CHAPTER X

LEGISLATIVE ASSUMPTION OF JUDICIAL POWERS

ALTHOUGH glaringly in conflict with the constitutional clause under consideration, legislatures have not infrequently enacted laws which, if given the effect intended, would result in legislative judgments. It has been held that the foreclosure of a mortgage on private property cannot be accomplished by a legislative enactment. The legislature has no power to inquire, ascertain, or determine whether a widow is entitled to dower in a specified parcel of land, and an act authorizing commissioners to assign to her her dower in certain premises is void, as far as it is a determination that she is entitled to dower therein, it being a judicial determination.2

Likewise it has been held that whether a corporation has been guilty of an abuse of its corporate privileges so as justly to subject it to a forfeiture, is a question to be decided by the courts and not by the legislature.3 For this reason among others it is held that the charter of a bank cannot be declared forfeited by a proclamation of the governor made under an act of the legislature. And the act itself authorizing the executive, upon sufficient proof being made to him of the existence of facts, to make the forfeiture known by his proclamation, is void. The dissolving of a corporation or declaring a forfeiture of its charter is the province of the bench, the exercise of judicial power. The forfeiture of a corporate charter

1 Ashuelot R. R. Co. vs. Elliot, 58 N. H. 451.

2 Edwards vs. Pope, 4 Ill. 465.

State vs. Noyes, 47 Me. 189.

4 Campbell vs. Mississippi Union Bk., 6 How. (Miss.) 625.

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can be enforced only by judicial proceedings instituted for that purpose at the instance of the government.1

But a reservation by the legislature of the right to repeal an act of incorporation for a violation of its provisions or other default, is not unconstitutional. The exercise of a reserved power of amending and repealing the charter of a corporation is a legislative power. Nor is the inquiry by the legislature into the affairs or defaults of a corporation with a view to continue or discontinue it, a judicial act.3 A clause in a charter authorizing the legislature to repeal it for an "abuse or misuse of corporate privileges" refers the question of abuse to legislative judgment.4

Where the legislature reserves in the charter a right to repeal it for abuse or misuse of corporate powers, a repealing act is constitutional unless the corporation can show by plain and satisfactory evidence that the privileges granted were not abused or misused.5

But it has also been held in some jurisdictions that, where a charter contains a provision that it shall not be repealed "unless it shall be made to appear to the legislature that there has been a violation by the corporation of some of the provisions of the charter," the question of violation nevertheless is a judicial question, and that the charter cannot be repealed until the violation has been made to appear to the legislature by some proper judicial proceeding before a judicial tribunal. An act simply providing "the charter is hereby repealed" was held void as the exercise by the legislature of judicial power.

1 Canal Co. vs. Railroad Co., 4 G. & J. 1.

* Ashuelot R. R. Co. vs. Elliot, 58 N. H. 451.

Lothrop vs. Stedman, 42 Conn. 583; Crease vs. Babcock, 23 Pick. 334; Allen vs. Buchanan, 9 Phil. (Pa.) 283; Regents vs. Williams, 9 G. & J. 365. Miners' Bk. vs. United States, 1 Morris, 482.

Erie & Northeast R. R. Co. vs. Casey, 26 Pa. St. 287; Commonwealth vs. Pittsburgh R. R. Co., 58 Pa. St. 46. See Mowrawetz on Private Corp., Sec. 112. Flint & Fentonville R. R. Co. vs. Woodhull, 25 Mich. 99.

Although where the right to repeal or amend a charter depends upon some contingency, some act or omission of the corporation, the right to judge whether that contingency has occurred belongs generally to the legislature, not to the courts, yet the power of the legislature is limited to the destruction of the powers it gave to the corporation, as part of its existence, and does not extend to the destruction of the property rights which it acquired through the exercise of such powers.2

Upon the ground that the legislature may exercise administrative powers, legislative appointments of trustees to sell property of persons non sui juris are maintained.3 Upon the ground that the legislature may delegate to any officer or body, whether created by the constitution or by itself, or to any department of the government, administrative powers, or powers not specifically vested by the constitution in any one of the departments or in any other officer or body, an act authorizing the governor to appoint a receiver to settle the affairs of an insolvent bank, is constitutional, and an appointment thereunder, valid.4

The legislature was also sustained in the appointment of a trustee to take the assets and manage the affairs of a corporation whose charter had been repealed. The court said: "If no trustee were appointed by the legislature, a court of equity, which never allows a trust to fail for want of a trustee, would see to the execution of the trust."5

For the legislature to assume in any manner directly or indirectly to control the courts in the decision of causes or in the rendering of final judgments, as by revising or annulling their judgments or interfering with the adjudications they

1 McLaren vs. Pennington, I Paige (N. Y.) 102.

2 People vs. O'Brien, 45 Hun. 519.

3 Hindman vs. Piper, 50 Mo. 292; Rice vs. Parkham, 16 Mass. 326; Cochran vs. Van Surlay, 20 Wend. 373.

4 Carey vs. Giles, 9 Ga. 253.

5 Lothrop vs. Stedman, 42 Conn. 583.

have duly and formally reached, would be the assumption of judicial power, and therefore contrary to the principle of the separation of powers.

It has been shown that the legislature cannot compel the courts to apply a legislative interpretation of a law. It follows from the same principles that the legislature has no power of directing what particular steps shall be taken in the progress of a judicial inquiry. Therefore an act directing that certain depositions which had previously been taken should be read in evidence on a trial, notwithstanding certain informalities, is void. Nor can the legislature prescribe for the courts what instructions they shall give in a particular pending cause, unless they have previously embodied in a legislative enactment, as the law of the land, the substance of such instructions.3

No act of the legislature can alter the nature or legal effect of an existing contract, or give to such contract a judicial construction which shall be binding upon the parties or upon the courts.4

Since the legislature has no judicial power, the preamble of a private statute cannot be used by the courts as evidence of matters recited therein. The legislature has no power to find facts by legislative enactment so as to be evidence in suits pending before the courts.5

Although the case or controversy might have been such in its nature that the legislature could have acted upon it, had it seen fit, without the aid of the courts, and without encroaching upon the just claims of the judicial department, yet if a suit should be brought upon it and be pending in the courts, the legislature could not control its subsequent progress. Any 1 Taylor vs. Place, 4 R. I. 324.

Dufy vs. Wickwire, 1 D. Chip. 238; s. c., 6 Am. Dec. 729.

State vs. Hopper, 71 Mo. 425.

King vs. Bank, 15 Mass. 447; Weaver vs. Maillot, 15 La. Ann. 395.

5 Elmendorf vs. Carmechal, 3 Litt. 475. See Lothrop vs. Stedman, 42 Conn. 583, 592.

attempt on the part of the legislature to exercise its power over the court or the decision of the suit would be the exercise of judicial power. Thus Congress may collect, by means of administrative officers of the United States, balances due to the United States from receivers of public money without the aid of the courts. But as it is competent for the government to sue any of its depositors in a court of law, or consent to itself being sued, if such a suit be brought and pending in a court of the United States, it would be so completely within judicial control that Congress could not by subsequent action control its progress or decision.1

If anything is self-evident in the structure of our government, it is that the legislature has no power to order a rehearing or new trial, or to direct the court to order them, either before or after judgment. Such power is judicial. An act of the legislature, however, granting a new trial or reopening a judment in favor of the people, is a mere consent on the part of the people, one of the parties to the judgment, that a new trial be granted or judgment reopened, and is not unconstitutional.3

Nor has the legislature power to grant to parties a right to appeal after it is gone under the general law. But a statute which takes away the right to a future appeal in an action already pending, but undetermined, when the statute takes ef-· tect, is not unconstitutional. After the time prescribed by law for asking a new trial or taking an appeal has expired, the judgment becomes final between the parties, and no subsequent

1 Murray's Lessee vs. Hoboken Land and Improvement Co., 18 Howard, 272, 283.

* De Chastellux vs. Fairchild, 15 Pa. St. 18; Durham vs. Lewiston, 4 Me. 140; Griffin's Executors vs. Cunningham, 20 Gratt. 31. See Lawson vs. Jeffries, 47 Miss. 686, which held that the constitutional convention of Mississippi of 1888, being a legislative body, had no power to grant new trials, such power being judicial. 3 People vs. Frisbie, 26 Cal. 135.

♦ Hill vs. Sunderland, 3 Vt. 507; Lewis vs. Webb, 3 Me. 326.

5 Grover vs. Coon, 1 N. Y. 536; ex parte McCardle, 7 Wall. (U. S.) 506; R. R. Co. vs. Grant, 98 U. S. 398.