474, 551, it is a principle not questioned that, except when authorized by the constitution, as in respect to municipal corporations, the legislature cannot delegate legislative power. The power of local legislation commonly bestowed on municipal corporations does not trench upon the maxim, since this is authorized, impliedly at least, by the constitution itself; and the maxim itself is to be understood in the light of an immemorial practice which has always recognized the policy and propriety of vesting in such corporations these powers. As before remarked, municipal corporations are created for this purpose, as aids to the State government in the business of municipal rule. Cooley, Const. Lim. 140.

Had the legislature, by the act in question, fixed and specified all the conditions and facts upon which the incorporation of certain territory should depend, we do not question their right to refer to some tribunal or body the question of ascertaining and determining the existence of these facts and conditions. Neither do we decide that they might not delegate certain legislative powers regarding the organization and incorporation of villages to some appropriate municipal body which might constitutionally exercise local legislative powers. The delegation of certain powers of local legislation to municipal bodies, for reasons already suggested, is permissible. Boards of county commissioners are already, under certain limitations, invested with somewhat similar powers in the organization and change of boundaries of towns and school-districts. But the present act assumes to delegate these legislative powers to the District Court, a tribunal not authorized to exercise them, its jurisdiction under the constitution being purely judicial. Cases may be found where it has been held that powers similar to those conferred by this act were properly delegated to certain so-called courts, we think it will be found in almost every instance that these courts were not exclusively judicial, but also quasi municipal bodies, invested with certain powers of local legislation. Such are the county courts in some States, which take the place of our boards of county commissioners in the municipal government of the county. As bearing upon the question here considered, see City of Galesburg v. Hawkinson, 75 Ill. 152; Shumway v. Bennett, 29 Mich. 451.

but

The only remaining question is whether a writ of prohibition is the appropriate remedy. Although the powers attempted to be conferred by this act are not judicial in the strict sense of the term, yet they are, in many of their features and results, quasi judicial, and are conducted under judicial forms. The exercise of these powers is unlawful. Their exercise will result in injury for which there seems to be no other adequate remedy. Under this state of facts the writ will lie. State v. Young, 29 Minn. 474.

Let the writ issue.

CITY OF WAHOO v. DICKINSON.

23 Nebraska, 426. 1888.

MAXWELL, J. In October, 1886, the proper authorities of the city of Wahoo passed a resolution that, "We favor and demand as a matter of right the annexation of the territory contiguous to the city of Wahoo," etc., and described the territory sought to be annexed. The city thereupon filed a petition in the District Court of Saunders county, setting forth the facts required by the statute, and attached an accurate map of the territory sought to be annexed to the said petition, and prayed for a decree of the court annexing the territory set forth in the petition to the city of Wahoo. There' were nearly one hundred persons who owned the laud sought to be annexed, all of whom were made defendants, and service duly had upon them. The appellants answered the petition, and upon a decree being rendered against them, appealed to this court. There is no bill of exceptions, and the only question before this court is, whether or not the district court had jurisdiction.

This question is to be determined from the construction to be placed upon section 99, chap. 14 of the Comp. Stat.

The court in its decree found "that the city council of the plaintiff has heretofore adopted a resolution to annex the territory described in the petition herein by a two-thirds vote of all the members of said council, and the court further finds that such of said territory as is hereinafter described will receive material benefit by its annexation to the said city of Wahoo, and that justice and equity require the annexation of said portion of said territory hereinafter described" [describing the territory].

The appellants contend that the power to annex territory to a city is legislative and not judicial, and if delegated must be given to some body possessing legislative powers and not to a court, citing Shumway v. Bennett, 29 Mich. 452. People v. Carpenter, 24 N. Y. 86. Galesburg v. Hawkinson, 75 Ill. 152. Turner v. Althaus, 6 Neb. 69. The case of Shumway v. Bennett arose under a statute very different from ours, and need not be considered. The case of Galesburg v. Hawkinson is under a similar statute to our own, but we are unable to give our assent to the reasoning of the court in that case.

It will be conceded that an arbitrary annexation of territory to a city or town, where the benefits to be received by the territory annexed are not considered, can only be accomplished by legislation, either by the legislature itself, or by a tribunal clothed with power for that purpose, and that a court under our constitution could not be invested with such legislative power. We do not understand the

statute, however, as clothing the courts with the power to legislate in the premises that is, to determine in the first instance what territory should be annexed. This power is bestowed upon the city council. The evident purpose is to protect the owners of the property from being forcibly brought within the corporation, unless one of two facts is made to appear. First, that the territory, or a part of it, will receive material benefit from its annexation to such corporation that is, if all the territory sought to be annexed will receive material benefits, then a decree will be entered accordingly; if but part receives material benefit, then a decree will be entered only for such part. Second, where justice and equity require such annexation of said territory, or a part thereof, then a decree will be entered according to the facts as found.

The determination of these questions is a judicial act, and the courts are duly empowered and the question is proper for the courts to consider. The statute makes the right depend upon one of the two conditions named. If neither condition exists, then there is no right to annex. The court, therefore, hears the allegations of the parties interested in the property sought to be annexed, and determines from the testimony what their rights are in the premises. Thus in one action, before any complications have arisen in regard to the annexation of the territory, the court determines the rights of the parties, with the right of either party to appeal from the decree. Such powers are judicial and not legislative. The same powers are conferred upon the courts to change the names of persons, cities, and towns, and like cases which have been treated as a legitimate exercise of judicial power. This question was very fully considered by the Supreme Court of Iowa in Burlington v. Leebrick, 43 Iowa, 252, where a statute very similar to that under consideration was sustained, and the power of the court to determine the conditions upon which contiguous territory should be annexed to a city was held to be judicial and not legislative. See also Kayser v. Trustees, 16 Mo. 88. Blanchard v. Bissell, 11 O. S. 96. Borough of Little Meadows, 35 Penn. St. 335.

Our constitution prohibits special legislation as applied to any particular municipal corporation. The legislature, therefore, cannot, by special act, extend the boundaries of any city or town. This, therefore, must be done by general law, and the most practical way of accomplishing this purpose is to provide by general statute the conditions under which contiguous territory may be attached to such city or town, and to clothe some local tribunal with power to determine, in the first instance, whether such conditions exist. If such local tribunal is convinced of the existence of one or both of the conditions named, and pass a resolution annexing such territory, it must still convince the court of the existence of at least one of said conditions and obtain a decree of the existence of the same. These questions are so far of a judicial character that they may

properly be vested in the judicial department of the State. As there is no bill of exceptions, and no question as to the sufficiency of the evidence to sustain the decree, we hold that the court below had jurisdiction, and the decree is affirmed.

Decree affirmed.

EX PARTE GRIFFITHS.

118 Indiana, 83. 1889.

ELLIOTT, C. J. The reporter of the decisions of this court files this petition invoking judgment upon the validity of the act of March, 1889. Among other provisions that act contains the following: "Opinions involving no disputed principles of law or equity or rule of practice, and no question except as to whether the verdict or decision is sustained by sufficient evidence or is contrary to the evidence, shall be printed in brevier type, without analysis or syllabus. . . . The index and tables of cases shall be subject to the supervision and direction of the Supreme Court. . . . It shall be the duty of the Supreme Court to make a syllabus of each opinion recorded by said court, except as hereinbefore otherwise provided." Acts of 1889, p. 87.

If the act assumed to require the judges of the Supreme Court to perform the duties of the clerk by preparing entries, or to discharge the duties of the sheriff by preparing returns for him, we suppose no one would hesitate to declare it void. The fact that the officer whose duties the act assumes to direct the judges to perform is the reporter, and not the clerk or the sheriff, can make no difference. Neither shade nor semblance of difference can be discerned by the keenest vision between the cases instanced by way of illustration and the real case. The principle which rules is this: Judges cannot be required to perform any other than judicial duties. This is a rudimental principle of constitutional law. To the science of jurisprudence, it is as the axiom that the whole is equal to all its parts is to the science of mathematics. There is no contrariety of opinion upon this subject. There is no tinge of reason for asserting a different doctrine. We quote Judge Cooley's statement of the principle, although it is found in a book intended for beginners, because it expresses the rule clearly and tersely. This is his statement: "Upon judges, as such, no functions can be imposed except those of a judicial nature." Principles of Const. Law, 53. The authorities upon this point are many and harmonious. Hayburn's Case, 2 Dall. 409, n.; United States v. Ferreira, 13 How. 40, n.; Auditor v. Atchison, etc., R. R. Co., 6 Kan. 500; Supervisors of

Election, 114 Mass. 247; Rees v. City of Watertown, 19 Wall. 107; Heine v. Levee Commrs., 19 Wall. 655; Smith v. Strother, 68 Cal. 194; Burgoyne v. Supervisors, 5 Cal. 9; People v. Town of Nevada, 6 Cal. 143; Hardenburgh v. Kidd, 10 Cal. 402; McLean County Precinct v. Deposit Bank, 81 Ky. 254; State v. Young, 29 Minn. 474; Shepherd v. City of Wheeling, 4 S. E. Rep. 35.

The preparation of the syllabi is an essential part of the reporter's work. Head-notes may be copyrighted, but the opinions of the court cannot be. The syllabi, or head-notes, may be copyrighted because they are the work of the reporter and not of the judges. The work is essentially and intrinsically ministerial, and, therefore, cannot be performed by the judges or the court.

The soundness of the rule stated by Judge Cooley is beyond controversy, and it is hardly necessary to go further, since it is conclusive here, but the provisions of our Constitution are so clear and decisive that we cannot forbear referring to them. These provisions are found in article 7, and read thus:

"Section 5. The Supreme Court shall, upon the decision of every case, give a statement in writing of each question arising in the record of such case and the decision of the court thereon.

"Section 6. The General Assembly shall provide, by law, for the speedy publication of the decisions of the Supreme Court made under this Constitution; but no judge shall be allowed to report such decisions."

These provisions, when read in connection with section 1 of article 3, distributing the powers of government, and section 1 of article 7, lodging the whole judicial power of the State in the courts, make it perfectly clear that the Legislature cannot impose any of the duties of the reporter upon the judges of the Supreme Court. Section 5 defines the duties of the court, and to these duties the Legislature can make no additions. The last clause of section 6 is a positive prohibition, and no judge can, without an open defiance of the Constitution he has sworn to support, take upon himself the duties of the reporter.

The principle which controls here has been asserted and applied by this court. By force of this principle the act of 1875, concerning the office of reporter, was overthrown. Judge Buskirk, in speaking of the decision, says it was the unanimous judgment of the court. Buskirk, Practice, 12. That learned judge discusses the question at length and very clearly proves that the Legislature has no power to require the judges to exercise any of the functions of the office of reporter. There are many decisions asserting and enforcing the general principle involved here. It is, indeed, everywhere agreed that constitutional courts are not subject to the will of the Legislature, for, as said in Wright v. Defrees, 8 Ind. 298, "The powers of the three departments are not merely equal, they are exclusive, in respect to the duties assigned to each. They are absolutely inde