CITY OF WAHOO v. DICKINSON.

23 Nebraska, 426. 1888.

MAXWELL, J. In October, 1886, the proper authorities of the city of Wahoo passed a resolution that, "We favor and demand as a matter of right the annexation of the territory contiguous to the city of Wahoo," etc., and described the territory sought to be annexed. The city thereupou filed a petition in the District Court of Saunders county, setting forth the facts required by the statute, and attached an accurate map of the territory sought to be annexed to the said petition, and prayed for a decree of the court annexing the territory set forth in the petition to the city of Wahoo. There were nearly one hundred persons who owned the laud sought to be annexed, all of whom were made defendants, and service duly had upon them. The appellants answered the petition, and upon a decree being rendered against them, appealed to this court. There is no bill of exceptions, and the only question before this court is, whether or not the district court had jurisdiction.

This question is to be determined from the construction to be placed upon section 99, chap. 14 of the Comp. Stat.

The court in its decree found "that the city council of the plaintiff has heretofore adopted a resolution to annex the territory described in the petition herein by a two-thirds vote of all the members of said council, and the court further finds that such of said territory as is hereinafter described will receive material benefit by its annexation to the said city of Wahoo, and that justice and equity require the annexation of said portion of said territory hereinafter described " [describing the territory].

The appellants contend that the power to annex territory to a city is legislative and not judicial, and if delegated must be given to some body possessing legislative powers and not to a court, citing Shumway v. Bennett, 29 Mich. 452. People v. Carpenter, 24 N. Y. 86. Galesburg v. Hawkinson, 75 Ill. 152. Turner v. Althaus, 6 Neb. 69. The case of Shumway v. Bennett arose under a statute very different from ours, and need not be considered. The case of Galesburg v. Hawkinson is under a similar statute to our own, but we are unable to give our assent to the reasoning of the court in that case.

It will be conceded that an arbitrary annexation of territory to a city or town, where the benefits to be received by the territory annexed are not considered, can only be accomplished by legislation, either by the legislature itself, or by a tribunal clothed with power for that purpose, and that a court under our constitution could not be invested with such legislative power. We do not understand the

statute, however, as clothing the courts with the power to legislate in the premises that is, to determine in the first instance what territory should be annexed. This power is bestowed upon the city council. The evident purpose is to protect the owners of the property from being forcibly brought within the corporation, unless one of two facts is made to appear. First, that the territory, or a part of it, will receive material benefit from its annexation to such corporation that is, if all the territory sought to be annexed will receive material benefits, then a decree will be entered accordingly ;. if but part receives material benefit, then a decree will be entered. only for such part. Second, where justice and equity require such annexation of said territory, or a part thereof, then a decree will be entered according to the facts as found.

The determination of these questions is a judicial act, and the courts are duly empowered and the question is proper for the courts to consider. The statute makes the right depend upon one of the two conditions named. If neither condition exists, then there is no right to annex. The court, therefore, hears the allegations of the parties interested in the property sought to be annexed, and determines from the testimony what their rights are in the premises. Thus in one action, before any complications have arisen in regard to the annexation of the territory, the court determines the rights of the parties, with the right of either party to appeal from the decree. Such powers are judicial and not legislative. The same powers are conferred upon the courts to change the names of persons, cities, and. towns, and like cases which have been treated as a legitimate. exercise of judicial power. This question was very fully considered by the Supreme Court of Iowa in Burlington v. Leebrick, 43 Iowa, 252, where a statute very similar to that under consideration was sustained, and the power of the court to determine the conditions upon which contiguous territory should be annexed to a city was. held to be judicial and not legislative. See also Kayser v. Trustees, 16 Mo. 88. Blanchard v. Bissell, 11 O. S. 96. Borough of Little Meadows, 35 Penn. St. 335.

Our constitution prohibits special legislation as applied to any particular municipal corporation. The legislature, therefore, cannot, by special act, extend the boundaries of any city or town. This, therefore, must be done by general law, and the most practical way of accomplishing this purpose is to provide by general statute the conditions under which contiguous territory may be attached to such city or town, and to clothe some local tribunal with power to determine, in the first instance, whether such conditions exist. If such local tribunal is convinced of the existence of one or both of the conditions named, and pass a resolution annexing such territory, it must still convince the court of the existence of at least one of said conditions and obtain a decree of the existence of the same. These questions are so far of a judicial character that they may

properly be vested in the judicial department of the State. As there is no bill of exceptions, and no question as to the sufficiency of the evidence to sustain the decree, we hold that the court below had jurisdiction, and the decree is affirmed.

Decree affirmed.

EX PARTE GRIFFITHS.

118 Indiana, 83. 1889.

ELLIOTT, C. J. The reporter of the decisions of this court files this petition invoking judgment upon the validity of the act of March, 1889. Among other provisions that act contains the following: "Opinions involving no disputed principles of law or equity or rule of practice, and no question except as to whether the verdict or decision is sustained by sufficient evidence or is contrary to the evidence, shall be printed in brevier type, without analysis or syllabus. . . . The index and tables of cases shall be subject to the supervision and direction of the Supreme Court. . . . It shall be the duty of the Supreme Court to make a syllabus of each opinion recorded by said court, except as hereinbefore otherwise provided." Acts of 1889, p. 87.

If the act assumed to require the judges of the Supreme Court to perform the duties of the clerk by preparing entries, or to discharge the duties of the sheriff by preparing returns for him, we suppose no one would hesitate to declare it void. The fact that the officer whose duties the act assumes to direct the judges to perform is the reporter, and not the clerk or the sheriff, can make no difference. Neither shade nor semblance of difference can be discerned by the keenest vision between the cases instanced by way of illustration and the real case. The principle which rules is this: Judges cannot be required to perform any other than judicial duties. This is a rudimental principle of constitutional law. To the science of jurisprudence, it is as the axiom that the whole is equal to all its parts is to the science of mathematics. There is no contrariety of opinion upon this subject. There is no tinge of reason for asserting a different doctrine. We quote Judge Cooley's statement of the principle, although it is found in a book intended for beginners, because it expresses the rule clearly and tersely. This is his statement: "Upon judges, as such, no functions can be imposed except those of a judicial nature." Principles of Const. Law, 53. The authorities upon this point are many and harmonious. Hayburn's Case, 2 Dall. 409, n.; United States v. Ferreira, 13 How. 40, n.; Auditor v. Atchison, etc., R. R. Co., 6 Kan. 500; Supervisors of

Election, 114 Mass. 247; Rees v. City of Watertown, 19 Wall. 107; Heine v. Levee Commrs., 19 Wall. 655; Smith v. Strother, 68 Cal. 194; Burgoyne v. Supervisors, 5 Cal. 9; People v. Town of Nevada, 6 Cal. 143; Hardenburgh v. Kidd, 10 Cal. 402; McLean County Precinct v. Deposit Bank, 81 Ky. 254; State v. Young, 29 Minn. 474; Shepherd v. City of Wheeling, 4 S. E. Rep. 35.

The preparation of the syllabi is an essential part of the reporter's work. Head-notes may be copyrighted, but the opinions of the court cannot be. The syllabi, or head-notes, may be copyrighted because they are the work of the reporter and not of the judges. The work is essentially and intrinsically ministerial, and, therefore, cannot be performed by the judges or the court.

The soundness of the rule stated by Judge Cooley is beyond controversy, and it is hardly necessary to go further, since it is conclusive here, but the provisions of our Constitution are so clear and decisive that we cannot forbear referring to them. These provisions are found in article 7, and read thus:

"Section 5. The Supreme Court shall, upon the decision of every case, give a statement in writing of each question arising in the record of such case and the decision of the court thereon.

"Section 6. The General Assembly shall provide, by law, for the speedy publication of the decisions of the Supreme Court made under this Constitution; but no judge shall be allowed to report such decisions."

These provisions, when read in connection with section 1 of article 3, distributing the powers of government, and section 1 of article 7, lodging the whole judicial power of the State in the courts, make it perfectly clear that the Legislature cannot impose any of the duties of the reporter upon the judges of the Supreme. Court. Section 5 defines the duties of the court, and to these duties the Legislature can make no additions. The last clause of section 6 is a positive prohibition, and no judge can, without an open defiance of the Constitution he has sworn to support, take upon himself the duties of the reporter.

The principle which controls here has been asserted and applied by this court. By force of this principle the act of 1875, concerning the office of reporter, was overthrown. Judge Buskirk, in speaking of the decision, says it was the unanimous judgment of the court. Buskirk, Practice, 12. That learned judge discusses the question at length and very clearly proves that the Legislature has no power to require the judges to exercise any of the functions of the office of reporter. There are many decisions asserting and enforcing the general principle involved here. It is, indeed, everywhere agreed that constitutional courts are not subject to the will of the Legislature, for, as said in Wright v. Defrees, 8 Ind. 298, "The powers of the three departments are not merely equal, they are exclusive, in respect to the duties assigned to each. They are absolutely inde

pendent of each other." In the case of Houston v. Williams, 13 Cal. 24, the court, speaking by FIELD, J. (now one of the justices of the Supreme Court of the United States), said: "The truth is, no such power can exist in the legislative department, or be sanctioned by any court which has the least respect for its own dignity and independence. In its own sphere of duties, this court cannot be trammelled by any legislative restrictions. Its constitutional duty is discharged by the rendition of decisions." The Supreme Court of Arkansas, discussing the general subject, cites with approval the case of Houston v. Williams, supra, and says, of the constitutional right of the court, that: "The legislative department is incompetent to touch it." Vaughan v. Harp, 49 Ark. 160. In a recent decision of our own it was said: "It is true that the judiciary is an independent department of the government, exclusively invested by the Constitution with one element of sovereignty, and that this court receives its essential and inherent powers, rights, and jurisdiction from the Constitution and not from the Legislature." Smythe v. Boswell, 117 Ind. 365. Of the many other cases sustaining this doctrine, we cite Little v. State, 90 Ind. 338 (46 Am. Rep. 224), and authorities cited; Sanders v. State, 85 Ind. 318; Shoultz v. McPheeters, 79 Ind. 373; Nealis v. Dicks, 72 Ind. 374; Greenough v. Greenough, 11 Pa. St. 489; Chandler v. Nash, 5 Mich. 410; Hawkins v. Governor, 1 Ark. 570; In re Janitor of Supreme Court, 35 Wis. 410; Speight v. People, 87 Ill. 595; Ex Parte Randolph, 2 Brock. 447.

It is our judgment that the petition brings before us these three questions: (1st) Can the Legislature impose ministerial duties. upon the court? (2d) Can the Legislature add duties to those devolved upon the judges by the Constitution? (3d) Can the Legislature, in violation of the constitutional inhibition, authorize the judges to discharge the essential duties of a reporter? Upon these questions we express our judgment and sustain the petitioner's contention, but we neither express nor intimate an opinion upon any others, although others are discussed.

We have no doubt that it is our right and our duty to give judgment upon the questions we have stated, because they directly concern the rights, powers, and functions of the court, and no other tribunal can determine for us what our rights, duties and functions are under the Constitution.1

1 On account of these unconstitutional provisions, the whole statute providing for reporting the opinions of the Supreme Court was held to be invalid. Griffin v. State, ex rel., 119 Ind. 520 (1889).