
    Income Tax Cases. State ex rel. Bolens vs. Frear, Secretary of State, and others. Winding and others, Appellants, vs. Frear, Secretary of State, and others, Respondents.
    
      November 20, 1911
    
    March 12, 1912.
    
    SUPREME Court: Jurisdiction. (1-15) Original jurisdiction, when exercised: Questions publici juris: Prerogative writs: Actions by the state: Private relators: Taxpayers’ actions: Restraining expenditures by state officers under invalid statute: Questions determined.
    
    Circuit Courts: Jurisdiction. (10) Injunction: Prerogative writs. (35) Taxpayers’ actions.
    
    Taxation op Incomes: Constitutional Law. (16-34) Equal protection of the laws: Rouble taxation: Land and income therefrom: Classification: Different rates: Progressive rates: Exemptions: Nonresidents: Partnerships: Corporations: Corporate bonds: What included in "income:” Rental value of residence: Income of wife and children: Officers: Local self-government: Assessors of incomes, how elected or appointed: Tax commission: Delegation of legislative power.
    
    Statutes. (15, 20, 29-34) Construction: Partial invalidity: Retroactive law.
    
    1. Actions against the state, brought in the supreme court by virtue of the consent of the state given in sec. 3200, Stats. (1898), are not within the purview of the decision in this case, and nothing said in the opinion is to be construed as having any bearing on that section or actions under it.
    
      2. The original jurisdiction of the supreme court is a jurisdiction reserved for the use of the state itself when it appears to he necessary to vindicate or protect its prerogatives or franchises or the liberties of its people: the state uses it to punish or prevent wrongs to itself or to the whole people.
    3. The state in such a case is always the plaintiff and the only plaintiff, whéther the action he brought by the attorney general or, against his consent, on the relation of a private individual under the permission and direction of the court. The private relator is a mere incident; he brings the public injury to the J attention of the court, and the court by virtue of the power granted by the constitution commands that the suit be brought by and for the state.
    4. Cases falling within the following general classes have been held to be properly within the original jurisdiction of the supreme „ court, i. e., those in which (l)'a citizen is wrongfully deprived of his liberty; (2) a state office has been usurped; (3) a franchise grantable only by the state has been usurped, abused, or forfeited; (4) a law regulating public-service corporations in the interests of the people is systematically disobeyed and set at naught; (5) a navigable river which the state is bound to keep open as a highway for all is obstructed or encroached upon, or a public railroad built under a.charter granted by the state is about to be destroyed; (6) a state officer declines to perform a ministerial duty in the performance of which the people at large have a material interest; (7) a state officer is about to perform an official act materially affecting the interests of the people .at large, which is contrary to law or imposed upon him by the terms of a law which violates constitu- ■ tional provisions; (8) the situation is such, in a matter publici juris, that the remedy in the lower courts is entirely lacking or absolutely inadequate, and hence jurisdiction must be taken ' or justice will be denied.
    5. It is not meant by this classification that cases may not arise which will call for the exercise of the original jurisdiction, although they may not fall within either of the classes named.
    6. A case, although involving a question piiblioi juris, will not come within the original jurisdiction if it be only local in its effect, subject only to the exception named in the eighth class above mentioned.
    7. A case involving a mere private interest, or one whose primary purpose is to redress a private wrong, will'not be entertained.
    8. A case will not be dismissed, however, because there is a private interest involved with the public, interest, provided the private interest be incidental merely and the vindication of the public right be the primary purpose of the action.
    
      9.An action involving a private as well as a public interest will not be dismissed merely because the private interest may drop out, provided the public and private interests be severable and the public interest still exists.
    10. The cpnstitution has not given the circuit court the power to use the writ of injunction as a prerogative jurisdictionál writ, as it has been given to the supreme court; hence the circuit court has not the power, in an action not brought by the attorney general but on the relation of a private individual, to use the writ for prerogative purposes.
    11. A taxpayer’s action (as that action is known in the circuit court) wherein the taxpayer himself is the actual party, representing not the whole people or the state but a comparatively limited class, is not within the original jurisdiction of the supreme court.
    12. The original jurisdiction may, however, properly be used at the instance and upon the relation of a private individual to stay by proper writ the expenditure of the state’s funds for purposes expressly or by necessary implication forbidden by the constitution; but the action in such a case is the action of the state, not the action of the taxpaying relator.
    13. Where state officials are about to spend the state’s money in ' executing an unconstitutional law, an action may, by leave of the court, be brought in the name of the state to prevent the threatened misapplication of its funds; but the'court will judge of the exigency in each case, and will endeavor to guard against the use of its original jurisdiction in trifling cases or to accomplish ulterior purposes.
    14. The income tax law (ch. 658, Laws of 1911) makes such a sweeping change in general taxation policy and in methods of taxation throughout the state, and the resulting confusion would be so great if, after being in operation for a year or two, it should be held invalid, that a serious question as to the constitutionality of the law is a question seriously affecting the prerogatives of the state and the liberties of the people, and justifies the exercise of the original jurisdiction of the supreme court in an action, brought for the purpose of testing the validity of the law, to restrain administrative officers from expending state moneys in executing the same.
    15. In such an action only those questions will be determined which may be considered as relating to the validity of the whole act, leaving for future consideration, as concrete cases may arise, the questions relating to the validity of minor provisions as to matters of detail.
    16. Under sec. 1, art. VIII, Const., as amended, taxation of property and taxation of incomes are recognized as separate and distinct things, and both are permitted.
    
      17. The taxation of land itself and also of the income derived therefrom, as .provided in ch. 658, Laws of 1911, does not violate the XIVth amendment, Const, of U. S., guaranteeing “equal protection of the laws.”
    18. Said XIVth amendment does not lay upon the states an unbending rule of equal taxation: they may make exemptions, levy different rates upon different classes, tax such property as they choose, and make such deductions as they choose, so long as they obey their own constitutions and proceed within reasonable limits and general usage.
    19. The progressive feature in the taxation of incomes under ch. 658, Laws of 1911, by which the rate is graduated according to the size of the taxable income, is expressly authorized by the state constitution and is not within the inhibition of the XIVth amendment, Const, of U. S.
    80. Whether, under sec. 2, art. IV, Const, of U. S. (providing that the “citizens of each state shall he entitled to all privileges and immunities of citizens in the several states”), the provisions of ch. 658, Laws of 1911, which deny to nonresidents exemptions which are allowed to residents are valid, is not determined. If invalid, their invalidity does not affect the act as a whole.
    21. The provision in said act which allows an assessment against a nonresident to be increased without notice, although in case of a resident notice must be given, does not violate sec. 2, art. IV, Const, of U. S. '
    22. The office of assessor of incomes, provided for in the act, is not a county, city, town, or village office, nor is it an office which existed in substance when the state constitution was adopted or which is essential to the existence or efficiency of either of the said municipal divisions. It is therefore not covered by the guaranties of local self-government found in sec. 4, art. VI, and sec. 9, art. XIII, Const.; and under the latter section such assessors may be elected or appointed in any way the legislature may direct.
    23. It is not a delegation of legislative power to vest in the state tax commission, by law, the power of appointing assessors of incomes and fixing their salaries.
    24. A classification by which exemptions allowed to individuals are denied to partnerships is based upon substantial differences between classes, does not involve unjust discrimination, and is valid.
    25. S9, also, a classification under which an exemption of life insurance to the amount of $10,000 is allowed to one legally dependent on the deceased, though denied to other persons, is valid.
    
      26. The provision that a taxpayer who has paid a personal property tax for the year may have the amount so paid credited upon his income tax, does not involve any invalid classification.
    27. Income, within the meaning of sec. 1, art. VIII, Const., as amended, need not he money, hut may he that which is convertible into money; and the estimated rental of residence property occupied hy the owner thereof may properly, as provided in the act, he taxed as a part of the owner’s income.
    28. The provision that the income of a wife living with her husband shall he added to his income, and the income of each child under eighteen years of age living with its parents shall he added to that of the parents, involves a classification based on substantial differences and is valid.
    29. Neither the fact that incomes for the entire year 1911 are to he taxed, although the law did not go into effect until July 15th of that year, nor the fact that profits derived from the sale of property purchased at any time within three years previously are to he included, renders the law retroactive or void.
    30. Whether the provision (in sec. 1087m, — 22) that the income of a resident of the state derived from different political subdivisions thereof shall he combined for the purpose of determining the exemptions and the rate, while the income of a nonresident is to he separately assessed and taxed in each of the municipalities from which it is derived, — thus discriminating in some instances against residents hy subjecting their incomes in part to higher rates, — is in violation of sec. 2, art. IV, Const, of II. S., not determined.
    31. That part of sec. 1087m — 6 which provides a rate of taxation for the incomes of corporations different from the rate prescribed for individuals, involves a classification based' upon substantial differences and is valid.
    32. Although the act in terms includes all corporations and does not specifically except national hanks nor name the officers whose salaries cannot he constitutionally taxed, that fact does not invalidate it. If national hanks or any public officers cannot constitutionally be subjected to the tax the law will be construed as not applying to them.
    33. Whether the provisions, in sec. 1087m, — 2, under which the incomes of nonresidents are to he taxed so far as derived from sources within the state, and incomes derived from business interstate in its character are to he taxed on that portion thereof which is derived from business transacted and property located in the state (to he ascertained as therein stated), are valid, is not determined.
    34. Whether the provision, in sec. 1087m, — 3 (h), that a portion of the interest on corporate bonds (to he ascertained as therein provided) shall he taxed against the bondholders, and if not paid by them shall be enforced against the corporation and may then be deducted from the next interest payment on the bonds, is valid, not determined.
    35. No taxpayers’ action against auditing or disbursing officers of the state, to prevent them from paying moneys out of the state treasury, can be maintained in the circuit court.
    Marshall, J., dissents in part.
    Timlin, J., dissents in part.
    Kerwin and Barnes, JJ., took no part in the decision of the question of jurisdiction.
    Obiginal action brought in this court on the relation of Harry W. Bolens against James A. Brear, Secretary of State, and others; also
    Appeal from an order of the circuit court for Dane county: E. Rat Stevens, Circuit Judge.
    
      Affirmed.
    
    The facts are stated in the opinion.
    Eor the relator, Bolens, there was a brief by Carpenter & Boss, and oral argument by Benjamin Boss.
    
    For the appellants Winding and others there was a brief by Flanders, Bottwm, Fawsett & Bottwm, attorneys, and a separate brief by Geo. D. Van Dyke, of counsel, and oral argument by J. G. Flanders, C. F. Fawsett, and Geo. D. Vam Dylse. t
    
    In support of the various contentions as to the invalidity of ch. 658, Laws of 1911, there were cited, in the briefs above mentioned, the following, among other authorities: Pollock ■v. Farmers’ L. & T. Co. 157 U. S. 429, 580, 581, 15 Sup. Ct. 673; Brown v. Maryland, 12 Wheat. 419, 444; Weston v. •Charleston, 2 Pet. 449; Dobbins v. Comm’rs, 16 Pet. 435; Kermard v. Manchester, 68 1ST. H. 61, 36 Atl. 553; Second Ward Sav. Bank v. Milwaukee, 94 Wis. 587, 595, 69 N. W. 359; Kingsley v. Merrill, 122 Wis. 185, 200, 99 N. W. 1044; Philadelphia & S. S. Co. v. Pennsylvania, 122 U. S. 326, 7 Sup. Ct. 1118; Black v. State, 113 Wis. 205, 89 N. W. 522; Magoun v. Ill. T. <& S. Bank, 170 U. S. 283,18 Sup. Ct. 594; Kochersperger v. Drake, 167 Ill. 122, 47 N. E. 321; Estate 
      
      of Cope, 191 Pa. St. 1, 21, 43 Atl. 19; Estate of Mahoney, 133 Cal. 180, 65 Pac. 389; Huber v. Martin, 121 Wis. 412, 434, 105 N. W. 1031, 1135; Yick Wo v. Hopkins, 118 U. S. 356, 369, 6 Sup. Ct. 1064; Bell’s Gap B. Co. v. Pennsylvania, 134 U. S. 232, 237, 10 Sup. Ct. 533; Blauson v. Bocine, 13 Wis. 398; State ex rel. Dwinnell v. Gaylord, 73 Wis. 316, 325, 41 N. W. 521; O’Connor v. Fond du Lac, 109 Wis. 253, 264, 265, 85 N. W. 327; Baihbone v. Wirth, 150 N. Y. 459, 469, 45 N. E. 15; 8 Cyc. 779 et seq.; State ex rel. Williams v. Samuelson, 131 Wis. 499, 111 N. W. 712; TJnionB. T. Co. v. Kentucky, 199 U. S. 194, 26 Sup. Ct. 36; Selliger v. Kentucky, 213 U. S. 200, 29 Sup. Ct. 429; Metropolitan L. Ins. Co. v. New Orleans, 205 U. S. 395, 27 Sup. Ct. 499; Buck v. Beach, 206 U. S. 392, 400, 27 Sup. Ct. 712; State Tax on Foreign-held Bonds, 15 Wall. 300, 319 ; Chicago <$> N. W. B. Co. v. State, 128 Wis. 553, 108 N. W. 557; Beals v. State, 139 Wis. 544, 121 N. W. 347; 37 Cyc. 811; Wis. Cent. B. Co. v. Taylor Co. 52 Wis. 37, 87, 8 N. W. 833; Knowlton v. Moore, 178 U. S. 41, 82, 20 Sup. Ct. 747; State ex rel. Wink-ler v. Benzenberg, 101 Wis. 172, 76 N. W. 345; Essex Co¡. Park Comm. v. West Orange, 77 N. J. Law, 575, 73 Atl. 511, 512; State v. Whitcom, 122 Wis. 110, 99 N. W. 468; State ex rel. Bisch v. Trustees, 121 Wis. 44, 98 N. W. 954; Phipps v. Wis. Cent. B. Co. 133 Wis. 153, 113 N. W. 456; South Nashville St. B. Co. v. Morrow, 87 Téuu. 406, 11 S. W. 348, 2 L. R. A. 853; Wcvrd v. Maryland, 12 Wall. 418; Sprague v. Fletcher, 69 Vt. 69, 37 Atl. 239; 37 L. R. A. 840; In re Stanford’s Estate, 126 Cal. 112, 54 Pac. 259 ; Oliver v. Washington Mills, ll Allen, 268; Connolly v. Union 8. P. Co. 184 U. S. 540, 560, 561, 567, 22 Sup. Ct. 431; Clark v. Kansas City, 176 U. S. 114, 119, 20 Sup. Ct. 284; Cotting v. Kansas City S. Y. Co. 183 U. S. 79, 22 Sup. Ct. 30; Gulf, C. & S. F. B. Co. v. Ellis, 165 U. S.-150, 159, 160, 17 Sup. Ct. 255; W. C. Peacock •& Co. v. Pratt, 121 Eed. 772, 776; Northern. Pac. B. Co. v. Walker, 47 FecL 681; Philadelphia F. Asso. v. 
      New York, 119 U. S. 110, 120, 121, 1 Sup. Ct. 108; 8cm Mateo Co. v. Southern Pac. B. Co. 13 Red. 722, 733; Nunne-macher v. State, 129 Wis. 190, 223, 108 N. W. 627; People v. Raymond, 37 N. Y. 428; State ex rel. TIessey v. Daniels, 143 Wis. 649, 128 N. W. 565; Kirtland v. Hotchkiss, 100 U. S. 491, 498; New' Orleans v. Stempel, 175 U. S. 309, 20 Sup. Ct. 110; Tappan v. Merchants’ Nat. Bank, 19 Wall. 490; Orleans Parish v. New York L. Ins. Co. 216 U. S. 517, 523, 30 Sup. Ct. 385; U. S. v. Brie B. Co. 106 U. S. 327, 1 Sup. Ct. 223; Hartman v. Greenhow, 102 U. S. 672, 684; Owensboro Nat. Bank v. Owensboro, 173 U. S. 664, 19 Sup. Ct. 537; Opinion of the Justices, 53 N. H. 634; Dyer v. Melrose, 197 Mass. 99, 83 N. E. 6; Dyer v. Melrose, 215 U. S. 594, 30 Sup. Ct. 410; Hamilton v. Fond du Lac, 25 Wis. 496; Richards v. Tarr, 42 Nan. 547, 22 Pac. 557.
    Eor tbe defendants and respondents there was a brief by tbe Attorney General and Bussell Jackson, deputy attorney general; a separate brief by J. B. Dodge, special counsel for tbe state; separate briefs by Geo. G. Greene, counsel; and oral argument by Mr. Jackson, Mr. Dodge, and Mr. Greene.
    
    They cited, besides other cases, Glasgow v. Bowse, 43 Mo. 479; Wilcox v. County Comm’rs, 103 Mass. 544; Drexel &■ Co. v. Comm. 46 Pa. St. 31; Comm. v. Brown, 91 Ya. 762, 21 S. E. 357; New Orleans v. Hart, 14 La. Ann. 803; W. C. Peacock & Co. v. Pratt, 121 Red. 772; Wintz v. Gerardey, 31 La. Ann. 381, 388; Waring v. Mayor, etc. 60 Ga. 93, 99; Alderman v. Wells, 85 S. C. 507, 67 S. E. 781; Seligman, Income Tax, ch. 5, and eases cited; Nennan, Income Taxation, ch. 1; Black v. State, 113 Wis. 205, 89 N. W. 522; Nunne-macher v. State, 129 Wis. 190,108 N. W. 627; Beals v. State, 139 Wis. 544, 121 N. W. 347 \Magoun v. III. T. & S. Bank, 170 U. S.-283, 18 Sup. Ct. 594; Billings v. Illinois, 188 U. S. 97, 104, 23 Sup. Ct. 272; Blackstone v. Miller, 188 U. S. 189, 23 Sup. Ct. 277 ; Clark v. Titusville, 184 U. S. 329, 22 Sup. Ct. 382; Kochersperger v. Drake, 167 Ill. 122, 47 N. E. 321; Knowlton v. Moore, 178 IJ. S. 41, 20 Sup. Ct. 747; Flint v. Stone Tracy Go. 220 TI. S. 107, 31 Sup. Ct. 342; In re Appointment of Revisor, 141 Wis. 592, 124 N. W. 670; Ex parte Gerino, 143 Cal. 412, 77 Pac. 166; 23 Am. & Eng. Ency. of Law (2d ed.) 328, 342, 394; 27 id. 603, 618; Chicago &-N. W. R. Go. v. State, 128 Wis. 553, 108 N. W. 557; State v. Bullen, 143 Wis. 512,128 N. W. 109 ; Matter of Cornell, 170 N. Y. 423, 63 N. E. 445; Froihingham v. Shaw, 175 Mass. 59, 55 N. E. 623; Liverpool & L. & G. Ins. Go. v. Board, 221 U. S. 346, 356, 31 Sup. Ct. 550; 37 Cyc. 802, 805, 824; Metropolitan L. Ins. Go. v. New Orleans, 205 IJ. S. 395, 27 Sup. Ct. 499; New Orleans v. Stempel, 175 IT. S. 309, 20 Sup. Ct. 110; Kidd v. Alabama, 188 U". S. 730, 23 Sup. Ct. 401; Bristol v. Washington Go. 177 IJ. S. 133, 20 Sup. Ct. 585; Bonaparte v. Tax Court, 104 U. S. 592; Simpson v. Hopkins, 82 Md. 478, 33 Atl. 714; People v. M. S. & N. I. R. Go. 4 Mick 398; U. S. v. Erie R. Go. 106 IJ. S. 327, 1 Sup. Ct. 223 $ Railroad Go. v. Collector, 100 U. S. 595; State Railroad Tax Oases, 92 U. S. 575, 607; Blaclcstone v. Miller, 188 IT. S. 189, 204, 23 Sup. Ct. 277; Bell’s Gap R. Go. v. Pennsylvania, 134 IJ. S. 232, 10 Sup. Ct. 533; Savings & L. Soc. v. Multnomah Co. 169 IJ. S. 421, 427, 18 Sup. Ct. 392; Society for Sawings v. Goite, 6 Wall. 607; Kidd v. Alabama, 188 U. S. 730, 733, 23 Sup. Ct. 401, 402; Cooley, Taxation (3d ed.) 387 et seq.j St. Joseph v. Ernst, 95 Mo. 360, 367, 8 S. W. 558; Drexel v. Gomm. 46 Pa. St. 31; Cooley, Const. Lim. (2d ed.) 291, 309; Stockdale v. Ins. Gos. 20 Wall. 323, 331; Schuylkill Nav. Go. v. Elliott, 21 Fed. Oas. 762; U. S. Trust Go. v. New Mexico, 183 IJ. S. 535, 22 Sup. Ct. 172; Flanders v. Merrimack, 48 Wis. 567, 4 N. W. 741; Morrow v. Green Bay, 55 Wis. 112, 12 N. W. 437; People ex rel. Metropolitan St. R. Go. v. Tax Gomm’rs, 199 U. S. 1, 46, 47, 25 Sup. Ct. 705; Tucker v. Ferguson, 22 Wall. 527; Delaware Railroad Tax, 18 Wall. 206; Hoge v. R. & D. R. Go. 99 IJ. S. 348; Davidson v. New Orleans, 96 U. S. 97; Memphis G. L. Go. v. Taxing Dist. 109 IJ. S. 398, 3 Sup. Ct. 205; Merchants’ & M. Bank v. Pennsylvania, 167 U. S. 461, 463, 17 Sup. Ct. 829; Travellers’ Ins. Co. v. Connecticut, 185 U. S. 364, 371, 372, 22 Sup. Ct. 673; State v. Clement Nat. Bank, 84 Vt. 167, 78 Atl. 944, 952; Cooley; Const. Lim. (7tb ed.) 574; Paul v. Virginia, 8 Wall. 168, 180; McKane v. Durston, 153 IJ. S. 684, 687, 14 Sup. Ct. 913; Dwryea v. Muse, 117 Wis. 399, 406, 407, 94 N. W. 365 ; London County Council v. Att’y Gen. [1901] App. Cas. 26, 45; Tstradyfodwg <& P. M. S. B. v. Bensted, [1907] App. Cas. 264; Tennant v. Smith, [1892] App. Oas. 150, 164; Corke v. Pry, 32 Scot. L. Eep. 341, 3 Tax Cas. 335; Mc-Dougall v. Sutherland, 31 Scot. L. Eep. 630, 3 Tax Oas. 261; Pratt & Eedman, Income Tax Law (8tb ed.) 1, 13, 14, note.
    A brief was filed by F. C. Winkler, as amicus curiae, upon the question whether the court has or should exercise jurisdiction in these actions.
    In a brief filed by Miller, Mack & Fairchild, as amici curice, they contended that the tax imposed by ch. 658, Laws of 1911, is levied directly upon receipts from interstate and foreign commerce, and is therefore a regulation of interstate and foreign commerce, in violation.of sec. 8, art. I, Const, of IJ. S. Fargo v. Michigan, 121 IJ. S. 230, 7 Sup. Ct. 857; Philadelphia ■& S. S. Co. v. Pennsylvania, 122 U. S. 326, 7 Sup. Ct. 1118; Galveston, H. & S. A. B. Co. v. Texas, 210 U. S. 217, 28 Sup. Ct. 638; Western Union T. Co. v. Kansas, 216 IJ. S. 1, 30 Sup. Ct. 190; State ex rel. Carr v. Woodruff S. & P. C. Co. 114 Ind. 155,15 N. E. 814; Northern Pac. B. Co. v. Baymond, 5 Dak. 356, 40 N. W. 538; Vermont <& C. B. Co. v. Vermont Cent. B. Co. 63 Vt. 1, 21 Atl. 262, 731; Delaware & H. C. Co. v. Comm. 1 Pa. Sup. Ct. Oas. 36, 17 Atl. 175; People ex rel. C. T. B. Co. v. Miller, 178 N. Y. 194, 70 N. E. 472. The scheme of taxation proposed by the act' is necessarily a tax upon gross receipts. In other words, tbe word “income,” as used in the act, means practically gross receipts, not profits. People v. Sup’rs, 4 Hill (N. Y.) 20, 23; Mundy v. Van iloose, 104 Ga. 292, 30 S. E. 183, 786; Reg. v. Gomm’rs, L. R. 4 H. L. 449, 470, 483, 39 L. J. Q. R 253, 23 L. T. Rep. N. s. Ill; Jones v. Ogle, L. R. 8 Oh. App. 192, 196, 42 L. J. Oh. 334, 27 L. T. Rep. N. s. 367; In re West Riding of T. P. B. B. Soc. 43 Oh. D. 407, 415, 59 L. J. Ch. 197, 62 L. T. Rep. N. s. 486.
    
      David S. Wegg, as amicus curice, argued, among other things, that any tax imposed upon interest coupons or dividends upon stock in the hands of nonresidents is extraterritorial, not within the jurisdiction of the taxing power, and void. The situs of such intangible property is in the domicile of the owner. It is not here and cannot be taxed here. State ex rel. Dwinnell v. Gaylord, 73 Wis. 316, 41 N. W. 521; Renier v. Hurlbut, 81 Wis. 24, 50 N. W. 783; Bragg v. Gaynor, 85 Wis. 468, 482, 55 N. W. 919; Parker v. Stough-ton M. Go. 91 Wis. 174, 180, 64 N. W. 751; Perrigo v. Mil-luomkee, 92 Wis. 236, 65 N. W. 1025; Kingsley v. Merrill, 122 Wis. 185, 99 N. W. 1044; State v. Bullen, 143 Wis. 512, 128 N. W. 109; Railroad Co. v. Jackson, 7 Wall. 262, 267, 268; St. Louis v. Ferry Go. 11 Wall. 423; State Tax on Foreign-held Bonds, 15 Wall. 300, 319, 320; Bailey v. Railroad Go. 22 Wall. 604; Murray v. Charleston, 96 U. S. 432 ; Kirt-land v. Hotchkiss, 100 U. S. 491; 106 U. S. (Appendix) 704; New Orleans v. Houston, 119 U. S. 265, 7 Sup. Ot. 198; New York, L. H. & W. R..Oo. v. Pennsylvania, 153 U. S. 628, 648, 14 Sup. Ot. 952; Savings <& L. Soc. v. Mult-nomah Go. 169 U. S. 421, 426-428, 18 Sup. Ot; 392; New Orleans v. Stempel, 175 U. S. 309, 20 Sup. Ot. 110; Bristol v. Washington Go. 177 U. S. 133,141, 143, 20 Sup. Ot. 585; Stale Board v. Comptoir Nat. d’Escompte, 191 U. S. 388, 402, 404, 24 Sup. Ot. 109; Fargo v. Hart, 193 U. S. 490, 499, 24 Sup. Ot. 498; Pennsylvania L. Mut. F. Ins. Go. v. Meyer, 197 U. S.' 407, 416, 25 Sup. Ot. 483 ; Union R. T. Go. 
      
      v. Kentucky, 199 U. S. 194, 26 Sup. Ct. 36; Metropolitan L. Ins. Go. v. New Orleans, 205 U. S. 395, 27 Sup. Ct. 499; Buck v. Beach, 206 U. S. 392, 406, 407, 27 Sup. Ct. 712; Liverpool •& L. & G. Ins. Go. v. Board, 221 U. S. 346, 31 Sup. Ct. 550; Boyd v. Selma, 96 Ala. 144, 11 South. 393, 16 L. R. A. 729; North Carolina B. Go. v. Oomm’rs, 91 N. 0. 454; Oliver v. Washington Mills, 11 Allen, 268. The provisions of the income tax law applied to nonresident holders of shares of stock in railway companies, corporations of Wisconsin, are invalid. _If the tax is on the dividends or profits derived from such shares of stock, then it is a tax on the shares themselves. -Railroad Go. v. Jackson, 7 Wall. 262; Weston v. Gharleston, 2 Pet. 449; Almy v. California, 24 How. 169; Dobbins v. Gomm’rs, 16 Pet. 435; Fairbank v, U. S. 181 U. S. 283, 21 Sup. Ct. 648; Selliger v. Kentucky, 213 U. S. 200, 29 Sup. Ct. 449; Brown v. Maryland, 12 Wheat. 419; Philadelphia & S. S. Go. v. Pennsylvania, 122; U. S. 326, 7 Sup. Ct. 1118; Galveston, II. <& S. A. R. Go. v.. Texas, 210 U. S. 218, 28 Sup. Ct. 638; Pollock v. Farmers’' L. •& T. Go. 157 U. S. 429, 15 Sup. Ct. 673; Pollock v. Farmers’ L. &. T. Go. 158 U. S. 601, 618, 15 Sup. Ct. 912. Put shares of stock in Wisconsin railway companies which pay-taxes on their property under ch. 315, Laws of 1903, are exempt from further taxation when owned or held by individuals of the state. Being exempt in the hands of residents of' the state, they are likewise exempt in the hands of nonresidents. If a tax on the dividends or profits derived from, such shares of stock is a tax on the property of the company-which such shares represent, the tax is invalid. Sec. 25,, ch. 315, Laws of 1903. If the tax on the dividends is neither-a tax on the shares of stock nor on the property of the company which the shares represent, but is a tax on the dividends,, separate and apart from both the shares of stock and the property, then such dividends as are received by nonresidents are: not taxable under the act.
    
      In a brief by Lines, Spooner, Lilis & Quarles, as amici curice, they contended (1) tbe income tax act is void because it discriminates against residents and in favor of nonresidents, contrary to art. IV and amendm. XIV, Const, of U. S.; (2) said act is void because it remits tbe income tax to tbe extent of taxes paid upon personal property, tbus creating an unlawful discrimination in favor of persons owning personal property as against those owning none.
    A brief filed by Oscar M. Fritz, as amicus curice, was devoted to tbe proposition that tbe income tax act is invalid because under subd. 2, 3, sec. 1087m — 22, tbe tax is imposed by a different rule, and is rendered unequal in its operation, upon income of tbe same kind, in tbe same situation, and used for tbe same purpose. These provisions unquestionably subject tbe income of a resident to a higher rate of taxation than tbe income of a nonresident of tbe same character, although tbe income of each is equal in amount and is derived from the same source, under tbe same circumstances. Sec. 1, art. I, Const.; sec. 1, amendm. XIV, Const, of U. S.; State v. Whitcom, 122 Wis. 110, 118, 99 N. W. 468; Black v. State, 113 Wis. 205, 219, 89 N. W. 522; W. G. Peacock ■& Go. v. Pratt, 121 Fed. 772, 776; Pollock v. Farmers' L. <&, T. Go. 157 U. S. 429, 599, 600, 15 Sup. Ct. 673.
    The following opinions were filed January 9, 1912:
   Winslow, C. J.

These are actions in equity, brought for tbe purpose of enjoining tbe secretary of state and other state officers, including the tax commission, from paying out any state moneys, or doing any other administrative acts in tbe enforcement of tbe newly passed income tax law of this state, known as cb. 658, Laws of 1911, on tbe ground that said act is unconstitutional.

Tbe Bolens action is an action sought to be brought within tbe original jurisdiction of this court, after refusal by tbe attorney general to bring it. This court, upon application for leave to bring the action upon tbe relation of Bolens (a taxpayer), granted sucb leave, but expressly provided in tbe order that tbe question whether sucb action was an action properly witbin tbe original jurisdiction of tbis court should be reserved and argued with tbe demurrer upon tbe merits.

Tbe Winding case is an action originally brought in tbe circuit court for Dane county by various persons and corporations who claim that they will be injuriously affected in various different ways by tbe provisions of tbe law. A demurrer on tbe three grounds of want of jurisdiction, want of legal capacity to sue, and insufficiency of facts .having been sustained by tbe circuit court, tbe plaintiffs appeal to tbis court; and all tbe cases were argued together, briefs being also filed by several members of tbe bar as amici curies.

Tbe law which is attacked in these actions adds thirty sections to tbe statutes, and also makes very substantial changes by amendment and repeal in secs. 1036 and 1038 of tbe existing statutes relating to tbe taxation of personal property. Tbe first section of tbe law is numbered 1087m — 1, and provides generally for tbe taxation of all incomes received during tbe year 1911, and annually thereafter.

Sec. 1087m — 2 provides (1) that tbe term “person,” as used in tbe act, shall include “any individual, firm, copartnership, and every corporation, joint-stock company or association organized for profit,.and having a capital stock represented by shares,” unless otherwise stated; (2) that tbe term “income” shall include:

a. All rent of real estate, including estimated rental of residence property occupied by tbe owner,

b. Interest on loans or evidences of debt of any kind,

c. Wages, salaries, or fees derived from services; provided that salaries of public officers are not to be included in those cases where tbe taxation thereof would be repugnant to tbe constitution,

d. All dividends or profits from stock or from tbe purchase and. sale of any property acquired within three years previously, or from any business whatever,

e. Royalties derived from the possession, or use of franchises or legalized privileges of any kind,

f. All other income from any source, except such as is exempted by the act;

(3) that “the tax shall be assessed, levied and collected upon all income, not hereinafter exempted, received by every person residing within the state, and by every nonresident of the state upon such income as is derived from sources within the state or within its jurisdiction. So much of the income of any person residing within the state as is derived from rentals, stocks, bonds, securities or evidences of indebtedness shall be assessed and taxed, whether such income is derived from sources within or without the state; provided that any person engaged in business within and without the state shall, with respect to income other than that derived from rentals, stocks, bonds, securities or evidences of indebtedness, be taxed only upon that proportion of such income as is derived from business transacted and property located within the state, which shall be determined in the manner specified in subdivision (e) of section 17705, as far as applicable.”

Sec. 1087m — 3 provides in substance for the following deductions by corporations and joint-stock companies:

a. Sums paid within the year for personal services of all officers and employees actually employed in the production of the income;

b. Other ordinary and necessary expenses paid within the year in the maintenance and operation of its business and property, including reasonable depreciation of the property from which the income is derived. All bonds issued by a corporation shall be deemed an interest in the property and business of the corporation, and so much of the interest on the bonds as is represented by the ratio of the total property located and business transacted in the state to the whole property and business of the corporation as provided in subd. 3 of 1087m — 2 shall he subject to taxation at the same'rate as the income and shall be assessed to the bondholders under the general designation of “the bondholders of” the particular corporation on the property of the corporation prior to other liens, and unless paid by the bondholders shall be enforced against the corporation, which may deduct the amount of the tax from the next interest paynlent bn the bond.

c. Losses sustained during the year not compensated for hy insurance or otherwise.

d. Sums paid within the year for taxes imposed by any other state upon the source from which the income taxed by this act is derived.

e. Dividends or income received during the year from stocks or interest in any firm, corporation, or joint-stock company, the income of which has been assessed under this act.

f. Interest received from bonds or securities exempt from taxation under United States laws.

By sec. 1087m — 4 it is provided in substance that persons other than corporations and joint-stock companies shall be allowed the following deductions:

a. Ordinary and necessary expenses actually paid in carrying on the business from which the income is derived, including a reasonable allowance for depreciation in the property from which the income is derived.

b. Losses during the year not compensated by insurance or otherwise.

c. Dividends or incomes from stocks or interest in any firm or corporation, the income of which has been assessed under this act.

d. Interest paid during the year on existing indebtedness.

' e. Interest on bonds or securities exempt under United States laws.

f. Salaries received from the United States by United States officials.

g. Pensions received from the United States.

h. Taxes (other than inheritance taxes) paid during the year on the .property or business from which the income is derived.

i. Devises, bequests, or inheritances received during the year upon which an inheritance tax has been paid.

j. Life insurance to the amount of $10,000 received by persons legally dependent on the decedent.

Sec. 1087m — 5 provides in substance for the following exemptions :

(1) a. To an individual, $800.

b. To husband and wife, $1,200'.

c. For each child under eighteen years, $200'.

d. For each additional person legally and wholly dependent on the taxpayer for support, $200.

e. These exemptions do not apply to nonresidents, nor to firms, corporations, or joint-stock companies. In computing such exemptions and the amounts of taxes payable under sec. 1087m — 7, the income of a wife living with her husband shall be added to the husband’s, and the income of each child living with its parent or parents shall be added to the parents’ income.

(2) Income of mutual, savings, or loan and building associations, and of any religious, scientific, educational, benevolent, or other association not organized or conducted for pecuniary profit.

(3) Income from property and privileges by persons now required to pay taxes or license fees into the state treasury in lieu of taxes. Such persons shall continue to pay taxes and license fees as heretofore.

(4) Income received by the United States, the state, and all counties, cities, villages, school districts, or other political units of the state.

Sec. 1087m — 6 provides in substance that the tax, after making sucb deductions and exemptions, shall be computed at the following rates:

("1) a. On first thousand dollars or .part thereof, 1 %
b. “ second CC cc CC cc cc
ii% c. “ third CC cc cc cc cc
d. fourth cc cc cc cc cc
2 % e. “ fifth cc cc cc cc cc
f. “ sixth cc cc cc cc cc
3 °/o g-a seventh “ cc cc' cc cc
3 \°?o h. u eighth “ CC cc cc «
4 <fo i. u ninth “ CC cc CC cc
4 \<fo 3-u tenth “ CC cc cc cc
5 °/o k. u eleventh “ CC cc cc cc
5 l. cc twelfth “ CC cc cc ’«
On any sum exceeding $12,000,’ 6 °/o

(2) Provided that the tax on corporations and joint-stock companies (after deductions) shajl be computed as follows:

a. If the income equals 1 per cent, or less of assessed value of property used in acquiring the income, the rate shall be ^ of 1 per cent, of such income;

b. If the income equals more than 1, but not more than 3 per cent, of such value, 1 per cent, of the income;

e. If more than 2, hut not more than 3 per cent., 1|- per cent, of the income;

d. If more than 3, but not more than 4 per cent., 2 per cent.- of the income;

e. If more than 4, but not more than 5 per cent., 2J per cent, of the income.

f. If more than 5, but not more than 6 per cent., 3 per cent, of the income;

g. In like manner, the tax shall increase at the rate of one half of one per cent, for each additional one per cent, or fraction thereof which the taxable income bears to the property employed in the acquisition of the income, until the rate of profits equals twelve per cent, of property employed in tbe acquisition of tbe income, when sucb rate shall continue as a proportional rate of six per cent, of sucb taxable income.

Sec. 1087m — 7 provides as follows:

“Tbe legislature intends subsection 2, of section 1087m — 6 of this act, to be a separable part thereof, so that said subsection may fail of be declared invalid without adversely affecting any other part of tbe act; provided that in event of its failing or being declared invalid the incomes of corporations, joint-stock companies and associations shall be subject and shall be construed to have been subject to taxation at the rates specified in subsection 1, of section 1087m — 6, and said incomes shall be reassessed by the tax commission and taxed for the years for which the rates provided in subsection 2, of section 1087m — 6, shall have failed.”

The next fourteen sections of the act are administrative purely. By their terms the enforcement of the act is placed in the hands of the state tax commission, which is authorized and required to divide the state into taxing districts and appoint an assessor of incomes in each district. The manner in which incomes are to be assessed and the taxes are to he collected is fully provided for, but it is not necessary to insert the provisions here, as no question is raised upon the details of these provisions.

Sec. 1087m — 22 provides in substance that the place at which the income tax shall be assessed, levied, and collected shall be determined as follows:

(1) Persons deriving income from within and without the state, or from two or more political subdivisions of the state, shall report the parts so separately derived in separate accounts, in such form as the tax commission may prescribe.

(2) The entire taxable income of a resident of the state shall be combined for purpose of determining exemptions and rate of tax, but the taxes shall be paid to the several towns, cities, and villages in proportion to the income derived from each, counting tbe income derived from without the state as derived from the town or city of the taxpayer’s residence.

(3) The income of nonresidents derived from sources within the state shall be separately assessed and taxed in the town, city, or village from which it is derived.

(4) All laws not in conflict with this act, regulating time, place, and manner of collecting unpaid personal property taxes, shall apply to the income tax.

Sec. 1087m — 23 provides that the revenue derived from the income tax shall be divided ten per cent, to the state, twenty per cent, to the county, and seventy per cent, to the town, city, or village in which it is assessed, levied, and collected.

Sec. 1087m — 25 abolishes the office of county supervisor of assessment on and after the first Monday in January, 1912, and provides that the county supervisor of incomes shall after that date perform all the duties imposed by law upon the county supervisor of assessment.

See. 1087m — 26 provides that any person paying a tax on personal property during any year may present his receipt therefor, and have the same accepted by the tax collector to its full amount in payment of income tax during said year; and that any bank paying taxes upon the shares of its individual stockholders may present the receipt therefor, and have the same accepted in payment of taxes upon the income of the bank during that year.

Sec. 1087m — 27 provides that nothing in the act shall affect in any way the taxes for the year 1911 or the collection or enforcement thereof.

By the amendment to sec. 1036 of the Statutes of 1898, there is taken out of the items of personal property subject to taxation “all debts due from solvent debtors, whether on account, note, contract, bond, mortgage or other security, or whether such debts are due or to become due,” also “moneys;” and by tbe amendment to subd. 10 of sec. 1038, Stats. (1898), tbe following property is made exempt from taxation: “all moneys, all debts dne or to become due to any person, and all stocks and bonds not otherwise specially provided for.”

Ey tbe concluding sections of tbe act certain other changes are made in exemptions from taxation, which have the effect of somewhat enlarging such exemptions, especially in the line of personal ornaments and belongings and agricultural implements, but the details of these changes are not necessary to be stated.

At the inception of the Bolens case the question of jurisdiction is sharply raised; and it is very strongly argued, especially in a brief filed by Gen. F. 0. Winkler, that this is not a case properly within the original jurisdiction of this court, as that jurisdiction has been defined and limited by the cases commencing with the Railroad Cases (Att’y Gen. v. Railroad Cos. 35 Wis. 425).

The argument, in brief, is that the action is nothing more nor less than a taxpayer’s action; that such actions may properly be entertained in the case of illegal expenditures by cities, counties, villages, or other municipalities, but cannot properly be brought against state officers, because, in effect, they are actions against the state, and the state cannot be sued without its consent.

This objection might perhaps be summarily disposed of by a brief reference to the case of State ex rel. Raymer v. Cunningham, 82 Wis. 39, 51 N. W. 1133, where a case of similar character, brought on the relation of a taxpayer, was entertained and decided upon the merits against objection to the jurisdiction, and by further reference to the cases of State ex rel. Garrett v. Froehlich, 118 Wis. 129 (at page 143), 94 N. W. 50; State ex rel. Rosenhein v. Frear, 138 Wis. 173, 119 N. W. 894; and In re Filer S. Co. 146 Wis. 629, 132 N. W. 584, in each of which cases the right to maintain similar actions in this court is either impliedly or expressly asserted.

We do not feel, however, that we ought to dispose of this very important question without thoroughly examining it, for several quite persuasive reasons. Reference to the cases just cited will show that the question never has been discussed in any opinion. In the Raymer Case, which is the first of the series and which was a case brought on the relation of a taxpayer to enjoin the payment of money to the state superintendent of public instruction, under a law which violated an express' constitutional prohibition, it was • said in substance that it was held in the case of State ex rel. Att’y Gen. v. Cunningham, 81 Wis. 440, 51 N. W. 724, that such an action was within the original jurisdiction of this court and would be-entertained. It is very clear that the Cunningham Case was not such a case, and involved very different considerations. The Cunningham Case was an action brought on the relation of the attorney general to enjoin the secretary of state from giving election notices under an apportionment law which was held to deprive a very large number of the voters of the state of political rights guaranteed to them by the constitution. This was held to be an invasion of the liberties of the people, and hence the case came clearly within the original jurisdiction of this court as laid down in the Railroad Cases. No question of the wrongful expenditure of state funds, nor of a taxpayer’s right to invoke the original jurisdiction of this court to prevent such expenditure, was involved or mentioned in the case.

No discussion of the question appears in the other cases cited, so it seems clear that the court has not yet taken up and considered the question as an original one.

It has been spoken of as a very important question, and advisedly so spoken of. Laws which are framed to meet and correct some existing situation deemed by the legislature to be undesirable will generally, or at least frequently, involve the expenditure of some money in their enforcement. If, whenever such a law is passed, it is within' the power of any taxpayer, however paltry his contribution to the public funds, to-come into this court and invoke its original jurisdiction and compel it to pass upon the validity of the law, it is not difficult to forecast the result. Every important law will be adverse to the interests of some taxpayers, and with such a principle established this court stands in great danger of becoming to all intents and purposes a third chamber of the legislature, not named in the constitution, but exercising a veto power over the other houses when invoked by any taxpayer. The power to pass upon the constitutionality of laws, when the question arises in the course of,ordinary litigation is a great power, one to be exercised with the greatest possible caution and wisdom; but the power to take up and pass upon a law involving the expenditure of any state funds as soon as-it is passed, at the suggestion of any taxpayer, and place a judicial veto upon its execution, is a still greater one. No, higher power than this can well be conceived in a government such as ours; certainly no power will demand greater wisdom in its exercise, if it exists. This court has unquestionably taken the position in a number of well considered cases that the courts can and will restrain public officers from enforcing an unconstitutional law which invades private or public-rights. State ex rel. Att'y Gen. v. Cunningham, 81 Wis. 440, 51 N. W. 724; State ex rel. Lamb v. Cunningham, 83 Wis. 90, 53 N. W. 35; Bonnett v. Vallier, 136 Wis. 193, 116 N. W. 885; Wadhams Oil Co. v. Tracy, 141 Wis. 150, 123 N. W. 785. But this court has clearly recognized that this power is a delicate one, and to be used only with a wise discretion. It was said in the last case cited that “it will not do to make of the courts, by equitable interference, a sort of a superior upper house to consider and pass, in general and particular-as well, upon legislative enactments.”

Concerning this power Judge Dodge very rightly observes, in his brief in the present case:

“No higher power can be conceived than that of the judiciary to stay the action of the co-ordinate executive or legislature from an act or policy which the latter conscientiously believe to be constitutional and for public welfare. As the power is transcendent its exercise must be with caution and moderation; albeit with courage. The frequency of thg attempts by individuals to invoke this power of veto invites the anxious consideration of the wisdom and propriety of its exercise in each case.”

The question now before us is whether this court has consciously and advisedly held that it is sufficient to call for the exercise of this extreme power that a taxpayer come into court and demand that the public treasury be protected from the expenditure of funds under a law concerning whose constitutionality there may be doubt.

The consideration of this question has prompted us to make a re-examination of the entire question of the original jurisdiction of this court, and to make am attempt to classify the significant decisions upon the subject, in the hope that thereby the scope and purpose of that jurisdiction, as the court has endeavored to define and limit it, may be better understood. The results of this re-examination are now to be stated as briefly as may be.

The constitutional grant of jurisdiction to the supreme court (sec. 3, art. VTI, Const.), after providing that it shall have appellate jurisdiction co-extensive with the state, provides that it “shall have a general superintending control over all inferior courts; it shall have power to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, and other original and remedial writs, and to hear and determine the same.”

Since the decision of the Railroad Cases, 35 Wis. 425, it has been very well understood that by this section of the constitution three distinct and independent grants of power or jurisdiction were made to this court, viz.: (1) the appellate power; (2) the power of superintending control over inferior courts; and (3) the original jurisdiction to be exercised by means of the writs named in the section. We are only concerned here with the grant of original jurisdiction.

It will be at once noticed that this grant is practically unlimited in extent, except as it may be said to be limited by tbe scope of the writs named, and it is for this reason probably that (with the exception of Att’y Gen. v. Blossom, 1 Wis. 317, to be referred to later) practically no attempt was made, prior to the decision in the Railroad Cases, to discuss the purpose or limits of the original jurisdiction. It was very frequently exercised, but plainly with no clear or logical idea of the purposes for which it was given to the court, unless possibly it may be said that there was the idea that the wrong to be redressed or prevented must be a wrong affecting the public, or some part of the public of a given locality or class, as distinguished from a wrong affecting individuals only.

Habeas corpus was .so frequently used that the citation of the cases would be mere surplusage. Mandamus to compel official action by local or municipal officers was also very frequent. Thus the court entertained and decided upon the merits actions of mandamus' to compel town assessors to reduce an assessment of personal property, State ex rel. Ward v. Assessors, 1 Wis. 345; to compel a circuit judge to hold court in a new county, State ex rel. Powers v. Larrabee, 1 Wis. 200; to compel county supervisors to strike property from the assessment roll, State ex rel. Beebe v. La Fayette Co. 3 Wis. 816; to compel highway commissioners to act, State ex rel. Doxtador v. Bailey, 6 Wis. 291; to compel a school district clerk to make an official report to the town clerk, State ex rel. School Dist. v. Eaton, 11 Wis. 29; to compel county officers to locate their offices at a certain place as a means of testing the validity of county-seat elections, Att’y Gen. ex rel. Turner v. Fitzpatrick, 2 Wis. 542; State ex rel. Cothren v. Lean, 9 Wis. 279; State ex rel. Spaulding v. Ellwood, 11 Wis. 17; State ex rel. Field v. Saxton, 11 Wis. 27; State ex rel. Gates v. Fetter, 12 Wis. 566; to compel town supervisors to audit damages allowed in laying out a highway, State ex rel. Van Vliet v. Wilson, 17 Wis. 687; to compel a city council to levy and collect a tax to pay a judgment or pay the expense of work done for the city, State ex rel. Soutter v. Madison, 15 Wis. 30; State ex rel. Christopher v. Portage, 12 Wis. 562; S. C. 14 Wis. 550; State ex rel. Carpenter v. Beloit, 20 Wis. 79; State ex rel. Hasbrouck v. Milwaukee, 25 Wis. 122; to compel a county board to admit one duly elected as a member to sit and act as such, State ex rel. Gill v. Milwaukee Co. 21 Wis. 443; to compel the mayor of a city to appoint certain officers, State ex rel. Att’y Gen. v. O’Neill, 24 Wis. 149; to compel a city treasurer to deliver certain books to the county clerk, State ex rel. Saar v. Hundhausen, 26 Wis. 432; to compel the transfer of prisoners from the Milwaukee jail to the house of correction, State ex rel. Kennedy v. Brunst, 26 Wis. 412; to compel county supervisors to erect county buildings, State ex rel. Park v. Portage Co. 24 Wis. 49; to compel county supervisors to provide certain officials with office rooms, State ex rel. Keenan v. Milwaukee Co. 25 Wis. 339; to compel the Milwaukee chamber of commerce to restore a member to his rights and franchises as a member, State ex rel. Graham v. Chamber of Comm. 20 Wis. 63; and doubtless other cases may be found.

It should be noted in this connection that in one case (State ex rel. Board of Ed. v. Haben, 22 Wis. 101) the court declined to entertain an action of mandamus against the treasurer of a city to compel him to pay over the school moneys in his hands to the school board, giving as a reason that the remedy in the circuit court was ample. Judge Cole there states that the practice of applying to the supreme court for writs of mcmdamus against local officers was becoming very common, and that in view of the increasing duties of the court, and in pursuance of a rule of court then recently adopted, it would be held in the future that “Wherever there is anything in the application which shows that it would be unavailing, if made at the proper circuit, or where, from the nature of the questions involved, it would seem necessary and proper that the suit be commenced in the supreme court, jurisdiction will be entertained. Otherwise it will not be, but parties will be required to make their application to the circuit court.” This rule seems, however, to have been more honored in the breach than in the observance, as the cases just cited, which came up after the Haben Case, abundantly testify.

' Quo warranto cases to try the title to public office, from that of governor down to school director, were very frequent. Thus the writ was used to try the title to the office of governor in Att'y Gen. ex rel. Bashford v. Barstow, 4 Wis. 567; of distinct attorney in Att’y Gen. ex rel. Carpenter v. Ely, 4 Wis. 420; of treasurer of a city in State ex rel. Tesch v. Von Baumbach, 12 Wis. 310; of school director in State ex rel. Law v. Perkins, 13 Wis. 411; of circuit judge in State ex rel. Att’y Gen. v. Messmore, 14 Wis. 115; of sheriff in State ex rel. Peacock v. Orvis, 20 Wis. 235; of justice of the peace in State ex rel. Holden v. Tierney, 23 Wis. 430; of supervisor in State ex rel. Peck v. Riordan, 24 Wis. 484; of superintendent of the poor in State ex rel. Grundt v. Abert, 32 Wis. 403; of treasurer of an incorporated church benevolent association in State ex rel. Att’y Gen. v. Conklin, 34 Wis. 21; and there are numerous similar cases. As tending to explain the large number of these cases involving only small local offices, it should be noticed that by ch. 23, Laws of 1855, any person claiming to be entitled to hold “any public office” usurped by another was given the right to file in the supreme court an information in the nature of a quo wcwranio, with or without the consent of the attorney general. While the code of pleading and practice which was passed the following year (ch. 120, Laws of 1856) entirely revised the practice in such cases, and contains no such sweeping provision, still resort seems to have been had to the supreme court in practically all cases of disputed title to office until the decision in the Railroad Cases.

Quo warranto to forfeit corporate charters for abuse or non-use of franchises was also brought in State v. Milwaukee G. L. Co. 29 Wis. 454, and in State v. West Wis. R. Co. 34 Wis. 197.

Tbe foregoing citations by no means cover all of tbe cases in wbicb tbe original jurisdiction was used prior to tbe Railroad Cases, but it is believed that they cover all that are of any significance, except tbe Blossom Case (wbicb is to be soon considered), and it is also believed that they conclusively demonstrate that there was in the judicial mind during that period no serious thought that tbe original jurisdiction given to this court was intended to be or ought to be limited by excluding any particular class of cases therefrom, except probably cases involving mere individual wrongs, with wbicb tbe public was in no manner concerned.

Relating to this subject, Judge Dixon might well say, as-be did in bis brief in tbe case of Att’y Gen. v. Eau Claire, 37 Wis. 400, at page 411, “It is not surprising that tbe court looked in vain to tbe bar for assistance in the argument of the Bailwa/y Cases when we reflect that both court and bar bad been wandering in utter darkness for a period of more than twenty-five years.” It is very evident that Judge Dixon knew whereof be spoke when be wrote these words. During fifteen years of tbe twenty-five be bad been tbe leader of the-wanderers.

It is quite plain, we think, that however valuable tbe cases-wbicb we have thus briefly reviewed máy be as authorities on tbe general propositions of law involved in them (and many of them are very valuable in this respect), they have absolutely no value on tbe question of tbe extent of tbe original jurisdiction of tbe court, for that question was never discussed or considered in any of them, and they have been gathered together here for tbe simple purpose of demonstrating their worthlessness as precedents upon that question, and to prevent either bench or bar from placing reliance upon them so far as-that question is concerned in tbe future.

Tbe case of Att’y Gen. v. Blossom, 1 Wis. 317, has not been included in tbe foregoing list because in tbat case, wbicb was tbe first case where tbe original jurisdiction was challenged, there was an illuminating discussion in tbe opinion of Justice Smith, not only of tbe existence of any original jurisdiction in this court, but also of tbe purposes wbicb were intended to. be accomplished by tbe exercise of tbat jurisdiction. After meeting tbe contention tbat tbe court bad only appellate jurisdiction, and demonstrating tbat tbe armory of common-law writs with wbicb tbe constitution endowed tbe court in tbe last clause of tbe section quoted were original in their functions and necessarily implied tbe exercise of original jurisdiction, be used these pregnant words, remarkable in their strength and wisdom now, and vastly more remarkable when it is reflected tbat they were written nearly sixty years ago:

“And, why was original jurisdiction given to tbe supreme court, of these high prerogative writs ? Because these are tbe very armor of sovereignty. Because they are designed for tbe very purpose of protecting tbe sovereignty and its ordained officers from invasion or intrusion, and also to nerve its arm to protect its citizens in'their liberties, and to guard its prerogatives and franchises against usurpation. Tbe convention might well apprehend tbat it would never do to dissipate and scatter these elements of tbe state sovereignty among five, ten, twenty, or forty inferior tribunals, and wait their tardy progress through them to tbe supreme tribunal, upon whose decision must finally depend their efficacy. To preserve tbe liberties of tbe people, and to secure the rights of its citizens, tbe'state must have tbe means of protecting itself.”

Here was clearly expressed tbe great idea tbat tbe original jurisdiction was given to this court in order tbat tbe state might use it to protect itself and its sovereignty and tbe liberties of tbe people at large.

Strange indeed it seems tbat this idea so forcibly expressed in 1853 should have been completely ignored and forgotten for more than twenty years thereafter, notwithstanding tbe fact tbat applications for tbe exercise of tbat jurisdiction were increasing in number- year by year. ' When, however, in 1874, the state, through its chief law officer, essayed to use the original jurisdiction for the purpose of curbing the great railroad companies of the state and compelling them to obey an act fixing rates of carriage for freight and passengers, the question of the extent of the jurisdiction was again sharply brought to the mind of the court, and it was philosophically discussed by Chief Justice Rtaw in words which have ever since that time been regarded as authoritatively determining the attitude of this court upon the question. They have been often quoted and applied since that time and are very familiar. In brief, the principle there decided was that, in order to put in motion the original jurisdiction of this court, the question must not only be publici juris, i. e. a question of public right, but it must be a question “affecting the sovereignty of the state, its franchises or prerogatives, or the liberties of its people.” Att’y Gen. v. Railroad Cos. 35 Wis. 425.

In the case of Att’y Gen. v. Eau Claire, 37 Wis. 400, immediately following the Railroad Oases, where the attorney general invoked the original jurisdiction- to restrain the alleged illegal obstruction of a navigable river flowing into the Mississippi, the same doctrine was announced and somewhat elaborated upon, especially with regard to the term publici juris. In this opinion it was said:

“Of course every question of municipal taxation is publici juris. But it is equally so whether it be raised by a taxpayer, or by the municipality, or by the state. It is not enough to put in motion the original jurisdiction of this court that the question is publici juris; it should be a question quod ad st'atum reipvblicce pertinet. . . .
“And though the question did not arise in this case, it is quite evident from all that has any bearing on it in Att’y Gen. v. Railroad Cos., that to bring a case properly within the original jurisdiction of this court, if should involve, in some way, the general interest of the state at large. It is very true that the whole state has an interest in the good administration of every municipality; so it bas in tbe well doing of every citizen. Cases may arise, to apply tbe words of C. J. Stow, geographically local, politically not local; local in conditions, but directly affecting tbe state at large. Cases may occur in which the good government of a public corporation, or tbe proper exercise of tbe franchise of a private corporation, or the security of an individual, may concern tbe prerogative of tbe state. Tbe state lends tbe aid of its prerogative writs to public and private corporations and to citizens in all proper cases. But it would be straining and distorting tbe notion of prerogative jurisdiction to apply it to every case of personal, corporate or local right, where a prerogative writ happens to afford an appropriate remedy. To warrant tbe assertion' of ■ original jurisdiction here, tbe interest of tbe state should be primary and proximate, not indirect or remote; peculiar perhaps to some subdivision of tbe state, but affecting the state at large, in some of its prerogatives; raising a contingency requiring the interposition, of this court to preserve tbe prerogatives and franchises of tbe state, in its sovereign character; this court - judging of the contingency, in each case, for itself. For all else, though raising questions publici juris, ordinary remedies and ordinary jurisdictions are adequate. And only when, for some peculiar cause, these are inadequate, will the original jurisdiction of this court be exercised for protection of merely private or merely local rights. . . .
“It was suggested that we should establish general rules governing our original jurisdiction. That would be too bold an undertaking to venture .on. Rules will arise, as cases come here, far more safely and properly than they could be prescribed in advance. We can now only declare the views which influence us in passing upon this.motion. It is sufficient here to hold that proceedings to restrain municipal undertakings or municipal taxation, in ordinary cases, belong appropriately to the original jurisdiction of the circuit, and not of this court.
“These are questions publici juris, as are title to local public office, performance of local official duty, use of local highways, maintenance of local public buildings, abuse of local power or franchise, and kindred local matters. But these are not generally questions directly involving the sovereign prerogative or the interest of the state at large, so as to call for tbe prerogative jurisdiction of tbis court. As a rule, no extraordinary jurisdiction is necessary or proper for tbem; tbe ordinary jurisdiction of tbe circuit court being ample. Practically it would be impossible to take jurisdiction of tbem all bere; and we intend to assume jurisdiction of none of tbem, wbicb are not taken out of tbe rule by some exceptional cause. When they are governed by some peculiarity wbicb brings tbem witbin tbe spirit-and object of tbe original jurisdiction of tbis court, we will entertain tbem. Otherwise they will 'he left to tbe circuit courts. And tbis we understand to be tbe true spirit and order of tbe constitutional grant of jurisdiction.”

In tbis case also was laid down tbe general principle that, while jurisdiction would never be assumed to enforce a mere private right, still jurisdiction would not be refused because there might be a private relator in tbe case who possessed a private interest bound up with tbe public interest, if in fact there was tbe necessary public interest before defined; and that tbe court in rendering judgment in such a case would not ignore tbe private interest of tbe relator, but administer full relief; but, on tbe other band, if tbe private right of a relator and the public right of tbe state met in tbe same litigation, tbe private right of tbe relator might entirely disappear, and tbe relator drop out, but tbe court would still proceed and vindicate tbe public right, if there be a public right separable and distinct from tbe private right. Tbis doctrine was more fully elaborated and stated in State ex rel. Drake v. Doyle, 40 Wis. 175, wbicb will be referred to later in this opinion. ,

Tbe Railroad Cases and tbe Eau Claire Case, taken together, harmoniously following and more fully developing tbe great idea first announced in general terms by Judge Smith in tbe Blossom Case, may be truly said to have established the fundamental reason for tbe existence of tbe original jurisdiction of tbis court, and tbe limits witbin wbicb, in view of that reason, tbe court would endeavor to confine its exercise. No attempt was made in either case to mark out or define in advance tbe particular questions or kinds of questions wbicb would be considered as affecting tbe “sovereignty of tbe state, its franchises or prerogatives, or tbe liberties of its people.” Sucb an attempt would manifestly bave been as unwise as it would bave been futile; human prescience is not equal to sucb a task So tbe court wisely contented itself with announcing tbe general principle, leaving itself free to judge in each case whether tbe contingency which justified and required tbe use of tbe jurisdiction bad arisen. Since tbe decision of those cases this court has faithfully endeavored to follow tbe general rules laid down in them. Numerous applications for tbe exercise of tbe original jurisdiction bave been made, and of these many bave been granted and some bave been refused. Tbe question of tbe application of tbe general rules aforesaid has arisen and been discussed and decided in a number of cases presenting widely different problems. Sufficient time has now elapsed so that it should be possible to draw from these decisions some general conclusions as to tbe limits of tbe jurisdiction as tbe court has administered it. If this can be done it certainly ought to be helpful in tbe future administration of tbe jurisdiction, not because it will or can put up tbe bars so that no future case can be brought within tbe jurisdiction unless it has its prototype in tbe past, but because every discussion and ruling upon tbe question as a new case is presented should be helpful in developing some philosophical and orderly rules for tbe application of tbe general abstract principles laid down in tbe two cases last named to concrete cases as they arise in tbe future.

With this idea in mind a brief review of tbe significant cases decided since tbe decisions in tbe Railroad Cases will now be undertaken, and an attempt will be made to classify them.

1. Tbe most numerous cases probably are tbe habeas corpus cases, and they may well be first disposed of. Tbe first of these cases where tbe question of tbe jurisdiction was discussed was tbe Pierce Case (In re Pierce, 44 Wis. 411), ■where, in spite of the vigorous protest of Chief Justice RyaN, it was held that the state had so vital an interest in the liberty of every one of its citizens that the question whether a citizen was unlawfully deprived of that liberty involved the interest of the public at large. The reasoning by which the unlawful imprisonment of a single citizen is held to involve the interests of the public at large, so as to justify the use of the original jurisdiction of the supreme court, may seem somewhat strained, but the decision has been followed without question in numerous cases since that time, and furthermore it is to be noticed that the legislation of the state from the earliest days of the state had provided for the issuance of the writ by any justice of the supreme court, and by ch. 45 of the Laws of 1864 had further provided that all applications for the writ on behalf of a person confined in the state prison must be made to the supreme court or one of the justices thereof. This latter provision has remained upon the statute book ever since (sec. 3409, Stats. 1898), and this court has held that it applies to applications made by persons confined upon conviction for felony in the Milwaukee house of correction as well. State ex rel. Heiden v. Ryan, 99 Wis. 123, 74 N. W. 544. It does not seem necessary or useful to cite the numerous habeas corpus cases which have been entertained by this court since the Pierce Case.

2. Nest may be considered the quo warranto cases, and of these we have found but five eases which seem of any significance, namely: State ex rel. Wood v. Baker, 38 Wis. 71; Att’y Gen. v. West Wis. R. Co. 36 Wis. 466; State ex rel. Att’y Gen. v. M., L. S. & W. R. Co. 45 Wis. 519; State ex rel. Radl v. Shaughnessey, 86 Wis. 646, 57 N. W. 1105; and In re Holland, 107 Wis. 178, 83 N. W. 319.

The first of these cases was brought to try the title to the offiee of county clerk, and it was held that contests concerning the title to county offices were not within the jurisdiction marked out for itself by the court in the Railroad Cases, but that because tbe title of tbe judge of tbe circuit court to tbe office of Congressman depended on the same votes which were questioned in tbe case, and hence be could not with propriety sit, tbe case came within tbe exception suggested in tbe Eau Claire Case, namely, cases where tbe ordinary jurisdiction of tbe circuit is entirely inadequate. Tbe evident meaning of this case is that contests over local offices will not be entertained unless tbe situation be such that tbe remedies in local courts are absolutely inadequate. It may well be doubted whether such a case as tbe Wood Case would now be entertained, in view of tbe ease with which under present laws another judge can be at once called in to try a case where tbe circuit judge is disqualified or declines to sit. Tbe second and third cases named were actions brought to forfeit corporate charters granted by tbe state to railroad companies, because of breach of duty on tbe part of tbe companies. They unquestionably fall within tbe jurisdiction as defined in tbe Railroad Cases, for in such an action tbe state is suing to punish tbe abuse or misuse of franchises granted by it in its sovereign capacity. In this connection it is pertinent to note that tbe legislature, by secs. 3240 et seq. of tbe statutes (R. S. 1878 and Stats. 1898), has for many years provided for actions in tbe name of tbe state to vacate corporate charters, which may be brought either in tbe supreme or circuit court, as this court may direct. See Stale ex rel. Lederer v. Inter-National Inv. Co. 88 Wis. 512, 60 N. W. 796. In tbe Shaughnessey Case it was sought to use tbe original jurisdiction of this court to try tbe title to tbe office of justice of tbe peace, and jurisdiction was declined on tbe ground that it was a local matter purely, which did not affect tbe state at large. For tbe same reason jurisdiction was declined in tbe Holland Case, in which it was sought to test tbe validity of tbe incorporation of a village.

3. Next may well be classed tbe two great cases of Att’y Gen. v. Railroad Cos. 35 Wis. 425, and Att’y Gen. v. Eau Claire, 37 Wis. 400, in tbe first of wbicb tbe state sued to prevent tbe great public-service corporations of tbe state from systematically violating and defying laws regulating tbeir rates in tbe interest of tbe whole people, wbicb laws were in effect amendments to tbe corporate charters of tbe companies; and in tbe second of wbicb tbe state sued to prevent a pour-presture in one of tbe great navigable rivers of tbe state connecting with tbe Mississippi river, wbicb tbe state is bound to beep open as a common highway to tbe people of this state and of tbe United States. Upon tbe same general ground this court later entertained an action 6n tbe relation of tbe attorney general to prevent tbe tearing rtp of a railroad, tbe idea being that a railroad operated under a franchise granted by tbe state is a state highway whose destruction affects tbe interests of tbe state at large. State ex rel. Att’y Gen. v. Frost, 113 Wis. 623, 88 N. W. 912, 89 N. W. 915. Tbe great public interests involved in these cases are so apparent as to obviate tbe necessity of comment upon them. In tbe case of State v. St. Croix B. Corp. 60 Wis. 565, 19 N. W. 396, however, tbe court declined jurisdiction of a case very similar to tbe Eau Claire Case, because tbe St. Croix river was a river on tbe boundary of tbe state, as to wbicb tbe state was under no trust to keep it open.

4. In tbe next class may be placed tbe cases where it has been sought by mandamus or mandatory injunction to compel a state officer to perform a ministerial duty. Under this bead tbe cases involving performance of important duties imposed on state officers by the general election laws form a striking group, tbe first of these cases being tbe case of State ex rel. McDill v. State Canvassers, 36 Wis. 498, where mandamus was sought to compel tbe state board of canvassers to declare a certain result from tbe returns of a Congressional election, and tbe court deemed tbe case one wherein tbe original jurisdiction should be exercised, although tbe office in issue was in a sense local, because tbe circuit judge himself was tbe opposing candidate and could not act judicially upon sucli a question, Renee the remedy in the circuit court was utterly inadequate: It is instructive to note that after this decision, bych. 231 of the session laws of 1880, the legislature passed an act regulating the procedure in mandamus cases brought in the supreme court against any board of canvassers to compel the delivery of a certificate of election to either of the offices of member of the legislature, congressman, or presidential elector, thus apparently giving the legislative sanction to the idea that controversies concerning the canvass of votes at general elections for either of such offices so far affected the prerogatives' of the state or the liberties of the people, or both, as to come fairly within the original jurisdiction of the court. The substance of this provision has ever since remained a part of the mandamus statute. Sec. 3452, Stats. (1898). Other cases where the original jurisdiction has been invoked to compel the performance of official duty imposed by general election laws are the cases of State ex rel. Kustermann v. Board of State Canvassers, 145 Wis. 294, 130 N. W. 489; State ex rel. Cook v. Houser, 122 Wis. 534, 100 N. W. 964; State ex rel. Bancroft v. Frear, 144 Wis. 79,128 N. W. 1068; and State ex rel. Rinder v. Goff, 129 Wis. 668, 109 N. W. 628. The first of these last named actions was practically the same as the McDill Case, the second and third were cases involving the duty of the secretary of the state, under general election laws, to place the names of certain persons upon the official ballot as nominees of a great political party for state offices, and the Rinder Case was a very good example of the exceptional cases where, though the office in issue was purely local, jurisdiction was assumed because of the absolute inadequacy of the remedy in the lower courts, and the abstract question involved was a question affecting the interests of the entire public.

Another group of significant cases under the fourth head are the mandamus actions brought to compel payment of funds from the state treasury to the persons or corporations alleged to he entitled thereto by law. In this group fall State ex rel. Bell v. Harshaw, 76 Wis. 230, 45 N. W. 308, brought to compel the state treasurer to pay over certain moneys in the state treasury to certain counties; State ex rel. New Richmond v. Davidson, 114 Wis. 563, 88 N. W. 596, 90 N. W. 1067, brought to’compel the state treasurer to pay over to the city of New Richmond ah appropriation made by the legislature on account of damages suffered by the city in a cyclone; State ex rel. Garrett v. Froehlich, 118 Wis. 129, 94 N. W. 50, brought to compel auditing of claims against the state for the Neeley treatment of drunkards at private sanitariums; State ex rel. Buell v. Frear, 146 Wis. 291, 131 N. W. 832, brought to compel auditing of salaries of the •civil service commission and its employees; and State ex rel. Bashford v. Frear, 138 Wis. 536, 120 N. W. 216, brought to compel auditing of the salary of a justice of this court.

Under this head also naturally fall the cases involving, the issuance or revocation of licenses and patents, and of these the case of State ex rel. Drake v. Doyle, 40 Wis. 175, is the most significant. Here mandamus was invoked against the secretary of state upon the mere relation of a private individual in order to compel that officer to revoke the license of a foreign insurance company because it had committed an act which, under the state law, worked a forfeiture of its license. In this case the attorney general appeared for the secretary of state, and suggested that the relator’s personal grievance had been settled; nevertheless the action went on as the suit of the state to vindicate and preserve “the prerogatives of the state in its sovereign'character” (page 186), and a peremptory mandamus was awarded.

Other cases of this general nature are State ex rel. Anderson v. Timme, 60 Wis. 344, 18 N. W. 837, brought to compel the issuance of a patent by the commissioners of public lands; State ex rel. Abbot v. McFetridge, 64 Wis. 130, 24 N. W. 140, to compel issuance of a license to a railroad company to do business, on tbe allegation tbat it bad fully paid tbe legal license fees; also tbe case of State ex rel. Covenant Mut. Ben. Asso. v. Root, 83 Wis. 667, 54 N. W. 33, brought to compel tbe state insurance commissioner to issue a license to a foreign insurance company wbicb bad fully complied with tbe law. Tbis last case, however, was directly overruled in tbe case of In re Court of Honor, 109 Wis. 625, 85 N. W. 497, where tbis court refused to entertain an exactly similar action, on tbe ground tbat tbe primary right sought to be vindicated was private, and tbe public right, if involved at all, was only incidentally affected, and hence tbe circuit court was tbe appropriate tribunal to pass on tbe question in tbe first instance. Whether tbis ruling does not in effect negative jurisdiction in tbe Timme and McFetridge Cases just cited may be a question of some doubt, but it is not necessary to determine it here. Tbe case of State ex rel. Guenther v. Miles, 52 Wis. 488, 9 N. W. 403, where tbe original jurisdiction was used on tbe relation of tbe state treasurer to compel a county treasurer to make an official return, is not significant, as the-question of jurisdiction was not raised.

5. In tbe last class fall tbe cases where it is sought to restrain a state officer (and in exceptional cases a county officer)1 from committing an unlawful act wbicb will affect tbe prerogatives or sovereignty of tbe state or tbe liberties of the-people. Tbe most conspicuous examples in tbis class of cases are tbe so-called “Gerrymander cases” (State rel. Att’y Gen. v. Cunningham, 81 Wis. 440, 51 N. W. 724, and State ex rel. Lamb v. Cunningham, 83 Wis. 90, 53 N. W. 35), tbe first of wbicb was brought by tbe attorney general himself, and tbe second by a private relator on leave of tbe court, after tbe attorney general bad refused to act. In these cases it was-sought to enjoin tbe secretary of state from carrying out the-terms of an apportionment law, on tbe ground tbat tbe law violated tbe commands of tbe constitution and was void. Here for tlie first time this court held that it could and would, on the relation of a private citizen, prevent a state officer from enforcing an unconstitutional law which injuriously affected the liberties of the people, as an unfair and unconstitutional division of the legislative election districts of the state must necessarily do. In neither of these cases was jurisdiction sustained because of the alleged unlawful expenditure of public funds, nor because of the fact that the relator was a taxpayer, but in both the ground was that an injury to. the people of the state was about to be committed by depriving many voters of their just and constitutional rights in the election of the legislative bodies of the state under the form of a law which violated the express command of the constitution. The evident idea was that the relator was in no sense the plaintiff; he simply brought the matter to the attention of the court, and when he had performed this function he ceased to be of importance, — the suit became from its inception the suit of the state to vindicate the liberties of its people generally.

Eollowing these cases at a considerable distance in time, but practically identical in principle, are the so-called “Twenty per cent.” cases (State ex rel. McGrael v. Phelps, 144 Wis. 1, 128 N. W. 1041, and State ex rel. Hanna v. Frear, 144 Wis. 58, 128 N. W. 1061), where, on the relation of private individuals, state and county officers were sought to be enjoined from enforcing a law requiring that in order to be represented on the official ballot a political party must cast at the primary twenty per cent, of its vote for governor at the last preceding general election. The ground taken was that this provision was an unreasonable, unconstitutional restriction or infringement on the freedom of the ballot, and hence it affected the liberties of the people. Although objection to the jurisdiction was formally taken in these cases, it was not pressed, it was not discussed, and the court simply said that it saw no reason why jurisdiction should not be exercised.

In this class, if anywhere, must naturally fall the case of State ex rel. Raymer v. Cunningham, 82 Wis. 39, 51 N. W. 1133, which has been previously cited, brought on the relation of a taxpayer to prevent the payment of salary to a state officer over and above the amount limited by the constitution. As has been before said in this opinion, the jurisdiction in that case was sustained by brief reference to the first gerrymander case, which is quite plainly a different case. ' Unquestionably the real ground was that the legislature was by express command of the constitution prohibited from paying to the state superintendent out of the state funds any sum exceeding $1,200 per annum; hence the law attacked in that case, which directed payment of a greater sum every year, was absolutely void, and the state itself was entitled to the intervention of the extraordinary jurisdiction of this court to protect itself from unconstitutional and unlawful depletion of its treasury by its own officers.

In both the Rosenhein Case (State ex rel. Rosenhein v. Frear, 138 Wis. 173, 119 N. W. 894) and the Filer & Stowell Co. Case, 146 Wis. 629, 132 N. W. 584, the applications to bring actions on the relation of taxpayers were denied, because it was considered in each case that no unlawful expenditure of funds by state officers was threatened, but in the first named case it was expressly said, and in the second it was assumed, that in order to prevent illegitimate expenditure of state funds an equitable action on the initiative of a taxpayer, after refusal by the attorney general, would be properly within the original jurisdiction of this court.

There are several other cases which have more or less bearing on the general question which will be briefly mentioned. In the case of In re Hartung, 98 Wis. 140, 73 N. W. 988, it was sought to use the original jurisdiction of this court by way of injunction to put an end to a public nuisance in the town of Wauwatosa, consisting of the depositing of garbage on the surface of land to the discomfort of a very large neigh-boxbood, but it was beld that sucb a wrong, though public, was not a wrong affecting the sovereignty, franchises, or prerogatives of the state, or the liberties of the people at large, and that the remedy was in the local courts. This seems to be an entirely logical application of the general principle laid down in the Railroad Cases, that even though a question be publici juris it will not call for the use of the original jurisdiction if it be merely local in its effect.

The sequel to this case, which appears by reference to State ex rel. Hartung v. Milwaukee, 102 Wis. 509, 78 N. W. 756, is also instructive. After the decision in In re Hartwng, supra, the relator went to the circuit court and, after refusal by the attorney general, was allowed to bring an action in the circuit court in the name of the state to enjoin the further continuance of the alleged public nuisance. The case was tried on the merits and an injunction refused, and on appeal to this court it was held that the circuit court was not given the writ of injunction for prerogative purposes, as this court was, and that hence the action below was never in fact an action by the state, notwithstanding its title, but was an action by a private party.

In view of this last named decision, the recent case of State ex rel. Van Alstine v. Frear, 142 Wis. 320, 125 N. W. 961, becomes interesting, if not important. This ease was an action brought in the circuit court in the name of the state, after 'refusal to act by the attorney general, upon the relation of a taxpayer, the object being to enjoin the secretary of state and state treasurer from carrying out the provisions of the primary election law, and especially from auditing or paying filaima or bills for expenses arising under the law, on the ground of unconstitutionality of the law. The jurisdiction of the circuit court in this case was not challenged by demurrer, nor was it raised or considered either in the' lower court or in this court, yet it seems quite manifest that it was a case where injunction was used in the circuit court for prerogative purposes, contrary to the principle laid down in the-case of State ex rel. Hartung v. Milwaukee, just cited. However, as tire question of jurisdiction passed sub süentio, the case is not significant.

Before proceeding to draw general conclusions from these-decisions as to the field of the original jurisdiction, so far as. any field has been marked out by the decisions, it may be well,, in order to avoid misapprehension, to notice the fact that the legislature by sec. 3200, Stats. (1898), has consented that the state may be sued in the supreme court by any person having a just claim which has been disallowed by the legislature. Actions brought under this section are, of course, brought by virtue of the consent of the state, without which the sovereign itself cannot be sued. Nothing said in this opinion is to be-construed as having any bearing on this section or the actions brought under it.

The affirmative result of the significant cases since the Railroad Cases is, as it seems to us, that the original jurisdiction of this court may be rightly invoked when there is a showing made either that (1) a citizen is wrongfully deprived of his liberty; (2) a state office has been usurped; (3) a franchise grantable only by the state has been usurped, abused, or-forfeited; (4) a law regulating public-service corporations in the interest of the people is systematically disobeyed and set at naught; (5) a navigable river, which the state is bound', to keep open as a highway for all, is obstructed or encroached upon, or a public railroad, built under a charter granted by the state is about to be destroyed; (6) a state officer declines, to perform a ministerial duty, in the .performance of which the people at large have a material interest; (7) a state officer-is about to perform an official act materially affecting the interests of the people at large, which is contrary to law or-imposed upon him by the terms of a law which violates constitutional provisions; or (8) the situation is such, in a matter- publici juris, tbat tbe remedy in tbe lower courts is entirely lacking or absolutely inadequate, and bence jurisdiction must be taken or justice will be denied. It is not meant by this-attempted classification tbat no cases wbicb do not fall witbin one or tbe other of tbe classes can ever call for tbe exercise of tbe original jurisdiction, but simply tbat cases falling witbin these general classes have been held to be properly witbin tbe original jurisdiction.

In addition to these eight affirmative propositions tbe decided cases justify tbe statement of several negative propositions wbicb are also helpful upon tbe general question. These are (1) a case, although involving a question publici juris, will not come witbin tbe jurisdiction if it be only local in its effect, subject only to tbe exception named in the eighth class; (2) a case involving a mere private interest, or one whose primary purpose is to redress a private wrong, will not be entertained; (3) a case will not be dismissed, however, because there is a private interest involved with tbe public interest, provided the private interest bé incidental merely,, and tbe vindication of tbe public right be tbe primary purpose of tbe action; (4) an action involving a private as well as a public interest will not be dismissed merely because tbe private interest may drop out, provided tbe public and private-interests be severable and tbe public interest still exists; (5) tbe constitution has not given tbe circuit court tbe power to use tbe writ of injunction as a prerogative jurisdictional writ, as it has been given to tbe supreme court, bence tbe circuit court has not tbe power, in an action not brought by tbe attorney general but on tbe relation of a private citizen only,, to use tbe writ for prerogative purposes.

It seems to us now tbat tbe real fundamental philosophy of tbe original jurisdiction and its use has not been at all times, fully apprehended by tbe court, even since tbe elaborate discussion in tbe Railroad and Eau Claire Cases, but after this-review of the authorities it seems quite simple, and it really ■comes down to a few propositions which when thoroughly understood solve many difficulties.

This transcendent jurisdiction is a jurisdiction reserved for the use of the state itself when it appears to be necessary to vindicate or protect its prerogatives or franchises or the liberties of its people; the state uses it to punish or prevent wrongs to itself or to the whole people; the state is always the plaintiff and the only plaintiff, whether the action be brought by the attorney general, or, against his consent, on the relation of a private individual under the permission and direction of the court. It is never the private relator’s suit; he is .a mere incident; he brings the public injury to the attention of the court, and the court, by virtue of the power granted by the constitution, commands that the suit be brought by and for the state. The private relator may have a private interest which may be extinguished (if it be severable from the public interest), yet still the state’s action proceeds to vindicate the public right. The fact that in many cases, as for •example cases of unlawful imprisonment, the private wrong and the public wrong are so closely identified that the ending ■of the private wrong necessarily puts an end to the public wrong makes no difference with the principle.

These propositions, if correct, and we believe they are, ■demonstrate very clearly that there can be no such thing as a taxpayer’s action (as that action is known in the circuit-courts) brought in the supreme court within the original jurisdiction. The philosophy of the taxpayer’s action in the ■circuit court is that the taxpayer is a member of a municipal ■corporation, who, by virtue of his contributions to the funds ■of the municipality, has an interest in its funds and property of the same general quality as the interest of a stockholder in the funds of a business corporation, and hence when corporate officers are about to illegally use or squander its funds or property he may appeal to a court of equity on behalf of himself and Ms fellow stockholders (i. e. taxpayers) to conserve- and protect the corporate interests and property from spoliation by its own officers.

Tbe taxpayer himself is the actual party to the litigation, and represents not the whole public, nor the state, nor even all the inhabitants of his municipality, but a comparatively limited class, namely, the citizens who pay taxes. In short, he sues for a class.

No such thing is known in the exercise of the original jurisdiction of this court. In actions brought within that jurisdiction the state is the plaintiff and sues to vindicate the rights of the whole people.

The Bolens case cannot, therefore, be held to come within the original jurisdiction of this court, if it be a mere taxpayer’s action.

This conclusion, however, by no means' leads to the result that the original jurisdiction may not properly be used at the-instance and upon the relation of a private individual to stay by appropriate writ the expenditure of the state’s funds for purposes expressly or by necessary implication forbidden by the constitution. Such use of funds by a state officer is cer■tainly as much a breach of duty and ah injury to the state as the refusal to pay out funds which have been lawfully appropriated, or the failure to obey the provisions of general election laws, but in such case the action is the action of the state as truly as if brought by the attorney general, not the action of the tax-paying relator.

If this be true, we can see no logical escape from the conclusion that, where state officials are about to spend the state’s money in executing an unconstitutional law, the state may prevent the threatened misapplication of its funds by the same means. This seems to us the only logical basis upon which the case of State ex rel. Raymer v. Cunningham, 82 Wis. 39, 51 N. W. 1133, can rest.

But it must be recognized that such a power is extreme. To arrest the hand of a state officer as he is about to carry ■out the command of the legislature is indeed a serious step, one not to be taken summarily or without profound consideration. As the power is great, it should be exercised with a wisdom and discretion commensurate with its greatness. No trivial grounds should impel the court to permit its exercise. This court will certainly not feel obliged in every case where there is a threatened expenditure of state funds under a law of doubtful constitutionality to allow an action of this nature to be brought in the name of the state, but will feel entirely free to leave the question of constitutionality to be settled as it may arise in ordinary litigation. The defiance of express or implied constitutional commands may be so flagrant and patent as to make the exercise of this great power appear justifiable, if not absolutely necessary, and in such case it will be exercised courageously. This court will, however, judge of the exigency in each case as it arises, and will endeavor to guard the great power from being used in trifling cases or to accomplish ulterior purposes.

In the present case we go no further than to state these general principles. We do not find it necessary to decide whether the alleged illegal expenditure of funds alone presents a case of such exigency as to justify the use of the original jurisdiction of this court to prevent such' expenditure. There are other and more important features in the present case which in our judgment present a proper case for the exercise of the original jurisdiction.

The law which is attacked here, if it be valid, makes a radical change in the present system of taxation over the whole state.

Since the days when Hampden refused to pay the ship money, unjust taxation has been deemed by English-speaking nations, at least, to vitally concern, if not to destroy, the liberties of the people. Such taxation has been deemed to justify armed resistance and, if need be, revolution. Insistence upon it cost Charles I. bis life and England an empire. If ibis law in its essential provisions violates constitutional provisions and bence is void, 'taxation under it is, of course, unjust, and tbe sums wbicb may be collected under it are unlawfully collected. It makes in terms a very sweeping change in tbe methods of taxation in every taxing district of tbe state, and shifts tbe burdens of taxation so that many will pay more than under tbe old system, while many will pay less. If it should go into operation for a year or two and then be held unconstitutional in some actual case, tbe confusion created in tbe financial affairs of tbe state and of every municipality would unquestionably be great. We cannot but regard any serious question as to tbe constitutionality of such a law' as a question seriously affecting tbe prerogatives of tbe state, as well as tbe liberties of tbe people, bence we conclude that tbe ■case presented is one justly calling for tbe exercise of tbe •original jurisdiction of this court.

Many provisions of tbe law are attacked as offending against either tbe federal or tbe state constitution. We shall •only treat tbe contentions wbicb might from some point of view be considered as going to tbe validity of tbe whole act. As to those minor provisions wbicb are properly to be regarded as matters of detail, we shall express no opinion. 'This is in accord with our well established custom in cases of this nature. Wadhams Oil Co. v. Tracy, 141 Wis. 150, 123 N. W. 785; State ex rel. Buell v. Frear, 146 Wis. 291, 131 N. W. 832: Borgnis v. Falk Co. 147 Wis. 327, 133 N. W. 209.

A few general observations may not be out of place before taking up for consideration tbe specific claims of unconstitutionality wbicb are urged upon our attention.

Tbe law in question, if valid, works a very important ■change in tbe general taxation policy of tbe state. Ever since tbe foundation of tbe state government it has been tbe policy of tbe state to levy its general taxes upon property either real or personal, with tbe exception of tbe inheritance-taxes and tbe license taxes first levied on railroads and latterly upon other public-service corporations. Tbe constitution of tbe state, though not forbidding excise taxation, as; determined in tbe • inheritance tax case (Nunnemacher v. State, 129 Wis. 190, 108 N. W. 627), contained only one-brief section on tbe general subject of taxation, namely, sec. 1 of art. VIII, reading as follows: “The rule of taxation shall be uniform, and taxes shall be levied upon such property as-the legislature shall prescribe.” Under this section property taxation has been the rule, with the exceptions just noted,, until the passage of 'the present law. This law, however, is-but the concrete embodiment of a popular sentiment which has been abroad for some time. The legislatures of 1905 and 1907 passed a resolution recommending the amendment of the section of the constitution quoted, by the addition of the following words: “Taxes may also be imposed on incomes, privileges, and occupations, which taxes may be graduated, and progressive and reasonable exemptions may be provided.” This change was ratified by the people at the general election held in November, 1908, and thus was clearly expressed by both legislature and people the idea that some form of general taxation in addition to, or in place of, property taxation might well be adopted. The attempt has now been made to-carry out this idea, and we have the result before us in the present law. With the political or economic policy or expediency of the law we have nothing to do. If it be within constitutional lines, it represents and embodies public policy, because it is enacted by that branch of the government which determines public policy.

It may be well to note, however, that income taxation is no new and untried experiment in the field of taxation. It has been in use in various forms, and generally with the progressive feature; by many of the civilized governments of the world for decades, which in some instances run into centuries. It bas been used at various times by nearly or quite twenty of our own states, and is now in use in several of tbem. It was used for a brief period by tbe government of tbe United States, and is now in successful operation in practically all of tbe great nations of tbe civilized world except tbe United States. Tbe fundamental idea upon wbicb its champions rest tbeir argument in its favor is tbat taxation should logically be imposed according to ability to pay, rather than upon tbe mere possession of property, wbicb for various reasons may produce no revenue to tbe owner.

It is argued tbat there should be as nearly as practicable equality of sacrifice among tbe various taxpayers, and tbat a tax levied at an uniform or proportional rate can rarely, if ever, produce equality of sacrifice; tbat one per cent, of a small income, wbicb just suffices to support its owner, is a far larger relative contribution to tbe public treasury than one per cent, of an income so large tbat it cannot be exhausted by its owner except by means of lavish and extravagant expenditures.

We are not to be understood by these remarks to be advancing arguments in support of tbe policy or expediency of tbe law, but simply as showing tbat in passing tbe law tbe legislature is only adopting a scheme of taxation wbicb bas been approved for many years by many of tbe most enlightened governments of tbe world, and bas tbe sanction of many thoughtful economists.

By tbe present law it is quite clear tbat personal property taxation for all practical purposes becomes a thing of tbe past. Tbe specific exemptions of all money and credits and tbe great bulk of stocks and bonds, as well as of all farm machinery, tools, wearing apparel, and household furniture in actual use, regardless of value, goes far to eliminate taxation of personal property; while tbe provision tbat be who pays personal property taxes may have tbe amount so paid credited on bis income tax for the year seems to ppt an end to any effective taxation of personal property. Tbat taxation of snob property bas proven a practical failure will be admitted by all wbo bave given any attention to tbe subject. Doubtless tbis was one of tbe main arguments in tbe legislative mind for tbe passage of tbe present act. By tbis act tbe legislature bas, in substance, declared tbat tbe state’s system of taxation shall be changed from a system of uniform taxation of property (which so far as personal property is concerned bas proven a failure) to a system which shall be a combination of two ideas, namely, taxation of persons progressively, according to ability to pay, and taxation of real property uniformly, according to value.

We pass from these general observations to consideration of tbe specific grounds of unconstitutionality alleged.

1. It is first claimed with much earnestness and ability tbat tbe act violates tbe provisions of tbe XIVth amendment to tbe federal constitution. One of tbe contentions under tbis bead is tbat tbe progressive features of tbe act are discriminatory, if not absolutely confiscatory. Another contention is tbat tbe act provides for double taxation, and for both reasons it is claimed tbat it denies to citizens tbe “equal protection of tbe laws.”

It is said in support of tbis contention tbat tbe United States supreme court in tbe Pollock Case (Pollock v. Farmers' L. & T. Co. 157 U. S. 429, 15 Sup. Ct. 673) bas held tbat taxation of income derived from land is in fact taxation of tbe land itself, hence tbat tbe act provides for double taxation, first of tbe land in specie, and next of tbe income therefrom. It seems tbat tbis claim may be very easily met. Tbe question in tbe Pollock Case was whether tbe taxation of rentals of land was direct taxation within tbe meaning of tbat term as used in tbe constitution of tbe United States, and it was held to be tbe same, in substance, as a tax on tbe land itself, and hence a direct tax. Tbis may be admitted for tbe purposes of tbe case, but it does not appear to in any way decide tbe question here at issue, or even to be very persuasive. Tbe question there was of tbe power of Congress under that clause of tbe federal constitution which forbids any direct federal tax except one levied in proportion to the population. The question here is primarily of the power of the legislature of Wisconsin under its constitution to levy an income tax in addition to a real-estate tax, and, secondarily, whether such a tax denies to any one the equal protection of the laws.

The inapplicability of the rule of the Pollock Case to the case here presented seems so plain'as to require little comment. There can be no doubt of the proposition that income taxation of a progressive character, in addition to taxation of property, is directly authorized by the constitution of Wisconsin, as amended in 1908. Words could hardly be plainer to express that idea than the words used. From them it clearly appears that taxation of property and taxation of incomes are recognized as two separate and distinct things in the state constitution; both may be levied, and lawfully levied, because the constitution says so. However philosophical the argument may be that taxation of rents received from property is in effect taxation of the property itself, the people of Wisconsin have said that “property” means one thing, and “income” means another; in other words, that income taxation is not property taxation, as the words.are used in the constitution of Wisconsin.

That they may say so and lawfully say so there is no doubt, unless some restriction in the federal constitution is thereby violated, and we are pointed to none, save the clause guaranteeing “equal protection of the laws.” That this clause does not apply to the case seems very well settled by the language of the supreme court of the United States itself in the great case of Mich. Cent. R. Co. v. Powers, 201 U. S. 245, at pages 292, 293, 26 Sup. Ct. 459, where it is said:

“There is no general supervision on the part of the nation over state taxation, and in respect to the latter the state has, speaking generally, the freedom of a sovereign both as to objects and methods. It was well said by Judge Wahtt, delivering the opinion of the circuit court in this case (p. 232) :
“ ‘There can at this time be no question, after the frequent and uniform expressions of the federal supreme court, that it was not designed by the XIVth amendment to the constitution to prevent a state from changing its system of taxation in all proper and reasonable ways, nor to compel the states to adopt an ironclad rule of equality, to prevent the classification of property for purposes of taxation, or the imposition of different rates upon different classes. It is enough that there is no discrimination in favor of one as against another of the same class, and the method for the assessment and collection of the tax is not inconsistent with natural justice.’ ”

This doctrine has been stated and restated in many forms, but with substantially the same meaning, in many federal cases, beginning with the case of Bell’s Gap R. Co. v. Pennsylvania, 134 U. S. 232, 10 Sup. Ct. 533, nearly all of which are cited in the Powers Oase at the close of the clauses above quoted. It seems unnecessary to quote or descant upon them. The sum and substance of it is that the XIVth amendment never was intended to lay upon the states an unbending rule of equal taxation; the states may make exemptions, levy different rates upon different classes, tax such property as they choose, and make such deductions as they choose, and, so long as they obey their own constitutions and proceed within reasonable limits and general usage, there is no power to say them nay. With regard to the progressive feature, it is aptly said in Knowlton v. Moore, 178 U. S. 41, at page 109, 20 Sup. Ct. 747, by the present chief justice, that “taxes imposed with reference to the ability of the person upon whom the burden is placed to bear the same have been levied from the foundation of the government. So, also, some authoritative thinkers, and a number of economic writers, contend that a progressive tax is more just and equal than a proportional one. In the absence of constitutional limitation, the question whether it is or is not is legislative and not judicial.”

No more need be said as to the progressive feature. Expressly permitted as it is by our own constitution, and clearly not within the inhibitions of the XIYth amendment, the progressive feature is in no respect objectionable.

It was suggested in the Knowlton Case, supra, that possibly the case might arise where exactions so arbitrary and confiscatory might be imposed under the guise of progressive taxation that the question would arise whether judicial power should not afford relief under inherent and fundamental principles of justice; but as there is plainly no ground for such a contention here, there is no need of considering the question.

2. It is argued that the provisions which deny to nonresidents the exemptions which are allowed to residents, and which allow the board of review to increase the assessment of a nonresident without notice, while requiring notice to be given to a resident, violate sec. 2 of art. IV of the federal constitution, which provides that “the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” The question as to the validity of the provision allowing exemptions to residents of/ the state and denying them to nonresidents is raised, and receives some attention in the briefs, but was not mentioned in the oral arguments. We regard it as a question involved in considerable doubt, and one not necessary to be passed upon now. It cannot be imagined for a moment that the legislature would have failed to pass the act had it not contained this provision, and we prefer to wait until the question is presented in a concrete case, at which time there will be opportunity to fully consider it after comprehensive briefs and arguments. It seems that the supreme court of the United States decided in Ward v. Maryland, 12 Wall. 418, at page 430, that one of the privileges and immunities protected by the section quoted is the right “to be exempt from any higher taxes or excises than are imposed by the state upon its own citizens.” Other decisions relied on upon the same side aré In re Stanford's Es tate, 126 Cal. 112, 54 Pac. 259, 58 Pac. 462, and Sprague v. Fletcher, 69 Vt. 69, 37 Atl. 239, 37 L. R. A. 840, and the cases cited in the latter case. On the other side reliance is placed on the analogy of the laws providing for exemptions from execution seizure, which confine their benefits to residents, and upon Travellers’ Ins. Co. v. Connecticut, 185 U. S. 364, 22 Sup. Ct. 673.

So far as the provision allowing the increasing of an assessment against a nonresident without notice is concerned, this would seem to he almost a necessity if power to increase the assessment of a nonresident is to he given to the hoard at all, otherwise the nonresident would only need to stay out of the state to prevent the possibility of an increase of his assessment. We do not consider that this latter provision affects in any way the privileges or immunities which are covered by the constitutional provision cited.

3. The claim is made that the law violates the constitutional guaranties of local self-government, by placing the power of appointment of the various assessors of incomes in the state tax commission.

These guaranties in substance are- (1) that all county officers, except judicial officers, shall be chosen by the electors of the county every two years (sec. 4, art. YI, Const.) ; (2) that all county officers whose election or appointment is not provided for by the constitution itself shall be elected by the electors or appointed by the proper county authorities, as the legislature shall direct; (3) that all city, town, and village officers whose election or appointment is not provided for by the constitution shall be elected by the electors of the proper municipality or appointed by such municipal authorities as the legislature shall designate; (4) that all other officers whose election or appointment is not provided for by the constitution, and all officers whose offices may thereafter be created by law, shall be elected by the people or appointed as the legislature may direct. Sec. 9, art. XIII, Const. These provisions have been quite fully considered and expounded by tbis court in several cases, and it seems unnecessary to add to tbe quite complete discussions of tbe subject to be found in O’Connor v. Fond du Lac, 109 Wis. 253, 85 N. W. 327, and State ex rel. Gubbins v. Anson, 132 Wis. 461, 112 N. W. 475.

It is sufficient to say that we do not regard tbe office of assessor of incomes, as provided for by tbis act, as either a county, city, town, or village office, nor do we regard it as an office existing in substance at the time of tbe adoption of tbe constitution, or essential-to tbe existence or efficiency of either of said municipal divisions of tbe state, but rather an entirely new office within tbe fourth class above named, whose election or appointment may be provided for in any way that tbe legislature may in its discretion direct.

Tbe further contention is made that it is a delegation of legislative power to vest in tbe state tax commission tbe power of appointing assessors of incomes and fixing their salaries. Tbis objection is met and fully answered in State ex rel. Gubbins v. Anson, supra, and in tbe Revisor’s Case (In re Appointment of Revisor of Statutes) 141 Wis. 592, 124 N. W. 670.

4. A number of contentions are made -with regard to tbe exemption features of tbe act, and, first, it is said under tbis bead that tbe allowance of exemptions 'to individuals and tbe denial of them to partnerships is unjust .discrimination. Tbe question depends, of course, upon whether there is any valid ground for classification. Is there such a substantial difference between tbe classes as to reasonably suggest or call for tbe propriety of different treatment ? We are clearly of opinion that tbis question must be answered in tbe affirmative. A partnership ordinarily has certain distinct and well known advantages in tbe transaction of business over tbe individual, arising from tbe fact that it allows a combination of capital, brains, and industry, and thus makes it possible to accomplish many things which an individual in tbe same business cannot accomplish. Further than tbis, however, there is another consideration. If the partner have individual income from other sourees than the partnership business (as many do), his exemptions will be allowed to him out of the individual income, and thus, if he were also allowed exemptions from the partnership income, he would be allowed double exemptions. Altogether there seems to be ample reason for the classification. The exemptions themselves do not seem to be seriously attacked, nor do we see any reason why they should be. The most striking exemption is that of life insurance to the amount of $10,000 in favor of one legally dependent on the deceased, but while this is somewhat large we cannot say that it is unreasonable, nor that there is not ample ground for classifying legally dependent persons, and extending an exemption to them which is denied to others.

Attack is made upon the provision which directs that a taxpayer who has paid a personal property tax for the year shall be entitled to have the amount so paid credited upon his income tax. There is said to be no just ground for this distinction, but it seems quite clear to us that there is; in fact it seems to be rather a means of equalizing the burden of the new form of taxation than to be really an exemption. It was evidently done with the idea of accomplishing, without too violent a shock to taxing machinery, the substantial elimination of personal property taxation and the substitution therefor of “ability” taxation. ' The practical result is that the taxpayer who has taxable personal property and the taxpayer who has none each pays taxes according to his ability as evidenced by his income.

In this connection, though not perhaps in its logical order, may be considered the objection to that provision of the act which directs that the estimated rental of residence property occupied by the owner shall be considered as income. It is said that this is not income, and that calling it income does not make it income. It may be conceded that things which are not in fact income cannot be made such, by mere legislative fiat, yet it must also be conceded, we think, that income in its general sense need not necessarily be money. Clearly it must be money or that which is convertible into money. The Century Dictionary defines it as that which “comes in to a person as payment for labor or services rendered in some office, or as gain from lands, business, the investment of capital, etc.” The clause was doubtless inserted in an effort to equalize the situation of two men each possessed of a house of equal rental value, one of whom rents his house to a tenant, while the other occupies his house himself. Under the clause in question the two men with like property are placed upon an equal footing, and in no other way apparently can that be done. Under the English income tax laws it has been held that where a man has a residence or right of residence which he can turn into money if he chooses, and he occupies the residence himself, the annual value of the rental forms part of his income. Corke v. Fry, 32 Scottish Law Rep. 341. We discover no objection to the provision in question.

Objection is also made to the provision that the income of a.wife living with her husband shall be added to the income of the husband, and the income of each child under eighteen years of age living with its parent or parents shall be added to that of the parent or parents. This is another case of classification, and it is only justifiable in case there’ is some substantial difference of situation which suggests the advisability of difference of treatment. We think there clearly is such a difference, in this, that experience has. demonstrated that otherwise there will be many opportunities for fraud and evasion of the law, which the close relationship of husband and wife or parent and child makes possible, if not easy. The temptation to make colorable shifts and transfers of property in order to secure double or even triple exemptions, if there were not some provision of this kind in the law, would unquestionably be very great. There is no snob temptation or opportunity in the case of the single man, or the man and wife who are living separately.

One further objection we overrule here without comment, for the reason that it seems very unsubstantial, namely, the objection that the law is retroactive and void, because assessed on incomes received during the entire year 1911, while it did not go into effect until July 15th of that year, and also because it includes profits derived from the sale of property purchased at any time within three years previously.

5. A strong argument is made attaching the validity of sec. 1087ro — 22, which provides in substance that the income of a resident derived from different political subdivisions of the state shall be combined for the purpose of determining the exemptions and the rate, while the income of a nonresident is to be separately assessed and taxed in each of the municipalities from which it is derived. A table is submitted showing that under this rule if A., a resident, derived $1,000 from each of thirteen different towns or cities he will be required to pay a tax of $367, because his income is aggregated, and consequently becomes in large part subject to the higher rates, while if B., a nonresident, receives the same income from the same sources, he will only pay the smallest rate, i. e. one per cent, of each $1,000, amounting to only $130. This, it is said, is unjust discrimination against the residents of the state, and deprives them of the privileges and immunities which are granted to the citizens of other states, in violation of the federal constitution. This presents the question whether such a discrimination can be made between residents and nonresidents, only this time the discrimination seems to be against the resident and in favor of the nonresident. This question also we deem one not necessary to be decided now, and we intimate no opinion upon it. It does not seem that the case will frequently arise, but if it does it can be then treated. We do not regard it as in any respect important in considering tlie validity of the act as a whole.

6. Much complaint is made of that part of sec. 1087m — 6 which provides a different rate of taxation for the income of corporations from the rate prescribed for individuals, and this also is said to be unjust discrimination. Again the question is whether there be substantial differences of situation between individuals and corporations which suggest and justify this difference in treatment, and again it seems that the answer must be Yes. The corporation is an artificial creation of the state endowed with franchises and privileges of many kinds which the individual has not. It might be said with truth that the clause could be justified on the ground that it is an amendment to every corporate charter, which the legislature has the undoubted right to make, but it is not necessary to rely on that proposition. - The corporate privileges, which are exclusively held by corporations., and the real differences between the situation of a corporation and an individual, among which may be mentioned the fact that the corporation never is obliged to pay an inheritance tax, plainly justify a difference of treatment in the 'levying of the income tax. Were the income tax a tax upon property, there could be no difference in rate, for taxation of property must still be on a uniform rule, but, as has been heretofore noted, it is not a tax upon property within the meaning of our constitution.

7. The minor objections that the law in terms includes all corporations and does not specifically except national banks, nor name the officers whose salaries cannot be constitutionally taxed, are very easily disposed of. If national banks or any public officers cannot constitutionally be subjected to the tax, the law will be construed as not applying in such cases, just as sec. 17705, Stats. (Laws of 1907; ch. 562), although in general terms covering all business, has been held not to apply to interstate business.

8. We come now to certain serious objections which are made to the provisions of secs. 1087m — 2, subd. 3, and 1087m — 3 (b). The first of these sections provides, in substance, that a resident shall be taxed upon all of his income arising from rentals, stocks, bonds, securities, or evidences of debt, whether the same be derived from sources within or without the state, but that the nonresident shall only be taxed on income derived from sources within the state, or within its jurisdiction, but that any person doing business both within and without the state shall, as respects that part of his income not derived from rentals, stocks, .bonds, and securities, be taxed only on that proportion, thereof which is derived from business transacted and properly located within the state, to be determined in the manner specified in subd. e of sec. 17706, Stats. (Laws of 1907, ch. 562), as far as applicable.

The general purpose of the section is quite evident, namely, to tax a resident upon his whole income, and a nonresident only upon his income plainly derived from sources within the territorial jurisdiction of the state, and to provide that where 'either person is engaged in a business interstate in its character he shall only be taxed on that portion of the income derived from business transacted and property located within the state, according to the rule prescribed in sec. 17706 for determining that proportion of capital stock of a foreign corporation doing business in this state which must be reported to the secretary of state. The rule so imported into the statute is an arbitrary rule, and need not be stated at length in the view we now take of our duty with regard to this contention.

Two fundamental objections are made to this section: first, that the state cannot tax the incomes of nonresidents no matter from what source derived, and, second, that the attempt to tax a part' of the profits derived from an interstate business, under the rule adopted, must necessarily result in a taxation of the receipts of interstate commerce, and hence a regulation thereof, which is in violation of that clause of the federal constitution which gives to Congress the power to regulate commerce between the states.

We shall decide neither of these questions now. If the section "be open to either or both of these objections, or any others, we cannot regard that fact as fatal to the act. The legislature evidently intended to avoid both of the objections made; they had a difficult and delicate subject to deal with. Had they been authoritatively informed that they could not constitutionally tax a nonresident’s income at all, and could not divide the income derived partially from state and partially from interstate business, we have no idea, that they would on that account have abandoned their purpose to pass the law. Again, if they provided an improper rule for the division (conceding that a division can be made at all), there seems no reason why the rule may not be rejected and the proper rule, which will carry out the fundamental purpose of the provision, be used. In any event we are fully satisfied that the rejection of any or all of the provisions objected to in this section cannot reasonably be held to invalidate the whole act.

When these questions are presented to us in a case actually arising, we shall be able to give, them far more critical examination in the light of arguments and briefs directed exclusively to them. For the present, therefore, we leave the various objections to the validity of those.parts of this section which are attacked without answer.

For the same reasons we decline at the present time to pass upon the objections to the second section referred to under this head. That section provides generally that a proportion of the interest on corporate bonds (to be ascertained in the same manner as the proportionate taxable income is ascertained in the preceding section) shall be taxed against the bondholders and paid by the corporation, and deducted from the next interest payment on the bonds. Many serious objections on behalf of foreign bondholders are made to this provision, from the fundamental objection that there is no power to levy such a tax at all, to the minor objection that the rule for ascertaining the proportion is incorrect. As we do not deem it necessary to pass upon any of these objections, we need not make particular statement concerning them now. The subject will be entirely open for discussion when an actual ease arises necessitating a decision upon this section.

We have reviewed all of the objections made to the law which we deem of sufficient importance to require specific mention or treatment. As a whole we regard the law constitutional. If there be provisions which will not stand the test, they are not provisions of such a nature that they must be considered as the inducement to or as the compensation for the balance of the law. They may drop out, and leave the law intact in its fundamental and essential features.

As to the Winding case, commenced in the circuit court, a few words should be said. This was an action brought by a number of persons and corporations who alleged that they were taxpayers and that they and their fellow taxpayers would be unlawfully taxed and compelled to pay large sums qnder the alleged unconstitutional law, thus causing a multiplicity of suits; and praying that the officers of the state be enjoined from executing the law and from paying any moneys out of the public treasury in its execution.

This seems to be a taxpayers’ action pure and simple, brought in the circuit court to stay the hands of state officers from paying moneys out of the state treasury. We have already held in this opinion that no taxpayer’s action can be maintained in the supreme court against the auditing or disbursing officers of the state. If such relief is sought it must be in an action by the state itself, either brought by the attorney general, or, in case of his refusal, by authority of the court itself, upon the relation of a private citizen. It would seem, a fortiori, that no taxpayer’s action should be entertained in the circuit court where the purpose is to halt the auditing and disbursing officers of the state. We regard this as the better administration. It is enough that this court has the power to authorize such an action if the exigency demands. To divide up that power and scatter it among the trial courts of the state, and allow every such court to judge of the exigency, might well lead to the bringing of many improvident actions. It is fitting that such an extreme power be vested in this court alone.

The result is that in the Bolens action the demurrer to the complaint must be sustained upon the merits, and judgment ordered dismissing the complaint without costs. In the Winding case the order sustaining the demurrers must be affirmed, and the action remanded with directions to dismiss the complaint for lack of jurisdiction.

By the Gowrt. — It is so ordered.

Tinlin, J.

(dissenting in part)'. Ch. 658, Laws of 1911, relating to the taxation of incomes and making an appropriation for salaries of officers and other expenses of executing and administering the statute, was enacted by the legislature, approved by the governor, and published July 15, 1911. The act went into effect as law from and after its passage and publication and officers were appointed to administer this law, but no assessment or levy of tax had been made and the time for enforcing the provisions of this act had not arrived when these suits were begun. I shall consider these suits separately, taking up first that begun in the circuit court by Arthur Winding and F. W. Gezelschap individually and as copartners, the Wisconsin Trust Company, a corporation, several other natural persons, a national bank, and the Milwaukee Coke & Gas Company, a corporation. These plaintiffs, evidently selected because of diversity of relations to the act in question, affected differently by different sections of the act, but all desirous of escaping payment of the tax, hence interested in the question of the constitutionality of the statute, join in a taxpayers’ suit in their own behalf and in behalf of all the other income taxpayers of the state against three members of the state tax commission, the secretary of state, and the state treasurer. The cause of action alleged is that the act above referred to is null and void because in violation of the constitution of the state of Wisconsin and of the constitution of the United States, and that the members of the state tax commission will, unless restrained by injunction, through their subordinate appointees, acting under said statute, exact and collect large sums of money from many residents and citizens of Wisconsin, which collections will lead to a multiplicity of suits to recover back the moneys so collected or to a multiplicity of suits by the state to collect the fines and penalties provided in and by said act to be enforced against those persons who refuse to comply with the act. On these grounds they pray for an injunction restraining the state tax commissioners and their subordinate administrative officers from attempting to enforce the act and restraining the secretary of state, who is by the state constitution auditor, from auditing, and the state treasurer, who is also a constitutional officer, from paying salaries, bills, or expenses of any kind incurred under or payable by the terms of the act in question. This act carries in it a legislative appropriation for such purpose. This is therefore a bill by taxpayers to enjoin the enforcement of a statute levying taxes upon incomes on the ground that the statute is unconstitutional, which bill is sought to be upheld upon the equitable ground that it takes the place of a multiplicity of suits or actions, but so far as the secretary of state and the state treasurer are concerned it is a bill to restrain the payment of moneys out of the state treasury for the purpose of administering or enforcing a law claimed to be invalid. As to the latter defendants, who have no part in executing or enforcing the act except auditing and paying bills, salaries, and expenses under the legislative appropriation, the bill is maintaiñable only upon the ground that each individual taxpayer in the state has a proprietary interest cognizable in equity in the funds of the state treasury in analogy to the shareholder in a private corporation or the taxpayer in a municipal corporation. Land, L. & L. Co. v. McIntyre, 100 Wis. 245, 256, 75 N. W. 964, and cases.

The circuit court sustained a demurrer to this complaint, and from that order the plaintiffs appealed to this court. This demurrer went expressly to the point that the circuit court had no jurisdiction of the action, and also to the point that the complaint did not state facts sufficient to constitute a cause of action; so that both these questions are before us on this appeal. Generally speaking the law does not give a private remedy for the redress of a public wrong. One damaged or threatened by an unlawful act which affected him only as it affected that section of the public holding the same legal 'relation to such act, could not at common law or in equity maintain an action against the doer of such act. And it mattered not that his damages were greater. If they were of the same nature and differed only in degree the wrong was still a public wrong. The rule has been applied in a great variety of cases in this court. Enos v. Hamilton, 27 Wis. 256; Cohn v. Wausau R. Co. 47 Wis. 314, 2 N. W. 546; Baier v. Schermerhorn, 96 Wis. 372, 71 N. W. 600; Stedman v. Berlin, 97 Wis. 505, 73 N. W. 57; Liermann v. Milwaukee, 132 Wis. 628, 113 N. W. 65; Linden L. Co. v. Milwaukee E. R. & L. Co. 107 Wis. 493, 83 N. W. 851; Pedrick v. Ripon, 73 Wis. 622, 41 N. W. 705; Bell v. Platteville, 71 Wis. 139, 36 N. W. 831; Stone v. Oconomowoc, 71 Wis. 155, 36 N. W. 829; Gilkey v. Merrill, 67 Wis. 459, 30 N. W. 733, and cases cited; Sage v. Fifield, 68 Wis. 546, 32 N. W. 629; Harley v. Lindemann, 129 Wis. 514, 109 N. W. 570; Foster v. Rowe, 132 Wis. 268, 111 N. W. 688; Garstens v. Fond du Lac, 137 Wis. 465, 119 N. W. 117; Nast v. Eden, 89 Wis. 610, 62 N. W. 409.

It has been sometimes said by law writers and courts that this rule rested upon the consideration that, if one suit could be maintained in such case, each person affected might also bring suit and thus the defendant be ruined by litigation. This consideration has special significance and force in a state where the law permits suits to be brought by private persons against administrative officers charged with the duty of enforcing the law. Few officers would attempt an efficient administration at such risk, and the ultimate result must be either injustice or inefficiency. But there is another reason for the rule which lies deeper and upon a broader foundation of governmental policy. That is the policy which places the prosecution of public wrongs in the hands of the public prosecutors and out of the hands of those who may be actuated by private revenge or gain, malice, or political intrigue. Biemel v. State, 11 Wis. 444, 37 N. W. 244. If the state as a sovereign is to have its proper and lawful recognition in our jurisprudence, it is, in the absence of statute, subject to no defense of laches, no limitation of time, and no liability to suit, and it must also be regarded as the repository of governmental policy and political discretion. When and how it will assert and enforce its sovereign prerogatives is often a political question, a matter of state policy, and to leave these great questions in the hands of every private litigant has a tendency to create confusion in jurisprudence, lack of wisdom in state policy, and contempt for authority. In the great case of Att’y Gen. v. Railroad Cos. 35 Wis. 425, Chief Justice Ryan said at page 529: “Relief against public wrong is confined to informations by the attorney general.” See further, for illustration, Saylor v. Pennsylvania C. Co. 183 Pa. St. 167, 38 Atl. 598. The victim of robbery, battery, or arson may have a private action for damages against the wrongdoer, suspended, according to some, until the pending public or state prosecution is at an end, and not concluded by the result of the public prosecution. But there there is coincident and cotempo-raneous with the public wrong a private wrong suffered by the victim, distinct and different from that suffered by any other member of the public. Where all are affected alike by the wrongful act, the language of the cases and many of the actual adjudications indicate that there is no private actionable wrong, not merely a lack of remedy. Cases infra and supra. An exception to these general rules was recognized in the case of taxpayers, first in this state, T think, in Peck v. School Dist. 21 Wis. 516, and this doctrine received the approval of the supreme court of the United States in Crampton v. Zabriskie, 101 U. S. 601. Since then the scope of the taxpayer’s action, so called, has been greatly extended by this court and its decisions have not always been consistent. In Peck v. School Dist., supra, the action was- brought by certain taxpayers whose personal property had' been levied upon and advertised for sale to restrain local administrative officers from action taken contrary to statute and consequently outside of their jurisdiction, to the private injury of plaintiffs. Their remedy for this conceded private wrong would ordinarily be at law. But the contract which formed the basis for the tax was found to be fraudulent, thus arousing the jurisdiction of equity, and the injunction against the enforcement of the tax sustained upon the ground that, the jurisdiction of equity having once rightfully attached, it should be made effectual for the purposes of complete relief. .The decision of the court was written by Chief Justice DixoN. When the question was presented about four years later in a suit by taxpayers involving no recognized ground of equity jurisdiction, but showing the plaintiffs to be taxpayers threatened with the enforcement of an illegal tax precisely as it is presented by the .complaint in the instant case, except that there it was averred the local administrative officers acted without their statutory jurisdiction, while here it is averred that the legislature of tlie state acted without its constitutional jurisdiction, the same distinguished jurist, denying the injunction, said among other things:

“The general principle that equity possesses no power to revise, control, or direct the action of public, political, or executive officers or bodies is of course well understood. It never does so at the suit of a private person, except as incidental and subsidiary to the protection of some private right or the prevention of some private wrong, and then only when the case falls within some acknowledged and well defined head of equity jurisprudence. It is upon this principle that bills to restrain the collection of a tax have in general been dismissed” (citing cases). “But there are other reasons why equity will refuse its aid in a case like this, and which are most ably pointed out in the opinions in Doolittle v. Supervisors, 18 N. Y. 155, and in Sparhawk v. Union P. R. Co. 54 Pa. St. 401. The grounds are too remote, intangible, and uncertain, and the public inconvenience which would ensue from the exercise of the jurisdiction would be enormous. It would lie in the power of every taxpayer to arrest all proceedings on the part of the public officers and political bodies in the discharge of their official duties, and, assuming to be the champion of the community, to challenge them in its behalf to meet him in the courts of justice to defend and establish the correctness of their proposed official acts before proceeding to the performance of them. A pretense more inconsistent with the due execution of public trusts and the performance of official duties could hardly be imagined.” Judd v. Fox Lake, 28 Wis. 583.

This case has been cited and followed many times. In Gilkey v. Merrill, 67 Wis. 459, 30 N. W. 733, wherein it was expressly adjudicated that an action will not lie in behalf of a taxpayer to set aside the taxes of a city or other municipality generally, Judd v. Fox Lake is cited to support the rule that there must be some distinct principle of equity jurisprudence under which the case is brought other than the mere illegality of the general taxes and its necessary and usual consequences. In Pedrick v. Pipon, 73 Wis. 622, 41 N. W. 705, to tbe effect that the mere passage of a resolution and intent to enforce it'are not sufficient to support a taxpayer’s suit. In Sage v. Fifield, 68 Wis. 546, 32 N. W. 629, to the same effect. In Foster v. Rowe, 132 Wis. 268, 111 N. W. 688, to the effect that no action will lie by a taxpayer in his own behalf and in behalf of other taxpayers to restrain the levy and collection of the taxes of -a municipality generally. See, also, Harley v. Lindeman, 129 Wis. 514, 109 N. W. 570. If the equitable ground of the prevention of a multiplicity of suits could be invoked to support such a taxpayer’s .action for the reason that the collection of an invalid tax will breed a multitude of suits at law to recover back the taxes or on the ground that it will require a multitude of suits or proceedings in the nattire of suits by the state to collect the taxes, then manifestly the foregoing cases were incorrectly decided, for all invalid tax levies give rise to suits to recover back the taxes, and generally the nonpayment of taxes is followed by penalties of some kind. Such suits are also forbidden by the Tule which prohibits the courts to entertain suits by a private citizen to vindicate a public right, or that which prohibits a court of equity from employing its preventive remedies so as do interfere in a wholesale way with the collection of the public revenues. But I think they were correctly decided upon •either ground. See Bell v. Platteville, 71 Wis. 139, 36 N. W. 831, and reasons there given for refusing to entertain the taxpayer’s suit; Stone v. Oconomowoc, 71 Wis. 155, 36 N. W. 829; Harley v. Lindemann, 129 Wis. 514, 109 N. W. 570; Carstens v. Fond du Lac, 137 Wis. 465, 119 N. W. 117. In the latter case the right of a taxpayer to sue in behalf of other taxpayers is denied where the plaintiff merely seeks to relieve his property of a tax which he claims to be void. In Giblin v. North Wis. L. Co. 131 Wis. 261, 111 N. W. 499, the cases are cited which hold that a decree in a taxpayer’s suit is binding upon all the taxpayers and citizens of the municipality concerned in the litigation. -The taxpayer’s suit as both created and limited by judicial decisions in this state has been productive of very beneficial results in preventing municipal maladministration, conserving municipal funds and property, and keeping fraudulent or erring municipal officers within their jurisdiction. But the fact that it has cured some ills does not prove it a panacea. It has its limitations, as above shown, founded upon sound policy, even with respect to subordinate municipal officers. Eor stronger reasons those limitations must be applied when the suit is state-wide in its operation and is in effect a suit against the state to prevent the entire state levy and collection of a tax on the averment that the law sought to be enforced is unconstitutional. The state as such has immunity from actions except where expressly authorized by statute, and here no such statute exists covering the instant case. The state officers in the execution of a law have a wider latitude of discretion than municipal officers. Taxpayers’ suits against the latter are brought to vindicate some law, here to annul a statute. The taxpayer here attempts to represent a larger constituency, and the arrest by injunction of all the taxes of the state surely implies a wider scope of power, larger interference with administrative officers, and multiplication of the serious consequences mentioned in the quotation from Judd v. Fox Lake, supra. It seems apparent that under the decisions of this court the first action cannot be supported as a taxpayer’s action based upon the avoidance of a multiplicity of actions at law or suits in equity. The other ground averred in support of the complaint is, as said, based upon the claim that each taxpayer of the state has an equitable proprietary interest in the funds in the state treasury, or an interest of such a nature that equity will recognize it and protect it by injunction against the constitutional fiscal officers of the state to-prevent them from paying out of such treasury funds for the-execution or administration of an unconstitutional law, under the rule applied to municipalities in Land, L. & L. Co. v. Mc Intyre, 100 Wis. 245, 256, 75 N. W. 964; Estate of Cole (Mulberger v. Beurhaus), 102 Wis. 1, 78 N. W. 402; and other cases in this court. BuUthe situations are not analogous. Tbe state is not to be put upon tbe level of a private or of a municipal corporation. Tbe- former is tbe sovereign, tbe latter tbe subjects. Tbe courts bave jurisdiction in an action against a municipality as against a. natural person. They bave no jurisdiction of actions against tbe state except with tbe consent of tbe state expressed by tbe legislative branch of tbe government and approved by tbe executive. Unlike tbe federal constitution and tbe constitutions of most of tbe states, tbe constitution of this state creates and recognizes not three but four branches of government: legislative, executive, administrative, and judicial. Administration is logically and in most cases legally recognized as an exercise of tbe executive power. Tbe beads of tbe great administrative departments of tbe United States government derive their power from tbe grant of executive power in tbe federal constitution and their lawful acts are treated as acts of tbe chief executive, and in some instances an injunction against them to prevent tbe enforcement of law challenged as unconstitutional was put upon tbe same level as a like injunction against tbe President. Mississippi v. Johnson, 4 Wall. 475; Georgia v. Stanton, 6 Wall. 50, and cases in Rose’s Notes. The administrative officers named in art. VI of our state constitution are secretary of state, treasurer, and attorney general for tbe state, and sheriffs, coroners, registers of deeds, and distinct attorneys for tbe counties. Among tbe duties of tbe secretary of state prescribed by tbe constitution is that “be shall be ex officio state auditor.” There is no general grant of tbe whole administrative power to any one of or to all these officers, and doubtless this and sec. 4 of art. V, which requires of tbe governor that “He shall expedite all such measures as may be resolved upon by tbe legislature,'and shall take care that the laws be faithfully executed,” is sufficient authority for tbe legislature .to impose upon tbe governor and upon subordinate administrative officers like tbe state tax commissioners all necessary administrative powers not by the constitution vested in tbe administrative officers therein mentioned. There is also found in our state constitution some express limitations upon tbe power of tbe legislature over tbe funds in tbe state treasury and some restrictions of that power by necessary implication. Instance sec. 18 of art. I, which provides that no money shall be drawn from tbe treasury for tbe benefit of religious societies or religious or theological seminaries. Also sec. 2, art. VIII, which forbids an appropriation for tbe payment of any claim (except claims of the United States and judgments) not filed within six years after tbe claim accrued; and there are others. State ex rel. New Richmond v. Davidson, 114 Wis. 568, opinion of Dodge, J., at page 580, 88 N. W. 506, 90 N. W. 1061. There are restrictions by necessary implication, as sec. 1, art. X, which provides that the compensation of the superintendent of public instruction shall not exceed the sum of $1,200 annually. State ex rel. Raymer v. Cunningham, 82 Wis. 39, 50, 51 N. W. 1133. Rut these only accentuate the application to all other treasury disbursements of the rule fundamental in popular representative governments that the popular branch of the state legislature or the legislative branch of the government shall control the public purse. Dxpressio unius est ex-clusio alterius. In no system is the judiciary the guardian of the public treasury except as the constitution by restrictions upon legislative power in this direction may have so provided that a judicial controversy not involving political discretion may arise. The manner in which appropriations of money must be made is regulated, and there is a general provision, refeognizing the authority of the legislative branch of the government over the public funds, to the effect that no money shall be paid out of the treasury except in pursuance of. an appropriation made by law. There is in the instant case an appropriation made by law, but it is contended tbat tbis appropriation, being made for the purpose of administering or carrying into effect an unconstitutional law, is itself unconstitutional. What provision of the constitution does it conflict with if we suppose the premises correct ? The state legislature is not expected to find a ¿rant of power to it in the state constitution. Where there is no restriction it possesses the power. Comm. v. Plaisted, 148 Mass. 375, 19 N. E. 224. There is no such restriction upon the power of the legislature over the public funds. On the contrary it may well be within the duty, at least it is within the discretion, of the legislature that all'laws, even invalid laws, be enforced and thus brought to the test before the courts in the ancient, well understood, and lawful way. But in any event the courts have no authority to interfere by injunction and thus forestall attempts to enforce the law. This because the taxpayer has no interest in the funds in the public treasury to restrain these officers, and because the court has no power to create such an interest in the taxpayer, and because the court does not possess the power, where no constitutional interdict intervenes, to control the disbursements of public funds as against the legislative branch of the government. But of this hereafter.

It further seems to me obvious that' a suit by a taxpayer against such fiscal officers of the state, based upon the claim that a statute is unconstitutional, is a suit by a private person against the state, not going upon any apprehended de: struction or confiscation of his property or clouding his title, as we say in legal phrase, not quia timet but ostensibly as champion of the public interests and. in self-assumed protection of public funds, and really to avoid payment of the tax by arresting the power of the state in its attempt to execute the law by furnishing the funds for that purpose. That this is a suit against the state is settled, by authority here and elsewhere. It falls within the rule of State ex rel. Drake v. Doyle, 40 Wis. 175, sixth paragraph of opinion, and the cases there selected for approval. Stephens v. T. & P. R. Co. 100 Tex. 177, 97 S. W. 309; Lord & P. C. Co. v. Board of Agriculture, 111 N. C. 135, 15 S. E. 1032; State ex rel. Hart v. Burke, 33 La. Ann. 498; Poindexter v. Greenhow, 114 U. S. 270, 5 Sup. Ct. 903, and cases in Eose’s Notes; and Fitts v. McGhee, 172 U. S. 516, 19 Sup. Ct. 269, are in point, and other cases can he found. Quoting from the last cited case:

“If, because they were law officers of the state, a case could he made for the purpose of testing the constitutionality of the statute, by an injunction suit brought against them, then the constitutionality of every act passed by the legislature could be tested by a suit against the governor and the attorney general, based upon the theory that the former as executive of the state was, in a general sense, charged with the execution of all its laws, and the latter, as attorney general, might represent the state in litigation involving the enforcement of its statutes. That would be a very convenient way for obtaining a speedy judicial determination of questions of constitutional law which may be raised by individuals, but it is a mode which cannot be applied to the states of the Union consistently with the fundamental principle that they cannot, without their assent, be brought into any court at the suit of private persons.” See, also, Ex parte Young, 209 U. S. 123, 157 et seq., 28 Sup. Ct. 441.

But there emerges here what is perhaps a larger question. To say that the courts have jurisdiction to review statutes at the suit of any taxpayer of the state who seeks to enjoin the payment of moneys out of the state treasury for the administration or enforcement of those statutes is to establish a general revisory jurisdiction in the courts over all legislation before any actual judicial or justiciable controversy has otherwise arisen. I may safely say that no statute is received with unanimous approval. A taxpayer may always be found. It is no answer to say that the court has a discretion as to when it will recognize this right of the taxpayer or issue its injunction. That only changes the principle which it is sought to engraft upon our form of government to the extent that we are to modify tbe statement of it by saying: “The courts bave the power in their discretion to review all legislation,” etc. To my mind it is an obvious fallacy to say that this power or this discretion extends only to the review of unconstitutional statutes. As well might one say that courts had jurisdiction to try only guilty persons charged with crime. The inquiry proposed is whether or not the act in question is unconstitutional, and it is to entertain such inquiry and decide it for or against the validity of the statute that the jurisdiction exists if it exists at all. To recognize a power .resident in the courts by which that branch of the government could supervise legislation in this way would be to create a radical change in our plan of government as heretofore understood. This must be quite apparent to those who have extended their legal studies beyond the minutiae of adjudged cases and the rules of private right and have acquired some knowledge of the principles of government. All revenue measures and most other statutes involve some charge upon the public treasury for their administration. All acts of the legislature involve the expenditure from the state treasury of at least- printing and publishing. Therefore all statutes would at this preliminary stage be subject to judicial review. In reply to a suggestion of this kind from the bench one of the learned counsel for plaintiffs suggested that this expense was so small that a suit would not be entertained because de minimis non Curat lex. But this answer overlooked the cases of Mueller v. Eau Claire Co. 108 Wis. 804, 84 N. W. 430, and Chippewa B. Co. v. Durand, 122 Wis. 85, 108, 99 N. W. 603, wherein it was held that the court will not inquire into the amount or extent of the taxpayer’s interest so long as he is a'taxpayer'. Besides, it overlooked the consideration that in a republic founded upon the equality of its citizens before the law it would be quite inconsistent with fundamentals to rest the jurisdiction to review legislative acts at this preliminary stage of their existence upon the wealth of the taxpayer who comes in to represent bimself and the public. Nor can the amount of tbe charge which the law imposes on the state treasury affect this question, which is one of jurisdiction. No statute gives the taxpayer an interest in the funds in the state treasury. The courts must invent that species of property right if it is to have recognition in the courts. The courts also have considerable discretion in granting or withholding injunctions. This inevitably leads to the conclusion that the court is asked to create or recognize a right not given by common law or statute and then exercise its discretion to issue an injunction to prevent threatened invasion of this right, and all for the purpose of making an occasion or an opportunity to review the constitutionality of a statute at the preliminary stage of its existence, before its enforcement is attempted and before any controversy otherwise justiciable has arisen. To do so would conflict with the notion of constitutional law and the powers of the judicial branch of the government with reference to declaring laws unconstitutional announced in Marbury v. Madison, 1 Cranch, 137, and many cases since. It has been said that courts never declare a statute unconstitutional, but, being confronted with a judicial question which it may not evade and with a constitution which commands one thing and a statute which commands the opposite, they reluctantly and unavoidably obey the paramount, not the subordinate, command. The result of the grave duty thus forced upon the court is unconstitutionality of the statute because it is incapable of enforcement in the courts which speak last. But here we are asked not only to compare the statute with the constitution, but to make the occasion for so doing, and to hold for the purpose of enabling us to do so, by legislation, legal fiction, or unprecedented judicial decision, that every taxpayer has a proprietary interest in the funds in the state treasury. The controversy at this stage concerning the constitutionality of a statute is the same which was or might have been presented to the judiciary committees of the legislature or to the legislature in session the same as that waged before the governor to induce him to veto the act. It is in the nature of an appeal from the legislative and executive branches of the government to the judicial.

“The theory upon which, apparently, this suit was brought is that parties have an appeal from the legislature to the courts; and that the latter are given an immediate and general supervision of the constitutionality of the acts of the former. Such is not true. Whenever, in pursuance of an honest and actual antagonistic assertion of rights by any one individual against another, there is presented a' question involving the validity of any act of any legislature, state or federal, and the decision necessarily rests on the competency of the legislature to so enact, the court must, in the exercise of its solemn duties, determine whether the act be constitutional or not; but such an exercise of power is the ultimate and supreme function of courts. It is legitimate only in the last resort, and as a necessity in the determination of real, earnest, and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.” Chicago & G. T. R. Co. v. Wellman, 143 U. S. 339, 12 Sup. Ct. 400.

See, also, Charles River Bridge v. Warren Bridge, 11 Pet. 420; Georgia v. Stanton, 6 Wall. 50; Mississippi v. Johnson, 4 Wall. 475. An injunction will not issue to restrain the execution of an unconstitutional law merely on the ground that it is unconstitutional. Thompson v. Comm’rs, 2 Abb. Pr. 248; Birmingham v. Cheetham, 19 Wash. 657, 54 Pac. 37; People ex rel. Alexander v. District Court, 29 Colo. 182, 68 Pac. 242. I am convinced that the decision below was correct and should be affirmed.

In the second suit a private citizen who is also a taxpayer seeks as relator to begin in this court' an action by and in the name of the state against the secretary of state and state treasurer for the purpose of enjoining them from paying out funds from the state treasury for salaries and other expenses of administering this law, and also against the members of the state tax commission, enjoining the latter from exercising the duties and powers conferred upon them by the act in question, all upon the ground that this act is unconstitutional. As against the secretary of state and state treasurer the ostensible purpose of the bill is to protect the state treasury; as against the state tax commission the real purpose of relator to avoid paying income tax is disclosed. No steps have been taken to enforce the law and the time for its enforcement has not arrived. Application was by relator made to the attorney general to begin and prosecute this suit, that official refused, and the relator on this showing, with the usual averments of irreparable injury, etc., seeks to arouse the original jurisdiction of this court to entertain the suit, to put his private counsel in the place of the attorney general to prosecute it, and to have the state at this stage of existence of the statute enjoin its own officers from collecting its own revenue upon the averments that the statute is unconstitutional. The constitutional grant of power to this court is that

“The judicial power of this state, both as to matters of law and equity, shall be vested in a supreme court, circuit courts, courts of probate, and in justices of the peace. . . .” Art. VII, sec. 2.
“The supreme court, except in cases otherwise provided in this constitution, shall have appellate jurisdiction only, which shall be co-extensive with the state. . . . The supreme court shall have a general superintending control over all inferior courts; it shall have power to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, and other original and remedial writs, and to hear and determine the same.” Art. VII, sec. 3.

That portion of the last above quoted section giving power to issue the writs mentioned and to hear and determine the same was construed to confer upon this court original jurisdiction of all judicial controversies within the scope of and instituted by the issuance of such writs at common law, but it was said that the court would only exercise the power thus granted in controversies affecting the sovereignty of the state, its franchises and prerogatives, or the liberties of its people. It was also decided that the writ of injunction, found in this section associated with the so called prerogative writs, might also for this reason be employed to assert the prerogatives of sovereignty. Cases collected in State ex rel. Lamb v. Cunningham, 83 Wis. 90, 53 N. W. 35. .Rules regulating the exercise of the original jurisdiction as distinguished from the appellate jurisdiction of this court, while appropriate and desirable to facilitate our work, are not fundamental. Power is derived from the constitution, not from such rules, which only operate to regulate the manner of its exercise. They merely serve to indicate when the parties litigant should approach this court in the first instance and when reach this court by appeal or writ of error. There -is, I think, a marked inconsistency between such cases as State ex rel. Drake v. Doyle, 40 Wis. 175; In re Hartung, 98 Wis. 140, 73 N. W. 988; and State ex rel. Stengl v. Cary, 132 Wis. 501, 112 N. W. 428; and other cases found in our reports and referred to in the opinion written by Chief Justice WiNsnow herein. I am quite satisfied with the opinion of the court in this respect, but fear it will meet the usual fate of mere judicial warnings and be again disregarded when a new exigency arises. The constitution vests in this court only judicial power, thus excluding by implication political, administrative, and legislative power. The power to institute a suit by and in the name of the state cannot logically be said to be an exercise of judicial power. It is rather executive or administrative. The attorney general, district attorneys, the governor, and other officers possess this power although they exercise no .judicial power. It is only by historical associations of the words “judicial power,” as distinguished from scientific definition, that the act .of instituting a suit in court in the name of-the state can be called an exercise of judicial power. Assuming it to be settled by precedent that the judicial power mentioned in our constitution is that power formerly exercised by the court of King’s Bench and the Chancery courts in England, still that power fell short of authorizing an attack by suit upon the acts of co-ordinate departments of government by any writ before any legal controversy had arisen by the attempted execution of such acts. How then did this court acquire jurisdiction to authorize the institution of and then to entertain such a suit? Neither logical analysis of the term “judicial power” nor historical association warrants the exercise. The restriction of suits against the state is quite impotent if every taxpayer of the state, while he cannot make the state a defendant in his suit, may nevertheless make the state a plaintiff in a civil action against the same state officers to fight his battle for him. If these state officers represent the state in an action against them to restrain them from enforcing the law, they occupy the same legal position and make the same claims when this form of making the state plaintiff is complete. We can hardly say that the controversy has become a suit by the state against the state, for that would be absurd. We cannot liken the state to a trustee seeking the advice and direction of the court, for that presupposes a supervisory jurisdiction over the trust and in the court and begs the question. We cannot find an analogy in the governments of those states like Massachusetts where the governor or the legislature may call upon the court for an opinion in advance of enactment and of litigation, because there it is conceded that the courts in giving such opinions act not in a judicial but in a political capacity. Opinion of Justices, 126 Mass. 557, 566. Turn this as we will, we are always confronted with the fact that, whether the taxpayer is plaintiff or the state plaintiff, the suit involves a claim on the part of this court of power to revise and review acts of the legislature with reference to their constitutionality before any judicial controversy has arisen other than a controversy nursed into life and existence by this court for the purpose of such revision. All that I have said and quoted with reference to the action in the name of the taxpayer on this point applies to this action. Of the two I would prefer the taxpayer’s suit, because this is subject to the same weakness and also savors of subterfuge. Sovereignty is one and indivisible. But in the exercise of sovereign power all the great departments of government must concur. The manner of this concurrence is regulated by the division of governmental powers in the constitution and the limitations placed upon each department arising from this division or from express or necessarily implied restrictions found in the organic law. This sometimes impairs efficiency, but it promotes liberty. The most promptly efficient government is a despotism. It is the wisdom of the spendthrift which sacrifices future advantage for immediate gratification; The statesmen who founded the American republic understood these things and made deliberate choice between a government of liberty and one of temporary and prompt efficiency. ' The result thus far has justified their judgment. In the prevailing plan of government the guardianship of the funds in the public treasury, except when otherwise specially provided, is committed to' the legislative branch of the government, which is responsible to the people. The judicial branch of the government is to take no part in political questions. In consummation of the exercise of the sovereign power it is to act last, and to act only when aroused by an actual judicial controversy. Until it comes before the court incidentally in such controversy, the question of the constitutionality of a statute is a political, not a judicial question. There is therefore no jurisdiction resident in the courts, as there is in the legislature and the governor, to declare an act unconstitutional in advance of a judicial controversy which necessarily involves that question. The court therefore has no jurisdiction to create such controversy by authorizing what is to my mind a fictitious suit in behalf of the state against its own officers, where the ground for such a suit is that these officers are about to collect taxes under a general tax law. That is merely a statement of the rule that what cannot constitutionally be directly done cannot be done by indirection. The latter breaks down the American republican form of government as well as the former. Examining from another viewpoint: In a case where a bounty was granted to manufacturers of sugar by Congress and the disbursing officer of the treasury refused payment under the belief that the act of Congress was unconstitutional, and the statute authorized a suit against the United States, an actual justiciable controversy thus arose. But even here, and under a constitution carrying delegated power only, the supreme court of the United States decided, as set forth in the second paragraph of the syllabus:

“It is within the constitutional power of Congress to determine whether claims upon the public treasury are founded upon moral and honorable obligations, and upon principles of right and justice; and having decided such questions in the affirmative, and having appropriated public money for the payment of such claims, its decision can rarely, if ever, be the subject of review by the judicial branch of the government.” U. S. v. Realty Co. 163 U. S. 427, 16 Sup. Ct. 1120. Approved in Allen v. Smith, 173 U. S. 589, 19 Sup. Ct. 446, and cited in State ex rel. Garrett v. Froehlich, 118 Wis. 129, 143, 94 N. W. 50.

If we compare the instant case with the above we will find that here no justiciable controversy has arisen, but the court is asked to make one by authorizing a suit in the name of the state upon the petition of a taxpayer, and that here we are asked to decide in such suit that the legislature, which possesses all power not forbidden, had no power or discretion to make an appropriation of public moneys for the purpose of enforcing a statute passed by its legislature and approved by its executive. I think this court has no jurisdiction so to do. For the court to decide before its judicial power is aroused by a legal controversy is to assume a jurisdiction not given to it by law. I think the assumption of such jurisdiction changes the form of government as heretofore established and understood, and therefore we are justified in disregarding or overruling precedents in this court which might by mere logical inference seem to support this suit. I think we should have the courage to stop before taking this last step fraught with such consequences. In this connection I wish to mention the case of State ex rel. Rosenhein v. Frear, 138 Wis. 173, 119 N. W. 894, which was a motion for leave to bring suii in the name of the state. When that motion was presented it will be remembered by those present that I protested vigorously from the bench against countenancing any such proceeding. I thought then and I still think that the suit there suggested was preposterous. If the legislature of Wisconsin had not been a body of rather feeble temper it might not be entirely discreet for judicial officers to assert the right to launch and determine such a suit. But the motion was denied, and I regret to say that I gave no careful attention to the language of the opinion denying the motion and neglected to dissent therefrom. I do not think either that the complaint states a cause of action in favor'of the state and against its officers. The mere fact that taxes will be collected from a large number of its citizens by the state authorities for the state creates no actionable wrong against the state. All general laws affect all the people of the state ánd all police regulations curtail their rights or liberties to some extent. But this gives no right of action to the state. Neither can a general tax law, be it ever so new. The notion that the state has a right of action to test such laws is, to say the least, very novel. Nor does the fact that a law which appears on its statute books and is about to be enforced at some expense upon the state treasury do so. It is the legal and constitu-' tional way in which to handle a law whether that law be valid or invalid. It is the proper mode of getting that law before the courts. It merely amounts to saying that the officers of the state are about to enforce the state statutes in such manner as to create justiciable controversies which will thus come before the court in the ancient, established, and orderly way. Surely such attempt is not actionable. If the statute is valid it is their duty to enforce it, and it is in any event their duty to obey it until it is held to he invalid by the judicial branch of the government in a judicial controversy of which the latter branch has jurisdiction. If the legislature has discretion to recognize merely moral obligations and appropriate money for their payment, it surely may appropriate money for enforcing even a void act and thus bringing it to the judicial test in an actual controversy. It may be that in the march of -progress and the evolution of governments the change in the plan of our government created or confirmed by the decision herein is inevitable. But I mistrust, and I think not through timidity, the steady progress of this court always in the direction of grasping more power. This will establish the judiciary as a political branch of the government and displace it from that place of dignified impartiality which it has so long and so successfully filled. This extension of power is the progress which has always resulted in the wreck of human institutions. I have now made my protest against it in In re Appointment of Revisor, 141 Wis. 592, 124 N. W. 610; in State ex rel. Kustermann v. Board of State Canvassers, 145 Wis. 294, 130 N. W. 489; in State ex rel. Rosenhein v. Frear, supra; in Lawler v. Brennan, - Wis. -, 134 N. W. 154, and in the instant case, and so discharged what I conceive to be my duty. In any view of the case, even that taken in the majority opinion, it seems to me the second action should be dismissed for want of jurisdiction as against the secretary of state and the state treasurer. But I consider that this court has, under the constitution of this state, no jurisdiction to review the statute at this stage of its existence and in this way in either case. The assumption of the jurisdiction so to do cannot be justified upon tbe comparative futility of sucb review demonstrated by tbe result in this case.

Marshall, J.

I concur in tbe decision and in the stated general character of this- court’s original jurisdiction, viz.: that it is wholly of a prerogative character, to be exercised in the name of the sovereign, — the state, standing for the people as an entirety.

I concur that prerogative judicial jurisdiction under the constitution is reserved, wholly, to this court, and that an ordinary taxpayer’s action to vindicate private rights is entirely outside of that field.

I do not concur in the view that the circuit courts have no jurisdiction of taxpayer’s actions to enjoin illegal disbursements or waste of state money under the guise of an unconstitutional legislative enactment. The jurisdiction of such circuit courts is as boundless under the constitution, as to all ordinary matters, as can be the violations of legal or equitable rights. It was lodged there by the people in the beginning. It cannot be given, taken away, or modified, legitimately, by any fiat of this court or in any way except in the manner pointed out in the fundamental law without invading the field of usurpation.

The historical treatment of this court’s administration of its original jurisdiction is not to be taken, I apprehend, as intended to indicate that its power is fenced about by mere precedents, or at all, except by the broad prerogative purposes of the grant. So far as the classification of precedents illustrates the general nature of the jurisdiction respecting what is and what is not within the field of prerogative purpose, it is very valuable but should be regarded, I think, in that light only. Any situation calling for remedial activity which falls within the prerogative field falls within the original jurisdiction of this court, regardless of whether there is any precedent to fit the case; but whether such jurisdiction should be exercised or not in any given case must, necessarily rest, more or less, in judicial discretion.

I do not concur in the restrictive character of the decision. I think the court should meet now and decide now, plainly and permanently, each of the important questions discussed by counsel, which, obviously, must be decided by this court sooner or later, and the earlier the better for all concerned. Any delay I think should be avoided, if possible, thus obviating the occurrence of a period of uncertainty characterized by expensive litigation and business disturbance attributable to failure by this court to grapple now, after the full argument had, efficiently with the matters referred to. Judicial progress along that line is the correct judicial policy. It is wholly within the court’s power to so progress. It is the need of the times. The whole people of the state, as it were, are before this court in this case invoking it to make a full decision. It is due to them to respond as effectually as practicable.

At some future time I will substitute for this brief memorandum an opinion in support of the suggestions made.

The following opinion was filed March 15, 1912:

Marshall, J.

I fully determined to write, at length, in substitution for the above. On further reflection it seems to do so might give unwarranted dignity to some suggestions voiced in these cases which were, as is supposed, effectually foreclosed more than a century ago, and so are not, generally, and should not, efficiently, be deemed open for discussion.

After the uniform holdings here, through many important adjudications, that public money in the public treasury, is a subject of trust for all the people for public purposes and dis-bursable, only, pursuant to valid legislation, and that every taxpayer is a cestui que trust having sufficient interest in preventing abuse of the trust to be .recognized in the field of this court’s prerogative jurisdiction as a relator in proceedings to set sovereign authority in motion by action in the name of the state for prevention or redress/ any suggestions to tbe contrary, however well supported as an original proposition, might well have but a passing notice. The same is true of the question of whether an action against a state officer to prevent disbursement of public money in the enforcement of an invalid act of the legislature is against the state in any proper sense. It has been held ovqr and over again, in terms or in effect, that such an action is to be regarded as against the person in his individual, not his official capacity, and so not against the state,' — so held very recently most significantly by the supreme court of the United States. Ex parte Young, 209 U. S. 123, 28 Sup. Ct. 441, followed here in Bonnett v. Vallier, 136 Wis. 193, 116 N. W. 885.

It is essential to strictly maintain here the foregoing stated' principles. Only by so doing can this court fully perform its great function as the supreme efficient conservator, defender, and preserver of the inherent and guaranteed rights of the people. The court will not swerve from the proper course for which it was given independent status, “through fear, favor, affection, or hope of reward.” I know every member of it is firm in that. No unreasonable impatience elsewhere, if such exists, will be permitted to interfere with the sturdy performance of constitutional duty here. While paying due deference to co-ordinate departments it must expect that deference in return. There must be no hesitation through fear of censure or thought of tuning the judicial harpstrings to harmonize with temporary conditions, as we hear advocated outside at times. In that there is no division of sentiment here.

I have too much respect for the lawmaking power to indulge the idea that there is any dominating thought there hostile to the willing performance of duty here to test enactments by constitutional restraints on all proper occasions, and put' the stamp of judicial disapproval thereon when manifestly required because of the enactment being evidently not law in fact though law in form; and too much respect for tbe average legislative sentiment not to see tbrongb tbe vista of momentary impatience, — sometimes exhibited, at tbe failure of legislative effort, — to tbe considerate judgment of after reflection wbicb may always be depended upon to approve and honor full performance of judicial duty to appreciate that when there is a conflict between an act and tbe constitution, as seems to tbe court created to view tbe matter, it must decide between them and “as tbe constitution is superior to any ordinary act of tbe legislature tbe constitution and not tbe ordinary act must govern tbe case to wbicb they both apply.” Marbury v. Madison, 1 Cranch, 137. On tbe other band, I have too high regard for tbe great trust reposed in tbe in-strumentalities chosen for now to give vitality to tbe judicial function, to think that, if there be any considerable sentiment, momentarily, elsewhere inimical to full performance of duty here, it can exert efficient influence in that regard. Generally speaking, I apprehend tbe sentiment of tbe public is in favor of a prompt, thorough treatment of constitutional questions as they arise. Tbe people want to know, and have a right to know and legislative instrumentalities desire to have them know, at tbe earliest practicable moment, just where they stand with reference to important new, far-reaching enactments.

Tbe fundamental law, as it has been construed, and tbe function of this court as to applying tbe rule of tbe constitution to legislative enactments and using its prerogative power against any one assuming to act for tbe state who would otherwise interfere with guaranteed rights under tbe guise of an invalid enactment, must be maintained. No one can win enduring fame by failing to appreciate that and be ready to vigorously vindicate it.

Tbe court, with practical unanimity, reached tbe conclusion that all constitutional questions presented and argued in tbe cases, in some one of them, were within tbe court’s power to consider and decide; but to what extent to respond was within its discretion. That left much, to judicial propriety, convenience, exigency, and expediency, resulting in the court going only so far as was vital to the existence of the commission with power to enforce the dominating features of the law. Not to go that far was thought would he well nigh, if not quite, abuse of discretion; not doubting competency to go further and decide all important questions so ably discussed. Obviously, there is left a broad field for very much and very perplexing litigation, to the probable great prejudice of public and private welfare. The field so left untouched was as fully covered by eminent counsel as it is liable to ever be. The whole crop of legitimate controversies was fully ripe for the judicial harvest. All interests called loudly for the chosen instrumentality for the work to grapple with the proffered task. In my opinion, the waste of energy and expense attributable to failure to do so might well have been avoided. It was according to precedent to take the course adopted, I confess. But should precedent efficiently bar the wheels of progress toward a more full, response to such an appeal for judicial determination ? It seems not. ^

This court can well view, with satisfaction its progressive course as to meeting judicial controversies, squarely, casting aside the ancient method of dilatory, fencing, mere piece-meal decision, delaying the finality by technical dispositions, depleting to public and private resources and disappointing and exhausting to those resorting to the courts for redress and prevention of wrongs. There is room for further progress. Impatience with the law’s delays, sometimes significantly manifested, will disappear without any change in the law of procedure by changes of method within the province of the court to make of its own motion, demonstrating that the fault supposed to exist is, in the main, in the administration of the law rather than in the law itself.

Seeming opportunity for wortb-wbile progress is most inviting in cases like those before us. Where a new law which is questioned as to its meaning and its legitimacy in many important minor features as well as the dominant one,- — -a law of far-reaching character, materially affecting the people generally and bristling with complications, each presenting, from some reasonable standpoint, serious difficulty, — is brought early here for examination in all such aspects, — brought by the exercise of prerogative power so that all the people, as it were, are represented at the bar to the end that the enactment, so far as valid, may be vigorously enforced and cheerfully submitted to, and the mischiefs ordinarily flowing from such a course for a time and the law then being found full of infirmities, may be avoided, why should not the earliest opportunity afforded be willingly taken to carry the whole mass of things to the consultation room and patiently and finally solve the uncertainties, thus promptly affording peace to the state and its people in respect to the matter ? The power exists to do it. Universal acclaim is in favor thereof. We are - here to vitalize the power intrusted to us to do it. We have time therefor. We are as able now for the task as we probably ever will be. If we have not had as efficient help as we are likely to have at any future time, the power is ample to call for and obtain further assistance from eminent advocates of opposing theories. > Then why hesitate? Is there any good reason for it ?

I cannot perceive any satisfactory answer in the affirmative to the foregoing. Hesitation is largely from judicial custom to delay grappling with questions so long as possible, with the thought that time will either render doing it unnecessary or a decision may perhaps be later made under more favorable circumstances, and habit to minimize judicial labor where practicable without affecting the grade of it, to the end that each of the controversies brought here may have its due proportion of attention. I confess tbe court’s burdens are heavy and that the easiest way of escape from danger, if any exists, of which I must say I am not conscious of its being unduly so, is by limiting decisions to actual necessities of cases as they arise. That was for a time given as a sufficient justification for limiting activity of prerogative jurisdiction to a very narrow field and limiting it therein to the essentials of each particular situation. State ex rel. Board of Ed. v. Hahen, 22 Wis. 101; In re Court of Honor, 109 Wis. 625, 85 N. W. 497.

While the scope of the prerogative power was early definitely stated and it has thus been maintained, if the burden of work here was ever a legitimate excuse for not exercising jurisdiction, within such scope, to make a full decision in a case thought to be of a character to warrant the court in stepping aside from its ordinary labor to entertain it at all, that ended long since. When such doctrine took root there were but three members of the court and the equipment for labor was very crude compared to that now afforded. There is certainly no longer need for leaving anything undone which might properly be done because of the burden of work.

So again the inquiry is suggested, why should not the court in all cases of great public interest, make the fullest practicable decision instead of leaving as much ground uncovered as practicable ? In such a situation as this it seems that the court should not cease its labors till the whole subject in all important details shall have been exhausted. If any such shall not have been fully presented, or been overlooked, opportunity should be given, if help can be reasonably expected thereby, for further discussion at the bar, so in the end that the court may furnish executive officers and the people a plain, certain guide to go by. I urged that at first and again on the motion for rehearing. There are many important questions left undecided. Each may furnish ground for expensive liti-gatiom To settle all in detail will require large public and private expenditure wbicb must be charged to waste. Conservation of time and money and peace, avoiding all such waste, can be effected by just a few days more time now, which could well be spared to devote to the matter.

A motion for a rehearing was denied March 12, 1912.  