(dissenting). I cannot convince myself that this court was wrong in the position unanimously taken at the first hearing. The law in question certainly bestows upon this private corporation power to act as only an officer may act. The point now made is that it had all these powers by reason of its articles of incorporation and that this act simply appropriated money. But in addition to the powers enumerated in the original opinion, the act gave the corporation the power to commandeer certain resources of the state. It is empowered to call upon the public service commission to obtain information. Sec. 199.04, Stats., provides :
“In the performance of its duties and functions under section 199.03 Wisconsin Development Authority shall have access to all available information collected by any department of the state and may call upon the public service commission to obtain further information. The public service commission is hereby authorized to gather such information *216under section 196.02. The governor may direct that assistance and advice be given said corporation in the performance of its duties and functions under section 199.03 .by any officer, agent or employee of any department of the state.”
The corporation may, with the consent of the governor, compel the services of officers of the state, and to say that this does not confer power is to overlook the plain meaning of language. This subject is further considered in the concurring opinion of Mr. Justice FRITZ.
There is much in the opinion of the court as now expressed by Mr. Justice Wicichem over which there can be no controversy. The same is true of the dissenting opinion by Mr. Justice Fowler. I agree that there is no occasion for the feeling of uncertainty which has distressed certain quasi-public corporations with respect to the appropriations upon which some of them depend entirely for their support. But were it otherwise, and were it necessary to say that some of these appropriations are unlawful, we ought not to hesitate to say so if they were plainly contrary to the constitution. In the case of Erie R. Co. v. Tompkins (1938), 304 U. S. 69, 77, 58 Sup. Ct. 817, 82 L. Ed. 787, in discussing the abandonment of the doctrine of Swift v. Tyson, 16 Pet. 1, 10 L. Ed. 865, Mr. Justice Brandeis said:
“If only a question of statutory construction were involved, we should not be prepared to abandon a doctrine so widely applied throughout nearly a céntury. But the unconstitutionality of the course pursued has now been made clear, and compels us to do so.”
Can there be any doubt as to the truth of the proposition that no one is to be the favorite of the government except as advantage maybe an incident of public welfare and consistent with public purpose? As pointed out in the present majority opinion, all agree that it is unlawful to take the money of taxpayers in one part of the state and divert it to the special *217use of citizens of another part. Under the force of this rule, the court has eliminated from the act the right to use the appropriated money to engage in local campaigns, and has added to the law a requirement that the information gathered by this private corporation shall be made available to the public. The legislature, however, made no such provision. Can it be seriously contended that this court is authorized to fix the details and provide the machinery that is to be used in disseminating all this information throughout the whole state ?
A brief review of the act will convince-anyone that the purpose of the legislature was to place in the field a militant agency, aggressively devoted to the building up of organizations to compete with privately owned utilities, bus, and interurban operators. The result of the present decision is that the agency cannot operate as intended by the legislature, but that in its stead there may be an educational institution to benefit all concerned, including the very privately owned companies it was calculated to oppose. I agree with Mr. Justice Fowler that the doctrine of severability does not save the law. I think it will not be seriously contended that the legislature had any thought or purpose of establishing another educational institution. If it had, it doubtless would have given some consideration to sec. 1, art. X, of the constitution, which provides:
“The supervision of public instruction shall be vested in a state superintendent and such other officers as the legislature shall direct; and their qualifications, powers, duties and compensation shall be prescribed by law. . . .” See secs. 185.08 and 40.22 (12), Stats.
Education in a democratic government must necessarily be nonpartisan, presenting the merits of both sides of a question. It seeks to promote and encourage clear thinking and good citizenship; but it does not seek to promote and *218encourage the activities or accomplish the objectives of a party. The purpose of education is to inform the people, in order that they may form their own convictions. If it is proper to appropriate public money in furtherance of public ownership, no reason is apparent why it would not be proper to require the teachers in our schools to join in the encouragement and promotion of public ownership.
The majority opinion relies upon practical construction, legislative precedents, and the course and usage of government. Public money has been appropriated tO' various societies to enable them to promote and encourage projects of public interest, but so far as I know this has never been done where the effect would be to influence the minds of voters on matter of public controversy. There has been no opposition to horticulture, to cranberry growing, to cheesemaking, or to the preservation of historical records. To promote and encourage these things is to promote and encourage the good of all the people at the expense' of no- particular group. There comes to mind but one instance in which there may have been a detriment to a particular group of interests, namely, the use of public money to encourage and promote the formation of co-operatives; One such instance does not constitute a course and usage of government.
The majority has declared:
“An appropriation cannot be sustained to enable the Wisconsin Development Authority to go into a municipality and to promote, encourage, or agitate for the construction of a plant or the acquisition of an existing plant by that municipality or by any group of citizens therein, however organized. To appropriate funds to- be so- used is to devote the funds of the taxpayers generally to the promotion of a matter that is not of state concern. This is particularly true with reference to municipal ownership because that question is determined universally by a referendum. . . . For the state to throw the weight of the taxpayers’ money into the scales upon an election to- determine a purely local and pro*219prietary question cannot upon any theory or principle be considered an appropriation for a state purpose.”
In spite of this language, the majority has concluded that the purposes defined in subs. (1) and (2) of sec. 199.03, Stats., are public and state purposes—
“and that they are to be construed, to authorize encouragement of co-operatives and power districts by general educational activities of the sort permitted in the case of agricultural co-operatives, but not to authorize agitation for or organizational activities directed to the creation of any particular power district or co-operative.”
How is it possible to encourage the formation of municipal power districts in general without encouraging the formation of particular power districts? Municipal power districts have already been formed in some localities; they cannot benefit by the promotion work. But in certain parts of the state, formation of power districts may be under consideration. How is it possible to encourage the formation of power districts in general without throwing the weight of the taxpayers’ money into the scales upon an election to determine a purely local and proprietary question? Sec. 198.03 provides for an election to determine in a particular locality whether a municipal power district shall be formed. If any of the promotional activities of the Wisconsin Development Authority have been carried on in a particular locality prior to such an election, the taxpayers’ money has influenced that election, regardless of whether the same promotional activities have been carried on elsewhere. Is it proper for the state government to influence a local election, to take sides upon controversial issues of local importance, provided only that it always takes the same side wherever such an election may be held ? Multiplication of wrongs cannot make a right.
Must the Wisconsin Development Authority foresee the holding of an election in a particular community, and there*220after refrain from sending its representatives, its literature, its one-sided information, its encouragement into that area? May it spend the public money only so long as it accomplishes none of the results desired by the legislature ?
The Tuttle Case is an illustration of the impracticability of auditing the claims of Wisconsin Development Authority in such a way as to prevent the use of public money for the private objects of the corporation. The majority opinion concedes that the particular letter served both a state and a private purpose, but approves the use of public money to defray the entire expense. Does this result make it possible for public money to be used for the private purposes of Wisconsin Developiiient Authority whenever the private purpose is coupled with a public use ? The authority may gather information at public expense. Under the majority opinion it must make that information available to the public. But the information cannot possibly be made as readily available to all as to the Authority, which will have it on file in its own office. The Authority may employ the services of technical experts; may it not use any part of their time for its own purposes ? Must the secretary of state make an investigation whenever a claim for expense or salary is presented ?
It is my opinion that the decision has written a law so different in character and detail from the effort of the legislature that it is no' longer the same law. This seems to me to require an adherence to the original mandate. If the people desire to use public money for the discouragement of profit-making enterprises, a .constitutional amendment would afford them the opportunity to pass valid legislation. The people are the ultimate source of power, and the issue should be framed and settled in the manner contemplated by the constitution.