Milwaukee County v. Schmidt
| Decision Date | 27 February 1968 |
| Citation | 156 N.W.2d 493,38 Wis.2d 131 |
| Parties | MILWAUKEE COUNTY, a municipal body corporate, Appellant, v. Wilbur J. SCHMIDT, Individually and as Director of the State (Wisconsin) Department of Public Welfare, Respondent. |
| Court | Wisconsin Supreme Court |
Robert P. Russell, Corp. Counsel, George E. Rice, First Asst. Corp. Counsel, Milwaukee, for appellant.
Bronson C. La Follette, Atty. Gen., James H. McDermott, Asst. Atty. Gen., Charles C. Lubcke, Collection & Deportation Counsel, Dept. of Health & Social Services, Madison, for respondent.
Milwaukee County, plaintiff-appellant, commenced litigation to recover certain monies from the State of Wisconsin, through the Director of the State Department of Public Welfare (now Department of Health and Social Services). The plaintiff seeks to recover certain collection costs under sec. 46.10, Stats., which allocates liability for the maintenance of patients in specified institutions.
The trial court permitted the plaintiff to amend its pleadings. As we view these amended pleadings, two separate and distinct causes of action were presented to the trial court.
The first cause of action was one for declaratory judgment arising out of the enactment of Chapter 166, Laws of 1963, and the subsequent enactment of Chapter 479, Laws of 1963. A trial, based on stipulated facts, was had on this cause of action.
The second cause of action for the recovery of collection costs was based on an entirely different theory; and as to this cause of action, the plaintiff subsequently moved for summary judgment.
Although the trial court adjudicated the first cause of action and properly denied plaintiff's motion for summary judgment as to the second cause of action, a procedural problem developed as a result of the somewhat confused and uncertain manner in which the first cause of action was initially presented to the trial court.
When the trial court entered its judgment adjudicating the first cause of action, it did so in language which had the practical effect of granting summary judgment to the defendant as to the second cause of action. The net result is that even though the plaintiff's motion for summary judgment on the second cause of action was denied, the plaintiff has really never had its day in court.
Prior to the controversy in question, sec. 46.10(8)(f), Stats., 1961, provided as follows:
'46.10 Maintenance of inmates or out-patients, liability; collection and deportation counsel; collections; court action; recovery.
(8) The department may:
(f) Make adjustment and settlement with the several counties for their proper share of all moneys collected.'
During the 1963 legislative session, Milwaukee County sponsored the introduction of Bill 139--S which was introduced on February 14, 1963, and ultimately became Chapter 166, Laws of 1963, published July 16, 1963, and provided as follows:
'AN ACT to repeal and recreate 46.10(8)(f) of the statutes, relating to adjustment of collections between certain counties and the state.
The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:
46.10(8)(f) of the statutes is repealed and recreated to read:
46.10(8)(f) Make adjustment and settlement with the several counties for their proper share of all moneys collected. In counties having a population of $500,000 or more the department shall grant credit for the full costs of collection, including legal services furnished under sub. (12), salaries of investigators, collectors, clerks and other personnel, supplies, postage, travel and other collection costs. In arriving at any settlement the director of institutions and departments in counties having a population of $500,000 or more shall certify on July 1 of each year, to the director of the department, the full costs as itemized above attributable to collection activities under this section, and the director of the department shall deduct said costs from the share which is to be annually remitted to the department in settlement, beginning July 1, 1963.
Approved July 10, 1963.' (Emphasis added.)
This version of sec. 46.10(8)(f), Stats., appears in Vol. 1 of Wisconsin Statutes 1963, page 866.
The state department of public welfare sponsored Bill 170--S which was introduced on February 19, 1963, and ultimately became Chapter 479, Laws of 1963, published May 2, 1964. Section 4 of this Chapter provides as follows:
'SECTION 4. 46.10(8)(f) of the statutes is repealed and recreated to read:
46.10(8)(f) 1. Make adjustment and settlement with the several counties for their proper share of all moneys collected.
2. Adjustment and settlement of all moneys collected for care furnished after July 1, 1963, at the county mental hospitals except the county mental health center, north division, established under s. 51.24(1) shall be as follows:
a. Sixty per cent to the state and 40 per cent to the county of legal settlement when the patient is hospitalized in the county of his legal settlement.
b. Fifty per cent to the state and 50 per cent to the county of legal settlement when the patient is hospitalized in a county hospital operated by a county other than the county of such patient's legal settlement.
c. 100 per cent to the state when the patient has no legal settlement in any county.
3. Adjustment and settlement of all moneys collected for care furnished after July 1, 1964, at the county mental health center, north division, established under s. 51.24(1) shall be as follows:
a. Sixty per cent to the state and 40 per cent to the county of legal settlement when the patient is hospitalized in the county of his legal settlement.
b. Prorate between state and county of legal settlement on the percentage ratio each his contributed of the individual average per capita cost where the patient has legal settlement in a county other than the county where hospitalized.
c. 100 per cent to the state where the patient has no legal settlement in any county.' (Emphasis added.)
This version of sec. 46.10(8)(f), Stats., appears in Vol. 2 of Wisconsin Statutes (Addendum) 1963, pages 39--40. The note following this section, as reported in the addendum, specifies the problem at bar by stating:
'Chapter 479, laws of 1963, which repealed and recreated 46.10(8)(f), did not refer to the changes made by Chapter 166, laws of 1963.'
Thus, Chapter 166 was apparently incorporated as part of sec. 46.10(8)(f), Stats., for a period of less than ten months.
Appellant contends for various reasons, that Chapter 166, which repealed sec. 46.10(8)(f), Stats., 1961, was not repealed by Sec. 4 of Chapter 479, Laws of 1963. Respondent contends that Sec. 4 of Chapter 479 expressly repealed sec. 46.10(8)(f) as it then existed, i.e. in its Chapter 166 form.
It is urged by the appellant that since the collection credit provisions of Chapter 166 are not repugnant to or in direct conflict with the provisions of Chapter 479 that this court should somehow amalgamate or harmonize the two chapters so that the collection credit provisions of Chapter 166 would be considered a part of the statutory law of the state. It is also contended that the legislative use of 'repeal and recreate' language is nothing more than a 'polished or sophisticated' type of amendment procedure utilized for the purpose of brevity and clarity in the drafting process.
The use of the language 'repeal and recreate' in the legislative process means exactly what it says and constitutes an express repeal.
'The argument has two things the matter with it; first, the assumption that the 1953 legislature did not intend to repeal sec. 85.05(3), Stats. Of course it intended the repeal. It expressly said it was repealing the whole of sec. 85.05. What it did not intend was the omission of that subsection from the re-creation. Not that this makes any real difference because, second, if the repeal itself had been by error it was, nevertheless effective. Even where there is no express repeal but merely a legislative declaration that a statute 'is amended to real:' any provision of the original statute not found in the statute, as amended, is repealed. State v. Ingersoll, 1864, 17 Wis. *631, *634; Bentley v. Adams, 1896, 92 Wis. 386, 391, 66 N.W. 505.
We held in Kugler v. City of Milwaukee, 1932, 208 Wis. 251, 255, 242 N.W. 481, and Cavadini v. Larson, 1933, 211 Wis. 200, 208, 248 N.W. 209, and now repeat, a clear and plain declaration in the enacting clause that a statute is repealed must be given effect according to its terms.
So we conclude that between the repeal of sec. 85.05(3), Stats., on August 12, 1953, and its substantial re-enactment on November 26, 1953, as sec. 85.05(6), Wisconsin had no statutory provision making service of process upon the commissioner of motor vehicles constructive service, or a part of constructive service, upon a nonresident driver or his employer.' 1 Therefore, it follows that the trial court's
determination that Chapter 479 effectively...
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