BRIEF FOR THE U. S. PACIFIC RAILWAY COMMISSION.     4187
The treaty and aets of Congress under investigation iu that case aHd that of United States v. Yale Todd, found in a note at page 52, the question considered was whether Congress could constitute a court of justice a commissioner to act in an advisory capacity to the Secretary of the Treasury.
Gibson r. Teinpleton (62 Texas, 556) was a suit brought in court which the Supreme Court held the constitution of the State did not give the courts power to determine. That under the constitution of Texas " a proceeding to contest an election is not a 'suit, complaint, or plea' wjthiu the meaning of the constitution," and that although '*tbe legislature describes who shall be made parties to such a proceeding, yet when the subject-matter is such as can not be litigated, the making of parties does not make the proceeding a suit," and further that the '•contest of an election, being an extra-judicial question, must be regulated by the political authority of the State." Considered apart from the constitution of Texas, such a question could have no more bearing upon the matter at bar than the Sermon on the Mount.
But were the same questiim before tho courts of the State of California would it not be considered a judicial question purely?
Vide contest of elections in Codes of California.
Van Slyke v. TempUan County Farmers' Mutual Life Insurance Company (39 Wise, 390).—The decided question was that "the constitution of the State having vested all judicial jurisdiction in courts and justices of the peace, and provided for the election of judges of all courts, the legislature can confer no judicial jurisdiction on other officers or persons, excepting power not exceeding that of a circuit judge at chambers, on court commissioners."
Cohn v. Hoff (3 Brevard, S. C, 501) holds that when the State constitution points out hiuI prescribes.how a judge should be elected, the legislature cau not prescribe a different mode or manner, and confer on the governor power of appointment of a judge when constitution requires that he be elected.
The dictum in the opinion pointing out the distinction between the powers of the judiciary under our system of government and that of the English judiciary, no one disputes.
United States ». Ritchie (17 How., 524) decided that the act of Con gress, passed March 3, 1851, making provision for the appointment of a board of commissioners to settle private land claims iu California was constitutional, and, further, that the board was not a court uuder the constitution, invested with judicial powers.
Section 7 of the act provided "That the secretary of the board shall 1)e, and he is hereby, authoriz -d and required, on the application of the law agent or district attorney of the United States, * * * to issue writs of subpoena commanding the attendance of a witness or witnesses ¦before the board or any commissioner."
The statute being by the Supreme Court in the case last cited supra expressly held constitutional, and at the same time held not to vest judicial powers upou the board, now. under the doctrine of the case of Kilbourn v. Thompson (103 U. S.), could the board enforce the attendance of witnesses before it ? As the statute does not point out the mode in that case, we say it would be accomplished in a constitutional way by applying to a court of the United States for compulsory process, as a necessary incident to the grant of power to administer oaths and take testimony.  *
And if the above statute had contained the language of the statute of March 3,1887, upon the subject of applying to the courts of tbe