City of Brookfield v. Milwaukee Metropolitan Sewerage Dist.

• Decision Date: 30 August 1988
• Docket Number: No. 86-2318,86-2318
• Citation: 144 Wis.2d 896,426 N.W.2d 591
• Parties: CITY OF BROOKFIELD, Village of Butler, Village of Menomonee Falls, City of Mequon, City of New Berlin, Village of Elm Grove, City of Muskego, Village of Germantown, Village of Thiensville, Richard E. Ensslin, Donald Wenzel and Raymond Gray, Plaintiffs-Respondents, v. MILWAUKEE METROPOLITAN SEWERAGE DISTRICT, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 591

426 N.W.2d 591

144 Wis.2d 896

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

No. 86-2318.

Supreme Court of Wisconsin.

Argued Jan. 5, 1988.

Decided June 29, 1988.

Reconsideration Denied Aug. 30, 1988. ^*

Michael J. McCabe, James H. Petersen, Harold B. Jackson, Jr., and Milwaukee Metropolitan Sewerage Dist., and James P. Brody (argued), Michael A. Bowen and Foley & Lardner, Milwaukee, of counsel, on brief, for defendant-appellant.

Maryann Sumi, Asst. Atty. Gen. (argued), Donald J. Hanaway, Atty. Gen. on brief, Truman Q. McNulty (argued), Thomas E. Griggs (argued), Daniel M. Leep, and Mulcahy & Wherry, S.C.; Schober & Radtke, S.C., New Berlin; George A. Schumus, West Allis; Harold H. Fuhrman, Milwaukee, on brief, for plaintiffs-respondents.

BABLITCH, Justice.

Milwaukee Metropolitan Sewerage District (MMSD) appeals a decision of the Waukesha county circuit court which declared the challenged provisions of 1983 Wis. Act 27 and 1985 Wis.Act 29 unconstitutional as private or local laws impermissibly included in the state budget bill. These provisions, general on their face, concern the method by which sewerage districts containing cities of the first-class must charge their outlying municipalities for capital costs incurred in providing certain sewerage services. We hold that when legislation which arises in a classification context fails the classification tests previously established by this court, it is private or local legislation within the meaning of Art. IV, Sec. 18 Wis. Constitution, and as such must be passed in single subject, clearly titled bills. The challenged provisions fail the classification test and, therefore, cannot be included in an omnibus budget bill. Accordingly, we affirm the circuit court.

The facts are not in dispute. MMSD is a special purpose municipal corporation with its principal facilities and office in Milwaukee county, Wisconsin. It is a sewerage district containing a city of the first-class (first-class sewerage district). MMSD was created by a 1982 legislative reorganization of the existing first-class sewerage districts.

The plaintiffs-respondents (municipalities) are nine municipal corporations and three individual parties, each of whom is an elected official of one of the municipalities. The municipalities are located outside MMSD's boundaries.

The challenged provisions relate to methods by which sewerage districts containing cities of the first-class must charge outlying municipalities for capital costs. Inasmuch as MMSD is such a district, the provisions apply to MMSD.

In the 1983 budget bill the legislature inserted a provision which required that any municipal body that is located outside a first-class sewerage district and that obtains sewerage service from such a district pursuant to contract must be assessed capital charges on the same basis as such charges are assessed within the district. The resulting 1983 provision became sec. 66.898(4)(c), Stats., cited in full below. ¹ The provision was general on its face, and was not specific as to any person, place or thing.

In the 1985 budget bill, Wis.Act 29, the legislature imposed the same requirements with respect to out-of-district municipal bodies that are without contracts. This provision became sec. 66.899, Stats., cited in full below. ² Again, the provision was general on its face, and was not specific as to any person, place or thing.

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

The municipalities, relying upon the requirement of Art. IV, Sec. 18, Wis. Const., that private and local laws be adopted in single topic, specifically titled bills, challenged both provisions. On November 29, 1986, the Waukesha county circuit court, Judge Robert T. McGraw presiding, granted the municipalities' motion for partial summary judgment. The court accepted the municipalities' arguments that under the test articulated in Milwaukee Brewers v. DH & SS, 130 Wis.2d 79, 387 N.W.2d 254 (1986), the legislation was specific to the MMSD and that it had no statewide purpose, and was therefore unconstitutional as a private or local law impermissibly included in the state's budget bills.

MMSD appealed. The court of appeals certified the appeal which was accepted. The question presented is whether the challenged provisions, general on their face, come within the purview of art. IV, sec. 18. We conclude that they do.

I.

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

The Brewers test grew out of this court's most recent interpretation of art. IV, sec. 18. The legislation challenged required a prison to be built on 40 acres in Milwaukee "designated ... with a precision approaching a conveyancer's description." Brewers, 130 Wis.2d at 118, 387 N.W.2d 254. We concluded that:

... "a legislative provision which is specific to any person, place or thing is a private or local law within the meaning of art. IV, sec. 18 unless: 1) the general subject matter of the provision relates to a state responsibility of statewide dimension; and 2) its enactment will have direct and immediate effect on a specific statewide concern or interest." Id. at 115, 387 N.W.2d 254.

With respect to that part of the Brewers opinion relating to Art. IV, Sec. 18, the opinion cited three cases: Milwaukee County v. Isenring and others, 109 Wis. 9, 85 N.W. 131 (1901), Monka v. State Conservation Comm., 202 Wis. 39, 231 N.W. 273 (1930), Soo Line R. Co. v. Transportation Dept., 101 Wis.2d 64, 303 N.W.2d 626 (1981). None of these cases pertained to legislative attempts to classify groups of cities, counties or any other entity. Each case cited, including Brewers, arose in a nonclassification context. Isenring dealt with sheriff's fees in Milwaukee county. Monka dealt with netting fish in Lake Michigan. Soo Line dealt with an at-grade railroad crossing near the Village of Prentice in Price county, Wisconsin. Brewers dealt with a prison on a 40 acre site in Milwaukee county. Two common threads run through these cases: each arose in a nonclassification context, each dealt with provisions that were specific to some person, place or thing.

Brewers recognized, as did Monka and Soo Line, that all legislation which is person, place or entity specific is not necessarily "private or local" within the meaning of art. IV, sec. 18, and that legislation of this type could nevertheless relate to a topic of statewide interest. In an attempt to provide a more workable, understandable, and analytical framework than the "balancing" test previously adhered to, the majority in Brewers enunciated a test designed to provide a narrow "statewide exception" to legislation that was specific on its face. The majority in Brewers concluded that notwithstanding the site specificity of the challenged provisions, the provisions were not "private or local" within the meaning of art. IV, sec. 18 because of the responsibility of the state as a whole in prisons and prisoners, and the immediate effect the construction of a major prison in Milwaukee would have on the entire state prison system.

The provisions challenged here are of a different nature. These provisions relate to an open, single member class. On their face they are not specific as to any person, place or thing. It is true that they apply at present only to the MMSD. But an "at present" effect is tested by determining whether the class is open. If so, its current single-member status is legally unobjectionable, Adams v. The City of Beloit and others, 105 Wis. 363, 81 N.W. 675 (1900); Thielen v. Metropolitan Sewerage Commission, 178 Wis. 34, 189 N.W. 484 (1922). Brewers did not arise in a classification context, nor did any of the cases which Brewers relied on. The municipalities invite us to extend Brewers to classification legislation. We decline to do so.

II.

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

Up until 1871, the only constitutional prohibition against private, local or special legislation was art. IV, sec. 18. That section states in full: "No private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title." It is important to note that the term "private or local" is nowhere defined in the constitution. Thus, much of sec. 18 jurisprudence is substantive analysis of whether the provision is "private or local" within the meaning of sec. 18. Once it is determined that a provision is private or local, the section provides that the legislation must be a single subject bill and the title of the bill must reflect the subject.

Thus, structurally under this section the first question is a substantive analysis of whether a bill is private or local. If so, the second inquiry is a procedural analysis to determine whether the legislation passed in a procedurally proper manner (i.e., as a single...