Opinion No. Oag 28-85, (1985) , 74 Op. Att'y Gen. 154 ( 1985 )

THOMAS LOFTUS, Chairperson Assembly Committee on Organization

The Assembly Committee on Organization has requested my opinion as to whether section 61.65 (1) and (2) or 66.30, Stats., permits three or more municipalities, including a mixture of three villages and a city, to establish and operate a joint fire department. The specific example you provide involves the Villages of Shorewood, Whitefish Bay and Fox Point and the City of Glendale in Milwaukee County. The City of Glendale is a third class city and the population of the smallest of the villages exceeds 7,000.¹

Chapter 171, Laws of 1981, revised a number of municipal statutes dealing with local police and fire protective services, including section 61.65 (1) and (2), to increase the methods by which larger villages may provide police or fire protective services. Section 61.65 (2), which sets forth those options, provides in part as follows:

(2)(a) Each village with a population of 5,500 or more shall provide fire protection services by one of the following methods:

. . . .

3. Creating a joint fire department with a city or town or with another village.

(b)1. . . . .

2. Each village with a population of 5,500 or more that creates a joint fire department with another municipality shall create a joint board of fire commissioners with that municipality to govern the joint department.

Chapter 171, Laws of 1981, was apparently designed in part to provide larger villages, such as those in your example, with greater flexibility in satisfying their responsibility to provide adequate and economical fire protection services for their citizens.

The concern motivating your question centers in part on the statutory language which authorizes "[e]ach village with a population of 5,500 or more" to create a joint fire department with "a city or town or with another village." Materials forwarded from your office suggest that "[t]here is a question whether this language limits the number to two municipalities and no more." In my opinion, the subject statutory language does not so limit the number of municipalities which may join with a village with a population of 5,500 or more to create a joint fire department.

In construing statutory language, such as that used in the above quoted provisions of section 61.65 (2) and companion provisions of the statutes dealing with the creation of joint fire departments, "[t]he singular includes the plural," unless such construction would produce a result inconsistent with the manifest intent of the Legislature. Sec. 990.001 (1), Stats. According to the analysis of the Legislative Reference Bureau which accompanied the bill which became chapter 171, Laws of 1981, such law was intended to increase the options of villages that provide protective services. Thus, the application of the above rule of statutory construction to the subject statutory language is in keeping with that evident intent of the Legislature.

Recourse to section 66.30 does not appear to be either necessary or appropriate. The preservation of order and the protection of life and property are matters of statewide concern, and "[t]hese powers so vested by the legislature in the municipalities may be withdrawn, modified, or dealt with as the public interest requires in the opinion of the legislature." Van Gilder v. Madison, 222 Wis. 58, 76,268 N.W. 108 (1936). Section 61.65 (5) expressly provides: "The provisions of this section shall be construed as an enactment of statewide concern for the purpose of providing a uniform regulation of police and fire departments." Section 62.13 (12), which deals with city police and fire departments, contains similar language. Therefore, the provisions of section 61.65 (2) dealing with the creation of a joint fire department, as complemented by companion provisions under the city statutes, section 62.13 (2)(b), and the town statutes, section 60.55 (1)(a)2., should be viewed as establishing mandatory requirements for governing the creation and operation of any joint fire department involving a large village, i.e., a village with a population of 5,500 or more. Whatever authority villages subject to section 61.65 may exercise to establish joint fire departments with other municipalities is already expressly set forth in that statute or arises therefrom by necessary implication

A unified administration of such a joint fire department would be assured by granting the joint board of fire commissioners optional powers to control and manage such department, as authorized under the provisions of sections 61.65 (3g)(d)2. and62.13 (6). However, where the electors do not approve such a broad grant of optional powers to the joint board, organization and supervision of the department, contracting and the audit of such department would remain in the joint control of the common councils, village boards or town boards and the executive officers of the respective municipalities.

BCL:JCM

¹ Source: State of Wisconsin, 1983-84 Blue Book.