65 Op. Att'y Gen. 258 (1976)
 
65 OAG 258  259  260  261

Wisconsin Attorney General Opinions

OPINION NO. OAG 88-76

3 November 1976.

Public Records;
Deeds; Register of Deeds;
County Board; Counties;

When in its judgment the existing tract
index, for any reason, is unfit, unreliable
or unserviceable, the county board of any
county may contract with a competent person
for the compilation of a new and corrected
tract index.

A performance bond may be required.

CHARLES A. POLLEX,
District Attorney Adams County

You indicate that Adams County presently has
a tract index system which is insufficient in
that it has not been currently maintained.

The first question presented is whether
Section 59.55, Stats., provides the board of
a county having a population of less than
500,000 with authority to contract with a
private person for the completion of a new
tract index.

Section 59.55(4), Stats., grants the board of
any county broad discretion when it comes to
ordering a new and corrected index, and
provides in pertinent part:

Whenever in the judgment of the county
board of any county any existing tract
index or indices become unfit for use,
because of mistake therein or of
imperfection in or insufficiency of
plan, or because of becoming . . .
unserviceable or unreliable for any
reason the county board may at any
meeting thereof, by resolution, order a
new and corrected set of tract indices
. . and . . contract with any competent
person to do said work, at a price not
exceeding five cents per folio . . . ."

Statutes are to be initially viewed in light
of the plain and ordinary meaning of their
language and as a general rule, where a
statute is plain and unambiguous,
interpretation is unnecessary.

Weather-Tite Co. v. Lepper (1964),
25 Wis.2d 70, 74,
130 N.W.2d 198.

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Under the facts as you present them, it would
therefore be permissible for the Adams County
Board to adopt an appropriate resolution
ordering a new and corrected tract index.

It would likewise be permissible for the
board to contract with a competent person for
the services incident to the compilation of
an index if, in its judgment, a new and
corrected system is necessary.

You have also inquired about the county
board's authority to contract with a private
person for the day-to-day maintenance of the
tract index.

Section 59.55(4), Stats., is silent with
respect to the day-to-day maintenance of a
new and corrected tract index, or even
alterations, changes or additions to the
system.[1]

A county has only such power as is conferred
upon it by statute, expressly or by clear
implication.

Frederick v. Douglas County (1897),
96 Wis. 411, 418,
71 N.W. 798;

Maier v. Racine County (1957),
1 Wis.2d 384,
84 N.W.2d 76.

Had the legislature intended to authorize a
county to contract for the day-to-day
maintenance of a tract index, it could have
expressly done so, placing a limitation on
the compensation to be paid as it did with
the basic compilation provisions of
Section 59.55(4), Stats.

See the Fourth Biennial Report and Opinions
of the Attorney General (1908), p. 894,
wherein the same rationale was followed,
concluding that a county could not contract
for the compilation of the first or initial
tract index.

Therefore, while the Adams County Board can
order a new and corrected tract index and
enter into a contract with a competent person
for such purposes, I am of the opinion that
the board is without authority to contract
for the day-to-day maintenance of the system.

Your final question asks whether a county can
require a bond to assure proper performance
by the person with whom it contracts for the
compilation of a new and corrected tract
index.

It has long been the general rule that a
register of deeds, required by law to keep a
tract index, is liable on his official bond
for damages sustained as the result of the
negligent compilation of a tract index.

Johnson v. Brice (1899),
102 Wis. 575,
78 N.W. 1086.

Also see

30 OAG 440(1941), and
63 OAG 254(1974).

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To my knowledge, there are no reported
Wisconsin cases treating similar liability
issues where the tract index was prepared by
a person other than a register of deeds.

It is entirely conceivable, however, that
claims could be made directly against the
register of deeds who has long been held
primarily responsible for the preparation
and upkeep of the tract index.

See
1 OAG 493 (1912),
12 OAG 503 (1923); and
Section 59.51(3), Stats.

There is no doubt but that it would be in the
public's best interest to require the person
performing such services to obtain a bond
protecting the county and its officers
against claims that might arise out of the
compilation of the tract index.

Section 59.55(4), Stats., places no
limitations on the contract authorized
therein other than on the price to
be paid per folio.

Section 59.01, Stats., provides that a county
is empowered to make such contracts and to do
such other acts as are necessary and proper
to the exercise of the powers and privileges
granted and the performance of the legal
duties charged upon it.

When these sections are read together, it is
clearly implied that the county board would
be properly discharging its legal duties by
requiring, as part of the procurement
process, that the vendee obtain a bond to
protect the county and appropriate county
officers from claims stemming from errors
in or omissions from the final corrected
tract index.

Maier v. Racine County, supra.

Lastly, I call to your attention that the
county board has the authority to procure
insurance or bonds to protect the county and
the public against liability, loss or damage
resulting from any act, neglect or default of
its officers, department heads and employes.

Section 59.07(2)(d), Stats.

BCL:MEP

[1]

In comparison, Section 59.55(2), Stats.,
provides that the county board of
supervisors, in counties having
a population of 500,000 or more,
may also supplement the contract for the
compilation and completion of alterations,
change or additions to the system.

Even in this instance, the register of deeds
must "maintain and keep up" the system once
completed pursuant to such contract(s).

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