Opinion No. Oag 43-79, (1979) , 68 Op. Att'y Gen. 117 ( 1979 )

RICHARD L. HAMILTON, Corporation Counsel Outagamie County

You have requested my opinion as to whether the word "shall" contained in sec. 851.74 (3), Stats., which was created by ch. 449, Laws of 1977, limits the authority of the register in probate to make payments to the county treasurer to one a month on the first Monday of the month.

In my opinion the answer is no.

You state that the question has arisen because the auditors for Outagamie County, in their commentary section of the 1977 audit, suggested that the register in probate should deposit her receipts with the county treasurer at least weekly. You further state that the finance director has requested that this procedure be adopted; and it is the position of the register in probate that she must make her deposit with the county treasurer only on the first Monday of each month.

The pertinent portion of sec. 851.74 (3), Stats. (1977), reads: "The register in probate shall, on the first Monday of eachmonth, pay into the office of the county treasurer all fees collected by him or her and in his or her hands and still unclaimed as of that day." A review of the legislative history of this subsection disclosed that the words, "shall, on the first Monday of each month," have always appeared in the prior statutes concerned therewith.

The word "shall" when used in connection with duty is mandatory and excludes the idea of discretion. In Re Mann, 151 W. Va. 644,154 S.E.2d 860, 864 (1967); State ex rel. Maloney v. Proctor,249 Wis. 377, 380a, 24 N.W.2d 698, 25 N.W.2d 742 (1946). Courts generally have held that the word "shall" is mandatory, particularly when the word is addressed to a public official.People v. Nicholls, 45 Ill. App. 3d 312, 359 N.E.2d 1095, 1099 (1977); Schmidt v. Abbott, 261 Iowa 886, 156 N.W.2d 649, 651 (1968); Dosker v. Andrus, 342 Mich. 548, 70 N.W.2d 765, 768 (1955).

Concluding that the word "shall" is mandatory, however, does not dispose of the question of what is mandated. This statute can be read as mandating that the register make payments no less frequently than on the first Monday in each month. It also can be read as mandating that the payments be made no more frequently than on the first Monday of each month.

The first construction unquestionably furthers a valuable legislative purpose in having minimal and regular accounting periods. The second construction, however, serves no apparent legislative purpose. In fact, that construction could frustrate the overall legislative purpose to enable counties to discharge their missions with substantial flexibility and efficiency. See,e.g., secs. 59.025 and 59.07 (5), Stats.

Accordingly, I conclude that under sec. 851.74 (3), Stats., the register in probate must make payments to the treasurer at least on the first Monday of each month but that nothing precludes the register from making payments more frequently.

BCL:CDH