(concurring). I support the exclusion of county judges from the restrictions of sec. 26, art. IV of the Wisconsin constitution, but in reaffirming State ex rel. Sullivan v. Boos (1964), 23 Wis. (2d) 98, 126 N. W. (2d) 579, the majority opinion perpetuates and, indeed, aggravates the serious error of that decision.
This court has the awesome responsibility of superintending Wisconsin’s judicial system. Yet it is difficult to conceive of a more self-defeating decision than that reached here by the majority. The problem of providing an evenhanded method of compensating judges must be viewed as part of the total picture of improving the administration of justice.
As a result of the majority’s decision in the instant case, we will now have the absurd circumstance of circuit judges being denied interim salary increases, but county judges not being so restricted even though this court has held that county judges may constitutionally sit as circuit judges. State ex rel. McCormack v. Foley (1962), 18 Wis. (2d) 274, 118 N. W. (2d) 211.
In my opinion, this court should disavow the concept that sec. 26, art. IV, applies to the judiciary. As noted in the dissent in the Sullivan Case, the prohibitions of sec. 26 are not contained in those portions of the constitution which relate to the judiciary. They are found instead in the legislative section, and this supports the interpretation herein proposed.
In some 30 other states where a regulation on judges’ pay is expressed in a state’s constitution, it is found in the section thereof concerning the judiciary. The names of those states and the citations to their respective constitutions are annexed as an appendix to this concurring opinion.
In discussing the location of the restrictions on judicial pay, Mr. Justice Marshall stated in State ex rel. Bashford v. Frear (1909), 138 Wis. 536, 556, 120 N. W. 216:
*156We should say, m passing, that amendments were proposed in the constitutional convention placing the usual restrictions upon changing the salary of a justice of this court, in an appropriate section in the article on the judiciary, but it was not done, as we have seen.”
Since the restriction was excluded from the judicial section in the Wisconsin constitution, the court has before it a means of extricating itself from the inequitable and in some instances ridiculous results of previous interpretations relating to judicial salaries. It is especially ironic that the crazy quilt which covers judicial salaries was put together by judges themselves.
When the question of salary adjustment for statutory officers of the executive branch was presented to this court, we upheld as constitutional the patently evasive technique described in State ex rel. Reuss v. Giessel (1952), 260 Wis. 524, 51 N. W. (2d) 547. However, when given the occasion to set our judicial house in order, we cling to an antiquated interpretation which guarantees an unthinkably confounded salary pattern for the judiciary.
The majority opinion asserts that the meaning of “public officer,” as contained in sec. 26, art. IV, cannot “change with the times.” However, in my opinion, it is not really “the times” that have changed; rather, it is our comprehension that has grown. To illustrate: When the United States supreme court decided Betts v. Brady (1942), 316 U. S. 455, 62 Sup. Ct. 1252, 86 L. Ed. 1595, an indigent prisoner needed legal counsel just as much as he does today. Times have not changed so much as our understanding; as a result it is now held that constitutional due process requires the appointment of counsel for an indigent accused. Gideon v. Wainwright (1963), 372 U. S. 335, 83 Sup. Ct. 792, 9 L. Ed. (2d) 799.
The majority opinion points out that such respected jurists as Mr. Chief Justice Dixon and Mr. Chief Justice Winslow *157were of the opinion that judges were within the definition of “public officer.” So, too, however, when Plessy v. Ferguson (1896), 163 U. S. 537, 16 Sup. Ct. 1138, 41 L. Ed. 256, was decided, such respected justices as Messrs. Fuller, Field, and White were of the firm opinion that the use of separate but equal facilities did not deny equal protection of the laws to Negroes. When this view was rejected in Brown v. Board of Education (1954), 347 U. S. 483, 74 Sup. Ct. 686, 98 L. Ed. 873, it was not so much that times had changed but rather that our general awareness had matured.
It is this kind of comprehension and enlightenment that the Kentucky court recently evidenced in rejecting a preexisting, narrow interpretation as to which public officers were included within its constitutional limitation regarding salary increases. Board of Education of Graves County v. De Weese (Ky. 1960), 343 S. W. (2d) 598. Said the Kentucky court, at page 606:
“Where it is possible, the constitution should be construed liberally, that it may continue as a useful instrument in the life of our society. Doubtful questions ought to be resolved in favor of the freedom of the living generation to govern its own affairs in the light of modern circumstances.”
The mere fact that judges have heretofore been included within sec. 26, art. IV, does not make that interpretation immortal or imperishable. When the application of stare decisis permits the disparities which are here involved, judges should not blindly follow the outmoded precedents. In Washington v. Dawson & Co. (1924), 264 U. S. 219, 238, 44 Sup. Ct. 302, 68 L. Ed. 646, Mr. Justice Brandeis stated:
“Stare decisis is ordinarily a wise rule of action. But it is not a universal, inexorable command. The instances in which the Court has disregarded its admonition are many.”
*158Mr. Justice Holmes expressed a similar point of view in Bain Peanut Co. v. Pinson (1931), 282 U. S. 499, 501, 51 Sup. Ct. 228, 75 L. Ed. 482:
“The interpretation of constitutional principles must not be too literal. We must remember that the machinery of government would not work if it were not allowed a little play in its joints.”
In Milwaukee v. Milwaukee E. R. & L. Co. (1921), 173 Wis. 400, 406, 180 N. W. 339, 181 N. W. 821, this court said:
“Law is the rule of reason applied to existing conditions. Obviously, when conditions change there must be a corresponding change in the law, else it would cease to be a rule of reason and would become a mere arbitrary static rule. . . . To do justice, then, under existing conditions, is its paramount office — all else, even the most venerable precedents, must yield to that, office.” (Emphasis added.)
Blackstone in his Commentaries (Vol. 1, p. 70), put the matter in these words: “Precedents and rules must be followed, unless flatly absurd or unjust.” For one circuit judge to earn thousands of dollars per year more than another circuit judge in the same circuit is “absurd or unjust.” For one justice of the supreme court to earn as much as $10,000 per year more than another justice for the same services is “absurd or unjust.” For circuit judges to be barred from interim salary adjustments while county judges (who may sit as circuit judges) are permitted to receive them is “absurd or unjust.”
APPENDIX.
States with an explicit mandate regarding changes in judges’ pay found in the judiciary section of their respective constitutions:
*159
*160
*161