It is safe to assert that in no State are the functions of the courts purely judicial. Many belonging to the administration of the methods of political government are in all intrusted to judicial officers either originally or by way of review. Some of these concern such matters of internal police, as the enforcement of laws to preserve the public health or to regulate the sale of intoxicating liquors, and the establishment and repair of highways.[Footnote: Application of Cooper, 22 New York Reports, 67, 82, 84; Norwalk Street Railway Company's Appeal, 69 Conn. Reports, 576; 37 Atlantic Reporter, 1080; Bradley v. New Haven, 73 Connecticut Reports, 646; 48 Atlantic Reporter, 960; Upshur County v. Rich, 135 U. S. Reports, 467, 477; Janvrin v. Revere Water Co., 174 Mass. Rep. 514; 55 North Eastern Rep. 381.] Instead of creating a system of bureaus and prefects, we have adhered to the English plan of administering local and county concerns through justices of the peace, courts of quarter-sessions, and county or parish courts.[Footnote: See Maitland, "Justice and Police," 85.] Of the affairs committed to such authorities some pertain to the conduct of elections, and courts are frequently empowered to appoint election officers or clerks, because it is felt that thus a wise impartiality in selection can best be attained.[Footnote: People v. Hoffman, 116 Illinois Reports, 587; 5 Northeastern Reporter, 596; 56 American Reports, 793; Ex parte Siebold, 100 U. S. Reports, 371, 397.]
It is vital to the proper working of government under a written constitution that these constitutional restrictions on the powers of the courts should not be too strictly interpreted. Every step in the progress of civilization makes this the more obvious. No absolute trinity of governmental form can be maintained in human society, as the relations of each individual to his fellows, and of the State to all, become, and necessarily become, more numerous and complicated. In every State that department which in practice proves the strongest will push its jurisdiction furthest.
It may be said, in view of its now established power to decide between higher and lower forms of law,[Footnote: See Chap. VII.] that the judiciary has proved the strongest. The legislature, as has been stated, have found it a convenient depositary of many quasi-legislative and quasi-executive functions, and this also has largely increased its power.
The theory of the French philosophers that all the powers of government could be divided into three parts, each bearing a name descriptive only of itself, is not supported by the practical experience of Americans. There are functions that might as well be assigned to one of these parts as to another, or made into a fourth and called administrative.[Footnote: Under authority of her present Constitution, Virginia in 1904 organized a State Commission for the Supervision of Corporations, which has both judicial and administrative functions.]
The Constitution of the United States recognizes this in effect. It makes the Senate an executive council, as well as a legislative chamber. It allows Congress to vest the appointment of any inferior officers in the courts (Art. II, Sec. 3). In practice this power has been freely used.
The Supreme Court of the United States has had occasion to consider this question in connection with the statutes defining the jurisdiction of the Circuit Courts. It extends to certain "suits." But what is a suit? It is not necessarily a proceeding at common law or in equity or admiralty. It may be a statutory process. "Even," they say, "an appeal from an assessment, if referred to a court and jury, or merely to a court, to be proceeded in according to judicial methods, may become a suit within the act of Congress."[Footnote: Upshur County v. Rich, 135 U. S. Reports, 467, 473.] So in regard to a proceeding by the government to take land for public use on payment of due compensation, they observe that "the general rule with regard to cases of this sort is, that the initial proceeding of appraisement by commissioners is an administrative proceeding, and not a suit; but that if an appeal is taken to a court, and a litigation is there instituted between parties, then it becomes a suit within the meaning of this act of Congress."[Footnote: Ibid., 475.]
In one point of considerable importance express constitutional provisions generally narrow the jurisdiction of American, as compared with English courts. Each house of the legislature is made the final judge of the returns and qualifications of its members. In England, election contests as to a seat in the House of Commons has been made by Act of Parliament the subject of judicial determination. This avoids partizan decisions and is so far good. It diminishes, however, the independence of the legislative house in which the seat is contested. This is jealously guarded by our traditions as well as our Constitutions. The practice of wearing hats during the sessions of the House of Commons was an expression of the early feeling of the English Commons on this subject. They would not uncover before speaker or king. In some of the early American legislatures the same thing was done. Hats were occasionally worn in the House of Representatives at Washington as late as the second quarter of the nineteenth century.[Footnote: Hunt, "Life of Edward Livingston," 301. They were worn in the Continental Congress on occasions of ceremony. McMaster, "History of the People of the United States," I, 105.]
On the other hand, American courts interfere more readily than the English to protect a citizen from arrest by legislative authority. Each house of the British parliament has large inherited powers over those who may treat it with contempt. Each house of an American legislature has some powers of this description, but they are far narrower ones.[Footnote: Kilbourn v. Thompson, 103 U. S. Reports, 168.]
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