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Randall, of the parcels of the land allotted to him, would have passed to him all the right in the land which had been acquired through the Turner deed by the Spring Valley Water-works. The judgment in partition under the Code works in the same way.

In the one case the deed and in the other the judgment operates as an estoppel to the parties, making it so as to prevent either from impeaching the title of the other. The deed from Turner to the defendant, pending the partition proceedings, did not therefore vest in the defendant a new title to the demanded premises which can be maintained against the title established by the judgment in partition, and the decision of the court below that it vested ownership in fee of the land in the defendant is not sustained by the evidence, and is against law. Judgment and order reversed, and cause remanded.

We concur: MORRISON, C. J.; Ross, J.; MYRICK, J.

THORNTON, J. I dissent. The title derived from Turner by the Spring Valley Water-works was never in issue in the partition suit mentioned in the prevailing opinion, and therefore was not bound by the judgment in that suit.

(68 Cal. 194)

Smith v. STROTHER. (No. 11,049.)

Filed December 18, 1885. 1. DEPARTMENTS OF STATE GOVERNMENT-EXERCISE OF POWERS BY.

The judicial department of the government of the state of California cannot exercise the functions of the legislative department, except as provided in the constitution. Const. Cal. art. 3, § 1. The distinction between a judicial and legislative act is that the former determines what the law is and what the rights of parties are with reference to transactions already had; the

latter provides what the law shall be in future cases arising under it. 2. SHORT-HAND REPORTERS—ACT OF 1885 CONCERNING, UNCONSTITUTIONAL.

The California act of 1885, regulating the compensation of short-hand reporters, and providing for the fixing of the salary of a reporter by a superior judge in advance of services rendered, to be paid to him monthly, such salary to be continue until changed by order of the judge, and to be paid where, as in the recess of the court, no services are rendered, is an exercise of legislative power by the judge, which is not expressly directed or permitted by the constitution to a judicial officer, and is therefore unconstitutional. In bank. Appeal from superior court, city and county of San Francisco.

Wm. M. Pierson, for appellant.
John Lord Love, for respondent.

THORNTON, J. Reporters are, by virtue of statute, appointed by the several judges of the superior courts, and in the matter of their compensation the legislature passed an act for its regulation, which was approved on the twenty-first of March, 1885. St. 1885, p. 218. The act referred to is an amendment of section 274, Code Civil Proc. By the provisions of this act the counties of the state are divided into 10 classes, according to population, and the compensation of the offi.

cers.

cial reporter for his services is to be by a monthly salary to be fixed by the judge by an order duly entered on the minutes of the court, which salary is to be paid out of the treasury of the county in the same manner and at the same time as the salary of county offi

The act further provides that the monthly salary to be fixed as above shall not exceed a certain amount specified for each class; as, for instance, in counties having a population of 100,000 and over, which constitute the first class, the monthly salary shall not exceed $300; in counties having a population of less than 100,000 and exceeding 50,000 said salary is not to exceed $275. The sum which the salary shall not exceed becomes smaller in proportion to the smaller population of each class. The city and county of San Francisco is of the first class, and the monthly salary of the official reporter in such city and county is not to exceed $300. The language of the act on which the question for decision depends is as follows:

"The official reporter shall receive as compensation for his services a monthly salary to be fixed by the judge by an order duly entered on the minutes of the court, which salary shall be paid out of the treasury of the county in the same manner and at the same time as the salaries of county officers.”

It is argued that this act provides a mode of fixing a salary of an officer which is violative of the constitution, in this: that the fixing of the salary in the mode provided would be the exercise of a législative power. Now, what is the judge empowered by the words above quoted to do? As we understand it, it is to fix a salary, in advance of service by the officer, not exceeding a certain sum per month, to be paid monthly; the salary so fixed to continue until the court shall make an order changing it, and be paid every month during its continuance, though in consequence of a vacation of the court no service is rendered. The power is not to determine the value of services already rendered during a month, and to fix the amount of every monthly payment as compensation for services rendered with reference to the value so determined, not exceeding the limits prescribed by the act.

It is prescribed by the first section of article 3 of the constitution of this state that “the powers of the government of the state of California shall be divided into three separate departments, the legislative, executive, and judicial; and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any functions appertaining to either of the others, except as in this constitution expressly directed or permitted.” Is the performance of the act devolved by the section of the statute above quoted on the judge of the superior court, by such judge, a legislative or judicial act? Such is the point presented for our determination.

What constitutes the distinction between a legislative and judicial act? The former establishes a rule regulating and governing in matters or transactions occurring after its passage. The other determines rights or obligations of any kind, whether in regard of persons

or property, concerning matters or transactions which already exist and have transpired ere the judicial power is invoked to pass on them. As said by WOODBURY, J., in Merrill v. Sherburne, 1 N. H. 204:

"The former (judicial tribunals] decide upon the legality of claims and conduct, and the latter [legislative tribunals] make rules upon which, in connection with the constitution, those decisions should be founded. It is the province of judges to determine what is the law upon existing cases. In fine, the law is applied by the one and made by the other."

The legislature makes a general rule for the regulation of conduct and the admeasurement of right; the judiciary makes a special rule regarding a state of facts which have occurred after the enactment of the general rule by the former, by applying such general rule to the state of facts. The former defines rights and wrongs by a rule laid down in advance. The latter enforces rights and redresses wrongs in cases arising on past occurrences. We have found no more accurate statement of the difference between a legislative and a judicial act than that expressed by Justice FIELD in his opinion in the Sinking Fund Cases. “The distinction,” says the learned justice, “between a judicial and a legislative act is well defined. The one determines what the law is, and what the rights of parties are, with reference to transactions already had; the other provides what the law shall be in future cases arising under it. Wherever an act undertakes to determine a question of right or obligation, or of property, as the foundation on which it proceeds, such act is, to that extent, a judicial one, and not the proper exercise of legislative functions.” 99 U. S. 761. The foregoing remarks are thus forcibly illustrated by reference to the cases, one (Lane v. Doe, 3 Scam. 238) decided by the supreme court of Illinois, and the other (Jones v. Perry, 10 Yerg. 59) by the supreme court of Tennessee, of which it is said:

"Thus an act of the legislature of Illinois authorizing the sale of the lands of an intestate, to raise a specific sum, to pay certain parties their claims against the estate of the deceased for moneys advanced and liabilities incurred, was held unconstitutional, on the ground that it involved a judicial determination that the estate was indebted to those parties for the moneys advanced and liabilities incurred. The ascertainment of indebtedness from one party to another, and a direction for its payment, the court considered to be judicial acts which could not be performed by the legislature. 3 Scam. 238. So, also, an act of the legislature of Tennessee authorizing a guardian of infant heirs to sell certain lands of which their ancestor died seized, and directing the proceeds to be applied to the payment of the ancestor's debts, was, on similar grounds, held to be unconstitutional.” 99 U. S. 761. See, also, Ex parte Shrader, 33 Cal. 279; Cooley, Const. Lim. 110-112, et seq., and cases cited in notes.

Tested by the foregoing, we are of opinion that the fixing of the salary of a reporter by the judge, in advance of services rendered, to be paid to him monthly, such salary to continue until changed by the order of the judge, and to be paid where, as in the recess of the court, no services are rendered, would be an exercise of legislative power.

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In doing this the judge would be determining no right or obligation pertaining to person or property on facts already existing, but would be laying down a rule to be applied to a case, the facts of which must afterwards transpire. As this would be an exercise of legislative power not expressly directed or permitted by the constitution to a court or judicial officer, the act must be declared unconstitutional.

The act of 1885 amending section 274, Code Civil Proc., is different from the section as it stood before amended. Under the section as it stood before it was amended, the amount to be paid the reporter was fixed on valuation of the services rendered by the court or judge after they have been rendered. The court or judge, under that section, acted on a case which had transpired before any action was taken. The difference between the two is plain and palpable. However, it is not necessary nor do we intend to hold that the latter mode is constitutional.

The order made by the judge in this case, it seems to us, is not in accord with either the amended or unamended section. The order in this case did not fix the salary to be paid monthly. It fixes the compensation of Smith, the petitioner, for two days (the thirtieth and thirty-first days of March, 1885) at $9.50 per day. This is not an allowance of a monthly salary, as required by the act of 1885, and it differs from the section prior to its amendment because it is fixed with a view to be paid out of the county treasury, and not by the parties as the act stood before amendment. We find no error. Judgment affirmed.

We concur: MYRICK, J.; MORRISON, C. J.; McKEE, J.; SHARP

STEIN, J.

(68 Cal. 199)

RHODES v. SPENCER. (No. 8,870.)

Filed December 18, 1885. MANDAMUS -ORDER STAYING PROCEEDINGS TILL PAYMENT OF JURY'S AND RE

PORTER'S FEES.

On the trial of an action in equity, after special issues have been framed and submitted to the jury, and findings returned thereon in favor of the plaintiff, the superior court has power to order that the plaintiff pay the jury's fees and fees of the reporter, and that all proceedings be stayed until the making of such payments. Therefore, the superior court, having the power to make such order, will not be compelled by mandamus to proceed with the trial of the cause until the order is complied with. In bank. Application for mandamus. V. Neale, for petitioner.

Ross, J. In an action in equity, to be tried in the superior court of Santa Clara county, certain special issues were framed and submitted to a jury, which returned its findings thereon, claimed by the petitioner here, who was the plaintiff in the action, to have been favorable to him. The court ordered the plaintiff to pay the fees of the jury, amounting to $140, and the fees of the reporter, amounting to $40, and further ordered that all proceedings be stayed until the making of such payments. If the court had the power to make such order, it is quite obvious that it should not be compelled by mandamus to proceed with the trial of the cause until the order is complied with. Statutory authority for the action of the court in the particular mentioned is found in section 274 of the Code of Civil Procedure, and in the act approved March 1, 1872, (St. 1871-72, p. 188.) Writ denied and proceedings dismissed.

We concur: MYRICK, J.; McKEE, J.; MORRISON, C. J.; THORN

TON, J.

(68 Cal. 343)

LITTLE v. Jacks. (No. 9,839.) )

Filed December 18, 1885. UNDERTAKING ON APPEAL-TIME FOR FILING.

Under the statute providing that an “appeal shall be ineffectual for any purpose, unless within five days after service of the notice of appeal an undertaking be filed, " (Code Civil Proc. Cal. S 940,) it is not sufficient, to make the appeal effectual, that the undertaking be filed before service of the notice of appeal. In bank. Appeal from superior court, county of Monterey. S. 0. Houghton, for appellant. D. 11. Delmas, for respondent.

Ross, J. The question on this motion is whether, under the provision of the statute which declares that “the appeal shall be ineffectual for any purpose unless, within five days after service of the notice of appeal, an undertaking be filed,” etc., (section 940, Code Civil Proc.,) an appeal is effectual when the undertaking is filed before service of the notice of appeal.

If the statute is to be given effect, which must be done, we do not see how the question can be answered in any other way than in the negative. The statute expressly declares the appeal to be ineffectual for any purpose unless, within five days after service of the notice of appeal, the required undertaking be filed. After service does not mean, and cannot be held to mean, before service. The undertaking relates to the notice, but without the notice there is nothing to which it.con apply. We must grant the motion. Appeal dismissed.

MYRICK, J.; MORRISON, C. J.; THORNTON, J.; SHARP

We concur: STEIN, J.

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