franchise to lay gas pipes and mains in the highways and streets of a county or of certain villages therein.24 § 179. Delegation to Probate Courts-Use of Streets by Telephone Company.-A probate court may be authorized, in case of failure of city authorities and a telephone company to agree as to the mode of construction of its lines and the use of streets, to direct such mode of construction, and such power is not inappropriately bestowed, and the statute conferring such authority imposes judicial functions upon the court and does not violate the Constitution on the ground that the power conferred is distinctly legislative.25 But in a case where a telephone company obtains its right to occupy the streets with its poles, lines, etc., from the State, and the municipal authorities are vested with the power to agree upon, not the right to use, but the mode of use, and the submission to the probate court is consequent upon the failure to agree as above stated; that is, the municipal authorities may do only what the probate court can do and no different thing. One is a substitute in all respects for the other.26 Again, the decree of that court upon the matter, must be something more than an ordinance or general grant of the use of the streets; it must be a judicial ruling or decision according to established rules and practice, based upon proper allegations and proof, and not constitute in effect a substitution of the court to obtain legislative action.27 24 Consolidated Gas Co. v. County Commrs. of Baltimore County, 99 Md. 403, 58 Atl. 214. Act of 1902, ch. 368, empowered the county court commissioners of Baltimore county to grant franchises in and below the highways of the county upon certain terms. Acts of 1886, ch. 384, 395 prohibited the formation of new gas companies in certain counties, including Baltimore, and provided that no gas company chartered in other counties shall have the right to lay mains or sell gas in these counties and it was also held that the act of 1886, related only to incorporated gas companies and not to an individual manufacturing gas. 25 Zanesville, City of, v. Zanesville Teleph. & Teleg. Co., 64 Ohio St. 67, 59 N. E. 781, 52 L. R. A. 150, rev'g 63 Ohio St. 442, 59 N. E. 109. 20 Farmer & Getz v. Columbiana County Teleg. Co., 72 Ohio St. 526, 74 N. E. 1078; Bates Annot. Stat., §§ 3461, 3471-3478, 3558. § 180. Delegation to Court of Visitation.-A statute creating a court of visitation declaring its jurisdiction and powers, and providing for proceedings and procedure therein, is unconstitutional and void where in the powers conferred upon that tribunal, legislative, judicial and administrative functions are commingled and interwoven in a manner violative of the constitutional requirement that the three great departments of the government be kept separate, and the powers and duties of each exercised independently of the other.28 § 181. Delegation of Power-Authority of Dental Board over Colleges.-The authority of a board, under a law regulating dentistry, to pass upon the reputability of colleges, is neither legislative, nor judicial, but is quasi-judicial; that species of authority is commonly intrusted to individuals, boards, or commissions to determine matters of fact when that is essential to the performance of administrative duties.20 § 182. Delegation to Board of Equalization-Review of Action of-Federal Courts.-The power to equalize taxes may be delegated to a board of equalization commissioners without violating the constitutional provision against a delegation of legislative power, as it is a quasi-judicial power.30 Proceedings before a board of equalization being quasi-judicial, if an order made by it is within its jurisdiction, it is not void and cannot be resisted in an action at law; nor can overvaluation be made a ground of defense at law. The action of the tax officers being in the nature of a judgment must be yielded to until set aside. And this can only be done in a direct proceeding. A state board of equalization is one of the in 31 28 State v. Johnson, 61 Kan. 803, 49 L. R. A. 662, 60 Pac. 1068. See also Western Union Teleg. Co. v. Myatt, 98 Fed. 335. 29 State ex rel. Milwaukee Medical College v. Chittenden, 127 Wis. 468, 107 N. W. 500. 107 N. W. 635, Rev. Stat., 1898, §§ 1077a, 1077b. See New Jersey Zinc Co. v. Sussex County Board of Equalization, 70 N. J. L. 186, 56 Atl. 138. See § 183, herein. 31 Western Union Teleg. Co. v. Missouri ex rel. Gottlieb, 190 U. S. 30 Foster v. Rowe, 128 Wis. 326, 412, 47 L. ed. 1116, 23 Sup. Ct. 730. strumentalities provided by a State for the purpose of raising the public revenue by way of taxation, and it may be made the duty of such board to make an original assessment on corporations such as traction companies, and, where no appeal is provided, its decision is conclusive except as proceedings for relief may be taken in the courts, and, in so far as the board is one of review its decisions are equally conclusive as in case of original assessments. A board of equalization acting under the constitution and laws of a State represents the State, and its action is that of the State. But the provisions of the Fourteenth Amendment of the Federal Constitution are not confined to the action of the State through its legislature, or through the executive or judicial authority. Those provisions cover and relate to all the instrumentalities through which the State acts; therefore, whoever by virtue of public position under the government of a State deprives another of any right guaranteed by that amendment against deprivation by the State, violates such constitutional inhibition, so that, as he acts for the State and in the State's name and is clothed with the powers of the State, his act is that of the State. It follows, then, that when the action of taxing bodies is in effect the action of the State it is reviewable in the Federal courts at the instance of one who claims that he has been thereby deprived of his property without due process of law and has been denied the equal protection of the law. And it is held that the action of a board of equalization resulting in illegal discrimination, not being an action forbidden by the state legislature, is not beyond review by the Federal courts under the Fourteenth Amendment.32 See State of Missouri v. Dockery, 191 U. S. 165, 24 Sup. Ct. 53, 48 L. ed. 133 (judgment of board as to tax on corporation final); Pittsburg, Cincinnati, Chicago & St. Louis Ry. Co. v. Backus, 154 U. S. 421, 14 Sup. Ct. 1114, 38 L. ed. 1031; Whitbeck v. Mercantile Nat. Bank, 127 U. S. 193, 8 Sup. Ct. 1121, 32 L. ed. 118; Williams v. Supervisors of Albany, 122 U. S. 154, 30 L. ed. 1088, 7 Sup. Ct. 1244; Cummings v. Nat. Bank, 101 U. S. 153, 30 L. ed. 1088, 7 Sup. Ct. 1244; Cochise, County of, v. Copper Queen Consol. Min. Co. (Ariz., 1903), 71 Pac. 946; Foster v. Rowe, 128 Wis. 326, 107 N. W. 635. 32 Raymond v. Chicago Union Traction Co., 207 U. S. 20, 35, 36, 52 L. ed. 7, 28 Sup. Ct. 7, aff'g 114 Fed. § 183. Delegation to Commissioners by Courts-Construction of Street Railroads-Appointment by Circuit Judge of Commissioners of Equalization.-The constitution of New York provides that no law shall authorize the construction or operation of a street railroad except upon the condition that the consent of the owners of one-half in value of the property bounded on, and the consent also of the local authorities having the control of that portion of a street or highway upon which it is proposed to construct or operate such railroad be first obtained, or in case the consent of such property owners cannot be obtained, the appellate division of the Supreme Court, in the department in which it is proposed to be constructed, may, upon application, appoint three commissioners who shall determine, after a hearing of all parties interested, whether such railroad ought to be constructed or operated, and their determination, confirmed by the court, may be taken in lieu of the consent of the property owners.33 This provision does not, however, apply to the streets of New York City, the titles to which are in the city.34 If commissioners, acting under this provision, make a report adverse to the construction of the road, it is held that there is no power in the appellate division to set aside, conform or review their determination.35 But if the commissioners are divided, the court may confirm the report of the majority.36 The restriction also applies as well to a part of as to a complete road,37 and additional but not inconsistent restrictions may be imposed.38 557, distinguishing Barney v. City of New York, 193 N. Y. 430. See citations under last preceding note herein. 33 New York Const., art. III, § 18. 34 Matter of Gilbert Elev. R. Co., 70 N. Y. 361, 30 Abb. N. C. 434, aff'g 9 Hun, 303. 35 Nassau Elec. R. Co., In re, 40 N. Y. Supp. 334, 6 App. Div. 141. "Port Chester St. Ry. Co., In re, 43 App. Div. 536, 60 N. Y. St. R. 160. 37 Matter of Metropolitan Transit Co., 111 N. Y. 588, 20 N. Y. St. R. 516, 19 N. E. 645, aff'g 15 N. Y. St. R. 977, 1 N. Y. Supp. 114, 19 N. E. 645. 38 Matter of Thirty-Fourth St. R. Co., 102 N. Y. 343, 7 N. E. 172, rev'g 37 Hun, 442. Examine further as to the effect of these constitutional provisions on pre-existing corporations, Ingersoll v. Nassau Elec. R. Co., 17 N. Y. 453; Matter of Third Ave. R. Co., 121 N. Y. 536, 31 N. Y. St. R. 693, 24 N. E. In Wisconsin a statute is not unconstitutional as conferring on a circuit judge non-judicial duties where it empowers such judge, upon application made with proof of notice, to appoint commissioners of equalization to perform duties in cities and other political subdivisions within the county. § 184. Delegation of Powers-Power of Courts in Relation to Power of Over Municipalities, Common Council Commissioners of Waterworks, Railroad Commissions, and Over Other Courts, etc.-Police Power.40-In view of the three great and separate divisions, made by the Constitution, of the powers of a State into the legislative, judicial and executive, a city assembly cannot be restrained by a Circuit Court from enacting an ordinance granting to a street railroad company a right of way in the city's streets.41 So a statute may confer upon a board of public officers, such as the commissioners of waterworks, a discretion to make a contract with the "lowest and best bidder," and this discretion cannot be controlled by mandamus.42 Nor does the Supreme Court of Louisiana act as a supervisory or administrative board, but only as a judicial body in taking cognizance of and adjudicating disputed matters arising between the railroad commission and state railroads.43 And the determination of the board of railroad commissioners of New York, whether or not a certificate shall be issued that public convenience and necessity require the construction of a proposed railroad, does not constitute a subject for judicial revision.44 Again, few principles are better settled in the courts of this country than this, that where the legislative powers are delegated to a municipal corpo 951, rev'g 56 Hun, 537, 9 N. Y. Supp. 833, 31 N. Y. St. R. 645. 43 Morgan's Louisiana & Texas Rd. & Steamship Co. v. Railroad Com30 Foster v. Rowe, 128 Wis. 326, mission, 109 La. 247, 33 So. 214. See 107 N. W. 635. 40 See §§ 136, 200, herein. 41 Albright v. Fisher, 164 Mo. 56, 64 S. W. 106. Railroad Commission v. Weld (Tex. "People v. Board of Railroad Commissioners, 175 N. Y. 516, 67 N. 42 State of Ohio ex rel. Walton v. E. 1088, aff'g 81 N. Y. Supp. 20, 81 Hermann, 63 Ohio St. 440. App. Div. 242. |