State v. Dairyland Power Co-op.

• Decision Date: 25 June 1971
• Docket Number: No. 353,353
• Citation: 52 Wis.2d 45,187 N.W.2d 878
• Parties: , 2 ERC 1763, 1 Envtl. L. Rep. 20,325 STATE of Wisconsin, Respondent, v. DAIRYLAND POWER COOPERATIVE, Appellant.
• Court: Wisconsin Supreme Court

Page 878

187 N.W.2d 878

52 Wis.2d 45, 2 ERC 1763, 1 Envtl. L.

Rep. 20,325

STATE of Wisconsin, Respondent, v. DAIRYLAND POWER COOPERATIVE, Appellant.

No. 353.

Supreme Court of Wisconsin.

June 25, 1971.

Action in equity commenced by the Attorney General in behalf of the State of Wisconsin, pursuant to sec. 280.02, Stats., against the defendant Dairyland Power Cooperative, to abate a nuisance.

The complaint alleges inter alia the following facts concerning the operation of the appellant's power generating plant:

'6. The defendant in the operation of said power generating plant emits into the air fumes, smoke, gases, soot and other particles and chemicals for a sufficient duration and in a sufficient quantity so as to contaminate and pollute the atmosphere and air and that said acts of the defendant are deleterious and injurious to the health, safety and well-being of citizens of this state and are deleterious and injurious to the property, both personal and real, owned by persons other than the defendant, and said acts of the defendant prevent citizens from reasonably enjoying the normal benefits of living in communities in this state, and from the full use and enjoyment of their property, both personal and real.'

The defendant demurred to the complaint, contending that the court is without jurisdiction to hear the matter. Defendant also demurs on the ground that even if the court has jurisdiction, still the complaint should be dismissed because it does not state facts sufficient to constitute a cause of action.

The defendant's demurrer was overruled by order of the trial court. Defendant appeals from the order.

Wheeler, Van Sickle, Day & Anderson, Madison, for appellant.

Robert W. Warren, Atty. Gen., Arvid A. Sather, Deputy Atty. Gen., Theodore L. Priebe and Priscilla MacDougall, Asst. Attys. Gen., Madison, for respondent.

Prosser, Wiedabach, Koppa, Lane & Quale, Milwaukee, amicus curiae on behalf of Wis. Elec. Power Co.

Eugene O. Gehl, Madison, amicus curiae.

HANLEY, Justice.

Three issues are presented on appeal:

(1) Has sec. 280.02, Stats., been repealed by implication;

(2) Does either the exhaustion of remedies rule or the primary jurisdiction rule deprive the circuit court of jurisdiction to hear the merits of the matter; and

(3) Does the complaint state facts sufficient to constitute a cause of action?

Repeal by Implication.

Sec. 280.02, Stats., provides as follows:

'Injunction against public nuisance, time extension. An action to enjoin a public nuisance may be commenced and prosecuted in the name of the state, either by the attorney general on information obtained by the department of justice, or upon the relation of a private individual, or a county, having fist obtained leave therefor from the court. An action to enjoin a public nuisance may be commenced and prosecuted by a city, village or town in its own name, and it is not necessary to obtain leave from the court to commence or prosecute such action. The same rule as to liability for costs shall govern as in other actions brought by the state. No stay of any order or judgment enjoining or abating, in any action under this section, may be had unless the appeal be taken within 5 days after notice of entry of such judgment or order or service of the injunction. Upon appeal and stay, the return to the supreme court shall be made immediately.'

The basis of defendant's jurisdictional argument is that sec. 280.02, Stats., has been repealed by implication by the legislature's recent additions to ch. 144. Ch. 144 confers on the department of natural resources broad authority to deal with water and air pollution and the related environmental threat posed by solid waste disposals. Prior to 1967, the department's activities were confined primarily to the water pollution problem. The 1967 session of the legislature added several sections to ch. 144 (most importantly secs. 144.30 through 144.46, Stats.), thereby adding air pollution and solid waste disposal to the expanded scope of the department of natural resources' activities. With regard to all of these phases of the environmental pollution problem, the department of natural resources is empowered to make investigations, hold hearings and issue orders. The department of natural resources has no power to enforce its orders, however, because sec. 144.536, Stats., provides that the attorney general shall enforce the orders of the department in the appropriate court. Additional 'powers and duties' of the department of natural resources are found in sec. 144.36(1)(a) and (b), Stats., which provides as follows:

'(1) The department shall:

'(a) Prepare and develop one or more comprehensive plans for the prevention, abatement and control of air pollution in this state. The department thereafter shall be responsible for the revision and implementation of such plans.

'(b) Conduct or direct studies, investigations and research relating to air contamination and air pollution and their causes, effects, prevention, abatement and control and, by means of field studies and sampling, determine the degree of air contamination and air pollution throughout the state.'

In addition to the nature and scope of the department of natural resources' duties outlined above, appellant also asks the court to note that a sound analysis of pollution problems often requires specialized scientific knowledge which administrative agencies usually possess and which courts usually do not possess. From these premises the appellant urges the court to infer that the 1967 session of the legislature intended to abolish sec. 280.02, Stats., and vest exclusive original jurisdiction of air and water pollution controversies in the department of natural resources. Appellant concedes that if there was an intent to abolish sec. 280.02, the legislature failed to express that intent. No mention of sec. 280.02 is found anywhere in ch. 144. Hence, any intent to repeal sec. 280.02 must be found by implication.

In Heider v. Wauwatosa (1967), 37 Wis.2d 466, 478, 155 N.W.2d 17, 23, this court quoted with approval the following definition of express repeals and implied repeals:

"The abrogation or annulling of a previously existing law by the enactment of a subsequent statute which declares that the former law shall be revoked and abrogated, (which is called 'express' repeal), or which contains provisions so contrary to or irreconcilable with those of the earlier law that only one of the two statutes can stand in force, (called 'implied' repeal).' Black's Law Dictionary (4th ed. 1951).'

The 'irreconcilability' referred to in the above quote is not lightly or quickly found by this court. This is because the cardinal principle of statutory construction is to save and not to destroy. Town of Madison v. City of Madison (1955), 269 Wis. 609, 70 N.W.2d 249. Moreover, repeal by implication is not a favored concept in the law. In Pattermann v. White-water (1966), 32 Wis.2d 350, 356, 145 N.W.2d 705, 708, this court quoted with approval the following language from Union Cemetery v. Milwaukee (1961), 13 Wis.2d 64, 71, 108 N.W.2d 180:

'Repeals by implication are not favored in the law. The earlier act will be considered to remain in force unless it is so manifestly inconsistent and repugnant to the later act that they cannot reasonably stand together, Kienbaum v. Haberny, 1956, 273 Wis. 413, 78 N.W.2d 888, Milwaukee County v. Milwaukee Western Fuel Co., supra (204 Wis. 107, 235 N.W. 545), or when the intent of the legislature to repeal by implication clearly appears. McLoughlin v. Malnar, 1941, 237 Wis. 492, 297 N.W. 370. See also 1 Sutherland, Statutory Construction (3d Ed.), p. 487, sec. 2021. * * *'

As noted in Pattermann, the rule of construction quoted above is 'particularly applicable' where the statute claimed to have been repealed is one of longstanding and frequent use. Sec. 280.02, Stats., qualifies for the 'particular application' of the rule in Union Cemetery because it is some sixty years old and has been invoked on numerous occasions. For the reasons just mentioned, it cannot be said that sec. 280.02, Stats., is an obscure and little-noticed provision whose existence the legislature may have overlooked when it created and later amended ch. 144. The likelihood that sec. 280.02 was inadvertently overlooked by the legislature is further reduced when it is noted that ch. 144 contains numerous cross references to other chapters of the statutes. ¹ This makes it clear that the legislature was aware, when enacting and amending ch. 144, of the need to coordinate the provisions of ch. 144 with other provisions already on the books. If the actual intent of the legislature was to repeal sec. 280.02, Stats., it seems strange indeed that no express statement to that effect can be found in ch. 144.

Beyond these considerations there is one further indication of legislative intent which makes the finding of a repeal by implication simply impossible. Appellant's brief ignores the fact that sec. 280.02, Stats., was brought squarely before the legislature in 1969, two years after appellant contends that it was repealed. Sec. 280.02, Stats., was amended in 1969 and now reads in the manner set forth earlier in this opinion. Prior to the 1969 amendment, sec. 280.02, provided that an action to abate a nuisance could be brought by the attorney general 'upon his own information.' This section now provides that an action may be commenced by the attorney general 'on information obtained by the department of justice.' This amendment makes it clear that it is not necessary for the attorney general himself to personally possess the required information. It is now sufficient that anyone in the department of justice has acquired the requisite information. The effect of this amendment is to facilitate suits under sec. 280.02. If the legislature had intended to repeal sec. 280.02 in 1967, it would hardly have broadened the scope of its operation two years later in 1969...