Heydenfeldt, J., concurred.
Several questions were raised in the argument of this case, only one of which it is deemed necessary to examine, viz: The power of the Legislature to confer other than judicial functions upon the Courts of Sessions.
The eighth section of the sixth Article of the Constitution of this State, title, “Judicial Department,” provides as follows: “ The County Judge, with two Justices of the Peace, to be designated according to law, shall hold Courts of Sessions, with such criminal jurisdiction as the Legislature shall prescribe, and he shall perform such other duties as shall be required by law.”
The first session of the Legislature, holden under the Constitution, acting, in all probability, without reference to the distribution of the various powers of our State government, as provided in Article III, conferred upon the Courts of Sessions the entire management of the financial business of the comities. Among other duties enjoined, was that of purchase or erection of suitable buildings for court houses and public offices.
In compliance with the Act of April 10, 1850, the contract, out of which has grown the subject matter of this suit, was made.
It is now contended, admitting the contract was fair and equal in all its parts, that it is not binding on the County of San Francisco.
First, Because, by the third Article of the Constitution, it is provided that the powers of the State government shall be divided into three separate departments—the Legislative, the Executive, and Judicial; and no person charged with the execution of powers properly belonging to one of these departments, shall exercise any functions appertaining to either of the others, except in cases expressly directed or *20permitted. And second, Because the eighth section of the sixth Article of the Constitution, before quoted, does not confer the exercise of this jurisdiction upon Courts of Sessions, but limits their jurisdiction to criminal cases alone.
In discussing the first proposition, it is only necessary to remark, that in the previous decisions of this Court, we have repeatedly alluded to the distribution of powers by the Constitution, as a leading feature, never for a moment lost sight of by its framers, but carefully preserved for the purpose of maintaining the integrity of the different departments intact, and securing the harmony and symmetry of the whole, by restraining each to its particular orbit.
The history of almost every nation is replete with struggles between the judicial, the executive, and legislative branches of government for unlimited supremacy, and demonstrates, that unless curbed by wholesome constitutional restrictions, each department will, in its turn, encroach upon and interfere with the functions of other co-ordinate branches of government. This spirit of usurpation and encroachment has been more frequently directed towards the judiciary than any other department. In England, it was only determined by resort to civil war, which resulted in the establishment of the entire independence of. the Judiciary, as.well as the Commons, while in this country, it has been avoided by the enlightened wisdom and experience of the framers of our Federal and State Constitutions.
Acting upon this understanding, our Constitution was designed to secure the same uniformity and harmony of operation; and we do not know how the Convention that framed it could have expressed that intention more intelligibly.
A recurrence to the origin and reasons that induced this distribution of powers, would seem conclusive upon this case, in which the Legislature have imposed upon a Court ordained by the Constitution for the transaction of criminal business, powers belonging to the executive and legislative departments of government not even quasi judicial in their character.
It is. however, urged by the Appellant in reply, that the Court of Sessions has not been vested by the Constitution with any of the judicial power of the State. That the sixth Article of the Constitution, title, “ Judicial Department,” provides, That the judicial power of the *21State shall be vested in a “ Supreme Court, District Courts, County Courts, and Justices of the Peace.”
The Legislature may also establish such municipal and other inferior Courts as may be deemed necessary. That inasmuch as this section does not enumerate “ Courts of Sessions,” they are no part of the judicial department, and the Legislature, in the exercise of all powers not denied by the Constitution, may invest them with such jurisdiction as may be deemed proper.
This is a narrow and forced construction, and one which cannot be supported. If the Courts of Sessions are not to be regarded as a part of the Judiciary, what becomes of the criminal jurisdiction conferred by the Constitution. We can only determine to what branch of the government they belong, by the character of their officers, and the nature of the duties enjoined. Here is a “ Court.” over which three judicial officers, known as such to the Constitution, are appointed to preside and administer, with such criminal jurisdiction as the Legislature may provide.
Now, if the first section of the sixth Article necessarily limits the judicial power to the Courts therein mentioned, by parity of reasoning, the first section of the fourth Article, and the first section of the fifth Article, which define in what the legislative and executive power of the State shall consist, operate a like limitation, from which it would follow, that inasmuch as Courts of Sessions are not specially enumerated in either of these sections, they belong to a fourth or nondescript branch of the government, upon which any and every power may be conferred, uncontrolled, except by the wisdom of the Legislature, notwithstanding that the third Article has divided the powers of the State into three departments.
There is another view of this question, which, I apprehend, is conclusive. Not only does the Constitution forbid the exercise of the functions of one department by any other department, but it has gone further, and to secure the complete integrity of each, has, by the third Article, expressly forbid “persons charged with the powers of one, from exercising duties properly belonging to another department;” from which it follows, no duties, except of a judicial character, can be conferred on the Courts of Sessions, inasmuch as the officers composing *22these Courts are persons charged by the Constitution expressly with the performance of judicial functions.
Upon the second point it is equally clear, that the eighth section of the sixth Article necessarily limits the jurisdiction of these Courts to criminal business. AErmative words often import a negative, except as to the matter so aErmed; in the present case, the grant of criminal jurisdiction negatives any other, just as much as that of appellate to the Supreme, or original to the District Courts, limits the jurisdiction of these Courts, (as has before been decided by us.)
If any doubt could exist as to the propriety of this construction, it might be easily resolved by an examination of the sixth Article of the Constitution, from which it appears that more than ordinary care has been expended in parcelling out the exact judicial powers of each Court. The argument is also strengthened by the fact, that the fifth section of the ninth Article expressly provides for a Board of Supervisors in each county, “who shall jointly and individually perform such duties as may be prescribed by law. Constitutions seldom contain redundant or irrelevant matter; and if the framers of ours had understood that the eighth section of the sixth Article provided for the exercise of these powers, it is hardly to be supposed that they would have needlessly committed them to any other board or tribunal.
It is, however, contended, admitting that these duties cannot be enjoined upon a Court, they may be conferred on the Judges thereof as Commissioners, and that the exercise of them, by the Judges as commissioners and not as judicial oEcers, would not be unconstitutional. The first answer to this position has been already stated, viz: That the oEcers composing the Court of Sessions are judicial oEcers, and consequently are forbidden from exercising any other functions. And second, that the Act of April 10, 1850, confers these duties upon the Court in direct words, and not upon the members as Commissioners. A question similar to this arose in the case of the United States v. Yale Todd, reported in 13 Howard, in a note to the case of the United States v. Firriera, page 52, in which the same doctrine was aErmed.
It will be observed, that the language of the Constitution is not, that they, the County Judges and two Justices, “shall perform such other duties,” &c., but “ he shall”—marking more explicitly, if possible, the intention of the Convention. But even were it otherwise, and the *23word they had been used, we have shown, that by every well settled rule of construction, as well as the scope and spirit of the instrument itself, the other duties so mentioned must be limited to those, of a judicial character.
We have considered the argument drawn from cotemporaneous legislative construction, as well as the recognized legal proposition, that in doubtful cases every intendment should be in favor of the constitutionality of legislative enactments; but these axioms only apply in cases of doubt. In this instance we have none.
This question was recently decided by the Judge of the Sixth Judicial District, in an able and well considered opinion, in which the same views are taken, and which meet with the almost uniform approbation of the Bench and the Bar.
Judgment affirmed, with costs.