*1 NORTHERN, INC., BURLINGTON Corporation, Dock Burlington Northern Plaintiffs-Appellants,
v. SUPERIOR, Wisconsin, The CITY OF 84-2358, 84- Defendant-Respondent. Nos. [Case 2359.] RAILROAD BURLINGTON NORTHERN COMPANY and Northern Dock Plaintiffs-Appellants, Corporation,
v. SUPERIOR, Wisconsin, OF The CITY 84-2360, 84- Defendant-Respondent. Nos. [Case † 2361.] Supreme Court 84-2358, 84-2360, 84-2359, Argued Nos. 84-2361. June June 1986.
1986. Decided 916.) (Also reported in 388 N.W.2d 15,1986, August with costs. denied Motion for reconsideration † ABRAHAMSON, J., part. took no *3 plaintiffs-appellants there were briefs For Friedrich, Michael, & Mil- A. and Best Robert Schnur argument by waukee, Mr. Schnur. oral defendant-respondent was ar- For the cause general, attorney gued by Marion, assistant Edward S. Follette, La at- whom on the brief was Bronson C. with torney general. cir- CECI, an order of the J. We review
LOUIS J. Douglas county dated October for cuit court judge, Douglas Moodie, in which reserve circuit S. judg- summary granted motion court circuit plaintiffs' motion and denied ment of defendant *4 appealed judgment. summary to the Plaintiffs for accepted by granting appeals; jurisdiction of we court request, pursuant appeals' of certification the court (Rule) 809.61, Stats. a tax whether The issue we consider is "Occupational tax Stats., 70.40, entitled in sec. found concentrates," the violates Commerce ore on iron so, and, if States Constitution of the United Clause 567 the is tax scheme severable the remainder whether provi- We that the the conclude provision. from invalid the requirements the Commerce Clause offends sion therefore the it is not severable. We reverse and that and remand the matter the circuit court for decision of this opinion. order consistent with of an entry person oper- that provides "every Section dock in this state" shall concentrates ating an iron ore equal per tax to 5 occupational cents "an annual pay iron ore concentrates handled or over upon by ton all ,"1 preceding . during year.. the The statute the dock 70.40, 1983-84, provides: tax of sec. The entire scheme Stats. (1) Occupational Ex- on iron ore "70.40 tax concentrates. (6), provided every person operating cept as an iron ore con- in sub. state, dock in this shall on or before December 15 of each centrates per upon pay occupational equal year to 5 an annual cents ton by during over the dock the all iron ore concentrates handled or 15, ending April preceding year except of December as ending apply year preceding De- such tax shall to the on the under Iron ore concentrates taxed ss. 70.37 to 70.395 cember 31. exempt from this In this section 'dock' are taxation under section. loading unloading platform a or or means wharf for materi- ships. to or from als "(2) (1)shall, Every person imposed by on whom a tax is sub. town, city May year, to the or on 1 of each furnish assessor of situated, village full list in which dock and true or state- by person ment of all iron ore concentrates received or handled during year ending April year. Beginning on 30 of such in February year apply the list be on 1 and end- shall furnished ing person wilfully preceding Any on 31. such who December knowingly or to furnish the list or statement or who fails refuses statement, or be makes or furnishes a false or incorrect list shall $1,000. exceeding fined not "(3) provided separately be The tax this section shall person chargeable by the assessor and assessed to therewith annually by the shall be included in the assessment roll submitted town, village city to the or clerk and shall be entered assessor *5 30,1977, and was made retro- on June effective became 1655(38) Laws 1,1977.1977 Wis. to May active 70.40(1) following exemp- the (c). includes also Section this case: "Iron ore concen- in at issue tion, is which are from exempt 70.37 to 70.395 under ss. taxed trates 70.375, Stats., pro- Section this section." under taxation en- persons tax on occupation proceeds for a net vides paid collected as taxes The tax shall be and the tax roll. the clerk on town, city paid or vil- property collected in the personal are and on situated, gross be deductible from lage and shall the dock is where personal property purposes taxes are de- as income tax income 71.04(3). under this section shall Taxes collected under s. ductible fund, general to to the state follows: 20% be divided as 10% impact under s. and fund created and local investment collected, town, village city taxes are in which the or to 70% manner as accounted for the same remitted and which shall be property county are remitted collected from and taxes the state paid. and "(4) has reason to believe board of review If the assessor or incorrect, any person by or when made is statement that the list or or statement as person to furnish a list any fails or refuses such place law, on the by board of review shall required the assessor or person they against as deem such assessment roll assessment assessor, by change is made just. or assessment If such true and give the amount of the assess- notice of written the assessor shall meeting adjourned days or some before the first at least ment by change is made If or assessment review. such of the board of per- review, given in time to allow shall be notice the board in relation appear the board of review heard before and be son to may court summons as a circuit Notice be served the assessment. registered by mail. served or "(5) relating with this section not in conflict All laws property assessment, personal and payment taxes collection and rolls, apply to shall and tax of errors in assessment the correction imposed in this section. "(6) municipally apply owned or to a does not This section industry solely an in connection with operated dock used dock or a except that utilized handling no iron ore concentrates industry." *6 minerals in this state.2 mining in metalliferous gaged 70.40(1) exempts iron ore concen- Thus, effectively 70.375 taxed in this state under sec. and mined trates iron operator on the of an ore con- imposed tax the from dock. centrates Stats., (2m), read as follows: and Sections mining occupation proceeds on of tax metallic Net "70.375 minerals; computation.. .. IMPOSED, (a) "(2) operation respect not in In to mines TAX 28, 1981, upon engaged imposed persons in there on November occupa- proceeds mining a minerals in this state net metalliferous begins compen- to on the date on which extraction tion tax effective valuable, municipalities irreplace- the loss and for of sate the state tax minerals. The amount of the shall be able metalliferous (5) by applying the rates established under sub. to the determined proceeds proceeds The of mine each net of each mine. net each for proceeds gross year the difference between the and deduc- are the (4) year. for the
tions allowed under sub. "(b) may promulgate any necessary secretary rules to The 70.395(1). respect implement In 70.37to 70.39and the under ss. 28, 1981, 71.11(4),(7m), operation on s. to not in November mines (50) (20) (42), (47),(49) (22), (44),(46), (8), applies to the and admin- to this istration of section. IMPOSED, (a) "(2m) imposed persons upon TAX There is en- gaged mining respect in in to metalliferous minerals this state in 28, 1981, proceeds occupa- operation November a net mines in on begins tion on the date on which extraction to Janu- tax effective 1,1991, compensate municipalities ary the and for the loss to state valuable, irreplaceable The of metalliferous minerals. amount of by applying be the rates established the tax shall determined (5) average proceeds person to of net for under sub. preceding 3-year period. proceeds person The net of a for each gross computed year proceeds, shall be difference between (3) year, under for and the deductions allowed under sub. sub. (4) year. for the "(b) 28,1981, respect operation on mines in November In to (8) (20) (22) 71.11(4),(7m), applies to to the administration s. and January of this 1991." section stipulated parties facts to the material have application disagree only of about the this of case law. Corporation, wholly- Burlington Dock Burlington subsidiary Northern Railroad owned Northern), op- (collectively, Company is the ore concentrates docks iron several erator Superior it carried and taco- over which has loaded transportation barges pellets onto out-of- nite pellets mills. are form a condensed steel Taconite state *7 low-grade "iron concentrates" iron term ore ore. of pellets. 70.40, Stats., includes taconite used in sec. as through Burlington passing Northern The taconite through in 1980 was mined Minnesota from docks pel- producers by into and manufactured various steel Burlington by lets, rail to one of Northern carried operated Burlington by in the Northern3 three docks barges oper- finally City Superior, loaded onto of and companies by its to Cana- for destination ated the steel ports Bur- Lakes and steel mills. and lower Great dian pellets any lington carry for not taconite Northern did pellets transported any use, own nor were taconite its purpose any other than for ultimate its for docks delivery for the State onto outside transferral vessels Wisconsin. of Superior
Burlington City of Northern and paid agree Burlington was assessed and Northern that operator following docks, of the iron ore taxes as 70.40(1): pursuant to sec. points Burlington that the newest of its dock Northern out completed approximately mil in 1977 at a cost of $68
facilities was through by City part bonds of It financed in issued lion. was Superior. through April period May 30, 1, 1977,
For the $322,138; 1978: May through period 31, 1,1978, December
For the $439,385; 1978: through period January 1,1979, December
For $655,714; and 1979: through January period 1,1980, December For the $528,622. 1980: represents of a consolidation four suits This case Burlington brought by for of taxes Northern refund Burlington paid declaratory judgment. Northern Superior protest the four to the of taxes under question through May periods 1,1977, De- in from City Superior 31,1980. The assessed and col- cember during approximately million taxes $2 lected the Burling- period provided 70.40, under sec. Stats. that as challenges constitutionality ton now that statute.
Burlington its on three Northern bases suits (1) grounds: 70.40 an unlawful ef- constitutes North- fort State of Wisconsin to tax respect transportation ern to its interstate taco- with pellets, in violation of Commerce Clause nite *8 (2) Constitution; that the violates United States statute import-export of the United States Constitu- the clause (3) uniformity tion; and the statute the violates clause of the Constitution. Wisconsin parties' hearing arguments on the cross-
After oral judgment, summary the circuit court ren- motions for 12, 1984. its memorandum decision dated June dered findings, conclusions, The court thereafter entered its judgment. final The circuit court concluded that and exemption for with sec. Wisconsin-mined against interstate taconite results discrimination offending provi- that the But it determined commerce. of the statute from remainder was severable sion validity not affect overall therefore did and The no severance. court found other scheme after import-export Clause, Commerce violations uniformity clause, clause. The circuit court or there- summary judg- granted motion for defendant's fore plaintiffs' motion. and denied ment grounds Burlington Northern reasserts all of its it to the circuit court. relief which asserted exemption argues Superior that, if the violates the Clause, then the remainder of sec. 70.40 is Commerce and, therefore, enforceable. is valid and severable analysis of sec. 70.40 in relation find that our We dispositive of this Clause is review. to the Commerce not Northern's do consider We therefore arguments. Similarly, we determine because other against interstate thát discriminates not severable from remainder of commerce opportunity statute, have no consider we appeals: question "whether the court of certified this state and Bur- nexus between there is sufficient imposing occupational lington justify an operations 70.40, under sec. on its dock tax levied result of our decision on thus reach the Stats." We fairly grounds. narrow our for review. define at the outset standard
We compati- of a tax statute's A trial court's determination bility Commerce Clause is constitutional with the ques- question. This will review constitutional court independent of lower courts. tions of the determination Woods, 701, 715, 345 See, 2d N.W.2d v. 117 Wis. State (1984).
573
of United States Consti
Clause
Commerce
Congress
power
provides that, "The
shall have
tution
among
regulate
. . .
commerce
several
[t]o
. . .
purpose
states_"
I, sec.
art.
8. The
of
S. Const.
U.
"to
an
is
create
area of free
clause
trade
the commerce
among
States." McLeod v. J. E. Dilworth
the several
(1944);
Exchange
327, 330
Boston Stock
Co., 322 U.S.
(1977).
Commission,
318, 335
429 U.S.
How
v.
Tax
State
totally eclipsed
not
ever,
Clause has
the Commerce
"
support
'power
to tax for
of'"
of
States
state
purposes.
government
or
other
Boston Stock Ex
(quoting
Ogden,
change,
A state tax not se invalid because activity Mary- may of interstate commerce. burden (1981). Louisiana, 725, 754 451 U.S. The United land v. Supreme States Court has said interstate com- "just paying from its merce is not dismissed share though burden even it increases cost [the] state tax doing the business." Western Live Stock v. Bureau of (1938). Revenue, U.S. 254 303 may indiscriminately A not state conduct commerce, which interstate however. A constitutes generally against tax is sustainable Commerce state challenge applied activity Clause "when tax is an taxing fairly State, with the is with a substantial nexus against apportioned, does not discriminate interstate fairly provided commerce, related the services Complete Brady, Transit, Inc. v. 430 the State." Auto (1977); Maryland Louisiana, 279 451 U.S. v. U.S. Department Corp., also, 754; at see Revenue v. Exxon (1979), 700, 724, 2d 281 94 447 Wis. N.W.2d aff'd, (1980); U.S. Midwestern Gas Co. Transmission v. *10 Dept., 270, 253 267 N.W.2d 2d Revenue Wis. (1978). argues
Burlington the dock Northern Complete factors and that the Auto meets none of Ap- unconstitutional. should be held tax scheme entire plying Superior City factors, the asserts the same constitutionally sound. We need tax is that the dock Complete Auto factors because all of not consider the tax discriminates third criterion —whether dispositive ultimately against interstate commerce — review. of our 'impose "may a tax which discriminates
No state
by providing
against
...
a direct
interstate commerce
advantage
Boston Stock
to local business.'"
commercial
(quoting
Exchange,
The of recognize exemption. inatory We that effects the tax against may Burlington not be discriminated Northern exemption. But instance as a result in the first discriminatory tax need not be on effect of state taxpayer per Here, it is out-of-state taco- se. the direct integral producers component who, an of inter- nite as against commerce, in favor of are discriminated state counterparts. in the record their Evidence Wisconsin Burlington indicates, at oral and counsél for Northern passes Burlington argument stated, Northern on that taconite-producing who use tax cost to its customers its dock-loading Thus, the customers of the services. its prices, depending pay higher on the or lower services by origin taconite, not affected of the ore. Wisconsin again handling attractive, tax, more at ex- the pense counterpart. As we noted of its out-of-state approve above, Clause does not of such the Commerce local favoritism. Burlington Superior argues from the a benefit
Northern receives does not local taconite because Wisconsin-produced pay taconite. Yet the Su- taxes on recently preme stated, has Court discriminatory statute allocates "Virtually every unequally; each can be viewed or burdens benefits conferring party on one and a detriment as a benefit other, or relative sense. in either an absolute on constitutionality does not de- The determination upon upon one focuses the benefited pend whether claim, party. A the burdened discrimination or *12 nature, comparison of the two classifi- requires its a cations, always it could be said that there was party, impose a burden on one but no intent confer a benefit on rather the intent was to 263, Dias, U.S. LTD v. 468 Imports, Bacchus other." (1984). 200, 273, 2d 210 L. Ed. argument Bur- of that if we concede for the sake
Even exemp- by lington the tax Northern is not burdened ignores Superior's argument City tion, the bur- of producers, whose taconite is to out-of-state den expensive relatively the discrimina- as a result of more tory exemption. mining argues Superior also that local exemption.
companies
not be favored
the tax
would
enjoy
Although
mining companies
the ex-
would
local
they shipped
emption
dock,
so
across Wisconsin
if
companies
they
if
mined Wisconsin
out-of-state
would
operation
city
70.40
that sec.
in
con-
concludes
ore. The
advantage to local business."
commercial
fers no "direct
Maryland
Louisiana,
We
mining
mining
through
out-of-state
over
in-state
against
exemption
mined
discriminates
taconite
Supreme
paraphrase
ir-
Court, it is
To
out
state.
leg-
inquiry that the
to the Commerce Clause
relevant
by the
to aid in-state
motivated
desire
islature was
mining.
mining
than to hinder out-of-state
Bac-
rather
Imports,
210-11.
does against exemption out-of-state is to discriminate of the producers by raising shipping effectively the cost of pellets Northern docks across taconite taconite, which to avoids the cost in relation Wisconsin increase. severability turn to the of the unconstitu-
We next exemption from the remainder of the tax stat- tional agree Although we with the circuit court's conclu- ute. exemption against discriminates the tax sion contrary commerce, hold, we to the circuit interstate conclusion, is not severable that the court's remainder of the dock tax. from the analysis on the The extent of the circuit court's citing severability issue is limited to its 990.001(11), provides: Stats. That section laws; for. In Construction rules
"990.001 construing following rules shall laws Wisconsin in accordance with be observed unless construction produce a result inconsistent with the a rule would legislature: manifest intent of the " (11) SEVERABILITY. provisions of the The any provisions session statutes are severable. provision If of the statutes any are severable. law invalid, application if law is or or of a session invalid, any person circumstance of either or provisions or invalidity shall not affect other such given applications can be effect without which application." provision invalid or general rule of con- Section sets forth provision statutory that an invalid is sever- struction provision. from a valid This court is bound ob- able *14 produce a "would that rule unless observance serve leg- of the intent with manifest result inconsistent islature." severability
Ascertaining of an unconstitu- provision of a statute re- from the remainder tional quires legislative intent, of Madison
a determination (1974), 71, 78, 865 223 Nickel, 2d N.W.2d 66 Wis. v. give question not def- This court need is a law. which in matters of law. determinations to trial courts' erence Sewerage Metropolitan DNR, 126 District v. Milwaukee (1985). 63, 71, 649 375 N.W.2d Wis. 2d determining legislative respect intent with In language severability, the first resort is to the Krug Priester, See, & 121 v. Ideal-Werk statute. Sacotte (1984). particu 401, 406, 359N.W.2d 393 This 2dWis. express larly at contains an true the statute issue when generally, severability Sutherland, 2 Statu- clause. See 1973). (4th tory When the sec. 44.10 ed. Construction concerning language the sever- of the statute is unclear ability provision, may this court examine of an invalid " history, 'scope, subject object context, matter and legis in order to discern the intent of the the statute " (citing See, Sacotte, 2d 121 Wis. at 406 Green lature.' Authority Bay Redevelopment Frank, 120 v. Bee Wis. (1984)). 402, 409, 2d 355 240 N.W.2d deciding whether a stat The factors consider provision from an invalid are ute should be severed legislature viability of the and the severed intent of standing Chicago portion & alone. North Western Transportation 575, 259 Pedersen, 2d Co. v. Wis. (1977). may provisions Invalid statute N.W.2d appears when it from the act that the not be severed legislature only the statute to be effective as intended part entirety the valid and would not have enacted an *15 Nickel, 66 2d at 79. Wis. itself. Madison v. severing exemp- the the conclude that effect We metallic minerals from the tion for Wisconsin-mined contrary dock tax would be to the iron ore concentrates legislature. including pro- By intent of the the manifest "Iron ore concentrates taxed under ss. 70.37 to vision 70.40(1), exempt from taxation" within sec. 70.395 are legislature manifested its intent that Wisconsin the exempt taconite should be from the calculation of the concentrates-handling tax. To sever the statute ore exemption produce from the would a result inconsis- express legislative tent with intent: Wisconsin taconite moving through any Northern docks or handling state dock iron ore concentrates would other operator subject the dock and the taconite itself to a nonlegislated The tax would be incurred not as a tax. legislative decree, in- result of will or but because an exemption existed and was severed. A determina- valid exemption invalidity tion of of an is not a substitute legislature im- for a determination that intended to pose 70.40 tax on Wisconsin taconite. As it the sec. provision language expresses stands, the invalid legislative intent that state taconite not be taxed under 70.40. legislature expressed has its intent not
When impose very tax, this court must be reluctant to previously by severing effect a tax where none existed provision. power leg- It an unconstitutional is the prerogative judiciary. tax, See, islature to not Merely VIII, 5. because the ex art. secs. Const. Wis. emption not does allow us reach deemed invalid was legislature intended that Wis that the the conclusion taxed. taconite be consin analysis
Further, 70.37-70.395 and sec. of secs. an legislature suggests intended 70.40 in tandem of Wisconsin-mined taconite. taxation a double to avoid defeated if the unconstitutional be intent would That exemption severed. were
Chapter secs. 70.37- 31 of the Laws of created prior mining repealed tax statutes. 70.395 mining 11. 10 and The new Laws secs. Wis. per- proceeds occupation placed tax on a net scheme extracting It metalliferous metals. became effec- sons July 7, 1977. The unconstitutional tive on present 418 of took its form ch. at issue in this case *16 exemption became effective on the May of 1977. The Laws year approximately 19, 1978, sec. 70.40 one after ten one-half months after secs. took effect and and effective. 70.37-70.395 became exemption precursor at in this to the issue The read, under 70.91 concentrates taxed s. case "Iron ore exempt 1977 See, from under this section." are taxation 750g. 70.91, 29, 1977 sec. Section Wis. Stats. Wis. Laws 11), by (repealed 31, ch. the old 1977 Wis. Laws sec. analogous mining plan, roughly to sec. tax was 70.375(2), computed imposed property It a on Stats. low-grade iron mined in the amount of ore Wisconsin. mining history legislation of tax on The mining-related suggests leg- strongly activities that the a tax within 70.40 intended avoid double sec. islature already taxed under either sec. on ore concentrates 1977, 70.375, To 70.91, Wis. Stats. or sec. Stats. now ef- severing exemption double from the fect a tax — legislature remainder of the statute —where the in- only single legisla- contrary tended tax would be tive intent. Superior suggests legislature
The that the applicable could not have intended that sec. 70.40 be only entirety. points present in its It to the fact that the 70.40(1), exemption Stats., within sec. was in fact en- approximately year acted one after the effective date of sec. 70.40. original above, however, As we noted version exemption analogous of sec. 70.40 included an to the present exemption. provision exempted The old iron ore concentrates taxed under sec. 70.91 from the tax insignificant present under emption 70.40. It sec. that the ex- year passage was enacted one after the of sec. exemption merely changes 70.40; the new reflects the taxing mining. made in the overall scheme for The present exemption legislative afterthought is not a updated Rather, added to sec. 70.40. it is an version of original exemption See, enacted within sec. 70.40. 750g. updating 29, 1977 Wis. Laws of the ex- emption legislature might does not indicate that the exemption have considered the severable from the rest contrary, legislative history of sec. 70.40. On the exemption suggests inception, that, of the from its above, As we 30, noted sec. 70.40 became effective on June 1977, but had May present retroactive effect on 1977. The form became *17 May effective on 1978. City Superior's correct,
If premise the of city then the raises argument a valid provision that the unconstitutional is severable from the legislature remainder of sec. 70.40: initially since the en- acted exemption, sec. 70.40 legislature without the arguably the in- operative tended that sec. 70.40 exemption be without the if it is later deemed invalid. integral part
exemption the overall scheme of anwas taxing operators docks and ore concentrates of iron of tax on iron ore concen- a double to avoid was intended trates.6 legislature intended to have conclude
We entirety. only Stats., in 70.40, its To be effective sec. exemption from the unconstitutional 70.40 sever sec. taxing oper- unlegislated effect of dock have the would handling ore concentrates. Wisconsin-mined for ators in to effect a tax situations be loath This court will legislature that no tax be lev- has indicated where ied. not severable from the uncon- 70.40 is
Because sec. provision, in- 70.40 must be considered stitutional erroneously entirety. trial court in its valid summary judgment granted motion the defendant's plaintiffs' motion. We therefore re- similar and denied of circuit court and remand verse decision judgment We in favor of defendant. of the vacation judgment in favor to enter its the circuit court instruct plaintiffs. of the grounds
Again, case on the narrow we decide this commerce. We therefore to interstate of discrimination attorney general, represented the who The assistant case, argument of this noted that the Superior brief and at oral on 70.40(1) legislature recently amended sec. exclude See, 1985 sec. 1216b. Based ore. Wis. Laws for Wisconsin-mined information, general attorney court asks this this assistant on legislature intended that sec. be severable to infer that the exemption. analysis legislative in unconstitutional Our from the tent, through however, inception is limited to the of the statute years year. legislature almost five after the 1980 tax Conduct enlighten year question our in in this case will not serve last tax during period question. analysis legislative the time intent *18 opportunity Burlington have no to consider Northern's arguments invalidating other substantive the stat- ute. Because we have held that sec. 70.40 is not sever- exemption and, able from the unconstitutional there- fore, invalid, we do not consider argument 70.40(6),Stats., that sec. Northern's discrim- against during interstate inated commerce the rele- period.7 vant time
By the Court.—The decision of the circuit court is The reversed. cause is remanded with instructions. (dissent- HEFFERNAN, CHIEF JUSTICE ing). opinion majority exemp- The first finds that the 70.40(1), Stats., tion within sec. for Wisconsin-mined against taconite results discrimination interstate commerce and then holds that is not tax, severable from the remainder of the dock thus in- validating entirety. majority sec. 70.40 in its claims that: including provision
"By 'Iron ore concen- exempt trates taxed under secs.70.37to 70.395are 70.40(1), legislature from taxation' within sec. manifested its intent that Wisconsin taconite exempt should be from the calculation of the ore concentrates-handlingtax. . . . analysis
"Further, an of secs.70.37-70.395 and suggests legislature sec. 70.40in tandem that the intended to avoid a double taxation of Wisconsin- 70.40(6), Stats., provided: Section apply municipally oper- "This section does not to a owned or solely ated industry dock or a dock used in connection with an handling except no iron ore concentrates that utilized the indus- try." repealed by Section has been 1985 Wis. Laws 1216d. *19 if the would be defeated That intent taconite.
mined pages At severed." were unconstitutional 581, 582. incorrectly applied the severabil- has majority 990.001(11), Stats., statute, reaching in con- its
ity I dissent. Accordingly, clusion. Stats., in 990.001(11), provides, part, that:
Sec. of a or session any provision of the statutes "If any invalid, of either to application or if the is law invalid, invalidity is such circumstance person or applications or provisions affect other not shall provi- given without the invalid effect which can be application." or sion meaning of sec. nothing within the
There Stats., 990.001(11), requires the trial court to de- which one severing provision of a within whether termine This or statute. would invalidate affect another statute & Northwestern Chicago Transporta- court has said Pedersen, 566, 575, 259 tion Co. v. 80 Wis. 2d N.W.2d (1977), that: legislature viability and the "The intent of the standing portion of the statute when of the severed deciding are the factors to consider when alone pro- should be severed. Material whether a statute may a be eliminated. visions of statute constitutes, independ- part upheld .if the ". complete in some ently portion, of the invalid law aspect, appears it from the act it- reasonable unless legislature it to that the intended be effective self only entirety and not enacted the as an would have omitted.) (Citations part valid alone.'" 70.40, Stats., alone with- easily Section can stand I exemption provisions. exemp- would hold out apply then I would invalid but severable. tion to be Complete four-pronged Transit, Inc., v. Auto test of Mississippi Comm., Brady, 430 U.S. Chairman, Tax (1977), of the statute sus- to the remainder challenge. against Commerce Clause this tain ques- appeals this on the certified case The court Burling- exists between sufficient nexus whether tion City Superior/State of Wiscon- Northern and ton a cost of built a new dock at sin. part pellets, of which $70,000,000 to handle taconite through of industrial reve- the issuance was financed *20 persons Superior. About 125 bonds nue employed facility 40,000 tons of at the and about were during period. These the taxable were handled taconite unquestionably nexus be- formed a sufficient activities taxing state, as re- and the tween by Complete quired Auto. majority page
In at notes that footnote 70.40(1), recently legislature Stats., has amended to exclude Wisconsin-mined ore. The unwillingness validity majority's to address the of sec. Complete parties under the Auto test leaves the 70.40 position at the end of this lawsuit as at the same knowing beginning it, be not whether sec. 70.40 would challenge. As stated sustained under a Commerce Clause and, therefore, above, I I it should be sustained believe respectfully dissent.