ROBERT P. RUSSELL, Corporation Counsel, Milwaukee County
You have requested my opinion whether the board of supervisors can abolish the county park commission created under sec. 27.02 (2), Stats., and transfer the authority to operate county parks to a committee of the county board.
I am of the opinion that such authority probably exists by reason of the express provisions of sec. 59.15 (2) (b), Stats.
A similar question involving counties under 500,000 population was answered in the affirmative in 52 OAG 69 (1963). Also see 30 OAG 15 (1941), 30 OAG 340 (1941).
Section 27.02 (2), Stats., provides:
"(2) In counties having a population of 500,000 or more the county park commission shall consist of 7 members elected by the county board in the manner provided by sub. (1), except that only one such member may be a member of the county board. If the term of such member of the county board shall terminate for any reason, his membership on the park commission shall become *Page 288 vacant and the vacancy shall be filled as hereinabove provided. This subsection shall not apply to any member on the park commission now in office (1957) who was a member of the county board."
Section 59.15 (2) (a) (b), Stats., provides in part:
"(2) APPOINTIVE OFFICIALS, DEPUTY OFFICERS AND EMPLOYES. (a) The Board has the powers set forth in this subsection and sub. (3) as to any * * * commission, * * * in county service * * *created under any statute, * * * the jurisdiction and duties of which lie within the county or any portion thereof and the powers conferred by this section shall be in addition to all other grants of power and shall be limited only by express language.
"(b) The board may abolish, create or re-establish any such office, board, commission, committee, position or employment and may transfer the functions, duties, responsibilities and privileges to any other agency including a committee of the board except as to boards of trustees of county institutions." (Emphasis added.)
Section 59.15 (4), Stats., provides:
"(4) INTERPRETATION. In the event of conflict between this section and any other statute, this section to the extent of such conflict shall prevail."
For an at-length discussion of sec. 59.15, Stats., see 49 OAG 26 (1960). At page 30 of that opinion, it is stated:
"In Kewaunee County v. Door County, (1933) 212 Wis. 518, 523,250 N.W. 438, it is stated.
"`* * * Courts will not interfere with the actions of county boards within the powers conferred upon them by statute "on the ground that they are characterized by lack of wisdom or sound discretion;" they will interfere only in cases of fraud or arbitrary action; and county boards "have a wide or at least a reasonable discretion" when so acting.'" *Page 289
Argument can be made that the broad powers contained in sec.59.15 (2) (a) (b), Stats., are applicable only where the office, board or commission is created under a statute at the option of a county board and cannot apply where the office, board or commission is created by an express statute.
Even under this test counties under 500,000 could act under sec. 59.15 (2) (b), Stats., to abolish a county park commission as sec. 27.02 (1), Stats., is an optional means of operating county parks.
A court might hold that sec. 27.02 (2), Stats., in effect, creates park commissions for counties of over 500,000 population and that a county of that size could not abolish such a commission under sec. 59.15 (2) (b), Stats. However, until a test is made in proper case, the county board has a right to attempt the abolishment of its county park commission and transfer its functions, duties and responsibilities to a committee of the county board if it deems such action to be in the best interests of the county. The provisions of sec. 59.15 (2) (4), Stats., require that the statute be construed in favor of broad county board authority, and we cannot assume that a court would place a restrictive meaning on the words "created under any statute" to preclude county board action affecting a nonconstitutional office, board or commission which was created by a statute.
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