In re Appointment of Revisor, 141 Wis. 592. 1033. Taking up first the state 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 borderlands of power which may be said to approach nearer and nearer until they merge gradually into each other. In these borderlands 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 today. 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 today 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 In re Appointment of Revisor, 141 Wis. 592. regulations which fifty 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 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 character, and which may be performed by inferior officers or agents in aid of the functions of either great department. Appointment to office, while generally called an executive function, cannot under our constitution be classed as exclusively a function of either of the three great departments. Indeed, as matter of fact, the constitution reserves the power in large degree to the people themselves. Sec. 9, art. XIII, Const. It is frequently spoken of as typically an executive power; but when in the execution of their proper duties it becomes necessary or proper for either the legislative or judicial department of the government to have administrative acts performed by assistants, such assistants may properly be selected by the legislature or judiciary, as the case may be, provided. the constitution does not otherwise direct. This must be held to be settled in this state by the case of State ex rel. Gubbins v. Anson, 132 Wis. 461, 112 N. W. 475, where the power given In re Appointment of Revisor, 141 Wis. 592. to circuit judges to appoint jury commissioners was upheld after very thorough consideration by this court, a trifle more than two years since. It is to be observed in this case also that the jury commissioners were held to be officers either of the state or the judicial circuit, and not mere employees of the state. So we have the initial proposition settled, to wit, that a court or judge may be legally authorized to appoint an officer, even though he be a state officer, in cases where the duties of the officer are to assist the court in the performance of acts of an administrative character, necessary or proper to the due discharge of judicial duties. But our court has certainly gone further than this. The power given to the circuit judge to appoint commissioners to equalize county valuations of property for taxation and audit their bills for services and expenses (sec. 1077a, Stats. 1898) would not seem to come within the category of powers necessary or even convenient for a court to have in order to perform its constitutional duties, yet this law has been repeatedly sustained. In the early cases there was no mention of the particular objection now under consideration, but finally in Foster v. Rowe, 128 Wis. 326, 107 N. W. 635, the claim that it was a nonjudicial duty was fully argued, and this court expressly overruled it and held the legislation valid, apparently on the ground that the commissioners were only a temporary tribunal to perform certain quasi-judicial duties in taxation proceedings. In making this decision not only were the former Wisconsin cases cited in which the law had been sustained against attack on other grounds, but reference was made to adjudged cases from the states of Colorado, Georgia, New Jersey, and Ohio, in which cases respectively it was held that courts might properly be authorized to appoint the following officers, viz.: (1) Commissioners to call and conduct an election to determine the question of incorporation or not; (2) a board of commissioners for the registration of voters and management of elections generally; (3) commissioners In re Appointment of Revisor, 141 Wis. 592. to lay out public parks in cities; and (4) trustees to build and operate a commercial railway to be built by the city of Cincinnati. Reference was also there made to the text on page 1060 of 6 Am. & Eng. Ency. of Law (2d ed.), where it is said that though there is a division of authority on the question whether the exercise of the appointing power by the judiciary is an infringement of the constitutional separation of governmental functions, a majority of the courts which have passed on the question have sustained the power, and that so far as the question relates to ministerial officers and assistants of courts the power of appointment seems to have been exercised without question where it was properly conferred. See, also, 23 Cyc. 538, 539, where the validity of laws authorizing judges to do very many ministerial acts, including appointments to office, is fully sustained. Again, the various laws, commencing with ch. 442, Laws of 1885, authorizing circuit courts and judges to organize drainage districts on petition and appoint drainage commissioners to carry out extensive systems of drainage of swamp lands by levying special assessments, have been sustained by this court against vigorous and able attacks, although the exact point now under consideration seems not to have been discussed. Bryant v. Robbins, 70 Wis. 258, 35 N. W. 545; State ex rel. Baltzell v. Stewart, 74 Wis. 620, 43 N. W. 947; Muskego v. Drainage Comm'rs, 78 Wis. 40, 47 N. W. 11. The general law, however, authorizing the formation of such districts and the appointment of commissioners in the same way (sec. 1379-11 et seq., Stats. 1898) was vigorously attacked in the case of Stone v. Little Yellow D. Dist. 118 Wis. 388, 95 N. W. 405, as not a judicial proceeding, and after full argument the validity of the statute was sustained. Under this general law it is to be noted that the drainage commissioners appointed by the court or judge are required to take the constitutional oath of office and give a bond, and that they have a definite term which is called their term of office. In a num In re Appointment of Revisor, 141 Wis. 592. ber of the drainage laws just mentioned the court or judge is authorized to audit the bills of the commissioners before they can be paid. In In view of these decisions it must be conceded, I think, in considering what duties may properly be delegated to courts, that this court has already taken a view which would seem to entirely justify the conclusion, without further examination, that the power to appoint a revisor and his assistants is one which may properly be conferred on the judiciary. However, I desire to give the subject a much fuller examination, and in doing so I wish first to inquire whether it can be fairly held that the duties of the revisor and his assistants are in fact administrative duties, in aid of the execution of the purely judicial functions of this court, so that the selection of such revisor and his assistants may properly be committed to the judges under the principle laid down in the Anson Case, before cited. This court is the final judge of the meaning, application, and validity of the statute law of the state. this latter day, when statutes upon innumerable subjects are multiplying as never before, when new fields of legislative activity are necessarily being opened every year, it is no easy task to follow the course of legislation and be sure that one has seen all the laws on a given subject, or knows just which laws are in force and which have been repealed. Especially is this true as the period following a general revision grows longer. The writer speaks from experience when he says. that there have been many times when he would have given much to be able to go to a card index or loose-leaf statute which would inform him at once of the condition of the statute law on a given subject, or give him notes of all the decisions under a section up to date. Now it is to be noted that under the law in question these very things are provided for and seem to form as important a part of the law's purpose as ultimate revision of the statutes. The revisor is required to keep not only a loose-leaf set of the statutes and a card in |