In re Cumberland Power Co. between the judicial and other branches of the government, it must still be recognized that the ascertainment of facts, or the reaching of conclusions upon evidence taken in the course of a hearing of parties interested, may be entirely proper in the exercise of executive or legislative, as distinguished from judicial, powers. The legislature, had it seen fit, might have conducted similar inquiries through committees of its members, or specially constituted bodies, upon whose report as to the reasonableness of existing rates it would decide whether or not they were extortionate and whether other rates should be established, and it might have used methods like those of judicial tribunals in the endeavor to elicit the facts. It is 'the nature of the final act' that determines 'the nature of the previous inquiry.' Prentis v. Atlantic Coast Line, 211 U. S., 210, 227, 53 L. Ed., 150, 159, 29 Sup. Ct., Rep., 67." The determination of pension claims decisions of the land department, adjudicating the rights to public lands, decisions of draft boards upon the eligibility for military service, and decisions of the emigration officials upon deportation of aliens, all involve the power to hear and determine, but have been held properly placed in the executive or administrative department. In re McLean (D. C.), 37 Fed., 648; U. S. v. Lalone (C. C.), 44 Fed., 475; Vance v. Burbank, 101 U. S., 514, 25 L. Ed., 929; West v. Hitchcock, 205 U. S., 80, 27 Sup. Ct., 423, 51 L. Ed. 718; Fong Yue Ting v. U. S., 149 U. S., 698, 13 Sup. Ct., 1016, 37 L. Ed., 905; U. S. v. Ju Toy, 198 U. S., 253, 25 Sup. Ct., 644, 49 L. Ed., 1040; Selective Draft Law Cases, 245 U. S., 366, 38 Sup. Ct., 159, 62 L. Ed., 349, L. R. A., 1918C, 361, Ann. Cas. 1918B, 856. In re Cumberland Power Co. (d) The right to initiate investigations and to regulate utilities. Our grand jury and coroner's inquest are about the only bodies attached to the judicial department which retain this right of independent inquiry. This power of initiative is mainly regulatory in character. All of the above powers are to be exercised with respect of public service corporations devoted wholly or in part in the service and patronage of the public. The right of governmental control of property and employments devoted to the public use, commonly called public service corporations, although not absolute and subject to certain limitations, is firmly established. Smith v. Ames, 169 U. S., 466, 18 Sup. Ct., 418, 42 L. Ed., 819. In the case of Prentis v. Atlantic Coast Line Co., 211 U. S., 210, 29 Supt. Ct., 67, 53 L. Ed., 150, it was held that the Virginia Corporation Commission was not a court. In Western Union Telegraph Co. v. Myatt (C. C.), 98 Fed., 341, the court said: "The exercise by the State of the power to regulate the conduct of a business affected with a public interest, and to fix and determine, as a rule for future observance, the rates and charges for services rendered, is wholly a legislative or administrative function. The legislature may, in the first instance, prescribe such regulations, and fix definitely the tariff of rates and charges; or it may lawfully delegate the exercise of such powers, and frequently does, in matters of detail, to some administrative board or body of its own creation. The establishment of warehouse commissions, boards of railroad commissioners, and the powers usually committed to them, are familiar instances of the delegation of such powers. But by whatever 147 Tenn.-33 In re Cumberland Power Co. name such boards or bodies may be called, or by what authority they may be established or created, or however they may proceed in the performance of their duties, they are, in respect of the exercise of the powers mentioned, engaged in the exercise of legislative or administrative functions. as important in their character as any that are committed to the legislative branch of the government on the subject of property and property rights. In prescribing regulations or rules of action under the police power of the State for the safety and convenience of the public, or in determining a schedule of rates and charges for services to be rendered, they are in no sense performing judicial functions, nor are they in any respect judicial tribunals. The distinction between legislative and judicial functions is a vital one, and it is not subject to alteration or change, either by legislative act or by judical decree, for such distinction inheres in the Constitution itself, and is as much a part of it as though it were definitely defined therein. When the legislature has once acted, either by itself or through some supplemental and subordinate board or body, and has prescribed a tariff of rates and charges, then whether its action is violative of some constitutional safeguard or limitation is a judicial question, the determination of which involves the exercise of judicial functions. The question is then beyond the province of legislative jurisdiction." The foregoing powers conferred upon the Railroad and Public Utilities Commission are characteristic of all administrative bodies. The Interstate Commerce Commission, which is vested with broader powers than those conferred by the acts in question, has been held to be an ad In re Cumberland Power Co. ministrative body, although it exercises vastly larger powers of decision. C. N. O. & T. P. R. R. v. I. C. C., 162 U. S., 184, 16 Sup. Ct., 700, 40 L. Ed., 935; I. C. C. v. Brimson, 154 U. S., 447, 155 U. S. 3, 14 Sup. Ct., 1125, 15 Sup. Ct., 19, 38 L. Ed., 1047, 39 L. Ed., 49; I. C. C. v. C., N. O. & T. P. R. R. Co., 167 U. S., 479, 17 Sup. Ct., 896, 42 L. Ed., 243; L. & N. R. v. Garrett, 231 U. S., 298, 34 Sup. Ct., 48, 58 L. Ed., 229. From the foregoing it is apparent that the broad general purpose of the acts in question is to confer upon the Railroad and Public Utilities Commission powers and functions which are primarily legislative and executive, and that the power to hear and determine controversies, the quasi-judicial power, is merely incidental thereto. The proposition that the legislature intended or attempted to create a court by the acts above referred to and to vest it with the power to make rules, interpret and execute them, cannot be successfully maintained. The Railroad and Public Utilities Commission is authorized to initiate and prosecute its own proceedings before itself; and such proceedings are to be heard, decided, and its determination therein is authorized to be enforced by itself. A tribunal exercising such commingled legislative, executive, and judicial functions, from its very nature cannot be made a court. W. U. Tel. Co. v. Myatt (C. C.), 98 Fed., 335; State ex rel. Godard v. Johnson, 61 Kan., 803, 60 Pac., 1068, 49 L. R. A., 662; McNeill v. Southern Ry. Co., 202 U. S., 543, 26 Sup. Ct., 722, 50 L. Ed., 1142. It follows that section 7 of chapter 107 of the Acts of 1921, providing for an appeal to this court from the final finding, order, or judgment of said commission is uncon In re Cumberland Power Co. stitutional and invalid. This section may be eliminated without destroying the remaining sections of the act. Section 7 being eliminated, there is no specific provision in chapter 107 of the Acts of 1921 for a judicial review of the decisions of the Commission. It is fundamental that every man have his "day in court," and we have no doubt that an appropriate procedure exists, for, as quaintly observed by an ancient English judge, in the case of Rex v. Mayor of Oxford, Palmer, 453: "The laws of God and man both give the party an opportunity to make his defense, if he has any. I remember to have heard it observed by a very learned man upon such an occasion that even God himself did not pass sentence upon Adam, before he was called upon to make his defense. 'Adam,' says God, 'where art thou? Hast thou not eaten of the tree whereof I commanded thee that thou shouldest not eat?" And the same question was put to Eve also." It is not necessary to discuss the other questions presented in the record. The proceeding will be dismissed. |