IN RE PETITION OF MADISON METROPOLITAN SEWERAGE DISTRICT аnd others for attachment: MADISON METROPOLITAN SEWERAGE DISTRICT and others, Appellants, V. DEPARTMENT OF NATURAL RESOURCES and others, Respondents.
No. 158
Supreme Court of Wisconsin
Argued January 2, 1974.—Decided April 12, 1974.
June 4, 1974
216 N. W. 2d 533
175
For respondent city of Madison there was a brief by Edwin Conrad, city attorney, and Henry A. Gempeler, assistant city attorney, and oral argument by Mr. Gempeler; for respondents Richard A. Lehmann and Capital Community Citizens Organization there was a brief and oral argument by Richard A. Lehmann of Madison.
WILKIE, J. On May 14, 1973, this court denied the motion of respondents Richard Lehmann, Capital Community Citizens, and the city of Madison, to dismiss the appeal on the grounds that the right to appeal had been legislatively denied and that the appeal had been rendered moot by legislаtive action. This motion was renewed in
The lone issue on appeal is: Did the trial court err in construing
The general rule is clear that this court will not consider the legislative history of a statute unless the statute is ambiguous.2 The test of ambiguity has been consistently stated: ““A statute or portion thereof is ambiguous when it is capable of being understood by reasonably well-informed persons in either of two or more senses.“”3
If the reference to
In early 1963, Dane county court denied the petition of the city of Sun Prairie to be attaсhed to the Madison Metropolitan Sewerage District. The trial court denied the petition because it concluded that the Madison district had for its purpose the protection of the lakes within the drainage area in which the district was located and that it would be inequitable to add to the expense of the district by bringing in sewage from a community in a different drainage basin. The court had found that only a small corner of the city of Sun Prairie was located in the drainage area served by the Madison Metropolitan Sewerage District. This decision was not appealed.
The appellants in this case contend that
In its memorandum decision the trial court concluded that the respondents’ position was the only reasonable interpretation.
“Notwithstanding the fact that the second interpretation prevents this Court from acting on the petition, the Court is convinced that it is the only reasonable interpretation of the statute. This conclusion is based upon the statute‘s legislative history, rules of statutory construction and relevant case authority.”
From our review here of the trial court‘s determination we conclude that the trial court was in error in concluding that the interpretation contended for by the appellants would result in an unconstitutional procedure.
An analysis of Milwaukee v. Sewerage Comm.6 is required at this point. In the Milwaukee Case, a statute allowing consolidation of villages, towns and cities upon the passage of ordinances by the boards or councils of those municipalities involved in the consolidation and ratification by the electors of the areas at a referendum, was assailed on the ground that it was an unconstitutional delegation of legislative power to municipalities. The sewerage commission in that case argued that while the statute was not an option law, there was an authorization of ordinances which have the characteristics of an option law. This court said that while the legislature cannot delegate power to make a law or to declare whether there shall be a law, nevertheless the legislature can make a
“... The action of local units in doing what is required by the general law is not an arrogation of power reserved to the legislature. The true test and distinction whether a power is strictly legislative, or whether it is administrative and merely relates to the execution of the statutory law, is between the delegation of power to make the law, which necessarily involves а discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done. To the latter, no valid objection can be made....” 7
The court in response to the argument that the statute created an option law agreed that it afforded to the local authorities and electors the choice of determining whether the territory and government of the local political body should remain in status quo or be merged with another. This court agreed with the respondent in that case who said that, “‘Whether or not a particular consolidation occurs is not a problem for the legislature once it has determined that a consolidation may take place as prescribed.’” 8
It is clear from the Milwaukee Case that the “choice” of the governmental bodies is not controlled. The statute merely describes how the choice is to be made effective. In that case both municipalities had to agree to consolidation by passing appropriate ordinances and then the consolidation had to be approved by the electors of each municipality. In the present case if the statute is mandatory, the qualifying municipalities can in effect force themselves on the metropolitan sewerage districts in-
“... The state, therefore, at its pleasure, may . . . expand or contract the territorial area, unite the whole or a part of it with another municipality, repeal the charter and destroy the corporation. All this may be done, conditionally or unconditionally, with or without the consent of the citizens, or even against their protest.‘” 9
Nor would this statute be a violation of the state‘s duty as trustee of water resources of this state as contended by the respondents. The state would have mаde a complete enactment and as explained above no legislative power would have been delegated to the municipalities involved.
The trial court also was in error in concluding that a mandatory construction of the second sentence of
The real issue here is whether it is proper for the legislature to impose a duty on the courts which would appear to be administrative in character. In Corpus Juris Secundum 10 it is stated that “the provision in a state constitution dividing the government into three great departments does not prohibit one department from exercising powers of the nature of those belonging to another
“... It is within the legislative power to give the courts, discretionary powers, when certain conditions have been judicially determined to exist, or to direct the court‘s action in the premises without discretion. A familiar example is the latitude given the courts in sentencing a person judicially determined to have committed a murder in the second degree, sec. 340.08, Stats., contrasted with the statute‘s arbitrary direction that the court shall impose a life sentence if the verdict is for murder in the first degree. We conclude that the mandatory direction of a decree under certain conditions by ch. 170, Laws of 1953, was not an assumption of judicial powers by the legislature.”
Thus, we think it clear that the legislature could constitutionally assign to the courts the statutory duty to enter an order attaching municipalities to metropolitan sewerage districts if certain conditions were judicially found to exist.
If the construction contended for by the appellants is constitutional, then the issue becomes whether it is a reasonable and permissible construction. As this court stated recently in In re City of Beloit:12
“... We start with the basic principles of constitutional law and statutory construction: (1) That the
The trial court concluded that the only reasonable construction of this statute was that the second sentence was designed to remove the impediments to attachment created by the 1963 decision of the Dane county court. In other words, the second sentence of
The two constructions which the appellants argue are equally reasonable are diametrically opposed to each other. The legislature must have intended one or the other. The legislative purpose will not be served by choosing either one construction or the other. One cannot choose a construction which will save the constitutionality of a statute if it is apparently contrary to the legislative intent. As the quotation from In re City of Beloit, supra, indicates, it is only when two equally rеasonable constructions both accomplish the legislative intent that one clearly chooses the construction which will save the constitutionality of the statute.
“Any municipality in such a county, any part of which is located within such a drainage basin and which is located within 10 miles of a metropolitan sewerage district on the effective date of this amendment (1965), shall be added to such metropоlitan sewerage district upon application of the governing body of such municipality as provided in s. 66.205 (1).” (Emphasis added.)
The original request to the legislative reference bureau used the phrase “may be added.” The final draft changed the word “may” to “shall.” This indicates that “shall” should be construed to mean “may” under the circumstances.13 The use of the word “shall” only indicated that the municipalities which met the geographic requirements were to be considered for attachment under the regular attachment procedure and wеre not to be precluded from attachment because of their geographical situation. The use of the word “shall” indicated that it was mandatory for the county court to consider their petitions but not that it was mandatory that the petitions be granted without any other policy considerations. At the time of this amendment the procedure by which the county courts were to decide that attachments to metropolitan sewerage districts “best served” the purposes of
In 1965 an amendment was proposed to
It seems inconceivable that at a time when the county courts were to determine the necessity of attachments the legislature would mandate the inclusion of cеrtain territory in sewerage districts without such a determination. In response to this court‘s determination that the statutory procedure for creation and addition to metropolitan sewerage districts was an unconstitutional delegation of legislative power to the county courts, the legislature transferred the policy determining function to the Department of Resources and to the Metropolitan Sewerage District Commissions.14
The legislative history here indicates that the legislature did not intend to mandate the addition of all muniсipalities meeting the geographic description in
The appellants also point out that the legislature has adopted a saving clause that indicates that actions for attachment pending in the county courts are to be continued under the old procedure. The appellants argue that the legislature was aware that certain parts of this procedure were declared unconstitutional and that the saving clause must indicate that
By the Court.—Order affirmed.
As to the prescribed procedure to be followed, the statute provides that application for attachment is to be made as provided in
As to the qualifying conditions for attachment to a sewerage district, the statute rеquires a petitioning municipality to establish that it is: (1) Located in a county with a population of 240,000 or more; (2) located within a drainage basin of a lake more than two and less than 16 square miles in area (and that such lake is within 18 miles of the sewage treatment plant of the municipality); (3) located within 10 miles of the sewerage district; and (4) has made application for attachment to the district. Upon establishing such qualifications, the petitioning municipality “... shall be added to the metropolitan sewerage district,” provided that it pay “... its fаir share of the cost of attachment as determined by mutual agreement or a court of competent jurisdiction.” (
The sole and single duty assigned to the courts by this statute is to enter an order attaching the petitioning municipality to the metropolitan sewerage district
With the mandate of the statute clear and unequivocal, the writer sees no question of judicial construction presented. Judicial construction of a legislative enactment is invoked only when the law is ambiguous and its meaning subject to different interpretations. (Milwaukee Fire Fighters Asso. v. Milwaukee (1971), 50 Wis. 2d 9, 13, 183 N. W. 2d 18.) We are called upon to construe a statute only when it is capable of being understood by reasonably well-informed persons in either of two or more senses. (National Amusement Co. v. Department of Revenue (1969), 41 Wis. 2d 261, 267, 163 N. W. 2d 625.) The majority does not find the “shall be added” provision of the statute ambiguous. The majority finds need and right to construe, not in the statute as enacted, but as to whether the legislature intended to enact what it did enact. Whеn it provided that petitioning municipalities, meeting specified conditions, “shall be attached,” the legislature, the majority holds, intended only to mean no more than that such qualifying municipalities are “eligible for attachment.” Having changed the statute from a mandatory “shall” to a discretionary “may,” the court majority strikes down the statute, as revised and altered, as an unconstitutional delegation to the courts of a duty legislative or administrative in character. (In
How can the clear mandate that qualifying municipalities “shall be added” somehow become the nonmandatory directive that qualifying municipalities may, but need not be, attached to the sewerage district? The majority accomplishes the substitution of words and change in meaning by a resort to the legislative history of the statute involved. Legislative history can be used to establish legislative intent, but resort to either requires ambiguity in the statute. Legislative history and legislative intent may be determined to resolve ambiguity, but not to create it. Where there is no ambiguity on the face of the statute, there is neither right nor reasоn to inquire into legislative history and legislative intent. In determining ambiguity, as well as in determining legislative intent, the language of a statute is to be given its ordinary and accepted meaning. (Green Bay Metropolitan Sewerage Dist. v. Vocational, Technical & Adult Education (1973), 58 Wis. 2d 628, 207 N. W. 2d 623.) Giving plain and ordinary words their accepted and only meaning, there is nothing ambiguous in the mandate, “shall be added.”
Even if the legislative history of this statute created an alternative construction to what the statute on its face provides, the writer would accept the construction dеriving from the language of the statute and reject the construction deriving from the legislative history. Given two possible interpretations of a statute, by one of which it would become unconstitutional and by the other remain valid, the highest court in this land has said that “... our plain duty is to adopt that which will save the act. . . .” (Labor Board v. Jones & Laughlin (1937), 301 U. S. 1, 30, 57 Sup. Ct. 615, 81 L. Ed. 893.) Or, as this court has said, “Our search must be for a means of sustaining the act, not for reasons which might require
However, in the case before us, the legislative history of the enactment does not support the claim that the legislature really did not intend to provide what it clearly did provide. The majority locates a legislative intent in
I am authorized to state that Mr. Justice BRUCE F. BEILFUSS and Mr. Justice CONNOR T. HANSEN join in this dissent.