Burlington Northern, Inc. v. City of Superior

HEFFERNAN, CHIEF JUSTICE

(dissenting). The majority opinion first finds that the exemption within sec. 70.40(1), Stats., for Wisconsin-mined taconite results in discrimination against interstate commerce and then holds that the exemption is not severable from the remainder of the dock tax, thus invalidating sec. 70.40 in its entirety. The majority claims that:

"By including the provision 'Iron ore concentrates taxed under secs. 70.37 to 70.395 are exempt from taxation' within sec. 70.40(1), the legislature manifested its intent that Wisconsin taconite should be exempt from the calculation of the ore concentrates-handling tax. . . .
"Further, an analysis of secs. 70.37-70.395 and sec. 70.40 in tandem suggests that the legislature intended to avoid a double taxation of Wisconsin-*586mined taconite. That intent would be defeated if the unconstitutional exemption were severed." At pages 581, 582.

The majority has incorrectly applied the severability statute, sec. 990.001(11), Stats., in reaching its conclusion. Accordingly, I dissent.

Sec. 990.001(11), Stats., provides, in part, that:

"If any provision of the statutes or of a session law is invalid, or if the application of either to any person or circumstance is invalid, such invalidity shall not affect other provisions or applications which can be given effect without the invalid provision or application."

There is nothing within the meaning of sec. 990.001(11), Stats., which requires the trial court to determine whether the severing of a provision within one statute would invalidate or affect another statute. This court has said in Chicago & Northwestern Transportation Co. v. Pedersen, 80 Wis. 2d 566, 575, 259 N.W.2d 316 (1977), that:

"The intent of the legislature and the viability of the severed portion of the statute when standing alone are the factors to consider when deciding whether a statute should be severed. Material provisions of a statute may be eliminated.
". .if the part upheld constitutes, independently of the invalid portion, a complete law in some reasonable aspect, unless it appears from the act itself that the legislature intended it to be effective only as an entirety and would not have enacted the valid part alone.'" (Citations omitted.)

Section 70.40, Stats., can easily stand alone without the exemption provisions. I would hold the exemp*587tion to be invalid but severable. I would then apply the four-pronged test of Complete Auto Transit, Inc., v. Brady, Chairman, Mississippi Tax Comm., 430 U.S. 274, 279 (1977), to the remainder of the statute to sustain this tax against Commerce Clause challenge.

The court of appeals certified this case on the question whether sufficient nexus exists between Burlington Northern and the City of Superior/State of Wisconsin. Burlington Northern built a new dock at a cost of $70,000,000 to handle taconite pellets, part of which was financed through the issuance of industrial revenue bonds by the City of Superior. About 125 persons were employed at the facility and about 40,000 tons of taconite were handled during the taxable period. These activities unquestionably formed a sufficient nexus between Burlington Northern and the taxing state, as required by Complete Auto.

In footnote 6, at page 584, the majority notes that the legislature has recently amended sec. 70.40(1), Stats., to exclude the exemption for Wisconsin-mined ore. The majority's unwillingness to address the validity of sec. 70.40 under the Complete Auto test leaves the parties in the same position at the end of this lawsuit as at the beginning of it, not knowing whether sec. 70.40 would be sustained under a Commerce Clause challenge. As stated above, I believe it should be sustained and, therefore, I respectfully dissent.