SAN ANTONIO & A. P. RY. CO. v. BLAIR, 196 S.W. 1153

HAWKINS, J. House. Bill No. 39, entitled “An act to relieve the crowded condition of the dockets of the Supreme Court,” etc., hereinafter called Relief Act, was passed by the Thirty-Fifth Legislature, and approved March 15, 1917, effective immediately. Acts 1917, c. 76, p. 142.-Shortly afterward, treating said statute as valid, and without then writing upon the subject, our Supreme Court, acting as a court, this writer dissenting, undertook to put it into operation, thereby, in effect, upholding its constitutionality. San Antonio & Aransas Pass Ry. Co. v.

Blair (opinion by our Chief Justice Phillips, filed June 27, 1917) 196 S. W. 502; Bacon v. Russell, 57 Tex. 409; Railway v. Shannon, 100 Tex. 389, 100 S. W. 138, 10 L. R. A. (N. S.) 681; Henderson v. Beaton, 52 Tex. 29; concurring opinion in Terrell v. Middleton, 191 S. W. 1140; People ex rel. Morgan v. Hayne, 83 Cal. 111, 23 Pac. 1, 7 L. R. A. 348, 17 Am. St. Rep. 211; Smith v. Odell, 1 Pin. (Wis.) 449; In re Letcher (Mo.) 190 S. W. 20.

Indeed, the first-mentioned opinion, after referring to the motion in that case and to somewhat similar motions in numerous other cases in this court, as assailing the constitutionality of said act, very plainly declared: “The act was set in motion because of the court’s view that it was constitutional and valid; the various grounds urged against it in all these motions having been fully considered. Had we not determined it to be a valid act, we would not have proceeded under it.

It was intended, therefore, that our action in inaugurating it should serve as in effect a judgment in respect to its validity, and should be so understood.” The manner and form in which said attempt to put said act into operation was made, and in which various proceedings thereunder have been conducted by the “designated Justices of Courts of Civil Appeals” with the sanction and approval of the Supreme Court, and by that court itself, likewise constitute practical constructions of said act, most of which, it seems, are to be adhered to, controlling and directing its operation and effect.

From said opinion in the Blair Case the following explanation is taken: “It should be stated that Mr. Justice Hawkins did not agree with the majority of the court in their determination of the validity Of the act. He accordingly dissented from the court’s action in proceeding under it, announcing that he would later file an opinion expressing his views. He has not completed his opinion, but will file it when finished.

Because of the court’s previous settlement of the question, he concurs in its present action in overruling this and other like motions, referring, however, to his opinion, to be filed, for a statement of his- position.” The term of our court having ended, I come now, in the spare time of vacation days, to a fulfillment of my said promise. The cardinal vices of said Relief Act are twofold; First. Its utter and reckless disregard of elementary and fundamental constitutional limitations and restrictions relating to: (

a) The separation of the legislative and the judicial powers of government, (

b) The investiture, delegation, and exercise of legislative power, (

c) The investiture, delegation, and exercise of judicial power. Second. In depriving litigants of cherished valuable and Constitution-given rights relating to: (

a) The authoritative action by the Supreme Court itself, in contradistinction to the action of any other court, tribunal, or aggregation of individuals, upon cases within the appellate jurisdiction of the Supreme Court, (

b) The decision of such causes by the Supreme Court, as a court, in contradistinction to action by two members thereof acting merely as Justices, (

c) The services of Chief Justices and Associate Justices of Courts of Civil Appeals. And following in that motley train comes a whole brood of lesser evils. Before setting out the text of said Relief Act I call special attention to the following features of the situation:

(1) Said- Relief Act transfers from the lawmaking department, consisting of the House of Representatives, the Senate, and the Governor, and delegates (

a) to the Supreme Court, as a court, and (

b) to a majority of the Justices of that court, as Justices, and (

c) contingently, to an uncertain and shifting aggregation of Justices of Courts of Civil Appeals powers which are distinctly and purely legislative, and which ■have been vested by the Constitution of Texas in the law-making department alone, to wit, the power of determining, to a great extent, what cases shall and what cases shall not be reviewed by the Supreme Court.

(2) It transfers from the Supreme Court, as a cpurt, (

a) to a majority of the Justices of. that court, acting otherwise than as a court, and (

b) contingently, to said aggregation of Justices of Courts of Civil Appeals, powers which are distinctly judicial, and which have been vested by the Constitution in the Supreme Court alone, to wit, the power to pass upon appeals to that court.

(3) It combines, contemporaneously, in one set of persons, and, contingently, in another set of persons, both legislative and judicial powers, as aforesaid, in contravention of the express declaration of said Constitution that each such power shall, be confided to a separate body of magistracy.

(4) It contemplates and authorizes that some three “designated Justices of Courts of Civil Appeals,” hereinafter called designated Justices, not constituting a court, or even an organized tribunal or board, and not acting within the jurisdiction of, or in the exercise of judicial power conferred by the Constitution or laws upon, the courts of which they are members, ‘and not in the exercise of powers conferred by the Constitution upon them as Justices of .those courts, and not acting under the solemnities of any oath pertaining to their duties in the premises, and not acting according to any unvarying statute or fixed rule, but acting merely as a nondescript aggregation of individuals, and as they, in the particular case, and at the time, may see fit, (

a) shall pass upon all referred applications for writs of error in eases which will aggregate perhaps about 95 per cent, of all cases appealed from our nine Courts of Civil Appeals, determining finally therein whether the particular case shall or shall not be admitted into the Supreme Court for actual review upon. its merits and' final decision by that court; and (

b) shall pass also, and finally, upon the merits of all appeals in which they refuse writs of error, amounting in practice to about 80 per cent, of all referred eases, all such actions of such designated Justices, whether dismissing or refusing or granting the writ of error, to be without any official record thereof, and without any provision for enforcing such action in any cause.

(5) It deprives litigants in the Supreme Court of the services and judgment of all members of that court (

a) in passing upon applications for writs of error in all cases referred to such designated Justices; and (

b) in passing finally upon the merits of all causes in which writs of error are refused by such designated Justices, such latter class of cases comprising an overwhelming majority of all causes within the continuing appellate jurisdiction of the Supreme Court. And, even though no application in any case be so referred, said act may, and, at the option of any two members of the Supreme Court, will, in all but three classes of cases, substitute, in lieu of the action of the Supreme Oourt, as a court, upon the application, the final action of any two members of that court, acting in term time or in vacation, as Justices only, and not as a court. . .

(6) The operation of the act, in so far as such designated Justices are concerned, is wholly contingent upon the exercise by (

a) the Chief Justice, or (

b) any two Justices, of the Supreme Court, of the option therein conferred upon that court and Justices thereof.

(7) It almost constantly disrupts and disturbs some three Courts of Civil Appeals, and, indirectly, throws additional cases upon the dockets of all other Courts of Civil Appeals.

(8) It compels some three Justices of as many Courts of Civil Appeals to leave their own courts, to which they were elected, and generally even their own Supreme Judicial Districts, and to forego the exercise of the hig;k judicial powers conferred by the Constitution upon those courts, and the discharge of duties for the performance of which they were sworn, and, at the state capítol, to exercise extraneous pow-ei'S and discharge different duties imposed upon them by the Legislature only, in cases not then within the jurisdiction of any Court of Civil Appeals.

(9) It deprives litigants in those bereaved courts, indefinitely, and possibly continuously for an entire tei’m or more, of the services and judgment of such designated Justices, respectively.

(10) The duties of such designated Justices, as prescribed by said Relief Act, are being performed by them under appointments or designations not made as required by the express provisions of the act.

(11) In the absence of any provision of the Constitution, or of said act, or of any other statute, therefor, a majority only of said designated Justices are acting, from time to time, and are exercising, finally, all of the powers conferred upon them by said act, in numerous causes in which some third designated Justice happens to be disqualified by reason of the fact that the appeal is from a decision of the Court of Civil Appeals of'which he is a member.

(12) In the absence of any constitutional or statutory authority therefor, all decisions and actions of such designated Justices are being reported, from week to week, to the Supreme Court, in the form of mere unsigned memoranda, and are being announced by that court, in open court, and are being recorded in its minutes, as the official “Actions of the Committee of Judges or Courts of Civil Appeals on Referred Applications.” Aside from the record, it is, unfortunately, a fact that such actions of the designated Justices are being announced from week to week, by various newspapers, as the actions of the Supreme Court.

The precedents in constitutional and statutory construction thus set will, I doubt not, long prove to be radically, though insidiously, pernicious in both theory and practice; and the actual operation of the statute, as so construed and applied, almost certainly will entail many grave and untoward consequences, extending through coming years.

Especially is that to be apprehended in cases in which referred applications for writs of error have been or shall be refused, by only two, or even by three, designated Justices; and the general danger is aggravated by the lack of statutory provision for preserving, or even for making an official record or report of their action upon or in relation to such referred applications, or for enforcing the findings or actions of such designated Justices. Never before, in the history of this state, have there arisen in court such important issues so radically affecting our judicial system.

The resulting situation is, in my estimation, one of surpassing gravity. Legislators derive all their powers from the people, through the Constitution. How, then, can they disregard it without destroying the very foundation of their authority? Vattel, p. 31; Kilbourn v. Thompson, 103 U. S. 190, 26 L. Ed. 377. “The difference between a free and an arbitrary government I take to be: That in the former limits are assigned to those to whom the administration is committed; but the latter depends oh the will of the departments, or some of them. Hence the utility of a written Constitution.” Nelson, J., in Kamper v.

Hawkins, 1 Va. Cas. 23. But of what benefit are limitations and restrictions in a written Constitution, if they are not to be observed and enforced? “Written Constitutions are the product of deliberate thought. Words are hammered and crystallized into strength, and if ever there is power in words, it is in the words of a written Constitution. Behind the words is the power of a free people operating through the medium of a constitutional convention, called together for the purpose of framing a fundamental and inviolable system of government. Of all governmental instruments it is the most solemn and powerful.

Its grants are unalterable, its delegations of power unchangeable, and its commands supreme. Until the people themselves shall change or annul their Constitution, all" must obey its mandates. * * * The Legislature cannot for any purpose cross the line which separates the departments and secures the independence of the judiciary. It is not the length of the step inside the sphere of the judiciary that summons the courts to assert their constitutional right and demands of them the performance of their sworn duty, for the slightest encroachment is a wrong to be at once condemned and resisted.

As Daniel Webster said, and Mr. Calhoun substantially repeats, the ‘encroachment must be resisted at the first steps.’ ” State ex rel. Hovey v. Noble, 118 Ind. 350, 21 N. E. 244, 4 L. R. A. 101, 10 Am. St. Rep. 143. “The creation of a thousand forests is in one acorn, and Egypt, Greece, Rome, Gaul, Britain. America, lie folded already in the first man. Epoch after epoch, camp, kingdom, empire, republic, democracy, are merely the application of his manifold spirit in the manifold world.” Emerson’s Essay on History.

So I see in said Relief Act the vital germ which already has broken down constitutional barriers upon legislative authority, and has worked a clear usur-pation of supreme judicial power, and materially has disturbed the constitutional operations of the Supreme Court and of Courts.of Civil Appeals, and which, if it has not already done so, soon may convert all our courts into mere legislative dependencies, instead of a co-ordinate department of -government, and, in due progression trample upon our Bill of Rights and all the liberties and privileges of the individual. “If the Legislature may infringe this Constitution, it is no longer fixed; it is not this year what it was the last; and the liberties of the people are wholly at the mercy of the Legislature.” Roane, J., in Kamper v.

Hawkins, 1 Va. Cas. 20. The transcendent issue which lies wrapped up in said Relief Act is this: Shall plain provisions of the Constitution of Texas be ignored? The vital spirit of that issue sits, seen or unseen, at the hearthstone of every citizen of this state.

The supreme mission of the Supreme Court of Texas has been, while administering justice between litigants, ever to uphold the fundamental principles upon which our state government was founded, to keep visible the established lines of demarcation between the powers of the three co-ordinate departments and to stay the encroachments of any one upon another, to maintain the essential elements of enlightened jurisprudence as written in our state Constitution; to preserve to the keeping of the courts all the judicial power except as otherwise expressly provided by the Constitution, and fearlessly to retain and justly to exercis.e, as a court, in all the causes and matters properly within its own clear and continuing jurisdiction, not a part only, but all and every applicable portion, of that exclusive supreme judicial power which has been vested in it, as a court; and all this, not for the sake of the judiciary, or of that particular court, but because it is a function and duty of that court to do so, and because an actual separation of the three great powers of government is essential to real liberty, and because an independent judiciary constitutes the true cornerstone of all government among freemen.

For years I have earnestly advocated the adoption of such amendments of our Constitution, and such valid legislative and other measures, as, together, would enable our Supreme Court to get and stay abreast of its work; nevertheless, upon questions as to the validity of said Relief Act, that intense desire of mine must yield to the applicable and plain provisions of the Constitution, and upon questions involving constructions of said act that desire must yield to the phraseology of the act itself.

Cost what it may, I will not sacrifice the Constitution — our social compact — upon the altar of but seeming temporary expediency. It was for use in just such emergencies that the Constitution was adopted. I regret that these constitutional questions arise under a statute which directly affects the full exercise of the judicial power of the court of which I am a member; but in the premises I am no more free to withhold a candid expression of my matured judgment than if those questions related solely to any other constitutional court. “The question which faces us is not one of discretion, but of imperative duty.

The duty of maintaining the separation of the departments of the government and the integrity and existence of the courts as established and organized by the Constitution is one of the most important that the judiciary is required to perform. It is the duty of the courts to uphold the Constitution as it is written, and to yield no part of their right or authority. Judges are chosen for the purpose of maintaining the limitations of the Constitution, without which free government cannot exist.

As said by the Court of Appeals of New York: ‘If this provision were intended solely for the protection of the court or its judges, they might waive it; but we do not think it was so intended. It was, in our judgment, like the whole judicial system of the state, intended for the benefit of the. people, and to secure to litigants a forum in which they might have their controversies adjudged.

The jurisdiction which the Constitution preserves in the courts named is inalienable, and carries with it the corresponding duty on the part of these courts to exercise it, when called upon in proper form to do so.’ Alexander v. Bennett, 60 N. Y. 204.” State ex rel. Hovey v. Noble, 118 Ind. 850, 21 N. E. 244, 4 L. R. A. 101, 10 Am. St. Rep. 143, by Chief Justice Elliott.

Consequently, but with due and respectful deference to the joint committee of distinguished lawyers who stood sponsor to the Legislature for the constitutionality of said Relief Act, and to the legislative department, and to my Associates, whose determination of the issues herein discussed is by

section 2 of

article 5 of our Constitution made binding, I consider it my unquestionable duty to express here, in permanent form, and once for all, my deep-rooted and settled convictions: (

a) That, for various reasons, said statute is unconstitutional, and therefore void ; (

b) that, even though it be held to be constitutional and valid, it well may be doubted whether, as it stands, or in connection with kindred previous and contemporary legislation, it is intelligible and workable; and (

c) that, even if it is both valid and workable, the practical construction which the Supreme Court has so placed upon it, in several material particulars, is seriously erroneous.

A statement and discussion of at least some of the grounds supporting those conclusions will, I trust, at least make plain my own attitude in the premises, and may also serve, in future years, as a marker, along the new and rugged way, for a wholesome return to the beaten paths and established principles so plainly blazed out and defined by our organic law, and heretofore generally recognized and followed by the Legislature and by all the courts of this state.

The multiplicity, complexity, and interdependency of the questions and legal principles which are involved, and thé fact that one who writes a dissenting opinion is at the laboring oar, and, unlike the majority of the court, is not in a position to rest his judgment upon a mere ex cathedra statement of his. views, account for, and possibly in some degree excuse, the length to which this opinion may run, and also some repetition. The situation, as I view it, certainly calls for something more than mere quotation of the Constitution.

Said Relief Act is as follows; “An act to relieve the crowded condition of the dockets of the Supreme Court by further regulating the mode in which and the conditions on which judgments of the Courts of Civil • Appeals may be brought befoi’e the Supreme Court for revision, granting additional powers to the Chief Justice and Associate Justices of the Supreme Court and of the Courts of Civil Appeals, as incidental to the offices held by them, providing for compensation of certain Justices of the Courts of Civil Appeals while acting as herein provided, and declaring an emergency. “Be it enacted by the Legislature of the state of Texas: “Section 1.

It is made a condition of obtaining a review upon writ of error, by the Supreme Court, of any final judgment of any Court of Civil Appeals, that good cause therefor first be shown in an application for such writ, as heretofore required, the sufficiency of such cause to be determined as herein provided. “Sec. 2. Provided the Chief Justice of the Supreme Court or any two of the Justices thereof are empowered, as soon as this act shall become a law, by a writing to be recorded in the minutes of the Supreme Court, to designate three of the Justices of the Courts of Civil Appeals to act as hereinafter provided.

The powers given to the Chief Justice, or Associate Justices, of' the Supreme Court, may be exercised from time to time as long as reason therefor may exist, and the personnel of the designated Justices of the Courts of Civil Appeals may be changed as often as may be found advisable, by relieving one, or more, and designating another, or others, in order to interfere as little as possible with the work of the Courts of Civil Appeals, such action to be in writing and recorded, as before; and not more than one Justice shall be designated to serve at any one time from any one of these courts. “Sec. 3.

It shall be the duty of the Justices of the Courts of Civil Appeals so designated, upon receiving notice thereof, to assemble together at the eapitol of the state and to take up, consider and act upon such applications for writs of error, whether then pending or after-wards filed as may be referred to them by [the] Supreme Court or any two Justices thereof, by granting, refusing or dismissing the same in accordance with the practice of the Supreme Court heretofore prevailing; and such designated Justices may make such orders and give such directions, incidental to the consideration and disposition of applications, as are sanctioned by such practice. “Sec. 4.

The granting of an application shall admit the cause into the Supreme Court to be proceeded with by that court as heretofore provided by law.

The refusal or dismissal of an application shall have the effect of denying the admission of the cause into the Supreme Court, except that motions for rehearing may be made to such designated Justices in the same way as such motions to the Supreme Court have been heretofore allowed: Provided, that the refusal or dismissal of any application shall not be regarded as a precedent or authority in any other cause; and, provided, that no one of such Justices shall participate in acting upon an application in a cause decided during his incumbency by the court of which he is a member. “Sec. 5.

The Supreme Court shall still have power to act upon applications for writs of error, when deemed expedient, and the same power is hereby conferred upon the Justices of that court, action by any two of whom shall be sufficient.

And in any cause in which the Judges of the Courts of Civil Appeals shall have disagreed, or which the Courts of Civil Appeals shall have held differently upon the same question of law from the holding of another Court of Civil Appeals or of the Supreme Court, or shall have declared void a statute of the state, the application for writ of error shall be passed upon by the Supreme Court. “Sec. 6. The powers herein conferred upon the Chief Justice and Associate Justices of the Supreme Court and of the Courts of Civil Appeals are declared to be incidental to the offices held by them respectively. “Sec. 7.

Justices of the Courts of Civil Appeals shall be entitled to have their actual and necessary expenses incurred in going to, remaining at and returning from the capitol in the discharge of the additional duties hereby imposed upon them, paid out of the state treasury from warrants drawn by the comptroller, based upon itemized accounts of such expenses, verified by tibe certificate or affidavit of the claimant. “Sec. 8.

The great delays, often amounting to a denial of justice, in the disposition of business in the Supreme Court, owing to the accumulation of more work than can be done by the judges thereof, create an imperative public necessity and an emergency for the suspension of the constitutional rule requiring bills to be read on three several days in each house, and for putting this act in force from and after its passage, and it is accordingly so enacted.” The Constitution of Texas provides: “The powers of the government of the state of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are legislative to one, those which are executive to another, and those which are judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.”

Section 1, art. 2. “The legislative power of this state shall be vested in a Senate and a House of Representatives, which together shall be styled ‘The Legislature of the "State of Texas.’ ”

Section 1, art. 8. “No law shall be passed except by bill.”

Section 30, art. 3. Following up the above-mentioned sharp distinction in classification of governmental powers,

article 5, the present judiciary

article of our Constitution, as amended in 1891, in making a careful distribution of judicial power, provides: “The judicial power of this state shall be vested in one Supreme Court, in Courts of Civil Appeals, in a. Court of Criminal Appeals, in district courts, in county courts, in commissioners’ courts, in courts of justices of the peace, and in such other courts as may be provided by law. * * * The Legislature may establish such other courts as it may deem necessary, and prescribe the jurisdiction and organization thereof, and may conform the jurisdiction of the district and other inferior courts thereto.”

Section 1, art. 5. “The Supreme Court shall consist of a Chief Justice and two Associate Justices, any two of whom shall constitute a quorum, and the concurrence of two judges shall be necessary to the decision of a case.”

Section 2, art. 5. “The Supreme Court shall have appellate jurisdiction only, except as. herein specified, which shall be coextensive with the limits of the state. Its appellate jurisdiction shall extend to questions of law arising in cases of which the Courts of Civil Appeals have appellate jurisdiction under such restrictions and regulations as the Legislature may prescribe.

Until otherwise provided by law, 'the appellate jurisdiction of the Supreme Court shall extend to questions of law arising in the cases in the Courts of Civil Appeals in which the judges of any Court of Civil Appeals may disagree, or where the several Courts of Civil Appeals may hold differently on the same question of law, or where a statute of the state is held void.

The Supreme Court and the Justices thereof shall have power to issue writs of habeas corpus as may be prescribed by law; and, under such regulations as may be prescribed by law, the said courts and the Justices thereof may issue the writs of mandamus, procedendo, certiorari, and such other writs as may be necessary to enforce its jurisdiction. The Legislature may confer original jurisdiction on the Supreme Court to issue writs of quo warranto and mandamus in such eases as may be specified, except as against the Govern- or of the state.

The Supreme Court shall also have power, upon affidavit or otherwise as by the court may be determined, to ascertain such matters of fact as may be necessary to the proper exercise of its jurisdiction.”

Section 3, art. 5. “The Court of Criminal Appeals shall consist of three judges, any two of whom shall' constitute a quorum,- and the concurrence of two judges shall be necessary to a decision of said court.”

Section 4, art. 5. “The Court of Criminal Appeals shall have appellate jurisdiction coextensive with the limits of the state in all criminal cases of whatever grade, with such exceptions and under such regulations as may be prescribed by law. The Court of Criminal Appeals and the judges thereof shall have the power to issue the writ of habeas corpus, and, under such regulations as may be prescribed by law, issue such writs as may be necessary to enforce its own jurisdiction. The Court of Criminal Appeals shall have power, upon affidavit or otherwise, to ascertain such matters of fact as may be necessary to the exercise of its jurisdiction.”

Section 5, art. 5. “The Legislature shall, as soon as practicable after the adoption of this amendment, divide the state into not less than two nor more than three supreme judicial districts, and thereafter into such additional districts as the increase of population and business may require, and shall establish a Court of Civil Appeals in each of said districts, which shall consist of a Chief Justice and two Associate Justices, who shall have the qualifications as herein prescribed for Justices of the Supreme Court.

Said Courts of Civil Appeals shall have appellate jurisdiction coextensive with the limits of their respective districts, which shall extend to all civil cases of which the district courts or county courts have original or appellate jurisdiction, under such restrictions and regulations as may be pi’escribed by law: Provided, that the decisions of said courts shall be conclusive on all questions of fact brought before them on appeal or error. “Each of said Courts of Civil.

Appeals shall hold its sessions at a place in its district to be designated by the Legislature, and at such time as may be prescribed by law. * * * Said courts shall have such other jurisdiction, original and appellate, as may be prescribed by law.”

Section 6, art. 5. thereof, shall have power to issue writs of ha-beas corpus, mandamus, injunction, and certiora-ri, and all writs necessary to enforce their jurisdiction.”

Section 8, art. 5. Concerning district courts and district judges and their powers, our Constitution provides, among other things: “Said court, and the judges And in providing for county courts and county judges, and defining their powers, it declares: “And the county court, or judge thereof, shall 'have power to issue writs of injunction, mandamus, and all writs necessary to the enforcement of the jurisdiction of said court, and to issue writs of habeas corpus in cases where the offense charged is within the jurisdiction of the county court, or any other court or tribunal inferior to said court.”

Section 16, art. 5. That Constitution provides; also: “No person shall hold or exercise, at the same time, more than one civil office of emolument, except that of justice of the peace, county commissioner, notary public, and postmaster, unless otherwise specially provided herein.”

Section 40, art. 16. “All courts shall be open; and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.”

Section 13, art. 1. “No citizen of this state shall be deprived_ of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.”

Section 19, art. 1. Said provisions in our organic law fairly contemplate and require, among other things:

(1) That, except as therein provided, the Legislature only shall exercise legislative power; it cannot be delegated.

(2) That, with the exceptions therein specifically mentioned, all the “judicial power” of this state shall be vested in courts, as courts; it cannot exist elsewhere.

(3) That, as constituting such distinct exceptions, only certain carefully enumerated powers shall vest in justices and judges of certain enumerated courts other than Courts of Civil Appeals, to be exercised in the capacities of justices or judges, in chambers or in vacation, and not as a court.

(4) That the appellate jurisdiction of the Supreme Court is, indeed, largely the subject of legislative control; but the judicial power of that court, having been conferred thereon by the Constitution itself, cannot be shifted elsewhere by even the Legislature. This vital distinction is of paramount and controlling importance: but it is one which said Relief Act seems wholly to have disregarded. And upon that rock of our Constitution said opinion of the majority of our Supreme Court in the Blair Case must suffer ultimate shipwreck.

Calling our granite capitol a kite will not make it fly. “There is no magic in mere words to change the real into the unreal.” Neither the lapse of time nor practice of courts or judges can vindicate the exercise of judicial power under an unconstitutional statute. Titus v. Latimer, 5 Tex. 433; Rochelle v. Lane, 105 Tex. 350, 148 S. W. 560.

(5) That, the Constitution itself having expressly defined the appellate jurisdiction of the Supreme Court, subject only to such changes as the Legislature may see fit to make therein, in conformity with the terms and provisions of that instrument, any and all such chang’es must be made, directly, by the Legislature itself, in the exercise of its own judgment and discretion. And such power may not be exercised, even by the Legislature, except through a statute which specifies, unconditionally, what classes "of cases shall or shall not fall and lie within that jurisdiction — a statute which operates alike, at all times, upon all cases of the same class and character.

(6) That any and all such cases as shall so fall and lie within the appellate jurisdiction of the Supreme Court, whether such jurisdiction shall then exist (

a) by virtue of the enumeration in the Constitution of the three classes of cases mentioned in said

section 3 of

article 5, or (

b) by virtue of some statute specifically enlarging or diminishing that jurisdiction (and, as a corollary, that all questions involved in ascertaining or determining that jurisdiction), shall be passed upon and decided by the Supreme Court itself, as a court; the concurrence of two Justices thereof being sufficient, however, to' control the action of that court.

(7) That each court in our judicial system, as occasion therefor may arise, shall exercise all of the jurisdiction and all of the judicial power conferred, and shall perform all of the duties imposed, upon it by the Constitution and laws, and that each justice and each judge of any such court, as occasion may require, shall himself exercise all powers and perform all duties so conferred or imposed upon him as such justice or judge; and, as a corollary, that every justice or judge of any court shall be and remain, as far as reasonably may be possible, and with ra,re exceptions, in attendance thereon, during its terms, contributing his entire working time and energies to the consideration and proper disposition of cases coming before such court, and to matters, if any, properly coming before him as such justice or judge of such court.

(8) That no Justice of any Court of Civil Appeals shall, at the same time, hold any other office of emolument.

(9) That, inasmuch as Courts of Civil Appeals exist by virtue of express provisions of the Constitution and statutes, with certain definitely prescribed judicial powers and duties, the Legislature, whether acting directly or through delegated authority, has no power to invade those courts and take therefrom duly elected or appointed qualified and acting Justices thereof, and impose upon them, either as such Justices or as individuals, additional conflicting powers, and require of them, at the state capitol, which in all instances save one is far removed from the location of their respective Courts of Civil Appeals, the exercise of powers and the discharge of duties which in no wise are related to the constitutional or statutory jurisdiction or powers or duties of Courts of Civil Appeals., or of members thereof, and which materially interfere with the proper exercise of powers and the efficient discharge of duties which the Constitution and laws have imposed upon them as members of those high appellate tribunals; such legislative action constituting an unwarranted invasion of their rights and privileges as members of those courts.

(10) That the Legislature shall not deny to litigants in the Supreme Court the exercise, by that court, in their cases, of the supremff judicial power which exists in that court only, nor deliberately, and for extended periods of time, deprive litigants in any Court of Civil Appeals of the services and judgment of the Chief Justice or of an Associate Justice of that court.

The above-mentioned plain and undeniable features of the fundamental law of the land-embodying basic principles of our entire judicial system — should be kept in mind in studying said Relief Act, and by them its validity should be tested; and, if it be found or held valid in the light of those principles, its terms and provisions should be construed and applied. For the sake of perspective, certain salient features of said Relief Act are outlined, just here; consideration of details being reserved, for convenience, to subsequent portions of this discussion. (

A) Its purpose is “to relieve the crowded condition of the dockets of the Supreme Court,” and to prevent “delays, often amounting to a denial of justice, in the disposition of business in the Supreme Court, owing to the accumulation of more work than can be done by the judges thereof.” Caption;

section 8. (

B) Toward that highly laudable objective, it moves, along converging lines, as follows: (1) “By further regulating the mode in which and the conditions on which judgments of the Courts of Civil Appeals may be brought before the Supreme Court for revision.” The “mode” of the appeal to the Supreme Court, so further regulated, is the long-established statutory appeal by means of a petition or application for a writ of error (R. S. art. 1540 et seq.), not embracing presentation of cases upon “certified questions” (R. S. art. 1619).

The newly added and more onerous condition precedent for obtaining a “revision” (caption), or a “review” (section 1) by the Supreme Court, of any such appealed case — or, in other words, for securing “the admission of the cause into the Supreme Court” (section 41 for consideration and review by that court upon its merits — is that such application shall first be granted (sections 1 and 4).

(2) By creating two additional instrumentalities or agencies which may pass upon all but an excepted few applications for writs of error, “dismissing” or “refusing” or “granting” same; the exercise of that power by one of those new agencies being contingent upon the authorized reference of the application. Caption;

section 3. Under the terms of the Relief Act, the power of dismissing, refusing, or granting such applications, which heretofore have been restricted to the Supreme Court, as a court, now may be exercised (

a) by that court, as heretofore; or (

b) by any two Justices of that court, acting as such justices, and not as a court, in term time or in vacation, or (

c) with certain stated exceptions, and) contingently, by any throe “designated Justices of Courts of Civil Appeals,” acting otherwise than as a court, in term time or in vacation (sections 5 and 3). (

C) The powers of said three several and distinct instrumentalities or agencies in relation to dismissing, refusing, and granting “applications” upon which they, respectively, are authorized to act (excepting the power to act upon motions for rehearing thereon, which seems to be restricted to such “designated Justices of Courts of Civil Appeals” in cases so referred to them,

section 4), are, for the most part, co-ordinate, being largely incidental in nature and character, and having, in most respects, precisely similar legal and practical effects, viz.:

(1) Dismissal or refusal of an application for a writ of error has tiie primary effect of “denying the admission of the cause into the Supreme Court,” except that when such dismissal or refusal is by designated Justices of Courts of Civil Appeals a motion for a rehearing may be filed and they may act thereon, and has also the ultimate effect of finally disposing of the appeal. rThereunder what, under our Constitution, is legislative power is to be exercised by each of said three instrumentalities or agencies, in determining whether a particular cause shall or shall not be admitted to the Supreme Court “for revision” upon its merits (Const, art. 5, § 3); and judicial power is to be exercised by each of those instrumentalities or agencies (

a) in passing upon the regularity of the appeal; (

b) in determining jurisdiction ; (

c) in passing upon the merits of the appeal, especially when the application for a writ of error is “refused,” thereby making final and irremediable disposition of the appeal, and thus, in most instances, disposing finally of the ease. Here is found, I think, a distinct blending of legislative power with judicial power — both to be exercised by the same instrumentality or agency, or persons, at the same time, in the same cause. Caption; sections 1, 2, 3, 4, and 5. But see Const, art. 2, § 1.

However, “the refusal or dismissal of any application shall not be regarded as a precedent or authority in any other cause” (section 4), whereby such action is denuded of an important element of supreme judicial power and authority. And no provision is made for enforcement of any act of such designated Justices — another element of the exercise of supreme judicial power being thus denied. (2) “The granting of an application shall admit the cause into the Supreme Court” for decision upon its merits. Caption;

section 4. (

D) Designated Justices of Courts of Civil Appeals, acting together, upon referred applications, and any two of the Justices of the Supreme Court, acting together, may act contemporaneously, or at different times, in term time, or in vacation, upon different applications for writs of error, in cases of the same class, and even in the same case: and, during term time, the Supreme Court, may act, as formerly, upon any unreferred application. Referred applications may include any application not falling within one of the three enumerated classes of cases upon which the Supreme Court must act as a court.

Sections 5 and 3. (Ei) It is made the duty of the designated Justices to act upon all such referred applications, regardless of whether they were or wore not pending when said act took effect.

Section 3. At that date there were pending upon the docket of the Supreme Court 352 applications for writs of error, and of them probably 95 per cent., or nearly so many, were so referable; and of the applications in those cases the designated Justices have had referred to them and have disposed of 241, dismissing 20, granting 41, and refusing 180. Of applications filed since said act became effective, 90 have been referred to and acted upon by the designated Justices.

Unquestionably, therefore, the contemplated practical effect of said act was and is to transfer from the Supreme Court to such designated Justices, in all referred cases, the exercise of either all, or a material portion, of the supreme judicial power of the state which the Constitution vests in the Supreme Court as a court.

In other words, under and in accordance with the terms and provisions of said Relief Act, a citizen of Texas may be deprived of his property without any hearing whatever by the Supreme Court of his timely and proper appeal (1) in a case which duly had reached the Supreme Court and was there pending upon its application docket, and 'was clearly within the appellate jurisdiction of that court in strict conformity with the Constitution and laws of this state, when said Relief Act took effect; and (2) in a case in which the application was filed after the taking effect of said Relief Act, but in strict conformity with all applicable provisions of pre-existing laws, not one of which has been expressly repealed, and all of which appear to be in full force and effect, at least except in so far as their operation is stopped, stayed, or changed, if at all, by said Relief Act.

The principal thought which runs like a thread throu"h said entirely novel and unprecedented Relief Act seems to he that the Supreme Court now has, and in future almost certainly will have, upon its application docket and its cause docket more cases than can be disposed of by that court in due or reasonable time, creating a necessity for a legislative agency of three additional men to perform nearly all of the work of that court upon its application docket; leaving that court free to> devote almost all of its time to its submission docket.

An incidental purpose seems to be to confer upon any two Justices of the Supreme Coui-t certain powei's not conferred upon, but actually withheld from, them by our Constitution.

Article 5, § 3;

article 2. § 1. I allude to (

a) the legislative power of detox-mining what cases shall, and what cases shall not, be reviewed by the Supreme Court, as a court; and to '(

b) the judicial power of passing upon appeals, especially in cases wherein the application is dismissed or the writ of eri-or is' refused. Said incidental, but extremely important and unconstitutional, purpose and effect of said act seems to be regarded by my Associates as too unimportant for specific mention. In working out said main design, said Relief Act creates a new and pui-ely legislative agency which is not a court, and upon it confei-s the same legislative power which the Constitution restricts to the Legislature (article 5, § 3, and

article 3, § 1), and also much of the supreme judicial power which the Constitution restricts to the Supreme Court (article 5, § 3). It confers, also, like legislative power upon the Supreme Court, as a court, and upon any two Justices thereof, as Justices: and upon the latter it confers also judicial powers which have been intentionally denied by the Constitution.

Article 5, § 3. (

P) An unusual and very remarkable feature of said Relief Act is that the assistance which the three additional men are to render the Supreme Court in clearing its dockets is to be rendered, not in examining certain cases and reporting conclusions to the Supreme Court, for ratification and adoption, or modification, or rejection, by that court, but in doing finally, in probably í)5 per cent, of all cases appealed from all nine Courts of Civil Appeals, a very large share, and in doing, finally and irremediably, in probably 70 per cent, of all cases appealed from said Courts of Civil Appeals, absolutely all, of the work which heretofore has been done in such cases by the Supreme Court, although all of that work still remains within the exclusive final appellate jurisdiction of that court by virtue of pre-existing and continuing laws.

In short, instead of assisting in doing the constitutional and statutory work of the Supreme Court, subject to its approval and adoption, such additional men are to do, absolutely, about three-fourths of the work which, for years, has been done by that court — exactly the same character of work upon which, for many years, that court has expended faithfully just about three-fourths of its entire working time and energies.

One practical effect of the act, therefore, is to create by statute what is, in most respects, Supreme Court No. 2, to work in almost full co-ordination with our constitutional Supreme Court, exercising what amounts, to a great extent, and in most respects, to concurrent jurisdiction and coequal judicial powers, although our Constitution declares that there shall -be “one Supreme Court,” and therein lodges exclusively the supreme judicial power.

Article 5, § 1. (

G) Neither said Relief Act nor any other statute makes any provison whatever for enforcing judgments, orders, or actions of the designated Justices in any cause. Among the material questions which said Relief Act presents are these:

(1) May the Legislature delegate its constitutional authority to determine what cases shall or shall not be reviewed, upon their merits, by the Supremo Court?

Article 3, § 1.

(2) May the Legislature prevent, abridge, shift, or transfer elsewhere, in causes within the appellate jurisdiction of the Supreme Court pursuant to pre-existing and still operative statutes, the exercise of all, or even part, of the supreme judicial power which our Constitution itself has vested in that court alone?

Article 5, § 3.

(3) If the second question be answered affirmatively, may that authority of the Legislature be delegated to, and be exercised by, either the Supremo Court or a majority of its members?

(4) If the second question be answered affirmatively, may the exercise of that supreme judicial power be transferred by the Legislature to an aggregation of members of other constitutional courts?

(5) If the fourth question be answered affirmatively, may such transfer be made contingent upon the will and action of either the Supreme Court or a majority of its members? Bach of these five questions should, I think, be answered negatively. From the provisions of our state Constitution it is evident that it was the intention of the framers of that instrument that legislative power shall be restricted to the Senate, the House of Representatives, and the Governor (article 3, § 1), and that the judicial power shall be restricted thus: (

a) To certain courts therein enumerated.

Article 5, § 1. (

b) In special instances, and in only carefully stated extent, to certain therein enumerated justices or judges, not including Justices of Courts of Civil Appeals.

Article 5, § 3. (

c) To other courts to be created and established by the Legislature.

Article 5, § 1. Thereby is excluded the idea of conferring legislative power upon the Supreme Court, or upon Justices thereof, or upon Justices of Courts of Civil Appeals, thereby is excluded the idea of conferring, by statute, additional judicial power upon Justices of the Supreme Court, as such Justices; and thereby is excluded, also, the whole idea of conferring, by statute, upon an aggregation of Justices of Courts of Civil Appeals, any judicial power whatsoever, to say nothing of that supreme judicial power which, in relation to civil actions, the Constitution has vested in the Supreme Court as a court, and in that court alone.

Article 5, § 3. Herein the expression “supreme judicial power” is used, throughout, as relating to civil actions only. Supreme judicial power in criminal cases is, of course, vested in our Court of Criminal Appeals.

Article 5, § 5. In order definitely to eliminate one question which is not material to the inquiry bqfore us, it may be conceded, for the sake of the argument, that the Legislature has authority to create a new appellate court, intermediate between Courts of Civil Appeals and the Supreme Court. To the constitutional declaration that the judicial power of this state shall be vested in certain enumerated courts are added the words, “and in such other courts as may be provided by law.”

section 1, art. 5. Again, the same

section provides for the establishment of other courts by declaring “the Legislature may establish such other courts as it may deem necessary, and prescribe the jurisdiction and organization thereof”; but to that it adds, “and may conform the jurisdiction of the district and other inferior courts thereto.” The last-quoted clause, if taken by itself, may be regarded as a restriction, carrying the implication that the Legislature may not conform the jurisdiction of the Supreme Court, or of Courts of Civil Appeals, to the jurisdiction of such “other courts”; the enumerated appellate courts not being “inferior” courts.

But, be that as it may, and without ever reaching the question of the power of the Legislature to authorize the transfer, from the Supreme Court to some other court, tribunal, or aggregation of individuals, of cases already within or subsequently coming within the appellate jurisdiction of the Supreme Court pursuant to statute, it may be conceded, though I do not now admit, that the Legislature validly may create a court of review intermediate between Courts of Civil Appeals and the Supreme Court, and provide that appeals shall lie from Courts of Civil Appeals to such new court, and thence to the Supreme Court.

Whether our Constitution permits that may be a pertinent question in this connection, but its determination is not essential, although it might be helpful, in reaching a correct conclusion as to the validity of said Relief Act; because, even if it be conceded that such power does exist in the Legislature, it is clear that the Legislature, in’ the enactment of said Relief Act has not attempted to exercise that authority. Such designated Justices of Courts of Civil Appeals do not constitute any court.

Furthermore, I do not question, but freely concede, and do not doubt, that our Legislature has ample power and authority to create a new tribunal or agency, and to charge it with the duty of “aiding” the Supreme Court in its labors upon either its application docket, or its submission docket, or both, with the proviso, however, that the work of such tribunal or agency shall not have the quality of finality, but shall be reported to the Supreme Court for modification, rejection, or adoption by that court, as a court, in the exercise of its final appellate jurisdiction as conferred upon it by the Constitution or by the Legislature pursuant to constitutional provisions, and in the ultimate and exclusive exercise therein of the supreme judicial power which the Constitution has vested in it, as a court.

That the Legislature may create such an assisting tribunal, instrumentality, or agency has -been generally recognized, and held by decisions of courts of last resort in other states, several of which are cited herein, and has been expressly held by the Supreme Court of this state in sustaining the validity of our old Commission of Appeals, after the Act of July 9 (9 Gam. Laws, 62), which created it, had been amended by Act Feb. 9, 1881 (9 Gam.

Laws, 96), whei’e-in, in lieu of the pre-existing provision that no case should be referred by the Court of Appeals or by the Supreme Court to said Commission, except by written consent of parties litigant, it was provided that either of those appellate courts, without consent of the parties, might refer cases to such Commission for examination and report; the court from which it was so referred having reserved authority to reject, modify, or adopt the report of the Commission in the particular case, and being thereby placed under the duty of exercising that authority in each case. Stone v. Brown, 54 Tex. 830.

That much our Constitution of 1876 required, and as much is required by said judiciary

article as it now stands. However, said distinguishing feature of said amendatory act of 1881 (Laws 1881, c. 7) is conspicuously and fatally absent from said Relief Act of 1917. The powers which the latter seeks to confer upon designated Justices of Courts of Civil Appeals are not only not simply in aid of the Supreme Court, but are in direct contravention and usurpation of much of its continuing final appellate jurisdiction and of much of its supreme judicial power. Obviously that act was not adopted in an effort to exercise said admitted power.

To reach sound conclusions as to the validity of said Relief Act, and especially as to so much thereof as attempts to confer judicial power upon Justices of the Supreme Court, and upon Justices of Courts of Civil Appeals, as Justices only, it is essentially necessary to get and keep clear conceptions of what our state Constitution means by “courts,” “justices,” “judges,” and “judicial power,” and of the elementary and radical distinction which, in apportioning “judicial power,” that instrument constantly draws between courts, upon one hand, and justices or judges, upon the other hand.

The meaning of the word “court” depends upon the context. Railway v. Cox, 104 Tex. 556, 140 S. W. 1078; Rochelle v. Lane, 105 Tex. 350. 148 S. W. 560; Colo. & S. Ry. Co. v. Hamm, 47 Tex. Civ. App. 196, 103 S. W. 1125. and oases cited; Wilkerson v. Ward (Civ. App.) 135 S. W. 692; Sartin v. Snell. 87 Kan. 485, 125 Pac. 47, Ann. Cas. 1913E, 384. The signification of “courts” and of “justices” and “judges,” as those words are used in said judiciary article, are as below indicated.

Courts and judges, and their respective functions and powers, are defined and discussed by an able Texas author as follows: “A court is an agent of sovereignty, created by it or under its authority, consisting of one or more officers, for the purposes of hearing and determining issues of law and fact regarding legal rights. and alleged violations thereof, and applying the sanctions of the law, exercising its powers in due course of law, at times and places previously determined by lawful authority.

A court * * * is the tribunal created by sovereignty as an agent to administer justice judicially, at designated times and places. As an agency of sovereignty it exercise? delegated powers and administers the will of sovereignty as expressed and embodied in the law. * » * The judicial function of government involves the exorcise of three powers:

(1) The power to investigate and decide the facts and apply the law to the facts ascertained.

(2) The power to determine and announce the result of the investigation and application.

(3) The power to enforce, or, more accurately, to supervise, the enforcement of the result as announced. The courts of a government are the tribunals through which it exercises this judicial function. *_ * * A court, considered abstractly, exists only in legal contemplation. * * * All of its functions must be discharged through natural persons, and the law frequently speaks of these persons in their official capacity as constituting the court. These officers comprise a judge or judges, a jury, a clerk, and an executive officer known as marshal, sheriff, constable, etc., and attorneys at law.

It is manifest that an agency as complicated and important as a court cannot be operated without some responsible head, who is authorized to give general direction to its operations and supervise the action of all its subordinate and correlated parts. The officer occupying this position is the judge. One such officer is essential to the practical working of the court. Frequently there is a larger number of thorn, with some one designated to act as the presiding officer, or chief, among them. The judge is the head of the court, presides at its sessions, and exercises general control over all its actions.

He decides all questions of law arising in the course of the trial, determines such facts as arise incidentally, hears and decides all motions during the trial, and determines what judgment shall be rendered. He supervises and directs the clerical officers in keeping the records and issuing process, and the executive officers in the discharge of their duties.” Townes’ Ele. Law (2d Ed.) pp. 447, 448. See, also, 11 Cyc. 654, and eases cited. “A judge is a public officer, who, by virtue of his office, is clothed with judicial authorities.” Todd v. U. S., 158 U. S. 278, 15 Sup. Ct. 889, 39 L.

Ed. 982. “A judge is an officer of the state, charged with the duty of seeing that the law is faithfully administered.” Cox v. State, 8 Tex. App. 254, 34 Am. Rep. 746. See, also, 23 Cyc. 504, and cases cited. “A court must act as an organized body of judges.” Cooley’s Const. Lim. (5th Ed.) 115.

The Constitution of Michigan (section 1, art. 6) provided: “The judicial power is vested in one Supreme Court, in circuit courts, in probate courts, and in justices of the peace.” In construing that provision it was said: “By ‘courts,’ as the word is used in the Constitution, we understand permanent organizations for the administration of justice, and not those special tribunals provided for by law, that are occasionally called into existence by particular exigencies, and that cease to exist with such exigencies.” Streeter v. Paton, 7 Mich. 348. See, also, Shurbun v. Hooper, 40 Mich. 503, and Bissell v.

Heath, 98 Mich. 477, 57 N. W. 585. Evidently, in contemplation of said judiciary

article of our state Constitution, “a court is not a judge, nor a judge a court.” Todd v. U. S., 150 U. S. 278, 15 Sup. Ct. 889, 39 L. Ed. 982. The phrase “judicial power,” as used in our state Constitution, has a well-considered, and what heretofore has been understood to be a firmly settled meaning. That phrase has been defined and discussed as follows: “By the judicial power of courts is generally understood the power to hear and determine controversies between adverse parties and questions in litigation.” State v. Le Clair, 86 Me. 522, 30 Atl. 7, 9; Armstrong v. Murphy, 65 App. Div. 126, 72 N. Y. Supp. 475.

See, also, Daniels v. People, 6 Mich. 388; Underwood v. McDuffee, 15 Mich. 361, 93 Am. Dec. 194; Risser v. Hoyt, 53 Mich. 185, 18 N. W. 61]. “It is one of the striking and peculiar fea» tures of judicial power that it is displayed in the decision of controversies between contending parties, the settlement of their rights, and the redress of their wrongs. Inhabitants of Durham v. Inhabitants of Lewiston, 4 Me. (Greenl.) 140, 143.” “It is the province of judicial power to decide private disputes between or concerning individuals. Sanders v.

Cabaniss, 43 Ala. 173, 181.” “Judicial power is power belonging to or emanating from a judge as such. Webster’s definition of the word ‘judicial’ is ‘pei’tinent to courts of justice, as judicial power.’ State v. Noble, 118 Ind. 350, 21 N. E. 244, 248, 4 L. R. A. 101, 10 Am. St. Rep. 143.” “Judicial power is whatever emanates from a judge ns such, or proceeds from courts of justice. Merchants’ Nat. Bank v. Jaffray, 36 Neb. 218, 54 N. W. 258, 259, 19 L. R. A. 316.” “ ‘Judicial power’ is well defined in the Century Dictionary: ‘(

a) The authority to determine the rights of persons or property by arbitrating between adversaries in specific controversies at the instance of a party thereto. * * * (

c) A power conferred upon a public officer, involving the exercise of judgment and discretion in the determination of questions of right in specific cases affecting the interest of-* persons or property, as distinguished from ministerial power or authority to carry out the mandates of judicial power or of the law.’ Walker v. Maxwell, 68 App. Div. 196, 74 N. Y. Supp. 94, 96.” The foregoing

definitions are from 4 Words and Phrases, 3860, 3861. “Judicial power can mean nothing more nor less than the power which administers justice to the people, according to the prescribed forms of law.” State v. Dry, 4 Mo. 120. The five next following

definitions of “judicial power” are from 23 Cyc. 1620, 1621: “The authority vested in some court, officer, or person to hear and determine when the rights of persons or property or the propriety of doing

an act is the subject-matter of adjudication.” Merlette v. State, 300 Ala. 42, 14 South. 562; Grider v. Tally, 77 Ala. 422, 54 Am. Rep. 65. “The authority or power vested in the judges or in the courts”—citing Bouv. L. Dict.; State v. Noble, 118 Ind. 350, 21 N. E. 244, 4 L. R. A. 101, 10 Am. St. Rep. 143; Home Ins. Co. v. Flint, 13 Minn. 244 (Gil. 228); Gilbert v. Commissioners, 11 Utah, 378, 40 Pac. 264; Improvement Co. v. New Whatcom, 20 Wash. 53, 54 Pac. 774: State v. Hyde, 121 Ind. 20, 22 N. E. 644; People v. Salsbury, 134 Mich. 537, 96 N.

W. 936. “The power exercised by courts in hearing and determining cases before them or some matter incidental thereto and of which they have jurisdiction” — citing Musser v. Adair, 55 Ohio St. 466, 45 N. E. 903. “The-power to interpret the Constitution and the laws and make decrees determining controversies” — citing State v. Hyde and People v. Salsbury, supra. “The power which adjudicates upon and protects the rights and interests of individual citizens, and to that end construes and applies the laws”—citing Cooley’s Const. Lim.; People v. Simon, 176 Ill. 165, 52 N. E. 910, 44 L. R. A. 801, 68 Am. St.

Rep. 175; People v. Chase, 165 Ill. 527, 46 N. E. 454, 36 L. R. A. 105; Landowners v. People, 113 Ill. 296. “The functions assigned to the judge under Act Eeb. 18, 1836 (P. L. p. 40), to take evidence of the refusal of the Bank of the United States to pay in gold or silver its promissory notes, are judicial.

In re Kuhn, 2 Ashm. (Pa.) 170. “We regard it as an indisputable proposition that where the inquiry to be made involves questions of law as well as fact, where it affects a legal right, and where the decision may result in terminating or destroying that right, the powers to be exercised and the duties to be discharged are essentially judicial.” Commonwealth v.

Jones, 73 Ky. (10 Bush) 749. “Tlie duties performed by the officer, or the jurisdiction appertaining to the office, may be looked to to determine, in a case where it is not made clear by the Constitution or the statute, the inquiry as to whether a particular office is a judicial office or not.” Waldo v. Wallace, 12 Ind. 574. With reference to the powers of a “master” it was said: “He is but the ministerial officer of the court, to perform such duties as may be required of him by the chancellor in the performance of his judicial functions.

His powers ai’e delegated to him by the court, and the court can confer on him no judicial powers. Those powers ai’e vested in the judiciary, and cannot be delegated to any but persons belonging to that department -of government. All the acts of the master become binding only by being approved and adopted by the court. Hence the court alone can find, adjudge, and decree, so as to bind the parties and the subject-matter.” Hards v. Burton, 79 Ill. 509.

The water commissioners’ statute of Wisconsin was attacked upon the ground that it created a tribunal and conferred “judicial powers upon it in contravention of the Constitution, which vests the whole judicial power of the state in courts therein specified.” In view of the fact that the action of the commissioners was not made final, the court upheld its validity, saying: “The first objection to the validity of the statute rests upoti the assumption that the commissioners constitute an independent tribunal. This is incorrect.

They are mere referees, and as such are only aids of the court, through whom and by whose investigations it possesses' itself of the facts of the case, to the end that it may award the proper judgment. No valid reason occurs to us for holding the statute void,, which would not he equally applicable to any law authorizing a cause to be referred to a referee to hear, try, and determine the same, unless such reason is found in the provision which; assumes to make the report of the commissioners binding upon the partSbs before the court, acts upon it. It may be doubtful whether that is a valid provision.

But, if it is not, wer think it may be rejected without impairing the valid portions of the statute. There is no reason to believe that the statute would not have been enacted just as readily without that provision as with it. This is the test. State v. Dousman, 28 Wis. 541, and cases cited. Eliminate that provision, and we have a statute providing for a simple reference of a cause to referees to hear, try, and determine the same, with directions to report the evidence and their conclusions upon it to the court for its information, to enable it to give the proper judgment.

Of the validity of such statutes there can be no doubt.” Janesville Mfg. Co. v. Ford, 55 Wis. 200, 12 N. W. 378. . In discussing a statute authorizing a vice-chancellor, when disqualified in a case, to designate four members of the bar, one of whom should be selected by lot to try the case, the-decree to be signed and entered by the vice-chancellor. it was said: “Is there any valid objection, then, on the-ground that the decree is, in substance, the act of a person not clothed with judicial power under the Constitution?

It has not either the force or effect of a judicial act, until signed by the chancellor; and the statute cannot, therefore, be said to create a new judicial officer-unknown to the Constitution. His power ceases when ho makes and renders his decision, and his act is not more than ministerial until it is rendered judicial by the adoption of th.e chancellor in the mode, prescribed by the statute. In principle and in leg’al effect his decision is no-more a judicial act than that of a master in chancery upon a matter referred to him..under-the ordinary practice oí courts of chancery.

It derives all its legal force and character from the adoption of the chancellor, which, though formal, is yet essential as rendering it the act of the duly constituted judicial tribunal.” Grinstead v. Buckley, 32 Miss. 148. “The principal objection to these proceedings is claimed to be found in the clauses of the Constitution which vest all the judicial power of the state in courts, and • which provide how. those courts shall be constituted, and, as is argued, leave no room for judicial action elsewhere.

The judicial power, even when used in its widest and least accurate sense, involves the power to 'hear and determine’ the matters to be disposed of; and this can only be done by some order or judgment which needs no additional sanction to entitle it to be enforced. No action which is merely preparatory to an order or judgment to be rendered hy some different body can be properly termed judicial. A master, in chancery often has occasion to consider questions of law and of fact, bnt no one ever supposed him to possess judicial power.

A jury in a court of record determines all the facts in the case, but the judicial power is in the court, which enforces the verdict by judgment. This view is very clearly explained by Kent. O. .1., in Tillotson v. Ghoetham, 2 Johns. [N. Y.] 03, where it was held that the sheriff himself, when presiding over a jury of inquest, acted ministerially, because he had no power to give judgment. See, also, Story on Const § 1640 et seq.; Daniels v. People, 6 Mich. 381; Chandler v. Nash, 5 Mich. 409.

It is the inherent authority, not only to decide, but to make binding orders or judgments, which constitute judicial power; and the instrumentalities used to inform the tribunal, whether left to its own choice or fixed by law, are merely auxiliary to that power, and operato on persons or things only through its action, and by virtue of it.” Underwood v. McDuffee, 15 Mich. 368, 93 Am. Dec. 194. See, also, Townsend v. Radcliffe, 63 Ill. 10. “A commissioner is not a judge; he does not possess final power in any one instance.” Ex parte Gray, 1 Bailey, Eq. (S. C.) 77.

As to commissiofrers it is said: “Indeed, they are not, and under the Constitution they cannot be, clothed with judicial power to, .hear and finally determine any matter whatsoever.” U. S. v. Berry (D. C.) 4 Fed. 779. “It is competent to send a case to referees or to a master for investigation of accounts.” Underwood v. McDuffee, 15 Mich. 361, 93 Am. Dec. 194; Hards v. Burton, 79 Ill. 504. But it is not competent to give the referee powers of final decision. Johnson v. Wallace, 7 Ohio, 62, pt. 2; King v. Hopkins, 57 N. H. 334; St. Paul, etc., R. R. Co. v. Gardner, 19 Minn. 132 (Gil. 99), 18 Am.

Rep. 334.” Cooley’s Const. Dim. (5th Ed.) 506, note 1. “The referee exerts no power proprio vigore. Without* the court he could have no existence; without the court he could not act after his creation; and without confirmation and adoption by the court his acts have no force or validity whatever. Nothing can originate before a referee¡ and nothing can terminate with or by the decision of a referee.

The court acquires the jurisdiction, and the court renders the judgment upon the controversy; therefore the whole exercise of the judicial power is by the court, the referee acting only in an intermediate capacity as an auxiliary to the court in the ascertainment of certain facts and law necessary to its enlightenment in giving the proper decree or judgment.” Carson v. Smith, 5 Minn. 88 (Gil. 58), 77 Am. Dec. 539. “Legislation providing for the trial of causes by auditors and referees, and making their findings evidence, without concluding- the parties thereby, is within the power of the Legislature and valid.

In such cases the subordinate officers act under the direction of the courts, who may review and reverse the findings of such officers; but legislation making, the findings of such officers conclusive is an invasion of the province of the judiciary and unconstitutional.” “Judicial power,” as used in Constitutions, has been discussed as follows: “The judicial power mentioned in the Constitution, and vested in the courts, means the power conferred upon courts ordained and established by and under the Constitution, in the strict and appropriate sense of that term— courts that compose one of the three great departments of the government prescribed by the fundamental law, the same as the other two, the legislative and the executive.” 'Charge to Grand Jury under Fugitive Slave Law, Fed.

Cas. No. IS,261. “The judicial power extends to all cases in law and equity arising under the Constitution and laws and treaties of the United States.” Story on Constitution (5th Ed.) § 1649. “Article. 5 of our Constitution provides for the organization of the judicial department of the government.

It prescribes wiiat courts shall be established and defines their jurisdiction, names the officers of courts, and prescribes their powers, and in every instance save one the province of the courts so provided for is to hear and determine causes between parties affecting the rights of persons as to their life, liberty, and property. The exception is the commissioners’ courts, which are not properly a part of the judicial department. But the whole scope of the

article shows clearly what is meant by the judicial department of the government.” M., K. & T. Ry. Co. of Tex. v. Shannon, 100 Tex. 389, 100 S. W. 141, 10 L. R. A. (N. S.) 681. Under a statute which authorized district courts to remove disabilities of minority, our Supreme Court, through Judge Gaines, said: “Can an order which under the statute removes the disabilities of a minor be deemed in strict language the judgment of a court? We think not. It fixes no right; it settles no dispute.

It acts merely upon the status of the applicant, enlarges his capacities as a free agent, and as to all matters not political places him upon the plane of persons who have attained their majority.

If the proceeding should be deemed judicial, we should be compelled to hold the statute in conflict with the Constitution, for the reason that it attempts to confer upon the district courts a jurisdiction not embraced in their p'owers as defined by the Constitution. * * * We think the power given by the statute must he regarded as an authority conferred upon the district judge as a commissioner, to be exercised while holding the sessions of his court, and not upon the court itself. He could hardly be compelled to exercise the function; it could hardly be deemed an Official duty.” Brown v.

Wheelock, 75 Tex. 385, 12 S. W. 112. “Our Constitution, in strong terms., declares that judicial powers shall be vested in courts, and not in ministerial officers. Its framers were careful to clearly mark out the different departments of government, and to firmly prohibit the lodging of judicial powers elsewhere than in judicial tribunals. Our decisions have given full effect to our constitutional provisions, and have uniformly declared that only judicial officers can exercise judicial functions, Little v. State, 90 Ind. 338 [46 Am. Rep. 224]; Wright v. Defrees, 8 Ind. 298; Waldo v.

Wallace, 12 Ind. 569; Columbus, etc., Ry. Co. v. Board, etc., 65 Ind. 427.” Gregory v. State, 94 Ind. 384, 48 Am. Rep. 162. “All judicial power, by the Constitutions of the states and nation, is vested in the courts ; ■but the judicial power therein conferred upon and limited to the courts is that judicial power which can be exercised only by the courts. In other words, the courts have exclusive power to hear and determine those matters which affect the life or liberty or property of a citizen.

All other rights, while they may be in a sense ‘judicial,’ are not so far within the jurisdiction of the courts that their exercise by another department is yoid. Territory v. Cox, 6 Dak. 501; Cameron v.

Parker, 2 Okl. 277, 38 Pac. 14.” “ ‘Judicial power,’ in Const, art. 7, § 2, providing that the judicial power in this state, ‘as to matters of law and equity,’ shall be vested in a Supreme Court, in circuit courts, courts of probate, and justices of the peace, is construed to vest such power as the courts under English and American systems of jurisprudence have always exercised in legal and equitable actions; that is, in actions at law the power of determining questions of law and not of fact, and in suits in equity the power of determining questions of both law and fact. Callanan v.

Judd, 23 Wis. 343, 349. ‘Judicial powers,’ in Const. 1879, art. 3, § 1, providing that the judicial powers of this state shall be vested in a superior court and in such inferior courts as the Legislature shall from time to time ordain and establish, embraces all cases criminal and civil, at common law and in equity. Gilbert v. Thomas, 3 Ga. 575, 579.” “The judicial power, which by the third

article of the Constitution is vested in the Supreme Court and such inferior courts, etc., and which shall extend to all ‘cases in law and equity arising under the Constitution or laws of the United States,’ is a conclusive power. It embraces the whole judicial power as to such matters. United States v. Smith, 4 N. J.

Law (1 Southard) 33, 38.” “Judicial power, within the meaning of the Constitution, may be defined to be that power by which judicial tribunals construe the Constitution, the laws enacted by Congress, and the treaties made with foreign powers or with Indian tribes, and determines the rights of parties in conformity with such construction. Gilbert v. Priest, 65 Barb. (N. Y.) 444, 448.” The four next preceding quotations are from 4 Words and Phrases, pp. 3860, 3861. In Hall v.

Marks, 34 Ill. 358, the Supreme Court of Illinois reviewed the constitutional provisions vesting the powers of government in three separate and distinct bodies of magistracy, and held that the rendition of a judgment is a judicial act, and that a statute authorizing a clerk to render a judgment by default in vacation was unconstitutional.

With reference to the judicial power the court said : “The power to adjudge, determine and render a judgment is beyond all question a judicial act, and under this provision can only be done by judicial authority. * * * The Constitution has conferred this power, as we have seen, upon the judicial department, and has only authorized the officers composing that department to exercise the power.

That instrument has designated the judges and magistrates of the various courts it has created or authorized to be formed, as the officers authorized to exercise the judicial power of the state.” In relation to the writ of habeas corpus it was said: “It is worthy of serious consideration whether, in those states where the whole j

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