Although there is no specific clause in the constitution establishing the public purpose doctrine, the doctrine is firmly accepted as a basic tenet of the constitution, mandating that public appropriations may not be used for other than public purposes. Courts are to give great weight and afford very wide discretion to legislative declarations of public purpose but are not bound by such legislative expressions. It is the duty of the court to determine whether a public purpose can be conceived that might reasonably justify the basis of the duty. Town of Beloit v. County of Rock, 2003 WI 8, 259 Wis. 2d 37, 657 N.W.2d 344, 00-1231. Funds may not be used to construct a project that has not been provided for in either the long-range building program or specifically described in the session laws. 61 Atty. Gen. 298.
The constitution does not preclude grants of state money to private parties for the purpose of affording disaster relief under the federal Disaster Relief Act of 1974. An appropriation by the legislature is required, however, to provide the state funding contemplated by the Act. Federal advances under the Act are limited by article VIII, section 6. 64 Atty. Gen. 39.
VIII,3Credit of state. Section 3. [As amended April 1975] Except as provided in s. 7 (2) (a), the credit of the state shall never be given, or loaned, in aid of any individual, association or corporation. [1973 J.R. 38, 1975 J.R. 3, vote April 1975] VIII,4Contracting state debts. Section 4. The state shall never contract any public debt except in the cases and manner herein provided. The Housing Authority Act does not create a state debt even though it calls for legislative appropriations in future years to service payment of notes and bonds. State ex rel. Warren v. Nusbaum, 59 Wis. 2d 391, 208 N.W.2d 780 (1973). An authority’s power to issue notes and bonds does not constitute the creation of a state debt or a pledge of the state’s credit in violation of this article, since the creating act specifically prohibits the authority from incurring state debt or pledging state credit, and the provision of the act recognizing a moral obligation on the part of the legislature to make up deficits does not create an obligation legally enforceable against the state. Wisconsin Solid Waste Recycling Authority v. Earl, 70 Wis. 2d 464, 235 N.W.2d 648 (1975). This section restricts the state from levying taxes to create a surplus having no public purpose. Although the constitutional provision does not apply directly to municipalities, the same limitation applies to school districts because the state cannot delegate more power than it has. Barth v. Board of Education, 108 Wis. 2d 511, 322 N.W.2d 694 (Ct. App. 1982). Because operating notes are to be paid from money in the process of collection, notes are not public debt. State ex rel. La Follette v. Stitt, 114 Wis. 2d 358, 338 N.W.2d 684 (1983). An agreement to pay rent under a long-term lease would amount to contracting a debt unless the lease is made subject to the availability of future funds. 60 Atty. Gen. 408.
Borrowing money from the federal government to replenish Wisconsin’s unemployment compensation fund does not contravene either this section or article VIII, section 3. 71 Atty. Gen. 95.
This section’s limits on “public debt” apply only when the state itself is under a legally enforceable obligation. The State of Wisconsin Investment Board (SWIB) is not an arm of the state but is an independent going concern with independent proprietary powers and functions. SWIB’s investment-management actions with respect to the core retirement investment trust fund do not create debt payable by the state; rather, obligations run against the funds. OAG 2-22.
VIII,5Annual tax levy to equal expenses. Section 5. The legislature shall provide for an annual tax sufficient to defray the estimated expenses of the state for each year; and whenever the expenses of any year shall exceed the income, the legislature shall provide for levying a tax for the ensuing year, sufficient, with other sources of income, to pay the deficiency as well as the estimated expenses of such ensuing year. Deficit reported in financial statements prepared in accordance with generally accepted accounting principles would not violate this section. 74 Atty. Gen. 202.
VIII,6Public debt for extraordinary expense; taxation. Section 6. For the purpose of defraying extraordinary expenditures the state may contract public debts (but such debts shall never in the aggregate exceed one hundred thousand dollars). Every such debt shall be authorized by law, for some purpose or purposes to be distinctly specified therein; and the vote of a majority of all the members elected to each house, to be taken by yeas and nays, shall be necessary to the passage of such law; and every such law shall provide for levying an annual tax sufficient to pay the annual interest of such debt and the principal within five years from the passage of such law, and shall specially appropriate the proceeds of such taxes to the payment of such principal and interest; and such appropriation shall not be repealed, nor the taxes be postponed or diminished, until the principal and interest of such debt shall have been wholly paid. The constitution does not preclude grants of state money to private parties for the purpose of affording disaster relief under the federal Disaster Relief Act of 1974. An appropriation by the legislature is required, however, to provide the state funding contemplated by the Act. Federal advances under the Act are limited by this section. 64 Atty. Gen. 39.
VIII,7Public debt for public defense; bonding for public purposes. Section 7. [As amended April 1969, April 1975, and April 1992] VIII,7(1)(1) The legislature may also borrow money to repel invasion, suppress insurrection, or defend the state in time of war; but the money thus raised shall be applied exclusively to the object for which the loan was authorized, or to the repayment of the debt thereby created. VIII,7(2)(2) Any other provision of this constitution to the contrary notwithstanding: VIII,7(2)(a)(a) The state may contract public debt and pledges to the payment thereof its full faith, credit and taxing power: VIII,7(2)(a)1.1. To acquire, construct, develop, extend, enlarge or improve land, waters, property, highways, railways, buildings, equipment or facilities for public purposes. VIII,7(2)(b)(b) The aggregate public debt contracted by the state in any calendar year pursuant to paragraph (a) shall not exceed an amount equal to the lesser of: VIII,7(2)(b)1.1. Three-fourths of one per centum of the aggregate value of all taxable property in the state; or VIII,7(2)(b)2.2. Five per centum of the aggregate value of all taxable property in the state less the sum of: a. the aggregate public debt of the state contracted pursuant to this section outstanding as of January 1 of such calendar year after subtracting therefrom the amount of sinking funds on hand on January 1 of such calendar year which are applicable exclusively to repayment of such outstanding public debt and, b. the outstanding indebtedness as of January 1 of such calendar year of any entity of the type described in paragraph (d) to the extent that such indebtedness is supported by or payable from payments out of the treasury of the state. VIII,7(2)(c)(c) The state may contract public debt, without limit, to fund or refund the whole or any part of any public debt contracted pursuant to paragraph (a), including any premium payable with respect thereto and any interest to accrue thereon, or to fund or refund the whole or any part of any indebtedness incurred prior to January 1, 1972, by any entity of the type described in paragraph (d), including any premium payable with respect thereto and any interest to accrue thereon. VIII,7(2)(d)(d) No money shall be paid out of the treasury, with respect to any lease, sublease or other agreement entered into after January 1, 1971, to the Wisconsin State Agencies Building Corporation, Wisconsin State Colleges Building Corporation, Wisconsin State Public Building Corporation, Wisconsin University Building Corporation or any similar entity existing or operating for similar purposes pursuant to which such nonprofit corporation or such other entity undertakes to finance or provide a facility for use or occupancy by the state or an agency, department or instrumentality thereof. VIII,7(2)(e)(e) The legislature shall prescribe all matters relating to the contracting of public debt pursuant to paragraph (a), including: the public purposes for which public debt may be contracted; by vote of a majority of the members elected to each of the 2 houses of the legislature, the amount of public debt which may be contracted for any class of such purposes; the public debt or other indebtedness which may be funded or refunded; the kinds of notes, bonds or other evidence of public debt which may be issued by the state; and the manner in which the aggregate value of all taxable property in the state shall be determined. VIII,7(2)(f)(f) The full faith, credit and taxing power of the state are pledged to the payment of all public debt created on behalf of the state pursuant to this section and the legislature shall provide by appropriation for the payment of the interest upon and instalments of principal of all such public debt as the same falls due, but, in any event, suit may be brought against the state to compel such payment. VIII,7(2)(g)(g) At any time after January 1, 1972, by vote of a majority of the members elected to each of the 2 houses of the legislature, the legislature may declare that an emergency exists and submit to the people a proposal to authorize the state to contract a specific amount of public debt for a purpose specified in such proposal, without regard to the limit provided in paragraph (b). Any such authorization shall be effective if approved by a majority of the electors voting thereon. Public debt contracted pursuant to such authorization shall thereafter be deemed to have been contracted pursuant to paragraph (a), but neither such public debt nor any public debt contracted to fund or refund such public debt shall be considered in computing the debt limit provided in paragraph (b). Not more than one such authorization shall be thus made in any 2-year period. [1967 J.R. 58, 1969 J.R. 3, vote April 1969; 1973 J.R. 38, 1975 J.R. 3, vote April 1975; 1989 J.R. 52, 1991 J.R. 9, vote April 1992] The Housing Authority Act does not violate sub. (2) (d) because the housing constructed is not for state use. State ex rel. Warren v. Nusbaum, 59 Wis. 2d 391, 208 N.W.2d 780 (1973). An authority’s power to issue notes and bonds does not constitute the creation of a state debt or a pledge of the state’s credit in violation of this article, since the creating act specifically prohibits the authority from incurring state debt or pledging state credit, and the provision of the act recognizing a moral obligation on the part of the legislature to make up deficits does not create an obligation legally enforceable against the state. Wisconsin Solid Waste Recycling Authority v. Earl, 70 Wis. 2d 464, 235 N.W.2d 648 (1975). The debt limitations imposed are annual limitations but nevertheless have the effect of establishing an aggregate state debt limitation of five percent of the total value of all taxable property in the state plus the amount of debt sinking fund reserves on hand. 58 Atty. Gen. 1.
State debt financing under s. 32.19 is permissible. 62 Atty. Gen. 42.
Issuance of general obligation bonds to finance a state fair park coliseum is authorized by s. 20.866 (2) (zz) and is not violative of the state constitution. 62 Atty. Gen. 236.
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]
