Wisconsin Attorney General Opinions

OPINION NO. OAG 51-82,

September 10, 1982.

Bonds; Municipalities;
Vocational And Adult Education;

Section 67.04(2)(a), (b), (8), Stats., does
not authorize the City of Marshfield to
utilize its bonding authority to construct
a building wholly for use by the Mid-State
Vocational Technical and Adult Education
District on a leased basis.

71 OAG 165  166  167  168  169  170  END

ED JACKAMONIS, Speaker State Assembly

You have requested my opinion on three
questions based on the facts stated below.

The City of Marshfield presently leases the
Purdy Building, which it owns, to the
Mid-State Vocational, Technical and Adult
Education District (hereafter VTAE District).

The latter utilizes it for its
educational purposes.

The city is considering construction of a new
building at a site adjacent to the University
of Wisconsin Center, which would be owned by
the city but which would be leased to the
VTAE District.

The Purdy Building would revert to the city
to be used for other municipal purposes.

It is suggested that construction of a
building at the new site would foster a more
comprehensive educational atmosphere and
allow the University of Wisconsin and the
VTAE District to cooperate more fully.

You inquire:

(1) Can the City of Marshfield borrow
    money or issue bonds for the
    construction of this building
    pursuant to Section 67.04(2)(a),
    Stats., as a "public building"?

(2) If the answer to question (1) is
    in the negative, can the City construct
    this building, pursuant to Section
    67.04(2)(b), Stats., and consider
    it to be a "new school building"?

(3) If the answer to questions (1) and (2)
    are in the negative, can the City
    construct this building pursuant
    to Section 67.04(8), Stats.,
    as a regional project?

The answer to questions one and three is no.

The answer to question two is probably not.

Where a city has statutory power to engage in
an activity, such as operation of a hospital
in a proprietary capacity, it may construct
and lease municipal buildings to a non-profit
organization to operate and maintain as a
hospital and utilize revenue bonds to
finance construction.

Meier v. Madison,
257 Wis. 174,
42 N.W.2d 914 (1950).

Where there is express statutory authority,
buildings may be constructed by a city
through the issuance of revenue bonds
and leased to a private corporation
where the purpose is to attract industry
or trade to the community or to stabilize the
community and provide employment.

71 OAG 165  166  167  168  169  170  END

See
15 McQuillen Mun. Corp.

Section 39.31 (3rd Ed.).

While cities also have power to lease excess
real estate held for a public purpose but not
presently needed for such purpose, such power
would not authorize a city to utilize bonding
to construct buildings not presently needed
for its own public purpose for lease to a
private person or another municipality.

Statutes authorizing bonding are
to be strictly construed.

In
15 McQuillen Muninicipal Corporation
Section 43.21 (3rd Ed.) it is stated:

It is usually held that authority to
issue bonds can be conferred only by
language which leaves no reasonable
doubt of an intention to grant it, and,
in accordance with the well-established
rule of construction, adhered to in
early and late judicial decisions, if
the intention of a statute purporting to
authorize the issuance of bonds is
doubtful, the doubt will be resolved
against the authority to issue the
bonds.

Uniform bond acts exist in some states
and they usually are strictly construed.

In considering the legality of a
proposed bond issue, courts construe the
constitution and statutes more strictly
than they are construed in determining
the validity or bonds already issued and
disposed of.

Although Wisconsin Constitution Article XI,
Section 3, guarantees cities and villages the
power to determine their local affairs and
government subject to the constitution and
legislative enactments of statewide concern
as shall with uniformity affect every city
or every village, it also provides:

No county, city, town, village, school
district or other municipal corporation
may become indebted in an amount that
exceeds an allowable percentage . . .;

establishes percentage limits for
cities and cities authorized to

issue bonds for school purposes;

and requires the levy of a tax before
or at the time the bonds are issued.

Sections 67.03 and 67.04, Stats., were
enacted to implement the constitutional
provisions and Section 67.04(2),(8)
provides, in material part:
67.04(2)

Cities shall not borrow money or issue
bonds therefor for any purpose except
only those specified in this subsection,
and subject to the general limitation of
amounts prescribed by Section 67.03,
namely:

71 OAG 165  166  167  168  169  170  END

67.03(2)(a)

For the erection, construction,
enlargement or repair of a city hall or
other public buildings and the purchase
of sites for the buildings . . . .

67.03(2)(b)

For the purchase or erection of new
school buildings, or additions to old
buildings . . . for the purpose of
providing for the educational
requirements of the city including
territory attached to such city for
school purposes; to acquire sites and
erect or enlarge buildings thereon, and
to equip such new or old buildings for
parental schools: to do renovating,
remodeling and repairing of existing
buildings . . . . . . . .

67.03(8)

By any county, town, city or village, to
acquire, develop, remodel, construct and
equip land, buildings and facilities for
regional projects, either alone or
acting jointly under Section 66.30.

A basic rule of statutory construction
requires that specific statutory language
controls over less specific language.

Fred Rueping Leather v. City of Fond du Lac,
99 Wis.2d 1,
298 N.W.2d 227 (1980).

Section 67.04(2), Stats.,
refers only to city bonding.

Therefore, a "public building" would be one
used for city purposes, not VTAE purposes.

Similarly, a "new school building" would be
one erected "for the purpose of providing for
the educational requirements of the city. ."
and not for the needs of the VTAE District.

Section 67.04(2)(b), Stats. As noted below,
Section 67.04(6), Stats., permits VTAE
districts to issue bonds for the erection
of its own school buildings.

In my opinion the building to be constructed
by the City of Marshfield and leased to the
VTAE District would not constitute a public
building for a city public purpose within
Section 67.04(2)(a), Stats.

It is to be constructed primarily for a VTAE
District and any use by the citizens of
Marshfield would be limited by the lease and
by secs. 38.12 and 38.14, Stats., which
places exclusive control of "the district
schools," buildings and equipment therein
in the hands of the district board.

In my opinion the proposed building, even if
agreed upon jointly by the city council and
the District VTAE Board, would not constitute
a building for a "regional project" as that
term is used in Section 67.04(8), Stats.

The term "regional project" is not defined
in Chapters 66 and 67, or other
provisions of the statutes.

71 OAG 165  166  167  168  169  170  END

While its meaning may not be limited
to items or facilities included in
an "adopted regional master plan" under
Section 66.945(10)-(12), Stats., it cannot
be said that every project which may benefit
a region is a regional project.

A region is something different
than a city or VTAE District.

The boundaries of the latter are established
under Section 38.06, Stats.

The boundaries of a region for regional
planning purposes are fixed by the Governor
under Section 66.945(2)(b), Stats.

With respect to your second question, I am of
the opinion that the city probably could
not construct and fund the building under
Section 67.04(2)(b), Stats., as
a "new school building."

As stated in 71 Op. Att'y Gen. 9 (1982),
VTAE District Boards do operate schools,
and although a VTAE District may be a school
district for purposes of the public records
law, Section 19.21, Stats., Section
38.01(2),(4), Stats., distinguish "VTAE
Districts" and "school districts" for
purposes of Chapter 38, Stats.

In 64 Op. Att'y Gen. 24 (1975), it was stated
that VTAE schools were not "district schools"
within the meaning of Wisconsin Constitution
Article X, Section 3, and were not subject to
the restrictions of that provision which
require that education be "free and without
charge for tuition to all children between
the ages of 4 and 20 years . . . ."

I construe the terms school and school
buildings as used in the first four phrases
of Section 67.04(2)(b), Stats., to be a
school and school building operated by the
public school system as primary, elementary
and high schools under supervision of the
Superintendent of Public Instruction.

The 1961 statutes, provided for the creation
of a vocational and adult education area
school district having its own board and
such board had power to levy taxes and
could incur indebtedness for buildings.

See Sections 41.155, 41.16, Stats.(1961).

The statutes also provided for local schools
of vocational and adult education within a
city or village or as a local board of
vocational and adult education comprising
a union high school, common or unified
school district.

See Section 41.15, Stats. (1961).

In 50 Op. Att'y Gen. 25 (1961), it was stated
that a city board of vocational and adult
education was not a separate entity from
the city and has no separate authority
to borrow money and issue bonds.

Such board had to request the city to
utilize its bonding power under then
Section 67.04(2)(b), Stats. (1961),
which provided that a city could
issue bonds for the erection of buildings

for parental or schools of vocational
and adult education, or for use by the
local board of vocational and adult
education.

Chapter 154, Laws of 1971, amended Section
67.04(2)(b), Stats., to eliminate the word
"or" after "parental" and the words "of
vocational and adult education, or for
use by the local board of vocational
and adult education.

71 OAG 165  166  167  168  169  170  END

The chapter also abolished the system of
local vocational and adult education boards
(city, village and school district) and
replaced it with a system of vocational,
technical and adult education districts
having district boards with power to
levy taxes and borrow money through
issuance of general obligation bonds.

See Section 67.04(6), Stats., as to the
express power of vocational, technical and
adult education districts to borrow and bond
for erection of educational buildings.

In view of the legislative history of
Section 67.04(2)(b), Stats., and the
restrictive meaning this office has
placed on the words "district schools,"
it cannot be said that Section 67.04(2)(b),
Stats., would authorize the City of
Marshfield to issue bonds to erect
a building to be wholly utilized
by the VTAE District on a leased basis.

BCL:RJV

71 OAG 165  166  167  168  169  170  END