Milwaukee County v. Schmidt

• Decision Date: 25 June 1971
• Docket Number: Nos. 91,354,s. 91
• Parties: MILWAUKEE COUNTY, Respondent, v. Wilbur J. SCHMIDT, Secy., Dept. of Health & Social Services, et al., Appellants. WOOD COUNTY, a body corporate, Respondent, v. Wilbur J. SCHMIDT, Secy., Dept. of Health & Social Services, et al., Appellants.
• Court: Wisconsin Supreme Court

Page 777

187 N.W.2d 777

52 Wis.2d 58

MILWAUKEE COUNTY, Respondent,

v.

Wilbur J. SCHMIDT, Secy., Dept. of Health & Social Services,

et al., Appellants.

WOOD COUNTY, a body corporate, Respondent,

v.

Wilbur J. SCHMIDT, Secy., Dept. of Health & Social Services,

et al., Appellants.

Nos. 91, 354.

Supreme Court of Wisconsin.

June 25, 1971.

These cases were consolidated for appeal and review because each raises the same issues. Judgment was entered awarding peremptory writs of mandamus to petitioners, Wood County and Milwaukee County (hereinafter respondents), directing Wilbur J. Schmidt, Secretary of the State (Wisconsin) Department of Health & Social Services, and Wayne McGowen, Secretary (Commissioner) of the State (Wisconsin) Department of Administration (hereinafter appellants), to pay certain amounts of state aid to respondents which they claimed was due them pursuant to sec. 49.52(2), Stats.

Respondents' petitions also sought judgment directing payment of interest thereon. This was denied.

Appellants have appealed from the judgment directing payment of said sums, and respondents have served and filed a motion for review of that portion of the judgment denying payment of interest.

Ten other Wisconsin counties caused similar writs to be served prior to commencement of trial, and all actions were consolidated for trial. Trial was to the court, without a jury. We understand that by agreement of the parties, the ten other cases are not being appealed.

Perina & Rouse, Madison, for appellants.

Robert P. Russell, Corp. Counsel, George E. Rice, Milwaukee, Deputy Corp. Counsel, for Milwaukee County.

Lawrence R. Nash, Corp. Counsel, Chambers, Nash, Pierce & Podvin, Wisconsin Rapids, of counsel, for Wood County.

CONNOR T. HANSEN, Justice.

Sec. 49.52, Stats., was created by ch. 590, Laws of 1965, and became effective July 1, 1966, Sec. 49.52(1) provides for reimbursement to counties of federal funds received by the state as grants in aid for certain categories of public assistance. Sec. 49.52(2)(a) provides for reimbursement to counties by the state of amounts expended by the counties for certain categories of public assistance. Sub. (2)(a) 1. of sec. 49.52 provides certain percentages which are to be paid by the state for nonfederally reimbursed county expenditures for those categories of assistance. However, sub. (2)(a) 4. of sec. 49.52 provides for reimbursement by the state to counties of the excess costs in 1966--67 over the 1964--65 base year.

The following provisions of sec. 49.52, Stats., are pertinent to the instant case:

'* * *

'(2) State Aid. (a) The state aid to which any county shall be entitled shall be determined according to the amount expended by the county for aid to the blind, aid to families with dependent children, old-age assistance and aid to totally and permanently disabled persons including services and medical administration and child welfare services, mental hygiene services and other welfare services performed by the county agency administering such aids in cooperation with or at the request of the state department, pursuant to express authorization, but excluding general relief, after deducting the reimbursement received from federal funds pursuant to sub. (1) and paid as follows:

'* * *

'4. If the cost for any county as determined under this section for 1966--67 exceeds the cost of the 1964--65 base year the county shall be reimbursed for the full amount of that excess. * * *' (Emphasis added.)

On October 30, 1967, the assistant administrator for the division of public assistance sent letters to the respondent counties informing them of the amount of reimbursement to which they were entitled as excess costs computed under sec. 49.52(2)(a) 4., Stats. These letters showed that in computing excess costs under sec. 49.52(2)(a) 4., the amount expended by the counties for general relief had been included. On November 2, 1967, the director of the department of public welfare for Wood County advised the division of public assistance that the method it used in computing the excess cost was not in accordance with law, and that an attorney general's opinion was being sought. On November 6, 1967, appellant Schmidt advised Wood County that if the attorney general ruled the department's interpretation of the statute improper, it would reimburse all counties on the basis of the attorney general's interpretation and within the limits imposed by appropriations available for that purpose. On January 18, 1968, the attorney general advised that under sec. 49.52(2)(a) 4., general relief should be excluded in determining the cost for any county for the year 1966--67 and the base year 1964--65, and that the department had misinterpreted the formula by including general relief in its computations.

On January 10, 1969, nearly a year after the opinion of the attorney general, Schmidt advised respondents that appellants would not follow the opinion since the attorney general's interpretation of sec. 49.52, Stats., the statute enacted by the legislature, did not conform with the program's intent as developed by the Task Force appointed to study the 1965 amendment to the Social Security Act. Schmidt served as chairman of the Task Force committee.

By excluding the item of general relief, Wood County claims the sum of $62,268.42 is due it for the year of 1966--67, and Milwaukee County claims the sum of $2,901.974.28 is due it for the same period. It is represented the total due the various Wisconsin counties for this period, by excluding the general relief item, is $4,010,241.34, and that there is an overpayment to three counties totaling $5,786.13.

Two issues are raised by the appellants:

(1) Is resort to mandamus precluded because other remedies at law are available?

(2) Does sec. 49.52(2)(a) 4., Stats., require that general relief be excluded in computing excess cost to the counties in 1966--67 or the 1964--65 base year?

IS RESORT TO MANDAMUS PRECLUDED?

The appellants contend that mandamus may not be maintained because several other plain, adequate and complete remedies exist. For reasons hereinafter stated, we consider this assertion to be without merit.

The trial court granted the appellants leave to file a motion to quash the alternative writ of mandamus although the motion was not made prior to the time for a return to the writ. This motion to quash was denied, and no appeal was taken from the order so denying the motion to quash. State ex rel. Johnson v. County Court (1968), 41 Wis.2d 188, 163 N.W.2d 6; State ex rel. Hurley v. Schmidley (1970), 48 Wis.2d 659, 180 N.W.2d 605.

After the appellants' motion to quash had been denied, the cases then proceeded to trial on the merits. After apparently four days of trial the court entered judgment directing a peremptory writ of mandamus.

We are now asked to reverse the judgment of the trial court because the respondents were precluded from resorting to mandamus. We do not consider it necessary to here discuss the other possible remedies appellants suggest were available to the respondents. Mandamus is a discretionary writ and the order of the trial court will not be reversed except for abuse of discretion. Menzl v. Milwaukee (1966), 32 Wis.2d 266, 275, 145 N.W.2d 198. We find no abuse of discretion by the trial court in this case.

Also, under the facts of this case we are of the opinion that State ex rel. Racine County v. Schmidt (1959), 7 Wis.2d 528, 97 N.W.2d 493, is sound authority supporting the judgment of the trial court:

'* * * Even where mandamus was determined not to be a proper remedy, however, this court has, in order to avoid unnecessary delay in the determination of public questions, treated an action in mandamus as if it were an action for declaratory relief. Thus a final decision has been reached with a minimum of uncertainty. * * *

'Where the sole question is one of law and the moving party chooses mandamus for his remedy, there is ordinarily little reason to require him to change the form of his action into one for declaratory relief. It is true that in the present situation complications may arise as noted by the trial court, * * *. It may well be that these complications put the question of propriety of mandamus within the discretion of the circuit court. Even so, we conclude that where the circuit court within its discretion decided that mandamus was not the appropriate remedy, the court should have expedited the matter by following the suggestion of the Young and Silgen cases (State ex rel. Young v. Maresch, 225 Wis. 225, 273 N.W. 225; Silgen v. City of Fond du Lac, 225 Wis. 335, 274 N.W. 256) and proceeding as if the action in so far as it pertains to sec. 51.08 were an action for declaratory relief.' State ex rel. Racine County v. Schmidt, supra, pp. 536, 537, 97 N.W.2d p. 497.

DETERMINATION OF COUNTY COSTS UNDER SEC. 49.52(2)(a)

4.

Appellants contend that the action in mandamus is improper because respondents did not establish a clear legal right to the performance of a duty which is positive, plain and unequivocal, and which does not require the exercise of discretion. However, the right of respondents to be reimbursed for excess costs, excluding general relief, is positive, plain and unequivocal, and an administrative officer has no discretion to disregard the language of a statute in performing his duties.

'It seems that the administrator misunderstands his discretion here.

"'Every statute to some extent requires construction by the public officer whose duties may be defined therein. Such officer must read the law, and he must therefore, in a certain sense, construe it, in order to form a judgment from its language what duty he is directed by the statute to perform. But that does not necessarily and in all cases make the duty of the officer anything other than a purely ministerial one. If the law direct him to perform an act in regard to which no discretion is committed to him, and which, upon the facts...