[350]

choose a fifth person, and he shall become a Sec. 2. The right to collect rates or compenmember of said board; if the four commission-sation for the use of water supplied to any coun

ty, city and county, or town, or the inhabitants thereof, is a franchise and cannot be exercised except by authority of and in the manner prescribed by law."

ers cannot agree upon a fifth, then the sheriff of
the county shall appoint such fifth person. The
decision of a majority of said board shall de-
termine the rates charged for water for one
year, and until new rates shall be established. Under this provision of the Constitution and
The board of supervisors or the proper city or the legislation based thereon, the Board of Su-
town authorities may prescribe such other prop-pervisors claim the right and power to fix the
er rules relating to the delivery of water, not
inconsistent with this Act and the laws and
constitution of this State."

rates to be charged by the Company for water,
and refuse to appoint a member to fill the va-
cancy in the board of commissioners occasioned
The Spring Valley Water Works Company by the death of the former incumbent. This suit
was formed under this Act on the 19th of June, was begun in the Supreme Court of the State for
1858, and since that time has expended a very a writ of mandamus requiring the Board of Su-
large amount of money in the erection of ex-pervisors to take action in the matter and fill
tensive and substantial works for the supply of the vacancy. The court on final hearing re-
the City and County of San Francisco with wa-fused the writ and dismissed the petition. This
ter. In January, 1878, the Board of Supervis- writ of error was brought by the Company to
ors of the City and County appointed Isaac B. review that judgment.
Friedlander and H. B. Williams, and the Com-
pany appointed W. F. Babcock and Charles
Webb Howard, and these four afterwards ap-
pointed Jerome Lincoln, to constitute a board
of commissioners to determine, under the pro-
visions of section 4, the rates to be charged by
the Company for water. This board met and
fixed a tariff of rates to go into effect on the first
of June, 1878. In July, of the same year, Fried-
lander, one of the commissioners appointed by
the supervisors, died. By his death, a vacancy
was created in the board which has never been
filled.

In 1879 the people of California adopted a
new Constitution, which went into effect on the
1st of January, 1880. Article XIV., sections 1
and 2 of this Constitution are as follows:
"Article XIV.

The general question involved in this case is whether water companies in California, formed under the Act of 1858 before the adoption of the Constitution of 1879, have a right, which the State is prohibited by the Constitution of the United States from impairing or taking away, to charge their customers such prices for water as may from time to time be fixed by a commission made up of two persons selected by the company, two by the public authorities of the locality and, if need be, a fifth selected by the other four, or by the sheriff of the county. The Spring Valley Company claims no rights of this character that may not also be claimed by every other company formed under the same Act.

That the companies must sell at reasonable
prices all the water they are able to furnish con-
sumers, and that the prices fixed for the time
being by the honest judgment of such a com-
mission as was specially provided for in the Act,
must be deemed reasonable, both by the com-

pute is as to the power of the State, under the
prohibitions of the Constitution of the United
States, to substitute for this commission another,
selected without the co-operation of the compa-
ny, or some other tribunal of a different char-
acter, like the municipal authorities of the lo-
cality. The Spring Valley Company claims that
it has, under its charter, a right to the mainte-
nance of the commission which was created by
the requisite appointments in 1878, and the ob-
ject of this suit is to compel the Board of Super-
visors to perpetuate that commission by filling
the vacancy that exists in its membership. So
that the whole controversy here is as to the right
of water companies that availed themselves of
the privileges of the Act of 1858 to secure a virt-
ual monopoly, of trade in water at a particular
place, to demand the appointment of the com-
mission provided for in that Act, notwithstand-
ing the Constitution of 1879 and the legislation
under it.

Water and Water Rights. Section 1. The uses of all water now appropriated or that may hereafter be appropriated, for sale, rental or distribution, is hereby declared to be a public use, and subject to the reg-pany and the public, is not denied. The disulation and control of the State, in the manner to be prescribed by law; Provided, That the rates or compensation to be collected by any person, company or corporation in this State for the use of water supplied to any city and county, or city or town, or the inhabitants thereof, shall be fixed, annually, by the Board of Supervisors, or city and county, or city or town council, or other governing body of such city and county, or city or town, by ordinance or otherwise, in the manner that other ordinances or legislative Acts or resolutions are passed by such body, and shall continue in force for one year and no longer. Such ordinances or resolutions shall be passed in the month of February of each year, and take effect on the first day of July thereafter. Any board or body failing to pass the necessary ordinances or resolutions fixing water rates, where necessary, within such time, shall be subject to peremptory process to compel action at the suit of any party interested, and shall be liable to such further processes and penalties as the Legislature may prescribe. Any person, company or corporation collecting water rates in any city and county, or city or town [351] in this State, otherwise than as so established, shall forfeit the franchises and water works of such person, company or corporation to the city and county, or city or town where the same are collected, for the public use.

The Spring Valley Company is an artificial being created by or under the authority of the Legislature of California. The people of the State, when they first established their government, provided in express terms that corporations, other than for municipal purposes, should not be formed except under general laws, subject at all times to alteration or repeal. The reservation of power to alter or repeal the charters

[352]

of corporations was not new, for almost imme- | Board of the municipality, and they are to act diately after the judgment of this court in the in their official capacity as such a Board when Dartmouth College Case, 4 Wheat., 518, the performing the duty which has been imposed States, many of them, in granting charters acted upon them. Their general duty is, within the on the suggestion of Mr. Justice Story in his con- limit of their powers, to adminster the local curring opinion (p. 712) and inserted provisions government and, in so doing, to provide that by which such authority was expressly retained. all shall so conduct themselves and so use their Even before this decision, it was intimated by own property, as not unnecessarily to injure the Supreme Judicial Court of Massachusetts in others. They are elected by the people for that Wales v. Stetson, 2 Mass., 143, that such a reser- purpose, and whatever is within the just scope vation would save to the State its power of con- of the purpose may properly be intrusted to trol. In California, the Constitution put this them at the discretion of the Legislature. That reservation into every charter, and consequent- it is within the power of the government to regly this Company was from the moment of its ulate the prices at which water shall be sold by creation subject to the legislative power of alter- one who enjoys a virtual monopoly of the sale, ation and, if deemed expedient, of absolute ex- we do not doubt. That question is settled by tinguishment as a corporate body. what was decided on full consideration in Munn Water for domestic uses was difficult to be v. Ill., 94 U. S., 113 [XXIV., 77]. As was got in some parts of the State. Large amounts said in that case, such regulations do not de[353] of money were needed to secure a sufficient sup- prive a person of his property without due proc ply for the inhabitants in many localities, and ess of law. What may be done if the municas a means of combining capital for such pur-ipal authorities do not exercise an honest judgposes the Act of 1858 was passed. Other stat- ment, or if they fix upon a price which is manutes had been enacted before to effect the same ifestly unreasonable, need not now be considobject, but it is said they were not such as a com- ered, for that proposition is not presented by this pany with capital enough to supply San Fran- record. The objection here is not to any imcisco was willing to accept. The Act of 1858 proper prices fixed by the officers, but to their was thought sufficiently favorable, and the power to fix prices at all. By the Constitution Spring Valley Company, after organizing under and the legislation under it, the municipal auit, expended a large amount of money to pro- thorities have been created a special tribunal to vide the means of supplying the territory on determine what, as between the public and Comwhich San Francisco is built, and make it pos- pany shall be deemed a reasonable price dursible to support a great population there. All ing a certain limited period. Like every other this was done in the face of the limitations of tribunal established by the Legislature for such the Constitution on the power of the Legislature a purpose, their duties are judicial in their to create a private corporation and put it beyond nature, and they are bound in morals and in the reach of legislative control, not only as to its law to exercise an honest judgment as to all matcontinued existence, but as to its privileges and ters submitted for their official determination. franchises. One of the obligations the Compa- It is not to be presumed that they will act otherny assumed was to sell water at reasonable wise than according to this rule. And here prices, and the law provided for a special com- again it is to be kept in mind that the question mission to determine what should be deemed before us is not as to the penalties to be inflicted reasonable both by the consumers and the Com- on the Company for a failure to sell at the prices pany, but there is nowhere to be found any evi- fixed, but as to the power to fix the price; not dence of even a willingness to contract away the whether the Company shall forfeit its property power of the Legislature to prescribe another and franchises to the city and county if it fails mode of settling the same question if it should to meet the requirements of the Constitution, be considered desirable. In the Sinking Fund but whether the prices it shall charge may be esCases, 99 U. S., 721 [XXV., 502], it was said tablished in the way provided for in that instru. [355] that whatever rules for the government of the ment. It will be time enough to consider the affairs of a corporation might have been put into consequences of the omissions of the Company the charter when granted could afterwards be when a case involving such questions shall be established by the Legislature under its reserved presented. power of amendment. Long before the Constitution of 1879 was adopted in California, statutes had been passed in many of the States requiring water companies, gas companies and other companies of like character, to supply their customers at prices to be fixed by the municipal authorities of the locality; and, as an independent proposition, we see no reason why such a regulation is not within the scope of legislative power, unless prohibited by constitutional limitations or valid contract obligations. Whether expedient or not is a question for the Legislature, not the courts.

It is said, however, that appointing municipal officers to fix prices between the seller and the buyers is, in effect, appointing the buyers themselves, since the buyers elect the offi[354 cers, and that this is a violation of the principle that no man shall be a judge in his own case. But the officers here selected are the governing

But it is argued that as the laws in force before 1858, for the formation of water companies, which provided for fixing the rates by the municipal authorities, were not accepted by the Spring Valley Company, and that of 1858, without such a provision, was, it is to be inferred that the State contracted with this Company not to subject it to the judgment of such authorities in a matter so vital to its interests. If the question were one of construction only, this argument might have force, but the dispute now is as to legislative power, not legislative action. The Constitution of California, adopted in 1849, prohibited one Legislature from bargaining away the power of succeeding Legislatures to control the administration of the affairs of a private corporation formed under the laws of the State. Of this legislative disability, the Spring Valley Company had notice, when it accepted the privileges of the Act of 1858, and it must be

By a general law of California, passed April 14, 1853, provision was made for the formation of corporations for manufacturing, mining, mechanical and chemical purposes, or for the purpose of engaging in any species of trade or com merce, foreign or domestic. It enacted that three or more persons, who desired to form a company, for any of the purposes mentioned, should make, sign and acknowledge, before some officer competent to take the acknowledgments of deeds, a certificate stating the corporate name of the company, the objects of its formation, the amount of its capital stock, the time of its existence, which could not exceed fifty years, the number of shares of which the stock was to consist, the number of trustees and their names, who should manage the concerns of the company for the first three months, and the name of the city or town or county in which the principal place of business of the company was to be located, and file the certificate in the office of the clerk of the county in which such principal place of business was located, and a certified copy thereof, under the hand of the clerk and seal of the county court, in the office of the Secretary of State; and that and acknowledging it, and their successors, should be a body politic and corporate by the name stated in the certificate, and have succession for the period limited, and also such powers as are usually conferred upon corporate bodies.

presumed to have built its works and expended endeavor to show that this doctrine is unsound, Its moneys in the hope that neither a succeeding believing that in this case and in all others where Legislature, nor the people in their collective it is asserted it will work injustice. capacity when framing a Constitution, would ever deem it expedient to return to the old mode of fixing rates, rather than on any want of power to do so, if found desirable. The question here is not between the buyer and the seller as to prices, but between the State and one of its corporations as to what corporate privileges have been granted. The power to amend corporate charters is no doubt one that bad men may abuse, but when the amendments are within the scope of the power, the courts cannot interfere with the discretion of the Legislatures that have been invested with authority to make them. The organization of the Spring Valley Company was not a business arrangement between the State and the Company as contracting parties, but the creation of a new corporation to do business within the State and to be governed as natural persons or other corporations were or might be. Neither are the chartered rights acquired by the Company under the law to be [356] looked upon as contracts with the City and County of San Francisco. The Corporation was created by the State. All its powers came from the State and none from the city or county. As a Corporation it can contract with the city and county in any way allowed by law, but its pow-upon filing such certificate, the persons signing ers and obligations, except those which grow out of contracts lawfully made, depend alone on the statute under which it was organized, and such alterations and amendments thereof as may, from time to time, be made by proper authority. The provision for fixing rates cannot be separated from the remainder of the statute by calling it a contract. It was a condition attached to the franchises conferred on any corporation formed under the statute and indissolubly connected with the reserved power of alteration and repeal.

[357]

Under this Act, and an amendatory Act of
1855, corporations were formed for the purpose
of supplying the inhabitants of the City and
County of San Francisco with pure, fresh water.
Doubts were, however, expressed in some quar-
ters whether supplying the water was engaging
It follows that the court below was right in re-in any species of trade or commerce within the
fusing to award the writ of mandamus which was
prayed, and its judgment to that effect is affirmed.
True copy. Test:
James H. McKenney, Clerk, Sup. Court, U. s.

Mr. Justice Field, dissenting:

I am not able to concur with the court in its
decision, nor can I assent to the reasons assigned
for it. It seems to me that it goes beyond all
former adjudications in sanctioning legislation
impairing the obligation of contracts made by
a State with Corporations. It declares, in effect,
that whenever a corporation is created with the
reservation that the Legislature may alter or
repeal its charter, or under a law or Constitu-
tion which imposes such a reservation of power,
no contract can be made between it and the
State, which shall bind the State any longer
than she may choose to be bound; that she may
provide that certain rights shall be secured or
that certain payments shall be made in consider-
ation of work to be performed or capital to be
advanced by a corporation created under her
laws; and when the work is done and the capi-
tal is expended, she may legally, constitution-
ally, repudiate her pledges. In other words:
the decision seems to me to sauction the doc-
trine, that a contract between a State and a cor-
poration, created with the reservation mentioned,
is binding only upon the corporation. I shall
110 U. S.
U. S., Book 28

meaning of those Acts. Heyneman v. Blake,
19 Cal., 579. Accordingly, on the 22d of April,
1858, a general law was passed for the incor-
poration of water companies, which referred
to the provisions of the Act of 1853, and of the
amendatory Act of 1855; and declared that they [358]
should apply to all corporations, already formed
or that might afterwards be formed under said
Acts, for the purpose of supplying any city and
county, or any cities or towns, in the State, or
the inhabitants thereof, with pure, fresh water.
On the following day, April 23, 1858, another
Act was passed, which authorized George H.
Ensign and other owners of the Spring Valley
Water Works to lay down water pipes in the
public streets of the City and County of San
Francisco On the 19th of June, 1858, the
plaintiff was organized as a Corporation, refer-
ring in its certificate to these last two Acts; but
as the special Act relating to Ensign and others
was subsequently declared unconstitutional by
the Supreme Court of the State, the incorpo-
ration of the plaintiff rests upon the Act of April
22d, 1858, or rather upon the Acts of 1853 and
of 1855, to which it refers. This Act of 1858 gave
the Corporation thus formed the right to pur-
chase or to appropriate and take possession of,
and use and hold all such lands and waters as
might be required for the purposes of the Com-
pany, upon making compensation therefor;

[359]

with a proviso, however, that all reservoirs, reservoirs, into which the water was collected
canals, ditches, pipes, aqueducts and conduits until lakes were formed extending several miles
constructed by the Corporation, should be used in length. With aqueducts, pipes and other [360]
exclusively for the purpose of supplying the conduits, the water thus collected was carried
city and county and the inhabitants thereof to the city and distributed in mains. It is said
with pure, fresh water.
that the cost of these works to the Company
Having provided for the incorporation of the amounted to nearly $15,000,000. Before their
Company, the Act of 1858 proceeded to pre- construction and the introduction of this water,
scribe the terms upon which water should be the inhabitants of the city were poorly and in-
supplied to the city and county and to their in- adequately supplied. With the completion of
habitants, and the compensation which the Com- the works of the plaintiff all this was changed.
pany should receive therefor. It declared that Water was furnished to all persons calling for
the Company should furnish pure, fresh water it at their houses, and if desired in every room;
to the inhabitants for family uses, so long as the and to the city in abundance for all its needs.
supply permitted, at reasonable rates and with- The Law of 1858, as stated, required the Cor-
out distinction of persons, upon proper demand poration to furnish water, to the extent of its
therefor, and should furnish water, to the ex-means, to the city and county, in case of fire or
tent of its means, to the city and county, in case
of fire or other great necessity, free of charge.
The Act further declared that the rates to be
charged for water should be determined by a
board of commissioners, to be selected as fol-
lows: two by the city and county authorities
and two by the Water Company; and in case
the four could not agree to the valuation, then,
in that case, the four should choose a fifth per-
son, and he should become a member of the
board; and if the four commissioners could not
agree upon a fifth, then the sheriff of the county
should appoint him; and that the decision of a
majority of the board should determine the rates
to be charged for water for one year, and until
new rates should be established. The Act also
declared that the Board of Supervisors might
prescribe such other proper rules relating to the
delivery of water, not inconsistent with the Act
and the laws and Constitution of the State; and
that the Corporation should have the right, sub-
ject to the reasonable direction of the city au-
thorities as to the mode and manner of exercising
it, to use so much of the streets, ways and alleys
of the city and county or of the public road
therein, as might be necessary for laying its
pipes for conducting water into the city or coun-
ty or through any part thereof.

The certificate of incorporation of the plaintiff declared that the objects for which the Company was formed, were, to introduce pure, fresh water into the City and County of San Francisco and into any part thereof, from any point or place, for the purpose of supplying the inhabitants of the city and county with the same; and to do and transact all such business relating thereto as might be necessary and proper, not inconsistent with the laws and Constitution of the State.

The necessary supply of water could not be obtained from any natural streams or lakes on the peninsula, upon the upper end of which the city and county are situated. A small lake near the city furnished an insufficient supply and of inferior quality. The Company, therefore, soon after its incorporation, undertook to collect the required quantity in artificial reservoirs, as it descended in rain from the heavens.

At a distance of about twenty miles from the city, there is a natural ravine lying between the mountains near the ocean and the hills bordering the Bay of San Francisco. The Company acquired the lands within this ravine and on its sides, amounting, as represented by counsel, to eighteen thousand acres, and erected in it heavy walls at long distances apart, thus making great

other great necessity, free of charge. This pro-
vision has been construed by the Supreme Court
of the State to require the Company also to fur-
nish, without charge, water to sprinkle the
streets of the city, to flush its sewers and to ir-
rigate its public squares and parks. Its effect
will be only partially appreciated by those who
judge merely from the size of the city, and the
fact that the residences are chiefly constructed
of wood. There are other uses for a much
larger supply of water. The city is situated at
the upper end of a peninsula whose width is
only a little over six miles. The land there con-
sists principally of a succession of sand hills,
and the daily breezes of the ocean keep the sand
in almost constant motion, except where vegeta-
tion has fixed its roots. For this vegetation,
water is essential. With it, every plant will
thrive, even in the sand, and shrubs and trees
will grow in great luxuriance. The absence of
water from them for even a few months will
cause the plants and shrubs to droop, wither and
perish. The public squares of the city are nu-
merous; and the park, termed the Golden Gate
Park, because it is near the entrance of the bay
which is termed the "Golden Gate," covers
more than a mile square of these sand hills. On
these squares and this park, the constant use of
water from the reservoirs of the plaintiff is nec-
essary to keep the grasses, plants and shrubs
alive. Yet all water needed for these purposes
is, by the law in question, to be furnished with-
out charge. That was one of the burdens im-
posed upon the plaintiff, in addition to the re- [361]
quirement that its costly works, consisting of
aqueducts extending nearly thirty miles out of
the city and mains within it, exceeding one hun-
dred miles, should be used exclusively for the
purpose of supplying the city and county with
water. The reasonable rates allowed for the
water furnished to the inhabitants of the city
and county constituted the only compensation
of the Company for the enormous outlay to
which it was necessarily subjected, and for all
the benefits it undertook to confer. The law in
declaring that a company formed under it
should supply water to the city and county in
cases of great necessity free of charge, and to
their inhabitants on demand at reasonable rates,
in effect declared that the Company complying
with such terms should receive those rates for
water thus supplied to the inhabitants. When,
therefore, the plaintiff organized under the law,
introduced the water, a contract was completed
between it on the one part and the State on the
other, that so long as it existed and furnished

the water as required, it should receive this com- | between the State and the Company, within the
pensation. The provision for the creation of an prohibition of the Federal Constitution. There
impartial tribunal to determine each year what is no question of the continuance of a virtual
rates should be deemed reasonable, was the very monopoly in water, as supposed by the court.
life of the stipulation for a reasonable compen- There is nothing relating to a monopoly in the
sation. It would not have done to leave the case. Any five or more persons in California
compensation to be fixed by the Company alone, can, at any time, form themselves into a corpo-
as it might thus make its charges exorbitant; ration to bring water into the City and County
it would not have done to leave the rate to be of San Francisco on the same terms with the
fixed by the city authorities alone, as they would plaintiff; and such new corporation can, in the
be constantly under a great pressure to reduce same way, form reservoirs in the ravines in the
the rates below remunerative prices, as the rep- hills and collect water for sale, or bring water
resentatives of the city, itself à large consumer from the mountain lakes. Until within a few
for public buildings, and as representatives of years, any three or more persons could form
individual consumers, by whom they were elect- such a corporation. The statement that the
ed and to whom they were to look for the ap- plaintiff has a monopoly of any kind, in water,
proval of their acts, and because the individu- and desires to secure forever certain charges,
als composing those authorities would also be must therefore be taken as one inadvertently
consumers of the water equally with their con-made, without due consideration of the facts.
stituents. It was, therefore, provided that the
rates should be fixed by commissioners, to be
selected as stated above.

It would be difficult to conceive of a tribunal,
fairer in its organization or more likely to act
justly and wisely for both parties and guard
equally against extortion in prices on the one
hand and their unjust reduction on the other.
[362] Such a tribunal was formed and, from time to
time, reasonable rates for water were estab-
lished by it. But in 1879 the people of Califor-
nia formed a new Constitution, which declared
that the use of all water then appropriated, or
that might thereafter be appropriated, for sale,
rental or distribution, was a public use and sub-
ject to the regulation and control of the State
in the manner to be prescribed by law; that the
rates or compensation to be collected by any per-
son, company or corporation for the use of wa-
ter supplied to any city and county, or to its in-
habitants, should be fixed annually by the board
of supervisors of the city and county, or other
governing body of the same, by ordinance or
otherwise, in the manner that other ordinances
or legislative Acts or Resolutions are passed by
such body, and should continue in force for one
year and no longer; that such Ordinances or
Resolutions should be passed in the month of
February of each year, and take effect on the
first day of July thereafter. And it further de-
clared that any board or body failing to pass
the necessary Ordinances or Resolutions fixing
water rates, when necessary, within such time,
should be subject to peremptory process to com-
pel action at the suit of any party interested,
and should be liable to such further processes
and penalties as the Legislature might prescribe;
and that any person, company or corporation
collecting water rates in any city and county,
otherwise than as so established, should forfeit
its franchises and water works to the city and
county, where the same are collected, for pub-
lic use."
Art. XIV., sec. 1.

In July, 1878, a vacancy occurred in the board of commissioners, which the city authorities, after the adoption of the new Constitution, refused to fill, contending that, under its provisions, they were authorized to fix the water rates. The present proceeding was to compel them to proceed and complete the board; and the question is, whether that Constitution, in vesting the entire power in the Board of Supervisors-the governing authority of the City and County of San Francisco-impairs the contract

The only contention in the case is, whether the
clause of the new Constitution abrogating the
stipulation for reasonable rates to be established
by a commission created as mentioned, is a valid
exercise of power by the State.

That the provision of the Law of 1858, mak-
ing that stipulation, was a part of the contract
between the State and the Company, is not de-
nied by the court; nor is it denied that it was
also a part of the contract that the "reasonable
rates" should be determined by the commission-
ers designated. But the position taken, if I un-
derstand it, is, that the provision for their ap-
pointment is only that the rates shall be estab-
lished by an impartial tribunal, not necessarily
by one created as there prescribed; and that
the State has a right to determine what tribunal
shall be deemed an impartial one, and, by the
14th article of the new Constitution, has done so
and made the Board of Supervisors that tribu-
nal; and that this action was within the power
reserved by the original Act of incorporation.

[363]

Of course this view destroys all the substance and value of the stipulation for reasonable rates and renders it utterly delusive. The very object of the creation of the tribunal designated in the Law of 1858 was to take the establishment of the rates from the city authorities, who, it was believed then, as it is known now, would be influenced and controlled by their relation as representatives of the consumers by whom they are elected, as well as by the fact that the individual members composing those authori- [364] ties would be themselves consumers. Admitting for the argument that the meaning of the provision is only that the Company shall have an impartial tribunal, and not necessarily the one created as designated, it seems to me to be plain that such new tribunal cannot consist of the city authorities, against whose exclusive control the original contract expressly stipulated. Placing the regulation of rates with them is not furnishing another tribunal equally impartial with the one mentioned. From the very nature of its creation and its relation to others, the Board of Supervisors, an elective body, cannot be impartial. No tribunal, however honorable and high the character of the persons composing it may be, is or can be, in a legal sense, impartial, when they are individually interested, and the tribunal itself, in its representative character is interested in the determination to be made.

It need hardly be said that it is an elementary