State v. Van Brocklin , 194 Wis. 441 ( 1927 )

Owen, J.

The act creating the municipal court of the city of Oshkosh, in the county of Winnebago (ch. 24, Laws of 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 (art, VII, sec. 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 -revision of Bouvier’s Law Dictionary (8th ed.), 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 of collectively, for a particular purpose and limited time,” citing 1 Blatch. 635; Gilbert v. Priest, 65 Barb. (N. Y.) 444, 448. In vol. 2, Words and Phrases (2d series) 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 p. 87 (87 N. W. 797) 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 the 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. Hardin, 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 questions,’ — 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 South. 297.

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 Ruling Case Law, 627; 26 L. R. A. n. s. 493, 495; In re Siebert, 61 Kan. 112, 58 Pac. 971; In re Durant, 60 Vt. 176, 12 Atl. 650; State v. Dibble, 59 Conn. 168, 22 Atl. 155. These cases all hold that the legislature may authorize the clerk of the. court to issue criminal warrants. In State v. Dibble, supra, it appéared 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 Pac. 3, is an illuminating case upon this subject, although that case involved the power of a clerk of court to fix and let to bail.

Bouvier’s Law Dictionary defines a warrant as “a writ issued by a justice of the peace or other authorised officer, directed to a constable or other proper person, requiring him to arrest a person therein named, charged with committing some offense, and to bring him before that or some other justice of the peace,” plainly implying that officers other than judicial officers may be authorised to issue the writ. While it is held in People v. Colleton, 59 Mich. 573, 26 N. W. 771, that the issuance of a warrant involved judicial action, which cannot be performed by the clerk, our investigation indicates that the jurisdiction of Michigan stands alone upon this question. We find no other case so holding.

The power of the clerk pursuant to legislative authorization to issue a criminal warrant has been upheld by this court. In Ryan v. State, 83 Wis. 486, 53 N. W. 836, a warrant issued by the clerk of the municipal court of Ashland county was directly challenged. The clerk was authorized to issue the warrant by the act creating the court. .The court said: “These acts of the clerk are all under the supervision of the judge of the court and subject to his control. In a certain sense they are the acts of the judge or the court.” While the reasoning upon which the warrant was upheld was based upon a fiction, and, as now appears, unnecessary, nevertheless the expediency of the practice was recognized and the power sustained.

In Bianchi v. State, 169 Wis. 75, 171 N. W. 639, the warrants were issued by the clerk of the municipal court of Milwaukee county. While the validity of the warrants was directly challenged, it was not upon the ground that it was beyond the power of the legislature to vest such authority in the clerk of the municipal court. The warrant was challenged because issued upon the mere affidavit of the complainant, the point urged being that “A magistrate or his clerk must examine the complainant before there is jurisdiction to issue a warrant” under our statute.

While we have thus reviewed the authorities to indicate that it is not generally considered that the issuance of. a criminal warrant involves the exercise of that judicial power which the constitution commits to the exclusive jurisdiction of courts, it is unnecessary to go any further than the constitution itself to vindicate the right of the legislature to confer such authority upon clerks of courts. Sec. 23, art. VII, of the constitution provides that “The legislature may provide for the appointment of one or more persons in each organized county, and may vest in such persons such judicial powers as shall be prescribed by law. Provided, that said power shall not exceed that of a judge of a circuit court at chambers.” It is evidently under this provision of the constitution that the legislature has provided for the appointment of circuit court commissioners and conferred upon such commissioners the powers that may be exercised by a judge of the circuit court at chambers. But there is no reason to say that by providing for the appointment of court commissioners the power conferred upon the legislature by this provision of the constitution has been exhausted. Under this power it would seem that the legislature had the undoubted right to authorize clerks of municipal courts to issue criminal warrants.

Having arrived at the conclusion that clerks of municipal courts may be authorized to issue criminal warrants, it follows as a corollary that they may also be authorized to issue search warrants. The judicial power involved in the issuance of a search warrant under the constitution is no different from the judicial power involved in the issuance of a criminal warrant under sec. 361.02 of our Statutes. The constitution (art. I, sec. 11) provides that no search warrants “shall issue but upon probable cause, supported by oath or affirmation.” Sec. 361.02, Stats., relating to the issuance of criminal warrants, provides that the magistrate shall examine the complainant on oath “and any witness produced by him, and shall reduce the complaint to writing and shall cause the same to be subscribed by the complainant; and if it shall appear that any such offense has been committed the magistrate shall issue a warrant,” etc. So far as the exercise of judicial power is concerned, it is no greater with reference to the one than with reference to the other. At any rate, the constitutional provision noted fully authorized the legislature to vest authority to issue either warrant in the clerk of a municipal court.

It is said that this court negatived the power of a clerk of a court to issue a search warrant in Vejih v. State, 185 Wis. 21, 200 N. W. 659. It is true that the search warrant there under consideration was issued by a clerk of a municipal court. Its validity was challenged because of that fact and the further fact that it was issued in the absence of a finding of probable cause. This court merely said that the warrant was void “because not issued by a magistrate upon findings of probable cause.” The question of whether a clerk of a court had power to issue the warrant was not considered. It had recently been held by this court that a search warrant could issue only upon a finding of probable cause. For the lack of such finding the search warrant was void. The court did not there pass upon the question of whether a clerk of a court may be authorized to issue a search warrant.

By the Court. — The question certified is answered Yes.