195.60 Payment of office expenses by railroads and water carriers.

(1) Whenever the office in a proceeding upon its own motion, on complaint, or upon an application to it deems it necessary in order to carry out the duties imposed upon it by law to investigate the books, accounts, practices and activities of, or make appraisals of the property of any railroad or water carrier or to render any engineering or accounting services to any railroad or water carrier, the railroad or water carrier shall pay the expenses attributable to such investigation, appraisal or service. The office shall ascertain such expenses, and shall render a bill therefor, by mail, to the railroad or water carrier, either at the conclusion of the investigation, appraisal or services, or during its progress. The bill shall constitute notice of assessment and demand of payment thereof. The railroad or water carrier shall, within 30 days after the mailing thereof, pay to the office the amount of the special expense for which it is billed. Ninety percent of the payment shall be credited to the appropriation account under s. 20.155 (2) (g). The total amount, in any one calendar year, for which any railroad or water carrier becomes liable, by reason of costs incurred by the office within such calendar year, shall not exceed four-fifths of one percent of its gross operating revenues derived from intrastate operations in the last preceding calendar year. Where, under this subsection, costs are incurred within any calendar year, which are in excess of four-fifths of one percent of such gross operating revenues, the excess costs shall not be chargeable as part of the remainder under sub. (2) but shall be paid out of the general appropriation to the office. Nothing in this subsection shall prevent the office from rendering bills in one calendar year for costs incurred within a previous year. For the purpose of calculating the costs of investigations, appraisals and other services under this subsection, 90 percent of the costs determined shall be costs of the office and 10 percent of the costs determined shall be costs of state government operations.

(2) The office shall annually, within 90 days after the close of each fiscal year, ascertain the total of its expenditures during such year which are reasonably attributable to the performance of its duties relating to railroads and water carriers. For purposes of such calculation, 90 percent of the expenditures so determined shall be expenditures of the office and 10 percent of the expenditures so determined shall be expenditures for state government operations. The office shall deduct therefrom all amounts chargeable to railroads and water carriers under sub. (1) and s. 201.10 (3). A sum equal to the remainder plus 10 percent of the remainder shall be assessed by the office to the several railroads and water carriers in proportion to their respective gross operating revenues during the last calendar year, derived from intrastate operations. Such assessment shall be paid within 30 days after the bill has been mailed to the several railroads and water carriers, which bill shall constitute notice of assessment and demand of payment thereof. The total amount which may be assessed to the railroads and water carriers under authority of this subsection shall not exceed 1.85 percent of the total gross operating revenues of such railroads and water carriers, during such calendar year, derived from intrastate operations. Ninety percent of the payment shall be credited to the appropriation account under s. 20.155 (2) (g). The railroads and water carriers shall furnish such financial information as the office requires for purposes of this section.

(3) If any railroad or water carrier against which a bill has been rendered under sub. (1) or (2) within 30 days after the rendering of such bill neglects or refuses to pay the same or fails to file objections to the bill with the office, the office shall transmit to the secretary of administration a certified copy of the bill, together with notice of neglect or refusal to pay the bill, and on the same day the office shall mail to the railroad or water carrier against which the bill has been rendered a copy of the notice which it has transmitted to the secretary of administration. Within 10 days after the receipt of such notice and certified copy of such bill, the secretary of administration shall levy the amount stated on such bill to be due, with interest, by distress and sale of any goods and chattels, including stocks, securities, bank accounts, evidences of debt, and accounts receivable belonging to such delinquent railroad or water carrier. Such levy by distress and sale shall be governed by the provisions of s. 74.10, 1985 stats., except that it shall be made by the secretary of administration and that said goods and chattels anywhere within the state may be levied upon.

(4)

(a) Within 30 days after the date of the mailing of any bill as provided by subs. (1) and (2), the railroad or water carrier against which such bill has been rendered may file with the office objections setting out in detail the grounds upon which the objector regards the bill to be excessive, erroneous, unlawful or invalid. The office, after notice to the objector, shall hold a hearing upon such objections, not less than 5 nor more than 10 days after such notice. If after such hearing the office finds any part of the bill to be excessive, erroneous, unlawful or invalid it shall record its findings upon its minutes and transmit to the objector an amended bill, in accordance with such findings. The amended bill shall have in all ways the same force and effect under this section as an original bill rendered under subs. (1) and (2).

(b) If after the hearing the office finds the entire bill unlawful or invalid, it shall notify the objector of such determination, in which case the original bill shall be deemed void.

(c) If after the hearing the office finds that the bill as rendered is neither excessive, erroneous, unlawful or invalid, either in whole or in part, it shall record such findings upon its minutes, and transmit to the objector notice of such finding.

(d) If any bill against which objections have been filed is not paid within 10 days after notice of a finding that such objections have been overruled and disallowed by the office has been mailed to the objector, the office shall give notice of such delinquency to the secretary of administration and to the objector, in the manner provided in sub. (3). The secretary of administration shall then proceed to collect the amount of the bill as provided in sub. (3). If an amended bill is not paid within 10 days after a copy thereof is mailed to the objector by registered mail, the office shall notify the secretary of administration and the objector as in the case of delinquency in the payment of an original bill. The secretary of administration shall then proceed to collect the amount of the bill as provided in the case of an original bill.

(5) No suit or proceeding shall be maintained in any court for the purpose of restraining or in any way delaying the collection or payment of any bill rendered under subs. (1) and (2). Every railroad or water carrier against which a bill is rendered shall pay the amount thereof, and after such payment may in the manner herein provided, at any time within 2 years from the date the payment was made, sue the state in an action at law to recover the amount paid with legal interest thereon from the date of payment, upon the ground that the assessment was excessive, erroneous, unlawful, or invalid in whole or in part. If it is finally determined in such action that any part of the bill for which payment was made was excessive, erroneous, unlawful, or invalid, the secretary of administration shall make a refund to the claimant as directed by the court, which shall be charged to the appropriations to the office.

(6) No action for recovery of any amount paid under this section shall be maintained in any court unless objections have been filed with the office as provided in this section. In any action for recovery of any payments made under this section the claimant shall be entitled to raise every relevant issue of law, but the office's findings of fact made pursuant to this section shall be prima facie evidence of the facts therein stated.

(7) The following shall be deemed to be findings of fact of the office, within the meaning of this section:

(a) Determinations of fact expressed in bills rendered under this section; and

(b) Determinations of fact set out in those minutes of the office which record the action of the office in passing upon said bills, and in passing upon objections thereto.

(8) The procedure by this section providing for determining the lawfulness of bills and the recovery back of payments made pursuant to such bills shall be exclusive of all other remedies and procedures.

History: 1977 c. 29; 1981 c. 347 s. 80 (1); 1981 c. 391; 1987 a. 378; 1993 a. 16, 123, 491; 1995 a. 27; 1997 a. 140; 1999 a. 150; 2001 a. 16; 2003 a. 33; 2005 a. 179.