Dissenting Opinion.
Montgomery, C. J.I am unable to concur in holding as valid that part of section 111 of the act of 1905, concerning municipal corporations (Acts 1905, pp. 219, 292, §8716 Burns 1908), which requires the report of appraisers to be entered as a .judgment upon the records of the circuit or superior court. If these provisions were designed to clothe such appraisers with power to formulate and render a judgment, they would be in violation of article 7, §1, of the state Constitution, which vests all judicial power in the supreme, circuit and such other courts as the General Assembly may establish, and therefore void. If the language be so construed as to compel such courts, without discretion, to cause or allow such report to be entered upon their records as a judgment, it must be held invalid as an encroachment upon the power and prerogatives of the judiciary. Adams v. State (1901), 156 Ind. 596. This statute requires the ap*480praisers to report within three days to the court appointing them, and in case of neglect or delay such court could doubtless, in a summary way, compel action. The court must ascertain and fix the per diem of such appraisers, and render judgment for costs in accordance with the directions of the statute. In my opinion the provisions in question mean more than that the report shall merely be recorded by the clerk as a judgment is recorded, and mean that it shall be entered upon the records of the court as a judgment; that is, by the authority of the court and with all the essential characteristics of a final judgment between the parties. A judgment is essentially the sentence or adjudication of a court or judicial tribunal, between adverse parties, except in ex parte proceedings, or between the plaintiff and some res standing in the place of a defendant in a pending action. It must be the act of the court as such, or of the judge or magistrate presiding in such court or tribunal. This statute does not appear to contemplate the issuance of an execution, but a judgment as such is not concerned with the means of enforcing the right or liability declared. The making of special assessments on account of public improvements involves a species of the taxing power, and a judicial hearing is not essential to the validity of such assessments; but when judicial power is invoked it must not be stripped of its inherent attributes. It appears clear to me that here is an attempt to impose the report of appraisers upon courts of general jurisdiction without any power to set aside, revise or correct the same so as to declare the right and justice of the case, and hence to deprive them of inherent judicial authority and discretion. In this view of the statute the provisions in question are unconstitutional and void, and I therefore dissent from the holding of the majority of the court.