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CHAPTER III.

DEPARTMENTS OF GOVERNMENT.

SECTION I. THE LEGISLATIVE DEPARTMENT.

TAYLOR v. PLACE.

4 Rhode Island, 324. 1856.

AMES, C. J. The substance of this case is, that after the plaintiffs had, in the regular course of judicial proceeding in the Court of Common Pleas for the County of Providence, obtained a verdict against the defendants for a sum sufficient to pay their first judgment against the Oneco Manufacturing Company, and within the amount ascertained to be in the hands of the defendants by their affidavits as garnishees, the General Assembly interfered by their vote; ordered the judgments in the former suits to be opened for the purpose of allowing, and allowed the defendants to make new affidavits as garnishees therein with effect, on the ground that the old ones were incorrectly made through accident or mistake; and set aside the verdict in this cause, and granted a new trial therein, in order that the garnishees might avail themselves of their new affidavits upon the new trial thus granted to them. By force of this vote of the Assembly, the verdict of the plaintiffs was set aside; a new trial of this cause was had by the defendants; new affidavits were filed by them, exonerating themselves from the liability which they had incurred by the old ones; and the consequence has been, that the same court under whose direction, and according to law, a verdict in this cause was obtained by the plaintiffs, has been obliged to render a judgment therein for the defendants.

It is hardly necessary, perhaps, after stating the purpose and effect of this vote, to use arguments or to cite authorities to show that thus to set aside a verdict and grant a new trial in a suit at law, which the frame of statutes, or even binding rules of practice place beyond the power of the court in which the cause is pending, or of any court of law, is the exercise of judicial power; that to deprive one party

to such a suit of an advantage that he has obtained over the other from the mistake of the latter, or from an accident that has befallen him, is the exercise of judicial power; and that, finally, as the means to such relief, to open judgments or decrees obtained in a court, and to allow the substitution of a new, or the amendment of an old sworn answer, either in proceedings at law or in equity, for the purpose and with the effect of reversing the relative condition of the parties to a pending suit, dependent upon the effect of that answer, is an exercise of judicial power. In the cause before us, all this has been done by a vote of the General Assembly; and, in the analysis of this vote just given, we have described, most aptly, the substance of a decree of a court of chancery, when exercising, in a case of accident or mistake, and after solemn hearing, its high judicial functions over proceedings at law. The difference between the decree, as it would be in such a case, if a proper one for relief, and the vote in question, is not in favor of the latter; for, whereas the decree could act only upon the parties to the suit, the vote directs and controls the action of the legal tribunal itself.

In some cases, it is difficult to draw and apply the precise line separating the different powers of government which, under our political systems, Federal and State, are, without exception, carefully distributed between the legislative, the executive, and the judicial departments. To some extent, and in some sense, each of the powers appropriated to different departments in the above distribution, must be exercised by every other department of the government, in order to the proper performance of its duty. As illustrated by Mr. Justice. McLean, in giving the judgment of the supreme court of the United States, in the case of Watkins v. Holman et al. 16 Pet. 60, 61 - "The executive, in acting upon claims for services rendered, may be said to exercise, if not in form, in substance, judicial power. And so a court, in the use of a discretion essential to its existence, by the adoption of rules or otherwise, may be said to legislate. A legislature, too, in providing for the payment of a claim, exercises a power in its nature judicial; but this is coupled with the paramount and remedial power." In an early case, which we shall have occasion hereafter to use for another purpose, the question came before the courts of the United States, under the clause of the Constitution of the United States distributing the different powers of the Federal government amongst its different departments, whether a power, lodged, by an act of Congress, in the Circuit Courts of the United States, to inquire into and to take evidence of the claims of invalid pensioners, and to transmit the result of their inquiries to the secretary of war, for his action and that of Congress thereon, was judicial power, and so the exercise of it imperative upon the circuit judges. The unanimous opinion of the Circuit Court for the District of New York, then consisting of Jay, chief justice, Cushing, justice, and Duane, district judge; of the Circuit Court for the District of Penn

sylvania, then consisting of Wilson and Blair, justices, and of Peters, district judge; and of the Circuit Court for the District of North Carolina, then consisting of Iredell, justice, and of Sitgreaves, district justice; was, that the power thus vested was not judicial, and that consequently they were not bound to exercise it. The reasons given by them were, in substance, that the act of Congress did not contemplate this power as judicial, inasmuch as it subjected the decisions of the courts, in the matter to which it related, to the consideration and suspension of the secretary of war, and again to the revision of Congress; whereas, by the Constitution, neither the secretary of war, nor any other executive officer, nor even the legisla ture, were authorized to sit, as a court of errors, on the judicial acts or opinions of the courts of the United States. The judges composing the Circuit Court of New York, however, consented, on account of the benevolence which had dictated the passage of the pension act in question, personally to execute the duties imposed upon them in the character of commissioners appointed by official instead of personal descriptions; deeming themselves at liberty, as individuals, to accept or decline the office thus tendered to them. See the opinions in the note illustrating Hayburn's Case, 2 Dallas, 410, 411, 412, and in 1 Curtis's Decis. Sup. Ct. U. S. 9, 10, and 11. In Watkins v. Holman et al. before quoted, the question arose before the Supreme Court of the United States, under the constitution of Alabama, containing a like distribution of powers with our own, whether an act of the legis lature of that state, authorizing an administratrix residing in another State, to sell and convey, by certain attorneys named in the act, the real estate of her intestate husband in Alabama, for the payment of his debts, her attorneys giving bond with sureties for the faithful payment of the proceeds of sale to the administratrix, "to be appropriated to the payment of the debts of the deceased," was a judicial act, and so within the inhibition of the constitution of Alabama. The court held the act to be valid, as the exercise, not of judicial, but of legislative power; the act providing a special remedy, merely, for a case which, on account of its circumstances, though within the spirit, was not within the letter of the general statute of Alabama, which directed the mode in which the real estate of a deceased debtor should be sold and applied to the payment of his debts. Again, in the late case of United States v. Ferreira, 13 How. 40, 48, the same court held that an act of Congress, empowering the district judge of Florida, under the treaty with Spain of 1819, commonly called the Florida treaty, to examine and adjudge claims for injuries made by the Spanish inhabitants of Florida, provided for by a clause in that treaty, and to report his decisions, if favorable to the claimants, with the evidence, to the secretary of the treasury, for his discretionary action thereon, did not confer upon the district court of Florida judicial power, in the sense of the Constitution of the United States, in that matter; and hence, that no appeal from the award of

the judge, thus acting merely as a commissioner, could be brought to the Supreme Court of the United States. The court followed precisely the line of reasoning which must have been adopted by the judges in Hayburn's Case, in 1792, as illustrated by the opinions given in the note to that case, which the court recite at large. In the opinion of the court, delivered by the present venerable chief justice, he says: "The powers conferred by these acts of Congress upon the judge, as well as the secretary, are, it is true, judicial in their nature; for judgment and discretion must be exercised by both of them. But it is nothing more than the power ordinarily given by law to a commissioner appointed to adjust claims to lands or money, under a treaty; or special powers to inquire into or decide any other particular class of controversies in which the public or individuals may be concerned. A power of this description may constitutionally be conferred on a secretary as well as a commissioner, but is not judicial in either case, in the sense in which judicial power is granted by the Constitution to the courts of the United States; " and see American Ins. Co. v. Canter, 1 Pet. 511; Benner v. Porter, 9 How. 235; United States . Ritchie, 17 How. 533, 534.

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On the other hand, it may safely be said, that to hear and decide adversary suits at law and in equity, with the power of rendering judgments and entering up decrees according to the decision, to be executed by the process and power of the tribunal deciding, or of another tribunal acting under its orders and according to its direction, is the exercise of judicial power, in the constitutional sense; and that it is so, whether the decision be final, or subject to reversal on error or appeal. It is precisely thus that the great exemplar of constitutional law, the Constitution of the United States, defines this power; for, after vesting, by the first section of its third article, "the judicial power of the United States," in "one supreme court, and in such inferior courts as Congress may, from time to time, order and establish "; and after, in the same section, fixing the tenure and mode of compensating the judges of the courts of the United States; it proceeds, in the second section of the same article, to define this power, by stating the cases and controversies in law and equity, and of admiralty and maritime jurisdiction, to which, from the nature of the questions involved in them, or of the principles of decision to be applied to them, or from the character or citizenship of the parties to them, or to be affected by them, this power, whether original or appellate, shall extend. In Osborn v. The Bank of the United States, 9 Wheat. 319, Chief Justice Marshall, in delivering the opinion of the court, after saying that the second article of the Constitution vests the whole executive power in the President, and that the third article, among other things, declares, "that the judicial power shall extend to all cases in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which

shall be made under their authority," thus speaks of the effect and extent of the latter: "This clause enables the judicial department to receive jurisdiction to the full extent of the Constitution, laws, and treaties of the United States, when any question respecting them shall assume such a form that the judicial power is capable of acting upon it. That power is capable of acting only when the subject is submitted to it by a party who asserts his rights in the form prescribed by law. It then becomes a case; and the Constitution declares that the judicial power shall extend to all CASES arising under the Constitution, laws, and treaties of the United States." The judicial power is exercised in the decision of cases; the legislative, in making general regulations, by the enactment of laws. The latter acts from considerations of public policy; the former is guided by the pleadings and evidence in the case. Per Mr. Justice McLean. State of Pennsylvania v. Wheeling and Belmont Bridge Co., 18 How. 440. Indeed, laws and courts have their origin in the necessity of rules and means to enforce them, to be applied to cases and controversies within their jurisdiction; and our whole idea of judicial power is, the power of the latter to apply the former to the decision of those cases and controversies. To affect to decide, or to control the decision, of a case or controversy which has arisen at law or in equity, or to interfere with its progress, or to alter its condition in any way, is to assume the exercise of judicial power; and that, too, although the subject of 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.

Such a jurisdiction was familiarly exercised by the General Assembly, during the Colonial period of our history, and after we became a State, down to the adoption of our Constitution in 1843, and even, though more unfrequently, since. That the Assembly may not have pursued the principles, or adopted the precise mode of relief in such a court; that it acted directly upon the court, instead of upon the parties plaintiff proceeding in it, might have arisen either from forgetfulness of the principles and practice of a court of chancery, or from that forceful disposition which a departed statesman deemed would naturally accompany a legislative body, vested with, or assuming to exercise, judicial power. Alexander Hamilton, Federalist, No. 83, page 325, 6th edition.

Has the General Assembly of this State, under the constitution, the right to exercise judicial power? or, is the exercise of such power prohibited to it by the constitution?

If the law-making department in our government, has also the power to interpret and to enforce their interpretation of the laws, either acting wholly by itself, or by directing and controlling, as a superior tribunal, all other tribunals of the State, every friend to

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