General Powers and Duties.

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 supervisory 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 assist in its performance. Conroe v. Bull, 7 Wis. 408; Kearns v. Thomas, 37 Wis. 118; Attorney-General v. McDonald, 3 Wis. So5." State v. Noble, 118 Ind. 350. 1. People v. Albertson, 55 N. Y. 50. See also Warner v. People, 2 Den. (N. Y.) 272; People v. Draper, 15 N. Y. 532; People v. Keeler, 29 Hun (N. Y.) 175; State v. Brunst, 26 Wis. 412; King v. Hunter, 65 N. Car. 603; s. c., 6 Am. Rep. 754; State v. Noble, 118 Ind. 350. See also CONSTITUTIONAL LAW, vol 3, p. 693; Harris v. Vanderveer, 21 N. J. Eq. 424; Hutkoff v. Demorest, 103 N.Y. 377; State v. Gennaway, 16 Lea (Tenn.) 124; Landers v. Staten Island R. Co., 53 N. Y. 450; In Matter of Application of Senate, 10 Minn. 78; In Matter of Senate, 9 Col. 623; Alexander v. Bennett, 60 N. Y. 204. ELLIOTT, C. J., said: "The question which faces us is not one of discretion, but of imperative duty... Judges are chosen for the purpose of maintaining the limitations of the constitution, without which free government cannot exist." State v. Noble, 118 Ind. 350. See also Kilbourn v. Thompson, 103 U. S. 168; People v. Keeler, 99 N. Y. 463, 52 Am. Rep. 49; Greenough v. Greenough, 11 Pa. St. 489; Missouri River Tel. Co. v. First Nat. Bank, 74 Ill. 217; Perkins v. Corbin, 45 Ala. 103; Lieber Civil Liberty 154; Montesquieu Spirit of Laws 33; Ingersoll Fears for Democracy 23; Wilson Congressional Government 12, 36; 3 Burke's Works 110; 1 Bryce American Commonwealth 31, 429.

2. State v. Maynard, 14 Ill. 419. See also Shoultz v. McPheeters, 79 Ind.

5

373; Gregory v. State, 94 Ind. 384; Little v. State, 90 Ind. 338; Pressley v. Lamb, 105 Ind. 171; Kuntz v. Sumption, 117 Ind. and authorities cited in Preesley v. Lamb, 104 Ind. 171, 186; Smythe v. Boswell, 107 Ind. 365; Campbell v. Board of Monroe Co., 118 Ind. 119; Hall v. Marks, 34 Ill. 358; Ex parte Griffiths, 118 Ind. 83.

3. Young v. Ledrick, 14 Kan. 92, BREWER, J., saying: "Thus, the legislature has authorized the trial of certain cases before referees. No question has been, none can well be made, as to the validity of such legislation. Yet here is an officer other than the judge who is exercising judicial functions in cases in So also, at common law, that court. the sheriff exercised judicial functions. In our own proceedings under the occupying claimant act may be found something of the same nature." Proceedings in aid of execution were held by the court to be of such subordinate character.

4. People v. Bush, 40 Cal. 344; People v. Provines, 34 Cal. 520.

5. State v. Brown, 35 Kan. 167, holding that failure of probate judge to examine funds of county treasurer did not afford ground for removal from the office of judge; although it might perhaps furnish a reason for divesting him of such distinct nonjudicial authority. See also State v. Laughton, 19 Nev. 202, where it was held that a lieutenantgovernor who was by statute made ex officio state librarian did not forfeit the lieutenant-governor's office by forfeiture of that of librarian through fault in 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, applying the rule to the case of appointment by county judge of a supervisor. "If the writ in this case can be maintained, on the ground that the order sought to be reviewed was made by a county judge, then upon the same ground this court may, upon the writ of certiorari, cancel an acknowledgment of a deed or annul a marriage."

2. Court of sessions in Massachusetts were agents and representatives of the county in all matters touching its finances and general and prudential concerns, and its acts and admissions were binding upon the inhabitants. Hampshire Co. v. Franklin Co., 16 Mass. 76. Mandamus would lie to compel this court to erect or provide a house of correction. Commonwealth v. Sessions of Hampden, 2 Pick. (Mass.) 415. This court, previously to its aboli-, tion, was authorized to establish ferries. Fay Petitioners, 16 Pick. (Mass.) 243. In Maine, this court had authority to lay out and maintain roads. Emerson v. Washington, 9 Greenl. (Me.) 92. Powers of justices of the peace holding county court in Tennessee, to transact county business and receive and appropriate moneys of the county. See Coleman v. Smith, Mart. & Yerg. (Tenn.Rep.) 36. In Virginia, county courts have authority, and may be compelled by mandamus, to build bridges across public roads. Brander v. Chesterfield Justices, 5 Call (Va.) 548. And to impose county levies. Case of the County Levy, 5 Call (Va.) 139. In Alabama, to authorize the erection of toll bridges and to licence ferries. Dyer v. Tuskaloosa Bridge Co., 2 Port. (Ala.) 296. In Mississippi, to settle and allow claims against the county and to levy a tax in payment, and may be compelled thereto by mandamus. Madison Co. Court v. Alexander, Walker (Miss.)

523. In Kentucky, justices of the peace may levy county tax. Gilbert v. Huston, 6 Litt. (Ky.) 223. In Connecticut, the county court has power to act in the demise of a county house. Buell

v. Cook, 4 Conn. 238. As to powers of a probate judge in regard to town sites under Montana Code Civ. Proc., § 6, see Hartman v. Smith, 6 Mont. 295. In Oregon, the county judge has discretionary power of allowing or disallowing arms and accoutrements out of county funds to a militia company. Vincent v. Umatilla Co., 14 Oreg. 375.

Liquor Licences.-The issuing of liquor licences may be cast on judges. Intoxicating Liquor Cases, 25 Kan. 751. (There was no evidence of the duty by the judge, nor was that question raised.) In Pennsylvania, under the Brooks High Licence act of 1887, the judges grant retail and wholesale liquor li

cences.

or

Kansas. It has been repeatedly held in Kansas that the legislature may confer new duties-judicial, quasi judicial, or ministerial, on probate courts probate judges of that State, aside from the ordinary powers conferred by the constitution. State v. Brown, 35 Kan. 167, 169; In re Johnson, 12 Kan. 102; Young v. Ledrick, 14 Kan. 92; State v. Majors, 16 Kan. 440; Intoxicating Liquor Cases, 25 Kan. 751.

Many illustrative instances have been grouped in Re Johnson, 12 Kan. 103. Thus they have been authorized to take acknowledgment of deeds; issue marriage licences; solemnize marriages; organize corporations, such as colleges, universities and other institutions for promoting education, religion, morality, agriculture, manufacturing, or the fine arts; organize municipal corporations (Kirkpatrick v. State, 5 Kan. 673, 677), hold criminal courts (Miller v. State, 2 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 constitution1 prohibiting trenching by one department on another, the court held that

the legislature could confer no other than judicial functions1 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 that the legislature has no power to confer other than judicial functions upon the courts of sessions, the particular power in question being that of making a contract for the purchase of a lot for the erection of public buildings. Burgoyne v. San Francisco Supervisors, 5 Cal. 9. The same court held, however, that county judges of two counties could be given power to appoint commissioners to settle division of indebtedness between two counties created out of one original county, the appointinent being in a matter of judicial nature, and being analogous to appointments of referees and arbitrators. Tuolumne Co. v. Stanislaus Co., 6 Cal. 440.

A statute giving the county court power to incorporate towns was held unconstitutional, as giving nonjudicial power. People v. Town of Nevada, 6 Cal. 143. And it was held in Chard v. Harrison, 7 Cal. 113, that the power to grant ferry licences is not judicial, but political.

2. People v. Sanderson, 30 Cal. 160. 3. Legislative bodies have at various times conferred on judicial officers powers not belonging to the judicial department. On such occasions, if the judges have acted, it would appear that their doing so has been voluntary. The legislature may empower, but it cannot compel, judges to exercise nonjudicial authority. Thus is Hayburn's Case, 2 Dall. (Ŭ. S.) 409, the United States circuit courts were authorized to examine and certify respecting pensions

of revolutionary soldiers. Those in
New York, JAY, C. J., and CUSHING,
J., with DUANE, DISTRICT JUDGE, held
the act unconstitutional. Those of
Pennsylvania declined to act; while the
North Carolina circuit court addressed
a letter to the President in which they
stated that they could not sit as judges,
nor could they see how they could sit
as commissioners, although they desired
not to bind themselves on the latter
point. Those of New York, out of con-
sideration for the humane and patriotic
object of the act, agreed to sit as com-
missioners. The supreme court held
that the act was unconstitutional; and
that because the duties were imposed
on the court, as a court, the judges
could not sit as commissioners. Note
to U. S. v. Ferreira, 13 How. (U. S.)
52.
In the Ferreira case just cited,
claims under the treaty of 1819 with
Spain were referred to the district
judges of Florida, with appeal to the
secretary of state. This reference was
held not to be to the judges sitting as a
court. The duties, although involving
the exercise of discretion, were not
judicial in the sense in which judicial
power is granted by the constitution.
Accordingly, the court held that there
was no appeal to the United States
supreme court. In Ex parta Gans, 17
Fed. Rep. 471, TREAT, J., in the United
States court for the Eastern District of
Missouri, refused to act under the act
of congress providing for the ascertain-
ment by the court or judge of the value
of services of informers in smuggling
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 (b) 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.5 3. Territorial Limitations of Powers.-The judicial department in

of the treasury not, however, to be conclusive. The court held that the act contemplated an admixture of judicial and executive duties and officers, and was not binding in the respect indicated. See also Re Account of Allen, 19 Feb. S09. In application to appoint Board of Assessors, 7 Leg. Gaz. 117, the common pleas No. 2 of Alleghany county, Pa., refused to appoint a board of tax assessors for the city of Pittsburgh, holding that a statute requiring the judges so to do violated the division of government into three departments and that said statute was unconstitutional. For although congress may require the United States circuit courts to appoint supervisors of elections (U. S. v. Siebold, 100 U. S. 373), this is explained (p. 399) by the express provision in the federal constitution that congress may by law vest the appointment of such inferior officers as they think proper, in the president alone, in the courts of law or in the heads of depart

ments.

If then a quarter sessions is altered in charter so as to be composed exclusively of law judges, while administrative matters formerly performed by it are entrusted elsewhere: to councils of cities, highway commissioners, city commissioners, etc., etc., there is strong argument that the court has ceased to be administrative, and, if so, the former part of this note will then apply to such a court of sessions. But even if the argument is sound, yet if that court choose to enter on administrative affairs, mandamus will compel it to act according to law. In Prospect Brewing

Co.'s Petition, 127 Pa. St. 523, the Philadelphia quarter sessions were directed by mandamus to grant licences to wholesale liquor dealers, distillers, etc., according to certain principles laid down in that case by the supreme

court.

1. Burgoyne v. San Francisco Supervisors, 5 Cal. 9, 22; note, directed by the United States supreme court to be inserted respecting U. S. v. Yale Todd, and to be found under U. S. v. Ferreira, 13 How. (U. S.) 40, 52.

2. Where United States territorial judges were directed to adjudge claims for losses sustained by Spaniards, by the operations of the American army in Florida, power of review being conferred on the secretary of the treasury, it was held that the judges did not act as judges in the proceedings, but as commissioners, and that no appeal lay to the supreme court. U. S. v. Ferreira, 13 How. (U. S.) 40.

3. U. S. v. Ferreira, 13 How. (U. S.) 40. See also Burgoyne v. San Francisco Supervisors, 5 Cal. 9, 22; note to Hayburn's Case, 2 Dall. (U. S.) 409; U. S. v. Todd, 13 How. (U. S.) 52, n.

4. Double Duties.-State v. Laughton, 19 Nev. 202; People v. Edwards, Cal. 286; People v. Love, 25 Cal. 520; Lathrop v. Brittain, 30 Cal. 680; People v. Ross, 38 Cal. 76; Territory v. Ritter, I Wyo. 333; Denver v. Hobart, 10 Nev. 28. Failure to give bond for the ex officio office does not affect the original office. State v. Laughton, 19 Nev. 202; s. c., 8 Pac. Rep. 344.

5. State ex rel. Atty. Gen. v. The Judges, 21 Ohio St. 1, 14.