Tuolumne County v. Stanislaus County , 6 Cal. 440 ( 1856 )

The opinion of the Court was delivered by Mr. Justice Heydenfeldt

Mr. Chief Justice Murray and Mr. Justice Terry concurred.

By an Act of the Legislature of 1854, the County of Stanislaus was created, and was carved wholly out of the territory of the County of Tuolumne. The latter county being at the time in debt, the Act provides that a just proportion of the debt should be assumed by the newly created county; for this purpose the County Court Judges of each county are authorized to appoint commissioners to ascertain and settle the amount of indebtedness the County of Stanislaus shall assume.

It is now insisted that the power given to the county judges to appoint the commissioners is invalid, and we' are referred to the case of Burgoyne v. The Supervisors, 5 Cal. R., where we held that none other than judicial functions, or duties of a judicial or quasi judicial character, could be imposed by the Legislature on County Courts or Judges.

A very learned treatise might, doubtless, be written, to show what is meant by judicial and quasi judicial duties and powers, but I conceive it unnecessary for the present case. It is very certain, that whenever the duty to be performed consists of the settlement and adjustment of rights between parties, it is of a judicial character, and such is the nature of the duties of arbitrators and referees. Nothing more nor less was to be performed by the commissioners contemplated by this Act, and their appointment by a judge is no more objectionable than the appointment of arbitrators or referees. If the rule which is contended for is correct, a Court could not perform a vast amount of duties which have never been denied to it as proper, and which belong to the judicial status. It could not appoint any of its officers or servants, nor assist in forming the jury roll, nor in drawing grand and petit jurors. The Supreme Court could not appoint their confidential clerk, nor their reporter, nor give directions in regard to the report of their decisions, nor direct the expenditure of their contingent fund, nor purchase a chair or table, nor allow the account for it if they did. To all these absurdities would the proposition lead.

The next objection made, is to the form of the mandamus, which directs the supervisors to issue warrants. That is irregular; it should have directed them to audit the account and direct warrants to he issued accordingly. That correction will he made here, but as the appeal is frivolous and unnecessary, the appellant is taxed with the costs.