(dissenting). Cb. 546 of tbe Laws of 1909-creates and adds two new sections (secs. 116 and 117) to tbe statutes of tbe state. Tbe title declares that it is an act “relating to tbe revision of tbe statutes, and making an appropriation.” It provides for tbe appointment of a revisor-of tbe statutes, to be known as “revisor,” and that bis appointment shall be made by tbe trustees of the state library “upon tbe passage of this act, and thereafter on and after tbe third Wednesday in January of each year in which tbe legislature shall meet in regular session.” When tbe justices undertook compliance with this law I participated in their action, and I did not examine into tbe validity of tbe law until tbe question was raised by one of tbe justices. In my opinion this challenge to tbe validity of tbe legislation raises tbe question of its constitutionality and presents to tbe members of this court tbe twofold inquiry: Is this law constitutional, and, if it be valid legislation, are tbe justices of this court obligated to perform tbe duties imposed by tbe law ?
Tbe chief justice, in an exhaustive and comprehensive opinion, has collated tbe different legislative acts, from tbe time of' tbe adoption of the state constitution to this day, whereby various duties have been imposed on tbe justices of this court by tbe legislature, and has collected tbe decisions of this court bearing on tbe subject. I am in accord with the view expressed therein to tbe effect that our constitution manifestly recognizes tbe doctrine of the division and separation of governmental powers into legislative,, executive, and judicial departments ; that their execution is lodged in these co-ordinate departments of tbe government, which are independent each of tbe other in executing their respective powers; and that neither can assume to encroach upon tbe field of another without invading this fundamental doctrine of tbe separation of these sovereign powers. I also concur in tbe principle that “when in tbe execution of their proper duties it becomes necessary or proper for either tbe legislative or judicial depart-*620meat of the government to have administrative acts performed by assistants, such, assistants may properly be selected by the legislature or the judiciary, as the case may be, provided the constitution does not otherwise direct.” This is the effect of the decisions of this court in In re Janitor of Supreme Court, 35 Wis. 410, and State ex rel. Gubbins v. Anson, 132 Wis. 461, 112 N. W. 475. It is within this principle that the duties prescribed by secs. 367 to 372, Stats. (1898), inclusive, appertaining to the management of the state library, and the duties imposed by sec. 346, Stats. (1898), respecting the appointment of a reporter for editing the decisions of this court, are properly imposed on the justices of the supreme court in their official capacity. So far as the administration of the affairs of the state library and the appointment of a librarian and of a person to report and publish the decisions and opinions of this court, as well as the appointment of their assistants and other helpers for the performance of these acts, are-committed to the justices by these statutes, it seems clear to me that the law makes them the agencies of the state for the proper execution of the duties devolving on the judicial department of the state, and that it calls on them to perform administrative acts which are necessarily connected with the administration of the state’s judicial affairs. The incumbents of these positions, thus selected by the justices, are in my opinion performing ministerial functions as assistants of the court, and the power of appointing them is a duty properly lodged in the judicial department of the government. The acts heretofore performed in execution of these statutes by the trustees or by the president and secretary of the board at the direction and command of the members, I regard as fully justified and as fully within the scope of the judicial branch of the government, though the legislature has by statute created the occasion calling for their performance.
I am unable to concur in the opinion of the justices as ex*621pressed in the opinion of the chief justice that the revisor to be appointed under ch. 546 of the Laws of 1909 is an administrative officer engaged in the performance of acts connected with the judicial department of the state government. The act provides that the revisor shall prepare a loose-leaf set of the statutes in force, arranged in sections, that he shall designate the titles and subtitles under which they are indexed, and that he shall keep an appropriate card index thereof; that he shall keep and maintain notes of court decisions referring to the statutes; that he shall supervise a compilation of such statutes, subject to the trustees’ approval, and attend to the printing thereof and of such portions as may be ordered for the use of any department of the state; that he shall prepare and keep a loose-leaf record of laws which have been repealed, amended, or superseded by subsequent enactments ; and that he shall keep these records in duplicate in the state library. This chapter also makes it the duty of the re-visor :
“To formulate and prepare a definite plan for the order, classification, arrangement, printing, and binding of the statutes and session laws, and between and during sessions of the legislature to prepare and at the beginning of each session of the legislature to present to the committee on revision of each' house, in such bill or bills as may be thought best, such consolidation, revision, and other matter relating to the statutes or any portion thereof as can be completed from time to time.”
I am unable to discover that any of these acts are administrative acts connected with the execution of the judicial power of the state. Erom their very nature it is manifest that these services pertain to and are part of the execution and administration of the legislative branch of the government. True, when the revisor’s duties have been performed, the result may be materially adapted to aiding the court in performing its duties; but I perceive no difference in the product of his work and the same thing done by a legislative committee respecting the compilation, codification, and annotation of laws and their *622publication in convenient and serviceable form, which. I take it could not in any sense be regarded as connected with the administrative functions of the judicial department. They are obviously administrative acts connected with the execution of functions pertaining to the legislative branch of the government. I consider, therefore, that the duties imposed on the revisor by ch. 546 of the Laws of 1909 are unrelated to the proper execution of the duties of the judicial department and that he cannot be appointed as its administrative officer to aid in the administration of the judicial affairs of the state.
In this view of the nature of the revisor’s duties, thus sought to be imposed, the inquiry arises: Can the legislature impose his selection and appointment on the justices of this court, as ex officio trustees of the state library, he being an officer charged with legislative duties? This presents the questions: (1) Is he an officer or employee of the state whose appointment can be delegated by the legislature? (2) Can the legislature, as provided by the terms and conditions of the statute, delegate the function of fixing the amount of his compensation? (3) Does the constitution inhibit the justices of this court, in the capacity of ex officio trustees of the state library, from performing the duty of selecting him for an office •of the state?
Respecting the first of the above inquiries, it seems to me that under ch. 546 of the Laws of 1909 the revisor is an officer within the usual and accepted meaning of the term, because this law imposes a special trust and charge on him and he acts as an agency of the state for performing specific duties for the benefit of the public. The law also prescribes that the incumbent shall receive a compensation and hold the position for a specified term. In addition to imposing the duty on the trustees of selecting this officer, it requires them to fix his compensation, remove him for cause deemed sufficient by them, to approve his appointments of assistants, clerks, and stenographers, and to approve their compensation. In my *623judgment, these duties, so imposed on the trustees by this ■statute, are different in their nature and more extensive in their scope than those imposed by the law as it theretofore existed and which appertained to the management of the state library and the appointment of a librarian, a reporter, and their assistants. To charge the trustees of the state library •with all these duties for the benefit of the state converts the trusteeship into an office of public trust for carrying into execution a part of the functions of the state. It pertains to powers and duties which do not inhere in the judicial department, and the law thus imposes on the justices of this court •an office of the state such as is prohibited by sec. 10 of art. VII •of the state constitution, providing that “the judges of the •supreme court . . . shall hold no office.of public trust, except a judicial office, during the term for which they are respectively elected.” Manifestly, this inhibition does not include ■such functions as the administration of the affairs of the state library and of the reporter’s department, which are connected with the execution of duties for the state which are related to 'the carrying into effect of the judicial power. This act attempts to impose such duties on the members of this court, as >ex officio trustees of the state library, as makes the trusteeship ■an office of public trust of such a character as the justices are prohibited from holding by the constitution.
In my judgment the practical construction given to prior legislation cannot control in testing the validity of the law embodied in this chapter and in eh. 541 of the Laws of 1909, because this legislation attempts to impose duties and functions on the trustees of the state library of a public character which are materially different from-those imposed by any prior legislation. The legislature manifestly adopted ch. 541 of the Laws of 1909, authorizing “the trustees of the state library to purchase certain copyrights ’and rights to annotations to the statutes,” as a part of a scheme which led to the adoption of ch. 546 of the Laws of 1909. These chapters were *624approved at tbe same time and tbeir contents refer to tbe same subject matter. Wben thus considered together, tbe conclusion that they deal with a subject unrelated to tbe judicial department of tbe government is emphasized. These considerations lead to tbe conclusion that these acts attempt to impose duties and functions on tbe justices of this court, as ex oficio trustees of the state library, which are non judicial in their character and purely administrative acts not necessarily or properly connected with the execution of the judicial power, and obviously imposed by the legislature on the members of this court as ex officio trustees of the state library. To assume these duties is in my opinion to hold an office of trust pertaining to a matter outside of the judicial branch of the government. This is in conflict with the provisions of sec. 10 of art. VII of the state constitution and renders the legislation invalid. If this were the opinion of the majority of the justices no further action for the appointment of a revisor could follow. Since, however, the majority of the justices are of the opinion that ch. 546 of the Laws of 1909 is valid, I shall deem it, for the present purposes, an interpretation of the law of the state. Under these circumstances, I shall participate in the performance of the duties and functions imposed by this statute on the members of this court and accordingly shall act in executing the provisions of the statute.
Upon the question of whether the legislature had the power to delegate the selection of a revisor, I regard sec. 9 of art. XIII of the state constitution as applicable and decisive. It provides:
“All other officers whose election or appointment is not provided for by this constitution, and all officers whose offices may hereafter be created by law, shall be elected by the people or appointed, as the legislature may direct.”
As I have stated, the functions of the revisor, as imposed by this statute, make him an officer of the state within the contemplation of law.- His appointment can be delegated by the *625legislature under this constitutional provision to such an appropriate agency as is not prohibited by the constitution and laws from executing such a legislative mandate. Since, however, the justices of this court are disabled from performing any function for the state in the nature of an office of public trust, the duty must be imposed on some agency other than the members of this court.
As regards the power of the legislature to delegate the authority to fix the revisor’s compensation for his services, I think the law attempts no more than to authorize the appointing power to ascertain facts and circumstances respecting the value of the revisor’s services as imposed by the law and to determine such amount within the prescribed limit.. This does not impress me as a delegation of legislative power, but as an act done for the legislature which is administrative in its nature and which the legislature may properly delegate.
These observations cover my views respecting the appointment of a revisor under ch. 546 of the Laws of 1909.