41 record is silent on a point of jurisdiction it is none the less good against collateral attack. It is almost universally held that probate courts are superior.42 Whether justices' courts are superior or inferior is in conflict, the Supreme Court of the United States and the courts of most of the states taking the view that they are inferior. In many states justices of the peace are given exclusive jurisdiction of the action of forcible entry or unlawful detainer between landlord and tenant and between persons forcibly taking possession of land and those ousted. To this extent a justice's court is clearly a superior one. Tribunals having power to pass on cases of a particular class, such as commissions, commissioners, boards, councils, reviewing boards, assessment officers, fence viewers, boards of survey, condemnation commissioners, and the like are inferior tribunals in the sense here referred to, although not courts in the ordinary sense. 9. General and special.-Another loose distinction is that between courts of general jurisdiction, with power to entertain all sorts of causes, and those of limited or special jurisdiction, such as probate courts and United States courts. If the record of a cause in these courts does not expressly show jurisdiction the proceedings are erroneous, and subject to review on appeal or error, but not void, nor subject to collateral attack.45 41 McCormick v. Sullivant, 10 Wheat. 192 (U. S.). 43 Same, §§ 813, 814; 24 Cyc. 608. 44 17 Am. & Eng. Encyc. of Law, p. 1084. 45 Kempe v. Kennedy, 5 Cranch 173 (U. S.), 3 L. Ed. 70. 10. Terms and sessions.-A term of court is the time fixed by law for holding it, at the lawfully prescribed place. The end of the term is the final adjournment for that term, or, if it be not adjourned, then the occurrence of the next stated term of the same court in the same judicial district.46 Regular terms are those generally fixed by statute, and special terms are those fixed by order or rule of court, to be held at any of the places where the regular terms are required to be held." An adjourned term is part of the term adjourned.48 Any term may be adjourned to a time beyond the expiration of the next term. This is sometimes done where the terms are frequent, in order that the court may retain power over its judgments, and that bills of exceptions may be settled after the succeeding term, if necessary; the general rule being that the power of the court over its judgments ends with the judgment term, and that a bill of exceptions cannot be settled or signed after the judgment term unless the power to do this is continued by order during the term.49 Motions for new trials must also be heard and decided at the trial term, unless such a motion be continued by order made during the term.50 Trials can be had only in 46 8 Encyc. of Law, p. 34; Bronson v. Schulten, 104 U. S. 410, 26 L. Ed. 797. 47 American R. Co. v. Castro, 204 U. S. 453, 27 Sup. Ct. 466, 51 L. Ed. 564. 48 Smith v. Smith, 17 Ind. 75; Com. v. Justices, 5 Mass. 434. 49 Western Dredging & Imp. Co. v. Heldmaier, 116 Fed. 179; Bronson v. Schulten, 104 U. S. 410. There are two exceptions to this rule. A bill of review may be taken in appropriate cases in suits in equity after the term, and in cases at law by motion in analogy to the writ of error coram nobis (before us), that is, the same judges who heard the case. Morgan's L. & T. R. Co. v. Texas Cent. R. Co., 32 Fed. 525. 50 Belknap v. United States, 150 U. S. 588, 14 Sup. Ct. 183, 37 L. Ed. 1191. term time, unless the parties stipulate for a trial in vacation.51 But motions, arguments, settlement of pleadings and issues, taking of evidence, entry of judgments, and generally all matters except trials and sessions of grand juries may be out of term or in vacation.52 11. Judicial, legislative, and executive power.— The most general and important distinction between these powers is that the first acts upon rights and liabilities already existing, and the second creates rights to be enjoyed or liabilities to be enforced in the future.53 The courts decide what the law is, the legislature what it shall be.54 Thus, a court cannot establish railroad rates, because the power is a legislative one, but it may decide whether a rate is reasonable. The same rule is undoubtedly applicable to rates for water, light and power. Executive power. This is defined to be the power to execute the laws, vested in the President of the United States, the governors of the states, the administrative officers of the nation, the states and the territories, and of counties, parishes, towns, villages, and cities.56 All executive and administrative officers also exercise judicial power to some extent, and all are restrained in its exercise by the Fourteenth 51 Common practice. 52 Common practice. 53 Interstate Commerce Commission v. Cincinnati N. O. & T. P. R. Co., 167 U. S. 479, 499, 17 Sup. Ct. 896, 42 L. Ed. 243. 54 Cooley, Constitutional Law (7th ed.), p. 132. 55 Prentis v. Atlantic Coast Line, 211 U. S. 210, 226, 29 Sup. Ct. 67, 53 L. Ed. 150. 56 State v. Hyde, 121 Ind. 20, 22 N. E. 644; People v. Salsbury, 134 Mich. 537, 96 N. W. 936. Amendment to the Constitution of the United States, securing due process of law.57 12. The relation of the courts to the executive department-Discretionary and ministerial functions. -The leading case in this country is Marbury v. Madison.58 This was a mandamus requiring the Secretary of State of the United States to show cause. why he should not deliver to Marbury his commission as a justice of the peace in the District of Columbia, which had been issued to him by President Adams at the close of his administration, and duly sealed, but which the Secretary refused to deliver. It was held that while the appointment itself was entirely discretionary, yet once being made, the duty of delivery was one prescribed by law, properly enforceable by mandamus. It was said by Mr. Justice Miller9 that the principles declared in this case have never been controverted, and subjected ministerial and executive officers of the government all over the country to the control of the courts in regard to the execution of a large part of their duties.6° Executive decisions on matters of fact properly coming before departments of the government are binding on the courts on questions of fact, but are subject to collateral attack on matters of law. This is true of the action of the Postmaster General in di 57 Ekern v. McGovern, 154 Wis. 157. 581 Cranch 137 (U. S.), 2 L. Ed. 60. The recent case of Ekern v. McGovern, 154 Wis. 157, decided May 31, 1913, where the governor attempted to remove a state officer appointed by him, contains a most exhaustive statement of the limits of the judicial power over the executive. 59 1 Marshall Memorial, p. 360; Miller, The Constitution, p. 386. 60 Another leading case on the point is Noble v. Union River Logging R. Co., 147 U. S. 165, 13 Sup. Ct. 271, 37 L. Ed. 123. recting payment for mail transportation through a misconstruction of the law;61 also in respect to decisions of the Secretary of the Interior in applying public land laws.62 13. Jurisdiction. The best definition of jurisdiction, it is said,63 is that of Chief Justice Green, of New Jersey, that it is simply judicial power**—“any power possessed by the tribunal, either affirmative or negative."65 It is not the power to hear and determine, because the power to hear may exist in a particular case and yet the power to determine be lost, and the determination be void for want of jurisdiction; that is, jurisdiction may be lost by making the wrong determination. However, the most approved definition of the word is that it is the power to hear and determine." Another approved definition is that the case must be in a class over which the court is by law given power, the proper parties must be represented, and the decision must be within the issues. 68 If a tribunal had jurisdiction, or may be lawfully presumed to have had it, its judgment, so long as unreversed on appeal or other direct attack, avails in all courts and places. But, if it has no jurisdiction from the beginning, or in some manner loses it, its 61 Wisconsin Central R. Co. v. United States, 164 U. S. 190, 17 Sup. Ct. 45, 41 L. Ed. 399. c2 Johnson v. Towsley, 13 Wall. 72 (U. S.), 20 L. Ed. 485. 63 Van Fleet, Collateral Attack (1st ed.), § 58. 64 Perrine v. Farr, 22 N. J. Law 356. 65 Van Fleet, Collateral Attack (1st ed.), § 58. ec Ex parte Reed, 100 U. S. 13, 25 L. Ed. 538. 67 4 Words & Phrases, p. 3877. 68 Munday v. Vail, 34 N. J. Law 418, approved in Reynolds v. Stockton, 140 U. S. 254, 11 Sup. Ct. 773, 35 L. Ed. 464. |