Sub. (2) (d) does not preclude the state from entering into a lease with a nonprofit corporation or other entity furnishing facilities for governmental functions unless there is an attempt to use the lease as part of a scheme for the state to acquire title to or the use of a facility without utilizing state general obligation bonding. 62 Atty. Gen. 296.
Improving land or improving water under sub. (2) (a) 1. requires an undertaking that improves the quality or condition of the land or water, but does not require that physical structures be involved. 81 Atty. Gen. 114.
VIII,8Vote on fiscal bills; quorum. Section 8. On the passage in either house of the legislature of any law which imposes, continues or renews a tax, or creates a debt or charge, or makes, continues or renews an appropriation of public or trust money, or releases, discharges or commutes a claim or demand of the state, the question shall be taken by yeas and nays, which shall be duly entered on the journal; and three-fifths of all the members elected to such house shall in all such cases be required to constitute a quorum therein. Former s. 70.11 (8m), 1967 stats., imposes a tax on property not previously taxed, and since no roll call votes appear on the legislative journals, it was not validly passed. State ex rel. General Motors Corp. v. City of Oak Creek, 49 Wis. 2d 299, 182 N.W.2d 481 (1971). Past decisions of the court consistently tend to limit the definition of what is a fiscal law and not every bill with a minimal fiscal effect requires a recorded vote. 60 Atty. Gen. 245.
The taking of yea and nay votes and the entry on the journals of the senate and assembly can be complied with by recording the total aye vote together with a listing of the names of those legislators who voted no, were absent or not voting, or were paired on the question. Discussing this section, article V, section 10, and article XII, section 1. 63 Atty. Gen. 346.
VIII,9Evidences of public debt. Section 9. No scrip, certificate, or other evidence of state debt, whatsoever, shall be issued, except for such debts as are authorized by the sixth and seventh sections of this article. The limit on recovery from governmental tortfeasors in former s. 81.15, 1965 stats., and s. 895.43 [now s. 893.80] is not invalid under this section. Stanhope v. Brown County, 90 Wis. 2d 823, 280 N.W.2d 711 (1979). VIII,10Internal improvements. Section 10. [As amended Nov. 1908, Nov. 1924, April 1945, April 1949, April 1960, April 1968, and April 1992] Except as further provided in this section, the state may never contract any debt for works of internal improvement, or be a party in carrying on such works. VIII,10(1)(1) Whenever grants of land or other property shall have been made to the state, especially dedicated by the grant to particular works of internal improvement, the state may carry on such particular works and shall devote thereto the avails of such grants, and may pledge or appropriate the revenues derived from such works in aid of their completion. VIII,10(2)(2) The state may appropriate money in the treasury or to be thereafter raised by taxation for: VIII,10(2)(a)(a) The construction or improvement of public highways. VIII,10(2)(b)(b) The development, improvement and construction of airports or other aeronautical projects. VIII,10(2)(c)(c) The acquisition, improvement or construction of veterans’ housing. VIII,10(2)(e)(e) The acquisition, development, improvement or construction of railways and other railroad facilities. VIII,10(3)(3) The state may appropriate moneys for the purpose of acquiring, preserving and developing the forests of the state. Of the moneys appropriated under the authority of this subsection in any one year an amount not to exceed two-tenths of one mill of the taxable property of the state as determined by the last preceding state assessment may be raised by a tax on property. [1905 J.R. 11, 1907 J.R. 18, 1907 c. 238, vote Nov. 1908; 1921 J.R. 29S, 1923 J.R. 57, 1923 c. 289, vote Nov. 1924; 1943 J.R. 37, 1945 J.R. 3, vote April 1945; Spl. S. 1948 J.R. 1, 1949 J.R. 1, vote April 1949; 1957 J.R. 58, 1959 J.R. 15, vote April 1960; 1965 J.R. 43, 1967 J.R. 25, vote April 1968; 1989 J.R. 52, 1991 J.R. 9, vote April 1992] The Housing Authority Act does not make the state a party to carrying on works of public improvement. State ex rel. Warren v. Nusbaum, 59 Wis. 2d 391, 208 N.W.2d 780 (1973). The Solid Waste Recycling Authority Act does not contravene this section’s prohibition against state participation in internal improvements. Wisconsin Solid Waste Recycling Authority v. Earl, 70 Wis. 2d 464, 235 N.W.2d 648 (1975). The housing assistance program under former s. 560.04 (3), 1985 stats., violates the ban on state involvement in internal improvements. State ex rel. Department of Development v. Building Commission, 139 Wis. 2d 1, 406 N.W.2d 728 (1987). State participation in a proposed convention center in the City of Milwaukee would not violate either the “public purpose” doctrine or the internal improvements prohibitions of this section, so long as such participation is directed solely to the clearly identifiable portion of the center allocated to use as a state-operated tourist information center or some similar state governmental function. A state tax operable only in two or three counties would not be a proper means of operational financing of such a center. 58 Atty. Gen. 119.
The secretary of the Department of Transportation, while acting as agent for airport sponsors, pursuant to s. 114.32, can give the required assurance to the Federal Aviation Administration and provide replacement housing without violating this section. 60 Atty. Gen. 225.
A vocational, technical, and adult education district has authority to purchase buildings for administration purposes or student dormitory housing, and in doing so would not violate the constitutional ban on works of internal improvement. 60 Atty. Gen. 231.
Former ch. 108, laws of 1973, creating a small business investment company fund, contemplates the appropriation of public funds for a valid public purpose, not for works of internal improvement, and is constitutional. 62 Atty. Gen. 212.
Subject to certain limitations, the lease of state office building space to a commercial enterprise serving both state employees and the general public is constitutional. Such leases do not require bidding. 69 Atty. Gen. 121.
Dredging a navigable waterway to alleviate periodic flooding is not a prohibited work of internal improvement. 69 Atty. Gen. 176.
The state’s issuance of general obligation bonds to fund private construction for pollution abatement purposes does not violate this section, article VIII, section 3, or the public purpose doctrine. 74 Atty. Gen. 25.
A New Look at the Internal Improvements and Public Purpose Rules. Eich. 1970 WLR 1113.
VIII,11Transportation Fund. Section 11 [As created Nov. 2014] All funds collected by the state from any taxes or fees levied or imposed for the licensing of motor vehicle operators, for the titling, licensing, or registration of motor vehicles, for motor vehicle fuel, or for the use of roadways, highways, or bridges, and from taxes and fees levied or imposed for aircraft, airline property, or aviation fuel or for railroads or railroad property shall be deposited only into the transportation fund or with a trustee for the benefit of the department of transportation or the holders of transportation-related revenue bonds, except for collections from taxes or fees in existence on December 31, 2010, that were not being deposited in the transportation fund on that date. None of the funds collected or received by the state from any source and deposited into the transportation fund shall be lapsed, further transferred, or appropriated to any program that is not directly administered by the department of transportation in furtherance of the department’s responsibility for the planning, promotion, and protection of all transportation systems in the state except for programs for which there was an appropriation from the transportation fund on December 31, 2010. In this section, the term “motor vehicle” does not include any all-terrain vehicles, snowmobiles, or watercraft. [2011 J.R. 4, 2013 J.R. 1, vote Nov. 2014] EMINENT DOMAIN AND PROPERTY OF THE STATE
IX,1Jurisdiction 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. 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 (1974). 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, Inc. v. City of Wisconsin Dells, 79 Wis. 2d 10, 255 N.W.2d 441 (1977). A fisherman who violated Minnesota and Wisconsin fishing laws while standing on the Minnesota bank of the Mississippi River 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. 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. This section 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. DNR, 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. 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 riparian rights of waterfront property owners are subordinate to the government’s authority to regulate navigable waterways under the public-trust doctrine. In this case, by removing a dam and thereby lowering the river’s water level, the government did not take the owner’s riparian right to the previous water level. The owner had no property right to have the river remain at the previous level. Kreuziger v. Milwaukee County, 60 F.4th 391 (2023). 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 415 (2010).
A Breach of Trust: Rock-Koshkonong Lake District v. State Department of Natural Resources and Wisconsin’s Public Trust Doctrine. Mittal. 98 MLR 1467 (2015).
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.
The “Invisible Lien”: Public Trust Doctrine Impact on Real Estate Development in Wisconsin. Harrington. Wis. Law. May 1996.
IX,2Territorial 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,3Ultimate 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. EDUCATION
X,1Superintendent 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. Fortney v. School District, 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 of Public Instruction. Thompson v. Craney, 199 Wis. 2d 674, 546 N.W.2d 123 (1996), 95-2168. The State Superintendent of Public Instruction’s supervisory authority under this section is an executive function. However, the state superintendent’s powers and duties are set by the legislature. The state superintendent, therefore, has two different sources for its authority. The source for the state superintendent’s rulemaking authority is legislative delegation. Because rulemaking is not “supervision of public instruction” within the meaning of this section, it is of no constitutional concern whether the governor is given equal or greater legislative authority than the state superintendent in rulemaking. Koschkee v. Taylor, 2019 WI 76, 387 Wis. 2d 552, 929 N.W.2d 600, 17-2278. X,2School 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 percent 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,3District 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 (1973). 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 (1974). 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 (1975). School districts are not constitutionally compelled to admit gifted four-year old children into kindergarten. Zweifel v. Joint District No. 1, 76 Wis. 2d 648, 251 N.W.2d 822 (1977). 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 this section and article I, section 1. 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 to 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 the student’s 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.
School Law—The Constitutional Mandate for Free Schools. 1971 WLR 971.
X,4Annual 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,5Income 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,6State 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. Village of West Milwaukee v. Area Board of Vocational, Technical & Adult Education, 51 Wis. 2d 356, 187 N.W.2d 387 (1971). X,7Commissioners 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,8Sale 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.
Discussing state reservation of land and interests in lands under this section, s. 24.11 (3), and former ch. 452, laws of 1911. 65 Atty. Gen. 207.
CORPORATIONS
XI,1Corporations; 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] Former s. 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 this section, and this section is directed only to laws enacted under the provisions of this 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 Wisconsin Constitutions. Wisconsin Solid Waste Recycling Authority v. Earl, 70 Wis. 2d 464, 235 N.W.2d 648 (1975). Creation of the citizens utility board is constitutional. 69 Atty. Gen. 153.
