parties; the questions that would arise are essentially judicial; and over them the court possesses jurisdiction at the common law; and it is presumable that legislative acts of this character must have been adopted carelessly, and without due consideration of the proper boundaries which mark the separation of legislative from judicial duties." It follows, as a matter of course, that the legislature can not strengthen an enactment of forfeiture by reciting therein facts which would constitute a ground for a judicial declaration of forfeiture.2 § 46. Forfeiture distinguished from repeal. But where the legislature in granting a charter reserves the right to repeal it for cause, this is a different matter from declaring a forfeiture; and although it depends upon matters of fact, it is not necessary for the legislature to wait until those facts have been judicially ascertained. When the charter contains that stipulation, it is as much a part of the contract as anything else that is in it. The legislative repeal of such a charter bears no resemblance to the judgment of a court against the corporation on a quo warranto. They proceed upon principles 365; Allen v. Buchanan, (1873) 9 Phila. 283; State v. Noyes, 47 Me. 189. "The legislature, executive, and judiciary are all creatures of the constitution, each confined in its action to the circumscribed sphere assigned to it, and cannot rightfully exercise any power which is repugnant to that instrument, or not within their respective sphere of action. . . The legislature can not usurp the powers confided to either of the other departments without violating the declaration in the bill of rights that they shall be forever separate and distinct from each other, which would be a subversion of the principles that lie at the foundation of the government." Regents of the University of Maryland v. Williams, 9 Gill & J. 365; s. c. 31 Am. Dec. 72, 97. 2 State v. Adams, 44 Mo. 570. An act declaring a forfeiture, if beyond legislative authority, can not be strengthened by reciting facts which might judicially work a forfeiture, unless those facts have been judicially passed upon. Any act may recite a judgment of forfeiture as a proper foundation for any legislation warranted by such judgment; but the question of forfeiture upon condition broken is strictly judicial, and the legislature can not constitutionally know either that the facts exist, or their legal effect." 2 Waterman on Corporations, 914. 3 Erie & N. E. R. Co. v. Casey, 26 Pa. St. 287, 302, where the charter under consideration contained a clause providing that "If the said company abuse or misuse any of the privileges hereby granted, the legis 1 Cooley's Constitutional Limita- lature may resume the rights tions, 106. granted to the said company." as different as the functions of the legislature are different from those of the judiciary. If the power to repeal be reserved, its exercise is merely carrying out the contract according to its terms; and the State is using her own rights — not forfeiting those of the company. It is conceded that without any reservation of the right to repeal, the judiciary would have power to annul and make void the charter upon ascertaining, by a proper issue, such misuse and abuse. If, therefore, it were first necessary to form an issue in the courts and judicially investigate such facts, it would seem absurd in the legislature to have reserved the right thereafter to repeal, when the same end could be accomplished as substantially and more speedily by the court which tried the issue. "Such reasoning must lead to the inference that the clause providing for a repeal means nothing." § 47. Judicial and legislative inquiry distinguished.— A difficulty, however, arises from the principle that the power of repeal reserved in charters can not be capriciously exercised, and legislatures having seldom, if ever, exercised even the broadest reservation of the power of repeal until after careful examination into any alleged breach of the conditions upon which a charter may have been granted, these investiga 1 Erié & N. E. R. Co. v. Casey, 26 be nugatory. When the abuse of a Pa. St. 287, 301. 2 Miners' Bank v. United States, (1848) 1 Greene (Iowa), 553, 562, where the reservation was: "That if the said corporation shall fail to go into operation, or shall abuse or misuse their privileges under this charter, it shall be in the power of the Legislative Assembly of the territory to annul, vacate, and make void this charter." In Erie & N. E. R. Co. v. Casey, 26 Pa. St. 287, 302, the court said: "The plaintiff's counsel insist that inasmuch as the right of repeal depended on matter of fact, the right could not be exercised until the fact was ascertained by a judicial trial. But if this were not a mistake the reservation would charter is judicially ascertained, the corporation will be dissolved without the intervention of the legislature, and the court could not decide the fact to be true without pronouncing the judgment of forfeiture. The legislature certainly meant to reserve something more than the right to dissolve the corporation, after it shall be dissolved by a court. The power to kill what is already dead is no power at all. The argument of the plaintiff on this point is altogether unsustained by authority. There are several cases directly against it." 3 Vide supra, § 39; Shields v. Ohio, (1877) 95 U. S. 375; Sinking Fund Cases, (1878) 99 U. S. 700. tions have been mistakenly supposed to be judicial in their nature. And it is urged that the investigation and determination of the question whether the occasion has arrived upon which the reserved power of the legislature may be exercised, is one of judicial and not of legislative cognizance; and that any attempted action by the legislature prior to such judicial determination, would be in excess of its powers and an encroachment upon the authority of the judiciary? The cases, however, which sustain this objection fail to draw any clear distinction between forfeiture and repeal, often using the words interchangeably in such a manner as to beget confusion. 1 In an early case in Massachusetts this error was exposed. "We do not believe," said the court, "that the inquiry into the affairs or defaults of a corporation, with a view to continue or discontinue it, is a judicial act. No issue is formed. No decree or judgment is passed. No forfeiture is adjudged. No fine or punishment is imposed. But an inquiry is had in such form as is deemed most wise and expedient, with a view to ascertain facts upon which to exert legislative power, or to learn whether a contingency has happened upon which legislative action is required. This is the constant and necessary course of proceeding, not only in relation to private and special acts, but also to many public acts. In granting new charters, or enlarging, modifying or renewing old ones, and in a large portion of ordinary legislation, it is the duty of the legislature to inquire and ascertain whether existing facts render this action expedient or necessary. These proceedings, though they bear some resemblance to, and have in view the same general object, the ascertainment of truth, yet in no proper sense can they be called judicial acts." Crease v. Babcock, (1839) 23 Pick. 334, 344. 2 Flint &c. Plank Road Co. v. Woodhull, 25 Mich. 99, 112; State v. Noyes, 47 Me. 189; Chesapeake & O. Canal Co. v. Baltimore & O. R. Co., 4 Gill & J. 123; Regents of the University of Maryland v. Williams, 9 Gill & J. 365. Thus in Flint &c. Plank Road Co. v. Woodhull, 25 Mich. 99, 112, where the charter of the corporation contained a reservation that no repeal should be made unless "it be made to appear to the legislature that there has been a violation by the company of some of the provisions of this act," the court said: "We are constrained, therefore, from all these considerations, to say, that the determination whether a corporation has violated its charter is judicial in its nature. It requires the action of those tribunals which must hear before they condemn, and must proceed upon inquiry. If it were properly legisla tive, it may be that the legislature must be presumed to have given a hearing; but the fact, as we have seen in this case, is otherwise, and the cases in which presumptions are to be indulged against the facts ought not to be multiplied. It is sufficient to say, that, in our opinion, the case is one in which the party is entitled to a trial of right § 48. The same subject continued. The rules deducible from the more accurately worded opinions would seem to be, first, that in the absence of any express reservation to the legislature, the State may exercise its visitorial power over corporations only through its judicial department;1 second, that an unconditional reservation of the power to revoke the franchises or repeal the charter of corporations, vests in the legislature a discretion which can be questioned by the courts only when it has been wantonly abused; and, third, that when the reservation of the power of revocation and repeal has not been unconditionally reserved, but its exercise by the legislature has been made to depend upon some breach by the corporation of the conditions upon which its charter and franchises were granted, the legislature alone can determine for itself whether the circumstances are such as to warrant it in the exercise of the power; but that, as in other cases, its in fact, and can not be put off with one which rests exclusively in a presumption of law, indulged against the fact. The violation of the charter can not be legally made to appear, except on trial in a tribunal whose course of proceeding is devised for the determination of questions of this nature." 3 selves from exercising the power of repeal, until a certain event happens. This they must necessarily ascertain before they can properly exercise the power. Their decision must, prima facie, be presumed to be right. Whether it be conclusive or not, is a question which it is not necessary now to determine." So also in an 1Vide cases cited supra, § 46. See other well-considered case, under a Beach on Railways, § 592. 2 Vide supra, §§ 38 and 39. Spring Valley Water Works v. Schottler, 110 U. S. 347; Sinking Fund Cases, (1878) 99 U. S. 700, 720; Shields v. Ohio, (1877) 95 U. S. 375. 3 Myrick v. Brawley, (1886) 33 Minn. 377; Kennedy v. Strongs, 14 Johns. 129; De Camp v. Eveland, 19 Barb. 81; Lothrop v. Stedman, 42 Conn. 584; s. c. 13 Blatchf. 134; New York &c. R. Co. v. Boston &c. R. Co., 36 Conn. 196; Crease v. Babcock, 23 Pick. 334, 345, where the court declared that "it is indispensable that this inquiry should, in the first instance, be made by the legislature. No other body can do it for them. They have restricted them grant of a franchise together with a action in the matter is subject to subsequent review by the courts, and upon a judicial determination that the contingency had not arisen upon which the reserved power was made to depend, the repealing act may be declared null and void.1 § 49. The fact of forfeiture to be judicially declared.— An act done by a corporation which is sufficient cause for forfeiture of its charter, or of its franchises, does not, of itself, avoid the charter or work the dissolution of the corporation; but the charter remains valid until pronounced forfeited by a judgment rendered on proper proceedings, giving the corporation an opportunity to answer and to be fully heard. Thus event, the existence of the fact at the time of the recall must, of course, be a matter for judicial investigation. Whether the re-entry by a private grantor perfects a forfeiture must depend on the fact of condition broken, and that must be ascertained by the judiciary; but in no case where the forfeiture may be enforced by act of the grantor, need he secure before he enforces it, a judicial determination that the fact upon which the right to forfeit depends, exists. The courts will decide upon the effects of his act subsequently. But neither does the legislature, when it exercises a reserved right to repeal, nor the private grantor, when he exercises a reserved right of re-entry, perform any judicial function. The act of neither assumes to determine finally the rights of the parties as affected by the act to enforce the forfeiture. That is necessarily and inherently a judicial question, which only the judiciary can decide." Myrick v. Brawley, (1886) 33 Minn. 377, 379; Erie & N. E. R. Co. v. Casey, 26 Pa. St. 287, 302. In Crease v. Babcock, 23 Pick. 234, the Supreme Court of Massachusetts said that when the legislature reserved to itself the right to repeal a charter on the happening of a certain event, they might enact the repeal whenever the event happened; it was not a reservation of judicial power. To the same effect is McLarren v. Pennington, 1 Paige, 107; and in the Miners' Bank of the United States, 1 Greene, (Iowa) 561, it was held, not only that the fact, on which the right of repeal depended, might be noticed by the legislature without the assistance of the judiciary, but that its truth could never afterwards be questioned by any court." The lat ter case, however, so far as respects the finality of the legislative determination, may be regarded as of doubtful authority. 1"The most that can be said is, that the repeal is void if it comes before the court. If the corporators desire to contest the validity of the repealing act in a court, they must at least prove that the event did not occur.” Erie & N. E. R. Co. v. Casey, 26 Pa. St. 287, 302. 2 Moore v. Schoppert, (1884) 22 W. Va. 282; Sturges v. Vanderbilt, 73 N. Y. 384; Hollingshead v. Woodworth, 35 Hun, 410; Cosenback v. Salt Springs Nat. Bank, 53 Barb. 506; Master Stevedores' Assoc. v. Walsh, 2 Daly, 14; Cartan v. Father Mathew &c. Soc., 3 Daly, 20; Mackall v. Chesapeake & Ohio Canal Co., (1876) 94 |