The following opinion was filed June 23, 1915:
Timlin, J.(concurring). Upon an equal division of the members of the court I was called upon to cast the deciding vote in this case. I think the interests of the bench and bar and of the public require some more explicit statement of the reasons upon which my conclusion rests.
1. I first inquire, What is the nature and purpose of the statute under consideration, sec. 1042;, Stats. 1913 ?
The statute does not expressly include rights in and to ores or minerals excepted from a grant of land. Where a grant of this kind is drafted by a competent person and it is desired to separate the ownership of the ores and minerals from the ownership of the land for other purposes, this is accomplished by an exception from the grant of the ores and minerals together with a reservation of the right to enter upon the land, explore and mine for such ores. There are two reasons why this statute should be taken to include exceptions and express grants as well as reservations, although the former is not within the express words of the statute: (a) because there is a decision of this court relative to construction of deeds which holds that, when it is apparent from the subject matter and from other provisions in the deed that such was the intention of the parties, an exception may be created by language like that used in this statute, (b) In order to *192uphold if possible the constitutionality of the statute, it ought to be held that this statute covers all property rights or title in and to minerals and mining rights held or owned by others than the owner of the surface rights in the land. For surely upon a test of uniformity or of equal protection of the laws this statute could better meet that test if it includes estates or rights in ores and minerals created by exception or express grant than if it me- cly applied to rights to enter, mine, etc., created by reservation. The reasons for this are obvious.
The statute carries with it on its face some indications of a purpose to accomplish, under the guise of a taxing law, the result of extinguishing all right or title in ores or minerals in or under land outstanding' in a third person separate from the surface rights and to bestow such rights upon the person who may for the time being own the surface rights to the land. But a statute with this interpretation would not meet the constitutional tests above mentioned as strongly as a statute for the purpose of raising revenue by taxation, (a) For centuries it has been common law that there may be different estates and interests in the same piece of land, — tenancy in common, life estates, estates for years, remainder, reversions, easements, limited fees, rights of piscary or turbary, title to standing and growing timber, rights to quarry, or rights to minerals in or under the surface. This precludes any theory that such multiplication of estates in a single tract of land is detrimental to public welfare so as to call for any exercise of the police power. On the contrary it has been generally agreed by lawyers, statesmen, and publicists that any policy which increases the number of proprietors in the commonwealth is beneficial rather than injurious in its tendency, (b) Underhand or improper purposes are not to be attributed to the legislature.
First conclusion. So that in deference to the rule of constitutional law which requires us to hold every statute constitutional unless we are satisfied beyond a reasonable doubt to *193the contrary, we must treat this statute as a taxing statute enacted for the purpose of raising revenue for governmental purposes and as including within its scope all cases in which by exception, reservation, or express grant the title to ores and minerals in land, together with the right of exploring for and mining the same, are vested in some person or persons other than the person or persons who own title to the land and its beneficial use for any and all other purposes.
2. I do not rest this case solely on the question of the validity of the statute under sec. 1, art. VIII, Const, of Wis. I also consider its validity under the Eourteénth amendment to the paramount federal constitution, (a) because it has been customary in this court to consider these constitutional requirements together. Black v. State, 113 Wis. 205, 89 N. W. 522; State v. Whitcom, 122 Wis. 110, 99 N. W. 468; Lawrence University v. Outagamie Co. 150 Wis. 244, 136 N. W. 619, and cases cited, (b) Recause if it conflicts with the paramount constitution it must fall notwithstanding it might he thought capable of enforcement under our state constitution, (c) It might he well to rest it wholly on the federal constitution. I would have been willing to so rest it and say nothing about the state constitution, out of deference to the minority opinion and to facilitate the review of the decision in the supreme court of the United States' by those hereafter claiming title under this statute.
3. The arbitrary imposition of unequal burdens upon persons between whom no substantial distinction germane to the purposes and objects of the law can be made is forbidden by the state and federal constitutions in matters of taxation as well as in other matters. This distinction or difference necessary to uphold the classification must be one which has some relation to the legal capacity of the person, as infancy, coverture, lunacy, idiocy, alienage, etc., or to the nature and qualities of the property discriminated against, as, for example, dangerous or nondangerous property, or to the proper *194objects sought to be achieved by the legislature. Eor instance : inequality of burden based upon stature, complexion, political belief, or upon insignificant or immaterial distinctions in the nature and qualities of property, or upon differences having in them nothing germane to the proper object sought to be attained by the statute, would not be permissible inequality. The statute in question affords a good illustration. The value of the use and occupation, and from this and other data the market value of land, is ascertainable. The existence or value of ores or minerals beneath the surface undisclosed is not easily ascertainable, but might be known to the owner if he has drilled and tested the land. This is a distinction cognate to the purposes of the statute which would support the discrimination found in the statute requiring such owner to furnish the assessor an affidavit of value while the owners of other estates in the same tract of land are not required to do so. If this were all of the statute, the statute would be valid under either the federal or state constitution.
By other statutes all sales of real or personal property of a delinquent taxpayer are subject to competitive bidding at "public auction. In the case of the sale of personal property the buyers bid up upon the price, while in the case of land they bid down upon the quantity. The bidding is as truly competitive and as much for the benefit of the delinquent taxpayer in one case as in the other. Under the statute here in review the property mentioned is returned delinquent, advertised for public sale, bidders are invited, and the property treated in all respects, except with reference to the mode of assessment, as other real property. But when the invited bidders come they are prohibited from bidding because they cannot become purchasers. No one but the state or county or the person who owns the remaining interest in the land 'can bid at the sale. Now if this is a taxing statute, the purpose of which is to raise revenue for state expenses, this limi*195tation of bidders is apparently not germane to bnt in contravention of the purpose of the statute. It also discriminates injuriously against the holder of the hind of property described because he loses the advantage of having some one purchase his mineral rights in the north one, three, ten, or twenty acres of the'tract in question, leaving him the remainder. This discrimination is wholly arbitrary; there is no legitimate classification on which it can rest. It surely does not aid the state in collecting its revenue to limit the number of bidders nor to require the whole land to be sold instead of the smallest area from off the north side. There is nothing in the nature of the property or in its existence detrimental to public welfare. There is no ground for any legal classification upon which this added burden can rest. It is argued that the alleged sale is really not a sale but an absolute forfeiture. This is contrary to the language and meaning of several statutes treating the affair as a sale and not as a forfeiture. But under the constitutional rules in question the legislature could not provide for a sale at public auction with competitive bidding for the property of one delinquent taxpayer and an absolute forfeiture of the property of another delinquent taxpayer, there being nothing in the nature of the property to uphold or upon which to classify this discrimination.
It having been decided by this court that the requirement that the rule of taxation be uniform is not limited to the mere rate of taxation, I think it follows that the statute in question transgresses this requirement as well as the Fourteenth amendment to the United States constitution. “The rule of taxation” does not, I think, extend to all steps in enforcing collection of the tax. But it does extend to those important steps which are essential parts of the tax proceedings. Collection by demand or collection by enforcement process are such, and it would be intolerable, for illustration, that a certain favored class should have six months in which to pay *196tbeir taxes while others must pay in six days, (b) This statute, I think, also aims to cut off at the sale the right of redemption of the owner of the kind of property discriminated against, while leaving a three years’ right of redemption to all other owners of other estates in the same tract of land. True, the redemption must be made upon penalty, paying fifteen per cent, interest, but he would be a bold innovator in the law who would hold that the equity of redemption is not a matter of great consequence. Besides this, he would be much at variance with facts and would ignore the ordinary practices prevailing in real life. But just as there was no legal foundation for classification or discrimination in the clause which deprived the owners of the ores and minerals of the advantage of competitive bidding, so there is no legal foundation for this discrimination against him with reference to the time or manner of redemption. In this latter respect the act is void under both the state and federal constitutions, (c) I consider the act invalid also in that it attempts to confer upon a stranger to the title of the ores and minerals the privilege of redemption or acquisition which it denies to the delinquent owner. This is a clear case of denying the equal protection of the law. It would be the legal equivalent of enacting that one tenant in common might acquire title to the whole under a tax sale, while the other tenant in common could not.
4. With reference to the provision making the assessor’s valuation conclusive, I understand that to be conclusive except in case of fraud. That is to say, I understand the rule that fraud vitiates everything obtains here. With this qualification I think that when a duty relating to assessment is' lawfully imposed on a taxpayer which he is given time and opportunity to perform, but which he fails to perform, all who fail to perform that duty constitute a class against which the valuation of the assessor, while not fraudulent, may be made conclusive.
*1975. If tbe statute in question is unconstitutional in its basic and leading provisions as aforesaid, tbe purchaser at tbe sale would acquire no title as against tbe owner and tbe state should not be coerced to audit claims or pay out money on a void sale. Tbe part of tbe statute sought to be enforced here by mandamus is not capable of severance from those portions above held void, but expressly rests thereon and is inseparably interrelated therewith.
There is another ground of unconstitutionality which I must now mention. The provision for the state advancing money to the county, which then drops out of consideration, taken with the provision that the owner of the remaining interest in the land may redeem within three years and in many cases within a longer time, amounts in practical effect to the state advancing money for this favored person, who has an option to repay' the state the amount advanced with interest and take the property or to let the state keep the property. He has three years or more within which to drill and test the land, and if he finds no ore there he will leave it to the state. If he finds ore he will redeem and become the owner. But if he has not the means to carry on drilling and exploration he will naturally turn the possession of the land for the purpose of drilling and exploration over to a drilling and exploring company which will explore and acquire title to the same. If such company finds ore it will, through the owner of the surface rights, redeem; if not, the exploring company will leave the land to the state. We may question whether a statute requiring the secretary of state to audit' a demand against the state created by statute, which demand amounts to an advance by the state to one owner of a part interest in land to enable him to acquire the interest of another owner in the same land, the state acquiring nothing except interest on its loan or a right to take the ores and minerals in cases where there are none, is valid. I think it is not valid. I think it is appropriating state money for the *198purpose of aiding a private enterprise. Tbe statute by shutting out bidders prevents tbe state from collecting its revenues. It tben provides for tbe state becoming tbe purchaser, but this state title so acquired is redeemable at tbe option of tbe owner of another separate interest in tbe land. This last mentioned person is under no obligation to redeem, owes no debt or duty to pay tbe tax, and can select all tbe valuable mineral rights and become tbe owner thereof and leave those that are nonexistent or worthless to tbe state. As to all mineral rights redeemed, tbe state is merely advancing money for tbe benefit of one who is in tbe law a stranger to tbe interest sold for taxes. As to all mineral rights unredeemed by this favored person, tbe state is endeavoring to acquire title, not to collect taxes.