In re Appointment of Revisor, 141 Wis. 592.

We are constrained to hold there is none in the circumstances of this case, independently of the statute. This case is entirely unlike Havenor v. State, 125 Wis. 444, 104 N. W. 116; Hurst v. Webster Mfg. Co. 128 Wis. 342, 107 N. W. 666; Du Cate v. Brighton, 133 Wis. 628, 114 N. W. 103; Dralle v. Reedsburg, 135 Wis. 293, 115 N. W. 819, and similar cases where the communication with the jury was by the trial judge. The doctrine of those cases cannot be extended. The tendency, perhaps, should rather be the other way in view of the re-enactment in a significantly emphatic way of the principles of sec. 2829, Stats. 1898 [see Laws of 1909, ch. 192: sec. 3072m, Stats.]

By the Court.-The judgment is affirmed.

IN THE MATTER OF THE APPOINTMENT OF A REVISOR OF THE

STATUTES.

February 4, 1910.

Constitutional law: Validity of statutes: Practical construction: Division of governmental powers: Appointment to office: Judicial powers: Appointing revisor of statutes: Fixing salaries: Holding of other offices by judges: Trustees of state library.

1. An act of the legislature is to be sustained if possible by any reasonable construction of the constitution or of the act itself; and all mere doubts as to its validity are to be solved in favor of the act.

2. When the meaning of a constitutional provision is doubtful, longcontinued practical construction thereof by the branches of gov ernment affected by it is strongly persuasive and often controlling.

3. Each of the three governmental departments, legislative, executive, and judicial, has exclusive functions which no other department can perform; but there are many governmental operations and duties which do not pertain exclusively to any one department and may be performed by inferior officers or agents. in aid of the functions of either.

In re Appointment of Revisor, 141 Wis. 592.

4. Appointment to office is not exclusively an executive function; and when in the execution of their proper duties it becomes necessary or proper for either the legislative or judicial department 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.

5. A court or judge may legally be authorized to appoint an officer, even though he be a state officer, where he is to act in an administrative way as an aid, even though indirectly, to the court in the performance of its judicial functions.

6. The duties of the revisor of the statutes under ch. 546, Laws of 1909 (secs. 116, 117, Stats.), are administrative duties in aid of the execution of the purely judicial functions of the supreme court so that the selection of such revisor and his assistants may properly be committed to the judges.

7. The principle that the courts are only to determine what the law has been and is, and not what it is to be in the future, controls a court in the performance of its strictly judicial duties as a decider of controversies, but is not applicable to administrative acts or functions which it is necessary for the court to perform through agents or employees in aid of its purely judicial duties. 8. The fixing of salaries, even in advance, is not exclusively a legislative power, but may be delegated to a court as to officers or agents whom the court is legally authorized to appoint.

9. To constitute an office, as distinguished from a mere employment, the duties must, in general, be shown to be continuous and permanent, not merely transient, occasional, or incidental. 10. The duties imposed upon the justices of the supreme court by th. 23, Stats. (1898),-which makes them (with the attorney general) ex officio trustees of the state law library, and gives such trustees power to appoint a librarian, make rules, purchase books, etc., are ministerial or administrative duties which may properly be imposed upon the judiciary, because they are either helpful or necessary in the performance of the purely judicial functions of the court. In performing such duties the justices do not hold a nonjudicial office in violation of sec. 10, art. VII, Const.

11. So, also, as to the duties imposed by ch. 54, Laws of 1909 (secs. 116, 117, Stats.); and the justices are not attempting to hold another office when, acting as such trustees under that statute, they appoint a revisor of the statutes, fix his salary, approve his selection of assistants, etc.

[12. As to the validity of ch. 547, Laws of 1909 (authorizing the trustees of the state library to purchase certain copyrights and

VOL. 141-38

In re Appointment of Revisor, 141 Wis. 592.

rights to annotations to the statutes), no opinion is intimated by the court.]

SIEBECKER and KERWIN, JJ., dissent as to the validity of ch. 546, Laws of 1909, but accept the opinion of the majority as authoritative for the present purpose and act with other members of the court in executing the provisions of the statute. TIMLIN, J., dissenting, declines to act under the law.

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. R. S. 1858, ch. 10, sec. 9; Id. ch. 26, secs. 1, 2. By ch. 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, sec. 368, they were given the power of appointment of the librarian and the power to approve his bond. The reason for this change in 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

In re Appointment of Revisor, 141 Wis. 592.

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 eighteen years, and from reliable information as to the preceding fifteen

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 (ch. 546, Laws of 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 ch. 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, 1909, after

In re Appointment of Revisor, 141 Wis. 592.

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. Sec. 10, art. VII, Const. Both of these courts are purely judicial courts. In re North Milwaukee, 93 Wis. 616, 67 N. W.