(concurring). Under which shell, state tax or local tax, does the pea of the negative state aid tax come to rest. For, even in the carnival version of the proverbial shell game, the pea has to end up under one of the shells. Since the tax is mandated and the amount of the tax to be locally collected is determined by the state, the writer, unlike the majority, would see the negative state aid tax as a state tax. As such, it is clearly unconstitutional since it violates the first requirement of uniformity — 1 the tax imposed being unequal as to similarly situated real estate in the state. Neither majority opinion nor dissenting opinion contend to the contrary.
However, even if the negative state aid tax is viewed as a local tax, as the majority holds, the writer joins the majority opinion to find such tax to be unconstitutional for the reason that, as the majority opinion states, the legislature “ ‘. . . has no power, against the will of the municipal corporation, to compel it to . . . assume obligations not within the ordinary functions of municipal government. . . .’ ” (Quoting Lund v. Chippewa County (1896), 93 Wis. 640, 648, 649, 67 N.W. 927.)
The dissenting opinion seeks to meet the twofold requirement of uniformity — that the tax be uniform in rate within the taxing district and that it be levied for a *582public purpose of such taxing district — by moving the pea from one shell to another. For the purpose of meeting the uniform application requirement, the negative aid tax is treated as a local tax. To avoid the second requirement of uniformity, that local taxes be raised for the use and purpose of the body or district imposing the tax, the minority opinion stresses that education is a public purpose of statewide concern. Admittedly that fact validates a state property tax, uniform in rate throughout the state to further such public purpose. But the pea ought not be put under the shell of a local tax to meet one of two requirements of uniformity and then moved to the shell of a state tax to avoid the second of the two twin requirements.
Our state constitution is not a grant of power, but a restriction on what would otherwise be an exercise of plenary power. (See: Manitowoc v. Manitowoc Rapids (1939), 231 Wis. 94, 97, 285 N.W. 403.)2 The test of whether a statewide public purpose is served does not replace the specific requirements of the Uniformity Clause in determining the constitutionality of a local tax. If we apply such “hand is quicker than the eye” shifting of the test, the specific restrictions and requirements of the state constitution become meaningless. Further, if uniformity as to rate on a statewide basis is not required, and, if the public purpose to be served is not limited to the public purpose of the taxing district, the constitutional requirement of uniformity of a state-imposed local tax is effectively repealed.
As to such local tax, the Uniformity Clause requires that the tax not only be uniform within the taxing district, but also that it be used for the public purpose of such local taxing district. The majority so concludes, and the cases cited support such conclusion. The writer *583agrees with the majority that the negative aid tax, if viewed as a local tax, is unconstitutional because it mandates a local tax that, while uniform within the taxing district, is not to be used for local public purposes of such local taxing district.
I am authorized to state that Mr. Chief Justice BRUCE F. Beilfuss joins in this concurring opinion.
See: Art. VIII, sec. 1, Wis. Const.
Quoting Outagamie County v. Zuehlke (1917), 165 Wis. 32, 35, 161 N.W. 6.