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Facto

legislative, city, am, judicial, question and court

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FACTO.

There is nothing in the constitution of the United States which forbids the legislature of a state from exercising judicial functions; Satterlee v. Matthewson, 2 Pet. (U. S.) 380, 7 L. Ed. 458.

In most of the cases above referred to the distinction between judicial and legis lative power is sharply defined, but the cases which present difficulty are of a dif ferent character. Cases of a class present ing more difficulty arise under statutes au thorizing the organization of municipal cor porations and the change of their boundaries by the courts. Such acts have been held to present judicial questions ; City of Burling ton v. Leebrick, 43 Ia. 252 ; Wahoo v. Dick inson, 23 Neb. 426, 36 N. W. 813; Kirk patrick v. State, 5 Kan. 673. A critical examination of these cases and the authori ties upon which they were based results in the conclusion that they did not "afford a very secure foundation for a decision that needs authority to rest on and . . . will be generally regarded as out of harmony with the principles heretofore laid down as settled." The real nature of the proceed ings it is said are "more apparent in the In the guise of an ordinary lawsuit." 31 Am. L. Reg. N. S. 443. The writer just cited suggests that the mere necessity of determining facts does not constitute a judi cial act, nor is a question judicial simply be cause it calls for judgment and discretion. The subdivision of a state for the purpose of local government is pre-eminently a subject for legislative action. The practical effect of the Kansas statute was said by the court to be the submission to a judge in advance of its enactment the question of the legality of a city ordinance ; Callen v. Junction City, 43 Kan. 633, 23 Pac. 652, 7 L. R. A. 736 ; and this, it is suggested, was sufficient to cast doubt upon its validity.

The decision of questions of public policy relating to the organization of municipal corporations cannot be exercised by a judge, but properly belongs to the legislative depart ment; In re Ridgefield Park, 54 N. J. L. 288,

23 Atl. 674 ; in this case it was held that a justice of the supreme court could not be authorized by an act of assembly to decide within what territory resident voters should be permitted to assume municipal existence and authority. It is well settled that mere abstract questions or moot cases cannot be submitted for the decision of the court; Cooley, Const. L. 139 ; Brewington v. Lowe, 3 Ind. 21, 48 Am. Dec. 349; Blair v. Bank, 8 Mo. 313 ; accordingly it has been held that: "Whether cities, towns or villages should be. incorporated, whether enlarged or contracted in their boundaries, presents no question of law or fact for judicial deter mination. It is purely a question of policy to be determined by the legislative depart ment." City of Galesburg v. Hawkinson, 75 Ill. 152; State v. Simons, 32 Minn. 540, 21 N. W. 750; People v. Bennett, 29 Mich. 451, 18 Am. Rep. 107 ; People v. Carpenter, 24 N. Y. 86; People v. City of Riverside, 70 Cal. 461, 9 Pac. 662, 11 Pac. 759. Upon the same principle it was held that the division of a state into drainage districts and their or ganization was a legislative function and could not be delegated to executive officers if it could be delegated at all ; People v. Parks, 58 Cal. 624. So an act authorizing a court upon petition of taxpayers to super sede, revoke, and annul municipal ordinances was a grant of legislative power and void; Shepherd v. Wheeling, 30 W. Va. 479, 4 S. E. 635; there is no legislative power to con fer upon the judiciary the power of taxa tion ; State v. Assessors of City of Rahway, 43 N. J. L. 348 ; or to require courts to state in writing the reasons of their decisions ; Houston v. Williams, 13 Cal. 24, 73 Am. Dec. 565 ; or to appoint surveyors ; Houseman v. Circuit Judge, 58 Mich. 364, 25 N. W. 369; or judges to write headnotes for their opin ions; Ex parte 'Griffiths, 118 Ind. 83, 20 N. E. 513, 3 L. R. A. 398, 10 Am. St. Rep. 107;, or to fix railroad rates of transportation ; Steenerson v. Ry. Co., 69 Minn. 353, 72 N. W. 713.

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