State ex rel. Bowman v. Barczak

Decision Date28 February 1967
Citation148 N.W.2d 683,34 Wis.2d 57
PartiesSTATE ex rel. William BOWMAN, Relator, v. Max A. BARCZAK, County Treasurer of Milwaukee Co. et al., Respondents.
CourtWisconsin Supreme Court

Michael, Best & Friedrich, Milwaukee, Frank J. Pelisek and John K. MacIver, Milwaukee, of counsel, for relator.

Robert P. Russell, Corp. Counsel, Milwaukee (for Barczak) Quarles, Herriott, Clemons, Teschner & Noelke, Milwaukee, Lester S. Clemons, Ross Shumaker and Robert H. Dias, Jr., Milwaukee, of counsel (for Milw. Co. Indus. Development Corp.) for respondents.

GORDON, Justice.

The Public Purpose Doctrine.

The principal challenge to the constitutionality of sec. 59.071, Stats., concerns the application of the public purpose doctrine. Unlike most of the other constitutional stabs at this statute, discussed infra, no specific clause in the constitution establishes this doctrine; nevertheless, the public purpose doctrine is firmly accepted as a basic constitutional tenet. Thus, in spite of its obscure origins, there is absolutely no challenge to the premise that public appropriations may not be used for other than public purposes.

The development of this unwritten constitutional keystone has been examined in Mills, The Public Purpose Doctrine in Wisconsin, 1957 Wisconsin Law Review 40. The author attributes the doctrine to a 'judicial articulation of the belief that governmental power should be used for the benefit of the entire community' and states that the first Wisconsin case acknowledging the doctrine was Soens v. City of Racine (1860), 10 Wis. 214 (*271).

Upon the rehearing in State ex rel. Wisconsin Dev. Authority v. Dammann (1938), 228 Wis. 147, 175, 277 N.W. 278, 280 N.W. 698, 706, this court stated that for public funds to be appropriated for a private business 'would be to take the property of one citizen or group of citizens without compensation and to pay it to others, which would constitute a violation of the equality clause as well as a taking of property without due process of law.' In Heimerl v. Ozaukee County (1949), 256 Wis. 151, 158, 40 N.W.2d 564, 567, the court attributed the public purpose doctrine to sec. 4, art. IV of the United States constitution:

'Taxation for a private purpose is prohibited by the clause of the federal constitution that guarantees to every state a Republican form of government (sec. 4, art. IV), as such a form of government forbids the raising of taxes for anything but a public purpose.'

Whatever problem may be presented by our effort to understand the genesis of the public purpose doctrine or to describe its constitutional gestation, such inquiries are insignificant in comparison to the problem of determining if a given course of conduct offends the doctrine. A large number of cases attest to the fact that this court has wrestled with the problem for the past one hundred years, and the Wisconsin experience is little different from that encountered by her sister states.

In recent years the courts of many states have been called upon to weigh the constitutional validity of legislation designed to encourage industry to locate or to expand to the economic benefit of such state and its communities. At the oral argument, counsel informed the court that the legislatures of 38 states have enacted industrial development legislation. In order to decide whether such legislation is consistent with the public purpose doctrine, we are obliged to ascertain the factors which distinguish a public purpose from a private purpose. Unfortunately, this is not a task which allows either a simple or clearcut answer.

In State ex rel. Wisconsin Dev. Authority v. Dammann (1938), 228 Wis. 147, 180, 277 N.W. 278, 280 N.W. 698, 708, the court, upon rehearing, suggested some of the factors to be considered in ascertaining whether an appropriation is proper:

'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.'

Moreover, the court went on, at page 182, 280 N.W. at page 709, to recognize that the concept of public purpose is not a static one and that the legislature is not restricted to the concept of public purpose as it has been understood in years gone by:

'The rule that the benefits to the public must be direct and not remote and that the past course or usage of government is to be resorted to for guidance must in each case be considered in the light of the principle that the legislature has a very wide discretion to determine what constitutes a public purpose, and that courts will not interfere unless at first blush the act appears to be so obviously designed in all its principal parts to benefit private persons and so indirectly or remotely to affect the public interest that it constitutes the taking of property of the taxpayers for private use. It is to be observed that the tendency of later cases is towards greater liberality in characterizing taxes or appropriations as public in purpose, doubtless in recognition of the fact, as was stated in Laughlin v. City of Portland, supra (111 Me. 486, 90 A. 318, 51 L.R.A.N.S., 1143), that:

"Times change. The wants and necessities of the people change. The opportunity to satisfy those wants and necessities by individual efforts may vary. * * * On the one hand what could not be deemed a public use a century ago may, because of changed economic and industrial conditions, be such today. * * * Its two tests are: First, the subject-matter, or commodity, must be one of 'public necessity, convenience, or welfare.' * * * The second test is the difficulty which individuals have in providing it for themselves."

In subsection (2) of sec. 59.071, Stats., the Wisconsin legislature has asserted with unequivocal clarity its finding that Wisconsin has suffered from a loss of industry to other states and that this has caused an increase in unemployment in this state. The legislature went on to assert that the economic impact of such unemployment was a serious menace to the general welfare of the people of the entire state. It further found that there was a need for more capital within the state. To remove any uncertainty as to the legislature's position, the enactment contains an express declaration that public money spent to alleviate this situation is for public purposes.

As noted in State ex rel. Wisconsin Dev. Authority v. Dammann, quoted above, 'a very wide discretion' is given to the legislature regarding its pronouncement as to public purpose. In that case this court also indicated judicial reluctance to intrude when the enactment does not appear 'at first blush' to be for a private purpose. Nevertheless, the constitutional question remains as to how far a court should go in deferring to the conclusions of the legislature. We fully recognize that 'the hierarchy of community values is best determined by the will of the electorate' and that 'legislative decisions are more representative of popular opinion because individuals have greater access to their legislative representatives.' See Note, The 'Public Purpose' of Municipal Financing for Industrial Development, 70 Yale Law Journal (1960--61), 789, 797.

Nevertheless, when legislation is challenged, the justices of this court deem it their unavoidable burden under the constitution to examine such legislation and to assess its realistic operation. Although the legislative declarations are entitled to great weight, we may not blindly accept at full value even the most elaborate prefatory expressions concerning community need, economic impact, or public purpose. David Jeffrey Co. v. City of Milwaukee (1954), 267 Wis. 559, 578, 66 N.W.2d 362.

The greater weight of authority has upheld laws under the public purpose doctrine which permit expenditures by redevelopment authorities and by agencies for the purposes of encouraging industry, reducing unemployment and bringing in needed capital. ALABAMA: Newberry v. City of Andalusia (1952), 257 Ala. 49, 57 So.2d 629; In re Opinion of the Justices (1951), 256 Ala. 162, 53 So.2d 840; ALASKA: DeArmond v. Alaska State Development Corporation (Alaska, 1962), 376 P.2d 717; CONNECTICUT: Roan v. Connecticut Industrial Building Commission (1963), 150 Conn. 333, 189 A.2d 399; DELAWARE: Opinion of the Justices (1962), 4 Storey 366, 54 Del. 366, 177 A.2d 205; IOWA: Green v. City of Mt. Pleasant (1964), 256 Iowa 1184, 131 N.W.2d 5; KANSAS: State ex rel. Ferguson v. City of Pittsburg (1961), 188 Kan. 612, 364 P.2d 71; KENTUCKY: Industrial Development Authority v. Eastern Ky. Regional Planning Comm. (Ky.1960), 332 S.W.2d 274; LOUISIANA: Miller v. Police Jury of Washington Parish (1954), 226 La. 8, 74 So.2d 394; MARYLAND: City of Frostburg v. Jenkins (1957), 215 Md. 9, 136 A.2d 852; MICHIGAN: City of Gaylord v. Beckett (1966), 378 Mich. 273, 144 N.W.2d 460; MISSISSIPPI: Albritton v. City of Winona (1938), 181 Miss. 75, 178 So. 799, 115 A.L.R. 1436; NEW JERSEY: Roe v. Kervick (1964), 42 N.J. 191, 199 A.2d 834; NEW MEXICO: Village of Deming v. Hosdreg Company (1956), 62 N.M. 18, 303 P.2d 920; NORTH DAKOTA: Gripentrog v. City of WAHPETON (N.D.1964), 126 N.W.2d 230; OKLAHOMA: Harrison v. Claybrook (Okl.1962), 372 P.2d 602; RHODE ISLAND: Opinion to the Governor (1952), 79 R.I. 305, 88 A.2d 167; TENNESSEE: Holly v. City of Elizabethton (1951), 193 Tenn. 46, 241 S.W.2d 1001; WEST VIRGINIA: State ex rel. County Court of Marion County v. Demus (1964), 148 W.V. 398, 135 S.E.2d 352.

A minority has struck down such laws on the grounds that the expenditures are for private rather than public purposes. FLORIDA: State v. Clay County Development Authority (Fla., 1962), 140 So.2d 576; GEORGIA: Smith v. State (1966), 222 Ga. 552, 150...

To continue reading

Request your trial
20 cases
  • Libertarian Party of Wisconsin v. State, 95-3114-OA
    • United States
    • United States State Supreme Court of Wisconsin
    • April 9, 1996
    ...is whether the legislation creating local baseball park districts satisfies the public purpose doctrine. In State ex rel. Bowman v. Barczak, 34 Wis.2d 57, 148 N.W.2d 683 (1967), this court recognized that although there is no specific clause in the state constitution establishing the public......
  • State ex rel. Tomasic v. Kansas City, 52961
    • United States
    • United States State Supreme Court of Kansas
    • November 25, 1981
    ...is not violated. See State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis.2d 32, 205 N.W.2d 784 (1973); State ex rel. Bowman v. Barczak, 34 Wis.2d 57, 148 N.W.2d 683 (1967); Redevelopment Authority v. Canepa, 7 Wis.2d 643, 97 N.W.2d 695 Several provisions of the Act as amended in 1981 re......
  • Wisconsin Solid Waste Recycling Authority v. Earl, 75--52
    • United States
    • United States State Supreme Court of Wisconsin
    • November 25, 1975
    ...expressions concerning community need, economic impact, or public purpose. . . .' (Emphasis added.) State ex rel. Bowman v. Barczak (1967), 34 Wis.2d 57, 65, 66, 148 N.W.2d 683, 686. In arriving at its ultimate conclusions as to the constitutionality of the Act, the majority appears to plac......
  • Mitchell v. North Carolina Indus. Development Financing Authority, 532
    • United States
    • United States State Supreme Court of North Carolina
    • March 6, 1968
    ......the Department of Administration for the State of North . Carolina, G. Andrew Jones, Jr., State Budget Officer for the . ... As the Wisconsin court said in State ex rel. Bowman v. Barczak, 34 Wis.2d 57, 148 N.W.2d 683, 687, 'The case before us ......
  • Request a trial to view additional results
1 books & journal articles
  • Wisc. Supreme Court: Beloit subdivision meets public purpose doctrine.
    • United States
    • Wisconsin Law Journal No. 2003, November 2003
    • March 12, 2003
    ...stated in the state's constitution, the court in a number of decisions including State ex rel. Bowman v. Barczak, 42 Wis. 2d 57, 62, 148 N.W.2d 683 (1967), recognized as a constitutional tenet that public appropriations could only be used for public purposes. In several recent cases, such a......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT