In re Constitutionality of Section 251.18, Wis. Statutes

• Decision Date: 12 May 1931
• Citation: 204 Wis. 501,236 N.W. 717
• Parties: IN RE CONSTITUTIONALITY OF SECTION 251.18, WISCONSIN STATUTES.
• Court: Wisconsin Supreme Court

204 Wis. 501

236 N.W. 717

IN RE CONSTITUTIONALITY OF SECTION 251.18, WISCONSIN STATUTES.

Supreme Court of Wisconsin.

May 12, 1931.

Original proceeding in this court to test the constitutionality of section 251.18, as amended by chapter 404, Laws of 1929.Frank T. Boesel, of Milwaukee, and Wm. E. Fisher, of Stevens Point, for the Advisory Committee.

Francis E. McGovern, of Milwaukee, opposed.

F. M. Wylie, of Madison, as amicus curiæ.

WICKHEM, J.

The sole question under examination here is the constitutionality of section 251.18, Stats. This section provides that “the supreme court of the state of Wisconsin shall, by rules promulgated by it from time to time, regulate pleading, practice and procedure in judicial proceedings in all courts of Wisconsin, for the purpose of simplifying the same and of promoting the speedy determination of litigation upon its merits.” The section provides that “such rules shall not abridge, enlarge or modify the substantive rights of any litigant. Such rules shall not become effective until sixty days after their adoption by said court.” The section further provides that “all statutes relating to pleading, practice and procedure shall have force and effect only as rules of court and shall remain in effect unless and until modified or suspended by rules promulgated pursuant hereto.” The section also provides that “no rule modifying or suspending such statutory rules shall be adopted until the court has held a public hearing” with proper notice. It is further provided that “nothing in this section shall abridge the right of the legislature to enact, modify or repeal statutes or rules relating to pleading, practice or procedure.” The section then proceeds to create an advisory committee, whose duty it shall be to observe and to study the administration of justice, and to advise the Supreme Court of any changes that will simplify procedure and promote the speedy determination of litigation upon its merits.

[1] The principal attack upon the validity of the section is that it constitutes a delegation by the Legislature of its legislative power. It is, of course, elementary that we are committed by Constitution to the doctrine of separation of powers. It is also fundamental and undeniable that no one of the three branches of government can effectively delegate any of the powers which peculiarly and intrinsically belong to that branch. In State ex rel. Mueller v. Thompson, 149 Wis. 488, 491, 137 N. W. 20, 22, 43 L. R. A. (N. S.) 339, Ann. Cas. 1913C, 774, it was held that “power to make law--to exercise the function contemplated by that part of the Constitution under consideration--was reserved exclusively to the Legislature, and any attempt to abdicate it in any particular field, though valid in form, must, necessarily, be held void.” If it were possible to make a sharp division between the executive, legislative, and judicial powers, and if it were true that every power must inevitably fall into one of these three categories, the problem presented by this and like cases would be quite simple. But, as stated by Chief Justice Winslow, in Re Appointment of Revisor, 141 Wis. 592, 597, 124 N. W. 670, 671, 18 Ann. Cas. 1176: “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 borderlands of power which may be said to approach nearer and nearer until they merge gradually into each other.”

It is not only a matter of some difficulty to set precisely the border lines of legislative, executive, and judicial powers, but it also seems quite clear that, either by custom or constitutional mandate, or the inherent necessities of the situation, the three branches of government have heretofore exercised other powers than those which, under the doctrine of separation of powers, belong peculiarly and exclusively to them. In State ex rel. Wis. Inspection Bureau v. Whitman, 196 Wis. 472, 496, 220 N. W. 929, 938, the court said: “What it seems to us is demonstrated by the discussion in the Hampton Case [276 U. S. 394, 48 S. Ct. 348, 72 L. Ed. 624], * * * is that there never was and never can be such a thing in the practical administration of the law as a complete, absolute, scientific separation of the so-called co-ordinate governmental powers. As a matter of fact, they are and always have been overlapping. Courts make rules of procedure which in many instances at least might be prescribed by the Legislature. When courts through a receiver reach out and administer a great railway system extending from one ocean to the other, they are not exercising a strictly judicial power; they are exercising an administrative or executive power, which historically has found its way into the judicial department. The Constitution reserves to the Legislature the power to act as a court in certain cases. When it acts as such, it exercises a judicial power. Every executive officer in the execution of the law must of necessity interpret it in order to find out what it is he is required to do. While his interpretation is not final, yet in the vast majority of cases it is the only interpretation placed upon it, and, as long as it is acquiesced in, it becomes the official interpretation which the courts heed and in which they oftentimes acquiesce as a practical construction.”

[2][3][4] The fact that the Legislature has acquired a power, whether by express constitutional provision or otherwise, does not inevitably characterize the power as purely legislative. The power may be essentially a judicial power, and, if it is such a power, it may be delegated to the courts. The question as to what powers are essentially judicial and what legislative is to be solved by ascertaining the definition and scope of such powers at the time the Constitution was adopted. “What constitutes judicial power, within the meaning of the constitution, is to be determined in the light of the common law and of the history of our institutions as they existed anterior to and at the time of the adoption of the constitution.” State v. Harmon, 31 Ohio St. 250.

The authorities clearly establish that the power to regulate procedure was at that time considered a judicial power, or at least that it never was considered to be a purely or distinctively legislative power. In 1792, the following significant incident took place in the newly constituted Supreme Court of the United States: “The Attorney General having moved for information, relative to the system of practice by which the Attornies and Counsellors of this court shall regulate themselves, and of the place in which rules in causes here depending shall be obtained, the Chief Justice, at a subsequent day, stated, that the Court considers the practice of the courts of King's Bench and Chancery in England, as affording outlines for the practice of this court; and that they will, from time to time, make such alterations therein, as circumstances may render necessary.” Roscoe Pound, Regulation of Judicial Procedure, 10 Illinois Law Review, p. 171.

In Wayman v. Southard, 10 Wheat. 1, 43, 6 L. Ed. 253, the court, speaking through Chief Justice Marshall, said: “The courts, for example, may make rules, directing the returning of writs and processes, the filing of declarations and other pleadings, and other things of the same description. It will not be contended that these things might not be done by the legislature, without the intervention of the courts; yet it is not alleged that the power may not be conferred on the judicial department.”

In Bank of U. S. v. Halstead, 10 Wheat. 51, 61, 6 L. Ed. 264, the court, speaking through Mr. Justice Thompson, declared: “Congress might regulate the whole practice of the courts, if it was deemed expedient so to do; but this power is vested in the courts; and it never has occurred to anyone that it was a delegation of legislative power.”

In Beers v. Haughton, 9 Pet. 329, 360, 9 L. Ed. 145, the court, speaking through Mr. Justice Story, said, referring to these earlier cases: “It was there held, that this delegation of power by congress was perfectly constitutional; that the power to alter and add to the process and modes of proceeding in a suit, embraced the whole progress of such suit, and every transaction in it, from its commencement to its termination, and until the judgment should be satisfied. * * * And it was emphatically laid down, that ‘a general superintendence over this subject seems to be properly within the judicial province, and has always been so considered.’ ”

Coming to the later authorities, it has recently been held in Washington, in the case of State ex rel. Foster-Wyman Lumber Co. v. Superior Court for King County, 148 Wash. 1, 267 P. 770, 771, that, assuming the right of the Legislature to make rules for the court, it does not follow that such action is a legislative function. The court said:

“Not all acts performed by a Legislature are strictly legislative in character. A failure to recognize this distinction often gives rise to the belief that one of our law-making bodies has abdicated its duty, and attempted to transfer its legislative mantle to the shoulders of another body, not legislative, thereby subverting the purpose of its creation and denying the people of the commonwealth the right to have the laws which govern them enacted by their duly chosen representatives. This distinction was ably pointed out by the United States Supreme Court as early as Wayman v. Southard, 10 Wheat. 1, 6 L. Ed. 253. * * * Chief Justice Marshall, referring to the point, said:

‘It will not be contended that Congress can...