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liability of a corporation for a fine or forfeiture imposed by a statute which it is required to enforce, acts judicially, and may declare the act imposing such fine or forfeiture unconstitutional.40

Ry. Co. v. Greensboro Ice & Coal Co., 134 Fed. 82.

40 Commonwealth v. Atlantic Coast Line Ry. Co., 106 Va. 61, 55 S. E. 572, 7 L. R. A. (N. S.) 1086.

As to powers of railroad commissioners on appeal see Joyce on Elec. Law (2d ed.), § 360a.

CHAPTER XIII.

DELEGATION OF POWER TO AND BY COURTS.

171. Delegation to Courts-Gener

ally.

172. Delegation

Grant of Use of Streets by
Railroad or Gas Company.

to Courts of 179. Delegation to Probate Court

Equity-Railroad Bridges
Crossing Highways.

173. Delegation to Supreme Ju-
dicial Court-Water Rates.
174. Delegation to Appellate Court
-Reasonableness of Rates
Fixed by Commission.
175. Delegation to Fiscal Court-
Subdelegation to County
Judge Subscription to
Stock of Railroad Com-
pany.

176. Delegation to Circuit Courts
-Designation of Tele-
phone Route-Charter to
Obstruct Highway.

177. Delegation to Federal Circuit Courts Power to Enforce Orders of Interstate Commerce Commission-Jurisdiction-Contract Rights of Railroad.

178. Delegation to County Commissioners' Court-County Courts-Ferry Franchise

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§ 171. Delegation to Courts-Generally.-A duty which is not a judicial but a legislative or administrative one, such as fixing railroad transportation rates, cannot be forced upon the judiciary contrary to the state constitution. So the estab

1 Steenerson v. Great Northern R. 8 Am. & Eng. R. Cas. (N. S.) Co., 69 Minn. 353, 72 N. W. 713, 559.

lishment of regulations as to the use of streets is such a legislative function that it cannot be assumed by a court, although it may pass upon the validity or reasonableness of such regulations by municipal authorities and may order the adoption by them of reasonable regulations as to such street use." It is held the power committed to the courts of Georgia to grant corporate powers to private companies, not being judicial, but altogether legislative, and there being no provision for the review of such action, a writ of error will not lie. Although the authority to grant a franchise of establishing and maintaining a toll bridge over rivers crossing public highways in that State is vested solely in the legislature, yet it may be exercised by it or be committed to such agencies as it may choose. And the statutes therein confer upon certain courts the power to establish such bridges, but not to bind the public in respect to its future necessities. Whether a drainage ditch proposed to be constructed pursuant to a statute 5 will be conducive to the public health, convenience or welfare, or whether the route is practicable, are questions of governmental or administrative policy and not of judicial cognizance, therefore jurisdiction over them by appeal or otherwise cannot be conferred by statute upon the courts.

2 Michigan Teleph. Co. v. City of St. Joseph, 121 Mich. 502, 80 N. W. 383, 47 L. R. A. 87, 7 Am. Elec. Cas. 1, 4; Grant, J., said: "It is conceded * * * that that part of the decree by which the court assumed the right to establish reasonable rules and regulations is void. This is a legislative or administrative function and not a judicial one. The court has the power to put the proper authorities in the defendant city in motion to adopt reasonable rules and regulations, and to pass upon the validity of such action when taken. This is the extent of its authority. Houseman v. Kent, Circuit Judge, 58 Mich. 364, 25 N. W.

369; City of Manistee v. Harley, 79
Mich. 238, 44 N. W. 603. Other
courts recognize the same rule.
Reagan v. Trust Co., 154 U. S. 362,
14 Sup. Ct. 1047; Norwalk St. Ry.,
Appeal of, 69 Conn. 576, 37 Atl. 1080;
Nebraska Tel. Co. v. State, 55 Neb.
627, 76 N. W. 171. See Joyce on
Electric Law (2d ed.), §§ 220, 357.
3 Gas Light Co. of Augusta v. West,
78 Ga. 318.

Wright v. Nagle, 101 U. S. 791, 25 L. ed. 921.

Neb. Comp. Stat., 1903, chap. 89,

art. 1.

Tyson v. Washington County (Neb., 1907), 110 N. W. 634. See §§ 136, 147, herein.

§ 172. Delegation to Courts of Equity-Railroad Bridges Crossing Highways.-The legislature may confer upon a court of equity jurisdiction to prescribe the crossing to be constructed if any railroad company shall not properly construct bridges or other crossings of highways as required by law, and such legislation is within the constitutional power of the legislature.?

§ 173. Delegation to Supreme Judicial Court-Water Rates. As the legislature has power to require water companies to supply water to consumers at reasonable rates, it may give, by statute, to persons who are actual water-takers and are aggrieved, or to the selectmen of a town, the right to apply to the supreme judicial court and have two or more judges of such court determine whether the rates charged are reasonable, and also the reasonableness of rates to the extent of the interests before the court, and such statutory provision, as so construed, is not unconstitutional nor does. it require the court to exercise legislative functions.8

'Mayor, etc., of City of Newark This statute provided, in substance, v. Erie Rd. Co. (N. J. Ch., 1907), 68 for application, by the selectmen of Atl. 413, 415, 416. The court, per a town or by any person deeming Magie, C., upon the point of consti- themselves aggrieved, to the Sututionality, said: "I think I am not preme Judicial Court to have a at liberty to deal with these ques- reasonable rate fixed and that two tions. The legislation contained in § 29 has been pronounced to be within the constitutional power of the legislature in this court and that decision is binding on me. * * * Other legislation of similar scope and effect has also been pronounced constitutional in this court and that decision has been approved by the Court of Errors." See § 200, herein, as to Court of Chancery and appeal from orders of highway or toll road commissioners.

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or more judges should establish such maximum rates as the court should deem proper as compared with charges for similar services in other cities and towns in the metropolitan district. The statute was, however, construed as above. The court cited, or considered, the following cases: Smyth v. Ames, 169 U. S. 466, 18 Sup. Ct. 418, 42 L. ed. 42; Reagan v. Trust Co., 154 U. S. 362, 397, 14 Sup. Ct. 1047, 1054, 38 L. ed. 1014, 1023; Budd v. New York, 143 U. S. 517, 537, 549, 552, 12 Sup. Ct., 468, 36 L. ed. 247; Chicago & Grand Trunk Ry. Co. v. Wellman, 143 U.

§ 174. Delegation to Appellate Court-Reasonableness of Rates Fixed by Commission.-Under the Indiana constitution judicial power is vested in certain courts and also in such other courts as the general assembly may establish, so that it is held to be within the power of the legislature of that State to confer upon the appellate court appellate jurisdiction, or such other jurisdiction as it deems necessary and requisite where the duty vested is judicial only, and such court acts within its judicial power in determining, on appeal, the reasonableness of a rate fixed by a commission, and whether such commission is a valid one duly established under a valid law, and also whether the rate in question has been fixed in due form of law.10

§ 175. Delegation to Fiscal Court-Subdelegation to County Judge-Subscription to Stock of Railroad Company. Where the legislature has delegated to a fiscal court the authority to subscribe to the stock of a railroad company, and that court has authorized the subscription, it has power to delegate to the county judge, who presides over such court, certain ministerial duties involved in the exercise of the authority so conferred upon the court.11

§ 176. Delegation to Circuit Courts-Designation of

S. 339, 344, 12 Sup. Ct. 400, 36 L. ed. 176; Chicago, Milwaukee & St. Paul Ry. Co. v. Minnesota, 134 U. S. 418, 10 Sup. Ct. 462, 702, 33 L. ed. 970; Spring Valley Waterworks v. Schottler, 110 U. S. 347, 354, 28 L. ed. 173, 4 Sup. Ct. 48; Smith v. Strother, 68 Cal. 194, 8 Pac. 852; McMahon v. McHale, 174 Mass. 320, 54 N. E. 854; Veginan v. Morse, 160 Mass. 143, 148, 35 N. E. 451; Attorney Gen'l v. Old Colony R. Co., 160 Mass. 62, 86, 87, 35 N. E. 252, 22 L. R. A. 112.

9 Const., art. 7, § 1.

As to jurisdiction of Supreme Court, appellate and other courts in Indiana, see 11 "Cyc." pp. 816-818.

Article "Courts," by Joseph A. Joyce and Howard C. Joyce. See also article as to jurisdiction, etc., of the different Federal and state courts.

10 Chicago, Indianapolis & Louisville Ry. Co. v. Railroad Commission, 38 Ind. App. 439, 78 N. E. 338; s. C., 39 Ind. App. 358; act Feb. 28, 1905, acts 1905, chap. 53, p. 83; act Feb. 1891, acts 1891, c. 37, p. 39. See § 200, herein, as to appeal to Chancery Court from order of highway or toll road commissioners.

11 Estill County v. Embry, 144 Fed. 913; acts Ky. 1877-1878, vol. 1, pp. 913-919, 449.

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