In re Appointment of Revisor, 141 Wis. 592. Fifteen thousand dollars is appropriated for the latter purpose. At the time of the passage of these acts the "trustees of the state library" was an existing body or board consisting of the seven judges of the state supreme court and the attorney general of the state (sec. 367, Stats. 1898), and prior to the enactment of the statutes in question this board had certain duties imposed upon it by law, but none of the scope and extent now attempted to be conferred. I am however quite satisfied that some of the duties formerly imposed on this board were not such as judges of the supreme court ought to exercise. Pursuant to the acts in question the judges of the supreme court, under the thin disguise of trustees of the state library, are to appoint to this permanent office for a specified term, to fix the salary, to confirm the appointment of assistants, clerks, and stenographers, to remove the revisor or his assistants for cause satisfactory to them, to appoint others in their stead, to make new appointments from time to time at the expiration of the official term or in case of other vacancy, and to enter into negotiations for and make contracts of purchase for the state. No power of appointment heretofore attempted to be conferred upon the judges of this court, or upon this court, by the legislature has gone to this extent, nor do I think any American court has ever gone to the extent of upholding such a law, although there are many extraordinary decisions on this subject suggesting that the courts have not always applied to themselves the same strictness with reference to constitutional limitations as they apply to others. 66 Cent. Law J. 24–34. The constitution of this state (sec. 2, art. VII) provides that: "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." Sec. 3, art. VII: "The supreme court, except in cases otherwise provided in this constitution, shall have appellate jurisdiction only." Sec. 10, art. VII: "They shall hold no office of pub In re Appointment of Revisor, 141 Wis. 592. lic trust, except a judicial office, during the term for which they are respectively elected." The constitution also in the usual form recognizes the division of governmental power into three departments, legislative, executive, and judicial, and provides (sec. 1, art. IV): "The legislative power shall be vested in a senate and assembly." Sec. 1, art. V: "The executive power shall be vested in a governor." Sec. 2, art. VII: "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." The legislation in question offends against the constitution in several particulars. Legislative power cannot be delegated to the courts. In re North Milwaukee, 93 Wis. 616, 67 N. W. 1033. Fixing the salary of the incumbent of this office is an exercise of legislative power. Madison v. Madison G. & E. Co. 129 Wis. 249, 108 N. W. 65; Smith v. Strother, 68 Cal. 194, 8 Pac. 852. This seems to me incontrovertible because: "In doing this the judge would be determining no right or obligation pertaining to person or property on facts already existing, but would be laying down a rule to be applied to a case the facts of which must afterwards transpire. As this would be an exercise of legislative power not expressly directed or permitted by the constitution to a court or judicial officer, the act must be declared unconstitutional." Between a legislative act performed by a member of the supreme court openly as one of the court, or individually as a private person, or as one of the trustees of the state library there is no room for distinction. The legislature has no authority to delegate legislative power to the trustees of the state library. If the position of revisor were a temporary one to terminate when a particular act or undertaking was accomplished, or if he could be considered an officer aiding in the administration of the judicial functions, other questions might arise upon which I express no opinion. If the supreme In re Appointment of Revisor, 141 Wis. 592. court judges can be authorized to fix the salary of this office, I do not see why they could not be authorized to fix the salary of every other officer whose salary is not fixed by the constitution nor by that instrument expressly committed to the determination of some other officer or branch of the government. Again, with respect to the power of appointment of the legislative assistant called a revisor, the power of confirmation of his appointments of his subordinates, and the power of removal and reappointment, I consider these powers foreign to judicial duties or functions, and the attempt to confer them upon this court invalid as contrary to the plan of the constitution with reference to the division of governmental powers into three departments. The same objection applies to the power of making contracts for the state for the purchase of all rights of publication of the statutes of this state now existing. These are not judicial duties and therefore not to be exercised by members of this court. See State ex rel. Young v. Brill, 100 Minn. 499, 527, 111 N. W. 249, 639, where the cases on this subject will be found collected. I do not see how I could sit in judgment upon the legality of these salaries so fixed, these appointments so made or confirmed, or this contract of purchase, if I took part in making the appointments, fixing the salaries, approving the appointments of subordinates, or making the contract of purchase. I believe I have no right to disable myself from performing the duties of a judge of the supreme court. I do not think that as a judge of this court administering the law I should myself set the example of violating the constitution. I cannot imagine how, after participating in this breach of constitutional law, I could impartially sit in judgment upon other like breaches performed by subordinate judicial officers under the authority of similar unconstitutional statutes in the fu ture. Another grave consideration I think deserves mention. No In re Appointment of Revisor, 141 Wis. 592. power exercised by officers of the government tends more strongly to draw these officers into the field of political intrigue and corruption than the power of appointment. For the honor of the American judiciary the courts, I think, should put aside the temptation to exercise this power. Excuses for or reasons justifying the exercise of this power of appointment in other cases forbid its exercise in the instant case. As in State ex rel. Brown Co. v. Myers, 52 Wis. 628, 9 N. W. 777, where it was said that commissioners of equalization are not officers within the meaning of the constitution; "they are merely appointed to do a specific act, and when that act is performed their power ceases," followed in Foster v. Rowe, 128 Wis. 326, 336, 107 N. W. 635. Or in State ex rel. Gubbins v. Anson, 132 Wis. 461, 112 N. W. 475, where the power of appointment of jury commissioners by the circuit judges is upheld on the ground that the "machinery for obtaining such jurors with promptness and certainty and of suitable quality is so germane to the judicial function that there is no imposition of executive power in authorizing the courts, or the judges thereof, to select or direct such machinery." A third ground of invalidity is that the judges of this court in performing the duties attempted to be imposed by the statutes in question as members of the board of trustees of the state library are holding and exercising an office of public trust other than a judicial office. It seems to me impossible to avoid the conclusion that members of an existing board upon which is conferred by statute the continuing power of appointment to this office, the power of fixing the salaries and the power of confirming the appointments of subordinates, and the power of removal and reappointment, are holding and exercising an office of public trust. "An office is where, for the time being, a portion of the sovereignty, legislative, executive, or judicial. attaches, to be exercised for the public benefit." U. S. ex rel. Boyd v. Lockwood, 1 Pin. 359, 363; Att'y Gen. v. Drohan, 169 Mass. 534, In re Appointment of Revisor, 141 Wis. 592. 48 N. E. 279; U. S. ex rel. Noyes v. Hatch, 1 Pin. 182; State v. Pederson, 135 Wis. 31, 114 N. W. 828. While there are cases like Russell v. Cooley, 69 Ga. 215, which is diametrically opposed to Case of Supervisors of Election, 114 Mass. 247, and which also inevitably led the Georgia court into that lawless condition illustrated in Shreve v. Pendleton, 129 Ga. 374, 58 S. E. 880, and in Fox v. McDonald, 101 Ala. 51, 13 South. 416, where it is ruled that the power of appointment to public office is an executive function when the statute has committed that power to the executive, a legislative function when the statute authorizes the legislature to act, and a judicial power when the statute authorizes the court to make the appointment, I cannot think that these decisions are correct, consistent with prior decisions of this court, or conformable to our state constitution. The New York cases, like Striker v. Kelly, 7 Hill (N. Y.) 9, reversed on another point in 2 Denio, 323; Sweet v. Hulbert, 51 Barb. 312; Citizens' Sav. Bank v. Greenburgh, 173 N. Y. 215, 65 N. E. 978; and In re Rupp, 28 Misc. 703, 59 N. Y. Supp. 997, while they might tend to uphold the statutes in question from one viewpoint, are conclusive against their validity so far as they attempt to confer the power to fix salaries, to confirm appointments, to remove appointees, to exercise these powers continuously, or to make contracts for the state. I am not convinced by the fact that the Wisconsin legislature has in many instances vested certain appointive powers in this court or in the circuit court. None of these instances cover the case at bar or approach it, in my judgment. The advisory office of practical construction of a constitution by other departments of government must, in the nature of things, be limited to the very case theretofore passed upon. Otherwise a single infraction of the constitution long acquiesced in might break down the whole instrument. "Acquiescence for no length of time can legalize a clear usurpation of power, where the people have plainly expressed their will in the constitution, and appointed judicial tribunals |