In re Appointment of Revisor

• Decision Date: 04 February 1910
• Citation: 124 N.W. 670,141 Wis. 592
• Parties: IN RE APPOINTMENT OF REVISOR.
• Court: Wisconsin Supreme Court

141 Wis. 592

124 N.W. 670

IN RE APPOINTMENT OF REVISOR.

Supreme Court of Wisconsin.

Feb. 4, 1910.

In the matter of the appointment of a revisor to superintend a revision of the statutes of Wisconsin pursuant to Laws 1909, c. 546. On the Justices of the Supreme Court and the Attorney General, as Trustees of the State Library, being called on to execute the law, the question was raised as to whether the law was constitutional in so far as it required such duty to be performed by the Justices and as to the validity of the legislation creating such board and imposing upon it various duties in regard to the State Library and the court reporting department. Such questions were taken up for consideration and decision had as nearly as could be, as if presented for decision in a judicial controversy inter partes, resulting in the approval of the legislation.

Siebecker, Kerwin, and Timlin, JJ., dissenting.

WINSLOW, C. J.

For about a third of a century the Justices of this court and the Attorney General have been performing certain supposed duties in connection with the management of the State Library at the direction of the Legislature. These duties have consisted among other things in appointing the Librarian and approving his bond, determining the character and number of books to be purchased within the limits of the annual appropriation, approving of the bills for such purchases, and prescribing rules and regulations for the use of the library.

Prior to 1876 the Governor, Secretary of State, and Superintendent of Public Instruction had charge of the library and were called Trustees of the State Library, but the power to purchase books and appoint the Librarian was in the Governor alone. Rev. St. 1858, c. 10, § 9, c. 26, §§ 1, 2. By chapter 116 of the Laws of 1876 the Justices of the Supreme Court and the Attorney General were made ex officio Trustees of the Library in place of the former officials, and by the Revised Statutes of 1878, § 368, they were given the power of appointment of the Librarian and the power to approve his bond. The reason for this change of control doubtless lay in the fact that the State Library was originally not entirely or even chiefly a law library, but consisted largely of scientific, historical, and purely literary works, but after the library of the State Historical Society had become firmly established it fully occupied the field of general literature, and the State Library became solely a law library. This change had taken place prior to 1876, and hence it doubtless seemed to the Legislature as eminently fitting that a library, which was almost entirely used in and about the preparation and decision of lawsuits, should be subject to the general supervision of the Justices of the Supreme Court and the highest law officer of the commonwealth. Whether this was the true reason for legislative action or not, the change was made, and during the time that has elapsed since that change, though there have been a number of the state's eminent lawyers upon the bench (and among them one who took a prominent part in framing the Constitution), no one of them has ever declined to perform these occasional duties of supervision, or deemed that there was any constitutional objection to the delegation of such duties to them. I speak from knowledge as to the last 18 years, and from reliable information as to the preceding 15 years.

In the year 1909, the Legislature, becoming convinced that a gradual revision of the statutes under a competent head, who should devote his entire time to the subject, was the true solution of the difficulties arising from the multiplication of laws, passed an act (chapter 546, Laws 1909) providing for the appointment of a “revisor of the statutes,” and prescribing his duties. Doubtless with the idea that this work would be of great assistance to the court and that the Justices of this court and the Attorney General would or should be exceptionally well informed as to the abilities of possible appointees, as well as to the nature of the work to be done, the Legislature provided that such officers should make the appointment, fix the appointee's salary (within a certain limit), have the power of removal, and approve the appointment of the revisor's assistants, as well as approve the printing of any compilation of statutes, index, or notes ordered by the Legislature. By chapter 547 of the laws of the same year, the same officials were authorized in their discretion to purchase the copyrights of the statutes of the state and annotations thereto, owned by private parties, at prices not exceeding the appropriation carried by the act. These acts did not become effective until late in June, 1908, after the members of the court had separated, and hence they did not come up for consideration until the fall. The question whether these last–named laws are constitutional has now been directly raised by Mr. Justice TIMLIN, and as a result the subject has been taken up and considered by the entire bench, and it has been deemed best, owing to the importance of the question, that an opinion should be written and filed expressing the views of those of the Justices who have deemed it their duty to act under at least one of the laws last mentioned. This opinion is the result of that determination. The question is to be approached, of course, with the principle in mind that all deference is due to an act of the Legislature; that it is to be sustained if possible by any reasonable construction of the Constitution or of the act itself; and that all mere doubts as to its constitutionality are to be solved in favor of the act.

That our Constitution, like the Constitutions of other American commonwealths, recognizes the division of general governmental powers into three distinct parts, viz., legislative, executive, and judicial, and commits each part to a co–ordinate department of the government, is fundamental and undeniable; that it has endeavored to provide effectively against the encroachment of one of these departments upon the proper field of either of the others is equally fundamental and undeniable. No time will be spent by me either in tracing the history or vindicating the wisdom of this scheme of government; others have written on these subjects more eloquently and convincingly than I could hope to write. Only the judicial power has been given to the courts of Wisconsin, and the Constitution further provides that Judges of the Supreme and Circuit Courts “shall hold no office of public trust except a ‘judicial office’ during their terms.” Section 10, art. 7, Const. Wis. Both of these courts are purely judicial courts. In re North Milwaukee, 93 Wis. 616, 67 N. W. 1033, 33 L. R. A. 638. Taking up first the public library law and the revisor law, the questions involved are: (1) Whether these acts attempt to invest the judges with executive or legislative power, and (2) whether, by acting under them, a judge is attempting to hold an office of public trust not judicial.

It is easy to give general definitions of the three great governmental powers: The legislative power is the power which makes the laws; the executive, the power which enforces them; and the judicial, the power which expounds and applies them. Would that it were as easy to apply these general definitions to a concrete case! It is familiar to all who have considered the subject at all that between these several powers, which seem so distinct in their general character, there are great border lands of power which may be said to approach nearer and nearer until they merge gradually into each other. In these border lands it is often difficult to tell where one power ends and the other begins. This was not so marked a condition in earlier and simpler conditions of society as it is to–day. With the development of the complex conditions of modern civilization there have come governmental necessities undreamed of by our fathers. Fifty years ago there was no necessity for that new and remarkable governmental agency known as the “Commission,” while now it fills a wonderful and increasingly important place in our governmental scheme. Though not named in the Constitutions, and not dreamed of by their makers, the commissions which regulate and control public utilities of the states and the nation are to–day wielding powers scarce second to the powers of either of the three original departments of the government. Though they are truly executive agencies and have neither legislative nor judicial powers, they are daily doing many things which vitally affect the life, liberty, and happiness of the people, and in doing these acts they are exercising powers trenching closely on the judicial and the legislative. In effect they decide real controversies like courts, and they daily coerce vast interests by regulations which 50 years ago would have been thought to be nothing short of legislation; yet in the exercise of these powers they have been almost universally sustained. This does not mean that the distinction between legislative, executive, and judicial functions has passed away, or that the constitutional division of powers is worn out, but simply that as a matter of fact it is impossible to say at any given place––here is a line where legislative power ends and judicial power begins––all on one side of this line is legislative and all on the other side is judicial, and no single power can be both. Each department has exclusive functions which no other department can perform, but this does not mean that there may not be functions common to all the departments. It is the exclusive function of the Legislature to make laws, and it is the exclusive function of the courts to expound the laws, but the power of neither department is exhausted by the performance of such exclusive function. There are many other governmental operations and duties not properly to be classified under either head, nor exclusively executive in their...