The following opinion was filed November 28, 1910:
Maeshall, J.(dissenting). True, a legislative enactment is never to he declared not law if it can be sustained; or as-the rule is commonly phrased, a statute should not be held to-be unconstitutional unless it clearly appears to be so beyond' every reasonable doubt. No principle of law is more essentially elementary than that. In no period of our judicial history has greater dignity been given to it by frequent and emphatic judicial declarations than in recent years. Bon-*657nett v. Vallier, 136 Wis. 193, 116 N. W. 885; State ex rel. McGrael v. Phelps, 144 Wis. —-, 128 N. W. 1041, are good examples.
However, to properly apply tbe aforesaid rule one must appreciate tbe significance of tbe limitation characterized by tbe word “reasonable.” As in case of tbe degree of certainty of tbe existence of a fact in a criminal prosecution requisite to warrant a finding in tbe affirmative, it must be remembered tbat there is a wide difference between a mere or possible doubt and a reasonable doubt. If we trespass upon tbe former field tbe most important function of tbe court as an instrumentality for tbe preservation of constitutional liberty will utterly fail of its purpose. Our paramount duty is to support tbe constitution. Our secondary duty is to give efficiency by judicial administration to acts of tbe lawmaking power which are law in fact, not merely in form, because not inimical to any constitutional limitation.
So, in dealing with any matter to which tbe constitution necessarily applies, if a statute, in form at least, and presumably in fact as well, also applies, and there is a clear conflict, tbe court must decide between them, and as “the constitution is superior to any ordinary act of the legislature, tbe constitution, and not tbe ordinary act, must govern tbe case to which they both apply.” Such is tbe teaching of tbe early classic in'this country, Marbury v. Madison, 1 Cranch, 137, which has been sanctified by more than a century of universal adoption and by no jurisdiction more consistently than our own; though it must be confessed tbat there has not been perfect freedom from lapses here and there, as what we shall say, it is thought, pretty clearly indicates. Tbat there has been such a lapse in this case, I will endeavor to show, tbe court, of course, not now intending to violate tbe salutary principle involved. Such lapses are liable to accompany tbe spirit of tbe times, as tbe history of tbe past will show. Different conditions furnish different viewpoints, and different human *658instrumentalities with differently focused mentalities on tlie particular point see things differently. So that which is involved in mere doubt, or no doubt at all at one time, may by a mere shifting of scenes and instrumentalities, especially in the light of unguarded expressions made in support of some novel and doubtful construction, appear otherwise. Constant progression in that line stimulated by the growing impatience of originators of new schemes, with fundamental restraints, may, in time, greatly or wholly impair the efficiency of any written constitution, as the incessant action of tiny drops of water may wear away the hardest stone.
The situation which leads to my dissent is the natural outgrowth, in my judgment, of such unguarded expressions as occurred in State ex rel. Brown Co. v. Myers, 52 Wis. 628, 9 N. W. 777, in supposed necessary support of rather extreme legislation. They were really unnecessary to the decision. Guaranteed local self-government, as the court thought, was not interfered with. The court said:
“An examination of the law in question will show, we think, that it does not . . . interfere with the right of local self-government. ’ ’
Such being the case, the broad, I think unnecessary, inconsiderate, statement, hereafter quoted, — a statement which I feel sure the court as at present constituted would hesitate, if not refuse, to follow in the ultimate, — was the clearest obiter.
The law under consideration in the cited case was the one authorizing county assessment of property for county taxation and distribution of the county apportionment of state taxes, to be corrected as to inequalities. Sec. 1077a, Stats. (1898). The law did not contemplate superseding the county assessment by one made by commissioners appointed by the circuit judge, neither by setting aside the regular assessment nor making a new one. The sole function was to act as a sort of appellate body to correct inequalities in the distribution of *659the aggregate valuation of all the taxable property of the -county between the several subdivisions, adding to some and making equivalent deductions from others, and only to afford that remedy on application of the people of some subdivision -deeming themselves aggrieved.
Thus the people as a whole in the exercise of local self-government were left to take the initiative. The function of the commissioners was that of correcting inequalities, — one not theretofore exercised by any tribunal in the particular field. Neither prior to the constitution nor any time subsequently was there an officer or body to deal with that matter. So there was really no room for any very confident claim that the legislation interfered with local self-government guaranteed .by the constitution, and the court so held without referring to the subject more than briefly and rather incidentally.
It should be noted that the whole groundwork of the decision in State ex rel. Brown Co. v. Myers, supra, was that the function of the board was to correct mistakes or error in the distribution of the assessed valuation of the whole “so as to produce a just relation between all the valuations.” Emphasis was significantly given to the fact that it did not authorize “in any instance increase” of “the entire aggregate valuation of the taxable property of the county as fixed by the board.” “We can see no constitutional objection,” said the -court, “to a law which authorizes the appointment of commissioners merely to adjust valuations of real estate between different towns as determined by the county board.” This and other indications show that the court did not regard the law as having to do with any official function within the constitutional guaranty of local self-government, because it did not have to do with an original assessment of property at all. So the subject of local self-government received but mere passing attention. So incidental was it that the court went no further than to concede that the claim made that local self-government was secured to the people by the fundamental *660law, “especially in matters of taxation, was in a certain sense sound,” saying, “there are doubtless limits to the legislative power” in such matters, plainly showing that the definite and certain constitutional reservation of local self-government, as regards all official functions existing before the constitution, as it has been in recent years recognized, was not appreciated. The case, however, as a whole, is convincing, that had the law provided for an actual assessment of property for taxation, entirely superseding the assessment by local officers appointed by local authority, it would not have been sustained.
The foregoing indicates, most clearly, how unguarded and unnecessary was this expression in the case:
“This whole matter is within the control of the legislature, which, doubtless, might abolish the present system and create a state board for the assessment and equalization of the value of taxable property of the state.”
That is directly contrary to the concession that local self-government, “especially in matters of taxation, was in a certain sense” secured to the people by the constitution. We are safe in saying that its broad meaning would not be applied by the court today. It could- only be justified, if at all, as regards state taxation.
The condition created by the case already discussed was somewhat further complicated, it seems, by the decision in State ex rel. Ellis v. Thorne, 112 Wis. 81, 87 N. W. 797, opinion by the writer, speaking for the court. It was there appreciated, as I remember it, that there were expressions in the earlier case which, broadly taken, could not be sustained. I think now such expression should have been distinctly disapproved. The main ground upon which the law was challenged as unconstitutional, was that it was a delegation of judicial power to a body other than a court. ' A decision on that in the negative was held to be within the spirit of the previous decision. So there, as before, the question of local self-government was not supposed to be involved. It was thought *661by the court, I think, — I know it was by the writer, — that there was but one of two things to do with the unguarded previous declaration of legislative absolutism, either to withdraw it, or repeat it with a restriction which the court previously ■omitted, probably without any considerate purpose to hold that, in the field of taxation, there are no limits to guard against outside interference with local rights. The latter was adopted, the court fencing about the previous expression by these words of unmistakable import:
“The decision is to the effect that the legislature has plenary power over the whole subject of taxation within constitutional limitationsadding “that it may select the objects of taxation, determine the amount of taxes that shall be levied and the particular purpose or purposes the same shall be devoted to, the manner in which property shall be valued for taxation; that it may establish the necessary taxing districts and provide for the selection of all public agencies for the collection, return, and expenditure of the public revenues.”
Eespecting this the court remarked, “no reason is perceived why the principle thus broadly stated should be restricted in ■any degree.” That is, as plainly indicated, viewing the language as describing power exercisable “within constitutional limitations.”
The unguarded expression in the first case, restricted as it was in the second, would probably not have been efficient to leave a reasonable doubt as to the illegitimacy of the act in •question were it not for the fact that the court, on ground not dependable upon such expressions, held that the mere equalization of assessments made by local authority was not a usurpation of a function belonging to such authority. That, it ■seems, is, in the main, the thing which the court now thinks is so analogous to the subject matter of the legislation in question, that a distinction, on-principle, which would make one legitimate and the other not, is not plain beyond a reasonable ■doubt.
As we have before indicated, the subject of county equal*662ization was not a matter dealt with as a local function independently of the county assessment before the constitution was adopted. I-Iad the act provided for the assessment of the property of the county for taxation instead of mere equalization thereof, not changing the aggregate at all, a far different question would have been presented. I apprehend that this court would now find no serious difficulty, were it not for those decisions, in holding a law providing for the original assessment of property for local taxation by officers appointed by outside authority, to be clearly unconstitutional. Consistency with the logic of the other decisions of this court would make that inevitable.
In O'Connor v. Fond du Lac, 109 Wis. 253, 85 N. W. 327, the court met, fully, for the first time, the question of whether the functions of local officers as they existed at the time the constitution was adopted, can be conferred upon similar officers similarly characterized, or by other officers, appointed or elected by foreign authority, and the negative prevailed under sec. 9, art. XIII, of the constitution, providing that:
“All city, town aud village officers whose election or appointment is not provided for by this constitution shall be elected by the electors of such cities, towns and villages, or of some division thereof, or appointed by such authorities thereof as the legislature shall designate for that purpose;”' and further providing, similarly, as to officers of other subdivisions of the state.
The court, unqualifiedly and most emphatically, adopted the doctrine of the highest court of New York respecting a similar constitutional provision, that the purpose thereof was to preserve local authority to select all officers clothed with the functions of local administration as the same existed at the time of the formation of the constitution; that the thing conserved was more particularly the official function, than the office by any particular name; that the function could not be taken from local authority of selection by conferring it on some newly created officer or board. The New York authori*663ties are very pronounced on this and in the very field we are discussing, and its doctrine is ours both because we took the constitutional provision with a substantially existing construction, later approved by the ultimate court, and because it is right on principle, independently thereof, as this court has iterated and reiterated.
. The principle of the O’Gonnor Case was, doubtless, not wholly out of mind when we came to State ex rel. Ellis v. Thorne, 112 Wis. 81, 87 N. W. 797. It in effect overruled the literal sense of the expression in State ex rel. Brown Co. v. Myers, 52 Wis. 628, 9 N. W. 777, which we have discussed and rendered it necessary for the purpose of harmony, when the later case was written, that the previously unguarded remarks should be brought within constitutional limitations. Looking backward, it seems that the earlier case should have réceived much more radical treatment.
Since the O’Connor Gase was decided the legal question involved has been most thoroughly reconsidered and the previous conclusion affirmed. State ex rel. Dithmar v. Bunnell, 131 Wis. 198, 215, 110 N. W. 177; State ex rel. Harley v. Lindemann, 132 Wis. 47, 111 N. W. 214; State ex rel. Gubbins v. Anson, 132 Wis. 461, 112 N. W. 475.
In the last case cited the court declared that the Uew York doctrine, adopted by its court of last resort after the adoption of our constitution, was almost at once after such adoption accepted and approved here and has been steadily adhered to.
The general idea of the doctrine aforesaid, is such that local official functions performed by officers of local selection before the constitution was adopted, cannot be lawfully taken from them and imposed on officers appointed by non-local authority; that the spirit of the constitution is that, as to official functions commonly exercised at the time of the adoption of the constitution, they must, if exercised at all, be so, as to town matters by officers selected by town authority, as to counties by officers selected by county authority, and as to *664state matters by officers selected by state authority. No exception is made in such authorities, or in New York, or anywhere else, under any similar constitutional provision, as to officers having to do with the assessment and collection of taxes.
The case of Foster v. Rowe, 128 Wis. 326, 107 N. W. 635, adds nothing to the two cases we have discussed on the subject first treated in State ex rel. Brown Co. v. Myers, supra. Nothing there said militates against the O’Gonnor Case and State ex rel. Brown Co. v. Myers, supra, as modified in spirit thereby.
The idea that the emergency rule, so called, invoked in Strange v. Oconto L. Co. 136 Wis. 516, 117 N. W. 1023, to sustain the law of 1850, now sec. 1152, Stats. (1898), applies to the case in hand, is carrying such rule to such an unreasonable extent as to render it invocable to overturn local self-government entirely. With due respect for the judgment of my brethren, I cannot see any analogy at all between that statute and the one in question. The former fits a situation where the locality has voluntarily surrendered its constitutional right of self-government by negligently or contumaciously omitting to elect the instrumentalities to that end. Then the law provides that similar officers from an adjoining locality shall temporarily perform the duties. Here the people of the town did nothing to forfeit their constitutional right. They selected an assessor and elected the officers constituting the board of review. All the machinery for local self-government was provided and all the judicial remedies were invocable to coerce them into doing their duties and remedying their failures, yet this law steps in authorizing state authority, in quite a summary way, to appoint a person, or persons, and by their aid to make an assessment of all the taxable property of the taxing district, regardless of the regular officer or his work. Such person, or persons, are not required to be citizens of the taxing district, or even, expressly, *665of the state. The law ignores the whole machinery of the taxing district. It provides that the same foreign authority shall appoint a board of review to pass upon the work of the special assessor or assessors. The members of this board are not required to be citizens of the taxing district or even, expressly, of the state. Thus the statute contemplates an entire displacement of the local machinery while such machinery is in existence and competent to act. Is not this statement sufficient to show that the law providing for an assessor where the taxing district neglects or refuses to elect one, has no similarity to the one in question whatever ? So, as we have seen, the two statutes and decisions thereunder, which form the basis of the court’s decision, in that they at least create reasonable doubt as to the illegitimacy of the statute in question, have no similarity thereto. The first does not deal with an assessment from an original standpoint at all, but only with mere inequalities of distribution, and was supported on that express ground. The second deals with a situation where the people have voluntarily surrendered the constitutional right to local self-government. The law here provides for a complete supersession of the local instrumentalities without the consent of the taxing district in its corporate capacity, or the people thereof otherwise, and without any fault of the people or perhaps even of its officers, except in respect to error of judgment.
It must be remembered that the law provides for the state authority taking possession of the local administration in its discretion when it shall be made to appear that such administration has not produced an assessment in substantial compliance with law. No wilful neglect or fraud of the assessor is required. It is not even required that the regular board of review shall first have failed to perform its duty in the premises, which might remedy the whole matter. The compensation of the foreign assessor and members of the board of review, even, is required to be fixed by foreign authority and *666at a level much above ordinary compensation for such services when rendered by the regular local officers, and there are provisions permitting other large expenses to be incurred, all to be, in' the end, a burden upon the local taxpayers. Even the auditing of such matters is taken from control of the local auditing board and made a matter of state concern, wholly at the expense of the locality. The people of the locality are^ wholly ignored. Their part is to submit to the’burden of’ taxation and pay the bills as a part of their state tax. Can any one imagine a more complete usurpation of local authority ? Does not the law break down completely the constitutional safeguards of local self-government ?
Enough has been said to demonstrate, in my judgment, that it is highly illogical to reason from the decisions upholding the two statutes heretofore sustained, that the one in question is valid.