lation, and possibly after a few more legislatures or decision we'd have need of neither department in the State. Whether the Court's attention was called to the order of the State Board under that statute, prohibiting a percentage raise, or not, does not appear.

The right of such appeal has not yet been directly involved in the Supreme Court, but in re Shear, and the Hopper case on appeal from Oklahoma County, are two questions. First, whether under the constitution an appeal may be had from a Board of Equalization to a Court; and, second, if it can, does the statute make sufficient provision therefor. Judge Carney in 13th Jud. Dist. upon consideration dismissed the appeals from the County Board on the ground, first, that the provisions for appeal from the Board to the judiciary was unconstitutional as imposing duties of the legislative department upon the judicial department; and, second, that the statute was too indefinite to afford an adequate remedy. These decisions lead us to a study of our constitution. Article 4, Section 1, which provides:

"That the powers of government of the State of Oklahoma shall be divided into three separate departments, namely, legislative, executive and judicial, and, except as provided in this constitution, the legislative, executive and judicial departments of government shall be separate and distinct and neither shall exercise the powers properly belonging to the other."

We have here a declaration of division emphasized by the word "separate," then a specific prohibition against one of the departments exercising powers and duties of the other. Stronger or more apt language could not be selected to

emphasize the division of the departments. It is not only declared, cumulative, but each department is then prohibited from exercising the powers of the other. Therefore, under this there can be but one question left to determine; That is,

"Is the equalization of property one of the functions of the Judicial Department?

Cooley on Taxation, 2 Ed.) Chap. 2, Page 41, says that assessment and equalization is legislative See also:

Heine v. Levee Commissioners, 18 Wall. 660, 22 L. Ed. 223;

Sylvan v. Board, 92 Pac. 604;

Auditor v. Santa Fe, 6 Ks. p. 500.

Cooley, (page 42) says:

The requirement that executive officers shall confine themselves strictly to executive duties is one of the most valuable principles of government."

and, page 42,

"The least encroachment by one department on the other is usurpation;"

and (page 61)

"It is still more manifest that the power to tax is not judicial; it is the province of the judicial power to decide private disputes between or concerning persons, but of the legislative to regulate public concerns;"

and,

"It is a general rule of constitutional law that a sovereign power conferred by the people upon any one branch or department of the government is not to be delegated by that branch or department to another."

This is the prohibition expressed in our constitution above quoted. This division of the pow

ers of government has been recognized and enforced by our Supreme Court immediately after statehood. Re Opinion of the Judges, 25 Okla. 76, 22 Okla. 435, following the Supreme Court of the United States in Hayburn's case, 2 Dal. 409, (1 L. Ed. 436.)

In the 25 Okla. 76, our court says:

"The powers of the state government are under the constitution divided into three distinct departments, legislative, executive and judicial, and the duties of each are distinctly defined. These departments are independent and sovereign within their respective spheres. Neither can exercise the powers properly belonging to the other, and 'It it the duty of each to abstain from and oppose encroachments on another;'" and, quoting the Supreme Court of the United States:

"Neither the legislative nor the executive branches can constitutionally assign to the judicial any duties except as are properly judicial and to be performed in judicial manner."

Then, our court said:

"The statute purports to impose on this court a duty which, if discharged, would amount neither to a judicial act nor one to be performed in a judicial manner, but would make the Judges of this Court advisers to the Governor. Such is manifestly inconsistent with Judicial duties and repugnant to the Constitution."

Our Court, in re Commissioners, 22 Okla. 435, "declines to exercise legislative power granted to it by the legislature."

in an elaborate opinion by Justice Williams, denouncing in unmistakable language legislative efforts to mingle the powers. No case has been cited holding to the contrary. However, our court, in re Western Union, 118 Pac. 376, in a twenty

word declaration, said, without argument, or dis

cussion:

"that an appeal lies to the courts from the action of the Equalization Boards in the assessment of property."

and subjoined a long list of cases. An examination of part of these cases discloses no one of them where the jurisdictional proposition was so decided though possibly others, not examined by the writer, so held. A large number of the cases cited hold emphatically against such appeals. True, many of the cases cited were appeals from assessment but in none of them was the question of the jurisdiction of the court raised. The Court meant by appeals from "the assessment of property" to limit the declaration to those proceedings from the State Board of Equalization as in assessorial body, and this, of course, applies only to publie service corporations.

Just how the Supreme Court bridged the constitutional chasm between the legislative and judicial departments, and delivered the declaration that it could perform the assessment function, which is legislative, is carefully not stated, and the court discreetly made no effort to explain it. It does not follow, howexer, that even if the Supreme Court will entertain an appeal from an assessment, that it will also entertain an appeal from equalization proceedings. In the Shear case, and the Hopper case the point cannot well be evaded, as in the London and Western Union cases, because it is the only point up. We are bound to learn in these cases some one of three new things either,

First, That taxation is a judicial function, or Second. Our courts can exercise legislative function, or

Third. That appeals won't don't and can't lie. or lay, from the legislative to the judicial.

It has been "jumped" twice, but the Court can't well hop it, in the Hopper case, nor sheer away, in the Shear case. We live in Hope. Anyhow we are promised the recall. In connection with this, it must be remembered that our court has held, in Milam v. Smith, 133 Pac. 33, and, Bostick v. Oklahoma County, 19 Okla. 92, that an appellate body takes only such jurisdiction as possessed by the tribunal whence the appeal is prosecuted. This leads us to a consideration of the jurisdiction of the courts in matters of taxation. Article 7, Section 2, of the Constitution, divides the jurisdiction of the Supreme Court into the “appellate.” which shall extend to all civil cases at law and in equity, and the “original”, which "shall extend to a general superintending control over all inferior courts, and all commissions, and Boards created by law." The statute undertakes to bring an equalization matter to the court in its appellate not in its original jurisdiction. Heure, for the court to take it it much be considered as a "civil case at law, or in equity."

In Upsher Co. v. Rich, 34 L. Ed. 135, U. S. 467, it was held:

"That an appeal from assessment of property for taxation is not a suit," but is a proceeding not in a court of justice, but carried on by an executive officer, in a purely administrative capacity and did not constitute a "case" Whether or not this will have any influence in our state I am not prepared to prophesy. Manifestly, the statute does not undertake to give to the courts original jurisdiction in these matters, as the superintending control over a Board of Equalization can hardly be said, even in this state, to extend to a general review on appeal of all the sins of omission and commission, of which such Board can be charged.