JUDICIAL POWER. The authority vest ed in the judges.
The authority exercised by that depart ment of government which is charged with the declaration of what the law is and its construction so far as it is written law.
The power to construe and expound the law as distinguished from the legislative and executive functions.
The use of the term judicial power in sec. 2, Art. III. of the Constitution of the United States furnished an occasion to Mr. Justice Miller for a comment upon the difficulty of defining the term ; he says, "It will not do to answer that it is the power exercised by the courts, because one of the very things to be determined is what power they may exercise. It is, indeed, very difficult to find any exact definition made to hand. It is not to be found in any of the old treatises, or any of the old English authorities or ju dicial decisions, for a very obvious reason. While in a general way it may be true that they had this division between legislative and judicial power, yet their legislature was, nevertheless, in the habit of exercising a very large part of the latter. The house of lords was often the court of appeals; and parliament was in the habit of passing bills of attainder as well as enacting convictions for treason and other crimes.
"Judicial power is, perhaps, better defined in some of the reports of our own courts than in any other place, and especially so in the Supreme Court of the United States, be cause it has more often been the subject of comment there, and its consideration more frequently necessary to the determination of questions arising in that court than any where else. It is the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision." Miller, Const. U. S. 314.
"But it has now long been settled in Eng land that the interpretation of statute law belongs to the judiciary alone, and in this country they have claimed and obtained an equal control over the construction of consti tutional provisions." Sedg. Const. L. 18.
"The power conferred 'upon courts in the strict sense of that term ; courts that com pose one of the great departments of the government; and not power in its judicial nature, or quasi judicial, invested from time to time in individuals, separately or collec tively, for a particular purpose and limited time." Charge to Grand Jury, 1 Blatch. 635, Fed. Cas. No. 18,261; Gilbert v. Priest, 65 Barb. (N. Y.) 444, 448.
There can be no delegation of judicial power ; Zonker v. Cowan, 84 Ind. 395; or of a judicial duty ; McCoy v. Able, 131 Ind. 417, 30 N. E. 528, 31 N. E. 453; Southern Oil Co. v. Wilson, 22 Tex. Civ. App. 534, 56 S. W. 429.
"Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the legislature; or, in other words, to the will of the law." Osborn
v. Bank, 9 Wheat. (U. S.) 738, 6 L. Ed. 204.
Nevertheless, leaving out of question the greater necessity of real definition and sepa ration of the legislative and judicial power in American constitutional law there is a distinction between judicial power and polit ical power which was fully recognized in English law, continues to be so in American law, and is entirely independent of the case growing out of the constitutional delimita tion and separation of the three powers of government. • "The courts have made a distinction be tween political and judicial questions and uniformly decline to assume jurisdiction in cases which involve only the former. A political question is one over which the courts decline to take cognizance, in view of the line of demarkation between the judicial branch of the government on the one hand and the executive and legislative branches on the other. Such questions most generally arise when there is an attempt made to pre vent the incumbents of either the legislative or executive departments of the government from the performance of some act which such incumbent claims the right to perform by virtue of his office, or to compel him to perform some act which he declines or re fuses to perform ; Parker v. State, 133 Ind. 178, 32 N. E. 836, 33 N. E. 119, 18 L. R. A. 567." Courts have no authority to review the acts of co-ordinate departments of the state government within their respective spheres, but ' they have jurisdiction to determine whether any department has acted within its constitutional sphere; McCully v. State, 102 Tenn. 509, 53 S. W. 134, 46 L. R. A. 567; and they may control the actions of officers and official boards, if they have been with out any foundation in the facts before them and are capricious and arbitrary ; 4 Burr. 2186; State v. Matthews, 77 S. C. 357, 57 S. E. 1099; Ex parte Virginia, 100 U. S. 339, 25 L. Ed. 676 ; City of Atlanta v. Wright, 119 Ga. 207, 45 S. E. 994; St. Louis v. Mfg. Co., 139 Mo. 560, 41 S. W. 244, 61 Am. St. Rep. 474 ; but the power will be exercised with much circumspection and only in clear cas es, and the courts must take care not to sub stitute their own discretion for that of the officers or board whose refusal to act Is un der consideration, and to interfere by man damus only when the facts so clearly show the duty of the board or officer to act that there Is really no room for the exercise of a reasonable discretion against the doing of the act, the performance of which the court is asked to require ; State v. Matthews, 81 S. C. 414, 62 S. E. 695, 22 L. R. A. (N. S.) 735, 128 Am. St. Rep. 919, 16 Ann. Cas. 182. See 22 L. R. A. (N. S.) 735, note.