act could not be construed as authorizing the judges composing the court to exercise the power out of court in the character of commissioners. Acts of Congress empowering judges in pursuance of treaty stipulations to examine and adjudge claims for injuries sustained by applicants, are valid. Such acts do not confer any powers on the courts of which the judges are members; but the judges act as commissioners, and as such may be directed to report their decision with the evidence upon which it is based to the Secretary of the Treasury for his discretionary action thereon; and it is not an objection to such an act that it does not provide an appeal from the award of the judges to the Supreme Court of the United States.1

Certainly the judges are at liberty to decline to act as commissioners. Thus we find Judges Sharswood and Hare in 1860 writing to Governor Parker refusing to become members of the Public Building Commission.3 The Massachusetts courts say that their judges cannot as commissioners appoint supervisors of election because the constitution does not allow judges to hold any such office.4

Whether the quasi-executive power to appoint officers other than those whose business pertains to the courts can be vested

1 United States vs. Fereira, 13 How. 40. These cases are commented upon in Int. Commerce Commission vs. Brimson, 154 U. S. 447. Mr. Justice Brewer has lately accepted a position on the Venezuelan Boundary Commission, which is to report the result of its investigations to the executive and legislative departments for their further consideration. A Justice of the Supreme Court of the United States ought always seriously to consider the nature of the commission of which he is asked to become a member, especially where his membership will require the performance of extrajudicial duties of a political nature. The history of the Electoral Commission of 1876, of which three justices of the Supreme Court were members, is too well known to require comment.

2 In re Appointment of Member of Board of Review, 27 Weekly Law Bull. 334. 8 Am. Law Reg. See also "Extra-Judicial Duties of Judges," Legal Int., vol. 35, p. 16.

• Case of Supervisors of Election, 114 Mass. 247; contra, State vs. George, 29 Pac. Rep. 356; In re Cincinnati Citizens, 2 Flipp. 228. Administrative officers may be removed by the courts. In re Eaves, 30 Fed. Rep. 21.

in the courts by statute, has also been questioned in some jurisdictions. The power to appoint election commissioners not having been characterized by the constitution as a legislative, executive, or judicial power, that instrument does not prohibit the legislature from authorizing the county courts to appoint such commissioners,' commissioners of public parks, and similar officers.2 The circuit courts of the United States appoint supervisors of election.3 But the courts of Massachusetts and Michigan hold that they cannot be authorized to exercise such quasi-executive powers, so as to appoint supervisors of election and surveyors.5

The legislative power to incorporate a locality includes the power to fix its boundary, notwithstanding that private rights may thereby be affected. The legislature may delegate to local bodies or boards of officers the power to determine the extent of territory to be included within the corporate limits, and what property and what persons shall accordingly be subject to municipal rule and taxation. Though the execution of this power involves the exercise of discretion and of power legislative in its nature, in most jurisdictions the courts have entertained no difficulty in executing it.8

An act allowing judges to hold special terms at discretion, and authorizing them to designate the time for holding district

1 People vs. Hoffman, 116 Ill. 587.

2 People vs. Morgan, 90 Ill. 558; People vs. Williams, 51 Ill. 63.

31 U. S. St. at Large, sec. 2012; Ex parte Siebold, 100 U. S. 371; In re Cincinnati Citizens, 2 Flipp. 228; Russell vs. Cooly, 69 Ga. 215.

* Supervisors of Election, 114 Mass. 247.

5 Houseman vs. Montgomery, 58 Mich. 364.

Galesburg vs. Hawkinson, 75 Ill. 153; Kelly vs. Pittsburgh, 104 U. S. 78.

7 People vs. Carpenter, 24 N. Y. 86.

*State vs. Armstrong, 3 Sneed, 634; Keyser vs. Trustees, 16 Mo. 88; Ex parte Cadwell, 3 Bax. 98; City of Wahoo z's. Dickinson, 36 N. W. 318; Willet vs. Belleville, 11 Ga. 1. Comp. Shumway vs. Bennett, 29 Mich. 451; People vs. Nevada, 6 Cal. 143.

courts in newly organized counties within their districts, does not involve a delegation of legislative powers.1

It has been held that the legislature may delegate to the courts the quasi-legislative function of determining whether a proposed local improvement shall be undertaken.2

An act authorizing courts on application to order the building of a bridge over a stream forming a boundary between two towns,3 or on the application of local authorities, and upon notice, to require railroad corporations to erect and maintain gates at crossings with attendants to open and close them, is not an unconstitutional grant of legislative powers to the

courts.4

In naturalizing aliens, courts exercise an administrative power delegated to them not by a commonwealth but by the United States government. Congress adopted the commonwealth tribunals as its agents to exercise this power. The concurrence of the commonwealth legislation adds the sanction of the commonwealth to this delegation of power to the courts. That the act of the court in exercising the power is lawful, is not questioned.5 The commonwealth legislatures may forbid the commonwealth courts to naturalize aliens, or may regulate their exercise of the power."

An evidently non-judicial administrative power exercised by judges and not questioned, is their power to solemnize marriages.7

The legislative delegation to the courts of the power to allow or to disallow coroner's bills of fees and expenses incident to

1 Grinad vs. State, 34 Ga. 270; Ex parte Mato, 19 Tex. App. 112.

2 Bryant vs. Robins, 70 Wis. 258.

3 Matter of Towns of Mt. Morris and Castile, 41 Hun. 29.

People vs. L. I. R. R. Co., 47 St. R. 648.

5 State vs. Penney, 10 Ark. 621.

6 State vs. Judges, 32 Atl. Rep. 743.

7 See N. Y. Laws, 1889, chap. 415.

inquests, was upheld, where such power had been exercised under a statute for thirty-five years.'

Doubts have arisen as to whether acts like those above described, when performed by the courts, are reviewable. It has been said: "Duties of this class, and they are very numerous, necessarily take their character from the departments to which they are respectively assigned. The same power which when exercised by one class of officers not connected with the judiciary would be regarded and treated as purely administrative, becomes at once judicial when exercised by a court of justice. And since judicial power in the constitutional sense is the power pertaining to courts of justice (Webster's definition), or power belonging to or emanating from a judge as such, or the authority vested in judges (Bouvier's definition), it has been held that such administrative powers when exercised by a court become judicial and reviewable by a higher court," if at all.

When similar powers are vested in the officers of the executive department, they upon a like principle ought to be regarded as executive. But where such powers are conferred upon administrative officers not belonging to either of the three departments of government, the legislature may authorize the courts to review, supervise, control, and even amend or modify their acts, whether legislative, executive, or judicial in character, because in such a case the courts would at most be called upon to exercise only administrative powers.

The Interstate Commerce Comission is not an "inferior court" of the United States. It is an administrative, not a judicial, body, and exercises administrative, not judicial, powers. Its members do not possess the constitutional tenure of office during good behavior. Congress may make its findings prima facie evidence in judicial proceedings.2

1 Locke vs. Speed, 62 Mich. 408.

2 Kentucky Bridge Co. vs. R. R. Co. 37 Fed. Rep. 567. See Int. Com. Com mission vs. Brimson, 154 U. S. 447.

CHAPTER XXII

ADMINISTRATIVE OFFICES AND OFFICERS

GREAT misconception has pervaded the authorities as to the content of the departments established by the constitution, especially the executive department.

Considering the purpose for which the distributing clause was inserted in the constitutions, it becomes evident that the clause means that the powers of the central government-not of the local governments-shall be divided into three departments, and that the members of one department shall have no part or lot in the management of the affairs of either of the other central departments. The departments of which the constitutions speak and in respect to which they provide that no person employed in one shall be employed in either of the other two, are the departments of the central government, as expressly defined and limited in the constitutions, and mean that no member of the legislative department, as defined in the constitutions, shall at the same time be a member of the executive or judicial department as therein defined; and vice versa. The constitution only forbids persons charged with the exercise of powers belonging to one department from exercising functions pertaining to the others. But the powers thus referred to must be powers which in their essential nature strictly belong to one of the other departments as defined in the constitution, or which are in express terms conferred upon one of the other departments."

Powers of local government, whether legislative, executive, or judicial in their nature, may each and all be exercised by the 1 People vs. Provines, 34 Cal. 520.

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