State ex rel. Commissioners of Public Lands v. Anderson

• Decision Date: 03 January 1973
• Docket Number: No. 229,229
• Citation: 203 N.W.2d 84,56 Wis.2d 666
• Parties: STATE of Wisconsin ex rel. COMMISSIONERS OF PUBLIC LANDS, Appellant, v. Walter E. ANDERSON, County Treasurer of Kenosha County, Respondent.
• Court: Wisconsin Supreme Court

Page 84

203 N.W.2d 84

56 Wis.2d 666

STATE of Wisconsin ex rel. COMMISSIONERS OF PUBLIC LANDS, Appellant, v.Walter E. ANDERSON, County Treasurer of Kenosha County, Respondent.

No. 229.

Supreme Court of Wisconsin.

Jan. 3, 1973.

Robert W. Warren, Atty. Gen., LeRoy L. Dalton, Robert D. Martinson, Asst. Attys.Gen., Madison, for appellant.

Stafford, Rosenbaum, Rieser & Hansen, Madison, for respondent.

HALLOWS, Chief Justice.

This appeal raises the question of whether the legislature may define 'clear proceeds' as used in Article X, Section 2, of the Wisconsin Constitution, and whether sec. 59.20(8), Stats., is a valid declaration of clear proceeds.

The constitution provides the clear proceeds of all fines collected in the counties for breaches of the penal laws shall be set apart as a separate 'school fund.'¹The commissioners are constitutional officers and charged with the duty as trustees to administer the school fund.SeeArticle X, Section 7, Wisconsin Constitution;secs. 25.01and25.21, Stats.The trial court correctly found the commissioners had standing to raise the issue of the constitutionality of sec. 59.20(8), Stats.They are not an agency of the state created by the legislature within the meaning of the rule of Fulton Foundation v. Department of Taxation(1961), 13 Wis.2d 1, 108 N.W.2d 312;see alsoState ex rel. La Crosse v. Rothwell(1964), 25 Wis.2d 228, 131 N.W.2d 699;Columbia County v. Wisconsin Retirement Fund(1962), 17 Wis.2d 310, 116 N.W.2d 142.

Prior case law does not require or dictate that sec. 59.20(8), Stats., be declared constitutional.Since 1849, one year after the adoption of our constitution, a treasurer of a county could retain 2 percent of the fines as his fee for collecting and transmitting the fines derived from the conviction of the violations of criminal statutes.SeeRevised Stats.(1849), ch. 10, secs. 111, 115, 116.By the Laws of 1929, ch. 287, this amount was increased to 10 percent to be kept by the county; and, by the Laws of 1941, ch. 206, sec. 1a, the legislature increased the amount the county could retain from 10 to 50 percent of the fines and penalties collected under the statute relating to motor vehicle laws.

The question of what amount constitutes 'clear proceeds' which the state must constitutionally receive from fines collected by the counties under state penal laws is not resolved by resort to any definition in the constitution because the term is not therein defined.Consequently, the legislature must determine the meaning and the application of clear proceeds.From prior cases it is apparent the legislature has such power but it is limited and the legislature may not grant so large a percentage of the fines that the sum left for the school fund is merely nominal, and the sum allowed to be withheld by the collecting county must not be for a purpose other than reimbursement of the expense of prosecuting the offense which generates the fines.Obviously, 'clear proceeds' should mean net proceeds and any deduction from the amount of the fines should represent the actual or reasonably accurate estimate of the costs of the prosecution.

The first case considering 'clear proceeds' was Lynch v. The Steamer 'Economy'(1870), 27 Wis. 69, which involved a statute providing a penalty for violating a requirement that spark catchers be used on river boats and which granted one half of the penalty to the complainant or informer who prosecuted the case.The other half of the penalty was allocated to the county, but the court said this allocation to the county was undoubtedly invalid because the state and not the county was entitled to the remaining one half of the fine.By implication this court in determining clear proceeds allowed an informer or collector's fee, which was traditional at common law, of 50 percent as an expense.But, in the next year, this court struck down a statute which imposed a penalty for permitting sheep infected with 'foot rot' to be driven upon a public highway because the statute provided that the entire penalty recovered would go to the complainant.Dutton v. Fowler(1871), 27 Wis. 427.Apparently on the theory the amount of the penalty exceeded the cost of prosecution or a controlable item of deduction should not equal the penalty, this court intimated some part of the penalty had to be reserved for the school fund.Thus, where it was possible to have clear proceeds of a fine, such proceeds must be reserved to the state.In both these case, the court by implication or assumption recognized the power of the legislature to determine what constituted clear proceeds.

In State ex rel. Guenther, State Treasurer v. Miles, County Treasurer(1881), 52 Wis. 488, 9 N.W. 403, the state sought to recover money received as fines which the county treasurer claimed the expense of prosecution had absorbed.The statute required the county treasurer to remit the fines after deducting his 'legal fees' which were set at 2 percent.This court held the county treasurer was bound by the 2 percent set by the legislature in the statute; it was the duty of the legislature to determine what deductions were to be made, and even this legislative power was limited.This case held all money collected as forfeited recognizances could be retained by county treasurers without violation of any constitutional provision because a forfeiture was not a fine.This holding was affirmed in State v. Wettstein(1885), 64 Wis. 234, 25 N.W. 34.Section 345.13(2), Stats., now treats forfeitures of bail as payments of fines.²

The power of the legislature to determine 'clear proceeds' was reaffirmed in State v. De Lano(1891), 80 Wis. 259, 49 N.W. 808.The statute involved therein provided two thirds of the fine would go to the informer and one third to the school fund.The court noted that in the Lynch Case the legislative power to determine what amounted to clear proceeds was assumed rather than decided.Addressing itself anew to the question of what 'clear proceeds' meant, the court stated that 'clear' meant something could be deducted from the fine so that the balance was free from all charges and thus the equivalent of the term 'net profit' as used in business transactions.Reasoning from the premise that a power must exist to declare what constitutes clear proceeds, the court said it did exist and rested in the legislature.Although the court thought two thirds of the fee paid to the informer was large, it approved the fee but warned, however, that it would not approve a mere nominal amount being left for the school fund.

In State ex rel. Johnson v. Maurer(1915), 159 Wis. 653, 150 N.W. 966, a statute provided for one third of the fine...