Goodland v. Zimmerman

• Citation: 243 Wis. 459,10 N.W.2d 180
• Parties: GOODLAND, Acting Governor, v. ZIMMERMAN, Secretary of State.
• Decision Date: 16 June 1943
• Court: Wisconsin Supreme Court

243 Wis. 459

10 N.W.2d 180

GOODLAND, Acting Governor,

v.ZIMMERMAN, Secretary of State.

Supreme Court of Wisconsin.

June 16, 1943.

Appeal from an order of the Circuit Court for Dane County; Alvin C. Reis, Circuit Judge.

Reversed in part, affirmed in part.

This action was begun on the 12th day of May, 1943, by Walter S. Goodland as Acting Governor of the State of Wisconsin, as a duly licensed attorney at law, elector and as a taxpayer of the State of Wisconsin, plaintiff, against Fred R. Zimmerman, Secretary of State of the State of Wisconsin, defendant. The plaintiff sought to enjoin the defendant as Secretary of State from publishing an act of the legislature authenticated as such by the signature of Conrad Shearer, President Pro Tempore of the Senate, and Vernon W. Thomson, Speaker of the Assembly, and certified as such by Lawrence O. Larsen, Chief Clerk of the Senate, the house in which the bill originated. Accompanying the bill as transmitted to the defendant was its legislative history in both houses of the legislature. Accompanying the complaint and served with it was an order of the circuit court as follows:

“It Is Ordered: That Fred R. Zimmerman, Secretary of State for the State of Wisconsin, be and is hereby enjoined and restrained from publishing a purported act of the Legislature of the State of Wisconsin, upon Bill 56 S, and from continuing the publication thereof if said publication has been commenced, pending the trial of this suit or until the further order of this Court.”

On May 24, 1943, upon defendant's answer and on affidavits and “on all papers, records and proceedings heretofore had or served herein”, the circuit court ordered the plaintiff to show cause before Branch Number 1, on the 28th day of May, 1946, at nine o'clock in the forenoon, why summary judgment dismissing the complaint on its merits should not be entered. The motion came on for hearing in due course and on June 1, 1943, the court denied the motion for summary judgment; also denied the plaintiff's motion for summary judgment granting a permanent injunction, which the plaintiff had made and filed in the meantime. The defendant appealed from that part of the order made and entered denying the defendant's motion for summary judgment. Upon motion of the defendant an order to show cause was entered in this Court on June 1, 1943, requiring the plaintiff to show cause why the action should not be placed upon the January, 1943, calendar and advanced for hearing at such time as the Court may order. On the 3rd day of June, 1943, the plaintiff served notice of a motion for review under the provisions of section 274.11 from that part of the order which denied plaintiff's motion for summary judgment. Upon the hearing of the order to show cause the case was advanced for hearing and set down for argument at ten o'clock on the 10th day of June, 1943, upon the following question:

“The Secretary of State being required by sec. 14.29(10) to publish the laws as provided by sec. 35.64, may a court of equity enjoin him from publishing a law authenticated as provided by Joint Rule 10, Joint Rules of the Senate and Assembly, and duly transmitted to him by the Chief Clerk of the Senate, the house in which the bill originated?”

Such facts as are necessary to an understanding of the decision will be stated in the opinion.

John E. Martin, Atty. Gen., and James Ward Rector, Deputy Atty. Gen., for appellant.

Holmes & Shuttleworth, of Madison, and Daniel H. Grady, of Portage, for respondent.

ROSENBERRY, Chief Justice.

The act in question created sec. 256.31 of the statutes to read:

“256.31 State Bar of Wisconsin. (1) There shall be an association to be known as the ‘State Bar of Wisconsin’ composed of persons licensed to practice law in this state, and membership in such association shall be a condition precedent to the right to practice law in Wisconsin.

“(2) The supreme court by appropriate orders shall provide for the organization and government of the association and shall define the rights, obligations and conditions of membership therein, to the end that such association shall promote the public interest by maintaining high standards of conduct in the legal profession and by aiding in the efficient administration of justice.”

The bill was passed by the Senate on February 19, and on the same day was messaged to the Assembly where it was concurred in on the 24th day of March, 1943, upon which day it was returned to the Senate. It was enrolled on March 31, 1943, and subsequently delivered to the Acting Governor. On April 20, 1943, the Acting Governor returned the act to the Senate vetoed, stating his reasons therefor and on the same day the Senate passed it over the Acting Governor's veto, and it was then messaged to the Assembly where it was concurred in notwithstanding objections of the Acting Governor (Yeas 51, Nays 25, Paired 16), on the 5th day of May, 1943, and transmitted duly authenticated, accompanied by a history of the bill in the legislature, to the defendant, Secretary of State.

It is necessary in entering upon the consideration of the question for decision to have before us the constitutional and statutory provisions concerning the passage of a bill over the Governor's veto and the duty of the Secretary of State to publish a law.

Article V, § 10 of the constitution provides: “Every bill which shall have passed the legislature shall, before it becomes a law, be presented to the governor; if he approve, he shall sign it, but if not, he shall return it, with his objections, to that house in which it shall have originated, who shall enter the objections at large upon the journal and proceed to reconsider it. * * * If, after such reconsideration, two-thirds of the members present shall agree to pass the bill * * * it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and if approved by two-thirds of the members present it shall become a law. But in all such cases the votes of both houses shall be determined by yeas and nays, and the names of the members voting for or against the bill * * * shall be entered on the journal of each house respectively.”

Article VII, § 21 provides: “The legislature shall provide by law for the speedy publication of all statute laws, and of such judicial decisions, made within the state, as may be deemed expedient. And no general law shall be in force until published.”

Section 14.29(10), Stats., provides: “Secretary of state, duties. The secretary of state shall: * * *

“(10) Publish proposed constitutional amendments and laws. To publish the laws as provided by section 35.64 * * *.”

Section 35.64 provides: “Publication of all laws. Every law shall be published in the official state paper immediately after its passage and approval, in type not smaller than six point; and until so published shall not take effect”.

The statutory duty of the secretary of state is plain but the plaintiff in his amended complaint alleges that the law should not be published by the secretary of state for the following reasons: (1st) That the bill was not constitutionally enacted because not passed over the Governor's veto in the Assembly by a vote of two-thirds of all members present; (2d) That sixteen members were paired and were not counted in determining whether two-thirds of the members present voted; (3d) That the bill is invalid because it unconstitutionally delegates power vested in the legislature to the Supreme Court.

It is clear from the provisions of the constitution already referred to that the legislative process is not complete unless and until an enactment has been published as required by the constitution and by statute. Until it is so published it has no effect whatever as a law. It is generally so considered. Witte, Wisconsin Blue Book, 1937, pp. 129, 131, where it is said: “In Wisconsin, a bill is not law when approved by the Governor or passed over his veto. It becomes a law only after it has been published in the official state paper.” See State ex rel. Martin v. Zimmerman, 1939, 233 Wis. 16, 288 N.W. 454.

We are here dealing with a bill which has not yet become a law. There is no such thing known to the law as an unconstitutional bill. A court cannot deal with the question of constitutionality until a law has been duly enacted and some person has been deprived of his constitutional rights by its operation. In a proper case a court may declare whether the legislature has exceeded its constitutional powers in the enactment of the law complained of. It is a rule of universal application that no one but a person injured can question the constitutionality of a law. Appeal of Van Dyke, 1935, 217 Wis. 528, 259 N.W. 700, 98 A.L.R. 1332;Boyd v. State, 1935, 217 Wis. 149, 258 N.W. 330. For these reasons the question of constitutionality sought to be raised by the pleadings is not presented in this case.

To answer the question set down for argument, it is necessary for us briefly to consider some of the fundamental principles of our constitutional government. It must always be remembered that one of the fundamental principles of the American constitutional system is that governmental powers are divided among the three departments of government, the legislative, the executive and judicial, and that each of these departments is separate and independent from the others except as otherwise provided by the constitution. The application of these principles operates in a general way to confine legislative powers to the legislature, executive powers to the executive department and those which are judicial in character to the judiciary. Some of the earlier constitutions, notably those of Massachusetts and Virginia, contained a provision to the effect that each department should exercise the powers granted to it and no other. While our constitution creates three separate, co-ordinate departments, it does not contain an express prohibition against one...