In re Cumberland Power Co.

the proposition that the legislature can neither add to nor take away from this grant of power. Hayburn's Case, 2 Dall., 411, 1 L. Ed., 436.

Section 2 of article 6 provides that the jurisdiction of the supreme court shall be appellate only.

In a case decided by this court in 1858, involving the Constitution of 1834, which carried a clause identical with the above, Judge CARUTHERS, for the court, said:

"It was intended, in all controversies between parties, that they should have the advantage of two tribunals: First, the court established by the legislature, and then by appeal, the court of last resort established by the Constitution." Miller v. Conlee, 5 Sneed, 432.

This construction has been adhered to by this court. Memphis v. Halsey, 12 Heisk., 210; State v. Gannaway, 16 Lea, 124; Ward v. Thomas, 2 Cold., 565; State v. Hall, 6 Baxt., 7.

Chief Justice MARSHALL in Marbury v. Madison, 1 Cranch, 137, 2 L. Ed., 60, said:

"If it had been intended to leave it in the discretion of the legislature to apportion the judicial power between the supreme and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial power, and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage, is entirely without meaning, if such is to be the construction. If Congress remains at liberty to give this court appellate jurisdiction, where the Constitution has declared their jurisdiction shall be original, and original jurisdiction where the Constitution has declared it shall be appellate,

In re Cumberland Power Co.

the distribution of jurisdiction, made in the Constitution, is form without substance."

In Muskrat v. United States, 219 U. S., 348, 31 Sup. Ct. 250, 55 L. Ed., 246, the court said:

"That neither the legislative nor the executive branches can constitutionally assign to the judicial any duties but such as are properly judicial, and to be performed in a judicial manner."

Is the Railroad and Public Utilities Commission a court within the meaning of the Constitution and the language of our courts construing it? A court has been defined to be "a place where justice is judicially administered." Coke on Littleton, 58; 3 Blackstone's Commentary, 23.

"To adjudicate upon and protect the rights and interests of individual citizens, and to that end to construe and apply the laws, is the peculiar province of the judicial department." Cooley, Const. Lim., 132.

See, also, Bouvier's Law Dictionary, quoted with approval in Lawyers' Tax Cases, 8 Heisk., at page 650.

The Constitution vests the judicial power in "one supreme court and in such circuit, chancery and other inferior courts as the legislature shall . establish; in the judges thereof, and in justices of the peace.”

It is apparent that the word "court," as used in our Constitution, means the medium for the exercise of the judicial power of the State, and connotes the ordinary attributes of judicial tribunals, certainly a judge or judges and the machinery necessary for the judicial administration of justice. Based upon the foregoing conceptions of the judicial power and the courts, did the legislature, by the act or acts creating the Railroad and Public Utilities

In re Cumberland Power Co.

Commission, intend to create a subordinate court and to vest in it judicial power within the meaning of our Constitution?

The acts in question are parts of the same general body of legislation affecting public service corporations enacted in 1897 (chapter 10), 1919 (chapter 49), and 1921 (chapter 107). The caption of the act of 1897 is to create a Railroad Commission and to define its powers. The caption of the act of 1919 merely amends the act of 1897 and changes the name of the commission from Railroad Commission to Railroad and Public Utilities Commission. The last act, that of 1921, amends the preceding acts, enlarges the powers, and provides for an appeal to this court. Certainly no one of the captions of the three acts, even by inference, conveys the idea that a court is being created, and, if the body of the acts did create a court by apt and proper language, they would be unconstitutional under numerous decisions in this State, as embracing more than one subject. State v. McCann, 4 Lea, 1; Mayor and Aldermen of Knoxville v. Lewis, 12 Lea, 180; Acklen v. Thompson, 122 Tenn. (14 Cates), 43, 126 S. W., 730, 135 Am. St. Rep., 851.

The three acts above referred to contain sixty-two sections. It would becloud the question to enter into a minute and detailed discussion of these sections. We have read each one carefully, and it is sufficient to say that they vest in the Railroad and Public Utilities Commission the following power:

(a) To make rules for the future, which is legislative in its nature. This delegated legislative power is characteristic of administrative tribunals. While courts have the

In re Cumberland Power Co.

power to make rules, these are limited to rules for their own procedure and are not rules for the government of human conduct. The rule-making function is legislative in its nature, distinct from the quasi-judicial function, in that such rules are made for future conduct, whereas the settlement of controversies affects only the legality of past acts. Familiar examples of the rule-making functions are the making of regulations by railroad commissions to be observed by public utilities and public service corporations, safety laws, rules prescribed by workmen's compensation boards, rules and regulations by boards of health. Cases involving typical illustrations and problems are: Woods v. State, 130 Tenn., 100, 169 S. W., 558, L. R. A., 1915F, 531; Selective Draft Law Cases, 245 U. S., 366 (1918), 38 Sup. Ct., 159, 62 L. Ed., 349, L. R. A., 1918C, 361, Ann. Cas., 1918B, 856; Monongahela Bridge v. U. S. (1910), 216 U. S., 177 30 Sup. Ct., 356, 54 L. Ed., 435; Union Bridge Co. v. U. S., 204 U. S., 364 (1907), 27 Sup. Ct., 367, 51 L. Ed., 523; Miller v. Mayor of New York, 109 U. S., 385 (1883), 3 Sup. Ct., 228, 27 L. Ed., 971; St. Louis Indep. Packing Co. v. Houston (D. C.), 231 Fed., 779 (E. D. Mo., 1916); Sears Roebuck Co. v. Federal Trade Comm., 258 Fed., 307 (7th Circ., 1919), 169 C. C. A., 323, 6 A. L. R., 558; Western Union Tel. Co. v. Myatt (C. C.), 98 Fed., 335 (Circ. Ct. D. Kan., 1899); Sabre v. Rutland R. R. Co., 86 Vt., 347, 85 Atl., 693 (1913), Ann. Cas., 1915C, 1269; Erie R. Co. v. Board of Pub. Utility Comm'rs, 87 N. J. Law. 438, 95 Atl., 177 (1915); Stettler v. O'Hara, 69 Or., 519, 139 Pac., 743 (1914), L. R. A., 1917C, 944, Ann. Cas., 1916A, 217; State v. Johnson, 61 Kan., 803, 60 Pac., 1068 (1900), 49 L. R. A., 662; People v. Boggs, 56 Cal., 648 (1880).

In re Cumberland Power Co.

(b) The application of these rules in particular cases, which is executive or administrative.

(c) The decision of controversies arising under them, which is judicial in nature or quasi-judicial. It has been frequently held that the exercise of a quasi-judicial function does not prevent it from being administrative in character.

The case of L. & N. R. Co. v. Garrett, 231 U. S., 298, 34 Sup. Ct., 48, 58 L. Ed., 229, involved the validity of statutes under which the Kentucky Railroad Commission functioned. Mr. Justice HUGHES, speaking for the court, said:

"The contention is that, before the Commission makes such an order, it is required to exercise judicial functions. It is first to determine whether the carrier has been exacting more than is just and reasonable; it is to give notice and a hearing; it is to 'hear such statements, arguments or evidence offered by the parties' as it may deem relevant; and it is in case it determines that the carrier is 'guilty of extortion' that it is to prescribe the just and reasonable rate. Still, the hearing and determination, viewed as prerequisite to the fixing of rates, are merely preliminary to the legislative act. To this act, the entire proceeding led; and it was this consequence which gave to the proceeding its distinctive character. Very properly, and it might be said, necessarily even without the express command of the statute would the Commission ascertain whether the former, or existing, rate, was unreasonable before it fixed a different rate. And in such an inquiry, for the purpose of prescribing a rule for the future, there would be no invasion of the province of the judicial department. Even where it is essential to maintain strictly the distinction