Dissenting Opinion.
Black, J.The railroad commission is an administrative board, and not a court. Whatever may be said properly as to the theoretical nature of the elementary functions or powers of government involved in the making of an order by that board to correct, alter, change or establish a rate, charge, classification, rule or regulation upon complaint setting forth the unreasonable character of a rate, charge, classification, rule or regulation of a railroad company or an express company, the commission in the performance of such duty does not act in a judicial capacity, though the prescribed modes of procedure resemble in some respects those of a court, and though in the performance of the duty the commission must consider the question as to the reasonableness of the rate, charge, classification, rule or regulation concerning which complaint is made, and must decide what is, in the particular instance, reasonable. The question as to what is a. reasonable rate, etc., is in its nature a question of fact, and merely because an administrative board in the discharge of its duties must consider and decide such a question it does not thereby be*462come a court, and as to the determination of such question it is not acting in a judicial capacity. The result of the proceedings of the commission under the statute is an official administrative arrangement, and not a judicial decision. If when the decision upon a question of reasonableness is made by a court it is to be treated as a judicial question, it does not necessarily follow that it is to be so treated when it occurs in an administrative matter in the manner in which it constantly enters into the making of expedient regulations by administrative officers in general. As said by Cooley, J., in Weimer v. Bunbury (1874), 30 Mich. 201: “Much of the process by means of which the government is carried on and the order of society maintained is purely executive or administrative.” An officer or a board is not judicial in the. true sense of the term merely because he .or it performs duties which when performed by a court are regarded as judicial duties. “If it were otherwise it would be almost impossible to conceive of an office not judicial, inasmuch as all officers, whatever their class or rank, are required to exercise functions and perform duties which in their nature are judicial.” 1 Elliott, Gen. Prac., §205, and authorities cited.
If a court render a judgment in a cause wherein it has jurisdiction, the legislature cannot set it aside and grant a new trial, or substitute its own decision for that of the court. Yet it cannot be doubted that though the railroad commission, pursuant to the statute, should fix a rate for a particular railroad, and there should be no appeal from the action of the commission, the legislature might by its subsequent enactment make a different rate for railroads which would supersede the future operation of the regulation made by the commission.
Whatever may be the correct conclusion upon the question as to the authority of the legislature to confer upon the Appellate Court original jurisdiction in a particular class of cases, or to require it to try and determine de novo *463after the railroad commission snch a matter as that here presented, the General Assembly intended in this instance to confer upon that court jurisdiction to examine, not the rate — it is made by the railroad company — but the action of the commission by consulting a transcript of its proceedings, and to affirm the action of the commission or to change or modify it or set it aside, as justice may require/ the authority so conferred being spoken of in the statut^ j as jurisdiction to hear and determine an appeal. It wasA not the intention to confer or impose original jurisdiction/ Upon this court as a judicial body. The legislature, it may perhaps be supposed, intended that we should perform our assigned part acting in the capacity of a court of appeals. If we are to proceed only in the capacity of a court of appeals, without original jurisdiction, we must review only judicial determinations of a subordinate court, upon a record importing the absolute verity of the record of a judgment. Appellate judicial authority implies original judicial action over which such authority may be judicially exercised.
The word “appeal,” when properly used as'a term of the law, means the removal of a case from one court to another court. “The matter of appeals is essentially and throughout judicial, and there can, in legal contemplation, be no appeal when there js no decision by a judicial tribunal. Two things are essential, the decision of a judicial tribunal of original jurisdiction, and a superior court invested with authority to review the decision of the inferior tribunal.” Elliott, App. Proc., §15. In the next section of the same book it is said: “Appellate jurisdiction is the authority of a superior tribunal to review, reverse, correct, or affirm the decisions of an inferior judicial tribunal in cases where such decisions are brought before the superior court pursuant to law. * * * Judicial power resides in courts, and hence it is essential that the original, as well as the appellate decision, should be made by a court.” Elliott, App. Proc., §16.
*464“In reference to judicial tribunals, an appellate jurisdiction, therefore, necessarily implies that the subject-matter has been already instituted in and acted upon by some other court, whose judgment or proceedings are to be revised.” 2 Story, Constitution (5th ed.), §1161.
“Appellate jurisdiction, ex vi termini, implies a resort from an inferior tribunal of justice, to a.superior, for the purpose of revising the judgments of the inferior tribunal.” Smith v. Carr (1808), Hardin (Ky.) 305.
To constitute appellate jurisdiction, properly so called, as distinguished from original jurisdiction, the decision to be reviewed must be a decision made by a court properly so designated, and not simply a decision of a body with quasi-judicial authority. Elliott, App. Proc., §11.
“The jurisdiction of an appellate tribunal is not exercised over ministerial or administrative officers directly, for when it exercises such authority it proceeds as a court of original jurisdiction.” Elliott, App. Proc., §20.
“The power of the appellate court necessarily includes the power not only to reverse the judgment, but also, to control and direct the subsequent action of the subordinate court.” Piqua, etc., Bank v. Knoup (1856), 6 Ohio St. 342, 349. And see Dodds v. Duncan (1884), 80 Tenn. 731.
The power resides in every appellate tribunal to coerce obedience to its orders, writs and mandates. Elliott, App. Proc., §22.
“Jurisdiction is original when it is conferred on the court in the first instance.” 21 Am. and Eng. Ency. Law (2d ed.), 1009, note.
When a cause decided in one tribunal is removed to another and there tried de novo, the latter court is not concerned with errors committed by the former, but exercises authority in the nature of original jurisdiction, notwithstanding the method of bringing the cause before it.
*465Under onr system of jurisprudence, where questions are submitted to the decision of an administrative body, and an appeal from such body is authorized by the legislature, the jurisdiction so conferred on the court to which the appeal is thus authorized has been treated as in the nature of original jurisdiction, and not as being appellate jurisdiction, strictly so called, and the investigation of the court takes the form of an original investigation, and not that o'f an appellate review of the record of a judgment.
When the legislature has authority to create a court, and, without any constitutional restriction, to prescribe its jurisdiction, it may judge for itself, however wisely or unwisely, upon the question as to the propriety of conferring original jurisdiction in one class of cases and appellate jurisdiction in other cases, and it may prescribe the manner of instituting the causes and the methods of procedure therein. To constitute original jurisdiction, the court must take cognizance of the case as an original cause.
The order of the railroad commission from which the appeal is authorized by the terms of the statute is not vacated by the appeal, but it remains operative and in full force until changed, modified or set aside by a circuit, superior or appellate court, though its operation may be suspended by the filing of a bond as provided in section six and one-half (Acts 1905, p. 83, §5405g Burns 1905), without involving the exercise of any power of the court except in the fixing of the amount of the bond and in the approval of the surety. '
An appeal, in the strict sense of the term, cannot be granted by the legislature directly from a purely administrative body to a court which is limited by the Constitution to appellate jurisdiction. Therefore, appellate jurisdiction, properly so called, cannot be conferred on any court by the authorizing of an appeal directly from such a body.
In Hubbell v. McCourt (1878), 44 Wis. 584, it was held that the appellate power of the' supreme court of Wis*466consin., conferred by the constitution, could not be extended to acts or decisions of officers or persons not acting as a court, and that tbe legislature could not compel tbe court to take jurisdiction of and determine appeals taken directly from orders made by judges in chambers.
In Auditor of State v. Atchison, etc., R. Co. (1870), 6 Kan. 500, 7 Am. Rep. 575, the appeal was taken pursuant to a statute by the auditor of state from the appraisal of the property of a certain railroad company made by the board of county clerks. On motion of the railroad company the appeal was dismissed. The legislature was under the constitutional restriction that the jurisdiction conferred on the court must be appellate, not original. It was said: “It would be absurd to claim, that it is in the power of the legislature to clothe this court with authority to review acts purely executive in their character, by giving an appeal therefrom to this court. Many of the duties which the executive is called upon to perform require great care and judgment in deciding how to act. Yet when the decision is made an appeal could not be given to this court, for that would give to the court executive powers as well as judicial.”
In Hestres v. Brennan (1875), 50 Cal. 211, it was held that the secretary of the interior, who had authority to approve, modify or annul the acts, proceedings and decisions of the commissioner of the general land office, exercised, in revising the acts of the commissioner, “supervisory, rather than appellate power, in the sense in which the term appellate is employed in defining the powers of the courts of justice.”
The judicial power, which every court possesses, is not created or given by the legislature. When, in the exercise of its constitutional authority, the legislature creates the court, though it may be abolished by the same authority, yet while it continues to exist it is invested with judicial power by the constitution which authorized its creation. *467By virtue of the same organic law, the legislature has no authority to confer or to impose upon a court any other than judicial functions or duties. The independence of the judiciary cannot he thus destroyed or impaired.
The railroad commission is put in motion by the filing of a complaint by some person or corporation injuriously affected, setting forth the unreasonable character of the rate, charge, classification, rule or regulation complained of, and after a hearing the commission is required to make such corrections, alterations, changes or new regulations, or any part thereof, as may be necessary to prevent injustice and discrimination to the party complaining, the order of the commission operating for the benefit of all persons or corporations situated similarly and on the line of the railroad. The complaint of the injuriously affected person or corporation filed with the commission operates merely as a necessary suggestion, and cannot be regarded as a pleading whereby a judicial proceeding is instituted. The' person or corporation thus putting the commission in motion need not be a party to the so-called appeal to this court. Eor the institution of the contemplated proceeding in this court, any railroad company or other corporation or party in interest, dissatisfied with any rate, classification, rule, charge or general regulation, made, approved, adopted or ordered by the commission, is to procure a transcript of the proceedings of the commission, and, if he or it so desires, a copy of the evidence, and the dissatisfied company or party is to file such transcript in the -office of the clerk of this court, and with it the dissatisfied company'or party is to file a concise written statement of its or his causes of complaint against the action of the commission, making the railroad company a defendant thereto. The cause in this court is to be “heard and determined” upon the transcript so filed. Upon such hearing this court is to make a decision which shall be a final decision of the matter heard, and is given power to affirm the action of the commission, *468or to change, modify or set aside the same, as justice may require. That is to say, the court’s functions are the same as those of the commission, except that the latter, moved by the complaint of one injuriously affected, acts upon the .rate, charge, classification, rule or regulation made by the railroad company, while the court, upon the complaint of some dissatisfied person or company, is to act on the rate, classification, rule, charge or general regulation made by thq commission, and the commission hears and determines upon information originally furnished to it, while the court is confined to the information furnished by the transcript. The same criterion, that of the justice of the rate, etc., is to govern the determination of the commission and that of the court.
It does not appear to be contemplated that the court shall make any mandate to the commission, or that it shall remand the matter to the commission for further proceedings or for any purpose, and it is not required that its action shall be certified to the commission. The decision of the court is final, and the commission is directed to keep copies of all such findings and judgments on file in its office.
If we, on the hearing upon the information furnished by the transcript, should be unwilling to affirm the action of the commission, that is, to approve the rate, etc., ordered by it, we are not directed to reverse a decision of the commission, but the statute provides that we may affirm, change, modify or set aside, as justice may require. In view of the provision that our decision shall be final, it is intended that it shall furnish the regulation which is to control the railroad company, and it cannot be supposed that we are to stop with merely setting aside the action of the commission which we do not affirm. It is contemplated, and, if we are to make a final adjustment as required, it is necessary, that when we cannot approve the commission’s rate, etc., we shall not merely set aside the *469commission’s action, but we shall state such a rate, etc., as justice may require, by changing or modifying the rate, etc., designated by the commission. It cannot be supposed that we would be given power to approve or set aside the rate, and also to make a finality, as justice may require, of the matter concerning which complaint is made to us, without exercising the power expressly given to change or modify the rate, etc., under consideration. Indeed, it is impossible for us to exercise official power and thereby take the final action required by justice without having and exercising the power to change or modify the rate, etc., made by the commission. In short, we cannot take any action as contemplated by the statute without acting ad-i ministratively.
It would seem that the actual purpose of the statute is an attempted investment of a court of appeals with administrative functions which would in effect make it an additional railroad commission with modified procedure and without proper facilities. It is certain that we cannot perform what by the statute is contemplated, and that without which we would not have been given any of the authority which it attempts to confer, unless we are to exercise power not pertaining to a court.
Eor the foregoing reasons I am of the opinion that the appeal should be dismissed. Having arrived at the conclusion that this court has no jurisdiction in the premises, I cannot regard it as proper to go further , into the question as to the authority of the railroad commission.