Not conclus! ance with the law. In presenting a claim to the county board for allowance, no formal proceedings are at all necessary, no pleadings of any sort are required to be filed, no process issued for any purpose whatever connected with the matter, and no formal judgment follows either the rejection or allowance of a claim by the board. The claim, when so made, is simply audited, allowed, or rejected, as justice and reason seem to require. In case of an appeal to the district court, the appeal is docketed, and pleadings are filed, and the cause then in all respects proceeds in the usual and ordinary way. The cause is then, in every sense of the term, in a court, and is also, then, in every sense of the term, a suit. Now, what is usually understood by the words "court" and "suit," where we find them in legislative enactments or in legal proceedings? Blackstone says a "court is a place wherein justice is judicially administered." To administer justice judicially, there must be a judge, and usually, though not always, there are also other officers, such as clerk and sheriff or marshal. That also implies the right to issue compulsory process to bring parties before the court, so that jurisdiction may be acquired over the person or property which forms the subject-matter of the controversy. To administer justice judicially two parties to a controversy must exist; there must be a wrong done or threatened, or a right withheld, before the court can act. Then a hearing or trial follows, and the "justice to be judicially administered" results in a formal judgment for one of the parties to the controversy. The judgment to be pronounced usually has full binding force, unless modified or reversed. The courts can issue the proper process to carry their judgments into effect, and in that way subserve the great ends of their creation. But this is not so with the county boards in this state. They are not clothed with the necessary power to issue compulsory process to bring parties litigant before them. They cannot, in cases like the one under consideration, issue process to compel the attendance of witnesses. They cannot and do not enter formal judgments in cases presented to them for their consideration. They have no authority to execute any judgments if they should thoughtlessly undertake to enter them. have but one party before them on whom their orders can operate. In short, the county board is so totally unlike a court, and so different in its constitution and its objects, that I am unable to see any similarity between them. They If the county board cannot be regarded as a court, it will follow as a necessary consequence that no suit was pending in this case until the appeal from the order of the board was filed and docketed in the district court. Two parties to a suit seem to be almost indispensable: one who seeks redress, and the other who commits a wrong or withholds what is justly due another. The parties must stand in such relation to each other that the machinery of the court will operate on them when their powers and their aid are invoked. No such a con "If it was a sut vs the Co for the recovery of & in the sense urged by counsel, then the clannant was the of the County the off, and the commrs were we the deschige of a double duty; actg ; acty as a court, & also as the repress of he of, or otherwise He Co.com be said to be Euch. Such a construct as contended frappar ently leads to an absurdity It und fallon that the at the party of were virtually the same. It is an axiom of the law & no man can be a judge in lusorun Ch. 1) EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE. 13 case". 591. dition of things existed so long as this claim remained before the I conclude, then, that the board of county commissioners of Colfax The motion to remand is overruled." MCCRARY, Circuit Judge, concurs. KENTUCKY & I. BRIDGE CO. v. LOUISVILLE & N. R. CO. JACKSON, Circuit Judge. * * * In support of their position that judicial powers are conferred upon and exercised by the commis- The Sut It Comm. . Biel filed 7 “The right of appeal from the action of boards in their administrative ad of Commrs had character is frequently conferred by statute. The appeal in such cases is allowed's clann for not permitted because the action of the board is considered judicial; but it fus as auditor in is granted as a method of getting the matter involved before a court, that it adon this salary may be determined Judicially." Board of Commissioners of Huntington Coun ty v. Heaston, 144 Ind. 583, 591, 41 N. E. 457 (1895). Stat gave! See, also, United States v. Ritchie, 17 How. 525, 15 L. Ed. 236 (1854), 659) porn of " allowing & Only a portion of the opinion is printed. + Congr. appts a bd of comm's to settle private ed elamus in Cal. They were to certify then all L Bd His decision to the bust arty of the us. Either he or the claimant ed appeal & the decis I seld: presentato of to the dust of of the US. to have it reviewed. The pets for review must act forth clann not mistituth the Frauscript of the report of the bed together with Rul dicumentary and other evide of a port vs Cox.sup. on wh it was founded. The ct sud render just on the pleads evidence in the cause upon, suck further curd as may be taken by order of the said et" Qh was the add anoth aventad a tribunal nota et but with judi "ponses. Hela no: the suit in the west it is the rea as an orist proceeds. The removal of the transcnpt pakus remedence with the boa act Hild Comma • conclus". spects to an opinion, is delivered, filed, and published; seventh, the order of the commission is recorded by its secretary, as decrees in equity are recorded by clerks of court; and, eighth, a copy of such order, under the seal of the commission, issues to the defendant, requiring obedience thereto. This mode of procedure certainly conforms in many respects to the regular practice of courts, and is no doubt authorized by the law; but does it involve the performance of judicial acts, and the exercise of judicial powers, by the commission, as claimed? It is well settled that Congress, in ordaining and establishing "inferior courts," and prescribing their jurisdiction, must confer upon the judges appointed to administer them the constitutional tenure of office, that of holding "during good behavior," before they can become invested with any portion of the judicial power of the government; and if the act to regulate interstate commerce does in fact establish an inferior court, the commissioners appointed thereunder for certain fixed periods are clearly not such judges as can be invested with any portion of the judicial power of the United States, and their decision in matters affecting personal or property rights could have no force or validity. But does the interstate commerce law undertake either to create an "inferior court" or to invest the commission appointed thereunder with judicial functions? We think not. While the commission possesses and exercises certain powers and functions resembling those conferred apon and exercised by regular courts, it is wanting in several essential ach not constituents of a court. Its action or conclusion upon matters of complaint brought before it for investigation, and which the act desigtes as the “recommendation," "report," "order," or "requirement" of the board is neither final nor conclusive; nor is the commission invested with any authority to enforce its decision or award. Without reviewing in detail the provisions of the law, we are clearly of the opinion that the commission is invested with only administrative powers of supervision and investigation, which fall far short of making the board a court, or its action judicial, in the proper sense of the term. The commission hears, investigates, and reports upon complaints made before it, involving alleged violations of or omission of duty under the act; but subsequent judicial proceedings are_contemplated and provided for, as the remedy for the enforcement, either by itself or the party interested, of its order or report in all cases where the party complained of or against whom its decision is rendered does not yield voluntary obedience thereto. By the fourteenth and sixteenth sections of the act it is provided that the report or findings. made by the commission "should thereafter, in all judicial proceedings, be deemed prima facie evidence as to each and every fact found." The commission is charged with the duty of investigating and reporting upon complaints, and the facts found or reported by it are only given the force and weight of prima facie evidence in all such judicial proceedings as may thereafter be required or had for the Comm2 caut enfadates A deces" enforcement of its recommendation or order. The functions of the commission are those of referees or special commissioners, appointed to make preliminary investigation of and report upon matters for sub- 3, sequent judicial examination and determination. In respect to interstate commerce matters covered by the law, the commission may be regarded as the general referee of each and every Circuit Court of the United States, upon which the jurisdiction is conferred of enforcing the rights, duties, and obligations recognized and imposed by the act. It is neither a federal court under the Constitution, nor does it exercise judicial powers, nor do its conclusions possess the efficacy of judicial proceedings. This federal commission has assigned to it the duties, and performs for the United States, in respect to that interstate commerce committed by the Constitution to the exclusive care and jurisdiction of Congress, the same functions which state commissioners exercise in respect to local or purely internal commerce, over which the states appointing them have exclusive control. Their validity in their respective spheres of operation stands upon the same footing. The validity of state commissioners invested with powers as ample and large as those conferred upon the federal commissioners has not been successfully questioned, when limited to that local or internal commerce over which the states have exclusive jurisdiction; and no valid reason is seen for doubting or questioning the authority of Congress, under its sovereign and exclusive power to regulate commerce among the several states, to create like commissions for the purpose of supervising, investigating, and reporting upon matters or complaints connected with or growing out of interstate commerce. What one sovereign may do in respect to matters within its exclusive control, the other may certainly do in respect to matters over which it has exclusive authority. * * * We are also clearly of opinion, that this court is not made by the act the mere executioner of the commissioner's order or recommendation, so as to impose upon the court a nonjudicial power. The principle announced in these cases would sustain counsel's position, if this court, under the provisions of the interstate commerce law, is limited and restricted to the mere ministerial duty of enforcing an order or requirement of the commission, whether it be regarded as a judicial or a nonjudicial tribunal. But such is not, in fact, the jurisdiction which this court is called upon to exercise. The suit in this court is, under the provisions of the act, an original and independent proceeding, in which the commission's report is made prima facie evidence of the matters or facts therein stated. It is clear that this court is not confined to a mere re-examination of the case as heard and reported by the commission, but hears and determines the cause de novo, upon proper pleadings and proofs, the latter including not only Hayburn's Case, 2 Dall. 409, 1 L. Ed. 436 (1792); U. S. v. Ferreira, 13 How. 40, 14 L. Ed. 42 (1851). Facts FN. 564 the prima facie facts reported by the commission, but all such other and 5 HARTMAN v. MAYOR, ETC., OF CITY OF WILMINGTON. Certiorari by Maria C. Hartman against the Mayor and Council The plaintiff was the owner of a dwelling house in the city of Wilmington, against which proceedings were taken by the board of health for the abatement of an alleged nuisance resulting from a wet cellar. The record upon which certiorari issued simply disclosed that the executive officer of the board of health reported the following nuisance (among others): "M. C. Hartman, 705 South Harrison St., wet cellar." The provisions of the statutes, charter, and ordi 10 See Sidney and Beatrice Webb, The Parish and the County, p. 419: Id. p. 309: "And though, under particular statutes, individual justices or 648 (1882). Ach gave to board of Co. Commers pole ofinal jurison offranty • revorting liquor liceuses - said "shall constitute a ct for the trial of causes for the revien of houses... shall have pole ofinal in of such caures. If hus was an attempt by the light to create a ct of law it was unconsts for commers held office for & constly presented tion of Judges of miferorets. Held; This was not an attempt to create act of law. Stat daisut call commor judges buta board. Ponsos expressly anferred to compel allende of witnesses and beed in recessy of the bed were act for Stat Gaul. has provided this mea > |