Ch. 3 of the Laws of 1969,
1
which we hold is constitutional, created secs. 20.250 and 39.15, Stats., and made an appropriation of $1,000 for the 1969-71 biennium to the Marquette School of Medicine, Inc., for medical education, teaching, and research. We are
The Marquette medical school has been variously characterized in the briefs as a private institution, a sectarian institution, and an independent gmsi-public body. The facts are Marquette School of Medicine, Inc., is a nonprofit corporation organized pursuant to ch. 181, Stats. It is a legal entity entirely separate from Marquette University. It is without members or stockholders and no person has a proprietory interest therein. Six of its 18-member board of trustees are appointed by the governor of the state of Wisconsin upon the advice and consent of the senate. The remaining twelve trustees are elected for staggered terms by the elected trustees whose terms have not expired. Prior to September, 1967, the medical school was a corporate body but was a part of and legally controlled by Marquette University. In September, 1967, the medical school amended its articles of incorporation and separated itself from the university. The medical school owns its own assets but is presently conducting its classes on the Marquette University campus in a building leased rent free from the university from whom it purchases its utility services. The medical school conducts certain educational programs jointly with Marquette University and also has joint programs with
The appropriation arises out of and in response to the recommendations of the governor’s task force on medical education. 2 This committee of 20 outstanding citizens aided by a technical staff of six experts examined the need for physicians as one of the resources of health care in Wisconsin and found the Wisconsin physician-manpower was below the average for both the midwest and the entire nation, in that there are 143 physicians per 100,000 population nationwide and 136 in the seven upper midwest states, while Wisconsin has only 119. In 1966 Wisconsin had only 4,904 practicing physicians. During the eleven years preceding 1967 the two medical schools of this state, Marquette University Medical School and the University of Wisconsin Medical School, produced an average of 161 physicians per year, of which 66 percent came from Marquette. While an average of 35 percent of the graduates of these two medical schools remain in Wisconsin, many doctors trained outside of the state have come here to practice. But the net result of emigration of doctors trained in Wisconsin and the immigration of those trained outside Wisconsin has been an. average deficit of 19 doctors per year. The report also points out Wisconsin has a substantially higher proportion of aged persons than the nation as a whole, with 10.2 percent of its population aged sixty-five years or over in 1960 and this class of persons needs more medical care than younger persons.
The population in Wisconsin is expected to grow approximately from 4,000,000 to 5,220,000 by 1985 and
We need not go into further detail concerning the findings of the task force and the reasons why Wisconsin is behind in medical-care resources. Specifically to attain sufficient medical doctors to care for the health of Wisconsin residents, the committee strongly recommended increasing the incoming freshman class of the University of Wisconsin Medical School from 104 places to 160, expanding Marquette medical school to 160 first-year places and the establishing of a new medical school in Milwaukee having a first-year enrollment by 1975 of 100 first-year students. The report also points out that the Marquette School of Medicine currently faces critical financial problems for its operating programs and its continued operation with an operating deficit of $1,500,000 per year is impossible without state help.
It must be pointed out the Greater Milwaukee Committee and Medical Center of Southeastern Wisconsin in their amicus curiae brief state that the Medical Center of Southeastern Wisconsin is a nonprofit, unincorporated association, whose members include the Milwaukee County Institutions, Milwaukee Children’s Hospital, Milwaukee Psychiatric Hospital, Veterans’ Administration Hospital, Milwaukee Blood Center, and Marquette medical school. The purpose of this medical center is to advance health service, education and research so as to alleviate and maintain on a high level the quality of medical care in southeastern Wisconsin. It recognizes that medical education is the keystone of its integrated program and the Marquette medical school is the foundation for medical
Public Purpose Doctrine.
The first attack on the constitutionality of the law appropriating funds to the medical school is based on the public purpose doctrine; it is contended the appropriation is not for a public purpose because: (1) It supports a private school which is not a public purpose, and (2) the effect on public health is not a direct and immediate benefit. We need not go into the origin or the validity of the doctrine which commands that public funds can only be used for a public purpose. The doctrine is beyond contention and recently was the subject of exposition by this court.
State ex rel. Bowman v. Barczak
(1967),
Nor need we discuss the presumption of constitutionality, which every act of the legislature is entitled to be accorded. This doctrine is too well and rightly established to be challenged.
Gottlieb v. Milwaukee
(1967),
Although this court is not bound by the declaration of public purpose contained in an act, nevertheless what constitutes a public purpose is in the first instance a question for the legislature to determine and its opinion should be given great weight. The legislature, of course, cannot call black white or even gray white to reach a result; but it does have discretion in its declaration of public purpose.
State ex rel. Bowman v. Barczak, supra; David Jeffrey Co. v. Milwaukee
(1954),
The declaration states the level of physician resources for health care in Wisconsin is below the averages for the midwest and the nation and needs to be improved; and to provide adequate physician manpower, this state must expand its program for training new physicians. The legislature accepts the recommendations of the governor’s task force on medical education, that financial support is needed to increase the number of medical students at Marquette School of Medicine. And, most importantly, the legislature determined “. . . this improvement of medical education opportunities is essential to the health and welfare of this state, and is in the public interest and required to meet the health needs of our expanding population.” This is a clear-cut and unambiguous statement of public need and purpose.
“The course or usage of the government, the objects for which taxes have been customarily and by long course of legislation levied, and the objects and purposes which have been considered necessary for the support and proper use of the government are all material considerations as well as the rule that to sustain a public purpose the advantage to the public must be direct and not merely indirect or remote.”
The court recognized that the concept of public purpose is a fluid one and varies from time to time, from age to age, as the government and its people change. Essentially, publie purpose depends upon what the people expect and want their government to do for the society as a whole and in this growth of expectation, that which often starts as hope ends as entitlement. Until recently, man has accepted sickness as a normal phenomenon. But in this century, science has discovered many health hazards can be eliminated or controlled. Preventative medicine and earlier care have become the expectations. It is common knowledge the rising trend in the demand for health services is beyond present resources.
As said in
Laughlin v. City of Portland
(1914),
It cannot be seriously questioned that the health of the people of this state is of great concern and the proper object of our state government’s interest. We stated over twenty-five years ago in
State ex rel. Martin v. Juneau
(1941),
But the respondent does not dispute that public health is a public purpose so much as he argues the appropriation will support a private school which is not a public purpose. This argument confuses the means with the end. An act is constitutional if it is designed in its principal parts to promote a public purpose so that the attainment of the public purpose is a reasonable probability. We cannot take the short rather than the long view of the problem because a private school is used as a means to attain the end. The appropriation is not primarily to benefit the Marquette School of Medicine but to promote and maintain public health. This law is no frivolous pretext for giving money to a private school but the using of a private school to attain a public purpose. What benefit is derived by the medical school is necessary and incidental to the main purpose. The advantage to the public of increasing the number of doctors in Wisconsin to maintain and promote public health is direct and not indirect or remote. Because there are several necessary steps in the process does not make the end remote and certainly not indirect. The means used by the legislature to attain this public purpose are not only reasonable but necessary.
It is argued, however, the appropriation will not attain its purpose because only 35 percent of the medical graduates of the Marquette School of Medicine stay in Wis
The respondent relies on
Curtis’ Administrator v. Whipple
(1868),
Is Marquette School of Medicine a proper agency to carry out a public purpose?
While the respondent states the government may appropriate money to reimburse a private corporation for expenditures incurred by it in accomplishing specified public purposes, he argues such an appropriation is invalid when paid to or through a private corporation which is not under proper governmental control and supervision. This proposition is undoubtedly true but, what is proper governmental control and supervision as used in
State ex rel. Wisconsin Development Authority v. Dammann, supra?
This court stated in
Wisconsin Industrial School for Girls v. Clark County
(1899),
The question of reasonable regulations for control and accountability to secure the public interest is one of degree and depends upon the purposes, the agency and the surrounding circumstances. Only such control and accountability as is reasonably necessary under the circumstances to attain the public purpose is required. Budgeting and auditing are, of course, basic and necessary controls; additional types of control vary with the demands or requirements of the circumstances. What would be sufficient control for daily operations may not serve for capital improvements and vice versa. What controls may be necessary for an agency to be formed may not be necessary for an agency which has been operating for many years and has established an acceptable policy and is under regulations and control of other governmental bodies. Likewise, controls which are sufficient today for this appropriation may not be sufficient tomorrow under different circumstances.
The appropriation at issue is not for capital improvements or for long term future expenditures but to make up an expected deficit the next two years in the estab
The respondent argues the operational budget of the medical school needs to be submitted to the governor only at such times as he requests. We fail to see why this control is lacking merit unless one presumes the legislature will appropriate money without a budget or that the governor will fail to request a budget. As an additional safeguard, the budget must be submitted to the coordinating council of the state of Wisconsin for examination and evaluation and the council shall make an advisory report to the governor. There is a budgetary audit of the expenditure of the funds and the state of Wisconsin has a one-third representation on the board of trustees. It is true the majority of the board is not appointed by the governor with the consent of the senate, but the remaining members are citizens interested in public health and medical education and in no sense are proprietors or owners. They have no individual pecuniary interest in the medical school.
We do not think it is necessary or required by the constitution that the state must legally be able to control the agency corporation in order to find sufficient regulations for control and accountability. The state is not interested in controlling the day-to-day operation of the medical school but in its end product.
While not conclusive or even authoritative but rather as illustrative, the legislature has in the past made appropriation to private organizations to attain stated public goals with no more and perhaps less control than ch. 3, Laws of 1969. For instance, sec. 45.40, Stats., authorizes the transfer of $50,000 to the American Legion for the purpose of purchasing and maintaining a camp for disabled veterans and their dependents. Ch. 51, Laws of 1967, appropriated $50,000 to the American Legion to defray the expenses of holding their national convention in Milwaukee. Sec. 51.38 (4) provides for state aids to nonprofit corporations operating day-care centers for mentally handicapped. State aids are provided for commitments to private tuberculosis sanitoriums and private insane asylums by secs. 58.06 (2) and 58.05 (2), and 50.04. Scholarship grants are provided in secs. 39.30 and 39.31 to aid Wisconsin residents in attending nonprofit public or private institutions of higher education in Wisconsin, some of which institutions are sectarian.
Other states have also used private institutions to attain a public purpose. We recognize that the out-of-state cases may be construing different constitutional
School buildings and nursing education have also been the subject of approval.
Horace Mann League v. Board of Public Works
(1966),
At least five states now provide support to 16 nonmedical or about one third of the nonstate operated schools.
Does eh. 3, Laws of 1969, violate art. X, sec. 6 of the Wisconsin Constitution?
Art. X, sec. 6 of the Wisconsin Constitution
3
requires the legislature to establish a state university and to connect it with such colleges “as the interests of education may require.” The respondent contends an appropriation to the medical school is to support a private educational
The maxim is not applicable to sec. 6. The provisions of this section are not so much a grant of power as a mandate for the exercise of an inherent power which the legislature had. Nor do we read sec. 6 as necessarily implying the creation of an exclusive system of higher education. In respect to art. X sec. 3, which required the legislature to provide free education for persons between the ages of four and twenty, this court held this section carried no implied prohibition which would prevent free education beyond the ages specified but only a mandate to provide free education for persons within those ages. We stated “The purpose was not to grant a power to the legislature to establish schools, for this power would exist without grant, but to compel the exercise of the power to the extent designated. An implied prohibition cannot be construed out of such materials.”
Manitowoc v. Manitowoc Rapids
(1939),
The concurring opinion in
Curtis’ Administrator v. Whipple, supra,
by Mr. Justice Paine and the dissenting opinion in
State ex rel. Wisconsin Development Authority v. Dammann, supra,
by Mr. Justice Fowler, represent a viewpoint which was rejected by the later reasoning in
Manitowoc v. Manitowoc Rapids, supra.
Respondent re
Does ch. 3, Laws of 1969, violate art. VIII, sec. 10 of the Wisconsin Constitution?
Art. VIII, sec. 10 of the Wisconsin Constitution
4
prohibits the state from creating debts for works of internal improvement or being a party to the carrying on of such work. Sixty-seven years ago in
State ex rel. Jones v. Froehlich
(1902),
We think the second part of the definition has validity in excluding those improvements which are used by and for the state in the performance of its governmental function. The type of improvements and the nature of the structures change as time goes on and the functions of government increase and expand. Under this reasoning, the state has constructed many buildings for the university, a state office building, and many other-purpose buildings.
State ex rel. Thomson v. Giessel
(1955),
It is contended by the respondent that the appropriation to the medical school benefits a religious society because: (1) Marquette School of Medicine is a sectarian institution, and (2) prohibited benefits accrue to Marquette University which is a sectarian or religious institution. It may be assumed that Marquette University is a religious or sectarian institution, but there is no factual basis for concluding that the medical school, as now organized, is a religious institution, regardless of what tests might be used for such a determination. Marquette School of Medicine is a nonprofit corporation organized under ch. 181, Stats. Any association with Marquette University was eliminated in September of 1967. While it retains the name “Marquette,” it has dropped the word “University” and has ceased to operate as a department of the university. Also eliminated in its articles of incorporation were the requirements that the medical school be operated in harmony with the fundamental, ethical and educational principles established by Marquette University. The president of Marquette University no longer appoints the faculty of the medical school and the university has no power to discharge any member of the medical faculty. Also eliminated is the provision that assets of the medical school would revert to Marquette University upon dissolution. The articles now provide that these assets will revert to an organization consistent with the purposes for which the medical school is now organized and in accordance with ch. 181.
All reference to Marquette University has been eliminated in the medical school’s articles and the school is now empowered to establish its own standards and confer degrees. The board of directors no longer consists of any persons connected with Marquette University. Of its 16 members, seven are Protestant, five are Catholic, and
Thus when we consider stated purposes and practices, the makeup of its governing board, faculty and student body, the content of its teachings, and its relationship with a religious organization, as relevant factors, Marquette School of Medicine is nonsectarian. These factors, while not exclusive, have legal significance in determining the nature of an institution.
See Horace Mann League v. Board of Public Works
(1966),
It is true there is a relationship between the medical school and Marquette University in the form of a joint program for some graduate study but the medical school also has joint programs and services with five other institutions : The Milwaukee County General Hospital, owned and operated by Milwaukee County; Milwaukee Children’s Hospital, owned and operated by a nonprofit corporation devoted to care of children; the Veterans’ Administration Hospital, a unit of the federal system; Milwaukee Psychiatric Hospital, owned by a private foundation; and the Curative Workshop of Milwaukee, Inc., a nonprofit corporation devoted to mental and
The joint program with the Marquette University involves graduate courses taught by the medical school faculty for students enrolled in Marquette University. Such teaching of graduate courses is essential and necessary to a medical school. No modern medical school can maintain a basic science department and keep its science faculty unless graduate programs are also conducted. The highly qualified teachers on the staff will not remain if their teaching efforts are restricted to undergraduate science courses for conventional medical school education. The service performed by the medical school is not free to graduate students of Marquette University but is paid for by a proration of tuition.
There are other minor connections such as a joint medical-dental library and the sharing of costs of teaching medical technology and physical therapy. At most, by way of argument, this is an incidental benefit to Marquette University. But it is argued that even an incidental benefit from the conduct of the joint programs is sufficient to be violative of art. I, sec. 18 of the Wisconsin Constitution. Respondent relies on
State ex rel. Reynolds v. Nusbaum
(1962),
Does ch. 3, Laws of 1969, violate art. IV, sees. 31 and 32 of the Wisconsin Constitution?
It is contended that the appropriation violates paragraph 7th, art. IV, sec. 31 of the Wisconsin Constitution,
5
which prohibits the legislature from enacting any special or private law for the granting of corporate powers or privileges. It is also contended that art. IV, sec. 32,
6
is violated, because ch. 3, Laws of 1969, is not a general law because it applies only to one corporation. We need not consider sec. 32 because if there is no violation of sec. 31, sec. 32 is not applicable. Early authorities in Wisconsin construed the constitutional prohibition to relate only to the grant of a corporate charter for the creation of
However, in
In re Southern Wisconsin Power Co.
(1909),
We make it clear that our determination that the present minimal budgetary and financial controls are sufficient to sustain the proposed 1969 appropriation does not necessarily constitute a determination that continued appropriations with no greater controls than presently established by the law would have this court’s constitutional approval.
By the Court. — Chapter 3 of the Laws of 1969 is valid and constitutional and respondent is ordered to honor its appropriation.
Notes
“An Act to create 20.250 and 39.15 of the statutes, relating to state aid for medical education at the Marquette school of medicine and making an appropriation.
“Section 2. At the appropriate place in the schedule in section 20.005 of the statutes, insert the following amounts for the purposes indicated:
1969-70 1970-71
“20.250 Marquette school of medicine
“(1) Aid Foe Medical Education
“(2) Gen. program opns. GPR A 500 500
“Section 3. 20.250 of the statutes is created to read:
“20.250 Marquette school of medicine. There is appropriated to the Marquette school of medicine, inc., for the following program:
“(1) Aid Foe Medical Education, (a) General program operations. The amounts in the schedule for medical education, teaching and research. The amounts appropriated under this paragraph shall be transferred from the appropriation under s. 20.505 (1) (a).
“Section 4. 39.15 of the statutes is created to read:
“39.15 Aid for medical education. (1) At such time as the governor directs, the Marquette school of medicine, inc., shall submit its budget request under s. 20.250 to him, and submit a copy thereof to the coordinating council for higher education. The coordinating council shall conduct a biennial program analysis for those programs of the school which are supported in part by these state funds and include an advisory report on its findings and recommendations in its report under s. 15.04 (4). The legislative audit bureau shall biennially post-audit expenditures under s. 20.250 so as to assure the propriety of expenditures and compliance with legislative intent.
“(2) As a condition to the release of funds under s. 20.250, one-third of the members of the board of trustees of Marquette school of medicine, inc., shall be nominated by the governor, and with the advice and consent of the senate appointed, for staggered 6-year terms expiring on May 1 and the school shall give 1st preference in admissions to residents of this state.
(t 9f
See Report of the Governor’s Task Force on Medical Education dated Dec. 5, 1967, Donald C. Slichter, Chairman.
“Provision shall be made by law for the establishment of a state university at or near the seat of state government, and for connecting with the same, from time to time, such colleges in different parts of the state as the interests of education may require. . . .”
“The state shall never contract any debt for works of internal improvement, or be a party in carrying on such works; . . .”
“The legislature is prohibited from enacting any special or private laws in the following cases: . . .
“7th. For granting corporate powers or privileges, except to cities.”
“The legislature shall provide general laws for the transaction of any business that may be prohibited by section thirty-one of this article, and all such laws shall he uniform in their operation throughout the state.”