Tanck v. Clerk, Middleton Joint School Dist. No. 3, s. 452
| Decision Date | 02 October 1973 |
| Docket Number | 455,Nos. 452,s. 452 |
| Citation | 210 N.W.2d 708,60 Wis.2d 294 |
| Parties | Ray H. TANCK, Clerk, Twon of Middleton, Appellant, v. CLERK, MIDDLETON JOINT SCHOOL DIST. NO. 3, Respondent. Ray H. TANCK, Appellant, v. Edward WIEGNER, Secy., Wis. Dept. of Revenue, Respondent, City of Middleton, Intervening Defendant-Respondent. |
| Court | Wisconsin Supreme Court |
Walter H. Erbach, Voss, Nesson & Koberstein, Madison, for appellant.
Robert W. Warren, Atty. Gen., Allan P. Hubbard, Asst. Atty. Gen., Madison, for respondent Wiegner.
Warren D. Lucas, Madison, for city of Middleton.
These two appeals in two separate mandamus actions are dealt with in a single opinion since both actions relate to a single fact situation, although different statutes are relied upon for the relief sought in each case.
The trial court held that the remedy of mandamus was not available to compel the state department of revenue to adjust its 1972 determination of the full value of the taxable property located within the town of Middleton in order to correct an error made by the department in making its 1970 full value determination. The trial court held that sec. 121.06, Stats., did not authorize the department to correct an inaccurate determination in a subsequent year.
SECTION 121.06, STATS. The plaintiff, in the trial court and on this appeal, locates in sec. 121.06, Stats., a duty for the department of revenue to consider annexations in determining full values of property and a duty '. . . to adjust the full values certified under sec. 121.06(1) for 1970 in order to reflect the value of the property annexed out of the town of Middleton. . . .' The statute is entirely silent as to any authority in the department of revenue to correct errors or unequal valuations made in prior years. 1 The legislature could have made provision in such statute for what amounts to a reassessment of property which has already been assessed in a prior year, but, in the absence of such provision by the legislature, no authority exists in the department to do so. 2 Before a public agency can be compelled by mandamus to perform an act, it must be clear that the act was within its power to perform. 3 A remedial statute does authorize the department of revenue to correct mistaken deletions or additions to county valuations in the year subsequent to the mistake. 4 But such statute applies only to county assessments, not to cities, townships or school districts. There is no statute authorizing the department of revenue to do what plaintiff seeks to compel it to do, and, as the trial court correctly stated, 'This court cannot direct or compel the Department to perform act which it has no authority to do.' Mandamus against the state department of revenue to compel it to rectify and error by adjusting future apportionments was properly denied.
MANDAMUS AGAINST SCHOOL DISTRICT CLERK.
In the mandamus action against the clerk of the joint school district, the parties stipulated that '. . . the only issue presented to the court in this action is whether the defendant, Clerk of Joint School District No. 3, has a clearly described legal duty to make the adjustment provided by Section 120.76 of the Statutes in connection with apportioning the School District No. 3 school tax levy for the (year) 1971 to municipalities having territory within the school district.' (Paragraph 10 of stipulation). The trial court held that the statute, stipulated to be controlling, applied only to unified school districts, which the Middleton joint school district No. 3 was not.
SECTION 120.76, STATS. Under the stipulation of the parties in this case, the 'sole issue' is whether sec. 120.76, Stats., is applicable to common school districts, such as the Middleton joint school district No. 3, or whether it applies only to unified school districts. This narrows the question to whether the reference in such statute to 'the district' 5 is a reference to any school district--unified or common--or whether it refers only, as the trial court held, to unified school districts. First recourse in construing the meaning of a statute is to the language of the statute itself. Only where statutory language is ambiguous may a court look to extrinsic aids in interpreting the statute. 6 Plaintiff submits that the key phrase 'the district' is a reference to taxes payable under sec. 120.17, Stats., 7 a statute applying to both unified and common school districts. Defendant counters that it is sec. 120.75, Stats. 8 That makes sec. 120.17, Stats., applicable to joint school districts by its reference to sec. 120.17, so we have no more than a reference in sec. 120.76 to a specific grant of powers and duties to unified school districts in the preceding section. We would hold that nothing in the exact words of sec. 120.76 illuminates whether the words 'the district' refer only to unified or to unified and common school districts. 9 The phrase 'the district' is less restrictive than the words 'a unified district' and more limited than the words 'any school district' would be, and we see resort to extrinsic evidence as required to resolve ambiguity.
We turn first to the location or position of sec. 120.76, Stats., in relation to other sections dealing with school districts. The position of a section with reference to other sections may be considered in determining legislative intent. 10 Section 120.76 is in ch. 120, entitled 'School District Government.' The chapter has three subchapters. Subchapter I is entitled 'Common and Union High School Districts.' Subchapter II is entitled 'City School Districts.' Subchapter III is entitled 'Unified School Districts.' Section 120.76 is in subchapter III. Additionally, the first statute in each subchapter describes the type of school district to which the subchapter applies. 11 So we deal, not alone with the titles of the subchapters, but with their provisions. It is with the whole chapter that we deal in determining whether a phrase in a section of subchapter III refers to one type or all types of school districts. 12 Here the position of the statute with regard to preceding statutes is indicative of legislative intent. Also, the division of the chapter into its three subchapters, and the statement in sec. 120.70 in subchapter III that 'This subchapter applies to unified school districts,' are strongly persuasive that the phrase 'the district' in sec. 120.76 in such subchapter III refers to unified school districts only.
The legislative history of the specific statutory section involved supports the conclusion that it was legislatively intended to apply only to unified school districts. 13 Section 120.76, Stats., was created by ch. 490, Laws of 1969. The bill was entitled, 'An Act to create 120.76 of the statutes, relating to statements of taxes due unified school districts by municipalities.' 14 Such caption is indicative of the legislative intent. 15 The analysis of the bill by the legislative reference bureau, 16 stated: 'This bill requires that the tax revenue required of a municipality by a unified school district be increased or decreased if the municipality paid less or more than is share the previous year. . . .' (Emphasis supplied.) The 1969 Assembly Journal and the committee on municipalities report and recommendation both describe sec. 120.76 as 'relating to statements of taxes due unified school districts by municipalities.' 17 The legislative history of the section supports the finding that sec. 120.76, Stats., was intended to apply solely to unified school districts.
CONSTITUTIONAL RULE OF UNIFORMITY.
The Wisconsin Constitution--art. VIII, sec. 1--provides: 'The rule of taxation shall be uniform. . . .' On appeal, the plaintiff argues the applicablility of this constitutional assurance to each of the two mandamus actions appealed. In the mandamus action against the state department of revenue, appellant contends that the constitutional provision 'imposes a positive duty upon the department of revenue to avoid inequitable taxation.' In the mandamus action against the school district clerk, the plaintiff argues that 'the policy expressed' in the constitutional mandate 'requires that sec. 120.76 be applicable to all school districts.' The trial court held that the constitutionality of sec. 120.76 was 'not before the court' and added, 'The only possible constitutional question that could be presented by this case would be a question about § 120.17(8),' concluding that, 'There is nothing unconstitutional in respect to § 120.17(8) and statutes in pari materia thereto.'
SECTION 120.17(8), STATS. Section 120.17(8)(b), Stats., is in subchapter I of ch. 120, the subchapter that deals with common school districts, which the Middleton joint school district No. 3 is one. It provides that when the equalized valuation of a municipality in such common school district is reduced in any one year to an amount below its equalized valuation of the previous year 'because of the destruction or removal of taxable property which results in an excessively inequitable apportionment of the school district tax levy,' the school district clerk shall notify the supervisor of assessments and the supervisor, if he finds that an inequitable apportionment will result, shall reduce the valuation of the previous year 'by the full value of the property so destroyed or removed.' 18 The Attorney General's brief contends that this statute refers only 'to the 'physical' destruction or removal of property, caused by a fire or by a manufacturing plant leaving the district' and 'probably does not refer to removals caused by annexations.' We see no basis at all for that suggestion or conclusion, and see sec. 120.17(8)(b), Stats., as applying to the situation where...
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