Norwalk Street Railway Company's Appeal

37 A. 1080, 69 Conn. 576, 1897 Conn. LEXIS 90

Opinions

Hamersley, J.

The Act of 1898

Footnotes

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* confers upon city councils certain powers in establishing regulations for the location, construction and operation of street railways; and requires a council, if requested by a railway company, to take some action within sixty days, and to notify the company in writing of its action. Whenever a council fails to give such written notice, the Act of 1895* confers the same powers upon the “Superior Court or any judge thereof,” to be exercised on application of a railway company, and calls this application an “ appeal.” The power so conferred on the court is described in the Act of 1893 as the power to approve and adopt a location and layout of a street railway, with such modifications therein as shall seem proper, in respect to the streets to be occupied, the location of the same as to grade and to the center line of the streets, and changes to be made in the street, the kind and quality of the track to be used, the motive power to be used, and the method of applying the same.

Can such powers be conferred on the Superior Court? The limitation of their exercise to cases where there has been a prior failure of a municipal board to act, cannot affect the principle involved. If the legislature can confer the power in a limited class of cases, by calling an original application for its exercise an “ appeal.” it can confer the power in all cases, without limitation. (This court has said in Brown v. O'Connell, 36 Conn. 432, 446 : “No judicial power is vested by the Constitution in the' General Assembly, either directly or as an incident of the legislative power, and the General Assembly cannot confer it. . . . It was one of the objects which the people had in view, in framing and adopting the Constitution, to divest the General Assembly of all judicial power. . . . While the entire legislative power is vested in the General Assembly, the judicial power is separated from it and vested in the courts ‘as a separate magistracy.’ It is obvious . . . that the judicial power is not conferred by the General Assembly, but vests, by force of the Constitution, in the courts. ... It was therefore competent for them (the legislature) to provide for the organization of the court in question (a city police court), and to define the jurisdiction it should possess; and when so constituted, the judicial power of the State vested in it, by force of the Constitution, to the extent of the jurisdiction so defined.” In an opinion by Judges Hinman, Sanford, Butler and Dutton, the Constitution is thus defined: “ The Constitution of the State, framed by a convention elected for that purpose and adopted by the people, embodies their supreme original will, in respect to the organization and perpetuation of a State government; the division and distribution of its powers; the officers by whom those powers are to be exercised; and the limitations necessary to restrain the action of each and all for preservation of the rights, liberties and privileges of all; and is therefore the supreme and paramount law, to which the legislative, as well as every other branch of government, and every officer in the performance of his duties, must conform. Whatever that supreme original will prescribes, the General Assembly, and every officer or citizen to whom the mandate is addressed, must do ; and whatever it prohibits, the General Assembly, and every officer and citizen, must refrain from doing; and if either attempt to do that which is prescribed, in any other manner than that prescribed, or to do in any manner that which is prohibited, their action is repugnant to that supreme and paramount law, and invalid.” Opinion of the Judges, 30 Conn. 591, 593.

It is claimed that Wheeler's Appeal, 45 Conn. 306, 313, recognizes a sovereign power in the legislature, not derived from the Constitution, in addition to that embraced in the grant of legislative power, and unrestrained by the division of the powers of government into distinct departments; and this case is relied on as justifying the legislation now in question. It is unnecessary to discuss the precise point determined by the judgment in Wheeler's Appeal; but the ground on which the opinion seeks to justify the judgment is erroneous. It is this: The opinion says it is “ obvious, from the past history of our own jurisprudence and long continued legislative practice, that we have reserved a much larger field for legislative action than has ever been recognized ” in other States. This divergence is due “in part, and perhaps principally, to the very extensive powers which were origin ally-conferred on the General Assembly by the charter of Connecticut.” Under this charter the General Assembly exercised executive and judicial functions. Upon the adoption of the Constitution of 1818, which divided the powers of Government, it was logical to hold that all judicial functions of the General Assembly were at an end; and this claim was made at an early date, but not accepted by this court. Starr v. Pease, 8 Conn. 541, 547; Day v. Cutler, 22 id. 625; Booth v. Woodbury, 32 id. 118, 126. “If, then, an Act of the State legislature is not against natural justice, or the national Constitution, and it does not appear affirmatively and expressly that there is some provision in the Constitution forbidding it, we must hold it to be intra vires and valid.” There are no affirmative and express provisions in the Constitution forbidding the exercise by the General Assembly of the equity jurisdiction which in former days was exclusively exercised by the “ General Court;” and so the proposition asserted is broad enough to justify Acts of the General Assembly administering this branch of jurisprudence.

Such a doctrine is subversive of the American idea of conk stitutional government. It affirms that the checks established by the division of governmental power have no existence in this State; that when the Constitution says “the powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy,” it means,—“The General Assembly shall exercise every power of sovereignty which it is not forbidden to exercise by some affirmative and express provision of the Constitution; ” that the mandate, “ the legislative power of this State shall be vested in two distinct houses ... to be styled The General Assembly,” does not mean what it says, but means “ the Governor and Council and House of Representatives in General Court Assembled,” shall continue, under the style of “ The General Assembly,” to exercise the supreme power of the State in all matters whatever, not forbidden by some affirmative and express provision herein contained; that the mandate, “the judicial power of the State shall be vested in a Supreme Court of Errors, a Superior Court” etc., means nothing, or means, “such portion of the judicial power as the General Assembly shall not exercise by itself or other agencies.”

This doctrine originates in an expression in the opinion of Daggett, J., in Starr v. Pease, supra (Hosmer, C. J. and Btssell, J., concurred in the judgment, and Peters, J., dissented),—an expression not necessary to support the judgment rendered, for the validity of a legislative divorce, the matter in dispute, must rest on the claim that it is a law fixing a status, on grounds of public policy, and is not a mere adjudication of private rights. Maynard v. Hill, 125 U. S. 190. Judge Daggett says that it is urged that by the “new Constitution ” there is an entire separation of the legislative and judicial departments, and that no w the legislature can pass no Act not clearly warranted by the Constitution; that precisely the opposite of this is true: that from the settlement of the State there have been certain fundamental rules by which power has been exercised, which were embodied in an instrument, called by some a constitution and by others a charter; that the charter gave extensive power to the legislature and left everything, almost, to their will; that when the new Constitution was framed, it adopted a bill of rights, provided for the election and appointment of certain organs of the government, such as the legislative and other departments, and imposed on them certain restraints; that it found the State sovereign and independent, with a legislative power capable of making all laws necessary for the good of the people, not forbidden by the United States Constitution, nor opposed to sound maxims of legislation, and left them in the same condition, except so far as limitations were provided. This statement was substantially repeated in Pratt v. Allen, 13 Conn. 119, 124, although the judgment in that case was supported on other grounds.

In some respects the views of those engaged in framing a Constitution, as to its meaning, are entitled to peculiar regard ; but not in all respects; and especially not as to the extent of the radical change involved in the adoption of a written Constitution. Such a change brought into existence an absolutely new. branch of jurisprudence which judges, trained under a different and antagonistic system, were not peculiarly fitted to comprehend. In Starr v. Pease, however-, the only judge who was a member of the convention of 1818, emphatically dissented. The error of Judge Daggett was fundamental; it was based on the denial of the essential meaning of a written constitution.

Prior to 1818, the whole sovereign power was exercised by the people, unrestrained by anything except their present will, through a body of magistrates chosen annually and deputies chosen semi-annually. This was a democracy; as close to a/ pure democracy as it is possible for a representative gov-j ernment to be. There were certain forms established by legislation, and certain fundamental principles generally-acknowledged as true and important; but there was no power that could enforce them. They depended on the unrestrained will of the people as expressed semi-annually. This body of laws and customs might be broadly called a constitution ; but they were not, and the government was not a I constitutional government in the American sense, which was l then taking definite shape through the influence of the United States Constitution. There was no fundamental law made by the sovereign—the people—embodying their supreme original will, in pursuance of which and in accordance with which alone governmental power could be exercised. Suchw a law is in its very nature a grant of power—a grant by the sovereign to the governmental agencies established—a grant for the very purpose of preventing the sovereign from itself exercising the powers granted (for such exercise by the sovereign must of necessity be unrestrained and arbitrary). And so the grant is made to three distinct departments or magistracies, each deriving its delegated power direct from the sovereign, through the Constitution. The only sense in which a constitution may be termed a limitation rather than a grant of power, is that the power granted to each department is given broadly and covers the whole range of that division of power, except as limited by the constitution.

It was this new form of government that the people demanded and established in 1818. It was this new form of government that the advocates of the so-called charter government for thirty years successfully opposed. They claimed that they had a constitution, because they did not realize what a constitution meant, or were afraid of the restraints it imposed. The idea of a constitution was centered in the separation of judicial and legislative powers, and the grant of each power to a distinct magistracy. On this the fight for change 'of government was largely made.

When the legislature that called the convention of 1818 met, Governor Wolcott told them that their mandate from the people was, “ that the legislative, executive, and judicial authorities of our own government be more precisely defined and limited, and the rights of the people be declared and acknowledged.” The committee appointed on a revision of the form of civil government, in their report, said, that the State was then “destitute of fundamental laws defining and limiting the powers of the legislature;” that the organization of the different branches of the government, and the separation of their power, rested on “the frail foundation of legislative will or discretion.” The resolution reported by them and adopted by the legislature recommended to the people of the State to assemble and choose delegates who should meet in convention, and if “ by them deemed expedient, proceed to the formation of a constitution of civil government for the people of this State; ” and said Constitution, when ratified and approved by the people, “ shall be and remain the supreme law of this State.”

There was then a democracy exercising supreme power through deputies chosen semi-annually, but no Constitution of civil government in the American sense of that term. In these deputies, when assembled in General Court, consisted “the supreme power and authority of this State;” when so assembled they had “ the power and voice of all the freemen deputing them,” i. e., the whole power vested in the sovereign, the people. By virtue of this power so deputed, they recommended to their sovereign to abolish the existing form of government, to establish a new form of civil government, and to appoint delegates to frame a constitution for that purpose, which, when adopted by the sovereign, should be a permanent grant of his power to the agencies therein named, under the limitations therein expressed. This again was declared when the convention met and “ Resolved, that this Convention do deem it expedient to proceed at this time to form a Constitution of civil governmentfor the people of this State.” The Constitution adopted declared that the people of Connecticut, grateful for having been permitted to enjoy a free government, i. e. a democracy, in order more effectually to define and secure the liberties derived from their ancestors, —the English heritage of civil liberty, heretofore resting on “ the frail foundation of legislative will or discretion ”—do j. “ ordain and establish the following Constitution and formll of civil government.” *'>

The convention adopted the Constitution on September 15th; the people approved and ratified it, and on October 12th, 1818, it became the Constitution of civil government of the people of Connecticut. On that da}' and thereafter all powers of government were exercised only by virtue of the authority granted in that instrument; it was “ the original supreme will of the people ” from which all authority was derived. This clearly appears from § 3 of Art. X, by which the existing rights and duties of corporations are established and confirmed, subject to the regulations contained in the Constitution; officers previously commissioned are authorized to exercise their offices until the first of June following; laws not inconsistent with the Constitution are continued in force until altered or repealed in pursuance of the Constitution ; and the General Court to be formed in October is granted all powers not repugnant to the Constitution, which they now possess, until the first Wednesday of May following. When it is remembered that the last session of the “ General Court ” had no power whatever, except that granted by the Constitution, the theory that this General Court handed over to the General Assembly established by the Constitution, undefined sovereign power not derived through that instrument, appears in its naked absurdness. No declaration could be more clear and specific: that on October 12th, 1818, the democracy, first established in 1637, ceased to exist, and the General Court or assembly through which the powers of that democracy had been exercised, was then abolished, and every power of government thereafter exercised found its authority only in the Constitution of civil government then adopted by the people as the supreme law of the State.

This result was recognized by those who had opposed, as well as by those who had advocated, the revolution. Wil liam L. Stone, editor of the Connecticut Mirror, speaking for the former, said: “‘Our form of government, under which for near two hundred years all have enjoyed privileges and blessings unknown to any other people upon earth, has been swept away.” John M. Niles, editor of the Hartford Times, speaking for the latter, said: “A government of men has been superseded by a government of laws; . . . distinct and independent bodies of magistracy have been constituted, their powers and duties defined, limited, and separated.” Trumbull’s Historical Notes.on the Constitutional Convention of 1818, p. 59.

The forms of procedure under the Constitution were so similar to those under the former government, and were so largely administered by men who were not only fixed in the old ways of thought but opposed to the radical change involved in the adoption of a Constitution, that it is not strange that some legislation should pass unchallenged, and dicta of judges pass current, clearly contrary to the supreme law. But the form of government established in 1818 cannot be destroyed in that way. This change in the structure of government was a pregnant fact which any one long settled in the belief that an exercise of the whole unrestrained powers inherent in an absolute democracy, through a body of delegates frequently chosen, furnished the best organic plan for ruling a commonwealth, might well find it difficult to accept in its full significance. The views of Judge Daggett, as expressed in Starr v. Pease, on the effect of a constitution, are those of an able and thoughtful jurist; but we find it more easy to reconcile them with the traditions in which he had been educated, and the conditions existing during the greater part of his long and extensive practice at the bar, tlian with the plain provisions of the Constitution itself. It was the expression of those views that led up to the dictum in Wheeler's Appeal. The other two cases cited do not support the dictum. Day v. Cutler was an action on a promissory note, which involved the validity of a legislative divorce. Ellsworth, J., assumed the validity of the divorce, and held the note given in connection with it to be valid, and Waite, J., concurred. Hinman, J., tried the case below and gave no opinion. Church, C. J., said: “It may be too late now to discuss the question whether, since the powers of this government were separated, by the Constitution of 1818, and distributed to the distinct executive, legislative and judicial departments, respectively, the General Assembly can constitutional!}1- exercise the power of granting divorces. This has been doubted by some of our best jurists.” But passing that, he held that in any event the note in suit was not valid ; and in this opinion Storrs, J. concurred. Booth v. Woodbury does not support but denies the dictum,; the court expressly says the legislative power is granted to the General Assembly by the Constitution. We do not recall a case that necessarily depends on the theory of Judge Daggett, followed in Wheeler's Appeal, unless it be that case. Other utterances of this court are wholly inconsistent with the theory. In the Opinion of the Judges, above cited, the true meaning of a constitution is conclusively stated. In Brown v. O'Connell, supra, the power of the legislature to S either exercise or confer judicial power, is denied. The case I of In re Application Clark, 65 Conn. 17, 41, plainly assumes that the legislature is confined to the exercise of legislative power. In State v. Conlon, ibid. 478, 488, we say: “The ‘ legislative power of this State ’ is, in the broadest terms vested in the ‘General Assembly.’ This power is, in a cer-i tain way, defined and limited by the provisions dividing the powers of government into distinct departments, and by those relating to the operation of the State government and duties of particular officers. But, unlike the constitutions v of many States, it contains no specific limitations on the exercise of legislative power, except some slight restrictions in one or two recent amendments. The limitations, however, are no less real, and perhaps more effective, than if phrased in specific terms.” In State ex rel. Bulkeley v. Williams, 68 Conn. 131, 149, the opinion of the court assumes that only legislative power is granted to the General Assembly; and the dissenting opinion of Andrews, C. J. (in this matter not antagonizing the majority), states that upon the ratification of the Constitution “the former government by\ General Assembly was finally and forever dissolved. Thej people in the exercise of their sovereignty, established a new government in three separate and independent departments, whose powers were to be exercised, and exercised only, in accordance with their ‘ supreme original will embodied in the Constitution.’ ” p. 169. But no dicta of judges, no doubtful or improper legislation, can alter the plain fact that in 1818 the people, in the exercise of their sovereignty, granted to the General Assembly then constituted the legislative power, and forbade their exercise of other than legislative power (unless specially granted) ; and granted to this court and other courts then constituted the judicial department, the judicial power, and forbade their exercise of other than judicial power. The assertion of original and consistent opponents of a constitution, that the victory of 1818 was a barren victory, that constitutional government, as known to the people of the United States, is unknown to Connecticut, and that the fundamental principles of constitutional law have here no existence, however often repeated, cannot affect’ the paramount authority of the supreme original will of the people as plainly declared in the Constitution itself. The unequivocal mandate therein contained, that the powers delegated or granted by the sovereign, the people, through the Constitution, shall be divided into three distinct departments, and those belonging to each confided to a separate magistracy; and the equally unequivocal mandate, that the powers granted to the General Assembly (unless by some specific provision) shall be confined to the exercise of the “legislative power of this State,” and the power granted to ¡ the judiciary shall be confined to the exercise of “ the judicial Jj power of the State,” is binding upon this court at all times, f These mandates are the voice of the sovereign speaking ever with a present authority from which there is no escape.

The incapacity of the legislature to execute a power which is essentially and merely a judicial power, and of the judiciary to execute a power which is essentially and merely a legislative power, as well as the limitation of the meaning of legis lative power by force of certain primary principles of government plainly embodied in the Constitution, and by the necessities involved in the separation and independence of distinct departments of government, are fundamental to the very existence of constitutional government as established in the United States. Wilkinson v. Leland, 2 Peters, 627; Hoyston v. Williams, 13 Cal. 24; Taylor v. Porter, 4 Hill, 140; Cochran v. Van Surlay, 20 Wend. 365; Campbell’s Case, 2 Bland’s Ch. 209.

This court has not hesitated to affirm and apply the principle here involved. Brown v. O’Connell, Opinion of the Judges, In re Clark, State v. Conlon, supra. We believe B^eefer’s^Appeaf to__be the only case that necessarily may involve a different-view: but, for the reasons given, it is powerless to change the principle. The Supreme Court of the United States has uniformly held that a law conferring on the courts a power which is not a judicial power within the meaning of the Constitution, is unconstitutional, and that such power cannot be lawfully exercised by the courts. Note by court on U. S. v. Todd, 13 How. 52, 53; Ex parte Siebold, 100 U. S. 371, 393.

The power which Judge Ball was asked to exercise in the present case does not seem to us to be a judicial power within the meaning of our Constitution. It is claimed that the difficulty of defining the powers of government renders impracticable the enforcement by this court of their division, and so makes nugatory the most important command of the Constitution. A difficulty attends the application of a general principle to particular cases, and sometimes the more vital the principle the greater the difficulty. This was felt when the United States Supreme Court first dealt with a conflict between a law of Congress and the Constitution; it was felt still more when the court began to apply the general principle that a State law dealing with internal police may to a certain extent validly occupy a field of legislation within the exclusive jurisdiction of the United States. It is a peculiarity of the essence of constitutional government that the judicial department must deal with such difficulties; otherwise constitutional provisions for the guarantee of civil liberty, the harmonious separation of State and national functions, as well as the separation of governmental departments, become a solemn mockery. But the difficulty now alleged is more apparent than substantial. Chiee Justice Mabshall says, “ the legislature makes, the executive executes, and the judiciary construes the law.” Wayman v. Southard, 10 Wheat. 1, 46. The Supreme Court of the United States, speaking by Justice Field, says: “The distinction \ between a judicial and legislative act is well defined. The \ one determines what the law is, and what the rights of the parties are, with reference to transactions airead}' had; the other prescribes what the law shall be in future cases arising Under it.” Sinking Fund Cases, 99 U. S. 700, 761. One controlling consideration in deciding whether a particular j act oversteps the limits of judicial power, is the necessary j inconsistency of such acts with the independence of the judi-( cial department, and the preservation of its sphere of action' distinct from that of the legislative and executive depart-' ments. A main purpose of the division of powers between ' legislature and judicature, is to prevent the same magistracy: from exercising in respect to the same subject the functions ¡¡ of judge and legislator. This union of functions is a menace ' to civil liberty, and is forbidden by the Constitution. There is no intrinsic difficulty in recognizing a plain infraction of such prohibition. It is true that the different magistracies must act upon the same subjects; for every matter that may be dealt with by the State government may be acted on by each department thereof; but the action must be that belonging to the department whose powers are invoked. The main ¡ difficulties suggested in argument result from a failure to distinguish between the exercise of a legitimate power, and the employment of necessary means for exercising that power. .The grant of the powers embraced in one of the great departments of government carries with it the right to use means appropriate to the exercise of that power. Any attempt to cripple the power through metaphysical classification of the means essential to its exercise must produce diffi culties, if not absurdities. For example: the power to make laws may require the accurate ascertainment of facts; for this purpose witnesses must be summoned, examined, and conclusions drawn from their conflicting testimony. This is a means peculiarly appropriate to the judicial power and the ordinary mark of an exercise of that power; yet when so employed by the legislature (without violation of other constitutional provisions) it is a means within the limits of legislative power. But should the legislature, after the passage of an Act, attempt by another Act to adjudicate the rights of parties which have arisen under its provisions, such Act, although only means appropriate to legislation might be employed, would be an exercise of judicial and not of legislative power. It would be void, because it involves the union, in the same magistracy, in respect to the same matter, of the functions of judge and legislator. Again, there are certain necessary executive acts which cannot he performed without the power of enforcing immediate obedience to an order authorized by law; the employment of legal restraint for the purpose of securing the essential immediate obedience, is a means peculiarly appropriate to the exercise of judicial power; but, for such purpose, and subject to the restrictions of other provisions of the Constitution, it is a means within the limits of the executive power. In re Application of Clark, 65 Conn. 17; Murray v. Hoboken Land, etc., Co., 18 How. 272. So, means of a legislative nature must he used by courts in establishing necessary rules of practice, and by executive officers in making regulations for the conduct of subordinates. Again, appointment to office is in the nature of an executive act; apart from the purpose of the appointment, it is an exercise of executive power. Our own Constitution like most constitutions, provides for certain elective and legislative appointments; but except in the cases specified, appointment to office is an exercise of executive power, unless used as a means appropriate to the exercise of power granted to another department; and when so used it is not the exercise of executive power within the meaning of the Constitution. The Constitution of the United States specifies the methods of appointment. Certain officers must be appointed by the President in concurrence with the Senate; all other officers shall be appointed in the same way, “but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.” In commenting on this clause, the United States Supreme Court says that the appointing power designated in respect to inferior officers, “ was no doubt intended to be exercised by the department of the government to which the officer to be appointed most appropriately belonged.” Ex parte Hennen, 13 Peters, 230, 257. In affirming the validity of the law providing for the appointment of supervisors of elections by Circuit Courts, the Supreme Court held that there were reasons why such appointments might most appropriately be made by courts, relied on this clause as giving a certain discretion to Congress in assigning such appointments to the appropriate department, and, referring to the intimation in Ex parte Hennen, said : “ In the present case there is no such incongruity in the duty required as to excuse the courts from its performance, or to render their acts void.” Ex parte Siebold, 100 U. S. 371, 398.

Under our State Constitution appointments, other than those whose mode is prescribed, are governed by the division of governmental powers. This question has never come before us directly; it was incidentally considered in some recent cases in connection with the law allowing an appeal from the action of county commissioners in granting licenses. In Smith's Appeal, 65 Conn. 135, 139, we held that the statute required the county commissioners to select as the recipient of a license, one having “a personal fitness to perform the quasi public duties required by law of a licensee,” i. e. one who is shown to be suited or adapted to the orderly conduct of a business which the law regards as dangerous to public welfare unless conducted by a carefully selected person duly licensed, whose fitness to the legal requirement must be determined in view of the statutory regulations. In Hopson's Appeal, ibid. 140, we held that the selection or appointment of such a licensee was a means apparently appropriate both to the exercise of executive and judicial power; that the uniform practice of courts and legislature in so treating such appointment might be safely accepted when the distinction to be drawn must be subtle and doubtful; and that the action of the Superior Court upon an appeal from the county com'missioners is a judicial proceeding in so far that the judgment of the court may be reviewed by this court when founded on a misconception of the law (as was held in Smith's Appeal, supra, and in Smith's Appeal, 64 Conn. 526), but that errors claimed in the lawful exercise of discretion in making the selection or appointment could not be reviewed.

Such proceeding by appeal is an anomalous one; it confounds process for invoking the exercise of judicial power by way of ordinary judicial proceedings in protecting an individual against the illegal acts of a public officer, with the use of the power of appointment as a means incident to the full exercise of judicial power. It is evident that the justification of such judicial appointments must be found in the circumstances peculiar to each case.

While the necessity and right of each department to use the means requisite to its unfettered operation, is clear, it is equally clear that when one department not only uses the means appropriate to another, but uses them for the purpose of executing the functions of that other department, it is not in the exercise of its granted power. The legislature by judicial means may find the facts showing that a charter subject to repeal, ought to be repealed, and act in the exercise of its legislative functions. Crease v. Babcock, 23 Pick. 334, 344. But when by the same means it attempts to adjudge the forfeiture of a charter not repealable, it acts in the exercise of a judicial function, and in excess of its power. This distinction is illustrated in the decisions of the United States Supreme Court dealing with legislative regulations of charges by railroad companies. The regulation of such charges is held to be distinctively a legislative function which may be delegated by the legislature to a subordinate legislative or administrative body, but if this subordinate body, or the legislature, exceeds its powers, and a person is thereby injured in his rights of property, he may invoke the judicial power to determine that question of legal injury; and the reasonableness of the charges, although a question legislative in its nature, must be reviewed by the court as necessarily incident to the exercise of its judicial power. But if the court should) attempt to establish for the future a schedule of charges, itl would exceed the limits of judicial power; it would act as legislator in respect to a matter as to which it must also act as judge. As was said by Me. Justice Bbeweb, in one of the latest of this class of cases: “ The courts are not authorized to revise or change the body of rates imposed by a legislature or a commission; they do not determine whether one rate is preferable to another, or what under all circumstances would be fair and reasonable as between the carriers and the shippers; they do not engage in any mere administrative work; but still there can be no doubt of their power and duty to inquire whether a body of rates prescribed by a legislature or a commission is unjust and unreasonable, and such as to work a practical destruction to rights of property, and if found so to be, to restrain its operation.” Reagan v. Farmers’ Loan & Trust Co., 154 U. S. 362, 397. The same distinction is noted by this court in referring to the anomalous process for protection against illegal taxation, provided by § 3860 et seq. of the General Statutes. In construing that statute we held that “ the assessment of property for taxation is an administrative proceeding; the judicial power is called into action to remedy an illegal assessment; ” but that the law did not impose upon the Superior Court the duties of assessors, nor purport to give the court general authority to review the action of the assessors or board of relief. Ives v. Groshen, 65 Conn. 456, 459. It is true, however, that in cases arising under statutes enabling the court to settle rights of person or property invaded by illegal acts of administrative boards, and which may be questioned rather for the defective process provided than for any substantial misconception of the limits of judicial power, this distinction has not been marked as it must be when the validity of a statute is directly put in issue. We think this distinction is decisive of the present case.

The meaning of the Act of 1893 relating to street railways, is uncertain in several particulars; but there can be no doubt that it confers on municipal authorities, in addition to certain executive powers, the power of establishing regulations and conditions (within the limitations prescribed) which shall control all the street railways in the State, in the loca-1 tion, construction and operation of railways. There can be no doubt that making such regulations is essentially and, distinctively a legislative function. It is also certain that 11 e judicial power does not include the exercise of such a gislative function ; and that the duty of making such regulations cannot be imposed upon the Superior Court, because it involves the exercise of legislative power by the court, and because a power in the legislature to impose such duties is inconsistent with the existence of an independent and separate judicial department of government. The power to make the Superior Court a subordinate legislative body for one purpose involves the power to so utilize it for every purpose.

But it is equally certain that the judicial power does extend to the protection of every right of person or property that may be invaded by a municipal council in the unlawful exercise of the powers conferred by the Act of 1893. This judicial power may be called into action by any appropriate process. The Act of 1895 provided, among other things, that an aggrieved person might appeal from an order made by a municipal council in pursuance of the Act of 1893; that such appeal should be a petition to the court which should specifically state the portion of the order appealed from and the reasons, and be served on the council, and that such appeal should be tried by the court and appropriate judgment rendered. Construing this Act as we have construed other Acts authorizing appeals from the action of legislative and administrative boards, as providing a nondescript kind of process intended to serve the combined purposes of a writ of injunction, certiorari, and mandamus, or of any other process for invoking the judicial power to determine a legal injury complained of, we substantially held in the Central Ry. and Electric Co.'s Appeal, 67 Conn. 197, 214, that a party aggrieved by such illegal order might find lawful redress in this way; our attention was not directed to the possible limitations of the redress. We went to the farthest limit in our desire to give effect to a legitimate intention of the legislature most inadequately expressed. But the Act of 1895 goes farther, and contains an additional provision which is not fairly susceptible of being construed as merely providing for a process to bring into action the judicial power of the court, and which, without any action by a municipal council other than a failure to act within a limited time, purports to transfer to the court all the powers con-i I ferred upon municipal councils by the Act of 1893. The]] distinction between the two provisions of the Act is vital. The application to the court in such case is called an “ap-,1 peal; ” an unfortunate name, because it does not express the } real function of the process. “ Appeal,” in the sense of transfer of jurisdiction from one court to another, cannot be predicated of any process by which a court is called upon to determine the legality of an act done by officers of another department. In this sense there can be no appeal from a common council to a court, any more than there can be an appeal from the legislature to the court, or from the court to the legislature. In appeals from the Court of Probate to tire Superior Court, we sometimes speak of the Superior Court as being for that case the court of probate, and speak correctly; for probate jurisdiction is within the judicial power, and may be exercised by the Superior Court; but when we speak in the same way, as occasionally we have spoken, in commenting oh the discretionary power that may be exercised in one of these amorphous “ appeals ” from administrative boards, the expression is allowable only as a figure of rhetoric.

The so-called “ appeal ” in this case is not a process to invoke the judicial power; it is simply an application to the Superior Court to exercise a legislative function; the conditions on which the Act of 1895 authorizes such an applica tion cannot affect its real nature; they only serve to limit for the time being the extent of the evil involved.

We have assumed, as was assumed in argument, that the Act of 1895 purports to confer the powers in question upon a judge in his exercise of the judicial power vested in the Superior Court; and does not purport to appoint for the exercise of the powers an executive officer designated by an official title instead of by name. If the latter were true, the judge would be at liberty to accept or decline the appointment, and this court would have no jurisdiction to review his action. Legislation authorizing process (mostly under the misleading name of “appeal”) for invoking the judicial power, to be returned to a judge of the Superior Court, or to the “Superior Court or any judge thereof,” has produced some confusion in respect to the nature of the power thus exercised. This court has decided that a “ writ of error ” (which formerly, in connection with the auxiliary means of reservation, was the only process for calling into action its jurisdiction) does not lie without a judgment or an award in 1 the nature of a judgment; Williams v. H. & N. H. R. R. Co., 13 Conn. 110, 118; and also that this court has cognizance only of writs of error from the Superior Court. Green v. Hobby, 8 Conn. 165; Humphrey v. Marshall, 15 id. 341, 345; Trinity College v. City of Hartford, 32 id. 466, note. But these decisions did not hold that judicial power could be exercised by a judge of the Superior Court only when holding a stated session of court. The legislation which followed the decision in Trinity College v. City of Hartford, providing for a proceeding in error to this court from the final judgment rendered by a judge of the Superior Court in the exercise of his jurisdiction, could have no application unless such judgments are rendered in the exercise of the judicial power vested in the Superior Court. In Clapp v. City of Hartford, 35 Conn. 66, 73, 220, 222, decided shortly after the enactment of this legislation, language is used indicating that a judge in such case does not exercise that power, and this language is followed in the dissenting opinion in Central Ry. and Electric Co.'s Appeal, 67 Conn. 228. But such views cannot be main tained. “ The Superior Court,” iu which judicial power is vested by the Constitution, is a magistracy consisting of the judges. The manner in which they shall exercise that power must to a large extent be governed by legislation in respect to procedure. Ordinarily that power can only be exercised at a formal session of court, which may be held for some purposes by one judge and for other purposes by two or more judges. But some things within the limits of judicial power may more properly be done by a judge in chambers; and jurisdiction which should ordinarily be entrusted only to a judge while holding a formal session of court, may, in cases of emergency, be exercised in vacation. That most important portion of judicial power invoked by the writ of habeas corpus would be seriously crippled if it could only be exercised at a formal session of court; so with the granting of injunctions and other incidents of chancery jurisdiction. A large portion of the judicial power, from its very nature, can be lawfully exercised only at a formal session of court; and it may be true that the exercise of other judicial power by a judge in chambers, justifiable in case of emergency, has been carried too far, and that it would be better if all “appeals,” or other process intended to invoke the judicial power, should be made returnable to a court in session, unless in plain cases of emergency; but when process for bringing such matters before a judge in chambers is provided by law, the jurisdiction which he exercises must be within the judicial power vested by the Constitution in “ the Superior Court.” This view is indicated in our decision in Central Ry. and Electric Co.’s Appeal, supra. We think the Act of 1895 intended to impose the duties therein prescribed, upon a judge of the Superior Court iu his exercise of “the judicial power” granted to the judicial department; as the present application calls for an exercise of power which is not a judicial power within the meaning of the Constitution, it should have been dismissed.

In no way has the confidence of the people in their Superior Court been more clearly shown, than in the increasing number of instances in which special process has been provided for obtaining in a summary manner its aid in protect ing rights liable to be infringed by the action of executive officers and administrative boards. This court fully appreciates the desirability and necessity of enlarging and simplifying procedure, so as to call into action in the most speedy) and effectual manner the judicial power for the purpose of dealing with all questions arising under changing conditions, which it may properly determine; and has endeavored to construe legislation for that purpose, sometimes perhaps with apparent inconsistency, so as to give the fullest possible effect to the legislative intent. The law under consideration,m however, goes too far. It involves a recognition by the court of a right to exercise powers plainly beyond the scope of that judicial power confided to it by the Constitution, and to exercise these powers not as incident to some legitimate judicial function, but in the first instance independent of any purpose except the mere execution of the powers. We cannot recognize such a right, because the recognition leads inevitably to the obliteration of any line of separation between the judicial and other departments of government.

There is error in the judgment complained of, and it is reversed.

In this opinion the other judges concurred, except Baldwin, J., who dissented.

Section two of Chap. 169 of the Public Acts of 1893, reads as follows: “ Sec. 2. Whenever any railway company shall have been chartered by the general assembly of this State for the purpose of operating street railways in any town, city or borough, or whenever any such corporation already organized has been, or shall be given, the right to lay additional tracks in any such town, city or borough, or whenever any street railway company shall desire to change its motive power, before such company shall proceed to construct such railway, lay additional tracks, or change its motive power, it shall cause a plan to be made showing the highway or highways, street or streets, in and through which it proposes to lay its tracks, the location of the same as to grade and to the center line of said streets or highways, such change or changes, if any, as are proposed to be made in any street or highway, the kind and quality of track to be used and the method of laying the samé, the motive power to be used, in propelling its cars, and the method and manner of applying the same,(which plan shall be presented to the mayor and court of common council of any such city, the selectmen of any such town, or the warden and burgesses of any such borough, within their respective jurisdictions, who shall thereupon, upon public notice, proceed to a hearing of all persons interested therein, and after such hearings may accept and adopt such plan, or make such modifications therein, as to them shall seem proper, and shall, within sixty days after the presentation of such plan to the local authorities, notify said company in writing of their decision thereon, and of such modifications therein as they may deem proper. The refusal or neglect of any such local authority to notify said company of its decision within said period of sixty days as aforesaid shall be deemed to be a refusal to approve and accept said plan as presented by said company. Nothing in this act shall be construed so as to prevent such street railway company from presenting to such local authorities a plan or plans as heretofore provided, until said street railway company and local authorities shall agree upon the same, and no such company shall construct such railway, lay additional tracks, or change its motive power except in accordance with a plan approved by the authorities aforesaid.”

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Section one of Chap. 2S3 of the Public Acts of 1895, is as follows: “Sec. 1. Whenever the warden and burgesses of any borough, the mayor and common council of any city, or the selectmen of any town shall make, pass, or render any decision, denial, order, or direction with respect to any matters relating to street railways which, by virtue of any public or private act or resolution, now are, or may hereafter be, within the respective jurisdictions of such warden and burgesses, mayor and common council, or selectmen, any street railway company affected thereby may appeal from any such decision, denial, direction, or order within thirty days from the service of notice upon such street railway company of the rendition, máking, or passage of such decision, denial, direction, or order, to the superior court, or any judge thereof; such appeal shall be by petition to such court or judge, and shall state specifically the portion or portions of such decision, denial, direction or order appealed from, and the reasons of such appeal; and such court or judge shall order such notice as may be deemed reasonable to be given to such selectmen, mayor and common council, and warden and burgesses of the time and place of appearance in answer to such petition, and upon the time fixed for appearance and answer, or as soon thereafter as said court or judge shall order, such appeal shall be tried by said court or judge, and said court or judge shall make such orders in reference to said matters appealed from as may by it or him be deemed equitable in the premises, and the decision of said court or judge shall be final and conclusive upon the parties. And whenever such warden and burgesses, mayor and common council, or selectmen shall, under the provisions of section two of chapter clxix of the public acts of 1S93, be deemed to have refused to approve and accept any plan presented by any street railway company, said street railway company shall have a like right of appeal therefrom to said superior court, or any judge thereof; and said court or judge shall have the same powers with reference to said plan and the acceptance or modification thereof that said municipal authorities would have had under the provisions of said act, and may make all such orders with reference thereto as may be deemed equitable.”)