¶1(dissenting). Being satisfied that the clerk of the municipal court of Oshkosh has no power to issue a search warrant under the statute creating that court *449and relied upon as giving such power, and that the legislature cannot confer such a power, I must dissent.
¶2That such warrants may have been issued by the clerk of that court or by such other clerks I do not think is entitled to importance here, any more than was the long practice in the eminent domain proceedings under the Milwaukee city charter which was overturned in State ex rel. Allis v. Wiesner, 187 Wis. 384, 398, 204 N. W. 589.
¶3It appears to me that there is an important, fundamental, and constitutional distinction between search warrants here involved and the ordinary warrant for the arrest of the person. The latter is the method of bringing an individual before the court for further proceedings there, and there is not the same need of a precedent judicial action, for in the many instances of misdemeanors committed in the presence of a peace officer and in many cases of felonies, the arrests, which are the object of the ordinary warrant, may be made without any prior warrant. It is the search warrant alone that is evidently expressly and particularly referred to in the constitution, art. I, sec. 11. The legislative regulation for the two is in separate and independent chapters: ch. 361, Stats., for the issuing of the warrant of arrest; and ch. 363, devoted exclusively to the search warrant. In each chapter it is provided by whom the respective kinds of warrants may be issued; sec. 363.01 refers to those designated in 361.01, which specifically mentions judges of courts of record, court commissioners, and justices of the peace, but clerks of courts are conspicuous by their absence. The clerk of the circuit court is a constitutional officer (sec. 12, art. VII, Const.), yet neither there nor in the statutes defining his duties, sec. 59.39, is there anything in the nature of a conferring of judicial power or authorizing him to issue either form of warrants.
¶4By these two chapters there is recognized substantial distinctions between the two.
¶5Under ch. 361 the magistrate, upon it appearing that an *450offense has been committed, shall issue a warrant for the arrest of the person accused (sec. 361.02). He is not required to determine at that stage of the proceedings anything more than that an offense has been committed; he is not then required to also determine that the person against.whom the warrant issues is the probable offender. That- important feature does not come into the proceedings or within the statute until the time of the preliminary examination before the magistrate and with the then opportunity given a person charged to hear and examine the witnesses (secs. 361.12, 361.13). After such hearing then again must the magistrate determine that a!n offense has been committed, and then, and now for the first time, find that there is probable cause to believe some particular individual guilty (sec. 361.18), and no statutory distinction can be found between the nature of the judicial power to be exercised when finding probable cause as to the defendant being the one who committed the offense and the same power to determine that an offense has been committed. On the other hand, under ch. 363 there must be a judicial determination on two distinct features before the search warrant can be issued, namely: it must be shown that property has been taken, etc., and further that it is concealed in some particular house or place (sec. 363.01).
¶6While it is true that in the provisions of both these chapters the word “warrant” is used without any descriptive word in connection with it, and the same is true in the constitutional provision above stated, yet the inherent distinctions between the two are not thereby minimized or destroyed. The execution of the warrant for arrest merely brings a person before the court for a hearing and further proceedings, while as to the search warrant its function is practically over at the moment it is executed. The principal office of the search warrant is to obtain the evidence not otherwise obtainable to be used in the prosecution of some individual. It is therefore protected by another provision of the same article *451of our constitution, sec. 8, which reads: “No person shall be compelled in any criminal case to be a witness against himself/’ and citations are unnecessary that such additional constitutional safeguards apply to the evidence obtained by a search warrant such as was used in this case. Such second constitutional safeguard in said sec. 8 has no applicability to the issuing or serving of the ordinary warrant of arrest.
¶7To summarize: The warrant for arrest requires but one prerequisite, a judicial conclusion that an offense has been committed; the search warrant requires not only that one. but the added one that the person or place to be searched is the probable person or place.
¶8This court has recently recognized the substantial distinctions between the two. In Bergman v. State, 189 Wis. 615, at p. 618 (208 N. W. 470), it said: “The proceeding in relation to a search warrant is in the nature of an investigation, and differs materially in its objects and purposes from one instituted for the arrest of an offender for the commission of a criminal offense.”
¶9Because of the substantial difference between these two, it by no means follows that even if the warrant for arrest could be issued by the clerk of the court that the search warrant may also be so issued.
¶10In any event it is only after and by the exercise of judicial power that the search warrant in this state can be lawfully issued under the constitution, for this court has expressly held that the issuing of a search warrant is.a judicial, not a ministerial or administrative act. State v. Baltes, 183 Wis. 545, 552, 198 N. W. 282; State v. Blumenstein, 186 Wis. 428, 430, 202 N. W. 684; Hansen v. State, 188 Wis. 266, 268, 205 N. W. 813. It is treated as such in Frihart v. State, 189 Wis. 622, 624, 208 N. W. 469. It is so held in People v. Fons, 223 Mich. 603, 606, 194 N. W. 543, saying: “In determining probable cause the magistrate is called upon to perform a judicial act;” so again in Toms v. Judge of *452Recorders Court, 237 Mich. 413, 212 N. W. 69; in State v. Lock, 302 Mo. 400, 419, 259 S. W. 116, 123, it is said that such “is a judicial function which may not be delegated.” To the same effect is Cox v. Perkins, 151 Ga. 632, 107 S. E. 863, 16 A. L. R. 918. In Rosanski v. State, 106 Ohio St. 442, 140 N. E. 370, holding that there need be no finding of probable cause as a basis for issuing a search warrant and that such may be issued by a clerk, it is expressly held that such is a ministerial act, and that case therefore can have no weight in this state. See, also, Wadley v. McCommon, 154 Ga. 420, 114 S. E. 357.
¶11Being a judicial act, therefore, and as much so as in the necessary finding of probable cause as to a defendant’s guilt of the offense in binding over for trial (sec. 361.18, Stats.), there certainly should be found some express power to grant, and some express grant of such judicial power on such an administrative or ministerial officer as a clerk of court.
¶12Much weight is given in the majority opinion to the long practiced statutory power of the clerk of the circuit court to enter default judgments under sec. 270.62, Stats. The question as to the validity of such practice was presented in Wells v. Morton, 10 Wis. 468, and both majority and minority opinions there (pp. 469, 471, 472, and 477) are expressly in accord that such entry of judgments is not by virtue of the transfer to the clerk of any of the judicial power vested in the courts by sec. 2, art. VII, Const. In no subsequent case can it be found that this court has, until now, declared that a clerk of a court can be given judicial power. The cases of Ryan v. State, 83 Wis. 486, 53 N. W. 836; Sheffel v. State, 97 Wis. 377, 72 N. W. 888; and Pooler v. State, 97 Wis. 627, 630, 73 N. W. 336, all referring to this subject matter, did not have the question here squarely before them and did not rule upon it. The very limited authority as a ministerial officer that the clerk of the circuit court has in the entry of default judgments is shown in Electric Appliance Co. v. *453Warren, 115 Wis. 477, 478, 91 N. W. 970, and the well recognized rule is that application to open just such judgments must be made to a real judicial officer and not to the clerk who entered them. Marshall Field & Co. v. Fishkin, 180 Wis. 149, 154, 192 N. W. 463.
¶13The suggestion that possibly the legislature (undoubtedly unconsciously, however) dipped into a reservoir of judicial power, viz. sec. 23, art. VII, Const., quoted by the majority opinion, in making this grant by the special statute, ch. 24, Laws of 1895, giving to a clerk of an inferior court far greater power than any conferred on the higher constitutional officer, the clerk of the circuit court, and as presented in the majority opinion, seems rather far-fetched and is certainly novel.
¶14It has never heretofore been even suggested that such sec. 23, art. VII, has ever been looked to in support of judicial power other than that in the creation of the well known and long established office of court commissioner. The very guarded exercise heretofore of this power to create such subordinate judicial office is quite indicative of the idea that the legislature has had a consistent theory favoring a very restrictive use of such grant or source of power. The number of such officers has always been expressly limited, viz. originally by sec. 75, ch. 10, R. S. 1849, one to the county, by amendment thereafter, up to six per county, except in counties having more than one circuit judge (sec. 252.14) ; express statutes give county judges the power of court commissioners, Laws of 1848, sec. 18, p. 23; sec. 252.16; so, also, as to special municipal courts, ch. 651, Laws of 1907, sec. 2523 — 8, Stats. 1911; no inferior courts, such as a municipal court like the one here in question, appear to have ever had the power to appoint such; their powers are expressly defined, sec. 252.15; their fees regulated, sec. 252.17; no illustration is afforded of any single prior instance in the state’s history where it has been asserted or claimed that said *454sec. 23, art. VII, Const., supra, has been considered as a legislative source of power for any other office or officer than court commissioner.
¶15That even such an officer as justice of the peace, of constitutional recognition and dignity, takes nothing by implication, has been the rule from first to last in this state: Cox v. Groshong, 1 Pin. 307, 312 (1843); State v. Kriegbaum, ante, p. 229, 215 N. W. 896 (1927), and would seem to require a holding that power to issue a “warrant” (for so the law here reads) does not carry with it the power to perform the judicial and twofold duties required for search warrants — the one process that is fettered by two constitutional provisions.
¶16If the power to issue search warrants may be conferred upon such officers as clerks of court, there would seem no good reason why they may not also be empowered to determine whether probable cause exists for binding over for trial; to fix the punishment on pleas of guilty; or even to try offenders.
¶17For the above reasons I dissent.
¶18I am authorized to state that Mr. Justice Crownhart joins with me in this dissent.