Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1911-09-23

taking of property without due process
of law.
In Payton VS.. McQuown, 81 KY.
ISL, the Kentucky court adopts the
definition found in Commonwealth VS..
Jones, 10 Bush 759, where in it is said:
1--WE regard it as an indisputable
proposition that where the inquiry to
be made involves questions of law
as we'll as fact, where it affects legal
right, and where the decision may
result in terminating or destroying
that right, the powers to be exercised
and the duties to be discharged are
essentially judicial"
The court in the Payton case was:
considering the power attempted to
be given by the legislature to deputy
clerk of court to issue injunctions
and held that it was comforting upon
ministerial officer judicial powers
and that the law was invalid for that
reason. The act there under consid-
Grafton PROVIDED that an injunction
might be granted without notice when
the officer ito whom application is
made shall be satisfied by the aft
davit of the applicant, or by other evil
dence, that irresparable injury will re-
suit to the applicant if the injunction
be not Immediately granted" And
the court observes that this require
ment clearly demands investigation
and consideration judicial in it's char
acter.
In State VS.. Guilbert. Sc Ohio State
SIS, the supreme court of Ohio had
under consideration the validity n the
Torrens law, which conferred upon
the recorder, as held, judicial powers
in passing upon the rights of indi-
viduals in land, and held that as a
ministerial officer he was incompetent
to receive a grant of judicial power
from the legislature and that his acts
and attempted exercise of such powers
we're necessarily utilities. To the
same effect was People VS.. Chase, 165
Ill., 527.
The supreme court of Massachu-
sets, speaking through Chief Justice
Begelow. in Denny VS.. NATION, 20
Mass. 361, regarding the determina-
ton of the solvency Of party under
the insolvency law, said:
Gle must be found to be insolvent
within the legal Specification Of that
word in order that his property may
he taken, the title thereto vested in
the assignees and its proceeds distrib'
uted among his creditors. Especially
is this true where. as in the case at
bar. the proceedings are in invitum.
and no assent of the debtor. either ex-
press or implied, can be had or in
ferrad to aid the course of legal pro-
ceedings by which his right to the
property Is Invested and appropriated
to the payment of his debts. The
determination of the question whether
debtor is so situated In relation to
his creditors as to be subject in his
person and estate to the provisions
If the insolvent laws Is. in it's nature.
the exercise of a judicial power. 1t
is not to be settled arbitrarily or
capric'ously, but by thu application of
7v'ad rules and established PRINCIPLES
to facts which may be proved. " =
It must be the result Of due inquiry,
sufficient to satisfy the discretion and
convince the judgment Of the officer
Of the law"
That case involved the validity of a
law reviving a certain invalid judy
ment. and the principle being consid-
cred was the usurpation OF judicial
powers by the legislature.
In in re Sims, 81 Kans. l., it was
held that power given by statute to
the prosecuting attorney to punish for
contempt any witnesses disobeying
process or refusing to answer ques'
tons when commanded by subpoena
issued by such attorney to appear be-
fore him. was invalid. In that case it
was also held that executive and
judicial powers could not be. mingled
and combined in the same person at
th.e same time in the same proceed.
ing.
Judicial tribunals decide upon the
legality of claims and conduct; they
determine controversies and interpret
laws." Am. & Eng. Enc. of Law,
1858, and note.
Whether citizen has been guilty
of an offense involving forfeiture
of his right to vote is necessarily a
judicial question which can be. con-
stitutionally decided by the judiciary
on a full and fair trial, on an indict-
ment or presentment, but cannot be
referred for adjudication collaterally
or incidentally by the officers of cleo
ton. Burkett VS.. McCarty, 70 KY. 1853.
In People vs.. Mallory, 1876 III. 5S2,
an act which authorized the managers
of the state reformatory to transfer
temporarily to the penitentiary GER
tain persons shown to have been pre-
viously convicted of crime or those
deemed incorrigible, was held uncon-
stitutional. To the same effect in In
re Dunford, (Kans.) SO Pac. 90.
"The secretary of state is a minis
terial officer, authorized by law to
perform different duties, upon differ
ent contingencies. If he makes mis-
takes of facts in the performance OF
his functions his action may be void
or voidable only, in different circum-
stances. But he cannot judicially de-
termine the facts on which he acts
or refuses to act. This can only be
done by the courts" State ex rel
Drake vs.. Doyle, Secretary of State.
40 Wis. 1873.
We will now consider whether the
In TN NJ