THE EXERCISE OF JUDICIAL FUNCTIONS OUT OF COURT
A public officer, whose duties are mainly other than judicial,
may be invested with judicial power to be exercised only in
certain causes which may be brought before him, in disposing of
which he acts as a court. Such an one is a judge only when he is
holding court. When it is adjourned, no court exists of which he
could be a judge. Justices of the peace and parish judges are
officers of this description. But ordinarily judges are
appointed to hold some regular court, with stated sessions, which
is always in existence. To such a judge considerable powers of a
judicial nature are usually given for exercise when his court is
not in session.
The writ of _habeas corpus_, for instance, may be issued
either by a court of record or by a judge of such a court, if
applied for when the court is not in actual session. In the
latter case, the return of the writ is made to him, the trial had
before him, and judgment rendered out of court, or, as it is
styled, "at chambers." While sitting for such a purpose, he may
be regarded as exercising functions which really belong to the
court and acting as a part of it.
Statutes often, in case of a court having but a single judge,
give him power to hold special courts whenever he may think
proper. In such a case no very definite line is drawn between
what judicial business the judge does and what the court does.
While the proper and normal constitution of a court of record
requires the attendance not only of a judge, but of a clerk and a
crier or sheriff's officer, the only one whose presence is
indispensable is the judge. A District Judge of the United
States has this power of holding special courts, and is a court
wherever and whenever he pleases to transact judicial business,
whether he describes himself in such papers or process as he may
issue, as court or judge.[Footnote: The U. S. _v._ The
Schooner "Little Charles," 1 Brockenbrough's Reports, 382.]
The judges of courts having equitable jurisdiction act often out
of court in the issue of temporary injunctions. These are writs
directing some one to refrain from doing a certain act. They
generally direct it under pain of a specified pecuniary
forfeiture; but whether they do so or not, disobedience is
punishable also by arrest and imprisonment, being treated as a
contempt of court. The need of an injunction is often immediate.
It would be worthless unless promptly granted. When, therefore,
no court having power to issue one is in actual session, there
would be a failure of justice if the judge could not act to the
extent of granting temporary relief. Whether the injunction
should be made permanent is a subsequent question, to be
determined after a full hearing by the court. It may, in urgent
cases admitting of no delay, be issued _ex parte_, but
ordinarily the defendant is notified and has an opportunity for a
summary hearing, either orally or on affidavits, before action is
taken.
A similar power often vested in judges at chambers is that of
appointing a temporary receiver; that is, of some one to take
temporary charge of property in behalf of and as agent of the
court, when this seems necessary in order to preserve it. If the
affairs of a commercial partnership get into such a condition
that the partners cannot agree on the mode of conducting it, such
an appointment can be made to tide matters along for the time
being. So in case of an insolvent debtor his estate may, under
certain circumstances, be placed in a receiver's hands by a
summary order, issued out of court.
It may be added that by the statutes both of the United States
and of all the States many powers of a _quasi_-judicial
character are conferred on judges to be exercised out of court,
such as those of ordering the arrest of one suspected of criminal
conduct, examining into the charges against him on his arrest,
and admitting him to bail or sending him to jail for want of it.
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