54. Power of legislature to confer or take away jurisdiction.

55. Power of legislature to impose other than judicial duties on judges. 56. General powers and duties of judges.

57. Power to act in another district.

58. Authority at chambers.

59. Authority to act in vacation.

60. De jure and de facto judges.

61. Special judges.

62. Judges disqualified by interest or otherwise.

63. Bias and prejudice of judges as affecting jurisdiction.

64. Liability of judge acting without jurisdiction.

53. DEFINED.-A judge is defined to be "a public officer whose function is to declare the law, to administer justice in a court of law, to conduct the trial of causes between litigants according to legal forms." But, as we are here to consider it, the term must be given a much broader scope and meaning so as to include any and all persons authorized to decide litigated questions, but who do not constitute or act as a court, such as commissioners, referees, arbitrators, and others appointed for a temporary purpose, but whose decisions are binding upon the parties either with or without the confirmation of such decisions by a court, and other officers acting partly in a judicial and partly in an executive, legislative, or ministerial capacity. Strictly speaking, however, such officers, although exercising judicial functions, are not judges, and

1 Anderson's Dic. of Law, 574.

"A judge is a public officer appointed to decide litigated questions according to law; an officer so named in his commission, and who presides in some court." 12 Am. & Eng. Enc. of Law, 2; Bouv. Law Dic., title, Judge.

Anderson's Dic. of Law, 575.

3 People v. Mann, 97 N. Y. 530, 532; 49 Am. Rep. 556.

are not included in legislation applicable to judges by that designation. But, as affecting their action as judicial officers, they may properly be so treated, although not always to be controlled by the same rules of law as affecting the question of jurisdiction."

At the present day justices of the peace are judges so far as the rules of law affecting their judicial acts are concerned. So members of a court martial are judges. In many of the states the term "justice" is used in designating the office instead of judge, but not as distinguishing one from the other as different officers. A judge may be authorized to perform purely ministerial or executive duties, but when so acting he can not be regarded as a judge, nor will the acts done by him be treated as judicial because they are performed by a judicial officer. On the other hand, unless prohibited by constitutional provisions, the legislature may confer upon executive or legislative bodies or officers, judicial functions, and when acting judicially, they are controlled by the rules of law applicable to judges.'

54. POWER OF LEGISLATURE TO CONFER OR TAKE AWAY JURISDICTION. The powers with which judges are clothed, may be constitutional or legislative. If constitutional, they are beyond the power of the legislature to limit or control. And where a court is created and jurisdiction conferred upon it by the constitution, the legislature can not

1

1 People v. Carr, 100 N. Y. 236; 3 N. E. Rep. 82; People v. Mann, 97 N. Y. 530, 532; 49 Am. Rep. 556; Foot r. Stiles, 57 N. Y. 399.

2 Foot v. Stiles, 57 N. Y. 399; Post, sec. 62.

3 Ante, secs. 6, 7; Baldwin v. McArthur, 17 Barb. (N. Y.) 414, 423.

* Vanderheyden . Young, 11 Johns. (N. Y.) 150.

5 Anderson's Dic. of Law, 575.

6 Post, sec. 55; People v. Bush, 40 Cal. 344; Spring Valley W. W. v. Bryant, 52 Cal. 132, 136; People v. Provines, 34 Cal. 520.

• Ante, sec. 24; In re Constitutionality of Senate Bill, 21 Pac. Rep. 471; Harris r. Vandeveer, 21 N. J. Eq. 424; Hutkoff r. Demorest, 103 N. Y. 377; 8 N. E. Rep. 899; Landers v. Staten Island R. R. Co. 53 N. Y. 450; Alexander v. Bennett, 60 N. Y. 204.

authorize a commissioner appointed for the purpose to perform the duties imposed upon the court. Not only so, but it is generally held that the legislature can not confer judicial powers upon non-judicial officers. Nor can such powers be conferred by consent of parties. But it must not be understood from this that the same officer may not perform both ministerial or executive and judicial functions. It is not an uncommon practice to confer upon the same officer or body of officers these different duties.* And when exercising judicial functions, such an officer is a judicial officer, but when acting in a legislative, executive, or administrative capacity, he belongs, for the time being, to one of the other classes of officers as the case may be. But whether the duties pertaining to different departments of government can be imposed upon and exercised by the same officer, must depend upon the constitution under which the office exists."

In many, if not most of the states, the different departments of government are kept entirely separate from each other, and it is provided by the constitution that an officer of one department shall not perform the duties pertaining to another department. Under such a constitutional inhibition, the legislature can not confer judicial powers upon an officer of the legislative or executive department.

The rule is the same where the constitution vests all ju

1 Ante, sec. 29, p. 194; State v. Noble, 118 Ind. 361; 21 N. E. Rep. 244; 12 Am. & Eng. Enc. of Law, 4; Vandercook v. Williams, 106 Ind. 345, 356; 1 N. E. Rep. 619; 8 N. E. Rep. 113.

2 Vandercook v. Williams, 106 Ind. 345, 356; 1 N. E. Rep. 619; 8 N. E. Rep. 113; State v. Noble, 118 Ind. 350; 21 N. E. Rep. 244; Gregory v. The State, 94 Ind. 384; 48 Am. Rep. 162; Stone v. Elkins, 9 Cal. 125. 3 Hoagland . Creed, 81 Ill. 506.

notes;

Post, sec. 55; Ante, sec. 53; 12 Am. & Eng. Enc. of Law, 2, 6, 7, People v. Provines, 34 Cal. 520; People v. Keeler, 99 N. Y. 463, 479; Keeler v. McDonald, 2 N. E. Rep. 615; People v. Bush, 40 Cal. 344.

5 Post, sec. 55.

Vandercook v. Williams, 106 Ind. 345, 357; 1 N. E. Rep. 619; 8 N. E. Rep. 113; Elmore v. Overton, 104 Ind. 548; 4 N. E. Rep. 197; Shoultz v. McPheeters, 79 Ind. 373; Pressly v. Lamb, 105 Ind. 171, 185; 4 N. E. Rep. 682; Hall v. Marks, 34 Ill. 358.

dicial powers in the courts, without any direct provision against the exercise of such powers by non-judicial officers.' But there are many duties, judicial in their nature and which call for the exercise of judgment, which are held not to be strictly so, and, therefore, not within these constitutional inhibitions. And such a provision of the constitution has the effect to abrogate statutory provisions then in force vesting jurisdiction in officers not named in the constitution, and of depriving such officers of the powers thus given them.3

Where judicial power is vested by the constitution in

1 Ante, sec. 29; State v. Noble, 118 Ind. 350; 21 N. E. Rep. 244; Van Slyke v. Trempealeau County, etc., Ins. Co., 39 Wis. 390; 20 Am. Rep. 50; Attorney-General v. McDonald, 3 Wis. 805; State v. Maynard, 14 Ill. 419; Kilbourn . Thompson, 103 U. S. 168, 192.

2 Wilkins v. State, 113 Ind. 514; 16 N. E. Rep. 192; Elmore v. Overton, 104 Ind. 548; 4 N. E. Rep. 197; Kuntz v. Sumption, 117 Ind. 1; 19 N. E. Rep. 474; In re Stevens, 83 Cal. 322, 332; 23 Pac. Rep. 379.

"Scrupulous care was taken by the framers of our constitution to distribute the powers of government, and to define and fix the rights and powers of the great departments to which these rights and powers were distributed. The boundaries of each are marked with certainty and precision. There can be no doubt where the judicial power is vested. Section 1, of article 7, as originally framed, read thus: "The judicial power of the state shall be vested in a supreme court, in circuit courts, and in such inferior courts as the general assembly may establish.' On the 14th day of March, 1881, the electors of the state, at a special election held on that day, ratified an amendment to the section and article named. This amendment reads as follows: 'The judicial powers of the state shall be vested in a supreme court, circuit courts, and such other courts as the general assembly may establish.' All judicial powers are, by force of this provision, vested in the courts of the state. The legislature has no authority to invest any other tribunals than the courts with judicial powers.

"It is certain that the legislature can not exercise judicial powers. The Columbus, etc., Ry. Co. v. The Board, etc., 65 Ind. 427; Doe v. Douglass, 8 Blackf. 10; Young v. The State Bank, 4 Ind. 301. Nor can these powers be vested elsewhere than in the tribunals designated or indicated by the constitution. Judicial powers can not be delegated. Taking and following as guides these fundamental principles, we are led to the conclusion that judicial powers can not be vested in officers, such as master commissioners, appointed by the judges of the courts." Shoultz v. McPheeters, 79 Ind. 373.

3

Stater. Maynard, 14 Ill. 419; Hitts v. City of Chicago, 60 Ill. 86, 92.

courts, it can not be given to judges as distinguished from the courts in which they officiate.' But whether an act to be done is in fact a judicial one which must be performed by a court or not, may sometimes be determined from the act of the legislature.2

It is held that the judge of a court may be invested with jurisdiction of matters over which his court has no jurisdiction and which are supplementary to the jurisdic

1 Spencer Creek Water Co. v. Vallejo, 48 Cal. 70.

"If we understand the drift of their argument, they assume the act has provided two distinct forums, or tribunals, in which cases of this kind may be prosecuted, one being a court, and the other a judge, and that a suit having been commenced before one, can not, for any purpose, be regarded as pending before the other. This is not stated in so many words, but it is what seems to be the purport or effect of the argument. While the expression, 'court or judge,' which runs through most of the sections in the act, seems to give color to this view, and while the act unquestionably contemplates some diversity in the procedure depending upon whether it is commenced in term time or in vacation, nevertheless, the proceeding in either case must, in contemplation of law, be regarded as pending in court. The judge, as a mere individual, has no power to hear and determine any cause involving the exercise of judicial power, nor is it competent for the legislature to clothe him with it. The organic law of the state has disposed of the whole judicial power of the government by investing it in certain courts specifically mentioned in the constitution, and the legislature, therefore, has none to confer upon any one. It can only establish or provide, by appropriate legislation, for the organization of such courts as the constitution has expressly provided for, and when so organized or established, they derive their powers directly from the people, in their organized political capacity, through the constitution. Courts are political agencies-mere legal entities-established under the constitution for governmental purposes, and in contemplation of law have a separate existence distinct from the judges who preside over them; otherwise, when the judge of a court dies, the court itself would cease. A judge, therefore, has no judicial power outside of the court in which he officiates. He is the tangible, living oracle of the court. He speaks and acts for it, and in law is its only accredited agent. When discharging the judicial functions of his office, he is the court in concrete form, and in this sense he is often called the court, but strictly and technically speaking, the judge and the court are wholly distinct. To every lawyer these general propositions are so palpably true, they require no illustrations or authorities to support them. The People v. Maynard, 14 Ill. 419; Field v. The People, 2 Scam. 181." Bowman v. Venice, etc., Ry. Co., 102 Ill. 459, 467.

2 In re Stevens, 83 Cal. 322, 333; 23 Pac. Rep. 379.