(dissenting). — I fully concur in the foregoing opinion of the Chief Justice on- the merits of this case, but not in the ruling on the motion to strike the statement of facts. Conceding that the act of determining what transpired during the trial of a cause is in its nature judicial, it nevertheless seems to me that it is not beyond the power of the legislature to authorize a judge, after going out of office, to state and certify what facts were disclosed, and what questions were decided, at the trial. In such cases all that is done by the judge is to complete the history of the trial had, and to put in the reqmred form the facts found during his term of office. I do not think that this court, in the cases heretofore decided, and cited in the opinion, intended to, or did in fact, go to the length of holding a statute like that now under consideration unconstitutional. Nearly all of these cases were decided before this statute was enacted. Other states have constitutions like ours prescribing that the judicial power shall be vested in certain specified courts, yet in several of them it has been held, after due consideration, that judges who presided at trials might lawfully certify bills of exceptions, after the expiration of their term of office. See State v. Barnes, 16 Neb. 37 (19 N. W. 701); Davis v. Menasha, 20 Wis. 194; Hale v. Haselton, 21 Wis. 325; Galbraith v. Green, 13 Serg. & R. 85; 2 Spelling, Extraordinary Relief, § 1412; Johnson v. Higgins, 53 Conn. 236 (1 Atl. 616).
*29It is impossible for the court, as coutra-distinguished from the judge, to settle or certify a bill of exceptions or statement of facts, and our legislature has said, in unmistakable terms, that the judge, or person, before whom a cause is tried shall perform that duty. The legislature having prescribed the procedure, I think the court should follow it. In my opinion the motion to strike the statement should be denied.