tion of a different court and taken from such court by statute.1

The question as to the power of other than judicial officers or courts to punish for contempt has frequently arisen, and it has generally been held that a legislative body does not possess general jurisdiction to punish for contempt, unless such power is expressly given by the constitution, or is necessarily implied from those constitutional functions and duties to the proper performance of which it is essential. And statutes attempting to confer such general power are unconstitutional.3

But, where the statute confers only such powers as are necessary or appropriate to enable such legislative body to perform its constitutional functions it is not in contravention of the constitution.*

1 Young v. Ledrick, 14 Kan. 92, 99.

2 Kilbourn v. Thompson, 103 U. S. 168; People v. Keeler, 99 N. Y. 463, 475; Keeler v. McDonald, 2 N. E. Rep. 615; Burnham v. Morrissey, 80 Mass. (14 Gray) 226, 239; 74 Am. Dec. 676.

3 People v. Keeler, 99 N. Y. 463, 479; 2 N. E. Rep. 615.

615.

People v. Keeler, 99 N. Y. 463, 480; Keeler v. McDonald, 2 N. E. Rep.

"The Constitution of the United States declares, in terms, that the judicial power of the United States shall be vested in one supreme court, and in such inferior courts as the congress may, from time to time, order and establish. Although no similar declaration is contained in the constitution of this state, still it is a recognized principle that, in the division of power among the great departments of government, the judicial power has been committed to the judiciary, as the executive power has been committed to the executive department, and the legislative to the legislature, and that body has no power to assume the functions of the judiciary to determine controversies among citizens, or even to expound its own laws so as to control the decisions of the courts in respect to past transactions. People v. Supervisors, 16 N. Y. 432. To declare what the law shall be, is a legislative power; to declare what it is or has been, is judicial. Thompson, J., in Dash v. Van Kleeck, 7 Johns. 498. But, notwithstanding this general division of powers, certain powers in their nature judicial are, by the express terms of the constitution, vested in the legislature. The power of impeachment is vested in the assembly. Each house is made the judge of the qualification and election of its own members. The power of removal of certain judicial officers for cause is given by the constitution to the senate and assembly, and may involve inquiries judicial in their nature, and by statute certain other officers may be removed by the senate on recom

A judge elected or appointed under a constitutional provision fixing his term of office, can not be deprived of his office by act of the legislature.1

Provision is made in many of the states for the appointment or election of a special judge, in case of the disqualification or inability of the regular judge, and such statutory provisions are usually held to be constitutional.2 But there are cases holding to the contrary.'

55. POWER OF LEGISLATURE TO IMPOSE OTHER THAN JUDICIAL DUTIES ON JUDGES. We have seen that judicial duties and functions can be performed only by judges or courts.*

mendation of the governor. 1 R. S. 123, sec. 41. I think it would be going too far to say that every statute is necessarily void which involves action on the part of either house, partaking in any degree of a judicial character, if not expressly authorized by the constitution. Where the statute relates to the proceedings of the legislative body itself, and is necessary or appropriate to enable it to perform its constitutional functions, I can not regard it as such an invasion of the province of the judiciary as should bring it within any implied prohibition of the state constitution. That instrument contains no express provision declaring any of the privileges of the members of either house, except that for any speech or debate in either house, the members shall not be questioned in any other place. Even the privilege of exemption from arrest during the sessions, is not declared. No power to keep order or to punish members or others for disorderly conduct, or to expel a member, is contained in the state constitution, as it is in the Constitution of the United States. All these matters are in this state left under the regulations of the statutes, and there is not even express authority to enact such statutes. 1 R. S., chap. 7, tit. 2. The necessity of the powers mentioned is apparent, and is conceded in all the authorities (see Cooley's Const. Lim. 133), yet it is equally apparent that statutes upon the subject must authorize some action partaking of a judicial character. If that feature is a fatal objection, it annuls all the statutory provisions in which it appears." People v. Keeler, 99 N. Y. 463, 480; Keeler v. McDonald, 2 N. E. Rep. 615.

1 People v. Dubois, 23 Ill. 498; People v. Bangs, 24 Ill. 184; State v. Leonard, 2 Pickle (Tenn.), 485; 7 S. W. Rep. 453; People v. Garey, 6 Cow. (N. Y.) 642, 645. But see People v. Morrell, 21 Wend. (N. Y.) 563.

Post, sec. 61; The State v. Williams, 14 W. Va. 851; Brown v. Buzan, 24 Ind. 194.

3

Ante, sec. 28; Van Slyke v. Trempealeau Co. F. Ins. Co., 39 Wis 390; 20 Am. Rep. 50.

Ante, secs. 29, 54.

It is equally well settled that judges, as such, can not be compelled to perform other than judicial duties.'

1 Houston v. Williams, 13 Cal. 24; 73 Am. Dec. 565; Vaughn v. Harp, 49 Ark. 160; 4 S. W. Rep. 751; In re Griffiths, 118 Ind. 83; 20 N. E. Rep. 513; Ex parte Gans, 17 Fed. Rep. 471.

"If the act assumed to require the judges of the supreme court to perform the duties of the clerk by preparing entries, or to discharge the duties of the sheriff by preparing returns for him, we suppose no one would hesitate to declare it void. The fact that the officer whose duties the act assumes to direct the judges to perform is the reporter, and not the clerk or the sheriff, can make no difference. Neither shade nor semblance of difference can be discerned by the keenest vision between the cases instanced by way of illustration and the real case. The principle which rules is this: Judges can not be required to perform any other than judicial duties. This is a rudimental principle of constitutional law. To the science of jurisprudence, it is as the axiom that the whole is equal to all its parts is to the science of mathematics. There is no contrariety of opinion upon this subject. There is no tinge of reason for asserting a different doctrine. We quote Judge Cooley's statement of the principle, although it is found in a book intended for beginners, because it expresses the rule clearly and tersely. This is his statement: Upon judges, as such, no functions can be imposed except those of a judicial nature.' Principles of Const. Law, 53.

"The authorities upon this point are many and harmonious. Hayburn's case, 2 Dall. 409, n.; U. S. v. Ferreira, 13 How. 40, n.; Auditor v. Railroad Co., 6 Kan. 500; Supervisors of Election, 114 Mass. 247; Rees r. City, 19 Wall. 107; Heine v. Commissioners, Id. 655; Smith e. Strother, 8 Pac. Rep. 852; Burgoyne . Supervisors, 5 Cal. 9; People v. Town, 6 Cal. 143; Hardenburgh . Kidd, 10 Cal. 402; McLean v. Bank, 81 Kỵ. 254; State v. Young, 29 Minn. 429; 9 N. W. Rep. 737; Shepard v. City, 4 S. E. Rep. 635.

"The preparation of the syllabi is an essential part of the reporter's work. Head-notes may be copyrighted, but the opinions of the court can not be. The syllabi or head-notes may be copyrighted, because they are the work of the reporter, and not of the judges. The work is essentially and intrinsically ministerial, and therefore can not be performed by the judges or the court. The soundness of the rule stated by Judge Cooley is beyond controversy, and it is hardly necessary to go further, since it is conclusive here.

"It is our judgment that the petition brings before us these three questions: (1) Can the legislature impose ministerial duties upon the court? (2) Can the legislature add duties to those devolved upon the judges by the constitution? (3) Can the legislature, in violation of the constitutional inhibition, authorize the judges to discharge the essential duties of a reporter? Upon these questions, we express our judgment, and sustain the petitioner's contention; but we neither express nor in

But in this judges and courts differ in that judges may perform purely ministerial functions, although not bound to do so because the legislative branch of the government has attempted to impose such duties upon them.'

So a judge may be chosen to act as an arbitrator, but in such a case he does not act as a judicial officer, and his decision is not a judgment.2

But, as a rule, while such duties may be performed by a judge, he is not only not bound to perform them, but if he does, he does not, in so doing, perform judicial functions. The nature of the act, if ministerial, is not changed by the fact that it is done by a judicial officer.3

And under the constitutions of some of the states which not only sever the executive, legislative, and judicial departments of the government, but forbid the officers of one department to perform any of the duties pertaining to another department, it is held that a judge can not, even where he consents to do so, perform any of the duties pertaining to other than the judicial department.' And the rule seems to be the same whether the constitution expressly forbids the act or not."

In some of the cases, these constitutional limitations have been held to apply not only to the departments of state government, but to local municipal governments as well. But the great weight of authority and reason is undoubtedly the other way.

timate an opinion upon any others, although others are discussed." In re Griffiths, 118 Ind. 83; 20 N. E. Rep. 513.

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

2 United States v. Ferreira, 13 How. 40.

3 Ante, secs. 29, 54; People v. Bush, 40 Cal. 344; United States v. Ferreira, 13 How. 40.

4 Dickey v. Hurlburt, 5 Cal. 343; Phelan v. San Francisco, 6 Cal. 532; People v. Sanderson, 30 Cal. 160; Smith . Strother, 68 Cal. 194; 8 Pac. Rep. 852; Shepherd v. City of Wheeling, 30 W. Va. 479; 4 S. E. Rep. 635; Chard v. Harrison, 7 Cal. 113.

6 Burgoyne v. Board of Supervisors, 5 Cal. 9; Phelan v. San Francisco, 6 Cal. 531.

7 People v. Provines, 34 Cal. 520; Staude v. Election Commissioners, 61 Cal. 313, 322; Santo v. The State, 2 Ia. 165, 220; 63 Am. Dec. 487. After a thorough review of the earlier California cases holding to the

Therefore, it is not unusual for the legislature to impose upon inferior tribunals, such as county commissioners, or boards of supervisors, police judges, and others of similar kinds, both judicial, legislative, and executive duties, and

contrary, the supreme court of that state in People v. Provines, supra, thus stated the views of the court:

64

'We understand the constitution to have been formed for the purpose of establishing a state government; and we here use the term 'state government' in contradistinction to local, or to county or municipal governments. But by this we do not intend to be understood to say that local governments are not within the general plan of the constitution, for such governments are necessary incidents to all forms of government-using that term in its most enlarged and popular sensein use among civilized nations. What we mean to be understood as saying is, that the constitution does not, of itself—ex proprio vigore— create or establish any local or municipal governments; but, assuming that such governments will be required, provides that they shall be created and established by the legislature, and there drops the subject. The legislature shall establish a system of county and town governments, which shall be as nearly uniform as practicable throughout the state.' Sec. 4, Art. XI. 'It shall be the duty of the legislature to provide for the organization of cities and incorporated villages, and to restrict their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit, so as to prevent abuses in assessments and in contracting debts by such municipal corporations.' Sec. 37, Art. IV. Each county, town, city, and incorporated village shall make provision for the support of its own officers, subject to such restrictions and regulations as the legislature may prescribe.' Sec. 9, Art. XI. These provisions show very clearly that the creation and regulation of local and subordinate governments, such as county, city, and town governments, is not attempted in the constitution; and that the whole subject of local and subordinate governments is, by that instrument, turned over to one branch of the government, which it provides and defines with certain admonitions only for its guidance. When, therefore, the constitution is speaking of the 'powers of government,' and engaged in the work of distributing them to different departments, and securing absolute independence to each department by providing that each shall be worked and managed by a different set or class of individuals, of what government is it talking? Certainly not of town, city, village, or county governments, which it does not undertake to organize, which are not being established, but are to be established hereafter by a body which the constitution is at the time creating and organizing. Obviously it is talking about the government upon which it is at work, and it is the powers of that government alone which it is declaring, distributing, and guarding; that is to say, the state government, as contradistinguished from those which are to be hereafter created by legislative will, merely, as the incidents and auxiliaries of the