Opinion No. Oag 13-85, (1985) , 74 Op. Att'y Gen. 65 ( 1985 )

THOMAS LOFTUS, Chairperson Assembly Committee on Organization

The Assembly Committee on Organization requests my opinion on the following question:

Do the provisions of section 174.09(2), Stats., require a county, without the consent of towns, villages and cities, to pay over any surplus in excess of $1,000 in the dog license fund, to a humane society designated by the county board to provide a pound, for the society's use in constructing and operating such pound?

Section 174.09(2), Stats., as amended by 1983 Wisconsin Act 451, provides:

Expenses necessarily incurred by the county in purchasing and providing books, forms and other supplies required in the administering of the dog license law, expenses incurred by the county under s. 95.21(4)(b) and (8) and expenses incurred by the county pound or by a humane society or other organization designated to provide a pound for collecting, caring for and disposing of dogs may be paid out of the dog license fund. The amount remaining in the fund after deducting these expenses shall be available for and may be used as far as necessary for paying claims allowed by the county to the owners of domestic animals because of damages done by dogs during the license year for which the taxes were paid. Any surplus in excess of $1,000 which may remain from the dog license taxes of any license year shall on March 1 of the succeeding year be paid by the county treasurer to the county humane society or other organization designated by the county board to provide a pound. If there is no humane society or other organization designated to provide a pound, these funds shall be paid to the towns, villages and cities of the county for their use in the proportion in which the towns, villages and cities contributed to the fund out of which the surplus arises.

The answer to your question is yes. The statute uses the word "shall" which is to be construed as mandatory. In re E.B.,111 Wis.2d 175, 185, 330 N.W.2d 584 (1983). Where the county humane society or other organization has been "designated by the county board to provide a pound" "[a]ny surplus in excess of 1,000 . . .shall . . . be paid . . . to" such society or organization.

Section 174.046(1) provides:

POUND. A county board may provide a pound for strays or unwanted dogs in the county. A county board may designate a humane society or other organization to provide a pound for strays or unwanted dogs in the county. A county pound or a humane society or other organization designated to provide a pound may receive payment from the dog license fund for expenses incurred in the collecting, caring for and disposing of dogs and may receive surplus from the to license fund as provided under s. 174.09(2).

Prior to the enactment of 1983 Wisconsin Act 451, which became effective May 18, 1984, there was a question whether a county could pay dog license monies over to a humane society to construct a pound since such expenditures are in the nature of capital improvements and may not have been included within the term "expenses" as used in then section 174.09(2). Former and present section 174.09(2) provides that "expenses incurred by the county pound or by a humane society or other organization designated to provide a pound for collecting, caring for and disposing of dogs may be paid out of the dog license fund."

Former subsection (2) provided that after payment of dog damage claims:

Any surplus in excess of $1,000 which may remain from the dog license taxes of any license year shall on March 1 of the succeeding year be paid by the county treasurer to the towns villages and cities of the county for their use in the proportion in which the towns, villages and cities contributed to the fund out of which the surplus arises.

The Legislature made it clear by amendment of subsection (2) that "any surplus in excess of $1,000 . . . shall . . . be paid . . . to the county humane society or other organization designated by the county board to provide a pound." Although towns, villages and cities collect the license fees and pay them over to the county treasurer, they are not entitled to any of the surplus from basic fees paid into the county in dog license fund unless "there is no humane society or other organization designated [by the county board] to provide a pound." By reason of section 175.05(3), towns, villages and cities by ordinance can impose an additional tax, which shall be collected by such municipality and shall be deducted and withheld by the municipal treasurer before payment of dog license taxes to the county treasurer. Sec. 174.08, Stats.

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