State ex rel. Thomson v. Giessel

• Decision Date: 03 November 1953
• Citation: 265 Wis. 207,60 N.W.2d 763
• Parties: STATE ex rel. THOMSON, Atty. Gen. v. GIESSEL.
• Court: Wisconsin Supreme Court

Page 763

60 N.W.2d 763

265 Wis. 207

STATE ex rel. THOMSON, Atty. Gen. v. GIESSEL.

Supreme Court of Wisconsin.

Nov. 3, 1953.

This is an original action in this court praying for a writ of mandamus to compel the respondent, as Director of the Department of Budget and Accounts, to audit and approve the payment of state funds to townships under the provisions of sec. 77.05(2), Stats., which had been certified to him by the conservation commission.

The action was initiated by the filing of a petition requesting leave to commence the action here. Leave was granted on September 8, 1953. By stipulation the petition for leave to commence the action stands as the petition for the writ, and the matter came on to be heard as though an alternative writ had issued and the respondent had moved to quash on the ground that the same does not state facts showing that a peremptory writ should issue. The material allegations of the petition are as follows:

'4. Section 77.05(2), Wisconsin Statutes 1951, as created by ch. 454, Laws of 1927, amended by ch. 343, Laws of 1929, ch. 327, Laws of 1933, and repealed and recreated by ch. 282, Laws of 1937, reads as follows:

"77.05 State contribution. (1) * * *

"(2) As soon after the twentieth day of April of each year as feasible, the conservation commission shall pay to each town treasurer on each description as above certified and also on all county-owned forest crop lands in each town the sum of ten cents per acre out of the appropriation made by subsection (2) of section 20.07; provided, that if the total payments hereunder in any one year shall exceed the appropriation for that year then such payment of ten cents per acre shall be proportionately reduced.'

'5. Section 20.07(2)(a), Wisconsin Statutes 1951, provides as follows:

"20.07 General state appropriations. There is appropriated from the general fund, annually, to be paid as herein provided:

"(1) * * *

"(2) Forest Crop Lands. (a) Annually, beginning July 1, 1951, $235,000 to carry out the provisions of chapter 77, excluding section 77.14. * * *'

'7. On June 11, 1953, the said State Conservation Commission of Wisconsin duly certified to the respondent E. C. Giessel, as said Director of the Department of Budget and Accounts, for payment to the several towns in the state of Wisconsin having forest crop lands within their respective limits, the amounts which said towns were entitled to receive for the fiscal year 1953 under the provisions of said section 77.05(2), Wisconsin Statutes 1951, setting forth the name of each of said towns and the amount each was entitled to receive, which certification was prepared in voucher form and given voucher number 21,209.

'8. The payments to said towns as certified in said voucher number 21,209 totalled $234,807.46 and were at the rate of $.09925 per acre, the county-owned forest crop lands and the lands certified to said State Conservation Commission pursuant to section 77.05(1) Wisconsin Statutes 1951, to be used in making said payments, totalling 2,365,818.40 acres.

'9. The respondent, E. C. Giessel, as Director of said Department of Budget and Accounts refused to audit and approve the payments set forth in said voucher * * *.'

'10. Said respondent, E. C. Giessel, advanced no other reason for refusing to audit and approve said voucher and the payment of the sums therein certified than that there is a question as to the constitutionality of making said payments as provided in said sec. 77.05(2), Wis.Stats. and on information and belief petitioner alleges that no other reason exists for such refusal to so audit said voucher.

'11. Under the provisions of Article IV, Sec. 33 of the Constitution of Wisconsin and of sections 15.01 to 15.20 of the Wisconsin Statutes of 1951 it is the plain duty of the respondent E. C. Giessel, as Director of the Department of Budget and Accounts, to audit, honor and approve the said voucher number 21,209 so as to effect payment to the several towns the respective amounts therein set forth pursuant to, in accordance with and to carry out the provisions of section 77.05(2), Wisconsin Statutes 1951.

* * *

* * *

'18. The State Conservation Commission of Wisconsin maintains a system of accounts covering the payments under section 28.14, Wisconsin Statutes, including a ledger account for each of the counties receiving payments thereunder, which are audited annually by said State Conservation Commission to assure that said payments made are properly and legally expended and used by each of said counties for the purposes specified in said section 28.14 Wisconsin Statutes and if any expenditure is made thereof for other than such purposes the county making the same is required to restore to or reimburse its forestry fund in the amount thereof.

'19. The State Conservation Commission of Wisconsin keeps no similar accounting of the payments made to towns pursuant to section 77.05, Wisconsin Statutes and makes no audit or examination of the records or affairs of the towns receiving payments made under said section 77.05, Wisconsin Statutes, in respect to such payments or the use to which the towns receiving the same devote said payments or the proceeds thereof.

'20. If the respondent E. C. Giessel continues to decline and refuse to perform his official duties with respect to auditing and approving said voucher number 21,209 it will be impossible for the State Conservation Commission of Wisconsin to discharge its legal duty and function prescribed by said section 77.05(2), Wisconsin Statutes 1951 and for the State of Wisconsin to effect payment to the various towns in accordance with said section 77.05(2) and an enactment by the legislative representatives of the people of the state of Wisconsin in accordance with the Constitution of the state of Wisconsin will thereby be defeated and set at naught.'

Vernon W. Thomson, Atty. Gen., Harold H. Persons, Asst. Atty. Gen., for petitioner.

W. Roy Kopp, Platteville, for respondent.

Charles F. Smith, Wausau, and Wm. J. P. Aberg, Madison, amici curiae.

BROADFOOT, Justice.

Sec. 10, art. VIII of the Wisconsin constitution provides in part as follows:

'The state shall never contract any debt for works of internal improvement, or be a party in carrying on such works. * * * Provided, that the state may appropriate moneys for the purpose of acquiring, preserving and developing the forests of the state; but there shall not be appropriated under the authority of this section in any one year in amount to exceed two-tenths of one mill of the taxable property of the state as determined by the last preceding state assessment. '

The portion thereof referring to appropriations for the purpose of acquiring, preserving and developing the forests of the state was added by an amendment adopted in 1924. Since the year 1939, under the provisions of sec. 70.58, Stats., there has been levied and collected an annual tax of two-tenths of one mill 'for the purpose of acquiring, preserving and developing the forests of the state, the proceeds of such tax to be paid into the conservation fund.' In addition, the legislature has appropriated out of the general fund varying amounts for payment to the towns in accordance with sec. 77.05(2), Stats. This section provides for the payment of ten cents per acre, but also provides that if the appropriation is insufficient the payments shall be proportionately reduced. In 1952 the full amount of ten cents per acre was paid. In other years the amount was reduced, and the lowest payment was in the year 1940, when it amounted to five and two-tenths cents per acre. From 1942 on there has also been a separate appropriation by sec. 20.07(2)(c), Stats., for payment of the expenses of administration of ch. 77. This appropriation is not before us and is not being passed upon.

The voucher in question involves only lands entered under ch. 77, Stats. Payments to counties for forestry purposes are treated in separate sections of the statutes and payments therefor to counties are made from the conservation fund, which includes the amounts raised by the levying of the tax of two-tenths of one mill.

The respondent contends that the payment of the acreage contributions provided for by sec. 77.05(2), Stats., from the general fund would be unconstitutional since in excess of the over-all limitation of sec. 10, art. VIII of the constitution. First, because the acreage contributions by the state out of the general fund are part of a complete program provided for by ch. 77, Stats., and they contribute, as truly as the reduced tax payment by the landowner, to the general purpose of acquiring, preserving and developing the forests of the state. Second, because the payments are not a state aid for the reason that there is a provision for repayment in case the landowner withdraws his property and a severance tax is provided under which the state is repaid its advances, whereas state aids are usually in the form of outright grants.

On the authority of statements made in bulletins issued by the Wisconsin Conservation Commission, the United States Department of Agriculture, and the University of Wisconsin, it is contended that the plan of taxation adopted for...