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*542cised or not in any given case must, necessarily rest, more or less, in judicial discretion.
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:
Marshall, J.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 *543the state for prevention or redress/ any suggestions to tbe contrary, however well supported as an original proposition, might well have but a passing notice. The same is true of the question of whether an action against a state officer to prevent disbursement of public money in the enforcement of an invalid act of the legislature is against the state in any proper sense. It has been held ovqr and over again, in terms or in effect, that such an action is to be regarded as against the person in his individual, not his official capacity, and so not against the state,' — so held very recently most significantly by the supreme court of the United States. Ex parte Young, 209 U. S. 123, 28 Sup. Ct. 441, followed here in Bonnett v. Vallier, 136 Wis. 193, 116 N. W. 885.
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 *544tbe average legislative sentiment not to see tbrongb tbe vista of momentary impatience, — sometimes exhibited, at tbe failure of legislative effort, — to tbe considerate judgment of after reflection wbicb may always be depended upon to approve and honor full performance of judicial duty to appreciate that when there is a conflict between an act and tbe constitution, as seems to tbe court created to view tbe matter, it must decide between them and “as tbe constitution is superior to any ordinary act of tbe legislature tbe constitution and not tbe ordinary act must govern tbe case to wbicb they both apply.” Marbury v. Madison, 1 Cranch, 137. On tbe other band, I have too high regard for tbe great trust reposed in tbe in-strumentalities chosen for now to give vitality to tbe judicial function, to think that, if there be any considerable sentiment, momentarily, elsewhere inimical to full performance of duty here, it can exert efficient influence in that regard. Generally speaking, I apprehend tbe sentiment of tbe public is in favor of a prompt, thorough treatment of constitutional questions as they arise. Tbe people want to know, and have a right to know and legislative instrumentalities desire to have them know, at tbe earliest practicable moment, just where they stand with reference to important new, far-reaching enactments.
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 *545consider and decide; but to what extent to respond was within its discretion. That left much, to judicial propriety, convenience, exigency, and expediency, resulting in the court going only so far as was vital to the existence of the commission with power to enforce the dominating features of the law. Not to go that far was thought would he well nigh, if not quite, abuse of discretion; not doubting competency to go further and decide all important questions so ably discussed. Obviously, there is left a broad field for very much and very perplexing litigation, to the probable great prejudice of public and private welfare. The field so left untouched was as fully covered by eminent counsel as it is liable to ever be. The whole crop of legitimate controversies was fully ripe for the judicial harvest. All interests called loudly for the chosen instrumentality for the work to grapple with the proffered task. In my opinion, the waste of energy and expense attributable to failure to do so might well have been avoided. It was according to precedent to take the course adopted, I confess. But should precedent efficiently bar the wheels of progress toward a more full, response to such an appeal for judicial determination ? It seems not. ^
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.
*546Seeming opportunity for wortb-wbile progress is most inviting in cases like those before us. Where a new law which is questioned as to its meaning and its legitimacy in many important minor features as well as the dominant one,- — -a law of far-reaching character, materially affecting the people generally and bristling with complications, each presenting, from some reasonable standpoint, serious difficulty, — is brought early here for examination in all such aspects, — brought by the exercise of prerogative power so that all the people, as it were, are represented at the bar to the end that the enactment, so far as valid, may be vigorously enforced and cheerfully submitted to, and the mischiefs ordinarily flowing from such a course for a time and the law then being found full of infirmities, may be avoided, why should not the earliest opportunity afforded be willingly taken to carry the whole mass of things to the consultation room and patiently and finally solve the uncertainties, thus promptly affording peace to the state and its people in respect to the matter ? The power exists to do it. Universal acclaim is in favor thereof. We are - here to vitalize the power intrusted to us to do it. We have time therefor. We are as able now for the task as we probably ever will be. If we have not had as efficient help as we are likely to have at any future time, the power is ample to call for and obtain further assistance from eminent advocates of opposing theories. > Then why hesitate? Is there any good reason for it ?
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 *547proportion of attention. I confess tbe court’s burdens are heavy and that the easiest way of escape from danger, if any exists, of which I must say I am not conscious of its being unduly so, is by limiting decisions to actual necessities of cases as they arise. That was for a time given as a sufficient justification for limiting activity of prerogative jurisdiction to a very narrow field and limiting it therein to the essentials of each particular situation. State ex rel. Board of Ed. v. Hahen, 22 Wis. 101; In re Court of Honor, 109 Wis. 625, 85 N. W. 497.
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-*548gatiom To settle all in detail will require large public and private expenditure wbicb must be charged to waste. Conservation of time and money and peace, avoiding all such waste, can be effected by just a few days more time now, which could well be spared to devote to the matter.
A motion for a rehearing was denied March 12, 1912.