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ing the name of an office, or dividing its duties, assigning them to additional officers under different names, or appointing officers in any manner except as authorized by the constitution. The legislature may multiply some of the officers who are, by the constitution, vested with judicial powers, but, when this is done, it is the constitution which vests the power. So, judicial functions of a subordinate nature may be granted by the legislature to others than the regularly elected judge, subject to his super. visory control.3

2. Judicial and Ministerial Acts(a) Nonjudicial Duties. The courts cannot be controlled by the legislature in matters strictly within their own province. But other than judicial duties have often been entrusted to the judges. Ministerial acts do not become judicial acts because performed by a judicial officer.4 Failure to perform a duty distinct from those judicial, was held in Kansas not to forfeit the judicial office.5 Acts ministerial and not judi

out calling anyone to perform it, or as- 373; Gregory v. State, 97 Ind. 384; Litsist in its performance. Conroe v. Bull, tle v. State, 90 Ind. 338; Pressley v. 7 Wis. 408; Kearns v. Thomas, 37 Wis. Lamb, 105 Ind. 171; Kuntz v. Sumption, 118; Attorney-General v. McDonald, 117 Ind. and authorities cited in Prees3 Wis. 805." State v. Noble, 118 Ind. 350. ley v. Lamb, 104 Ind. 171, 186; Smythe

1. People v. Albertson, 55 N. Y. 50. v. Boswell, 107 Ind. 365; Campbell v. See also Warner v. People, 2 Den. (N. Board of Monroe Co., 118 Ind. 119; Y.) 272; People v. Draper, 15 N. Y. Hall v. Marks, 34 Ill. 358; Ex parte 532; People v. Keeler, 29 Hun (N. Y.) Griffiths, 118 Ind. 83. 175; State v. Brunst, 26 Wis. 412; King 3. Young v. Ledrick, 14 Kan. 92, 0. Hunter, 65 N. Car. 603; s. C., 6 Am. BREWER, J., saying: “Thus, the legisRep. 754; State v. Noble, 118 Ind. 350. lature has authorized the trial of certain See also CONSTITUTIONAL LAW, vol

3, cases before referees. No question has p. 693; Harris v.Vanderveer, 21 N.J. Eq. been, none can well be made, as to the 424; Hutkoff v. Demorest, 103 N.Y. 377; validity of such legislation. Yet here State v. Gennaway, 16 Lea (Tenn.) is an officer other than the judge who is 124; Landers v. Staten Island R. Co., exercising judicial functions in cases in 53 N. Y.450; In Matter of Application that court. So also, at common law, of Senate, 10 Minn. 78; In Matter of the sheriff exercised judicial functions. Senate, 9 Col. 623; Alexander v. Ben

In our own proceedings under nett, 60 N. Y. 204. Elliott, C. J., the occupying claimant act may be said: “The question which faces us is found something of the same nature.” not one of discretion, but of imperative Proceedings in aid of execution were duty. Judges are chosen for held by the court to be of such subthe purpose of maintaining the limita- ordinate character. tions of the constitution, without which 4. People v. Bush, 40 Cal. 344; Peofree government cannot exist." State v. ple v. Provines, 34 Cal. 520. Noble, 118 Ind. 350. See also Kilbourn 6. State v. Brown, 35 Kan. 167, holdv. Thompson, 103 U. S. 168; People v. ing that failure of probate judge to exKeeler, 99 N. Y. 463, 52 Am. Rep. 49; amine funds of county treasurer did not Greenough v. Greenough, 11 Pa. St. afford ground for removal from the 489; Missouri River Tel. Co. v. First office of judge; although it might perNat. Bank, 74 Ill. 217; Perkins v. Cor- haps furnish a reason for divesting him bin, 45 Ala. 103; Lieber Civil Liberty of such distinct nonjudicial authority. 154; Montesquieu Spirit of Laws 33; See also State v. Laughton, 19 Nev. Ingersoll Fears for Democracy 23; Wil- 202, where it was held that a lieutenant. son Congressional Government 12, 36; governor who was by statute made ex 3 Burke's Works 110; 1 Bryce American officio state librarian did not forfeit the Commonwealth 31, 429.

lieutenant-governor's office by forfeiture 2. State v. Maynard, 14 Ill. 419. See of that of librarian through fault in also Shoultz v. McPheeters, 79 Ind. bond; as the two offices are distinct.

cial are not reviewable by certiorari.1 In the note,2 a great many powers other than those of a judicial nature are mentioned as having been vested in judges. Examination of these cases will show that in rude, imperfectly developed periods, the county or sessions courts have been constituted a quite active part of the police or governmental power in the counties, having devolved on them the duty or authority to erect houses of correction, to establish ferries, roads and bridges, to act as trustees of town sites, to regulate militia' supplies, to issue liquor licences, to solemnize marriages or grant licences therefor, to organize corporations, to take acknowledgments, etc.


1. People v. Bush, 40 Cal. 344, apply. 523. In Kentucky, justices of the ing the rule to the case of appointment peace may levy county tax. Gilbert v. by county judge of a supervisor. “If Huston, 6 Litt. (Ky.) 223. In Connectithe writ in this case can be maintained, cut, the county court has power to act on the ground that the order sought to in the demise of a county house. Buell be reviewed was made by a county judge, v. Cook, 4.Conn. 238. Ăs to powers of then upon the same ground this court a probate judge in regard to town sites nay, upon the writ of certiorari, cancel under Montana Code Civ. Proc., 06, an acknowledgment of a deed or annul see Hartman v. Smith, 6 Mont. 295. In a marriage."

Oregon, the county judge has discre2. Court of sessions in Massachusetts tionary power of allowing or disallowing were agents and representatives of the arms and accoutrements out of county county in all

matters touching its funds to a militia company. Vincent . finances and general and prudential Umatilla Co., 14 Oreg: 375. concerns, and its acts and admissions Liquor Licences.-The issuing of liqwere binding upon

the inhabitants. uor licences may be cast on judges. InHampshire Co. v. Franklin Co., 16 toxicating Liquor Cases, 25 Kan. 751. Mass. 76. Mandamus would lie to com- (There was no evidence of the duty by pel this court to erect or provide a the judge, nor was that question raised.) house of correction. Commonwealth In Pennsylvania, under the Brooks V. Sessions of Hampden, 2 Pick. (Mass.) High Licence act of 1887, the judges 415. This court, previously to its aboli- , grant retail and wholesale liquor li. tion, was authorized to establish ferries. Fay Petitioners, 16 Pick. (Mass.) 243. Kansas.-It has been repeatedly held In Maine, this court had authority to in Kansas that the legislature may conlay out and maintain roads. Emerson fer new duties-judicial, quasi judicial, v. Washington, 9 Greenl. (Me.) 92. or ministerial, on probate courts Powers of justices of the peace holding probate judges of that State, aside from county court in Tennessre, to transact the ordinary powers conferred by the county business and receive and appro- constitution. State v. Brown, 35 Kan. priate moneys of the county. See Cole. 167, 169; In re Johnson, 12 Kan. 102; manz. Smith, Mart.& Yerg. (Tenn.Rep.? Young v. Ledrick, 14 Kan. 92; State 36. In Virginia, county courts have v. Majors, 16 Kan. 440; Intoxicating authority, and may be compelled by Liquor Cases, 25 Kan. 751. mandamus, to build bridges across pub- Many illustrative instances have been lic roads. Brander v. Chesterfield Jus- grouped in Re Johnson, 12 Kan. 103. tices, 5 Call (Va.) 548. And to impose Thus they have been authorized to take county levies. Case of the County Levy, acknowledgment of deeds; issue mar5 Call (Va.) 139,

In Alabama, to riage licences; solemnize inarriages; authorize the erection of toll bridges organize corporations, such as colleges, and to licence ferries. Dyer v. Tuska universities and other institutions for loosa Bridge Co., 2 Port. (Ala.) 296. promoting education, religion, morality, In Mississippi, to settle and allow agriculture, manufacturing, or the fine claims against the county and to levy a arts; organize municipal corporations tax in payment, and may be compelled (Kirkpatrick v. State, 5 Kan. 673, 677), Thereto by mandamus. Madison Co. hold criminal courts (Miller v. State, 2 Court v. Alexander, Walker (Miss.) Kan. 175, 180, 183; Rice v. State, 3


In California, many of these instances were cited by counsel, but, under the rigid wording of the State constitution prohibiting trenching by one department on another, the court held that

Kan. 141, 163, 172; Clay v. State, 4 duties of a probate judge, and his neg. Kan. 49, 54, 59; Kirkpatrick v. State, lect of that duty, imposed on him by 5 Kan. 673); hear and determine, as statute, did not constitute a cause of judges of courts, contested election forfeiture of his office on quo warranto. cases (Steele 2. Martin, 6 Kan. 430, The court said the statute was in the 436; Norton v. Graham, 7 Kan. 166); nature of an attempt to put on him the issue subpænas; take depositions; en- duties of another officer. State '. ter town sites at United States land of- Brown, 35 Kan. 167. And see State v'. fices in trust for occupants (Sherry v. Laughton, 19 Nev. 202. Sampson, 11 Kan. 611; Winfield Town Fixing Compensation of County AssisCo. v. Maris, 11 Kan. 128; McTaggart tants.—"Statute authorizing judges to V. Harrison, 12 Kan. 62); exercise cer- fix compensation of deputies, clerks, tain powers in district court, in cases bookkeepers and other assistants who mentioned in statutes; as justifying may be employed by the treasurer, aucivil bail, granting injunctions, appoint- ditor, recorder, sheriff,” etc., was held ing receivers, certain orders in aid of not to create a distinct office; and comexecution.

mon pleas judges, in quo warranto, de"Not all of these powers are held to manding that they should show cause be constitutional, but are referred to why they exercised such duties, were to show the general opinion.” In re sustained in obeying the statute. The Johnson, 12 Kan. 104.

court said, however: “Whether they Proceedings in Aid of Execution.—In could be compelled to perform the duKansas, authority vested in probate ties which the act undertakes to require judges to act in "aid of execution” was of them, is foreign to the present enupheld. Young z'. Ledrick, 14 Kan. quiry.

We have no hesitation 92.

in saying that, in our opinion, the act BREWER, J., said: “While it


be does not create or invest them with a that, under section 5 of article 3 of the new office." State v. Judges, 21 Ohio constitution, it is impossible for the le

St. 1. On this last point the case was gislature to provide for more than one disapproved in the Kansas opinion. judge of a district court, and while it But the two opinions are to be read in may be that no legislation could be up- light of the questions raised in them held which excluded such single judge respectively. from a supervisory control of all the Texas School Laws.-County courts' proceedings of that court, yet within approval of certain school contracts this limit we think it competent for the and mandamus to enforce approval of legislature to provide that other persons vouchers for teachers' pay in Texas, may exercise some judicial functions in Cahiel Coleman, 72

Tex. cases pending therein. Thus the legis

550. lature has authorized the trial of cer- Public Contracts. - Judges tain cases before referees.

So, authorized to award contracts for legal also, at common law, the sheriff exer- advertisements. Such notices come cised judicial functions. The sheriff's sufficiently within the judicial province. jury, to assess damages, was an every- Particularly is it so with respect to St. day occurrence.

In our own Louis circuit court judges, who are proceedings under the occupying claim- authorized by the constitution to make ant act may be found something of the rules for transaction of "such other same nature.

Now, these pro- business as may be authorized by law." ceedings in aid of execution are of this State v. Tolle, 71 Mo. 645. same subordinate nature."

1. “No person charged with the exerExamination of Public Funds.—Legis- cise of powers properly belonging to lation of the character above mentioned one of these departments (referring to empowering probate judge to examine the devision of government into execupublic funds is valid State v. Majors, tive, legislative and judicial] shall

exercise any functions appertaining to Examination of public funds in hands either of the others except in the cases of county treasurer was held in a Kan- hereinafter expressly directed or per. sas case to be distinct from the judicial mitted.”


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16 Kan. 440.

the legislature could confer no other than judicial functions upon the courts of sessions, nor make the chief justice of the State a trustee of the State library.2

Such administrative duties were imposed on the quarter sessions by reason of the presence in the court of lay members, to whom administrative employments were appropriate. But in Pennsylvania, under a constitution which now entrusts the jurisdiction of the quarter sessions court of most of the counties to law judges exclusively, a feeling of great doubt exists whether courts so composed entirely of judicial as distinct from administrative officers can be compelled against their will to enter upon administrative duties,3

In addition, moreover, to the change in the composition of the court, the administrative duties have been mostly imposed on other bodies or officials-on councils, commissioners, etc.; and the old control of the county by the sessions, through the action of grand juries, has in many jurisdictions ceased, in great part.

1. In 1855, the California court held of revolutionary soldiers. Those in that the legislature has no power to New York, Jay, C. J., and CUSHING, confer other than judicial functions J., with Duane, DISTRICT JUDGE, held upon the courts of sessions, the particu- the act unconstitutional. Those of lar power in question being that of Pennsylvania declined to act; while the making a contract for the purchase of a North Carolina circuit court addressed lot for the erection of public buildings. a letter to the President in which they Burgoyne v. San Francisco Super- stated that they could not sit as judges, visors, 5 Cal. 9. The same court held, nor could they see how they could sit however, that county judges of two as commissioners, although they desired counties could be given power to ap- not to bind themselves in the latter point commissioners to settle division point. Those of New York, out of conof indebtedness between two counties sideration for the humane and patriotic created out of one original county, object of the act, agreed to sit as comthe appointinent being in a matter of missioners. The supreme court held judicial nature, and being analogous to that the act was unconstitutional; and appointments of referees and arbitrators. that because the duties were imposed Tuolumne Co. v. Stanislaus Co., 6 Cal. on the court, as a court, the judges 440.

could not sit as commissioners. Note A statute giving the county court to U. S. v. Ferreira, 13 How. (U. S.) power to incorporate towns was held


In the Ferreira case just cited, unconstitutional, as giving nonjudicial claims under the treaty of 1819 with power.

People v. Town of Nevada, 6 Spain were referred to the district Cal. 143. And it was held in Chard v. judges of Florida, with appeal to the Harrison, 7 Cal. 113, that the power to secretary of state. This reference was grant ferry licences is not judicial, but held not to be to the judges sitting as a political.

court. The duties, although involving 2. People v. Sanderson, 30 Cal. 160. the exercise of discretion, were not

3. Legislative bodies have at various judicial in the sense in which judicial times conferred on judicial officers power is granted by the constitution. powers not belonging to the judicial de- Accordingly, the court held that there partment. On such occasions, if the was no appeal to the United States judges have acted, it would appear that supreme court. In Ex parta Gans, 17 their doing so has been voluntary. The Fed. Rep. 471. TREAT, J., in the United legislature may empower, but it cannot States court for the Eastern District of compel, judges to exercise nonjudicial Missouri, refused to act under the act authority. Thus is Hayburn's Case, 2 of congress providing for the ascertainDall. (Ú. S.) 409, the United States ment by the court or judge of the value circuit courts were authorized to ex- of services of informers in smuggling amine and certify respecting pensions cases, the certificate to the secretary

Where extrajudicial duties are imposed in language which refers to the court, the judges cannot exercise such duties as commissioners. 1

Certain powers may be judicial in their nature, yet not in the sense in which judicial power is granted by the fundamental law. Thus the adjustment of claims under a treaty appears to be the province of a commissioner rather than of a court.2 Such a power cast by congress on the United States territorial judges, was held to devolve on them as commissioners, not as judges. The supreme court have intimated strongly that under the constitution the power could not be put upon the judges as a court.3

(6) Double Duties.- Making a person ex officio officer by virtue of his holding another office does not merge the two in one.4 New duties or powers, do not, simply because they might have constituted a new office, therefore necessarily create the same.

3. Territorial Limitations of Powers.—The judicial department in


of the treasury not, however, to be con. Co.'s Petition, 127 Pa. St. 523, the clusive. The court held that the act Philadelphia quarter sessions contemplated an admixture of judicial directed by mandamus to grant licences and executive duties and officers, and to wholesale liquor dealers, distillers, was not binding in the respect indicated. etc., according to certain principles See also Re Account of Allen, 19 Feb. laid down in that case by the supreme Sog. In application to appoint Board court. of Assessors, 7 Leg. Gaz. 117, the 1. Burgoyne v. San Francisco Supercommon pleas No. 2 of Alleghany visors, 5 Cal. 9, 22; note, directed by county, Pa., refused to appoint a board the United States supreme court to be of tax assessors for the city of Pitts- inserted respecting C. S. 7'. Yale Todd, burgh, holding that a statute requiring and to be found under U. S. v. Ferreira, the judges so to do violated the division 13 How. (U. S.) 40, 52. of government into three departments 2. Where United States territorial and that said statute was unconstitu- judges were directed to adjudge claims tional. For although congress may for losses sustained by Spaniards, by require the United States circuit courts the operations of the American army in to appoint supervisors of elections (U. Florida, power of review being conferred S. v. Siebold, 100 U. S. 373), this is ex- on the secretary of the treasury, it was plained (p. 399) by the express provision held that the judges did not act as in the federal constitution that congress judges in the proceedings, but as commay by law vest the appointment of missioners, and that no appeal lay to such inferior officers as they think the supreme court. U. S. v. Ferreira, proper, in the president alone, in the 13 How. (U. S.) 40. courts of law or in the heads of depart

3. U. S. v.

. Ferreira, 13 How. (U. S.) ments.

40. See also Burgoyne v. San FranIf then a quarter sessions is altered cisco Supervisors, 5 Cal. 9, 22; note to in charter so as to be composed exclu- Hayburn's Case, 2 Dall. (U. S.) 409; sively of law judges, while administra- U.S. v. Todd, 13 How. (U. S.) 52, n. tive matters formerly performed by it 4. Double Duties.-State v. Laughton, are entrusted elsewhere: to councils of 19 Nev. 202; People v. Edwards, 9 Cal. cities, highway commissioners, city 286; People v. Love, 25 Cal. 520; Lathcommissioners, etc., etc., there is strong rop v. Brittain, 30 Cal. 680; People v. argument that the court has ceased to Ross, 38 Cal. 76; Territory v. Ritter, I be administrative, and, if so, the former Wyo. 333; Denver v. Hobart, 10 Nev. part of this note will then apply to such 28. Failure to give bond for the ex officio a court of sessions. But even if the office does not affect the original office. argument is sound, yet if that court State v. Laughton, 19 Nev. 202; s. C., 8 choose enter administrative Pac. Rep. 344. affairs, mandamus will compel it to act 5. State ex rel. Atty. Gen. v. The according to law. In Prospect Brewing Judges, 21 Ohio St. 1, 14.



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