and decrees, which are peculiar to such a department must in their nature be judicial acts. Nor can they be both judicial and legislative, because a marked difference exists between the employment of judicial and legislative tribunals.

"The former decide upon the legality of claims and conduct; the latter make rules upon which, in connection with the Constitution, these decisions should be founded. It is the province of the judges to determine what is the law upon existing cases. In fine the law is applied by the one and made by the other."

§ 19. Same: Further illustrations. In Kansas the legislature created a so-called court of visitation which was given power to regulate public service companies, to determine the reasonableness of the regulations thus made, and then to enforce them. The Federal circuit court held that this combination of judicial with legislative and administrative powers was forbidden by the constitution of Kansas, which provided for separate executive, legislative, and judicial departments, though it did not expressly forbid the powers of one to be exercised by the others. The court said: "That, in a broad sense, powers of one of these departments shall not be conferred upon either of the others is not only within the true spirit of these provisions, but also substantially within the letter thereof; and the addition thereto of an express prohibitory declaration, such as is contained in the constitutions of some of the states, that the powers of one department shall not be exercised by another, would add very little to

their effect, so far as concerns the question under consideration. The universal doctrine of American liberty under written constitutions requires the distribution of all the powers of government among three departmentslegislative, judicial, and executive-and that each, within its appropriate sphere, be supreme, coordinate with, and independent of both the others" (3).

Nor can an administrative body like the Interstate Commerce Commission be given power to compel obedience to its orders by a judgment of fine or imprisonment. Such obedience, under the Constitution of the United States, can be compelled only by a competent judicial tribunal having jurisdiction of the case (4).

§ 20. Non-judicial powers cannot be conferred on courts. On the other hand, courts cannot be required to exercise non-judicial powers. A Connecticut statute provides that any street railway company might apply to the superior court to approve and adopt a location for its tracks with such regulations regarding streets, cars, construction, and motive power as the court might prescribe. The supreme court of Connecticut held this not to be the exercise of judicial power, and therefore denied that it could be conferred upon a court. Instead, it was a proper matter for legislative and administrative action (5). But if the question left to the court is whether certain definite circumstances exist or conditions have been fulfilled upon

(3) Western Union Tel. Co. v. Myatt, 98 Fed. 335.

(4) Interstate Commerce Commission v. Brimson, 154 U. S. 447. (5) Norwalk Street Railroad's Appeal, 69 Conn. 576.

which a license may be granted or a town incorporated, it is generally held a proper matter for judicial determi nation (6).

The courts cannot be required to decide questions or decisions which will later be subject to revision or review by other departments of the government. The final finding of a court, when not appealable to another court, is not a judicial determination unless it is enforceable by some process or is made by statute the final or indisputable basis of action by other departments of government (7).

Of the latter nature are actions against itself permitted by the state or the United States, where it is made the duty of the government sued to pay any judgment that may be rendered against it.

§ 21. Inherent powers of departments of government. As a corollary to the doctrine of the separation of powers in American governments, each department has certain inherent powers of which it cannot be deprived by the action of the other departments, even though the latter do not attempt to exercise them. Roughly speaking they are such powers as are necessary to maintain the effective independence of the departments in the discharge of their appropriate duties. For instance, a Virginia statute attempted to deprive the courts created by the Virginia con

(6) McCrea v. Roberts, 89 Md. 238; Forsythe v. Hammond, 142 Ind. 505.

(7) In re Sanborn, 148 U. S. 222.

stitution of their power to punish contempts summarily, and to substitute a jury trial for the action of the court itself. This was held unconstitutional, and the court stated its conclusions: "That in the courts created by the constitution, there is an inherent power of self-defense and self-preservation; that this power can be regulated but cannot be destroyed, or so far diminished as to be rendered ineffectual by legislative enactment; that it is a power necessarily resident in and to be exercised by the court itself, and that the vice of an act which seeks to deprive the court of this inherent power is not cured by providing for its exercise by jury; that while the legislature has the power to regulate the jurisdiction of the courts, it cannot destroy, while it may confine within reasonable bounds, the authority necessary to the exercise of the jurisdiction conferred" (8).

Similarly the United States Supreme Court has said: "In order that the court may compel obedience to its orders it must have the right to inquire whether there has been any disobedience thereof. To submit the question of disobedience to another tribunal, be it jury or another court, would be to deprive the proceeding of one-half its efficiency" (9).

There are conflicting views as to whether the independence of the courts requires them to control admissions to the bar. In Illinois and Pennsylvania a legislature may not compel the admission to the bar of persons who have not complied with the requirements demanded by the

(8) Carter's Case, 96 Va. 791, 816. (9) In re Debs, 158 U. S. 564, 595.

Gurts (10). The contrary view is taken in New York and North Carolina (11).

§ 22. Limitations of general doctrine. The doctrine of the separation of powers of government is of course not susceptible of rigorous application. Each department, as a matter of convenience and necessity, or to protect its own independence, must in a certain measure exercise powers of a character that strictly belongs to another department. The legislature, for instance, must often make investigations to ascertain the facts preliminary to legislation, and for this purpose must summon witnesses, examine them, and punish their refusal to answer. These proceedings, though judicial in their nature, are necessary incidents of a proper exercise of legislative power, and so may be conducted by a legislature (12). Likewise, both the executive and courts may make rules concerning their procedure, which are legislative in character, but yet properly incidental to executive and judicial duties.

§ 23. Same: Appointment of officers. Taxation. Some functions, like the appointment of officers, do not so distinctly belong to one department that they may not be exercised by another, and in such a case the power of appointment may be conferred upon either the executive or the courts, or be exercised by the legislature itself, at its pleasure (13). The Federal Constitution expressly

(10) In re Day, 181 Ill. 73; In re Splane, 123 Pa. 527.

(11) Matter of Cooper, 22 N. Y. 67; Re Applicants for License, 143 N. C. 1.

(12) People v. Keeler, 99 N. Y. 463.

(13) Fox v. McDonald, 101 Ala. 51.