dissenting:
I am unable to concur in the opinion and judgment of the court in this case, and I believe that its importance warrants a statement of my views. The court has declared unconstitutional an act of Congress conferring upon the supreme court of the District of Columbia judicial authority to ascertain and decree the value of the plant and future extensions of the Washington Gaslight Company, which valuation, under the act, establishes a limitation beyond which the company may not go in the increase of its capital stock.
Before declaring a statute unconstitutional, courts should resolve every reasonable doubt in favor of its validity, and, if possible, so construe it as to carry into effect the legislative will. The Washington Gaslight Company is a public-service corporation. Its regulation is a matter of the highest concern. No narrow view should be taken in construing the power of Congress in enacting laws for its proper control and to restrain it from disregarding the public interests. The capitalization of this company is an important factor in fixing the price at which gas shall be sold to the public. Congress arbitrarily could have provided, as it did in respect to this corporation in the past, for the increase of the capital stock to a fixed amount. This policy, in respect to the operation of a corporation in which the public is so vitally interested, without any attempt to ascertain the actual value of its property, would afford little protection to the public, and might lead to grave abuse. Congress *394could have conducted such an investigation itself, and accordingly provided for the issue of additional stock, or it could have delegated the duty of making this investigation to an officer or body of officers appointed by its authority. It is within the power-of the legislative department of the government to impose upon the executive and judicial branches duties that, with equal propriety, might be performed by itself. It was not intended that the legislative, executive, and judiciary departments should be disconnected wholly from each other. Unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation essential to a free government cannot, in practice, be maintained. Judge Story, in his Commentaries on the Constitution (vol. 1, see. 525), speaking of the division and assignment of the powers of government into three different departments, the legislative, the executive, and the judicial, says: “It is not meant to affirm that they must be kept wholly and entirely separate and distinct, and have no common link of connection or dependence, the one upon the other, in the slightest degree. The true meaning is that the whole power of one of these departments should not be exercised by the same hands which possess the whole power of either of the other departments; and that such exercise of the whole would subvert the principles of a free constitution.”
The Constitution does not define or fix boundaries within which the three departments of the government shall exclusively operate. No such a narrow construction was contemplated by its framers. Only general limitations were fixed within which the powers of the several departments were prescribed. No exact and complete delimitation of the several departments has yet been defined by the courts, and it is doubtful if the problem will admit of a solution.
Thus it will be observed that Congress is given wide latitude in conferring special powers upon the co-ordinate branches of the government. If Congress, in the act in question, has legislated on those matters that exclusively belong to it, the execution of the law may properly be delegated away. It seems that the *395first test to be applied is whether Congress has acted on all -questions embraced in the act which belong exclusively to the legislative department. It is true that a court has no power to fix the amount of capital stock a corporation may issue, or to place a limit upon the increase of capital stock. These are matters exclusively within the power of the legislature. But that power has been exercised by Congress in the case at bar, and a distinct limitation has been fixed. It shall not exceed the value of the plant and the future extensions. This value, when ascertained, constitutes the limitation definitely fixed in the act. What has been imposed upon the court is to ascertain and adjudge by judicial determination the value of the plant and the future extensions.
That Congress could have conducted this investigation will not, I think, be disputed, but this fact does not prevent it from imposing the same duty upon the supreme court of the District of Columbia. In the case of United States v. Duell, 172 U. S. 576, 43 L. ed. 559, 19 Sup. Ct. Rep. 286, the court said: “Doubtless, as was said in Den ex dem. Murray v. Hoboken Land & Improv. Co. 18 How. 272, 284, 15 L. ed. 372, 377, Congress cannot bring under the judicial power a matter which, from its nature, is not a subject for judicial determination; but ■at the same time, as Mr. Justice Curtis, delivering the opinion of the court, further observed, There are matters involving public rights, which may be presented in such form that the judicial power is capable of acting on them, and which are susceptible of judicial determination, but which Congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper.’ The instances in which this has been done are numerous, and many of them are referred to in Fong Yue Ting v. United States, 149 U. S. 698, 714, 715, 728, 37 L. ed. 905, 913, 914, 918, 13 Sup. Ct. Rep. 1016.”
Here all the rights are created and fixed by Congress, and the power to adjudicate and determine the extent of the right, when the company seeks to avail itself of the privilege granted by the act, is conferred upon the court. In the case of Canada Northern R. Co. v. International Bridge Co. 7 Red. 653, power *396was conferred upon a district court of the United States, in case of controversy, to determine and fix the compensation that should be paid for the use of a bridge. In the course of the opinion the court said: “The rights are created and established, by the act; and this is the office of the legislative department. The power to adjudicate upon these rights, to ascertain, when, controversy arises, their extent and value, and apply the appropriate remedy for their protection, is conferred upon the-court; and this is the peculiar province of the judicial department. It is argued that the act attempts to confer upon the-court the power to fix the rate of tolls which the International Bridge Company may charge, and that this is a legislative,, and not a judicial, function. If Congress had fixed the rate of tolls, as it had the right to prescribe the conditions upon which the franchise might be enjoyed, no other authority could have intervened to change these conditions. But suppose the act had, in terms, provided that the bridge company might', charge reasonable tolls, would not this have been a complete-exercise of the legislative power, and would it not have remained for the judicial department to decide, when controversy should arise, what were or were not reasonable tolls ?' And if the act had provided for such a determination by a judicial tribunal, would this have been unconstitutional ? It seems-to me clearly not. It is no less the exercise of judicial functions-to prescribe a rule of conduct or protect the existence of a right during a future period, than it is to determine whether the right has been invaded in the, past. It is one of the common offices of a court or equity to do this.”
The subject here submitted for judicial determination is the value of the plant and its future extensions. The finding of the court on this point is final and conclusive upon the company, and furnishes a maximum limit beyond which the company cannot go in the issue of its capital stock. The judgment, instead of being intended to compel the company to comply by issuing stock, is intended to restrain it within proper bounds if it chooses to exercise the right granted by the act. If the company refuses to accept and issue the stock, the same end is *397accomplished by the judgment, only that it has had a still greater restraining effect than if its limitations had been accepted. The judgment is not only binding upon the company, but it is conclusive. There is no way in which the capital stock can be increased except by strict compliance with the terms of the decree. Congress no doubt considered that the failure of the company to accept the terms prescribed by the act could not in any manner prejudice the public interests. Hence, it will be observed that the finding of the court either restrains the company from taking any action whatever, or compels obedience to the court’s decree. It is obvious that if the company should attempt to disobey the judgment of the court by issuing stock in excess of the value found by the court, the court would have jurisdiction to enforce a strict compliance with the terms of its decree.
In United States v. Ferreira, 13 How. 40, 14 L. ed. 42, cited in the opinion of the court, no decree was entered. The court simply forwarded the papers, with its findings therein, to the Secretary of the Treasury for final action. Hence, the court became a mere auditor for an executive officer of the government. The action of the court could be affirmed or disregarded by the Secretary of the Treasury, as he might deem proper. So, in Hayburn's Case, 2 Dall. 409, 1 L. ed. 436, and United States v. Todd, 13 How. 52, note, 14 L. ed. 47 note, cited by the court in its opinion, the finding of the court there was subject to review and nullification by the Secretary of War, — another executive officer. In the case of Re Sanborn, 148 U. S. 222, 226, 37 L. ed. 429, 431, 13 Sup. Ct. Rep. 577, the court said: “Such a finding is not made obligatory on the department to which it is reported, — certainly not so in terms, — and not so, as we think, by any necessary implication. We regard the function of the court of claims, in such a case, as ancillary and advisory only. The finding or conclusion reached by that court is not enforceable by any process of execution issuing from the court; nor is it made, by the statute, the final and indisputable basis of action either by the department or by Congress.” This language will apply with equal force to the other cases cited in the opin*398ion of the court aud relied upon to support its conclusions. But that is not this case. Here, so long as the act stands upon the statute books, there can be no review of a judgment entered under its provisions outside of the judicial department of the government. It stands as a part of the record of the court, a binding judgment as to the value of the plant and future extensions at the time it was entered, and a - limitation upon the powers of the company in increasing its capital stock. As I have observed, it is not only a limitation, but binds the company to the extent that it cannot increase its capital stock in any other way, except by a strict compliance with the terms of the decree. The proceedings are not advisory or ancillary. No further action is necessary by Congress to authorize the issuance of the stock. All that is required is a strict compliance by the company with the decree of the court, and the authority to proceed under the statute is complete.
It is claimed that the act is defective in that it does not provide any method by which service may be made and a party defendant brought into court. Conceding that Congress could not confer upon the court the power to make a rule that would compel a party to come in and defend, it is perfectly competent for a court to make a rule by which general notice may be given, and under which any party interested may come into court and be heard. Notice by publication was provided for in the rules promulgated in this case, and the right expressly reserved for the stockholders to appear and protect their rights. It is unnecessary for the admission of a party to an action, either that the party shall have had notice, or that the court shall have express power to compel such party to appear. The party may appear voluntarily, and, if he appears to have a justiciable interest in the subject of litigation, the court will permit him to be heard. In most civil actions, it is optional with the defendant whether he appears or not He may elect to permit judgment to run against him by default. The summons or notice is served on a defendant to an action to give the court jurisdiction to enter and enforce its judgment either in favor of or against the person so notified. Here the petitioner is the only *399one against whom the court can enforce its judgment. There is-no defendant who can be judicially affected by the decree. It is, by reason of this, no less a proper judicial proceeding. In many ex parte proceedings, the only party affected by the decree entered therein is the petitioner, but usually general notice by publication is given, affording an opportunity for any person interested to appear and assert his rights. The same right of appearance in such a proceeding exists in the absence of notice, —especially where the remedy sought runs in favor of or against the petitioner, as in the case at bar, and as is generally true in ex parte proceedings. It may be suggested that the rule, in addition to providing for general notice by publication, requires service to be made upon at least one of the commissioners of the District of Columbia, and upon either the Attorney General or Solicitor General of the United States. In compliance with such service, it was admitted at bar that the commissioners of the District appeared and defended in the case of the Georgetown Gaslight Company. The same parties are here defending on behalf of the public, as it is their duty to do, and as they would doubtless do in proceedings of this kind in the future. Their appearance, however, does not change the ex parte action into a proceeding inter partes. The decree entered can bind only the company, and that is all that was intended by Congress.. It does demonstrate, however, that both Congress and the court, by its rules, have provided fully for the protection of the public interests.
But it is further suggested that, from the duty imposed upon the court by the act of Congress, such a case cannot arise as calls, for the proper exercise of judicial power. In the case of the Interstate Commerce Commission v. Brimson, 154 U. S. 447, 38 L. ed. 1047, 4 Inters. Com. Rep. 545, 14 Sup. Ct. Rep. 1125,. the court, considering the constitutionality of the 12th section of the interstate commerce act, authorizing circuit courts of the United States to use their process in aid of inquiries before the Commission, said: “What is a case or controversy to which, under the Constitution, the judicial power of the United States extends? Referring to the clause of that instrument which. *400extends the judicial power of the United States to all cases in law and equity arising under the Constitution, the laws of the United States, and treaties made or that shall be made under their authority, this court, speaking by Chief Justice Marshall, has said: ‘This clause enables the judicial department to receive jurisdiction, to the full extent of the Constitution, laws,- and treaties of the United States, when any question respecting them shall assume such a form that the judicial power is capable of acting on it. That power is capable of acting only when the subject is submitted to it by a party who asserts his rights in the form prescribed by law. It then becomes a case, and the Constitution declares that the judicial power shall extend to all cases arising under the Constitution, laws, and treaties of the United States.’ Osborn v. Bank of United States, 9 Wheat. 738, 819, 6 L. ed. 204, 223. And in Den ex dem. Murray v. Hoboken Land & Improv. Co. 18 How. 272, 284, 15 L. ed. 372, 377, Mr. Justice Curtis, after observing that Congress cannot withdraw from judicial cognizance any matter which, from its nature, is the subject of a suit at the common law, or in equity, or admiralty, nor, on .the other hand, bring under judicial power a matter which, from its nature, is not a subject for judicial determination, said: ‘At the same time there are matters involving public rights, which may be presented in such form that the judicial power is capable of-acting on them, and which are susceptible of judicial determination, but which Congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper.’ ” In that case, Congress had created the Interstate Commerce Commission, and delegated certain powers to it for the regulation of public-service corporations engaged in interstate commerce. Here, Congress is legislating for the regulation of a public-service corporation. In both instances “there are matters involving public rights.” The matters here presented are “in such form that the judicial power is capable of acting on them,” and they “are susceptible of judicial determination.” Congress, in bringing this 'matter within the cognizance of a. court of competent jurisdiction, *401instead of legislating directly upon the subject, certainly acted within the limits of the powers conferred upon it by the constitution.
Considering the plenary power reposed in Congress by the Constitution (art. 1, sec. 8, cl. 17) to legislate for the government of the District of Columbia, I am of the opinion that the power conferred by the act in question upon the supreme court of the District is a constitutional delegation of judicial authority.
On February 14, 1908, a writ of error to the Supreme Court of the United States was applied for by the respondents, and allowed.
On the same day the respondent, the Washington Gaslight Company, filed a motion in this court for an amendment of the opinion and judgment of the court.
The motion was denied, February 18, 1908, Mr. Chief Justice Shepard delivering the opinion of the Court:
This is a motion on behalf of the respondent, the Washington Gaslight Company, to have an amendment of the opinion and judgment in this case so as to show an express disposition of an exception and motion of the petitioners.
The record shows that the petitioners filed an exception to and motion to strike out so much of the respondent’s return to the rule to show cause as refers to the proceedings had in the supreme court of the District of Columbia on the petition of the Georgetown Gaslight Company, because the same are no part of the record in the matter of the application of the Washington Gaslight Company. Those were not called to the attention of the court for action, and passed without notice in the opinion, for that reason. The fact of the proceedings in the Georgetown Gas Company Case was incidentally before us in the argument.
It is argued that because no express disposition was made of the exception and motion, that fact may cause a writ of error from the Supreme Court of the United States, that has been applied for, to be dismissed, because a part of the case remains undisposed of. We think there is no substantial ground for *402such apprehension. The case was disposed of on its merits, and the final judgment thereon carries with it all incidental questions that might have been considered and determined therewith, whether discussed or not in the opinion delivered. The exception and motion were not noticed because they were not called to the attention of the court, though filed and appearing in the record. They relate to a formal matter, apparently unimportant in the consideration of the merits of the case, and may well be regarded as having been waived by the failure of the petitioners to ask for their determination. This, we think, was the effect of the omission, and we see no occasion to reopen the case in order to make an express disposition of them now. This statement of the facts is made that the appellate court may be fully advised of the situation; and the motion is denied.