ment in advance for such withdrawal pretty clearly indicates that the members who remained after such withdrawal or death would continue to be a firm for the conduct of such business. True, there is no express stipulation for admitting new members,

but each subscriber was therein made responsible for moneys thereafter borrowed. Thus it is held, in a case in Massachusetts, cited by counsel for the defendants, that: "If by the articles of a trading association it is apparent that it was designed to consist of many members, who might from time to time cease to be interested in the concern by voluntary withdrawal or death, and that the same business should be continued by those who should remain, and by such as would be added to their number under the terms of the articles, the death of one of them does not relieve others from liability to contribute for debts subsequently contracted without their consent or knowledge." Tyrrell v. Washburn, 6 Allen, 467, 476. In that case it was said by the court that: "Under these circumstances, it must be considered that each member agreed to be and remain a partner in the association, notwithstanding changes in others of its members, until such time as he himself should die, or withdraw therefrom by some positive act of his own." So it has been held, in a recent case in Tennessee, that: "Members of a partnership cannot claim that a dissolution of the firm resulted from changes in the membership, where they acquiesced in such changes." Carter v. McClure, 98 Tenn. 109, 38 S. W. 585, 36 L. R. A. 282, 60 Am. St. Rep. 842. So it has been held in Vermont, in a case cited by the same counsel, that: "Evidence of the custom of doing business in a union store association, whose constitution and all rights and duties under it stand wholly upon agreement and consent, and not at all upon law or acts of incorporation, is admissible to show consent to or acquiescence in a practical and actual modification or change of their by-laws." Henry v. Jackson, 37 Vt. 431. We perceive no good reason why such of the answering defendants as were, in fact, members of the copartnership at the time the money was borrowed and the note given, may not be held liable, as such partners, to the plaintiff. There may be other questions suggested by counsel, but it is believed that what has been said will be a sufficient guide for a new trial.

The judgment of the circuit court is reversed, and the cause is remanded for a new trial.

nocent purchasers of unpaid county orders issued under Laws 1895, p. 338, с. 203, providing for the treatment of habitual drunkards in private institutions at the expense of the counties in which they reside, and purchased before the same was declared invalid, as involving the imposition of a tax on a county for private purposes, is unconstitutional, as involving the imposition of a tax for private purposes.

2. An appropriation of money by the Legislature, in order not to infringe Const. art. 8. § 1, which provides that "the rule of taxation shall be uniform," must not only be for a public purpose, but must subserve the common interest of the people of the state.

3. Const. art. 8, § 5, in declaring that the Legislature shall provide for an annual tax sufficient to defray the estimated "expenses of the state for each year," is intended to limit the annual tax to an amount sufficient to defray such expenses.

4. Laws 1901, p. 695, с. 468, cannot be upheld as making an appropriation for the payment of claims founded in equity and justice or in gratitude or charity; the appropriation being essentially an appropriation from the general fund of the state to pay claims growing out of a private transaction.

Winslow and Dodge, JJ., dissenting.

Application for a mandamus by the state, on the relation of Jacob Garrett, against William H. Froehlich, Secretary of State, to compel defendant, as Secretary of State, to draw his warrant on the State Treasurer for the payment of relator's claim. On motion to quash the writ. Motion granted.

October 22, 1902, the relator filed in this court a petition for an alternative writ of mandamus to compel the defendant, as Secretary of State, to draw a warrant on the State Treasurer, payable to him, for $498.36, in the manner provided by chapter 468, p. 695, Laws 1901, or show cause to the contrary.

The petition alleges, in effect, that the relator was a resident and citizen of Eau Claire; that after the enactment of chapter 203, p. 338, Laws 1895, providing for the Keeley treatment and cure of inebriates, and during 1895, 1896, and 1897, one Dr. Montgomery established and maintained the Eau Claire Institute for such treatment of inebriates; that eight persons therein named were treated by such institute upon certified orders of county judges at the expense of the respective counties sending them, as prescribed in that act; that the aggregate amount of the expense of such treatment of said eight persons was $815; that between September 10, 1895, and February 2, 1897, the relator sold and delivered to Dr. Montgomery merchandise and supplies to the amount of $815, and received in payment therefor an assignment from Dr. Montgomery of said orders for the commitment and treatment of such inebriates to the amount of $815, which orders are still owned by the relator, as an innocent purchaser thereof. and that they are wholly unpaid; that after the relator so purchased such orders and held the same, this court, on February 2, 1897, decided that chapter 203, p. 338, Laws 1895, was unconstitutional and void (WisconCounty, 95 Wis. 153, 70 N. W. 68, 36 L. R. A. 55, 60 Am. St. Rep. 105); that chapter 468, p. 695, Laws 1901, was enacted to reimburse, at least in part, the relator and other holders of similar orders for money so paid out and expended by them; that within 60 days after the publication of that act the relator filed with the Secretary of State, State Treasurer, and Attorney General, as the auditing committee provided for therein, the said county orders so purchased by him, with full proof that he was such innocent purchaser, and the same were audited by such committee at $815; that several other persons holding similar orders so filed the same and made similar proof before the committee, and the same were audited by such committee; that all orders so filed with the committee and audited amounted in the aggregate to $49,658.44, which orders or claims should be paid pro rata out of the $30,000 appropriated by chapter 468, p. 695, Laws 1901, and that the relator's proportionate share thereof is $492.36; that the State Treasurer has in his hands the $30,000 so appropriated, and the same has not been appropriated for any other purpose; that it is the duty of the Secretary of State to draw his warrant on the State Treasurer payable to the relator for his proportionate share of such appropriation, to wit, $492.36, and the duty of the State Treasurer to pay the same, but that the Secretary of State has refused and still does refuse to draw such warrant, and the State Treasurer still refuses to pay to the relator the amount stated, and that such refusals are upon the sole ground that chapter 468, p. 695, Laws 1901, is unconstitutional and void.

On such petition an alternative writ of mandamus was issued by this court as prayed October 22, 1902, and on November 11, 1902, the Secretary of State, by E. R. Hicks, Attorney General, appeared, and by way of return to the alternative writ of mandamus moved the court to quash the writ, for the reason that the facts stated were not sufficient to constitute a cause of action.

Wickham & Farr and Ryan, Merton & Newbury, for relator. E. R. Hicks, Atty. Gen., for defendant.

does not go upon the theory that the victim of such addiction is helpless and destitute, and hence the subject of public charity. It does treat such addiction as a 'disease,' but it does not treat it as a contagious or infectious disease, and there is no allegation or claim that it is a contagious or infectious disease. The question recurs whether any county may be compelled to pay any private party for treatment, medicines, and board of any resident therein having a disease not contagious or infectious, merely because such diseased person 'has not the means to pay for said treatment.' If a county may be compelled to make such payment for such treatment, medicines, and board of a person having such a disease, then it logically follows that every county may be compelled to pay private parties for treatment, medicines, and board of any person having any disease, though not contagious nor infectious, provided the victim has not the present means of making such payment himself. We are clearly of the opinion that no such power exists." The following cases are there cited, in which this court had previously held that the Legislature had no power to compel or authorize a municipality to raise money by taxation for a purely private purpose: Curtis' Adm'r v. Whipple, 24 Wis. 350, 1 Am. Rep. 187; Whiting v. S. & F. Du L. R. Co., 25 Wis. 181, 3 Am. Rep. 30; State ex rel. McCurdy v. Tappan, 29 Wis. 664, 684, 9 Am. Rep. 622; Attorney General v. Eau Claire, 37 Wis. 436. From this last case this quotation was made in the Keeley Case from the opinion of the court by Chief Justice Ryan: "Taxation is the absolute conversion of private property to public use. And its validity rests on the In legislative grants of the power to municipal corporations, the public use must appear. The Legislature can delegate the power to tax to municipal corporations for public purposes only; and the validity of the delegation rests on the public purpose. Were this otherwise, as was said at the bar, municipal taxation might well become municipal plunder." Thus, it appears that chapter 203 was declared to be unconstitutional upon the express ground that it compelled any county to pay out of the public moneys of the county, to a private party for a purely private purpose, a sum not

use.

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therein and treated upon the order and certificate of the county judge thereof, as prescribed in the act. The case was distinguished in the later case of Wisconsin Industrial School for Girls v. Clark County, 103 Wis. 651, 666, 667, 79 N. W. 422, 427, but it was there said by my Brother Marshall that: "No 'public purpose,' within any reasonable scope of the term, was discovered in the Keeley law. That was why it met the fate of legislation going beyond the boundaries of constitutional limitations. True, stress was put on the feature that the services

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of caring for the committed persons were performed by private agencies for private gain. But it was not decided that such feature alone was fatal to the law. The combination of it with the purely private service rendered showed that the entire scheme was private. Stress was laid on the fact that, in order to enable a person to enjoy the benefits of the act, it was not requisite that he should be without means of paying therefor. Destitution as to present meansmoney in hand, as it were, to make such payment-was all that was required. It was thus demonstrated that there was an absolute absence of any public purpose whatever covered by the law." In a still later case it was held by this court that: "Neither the county board nor any county officer has any authority, under our statutes, to incur any liability for medical treatment of a pauper to cure him of inebriety as a disease. A county cannot ratify the unauthorized acts of its agents which are beyond the scope of its corporate powers." Putney Brothers Co. v. Milwaukee County, 108 Wis. 554, 556, 557, 84 N. W. 822, 823. In that case the inebriate was committed under chapter 203, p. 338, Laws 1895, and, following Wisconsin Keeley Inst. Co. v. Milwaukee Co., 95 Wis. 153, 70 N. W. 68, 36 L. R. A. 55, 60 Am. St. Rep. 105, it was held "that no liability arose by reason of the commitment"; but it was there contended "that it was the duty of the county to relieve and care for" the victim, "under section 1517, Rev. St. 1898, and that, when this task had been performed by a private person, the county" should be held "liable if its officers knew of the facts and made no objection, and the pauper had been restored to health." In the opinion of the court by my Brother Winslow it is said that: "The doctrine here invoked is that of ratification or estoppel. The claim here is not for ordinary relief or care, but for the medical treatment of a pauper for what is termed 'inebriety,' his board being simply a minor incident of the treatment. Neither the county board nor any county officer has authority under any specific statute to contract with a private person or corporation for such treatment, and entail a liability therefor upon the county. Inebriates may, indeed, be received into county asylums under certain restrictions, and may be committed to a county poorhouse, and the county become liable for their care in whole or in part, but the statutes seem to go no further." Then, after stating that the Legislature had "provided certain methods whereby inebriates and habitual drunkards" might be dealt with, and thereby excluded other methods, it was further said: "There was, therefore, no authority resting in any officer or public body to incur the liability here claimed in the first instance. Such being the case, there can be no ratification by the county. A county cannot ratify the unauthorized acts of its agents which are be

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yond the scope of its corporate powers." See, also, Juneau Co. v. Wood County, 109 Wis. 330, 333, 334, 85 N. W. 387.

Having thus held that chapter 203, p. 338, Laws 1895, was unconstitutional and void on the ground that the Legislature had no power to compel a county to give away its public funds to private parties for purely private purposes, the question recurs whether the Legislature has power to give away the public funds of the state to private parties for the same private purpose by the enactment of chapter 468, p. 695, Laws 1901.

The act, in terms, appropriates $30,000 "for the purpose of paying all innocent purchasers of county orders issued under an invalid law known as chapter 203 of the Laws of 1895 by different county judges of the state of Wisconsin which are yet unpaid and which were purchased prior to the date of the decision of the Supreme Court of the state of Wisconsin holding said act [chapter 203, p. 338, of the Laws of 1895] unconstitutional." It appears from the relation that claims which arose under the act, and prior to the decision mentioned-a period of 211⁄2 months -had been filed, proved, and audited to the amount of $49,658.44. The facts stated sufficiently suggest the importance of that decision without any speculation as to what would have been the effect upon the taxpayers of the several counties in the state, had the court held chapter 203, p. 338, Laws 1895, to be valid instead of being unconstitutional and void. The gravity of the case at bar would seem to be of far greater importance, because more far-reaching in its application. Counsel for the relator contend that "there is nothing in the Constitution providing that the Legislature may make appropriations only for public purposes." And then, after admitting "that there are several specific limitations on the power of the Legislature to appropriate money," counsel assert that there is "no general limitation confining appropriations either to public purposes or legal obligations of the state." Counsel seemingly realize that it is essential to maintain these propositions in order to maintain this action. If these propositions are sound, then Chief Justice Ryan was in grave error when he made the statement above quoted, from his opinion in the Eau Claire Case, cited. If such propositions are sound, then Chief Justice Dixon was wrong in declaring, as he did, that: "The Legislature cannot create a public debt, or levy a tax, or authorize a municipal corporation to do so, in order to raise funds for a mere private purpose. It cannot, in the form of a tax, take the money of the citizens and give it to an individual, the public interest or welfare being in no way connected with the transaction. The objects for which money is raised by taxation must be public, and such as subserve the common interest and well-being of the community required to contribute." Brodhead v. Milwaukee, 19 Wis. 652, 88 Am. Dec. 711. See, also, object of the appropriation in question was purely local to the city of New Richmond, then the rule of uniformity would require the tax to supply the same to be limited to that municipality. If, however, the contribution was to subserve the common interest and well-being of the people of the state, then the appropriation was legitimate." State ex rel. New Richmond v. Davidson, 114 Wis. 578, 90 N. W. 1067, citing State ex rel. McCurdy v. Tappan, 29 Wis. 664, 9 Am. Rep. 622, and Lund v. Chippewa Co., 93 Wis. 647, 67 N. W. 927, 34 L. R. A. 131. In this last case it was said that: "This provision manifestly requires such uniformity, in case of a

the proposition in other words, for any but

Ed.) $ 508. And again: "We may readily conceive of acts of the Legislature demanding sacrifices which could not be sustained as

legitimate exercises of the taxing power, al

tend throughout the city; and, in case of a town tax, to extend throughout the town. In other words, the rule of uniformity is not broken merely because a town or city or

tion should be infringed." 2 Dillon, Mun. Corp. (4th Ed.) § 737. And again: "There can be no legitimate taxation to raise money

poses." To come within the rule of uniformity, as thus defined, it is necessary, not only that the object of the appropriation in ques

subserve the common interest and well-being of the people of the state.

of the government, or some of its municipalities or divisions invested with the power of auxiliary or local administration. A public use or purpose is of the essence of a tax." Id. § 736. In State ex rel. New Richmond v. Davidson, 114 Wis. 574, 90 N. W. 1067, numerous cases are cited from this and other courts, to the effect "that the taxing power of the state can only be exercised for some object of public or common interest." It is there said that: "These adjudications, and many others which might be cited, seem to be based upon the broad ground that from the very nature of our state government there is running through our Constitution an implied prohibition against forcing our citizens, by way of taxation, to contribute to any mere private purpose or enterprise, and that the determination of the Legislature upon the subject is not absolutely conclusive upon the courts." If the contention of counsel referred to is correct, then the decision of this court in that case is all wrong, and ought to be overruled. If the decision is right, then the contention of counsel, in the particular mentioned, is without foundation. The appropriation for the relief from the terrible calamity caused by the cyclone which struck New Richmond June 12, 1899, was sustained only on the ground that the object of the appropriation was public, and such as to subserve the common interest and well-being of the people of the state at large. In that case it was virtually conceded that the object of the appropriation was public. In considering whether the appropriation was repugnant to that clause of the Constitution which declares that "the rule of taxation shall be uniform, and taxes shall be levied upon such property as the Legislature shall prescribe" (section

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There is another clause of the Constitution, which declares that: "The Legislature shall provide for an annual tax sufficient to defray the estimated expenses of the state for each year; and whenever the expenses of any year shall exceed the income, the Legislature shall provide for levying a tax for the ensuing year, sufficient, with other sources of income, to pay the deficiency as well as the estimated expenses of such ensuing year." Section 5, art. 8, Const. Special stress was placed upon that provision in the New Richmond Case, 114 Wis. 578, 90 N. W. 1067. It was there said that: "To that language must be applied the well-known maxim, 'expressio unius est exclusio alterius.' That construction limits such annual tax to an amount sufficient to defray such estimated expenses. State taxes are thus only authorized to pay state expenses, or such expenditures as are authorized by the Constitution." The only reference to that provision of the Constitution in the brief of counsel is in stating that that and other sections therein referred to "place limits on the power of the Legislature to contract debts"; and from that we are asked to infer that the Legislature is at liberty to give away the public moneys for objects concerning which it has no power to contract debts. While the provision quoted, like most of the provisions of the Constitution, is affirmative in form, yet the manifest purpose is to limit the annual tax to an amount "sufficient to defray the estimated expenses of the state for each year." As held in the New Richmond Case, in order for an appropriation to be valid, it must be for a public purpose, and such as subserves the

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common interest and well-being of the people of the state. The act in question does neither. It was solemnly adjudged that chapter 203, p. 338, Laws 1895, was for the sole benefit of private parties and for private purposes. Counsel invoke the rule stated by Chief Justice Dixon, and quoted approvingly in the New Richmond Case, wherein it is said that: "Claims founded in equity and justice, in the largest sense of those terms, or in gratitude or charity, will support a tax." Brodhead v. Milwaukee, 19 Wis. 624, 88 Am. Dec. 711; Cooley on Taxation, 127, 128; State ex rel. New Richmond v. Davidson, 114 Wis. 579, 90 N. W. 1067. That language was used with reference to the validity of an act of the Legislature empowering the qualified electors of each town, city, or incorporated village to raise, by tax, money to pay bounties to volunteers who might enlist therefrom. The moral obligation of such municipality to pay such bounties to such volunteers was strong, and rested upon the parties required to pay, and was for an object confessedly public; and yet in that case it was expressly held that: "The Legislature cannot create a public debt, or levy a tax, or authorize a municipal corporation to do so, in order to raise funds for a mere private purpose. The objects for which money is raised by taxation must be public, and such as subserve the common interest and wellbeing of the community required to contribute." There was no intention, in the language quoted, to justify a tax for every claim which one private party may have against another private party, though "founded in equity and justice or in gratitude or charity." Here, numerous private persons were treated, under chapter 203, p. 338, Laws 1895, for a disease, by certain private individuals or corporations, under the supposition that the respective counties where the inebriates lived would pay for such treatment an amount not exceeding $130 each. The court held the act to be void, and the county under no obligation to pay such private party for such private purpose. The only change in the situation is that such void claims have been transferred by such private parties to "innocent purchasers." Wherein they are any more innocent than the persons or corporations furnishing the treatment it is difficult to perceive. Certainly, such transfer did not change the private purpose into a public purpose-much less did it make the claim which one private party had against another private party a claim founded in equity and justice, or in gratitude or charity, against the whole state. By chapter 203 the Legislature only attempted to create claims against the counties. Notwithstanding the transfer, the claim still remains a private claim, founded upon a private transaction. The appropriation is less than the amount of the aggregate claims; but by its terms each claimant is to have a pro rata share. It is essentially an appropriation from the general fund to pay

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numerous private claims growing out of private transactions. All taxpayers of the state are interested in preserving the funds of the state from illegal diversion or spoliation. State ex rel. Raymer v. Cunningham, 82 Wis. 39, 51 N. W. 1133.

It

If the decisions of this court are to be followed, and have the significance above ascribed to them, then there would seem to be no escape from a condemnation of the enactment in question. Counsel for the relator seem to rely with great confidence upon the decision in the United States v. Realty Co., 163 U. S. 427, 16 Sup. Ct. 1120, 41 L. Ed. 215, where a claim was made for sugar bounty, under an act of March 2, 1895, 28 Stat. 933, appropriating money to certain persons who had incurred expense in the production of sugar on the faith and credit of certain acts of Congress passed five years before, the constitutionality of which had been questioned and the acts afterwards repealed. The court held that: "It is within the constitutional power of Congress to determine whether claims upon the public treasury are founded upon moral and honorable obligations, and upon principles of right and justice; and having decided such questions in the affirmative, and having appropriated public money for the payment of such claims, its decision can rarely, if ever, be the subject of review by the judicial branch of the government." will be observed that the court had expressly declined to determine whether such prior acts of Congress were valid or not; and that question never was determined. 163 U. S. 433, 16 Sup. Ct. 1120, 41 L. Ed. 215, citing Field v. Clark, 143 U. S. 649, 12 Sup. Ct. 495, 36 L. Ed. 294. If they were unconstitutional, it was simply because Congress had exceeded its powers upon a subject rightfully delegated to it. The opinion of the court in that case refers to no state adjudication, except Town of Guilford v. Chenango County, 13 N. Y. 143, 146, 149; 163 U. S. 443, 16 Sup. Ct. 1120, 41 L. Ed. 215. That case involved the validity of an act of the Legislature requiring the town to reimburse its officers for moneys expended by them in fruitless litigation. The court decided that the Constitution contained no clause prohibiting such an enactment. On the contrary, both opinions refer to the provisions of the Constitution, then in force, regulating the method of passing such enactments, and, among others, one which declared that: "The assent of twothirds of the members elected to each branch of the Legislature shall be requisite to every bill appropriating the public moneys or property for local or private purposes." Section 9, art. 1, Const. N. Y. 1846. And one of the opinions states that such provisions were "not limitations of the absolute power of the Legislature over the public moneys, or of the like power in the imposition of taxes, but rules prescribing the manner of its exercise." And Judge Denio said: "There is no question but that this law received the requisite vote."