I fully concur in the opinion of the chief justice, above given.
Paiwe, J.I assent to the decision of the court, though I have done so with very great doubt indeed as to its correctness. It is conceded by all that a tax must be for a public, and not a private, purpose. If, therefore, the legislature attempts to take money from the people by legal compulsion, for a merely private purpose, that is not a tax, according to the essential meaning of the word ; and, therefore, such a law is not, strictly speaking, unconstitutional, as being prohibited by any positive provision of the constitution, but is void, for the reason that it is beyond the scope of legislation.
But, inasmuch as the public has at least a general and indirect interest in the success of all private enterprise, and in the promotion of individual prosperity, it becomes extremely difficult to draw a line of demarkation that shall show clearly the kind and degree of benefit which the public must derive from any enterprise, in order to sustain an exercise of the taxing power in its favor. Some of the courts have used very broad language indeed upon this subject. Thus, in Booth v. The Town of Wood*357bury, 32 Conn. 118, the supreme conrt of that state says : “In the first place, if it be conceded that it is not competent for the legislative power to make a gift of the common property, or of a sum of money to be raised by taxation, where no possible pnblic benefit, direct or indirect, can be derived therefrom, such exercise of the legislative power must be of an extraordinary character to justify the interference of the judiciary, and that is not this case. Second, if there be the least possibility that ■making the gift will be promotive in any degree of the public welfare, it becomes a question of policy, and not of natural justice; and the determination of the legislature is conclusive. And such is this case. Such gifts to unfortunate classes of society, as the indigent blind, the deaf and dumb, or insane, or grants to particular colleges or schools, or grants of pensions, swords or other mementoes for past services, mvolving the general good indirectly and in slight degree, are frequently made, and never questioned.”
This language was approved by this court in Brodhead v. Milwaukee, 19 Wis. 624. This court there said: “To justify the court in arresting the proceedings and declaring the tax void, the absence of all possible public interest in the purposes for which the funds are raised must be clear'and palpable — so clear and palpable as to be perceptible by every mind at the first blush.”
If such language were to be applied without qualification, it would most certainly sustain the tax in this case, and also in many other cases where, in the opinion of the chief justice, it is claimed to be very clear that a tax could not be sustained. Thus, there can be no doubt that, under certain circumstances, it may be of very great public interest and importance that particular kinds of manufactures, or branches of commerce, should be encouraged and aided. It has been the practice of all governments, on occasion, to do this. • And a protective tariff, which has been so fruitful a theme of political discussion *358in this country, as well as in others, is nothing more nor less than taxation of the people in an indirect manner for the direct benéfit of private manufacturers. But it is a maxim that what cannot be done directly cannot be done indirectly. And therefore, unless the judiciary would have power to declare a protective tariff void, as beyond the scope of legislative power, it seems difficult to see why the legislature might not grant direct aid in favor of private manufacturing establishments, if, in its judgment, the public interest would be thereby promoted. That it might be so promoted in very many conceivable cases, is clear. And it would require great hardihood to say in such cases, or to say in this case, that it is “perceptible by every mind” that “the absence of all possible public interest in the purposes for which the funds are raised is clear and palpable.”
But, notwithstanding the broad language used upon this subject by this court and others, I still think that there is a limitatation to the taxing power in this direction, and that the mere indirect interest which the community at large has in the prosperity of each of its individual members is not sufficient to sustain an exercise of the taxing power for the purpose of giving gratuities to such individuals. There should be some more immediate and direct benefit.
But the promotion of education would certainly come even within this rule. It has always been, and still is, justly regarded as an object of the highest public interest, and worthy of the aid and anxious solicitude of every civilized government. It has been the common practice to aid institutions of learning by direct donations from the government. This is shown by the extract already quoted from the decision of the supreme court of Connecticut. It is also shown by the statement of the supreme court of Massachusetts in Merrick v. Amherst, 12 Allen, 500. In that case the validity of a law authorizing the people of Amherst to raise a tax to *359aid the agricultural college which was to be located there, was sustained. That was similar to a local tax in aid of one of our normal schools, and is, I concede, distinguishable from the present case. But the constitution of Massachusetts requires that ‘£ all moneys raised by taxation in the towns and cities for the support of public schools, etc., shall be applied to, and expended on, no other schools than those which are conducted according to law, under the authority and superintendence of the authorities of the town or city in which the money is to be expended.” And this provision was relied on as invalidating the law in question. But the court held that it was applicable only to the moneys raised in support of the public or free schools, and that it was inapplicable to the higher seminaries. of learning, such as incorporated academies and colleges. And after giving the history of the provision, at the close of the opinion, they say: “But aside from this, we should be slow to come to the conclusion that the amendment was designed to take from the legislature the power which has always been exercised from the earliest periods of our history, of making grants of land and money to incorporated academies and colleges.” And it appeared from what had previously been said, that those academies and colleges were not a part of the public schools of the state.
This sapie practice of aiding schools is recognized in our constitution, and was undoubtedly the occasion of the adoption of the provision at the close of section 18 of the declaration of rights, which prohibits any money from being drawn from the treasury for the benefit of religious societies, “ or religious or theological seminaries.”
In view of these considerations, I have had great difficulty in coming to the conclusion that the judiciary has any right to interfere with the operation of a law of this character. And I have finally done so chiefly for the following reasons. Our constitution provides for a gen*360eral system of public free schools, for normal schools, incorporated academies, and a state university. These are all to be supported largely by taxation. And from the general and extensive character of the provisions upon this subject, I think there is some implication that this system was designed to be exclusive, and to furnish the only public instruction which was to be supported by taxation. This, together with the fact that a line must be drawn somewhere, separating those purposes which are sufficiently public to sustain a tax, from those which are not, and the extreme difficulty of drawing such a line anywhere, so that the purposes immediately on one side shall be clearly distinguishable from those immediately on the other, has led me to assent to the decision classing a school established by private enterprise, and controlled by private persons, as among those private objects to aid which a tax cannot be levied.
By the Court. — The judgment of the circuit court is affirmed, with costs.