§ 580. Powers generally. 550 Each, as suggested, is especially charged with certain governmental functions or duties as a part of a general scheme or plan of government, the performance of which cannot be delegated." Within the scope of their authority their power is ample to accomplish the purpose for which they were created considered from the legal standpoint and nature of the board, viz., that primarily it is executive or administrative in its character and neither legislative nor judicial, although the duties to be performed by the members of such board may partake somewhat of such a nature.551 Since these boards as well as others, considered in the preceding paragraphs are organizations or bodies of limited authority, their acts to be legal must be expressly authorized or impliedly existing because absolutely necessary and essential either to the existence provision that no bill shall contain more than one subject which shall be expressed in its title. McLean v. Gibson, 55 N. J. Law. 11, 25 Atl. 935. Act March 23, 1892, creating a municipal board of public works in cities of second class having a population exceeding 50,000 is not special legislation. Perkins v. City of Philadelphia, 156 Pa. 539. An act abolishing commissioners of public buildings which applies to but one set of officers, those of the city of Philadelphia, with a possibility of there being more, is unconstitutional as violating constitution, art. 3, § 7, forbidding local or special laws regulating the size of cities. State V. Milwaukee County Sup'rs, 25 Wis. 339. Wis. Laws 1869, c. 372, appointing three commissioners "to superintend the location of a court house in the county of Milwaukee" conflicts with that clause of the Wisconsin Constitution declaring "that the legislature shall establish but one system of town or county government which shall be as nearly uniform as practicable." 550 City of Baltimore v. Radecke, 49 Md. 228. 551 Elliott v. City of Chicago, 48 Ill. 293. The board of public works of Chicago in making an assessment acts in a quasi judicial capacity and cannot be called on by any tribunal to give reasons for their action or otherwise impeach it. Ampt. v. City of Cincinnati, 17 Ohio Circ. R. 516. A board of water commissioners selected to build a system of waterworks can lawfully delegate to a chief engineer employed by them the power to determine certain technical matters. The duties which he performs as such chief engineer are done as the agent of the commissioners; he is entirely subject to their control and what is done by him is done by their authority and is the equiva lent of an exercise of power by them. Northern Trust Co. v. Sny. der, 113 Wis. 516, 89 N. W. 460. of the board as such or the performance of the duties with which they are charged.552 § 581. Board action; appeals from. All boards considered in the preceding sections are administrative or executive in their nature and the manner and extent of the performance of their duties is left largely or entirely to the sound judgment and the wise discretion of the individual members of the board. Under such circumstances the right of appeal from their action or the right to have their action reviewed does not exist unless expressly granted by statute.553 The privilege of appeal is: usually statutory and it must be exercised in the manner 554 and 552 Continental Const. Co. v. City of Altoona (C. C. A.) 92 Fed. 822. A water board have no power under Pa. Act of May 23, 1898, to enter into a contract for the construction of a water reservoir without the previous consent of the city council. Green v. Beeson, 31 Ind. 7. Statutory authority conferred on a board of officers must be strictly fol lowed, otherwise their action is void. McCortle v. Bates, 29 Ohio St. 419. The action of a township board of education in making an agreement before hand as to their action at a future meeting is illegal and void, being contrary to the public policy. 553 Araphoe County Com'rs v. Graham, 4 Colo. 201; Catron v. Archuleta County Comr's, 18 Colo. 553; Meller v. Logan County Com'rs, 4 Idaho, 44, 35 Pac. 712; Reynolds v. Oneida County Com'rs, 6 Idaho, 787, 59 Pac. 730; Fountain County Com'rs v. Wood, 35 Ind. 70; Dudley v. Blountsville & W. Turnpike Co., 39 Ind. 288; Potts v. Bennett, 140 Ind. 71, 39 N. E. 518; Huntington County Com'rs v. Beaver, 156 Ind. 450, 60 N. E. 150. An appeal will not lie to the circuit court from a settlement made by the board of county commissioners in its administrative capacity. Myers v. Gibson, 147 Ind. 452, 46 N. E. 914; Gemmill v. Arthur, 125 Ind. 258. A discretionary act of a subordinate board cannot be appealed from; it is for the appellate court to determine this. Brown v. Lewis, 76 Iowa, 159; Hayes v. Rogers, 24 Kan. 143. An appeal lies to the district court aPc. 120; People v. Wright, 70 III. from a rearrangement by the county commissioners of a county. City of Worcester V. Worcester County Com'rs, 167 Mass. 565, 46 N. E. 383; Hoffman v. Gallatin County Com'rs, 18 Mont. 224; Brown V. Otoe County Com'rs, 6 Neb. 111; State v. Buffalo County Com'rs, 6 Neb. 454; Washita County Com'rs Haines, 4 Okl. 701, 46 Pac. 561; Hadlock v. G. County Com❜rs, 5 Okl. 570, 49 Pac. 1012. An order of a board of commissioners fixing the salary of a county treasurer is appealable. V. 554 People v. Hester, 6 Cal. 679. The action of county supervisors may be controlled and supervised at the time provided.555 The appeal should also be taken to that official or body to which the right of appeal is granted.556 To be effectual, the provisions of the statute must be complied with granting the right, and the doctrine of laches or estoppel may determine in proper cases adversely the appellants right of relief from all alleged error.557 588. Qualification of judges or jurors in municipal courts. 590. Methods of procedure. § 582. Introductory. The third branch of our form of government is the judicial whose exclusive prerogative it is to pass upon and determine according to constitutional provisions and other established rules of law, the validity of laws passed by legislative bodies and the legality of administrative or executive action.558 The three-fold by mandamus, prohibition or injunction; their proceedings cannot be reviewed by certiorari. Ravenscraft V. Blaine County Com'rs, 5 Idaho, 178, 47 Pac. 942. No accounting is required on an appeal from an order of the county commissioners of the district court under act of March 6th, 1895. Whisenand v. Belle, 154 Ind. 38. The failure to include a transcript of proceedings to set out or refer either to the appeal bond or affidavit required for an appeal renders it incomplete and the appeal imperfect. 555 Ravenscraft v. Blaine County Com'rs, 5 Idaho, 178, 47 Pac. 942; Siggins v. Com., 85 Pa. 278; Walsh . Town Council of Johnston, 18 R. I. 88, 25 Atl. 849; Town of Shelburn v. Eldridge, 10 Vt. 123. 556 Campbell v. Canyon County Com'rs, 5 Idaho, 53, 46 Pac. 1022. The district court on an appeal from a decision of a county board must try their case de novo upon all the evidence presented. 557 Fouse v. Vandervort, 30 W. Va. 331. 558 Den d. Murray v. Hoboken Land & Imp. Co., 18 How. (U. S.) 272; Wheat v. Smith, 50 Ark. 266; People v. Judge of Twelfth Dist., 17 Cal. 558; People v. Bennett, 29 Mich. 465. In re Cleveland, 51 N. J. Law, 311, 17 Atl. 772. N. J. Const. art. 3, provides that "the powers of the gov ernment shall be divided into three division, independence and dependence of each has been discussed distinct departments: the legislative, executive and judicial, and no person or persons belonging to or constituting one of these departments shall exercise any of the powers properly belonging to either of the others." cor Bond v. City of Newark, 19 N. J. Eq. (4 C. E. Green) 376. Legislative or jurisdictional acts within the authority of municipal porations are beyond the trial of the courts however unwise or impolitic or even when done from unworthy motives. The adoption of an ordinance directing a public improvement is a legislative act, and however absurd it cannot be reviewed. An ultra vires act of a municipal corporation can be, however, restrained or controlled." Attorney General v. City of New York, 10 N. Y. Super. Ct. (3 Duer) 119; Reiser v. William Tell Sav. Fund Ass'n, 39 Pa. 146; State v. Dexter, 10 R. I. 341; Bl. Com. bk. 1, 146. Story, Const. § 525. "When we speak of a separation of the three great departments of government, and maintain that that separation is indispensable to public liberty, we are to understand this maxim in a limited sense. It is not meant to affirm that they must be kept wholly and entirely separate and distinct, and have no common link of connection or dependence, the one upon the other, in the slightest degree. The true meaning is that the whole power of one of these departments should not be exercised by the same hands which possess the whole power of either of the other departments; and that such exercise of the whole would subvert the principles of a free constitution." Lewis, Sutherland, Stat. Const. (2d Ed.) § 5. "The power which is entirely and exclusively vested in the judiciary department is the power conferred on judicial courts and tribunals to administer punitive and remedial justice to and between persons subject to or claiming rights under the law of the land. * * * It is part of this judicial power to determine what the law is and all questions involving the validity and effect of statutes when thus determined are authoratively settled." Lewis, Sutherland, Stat. Const. (2d Ed.) § 2, "In the Federal constitution and in the statue constitutions, the three fundamental powers the legislative, executive and judicial-have been separated and organized in three distinct departments. This separation is deemed to be of the greatest importance; absolutely essential to the existence of a just and free government. This is not, however, such a separation as to make these departments wholly independent; but only so that one department shall not exercise the power nor perform the functions of another. They are mutually dependent, and could not subsist without the aid and co-operation of each other. Under the constitutions the legislature is empowered to make laws; it has that power exclusively; the executive has the power to carry them by all executive acts into effect, and the judiciary has the exclusive power to expound them as the law of the land between suitors in the administration of justice. The legislature can do no executive acts, but it can legislate to regulate the executive office, prescribe laws to the to a certain extent in previous sections.550 executive which that department, and every grade of its officers, must obey. The legislature cannot decide cases, but it can pass laws which will furnish the basis of decision, and the courts are bound to obey them. The functions of each branch are as distinct as the stomach and lungs in our bodies. They are intended to co-operate; not to be antagonistic; they are functions in the same system; when each functionary does its appropriate work no interference or conflict is possible." See, also, Wyman, Adm. Law, 88 17-25. 559 Fox v. McDonald, 101 Ala. 51, 21 L. R. A. 529; Greenwood Cemetery Land Co. v. Routt, 17 Colo. 156, 15 L. R. A. 369; Spencer v. Sully County, 4 Dak. 474, 33 N. W. 97. Rev. St. U. S. § 1907 (1878). The act organizing the territory of Dakota provides that the judicial power shall be vested in certain designated courts and in justices of the peace. The legislature, therefore, has no power to confer judicial powers on boards of county commissioners and their decisions cannot, therefore, be pleaded as res adjudicata. Wells v. City of Atlanta, 43 Ga. 67. To sustain the interference of a court of equity at the instance of a taxpayer in the legislative or administrative action of a municipal corporation within the scope of its powers, it must appear that such action is either ultra vires, fraudu. lent or corrupt. The mere fact that it is unwise or extravagant is not sufficient. People v. Thompson, 155 Ill. 451; People v. Chase, 165 Ill. 527, 36 L. R. A. 105; State v. Hyde, 121 Ind. 20; Langenberg v. Decker, 131 Ind. 471, 16 L. R. A. 108. "The As said in a Pennsyl powers of these departments are not merely equal, they are exclusive, in respect to the duties assigned to each, and they are absolutely independent of each other. The en croachment of one of these departments upon the other is watched with jealous care, and is generally promptly resisted, for the obser vance of this division is essential to the maintenance of a republican form of government." White County Com'rs v. Gwin, 136 Ind. 562, 22 L. R. A. 402; State v. Barker, 116 Iowa, 96, 57 L. R. A. 244; State v. Johnson, 61 Kan. 803, 49 L. R. A. 662; Motz v. City of Detroit, 18 Mich. 495. Legislative action of the common council of the city in accepting and approving contract work is not subject to review by the courts so long as the council acts within the limits of its jurisdiction and its members are guilty of no intentional wrong, fraudulent or corrupt conduct in the discharge of their official duties. State v. Higgins, 125 Mo. 364; Albright v. Fisher, 164 Mo. 56; Ryan v. City of Paterson, 66 N. J. Law, 533, 49 Atl. 587. A judicial inquiry into the legality of municipal action in the absence of fraud or a palpable abuse of discretionary authority cannot be made; the only question which can be considered by the courts is that of a violation of legal principles or a failure to observe statutory formalities. Board of Health v. Diamond Mills Paper Co., 63 N. J. Eq. 111, 51 Atl. 1019. An act authorizing a state board of health to enjoin the pollution of water used for domestic purposes is not invalid as conferring upon a chancery court a jurisdiction |