State v. Van Brocklin

• Decision Date: 10 January 1928
• Citation: 217 N.W. 277,194 Wis. 441
• Parties: STATE v. VAN BROCKLIN.
• Court: Wisconsin Supreme Court

194 Wis. 441

217 N.W. 277

STATE

v.VAN BROCKLIN.

Supreme Court of Wisconsin.

Dec. 6, 1927.

Dissenting Opinion Jan. 10, 1928.

Certified Question from Circuit Court, Winnebago County; Fred Beglinger, Judge.

Certified question from the circuit court for Winnebago county; answered, yes.

The defendant, William Van Brocklin, was convicted in the circuit court for Winnebago county of violation of the prohibition law. During the course of the trial there was introduced in evidence against him certain liquors seized under and by virtue of a search warrant which search warrant was issued by the clerk of the municipal court for the city of Oshkosh, in the county of Winnebago. After conviction and before sentence, deeming the validity of such search warrant so issued by the clerk of the municipal court an important and doubtful question of law, the judge of that court certified to this court the following question:

“Has the clerk of the municipal court of the city of Oshkosh and Winnebago county power and authority under the act of the Legislature creating said court, to wit, chapter 24 of the Session Laws of 1895, and the several acts amendatory thereof, to act upon applications for search warrants, examine witnesses thereon, and determine whether reasonable or probable cause exists upon such applications for the issue of the search warrant, and, if so determined by him to exist, to issue said search warrant accordingly, and is the search warrant issued by him in this case under the general supervision of and control of the judge of the court over the acts of the clerk prescribed by the said act of the Legislature, valid and lawful notwithstanding the absence of the judge at the time this search warrant was issued, and notwithstanding that the judge of said court took no part in the proceedings for the issue of this particular warrant?”

Eschweiler and Crownhart, JJ., dissenting.John W. Reynolds, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and Frank B. Keefe, Dist. Atty., of Oshkosh, for the State.

Reilly & O'Brien, of Fond du Lac, for defendant.

OWEN, J.

The act creating the municipal court of the city of Oshkosh, in the county of Winnebago (chapter 24, Laws 1895), confers upon the clerk of that court the following powers, among others:

“He may examine on oath all persons applying for warrants, may reduce their examination to writing and file the same, and may issue all warrants and other processes from said court.”

The search warrant in question was issued by the clerk of that court pursuant to the power so conferred. The defendant contends that the issuance of the search warrant constitutes a judicial act, power to perform which cannot be conferred upon the clerk of the court under the Constitution, which provides (article 7, § 2):

“The judicial power of this state, both as to matters of law and equity, shall be vested in a Supreme Court, circuit courts, courts of probate, and in justices of the peace.”

This same section also authorizes the legislature to vest such jurisdiction as shall be deemed necessary in such municipal and inferior courts as may be created by legislative enactment.

It will be noticed that the section speaks of the judicial power as to “matters of law and equity.” This, no doubt, describes judicial power in its broadest sense. It is this broad conception of the judicial power that is vested exclusively in the courts. It is often assumed that any function partaking of the nature of judicial power cannot be vested anywhere but in the courts. But this view is not sanctioned by the best-considered authority. In Rawle's third edition of Bouvier's Law Dictionary, judicial power is defined thus:

“It is the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision” --citing Miller, Const. U. S. 314.

Also:

“The power conferred upon courts in the strict sense of that term; courts that compose one of the great departments of the government; and not power in its judicial nature, or quasi judicial, invested from time to time in individuals, separately or collectively, for a particular purpose and limited time”--citing Charge to Grand Jury, 1 Blatch. 635, Fed. Cas. No. 18,261; Gilbert v. Priest, 65 Barb. (N. Y.) 444, 448.

In 2 Words and Phrases, Second Series, p. 1268, we find many cases cited to the proposition that “ ‘judicial power’ is that power which adjudicates and protects the rights and interests of individual citizens, and to that end construes and applies the laws.” In State ex rel. Ellis v. Thorne, 112 Wis. 81, at page 87, 87 N. W. 797, 799 (55 L. R. A. 956) it is said:

“The language of the Constitution is: ‘The judicial power of this state, both as to matters of law and equity, shall be vested in’ the courts mentioned. The term ‘matters of law and equity’ refers to the administration of the law in actions and proceedings in courts of law and equity--the exercise of such power in such matters as was exercised by such courts at the time of the adoption of the Constitution. As said in Callanan v. Judd, 23 Wis. 343, 349, the proper construction of the term ‘judicial power in matters of law and equity’ is such power as the court, under the English and American systems of jurisprudence, had always exercised in actions at law and in equity. To act judicially, and to act judicially in a matter at law or in equity--or, in other words, in actions at law or suits in equity--are not necessarily the same. Every officer or board that is required, in the administration of the law, to determine whether a duty exists, or determine from facts, by the exercise of judgment, a course of action, within legislative restraints or guides, must necessarily act judicially in a sense. The power often partakes so much of the judicial function that it is spoken of as quasi judicial. Manifestly, an officer or board, or other tribunal other than a court, may act judicially in the sense above mentioned and not to do anything falling within the meaning of the term ‘judicial power as to matters of law and equity;’ and so a judicial officer may perform acts officially outside of such matters--mere ministerial acts.”

Speaking of the very question which we are here considering, namely, whether a clerk of the court may be vested by the Legislature with power to issue warrants, the Supreme Court of Alabama said:

“The act creating the inferior court of criminal jurisdiction in the city of Birmingham conferred upon the clerk the power to issue warrants of arrest. It is argued that the issue of warrants of arrest is a judicial power, which can be conferred only upon a judicial officer. It implies the power and the duty to hear and determine the question of probable cause. The principle of this contention was long ago disposed of by the decisions of this court. In Ex parte Gist, 26 Ala. 156, it was argued with great learning that the section of the judiciary act of the United States conferring power upon justices of the peace to arrest, imprison, or bail persons charged with a violation of the criminal law of the United States, was repugnant to the Constitution of the United States for the reason that it conferred judicial power upon one not an officer of the United States, whereas that Constitution provides that the judicial power of the United States shall be vested in one Supreme Court and such other inferior courts as Congress may, from time to time, ordain and establish. This court, conceding that the power and authority conferred was judicial in its nature, held that it did not fall within the meaning of ‘judicial power’ in the sense in which that term is used in the Constitution of the United States. And the court referred to the case of Gaines v. Harvin, 19 Ala. 491, where a similar provision in our Constitution came under review, and where it was held that it was not the intention of the framers of the Constitution to deny to the Legislature the power to confide to ministerial officers, who do not constitute a part of the judiciary, properly so called, many duties involving inquiries in their nature judicial. In the case referred to it was said: ‘The practice of this as of all other governments having their judicial, executive, and legislative departments separate and distinct very clearly shows that, in the administration of laws, inquiries partaking of the nature of judicial investigations are confided to persons other than judges, whose acts have never been questioned on constitutional grounds'--and more in the same line. The statute in this case conferred no power upon the clerk to finally hear and determine, nor even to commit to bail, but only to issue warrants, which must be construed to authorize him to issue warrants on probable cause, supported by oath or affirmation, and returnable, by necessary implication, to the court from which they are issued. We are not prepared to say that this was an unconstitutional exercise of power.” Kreulhaus v. Birmingham, 164 Ala. 623, 51 So. 297, 26 L. R. A. (N. S.) 492.

In harmony with this conception of the nature of the judicial power which is confided exclusively to the courts, it has been generally held that the Legislature may confer upon the clerk of a court the power to issue criminal warrants. 5 R. C. L. 627; 26 L. R. A. (N. S.) 493, 495;In re Siebert, 61 Kan. 112, 58 P. 971; Re Durant, 60 Vt. 176, 12 A. 650;State v. Dibble, 59 Conn. 168, 22 A. 155. These cases all hold that the Legislature may authorize the clerk of the court to issue criminal warrants. In State v. Dibble, 59 Conn. 168, 22 A. 155, it appeared that the charter of the city of New Haven provided that process of the city court should be deemed to be issued by the court when issued or signed by the judge or assistant judge or the city attorney. A warrant issued by the city attorney upon an affidavit signed by himself was upheld. State v. Sureties of Krohne, 4 Wyo. 347, 34 P. 3, is an illuminating case upon...