(dissenting). The Milwaukee Parental Choice Program, sec. 119.23, Stats., was enacted in violation of the procedures man*549dated by Wis. Const, art. IV, sec. 18, and as enacted substantively violates Wis. Const, art. X, sec. 3. It is clear from reading the majority opinion and the concurring opinion that the majority opinion reflects a tacit approval of the policy behind "choice." This is apparent from both the contrived expansion of the presumption of constitutionality and from the exhaustive attempt to portray the Milwaukee Public School system as a complete failure. Because the purported policy of choice is irrelevant to a constitutional challenge, and because the statute is constitutionally infirm both in form and in substance, I dissent.
The respondents challenge the statute on both procedural and substantive grounds. The method of constitutional review under procedural provisions such as art. IV, sec. 18 is distinct from constitutional review of the substance of a statute. As we explained in Brookfield: "In sec. 18 cases, because the.legislature is alleged to have violated a law of constitutional stature which mandates the form in which bills must pass, the court will not indulge in a presumption of constitutionality, for to do so would make a mockery of the procedural constitutional requirement." Brookfield, 144 Wis. 2d at 912-13 n.5. The concept of a "presumption of constitutionality" is inappropriate when discussing legislative procedure.1 One of the rationales that justifies the use of the presumption of constitutionality is that when the legislature follows the constitutionally mandated procedures, the democratic safeguards ensure that the law is the will of the legislature. Not so when a question of constitutional procedure arises.
*550The majority recognizes this principle, majority op. at 520, but ignores it because it concludes that choice was "debated extensively by the legislature and its various committees and agencies." Majority op. at 521. This conclusion is doubly troubling, because choice was never debated by the Senate, and because it also reveals a fundamental misunderstanding of review under art. IV, sec. 18.
The majority's novel and disturbing approach to determining whether a presumption of constitutionality exists derives from the discussion in footnotes 5 and 6 of Brookfield regarding whether a sham or fraud has occurred in the legislature. I disagree with the majority's distillation of Brookfield. Article IV, sec. 18 does more than protect against legislative fraud — it ensures accountability. Quite simply, a legislator must vote separately on private or local matters, and must answer to his or her constituency for those votes. See Brewers, 130 Wis. 2d at 145 (Steinmetz, J., concurring in part and dissenting in part), and 156-58 (Ceci, J., concurring in part and dissenting in part). It begs the question to presume that because the choice program was not "smuggled" that it is not in fact a private or local law.
Review of the level of consideration or deliberation accorded a particular piece of legislation is an improper intrusion into the legislative process. Moreover, it is impossible. The majority's astonishing conclusion that choice was "debated extensively" by the entire legislature, despite the fact that it was neither separately debated nor voted upon in the Senate — as it should have been as a local bill — offers a clear example of the inappropriateness of review by judges of the deliberative process of the legislature. Review under art. IV, sec. 18 should be limited to the face of the bill, and nothing more. I agree with Justice Abrahamson that a presump*551tion of regularity attaches to the legislative procedure. As this court stated in Integration of Bar Case, 244 Wis. 8, 28, 11 N.W.2d 604 (1943): "The law does not presume that a public officer violates his duty." The challenging party should be required to prove that the bill, on its face, is private or local. That proof is manifold.
Regardless of the presumption accorded the choice legislation, it is apparent that its passage as a part of a multi-subject budget bill violated art. IV, sec. 18. The title of the bill, its "experimental" nature, and the startling statistics cited by the majority regarding the Milwaukee Public School system leave no doubt that the law is private and local and intended to apply only to the city of Milwaukee. The statute, as was the bill, is entitled "Milwaukee Parental Choice Program." The text of the statute consistently refers to "the city." And while the title is not a part of a statute, it is a constitutional requirement that the legislature must caption a private or local bill under art. IV, sec. 18. In this case the title demonstrates that the choice program was specifically tailored for Milwaukee.
The majority's exposition of why Milwaukee and its public school system is so different from other cities is self-defeating — the classification under whose aegis this legislation purports to come is cities of the first class, not Milwaukee — and underscores the fact that the program is aimed only at Milwaukee. As the court of appeals noted:
When applying [the Brookfield] test, we cannot consider the specific characteristics of Milwaukee and its social and educational problems, even though it is presently the only member of the class. Our analysis must be limited to the characteristics of the chosen classification. The Brookfield court examined only the general qualities of a first class sewerage district, *552not the characteristics of the Milwaukee area sewerage district.
Davis v. Grover, 159 Wis. 2d 150, 162, 464 N.W.2d 220 (Ct. App. 1990). The majority states that "cities of the first class, by virtue of their large population and concentration of poverty, are substantially distinct from other cities." Majority op. at 528. While it may be fair to characterize Milwaukee as having a "large concentration" of poverty, it cannot be said that all first class cities will necessarily share this attribute. It also cannot be said that the poverty in Milwaukee is necessarily any different or worse than poverty elsewhere in the state. Anyone who is aware of conditions statewide must know that there are areas outside of Milwaukee and outside of incorporated municipalities where poverty is acute. The fact that Milwaukee, which has over 150,000 residents and has declared itself to be a first class city, arguably has numerically more persons living in poverty than smaller cities, does not make it "substantially distinct" from other cities such that "it is necessary for them, as opposed to all other" cities, to have the choice program. Brookfield, 144 Wis. 2d at 916. I conclude that the choice program fails under the first test of Brookfield that "the classification employed by the legislature must be based on substantial distinctions which make one class really different from another." Id. at 907.
The majority goes on to conclude that because choice is "experimental" legislation, the classification is germane to the purpose of the law and therefore is a general, not a private or local law.2 Two things strike me *553about the conclusion that the choice program is experimental. First, it is not clear at all that the program is an experiment. Second, assuming that it is experimental, it is no less private or local. An unconstitutional experiment is unconstitutional.
The majority opinion and Justice Abrahamson's dissenting opinion agree that the choice program is experimental. I am unconvinced that this is so, and if so that is constitutionally irrelevant. Nothing in the language of the statute indicates that it is "experimental." There is no statement of a legislative purpose to conduct an educational experiment. Nothing in the statute provides for expansion of the program if it proves successful. Governor Thompson's veto of the five-year sunset provision detracts from rather than adds to the argument that the legislation is experimental.3 It indicates that the governor, who is a part of the legislative process, vetoed the "experimental" time limitation of the statute. The majority seemingly bases its conclusion that the program is experimental on the fact that public educa*554tion in Milwaukee and across the nation faces severe problems, and from the auditing and reporting provisions contained in sec. 119.23, Stats. If the majority's assertion is that public education across the nation is in the same crisis as Milwaukee, this in itself demonstrates the impropriety of the classification. The remedy, which treats Milwaukee differently, is a non-germane separate classification. In the sense that choice can be inferred to be one legislative attempt to address a serious societal problem, all legislation addressing problems where the solution is not evident is experimental and subject to change in the will of the legislature. The financial audits and reports authorized or mandated by the statute are common ways of reviewing publicly funded programs. Indeed, the majority notes these same provisions in its conclusion that the program satisfies the public purpose doctrine.
While the majority's conclusion that choice is experimental, in the sense that all legislation is, is logically defensible, calling the law "experimental" in the absence of a clearly expressed legislative intent is the type of post-hoc justification this court rejected in Brookfield, 144 Wis. 2d at 918 n.6. And as stated above, from a constitutional point of view it is irrelevant that it may be experimental. On its face, the legislation is not an experiment, and for art. IV, sec. 18 purposes this court should look no further. From the face of the legislative document it is apparent that the legislation specifically was drafted to address the tremendous problems facing the Milwaukee Public School system, and, as Justice Bablitch concludes, and I join in his conclusion, that the legislation is an attempt to provide funding to private schools which are located only within the city of Milwaukee.
*555Experimental legislation is not exempt from the strictures of the constitution. It is not germane to limit the experiment to the largest city in the state, or to any distinct class of cities in the state. I agree with the reasoning of the court of appeals:
Why the experiment should be made only in a first class city is not apparent. That a city has a population of 150,000 and its mayor has proclaimed that it is a city of the first class, as provided in sec. 62.05(l)(a) and (2), Stats., has no relation to whether the experiment should be conducted in such a city. Cities of smaller size may be equally satisfactory sites for this experiment. Nor does a mayoral proclamation show greater suitability for this educational experiment. The city of Madison, for example, meets the population criterion to become a first class city, but has not yet declared itself to be one. Madison would not become a more appropriate site for the experiment merely by making such a proclamation.
Davis, 159 Wis. 2d at 165 (footnote excluded). Thus, the choice legislation fails the second test of Brookfield that "the classification adopted must be germane to the purpose of the law." Brookfield, 144 Wis. 2d at 907.
I conclude that sec. 119.23, Stats., is a private and local law enacted in violation of art. IV, sec. 18. Finally, I am fully in accord with Justice Abrahamson's rationale and conclusion that as enacted the choice legislation substantively violates Wis. Const, art. X, sec. 3.
I respectfully dissent and would affirm the decision of the court of appeals.
For example, it defies reason to consider whether a "rational basis" exists to believe a bill is not private or local. It either is or it isn't. Article IV, sec. 18 refers to a "private or local bill," not a "bill the legislature believes to be private or local.”
The very proposition that the program is "experimental" is an admission that the program is aimed directly at Milwaukee — that is, it is both private and local. Certainly the possibility that Madison, currently the only city other than Milwaukee with *553a population exceeding 150,000, may declare itself a first class city is irrelevant to the structure of the "experiment." Thus, if the program is truly experimental, the Brewers analysis should apply. Under Brewers, 130 Wis. 2d at 113, the legislation would clearly fail because the program will have no "direct and immediate effect" upon a matter of statewide concern. The immediate effects of sec. 119.23, Stats., are local and private. If the legislation is valid as a general law, there is no reason to defend it as experimental.
The majority states that it is "unclear whether the governor felt that the time limitation was too short or too long." Majority op. at 533. This, of course, is irrelevant. What is clear is that the bill which the governor approved has no sunset clause. He specifically vetoed the experimental language of the legislation. All we know is that the governor did not agree that "choice" was a program that was limited to an experimental period.