City of Brookfield v. Milwaukee Metropolitan Sewerage District

Butler, BROOKFIELD, Village Village CITY of OF Falls, Mequon, of of City City of Menomonee Grove, Berlin, Village City of Elm New Germantown, Village Muskego, Village Ensslin, Thiensville, E. Richard Donald Wenzel Gray, Plaintiffs-Respondents, Raymond METROPOLITAN MILWAUKEE SEWERAGE DISTRICT, Defendant-Appellant.†

Supreme Court Argued January No. 86-2318. 1988. Decided June (Also 591.) reported in 426 N.W.2d August 30,1988. Motion reconsideration denied ABRA- † STEINMETZ, JJ., HAMSON and dissent. (in defendant-appellant there were briefs For the H. J. James McCabe, Michael appeals) by court Jackson, Jr., Metro- Petersen, and Milwaukee Harold B. Sewerage District, Milwaukee, P. politan and James Foley Brody, Lardner, & Michael A. Bowen P. argument by James counsel, Milwaukee, and oral Brody. Maryann Sumi, argument by was

There oral whom on briefs with general, attorney assistant Hanaway, was Donald J. (in attorney appeals) court of general. was a brief there plaintiffs-respondents For the McNulty, Thomas Q. Truman (in appeals) by court of Wherry, Mulcahy Leep, Griggs, & M.

E. Daniel S.C.; Radtke, George S.C., & Berlin; Schober New A. Schumus, Allis; West Fuhrman, Harold H. Milwau- argument by kee, McNulty, and oral Q. Truman Griggs. Thomas E. BABLITCH,

WILLIAM A. J. Milwaukee Metro- politan (MMSD) Sewerage appeals District a decision county of the Waukesha circuit court which declared challenged provisions of 1983 Wis. Act 27 and 1985 Wis. Act 29 unconstitutional as or local laws impermissibly budget included in the state bill. These provisions, general face, on their concern the method sewerage containing districts cities of the charge outlying municipalities first-class must their capital providing for age costs incurred certain sewer-

services. We hold that when which arises in a classification context fails the classification previously by tests court, established it is meaning or local within the of art. sec. passed Constitution, Wis. and as such must be single subject, clearly challenged titled bills. The provisions fail the and, therefore, classification test budget cannot be included in an omnibus bill. Accord- ingly, we affirm the circuit court. dispute. special

The facts are not in MMSD is a purpose municipal corporation principal with its facil- ities county, office Milwaukee Wisconsin. It is a sewerage (first-class containing city district a of the first-class district).

sewerage by MMSD was created a legislative reorganization existing of the first- sewerage class districts. plaintiffs-respondents

The (municipalities) are municipal corporations nine and three individual parties, each of whom is an elected official of one of municipalities municipalities. The are located the boundaries. outside MMSD’s challenged provisions relate to methods The sewerage containing cities of first- districts which charge municipalities capital outlying must class district, a Inasmuch as MMSD such costs. provisions apply to MMSD. budget

In the inserted bill required municipal body provision any sewerage outside a first-class district is located sewerage service such a district that obtains from and pursuant capital charges must be assessed contract charges assessed within the same basis as such are on provision resulting 1983 The became the district. 66.898(4)(c), provision Stats., in full cited below.1 any general face, was its as was place thing. person, budget legisla- bill, Wis.

In the 1985 Act requirements respect imposed with ture the same municipal are without con- bodies that out-of-district provision 66.899, Stats., cited This became tracts. Again, provision on its full below.2 was sewerage service.... "66.898 Contract respect "(4)(c) adopts system with If the commission capital of the value of the district on basis costs within 70.57, served, equalized s. property in the area to charges adopt system sewerage with service shall commission respect capital under this section to costs used in contracts executed levy as equal be able to the commission would that shall the amount contract, by upon if the area was be the the area to served taxes boundary." the within district sewerage service. "66.899 Noncontractual 66.91(5), (1) Notwithstanding if the commission ss. and 66.076 system capital district on the costs within the to recover establishes a face, specific and was not as to any person, place thing. as capital

Inasmuch MMSD assessed costs within basis, the district on a value property provisions both had of changing the effect of assessing method capital municipalities costs a property valuation basis. municipalities, relying upon

The the requirement Const., of art. sec. Wis. that private and local topic, bills, laws be adopted single titled specifically 29, 1986, challenged provisions. both On November court, Judge Waukesha circuit county Robert T. McGraw presiding, granted the municipalities’ motion partial summary judgment. accepted The court municipalities’ arguments test articu- DH&SS, lated in Milwaukee Brewers Wis. 2d (1986), N.W.2d 254 was the MMSD no purpose, and had statewide and was therefore unconstitutional as a private or local law impermissibly budget included the state’s bills. appealed.

MMSD court appeals The certified accepted. the appeal which was The present- property served, basis of equalized the value of in the area to be as 70.57, under s. system sewerage commission shall establish a charges capital service to recover costs which shall used with respect any by area which is served and district which is any outside the municipality boundaries of the district outside of charges which has contracted with the district under s. 66.898. equal shall be to the amount the commission would be authorized to levy upon if taxes the area served the area were within the district's boundaries. "(2) Any charge made the district under this section is 66.912(5) charge paid. reviewable under s. if the has been "(3) 66.91(5)(b) (d) apply charges Section assessed under this section. "(4) may charge municipalities The commission assessed payments." under this section interest reasonable for late ed is whether the challenged provisions, general on face, their come within purview IV, of art. sec. 18. We conclude that do. they

hH argues MMSD that the test enunciated in Brewers applicable only that specific to any person, place thing. argue They the provisions challenged here are on their face and applica- class, i.e., ble to an open sewerage districts containing a first-class and city, thus are not subject Brewers. The municipalities argue, and the circuit court agreed, that because there is only one first-class sewerage state, district in the MMSD, namely provisions challenged place are specific and therefore within squarely rule Brewers. On this point we agree with MMSD.

The Brewers test grew out of this court’s most IV, recent interpretation of art. sec. 18.

challenged required prison to be built on 40 acres in Milwaukee "designated ... precision with a approach- ing a conveyancer’s Brewers, description.” 130 Wis. 2d at 118. We concluded that: legislative provision

"... a specific which is any person, place thing is a or local law IV, 1) meaning within the of art. unless: general subject provision matter of the relates to a 2) state responsibility dimension; of statewide its enactment will have direct and immediate effect statewide concern or interest.” Id. at 115. respect

With part opinion Brewers relating to art. opinion cited three cases: others, County Milwaukee Isenring (1901), Monka v. State Conserva- 9, 85 N.W. Wis. (1930), Comm., Soo Line 202 Wis. N.W. tion 64, 303 101 Wis. 2d Dept., Transportation R. Co. v. legisla- pertained cases to of these 626. None N.W.2d cities, counties or groups attempts classify tive cited, Brewers, including case Each entity. other any dealt Isenring context. in nonclassification arose a Monka dealt county. in Milwaukee fees with sheriffs Line dealt Michigan. in Lake Soo netting fish with Village crossing near at-grade railroad with an dealt Wisconsin. Brewers county, in Price Prentice in Milwaukee county. a 40 acre site prison with a cases: each through run these threads Two common context, each dealt with in nonclassification arose place or person, to some specific that were provisions thing. Line, did Monka and Soo recognized, as

Brewers person, place entity or legislation which that all "private or local” within necessarily is not specific IV, legislation of this and that meaning of art. topic relate to a of statewide nevertheless type could workable, more attempt provide In an interest. understandable, framework than analytical to, adhered "balancing” previously majority test provide designed in enunciated a test Brewers that was exception” "statewide narrow concluded majority on its face. The Brewers specific of the chal- notwithstanding specificity the site or provisions "private were not lenged provisions, 18 because of meaning within the of art. local” in prisons of the state as a whole responsibility the construc- prisoners, and the immediate effect on the prison tion of a Milwaukee would have major prison system. entire state provisions challenged here are of a different provisions open, single nature. These relate to an they member class. On their face are not as to any person, place thing. they apply It is true that at present only present” to the MMSD. But an "at effect by determining open. is tested whether the class is If single-member legally unobjec- so, its current status is City tionable, others, Adams v. The Beloit and (1900); Metropolitan 363, 81 Wis. N.W. 675 Thielen v. Sewerage Commission, 178 Wis. 189 N.W. 268 (1922). context, did not Brewers arise a classification any nor did of the cases which Brewers relied on. The municipalities invite us to extend Brewers classifi- legislature. cation We decline to do so.

HHHH Having legislation declined to extend Brewers present question here, such as that nevertheless legislation remains whether comes within the purview IV, 18. it of art. sec. We conclude does.

Up only prohibition until constitutional against private, special IV, or was local private 18. in That section states full: "No or local passed legislature may bill which be shall subject, and that shall embrace more than one be important expressed title.” It is to note that the "private or local” is nowhere defined in the term jurisprudence Thus, much of sec. 18 is constitution. provision "pri- analysis substantive of whether the is meaning it is vate or local” within the of sec. Once provision private local, the determined that a is or single provides legislation must be a section that the title of the bill must reflect and the bill subject subject.

Thus, this section the first structurally of whether a bill is analysis is a substantive so, procedur- inquiry If the second is or local. private determine whether analysis al (i.e., proper manner as a procedurally in a passed title). descriptive properly with a single bill subject single properly and subject if a bill Conversely, general. Implicit or titled, private, local or may be single subject properly that a the observation this is sec. 18. run afoul of titled bill cannot passed amendment was In 1871 a constitutional weapon for those that decried another yet that added Article special legislation. proliferation prohibited,” laws "Special private and entitled below,3 legislature from prohibited in full cited 3 "Special private probihited. laws Section 31. created [As prohibited Nov. 1871 and amended Nov. 1892] any enacting special following from or laws in the cases: changing persons constituting ''1st. For the name of or one person the heir at law of another. out, laying opening altering highways, except "2d. For extending county, cases of state roads into more than one military may roads to aid in the construction which lands granted by congress. authorizing persons keep "3d. For ferries across streams at points wholly within this state. authorizing mortgage personal "4th. For the sale or of real or property disability. of minors or others under locating changing any county "5th. For or seat. extending "6th. For assessment or collection of taxes or for time for the collection thereof. corporate powers granting privileges, except "7th. For or cities. apportionment authorizing any part "8th. For school fund.

904 enacting any special in nine different laws cases. classes of companion time, IV, 32, sec.

At the same adopted which allowed the 31 was sec. any

adopt "general for the transaction of busi- laws prohibited by thirty-one may section ness that be impose however, section, This did this article ....” requirement uniform in that "such laws shall be their throughout operation the state.” parallel IV, between art. sec. There is a certain provides 18, 31 and 32. Just as sec. 18 and art secs. prohibit- provision (private or local laws a substantive ed) (single procedural requirement subject bill and a title), descriptive properly so too do secs. and with a prohibitions, provides the substantive Section provides on the the methods which laws sec. passed, namely may subjects in sec. 31 be enumerated operate uniformly laws must be laws throughout the state. challenging parties 1871,

Thus, certain since spe- being private, legislative local or enactments as sections, of two have had the benefit cial bring challenge. body jurispru- 31, A their developed under each.4 dence has incorporating any city, village, ”9th. For town or or to amend 13, 1, 122, the charter thereof. J.R. 1871 J.R. 1871 1 c. [1870 vote 1871; Nov. 1889 J.R. 1891 J.R. 1891 c. vote Nov. 1892]" suggests may "transforming 4The dissent the court regulating sec. 18 from a rule the form of the to an outright prohibition legislation.” substantive on the enactment of Dissenting opinion at 926. misapprehends analysis

The dissent the substantive inherent legislative jurisprudence. Any provision in sec. 18 which is brought properly alleged before this court and which is to run challenge brought is Those cases invariably have followed the same sec. 31 legislative provision challenged patterns. A certain legislation prohibited being of the areas as one legisla- proponents in sec. The enumerated claiming challenged rely 32, tion on sec. general legislation uniform in is a law which is throughout application instance, state. For allowing question was whether cities of Thielen the metropolitan sewerage the first-class to create beyond city lines was with boundaries district passed legislation part invalid because the sewerage legislation, prohi- thereby and was district ("For granting 31, 7 of sec. art. IV bited sub. cities”)- except corporate powers privileges, or being was defended as law of application and therefore allowed under sec. uniform agreed: being by 32. This court "The act its terms provisions general, it is not within the of sub. Thielen, at 51. Const.” Wis. City Similarly, Milwaukee, in Johnson v. The (1894), 383, 670 N.W. 270 Wis. was legislature pass allowing could a bill whether popula- specially chartered cities which had a certain analyzed afoul of sec. 18 must be to determine whether it is actually private. necessarily implies local or This a substantive although scrutiny, employed one more narrow than that in other contexts, pass 6. If wishes to see footnote infra subject scrutiny, merely law which is not to this has substantive pass procedural requirements in conformance with the the law law, subject infra, of sec. 18. Such a as described footnote will be constitutional, presumption to this court’s only and will found unconstitutional if it runs afoul of the prohibition, example, litany familiar if it of constitutional process, equal protection, denies due etc. legislation challenged was as issue bonds.

tion to by prohibited being sec. 31. The a local bill general being bill of a uniform defended as was provided application 32. This court conclud- as although charter, to amend a the law did act ed general and hence not a law law was nonetheless the prohibited. substantially similar, see also For other cases City others, 98 Milwaukee and Wis. Burnham v. (1897); Beloit, 105 128, 1028 Adams v. Wis. 73 N.W. Trustees, 44, 121 Wis. 363; rel. Risch v. State ex (1904); Metropolitan Sewerage Dist. Madison N.W. (1970). Stein, 177 N.W.2d 131 47 Wis. 2d throughout run these cases. threads Common attempted classify to dealt with Each or counties. None on such as cities certain entities particular person, specific any to was their face thing. allegedly place, ran afoul of the or Each being prohibitions 31. Each was defended as a of sec. throughout application law of uniform thus within sec. state and body jurisprudence

Understandably, has respect types grown up these of cases. First with to 390-91, Johnson, 88 at in 1894 in Wis. outlined applied consistently rules for deter- certain has court mining competence legislature’s under sec. affecting only pass entities, as cities certain such laws notwithstanding size, or of certain class counties prohibitions rules are as follows: of sec. 31. These legisla- employed First, classification distinctions which substantial must be based on ture really different from another. class make one ger- adopted be Second, must the classification purpose of the law. to the mane must not based on Third, be the classification only. existing Instead, the classification circumstances being open, subject that other cities such must join the class. could applies class,

Fourth, it must a law when equally apply all members of class. Risch, at added a In State ex rel. Wis. of each class should be so fifth rule: the characteristics of the other classes so as to from those far different reasonably suggest propriety, having at least good, regard public substantially different to the legislation.

Finally, 1970, Stein, 364, in 47 Wis. 2d at added a legislation nature, in rule: is curative sixth when legislation applies equally long the curative as as legislation general. class, of the is all members passed by If meets all these a law '’general criteria, then it is a law” and uniform within meaning proper, of sec. 32 and therefore notwith- the standing specific pf it comes within one legislation categories prohibited found within sec. challenge we turn to those cases in which the Now brought being 18 has been under art. as emerge. First, or a local law. Two lines of cases challenged legislation in which the those cases particular person, place specific on its face to a or thing. above, and will further As has been stated below, this is the line to which elaborated Brewers belongs. challenging The second and more line of sec. challenged legislation 18 cases are those in which the particular person, place, specific face to is not its thing. legislation attempts or this line of cases classify certain entities such as cities or counties legislation, but the unlike the secs. 31 and 32 cases

908 above, discussed does not run afoul any specific prohibitions bar, of sec. 31. The case at MMSD, belongs to this second line of sec. 18 cases.

The first line of cases which the challenge was brought under 18 are cases in which the chal- lenged legislation on its particular face Monka, person, place, In thing. the challenged legislation attempt regulate was an fishing in Lake Line, Soo In Michigan. the challenged directed at-grade construction of an railroad crossing gave the exact name of the railroad involved. See also crossing 9; 109 Wis. Isenring, State Joint ex Rel. School Dist. v. 215, 183 Nyberg, Wis. (1924); Brewers, N.W. 130 Wis. 2d 79. cases,

By contrast to these in which the specificity is obvious on the face of the legislation, the second line of cases which the challenge brought was sec. 18 provi- involve face, sions that are not specific on their do not run afoul of the specific prohibitions of sec. and arise in a classification Wagner See v. Milwaukee context. County, (1902); Wis. N.W. 577 Whitefish Bay v. Milwaukee County, Wis. 271 N.W. 416 Milwaukee, Lamasco Realty Co. v. (1937); 242 Wis. (1943). 8 N.W.2d 373 present These cases all classification questions though even the challenges were brought under sec. 18. Because we conclude that the belongs case before us logically this second line cases, these cases control the resolution of this case.

In Wagner, plaintiff argued that the chal- lenged legislation private was or local under sec. 18. context, The case arose a classification and the agreed court that the statute was not constitutional. importance Wagner imported is that it 31 secs. and 32 jurisprudence into sec. 18 jurispru- words, in a case In other the first time. dence for the court for context in a classification which arose distinction "open-closed” time employed the first presented to a question test germaneness and private-local focused on the 18. The court under sec. however, coming to the conclu- 18; of sec. aspects unconstitu- legislation was challenged sion that the jurispru- the court relied on under sec. tional under secs. developed been already which had dence from the earlier departure 32 cases. The only 31 and that court’s statement was the jurisprudence consid- was relevant effect present eration. Bay, again adopted once

In court Whitefish that arose in a 31 and 32 case analysis the secs. challenged under sec. context and was classification a law allow- presented was whether 18. The to collect population of over a certain ing counties was unconstitutional under sec. special way in a taxes 18. The court held the law did also under sec. enacting prohibition afoul of the sec. 31 not run levies, on the but instead the law special rejected tax it local under sec. ground unconstitutionally that was court, however, incorporated the sec. 18. The 18, holding into its of sec. that analysis analysis class, "open” class was technically really while an one, adopt- the classification and further "closed” of the law. germane purpose ed was not Lamasco, In the court made clear the tests special or for whether a bill local in a essentially 18 or secs. 31 and are identical classification context. Bay,

These cases (Wagner, Whitefish Lamasco) respect challenges that with demonstrate context, in a that arise classification adopted analysis court has secs. and 32 as an aid analysis. legislation being When the chal- lenged under context, sec. 18 arises a classification employ court has not hesitated to the established concepts developed classification in cases under art. secs. and 32. point summary analysis, In to this the cases challenging legisla- which have come before this court being private special, or tion local or fall into three categories: legislation

First, that arises in a classification specific face, context which is not on its but which allegedly specific prohibitions runs afoul of the of sec. 31. The resolution of these cases rests on whether the legislation general application is a law of uniform meaning teaching within of sec. 32. The progeny essentially, is, and it Johnson that if the legislation being challenged contains classifications open, germane, are and relate to true differ- being classified, ences between the entities then the legislation appli- is considered and of uniform category such, As cation. it falls into the of matters upon competent legislate which the is pursuant prohibition notwithstanding, to sec. 32 specific

Second, on its face to particular people, places things, running allegedly or Monka, afoul of sec. 18. Soo Line and Brewers teach such local within the meaning prohibited of sec. 18 and therefore unless general subject provision matter of the relates ato responsibility state statewide dimension and its enactment will have a direct and immediate effect concern statewide or interest. in a classification

Third, that arises not run its face and does specific that is not context alleged sec. 31 but of specific prohibitions the afoul of Bay 18. Wagner, afoul of sec. runs ly Whitefish analyzed must be that such cases Lamasco teach us concepts developed classification with the consistent IV, 31 and 32.5 art. secs. under in cases "five-part concepts suggests are a these 5The dissent Dissenting opinion at 923. While it is true ...." basis test rational equal been used in an rules have these classification Milwaukee, 643, 649, (see, Cayo 2d setting e.g., Wis. protection N.W.2d, (1969)), it true that there is a certain and while is being questions asked in a sec. 18 context similarity the between context, protection equal is not true that in an those asked identical. concepts in both contexts are differing in terms of the may easily understood be most This I, those behind art. purposes sec. 18 and behind Constitution, as well as equal protection of the Wisconsin clause the U.S. Constitution. Amendment the Fourteenth procedural that certain condition 18 sets forth a Section single clearly titled passed subject, bills. legislation must be against danger "guard requirement is to purpose behind interests, being smuggled affecting private or local legislation, of legislature.” Isenring, 109 Wis. at 23. In the instant through the avoid concern as one to opinion, characterize this same we logrolling." "internal at 922. Infra context, is point the rules listed in the text of In the sec. 18 being perpetrated is or artifice whether some sham to determine sheep’s clothing of a smuggling through in the a local bill course, Provided, that the bill. interest or a statewide court, apply the this court will properly raised before this issue is challenged laws are test when "statewide interest” Brewers face, reinvigorate nearly specific herewith on their and we deciding complex the more century-old tests to aid classification specific challenged legislation on its face. is not in which the cases legislature equal protection By to sec. contrast proce- violating constitutionally mandated being accused of pieces We turn now to the case before us. The two legislation being challenged arise in a classification namely challenged provisions context, apply to all sewerage districts city. which contain a first-class piece Neither on its face. Therefore, presumed dural rule. because the is now "intelligently participate^] considering have such bill ....” 23) (.Isenring; seeking 109 Wis. at this court is not to determine perpetrated. Consequently, whether a sham has been this court repeatedly equal protection has grounds stated that a law attacked on presumption see, constitutionality, a

is entitled to of e.g., Board, Laufenberg Cosmetology 175, 181, Examining v. 87 Wis. 2d (1979) presumption 274 N.W.2d which attends the use of the rational basis test.

Thus, although equal protection both sec. 18 and seek to group status, being determine whether one is accordedfavored the equal protection difference between the sec. 18 and the is contexts cases, In alleged this: sec. 18 because the is to have a of violated law constitutional stature which mandates the form pass, indulge

in which presumption must the bills court will not a in constitutionality, of for to so do would make a mockery procedural Instead, the requirement. of constitutional proceed the court procedural- will determine whether the law is ly proper doing, without recourse to the rational basis test. In so narrowly presented, the court will examine the substantive issues (either Brewers, under a statewide as in interest test or under the here). tests, procedure classification This standard procedure Line, was the followedin none other than Soo 101Wis. Brewers, 2d a case authored the dissentor. See also 130Wis. IV, I, 2d at where the distinction between art. sec. 18 and art. explained. is further contrast, By equal protection, above, in as stated court the will presume Thus, constitutionality. although multipart test supra in listed equal protection context, the text is in used both a sec. 18 context and an necessarily differently

the tests are applied, given quite purposes equal different of sec. 18 and protection. To assert that they because the tests are the same must always presence employ indicate of intent to a rational basis argument is to test make the same flawed as that which Learned prohibitions of sec. runs afoul Neither municipalities, alleged plaintiff by Both, 31. is legislation challenged Thus, of sec. run afoul category of cases referred to the third falls within above. within cases that have come with the

Consistent category, employ the we classification that concepts third developed secs. 31 and in cases under challenged legislation is whether 32 to determine prohibited by sec. 18. developed above, has this court

As stated sophisticated test determine whether multirule impermissi- on its face is generality simply bly private local or because any fails sham. If the surface special, rules, it is local. the established going tests, all the classification Under court’s way held this court has back Johnson legislation embodying the was void classification slightly context when he said laid to rest different Hand chameleons, color their which reflect the environ- "words are _” Commissioner Internal Rev. National Carbide ment (1948), similarly Justice Corp., 167 F.2d and which Vinson slightly different context when he said laid to rest in a still principle "[njothing society the is more certain in modern than absolutes, meaning only that there are no that a ... standard has gave the when associated with considerations which birth to the (1951). States, nomenclature.” Dennis United U.S. Consequently, reject point we the dissent’s that out use of Indeed, multipart indicates of classification test use rational basis. challenge previously brought as we have stated "in a inquire is not relevant to as to whether a rational legislative Brewers, provision.” basis existed for the 130 Wis. 2d at opinion dissenting The cases we have cited at 923. 114. See also case, text, focus with the narrow as as this demonstrate well applied properly in their sec. 18 are the classification tests which context.

unless the classification is based on "substantial really which make distinctions one class different legislation from another.” The also fails if the classifi- challenged provisions apply cation to which the are germane purposes Johnson, to the of the law. question at 391. The of differ, Wis. whether classes germane purposes whether a classification to the of Recognizing law, itself this, of law. urged argument MMSD counsel for this court at oral to make these determinations on the record before it. case, law, that in this We conclude as matter of challenged pieces legislation two fail under both tests. pieces challenged legislation

The two concern sewerage containing the method which districts charge plaintiff outlying cities municipalities first-class capital Initially, charges costs. flowage, on were based or volume basis. The challenged changed by provid- this method ing sewerage containing districts cities of the charge outlying municipalities first-class must on the charges same basis such are assessed within the provisions changing district. These had the effect of assessing capital outlying the municipalities method costs on property to a valuation basis. These legislative provisions apply only to districts contain- ing sewerage cities of first-class. No other districts 66.26, Stats., are affected. See secs. 66.20 to sewerage legis- control the state’s other districts. The sewerage lation two classifies distinct districts: sewer- age containing districts cities of the first-class and all sewerage other districts. The has the effect charge allowing power of outlying municipalities former the their property value basis but unchanged may employ latter the methods the leaves municipalities. charge outlying to their is whether classification The first upon employed distinctions be- substantial is based challenged In order for the the two classes. tween pass legislation muster under this constitutional to something substantially rule, so distinct there must be containing sewerage cities districts about opposed necessary them, for as that is first-class capital sewerage districts, to raise funds all other municipalities charging by outlying this their costs something substantially special If is method. there requires that this method of them distinct about assessing although charges, legislation, ap- then the reality pearing face, local or on its is be passed private legislation may not and hence single purpose except properly bill, titled as a provided in art. nothing, any argu- nor can discern is there

We presented to us which leads us to the conclusion ment anything sewerage there is about districts con- that requires taining of the first-class which them to cities granted power power, this which is not all have sewerage by this districts. We do not mean other special sewerage size of a district cannot lead problems Indeed, in that court has inherent size. recognized previously opposite true. See County, Thielen, 34; 178 Wis. WestAllis Milwaukee (1968). However, 2d 159 N.W.2d 36 mere Wis. justification does not create a for all size large sewerage which favors the district over the small one. challenged distinguished by size,

MMSD but legislation here is to this size difference. not related finding As this court certain uncon- said legislation only stitutional which allowed Milwaukee special county distributing a method of taxes: "The village county may just of M in the of X suffer as acutely exactly way village and in the same that the of may county suffer in the N of Milwaukee.” Whitefish Bay, Therefore, 224 Wis. 2d at 378. the court held that though county larger even Milwaukee was far than go counties, other because size difference did not any to substantial difference between the counties respect legislation distribution, tax with to was Similarly, nothing local. here has to do prob- Instead, size. with this deals with a sewerage regardless lem common to all districts of problem financing. proponents present of size: The argument, none, no something we can discern that there is sewerage

about the size of this district necessary only which makes it them them, for to special charging power, power this have which here right nearly to amounts of unilateral annexation of municipalities. the nondistrict user failing In to addition the "substantial challenged legisla- test, we distinctions” conclude the germaneness tion also fails under the related test. In challenged legislation pass order for the this "germaneness” test the classifications to which the provisions apply, sewerage i.e., districts, first-class closely relationship to, must be akin or have a close purposes provisions. purposes with, the provisions apparent: they are mandate that first- sewerage charges capital class districts must assess outlying municipalities they on the same basis are thereby allowing district, assessed within the MMSD capital charges municipalities outlying to assess on property adopted valuation basis. The classification first-class) (sewerage containing districts cities of the (a germane purposes law method is financing capital improvements). As discussed nothing above, inherent about first-class there is requires they sewerage be allowed districts which special capital manner allowed costs finance only to them.6 suggests that matter at issue here be dissent

6The special problems for determination of whether remanded a challenged legislation. by justify the MMSD can suffered However, employed in 18 tests are the sec. as the classification (i.e.: justifications readily apparent. narrowly), no such are context text, Indeed, in the as as we have stated under classification cases, Bay Wagner opposite is employed by and the Whitefish lack true: here fails for of both substantial germaneness. distinctions and justifica- of narrow the circumstances our search Under context, approach 18 to a final tions in the sec. better protracted dispute, the one which we resolution of this much and invitation, post-hoc justification. adopt, reject to further to Instead, scrutiny to the full of the we recommend this Line, legislature, Isenring, 2d 109 Wis. at 23 and Soo see Wis. Hurst, 72, (citing Law: Law at The Growth American The of (1950) Marcus, Makers, Special Legislation, Cloe and Local and & (1936)). Ky. point L. J. 351 The of cases is that under sec. both legislature, scrutiny full of rather than substituted through process smuggling is the best determinant of need. by employing an as we seek not to err on the one hand Just through inappropriate presuming of deference constitu- standard presumption tionality a sec. meanin- where such would render gless, by to on equally so we seek not err the other hand substituting legislature. judgment This our for that of an attentive essentially a as court is ill suited to determine economic political given power and as whether MMSD should be right surrounding nearly unilaterally amounts annex determining role limited issue areas. Our much narrower constitutionally followed whether its mandated sense, In this this case is similar Wagner, at 601. There act, Wis. the issue was whether an face, its which allowed counties to build was The viaducts constitutional. act contained provision which mandated that the authorized via- characteristics, ducts must have certain physical $80,000, further, cost over must be financed by bonds; provided

"'... the amount of bonds so not, interest, issued shall exclusive of a sum exceed equal fifth percent to one of one of the value of all property taxable county, said by determined equalization last assessment and for state and county prior next taxes to the issue thereof.’” Wagner, 112 Wis. at 605.

It was undisputed Milwaukee only county could $80,000 raise bonds without exceeding one-fifth of percent one its value of taxable property. court, rule, citing the Johnson found this act under art. unconstitutional sec. 18.7The court held that the germaneness act failed the test because the procedure, analysis and our substantive is to restricted the service of that narrow determination. (which legislation passed If such is full after consideration through compliance consideration will evident with sec. 18’s procedural requirements), legislation and if such comes before this again ground equal protection, on such court some other that engage proper presumption be the time the will to in of constitu- tionality implicit proffered the in dissent’s concerns. IV, However, IV, 7The court cited art. 23. art. also sec. 18 most, upon analysis. Wagner, the section of

was relied the See ("We question 112 Wis. at 608 must that the hold act is local special, meaning provision the the the and within of of constitu Moreover, quoted. repugnant IV, it ... tion Const.”). is to sec. art. (counties geo- with certain employed classification taxable a certain nature of feature and graphical to the law germane purpose not the of was property) viaducts). case, in this we hold Similarly, (regulating because the classi- challenged legislation the fails that germane purpose not is also the employed fication the law. of case, nothing Wagner the where there was

As in legiti- Milwaukee size which county’s inherent about authorizing the scheme contained in the a law mated is inherent law, nothing this case there also so in relates to a law closely MMSD’s size about challenged financing the scheme. authorizing challenged legisla- conclude the We therefore face, tion, its is local although general on IV, meaning sec. 18. classifica- The within is not on substantial distinc- any tion based employed germane nor is it employed, tion classes between of the law. purposes us, The case to appeals, certifying court of whether the classification cases question raised the having multi- can be with Brewers harmonized past go tests embodied cases part classification question of whether or private local, if then use the test the result Brewers However, local, private a law is found positive. once test application unnecessary Brewers would be legislation that inappropriate. Brewers involved its was certain face locale. legislation, notwithstanding whether was impact was of it was specificity, its such statewide meaning or local within the of art. Line, recognized, as did Brewers Monka and Soo legislation specific that all which is particular is person, place thing, proscribed or not necessarily by IV, The Brewers test provides an analyti- legislation cal framework to test that is specific its If legislation specific face. on its face the meets two part test, it private is not or local. contrast,

In the classification test here employed face, legislation starts with that is on its the test used to multi-part is determine whether the "generalness” is a surface hiding private sham its true or If it local nature. is that legislation determined local, in reality private is or that ends the inquiry. tests, There no need apply further as did in we Brewers, if private to determine is not or local. That has been determined application of the classification The only ques- tests. remaining passed tion is whether the bill was properly item, single properly as a titled bill. conclusion,

In having determined that there is no substantial distinction between classifications it employed necessary make for one class to charging municipalities have a method of outlying classes, from different all other and further that purpose classification is not germane laws, challenged provisions are or local IV, meaning laws within the of art. sec. 18. As such must, when they passed, embrace more than one expressed and that must in the title. subject subject IV, challenged Article sec. 18. Inasmuch as the were provisions passed parts budget of two omnibus bills, are they unconstitutional. Brewers,

In 18 is not a was said that art. meaningless gesture. taught constitutional Brewers on its face to a particular place, thing have a must direct matters of statewide impact on

immediate in multi-subject in order to be included a importance IV, that the reach of art. bill. This case makes clear draftsmanship. Legisla- clever beyond sec. extends in on its face but is appears general reality, tion classification, private or local principles the of IV, the also comes within ambit of art. sec. legislation, such, single bill with the subject 18. As must be It cannot expressed of the bill the title. subject bill, of passed part multi-subject subject the to per- that has come logrolling seemingly internal budget the It must rise or fall its process. meate merits. own the circuit court

By Judgment the Court. — affirmed. ABRAHAMSON, (dissenting). S.

SHIRLEY J. I First, three for reasons. the choice majority’s dissent appropriate determining test for whether the Const, IV, in this art. statutes case contravene Wis. Second, established sec. conflicts with law. adoption rational of a basis test deter- majority’s provisions mining constitutionality statutory IV, sec. appears under art. to transform a bill provision governing from a form of into a provision a bill. governing substance opinion of a set of adoption complex rules majority Third, litigation. apply even if I will foster were I test majority, rational basis formulated would improve- of funding capital conclude method sewerage ments district has metropolitan within it city rationally included a first class related population-based to the classification.

I. In determining whether provisions statutory issue are or local laws that contravene Wis. Const, the majority opinion departs from the rule set forth in our more recent cases. five-part rational basis test that the majority Const, borrows from cases interpreting IV, Wis. 32, secs. 31 and and from cases interpreting equal protection guarantees conflicts directly with the court’s holding Milwaukee Brewers Baseball Club v. Department Services, Health and Social 130 Wis. 2d 79, (1986). 387 N.W.2d 254 In Brewers the court held: "In challenge brought 18, under art. it is not inquire relevant as to whether a rational basis existed for legislative provision.” Brewers, 130 Wis. 2d at 114.

Indeed the majority opinion in this case substan- tially adopts reasoning of Justice Steinmetz’s dissenting and concurring opinion case, in the Brewers at least to some sec. 18 cases. Justice Steinmetz advocated the use of the five-part rational basis test to determine whether a classification is legitimate purposes of all sec. 18 cases. The court this rejected analysis which Justice Steinmetz derived from his study of County Milwaukee v. Insenring, Wis. (1901), N.W. 131 and Monka v. State Conservation Comm., (1930). 202 Wis. 231 N.W. 273 Justice Steinmetz read those cases as saying that a bill private or if it "imposes local a burden or confers a upon specified localities, benefit persons or which do legitimate constitute class for the purpose legislation under the principles established classification of cities for such purpose.” Milwaukee Brewers, 130 (Steinmetz, Wis. 2d at 139 concurring J. part) (citing dissenting part Monka State 39, 45-46, Comm., 231 N.W. 273 202 Wis.

Conservation (1930)). interpreting numerous cases I read the As fundamental is whether that the I conclude person, place, particular limited to a the law is say, thing. Or, whether the classification as some cases limited or is a closed If the law is so closed. is classification, long violate sec. 18 as the law will not provision general subject relates to a matter of responsibility of statewide dimension and its state immediate effect on a will have direct and enactment concern or interest. Milwaukee statewide Brewers, 2d at 118-19. 130 Wis. dividing categories

By the cases into three five-part engrafting a rational basis test onto some but majority cases, has further not all of the sec. complicated already of the law. troublesome area legislature need a test which can The courts and clear provision readily applied to determine whether a private majority’s local law under sec. 18. The a or creating category third of cases which includes some fulfill all sec. 18 cases does not this need. but not majority does not The case law cited the support applying a secs. 31 and 32 rational basis implicating analysis to some but not all of the cases law on the relation between sec. 18 The case 31 32 is neither as clear nor as consistent and secs. and opinion suggests. majority upon majority relies to The three cases engraft IV, secs. 31-32 law onto some sec. cases open in the law is focus on whether the classification County, Wagner In 112 Wis. or closed. 601, v. Milwaukee (1902), Bay in 88 N.W. 577 and v. Whitefish (1937), Co., 224 271 N.W. 416 Milwaukee Wis. under sec. 18 were held unconstitutional statutes although appeared because, the classifications open language, statutory classifications were in or actually governed really is,

closed, that the statutes single place, namely county. county No Milwaukee ever fit within the than Milwaukee could other creating A statute a closed classifications. statutes’ legislation that is the same as classification locality; if it is the same as its face to a certain example, specifically legislature referred, to Mil- private court held that such laws are waukee. The passed conformity with the laws that must be local requirements 18. Thus the of art. form holdings Wagner Bay really did not Whitefish five-part analysis. rational basis rest on a Bay suggests Furthermore, that a Whitefish is local under sec. can still meet closed class which five-part 32. 224 test of secs. 31 and rational basis Bay court intimated that at 378. The Wis. Whitefish against valid local law in that case would be county Milwaukee had basis test because rational special population towns, attributes —an urban justify villages of various classes—which and cities law. or local upon majority relies is which the The third case Realty Milwaukee, 8 N.W.2d Wis. Lamasco (1943). statutory classification was In that case the only first class Milwaukee was the first class cities. probabil- city no and there was reasonable the state ity cities. The other first class there would be open because theoreti- nevertheless classification was cally cities. The become first class other cities could upheld 31. secs. 18 and the law under court impose a read to think Lamasco can be I do not analysis 18 because the 32 on sec. cases 31 and secs.

925 discussion court’s was brief and did not analyze secs. The essence separately. of the court’s that, discussion was an acknowledgment legisla- while adopting open tion an population classification does to an legislature extent allow the to evade the constitu- prohibitions 31, tional of sec. 18 and the court has willing uphold been this kind of legislation. 242 Wis. at 357. The Lamasco case does support not conclusion that majority’s this court adopted has five-part rational basis test for some sec. 18 cases.

I cannot join the majority because the case law upon which the majority opinion relies does not support its analysis and because the majority’s deci- to apply five-part sion rational basis test to some but not all sec. cases formulates a rule which is unnecessarily burdensome legislature and the courts to apply in determining whether provision is a private or local law under sec. 18.

By departing from its analysis in Brewers applying rational basis 18, test to art. court may transforming sec. 18 from a rule regulating the form of to an outright prohibition substantive on the legisla- enactment tion. Sec. 18 legislature allows the to enact a private or local if law the adopts the measure as a separate bill whose title describes the contents of the law. The purpose of provision guard is to against the danger affecting private or local interests being smuggled through the legislature un- der misleading titles. Sec. unlike is a form, matter of Brown, substance. The Making of Constitution, the Wisconsin L.Wis. Rev. However, a rational basis applies when a court ,test, case, 18 and the law fails that in a sec. test cannot subsequently that the appear would bill unless it aban- separate the measure as a adopt applied by The five-factor test the classification. dons test used the rational basis essentially the majority equal protec- a statute violates the whether to decide Const, I, 1, and the of Wis. art. guarantees tion the federal Constitution.1 Fourteenth Amendment analytical approach if fails under the Thus apparent- the classification majority, suggested by I, 1, of the Wisconsin Constitu- also violates art. ly proce- has made a constitutional majority tion.2 The altogether. else safeguard something into dural that, as a case, opinion In holds majority law, and the statutes the classification is bad matter of holds that majority test. The germaneness fail containing districts nothing sewerage about there permit legisla- that would of the first class cities power charge capital them the grant ture to cases, five equal protection the court has characterized the 1In overlap legislative satisfy must classification factors which question posed by the five ping the essential and has said distinguish the any real differences to whether there are factors is Grand Bazaar v. Milwau or burdened class. State ex rel. favored 215, (1982); kee, 805 Kallas v. 2d N.W.2d 105 Wis. 382, 289, Co., 225 N.W.2d Corp. Square D 66 Wis. 2d Millwork (1975). equal and the of secs. For a discussion Klitsner, Legisla- Special protection guarantee, see Statutes — Amending Against Granting or Prohibition tion —Constitutional Charters, Municipalities, L. Rev. City 1941 Wis. Classification equal in this case could assert an individuals involved 2The Menasha, challenge. City Appleton protection See v. Town (1988). 870, 419 2d N.W.2d 142 Wis. improvements basis, an ad valorem power granted to all sewerage other districts. Majority 912, 914-918. pages opinion at result of this holding seems to be that would face an equal protection challenge because the majority opin- ion has decided the issue as a Thus, matter of law. result of this case appears to be that grant cannot a sewerage district with a first class city power this kind of granting without power the same districts, all other sewerage even if the legislature passed these provisions as separate bill with an appropriately descriptive title.

This court should change not a constitutional procedural provision into a substantive prohibition.

HHHHHH Even if the court should apply five-part rational basis test in some but cases, not all sec. 18 I believe that the conclusion reached in the majority opinion is contrary established precedent.

This court has said that when a statute is chal- lenged 18, there is a presumption constitutionality challenger has the burden to prove unconstitutionality beyond a reasonable doubt. Soo DOT, Line Railroad Co. v. 64, 76, 101 Wis. 2d (1981). N.W.2d 626 This presumption of constitutional- ity is the generally accepted rule when a statute challenged special as legislation under a state consti- Sands, tution. 2 Sutherland Statutory Construction 40.06, (1986 p. ed.) Rev. presumption The of constitutionality has also been consistently applied in cases interpreting 32, secs. 31 and from which the majority derives its five-part See, test for this case. e.g., Johnson v. City of Adams v. (1894); Milwaukee, 60 N.W. 88 Wis. Beloit, (1900); 81 N.W. 869 105 Wis. City of Trustees, 44, 54, 98 N.W. 121 Wis. ex rel. Risch State (1904). presump- about the is silent opinion The majority assignment of burden constitutionality tion of should, presume, does proof. majority legislative determi- support that facts exist on real distinc- is based that the classification nation to the germane that the classification tions and of the statute. purpose puts

Instead, opinion erroneously the majority the constitutional- supporting the party the burden on that facts exist prove ity opinion Majority legislative classification. support challenger. be on 18. The burden should page at case has not challenger I conclude This is constitutionality. presumption the of overcome case, and the record consists summary judgment filed in the circuit briefs parties’ predominantly statutes, depositions court, and some copies of majority’s analysis I the apply If were affidavits. record, I would conclude in this presented the facts their have not met in this case challengers that supporting are no facts there proving burden classification. legislative recognized has this court Since with a first sewerage district may govern legislature sewerage districts. from other differently city class Comm’n, 178 Wis. Sewerage Metropolitan Thielen v. Milwaukee Allis v. (1922). In West 51, 189 N.W. 268 (1968), involv 356, 159 N.W.2d County, 39 Wis. 2d governing a statute constitutionality ing waste-disposal plants financing of construction (Mil- 500,000 in excess of population with a counties waukee), judicial the court took notice that the refuse problems metropolitan, of a urban area are related to population. concentration of density I think that the concentration and population county city, in a with a first class base, wastes, industrial the diverse and the water pollution problems history center, in an urban and the Metropolitan of the difficulties of the Milwaukee Sewerage financing District construction could well persuaded give sewerage have special city districts with a first class funding capital improvements. treatment any parties In event have not had the argue opportunity to this issue. The rational basis was presented parties court, to the circuit and the did setting not consider the issue in forth their facts before the circuit court. The classification significant became a issue when this court raised it. accept circumstances, Under these if I even were to opinion majority forth, the test the sets I would ask for argument important additional briefs and on this legal question or remand the case. forth,

For the reasons set I dissent. I am authorized to state that JUSTICE DONALD joins W. STEINMETZ in this dissent.

Case Details

Case Name: City of Brookfield v. Milwaukee Metropolitan Sewerage District

Court Name: Wisconsin Supreme Court

Date Published: Jun 29, 1988

Citation: 426 N.W.2d 591

Docket Number: 86-2318

Court Abbreviation: Wis.