as a rule of court remains unrepealed it can not be dispensed with or suspended in a particular case. But the general rule on the subject is that a court has the power, at all times, to suspend its own rules, or to except particular cases from their operation whenever the purposes of justice require it. This is a power, however, that should be rarely exercised, and only for the purpose of avoiding injustice, as the premanency of rules of court, and their uniform enforcement and application are necessary to give uniformity to the practice and place all litigants upon an equal footing. Whether a rule shall be suspended or not is a matter of discretion with the court, and can not be claimed as a right. A court may, by rule, supply an omission in the law as to the practice affecting the manner of bringing cases before it. But where a statutory mode of procedure is provided a court can not, by rule, prescribe a different mode. Courts have full power to construe their own rules. And in some cases it is held that an appeal will not lie from an order of a court that gives a construction to its rules. This is no doubt true where the question is one of discretion, and the rule affects merely the time when a thing shall be done, or the like, but it can not be true that a court may, in all cases, disregard, misconstrue, or violate its own rules, and that no appeal will lie from its action. But unless it clearly appears, on appeal, that

to all cases which come within it, until it is repealed by the authority which made it." Thompson v. Hatch, 3 Pick. (Mass.) 512.

2 United States v. Breitling, 20 How. 252; Clark v. Brooks, 26 How. Prac. 285; Martine v. Lowenstein, 68 N. Y. 456; Manhattan Life Ins. Co. v. Francisco, 17 Wall. 672; Symons v. Bunnell, 20 Pac. Rep. 859 · Sheldon v. Risedorph, 23 Minn. 518; Pickett v. Wallace, 54 Cal. 147.

2 Walcott v. Schenck, 23 How. Prac. 385.

4 Manhattan Life Ins. Co. v. Francisco, 17 Wall. 672.

5 Pieper v. Centinella Land Co., 56 Cal. 173.

6 Sommers v. Sommers, 81 Cal. 608; 22 Pac. Rep. 967; Wyandotte Rolling Mills Co. v. Robinson, 34 Mich. 427; Angel v. Plume & Atwood Man. Co., 73 Ill. 412.

'Martine v. Lowenstein, 68 N. Y. 456; Bair v. Hubartt, 139 Pa. St. 96; 21 Atl. Rep. 210.

8

Thompson v. Hatch, 3 Pick. 512; ex parte Whitney, 13 Pet. 404, 407;

a rule of the court below has been violated, the construction put upon it by the latter court will not be reviewed.' A court may establish a rule for its government by a long and continuous acquiescence in a particular course of practice without having any written rule on the subject." A court can not be compelled, by mandamus, to comply with the rules of the court, although such rules are prescribed by a higher court.3

While the right to grant new trials is inherent in every court of general jurisdiction, the law-making power may control the right and prescribe when and how applications therefor may be made, and the terms upon which new trials may be granted, and these limitations are binding on the courts. But statutory provisions authorizing courts of general jurisdiction to grant new trials are regarded as limitations of, and not grants of jurisdiction.

It has been doubted, in some cases, whether inferior courts possess inherent power to grant new trials. And in others it has been held that they have no such power unless expressly conferred upon them by statute." These inherent powers are held in some cases not to belong to inferior courts. And the question whether a court is one of superior or inferior jurisdiction is sometimes made to turn upon the other question whether it has inherent power to punish for contempt. But usually the dividing line is

Bair v. Hubartt, 139 Pa. St. 96; 21 Atl. Rep. 210; Nevin v. Morrison. 18 Atl. Rep. 636.

1 Nevin v. Morrison, 18 Atl. Rep. 636.

2 Fullerton v. Bank of the United States, 1 Pet. 604, 612.

3 Ex parte Whitney, 13 Pet. 404, 407.

Fox v. Meacham, 6 Neb. 530; Commonwealth v. McElhaney, 111 Mass. 439.

5 Commonwealth v. McElhaney, 111 Mass. 439.

People v. Sessions of Chenango, 2 Caine's Cases (N. Y.), 318; Foist v. Coppin, 35 Ind. 471; Vogel v. Lawrenceburg Tobacco Man. Co., 49 Ind. 218; Brown v. Goble, 97 Ind. 86.

7 In re Hawley, 104 N. Y. 250; 10 N. E. Rep. 352, 357; Doctor v. Hartman, 74 Ind. 221, 225; Foist v. Coppin, 35 Ind. 471; In re Mason, 43 Fed. Rep. 510, 515; Commonwealth v. McElhaney, 111 Mass. 439.

8 Ante, secs. 6, 7.

drawn between courts of record and courts not of record.1 Later decisions show a tendency to extend the right to exercise these powers to all courts, at least with respect to contempts.2

As to inferior courts, it is sometimes held that they have power to punish for a direct contempt, but not for a constructive one.3 But the better rule is that all courts have the power to punish for contempt independent of statutory authority. There is no good reason for holding that a court which needs protection, by the exercise of the power, because of its inferiority and weakness, should be denied the authority. The power is confined to courts, and can not be exercised by executive or ministerial officers.*

A court has unlimited power to amend its records to conform to the facts. But, as to matters of substance, the power to amend is generally held to cease with the term at which the record is made."

In case of an appeal, it is held that the court below has power to amend its records at any time before final decree in the appellate court."

28. POWERS OF ILLEGAL AND DE FACTO COURTS.-The acts of an illegal court, or one not authorized by law, are void.' But there is a marked distinction, in this respect, between a court and the judge of a court. If there be a legally constituted court, but the person claiming to be the judge thereof has not been legally elected or appointed as such

1 Ante, sec. 7; In re Mason, 43 Fed. Rep. 510, 515.

In re Monroe, 46 Fed. Rep. 52; Clark v. People, Breese (Ill.), 340; 12 Am. Dec. 177, 180, note; Rottman v. Bartling, 37 N. W. Rep. 668; Wyatt v. People, 28 Pac. Rep. 961.

3 Clarke v. People, 12 Am. Dec. 181, note.

Langensberg v. Decker, 31 N. E. Rep. 190.

Territory v. Christenson, 31 N. W. Rep. 855, note; Sugg v. Thornton, 73 Tex. 666; 9 S. W. Rep. 145; Harris v. State, 24 Neb. 803; 40 N. W. Rep. 317.

'Ex parte Henderson, 84 Ala. 36; 4 South. Rep. 284.

7 People v. Toal, 85 Cal. 333; 24 Pac Rep. 603; Rose v. Himely, 4 Cranch, 241, 267.

judge, or is incompetent for any other reason to hold the court, his acts may be valid as a de facto judge the same as any other de facto officer.' But, if one is assuming to act as the judge of a court that has no existence, whether he has been duly or regularly elected or appointed to the position or not, is immaterial. His acts are absolutely void. It is not sufficient that the individual holding the court is in fact acting as judge. It must appear that he is holding under color of office. It is held, therefore, that, where an attorney assumes to act as judge of the court under a statute attempting to authorize him to do so, his acts are not the acts of a court, and are wholly void.3 But, in some of the states, attorneys are authorized, under certain conditions, to act as judges, temporarily, and their acts are held to be valid.*

It is said that, "where a court or office is established by a legislative act, apparently valid, and the court has gone

1 1 People v. Sassovich, 29 Cal. 480, 485; People v. Burbank, 12 Cal. 378, 386; Wilcox v. Smith, 5 Wend. 231; 21 Am. Dec. 213, 217, note; Moses v. Julian, 45 N. H. 52; 84 Am. Dec. 114, 133, note; People v. Terry, 108 N. Y. 1; 14 N. E. Rep. 815; State v. Carroll, 38 Conn. 449; 9 Am. Rep. 409; Sheehan's Case, 122 Mass. 445; 23 Am. Rep. 374.

2 People v. Toal, 85 Cal. 333; 24 Pac. Rep. 603; The Chicago & N. W. Ry. Co. v. Langlade Co., 56 Wis. 614, 627; 14 N. W. Rep. 844.

But, conceding that the police court of Los Angeles was not legally established, it is further contended that the fact can not avail the appellant in this case; that, whether it was or not, the pretended judge thereof was a de facto judge, and his right to the office, or his power and jurisdiction, can not be questioned in this collateral way, but must be raised by a direct action for that purpose. We think this point would be well taken if this were an attempt to test the right of some one to hold an existing office. (Hull . Superior Court, 63 Cal. 174-179; Buckner v. Veuve, 63 Cal. 304; Fraser v. Freelon, 53 Cal. 647.) But the question presented here is not as to the right of a particular person to hold an existing office. There can not be a de facto judge of a court that has no existence." People v. Toal, 85 Cal. 333, 338; 24 Pac. Rep. 603.

"An officer de facto is one who comes into a legal and constitutional office by color of a legal appointment or election to that office." People v.. White, 24 Wend. (N. Y.) 520, 539.

3 Van Slyke v. Trempealeau F. M. F. Ins. Co., 39 Wis. 390; 20 Am. Rep. 50.

4 Rogers v. Beauchamp, 102 Ind. 33; 1 N. E. Rep. 185; Kenney Phillipy, 91 Ind. 511.

into operation or the office is filled and exercised under the act, it is a de facto court or office, and its legality can not be called in question collaterally, or except in a direct proceeding by the state for state purposes. But it is believed that this doctrine, so far, at least, as it applies to courts, can not be sustained by reason or authority.1

29. CONSTITUTIONAL LIMITATIONS OF JURISDICTION.-Under the constitutions of the United States and of the several states, the government of each is divided into different departments, neither of which can encroach upon or exercise the powers and functions of the other. The "legislature makes, the executive executes, and the judiciary construes the law." And, where one of these departments of government assumes to perform the duties, or exercise the powers, of another department, or to control its action, its acts are void. So, if one department of government attempts to, or does, interfere with or obstruct another in the performance of its duties, it may be prevented from so interfering. But this doctrine does not prevent the judicial department of government from enforcing the performance of merely ministerial duties by officers of other departments. But the jurisdiction of the courts to enforce or control action on the part of officers of other departments does not extend to acts calling for the exercise of judgment or discretion, or to executive or political acts." The principle that authorizes a court to enforce the per

1 Kelly v. Bemis, 64 Am. Dec. 54, note.

People v. Nelson, 133 Ill. 565; 27 N. E. Rép. 217, 226; Cooley's Const. Lim., * pp. 87-93; Anderson's Dic. of Law, 342; State v. Hyde, 121 Ind. 20; 22 N. E. Rep. 644.

3

4

Wayman v. Southard, 10 Wheat. 1, 46.

Baggs' Appeal, 43 Pa. St. 512; 82 Am. Dec. 583; Miles v. Bradford, 22 Md. 170; 85 Am. Dec. 643.

United States v. Guthrie, 17 How. 284; State v. Doyle, 40 Wis. 175, 188; 22 Am. Rep. 692; Decatur v. Paulding, 14 Pet. 497, 514.

Ex parte Echols, 39 Ala. 698; 88 Am. Dec. 749; United States v. Guthrie, 17 How. 284; Brashaer v. Mason, 6 How. 92, 97; Miles v. Bradford, 22 Md. 170; 85 Am. Dec. 643; Decatur v. Paulding, 14 Pet. 497, 514; March v. The State, 44 Tex. 64; Marbury v. Madison, 1 Cranch, 137; Jones v. United States, 137 U. S. 202; 11 Sup. Ct. Rep. 80.