and docket of its proceedings; it summoned witnesses and compelled their attendance and the production of documents; it ruled upon the admissibility of evidence; it certified any exception to its rulings; and its judgments, decrees, and orders had the same force and effect as those of any other court of record in the state, and were enforced by its own proper processes. It was not subject to restraint by any other state court, and from any and every ruling or decision by it an appeal lay to the supreme court of appeals of the state, and was heard upon the record made for and certified by the commission, exactly as in the case of appeals from any other court; and, pending the decision of such appeal, the order appealed from might, by supersedeas, be suspended in its operation."

Mr. Justice Harlan was also of the opinion that the act of the Virginia State Corporation Commission was in every sense judicial.2

A similar question arose as to the nature of the acts of the Public Service Commission in the State of New York.3 There the court, after reviewing the Prentis case, expressly held the acts of such a commission judicial and not legislative. The court expressly denied that the acts of the commission were necessarily non-judicial because it enforced or attempted to enforce a rule of conduct for the future. It pointed out that a judicial decision often determines in advance what future action will be a discharge of all existing liabilities or obligations. Thus, it pointed out that in the specific enforcement of contracts which are to extend over a long period of time the court may dictate the details of performance. The court also indicated that in actions for divorce or separation it is the constant practice of the courts to prescribe for the custody and care of children and to provide for the subsequent modification of such provisions from time to time as circumstances may necessitate.

On the other hand, there have been a vast number of the most eminent authorities that have held that the functions of a commission are purely administrative. In giving its opinion to the Massachusetts House of Representatives as to the constitutionality of the Civil Service Law of that state the Supreme Judicial Court of Massachusetts said: 5

2 See also Interstate Commerce Commission v. Cincinnati, N. O. & T. P. Ry. Co., 167 U. S. 479, 17 Sup. Ct. 896 (1896).

People ex rel. Railroad v. Willcox, 194 N. Y. 383, 87 N. E. 517 (1909).

4 Laws of 1884, c. 320.

5 Opinion of the Justices, 138 Mass. 601 (1885).

"The object of the statute before us is to provide for a board of commissioners, who shall make rules for the selection of persons to fill such offices in the government of the Commonwealth, and of the several cities thereof, and supervise the administration of such rules. We think the Legislature has the constitutional right to provide for the appointment of such commissioners, and to delegate to them the power to make rules, not inconsistent with existing laws, to guide and control their discretion and the discretion of the officers of the State or of the cities in whom the appointing power is vested. This is not a delegation of the power to enact laws; it is merely a delegation of administrative powers and duties, and there is no provision of the Constitution which prevents the Legislature from enacting that such rules, when duly made, shall be binding upon the officers and citizens to whom they apply, and that they may be enforced by suitable penalties, as provided in the last section of the statute."

The United States Supreme Court apparently agreed with this view of the law in the case of Stone v. Farmers' Loan & Trust Company.

In the case of the City of Aurora v. Schoeberlein the Supreme Court of the State of Illinois passed upon a clause of the Civil Service Act of 1903 which permitted an appeal to the circuit court from any decision of the commission discharging an employee, and which permitted the circuit court to set aside the findings of the commission. The court held that this section of the act was unconstitutional for the reason that the government of the state of Illinois was divided by the constitution into three separate functions,-legislative, executive, and judicial; that the removal of an officer in a civil service proceeding was an executive act, and that the allowance of an appeal to the circuit court for the purpose of reviewing an executive act was vesting the circuit court with executive powers, which was contrary to the constitution of the state.

And the United States Supreme Court, in a line of cases where the acts performed were of a similar nature, has held them to be administrative. Thus the United States Supreme Court, in a decision rendered by Mr. Justice Brewer, in the case of Burfenning v. The Chicago, St. Paul, etc. Ry. Co., strongly intimates that

9

116 U. S. 307, 336, 6 Sup. Ct. 334, 338, 1191 (1886).

7 230 Ill. 496, 82 N. E. 860 (1907).

8 See also Wyman, Public Service Corporations, § 1404, p. 1235.

9163 U. S. 321, 16 Sup. Ct. 1018 (1896).

the Land Department in passing upon the question whether a certain tract of land was swamp land or not, saline land or not, mineral land or not, was passing upon an administrative question. In the case of American School of Magnetic Healing v. McAnnulty,10 the United States Supreme Court held that the Post Office Department, in passing upon the question of whether certain printed matter should be excluded from the mails on the ground that it was fraudulent, was performing a purely administrative act. So, too, the United States Supreme Court, in a number of cases involving the rights and powers of an immigration inspector, has invariably been inclined to hold that his duties were administrative. The most important case upon this subject probably is United States v. Ju Toy." In that particular case the petitioner filed a petition for a writ of habeas corpus, and alleged that he was about to be wrongfully deported on the ground that he was an alien, born in China, while in fact he was a native-born citizen of the United States. It appeared, however, that the immigration inspector had taken evidence and decided that the petitioner had not been born in the United States, and had denied him admission to the United States and ordered him deported. It would be hard to support this case on any theory other than that the act of the immigration inspector was an administrative one, and all the more so for the reason that the court held that if the inspector had not abused his authority the act of the department must be absolutely final and conclusive, and that even though the question of citizenship might be raised, the court had no power to review such finding.

The question of what may constitute a just and reasonable rate is necessarily a question of fact to be determined from a mass of intricate facts. The question of what may or may not be a pure food, or what may constitute a pure drug, or what may or may not be an adulterated paint, is likewise a conclusion of fact to be drawn from a group of facts somewhat less complicated. Whether a civil service employee has disobeyed the rules established by a civil service commission or the head of a department, or is so inefficient in his work that he should be discharged, necessarily is a similar conclusion. This must likewise be true of the duties of an immigration inspector when he passes upon the question of a man 10 187 U. S. 94, 108, 23 Sup. Ct. 33 (1902). 11198 U. S. 253, 25 Sup. Ct. 644 (1905).

seeking admission to this country as an alien or as a citizen. It would seem to follow that the duties of all these bodies are one and the same, and that if some are administrative in their nature, others likewise must be administrative. These commissions are doing the duties of highly specialized juries. They are passing upon and resolving very important questions of fact. Of course if a commission is to have any authority whatsoever, it must have the right to compel the attendance of witnesses, and the power to punish witnesses or to cause their punishment in the event of their refusal to attend. It must be taken for granted that if the acts of a commission are to have any weight, it must have some power to enforce its findings. Consequently, the reasons that some of the judges of the United States Supreme Court gave in the Prentis case why the Virginia State Corporation Commission is a judicial body do not seem to be conclusive.

It should be noted that commissions only in a limited sense pass upon property rights. They do not decide that a certain property belongs to A. or to B. They do say that certain property that belongs to A. can be used by him only in a certain way. They tell public service corporations how they must run their trains, or what rates they may charge in the sale of their gas or electricity, or whether they may establish new rates or not. They tell those who manufacture drugs or food products that they can sell them only if they do not contain certain ingredients. The right to hold an office may or may not be regarded as a property right, but even in those states where it is regarded as one, nevertheless, all that a civil service commission does is to see to it that the man who holds his office complies with the rules, and both does the things that are required of him and abstains from doing those acts that are forbidden. In other words, a commission merely passes upon the method that a man must adopt in using what belongs to him.

Every legislative body has the power to enforce obedience to its subpana and to compel witnesses to testify before it. The land commission, the immigration inspectors, and the civil service commission, have a like power. Would it not be better to say that legislative, administrative, and judicial bodies, if given the authority by the legislature, may compel witnesses to come before them and to attend, than to hold that because such a body has that power it is therefore a judicial body?

Nor does it seem clear that the majority of the court in the Prentis case was correct in holding the commission a legislative body. The real test that the court applied was that the commission had authority to make rules and regulations. It is almost fair to say that every civil service commission in the United States has this same power. Nevertheless, it is apparent that the civil service commission in its nature is administrative. It must be conceded that civil service commissions have merely taken over certain powers that were formerly given to the administrative head of the government. The mayor of a city or the governor of a state where there is a civil service act has been shorn of his power, for the most part, to appoint employees or to remove them. This was a power he had in the past. Certainly in the past, when the head of the government exercised this power, it was not a legislative function. The legislature has taken this function from him and placed it in the hands of an impartial body. It has transferred from one head to another certain administrative powers. In creating civil service commissions the legislature transfers the employment bureau of the government to a new body. Formerly the mayor or governor may have made certain rules on which he based the appointment, advancement, and removal of employees. This is exactly what the civil service commission does after it is once constituted. But in the nature of things does it follow from the mere fact that the law gives it the express right to make such rules, that therefore the legislature made it a legislative body?

A court is given the right to make its rules, to guide it and to aid it in the management of the business that comes before it. These rules very often are of the greatest importance, but no one has ever been inclined to hold that because a court may make rules and regulations governing either it or litigants, it is therefore a legislative body. It therefore does not seem a fair test to hold that because a body may make rules and regulations, it is a legislative body.

If a commission is regarded as an administrative or a legislative body on the one hand or a judicial body on the other, not only may we expect to see a different development in the method of its procedure and in the rules of evidence that will prevail and in the method of reviewing the findings of its decisions, but we are also likely to see a substantial difference in the nature of the men who may be