIONAL SERVICE AGENCY, DISTRICT 12 (CESA

12), Defendant- Respondent. ^*

No. 80-513.

Court of Appeals of Wisconsin.

Argued Dec. 5, 1980.

Opinion Released April 27, 1981.

Opinion Filed April 27, 1981.

Tommy G. Thompson, Mauston, argued, for plaintiff-appellant; Thompson Law Office, Mauston, on brief.

Joseph F. Preloznik, Madison, argued, for defendant-respondent; Preloznik, Mathis & Rhode, S. C., Madison, on brief.

Before GARTZKE, P. J., and BABLITCH and DYKMAN, JJ.

BABLITCH, Judge.

This is an appeal by the Elroy-Kendall-Wilton Schools (school district) from an order dismissing its complaint for injunctive relief against the Cooperative Educational Service Agency, District 12 (CESA 12) for failure to state a cause of action. The complaint alleges that CESA 12 purchased real estate in February, 1978 and intended to purchase additional real estate using state and federal monies and monies which had been assessed against its members pursuant to sec. 116.03(4), Stats. The relief sought is an injunction ordering CESA 12 to divest itself of its present real estate holdings and prohibiting it from purchasing additional real estate.

The issue on appeal is whether CESAs, which are governed by ch. 116, Stats., have the power to purchase real estate under sec. 116.03. That section sets forth the duties of the agencies' governing body, the board of control. It provides in material part that the board shall:

(10) Authorize the expenditure of money for the purposes set forth in this subchapter and for the actual and necessary expenses of the board and agency administrator and for the acquisition of equipment, space and personnel. All accounts of the agency shall be paid by check signed by the chairperson and secretary. (Emphasis supplied.)

The circuit court construed the legislative authorization of space acquisition to include the purchase of real estate. We reverse.

The question before us is one of law. A reviewing court accords no deference to the trial court's determination of such questions. First Nat. Leasing Corp. v. Madison, 81 Wis.2d 205, 208, 260 N.W.2d 251, 253 (1977); Roe v. Larson, 94 Wis.2d 204, 206, 287 N.W.2d 824, 825 (Ct.App.1979), rev'd on other grounds.

The trial court relied on an opinion of the attorney general, issued in response to an inquiry from the state superintendent of public instruction. That opinion declared, without citation of case authority, that the statutory phrase "acquisition of ... space" was "unquestionably" broad enough to include acquisitions of real estate. ¹ The opinion relied solely on the definition of "acquire" set forth in ch. 990, Stats., which provides general rules of construction for Wisconsin laws. Section 990.01 states in material part:

In the construction of Wisconsin laws the words and phrases which follow shall be construed as indicated unless such construction would produce a result inconsistent with the manifest intent of the legislature:

(1) GENERAL RULE. All words and phrases shall be construed according to common and approved usage; but technical words and phrases and others that have a peculiar meaning in the law shall be construed according to such meaning.

(2) ACQUIRE. "Acquire," when used in connection with a grant of power to any person, includes the acquisition by purchase, grant, gift or bequest. It includes the power to condemn in the cases specified in s. 32.02.

The opinion of the attorney general concluded that if the legislature had intended to limit CESAs to the acquisition of leasehold interests only, it would have stated that limitation expressly. The trial court's memorandum opinion concluded that the power to acquire real estate was inherent in the creation of the agency because if rental space were not available in a given community the CESA would have no alternative but to cease operations or to acquire real estate for space, which "should" be its right.

Neither opinion mentions two bills introduced during the 1973 legislative session which would have conferred express authority to CESAs or CESA members to purchase and hold real estate for agency purposes. Senate Bill 742 introduced on September 27, 1973, proposed to enact sec. 116.035 to authorize "any combination of school districts representing at least two-thirds of the districts within an agency" to "purchase, construct, establish, maintain and levy taxes to support an office facility and necessary real property for the use of the agency serving their district." The legislative reference bureau analysis of the bill states in part:

Current law permits boards of control of cooperative educational service agencies (CESA) to expend funds to lease office space for the operation of such agencies. No provision is made for the purchase of such office space.

The caption of the bill indicates that it was introduced by Senator Bidwell at the request of the respondent CESA 12. Assembly Bill 1452, introduced on February 13, 1974, was co-sponsored by Senator Bidwell and proposed a direct grant of power to CESAs to "(p)urchase, hold, encumber and dispose of real property, in the name of the agency, for use as its office or for any educational service provided by the agency." Both bills died in committee.

An agency or board created by the legislature has only those powers which are expressly conferred or which are necessarily implied from the statutes under which it operates. Racine Fire and Police Comm. v. Stanfield, 70 Wis.2d 395, 234 N.W.2d 307 (1975); Wisconsin's Environmental Decade, Inc. v. PSC, 69 Wis.2d 1, 230 N.W.2d 243 (1975). "(A)ny reasonable doubt of the existence of an implied power of an administrative agency should be resolved against the exercise of such authority." State (Dept. of Admin.) v. ILHR Dept., 77 Wis.2d 126, 136, 252 N.W.2d 353, 357-58 (1977), citing State ex rel. Farrell v. Schubert, 52 Wis.2d 351, 358, 190 N.W.2d 529, 532-33 (1971), reh. den. 409 U.S. 898, 93 S.Ct. 177, 34 L.Ed.2d 156 (1972), vacated 408 U.S. 915, 92 S.Ct. 2500, 33 L.Ed.2d 327 (1972).

The statement of purpose set forth in sec. 116.01, Stats., indicates that CESAs were created by the legislature in recognition of "the need for a service unit between the local school district and the state superintendent" of public instruction. The statement of purpose continues:

The cooperative educational service agencies are designed to serve educational needs in all areas of Wisconsin and as a convenience for all areas of Wisconsin and as a convenience for school districts in cooperatively providing to teachers, students, school boards, administrators and others, special educational services including, without limitation because of enumeration, such programs as research, special student classes, human growth and development programs, data collection, processing and dissemination, in-service programs and liaison between the state and local school districts.

A CESA's board of control is authorized under sec. 116.03(2), Stats., to receive state aid "for the operation of the agency. That aid is separately conferred by sec. 116.08(1), which provides an amount "not to exceed $47,300 in 1979-80 and $50,600 annually thereafter" for each agency "for the maintenance and operation of the office of the board of control and agency administrator. " (Emphasis supplied.) ² Payment of the aid is conditioned on the filing of a certified annual statement of expenses for the prior year with the state superintendent showing "that the state aid was expended as provided by this section. " Section 116.08(2) authorizes the agencies to "incur short term loans, but the outstanding amount of such loans at any one time shall not exceed 50% of the agency's receipts for the prior fiscal year. " (Emphasis supplied.)

In addition to its other, largely ministerial duties listed in sec. 116.03(1) through (13), Stats., the board of control is required to:

(4) Determine each participating local unit's prorated share of the cost of cooperative programs and assess the costs of each program against each unit participating in the program including, without limitation because of enumeration, unemployment compensation, litigation expense, collective bargaining and monetary awards by courts and agencies, but no board of control may levy any taxes. No...