and functions are not blended; they occupy no common ground, nor do they exercise any concurrent jurisdiction.

To some extent, and for certain purposes, the powers appropriate in their nature to one department are exercised by each of the others; sometimes by express direction of the supreme law; but otherwise only when it is done incidentally or as a means of exercising its own proper power.7

6

4. Usually the constitution not only creates the three departments, but provides that those composing one department shall not exercise any of the powers properly belonging to either of the others. But it has been held that this prohibition is implied by the division into departments, so that the effect is the same whether the prohibition is expressed or not. Any statute which attempts to confer powers, or impose duties, upon one department which properly belong to the others, violates the constitution and is

6 State v. Clapp, 50 Minn. 239, 52 N. E. 654; State v. Gorby, 122 Ind. N. W. 655. 17, 23 N. E. 678; State v. Barker, 116 Iowa, 96, 89 N. W. 204; State v. Johnson, 61 Kan. 803, 60 Pac. 1068; State v. Higgins, 125 Mo. 364, 28 S. W. 638; Albright v. Fisher, 164 Mo. 56, 64 S. W. 106; Carter v. Commonwealth, 96 Va. 791, 812, 32 S. E. 780, 45 L. R. A. 310. "The powers of these departments are not merely equal, they are exclusive, in respect to the duties assigned to each, and they are absolutely independent of each other. The encroachment of one of these departments upon the other is watched with jealous care, and is generally promptly resisted, for the observ ance of this division is essential to the maintenance of a republican form of government." Langenberg v. Decker, 131 Ind. 471, 478, 31 N. E. 190, 16 L. R. A. 108.

7 Taylor v. Place, 4 R. I. 324; Watkins v. Holman, 16 Pet. 60, 61, 10 L. Ed. 873; Wyman v. Southard, 10 Wheat. 1, 6 L. Ed. 253; The Auditor v. Atchison, etc. R. R. Co., 6 Kan. 500, 7 Am. R. 575; Flint, etc. P. R. Co. v. Woodhull, 25 Mich. 99, 12 Am. Rep. 233. The distribution of the powers of government into the legislative, executive and judicial departments, and the appropriate sphere of each, are elaborately discussed in the following cases: Fox v. McDonald, 101 Ala. 51, 13 So. 416, 46 Am. St. Rep. 98, 21 L. R. A. 529; Green wood Cem. Land Co. v. Routt, 17 Colo. 156, 28 Pac. 1125, 31 Am. St. Rep. 284, 15 L. R. A. 369; People v. Thompson, 155 Ill. 451, 40 N. E. 307; People v. Chase, 165 Ill. 527, 46 N. E. 454; State v. Hyde, 121 Ind. 20, 22 N. E. 644; State v. Peelle, 121 Ind. 495, 22

8 State v. Johnson, 61 Kan. 803, 60 Pac. 1068.

void. But no exact and complete delimitation of the several departments has yet been worked out, and the courts differ as to the proper assignment of various governmental functions. Some courts hold that the power of appointing political officers may be devolved upon any one of the departments including the judiciary.10 Other courts hold that acts conferring this power upon courts or judges are void." It has been questioned whether the power of appointment to office is not exclusively executive in its nature,12 but it

13

is generally held that it may be exercised by the legislative department. Various functions may be devolved upon courts or judges in the matter of the incorporation of cities, towns and villages, the removal of county seats and the like, but the ultimate question of the expediency of such removal or incorporation, or the determination of the territory to be included within a municipality, is legislative in character and cannot be devolved upon the judiciary.15 A statute of Ohio in regard to the use of streets by telegraph and telephone companies provided that, if the company and municipality could not agree upon the mode of construction, the former might apply to the probate court, which should direct in what mode the line should be constructed, so as not to incommode the public in the use of the street. The act provided for a petition, notice, hearing and order or decree, in the usual manner of judicial proceedings. At first the act was held void as an attempt to confer legislative power on the judicial department, but on rehearing the act was sustained.16 An act requiring the judges of certain

N. E. 644; State v. Peelle, 121 Ind. 495, 22 N. E. 654; State v. Gorby, 122 Ind. 17, 23 N. E. 678. In State v. Washburn, 167 Mo. 680, 67 S. W. 592, 90 Am. St. Rep. 430, a law requiring the governor to appoint one of three election commissioners for a city from three persons to be named by a party central committee was held void as an attempt by the legislature to exercise the appointing power. The court, sitting in banc, says: "The act of filling a public office by appointment is essentially an administrative or executive act, and, under the constitution, can be exercised only by an officer charged with the duty of executing the laws." p. 696.

13 People v. Freeman, 80 Cal. 233, 22 Pac. 173, 13 Am. St. Rep. 122;

Americus v. Perry, 114 Ga. 871, 40 S. E. 1004; Sinking Fund Com'rs v. George, 104 Ky. 260, 47 S. W. 779, 84 Am. St. Rep. 454; Eddy v. Kincaid, 28 Ore. 537, 41 Pac. 156, 655; State v. George, 22 Ore. 152, 29 Pac. 356, 29 Am. St. Rep. 586, 16 L. R. A. 737; State v. Compson, 34 Ore. 25, 54 Pac. 349; Reed v. Dunbar, 41 Ore. 509, 69 Pac. 451.

14 State v. Ueland, 30 Minn. 29, 14 N. W. 58; Todd v. Rustad, 43 Minn. 500, 46 N. W. 73; In re Town of Union Mines, 39 W. Va. 179, 19 S. E. 398.

15 In re Ridgefield Park, 54 N. J. L. 288, 23 Atl. 674; In re Incorpo ration of North Milwaukee, 93 Wis. 616, 67 N. W. 1033, 33 L. R. A. 638. 16 Zanesville v. Zanesville Tel. & Tel. Co., 63 Ohio St. 442, 59 N. E.

19

courts to divide a city into districts for the election of justices of the peace was held valid." So of an act requiring the county judge to fix the number of deputies to be employed by certain officers.18 A law requiring the plans for a court-house and jail to be approved by the judge of the circuit court was held valid, but a law authorizing a judge of the supreme court to designate the location and determine the plans and specifications for a court-house was held void, as an attempt to confer legislative power.20 An act making the judge of a city court ex officio commissioner of roads and revenues for the county was held valid." An act requiring railroad companies to erect and operate gates at crossings, when ordered to do so by the supreme court on the application of the local authorities and after notice to the company, was held not to confer legislative power upon the court.22 An act of Maryland providing that on

109; on rehearing, 64 Ohio St. 67,
59 N. E. 781, 87 Am. St. Rep. 547, 52
L. R. A. 150. On rehearing the
court says:
"The institution and
prosecution of a legal proceeding
in court plainly comprehends the
filing of a proper complaint, pro-
cess for bringing the necessary
parties into court, and judicial in-
quiry according to the usual rules
and practice of courts. And this
fact, alone, of conferring on a ju-
dicial tribunal in the first instance
the power to act in a given matter
is of controlling importance in giv.
ing judicial character to the nat-
ure of the power; though that is
not necessarily a conclusive test,
for, if it were, the existence of a
statute would establish its validity;
but it is decisive in that respect,
unless it is reasonably certain that
the power belongs exclusively to
the legislative or executive depart
ment. . . The principle obvi
ously is, that where any power is

conferred upon a court of justice, to be exercised by it as a court, in the manner and with the formalities used in its ordinary proceedings, the action of said court is to be regarded as judicial, irrespect ive of the original nature of the power. The legislature, by conferring any particular power upon a court, virtually declares that it considers it a power which may be most appropriately exercised under the modes and forms of judicial proceedings." pp. 83, 84.

17 State v. Higgins, 125 Mo. 364, 28 S. W. 638.

18 Clark v. Finley, 93 Tex. 171, 54 S. W. 343.

19 Board of Com'rs v. Brown, 147 Ind. 476, 46 N. E. 908.

20 Moreau v. Freeholders of Monmouth, 68 N. J. L. 480.

21 Phinizy v. Eve, 108 Ga. 360, 33 S. E. 1007.

22 People v. Long Island R. R. Co., 134 N. Y. 506, 31 N. E. 873. The court

the petition to the circuit court of a certain proportion of the registered and qualified voters of a specified county, or of any election district, city or town thereof, asking that the question of granting or not granting licenses for the sale of liquors be submitted at the next general election to be held in the county, the court shall issue an order for an election on that question to the sheriff of the county, who shall give notice of the election, etc., was held void, as imposing duties on the court not of a judicial nature. An act of the same state making the court crier, an officer appointed by the court, custodian of the court-house and responsible for its care, was held void as indirectly imposing upon the court the appointment of such custodian.24 Further illustrations are noted in the margin.25 The legislature may not itself exercise judicial power, or invade or en

says: "No legislative power was given to the court. But the statute made the erection and operation of gates by railroad companies at places coming within those mentioned, dependent upon the necessity of them for the safety of travel upon the streets, to be ascertained and determined in the manner provided; and where the order is so made by the court, the statute is effective to enforce the duty of compliance with it. This is a condition not upon which the taking effect of the act is dependent, but upon which its application becomes effectual for the purpose and at the places within its contemplation. pp. 507, 508.

"The act in question has the import of a perfect statute. And the fact that its operation in the application of it to the cases which might arise is dependent upon prescribed contingencies, furnishes no constitutional objection to it." p. 508.

26

23

23 Board of Supervisors v. Todd, 97 Md. 247.

24 Prince George's County v. Mitchell, 97 Md. 330.

25 Acts held invalid as attempts to impose upon courts or judges non-judicial functions: Robey v. Prince George's County, 92 Md. 150, 48 Atl. 48; People v. Waters, 4 Misc. 1, 23 N. Y. S. 691; United States v. Queen, 105 Fed. 269. Acts held valid, though conferring powers outside of the ordinary judicial functions: Stevens v. Truman, 127 Cal. 155, 59 Pac. 397; McCrea v. Roberts, 89 Md. 238, 43 Atl. 39, 44 L. R. A. 485; Citizens' Savings Bank v. Green, 173 N. Y. 215, 65 N. E. 978; Campbellsville Lumber Co. v. Hubbert, 112 Fed. 718, 50 C. C. A. 435; Dinsmore v. State, 61 Neb. 418, 85 N. W. 445. And see Moynihan's Appeal, 75 Conn. 358, 53 Atl. 1123.

26 Felix v. Wallace Co. Com'rs, 62 Kan. 832, 62 Pac. 667, 84 Am. St. Rep. 424; Commonwealth v. War