State ex rel. La Follette v. Reuter

• Decision Date: 03 October 1967
• Parties: STATE of Wisconsin on the relation of Bronson C. La FOLLETTE, Attorney General, Petitioner, v. Clarence A. REUTER, Director of Finance, Respondent.
• Court: Wisconsin Supreme Court

Page 49

153 N.W.2d 49

36 Wis.2d 96

STATE of Wisconsin on the relation of Bronson C. La

FOLLETTE, Attorney General, Petitioner, v. Clarence A. REUTER, Director of Finance, Respondent.

Supreme Court of Wisconsin.

Oct. 3, 1967.

Bronson C. La Follette, Atty. Gen., William F. Eich, Asst. Atty. Gen., Madison, for petitioner.

Van Alstyne, Hoffman & Feifarek, Madison, for respondent.

HANSEN, Justice.

The attorney general seeks a peremptory writ of mandamus to compel the respondent to honor a $75.64 voucher and requisition. We deem the prayer for declaratory judgment on the questions raised of constitutionality to be determinative of all issues to be considered by this court.

The issues are as follows:

(1) Do secs. 84.40--84.42, Stats., constitute classification prohibited by sec. 1, art. I, Wisconsin constitution, and do they deny equal protection of the law to the citizenry of Wisconsin?

(2) Does sec. 84.42, Stats., violate sec. 31, art. IV, Wisconsin constitution, in that it constitutes a special or private law?

(3) Does sec. 84.40, Stats., violate sec. 2, art. VIII, Wisconsin constitution, in that it authorizes payment of state funds for purposes that do not pertain to matters of statewide public interest or public purpose?

(4) Do secs. 84.40--84.41, Stats., violate sec. 3, art. VIII, Wisconsin constitution, in that they give or lend credit of the state?

(5) Do secs. 84.40--84.41, Stats., violate sec. 4, art. VIII, or sec. 10, art. VIII, Wisconsin constitution, in that they authorize the creation of a public debt, or in that they provide for expenditure of public monies on private highways?

First issue--Does the act constitute classification prohibited by the constitution, and does it deny equal protection of the law to the citizenry of Wisconsin?

It has long been established that there is a basic and strong presumption supporting the constitutionality of any classification made by the legislature. This principle is well enunciated in Servonitz v. State (1907), 133 Wis. 231, 239, 113 N.W. 277, 280:

'In considering the subject we must bear in mind that the policy of classification is a matter wholly within legislative discretion, and that whether there is room for the classification made in any given case is primarily a legislative question and can never become a judicial one except for the purpose of determining, in any given situation, whether legislative action passed the boundaries of reason, reasonable doubts to be resolved in the negative.'

This court further considered the matter of legislative classification in Kiley v. Chicago, M. & St. P.R. Co. (1910), 142 Wis. 154, 159, 125 N.W. 464, 466:

'As to the provision exempting shop and office employe § from the operations of the act, a different question arises. This is undoubtedly classification, or rather subclassification, of employe s. Subclassification of a class is entirely permissible but like all other classification, it must be based upon real distinctions germane to the purpose of the law, and suggesting at least the propriety of substantial difference in legislation. On the other hand, the question whether there is room or necessity for classification is one resting primarily with the legislature, and no court is justified in declaring classification baseless unless it can say without doubt that no one could reasonably conclude that there is any substantial difference justifying different legislative treatment. State v. Evans, 130 Wis. 381, 110 N.W. 241; Servonitz v. State, 133 Wis. 231, 113 N.W. 277 * * *. Nor is classification to be condemned by the courts because the situation of certain individuals in one class may not differ materially from the situation of certain individuals in another class. Such is frequently the case. It is the class considered broadly as a class, which must possess the distinguishing differences of situation calling for different legislation, not every individual in the class.' (Emphasis added)

Later certain standards were enumerated in State ex rel. Ford Hopkins Co. v. Mayor etc. (1937), 226 Wis. 215, 222, 276 N.W. 311. These standards are as follows:

'(1) All classification must be based upon substantial distinctions which make one class really different from another.

'(2) The classification adopted must be germane to the purpose of the law.

'(3) The classification must not be based upon existing circumstances only.

'(4) To whatever class a law may apply, it must apply equally to each member thereof.

'Johnson v. City of Milwaukee, 88 Wis. 383, 390, 60 N.W. 270.

'In State ex rel. Risch v. Board of Trustees, 121 Wis. 44, 54, 98 N.W. 954, 957, the same general rules are held essential for a constitutional classification, with the following addition to No. (3):

"It must not be so constituted as to preclude addition to the numbers included within a class.'

'And by adding a fifth rule, as follows:

"(5) That the characteristics of each class should be so far different from those of other classes as to reasonably suggest at least the propriety, having regard to the public good, of substantially different legislation."

Respondent urges that sec. 84.42, Stats., is constitutionally violative to all five standards set forth in Ford Hopkins, supra. We do not agree with this contention. As recently as State ex rel. Sonneborn v. Sylvester (1965), 26 Wis.2d 43, 132 N.W.2d 249, it was held that sec. 1, art. I, Wisconsin constitution, is the equivalent of the equal protection clause of the fourteenth amendment of the United States constitution, and that generally they are considered to apply to laws and ordinances that regulate persons or businesses. The standard of reasonableness referred to in Ford Hopkins, supra; Servonitz v. State, supra; Kiley v. Chicago, M. & St. P.R. Co., supra; is to be utilized in conjunction with the basic requirements for classification. Thus when the presumption of constitutional validity is combined with the standards of classification, it follows that the presumption is superimposed upon the standards so that to declare an act of the legislature as to a classification violative of the equal protection clause, it is first necessary to prove that the legislature has abused its discretion beyond a reasonable doubt.

In State ex rel. Baer v. City of Milwaukee (1967), 33 Wis.2d 624, 633, 148 N.W.2d 21, 26 (considering a city ordinance case), this court referred to the standards of classification as promulgated in Ford Hopkins, supra, and stated:

'Before appellant can avail himself of these rules to challenge any distinctions among classes of recreation or classes of pool halls, he again must overcome a presumption that the classifications are reasonable and proper. * * *'

The strong presumption as to the validity of the classification has not been overcome and the statutes do not violate sec. 1., art. I, of the Wisconsin constitution.

Second issue--Do these statutes violate sec. 31, art. IV, of the Wisconsin constitution, in that they constitute a special or a private law?

Sec. 31, art. IV, Wisconsin constitution, provides:

'The legislature is prohibited from enacting any special or private laws in the following cases.

'2d. For laying out, opening or altering highways, except in cases of state roads extending into more than one county, and military roads to aid in the construction of which lands may be granted by congress.'

Since its enactment in 1871, and its amendment in 1892, sec. 31, art. IV, has been applied to a wide and divergent variety of cases. The sweeping gamut of this action has inevitably resulted in a construction of what is meant by 'special or private legislation' on a case-by-case and act-by-act analysis. Consequently, the historical objectives and purposes of this section are important because, necessity has demanded the evaluation of many different acts and policies during the development of the state.

Kimball v. Town of Rosendale (1877), 42 Wis. 407, 415, discussed the constitutional amendment of 1871 which became sec. 31, art. IV, of our constitution:

'It is impossible to mistake the object or spirit of this amendment. For years, the statute books had been encumbered with multitudinous acts of the several kinds prohibited; vicious not only in quantity but in quality. In some of the instances prohibited, they meddled in purely private matters; authorizing what might be done without the authority or with judicial authority. In other instances, they conferred special authority in cases within general authority. And in all instances relating to things publici juris, they broke the uniformity and harmony of law so essential to good government; substituted special for general rules, and rendering a large body of the municipal law fragmentary in character, and different by locality. After long endurance of such excesses of legislation, the amendment of 1871 was adopted; in order, so far as it went, to confine legislation to its legitimate objects, to substitute general for special enactments, and to restore order and uniformity to municipal law. And we cannot doubt that, except so far as power over any of the nine several subjects is reserved by other provisions of the constitution, the amendment was intended to withdraw them, and does effectually withdraw them, from any exercise of legislative authority over them, by private or special statutes. * * *'

In determining the constitutionality of a particular statute, as it relates to this section of the constitution, the courts have been motivated by such polar factors as curing the abuses which prompted the 1871 amendment and the overwhelming desirability of the particular statute then under consideration.

Furthermore, this court has repeatedly held that repugnance between a legislative act and the express provisions of the constitution must be clear and irreconcilable before a statute will be held invalid. See Madison Metropolitan Sewerage Dist. v. Committee on Water Pollution (1951), 260 Wis. 229, 50 N.W.2d 424.

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