State, Dept. of Natural Resources, Division of Conservation v. City of Clintonville

• Decision Date: 30 November 1971
• Docket Number: No. 203,203
• Citation: 53 Wis.2d 1,191 N.W.2d 866
• Parties: STATE of Wisconsin, DEPARTMENT OF NATURAL RESOURCES, DIVISION OF CONSERVATION, Appellant, v. CITY OF CLINTONVILLE, a municipal corporation, Respondent.
• Court: Wisconsin Supreme Court

Page 866

191 N.W.2d 866

53 Wis.2d 1

STATE of Wisconsin, DEPARTMENT OF NATURAL RESOURCES DIVISION OF CONSERVATION, Appellant, v. CITY OF CLINTONVILLE, a municipal corporation, Respondent.

No. 203.

Supreme Court of Wisconsin.

Nov. 30, 1971.

Rehearing Denied Feb. 1, 1972.

The State of Wisconsin brought this suit under sec. 29.65, Stats., against the City of Clintonville to recover damages in the sum of $32,548 on the ground the city lowered a dam in the Pigeon River, which runs through the city, without the permission of the Department of Natural Resources (DNR) and thereby caused the death of numerous fish. The complaint alleged the city was negligent but the case was submitted to the jury on the theory of malfeasance. The jury in its special verdict found the city was required to obtain permission of the DNR to lower the level of the pond and had not obtained such permission and the failure to get permission was a substantial factor in causing the death of 15,870 pan fish, 130 bass, and 79 northern pike. On motions after verdict the court ruled sec. 29.65 allowed recovery only in a case involving a criminal act or at the very least an intentional tort and a municipality could not be held liable for either. As a secondary ground, the court found the state had failed to prove the officers or employees of the city, who actually lowered the pond, were acting within the scope of their authority so as to render the city responsible in any event. From the judgment dismissing the complaint, the state appeals.

Robert W. Warren, Atty. Gen., William F. Eich, Asst. Atty. Gen., Madison, for appellant.

Ralph M. Lauer, Clintonville, for respondent.

Eugene O. Gehl, Madison, amicus curiae.

HALLOWS, Chief Justice.

In the city of Clintonville there is a mill pond created by the damming of Pigeon River which runs through the city. On July 10, 1968, the gates of the dam were opened at the direction of alderman Hangartner of the Clintonville common council and the level of the pond was lowered approximately 30 inches. On July 24, 1968, upon a similar order of Hangartner, the pond was lowered to the level of the river bed. These lowerings were without the permission of the DNR as required by sec. 31.02, stats., ¹ and the second drawdown was in violation of a 1936 order of the DNR ² fixing the minimum level of the pond at 86.42 feet.

Under sec. 31.02, Stats., the DNR is given power to set and control the level of navigable rivers and lakes and had exercised this authority in reference to Pigeon River. Although the Pigeon River runs through the city of Clintonville that fact does not lessen the power of the DNR to set and control its level. Although municipalities under sec. 62.11(5), Stats., are given powers over navigable waters, such power is subject to those retained by the state in sec. 31.02. In Muench v. Public Service Comm. (1952), 261 Wis. 492, 53 N.W.2d 514, 55 N.W.2d 40, we pointed out the state must maintain pre-eminence in the control of navigable waters in this state. The reasonableness of this decision is illustrated in this case. A state conservation warden testified that when water in a pond is rapidly drawn down as it was in this case, turbulence causes silt to fill fishes gills, killing them. He stated no fish kill results if the water is lowered gradually and that when the DNR permits a drawdown below the minimum level fixed by the department, it supervises the drawdown and requires it to be done over a set period of time. Presumably then, if permission had been obtained by the City of Clintonville, the lowering of the level of the mill pond under the supervision of the DNR would not have resulted in any appreciable fish kill. The state argues it was negligence per se on the part of the city not to get permission to lower to level of the pond; but in the view we take of the construction of sec. 29.65, Stats., we do not reach this question. The state strenuously argues the section creates a strict liability more appropriately called 'absolute liability,' based upon the unauthorized act which caused the death of the fish.

The statute ³ upon which this theory of a cause of action is founded provides the DNR may bring a civil action for the recovery of liquidated damages against any person unlawfully killing fish and in an amount for each fish killed as therein stated. The primary issue in this case is the meaning of the word 'unlawfully' as applied to the killing of the fish by the sudden lowering of the level of the pond. The state argues that 'unlawfully' means any killing of fish which is not specifically authorized by the provisions of ch. 29, whether or not such killing is with intent or the result of negligence. The city and the amicus curiae argue that 'unlawfully' as used in this statute means only such killing as is expressly prohibited in ch. 29 and the civil action is intended to serve the limited purpose of providing an alternative to the criminal penalties provided in that chapter. Thus one side argues everything is unlawful which is not permitted, while the other side urges nothing is unlawful unless prohibited.

The word 'unlawfully' is not defined in sec. 29.65, Stats., and therefore is subject to interpretation. This word, like many words in the English language, is capable of many meanings but acquires a particular meaning for a particular purpose because of the context in which it is used. The word 'unlawfully' need not be a criminal act in a civil action for conspiracy because a wilful violation of a civil right is sufficient for that purpose. Cranston v. Bluhm (1967), 33 Wis.2d 192, 147 N.W.2d 337. The word 'unlawfully' does not always mean knowingly, Hughes v. United States (1st Cir., 1965), 338 F.2d 651, 652, and may include what is merely unauthorized by law. Black's Law Dictionary (4th Ed. Rev., 1968) p. 1705. The word 'unlawful' used in sec. 291.10, Stats., ⁴ was held to mean only intentional acts of hold-overs. Feiges v. Racine Dry Goods Co. (1939), 231 Wis. 270, 285 N.W. 799. An 'unlawful order' of the public service commission, sec. 196.41, Stats., ⁵ was held to mean one not promulgated according to legislatively created procedures. Wis. Telephone Co. v. Public Service Comm. (1939), 232 Wis. 274, 287 N.W. 122, 593. 'Unlawful' in respect to speed in sec. 346.18(1), Stats., ⁶ the Right of Way Statute, has been defined to mean not only violations of statutes or ordinance but necessarily to include negligence. Pagel v. Kees (1964), 23 Wis.2d 462, 127 N.W.2d 816; Drake v. Farmers Mut. Automobile Ins. Co. (1963), 22 Wis.2d 56, 125 N.W.2d 391, 128 N.W.2d 41; Johnson v. Fireman's Fund Indemnity Co. (1953), 264 Wis. 358, 59 N.W.2d 660.

In support of its arguments that the word 'unlawfully' imposed liability without regard to intent or negligence, the state cites other sections of the statutes for a precedent such as secs. 192.44, 23.09, and the Workmen's Compensation Law, ch. 102, Stats. We recognize Frederick v. Great Northern R. Co. (1932), 207 Wis. 234, 240 N.W. 387, 241 N.W. 363, held sec. 192.44 placed absolute liability on a reilroad for starting fires and in State v. Winkler (1949), 255 Wis. 352, 38 N.W.2d 471, this court held that for a violation of a conservation commission's order made pursuant to sec. 23.09 the state need not prove the intent to hunt as an element of the offense of possession of a firearm during closed seasons. But this argument goes no farther than to say that if the legislature so intends it may create absolute liability or strict liability for prescribed acts. The argument is not persuasive that the legislature so intended in enacting sec. 29.65.

Reference is also made to sec. 29.29(3), Stats., which imposes liability for dumping of substances deleterious to game or fish life as creating liability without regard to intent or care of the actor. This section is not before us on this appeal. There is no allegation of a deleterious substance having been deposited in the pond by the City of Clintonville and this opinion should not in any way be considered as a construction of that section.

The state strenously argues that unless a broad interpretation is given to the word 'unlawfully' so as to create absolute liability, municipalities will be effectively exempted from the working of the statute because municipalities cannot be charged with a criminal act and under sec. 895.43(3), Stats., are immune from the imposition of liability for the intentional torts of their agents. This is a strong publicpolicy argument and if any basis for it can be found in the language, history, and purpose, that argument should be given considerable weight.

It seems generally agreed that chapter 29 was an attempt by the legislature to create a complete regulatory scheme and as such its separate parts must be read together in order to find meaning of any ambiguity. Ambiguity in language in a statute may be solved by reference to its scope, history, context, subject matter, and the purpose or object to be accomplished. Scanlon v. City of Menasha (1962), 16 Wis.2d 437, 114 N.W.2d 791. Since this section is remedial in nature, we must give it as liberal a construction as the facts will permit. But we cannot read into statutory language that which is not there to reach a desirable result.

The language of sec. 29.65(1), Stats., provides the DNR may bring a civil action for the unlawful killing of game fish and provides for liquidated damages. Subsec. (2) provides the damages recovered will be paid into the state conservation fund. Subsec. (3) provides the civil action shall be a bar to a criminal prosecution for the same offense and vice versa. The language is in terms of what the DNR may do; it does not directly state substantially the elements of a cause of action. Its language rather than being prohibitive of certain acts refers to 'unlawful killing,' etc., implying that somewhere else in ch. 29 will be found a definition of 'unlawful.'

The section is entitled 'Civil...