Mr. Ranney characterizes Justice Rosenberry as advancing the position that administrative agencies' power is not "merely the implementation of the Legislature's policies, [rather] he argued that courts should recognize and accept the reality that agencies had independent powers". This view he embodied in his opinion for the court State ex rel. Wisconsin Inspection Bureau v. Whitman, 196 Wis. 472, 220 N.W. 929 (1928) on the validity of a statute empowering the state insurance commissioner to veto rules adopted by the state Rating Bureau.
Judicial election campaign season tends to be the time we hear most about about the separation of powers among the three branches of goverment. As to the tripartite structure, Ranney puts Justice Rosenberry's views this way.
Agencies, he said, must be recognized as a fourth branch of government, vested with separate powers that the 20th century had made necessary.
Justice Rosenberry also noted the concern about the lack of separation of powers within an agency, Whitman, 220 N.W. at 937, but included in his reassurance,
The doors of the courts of this country will always stand open to any citizen complaining that he has been deprived of his constitutional rights, no matter under what form of law the deprivation has been worked.
Whitman, 220 N.W. at 942. That might be less reassuring considering what he wrote the following year, quoted by Ranney.
"[T]hose who have opposed the creation and extension of administrative tribunals have as a rule had the best of the argument on legal and constitutional grounds, but have been obliged to yield to an irresistible social pressure. ...
Administrative Law and the Constitution, 23 Am. Pol. Sci. Rev. 32, 34-35 (1929).
