"It is fundamental that under our constitutional system the governmental power to execute the laws is vested in the executive department of the state, and can be exercised only by duly constituted officers thereof."
How later courts described this case
- "It is fundamental that under our constitutional system the governmental power to execute the laws is vested in the executive department of the state, and can be exercised only by duly constituted officers thereof."
Written by the judges who cited it.
The opinion
FRITZ, J.
(concurring). I concur in the opinion written by Mr. Justice Wickhem, except in SO' far as it is stated, in effect, that the Wisconsin Development Authority was empowered by its articles of organization to do' everything that it could do after the enactment of ch. 334, Laws of 1937, and that, when its pre-existing corporate powers are considered in relation to that enactment, it must be held to constitute a mere appropriation measure, which does not confer any power at all except to spend the appropriation for the purposes defined in the act. .In my opinion the articles of organization and purposes authorized thereby are immaterial in determining whether the act confers governmental power, or whether it is but an appropriation measure. If it does purport to confer such power, the fact that the corporation’s articles purport to confer like power is of no consequence in passing upon the validity of the act. Even though corporate articles may specify as a corporate purpose the exercise of certain duties and functions as a state instrumentality and the receipt of state funds therefor, that would not constitute the corporation an instrumentality of the state and empower it as such to exercise such duties and functions at the state’s expense, in the absence of a statute constituting it such an instrumentality and empowering it tO' act in that capacity.
Furthermore, the provisions in sec. 199.04 of the act were obviously intended to confer some power and rights which the Wisconsin Development Authority would not have in the absence of such provisions, and which it could not have by virtue of but its articles of organization. No other private corporation or unofficial state instrumentality has been given any such right of access to all available information collected by any department pf the state; or been empowered to require *203 the public service commission to obtain and gather even further information for it. The vesting of that power in the Wisconsin Development Authority virtually subordinates the official public service commission to the commands of but a private corporation. It may be within the province of the legislature to authorize private parties to have such access, or call for such information; and provisions to merely that effect may not indicate the intention to confer governmental power. But the provisions in sec. 199.04 can be deemed to have some bearing upon that proposition when, in connection with the powers vested thereby in the Wisconsin Development Authority, there are considered the various duties and functions which it was to execute as a state instrumentality under all of the provisions enacted as part of ch. 334, Laws of 1937, and the consequent necessity for its exercise of considerable discretion and responsibility in the proper performance thereof.
However, the discretion and responsibility in those respects, and the consequences thereof mentioned in the original opinion herein, have been diminished to such an extent by holding that an important group of purposes under the act do not constitute proper state purposes (as is stated in the opinion by Mr. Justice Wickhem), that what now remains to be performed by the Wisconsin Development Authority does not constitute the exercise of governmental power. Consequently I concur in the conclusion that the portions of the act which remain upon the elimination, under the separability clause, of the invalid provisions must be sustained.