Breier v. Balen

MOSER, J.

(dissenting). I take no issue with the majority opinion on the standing of the Milwaukee Chief of Police to seek declaratory relief in this action; however, I dissent from the majority’s construction of sec. 62.50 (23), Stats.

The legislature’s intent is clear on the face of sec. 62.50(23), Stats., which reads in pertinent part:

*251The chief of each department shall prescribe rules for the government of the members of the department. Any rule prescribed by a chief shall be subject to review and suspension by the board. The hoard may prescribe a rule to replace any ride the hoard suspends. A chief may not suspend any rule prescribed by the board.1 [Emphasis added.]

Construction of a statute in relation to a particular set of facts is a question of law.2 Courts cannot construe and interpret statutes that are clear on their face.3 A court must follow the legislative mandate by giving the language of the statute its ordinary and accepted meaning.4 A court is to seek the purpose of the statute as a whole and to favor a construction that gives effect to that purpose over a construction which defeats the manifest object of the act.5

Here, the legislature, by amending sec. 62.50(23), Stats., has clearly spelled out its mandate. The purpose of the 1979 law6 and a 1977 law7 establish that the clear intent of the legislature was to control and curtail the autocratic rule-making power of fire and police chiefs by *252establishing rule review, suspension and replacement powers in the civilian board (in this case, the fire and police commission of Milwaukee) which oversees those departments of local government.

I believe the majority’s decision tortures the common sense/common usage of the word “replace” to the point of obfuscating and defeating the very purpose of the legislative act. I would reverse the trial court, thereby allowing the Milwaukee fire and police commission amendment to Milwaukee Police Department rule 5, section 11, to stand because it comports with the clear and unequivocal legislative intent of civilian control over local fire and police chiefs.

Ch. 307, Laws of 1979. I do not quote the whole of the amendment because issue is not taken in this case with the commission failing to follow the statutory procedures authorized in the balance of the 1979 amendment.

State v. Clausen, 105 Wis. 2d 231, 243-44, 313 N.W.2d 819, 825 (1982).

See A.O. Smith Corp. v. Department of Revenue, 43 Wis. 2d 420, 429, 168 N.W.2d 887, 891 (1969).

In re B.M., 101 Wis. 2d 12, 18, 303 N.W.2d 601, 605 (1981).

Caldwell v. Percy, 105 Wis. 2d 354, 361-62, 314 N.W.2d 135, 140 (Ct. App. 1981).

See supra note 1.

Ch. 53, Laws of 1977 amended the same statute and stated the chief could prescribe rules but the board (police and fire commission here) could review and suspend such rule. This amending language is included in the statutory language of sec. 62.50(23), Stats. See the first two sentences of the excerpt of sec. 62.50(23) quoted on the first page of this dissent.