(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, *520join in a taxpayers’ suit in their own behalf and in behalf of all the other income taxpayers of the state against three members of the state tax commission, the secretary of state, and the state treasurer. The cause of action alleged is that the act above referred to is null and void because in violation of the constitution of the state of Wisconsin and of the constitution of the United States, and that the members of the state tax commission will, unless restrained by injunction, through their subordinate appointees, acting under said statute, exact and collect large sums of money from many residents and citizens of Wisconsin, which collections will lead to a multiplicity of suits to recover back the moneys so collected or to a multiplicity of suits by the state to collect the fines and penalties provided in and by said act to be enforced against those persons who refuse to comply with the act. On these grounds they pray for an injunction restraining the state tax commissioners and their subordinate administrative officers from attempting to enforce the act and restraining the secretary of state, who is by the state constitution auditor, from auditing, and the state treasurer, who is also a constitutional officer, from paying salaries, bills, or expenses of any kind incurred under or payable by the terms of the act in question. This act carries in it a legislative appropriation for such purpose. This is therefore a bill by taxpayers to enjoin the enforcement of a statute levying taxes upon incomes on the ground that the statute is unconstitutional, which bill is sought to be upheld upon the equitable ground that it takes the place of a multiplicity of suits or actions, but so far as the secretary of state and the state treasurer are concerned it is a bill to restrain the payment of moneys out of the state treasury for the purpose of administering or enforcing a law claimed to be invalid. As to the latter defendants, who have no part in executing or enforcing the act except auditing and paying bills, salaries, and expenses under the legislative appropriation, the bill is maintaiñable only upon *521the ground that each individual taxpayer in the state has a proprietary interest cognizable in equity in the funds of the state treasury in analogy to the shareholder in a private corporation or the taxpayer in a municipal corporation. Land, L. & L. Co. v. McIntyre, 100 Wis. 245, 256, 75 N. W. 964, and cases.
The circuit court sustained a demurrer to this complaint, and from that order the plaintiffs appealed to this court. This demurrer went expressly to the point that the circuit court had no jurisdiction of the action, and also to the point that the complaint did not state facts sufficient to constitute a cause of action; so that both these questions are before us on this appeal. Generally speaking the law does not give a private remedy for the redress of a public wrong. One damaged or threatened by an unlawful act which affected him only as it affected that section of the public holding the same legal 'relation to such act, could not at common law or in equity maintain an action against the doer of such act. And it mattered not that his damages were greater. If they were of the same nature and differed only in degree the wrong was still a public wrong. The rule has been applied in a great variety of cases in this court. Enos v. Hamilton, 27 Wis. 256; Cohn v. Wausau R. Co. 47 Wis. 314, 2 N. W. 546; Baier v. Schermerhorn, 96 Wis. 372, 71 N. W. 600; Stedman v. Berlin, 97 Wis. 505, 73 N. W. 57; Liermann v. Milwaukee, 132 Wis. 628, 113 N. W. 65; Linden L. Co. v. Milwaukee E. R. & L. Co. 107 Wis. 493, 83 N. W. 851; Pedrick v. Ripon, 73 Wis. 622, 41 N. W. 705; Bell v. Platteville, 71 Wis. 139, 36 N. W. 831; Stone v. Oconomowoc, 71 Wis. 155, 36 N. W. 829; Gilkey v. Merrill, 67 Wis. 459, 30 N. W. 733, and cases cited; Sage v. Fifield, 68 Wis. 546, 32 N. W. 629; Harley v. Lindemann, 129 Wis. 514, 109 N. W. 570; Foster v. Rowe, 132 Wis. 268, 111 N. W. 688; Garstens v. Fond du Lac, 137 Wis. 465, 119 N. W. 117; Nast v. Eden, 89 Wis. 610, 62 N. W. 409.
*522It has been sometimes said by law writers and courts that this rule rested upon the consideration that, if one suit could be maintained in such case, each person affected might also bring suit and thus the defendant be ruined by litigation. This consideration has special significance and force in a state where the law permits suits to be brought by private persons against administrative officers charged with the duty of enforcing the law. Few officers would attempt an efficient administration at such risk, and the ultimate result must be either injustice or inefficiency. But there is another reason for the rule which lies deeper and upon a broader foundation of governmental policy. That is the policy which places the prosecution of public wrongs in the hands of the public prosecutors and out of the hands of those who may be actuated by private revenge or gain, malice, or political intrigue. Biemel v. State, 11 Wis. 444, 37 N. W. 244. If the state as a sovereign is to have its proper and lawful recognition in our jurisprudence, it is, in the absence of statute, subject to no defense of laches, no limitation of time, and no liability to suit, and it must also be regarded as the repository of governmental policy and political discretion. When and how it will assert and enforce its sovereign prerogatives is often a political question, a matter of state policy, and to leave these great questions in the hands of every private litigant has a tendency to create confusion in jurisprudence, lack of wisdom in state policy, and contempt for authority. In the great case of Att’y Gen. v. Railroad Cos. 35 Wis. 425, Chief Justice Ryan said at page 529: “Relief against public wrong is confined to informations by the attorney general.” See further, for illustration, Saylor v. Pennsylvania C. Co. 183 Pa. St. 167, 38 Atl. 598. The victim of robbery, battery, or arson may have a private action for damages against the wrongdoer, suspended, according to some, until the pending public or state prosecution is at an end, and not concluded by the result of the *523public prosecution. But there there is coincident and cotempo-raneous with the public wrong a private wrong suffered by the victim, distinct and different from that suffered by any other member of the public. Where all are affected alike by the wrongful act, the language of the cases and many of the actual adjudications indicate that there is no private actionable wrong, not merely a lack of remedy. Cases infra and supra. An exception to these general rules was recognized in the case of taxpayers, first in this state, T think, in Peck v. School Dist. 21 Wis. 516, and this doctrine received the approval of the supreme court of the United States in Crampton v. Zabriskie, 101 U. S. 601. Since then the scope of the taxpayer’s action, so called, has been greatly extended by this court and its decisions have not always been consistent. In Peck v. School Dist., supra, the action was- brought by certain taxpayers whose personal property had' been levied upon and advertised for sale to restrain local administrative officers from action taken contrary to statute and consequently outside of their jurisdiction, to the private injury of plaintiffs. Their remedy for this conceded private wrong would ordinarily be at law. But the contract which formed the basis for the tax was found to be fraudulent, thus arousing the jurisdiction of equity, and the injunction against the enforcement of the tax sustained upon the ground that, the jurisdiction of equity having once rightfully attached, it should be made effectual for the purposes of complete relief. .The decision of the court was written by Chief Justice DixoN. When the question was presented about four years later in a suit by taxpayers involving no recognized ground of equity jurisdiction, but showing the plaintiffs to be taxpayers threatened with the enforcement of an illegal tax precisely as it is presented by the .complaint in the instant case, except that there it was averred the local administrative officers acted without their statutory jurisdiction, while here it is averred that the legis*524lature of tlie state acted without its constitutional jurisdiction, the same distinguished jurist, denying the injunction, said among other things:
“The general principle that equity possesses no power to revise, control, or direct the action of public, political, or executive officers or bodies is of course well understood. It never does so at the suit of a private person, except as incidental and subsidiary to the protection of some private right or the prevention of some private wrong, and then only when the case falls within some acknowledged and well defined head of equity jurisprudence. It is upon this principle that bills to restrain the collection of a tax have in general been dismissed” (citing cases). “But there are other reasons why equity will refuse its aid in a case like this, and which are most ably pointed out in the opinions in Doolittle v. Supervisors, 18 N. Y. 155, and in Sparhawk v. Union P. R. Co. 54 Pa. St. 401. The grounds are too remote, intangible, and uncertain, and the public inconvenience which would ensue from the exercise of the jurisdiction would be enormous. It would lie in the power of every taxpayer to arrest all proceedings on the part of the public officers and political bodies in the discharge of their official duties, and, assuming to be the champion of the community, to challenge them in its behalf to meet him in the courts of justice to defend and establish the correctness of their proposed official acts before proceeding to the performance of them. A pretense more inconsistent with the due execution of public trusts and the performance of official duties could hardly be imagined.” Judd v. Fox Lake, 28 Wis. 583.
This case has been cited and followed many times. In Gilkey v. Merrill, 67 Wis. 459, 30 N. W. 733, wherein it was expressly adjudicated that an action will not lie in behalf of a taxpayer to set aside the taxes of a city or other municipality generally, Judd v. Fox Lake is cited to support the rule that there must be some distinct principle of equity jurisprudence under which the case is brought other than the mere illegality of the general taxes and its necessary and usual consequences. In Pedrick v. Pipon, 73 Wis. 622, 41 N. W. *525705, to tbe effect that the mere passage of a resolution and intent to enforce it'are not sufficient to support a taxpayer’s suit. In Sage v. Fifield, 68 Wis. 546, 32 N. W. 629, to the same effect. In Foster v. Rowe, 132 Wis. 268, 111 N. W. 688, to the effect that no action will lie by a taxpayer in his own behalf and in behalf of other taxpayers to restrain the levy and collection of the taxes of -a municipality generally. See, also, Harley v. Lindeman, 129 Wis. 514, 109 N. W. 570. If the equitable ground of the prevention of a multiplicity of suits could be invoked to support such a taxpayer’s .action for the reason that the collection of an invalid tax will breed a multitude of suits at law to recover back the taxes or on the ground that it will require a multitude of suits or proceedings in the nattire of suits by the state to collect the taxes, then manifestly the foregoing cases were incorrectly decided, for all invalid tax levies give rise to suits to recover back the taxes, and generally the nonpayment of taxes is followed by penalties of some kind. Such suits are also forbidden by the Tule which prohibits the courts to entertain suits by a private citizen to vindicate a public right, or that which prohibits a court of equity from employing its preventive remedies so as do interfere in a wholesale way with the collection of the public revenues. But I think they were correctly decided upon •either ground. See Bell v. Platteville, 71 Wis. 139, 36 N. W. 831, and reasons there given for refusing to entertain the taxpayer’s suit; Stone v. Oconomowoc, 71 Wis. 155, 36 N. W. 829; Harley v. Lindemann, 129 Wis. 514, 109 N. W. 570; Carstens v. Fond du Lac, 137 Wis. 465, 119 N. W. 117. In the latter case the right of a taxpayer to sue in behalf of other taxpayers is denied where the plaintiff merely seeks to relieve his property of a tax which he claims to be void. In Giblin v. North Wis. L. Co. 131 Wis. 261, 111 N. W. 499, the cases are cited which hold that a decree in a taxpayer’s suit is binding upon all the taxpayers and citizens of the municipality concerned in the litigation. -The taxpayer’s suit *526as both created and limited by judicial decisions in this state has been productive of very beneficial results in preventing municipal maladministration, conserving municipal funds and property, and keeping fraudulent or erring municipal officers within their jurisdiction. But the fact that it has cured some ills does not prove it a panacea. It has its limitations, as above shown, founded upon sound policy, even with respect to subordinate municipal officers. Eor stronger reasons those limitations must be applied when the suit is state-wide in its operation and is in effect a suit against the state to prevent the entire state levy and collection of a tax on the averment that the law sought to be enforced is unconstitutional. The state as such has immunity from actions except where expressly authorized by statute, and here no such statute exists covering the instant case. The state officers in the execution of a law have a wider latitude of discretion than municipal officers. Taxpayers’ suits against the latter are brought to vindicate some law, here to annul a statute. The taxpayer here attempts to represent a larger constituency, and the arrest by injunction of all the taxes of the state surely implies a wider scope of power, larger interference with administrative officers, and multiplication of the serious consequences mentioned in the quotation from Judd v. Fox Lake, supra. It seems apparent that under the decisions of this court the first action cannot be supported as a taxpayer’s action based upon the avoidance of a multiplicity of actions at law or suits in equity. The other ground averred in support of the complaint is, as said, based upon the claim that each taxpayer of the state has an equitable proprietary interest in the funds in the state treasury, or an interest of such a nature that equity will recognize it and protect it by injunction against the constitutional fiscal officers of the state to-prevent them from paying out of such treasury funds for the-execution or administration of an unconstitutional law, under the rule applied to municipalities in Land, L. & L. Co. v. Mc*527Intyre, 100 Wis. 245, 256, 75 N. W. 964; Estate of Cole (Mulberger v. Beurhaus), 102 Wis. 1, 78 N. W. 402; and other cases in this court. BuUthe situations are not analogous. Tbe state is not to be put upon tbe level of a private or of a municipal corporation. Tbe- former is tbe sovereign, tbe latter tbe subjects. Tbe courts bave jurisdiction in an action against a municipality as against a. natural person. They bave no jurisdiction of actions against tbe state except with tbe consent of tbe state expressed by tbe legislative branch of tbe government and approved by tbe executive. Unlike tbe federal constitution and tbe constitutions of most of tbe states, tbe constitution of this state creates and recognizes not three but four branches of government: legislative, executive, administrative, and judicial. Administration is logically and in most cases legally recognized as an exercise of tbe executive power. Tbe beads of tbe great administrative departments of tbe United States government derive their power from tbe grant of executive power in tbe federal constitution and their lawful acts are treated as acts of tbe chief executive, and in some instances an injunction against them to prevent tbe enforcement of law challenged as unconstitutional was put upon tbe same level as a like injunction against tbe President. Mississippi v. Johnson, 4 Wall. 475; Georgia v. Stanton, 6 Wall. 50, and cases in Rose’s Notes. The administrative officers named in art. VI of our state constitution are secretary of state, treasurer, and attorney general for tbe state, and sheriffs, coroners, registers of deeds, and distinct attorneys for tbe counties. Among tbe duties of tbe secretary of state prescribed by tbe constitution is that “be shall be ex officio state auditor.” There is no general grant of tbe whole administrative power to any one of or to all these officers, and doubtless this and sec. 4 of art. V, which requires of tbe governor that “He shall expedite all such measures as may be resolved upon by tbe legislature,'and shall take care that the laws be faithfully executed,” is sufficient authority *528for tbe legislature .to impose upon tbe governor and upon subordinate administrative officers like tbe state tax commissioners all necessary administrative powers not by the constitution vested in tbe administrative officers therein mentioned. There is also found in our state constitution some express limitations upon tbe power of tbe legislature over tbe funds in tbe state treasury and some restrictions of that power by necessary implication. Instance sec. 18 of art. I, which provides that no money shall be drawn from tbe treasury for tbe benefit of religious societies or religious or theological seminaries. Also sec. 2, art. VIII, which forbids an appropriation for tbe payment of any claim (except claims of the United States and judgments) not filed within six years after tbe claim accrued; and there are others. State ex rel. New Richmond v. Davidson, 114 Wis. 568, opinion of Dodge, J., at page 580, 88 N. W. 506, 90 N. W. 1061. There are restrictions by necessary implication, as sec. 1, art. X, which provides that the compensation of the superintendent of public instruction shall not exceed the sum of $1,200 annually. State ex rel. Raymer v. Cunningham, 82 Wis. 39, 50, 51 N. W. 1133. Rut these only accentuate the application to all other treasury disbursements of the rule fundamental in popular representative governments that the popular branch of the state legislature or the legislative branch of the government shall control the public purse. Dxpressio unius est ex-clusio alterius. In no system is the judiciary the guardian of the public treasury except as the constitution by restrictions upon legislative power in this direction may have so provided that a judicial controversy not involving political discretion may arise. The manner in which appropriations of money must be made is regulated, and there is a general provision, refeognizing the authority of the legislative branch of the government over the public funds, to the effect that no money shall be paid out of the treasury except in pursuance of. an appropriation made by law. There is in the instant case an *529appropriation made by law, but it is contended tbat tbis appropriation, being made for the purpose of administering or carrying into effect an unconstitutional law, is itself unconstitutional. What provision of the constitution does it conflict with if we suppose the premises correct ? The state legislature is not expected to find a ¿rant of power to it in the state constitution. Where there is no restriction it possesses the power. Comm. v. Plaisted, 148 Mass. 375, 19 N. E. 224. There is no such restriction upon the power of the legislature over the public funds. On the contrary it may well be within the duty, at least it is within the discretion, of the legislature that all'laws, even invalid laws, be enforced and thus brought to the test before the courts in the ancient, well understood, and lawful way. But in any event the courts have no authority to interfere by injunction and thus forestall attempts to enforce the law. This because the taxpayer has no interest in the funds in the public treasury to restrain these officers, and because the court has no power to create such an interest in the taxpayer, and because the court does not possess the power, where no constitutional interdict intervenes, to control the disbursements of public funds as against the legislative branch of the government. But of this hereafter.
It further seems to me obvious that' a suit by a taxpayer against such fiscal officers of the state, based upon the claim that a statute is unconstitutional, is a suit by a private person against the state, not going upon any apprehended de: struction or confiscation of his property or clouding his title, as we say in legal phrase, not quia timet but ostensibly as champion of the public interests and. in self-assumed protection of public funds, and really to avoid payment of the tax by arresting the power of the state in its attempt to execute the law by furnishing the funds for that purpose. That this is a suit against the state is settled, by authority here and elsewhere. It falls within the rule of State ex rel. Drake v. Doyle, 40 Wis. 175, sixth paragraph of opinion, and the cases *530there selected for approval. Stephens v. T. & P. R. Co. 100 Tex. 177, 97 S. W. 309; Lord & P. C. Co. v. Board of Agriculture, 111 N. C. 135, 15 S. E. 1032; State ex rel. Hart v. Burke, 33 La. Ann. 498; Poindexter v. Greenhow, 114 U. S. 270, 5 Sup. Ct. 903, and cases in Eose’s Notes; and Fitts v. McGhee, 172 U. S. 516, 19 Sup. Ct. 269, are in point, and other cases can he found. Quoting from the last cited case:
“If, because they were law officers of the state, a case could he made for the purpose of testing the constitutionality of the statute, by an injunction suit brought against them, then the constitutionality of every act passed by the legislature could be tested by a suit against the governor and the attorney general, based upon the theory that the former as executive of the state was, in a general sense, charged with the execution of all its laws, and the latter, as attorney general, might represent the state in litigation involving the enforcement of its statutes. That would be a very convenient way for obtaining a speedy judicial determination of questions of constitutional law which may be raised by individuals, but it is a mode which cannot be applied to the states of the Union consistently with the fundamental principle that they cannot, without their assent, be brought into any court at the suit of private persons.” See, also, Ex parte Young, 209 U. S. 123, 157 et seq., 28 Sup. Ct. 441.
But there emerges here what is perhaps a larger question. To say that the courts have jurisdiction to review statutes at the suit of any taxpayer of the state who seeks to enjoin the payment of moneys out of the state treasury for the administration or enforcement of those statutes is to establish a general revisory jurisdiction in the courts over all legislation before any actual judicial or justiciable controversy has otherwise arisen. I may safely say that no statute is received with unanimous approval. A taxpayer may always be found. It is no answer to say that the court has a discretion as to when it will recognize this right of the taxpayer or issue its injunction. That only changes the principle which it is sought to engraft upon our form of government to the extent that we *531are to modify tbe statement of it by saying: “The courts bave the power in their discretion to review all legislation,” etc. To my mind it is an obvious fallacy to say that this power or this discretion extends only to the review of unconstitutional statutes. As well might one say that courts had jurisdiction to try only guilty persons charged with crime. The inquiry proposed is whether or not the act in question is unconstitutional, and it is to entertain such inquiry and decide it for or against the validity of the statute that the jurisdiction exists if it exists at all. To recognize a power .resident in the courts by which that branch of the government could supervise legislation in this way would be to create a radical change in our plan of government as heretofore understood. This must be quite apparent to those who have extended their legal studies beyond the minutiae of adjudged cases and the rules of private right and have acquired some knowledge of the principles of government. All revenue measures and most other statutes involve some charge upon the public treasury for their administration. All acts of the legislature involve the expenditure from the state treasury of at least- printing and publishing. Therefore all statutes would at this preliminary stage be subject to judicial review. In reply to a suggestion of this kind from the bench one of the learned counsel for plaintiffs suggested that this expense was so small that a suit would not be entertained because de minimis non Curat lex. But this answer overlooked the cases of Mueller v. Eau Claire Co. 108 Wis. 804, 84 N. W. 430, and Chippewa B. Co. v. Durand, 122 Wis. 85, 108, 99 N. W. 603, wherein it was held that the court will not inquire into the amount or extent of the taxpayer’s interest so long as he is a'taxpayer'. Besides, it overlooked the consideration that in a republic founded upon the equality of its citizens before the law it would be quite inconsistent with fundamentals to rest the jurisdiction to review legislative acts at this preliminary stage of their existence upon the wealth of the taxpayer who comes in to represent *532bimself and the public. Nor can the amount of tbe charge which the law imposes on the state treasury affect this question, which is one of jurisdiction. No statute gives the taxpayer an interest in the funds in the state treasury. The courts must invent that species of property right if it is to have recognition in the courts. The courts also have considerable discretion in granting or withholding injunctions. This inevitably leads to the conclusion that the court is asked to create or recognize a right not given by common law or statute and then exercise its discretion to issue an injunction to prevent threatened invasion of this right, and all for the purpose of making an occasion or an opportunity to review the constitutionality of a statute at the preliminary stage of its existence, before its enforcement is attempted and before any controversy otherwise justiciable has arisen. To do so would conflict with the notion of constitutional law and the powers of the judicial branch of the government with reference to declaring laws unconstitutional announced in Marbury v. Madison, 1 Cranch, 137, and many cases since. It has been said that courts never declare a statute unconstitutional, but, being confronted with a judicial question which it may not evade and with a constitution which commands one thing and a statute which commands the opposite, they reluctantly and unavoidably obey the paramount, not the subordinate, command. The result of the grave duty thus forced upon the court is unconstitutionality of the statute because it is incapable of enforcement in the courts which speak last. But here we are asked not only to compare the statute with the constitution, but to make the occasion for so doing, and to hold for the purpose of enabling us to do so, by legislation, legal fiction, or unprecedented judicial decision, that every taxpayer has a proprietary interest in the funds in the state treasury. The controversy at this stage concerning the constitutionality of a statute is the same which was or might have been presented to the judiciary committees of the legislature or to the legis*533lature in session the same as that waged before the governor to induce him to veto the act. It is in the nature of an appeal from the legislative and executive branches of the government to the judicial.
“The theory upon which, apparently, this suit was brought is that parties have an appeal from the legislature to the courts; and that the latter are given an immediate and general supervision of the constitutionality of the acts of the former. Such is not true. Whenever, in pursuance of an honest and actual antagonistic assertion of rights by any one individual against another, there is presented a' question involving the validity of any act of any legislature, state or federal, and the decision necessarily rests on the competency of the legislature to so enact, the court must, in the exercise of its solemn duties, determine whether the act be constitutional or not; but such an exercise of power is the ultimate and supreme function of courts. It is legitimate only in the last resort, and as a necessity in the determination of real, earnest, and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.” Chicago & G. T. R. Co. v. Wellman, 143 U. S. 339, 12 Sup. Ct. 400.
See, also, Charles River Bridge v. Warren Bridge, 11 Pet. 420; Georgia v. Stanton, 6 Wall. 50; Mississippi v. Johnson, 4 Wall. 475. An injunction will not issue to restrain the execution of an unconstitutional law merely on the ground that it is unconstitutional. Thompson v. Comm’rs, 2 Abb. Pr. 248; Birmingham v. Cheetham, 19 Wash. 657, 54 Pac. 37; People ex rel. Alexander v. District Court, 29 Colo. 182, 68 Pac. 242. I am convinced that the decision below was correct and should be affirmed.
In the second suit a private citizen who is also a taxpayer seeks as relator to begin in this court' an action by and in the name of the state against the secretary of state and state treasurer for the purpose of enjoining them from paying out funds from the state treasury for salaries and other expenses of ad*534ministering this law, and also against the members of the state tax commission, enjoining the latter from exercising the duties and powers conferred upon them by the act in question, all upon the ground that this act is unconstitutional. As against the secretary of state and state treasurer the ostensible purpose of the bill is to protect the state treasury; as against the state tax commission the real purpose of relator to avoid paying income tax is disclosed. No steps have been taken to enforce the law and the time for its enforcement has not arrived. Application was by relator made to the attorney general to begin and prosecute this suit, that official refused, and the relator on this showing, with the usual averments of irreparable injury, etc., seeks to arouse the original jurisdiction of this court to entertain the suit, to put his private counsel in the place of the attorney general to prosecute it, and to have the state at this stage of existence of the statute enjoin its own officers from collecting its own revenue upon the averments that the statute is unconstitutional. The constitutional grant of power to this court is that
“The judicial power of this state, both as to matters of law and equity, shall be vested in a supreme court, circuit courts, courts of probate, and in justices of the peace. . . .” Art. VII, sec. 2.
“The supreme court, except in cases otherwise provided in this constitution, shall have appellate jurisdiction only, which shall be co-extensive with the state. . . . The supreme court shall have a general superintending control over all inferior courts; it shall have power to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, and other original and remedial writs, and to hear and determine the same.” Art. VII, sec. 3.
That portion of the last above quoted section giving power to issue the writs mentioned and to hear and determine the same was construed to confer upon this court original jurisdiction of all judicial controversies within the scope of and instituted by the issuance of such writs at common law, but *535it was said that the court would only exercise the power thus granted in controversies affecting the sovereignty of the state, its franchises and prerogatives, or the liberties of its people. It was also decided that the writ of injunction, found in this section associated with the so called prerogative writs, might also for this reason be employed to assert the prerogatives of sovereignty. Cases collected in State ex rel. Lamb v. Cunningham, 83 Wis. 90, 53 N. W. 35. .Rules regulating the exercise of the original jurisdiction as distinguished from the appellate jurisdiction of this court, while appropriate and desirable to facilitate our work, are not fundamental. Power is derived from the constitution, not from such rules, which only operate to regulate the manner of its exercise. They merely serve to indicate when the parties litigant should approach this court in the first instance and when reach this court by appeal or writ of error. There -is, I think, a marked inconsistency between such cases as State ex rel. Drake v. Doyle, 40 Wis. 175; In re Hartung, 98 Wis. 140, 73 N. W. 988; and State ex rel. Stengl v. Cary, 132 Wis. 501, 112 N. W. 428; and other cases found in our reports and referred to in the opinion written by Chief Justice WiNsnow herein. I am quite satisfied with the opinion of the court in this respect, but fear it will meet the usual fate of mere judicial warnings and be again disregarded when a new exigency arises. The constitution vests in this court only judicial power, thus excluding by implication political, administrative, and legislative power. The power to institute a suit by and in the name of the state cannot logically be said to be an exercise of judicial power. It is rather executive or administrative. The attorney general, district attorneys, the governor, and other officers possess this power although they exercise no .judicial power. It is only by historical associations of the words “judicial power,” as distinguished from scientific definition, that the act .of instituting a suit in court in the name of-the state can be called an exercise of judicial *536power. Assuming it to be settled by precedent that the judicial power mentioned in our constitution is that power formerly exercised by the court of King’s Bench and the Chancery courts in England, still that power fell short of authorizing an attack by suit upon the acts of co-ordinate departments of government by any writ before any legal controversy had arisen by the attempted execution of such acts. How then did this court acquire jurisdiction to authorize the institution of and then to entertain such a suit? Neither logical analysis of the term “judicial power” nor historical association warrants the exercise. The restriction of suits against the state is quite impotent if every taxpayer of the state, while he cannot make the state a defendant in his suit, may nevertheless make the state a plaintiff in a civil action against the same state officers to fight his battle for him. If these state officers represent the state in an action against them to restrain them from enforcing the law, they occupy the same legal position and make the same claims when this form of making the state plaintiff is complete. We can hardly say that the controversy has become a suit by the state against the state, for that would be absurd. We cannot liken the state to a trustee seeking the advice and direction of the court, for that presupposes a supervisory jurisdiction over the trust and in the court and begs the question. We cannot find an analogy in the governments of those states like Massachusetts where the governor or the legislature may call upon the court for an opinion in advance of enactment and of litigation, because there it is conceded that the courts in giving such opinions act not in a judicial but in a political capacity. Opinion of Justices, 126 Mass. 557, 566. Turn this as we will, we are always confronted with the fact that, whether the taxpayer is plaintiff or the state plaintiff, the suit involves a claim on the part of this court of power to revise and review acts of the legislature with reference to their constitutionality before any judicial controversy has arisen other than a con*537troversy nursed into life and existence by this court for the purpose of such revision. All that I have said and quoted with reference to the action in the name of the taxpayer on this point applies to this action. Of the two I would prefer the taxpayer’s suit, because this is subject to the same weakness and also savors of subterfuge. Sovereignty is one and indivisible. But in the exercise of sovereign power all the great departments of government must concur. The manner of this concurrence is regulated by the division of governmental powers in the constitution and the limitations placed upon each department arising from this division or from express or necessarily implied restrictions found in the organic law. This sometimes impairs efficiency, but it promotes liberty. The most promptly efficient government is a despotism. It is the wisdom of the spendthrift which sacrifices future advantage for immediate gratification; The statesmen who founded the American republic understood these things and made deliberate choice between a government of liberty and one of temporary and prompt efficiency. ' The result thus far has justified their judgment. In the prevailing plan of government the guardianship of the funds in the public treasury, except when otherwise specially provided, is committed to' the legislative branch of the government, which is responsible to the people. The judicial branch of the government is to take no part in political questions. In consummation of the exercise of the sovereign power it is to act last, and to act only when aroused by an actual judicial controversy. Until it comes before the court incidentally in such controversy, the question of the constitutionality of a statute is a political, not a judicial question. There is therefore no jurisdiction resident in the courts, as there is in the legislature and the governor, to declare an act unconstitutional in advance of a judicial controversy which necessarily involves that question. The court therefore has no jurisdiction to create such controversy by authorizing what is to my mind a fictitious suit in behalf *538of the state against its own officers, where the ground for such a suit is that these officers are about to collect taxes under a general tax law. That is merely a statement of the rule that what cannot constitutionally be directly done cannot be done by indirection. The latter breaks down the American republican form of government as well as the former. Examining from another viewpoint: In a case where a bounty was granted to manufacturers of sugar by Congress and the disbursing officer of the treasury refused payment under the belief that the act of Congress was unconstitutional, and the statute authorized a suit against the United States, an actual justiciable controversy thus arose. But even here, and under a constitution carrying delegated power only, the supreme court of the United States decided, as set forth in the second paragraph of the syllabus:
“It is within the constitutional power of Congress to determine whether claims upon the public treasury are founded upon moral and honorable obligations, and upon principles of right and justice; and having decided such questions in the affirmative, and having appropriated public money for the payment of such claims, its decision can rarely, if ever, be the subject of review by the judicial branch of the government.” U. S. v. Realty Co. 163 U. S. 427, 16 Sup. Ct. 1120. Approved in Allen v. Smith, 173 U. S. 589, 19 Sup. Ct. 446, and cited in State ex rel. Garrett v. Froehlich, 118 Wis. 129, 143, 94 N. W. 50.
If we compare the instant case with the above we will find that here no justiciable controversy has arisen, but the court is asked to make one by authorizing a suit in the name of the state upon the petition of a taxpayer, and that here we are asked to decide in such suit that the legislature, which possesses all power not forbidden, had no power or discretion to make an appropriation of public moneys for the purpose of enforcing a statute passed by its legislature and approved by its executive. I think this court has no jurisdiction so to do. For the court to decide before its judicial power is aroused *539by a legal controversy is to assume a jurisdiction not given to it by law. I think the assumption of such jurisdiction changes the form of government as heretofore established and understood, and therefore we are justified in disregarding or overruling precedents in this court which might by mere logical inference seem to support this suit. I think we should have the courage to stop before taking this last step fraught with such consequences. In this connection I wish to mention the case of State ex rel. Rosenhein v. Frear, 138 Wis. 173, 119 N. W. 894, which was a motion for leave to bring suii in the name of the state. When that motion was presented it will be remembered by those present that I protested vigorously from the bench against countenancing any such proceeding. I thought then and I still think that the suit there suggested was preposterous. If the legislature of Wisconsin had not been a body of rather feeble temper it might not be entirely discreet for judicial officers to assert the right to launch and determine such a suit. But the motion was denied, and I regret to say that I gave no careful attention to the language of the opinion denying the motion and neglected to dissent therefrom. I do not think either that the complaint states a cause of action in favor'of the state and against its officers. The mere fact that taxes will be collected from a large number of its citizens by the state authorities for the state creates no actionable wrong against the state. All general laws affect all the people of the state ánd all police regulations curtail their rights or liberties to some extent. But this gives no right of action to the state. Neither can a general tax law, be it ever so new. The notion that the state has a right of action to test such laws is, to say the least, very novel. Nor does the fact that a law which appears on its statute books and is about to be enforced at some expense upon the state treasury do so. It is the legal and constitu-' tional way in which to handle a law whether that law be valid or invalid. It is the proper mode of getting that law before *540the courts. It merely amounts to saying that the officers of the state are about to enforce the state statutes in such manner as to create justiciable controversies which will thus come before the court in the ancient, established, and orderly way. Surely such attempt is not actionable. If the statute is valid it is their duty to enforce it, and it is in any event their duty to obey it until it is held to he invalid by the judicial branch of the government in a judicial controversy of which the latter branch has jurisdiction. If the legislature has discretion to recognize merely moral obligations and appropriate money for their payment, it surely may appropriate money for enforcing even a void act and thus bringing it to the judicial test in an actual controversy. It may be that in the march of -progress and the evolution of governments the change in the plan of our government created or confirmed by the decision herein is inevitable. But I mistrust, and I think not through timidity, the steady progress of this court always in the direction of grasping more power. This will establish the judiciary as a political branch of the government and displace it from that place of dignified impartiality which it has so long and so successfully filled. This extension of power is the progress which has always resulted in the wreck of human institutions. I have now made my protest against it in In re Appointment of Revisor, 141 Wis. 592, 124 N. W. 610; in State ex rel. Kustermann v. Board of State Canvassers, 145 Wis. 294, 130 N. W. 489; in State ex rel. Rosenhein v. Frear, supra; in Lawler v. Brennan, - Wis. -, 134 N. W. 154, and in the instant case, and so discharged what I conceive to be my duty. In any view of the case, even that taken in the majority opinion, it seems to me the second action should be dismissed for want of jurisdiction as against the secretary of state and the state treasurer. But I consider that this court has, under the constitution of this state, no jurisdiction to review the statute at this stage of its existence and in this way in either case. The assumption of the jurisdiction so to do *541cannot be justified upon tbe comparative futility of sucb review demonstrated by tbe result in this case.