(dissenting). I dissent for three reasons. First, the majority’s choice of the appropriate test for determining whether the statutes in this case contravene Wis. Const, art. IV, sec. 18, conflicts with established law. Second, the majority’s adoption of a rational basis test for determining the constitutionality of statutory provisions under art. IV, sec. 18, appears to transform sec. 18 from a provision governing the form of a bill into a provision governing the substance of a bill. The majority opinion adoption of a complex set of rules will foster litigation. Third, even if I were to apply the rational basis test formulated by the majority, I would conclude that the method of funding capital improvements in a metropolitan sewerage district which has included within it a first class city is rationally related to the population-based classification.
*923I.
In determining whether the statutory provisions in issue are private or local laws that contravene Wis. Const, art. IV, sec. 18, the majority opinion departs from the rule set forth in our more recent cases.
The five-part rational basis test that the majority borrows from cases interpreting Wis. Const, art. IV, secs. 31 and 32, and from cases interpreting equal protection guarantees directly conflicts with the court’s holding in Milwaukee Brewers Baseball Club v. Department of Health and Social Services, 130 Wis. 2d 79, 387 N.W.2d 254 (1986). In Brewers the court held: "In a challenge brought under art. IV, sec. 18, it is not relevant to inquire as to whether a rational basis existed for the legislative provision.” Brewers, 130 Wis. 2d at 114.
Indeed the majority opinion in this case substantially adopts the reasoning of Justice Steinmetz’s dissenting and concurring opinion in the Brewers case, at least to some sec. 18 cases. Justice Steinmetz advocated the use of the five-part rational basis test to determine whether a classification is legitimate for purposes of all sec. 18 cases. The court rejected this analysis which Justice Steinmetz derived from his study of Milwaukee County v. Insenring, 109 Wis. 9, 85 N.W. 131 (1901), and Monka v. State Conservation Comm., 202 Wis. 39, 231 N.W. 273 (1930). Justice Steinmetz read those cases as saying that a bill is private or local if it "imposes a burden or confers a benefit upon specified persons or localities, which do not constitute a legitimate class for the purpose of general legislation under the established principles of classification of cities for such purpose.” Milwaukee Brewers, 130 Wis. 2d at 139 (Steinmetz, J. concurring *924in part and dissenting in part) (citing Monka v. State Conservation Comm., 202 Wis. 39, 45-46, 231 N.W. 273 (1930)).
As I read the numerous cases interpreting sec. 18, I conclude that the fundamental question is whether the law is limited to a particular person, place, or thing. Or, as some cases say, whether the classification is closed. If the law is so limited or is a closed classification, the law will not violate sec. 18 as long as the general subject matter of the provision relates to a state responsibility of statewide dimension and its enactment will have direct and immediate effect on a specific statewide concern or interest. Milwaukee Brewers, 130 Wis. 2d at 118-19.
By dividing the cases into three categories and engrafting a five-part rational basis test onto some but not all of the sec. 18 cases, the majority has further complicated this already troublesome area of the law. The courts and legislature need a clear test which can be readily applied to determine whether a provision is a private or local law under sec. 18. The majority’s creating a third category of cases which includes some but not all sec. 18 cases does not fulfill this need.
The case law cited by the majority does not support applying a secs. 31 and 32 rational basis analysis to some but not all of the cases implicating sec. 18. The case law on the relation between sec. 18 and secs. 31 and 32 is neither as clear nor as consistent as the majority opinion suggests.
The three cases upon which the majority relies to engraft art. IV, secs. 31-32 law onto some sec. 18 cases focus on whether the classification in the law is open or closed. In Wagner v. Milwaukee County, 112 Wis. 601, 88 N.W. 577 (1902), and in Whitefish Bay v. Milwaukee Co., 224 Wis. 373, 271 N.W. 416 (1937), the *925statutes were held unconstitutional under sec. 18 because, although the classifications appeared general or open in language, the statutory classifications were actually closed, that is, the statutes really governed a single place, namely Milwaukee county. No county other than Milwaukee could ever fit within the statutes’ classifications. A statute creating a closed classification is the same as legislation that is specific on its face to a certain locality; it is the same as if the legislature referred, for example, specifically to Milwaukee. The court held that such laws are private or local laws that must be passed in conformity with the form requirements of art. IV, sec. 18. Thus the holdings in Wagner and Whitefish Bay did not really rest on a five-part rational basis analysis.
Furthermore, Whitefish Bay suggests that a closed class which is local under sec. 18 can still meet the five-part rational basis test of secs. 31 and 32. 224 Wis. at 378. The Whitefish Bay court intimated that the local law in that case would be valid against a rational basis test because Milwaukee county had special attributes — an urban population and towns, villages and cities of various classes — which justify the private or local law.
The third case upon which the majority relies is Lamasco Realty v. Milwaukee, 242 Wis. 357, 8 N.W.2d 373 (1943). In that case the statutory classification was first class cities. Milwaukee was the only first class city in the state and there was no reasonable probability that there would be other first class cities. The classification was nevertheless open because theoretically other cities could become first class cities. The court upheld the law under secs. 18 and 31.
I do not think Lamasco can be read to impose a secs. 31 and 32 analysis on sec. 18 cases because the *926court’s discussion was brief and did not analyze secs. 18 and 31 separately. The essence of the court’s discussion was an acknowledgment that, while legislation adopting an open population classification does to an extent allow the legislature to evade the constitutional prohibitions of sec. 18 and 31, the court has been willing to uphold this kind of legislation. 242 Wis. at 357. The Lamasco case does not support the majority’s conclusion that this court has adopted the five-part rational basis test for some sec. 18 cases.
I cannot join the majority because the case law upon which the majority opinion relies does not support its analysis and because the majority’s decision to apply a five-part rational basis test to some but not all sec. 18 cases formulates a rule which is unnecessarily burdensome for the legislature and the courts to apply in determining whether the provision is a private or local law under sec. 18.
By departing from its analysis in Brewers and applying a rational basis test to art. IV, sec. 18, the court may be transforming sec. 18 from a rule regulating the form of the legislation to an outright substantive prohibition on the enactment of legislation. Sec. 18 allows the legislature to enact a private or local law if the legislature adopts the measure as a separate bill whose title describes the contents of the law. The purpose of this provision is to guard against the danger of legislation affecting private or local interests being smuggled through the legislature under misleading titles. Sec. 18, unlike sec. 31, is a matter of form, not substance. Brown, The Making of the Wisconsin Constitution, 1952 Wis. L. Rev. 23, 33.
*927However, when a court applies a rational basis test in a sec. 18 case, and the law fails that , test, it would appear that the legislature cannot subsequently adopt the measure as a separate bill unless it abandons the classification. The five-factor test applied by the majority is essentially the rational basis test used to decide whether a statute violates the equal protection guarantees of Wis. Const, art. I, sec. 1, and the Fourteenth Amendment of the federal Constitution.1 Thus if legislation fails under the analytical approach suggested by the majority, the classification apparently also violates art. I, sec. 1, of the Wisconsin Constitution.2 The majority has made a constitutional procedural safeguard into something else altogether.
In this case, the majority opinion holds that, as a matter of law, the classification is bad and the statutes fail the germaneness test. The majority holds that there is nothing about sewerage districts containing cities of the first class that would permit the legislature to grant them the power to charge for capital *928improvements on an ad valorem basis, a power not granted to all other sewerage districts. Majority opinion at pages 912, 914-918. The result of this holding seems to be that the legislation would face an equal protection challenge because the majority opinion has decided the issue as a matter of law. Thus, the result of this case appears to be that the legislature cannot grant a sewerage district with a first class city this kind of power without granting the same power to all other sewerage districts, even if the legislature passed these provisions as a separate bill with an appropriately descriptive title.
This court should not change a constitutional procedural provision into a substantive prohibition.
HH HH HH
Even if the court should apply a five-part rational basis test in some but not all sec. 18 cases, I believe that the conclusion reached in the majority opinion is contrary to established precedent.
This court has said that when a statute is challenged under sec. 18, there is a presumption of constitutionality and the challenger has the burden to prove unconstitutionality beyond a reasonable doubt. Soo Line Railroad Co. v. DOT, 101 Wis. 2d 64, 76, 303 N.W.2d 626 (1981). This presumption of constitutionality is the generally accepted rule when a statute is challenged as special legislation under a state constitution. 2 Sands, Sutherland Statutory Construction sec. 40.06, p. 215 (1986 Rev. ed.)
The presumption of constitutionality has also been consistently applied in cases interpreting art. IV, secs. 31 and 32, from which the majority derives its five-part test for this case. See, e.g., Johnson v. City of *929Milwaukee, 88 Wis. 383, 60 N.W. 270 (1894); Adams v. City of Beloit, 105 Wis. 363, 373, 81 N.W. 869 (1900); State ex rel. Risch v. Trustees, 121 Wis. 44, 54, 98 N.W. 954 (1904).
The majority opinion is silent about the presumption of constitutionality and the assignment of burden of proof. The majority does not presume, as it should, that facts exist which support the legislative determination that the classification is based on real distinctions and that the classification is germane to the purpose of the statute.
Instead, the majority opinion erroneously puts the burden on the party supporting the constitutionality of the legislation to prove that facts exist that support the legislative classification. Majority opinion at page 18. The burden should be on the challenger.
I conclude that the challenger in this case has not overcome the presumption of constitutionality. This is a summary judgment case, and the record consists predominantly of the parties’ briefs filed in the circuit court, copies of statutes, and some depositions and affidavits. If I were to apply the majority’s analysis to the facts presented in this record, I would conclude that the challengers in this case have not met their burden of proving that there are no facts supporting the legislative classification.
Since 1922, this court has recognized that the legislature may govern a sewerage district with a first class city differently from other sewerage districts. Thielen v. Metropolitan Sewerage Comm’n, 178 Wis. 34, 51, 189 N.W. 268 (1922). In West Allis v. Milwaukee County, 39 Wis. 2d 356, 159 N.W.2d 36 (1968), involving the constitutionality of a statute governing the construction and financing of waste-disposal plants in counties with a population in excess of 500,000 (Mil*930waukee), the court took judicial notice that the refuse problems of a metropolitan, urban area are related to concentration of population.
I think that the concentration and density of population in a county with a first class city, the industrial base, the diverse wastes, and the water pollution problems in an urban center, and the history of the difficulties of the Milwaukee Metropolitan Sewerage District in financing construction could well have persuaded the legislature to give sewerage districts with a first class city special treatment in funding capital improvements.
In any event the parties have not had the opportunity to argue this issue. The rational basis was not presented to the circuit court, and the parties did not consider the issue in setting forth their facts before the circuit court. The classification question became a significant issue when this court raised it. Under these circumstances, even if I were to accept the test the majority opinion sets forth, I would ask for additional briefs and argument on this important legal question or remand the case.
For the reasons set forth, I dissent.
I am authorized to state that JUSTICE DONALD W. STEINMETZ joins in this dissent.
In equal protection cases, the court has characterized the five factors which the legislative classification must satisfy as overlapping and has said that the essential question posed by the five factors is whether there are any real differences to distinguish the favored or burdened class. State ex rel. Grand Bazaar v. Milwaukee, 105 Wis. 2d 203, 215, 313 N.W.2d 805 (1982); Kallas v. Millwork Corp. v. Square D Co., 66 Wis. 2d 382, 289, 225 N.W.2d 454 (1975).
For a discussion of secs. 18, 31 and 32, art. IV, and the equal protection guarantee, see Klitsner, Statutes — Special Legislation — Constitutional Prohibition Against Granting or Amending City Charters, Classification and Municipalities, 1941 Wis. L. Rev. 396.