Lead Opinion
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
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
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
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.
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
("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
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
(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;”
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.
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,
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 tax
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 legisla*479 ture 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,
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,
It should be noted in this connection that in one case (State ex rel. Board of Ed. v. Haben,
' 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,
Quo warranto to forfeit corporate charters for abuse or non-use of franchises was also brought in State v. Milwaukee G.
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,
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,
“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
In the case of Att’y Gen. v. Eau Claire,
“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*486 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*487 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,
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
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,
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,
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
3. Next may well be classed tbe two great cases of Att’y Gen. v. Railroad Cos.
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,
Another group of significant cases under the fourth head are the mandamus actions brought to compel payment of
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,
Other cases of this general nature are State ex rel. Anderson v. Timme,
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,
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,
In both the Rosenhein Case (State ex rel. Rosenhein v. Frear,
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,
The sequel to this case, which appears by reference to State ex rel. Hartung v. Milwaukee,
In view of this last named decision, the recent case of State ex rel. Van Alstine v. Frear,
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-
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-
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 him
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,
But it must be recognized that such a power is extreme.
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
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,
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
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 centu
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
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.
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,
“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 ob*508 jects 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,
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,
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
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)
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
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
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 unquestion
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
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.
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
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
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
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.
Dissenting Opinion
(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,
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,
“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,
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,
“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
“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,
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 ad
“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 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
Concurrence Opinion
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 exer
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:
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
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 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
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.
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
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-
A motion for a rehearing was denied March 12, 1912.