State ex rel. Sell v. Milwaukee County

• Decision Date: 29 October 1974
• Docket Number: No. 234,234
• Citation: 65 Wis.2d 219,222 N.W.2d 592
• Parties: STATE ex rel. Todd Richard SELL et al., Appellants, v. MILWAUKEE COUNTY et al., Respondents.
• Court: Wisconsin Supreme Court

Page 592

222 N.W.2d 592

65 Wis.2d 219

STATE ex rel. Todd Richard SELL et al., Appellants, v. MILWAUKEE COUNTY et al., Respondents.

No. 234.

Supreme Court of Wisconsin.

Oct. 29, 1974.

Brian A. Jeffrey, Steven H. Steinglass, Milwaukee, for appellant.

Robert P. Russell, Corp. Counsel, and Gerald G. Pagel, Asst. Corp. Counsel, Milwaukee, for respondents.

WILKIE, Chief Justice.

This appeal is from an order denying a petition for a writ of mandamus sought to compel Milwaukee County, the Board of Supervisors of Milwaukee, the Board of Public Welfare of Milwaukee County and two officials of the Department of Public Welfare to provide such general relief to plaintiffs 'as may be reasonable (and) necessary under the circumstances and as required by secs. 49.02(1) and 49.02(2), Wis.Stats. (1971).' Plaintiffs Todd Richard Sell and his wife Olivia Sell were denied relief solely for refusal to comply with a department rule which provided:

'In General Assistance cases automobiles, motorcycles, trucks, etc., are to be sold, except where the assistance is temporary, in which case the plates and title will be turned over to the department; or where a specific budgetable item is directly traceable to the continued use of such vehicle; or in other emergency situations. In Social Security Aids, the department will follow the policy of the State Department of Public Welfare.'

It is conceded by the defendants-erspondents that the sole reason plaintiffs-appellants were denied relief was their failure to surrender their car license plates and title as provided for by the department rule.

The sole issue presented here is the validity of that rule as against the contention that the county, by invoking that rule, failed to furnish relief to the plaintiffs as eligible dependent persons within Milwaukee county, pursuant to sec. 49.02(1) and (2), Stats. We hold that this rule, as applied by the department as a flat prerequisite to even temporary assistance, violates sec. 49.02(1) and (2).

This appeal reaches this court after the petition for a writ of mandamus resulted in an alternative writ, and in a return being filed on behalf of all the defendants-respondents. From the petition it appears that the Sells are residents of the city and county of Milwaukee. Todd owned a 1965 Oldsmobile purchased for $100 on November 26, 1972. He became unemployed on February 1, 1973, and thereafter used the car to look for new work. He remained unemployed, however, at the time the writ was filed. Olivia was pregnant, having an expected delivery date of March 2, 1973. The alternative writ alleges she needed the car to have access to medical care during the final month of her pregnancy. On February 9, 1973, the Sells applied for general relief to the Milwaukee County Department of Public Welfare and received an emergency food voucher for $10.20. On February 16th they received another such voucher but were told they would not receive any further assistance until they surrendered to the department their car title and license plates. In the return filed by defendants-respondents, the county and county officials denied that the Sells are dependent persons eligible for relief and denied that refusal to provide the Sells with relief is illegal in any respect.

At the hearing before the trial court, defendants' attorney conceded that the sole reason plaintiffs were denied relief was their failure to surrender their car license plates and title and that the county welfare department had not conducted a factual investigation as to whether the Sells otherwise qualified for relief. The defendants took the position that the Sells were not dependent persons because the fact of their automobile ownership conclusively established nondependency in the eyes of the department. The trial court found that the Sells owned a car valued 'at, or slightly less than, one hundred dollars' and 'that such property can be presently converted into cash money through its sale.'

Sec. 49.02(1), Stats., provides, in part, 'Every municipality shall furnish relief only to all eligible dependent persons therein.' Under sec. 49.51(2) (a), the Milwaukee County Department of Public Welfare administers the relief program in Milwaukee county, and thereby assumes the 'functions, duties and powers' imposed on municipalities by sec. 49.02(1). ¹ We have previously held that failure to provide relief in accordance with the command of the statute is the proper subject for the writ of mandamus. ²

The disputed rule provides for denying any temporary assistance until an applicant for relief has transferred to the department his car title and license plates, but the relief statute, sec. 49.02(1), requires relief to be granted to 'all eligible dependent persons.' It is clear that by requiring the transfer as a preliminary to the granting of even temporary relief, the department has spelled out in rule form an unauthorized and illegal prerequisite to the exercise by welfare authorities of their statutory duty to determine whether or not a person seeking temporary assistance is, in fact, a dependent person and eligible for relief. The dispensation of relief is entirely governed by statute and in this respect we said, as early as 1935, in Spaulding v. Wood County 'It is conceded that the county has only such authority as is conferred upon it by statute. Counties are purely auxiliaries of the state and can exercise only such powers as are conferred upon them by statute, or such as are necessarily implied therefrom. Dillon Municipal Corporations, vol. 1 (6th Ed.) § 37; Frederick v. Douglas County, 96 Wis. 411, 417, 71 N.W. 798.' ³

As the court said in State ex rel. Arteaga v. Silverman:

'. . . The determination of whether applicants for relief, under sec. 49.02, are 'dependent persons' is a question of fact that is not left to the discretion of local welfare officials. Outagamie County v. Town of Brooklyn (1962), 18 Wis.2d 303, 311, 312, 118 N.W.2d 201.' ⁴

Under sec. 49.01(1) and (4), Stats., the factual determination of dependency status must include a finding as to the value of the money, income, property, or credit presently available to the applicant, as well as a determination of the applicant's level of need for the services and commodities specified in sec. 49.01(1). If the applicant's need exceeds the value of his 'presently available' assets, relief must be furnished. The amount and kind of relief, however, is up to the discretion of welfare officials. ⁵ Thus, the Milwaukee county officials could take into account the value of the applicant's 'presently available' assets in deciding how much relief to provide. But here, rather than factually determining the value of all of the plaintiffs' assets and the level of plaintiffs' need, the department refused to provide relief solely because of plaintiffs' automobile ownership. The department thus failed to perform its statutory obligations. The Sells were entitled to relief despite their automobile ownership, if their level of need exceeded the value of their assets. The department's policy is inconsistent with the statute which does not require relief recipients to have no assets whatsoever; rather, it only requires the value of the assets to be insufficient to cover the recipient's need. ⁶

This analysis is supported by Outagamie County v. Brooklyn. ⁷ The recipient of emergency medical relief owned a car purchased two years previous for $595. Since there was no evidence that it was presently a salable asset, the court said it could not be counted to determine the recipient's status as a dependent. However, the court said that even if it were a salable asset, its ownership could not deprive the recipient of dependency status where her need was $1,214. Thus the court indicated that ownership of an asset did not automatically disqualify a relief applicant as a dependent person; the asset's value must exceed the level of need.

Additionally, the facts in the case at bar closely resemble those in the recent case of State ex rel. Arteaga v. Silverman, ⁸ where the Milwaukee County Welfare Department refused to furnish relief pursuant to a department rule, despite the qualification under all statutory criteria. The department rule in Arteaga provided that applicants who were unemployed as a result of voluntary termination of employment, were ineligible for relief. The court held that where the applicant met all statutory requirements, the department had an obligation to furnish relief, despite the applicant's past conduct. ⁹ As in the instant case, the department required relief applicants to satisfy criteria beyond those contained in the statute; the additional requirements were struck down. Here, as in Arteaga, the department should be required to conform to the statute.

Defendants try to justify their refusal to furnish relief to plaintiffs on two grounds: the presumption of administrative regularity, and sec. 49.06, Stats.

1. Presumption of administrative regularity. Defendants argue that the presumption of administrative regularity compels a conclusion that the department acted properly in denying relief to plaintiffs. In outagamie County v. Brooklyn ¹⁰ this court held that in the absence of contrary evidence the decision to furnish relief is presumed to have been based on a proper determination of the recipient's dependency. Arguably the same presumption should attach to a decision to deny relief. However, as the court said in Outagamie County:

'. . . The presumption is a rebuttable one, and belongs to that category of presumptions which disappear entirely when any evidence is admitted to the contrary of the fact presumed.' ¹¹

Here, defendants' concessions in the lower court constitute contrary evidence. There is no dispute as to why plaintiffs were denied relief. The decision was based solely on plaintiffs' refusal to surrender their license plates. The department did not investigate as to whether plaintiffs otherwise qualified, due...