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eminent domain and property of the state
IX,1 Jurisdiction on rivers and lakes; navigable waters. Section 1. The state shall have concurrent jurisdiction on all rivers and lakes bordering on this state so far as such rivers or lakes shall form a common boundary to the state and any other state or territory now or hereafter to be formed, and bounded by the same; and the river Mississippi and the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of the state as to the citizens of the United States, without any tax, impost or duty therefor.
The boating registration law does not violate this section. State v. Jackman, 60 Wis. 2d 700, 211 N.W.2d 480.
There is no constitutional barrier to the application of s. 30.18, regulating diversion of water, to nonnavigable waters. Omernik v. State, 64 Wis. 2d 6, 218 N.W.2d 734.
The term “forever free" does not refer to physical obstructions but to political regulations that would hamper the freedom of commerce. Capt. Soma Boat Line v. Wisconsin Dells, 79 Wis. 2d 10, 255 N.W.2d 441.
A fisherman who violated Minnesota and Wisconsin fishing laws while standing on the Minnesota bank of the Mississippi was subject to Wisconsin prosecution. State v. Nelson, 92 Wis. 2d 855, 285 N.W.2d 924 (Ct. App. 1979)
An ordinance that provided for exclusive temporary use of a portion of a lake for public water exhibition licensees did not offend the public trust doctrine. State v. Village of Lake Delton, 93 Wis. 2d 78, 286 N.W.2d 622 (Ct. App. 1979).
It is appropriate to extend the public trust doctrine to include navigable waters and the shores appurtenant to ensure public access and free use of the waters. State v. Town of Linn, 205 Wis. 2d 426, 556 N.W.2d 394 (Ct. App. 1996), 95-3242.
A cause of action cannot be based only on a general allegation of a violation of the public trust doctrine. Borsellino v. DNR, 2000 WI App 27, 232 Wis. 2d 430, 605 N.W.2d 255, 99-1220.
There is no constitutional foundation for public trust jurisdiction over land, including non-navigable wetlands, that is not below the ordinary high water mark of a navigable lake or stream. Article IX, Section 1, does not vest the state with constitutional trust powers to “protect" scenic beauty by regulating non-navigable land bordering lakes and rivers. Rock-Koshkonong Lake District v. Department of Natural Resources, 2013 WI 74, 350 Wis. 2d 45, 833 N.W.2d 800, 08-1523.
Riparian rights are the bundle of private property rights that may be conferred upon a property owner by virtue of the owner's contiguity to a navigable body of water, subject to and limited to some extent by the public trust doctrine. Common law riparian rights may include: the right to reasonable use of the waters for domestic, agricultural, and recreational purposes; the right to use the shoreline and have access to the waters; the right to any lands formed by accretion or reliction; the right to have water flow to the land without artificial obstruction; the limited right to intrude onto the lakebed to construct devices for protection from erosion; and the right, conditioned by statute, to construct a pier or structure in aid of navigation. Movrich v. Lobermeier, 2018 WI 9, 379 Wis. 2d 269, 905 N.W.2d 807, 15-0583.
Under the public trust doctrine the state holds the beds underlying navigable waters in trust for all of its citizens. The public rights protected under the public trust doctrine include boating, swimming, fishing, hunting, and preserving scenic beauty. The doctrine traditionally applies to all areas within the ordinary high water mark of the body of water. The public trust doctrine is a limit on riparian rights. Wisconsin common law has established that the right to place structures for access to navigable water is qualified, subordinate, and subject to the paramount interest of the state and the paramount rights of the public in navigable waters. This is true even when the bed is privately held, as long as the body of water is public, navigable, and created by use of public waters. Where a waterbed is privately held, the state has no authority to compel private property owners to accept pier placement. Movrich v. Lobermeier, 2018 WI 9, 379 Wis. 2d 269, 905 N.W.2d 807, 15-0583.
In a flowage easement, title to the property under the flowage may remain with the owner. Although the property rights of owners of the flowage bed are modified to the extent that the public may use the flowage waters for recreational purposes, no private property right of an owner of property adjoining the flowage bed to construct a pier arises from the public trust doctrine. Owners of property adjoining the flowage bed are not entitled to those riparian rights that are incidental to property ownership along a naturally occurring body of water where the lakebed is held in trust by the state. Movrich v. Lobermeier, 2018 WI 9, 379 Wis. 2d 269, 905 N.W.2d 807, 15-0583.
Any rights an owner of property adjoining a flowage bed may enjoy in regard to the man-made body of water created by the flowage easement must be consistent with the bed owner's property rights or the flowage easement's creation of a navigable body of water. The public trust doctrine, when combined with the shoreline location of property adjoining the flowage bed, allows the owners of the adjoining property, as long as they are are using the flowage waters for purposes consistent with the public trust doctrine, their own property rights sufficient to access and exit the Flowage directly from their shoreline property. Movrich v. Lobermeier, 2018 WI 9, 379 Wis. 2d 269, 905 N.W.2d 807, 15-0583.
Portages have lost the protection of the public trust doctrine under this section. 75 Atty. Gen. 89.
The “Invisible Lien": Public Trust Doctrine Impact on Real Estate Development in Wisconsin. Harrington. Wis. Law. May 1996.
That the Waters Shall be Forever Free: Navigating Wisconsin's Obligations Under the Public Trust Doctrine and the Great Lakes Compact. Johnson-Karp. 94 MLR 414 (2010).
A Breach of Trust: Rock-Koshkonong Lake District v. State Department of Natural Resources and Wisconsin's Public Trust Doctrine. Mittal. 98 MLR 1468 (2105).
A New Must of the Public Trust: Modifying Wisconsin's Public Trust Doctrine to Accommodate Modern Development While Still Serving the Doctrine's Essential Goals. Derus. 99 MLR 447 (2015).
Wisconsin's Public Trust Doctrine: A New Framework for Understanding the Judiciary's Role in Protecting Water Resources. Schinner. 2015 WLR 1129.
IX,2 Territorial property. Section 2. The title to all lands and other property which have accrued to the territory of Wisconsin by grant, gift, purchase, forfeiture, escheat or otherwise shall vest in the state of Wisconsin.
IX,3 Ultimate property in lands; escheats. Section 3. The people of the state, in their right of sovereignty, are declared to possess the ultimate property in and to all lands within the jurisdiction of the state; and all lands the title to which shall fail from a defect of heirs shall revert or escheat to the people.
X ARTICLE X.
education
X,1 Superintendent of public instruction. Section 1. [As amended Nov. 1902 and Nov. 1982] The supervision of public instruction shall be vested in a state superintendent and such other officers as the legislature shall direct; and their qualifications, powers, duties and compensation shall be prescribed by law. The state superintendent shall be chosen by the qualified electors of the state at the same time and in the same manner as members of the supreme court, and shall hold office for 4 years from the succeeding first Monday in July. The term of office, time and manner of electing or appointing all other officers of supervision of public instruction shall be fixed by law. [1899 J.R. 16, 1901 J.R. 3, 1901 c. 258, vote Nov. 1902; 1979 J.R. 36, 1981 J.R. 29, vote Nov. 1982]
This section confers no more authority upon school officers than that delineated by statute. Arbitration Between West Salem & Fortney, 108 Wis. 2d 167, 321 N.W.2d 225 (1982).
The legislature may not give any “other officer" authority equal or superior to that of the state superintendent. Thompson v. Craney, 199 Wis. 2d 674, 546 N.W.2d 123 (1996), 95-2168.
The legislature's grant to the governor, and in limited circumstances the secretary of administration, in 2011 Act 21 of the power to halt rulemaking by the state superintendent violated Article X, section I. Coyne v. Walker, 2016 WI 38, 368 Wis. 2d 444, 879 N.W.2d 520, 13-0416.
The provisions of 2011 Wisconsin Act 21 that allow the governor and secretary of administration to permanently halt the rulemaking process are unconstitutional as applied to the superintendent of public instruction and the department of public instruction. Coyne v. Walker, 2016 WI 38, 368 Wis. 2d 444, 879 N.W.2d 520, 13-0416.
X,2 School fund created; income applied. Section 2. [As amended Nov. 1982] The proceeds of all lands that have been or hereafter may be granted by the United States to this state for educational purposes (except the lands heretofore granted for the purposes of a university) and all moneys and the clear proceeds of all property that may accrue to the state by forfeiture or escheat; and the clear proceeds of all fines collected in the several counties for any breach of the penal laws, and all moneys arising from any grant to the state where the purposes of such grant are not specified, and the 500,000 acres of land to which the state is entitled by the provisions of an act of congress, entitled “An act to appropriate the proceeds of the sales of the public lands and to grant pre-emption rights," approved September 4, 1841; and also the 5 percent of the net proceeds of the public lands to which the state shall become entitled on admission into the union (if congress shall consent to such appropriation of the 2 grants last mentioned) shall be set apart as a separate fund to be called “the school fund," the interest of which and all other revenues derived from the school lands shall be exclusively applied to the following objects, to wit:
X,2(1) (1) To the support and maintenance of common schools, in each school district, and the purchase of suitable libraries and apparatus therefor.
X,2(2) (2) The residue shall be appropriated to the support and maintenance of academies and normal schools, and suitable libraries and apparatus therefor. [1979 J.R. 36, 1981 J.R. 29, vote Nov. 1982]
The clear proceeds of fines imposed, at least 50% under s. 59.20 (8) [now s. 59.25 (3) (j)] after the accused forfeits a deposit by nonappearance must be sent to the state treasurer for the school fund. 58 Atty. Gen. 142.
Money resulting from state forfeitures action under ss. 161.555 [now s. 961.555] and 973.075 (4) must be deposited in the school fund. Money granted to the state after a federal forfeiture proceeding need not be. 76 Atty. Gen. 209.
X,3 District schools; tuition; sectarian instruction; released time. Section 3. [As amended April 1972] The legislature shall provide by law for the establishment of district schools, which shall be as nearly uniform as practicable; and such schools shall be free and without charge for tuition to all children between the ages of 4 and 20 years; and no sectarian instruction shall be allowed therein; but the legislature by law may, for the purpose of religious instruction outside the district schools, authorize the release of students during regular school hours. [1969 J.R. 37, 1971 J.R. 28, vote April 1972]
The constitution does not require that school districts be uniform in size or equalized valuation. Larson v. State Appeal Board 56 Wis. 2d 823, 202 N.W.2d 920.
Public schools may sell or charge fees for the use of books and items of a similar nature when authorized by statute without violating this section. Board of Education v. Sinclair, 65 Wis. 2d 179, 222 N.W.2d 143.
Use of the word “shall" in s. 118.155, making cooperation by school boards with programs of religious instruction during released time mandatory rather than discretionary does not infringe upon the inherent powers of a school board. State ex rel. Holt v. Thompson, 66 Wis. 2d 659, 225 N.W.2d 678.
School districts are not constitutionally compelled to admit gifted four-year old children into kindergarten. Zweifel v. Joint Dist., No. 1, Belleville, 76 Wis. 2d 648, 251 N.W.2d 822.
The mere appropriation of public monies to a private school does not transform that school into a district school under this section. Jackson v. Benson, 218 Wis. 2d 835, 578 N.W.2d 602 (1998), 97-0270.
The school finance system under ch. 121 is constitutional under both art. I, sec. 1 and art. X, sec. 3. Students have a fundamental right to an equal opportunity for a sound basic education. Uniform revenue-raising capacity among districts is not required. Vincent v. Voight, 2000 WI 93, 236 Wis. 2d 588, 614 N.W.2d 388, 97-3174.
The due process clause of the 14th amendment includes the fundamental right of parents to make decisions concerning the care, custody, and control of their children, including the right to direct the upbringing and education of children under their control, but that right is neither absolute nor unqualified. Parents do not have a fundamental right direct how a public school teaches their child or to dictate the curriculum at the public school to which they have chosen to send their child. Larson v. Burmaster, 2006 WI App 142, 295 Wis. 2d 333, 720 N.W.2d 134, 05-1433.
The state and its agencies, except the department of public instruction, constitutionally can deny service or require the payment of fees for services to children between age 4 and 20 who seek admission to an institution or program because school services are lacking in their community or district. 58 Atty. Gen. 53.
VTAE schools [now technical colleges] are not “district schools" within the meaning of this section. 64 Atty. Gen. 24.
Public school districts may not charge students for the cost of driver education programs if the programs are credited towards graduation. 71 Atty. Gen. 209.
Having established the right to an education, the state may not withdraw the right on grounds of misconduct absent fundamentally fair procedures to determine if misconduct occurred. Attendance by the student at expulsion deliberations is not mandatory; all that is required is the student have the opportunity to attend and present his or her case. Remer v. Burlington Area School District, 149 F. Supp. 2d 665 (2001).
Intrastate inequalities in public education; the case for judicial relief under the equal protection clause. Silard, White, 1970 WLR 7.
The constitutional mandate for free schools. 1971 WLR 971.
X,4 Annual school tax. Section 4. Each town and city shall be required to raise by tax, annually, for the support of common schools therein, a sum not less than one-half the amount received by such town or city respectively for school purposes from the income of the school fund.
X,5 Income of school fund. Section 5. Provision shall be made by law for the distribution of the income of the school fund among the several towns and cities of the state for the support of common schools therein, in some just proportion to the number of children and youth resident therein between the ages of four and twenty years, and no appropriation shall be made from the school fund to any city or town for the year in which said city or town shall fail to raise such tax; nor to any school district for the year in which a school shall not be maintained at least three months.
X,6 State university; support. Section 6. Provision shall be made by law for the establishment of a state university at or near the seat of state government, and for connecting with the same, from time to time, such colleges in different parts of the state as the interests of education may require. The proceeds of all lands that have been or may hereafter be granted by the United States to the state for the support of a university shall be and remain a perpetual fund to be called “the university fund," the interest of which shall be appropriated to the support of the state university, and no sectarian instruction shall be allowed in such university.
Vocational education is not exclusively a state function. West Milwaukee v. Area Board of Vocational, Technical and Adult Education, 51 Wis. 2d 356, 187 N.W.2d 387.
X,7 Commissioners of public lands. Section 7. The secretary of state, treasurer and attorney general, shall constitute a board of commissioners for the sale of the school and university lands and for the investment of the funds arising therefrom. Any two of said commissioners shall be a quorum for the transaction of all business pertaining to the duties of their office.
X,8 Sale of public lands. Section 8. Provision shall be made by law for the sale of all school and university lands after they shall have been appraised; and when any portion of such lands shall be sold and the purchase money shall not be paid at the time of the sale, the commissioners shall take security by mortgage upon the lands sold for the sum remaining unpaid, with seven per cent interest thereon, payable annually at the office of the treasurer. The commissioners shall be authorized to execute a good and sufficient conveyance to all purchasers of such lands, and to discharge any mortgages taken as security, when the sum due thereon shall have been paid. The commissioners shall have power to withhold from sale any portion of such lands when they shall deem it expedient, and shall invest all moneys arising from the sale of such lands, as well as all other university and school funds, in such manner as the legislature shall provide, and shall give such security for the faithful performance of their duties as may be required by law.
The legislature may direct public land commissioners to invest monies from the sale of public lands in student loans but may not direct a specific investment. 65 Atty. Gen. 28.
State reservation of land and interests in lands under ch. 452, laws of 1911, 24.11 (3) and Art. X, sec. 8 is discussed. 65 Atty. Gen. 207.
XI ARTICLE XI.
corporations
XI,1 Corporations; how formed. Section 1. [As amended April 1981] Corporations without banking powers or privileges may be formed under general laws, but shall not be created by special act, except for municipal purposes. All general laws or special acts enacted under the provisions of this section may be altered or repealed by the legislature at any time after their passage. [1979 J.R. 21, 1981 J.R. 9, vote April 1981]
Section 499.02 (4), 1973 stats., providing that the Solid Waste Recycling Authority's existence may not be terminated while it has outstanding obligations, does not violate the Wisconsin Constitution's reserved power provisions because: 1) The Authority is not a corporation created pursuant to section 1, and section 1 is directed only to laws enacted under the provisions of that section; and 2) any attempt to terminate the authority while it has outstanding obligations would contravene the impairment of contract clauses of both the U.S. and state constitutions. Wisconsin Solid Waste Recycling Auth. v. Earl, 70 Wis. 2d 464, 235 N.W.2d 648.
Creation of the citizens utility board is constitutional. 69 Atty. Gen. 153.
XI,2 Property taken by municipality. Section 2. [As amended April 1961] No municipal corporation shall take private property for public use, against the consent of the owner, without the necessity thereof being first established in the manner prescribed by the legislature. [1959 J.R. 47, 1961 J.R. 12, vote April 1961]
XI,3 Municipal home rule; debt limit; tax to pay debt. Section 3. [As amended Nov. 1874, Nov. 1912, Nov. 1924, Nov. 1932, April 1951, April 1955, Nov. 1960, April 1961, April 1963, April 1966, and April 1981]
XI,3(1)(1)Cities and villages organized pursuant to state law may determine their local affairs and government, subject only to this constitution and to such enactments of the legislature of statewide concern as with uniformity shall affect every city or every village. The method of such determination shall be prescribed by the legislature.
XI,3(2) (2)No county, city, town, village, school district, sewerage district or other municipal corporation may become indebted in an amount that exceeds an allowable percentage of the taxable property located therein equalized for state purposes as provided by the legislature. In all cases the allowable percentage shall be 5 percent except as specified in pars. (a) and (b):
XI,3(2)(a) (a) For any city authorized to issue bonds for school purposes, an additional 10 percent shall be permitted for school purposes only, and in such cases the territory attached to the city for school purposes shall be included in the total taxable property supporting the bonds issued for school purposes.
XI,3(2)(b) (b) For any school district which offers no less than grades one to 12 and which at the time of incurring such debt is eligible for the highest level of school aids, 10 percent shall be permitted.
XI,3(3) (3) Any county, city, town, village, school district, sewerage district or other municipal corporation incurring any indebtedness under sub. (2) shall, before or at the time of doing so, provide for the collection of a direct annual tax sufficient to pay the interest on such debt as it falls due, and also to pay and discharge the principal thereof within 20 years from the time of contracting the same.
XI,3(4) (4)When indebtedness under sub. (2) is incurred in the acquisition of lands by cities, or by counties or sewerage districts having a population of 150,000 or over, for public, municipal purposes, or for the permanent improvement thereof, or to purchase, acquire, construct, extend, add to or improve a sewage collection or treatment system which services all or a part of such city or county, the city, county or sewerage district incurring the indebtedness shall, before or at the time of so doing, provide for the collection of a direct annual tax sufficient to pay the interest on such debt as it falls due, and also to pay and discharge the principal thereof within a period not exceeding 50 years from the time of contracting the same.
XI,3(5) (5)An indebtedness created for the purpose of purchasing, acquiring, leasing, constructing, extending, adding to, improving, conducting, controlling, operating or managing a public utility of a town, village, city or special district, and secured solely by the property or income of such public utility, and whereby no municipal liability is created, shall not be considered an indebtedness of such town, village, city or special district, and shall not be included in arriving at the debt limitation under sub. (2). [1872 J.R. 11, 1873 J.R. 4, 1874 c. 37, vote Nov. 1874; 1909 J.R. 44, 1911 J.R. 42, 1911 c. 665, vote Nov. 1912; 1921 J.R. 39S, 1923 J.R. 34, 1923 c. 203, vote Nov. 1924; 1929 J.R. 74, 1931 J.R. 71, vote Nov. 1932; 1949 J.R. 12, 1951 J.R. 6, vote April 1951; 1953 J.R. 47, 1955 J.R. 12, vote April 1955; 1957 J.R. 59, 1959 J.R. 32, vote Nov. 1960; 1959 J.R. 35, 1961 J.R. 8, vote April 1961; 1961 J.R. 71, 1963 J.R. 8, vote April 1963; 1963 J.R. 44, 1965 J.R. 51 and 58, vote April 1966; 1979 J.R. 43, 1981 J.R. 7, vote April 1981]
Authorizing municipalities to issue revenue bonds to finance industrial development projects, is not an improper delegation of authority in a matter of statewide concern. When the purchase price of property to be acquired is payable exclusively from income or profits to be derived from the property purchased and a mortgage or lien attaches only to that property, no debt is created in violation of this section of the constitution. State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis. 2d 32, 205 N.W.2d 784.
This section does not invalidate provisions of the Solid Waste Recycling Authority Act dealing with required use of the authority's facilities, user charges, and condemnation powers, since the purpose of the act involves a matter of statewide concern. Wisconsin Solid Waste Recycling Auth. v. Earl, 70 Wis. 2d 464, 235 N.W.2d 648.
The provision of s. 144.07 (1m) [now s. 281.34 (1m)], that voids a DNR sewerage connection order if electors in an affected town area reject annexation to the city ordered to extend sewerage service, represents valid legislative balancing and accommodation of 2 statewide concerns, urban development and pollution control. City of Beloit v. Kallas, 76 Wis. 2d 61, 250 N.W.2d 342.
No conflict was found between an ordinance and a statute dealing with related subject matter when the former was paramountly in the local interest and the latter was of statewide concern. State ex rel. Michalek v. LeGrand, 77 Wis. 2d 520, 253 N.W.2d 505.
Coexisting ordinances and statutes prohibiting the same conduct is discussed. State v. Karpinski, 92 Wis. 2d 599, 285 N.W.2d 729 (1979).
Refusal by a city to provide sewerage service to a portion of a town unless inhabitants agreed to annexation of that portion did not violate antitrust law. Town of Hallie v. City of Chippewa Falls, 105 Wis. 2d 533, 314 N.W.2d 321 (1982).
A city ordinance that regulated lending practices of state chartered savings and loans with regard to discrimination was preempted by state statutes. Anchor Savings & Loan Association. v. Madison EOC, 120 Wis. 2d 391, 355 N.W.2d 234 (1984).
Liberally construing home rule authority, a city is not authorized to institute a public safety officer program. Local Union No. 487 v. Eau Claire, 147 Wis. 2d 519, 433 N.W.2d 578 (1989).
Antitrust law demonstrates the legislature's intent to subordinate a city's home-rule authority to its provisions. Unless legislation at least impliedly authorizes a city's anticompetitive action, the city has violated antitrust law. Amer Med. Transp. v. Curtis-University, 154 Wis. 2d 135, 452 N.W.2d 575 (1990).
A school district did not incur indebtedness by entering into a lease-purchase agreement for a new school when the district, by electing not to appropriate funds for the following fiscal year's rental payment, had the option to terminate the agreement with no future payment obligation. Deick v. Unified School District of Antigo, 165 Wis. 2d 458, 477 N.W.2d 613 (1991).
Tax increment financing bonds that a city proposed to issue under s. 66.46 [now s. 66.1105] constituted debt under this section and were subject to the city's debt limits. City of Hartford v. Kirley, 172 Wis. 2d 191, 493 N.W.2d 45 (1992).
The fact that the regulation of sex offenders is a matter of statewide concern does not preclude municipalities from using their home-rule powers to impose further restrictions consistent with those imposed by the state. An ordinance regulating an area of statewide concern is preempted only if: (1) the legislature has expressly withdrawn the power of municipalities to act; (2) the ordinance logically conflicts with state legislation; (3) the ordinance defeats the purpose of state legislation; or (4) the ordinance violates the spirit of state legislation. City of South Milwaukee v. Kester, 2013 WI App 50, 347 Wis. 2d 334, 830 N.W.2d 710, 12-0724.
While the home rule amendment authorizes municipal regulation over matters of local concern and protects that regulation against conflicting state law, state law will still preempt that municipal regulation if it with uniformity affects every city or every village. Madison Teachers, Inc. v. Walker, 2014 WI 99, 358 Wis. 2d 1, 851 N.W.2d 337, 12-2067.
Whether a particular statute relates to a matter of statewide concern is for the courts to determine on a case-by-case basis. Generally, state legislation falls into three categories: 1) those involving matters exclusively of statewide concern; 2) those involving matters entirely of local character; and 3) those that encompass both state and local concerns. When legislation falls under the 3rd category, the court must determine whether state or local concerns are paramount and conduct its analysis accordingly. Milwaukee Police Association v. City of Milwaukee, 2015 WI App 60, 364 Wis. 2d 626, 869 N.W.2d 522, 14-0400.
The uniformity requirement in sub. (1) does not simply mean that a legislative enactment applying to all municipalities passes the test. The language used in the state constitution is “affects," not “applies," indicating that a more substantive analysis is required. Enactments of the legislature that do not affect all cities uniformly are to be subordinate to legislation of cities within their constitutional field. Legislative pronouncements of statewide concern are not controlling, and it is the judiciary that has been charged with the ultimate determination of what is a matter of statewide concern. Milwaukee Police Association v. City of Milwaukee, 2015 WI App 60, 364 Wis. 2d 626, 869 N.W.2d 522, 14-0400.
The scope of legislative activity covered by “ordinances” and “resolutions,” extends to formal and informal enactments that address matters both general and specific, in a manner meant to be either temporary or permanent, and which can be characterized as administrative or otherwise. The court will treat a municipality's legislative device as an ordinance or resolution, regardless of how it may be denominated, so long as it functions within the scope of this definition. There is no legislative action a municipality could take that would not come within the ambit of “ordinance" or “resolution." Consequently, if a statute removes the authority of a municipality's governing body to adopt an ordinance or resolution on a particular subject, the governing body loses all legislative authority on that subject. Wisconsin Carry, Inc. v. City of Madison, 2017 WI 19, 373 Wis. 2d 543, 892 N.W.2d 233, 15-0146.
A 1947 law authorized 1st class cities to assume responsibility for the Employee Retirement System (ERS) under home rule, providing that the city did not amend or alter the ERS to modify the annuities, benefits, or other rights of ERS members. Milwaukee's amendment to its charter ordinance that changed the board size and member voting rights of the ERS was an improper exercise of home rule because it modified “other rights” of members, contrary to state law. Milwaukee Police Association v. City of Milwaukee, 2018 WI 86, 383 Wis. 2d 247, 914 N.W.2d 597, 15-2375.
An agreement to purchase park land whereby a county is to make deferred payments from an existing nonlapsing account, sufficient to cover the entire obligation, secured by mortgaging the property to the grantor, would not create an obligation within the ambit of ch. 67 nor constitute a debt in the context of this section. 63 Atty. Gen. 309.
Local government units cannot include the value of tax-exempt manufacturing machinery and specific processing equipment and tax exempt merchants' stock-in-trade, manufacturers' materials and finished products, and livestock in their property valuation totals for non-tax purposes, such as for municipal debt ceilings, tax levy limitations, shared tax distributions, and school aid payments. 63 Atty. Gen. 465.
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Wisconsin Constitution updated by the Legislative Reference Bureau. Published June 27, 2019. Click for the Coverage of Annotations for the Annotated Constitution. Report errors at 608.504.5801 or lrb.legal@legis.wisconsin.gov.