BEIEP FOE THE U. S. PACIFIC RAILWAY COMMISSION.     4189
ent (?) of the otheis—no one can exercise the functions of the others.
People v. Sanderson (30 Cal., 160) decides that the duties of trustee of the State library properly fall within the sphere of the executive department, and that a chief-justice of the State, while such, is prohibited by the State constitution from exercising the functions and duties of trustee of the State library.
There is not the slightest shadow of a claim on the part of the petitioners at bar that the act of Congress in question (March 3,1887) confers upon the commissioners, petitioners herein, a single judicial function. They can determine nothing, any more than could the California land commission, ubi supra. "No right can be changed, created, or enforced. In fine, their functions are plainly defined, and do not encroach in the slightest degree upon any department of the United States Government, nor relate to any other than the one to which they clearly belong.
Smith v. Strother (68 Gal.).—In this case the distinction between what is a legislative and what a judicial act is clearly pointed out, and the court, speaking through Mr. Justice Thornton, finds authority for its conclusions in the language of Mr. Justice Field in the Sinking Fund case reported in 99 U. S., from which we have already quite extensively quoted, as an authority for the position of the petitioners in the matter now before the court.
By the act of the legislature of March 21, 1885, it was attempted to coufer upon the supreme court legislative functions, which attempt we are quite willing to join with counsel for respondent here in condemning.
We insist, again, that whatever powers the statute of Congress of March 3,1887, confers upon the circuit and district courts of the United States, for the purpose of enabling the purpose and intent of the whole act to be carried out, are purely judicial in their nature.
The authority conferred is to "hear and determine" in the first instance ; and in the second that of "enforcing its determination, by its own process," in the very fullness and plentitude of its power in that behalf.
United States v. Union Pacific Railroad Company (11 Blatch., 385).-— The case, we respectfully submit, is not authority upon any legitimate inquiry arising in the case at bar.
There is no attempt here by the United States "to convert to itself the property of another, by its own declaration or its own authority;" nor any to obtain "redress for alleged fraudulent acts on the part of the directors and managers of the * * * railroad company, in breach of their duty to the shareholders."
In re Ziebold (33 Fed. Bep., 791).—The case is a false analogy to the one at bar. It grew out of an,attempt by the legislature of Kansasto coufer upon a county attorney authority to summon witnesses to testify before him with power to punish for contempt in case of refusal to appear.
The court, per Foster, J., held that the authority vested iu the couuty attorney "on the mere unsworn statement of any person, and without any case pending before himf * * * to set this judicial machinery in motion, with no restriction as to whom he shall summon before him to testify, and no limitation but his own good-will as to the scope of his investigation, fortified by a power to exact answers to any questions he sees pro per to ask, almost despotic in its severity," * * * is an "attempt to unite the judicial with the executive branch of civil government; and when the law-making power and the power which declares and applies, as well as that which executes and administers the law^ are