Soo Line R. Co. v. Department of Transp., Division of Highways
| Decision Date | 31 March 1981 |
| Docket Number | No. 80-2087,80-2087 |
| Citation | 303 N.W.2d 626,101 Wis.2d 64 |
| Parties | SOO LINE RAILROAD COMPANY, Plaintiff-Respondent, v. DEPARTMENT OF TRANSPORTATION, DIVISION OF HIGHWAYS, and Lowell Jackson, Defendants-Appellants. |
| Court | Wisconsin Supreme Court |
Charles D. Hoornstra, Asst. Atty. Gen. (argued), Bronson C. La Follette, Atty. Gen., and Daniel S. Farwell, Asst. Atty. Gen., on brief, for defendants-appellants.
Reginald W. Nelson, Richard C. Ninneman (argued) and Whyte & Hirschboeck, S. C., Milwaukee, on brief, for plaintiff-respondent.
This appeal comes to us on certification of the court of appeals. We are reviewing a judgment of the circuit court for Dane county declaring sec. 923(48)(a), ch. 418, Laws of 1977, unconstitutional and enjoining the Wisconsin Department of Transportation from acting in accordance with that law. We affirm the judgment.
The controversy between Soo Line Railroad Company and the Department of Transportation began in February 1975 when the Department petitioned the Public Service Commission pursuant to secs. 195.28 and 195.29, Stats.1975, 1 for approval of a proposed at-grade railroad crossing where relocated state trunk highway 13 crosses the Soo Line Railroad tracks. The state owns the land upon which the crossing would be placed, and the Soo Line has an easement. The Public Service Commission determined that the crossing should be an overhead crossing, not an at-grade crossing as proposed by the Department. An overhead crossing costs substantially more than an at-grade crossing.
The Public Service Commission gave consideration to public safety and determined in its Findings of Fact and Order that:
"Location of a new crossing at grade of relocated State Trunk Highway 13 and the Soo Line railroad track approximately 6,750 feet west of the existing crossing in the Village of Prentice would endanger public safety and is not advisable."
The Department sought judicial review of the Public Service Commission's order in the Dane county circuit court. The circuit court affirmed the Commission's order in October 1977. The Department did not appeal from the circuit court judgment.
Subsequently on May 18, 1978, the Wisconsin legislature enacted ch. 418, Laws of 1977 (1977 Assembly Bill 1220). Chapter 418, commonly known as the "budget review bill," consists of 289 pages and 930 sections, and is entitled:
"AN ACT to amend and revise chapter 20 of the statutes, and to make diverse other changes in the statutes relating to the state finances and appropriations, constituting the budget review bill and making appropriations."
Sec. 923(48)(a) of Chapter 418, which the Soo Line Railroad asserts is unconstitutional, specifically prohibits the Department from constructing an overhead structure at the intersection of state trunk highway 13 and the Soo Line Railroad and specifically directs the Soo Line Railroad and the Department to establish an at-grade crossing, the costs of which are to be paid from state appropriations "as appropriate." Sec. 923(48)(a) provides as follows:
The Soo Line Railroad commenced the present action in the Dane county circuit court on March 17, 1980, 2 challenging the constitutionality of sec. 923(48) (a), ch. 418, Laws of 1977. The Railroad's complaint alleges that sec. 923(48) (a) violates the Wisconsin Constitution in that it constitutes a taking of the Soo Line's property right without due process of law; it impairs the obligation of contracts; it denies the Soo Line fundamental fairness and procedural due process; it denies the Soo Line the equal protection of the laws; it is a private bill, or in the alternative, it is a general bill not uniform in its operation; it constitutes an unlawful encroachment upon the judicial branch by the legislative branch of government; and it violates the exclusive jurisdiction granted to the Public Service Commission. Ruling on motions for summary judgment, the Dane county circuit court concluded that sec. 923(48)(a) violated the constitutional guarantees of due process and enjoined the Department from acting thereunder.
We conclude that sec. 923(48)(a) is a private or local bill, which is unconstitutional because its enactment did not comply with sec. 18, art. IV of the Wisconsin Constitution.
Section 18, art. IV, of the Wisconsin Constitution expressly prohibits a private or local bill from embracing more than one subject and requires the subject of the bill to be expressed in the title. Sec. 18, art. IV, provides as follows:
Sec. 18, art. IV of the constitution was adopted as part of the original state constitution and has remained unchanged. See Journal of the Convention to Form a Constitution for the State of Wisconsin (1846), p. 218. The regulation of private or local bills by constitutional provision is not unique to the Wisconsin Constitution, 3 and sec. 18, art. IV is not the only provision in the Wisconsin Constitution regulating private legislation. 4
State constitutional provisions regulating private, local, and special legislation were adopted in response to the changing conditions in which 19th century state legislatures found themselves. State legislatures were under pressure from their constituents to act on a multitude of subjects. The volume of laws drastically increased, and private or local laws dramatically outnumbered the general laws. 5 The proliferation of laws of limited applicability created the specter of favoritism and discrimination and diverted the legislature's attention from matters of public, state-wide importance. The constitutional proscriptions against special, private or local legislation were intended to prevent the granting of special privileges or the imposition of special disabilities and to encourage the legislature to devote its time to the interests of the state at large. Hurst, The Growth of American Law: The Law Makers, 30, 66, 79, 229, 233-34 (1950); Cloe & Marcus, Special and Local Legislation, 24 Ky.L.J. 351, 355-358 (1936). The constitutional limitations seek to insure that the legislature and the people of the state are advised of the real nature and subject matter of the legislation being considered to avoid fraud or surprise.
Sec. 18, art. IV of the Wisconsin Constitution is designed to protect the public from legislative enactment of statutes whose effect is unknown to legislators and to the people of the state and to direct the legislator's attention to the proposed law to forestall improvident legislation, fraud and surprise. This court expressed the reasoning underlying sec. 18, art. IV, Wis.Const., as follows:
"... Milwaukee County v. Isenring, 109 Wis. 9, 23, 85 N.W. 131 (1901).
The limitation imposed by sec. 18, art. IV, is mandatory, not directory.
"... This Court very early recognized the importance of that limitation upon legislative power, and said that the evident purpose of the framers of the constitution was that it should be given full force and effect, and that there is no justification for treating it as merely directory or sanctioning evasions of it in any way." Milwaukee County v. Isenring, supra, 109 Wis. at 23, 85 N.W. 131.
The constitutional language embodied in sec. 18, art. IV, is easily understood but not easily applied. The terms local and private refer to laws which apply to particular persons, places or things. An accurate, comprehensive definition of these terms has, however, eluded the courts. The task of deciding what constitutes a local or private law as opposed to a general law has been the source of difficulty in this state and in others. 6
To determine whether a law is a local law, this court has in some cases focused on the territorial scope of the legislation. A law is local if it applies to a particular locality to the exclusion of others. In Milwaukee County v. Isenring, 109 Wis. 9, 19-20, 85 N.W. 131 (1901), this court explained:
"... An act is 'general,' as contradistinguished from and inconsistent with 'local,' ... only when its operation extends to the whole state, or perhaps to the whole of some class of localities therein ....
" '(I)f the act be local as to territory, no matter how public it may be in its character, it can contain but one subject, and that must be expressed in the title.' ..." Quoting Sedgwick, Stat. & Const. Law, p. 529. 7
In State ex rel. Richter v. Chadbourne, 162 Wis. 410, 156 N.W. 610 (1916), this court found a law...
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