State ex rel. Warren v. Reuter

• Decision Date: 03 October 1969
• Docket Number: No. S,S
• Citation: 44 Wis.2d 201,170 N.W.2d 790
• Parties: STATE ex rel. Robert W. WARREN, Atty. Gen., Petitioner, v. Clarence A. REUTER, Director of Bureau of Finance, Wisconsin Dept. of Administraion, Respondent. tate 29.
• Court: Wisconsin Supreme Court

Page 790

170 N.W.2d 790

44 Wis.2d 201

STATE ex rel. Robert W. WARREN, Atty. Gen., Petitioner, v. Clarence A. REUTER, Director of Bureau of Finance, Wisconsin Dept. of Administraion, Respondent.

No. State 29.

Supreme Court of Wisconsin.

Oct. 3, 1969.

This is an original action commenced in this court pursuant to leave granted upon the petition of Wisconsin Attorney General Robert W. Warren, seeking declaratory relief against the respondent Clarence A. Reuter, Director of the Bureau of Finance, Wisconsin Department of Administration. By stipulation the petition stands as the complaint and requests a declaration that Chapter 3 of the Laws of 1969 is not invalid as violative of the Constitutions of the State of Wisconsin and the United States and an injunction commanding the respondent to honor the appropriation of public funds made by the law. The answer of the respondent admits all the facts contained in the petition and raises several constitutional objections.

Robert W. Warren, Atty. Gen., Allan P. Hubbard, Warren M. Schmidt, Asst. Attys. Gen., Madison, for petitioner.

Michael, Best & Friedrich, Milwaukee, for respondent; John K. MacIver, Frank J. Pelisek and Thomas E. Obenberger, Milwaukee, of counsel.

Foley, Sammond & Lardner, Milwaukee, for Greater Milwaukee Committee Medical Center of Southeastern Wis., amicus curiae.

Robert B. Murphy, Madison and John A. Kluwin, Milwaukee, for State Medical Society of Wis., amicus curiae.

HALLOWS, Chief Justice.

Chapter 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 told this is a token appropriation and that if the law is held constitutional, it is contemplated additional funds will be appropriated. There are presently pending in the legislature bills providing appropriations totaling $3,200,000. Section 39.15 requires the Marquette school of medicine to submit a budget request to the governor at such time as he shall direct and also a copy of the budget request to the coordinating council for higher education. The coordinating council is obliged to conduct a biennial program-analysis and make an advisory report to the governor. The legislative audit bureau must biennially postaudit the expenditures of the appropriated funds so as to assure the propriety of the expenditures and the compliance with legislative intent.

The Marquette medical school has been variously characterized in the briefs as a private institution, a sectarian institution, and an independent quasi-public body. The facts are Marquette School of Medicine, Inc., is a nonprofit corporation organized pursuant to sec. 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 Milwaukee County General Hospital, Milwaukee Children's Hospital, Veterans' Administration Hospital, Milwaukee Psychiatric Hospital, and Curative Workshop of Milwaukee, Inc. The programs with the hospitals are for the purpose of providing staff positions for the medical-school faculty and for teaching and research.

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 11 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 55 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 out-migration of doctors trained in Wisconsin and the emigration 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 that the nation as a whole, with 10.2 percent of its population aged 65 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 the national average physician population ratio from 143/100,000 to 160 doctors per 100,000 people shortly after 1973. The report by the task force recommends Wisconsin physician resources should not be less than the national average and to attain this, Wisconsin must not only keep its present two medical schools and increase their flow of graduates but also establish another medical school.

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, Veteran's 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 education. The committee contemplates a medical school building for the teaching of the basic sciences will be built near the county hospital on county grounds in Milwaukee, which will house the medical school; and if plans progress according to anticipation, this will happen in 1975.

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), 34 Wis.2d 57, 149 N.W.2d 683; State ex rel. La Follette v. Reuter (1967), 36 Wis.2d 96, 113, 153 N.W.2d 49. See also Mills, The Public Purpose Doctrine in Wisconsin, 1957 Wis.L.Rev., 40; Soens v. Racine (1960), 10 Wis. 214 (*271); Heimerl v. Ozaukee County (1949), 256 Wis. 151, 40 N.W.2d 564; State ex rel. Wis.Dev. Authority v. Dammann (1938), 228 Wis. 147, 175, 277 N.W. 278, 280 N.W. 698.

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. City of Milwaukee (1967), 33 Wis.2d 408, 147 N.W.2d 633; Madison Metropolitan Sewerage Dist. v. Committee (1951), 260 Wis. 229, 50 N.W.2d 424; Petition of Breidenbach (1934), 214 Wis. 54, 252 N.W. 366; State ex rel. Thomson v. Giessel (1953), 265 Wis. 558, 61 N.W.2d 903. We recognize, too, that to render a statute unconstitutional, its conflict with a constitutional provision must be clear and free from doubt. Chicago & N.W.R. Co. v. La Follette (1965), 27 Wis.2d 505, 521, 135 N.W.2d 269.

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...