State ex rel. Martin v. Zimmerman
| Decision Date | 16 November 1939 |
| Citation | 288 N.W. 454,233 Wis. 16 |
| Parties | STATE ex rel. MARTIN, Atty. Gen., v. ZIMMERMAN, Secretary of State. |
| Court | Wisconsin Supreme Court |
Original action of mandamus by the State, on the relation of John E. Martin, Attorney General, against Fred R. Zimmerman, Secretary of State, to require the Secretary of State to publish an act of the Legislature.-[By Editorial Staff].
Writ ordered to issue.
This is an original action of mandamus brought in this Court pursuant to leave granted. The Attorney General sues on behalf of the people of the State of Wisconsin to require the Secretary of State to publish an act of the Legislature. The facts are as follows: the Legislature of the State of Wisconsin prior to adjourning sine die at 4:15 o'clock P.M. on October 6, 1939, duly enacted Bill No. 563, S. and caused the bill, properly authenticated by the officers of both houses of the legislature, to be presented to the Governor for his approval at 10:40 A.M. on October 7, 1939. The Governor in the exercise of the power vested in him by virtue of the provisions of Art. V, sec. 10 of the Wisconsin constitution approved Bill No. 563, S. in part and disapproved it in part on October 14, 1939, or within the six day period prescribed by Art. V, sec. 10, which is printed in the margin.
Thereafter on October 14, 1939, at 10:16 o'clock A.M. and within six days (Sunday excepted) after the bill had been presented to him for approval the Governor deposited the bill in the office of the Secretary of State in the form in which he approved it. In view of the conclusion which has been reached, it is not necessary for us to set out the bill or to indicate which parts of the bill were approved and which were disapproved.
The Secretary of State has refused to publish the bill as he is required to do by Art. VII, sec. 21 of the constitution and secs. 14.29 (10) and 35.64 of the statutes, on the ground that the act deposited in his office was not validly enacted and approved, specifically it being his contention that the power of partial veto vested in the Governor by Art. V, sec. 10 of the Wisconsin constitution cannot be exercised after the adjournment of the Legislature and the bill was therefore not properly approved in part and should not be published.
The Secretary of State further contends that while he has no power to pass upon the constitutionality of the law, he does have power to determine whether or not the bill was validly enacted and approved so far as procedural steps are concerned whether those procedural steps are prescribed by the constitution or the Legislature.John E. Martin, Atty. Gen., and James Ward Rector, Deputy Atty. Gen., for plaintiff.
R. M. Rieser, of Madison, for defendant.
Art. VII, sec. 21 of the Wisconsin constitution provides:
Sec. 14.29, Wisconsin Stats., provides:
“The secretary of state shall:
******
Sec. 35.64 provides:
Sec. 14.18 provides:
[1][2][3] The position of the Secretary of State is that the act deposited with him by the Governor as alleged in the petition is not a law because it was not constitutionally approved and he is therefore not required to publish it for the reason that its publication will be a futile act. This contention requires us to consider the meaning of the term “law” as used in the constitution and in the statutes with respect to publication of acts of the Legislature approved by the Governor. It is apparent that the word “law” was not used in its broad general sense. When so used it is defined as “the aggregate of those rules and principles of conduct which the governing power in a community recognizes as those which it will enforce or sanction.” State v. Lange Canning Co., 1916, 164 Wis. 228, 157 N.W. 777, 780, 160 N.W. 57. In that sense an act of the Legislature can never be a law until it is published as required by the constitution and the statutes. If that argument were sound, the Secretary of State could prevent any act of the Legislature from becoming a law by merely refusing to publish it. Under the constitution and the statute it is clear that an act of the Legislature cannot operate as a law until it has been officially published. Therefore when in Art. VII, sec. 21 of the constitution the Legislature is required to provide for the speedy publication of all statute laws, and it is further declared that no general law shall be enforced until published, the term “law” is used in a narrower sense. It is plain that the term “law” as there used refers to an act of the Legislature which has been deposited in the office of the Secretary of State properly authenticated by the presiding officers of the two houses and approved by the Governor to become effective as a rule of conduct when published.
[4][5] We do not need to consider in this case acts of the Legislature which become laws otherwise than by the approval of the Governor for the Governor in this case approved the act in part and the part approved thereby became a “law” within the meaning of that term as used in Art. V, sec. 10 of the constitution. When an act so approved reaches the office of the Secretary of State, the Legislature has commanded that he immediately publish it. Upon its publication unless otherwise provided, it then becomes a law in the broad sense of prescribing a rule of conduct. Neither the constitution nor the laws enacted pursuant thereto confer upon the Secretary of State any discretion with respect to what he shall do with an act which reaches his office in the manner prescribed by law and in the form of law. No discretionary power to pass upon the constitutionality of acts so authenticated and deposited with him can be inferred. The statute is mandatory and imposes upon him the duty to publish which is a purely ministerial function.
[6][7][8] The constitution prescribes and defines the powers of the legislative and executive departments of the government and all officers in the discharge of their functions are under an obligation to comply with its requirements. The Secretary of State is not vested by virtue of his office with the power of interpreting the constitution for other officers in the discharge of their duties. When the Secretary of State refuses to perform a duty imposed upon him by law on the ground that some other official has not performed his duty in accordance with the provisions of the constitution, he acts judicially and exercises a power not conferred upon him.
The whole governmental process would be thrown into utter confusion if ministerial officers in one department in the absence of legislative authority assumed to...
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