State v. Barker (Kan.). State v. Beardsley (Kan.).. State v. Blakesly (Kan.).. 424 Talbot, McMenomy v. (Cal.). .1070 Tatem, Chadwick v. (Mont.).. 575 Tavlor v. Deverell (Kan.).. .1099 729 628 State v. Board of County Com'rs (Kan.)... 101 State v. Chastain (Or.)... State v. Cody (Or.)... State v. County Com'rs of Elko County (Nev.).... State v. Gleason (Or.). State v. Rieck (Kan.). State v. Spencer, two cases, (Kan.).. State Ins. Co. v. Horner (Colo.). Steinbuchel v. Wright (Kan.)... .1070 Taylor v. Osborn (Wash.). 570 Taylor, Carscaddon v. (Cal.).. Taylor, Good v. (Cal.).. Taylor, Smith v. (Cal.)... Teahen v. Nelson (Utah).. Ten Eyck, Pierce v. (Mont.). 935 Territory v. Bowen (Idaho).. 650 Territory v. Evans (Idaho).. 255 Territory v. Evans (Idaho) 264 Territory v. Klee (Wash.). 817 Territory v. Neilson (Idaho).. 475 Territory v. Nelson (Idaho) 740 Territory v. Stewart (Wash.). 251 Territory, Nelson v. (Wash.).. 964 Territory, Palmerston v. (Wyo.).. 733 Thomas v. Black (Cal.)...... 482 Thomas v. Herrall (Or.).. 799 Thompson, Richards v. (Kan.) 479 Thompson, In re (Mont.). 159 Thornton v. Hoge (Cal.). 645 Tillery, In re (Kan.)... .1054 Tillman v. Averett (Cal.).. 968 Toal. People v. (Cal.)... 156 Todd v. Stewart (Colo.) 335 Tognazzini v. Morgantí (Cal.). 427 Tognazzini v. Morganti (Cal.). 995 Tonner, Youngman v. (Cal.), 858 220 220 963 891 217 764 423 82 115 232 417 537 116 405 .1013 73 .1037 497 THE Pacific Reporter. VOLUME XXIII. (83 Cal. 111) 1. Act Cal. Feb. 15, 1889, (St. Cal. 1889, p. 13,) to provide for the appointment by the supreme court of five commissioners of the supreme court, to relieve the court, and which provides that they shall be appointed by the court, to "assist" in the performance of its duties, is constitutional. 2. Such commissioners do not exercise judicial functions, or usurp those of the judges of the supreme court, by receiving from the secretaries of the court the briefs and transcripts assigned to them by the court, and reporting the result of their examination thereof and of the authorities cited by counsel, with their opinion thereon, to the court; such reports and opinions never reaching the clerk of the court, nor being of any legal efficacy until approved by the court. 3. An objection that the reports and opinions of the commissioners may unduly influence the court in the rendition of judgments does not affect the constitutionality of the act. In bank. Appeal from superior court, city and county of San Francisco; WILLIAM T. WALLACE, Judge. George A. Johnson, Atty. Gen., for the People. S. M. Wilson and John Garber, for respondents. Fox, J. This case comes to us on appeal from the superior court of the city and county of San Francisco. It is one of such commanding public importance, involving, as it does, the course of procedure in, and validity of, many of the judgments rendered by this court, that upon motion it has been advanced on the calendar, and is given precedence in the order of determination. It is a proceeding against the defendants, R. Y. Hayne, H. S. Foote, I. S. Belcher, J. A. Gibson, and P Van Clief, the commissioners of this court, to inquire "by what authority they claim to exercise any judicial powers within the state of California, and particularly of considering and determining cases on appeal to the supreme court of said state." The complaint charges: (1) That the defendants are exercising the office of judges of the supreme court of the state of California, and as such claim v.23P.no.1-1 the right to and do pass upon cases appealed from the superior courts of the state to the supreme court, and decide the same by virtue of their appointment as supreme court commissioners; (2) that the act of the legislature creating the commission, approved March 12, 1885, and the acts amendatory of and supplementary thereto, are contrary to the provisions of article 6, §§ 1-4, of the constitution of the state of California, and are null and void; (3) that the only authority of the defendants to consider and pass upon appeals to the supreme court is by virtue of their appointment as commissioners, and the authority conferred under and by virtue of said acts; (4) that they and each of them are usurping the office of supreme judge of the state of California, and exercising the judicial powers of the state, vested solely in the supreme court by the constitution and laws of the state; and (5) that their only claim so to do is by virtue of their appointment under the acts of the legislature aforesaid. The defendants answer, denying that they or either of them claim, or have ever claimed, or that they or either of them have ever exercised, or are now exercising, the oflice of judges of the supreme court; that they or either of them, as such or otherwise, claim the right to or do pass, or have ever passed, upon cases, or any case, appealed from the superior court to said supreme court, or to decide, or have decided, the same, by virtue of their appointment as supreme court commissioners or otherwise; deny that they or either of them claim, or have ever claimed, the right or authority to hear or determine causes, or any cause, on appeal from the superior court to the supreme court; deny that they or either of them do claim, or have ever claimed, the right to exercise any judicial power within the state; and deny that they or either of them are or ever have been usurping the office of supreme judge of the state of California, or exercising any judicial office or function whatever. They further aver that they are commissioners appointed under the act of the legislature approved February 15, 1889, to provide for the appointment by the of the numerous causes now pending in said court undetermined. The said commissioners shall hold office for the term of four years from and after their appointment, during which time they shall not engage in the practice of the law. They shall each receive a salary equal to the salary of a judge of said supreme court of five commissioners, to be | personal worth, as commissioners of said known as "commissioners of the supreme court. It shall be the duty of said commiscourt, etc., and that the only work which sioners, under such rules and regulations as they or either of them perform, or claim said court may adopt, to assist in the perthe right to perform, or have ever performance of its duties, and in the disposition formed, or claimed the right to perform, by virtue of their appointment or otherwise, consists in the preliminary examination of the records and briefs in cases referred to them by the supreme court, or the justices thereof, and of the authorities cited in such briefs, and in the making to the court, and the justices thereof, of written sugges-court, payable at the same time and in the tions and opinions of the defendants, or some of them, as to the proper disposition of said causes, so referred as aforesaid, for the consideration of the said court and justices in the determination and disposition of said causes by said court and the justices thereof; that said suggestions and opinions have no force or effect whatever as judgments or decisions, nor are they filed or recorded as such; that neither of the defendants or any of them ever enter or direct any judgment or decision whatever in any case whatever, or ever have entered or caused to be entered any judgment, order, or decision whatever, in any case whatever, or ever claimed the right so to do; that neither they nor any of them do perform or exercise, or ever have performed or exercised, any other function than as above stated. They further deny that they or either of them hold or claim to hold their positions as such commissioners under the said act of March 12, 1885, or any act amendatory thereof or supplementary thereto. On the issues thus framed trial was had, resulting in a judgment in favor of the defendants, and dismissing the action. Motion for a new trial was made, and heard upon a statement of the case, and denied, when plaintiff appealed from the judgment, and from the order denying the motion for new trial. Upon the record, and as the case is presented in this court, there are but two questions for consideration: (1) Is the act under which it is conceded that these defendants were appointed-the act entitled "An act to provide for the appointment by the supreme court of five commissioners, to be known as 'commissioners of the supreme court,' and to appoint a secretary therefor, to relieve said court from the overburdened condition of its calendar, and to provide for the compensation of said commissioners and secretary, and to appropriate money therefor," approved February 15, 1889, (St. 1889, p. 13)-in conflict with the constitution? (2) Are the defendants usurping powers not conferred by the act? 1. The first section of the act is the only one which needs to be considered in the discussion of either of these questions. It reads as follows: "Section 1. The supreme court of the state of California shall immediately, upon the expiration of the term of office of the present supreme court commissioners, appoint five persons, of legal learning and | same manner. Before entering upon the discharge of their duties they shall each take an oath to support the constitution of the United States and the constitution of the state of California, and to faithfully discharge the duties of the office of commissioner of the supreme court to the best of their ability. The said court shall have power to remove any and all members of said commission at any time, by an order entered on the minutes of said court, and all vacancies in said commission shall be filled in like manner." This section contains all that there is in the entire act on the subject of the powers or duties of the commissioners. Every presumption is, as is the case with all legislative enactments, in favor of the constitutionality of the provision. It was enacted by a senate and assembly, every member of which was sworn to support the constitution, and is presumed to have passed his judgment to the effect that it is not in conflict with that instrument. It was approved by the chief executive, who was under like obligation, and whose judgment is usually exercised with even more deliberation than can be had in the hurry and confusion often attending upon the action of legislative bodies. The judgment of these two great departments of the government is not to be lightly disregarded or turned aside. Yet it is the province of the judicial department to finally determine the question of the constitutionality of this or any other statute law, whenever a litigant shall challenge the judgment of the other departments, and appeal to this for that final determination. It is also the duty of the judicial department, of its own motion, to pass upon and determine this question for itself, whenever it is called upon to act, in the exercise of its own jurisdiction, under a statute like the one under consideration. This court was so called upon to act when, on the 13th day of May, 1889, it appointed these commissioners, under and in conformity with the provisions of said act of February 15, 1889. By the very act of appointment it, by necessary implication, if not by direct ruling, held the act to be a valid law under the constitution; and this holding was not without direct precedent, even in this state and under the present constitution. Under a similar act, approved March 12, 1885, this court as then constituted appointed a commission for a like purpose, and with like powers, consisting of three members, and by such appointment |