Citation Numbers: 63 Op. Att'y Gen. 267
Judges: ROBERT W. WARREN, Attorney General
Filed Date: 7/24/1974
Status: Precedential
Modified Date: 7/6/2016
WILBUR J. SCHMIDT, Secretary, Department of Health and SocialServices
You request my opinion on two questions regarding the authority and responsibility given your department under secs.
First you ask:
"Specifically, does Section
46.16 convey any authority for the Department to order or prescribe methods of operation for local places of confinement, the numbers and qualifications of staff to be employed, standards for food service, and the nature of programs to be provided for the treatment and training of persons confined."State agencies, of course, have only such powers as are expressly granted by statute or necessarily implied as incidental to carrying out the duties and powers expressed in the statutes. Any power sought to be exercised must be found within the four corners of the statute under which the agency proceeds. American Brass Co. v. State Board of Health (1944),
245 Wis. 440 ,15 N.W.2d 27 ; The State ex rel. Priest v. The Regents of the University of Wisconsin (1882),54 Wis. 159 ,11 N.W. 472 .
Section
"General supervision and inspection by department. (1) GENERALLY. The department shall investigate and supervise all the charitable, curative, reformatory and penal institutions, including county infirmaries of every county and municipality . . . and all industrial schools, hospitals, asylums and institutions, organized for the purpose set forth in s.
58.01 , and familiarize itself with all the circumstances affecting their management and usefulness.
"***
"(4) Prisons. It shall visit all places in which persons convicted or suspected of crime or mentally ill persons are confined, and ascertain their arrangement for the separation of *Page 269 the hardened criminals from juvenile offenders and persons suspected of crime or detained as witnesses; collect statistics concerning the inmates, their treatment, employment and reformation; and collect information of other facts and considerations affecting the increase or decrease of crime and mental illness.
"(5) Inspections. It shall inquire into the methods of treatment, instruction, government and management of inmates of the institutions mentioned in this section; the conduct of their trustees, managers, directors, superintendents and other officers and employes; the condition of the buildings, grounds and all other property pertaining to said institutions, and all other matters pertaining to their usefulness and management; and recommend to the officers in charge such changes and additional provisions as it deems proper.
"(6) Frequency of inspections. It shall inspect and investigate each institution annually, or oftener; and, when directed by the governor, it shall make special investigation into its management, or anything connected therewith, and report to him the testimony taken, the facts found and conclusions thereon." (Emphasis added.)
I am unable to find in sec.
Section
"County buildings; establishment, approval, inspection. (1) The department shall fix reasonable standards and regulations for the design, construction, repair and maintenance of . . . houses of correction, . . . jails and lockups, and juvenile detention homes and shelter care facilities, with respect to their adequacy and fitness for the needs which they are to serve.
"(2) The selection and purchase of the site, and the plans, specifications and erection of buildings for such institutions shall be subject to the review and approval of the department.
. . .
"(3) Before any such building is occupied, and annually or oftener thereafter, the department shall inspect it with respect to safety, sanitation, adequacy and fitness, and report to the authorities conducting the institution any deficiency found, and order the necessary work to correct it or a new building. If within 6 months thereafter such work is not commenced, or not completed within a reasonable period thereafter, to the satisfaction of the department, it shall suspend the allowance of state aid for, and prohibit the use of such building until said order is complied with." (Emphasis added.)
It is evident then that the legislature in sec.
In sec.
"(1) . . . It shall have power to execute what is reasonable and necessary for the prevention . . . of disease. . . ."
No such enforcement language is present in sec.
Your second question is:
"Does Section
46.17 provide any implicit authority for the establishment of standards and methods of operation which would not otherwise appear to be conveyed by Section46.16 ?"
Section
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