In California, many of these instances were cited by counsel, but, under the rigid wording of the State constitution1 prohibiting trenching by one department on another, the court held that

the legislature could confer no other than judicial functions1 upon the courts of sessions, nor make the chief justice of the State a trustee of the State library.2

Such administrative duties were imposed on the quarter sessions by reason of the presence in the court of lay members, to whom administrative employments were appropriate. But in Pennsylvania, under a constitution which now entrusts the jurisdiction of the quarter sessions court of most of the counties to law judges exclusively, a feeling of great doubt exists whether courts so composed entirely of judicial as distinct from administrative officers can be compelled against their will to enter upon administrative duties.3

In addition, moreover, to the change in the composition of the court, the administrative duties have been mostly imposed on other bodies or officials-on councils, commissioners, etc.; and the old control of the county by the sessions, through the action of grand juries, has in many jurisdictions ceased, in great part.

1. In 1855, the California court held that the legislature has no power to confer other than judicial functions upon the courts of sessions, the particular power in question being that of making a contract for the purchase of a lot for the erection of public buildings. Burgoyne v. San Francisco Supervisors, 5 Cal. 9. The same court held, however, that county judges of two counties could be given power to appoint commissioners to settle division of indebtedness between two counties created out of one original county, the appointinent being in a matter of judicial nature, and being analogous to appointments of referees and arbitrators. Tuolumne Co. v. Stanislaus Co., 6 Cal. 440.

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

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

circuit courts were authorized to examine and certify respecting pensions

Note

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

Where extrajudicial duties are imposed in language which refers to the court, the judges cannot exercise such duties as commissioners.1

Certain powers may be judicial in their nature, yet not in the sense in which judicial power is granted by the fundamental law. Thus the adjustment of claims under a treaty appears to be the province of a commissioner rather than of a court.2 Such a power cast by congress on the United States territorial judges, was held to devolve on them as commissioners, not as judges. The supreme court have intimated strongly that under the constitution the power could not be put upon the judges as a court.3 (b) Double Duties.-Making a person ex officio officer by virtue of his holding another office does not merge the two in one.4 New duties or powers, do not, simply because they might have constituted a new office, therefore necessarily create the same.5 3. Territorial Limitations of Powers.-The judicial department in

of the treasury not, however, to be con clusive. The court held that the act contemplated an admixture of judicial and executive duties and officers, and was not binding in the respect indicated. See also Re Account of Allen, 19 Feb. 809. In application to appoint Board of Assessors, 7 Leg. Gaz. 117, the common pleas No. 2 of Alleghany county, Pa., refused to appoint a board of tax assessors for the city of Pittsburgh, holding that a statute requiring the judges so to do violated the division of government into three departments and that said statute was unconstitutional. For although congress may require the United States circuit courts to appoint supervisors of elections (U. S. v. Siebold, 100 U. S. 373), this is explained (p. 399) by the express provision in the federal constitution that congress may by law vest the appointment of such inferior officers as they think proper, in the president alone, in the courts of law or in the heads of depart

ments.

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

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

1. Burgoyne v. San Francisco Supervisors, 5 Cal. 9, 22; note, directed by the United States supreme court to be inserted respecting U. S. 7. Yale Todd, and to be found under U. S. v. Ferreira, 13 How. (U. S.) 40, 52.

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

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

4. Double Duties.-State v. Laughton, 19 Nev. 202; People v. Edwards, 9 Cal. 286; People v. Love, 25 Cal. 520; Lathrop v. Brittain, 30 Cal. 680; People v. Ross, 38 Cal. 76; Territory v. Ritter, I Wyo. 333; Denver v. Hobart, 10 Nev. 28. Failure to give bond for the ex officio office does not affect the original office. State v. Laughton, 19 Nev. 202; s. c., 8 Pac. Rep. 344.

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

a State is a part of the general government. It forms no exclusive part of any of the political divisions. It administers its functions for the people at large. Language of a statute referring to local officers does not include judicial officers deriving their office from the general laws of the State, and whose duties are not confined to the locality. The payment of salaries out of local treas

uries does not localize courts2.

4. Review of Decisions.-One judge cannot review the decisions of another judge of co-ordinate jurisdiction.3

Decisions of judicial questions cannot be controlled collaterally,+ but only by appeal, writ of error, etc. Acts ministerial and not judicial are not reviewable by certiorari.5 Matters discretionary will not ordinarily be reviewed; but discretion demands, for its exercise, legal proof."

5. Miscellaneous.-Until commissioned, elected judges may prac tice law. The duties of a judge are to be performed openly; and he shall not confer in private with one party in the absence of the other.9 A judge of the court from which an execution issues may, if he will, buy at the sale.10

1. Landon v. Mayor etc. of New
York, 49
How. Pr. (N. Y.) 218, 221;
Quinn. Mayor etc. of New York, 44
How. Pr. (N. Y.) 266.

County Judge. Although a county judge may for certain purposes be classed with county as distinguished from state officials-may, for instance, be elected at the county elections and not at the state elections, and may be given onerous and important county work-he does not thereby lose his character as a state official; and like other state offices, that of the county judge in case of vacancy shall be filled by the governor's appointment (in Tennessee), and not by the county court, which would act were the office a county one. State v. Glenn, 7 Heisk. (Tenn.) 472. See also State v. Leonard, 86 Tenn. 495; compare State v. McKee, 8 Lea (Tenn.) 24; Wilson v. Wiltz, 32 La. An. 688; Respublica v. Dallas, 3 Yeates (Pa.) 300, 316.

2. Landon v. Mayor etc. of New York, 49 How. Pr. (N. Y.) 218. 223; Freedman v. Sigel, 10 Blatchf. (U. S.) 327.

3. Fisher v. Hepburn, 48 N. Y. 41; People v. National Trust Co., 31 Hun (N. Y.) 20. Compare State v. Lazarus, 33 La. An. 1425; State v. Vorhies, 34 La. An. 99.

4. Want of Jurisdiction.—The rule that a party cannot appeal from one judge to another of co-ordinate jurisdiction by motion for relief from an order or

judgment, does not apply where the court was without jurisdiction and the order or judgment void. He is not bound to appeal from a void order or judgment, but may assert its invalidity at all times. Kamp 7. Kamp, 59 N. Y. 212, GROVER and FOLGER, JJ., dissenting.

5. Stay of Execution.-Schlandedin 7. Marshall, 72 Pa. 200. The district judge of the district where the cause was tried-unless disqualified-may approve the undertaking to stay execution, notwithstanding the fact that the case was tried before another judge. Frevert v. Swift, 19 Nev. 400.

6. Louisiana.-The district judge has discretion to fix fee of expert in a criminal case. His decision will not be reviewed on certiorari. State v. Cole, 33 La. An. 1356.

505.

7. Madden v. Fielding, 19 La. An. 8. Com. v. Pyle, 18 Pa. St. 519, 521.

9. Sparks v. State, 59 Ind. 82.

10. Cooper v. Gallraith, 3 Wash. (U. S.) 546. WASHINGTON, J., charged the jury: "It may be indiscreet in him to do so; and it may be unbecoming the dignity of his station to speculate in purchases of this sort, unless under very peculiar circumstances. But we do not understand that the plaintiff gave any judicial opinion respecting the sales of this property His direction to

6. Property Under Court's Control.-Custody of records is a ministerial duty. Where it is the duty of a probate judge to deliver them up, he may be compelled to do so.1 be compelled to do so.1 But where the title to the office is the real question, the parties will be remitted to quo warranto.2 Bill of interpleader for property of county, if maintainable, must be in the county's name, not in that of a probate judge.3 Trust funds are not to be deposited, by a surrogate, with a private banker.4

III. POWERS AND DUTIES IN MATTERS OF PRACTICE-1. Attendance at Trial.—A judge of oyer and terminer absenting himself for a day in the course of a murder trial thereby disqualifies himself from further sitting. If he sits again, it is error.5 The Arkansas court permitted a judge presiding in a civil case, and who, after the evidence had closed and the charge had been delivered, then fell sick, to retire, a special judge being appointed from the bar.6

2. Appeals and Bills of Exception. In the absence of statutory provision, the approval of the judge who presided at the trial is indispensable to the statement of facts, in order that they shall

the sheriff to sell this land for hard money was not given judicially, nor could it be."

1. Where complainant shows a prima facie title, and his right to the office is not the subject of the contention, delivery of insignia and property will be required. Thompson v. Holt, 52 Ala. 491; State v. Sherwood, 7. Sherwood, 15 Minn. 221; Crowell . Lambert, 10 Minn. 369; People v. Head, 25 Ill. 325; Bloom v. Van Rensselaer, 15 Ill. 503; High, Ex. L. Rem., § 74.

Of the prima facie title, the governor's commission is the best evidence. Hill v. State, 1 Ala. 559; Brightly's Lead. Election Cas. 314, note p. 319. On it the court will rest, and for the time being award the property of the office to the holder of this title, without adjudicating whether the relator has or not the actual title. People v. Kilduff, 15 Ill. 492; People v. Head, 25 Ill 325; Crowell v. Lambert, 10 Minn. 369; State v. Sherwood, 15 Minn. 221; State v. Churchill,15 Minn. 455; People v. Miller, 16 Mich. 56; State v. Governor, 1 Dutch. (N. J.) 331; Thompson v. Holt, 52 Ala. 491.

2. Thompson v. Holt, 52 Ala. 491; High on Ex. Leg. Rem., § 77; In re Whiting, 2 Barb. (N. Y.) 513; People v. Allen, 42 Barb. (N. Y.) 203; People Stevens, 5 Hill (N. Y.) 616; In re Baker, 11 How. Pr. (N. Y.) 418, 430.

3. Patrick v. Robinson, 83 Ala. 575. 4. People v. Faulkner, 31 Hun (N.

II

Y.) 317. See United States v. Prescott, 3 How. (U. S.) 578; United States v. Morgan, 11 How. (U. S.) 154; United States v. Dashiel, 4 Wall. (U. S.) 182; United States v. Thomas, 15 Wall. (U. S.) 337; State v. Harper, 6 Ohio St. 607; Mazzy . Shattuck, 1 Den. (N. Y.) 233; Hancock 7. Hazzard, 12 Cush. (Mass.) 112.

5. People v. Shaw, 63 N. Y. 36; McCann v. People, 3 Park. (N. Y.) 272; and see People v. Lake, 2 N. Y. 358. The prisoner cannot waive this error. HARDIN, J., in the department court. Shaw 7. People, 3 Hun (N. Y.) 281, citing other New York

cases.

On the duty of constant attendance in a capital case, see also Hayes v. State, 58 Ga. 35.

In the course of a civil proceeding, BRONSON, C. J., observed that something must be trusted to the judge's discretion whether he could safely leave for awhile. Oakley v. Aspinwall, 3 Com. (N. Y.) 547

Delegation of Power.-A judge cannot delegate his power; he cannot call attorney to take the bench. Davis v. Wilson, 65 Ill. 525, 530. He must remain on bench during argument to jury. Brownlee v. Hewitt, 1 Mo. App. 360; State v. Claudius, 1 Mo. App. 551.

6. Bullock v. Neal, 42 Ark. 278. But the bill of exceptions must be signed by the regular judge; for he it