The following opinion was filed March 1, 1910:
Mabshall, J.(dissenting). With general principles as I understand them to be stated in the opinion of the court, I do not dissent. Such principles have been so many times defi*10nitely proclaimed, that they need no-t be rediseussed. Probably when stated concisely, omitting discussion, where necessary to be invoked, danger of that confusion in which constitutional law has sometimes been involved again being created, would be minimized or avoided altogether, leaving only opportunity for divergence of views as to whether a given situation falls within or without them.
I understand the first principle at the threshold of this litigation is one of jurisdiction and is this: Where there is an attempt by an administrative officer to enforce an unconstitutional law, it is within the competency of a court of equity, at the suit of one who would, if the enforcement were permitted, be permanently injured and be without any other adequate remedy therefor, to enjoin such enforcement.
The next rale also appertains to jurisdiction in the broad sense of whether a court of equity ought to act in the particular class of situations represented though having the power to act. In that respect it has been declared as a rule of judicial policy, that where a legislative police regulation is legitimate as regards its dominant features and the infirmity appertains to a minor or inconsequential detail, the party claiming to be injured should, as a rule, be left to such remedy as he may have at law, that, of course, admitting of exceptions to fit extraordinary situations.
The next principle is this: If a law contains several features which are separable, one or more being constitutional and one or more not, and he who invokes equity jurisdiction to enjoin its enforcement only complains of threatened injury under the former, he cannot have relief, notwithstanding existence of the latter void provisions; but if the provision of which he complains would be valid by itself, but is merely compensatory to or is so united with the other provisions which are void that all constitute one inseparable enactment, then he may have the use of equity power, as sought here, to condemn the entirety.
*11Tbe next principle 'is tbis: Every legislative regulation, ostensibly witbin tbe police power wbicb goes beyond a reasonable regulation of any inherent right, is unconstitutional, not merely because it is unreasonable but because being so it violates some express provision of the fundamental law or its general purpose and spirit as to the security of life, liberty, and tbe pursuit of happiness.
Under those principles^ if tíre law in question as to prohibiting bakeshops in basement stories of buildings where the floor is more than five feet below tbe level of tbe street, that being tbe only feature which affects appellants, is an unreasonable regulation of property rights and is a mere minor feature-of the entirety, and is separable from the others, then one or more of such other features may be unconstitutional and yet equity should not give appellants relief. But if tbe particular feature is not minor in character or is a part of an inseparable entirety, then equitable interference may properly be-invoked.
My brethren expressly, or inferentially, resolve the jurisdictional proposition as to matters of fact in favor of the respondents and so, necessarily, came to the conclusion from which I dissent.
To my mind, the proposition as to whether the prohibition of the use of basement stories of buildings is destructive instead of merely regulative of property rights, should be decided 'in favor of appellants. I cannot see any distinction between the situation here and the one in Bonnett v. Vallier, 136 Wis. 193, 116 N. W. 885.
My brethren concede that if the case in hand falls within the principles of the Bormett Case, appellants should prevail, but fail to point out where it does not. It is said: “Each case as it arises must turn upon its own particular facts under the-rules of law laid down by the courts,” etc. Certainly it was-not intended there to hold that principles change according to the shifting nature of facts, but only that whether any partie-*12ular situation falls within or without the scope of certain principles depends upon its particular facts. Not that there can be any arbitrary location of a particular situation within or without the scope of the principles held to rule as to some other, but that its status in that regard must be determined logically. The court cannot properly say that one police regulation, made ostensibly in the interest of public health, unreasonably interferes with property rights and that another of the same general character, which interferes with property rights to the same extent, is reasonable, and so regulative instead of destructive.
In this case the court suggests that the law in question is a health regulation and makes such suggestion in a way to leave it inferable that the one in Bonnett v. Vallier, supra, was not, and for that reason that the decision in that case is not a precedent bearing on this one. The fact is the regulation in the Bonnett Case was a health regulation pure and simple. There is no way to distinguish the cases on that score. The one deprived the plaintiff of the use of a valuable part of his lot for building purposes, thereby taking away a part of his property, and likewise affected all other persons throughout the state similarly situated; the other deprives appellants from using a valuable part of their building for a legitimate business, thereby taking away a part of their property rights. In the one case it was not doubted but that the regulation, so •called, was made in the interest of public health, and that, probably, public health would thereby be promoted, while here no greater claims are made. In the former it was not doubted but that public health of residents of tenement houses could be reasonably conserved without any such deprivation •of property rights as was attempted, and here the situation is the same. So the court now in suggesting that the act in question is a health regulation, states, in my judgment, no distinction whatever between the two situations, but leaves it to ■be inferred, it seems, by one not familiar with the Bonnett *13Case that the mere suggestion of the purpose of the law here is sufficient to differentiate the two cases.
The foregoing leaves nothing further that need be said to indicate a sufficient reason for holding that the feature of the law in question of which appellants complain, is void, and that the doors of equity should swing open to afford them protection against violation of their constitutional rights, since it must be obvious that such feature is a dominant, or at least a major, one as distinguished from a minor one.
I observe the court quotes at length with distinct affirmance, the rule recently proclaimed in Wadhams Oil Co. v. Tracy, 141 Wis. 150, 123 N. W. 785, as regards equity jurisdiction not being invokable to prevent a party from being injured by a mere void detail of a legislative police regulation, the enactment as to its general scope and dominant features being legitimate; but I do not find it decided expressly, if at all, whether the act before us is 'in those respects legitimate, or whether the particular provision is of a major or minor character, or whether the law is or- is not in such greater part as to dominate the whole, unconstitutional. Many citations of authorities from cases are given but no express application thereof seems to be made to the casé in hand.
True, following the rule that if a law in its general scope and dominant particulars is good, it is suggested that the regulation of bakeshops is a proper subject of police authority, which is readily conceded. But certainly, the meaning of the rule quoted from Wadhams Oil Co. v. Tracy, supra, is not that if the subject of a legislative police regulation ’is legitimate, that will satisfy the call for legitimacy of general scope and dominating particulars. Not only the “end must be legitimate” but “the means must be appropriate to that end.” The term “general scope” seems to have been used by the court as if it appertained to the subject of regulation, instead of that, in connection with the manner and extent of interference. If that were the rule, in no case where the subject *14is a proper one for police interference would equity take bold, though the manner and extent of the regulation might be such as to violate every fundamental principle of constitutional freedom.
Perhaps it may be inferred, where there is silence^ from the citations and quotations that the court holds that the manner and extent of the regulation here, in the sense of the general scope of the enactment and its dominant features, are legitimate and that the particular feature is constitutional, or if not, that it is minor in character and separable from the balance of the act, and so that the court should not, in any event, afford a remedy in the manner of approach adopted, with which, as indicated, I should dissent.
The only thing I read as definitely decided is covered by the closing lines of the decision, to the effect that the particular regulation is a reasonable exercise of police authority and so equity should not interfere even if all the balance of the enactment is unconstitutional. It seems that could not well be unless such particular feature is separable from the entirety, so, logically, the court must be considered as holding that such particular feature is not inseparably connected with other major or dominant features which may possibly be void, and with that, as indicated, I dissent.
My brethren have no disposition to overrule anything decided in Bonnett v. Vallier, 136 Wis. 193, 116 N. W. 885, or cast any doubt upon it, but it seems that in the absence of any •distinct decision, applying the authorities cited, as to whether the particular provision complained of is a dominant one, or a mere detail feature, and as to whether, if it be the latter, the law, otherwise, in the dominant or greater part thereof, as said in Wadhams Oil Co. v. Tracy, is unconstitutional, there is opportunity for bench and bar to get the idea that merely if the particular feature is a detail and does not by itself work unconstitutional injury to appellants they are remediless for the injury in fact.
*15It is probably not advisable for me at this time to go muck further and demonstrate the, to my mind, obnoxious and controlling features of the law which would carry the particular -one down as a part of an entirety, in any event. Generally speaking, it seems that the broad claim of appellants, which .has not received consideration, has much, if not controlling, merit. The basic idea of the enactment, the one around which all others are clustered, is to declare, as a principle, that all bakeshops and employees therein and methods of manufacture, storage, and exposure of products for sale to consumers, shall be of the highest attainable standard having regard to the public health, and to delegate to a legislative agent the duty of determining that status, making regulations to that end, and passing upon each individual case as to whether falling below or not, with drastic penalties for infractions; a power that could be easily used in such a way as to drive many worthy manufacturers out of business unless they saw fit to secure immunity in some improper way. In other words, instead of the legislation making regulations to carry out a legislative policy, leaving it to- the legislative agent to make such minor rules as are classible as administrative merely, and to perform wholly within the field of administrative duties, the policy is declared and the legislative, judicial, as well as administrative, duties are vested in the legislative agent. It seems to be very much like a law, so called, declaring in effect the constitutional policy that the “property of no person shall be taken” for public use without just compensation therefor, and delegating to a legislative agent the duty of making regulations to effectuate such policy and to administer the same, passing upon violations so as to leave to courts the duty, only, of determining whether his commands have been obeyed or not, as a condition precedent to visiting upon the heads of alleged offenders prescribed severe punishments. The whole law seems to be as indicated. If that be the real character of the act, it would not be *16claimed that the framework could stand the constitutional test, or that the framework falling the mere details would not fall with it. That would condemn the particular feature,, even if, by 'itself, it could be held legitimate to prohibit throughout the state, regardless of situations or conditions, the use of the basement story of any building for the ordinary business of running a bakeshop — as the learned attorney general very frankly confessed is the effect of such feature — - notwithstanding it is, probably as a rule, entirely practicable to render such places reasonably suitable for such business..