*1 Muskego-Norway School Schools Joint Consolidated others, Respondents, v. Wiscon 9 and
District No. Appellant.* Employment Board, Relations sin Original opinion withdrawn. 1, 1966. 6 November October reheaving setting granting January 1967. Memorandum forth jurisdictional issues. deciding rehearing opinion May 4, on Memorandum jurisdictional issues.** * rehearing granted, January Motion for 11, 1967. ** opinion rehearing For (jurisdictional memorandum on issues), post, p. see 485b. *3 appellant argued For the the cause was Beatrice *4 Lam/pert, attorney general, assistant with whom on the Follette, general. briefs was Bronson La attorney C. William Wilker, H. attorney general, assistant also argued. respondents
For the by there a brief was Jack A. Berlin, attorney, Badtke of New Quarles, and Herriott Clemons, Gooding, & Laurence E. Jr., Peter and J. Lettenberger counsel, of all Milwaukee, of argu- and oral by Gooding. ment Mr.
482 Kraege, Hart, by filed curiae was amicus
A brief Kraege, of Halsey all F. Wightman and & Jackman Association. Education Madison, for the Wisconsin Ela, by Christian- filed curiae also amicus was A brief Clark, all of F. and James son, Ela, Esch, Hart & Clark Boards, of School Madison, Association for the Wisconsin Inc. opinion circuit are of the Because we J. Hallows, holding without was correct in WERB
court was of findings fact, of conclusions jurisdiction make matter after the was eleven months and its order law or briefs, reach do not finally to it on we submitted questions the school important of whether decide any practices prohibited sec. board violated of rights employees 111.70, relating public Stats., to the of organize organizations. join or labor Stats., light in the of construe sec. We upon jurisdiction a of to be limitation sub. findings making and to command the sub WERB stantially days hearing period sixty from the testimony arguments parties.1 of all and setting points periods out WERB statutes time agencies perform within which various officials or are to generally an act are construed to be not and jurisdictional mandatory Appleton or and on relies Outagamie County (1928), N. W. practices. Prevention of unfair labor “111.07 days “(4) hearing testimony arguments Within all parties, findings the board shall make and file its of fact upon controversy, all of the issues involved in the . . . “(12) A procedure with the of this sub- chapter give shall be sufficient effect to the orders of the they board, inoperative, illegal, shall not be declared or void any for respect omission of a technical nature thereto.” *5 461, v. Industrial Comm. (1940), State Stephenson Town School 769; and Worachek N. W. 116, Dist. 70 W. 270 Wis. N. mandatory di-
The difference what between mainly rectory duty comply the conse- in the to lies mandatory quence Generally, noncompliance. a strictly provision complied and there is be with must agency public no in the or official. Failure discretion proceeding comply mandatory with a statute renders the void, directory provision noncompliance a with while proceeding. not the But we think the does invalidate jurisdictional aspect mandatory requirement not of a compliance lost because a than standard less literal provided. standard, or strict a more flex- Such while ible, upon a is nonetheless limitation the exercise of the power performance duty. or Directory provi- of the enabling permissive, precatory. can be sions or v. Industrial State Comm. 461, In 233 Wis. 466, 769, 289 N. W. court stated “. . . as a rule a prescribing statute public time which officers required are perform merely directory, an official act is it power time, unless denies exercise of after such act, or the statutory nature or language, that shows the time was intended to be a limitation.” generalization holdings This is in in- cases terpreting provisions time of statutes and furnishes guide statutory some construction for this case. See Jur., Statutes, also 50 p. Am. S., sec. 82 C. J. Statutes, p. 869, sec. 376.
True, in this case there language is no in the statute prohibiting the power exercise of the to issue an order sixty days, implicit but language in the of sec. (12), Stats., provides which that substantial com- pliance shall give sufficient effect to the orders of board, is the intent which not point of time is fatal. statutory This *6 the compliance with
language that substantial indicates a be (4) intended was period 111.07 sixty-day in sec. the word read cannot we limitation. In this instance merely precatory. “may” or 111.07 as “shall” in sec. 437, 114 (2d) (1962), 16 Menasha v. Scanlon See County v. Milwaukee 791; (2d) Wauwatosa N. W. 184, 125 (2d) Worachek N. W. (1963), 22 Wis. supra. Dist., Stephenson Town v. School sections, language express of these of the Because positive of a important an there is absence it is not sixty days. power after prohibition of the on the exercise delay positive prohibition equivalent of excessive of a compli- affirmatively by requiring substantial is stated ques- Furthermore, public that it is in the interest ance. expeditiously. practices decided of unfair tions labor 57, Originally, of enacted ch. Laws this section as hearing 1939, provided the final the board shall “[a]fter findings By promptly make file . . . .” ch. and its changed 1949, “promptly” of “within Laws was days.” period If efficient this is not sufficient for the operation WERB, of the the need should be addressed legislature. the days delay beyond sixty think nine the
We months’ compliance. delay cannot be said to be substantial This original period more than four times for allowed making findings of the of fact. It not contended successfully delay it cannot be that this constitutes an nature,” of “omission a technical which is to be disre- garded under the mandate of sec. 111.07 Stats. We periphery delay need not sixty now decide the of after the days beyond compliance which would not be substantial. only making filing We hold that the findings of the of delay, fact after nine considering months’ even length of the record before the complexity WERB and the legal questions involved, simply does not con- stitute substantial with (4). sec. 111.07 By Judgment affirmed. Court. — (dissenting). I reach the merits J. would Wilkie, controversy. I the failure this would not hold to be matter eleven months WERB to decide the before really doing majority I fatal. In so submit applying com- proceedings a double to these as standard pared quite comparable proceedings in the trial with courts. 270.88, Stats.,1 judge required to
Under sec. a trial days sixty make his decision submission rather cause. This section has been ruled delay mandatory,2 than and a five-month been has Merkley in the tolerated case Schram.3 Stats., Sec. states that the WERB must *7 findings hearing sixty days also make its within argument. testimony my opinion and is It that sec. (12) mandatory. 111.07 is rather than “(12) A procedure the with of subchapter give this shall be sufficient to the effect board, they the orders of and shall not declared in- operative, illegal, any or void for of omission a technical respect nature in thereto.” place higher
To hold otherwise would a standard on agencies placed administrative than is on trial courts. By reaching case, may deprive not the in merits this we employees through remedy of their no fault their of own.
I have been authorized to state that Mr. Justice joins in this dissent. Heffernan 1 by court; findings, judgment. Trial “270.33 Except in actions proceedings 299, upon and under ch. trial an issue of fact court, given its decision writing shall be in and filed with days clerk 60 cause, after submission of the and shall state separately the facts found and the thereon; conclusions law judgment accordingly.” shall be entered (1954), Galewski v. 7, Noe 16, (2d) 703; Wis. 62 N. W. Kamuchey v. 94, Trzesniewski (2d) Wis. 98 N. W. (2d) 403. 3 (1966), (2d) 134, 142 N. W. 173.
485a January 11, following filed memorandum was
The rehearing). motion (on motion for Per Curiam Employment Rela- rehearing by appellant for Wisconsin granted re- WERB) with (hereinafter Board tions following spect three issues: to the of sec. (1) noncompliance the first sentence with Is jurisdictional? Stats., by WERB jurisdictional, should noncompliance (2) If such original opinion be made holding in court its this only prospective toas applicable ease but to the instant ? pending WERB all other matters before jurisdictional, noncompliance what not If such enforcing compliance? procedure for should be granted twenty days from the Appellant WERB any file addition- to serve and date of order which this court with to the al it wishes submit brief which issues; respondents are respect to the above three receipt appellant’s granted days brief from fifteen respect three to such issues. their brief with submit notify briefs, receipt court will coun- After argu- oral parties if the court wishes to hear for the sel ments. appel- rehearing for the the cause was submitted
On attorney Follette, La of Bronson C. lant on briefs *8 gen- attorney general, Lampert, Beatrice assistant and respondents Jack A. eral, on the briefs of and for the Quarles, Herriott, Berlin, attorney, of and Badtke New Noelke, Gooding, Jr., Clemons, Teschner Laurence E. & Lettenberger counsel, Peter J. all of Milwaukee. and of by (a) amici curiae filed Lawton & Cates Briefs were Loeffler, John A. Lawton David F. all of Madi- and and County Municipal son, for the of and Wisconsin Council Firefighters Employees (AFL-CIO), United Professional (AFL-CIO), Firefighters of Paid Wisconsin Wisconsin Legislative Association, Wisconsin Professional Police- Association, County Police, Deputy men’s Wisconsin
485b Sheriffs, Association, Wis Operators and and the Radio (b) (AFL-CIO); Employees consin Association State Goldberg, Milwaukee, for the Previant & Uelmen of Bakery Local Federation of Teachers & Drivers Sales (c) Muskego. Koeller and Carston C. following opinion May 4, The filed was rehearing). After due consideration {on Per Curiam rehearing pursuant on briefs submitted motion for and granting rehearing, this court’s order the court’s state- ment of opinion facts is retained and the here- court’s by following withdrawn and the therefor. substituted presented appeal
A threshold issue on this whether Employment the fact that the Wisconsin Relations Board’s order herein than was entered more eleven controversy after months submission of the to it renders destroys jurisdiction that order void and (4), Stats., WERB to enter its order herein. Sec. 111.07 provides that: days hearing testimony argu- “Within 60 after all and parties ments of the the board shall make and file its findings upon of fact all of the issues in involved the con-
troversy, order, and its which shall state its determina- rights parties. tion as to . . .” question sixty-day language The is whether (4), Stats., mandatory sec. 111.07 directory. or Sec. (12) provides: compliance “A procedure with the of this subchapter give shall be sufficient effect to the orders board, they of the inoperative, shall not be declared illegal, any or void for omission aof technical nature in respect thereto.” respondent argues that Stats., sec. 111.07 makes substantial with sec. 111.07 man- datory, decision made the WERB eleven months submission controversy not con- does compliance. stitute substantial *9 485c Dist. this Stephenson Town School
In Worachek determining applied to be articulated the tests court directory: mandatory or statutory provision is a whether “ by which rule no well-defined ‘There is circumstances, be dis- may, in all provisions in a statute mandatory. the In tinguished are which from those question every question, other as determination of this object to ascertain statutory construction, prime the by of the terms legislative the as disclosed intention the context, provi- history, scope, to the statute, in relation spirit legislation, or the subject of the sions, matter remedied, and to be act, evil intended the sought nature ” 1 accomplished.’ general object to be Stats., be Ill, which must purpose of ch.
The overall promotion in- overriding consideration, given fair, friendly through peace maintenance of dustrial employment This mutually satisfactory relations. by accomplished of suit- purpose the maintenance to be adjustment of contro- machinery peaceful for the able policy the act is not served The overall versies.2 making sixty-day interpretation of sec. 111.07 an mandatory. requirement v. Industrial Comm.3 this court
In State considered an problem a time limitation on adminis- of whether mandatory directory. agency or The court was trative guiding criterion as follows: stated prescribing “. . . the time within which statute [A] required perform public an official act officers are merely directory, power unless it the exercise of denies time, act, statutory nature of the after such or the or the language, intended to a limi- shows that time was 4 tation.” language prohibiting power expira- No such sixty days (4), can be found in tion of sec. 111.07 Stats. 120, N. 270 Wis. 70 W. Sec. Stats. 3 (1940), 461, 289 233 Wis. W. 769. N. page S., Officers, pp. at also C. 404-406, Id. 466. See J. 114b. sec.
485d *10 why Moreover, deci- there no is reason sixty-day rendered limi- sion cannot be made after the tation as well as before.5
The performed by function in the case at the WERB adjudicative. 270.33, Stats., bar was Under a trial sec. judge required sixty days to make his decision after submission been cause. This section has directory mandatory.6 ruled be rather than Analo- gously, sixty-day time limitation the WERB on should holding mandatory, be rather than and this changed by requirement not the substantial (12). purpose of sec. 111.07 sec. through avoid the evasion orders the board made legal holding sixty-day
technical defenses. A requirement (4) merely directory of sec. 111.07 fosters purpose. this delay by
We conclude that the nine-month the WERB entering order, its decision while not to be con- doned, operate deprive juris- does not the WERB of ruling diction. of this As result we now reach the controversy merits of the and our decision thereon will forthcoming in due course. 5 Appleton Outagamie County (1928), 4, v. Wis. N. 220 W. 393. (1954), 16, 7, v. Noe (2d) Galewski 266 Wis. 62 N. W. Kamuchey (2d) 101, 94, Trzesniewski Wis. 98 N. W. (2d) 403; Merkley (2d) 134, v. Schramm 142 N. W.