Representative Shabaz asked unanimous consent that Assembly Bill 866 be withdrawn from the Joint Committee on Finance and referred to the committee on Rules. Granted.
1 9 7 7 A S S E M B L Y
Assembly Journal of February 10, 1977 .......... Page: 242
Point of order:
Representative Schneider rose to the point of order that Assembly Bill 61 [relating to exempting from levy limits sewage treatment service charges assessed by a separate taxing unit of government] was required to be referred to the Joint Survey Committee on Tax Exemptions.
The speaker [Jackamonis] ruled the point of order not well taken.
Senate Journal of March 16, 1978 .......... Page: 2002
[Point of order:]
Senator Sensenbrenner raised the point of order that Senate Bill 400 is required to be referred to the Joint Survey Committee on Tax Exemptions. The chair took the point of order under advisement.
Senate Journal of March 27, 1978 .......... Page: 2114
On Thursday, March 16, Senator Sensenbrenner raised the point of order that Senate Bill 400 created a tax exemption and was therefore required to be referred to the Joint Survey Committee on Tax Exemptions pursuant to s. 13.52 (6) of the statutes. The chair took the point of order under advisement.
Section 13.52 (6) provides that "any proposal which .... creates any new statute relating to the exemption of any property or person from any state or local taxes or special assessments .... shall at once be referred to the Joint Survey Committee on Tax Exemptions ...." Senate Bill 400 provides, in part, that counties may provide law enforcement services to localities within the county and may charge the localities for services provided.
The bill provides that for cities and villages "such expenses shall be certified, returned and paid as are other county charges."
The bill further provides that for unincorporated areas "the county board may levy a tax upon all real and personal property in any unincorporated area .... to reimburse the county for reasonable expenses incurred in providing such services"....
Senator Sensenbrenner contends that because Senate Bill 400 authorizes counties to levy a direct tax on unincorporated areas but does not authorize such a tax on incorporated areas that a tax exemption has thereby been created.
It is the chair's opinion that before there can be an exemption there must first be taxation. Senate Bill 400 does not exempt incorporated areas from a county tax. Rather, it is silent on the matter with the result that incorporated areas are not subject to such a tax in the first place.
Legislation which creates a tax and applies it to a certain class of people or property cannot properly be said to have simultaneously created an exemption for all other people or property not taxed.
Therefore, Senate Bill 400 does not create a tax exemption in the sense contemplated by s. 13.52 (6) and the point of order raised by Sensenbrenner is not well taken.
Prior to raising a point of order Senator Sensenbrenner questioned whether Senate Bill 400 would meet the constitutional requirement that "The rule of taxation shall be uniform ...." It is not within the jurisdiction of the chair to rule on questions of constitutionality. Therefore the chair remains silent on the matter.
FRED A. RISSER
President pro tempore
Senate Journal of February 7, 1978 .......... Page: 1648
[Point of order:]
638 Senator Sensenbrenner raised the point of order that section 13.256 of the Wisconsin Statutes requires that Assembly Bill 754 [relating to revising the inland lake protection
and rehabilitation law] be referred to the Joint Survey Committee on Tax Exemptions. The chair took the point of order under advisement.
Senate Journal of February 14, 1978 .......... Page: 1684
On Tuesday, February 7, 1978, Senator Sensenbrenner raised the point of order that Assembly Bill 754 must be referred to the Joint Survey Committee on Tax Exemptions pursuant to sec. 13.52 of the Wisconsin statutes. Senator Sensenbrenner contended that such reference was required by virtue of the adoption of senate amendment 1, which would exempt certain property from the general property tax. The chair took the point of order under advisement.
This particular issue has been raised from time to time in both the Senate and Assembly, but a definitive ruling on the subject has never surfaced. The chair would like to take this opportunity to offer such a ruling for the record.
Assembly Bill 754 as messaged from the Assembly makes various changes in Chapter 33 of the Wisconsin statutes (Public Inland Lake Protection and Rehabilitation). None of the changes relate to a tax exemption.
However, senate amendment 1 to Assembly Bill 754 would exempt property owned by any public inland lake protection and rehabilitation district from the general property tax.
Section 13.52 (6) of the Wisconsin statutes requires that "upon the introduction in either house of the legislature of any proposal which affects any existing statute or creates any new statute relating to the exemption of any property or person from any state or local taxes or special assessments, such proposal shall at once be referred to the Joint Survey Committee on Tax Exemptions by the presiding officer ...."
Section 13.52 (5) requires that the Joint Survey Committee on Tax Exemptions report on the desirability of "each legislative proposal which would modify existing laws or create new laws relating to the exemption of property or persons from any state or local taxes or special assessments."
The question is whether this statutory language requires a bill to be referred (or rereferred) to the tax exemption committee each time an amendment (or substitute amendment) proposing to create (or change) a tax exemption is introduced (or adopted).
The statutory language is particulary unenlightening in this case because there is no indication whether the word "proposal" is meant to include amendments and substitute amendments as well as original bills.
Existing legislative records on s. 13.52, which was originally passed and signed into law as Chapter 153, Laws of 1963, yield no clues.
Therefore, the chair must look for other indications of legislative intent.
The phrase "upon the introduction in either house" in s. 13.52 is significant, for original measures are "introduced", while amendments and substitute amendments are "offered".
The phrase "shall at once be referred to the Joint Survey Committee on Tax Exemptions by the presiding officer" is also helpful because only original measures, not amendments, are referred to committee by the presiding officer.
Halfway through s 13.52 (6) the word "proposal" is dropped and the word "bill" substituted, thus lending further credence to the supposition that the section applies only to original bills and not to amendments or substitute amendments.
Neither Senate nor joint rules contain a definition of "proposal", but the Assembly has seen fit to define the word in Assembly rule 97 (61). The Assembly definition includes motions, resolutions, joint resolutions and bills but does not include amendments or substitute amendments.
639 Even though this issue has been before the legislature previously, the chair was able to find only one Senate ruling which clearly states that only original bills are to be referred to the tax exemptions committee.
In 1971 Senator Hollander raised the point of order that Senate amendment 8 (to Assembly substitute amendment 1 to Senate Bill 805) must first be referred to the Joint Survey Committee on Tax Exemptions "because of the type of legislation it proposes".
The chair ruled that "senate amendment 8 .... need not be referred to committee, unless it was introduced as a bill". (1971 Senate Journal, page 2052).
If the chair were to reverse this precedent and interpret the statutes as requiring tax exemption amendments to be referred to committee then delay of legislation, not more thorough study of it, would be the result as often as not.
If a majority of Senators feel that senate amendment 1 to Assembly Bill 754, or any other amendment, does indeed merit study by the tax exemptions committee, a simple majority vote can accomplish the task.
For all these reasons the chair must rule that only original bills are required to be referred to the tax exemption committee and that amendments or substitute amendments are not required or intended to be so referred.
FRED A. RISSER
President pro tempore
Senate Journal of June 29, 1977 .......... Page: 933
[Point of order:]
Senator Goyke raised the point of order that Senate Bill 1 [relating to free small game licenses for residents over 65 years of age] was required to be referred to the Joint Survey Committee on Tax Exemptions. The chair took the point of order under advisement.
Senate Journal of June 29, 1977 .......... Page: 944
Earlier today Senator Goyke raised the point of order that Senate Bill 1 constituted a tax exemption and therefore was required to be referred to the Joint Survey Committee on Tax Exemptions pursuant to sec. 13.52 of the Wisconsin Statutes. The chair took the point of order under advisement.
Senate Bill 1 would grant free small game licenses to Wisconsin residents who are 65 years of age or over. The point of order raised by Senator Goyke goes to the very heart of the difference between a "license fee" and a "tax".
A license is defined as "a formal permission to do something; especially, authorization by law to do some specified thing." Similarly, a "fee" is defined as "a charge fixed by law .... for use of a privilege."
A tax, on the other hand, is defined as the "requirement to pay a percentage of income, property value, etc. for the support of government." These definitions make clear the distinction between the two.
Historically, the primary purpose of licensing and license fees is to regulate activity. It is true that license fees raise revenue, but that is simply an ancillary effect. In fact, many license fees are set only at a level sufficient to pay the cost of regulation.
Taxes, on the other hand, are enacted primarily to raise revenue. Taxes can regulate activity, but that is usually a secondary effect.
640 The Wisconsin Supreme Court in State ex rel. Atty. Gen. v. Wisconsin Constructors, 222 Wis. 279 said: "The distinction between taxes and fees is quite clear. 'Taxes', it was said in
Fitch v. Wisconsin Tax comm. 201 Wis. 383, 'are the enforced proportional contributions from persons and property, levied by the state by virtue of its sovereignty for the support of government and for all public needs' ...Taxes are imposed for the purpose of general revenue. License and other fees are ordinarily imposed to cover the cost and expense of supervision or regulation."
The distinction between taxing and licensing is admittedly blurred on many occasions but, in the opinion of the chair, the distinction in this case is sufficiently clear. The fee required to obtain a small game license is not a tax in the generally understood meaning of the word and therefore does not come within the purview of sec. 13.52 and the Joint Survey Committee on Tax Exemptions.
License fee exemptions similar to Senate Bill 1 have been acted on and passed by earlier legislatures without being referred to the Joint Survey Committee on Tax Exemptions.
Chapter 628, Laws of 1965, which provides that members of the armed forces be issued free fishing licenses and small game hunting licenses without charge is a good example.
Therefore, it is the chair's opinion that the point of order is not well taken.
Sincerely
Senator FRED A. RISSER
President pro tempore
Senate Journal of January 13, 1977 .......... Page: 34
[Background:]
Senate Joint Resolution 7, [to amend section 1 of article VIII of the constitution, relating to allowing the legislature to provide relief to persons for the tax imposed relating to improvements made on homes (1st consideration)]. Read first time and referred to Joint Survey Committee on Tax Exemptions.
Senate Joint Resolution 8, [to amend section 1 of article VIII of the constitution, relating to property tax exemption for the homestead property of residents aged 65 or older (1st consideration)]. Read first time and referred to Joint Survey Committee on Tax Exemptions.
Senator Theno asked unanimous consent that Senate Joint Resolutions 7 and 8 be considered for action at this time. Senator Berger objected.
Senate Journal of January 13, 1977 .......... Page: 43
[Point of order:]
Senator Theno raised the point of order that Senate Joint Resolutions 7 and 8 were constitutional amendments and therefore were not required to be referred to the Joint Survey Committee on Tax Exemptions pursuant to 13.52 Wis. Stats. The chair took the point of order under advisement.
Senate Journal of January 20, 1977 .......... Page: 73
On Thursday, January 13, 1977, Senator Theno raised the point of order that Senate Joint Resolutions 7 and 8 were constitutional amendments and therefore were not required to be referred to the Joint Survey Committee on Tax Exemptions pursuant to sec. 13.52 Wis. Stats. The chair took the point of order under advisement.
641 Section 13.52 (5) sets forth the powers and duties of the committee. "It is the purpose of this committee to provide the legislature with a considered opinion of the legality of the proposal, of the fiscal effect upon the state and its subdivisions and of the desirability as a
matter of public policy of each legislative proposal which would modify existing laws or create new laws relating to the exemption of property or persons from any state or local taxes or special assessments."
The powers and duties section, 13.52 (5), and the report section, 13.52 (6), mention in specific: (5) "each legislative proposal which would modify existing laws or create new laws" and (6) "proposal which affects any existing statute or creates any new statute".
It is the chair's opinion that Senate Joint Resolutions 7 and 8, which are constitutional amendments, do not "affect any existing statute or create any new statute", nor do they "modify existing laws or create new laws". Therefore, the joint resolutions would not be required by law to be referred to the Joint Survey Committee on Tax Exemptions.
A similar point of order was raised in June of 1975, journal page 954 and in February of 1973, journal page 427. It is the opinion of the chair that these earlier rulings were based on sound reasoning and the chair upholds its earlier position.
Therefore, the point of order is well taken.
FRED A. RISSER
President pro tempore
Senate Journal of January 20, 1977 .......... Page: 74
[Point of order:]
Senator Sensenbrenner raised the point of order that, pursuant to senate rule 20, Senate Joint Resolutions 7 and 8 were required to be referred to a senate standing committee not a joint statutory committee. The chair took the point of order under advisement.
Senate Journal of February 1, 1977 .......... Page: 124
As it relates to the point of order raised by Senator Sensenbrenner that Senate Joint Resolutions 7 and 8 are required by senate rule 20 to be referred to a senate standing committee, the chair rules the point of order is not well taken.
Senate rule 20 does not require that measures be referred to standing committees as opposed to statutory committees. There is nothing in any of the senate rules that does not allow referral to a statutory committee. The joint resolutions are properly in the Joint Survey Committee on Tax Exemptions.
FRED A. RISSER
President pro tempore
Senate Journal of March 28, 1978 .......... Page: 2158
[Point of order:]
Senator Theno moved that Senate Joint Resolution 8 be withdrawn from Joint Committee on Tax Exemptions and referred to committee on Senate Organization.
Senator Berger raised the point of order that a written report on Senate Joint Resolution 8 was necessary to withdraw it from the Joint Survey Committee on Tax Exemptions. The chair took the point of order under advisement.
