But it is our privilege to come to this tribunal, where the arbitrium popularis aurae is unknown, and which neither takes up nor lays down the scales of justice at its command. To this court, then,-this 'more than Amphyctionic council,'-we appeal. We rely upon the important doctrine here asserted at December Term, 1864, in Gelpcke v. The City of Dubuque. The court in that great case,-argued thoroughly, deliberately considered, solemnly adjudged,-says:
'The sound and true rule is, that if the contract when made was valid by the laws of the State as then expounded by all departments of the government, and administered in its courts of justice, its validity and obligation cannot be impaired by any subsequent action of the legislature, or decision of its courts altering the construction of the law. The same principle applies where there is a change of judicial decision as to the constitutional power of the legislature to enact the law. To this rule, thus enlarged, we adhere. It is the law of this court. To hold otherwise, would be as unjust as to hold that rights acquired under a statute must be lost by its repeal.'
Our case falls within this principle. The bonds were issued in 1853, were disposed of, and were circulating in the market with full approbation of the legislature; the people of the county; every department, including the judicial tribunals of the State, until the year 1859; and during all these years, in which the bonds were made and sold, they were valid and legal contracts, and would have been enforced by our State courts, upon the ground that the acts authorizing their issue were private and local laws and were in force from their passage without publication.
It is unimportant in view of the decision of this court in Gelpcke v. Dubuque, whether the late decisions of our State court give or do not give the sounder construction of our constitution. In subsequent contracts this court may regard them as giving that which is the sounder; but the action of the State, in its legislative, administrative, and judicial departments, during the period of the making and negotiating of these bonds, must furnish the rule to be applied in all suits founded upon them, whether, in the opinion of this court, that action was right or wrong. It was the law of the comtract and cannot be changed without destroying the obligation of what, when made, was valid and binding.
3. Assuming, as we do, that the court must take the view which we present on these two points, we are not solicitous as to the answer which it may give on the last certified. If any answer is given, it must follow the answer to the others.
Mr. Ryan, contra: Mr. Carpenter refers to the distinction which has passed into technical law between general laws and particular or special laws. But the act of 1852, directing a classification, does not use the terms 'general law,' but uses another expression, 'acts of a general nature,' which it distinguishes from 'private and local acts.' This shows that it was not the intention of the legislature to classify its statutes by their legal character, but according to the public interest in having access to them. The first class is to contain all 'acts of a general nature,' but not all 'general acts.' The second class is to contain all general acts which are local, all charters which are public, and all private acts. It is inconceivable how a municipality, with a changing population, amounting from hundreds of political units to hundreds of thousands, and capable of including, and almost inevitably including, property of strangers affected by all legislation having relation to it, could be bound by a private act. If the act before the court can be dealt with as a private act, it is not seen on what distinguishing principle, absurd as the proposition is, all municipal law might not be found in private statutes.
The counsel would seem to rely on the classification made by the secretary of state and the attorney-general, which two officers regarded the act as one of a private nature, and classified it accordingly. But the question whether a statute is public or private, is judicial. No question of interpretation is more purely so. The constitution of Wisconsin, in common with most of our American constitutions, exhausts the judicial power; and it is not competent for the legislature to vest it in persons or officers, other than such as the constitution prescribes. Here, the duty of classification is given to ministerial officers. And their action is not only not binding, but is of no weight in the courts. It is for the judicial department to declare their acts right or wrong; not for them to impose judicial construction upon the courts.