I concur. Conceding, as claimed, that the act of the legislature has so definitely determined the equities and rights of the two counties that a court of equity would have been able to enforce the law and carry out the scheme if no commissioners had been provided, yet that provision itself makes so radical a change, that in case the commission refuses to act, the courts would have no jurisdiction in the premises. For instance, as written, the value of the property belonging to the county is not one of the factors in determining what either county is to pay the other, but the factor is the value of such property as determined by the commissioners. *Page 526
Besides, by providing for a commission to determine which county shall pay the other, and how much, the legislature has denied the right to sue either county for the purpose of determining the amount.
It is conceded on all hands that the power of the state over these matters is plenary. It is dealing with public funds, and gives or withholds as it pleases, and it can manage these affairs through such agencies as it sees fit to adopt. The act places no obligation upon San Bernardino County until there is a finding or an award made by the commissioners, and then only the duty of complying with the award. It confers no right of action upon Riverside County, unless the right to enforce the award be such. On the other hand, as already suggested, it, in effect, prohibits such action, by confining the remedy to an award or finding to be made by a commission which performs purely political functions which the legislature could have performed itself.
Indeed, the act of the legislature is not a law in the ordinary sense. It declares no rule of action, but is itself a mere governmental act, affecting the government only, and as soon as the act is fully performed, the statute is functus officio. A part of this purely political act is the appointment and the action of the commissioners. If the court could set aside the determination, it could go no further, and in this connection it must be remembered no private rights are invaded. The matter is between two agencies of the state, both of which (in this matter) are completely under the control of the state.
Counsel for the county of Riverside rely greatly upon Johnsonv. Tousley, 13 Wall. 72, and that line of cases, and contend that the commissioner of the general land-office, the registers and receivers, and the Secretary of the Interior, are just as clearly special tribunals for the decision of certain controversies as was the commission here, and yet the courts, it is said, have jurisdiction to correct errors of law committed by such tribunals. The commission created by the act under consideration here is not a tribunal created to determine any controversies, in a proper sense, and yet an examination of those cases will tend to show my position in this matter.
In no one of these cases has the court undertaken to do what the court is asked to do here — to wit, set aside the action of the land department, order the patent canceled, and direct the department to reverse its rulings and issue the patent *Page 527 to the party which the court finds should have had it. On the contrary, it is held that the court has no power to do so. What it does is simply to affirm the patent issued, and finding that it was issued to the wrong person through mistake or fraud, the patentee is declared an involuntary trustee for the person equitably entitled to it.
No such thing can be done here. To affirm the award is to find that plaintiff has no case. All that could be done, if relief could be had, and all that is sought, is, to have the court do the precise thing which in the entire line of cases cited on this point it is held cannot be done — to wit, set aside the action of the political department, and compel the officers to perform their special functions as, in the opinion of the court, they ought to have performed them. These cases, in my opinion, instead of sustaining the position of the plaintiff, manifest an entirely different view of the law, and render it still more evident that plaintiff cannot maintain its case.
Rehearing denied.