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CORNELL 
 
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 LIBRARY 
 
"Tome.. Un.vers.ty Ubrary 
 JK305 -B71 
 
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 There are no known copyright restrictions in 
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 http://www.archive.org/details/cu31924030469476 
 
STUDIES IN HISTORY, ECONOMICS AND PUBLIC LAW 
 
 EDITED BY 
 
 THE UNIVERSITY FACULTY OF POLITICAL SCIENCE 
 
 OF COLUMBIA COLLEGE. 
 
 Volume V] 
 
 [Number 2 
 
 THE 
 
 SEPARATION OF GOVERNMENTAL POWERS 
 
 IN HISTORY, IN THEORY, AND IN 
 THE CONSTITUTIONS 
 
 WILLIAM BONDY, LL.B., PL.D. 
 
 Sometime Seligman Fellow in Political Science 
 
 COLUMBIA COLLEGE 
 
 New York 
 1896 
 
TABLE OF CONTENTS 
 
 PART I 
 
 1 he Separation of Governmental Powers in History, in Theory, and in 
 the Constitutions 
 
 CHAPTER I 
 
 PAGE 
 
 The Histbrical Development of the Separation of Governmental Powers. ... 7 
 
 CHAPTER II 
 The Theory of the Separation of Governmental Powers 12 
 
 CHAPTER III 
 The Distributing Clauses in the Federal and Commonwealth Constitutions . . 17 ^"' 
 
 CHAPTER IV 
 The Balance of Powers in Theory 35 
 
 CHAPTER V 
 The Balance of Powers in the Constitutions 39 
 
 CHAPTER VI 
 The Separation and Balance of Powers in the Territories of the United States. 47 
 
 CHAPTER VII 
 The Power of the Courts to Declare Statutes Unconstitutional 52 
 
 PART II 
 CHAPTER VIII 
 The Restricted Meaning of the Terms Legislative, Executive, and 
 
 Judicial in the Distributing Clause 69 y 
 
 PART III 
 
 The Legislature and the Courts 
 
 CHAPTER IX 
 
 Declaratory Statutes or Legislative Interpretation 86 
 
 (v) 
 
VI CONTENTS 
 
 CHAPTER X 
 
 PAGE 
 
 Legislative Assumption of Judicial Powers 94- 
 
 CHAPTER XI 
 Special Laws Authorizing the Sale of Lands 103 
 
 CHAPTER XII 
 Legislative Divorces 109 
 
 CHAPTER XIII 
 Legislative Inquests and the Power to Punish for Contempt 114 
 
 CHAPTER XIV 
 Judicial Repudiation of Legislative Powers 125 
 
 CHAPTER XV 
 Judicial Legislation 128 
 
 PART IV 
 
 The Legislature and the Executive 
 
 CHAPTER XVI 
 
 The Pardoning Power 132 
 
 CHAPTER XVII 
 
 The Power of Appointment and Removal . 137 
 
 CHAPTER XVIII 
 The Implied and Incidental Powers of the Executive\Department 144 
 
 PART V 
 
 The Executive and the Courts 
 
 CHAPTER XIX 
 
 Executive Immunity from Judicial Control irj 
 
 CHAPTER XX 
 The Power of Removal for Cause !6o 
 
 PART VI 
 
 Quasi Powers 
 
 CHAPTER XXI 
 The Delegation of Powers „ 1 f )2 
 
 CHAPTER XXII 
 Administrative Offices and Officers i»g 
 
PART I 
 
 THE SEPARATION OF GOVERNMENTAL POWERS 
 
 IN HISTORY, IN THEORY, AND IN THE 
 
 CONSTITUTIONS 
 
 CHAPTER I 
 
 THE HISTORICAL DEVELOPMENT OF THE SEPARATION OF 
 GOVERNMENTAL POWERS 
 
 In every state, be it monarchic, aristocratic or democratic, 
 there is a tendency to distribute the principal powers of gov- 
 ernment among distinct governmental organizations. 1 
 
 The earliest dawn of civilization discloses, as the most 
 primitive form of political organization, a warfaring society 
 grouped about a victorious chief. This powerful personage is 
 supposed to represent the fittest product of the period of bar- 
 baric liberty and self-help, which immediately preceded the 
 period of governmental organization. The chieftain's super- 
 iority in valor convinces his superstitious. admirers, as well as 
 himself, that he is of divine descent. 2 This superstition invests 
 him with a halo of glory and clothes him with sovereign 
 power. The religious sanction secures reverence for his per- 
 
 1 For the sense in which the term " State " is used herein, see " The Idea and 
 Conception of the State " and " The Forms of the State," Burgess' Pol. Sc. and 
 Const. Law, book ii, chapts. I and 3. See, also, " Tests of Governmental 
 Forms," Burgess' Pol. Sc. and Const. Law, vol. 2, pt. ii, bk. 3, pp. 1, 8. 
 
 2 " The common god of the English people, as of the whole German race, was 
 Woden, the war god, whom every German tribe held to be the first ancestor of 
 its kings." — Green, A Short History of the English People, p. 42. See also 
 " The Origin of the State," Burgess' Pol. Sc. and Const. Law, bk. ii, ch. 2. 
 
 139] 7 
 
8 THE SEPARATION OF [140 
 
 son and obedience for his laws. He experiences no opposi- 
 tion in immediately exercising all governmental powers. He 
 is priest, war chief, judge and legislator. 1 
 
 As war begets the king, so peace begets the judge and legis- 
 lator. As his followers become peaceable and civilized, the 
 king is appealed to for the enforcement of internal order 
 and justice rather than for protection against external force. 
 As these appeals grow numerous and the duty of satisfying 
 them becomes more intricate, the sovereign, either as a matter 
 of convenience, or in order to secure greater sanction for his 
 acts and decisions, calls about him a council of wise and pow- 
 erful men to hear, and to assist in determining, the questions 
 presented, and also to advise him in the administration of his 
 government. 
 
 This royal council, owing to the fact that the functions required 
 in determining individual appeals differ from those required in 
 formulating rules to be observed in the administration of gov- 
 ernment, soon develops into two distinct bodies, the legislature 
 and the judicial court. 
 
 Notwithstanding the existence of these two advisory bodies, 
 the king continues to execute his own will, which is still the 
 supreme law. But, the intimacy necessarily arising between 
 the king and his advisers soon breeds contempt. The short- 
 comings of the sovereign disclose to the wise and powerful 
 men whom he has invited to assist him, the pious fraud which 
 he has been exercising upon them. As they assert themselves, 
 the sovereignty passes from the king to the lords; the state 
 passes from the monarchic to the aristocratic form. The 
 nobles, possessed of the sovereign power of the state, can 
 now themselves assume, or can delegate to such authorities as 
 they deem proper, the powers which the government may be 
 called upon to exercise. They generally satisfy themselves 
 by exercising or participating in the exercise of an unlimited 
 
 1 See Maine, Early Law and Custom, ch. vi, p. 160. 
 
141] GOVERNMENTAL POWERS g 
 
 legislative authority. Self-interest, if not convenience, pre- 
 vents them from asserting with impunity all governmental 
 authority. They dare not abolish the courts or the kingship, 
 lest by so doing they may reveal to the masses their own dis- 
 covery of the humble origin of their king. They fear lest in 
 the absence of a general belief in the divine source of author- 
 ity, the people may he led to consider their own right to assume 
 sovereign powers. The barons therefore of their own accord 
 now employ the king as their agent to execute their laws, and 
 they likewise employ the courts to construe them. 
 
 When at last enlightenment and education have sufficiently 
 spread state-consciousness among the masses, and the sove- 
 reign power in fact has passed from the nobility to the people, 
 the latter resent the power of the few to concentrate or distri- 
 bute at their pleasure all governmental authority. They know 
 that where executive, legislative and judicial power may be 
 assumed by a single person, or body of persons, there can be 
 no guarantee against the exertion of dreaded despotic power. 
 Hence, in delegating and distributing-'governmental power, and 
 in creating and organizing governmental agencies, they en- 
 deavor to secure themselves as far as possible against the exer- 
 cise of despotic power by the government which they estab- 
 lish, or by any part thereof. 
 
 Whereas, in a monarchic form of state, the sovereign power 
 is generally identified in some manner with the executive de- 
 partment of its government, and, in the aristocratic form of 
 state, in some manner with the legislative department of its 
 government, the conditions materially change when ^the state 
 has become democratic, that is, when the sovereign power has 
 passed from the nobility to the masses. Owingsto the great 
 numbers of which the democratic state is composed, it is im- 
 practicable in fact, if possible in theory, for such state to exer- 
 cise governmental authority immediately, or even to°be iden- 
 tified in any manner whatsoever with any of the departments 
 exercising governmental powers. The democratic state ac- 
 
IO 
 
 THEJSEPARATION OF [142 
 
 cordingly delegates the powers of government to organiza- 
 tions distinct from its own original sovereign organization. It 
 generally delegates the principal powers of government to the 
 already naturally and historically developed departments, the 
 executive, legislative and judicial departments; and it organ- 
 izes and employs each of these departments as its agent. 
 But, since neither of these departments any longer exercises 
 sovereign powers, but only delegated authority, and since each 
 owes its existence to the will of the state only, and not to the 
 will of any of the other departments, each is now independent 
 of and co-ordinate with the others. 
 
 This tendency of a state, be it monarchic, aristocratic or 
 democratic, to distribute its principal powers of government 
 among distinct organizations, may briefly be illustrated by the 
 history of England, which country first attracted the attention 
 of the philosopher to the relation existing between the separa- 
 tion of governmental powers, and well-regulated civil liberty. 
 
 Shortly after the settlement of the Anglo-Saxons in England, 
 their king summoned about him the witenagemote, or assem- 
 bly of wise men, whom he consulted about the government of 
 his state. Subsequently the witenagemote not only made laws, 
 imposed taxes, concluded treaties, and advised the king as to 
 the appointment and removal of officers, but it also exercised 
 jurisdiction as a supreme court. Incessant wars, however, 
 checked the further development of the witenagemote. 1 
 
 After the Norman conquest we again find all public functions 
 concentrated in the king. He was the state as well as the 
 government. In the exercise of his governmental powers, the 
 king was soon assisted by a council known as the Curia Regis. 
 After a time, a portion of this body, at first specially charged 
 with the management of judicial and revenue business, devel- 
 oped into a court; the council, by addition to it of representa- 
 tives from the cities and boroughs, becoming the Parliament. 
 
 1 Green, A Short History of the English People, pp. 66, 607, 685. 
 
143] G0 VERNMENTAL PO WERS j t 
 
 When, in about the year 1 2 1 5 , the sovereign power over Eng- 
 land had passed from the kingship to the nobility, the barons, 
 the state itself, assumed the power of making laws, which were 
 even to govern the king himself. But they did not abolish the 
 kingship. They reduced it from the position of sovereign to 
 that of the executive department of their government. 
 
 When, by the year 1832, the sovereign power had finally 
 passed from the nobility to the masses of England, the state 
 adopted as its governmental agencies the kingship, the judiciary, 
 and the parliament. 1 
 
 1 See " Formation of the Const, of Gt. Britain," Burgess' Pol. Sc. and Const. 
 Law, bk. hi, ch. i. 
 
 The whereabouts of the legislative, judicial and executive powers in ancient and 
 modern states, and the history of the theory of the separation of powers, are learn- 
 edly considered by Fuzier-Herman in a book entitled La Separation des Pouvoirs. 
 
CHAPTER II 
 
 THE THEORY OF THE SEPARATION OF GOVERNMENTAL POWERS 
 
 The analysis of government into three parts is as old as 
 Aristotle. He already indicated the distinction existing be- 
 tween the three departments. In his Politics, he says that in 
 every state there are three divisions : the general assembly de- 
 liberating upon public affairs (to ~&ovktv6\ie.vov wepl t&v koivov), a body 
 of magistrates (to Tree 1 ™? <W s 0>" anc ' a judiciary (jb (Sonifoi/). 1 
 
 Cicero asserted " Statu esse optimo constitutam rem publi- 
 cam, quae ex tribus generibus illis, regali et optumati et populari, 
 confusa modice." 2 
 
 Milton, in his " Ready and Easy Way to establish a Free 
 Commonwealth," advocated the concentration of all powers in 
 one body. According to Turgot's idea of a perfect govern- 
 ment, a single assembly is to be possessed of all authority, 
 legislative, executive and judicial. 3 
 
 The tripartite division of the powers of government escaped 
 further serious notice until John Locke in his treatise on Civil 
 Government declared that in every state there were three pow- 
 ers, the legislative, executive and federative. 
 
 1 John Adams says that the practicability of a republic in which there is a gov- 
 ernor, a senate, and house of representatives, has been doubted by Tacitus, though 
 he admitted the theory to be laudable. (Adams' Defense of the American Con- 
 stitutions, preface, page 19.) Tacitus said "Cunctas nationes et urbes populus 
 aut primores aut singuli regunt : delecta ex iis et consociata rei publicae forma 
 laudari facilius quam evenire, vel si evenit, haud diuturna esse potest.''^ (Tacitus, 
 Ann., lib. iv. cap, xxxiii.) 
 
 2 Cicero's De Re Publica, Lib. II {Fragmenta). 
 
 3 See Adams' Def. of the American Const., pp. 365, et seq. ; Story's Commen- 
 taries on the Const., sec. 5 20, n. 3 ; La Sep. des Pouvoirs, pp. 8, 10, 54. 
 
 12 [144 
 
145] GOVERNMENTAL POWERS I3 
 
 Speaking of federative power, he says, " This therefore con- 
 tains the power of war and peace, leagues and alliances, and 
 all transactions with all persons and communities without the 
 commonwealth, and may be called federative, if any one 
 pleases." 
 
 It therefore appears that by federative power Locke meant 
 what is now commonly known as diplomatic power. 1 
 
 He advocated placing federative and executive power in the 
 hands of the same person. 2 
 
 He maintained that " the legislative and executive powers 
 are in distinct hands in all moderated monarchies and well- 
 framed governments." But it is surprising that he overlooked 
 the importance of the independence of judicial power in 
 every government, since he understood justice to be the end 
 of government. 
 
 His classification of powers as legislative, executive, and fed- 
 erative, is unscientific, especially if he meant to base it on the 
 nature of such powers, because the proper exercise of diplo- 
 matic power generally requires the exercise of powers legisla- 
 tive, executive and even judicial in their nature. 
 
 His recognition of only the executive and legislative powers 
 of a government, and his rejection of the judicial power, has 
 been affirmed by publicists who maintain that the judicial is 
 only a subdivision of, the executive power. 3 
 
 Montesquieu was the first to demonstrate that the separation 
 of governmental powers is indispensable to civil liberty. He 
 was the first to introduce the theory of the separation of gov- 
 ernmental powers as a fundamental principle of our modern 
 political science. 
 
 " When the legislative and executive powers are united in 
 the same person or body," says Montesquieu, " there can be 
 
 1 See post, page 76. 
 
 2 Locke on Civil Government, chap, xii; La Separation des Pouvoirs, pp. 11 
 164, 178, 280. 
 
 3 La Separation des pouvoirs, pp. II, 165. 
 
j 4 THE SEPARATION OF ^ -J, [146 
 
 no liberty, because apprehensions might arise lest the same 
 monarch or senate should enact tyrannical laws, to execute 
 them in a tyrannical manner." Again, " There is no liberty, if 
 the judicial power be not separated from the legislative and ex- 
 ecutive. Were it joined with the legislative, the life and 
 liberty of the subject would be exposed to arbitrary control, 
 for the judge would then be the legislator. Were it joined to 
 the executive power, the judge might behave with the vio- 
 lence of an oppressor. There would be an end of everything, 
 were the same man or the same body, whether of nobles or of 
 the people, to exercise these three powers, that of enacting 
 laws, that of executing the public resolutions, and that of try- 
 ing the causes of individuals." 1 
 
 Blackstone reaches the same conclusion. He says: "Where- 
 ever the right of making and enforcing the law is vested in the 
 same man or one and the same body of men, there can be no 
 public liberty. The magistrate may enact tyrannical laws and 
 execute them in a tyrannical manner, since he is possessed, in 
 his quality of dispenser of justice, with all the power which he 
 as legislator thinks proper to give himself." 2 As to the neces- 
 sity of the separation of the judicial from the legislative and 
 executive power, he says, " Were it joined with the legislative, 
 the life, liberty, and property of the subject would be in the 
 hands of arbitrary judges whose decisions would be regulated 
 only by their opinions, and not by any fundamental principles 
 of law; which though legislators may depart from, yet judges 
 are bound to observe. Were it joined with the executive, this 
 union might soon be an overbalance of the legislative." 3 
 
 Many minor advantages which are gained by a division of 
 governmental powers readily suggest themselves. Thus, where 
 the legislative and judicial powers are exercised by distinct 
 
 1 Esprit des Lois, livre xi, chapitre vi, " De la Constitution <T Angleterre." 
 
 2 Commentaries, vol. i, p. 146. 
 
 3 Commentaries, 269. 
 
147] G ° VERNMENTAL PO WERS ! 5 
 
 bodies, the general laws are made by one body of men without 
 foreseeing whom they may affect, and when made, they must 
 be applied by the other, let them affect whom they will. The 
 legislature will then have no private interests to serve, conse- 
 quently its laws will be suggested by considerations of univer- 
 sal effects and tendencies, which always produce impartial and 
 commonly advantageous laws. 1 
 
 Only one criticism upon Montesquieu's theory seems to 
 merit consideration. It has been said that the judicial is not 
 distinguishable from theTxecutive power, properly speaking, 
 but is only a subdivision of the latter. All that is required, so 
 it is argued, to carry on government, is that the law should be 
 expressed and executed. Accordingly, two powers appear 
 originally in every state, the legislative and the executive; and 
 of these the latter, the executive power, is generally divided 
 into two organs : (j.) the administrative, which is active ; and 
 {2) the judicial, which is inactive, has no initiative, and is only 
 exercised when a controversy arises. 2 
 
 It seems, however, that judicial power is executive only 
 in the sense in which legislative power is executive. Every 
 department of government and every governmental power is 
 executive in so far as it executes the will of the state. Every 
 department of government is organized, and every power of 
 government is exercised, for the express purpose of executing 
 that will. Neither department executes the independent will 
 of any of the other departments, except so far as the will of 
 the other departments is also the. will of the state. 
 
 It might with equal propriety be said that all that is required 
 to carry on government is that laws should be expressed and 
 executed, and that two powers appear in every state, the legis- 
 lative and the executive ; that the legislative power is gener- 
 ally divided into two organs, the legislative, which is active, 
 and which at its pleasure interprets and expresses the will of 
 
 1 Paley's Moral Philosophy, book vi, chap. viii. 
 * La Separation des Pouvoirs, pp. 12, 179 n., 295. 
 
iQ THE SEPARATION OF [148' 
 
 the state, and the judicial, which is inactive and has no initia- 
 tive, but which interprets and expresses the will of the state 
 whenever a legal controversy arises as to what that will is. 
 
 Nor is it exact to say that two powers appear originally 
 in every state, the legislative and the executive. The state 
 from the first moment of its existence possesses every con- 
 ceivable power. 1 What may be true is that historically the 
 state established a distinct executive and legislative depart- 
 ment of government before it established a distinct judicial 
 department 2 
 
 Should it be conceded that the judicial is not theoretically 
 distinguishable from the executive power, or even from the 
 legislative power, this would not conflict with the theory of 
 Montesquieu, which, without distinguishing between the na- 
 ture of the different governmental powers, asserts that it is in- 
 dispensable to civil liberty that the power of enacting laws, 
 and of interpreting and executing them, be these powers alike 
 or different in their nature, should be vested in three depart- 
 ments distinct and separate from each other. 
 
 1 " L' etat est fait sur le modele de 1' homme, il y a dans 1' £tat comme une raison 
 qui medite, comme une volonte qui agit, comme un sens moral qui ramene tous les 
 cas particuliers aux regies generates tracges par la raison, par la conscience."" 
 La Separation des Pouvoirs, p. 18. 
 
 2 Montesquieu says, " II y a, dans chaque etat, trois sortes de pouvoirs, la puis- 
 sance legislative, la puissance executrice des choses qui dependent du droit des- 
 gens ; et la puissance executrice de celles qui dependent du droit civil. . . . On 
 appellera cette derniere la puissance de juger ; et 1' autre, simplement la puissance 
 executrice de 1' 6tat." Esprit des Lois, Liv. xi, c. vi. For criticisms of Montes- 
 quieu's theory see La Separation des Pouvoirs, p. 181 et seq. 
 
CHAPTER III 
 
 THE DISTRIBUTING CLAUSES IN THE CONSTITUTION OF THE 
 UNITED STATES AND IN THE COMMONWEALTH CONSTITUTIONS 
 
 It now becomes proper to refer to the unanimity with which 
 the theory of the separation of governmental powers was ac- 
 cepted by the American Revolutionists. In his farewell ad- 
 dress Washington says: "The spirit of encroachment tends to 
 consolidate the powers of all departments in one, and thus to 
 create, whatever the form of government, a real despotism." 
 James Madison forcibly says : " The accumulation of all 
 powers, legislative, executive, and judicial, in the same hands, 
 whether of one, a few, or many, whether hereditary, self-ap- 
 pointed, or elective, may justly be pronounced the very defini- 
 tion of tyranny."*) In this maxim Thomas Jefferson thoroughly 
 concurred. He says : " The concentrating these in the same 
 hands is precisely the definition of despotic government. It 
 will be no alleviation that these powers will be exercised by a 
 plurality of hands, and not by a single one. One hundred and 
 seventy-three despots would surely be as oppressive as one." 2 
 John Adams thought : " It is by balancing each of these three 
 powers against the other two, that the efforts in human nature 
 toward tyranny can alone be checked and restrained and any 
 degree of freedom preserved." 3 
 
 " I agree," says Hamilton, " that there is no liberty if the 
 power of judging be not separated from the legislative and 
 executive powers." 4 
 
 In more modern times, Webster says : " The separation of 
 
 1 Federalist, no. xlvii. 2 Notes on Virginia, p. 195. 
 
 3 Works of yohn Adams, p. 186. * Federalist, no. xlviii. 
 
 149] l 7 
 
j8 the separation of [150 
 
 the departments so far as practicable, and the preservation of 
 clear lines between them, is the fundamental idea in the cre- 
 ation of all our constitutions, and doubtless the continuance 
 of regulated liberty depends on maintaining these boundaries." 1 
 
 Justice Miller says : " It is believed to be one of the chief 
 merits of the American system of written constitutional law 
 that all powers entrusted to the government, whether state or 
 national, are divided into the three grand departments, the ex- 
 ecutive, the legislative and the judicial; that the functions 
 appropriate to each of these branches of government shall be 
 vested in a separate body of public servants, and that the per- 
 fection of the system requires that the lines which separate 
 and divide these departments shall be broadly and clearly de- 
 fined. It is also essential to the successful working of the 
 system, that the persons entrusted with power in any one of 
 these branches shall not be permitted to encroach upon the 
 powers confided to the others, but that each shall by the law 
 of its creation be limited to the exercise of the powers appro- 
 priate to its own department, and no others." 2 , 
 
 Great Britain governed each of the thirteen American com- 
 monwealths through a governor, legislature, and courts, with 
 such powers and jurisdiction in each of these departments as 
 its parliament willed. 
 
 When the united colonists relieved themselves of their sub- 
 jection to what had become a foreign sovereignty, and they 
 themselves assumed sovereign powers, they preserved these 
 three departments in each one of their commonwealths, as 
 their chief local governmental organs therein. 
 
 When they adopted the Articles of Confederation, they es- 
 tablished a very limited central government, but retained for 
 their local governments the three departments already existing 
 in each of their commonwealths. The whole power of the 
 central government they vested in a Congress, consisting of a 
 
 1 Webster's Works, vol. iv, p. 122. 
 
 2 Kilbourn vs. Thompson, 103 U. S. 188. 
 
I 5 I ] GO VERNMENTAL PO WERS ! g 
 
 single body. " The organization of the whole powers of the 
 general government in a single assembly without any separate 
 or distinct distribution of the executive, judicial and legislative 
 functions," Judge Story considered one of the serious defects of 
 the Confederation, which ultimately led to its decline and fall. 1 
 Of the twelve commonwealths which, prior to 1787, had 
 adopted constitutions, six had inserted in their organic law a 
 general distributing clause, expressly distributing the principal 
 governmental powers among the legislative, executive, and judi- 
 cial departments of their. governments. These were Georgia, 
 Maryland, Massachusetts, New Hampshire, North Carolina, 
 and Virginia. The first constitution of Massachusetts, adopted 
 in 1780, already provided that " in the government of this 
 commonwealth, the legislative department shall never exercise 
 the executive and judicial powers or either of them ; the ex- 
 ecutive shall never exercise the legislative and judicial powers 
 or either of them ; the judiciary shall never exercise legis- 
 lative or executive powers or either of them : to the end that 
 it may be a government of laws and not of men." 2 The consti- 
 tution of New Hampshire adopted in 1784 declared that "the 
 legislative, executive, and judiciary powers ought to be kept as 
 separate from and independent of each other as the nature of a 
 free government will admit, or as is consistent with that chain 
 of connection that binds the whole fabric of the constitution in 
 one indissoluble bond of unity and amity."3 Maryland 
 adopted the maxim in the most unqualified terms, declaring 
 " that the legislative, executive and judicial powers of govern- 
 ment ought to be forever separate and distinct from each other." 4 
 
 1 Commentaries on the Const., p. 189. See Federalist, no. xxii, where Hamil- 
 ton says that the want of a judiciary power crowned the defects of the Confederation.. 
 
 2 See Poore's Federal and State Constitutions ; Federalist, no. xlvii. 
 "Art. 37, Poore's Federal and State Constitutions, p. 1280. 
 
 4 Art. 6, " Constitution adopted 1777," Poore's Federal and State Constitutions, - 
 p. 817. See also Constitution of Virginia of 1776, Constitution of Georgia of 
 1777, art. I, and Constitution of North Carolina of 1776, art. 4. Virginia was 
 the first State which introduced the clause into her organic law. 
 
20 THE SEPARATION OF [152 
 
 The authorities above referred to suffice to show how sat- 
 urated with the philosophy of Montesquieu were the minds of 
 those distinguished statesmen who, having conquered for us 
 our independence, firmly secured our liberty. It is, therefore, 
 not surprising for us to find that when the American state, as 
 represented in the National Convention of 1787, was about to 
 dispense governmental powers, it adopted as its first resolution 
 that '" a national government ought to be established, consist- 
 ing of a supreme legislature, judiciary, and executive." 1 " From 
 this fundamental proposition sprang the subsequent organiza- 
 tion of the whole government of the United States, and it lies 
 at the bottom of all our institutions, state as well as national." 2 
 Since that time all the commonwealths, excepting New York, 
 Pennsylvania, Ohio, Wisconsin, Kansas, Delaware, North Da- 
 kota, and Washington, have enacted a general distributing clause 
 expressly providing for the tripartite division of governmental 
 powers among the legislative, executive, and judicial depart- 
 ments. For instance, the present constitution of Connecticut 
 provides that the powers of government shall be divided into 
 three distinct departments, and each of them confided to a 
 separate magistracy, to wit : those which are legislative to one, 
 those which are executive to another, and those which are 
 judicial to another. Of those that have adopted the clause, 
 all excepting Rhode Island, Connecticut, and North Carolina 
 have further provided that no person or collection of persons 
 ^•exercising the functions of one department shall assume or dis- 
 charge the functions of any other ; and all excepting Rhode 
 
 1 Journals of the Convention, pp. 82, 83, J 29, 207, 215. Specific provisions 
 •separating governmental powers were inserted into the constitution of 1791 of Po- 
 land, the constitutions of 1791 and 1795 of France, and the Hawaiian constitution 
 of 1894. In the conference of 1887, between England, Germany, and the United 
 ^States in regard to Samoa, Mr. Bayard, then Secretary of State of the United 
 'States, objected to the proposed German plan for the government of the islands on 
 (the ground that it ultimately vested legislative, judicial, and executive powers in 
 the same person. 
 
 2 Story's Com. on the Const., sec. 519. 
 
153] GOVERNMENTAL POWERS 2I 
 
 Island, Connecticut, New Jersey, North Carolina, Louisiana, 
 New Hampshire, Massachusetts, Maryland, Virginia, West 
 Virginia, and South Carolina, further qualify the provision by 
 adding that the powers should be separated except in cases ex- 
 pressly directed or permitted by their constitutions. 1 
 
 The constitution of South Dakota prescribes : " The powers 
 of the government of the state are divided into three distinct 
 departments — the' legislative, executive, and judicial ; and the 
 powers and duties of each are prescribed by this constitution.;' 2 
 
 Although the Constitution of the United States and the 
 constitutions of New York, Pennsylvania, Ohio, Wisconsin, 
 Kansas, Delaware, Washington, and North Dakota contain no 
 general distributing clause, yet the constitution of Ohio pro- 
 vides that the legislature can exercise no judicial powers not 
 expressly conferred by the constitution ; and the constitution 
 of every commonwealth, excepting New York, expressly vests 
 by three separate provisions the legislative power in the legis- 
 lature, the executive in the governor, and the judicial in the 
 judiciary. 
 
 As a result of the first resolution adopted by the Constitutional 
 Convention of 1787, the Constitution of the United States also 
 provides that "all legislative powers herein granted shall be 
 vested in a Congress of the United States which shall consist 
 of a Senate and House of Representatives ;" 3 that "the execu- 
 tive power shall be vested in a President of the United States 
 of America ;" 4 and that " the judicial power of the United States 
 shall be vested in one Supreme Court and in such inferior 
 courts as Congress may from time to time ordain and estab- 
 lish." 5 But the Constitution of the United States does not 
 prohibit commonwealth legislatures from exercising judicial 
 functions. 6 
 
 1 Stimson's American Statute Law, sec. 200. 2 Art. ii. 
 
 3 Constitution of the United States, art. I, Sec. I. 
 
 * Art. 2, sec. 1. 5 Art. 3, sec. 1. 
 
 6 Satterlee vs. Mathewson, 2 Peters, 413. There is no provision in the Consli- 
 
22 THE SEPARATION OF [154 
 
 By applying well-known rules of construction to their con- 
 stitutions, all commonwealths, including New York, have 
 distributed their principal governmental powers among three 
 Independent departments, irrespective of the fact whether 
 Ihey have enacted a distributing clause or not. Since differ- 
 ent classes of power in every commonwealth are appor- 
 tioned to the different departments, and since all departments 
 derive their authority from the same instrument, there is an 
 implied exclusion of each department from exercising the 
 functions conferred upon the others. The apportionment to 
 the legislature of all legislative power does not sanction the 
 exercise of executive or judicial power; and the granting of 
 judicial power must be regarded as an exclusive grant covering 
 the whole power, subject only to the limitations of the constitu- 
 tion itself. I On this subject, Judge Coms.tock said : " I entertain 
 no doubt that, aside from the special limitations of the constitu- 
 tion, the legislature cannot exercise powers which are in their 
 •nature essentially judicial or executive. These are by the 
 constitution distributed to other departments of the govern- 
 ment. It is only the legislative power which is vested in the 
 senate and assembly ; but where the constitution is silent and 
 there is no clear usurpation of the powers distributed to the 
 other departments, I think there would be great difficulty and 
 great danger in the attempt to define the limits of this power." 2 
 On still another occasion, the court, after referring to the distri- 
 bution of powers in the Constitution of the United States, said: 
 
 tution of the United States prohibiting a commonwealth legislature from granting 
 new trials and appeals. — Calder vs. Bull, 3 Dall. 386. " Before the United States 
 Constitution was adopted every commonwealth, except as prohibited by its own 
 constitution, might have passed a bill of attainder or ex post facto law as a gen- 
 eral result of its sovereign legislative power, and such a prohibition would not be 
 implied from a constitutional provision that the legislative, executive, and judicial 
 departments shall be separate and distinct." — Story's Com. on the Const., Sec. 1373. 
 See Cooper vs. Telfaire, 4 Dall. 14. 
 
 1 People vs. Draper, 15 N. Y. 532, 543. 
 
 2 Wynehamer vs. People, 13 N. Y. 378, 391. 
 
155] GOVERNMENTAL POWERS ~"23~\ 
 
 " Although no similar declaration is contained in the constitu- 
 tion of this state, still it is a recognized principle that in the di- V 
 vision of powers among the great departments of government, 
 the judicial power has been committed to the judiciary, the 
 executive power has been committed to the executive depart- 
 ment, and the legislative to the legislature, and that body has no 
 power to assume the functions of the judiciary to determine 
 controversies among citizens, or even to expound its own laws 
 so as to control decisions of the court in respect to past trans- 
 actions." * Chancellor Kent says : " If the provision that the 
 legislative and judicial powers shall be preserved separate and 
 distinct be not found in our own constitution, it exists there in 
 substance in the organization and distribution of the powers of 
 the departments, and in the d eclaration that the ' supreme leg- 
 islative power ' shall tj^yestecTha the Senate and the Assembly. 
 No_niaximJias_heen -more universally received and cherished 
 as a vested principle of freedom,; an d without having recourse 
 to the authority of elementary writers or to the popular con- 
 ventions of Europe, we have a more commanding authority in 
 the sense of the American people that the right to interpret 
 the law does and ought to belong exclusively to the courts of 
 justice." 2 The executive can do no legislative act, nor the 
 legislature any executive act, and neither can exercise judicial 
 authority. 3 
 
 The case of the Supervisors of Elections 4 is the only one 
 found in which a distinction is intimated on account of the dis- 
 tributing clause. The court in this case was called upon to 
 decide upon the constitutionality of a law empowering the 
 courts to designate supervisors of election. The court ob- 
 served : " The statute in question acquires no support from the 
 
 1 People ex rel. McDonald vs. Keeler, 99 N. Y. 463. 
 
 2 Dash vs. Van Kleeck, 7 Johns. 477; Ogden vs. Blackledge, 2 Cranch, 272; 
 People vs. Board of Supervisors, 16 N. Y. 432. 
 
 9 Still vs. Corning, 15 N. Y. 297. 
 4 1 14 Mass. 247. 
 
24 THE SEPARATION OF [156 
 
 act of Congress conferring power to appoint similar officers 
 upon the judges of the Circuit Court of the United States, or 
 in the action of the judges pursuant thereto, because the Con- 
 stitution of the United States does not so explicitly restrain the 
 judges from exercising executive or political functions as does 
 the constitution of this commonwealth, and so far as we are 
 informed, without any question of constitutional power being 
 raised or argued." I The court, however, admitted its power 
 to appoint officers whom it designated as ministerial, and 
 officers exercising powers judicial in their nature. 
 
 In addition to the distributing clause^there are also. provi- 
 sions in all the constitutions establishing the principal depart- 
 ments of government in such manner that each exists inde- 
 pendently of the others, as well as provisions granting to each 
 
 , such powers as were deemed necessary in order 'foguard each 
 against any undue control or interferenee,by„the others. Some 
 of these provisions will be recognized as re-enactments of prin- 
 ciples established in England by Parliament in order to insure 
 its independence, and that of the courts against encroachments 
 by the crown. Many of these, had they not been expressly 
 constituted a part of our fundamental law, would have been 
 made such by judicial construction, for without them the 
 
 r departments would not be independent. 
 
 lT_p preserve their independence it is essential that no one 
 department shall be dependent upon the others in tenure.} The 
 governors, the members of the legislature and the judges are 
 accordingly, as a general rule, elected by the people of their 
 respective commonwealths. The only exception to the uni- 
 formity of this rule is found in the case of the judges. They 
 are in twenty-five commonwealths elected by the people. But 
 in order to prevent political contamination from polluting the 
 sources of justice, Rhode Island, Vermont, Virginia, South 
 Carolina and Georgia provide for their election by the legisla- 
 
 1 As to the constitutionality of the act of Congress, see Iu re Citizens of Cincin- 
 nati, 2 Flippin, 228. 
 
157] GO VERNMENTAL PO WERS 2 5 
 
 ture, and the Constitutions of the United States, Massachu- 
 setts, Connecticut, New Hampshire, Delaware, Maine, Missis- 
 sippi, Louisiana, New Jersey and Florida provide for their 
 appointment by the chief executive officer, and, in some cases, 
 for the confirmation of the appointment by a council or a branch 
 of the legislature. 1 
 
 To further insure the independence of the judiciary, some 
 constitutions declare that the judges shall hold their offices 
 during good behavior. 2 
 
 {Among the provisions securing a separation of the depart- 
 ments is that found in the Constitution of the United States, 
 and the constitution of every commonwealth, that each house 
 of the legislature shall be judge of the qualifications, elections 
 and returns of its own members^} 
 
 The correctness of the decision of either house of the legis- 
 lature that persons claiming seats therein have been duly elected 
 members, cannot be questioned or inquired into by the exec- 
 utive or judicial departments; 4 and a law cannot be assailed as 
 void because a portion of the members who voted for it, and 
 without whose votes it would not have had the requisite ma- 
 jority, had been declared elected by the legislature in defiance 
 of law, and to the exclusion of others who had a majority of 
 legal votes. 5 Nor have the commonwealth courts jurisdiction 
 
 1 Stimson's American Statute Law, art. 56; Const, of North Dakota, sec. 90; 
 of Wyoming, art. 5, sec. 4; of Washington, art. 4, sec. 3; of Montana, art 8, 
 sec. 6; of South Dakota, art. 5, sec. 1 ; of Idaho, art. 5, sec. 6; Const, of United 
 States, art. 2, sec. 2, \ 2. For a comparative study of the organization and powers 
 of each of the three main governmental departments in England, France, Ger- 
 many, and the United States, see Burgess' Pol. Sc. and Const. Law, vol. 2. See 
 Federalist, nos. 78-82. 
 
 2 Stimson's American Statute Law, sec. 561 ; United States Const., art. 3, sec. I. 
 See Federalist, no. 48, and Story's Com. on the Constitution, vol. 2, p. 416. 
 
 3 Story's Com. on the Constitution, vol. I, p. 604. 
 
 * Opinion of Judges, 56 N. H. 570. See State vs. Jarrett, 17 Md. 309; People 
 ex rel. Sherwood vs. Bd. of Canvassers, 129 N. Y. 360. 
 
 * People vs. Mahany, 13 Mich. 481. 
 
26 THE SEPARATION OF [158 
 
 to decide whether the election of United States Senators by 
 the commonwealth legislatures conforms to the regulations of 
 Congress, or is void, such questions belonging exclusively to 
 the United States Senate. 1 
 
 The same necessity not existing therefor, the power to judge 
 of the election of their own members is not possessed by muni- 
 cipal legislative bodies, 2 nor by boards of supervisors, 3 except 
 when specially conferred by law. 
 
 In the absence of express constitutional prohibition, the 
 legislature, having full power over legislative offices, may 
 confer the power of deciding contested elections thereto upon 
 the courts or any administrative board or officer, or assume 
 the power itself. 4 The authority to try contested elections is 
 not necessarily "judicial" within the constitutional require- 
 ment that the judicial power of the commonwealth shall be 
 vested in the courts. 5 The legislature may make the decision 
 of such administrative officer or board final and conclusive. 
 Thus the decision of a school committee was held to be con- 
 clusive, which declared a seat in the school board vacant for 
 want of legal election and qualification, because the person 
 receiving the greatest number of votes was a woman. 6 In 
 order to exclude the jurisdiction of the courts, the board's or 
 officer's power finally to determine an election must be ber 
 stowed in unequivocal terms. ? Otherwise the decision of the 
 board or officer will be deemed concurrent and cumulative 
 only. Such a decision will be regarded as temporarily binding 
 upon the board, but will not prevent the courts from inquiring 
 
 1 In re Executive Communications, 12 Fla. 686. 
 
 2 People vs. Hall, 80 N. Y. 117. 
 
 3 Robinson vs. Cheboygan Supervisors, 49 Mich. 321. 
 
 4 State vs. Harmon, 31 Ohio St. 250. 6 jj m 
 
 "Peabody vs. School Committee, 115 Mass. 383. See People vs. Fitzgerald, 
 41 Mich. 2; Boran vs. De Long, 48 Midi. 552. 
 
 7 State vs. Kempf, 69 Wis. 470. 
 
159] GOVERNMENTAL POWERS 27 
 
 into the right to the office in behalf of the people of the com- 
 monwealth, upon proper application being made thereto. 1 
 
 That jurisdiction to determine contested elections to the 
 legislature shall be granted to the courts in every case has 
 been strenuously advocated. 2 
 
 In all commonwealths, except Kansas, it is prescribed that 
 each house shall choose its own officers. Many constitutions, 
 however, provide that the lieutenant-governor shall be presi- 
 dent of the senate.3 
 
 Each house of the legislature is entrusted with the power to 
 determine the rules of its own procedure, and to punish its 
 members for disorderly behavior, and in some cases even to 
 expel a member.' 1 
 
 Senators and representatives are generally by constitutional 
 exemption privileged from arrest in all cases except treason, 
 felony and breach of the peace, either during the session of the 
 legislature or for some limited time before and after its session, 
 or while members of the legislature. 5 
 
 The constitutions of Kansas, Nebraska, Alabama, Arkansas, 
 California, Missouri, Mississippi, Wisconsin, Indiana, Oregon 
 and Colorado further provide that members of the legislature 
 shall not be subject to any process during the session of the legis- 
 
 1 People vs. Hall, 80 N. Y. 117. 
 
 2 Burgess, Pol. Sc. and Const. Law, vol. 2, p. 1 14. See Bryce, American Com- 
 monwealth, 2d ed., p. 235. 
 
 3 Stimson's American Statute Law, sec. 270. See Story, Com. on Const., vol. I, 
 p. 540, for the reason for this exception. 
 
 4 Stimson's American Statute Law, art. 27 ; Const, of North Dakota, sees. 48 
 and 49; South Dakota, art. 3, sec. 9; Wyoming, art. 3, sec. 12; Washington, 
 art. 2, sees. 8, 9; Montana, art. 5, sec. 11; Idaho, art. 3, sees. 9, 11; United 
 States Const., art. :, sees. 2, 3, 5. See Story, Commentaries on Const., vol. I, 
 p. 657. 
 
 5 Stimson's American Statute Law, sec. 273; Const, of North Dakota, sec. 42; 
 South Dakota, art. 3, sec. 11; Wyoming, art. 3, sec. 16; Washington, art. 2, 
 sec. 16; Montana, art. 5, sec. 15 ; Idaho, art. 3, sec. 7. See Cooley, Const. Limi- 
 tations, pp. 546, 547; Story, Com. on Const., vol. I, p. 627. 
 
28 THE SEPARATION OF \_\6o 
 
 lature, and Michigan further provides for the same immunity for 
 fifteen days next before the commencement, and next after the 
 termination of each session. 1 Necessarily, this same immunity, 
 even in the absence of any statutory or constitutional provision 
 to that effect, extends to the chief executive officer of every 
 commonwealth as well as of the central government. Such 
 officer is privileged from the jurisdiction of every court, magis- 
 trate and body over his person. He cannot be arrested or 
 restrained of his personal liberty by anybody for anything, not 
 even for the commission of murder. He is responsible only to 
 that body which is empowered by the constitution to remove ' 
 him. Even in the course of his trial before such body he can- 
 not be arrested or in any manner restrained, nor forced to 
 appear in person before such tribunal, or to give testimony, 
 nor be deprived of any of his powers as chief executive officer. 2 
 
 Because a power over a man's subsistence is in most cases a 
 control over his will, the Constitution of the United States, and 
 the constitutions of Maine, Ohio, Illinois, Tennessee, Missouri, 
 Texas, California, Nevada, Georgia, Louisiana, Rhode Island, 
 New York, Indiana, Minnesota, Maryland, Virginia, North 
 Carolina, Kentucky, Arkansas, South Carolina, Mississippi, 
 Alabama, North Dakota, Washington, Idaho, Montana, and 
 Wyoming provide that the compensation of judges shall not 
 be diminished during their continuance in office. 3 
 
 In 1802, however, Congress passed an act depriving certain 
 judges of their offices and therefore incidentally of the title to- 
 their salary. 4 
 
 1 Cooley, Const. Limitations, p. 160. 
 
 2 Burgess, Pol. Sc. and Const. Law, vol. 2, p. 245 ; Durand vs. Hollins," 4 
 Blatch. 451. 
 
 3 Stimson's American Statute Law, sec. 564; Const, of North Dakota, sec. 9;, 
 Wyoming, art. 5, sec. 17 ; Washington, art. 4, sec. 13; Montana, art. 8, sec. 29; 
 Idaho, art. 5, sec. 27 ; United States Const., art. 3, sec. 1 ; Story's Com. on the- 
 Const., vol. 2, p. 439 ; Federalist, no. 79. 
 
 1 Story, Com. on Const., vol. 2, p. 442. 
 
l6l] GOVERNMENTAL POWERS 2 g 
 
 A provision similar to the foregoing is also generally found 
 regarding the compensation of the chief executive officer. 1 
 
 The organic law of every commonwealth except South 
 Carolina, North Carolina, Mississippi, Florida, Nevada, Cali- 
 fornia, North Dakota, Texas, and Washington provides that 
 no member of the legislature shall be questioned elsewhere for 
 any speech or debate in either house. 2 This provision, how- 
 ever, is unnecessary, for the protection of the legislators 
 would probably be equally complete without it.3 
 
 Most commonwealths further provide that no person hold- 
 ing office shall be a member of either house of the legislature 
 during his continuance in office. 4 
 
 The revised constitution of New York of 1894 provides, in 
 addition to the foregoing, that " the judges of the Court of 
 Appeals and the justices of the Supreme Court shall not hold 
 any other office or public trust, and that all votes for any of 
 them for any other than a judical office given by the Legisla- 
 ture or the people shall be void."s 
 
 Finally, the chief executive and the judicial officers are not 
 liable to removal, except in certain specified cases, in a certain 
 prescribed manner, as by impeachment, by a vote of the legis- 
 ture, or by the governor upon proper address by the legislature. 6 
 
 Besides providing for the independent organization and ex- 
 istence of the main departments, and giving to each the neces- 
 
 1 Const. North Dakota, sec. 84; South Dakota, art. 4, sec. 2; Wyoming-, art. 
 4, sec. 13; Washington, art. 4, sec. 25 ; Montana, art. 5, sec. 31 ; Idaho, art. 4, 
 sec. 19; Federalist, no. 73; Story, vol. 2, p. 324. 
 
 2 Stimson's American Statute Law, art. 27 ; Const, of Washington, art. 2, sec. 
 17; Montana, art. 5, sec. 15; Idaho, art. 3, sec. 7. See Story, Com. on the 
 Const., vol. I, p. 630. 
 
 3 Cushing, Law and Practice of Legislative Assemblies, sec. 602. 
 
 4 Const, of North Dakota, sees. 37, 39 ; South Dakota, art. 3, sec. 3 ; Wyo. 
 ming, art. 3, sec. 8; Washington, art. 2, sec. 13: Montana, art. 5, sec. 7; United 
 States Constitution, art. I, sec. 6; New York Const., art. 3, sec. 7. 
 
 5 New York Const., art. 6, sec. 10. 
 
 6 Stimson's American Statute Law, art. 26. 
 
30 THE SEPARATION OF [162 
 
 sary powers for self-preservation, the fundamental law in many 
 cases prohibits the departments from exercising powers which 
 on account of their organization they are not thought capable 
 of properly exercising, or expressly grants the departments 
 such powers as they on account of their peculiar organization 
 are best able to exercise. 
 
 Thus, besides the restriction contained in the Constitution 
 of the United States prohibiting Congress and the common- 
 wealths x from passing bills of attainder, the constitution of 
 every commonwealth, except Delaware, New Hampshire, New 
 York, North Carolina, Rhode Island, Tennessee, Louisiana, 
 Indiana, Mississippi, Illinois, Iowa, Oregon and Kansas, pro- 
 vides that the legislature shall pass no bills of attainder. 2 
 
 The constitutions of Vermont, Maryland, West Virginia, 
 North Carolina, Missouri, Texas, Georgia and Alabama forbid 
 the suspension of the writ of habeas corpus in any case 
 whatsoever. In Massachusetts it can only be suspended on 
 the most urgent occasion, and for a limited time, not exceed- 
 ing twelve months, and in New Hampshire not exceeding 
 three months. 
 
 In the remaining constitutions it is provided that the privi- 
 lege of the writ shall not be suspended unless when, in case of 
 rebellion or invasion, public safety may require it. 3 
 
 In Rhode Island, Michigan, Maryland, Tennessee, and 
 Arkansas, it is expressly prescribed that the writ can only be 
 suspended by the legislature. 
 
 1 United States Const., art. 1, sees. 9 and 10. 
 
 2 The constitutions of Alabama, Massachusetts, Vermont, Connecticut, Pennsyl- 
 vania, Maryland, Kentucky, Missouri, and Colorado, provide that no person can be 
 attainted of treason or felony by the legislature. — Stimson's Am. Statute Law, sec. 
 
 138. The term bills of attainder includes bills of pain and penalties. Storv, 
 
 Com. on Const., vol. 2, p. 217 n. : Cooky's Const. Limitations, p. 314; Ex parte 
 Garland, 4 Wall. 333; Fletcher vs. Peck, 6 Cr. 8; Cummings vs. Missouri, 4 
 Wall. 217. 
 
 3 United States Const., art. I, sec. 9; Stimson's Am. Statute Law, sec. 127; 
 Story, Com. on Const., vol. 2, p. 214 11. 
 
163] GOVERNMENTAL POWERS 3! 
 
 In like manner by the constitutions of most commonwealths, 
 laws can only be suspended by the legislature, or, as in some 
 cases, by authority derived from the legislature. 1 
 
 Some constitutions prohibit the legislature from auditing or 
 allowing any private claim or account against the state. 2 
 
 To the rule that the constitutions provide for the independ- 
 ent organization and existence of each of the departments, an 
 exception is sometimes found in the case of the judiciary. The 
 Constitution of the United States 3 and the constitutions of some 
 commonwealths confer upon the legislature the power from 
 time to time to ordain and establish inferior courts. In New 
 Hampshire there are no constitutional provisions erecting 
 courts, but the whole subject is left to the discretion of the 
 legislature. 
 
 In the commonwealths in which the constitutions confer 
 the judicial power upon certain specified courts, this must be 
 understood to embrace the whole judicial power, and the leg- 
 islature cannot in such case pass a statute abolishing any such 
 courts, or vest any portion of such power elsewhere ; 4 and 
 where a constitution fixes the jurisdiction of a particular court, 
 it is not competent for the legislature either to enlarge or 
 abridge its jurisdiction. 5 Thus where the constitutional jur- 
 isdiction is appellate only, the legislature cannot confer upon 
 it original jurisdiction in any case. 6 
 
 Although the legislature cannot confer upon the courts 
 which it is permitted to create by statute, jurisdiction in ex- 
 clusion of that which the constitution gives to the courts estab- 
 
 1 Stimson's Am. Statute Law, sec. 392. 
 
 1 Const, of New York, art. 3, sec. 19. See Cole vs. State, 102 N. Y. 48 ; comp. 
 Const, of New York, art. 7, sec. 6. 
 3 Art. I, sec. 8, and art. 3, sec. 1. 
 * Chandler vs. Nash, 5 Mich. 409. 
 
 5 Gilbon vs. Templeton, 62 Texas, 555 ; State vs. Jones, 22 Ark. 331. 
 
 6 State vs. Jones, 22 Ark. 331 ; Ward vs. Thomas, 2 Cald. (Tenn.) 565 ; State 
 vs. Bank, 5 Sneed (Tenn.) 573; Marbury vs. Madison, I Cr. 137. 
 
3 2 THE SEPARA TION OF [ 1 64 
 
 lished by itself, 1 yet it may vest a part of the jurisdiction of the 
 constitutional courts, or a concurrent jurisdiction, in those 
 tribunals which it creates by statute. 2 
 
 The power to distribute judicial power, except so far as it 
 has been done by the constitution, resting with the legislature^ 
 with the exception of the creation of the Supreme Court, the 
 power of Congress to create courts and confer upon them as 
 much or as little jurisdiction pertaining to the United States 
 government as it thinks best, is almost unlimited. 4 
 
 \The Constitution of the United States grants to Congress 
 power to determine the number of judgeships which the 
 Supreme Court shall contain. It has been shown that at the 
 end of any term concluded by death, resignation, or impeach- 
 ment of any of the judges, the legislature may modify or 
 abolish that particular judgeship for the future. In this man- 
 ner it is possible for the legislature virtually to disestablish 
 even the Supreme Court at the conclusion of the term of the 
 judges who may be holding at the time the legislature may 
 adopt this destructive policy^! 
 
 Some constitutions vest frle legislature with power to regu- 
 late and even to restrict the appellate jurisdiction of the higher 
 courts. 6 In the absence of such constitutional provision, it would 
 be part of the legislative power to point out the modes in which 
 the appellate jurisdiction of the court shall be exercised. 7 
 
 1 Montrose vs. State, 61 Miss. 429. 
 
 2 Commonwealth vs. Green, 58 Pa. St. 226; Borse vs. Preston, in U. S. 252; 
 Ames vs. Kansas, III U. S. 449; Sharp vs. Robertson, 5 Gratt. (Va.) 518. 
 
 3 Commonwealth vs. Hippie, 69 Pa. St. 9 ; State vs. New Brunswick, 42 
 N. J. 51. 
 
 * U. S. vs. Union Pac. R. R. Co., 98 U. S. 569; Story, Com. on Const., vol. 2, 
 p. 500, and cases cited. 
 
 5 Burgess, Pol. Sc. and Const. Law, vol. 2, p. 320; Story, Com. on Const., 
 vol. 2, p. 409. 
 
 6 United States Const., art. 3, sec. 2; Const, of New York, art. 6, sec. I. 
 
 7 Haight vs. Gay, 8 Cal. 297. 
 
165] GOVERNMENTAL POWERS 33 
 
 Speaking of such provisions, Prof. Burgess says : " This power 
 of the legislature over the judiciary is a most serious one. It 
 places the appellate power of the court very nearly at the 
 mercy of the legislature. It seems an unnecessary surrender 
 of the independence of the court to require that things which 
 can be better accomplished by the rules of court, shall wait 
 upon the pleasure or, possibly, caprice of the legislature." T 
 
 The judiciary article of the new constitution of the state of 
 New York provides that appeals from inferior and local courts 
 shall be heard in the supreme court in such manner and by 
 such justice or justices as the appellate divisions in the respect- 
 ive departments shall direct, unless otherwise provided by the 
 legislature. 2 
 
 It is now generally admitted that it is not necessary for the 
 legislature to act and to designate the mode and manner in 
 which courts are to proceed in order to enable the courts to 
 exercise their constitutional powers and duties ; and that the 
 courts will discharge their duty by a course conformable to 
 the common law in the absence of legislation upon the subject. 3 
 
 Thus under the article of the United States Constitution, 
 which provides that the Supreme Court shall have appellate 
 jurisdiction with such exceptions and under such regulations 
 as Congress shall make, it is supposed that no action of Con- 
 gress is necessary to vest appellate jurisdiction in the Supreme 
 Court, but that the same attaches proprio vigore, subject to be 
 withdrawn or modified by Congress. 4 
 
 VWhile the jurisdiction of the courts may under some consti- 
 tutions be almost wholly under the control of the regulating 
 power of the legislature, it may be noted that there are certain 
 
 1 Pol. Sc. and Const. Law, vol. 2, p. 331. 
 
 2 Art. 6, sec. 5. 
 
 3 State vs. Gleason, 12 Fla. 190. 
 
 4 See Story, Com. on the Const., vol. 2, p. 555; Durousseau vs. United States, 
 6 Cr. 307, 313; United States vs. Moore, 3 Cr. 159, 170, 172; ex parte Mc- 
 Cardle, 7 Wall. 506. 
 
34 THE SEPARATION OF [166 
 
 incidental p owers which are supposed to attach to them when 
 duly organized without any positive enactment of the legisla- 
 ture^Such are the powers of the courts over their own officers, 
 and the power to protect them and their members from being 
 disturbed in the exercise of their functions. Among the 
 powers supposed to inhere in a court when once established is 
 the power to punish for contempt of its authority, which it 
 would possess even in the absence of legislation expressly 
 granting or regulating it. 1 
 
 In considering the extensive power of the legislature in some 
 cases to establish courts and to distribute judicial power among 
 them in accordance with the constitution, the limitation 
 effected upon it by the distributing clause should not be over- 
 looked. [The judicial power must be vested in courts and 
 judges, as prescribed by the constitution, and can never be as- 
 sumed by the legislature or delegated to the officers whom the 
 constitutions designate as members of the executive depart- 
 ment. Any body and any person to whom the legislature does 
 delegate such power becomes a court or a judge, subject to 
 the provisions of the constitution regarding such tribunal and 
 officer^ 
 
 i See Ex parte Bollman, 4 Cr. 75, 94; Ex parte Kearney, 7 Wheat. 37, 44; 
 Anderson vs. Dunn, 6 Wheat. 204. 
 
CHAPTER IV 
 
 THE BALANCE OF POWERS IN THEORY 
 
 Should anything further be inferred from the fundamental 
 principle laid down by Montesquieu, than 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, the result would be grievous in theory as 
 well as in practice. 
 
 Considering that England did not resort to an absolute sepa- 
 ration of powers or of the departments, and that England was 
 the example referred to by Montesquieu, it is evident that the 
 French philosopher did not intend to advocate the entire dis- 
 junction of the powers or departments. 
 
 Under the British constitution, the executive magistrate 
 formed an integral part of the legislative authority. He alone 
 had the prerogative of making treaties with foreign sovereigns, 
 which, when made, had under certain limitations the force of 
 legislative acts. The king appointed all members of the judi- 
 cial department. One branch of the legislative department 
 formed a great constitutional council to the executive chief. 
 It was also the sole court of impeachment, and invested with 
 supreme appellate jurisdiction in all other cases. 
 
 " From these facts, by which Montesquieu was guided, it 
 may clearly be inferred that in saying, ' There can be no lib- 
 erty where the legislative and executive powers are united in 
 the same person,' or ' if the power of judging be not separated 
 from the legislative and executive powers,' he did not mean 
 that these departments ought to have no partial agency in, or 
 no control over, the acts of each other. His meaning, as his 
 35 [ l6 7 
 
36 THE SEPARATION OF [l68 
 
 own words import, and still more conclusively as illustrated by 
 the example in his eye, can amount to no more than this ; that 
 where the whole power of one department is exercised by the 
 same hands which possess the whole power of another depart- 
 ment, the fundamental principles of a free government are sub- 
 verted." 1 Blackstone says : " The total disjunction of them 
 would in the end produce the same effects by causing that 
 union against which it seems to provide." 2 If each department 
 of government, being equal, could thwart the operations of the 
 other, government would soon be at a dead-lock, since each, act- 
 ing in defence of its own powers, would never lend its aid to 
 the others. 3 Furthermore, these departments, on account of 
 the differences which exist in their organization and functions, 
 are unequal in the power of self-preservation. The legislative 
 power is everywhere extending the sphere of its activity and 
 drawing all powers into its impetuous vortex. 4 The action of 
 the judicial and executive departments is always more or less 
 dependent upon that of the legislature. Besides, the people 
 are little apt jealously to guard against the encroachments 
 made by the legislature, which they regard as the most direct 
 representative of their will ; and the great number of the law- 
 making body, in which lies its strength, diminishes its sense of 
 responsibility in trespassing upon the domain of the other de- 
 partments. On the other hand, the courts and the executive 
 are apt to be unpopular with the people. In the enforcement 
 of their duties, they directly affect the interests of individuals. 
 That which these considerations would prepare one to expect, 
 actually came to pass in the early history of Pennsylvania and 
 Virginia. The first constitution of Virginia declared that the 
 three great departments ought not to be intermixed. Jefferson, 
 
 1 James Madison, Federalist, no. xlvii. See also La Separation des Pouvoirs, 
 p. 177. 
 
 5 Commentaries, book i, p. 154. 
 
 ' Mill on Representative Government, p. 82. 
 * Madison, Federalist, no. xlvii. 
 
I69] GOVERNMENTAL POWERS 37 
 
 commenting upon this provision, says, " No barrier was pro- 
 vided between these several powers," and then points out how 
 the legislature, as a result of this, had encroached upon the 
 judiciary and the executive. 1 The experience of Pennsylvania 
 was not happier. The council of censors which assembled 
 therein in 1783 to inquire whether the constitution had been 
 preserved inviolate in every part, reported that the constitution 
 had been violated by the legislative usurpation of executive and 
 judicial powers, and that the salaries of the judges had been 
 frequently varied. 2 
 
 Jefferson, in a proposed constitution for Virginia, appended 
 by him to his Notes on Virginia, suggested as a remedy 
 against the encroachment of one department upon another, that 
 the people should be appealed to by the invaded department. 
 
 Madison has conclusively shown the futility of this plan. 
 He says that, as every appeal to the people would carry 
 an implication of some defect in the government, frequent 
 appeals would in a great measure deprive the government 
 of that veneration which time bestows on everything, and 
 without which perhaps the wisest and freest governments 
 would not possess the requisite stability. Furthermore, 
 whereas the courts and executive are likely to be unpopular 
 and the legislature popular with the people, the same influences 
 that secured the members of the legislature their election to 
 that body, would secure for them their election to the conven- 
 tion which would, as the representative of the sovereign power 
 of the state, decide the appeal. The members of the conven- 
 tion would be called upon to decide against themselves as leg- 
 islators. 3 
 
 Having separated the three departments from each other, the 
 more difficult task remains of securing each against encroach- 
 ments by the other. The true solution of this difficulty, says 
 
 1 Notes on the State of Virginia, p. [95. 
 
 2 Federalist, no. xlviii. 5 Federalist, no. xlix. 
 
38 THE SEPARATION OF [170 
 
 Madison, is to permit each department to participate in the 
 functions exercised by the others, so as to check but not so as 
 to control them. The defect must be supplied by so contriv- 
 ing the interior structure of government that its several constit- 
 uent parts may, by their mutual relations, be the means of 
 keeping each other in their proper places. The greatest se- 
 curity against a gradual concentration of the several powers 
 in the same department consists in giving those who admin- 
 ister each department the necessary constitutional means or 
 personal motives to resist the encroachments of the other. But 
 each department should have a will of its own. There is no 
 method for producing this result but a partial participation of 
 each in the powers of the others, and the introducing in all 
 branches a system of checks and balances on which the safety 
 of free institutions is found essentially to depend. 1 
 
 1 Federalist, 47, 48, 50, 51. These numbers of the Federalist were written to 
 defend the Constitution of the United States against the violent attacks made upon 
 it at the time of its adoption, on the ground that, although it professed to be founded 
 upon a tripartite separation of governmental powers, yet it was chargeable with a 
 departure from the principle, and therefore dangerous to civil liberty. 
 
CHAPTER V 
 
 THE BALANCE OF POWERS IN THE CONSTITUTIONS 
 
 A most cursory examination of the American constitutions 
 will reveal the fact that, notwithstanding the emphatic, and in 
 some instances the unqualified terms in which the maxim of 
 the separation of governmental powers is laid down, there 
 is not, and there never has been, a single constitution in 
 which some of the chief powers of government were not 
 made dependent for their proper exercise upon the action 
 of more than one of the governmental departments, and in 
 which powers, historically or theoretically considered execu- 
 tive, have not been exercised by the legislative and judicial de- 
 partments ; in which powers considered judicial have not been 
 exercised by the legislative and executive departments; and in 
 which powers considered legislative in their nature have not 
 been exercised by the executive and judicial departments. 1 
 
 The best illustration of what may be accomplished by the 
 balancing of powers, is the fact that the executive power in our 
 country holds its ground not only by reason of its separation 
 from and independence of the legislature, but also by reason 
 of its participation in legislation. By means of his veto power 
 the president cannot control, but may with a limited effect 
 check legislation. " It was vested in the president doubtless 
 as a guard against hasty and inconsiderate legislation, and 
 
 1 " The Declaration of Rights and the Constitution are not to be interpreted as 
 enjoining a complete separation between the several departments. Practically it 
 has never been so in any of the States in whose fundamental law the principle has 
 been asserted." Mayor vs. State, 15 Md. 376. See Federalist, no. 47, for the 
 manner in which the early American constitutions provided for the admixture of 
 powers. 
 
 171] 39 
 
40 THE SEPARATION OF [172 
 
 against any acts inadvertently passed which might seem to e?i- 
 croach on the just authority of the other branches of the govern- 
 ment!^ Considering the purpose for which the veto power 
 was vested in the executive, it ought to be employed chiefly to 
 prevent encroachments by the legislature upon the constitu- 
 tional prerogatives of the executive and to prevent unwise 
 legislative changes in the existing means and measures of the 
 administration. 2 
 
 With only four exceptions the commonwealth constitutions 
 vest a limited veto power in the executive. The four excep- 
 tional constitutions are those of Delaware, North Carolina, 
 Ohio and Rhode Island, which commonwealths probably 
 feared encroachments by the executive upon the powers of the 
 legislative department. 3 In Ohio the ancient prejudice against 
 the executive department seems still to survive. A resolution 
 providing for a submission to the people of an amendment to 
 the constitution, vesting the governor with the veto power, was 
 in 1894 defeated in the lower branch of the legislature by a 
 vote of 47 to 25. 
 
 Since important exigencies requiring legislation may arise 
 at a time when the legislature is not in session, the chief exec- 
 utive under all the constitutions is vested with the power of 
 convening extra sessions of the legislature on extraordinary 
 occasions. 4 
 
 In all commonwealths except New Jersey, Maryland, Vir- 
 ginia, New York, North Carolina, Tennessee, Indiana, Louis- 
 iana, Alabama, Missouri, Michigan, Texas, Wisconsin, Wash- 
 ington, Montana, Minnesota, Oregon, West Virginia, North 
 
 1 Webster's Works, vol. I, p. 267. 
 
 2 Burgess, Pol. Sc. and Const. Law, vol. 2, p. 255. 
 
 3 Stimson's American Statute Law, sec. 305; Const, of North. Dakota, sec. 79 ; 
 South Dakota, art. 4, sec. 9 ; Wyoming, art. 4, sec. 8 ; Washington, art. 3, sec. 
 12; Montana, art. 7, sec. 12; Idaho, art. 4, sec. 10; United States Const., art. I, 
 sec. 7. 
 
 4 Stimson's Am. Statute Law, sec. 277. 
 
173] GOVERNMENTAL POWERS 41 
 
 Dakota, South Dakota, Idaho, and Wyoming, the chief exec- 
 utive has the power of adjourning the legislature upon the 
 failure of the two houses to agree as to the time of adjourn- 
 ment. 1 
 
 All the constitutions except those of Massachusetts, Rhode 
 Island, Vermont, and Wisconsin make it the duty of the exec- 
 utive to give the legislature information of the condition of 
 the commonwealth, and to recommend such measures as he 
 deems expedient. 2 Possessing extensive sources of informa- 
 tion as to the advantages and defects of the laws, he can thus 
 point out the evils and suggest the remedies. He may like- 
 wise in this manner lay before the legislature facts and infor- 
 mation to assist it in its deliberations, and may thus be held 
 responsible not only for the due administration of the existing 
 system, but also for the means of improving it. 3 
 
 In all commonwealths in which there is a lieutenant-gov- 
 ernor, except Massachusetts and Rhode Island, that official 
 is president of the senate with a casting vote. 4 
 
 Besides this control over the legislature and legislation, the 
 chief executive has, under all the constitutions, the power to 
 grant pardons and commutations of sentence. 5 In New Hamp- 
 
 1 Stimson's Am. Statute Law, sec. 278 ; Const, of North Dakota, sec. 75 ; 
 South Dakota, art. 4, sec. 4; Wyoming, art. 4, sec. 4; Washington, art. 3, sec. 
 7 ; Montana, art. 7, sec. 2 ; Idaho, art. 4, sec. 9. 
 
 2 Stimson's Am. Statute Law, sec. 280 ; Const, of North Dakota, sec. 75 ; 
 South Dakota, art. 4, sec. 4; Wyoming, art. 4, sec. 4; Washington, art. 3, sec. 
 3 ; Montana, art. 3, sec. 10 ; Idaho, art. 4, sec. 8. 
 
 8 Story's Com. on the Const., vol. 2, p. 382. 
 
 4 Stimson's Am. Statute Law, sees. 202, 282; Const, of North Dakota, sec. 77; 
 South Dakota, art. 4, sec. 7 ; Washington, art. 3, sec. 6 ; Montana, art. 7, sec. 
 15; Idaho, art. 4, sees. 12 and 13; Const, of United States, art. I, sec. 3. For 
 the reason for this provision, see 2 Story, 307. There is no lieutenant-governor in 
 Delaware, New Jersey, Georgia, Maryland, New Hampshire, Tennessee, Alabama, 
 Maine, Arkansas, Oregon, and West Virginia. 
 
 5 Stimson's Am. Statute Law, sec. 160; Const, of North Dakota, sec. 76 ; 
 South Dakota, art. 4, sec. 5 ; Wyoming, art. 4, sec. 5 ; Washington, art. 3, sec. 
 9; Montana, art. 7, sec. 10. 
 
4 2 THE SEPARATION OF [174 
 
 shire, Massachusetts and Maine, he can only exercise this 
 power with the advice and consent of a council ; in Rhode 
 Island, with the consent of the senate; and in Pennsylvania and 
 Louisiana, upon the written recommendation of certain officers 
 specified in the constitution. In Nevada, Florida, Connecticut, 
 Idaho and Michigan, he is a member of a pardoning board, or 
 court. In most instances he is powerless to pardon in cases 
 of impeachment and treason. 1 
 
 Upon conviction for treason he often has the power to sus- 
 pend the execution of the sentence until the case can be re- 
 ported to the legislature at its next meeting, when the legisla- 
 ture must either pardon or commute the sentence, direct the 
 execution of the sentence, or grant a further reprieve. 2 
 
 It would also seem to result from the principle on which 
 the power of each branch of the legislature to punish for con- 
 tempt is founded, that the executive cannot interpose in such a 
 case. The main object of the power to punish for contempt is 
 to secure a purity, independence and ability of the legislature 
 adequate to the discharge of all its duties. If the executive 
 should possess the power of pardoning persons in contempt, 
 the legislature would be wholly dependent upon his good will 
 and pleasure for the exercise of its own powers. 3 
 
 In all commonwealths excepting Massachusetts, Rhode Is- 
 land, New Hampshire, Connecticut, Vermont and Kansas, the 
 governor has the power to grant reprieves. 4 In some common- 
 wealths the power to pardon has been held to include the power 
 to reprieve; 5 and in Maine, Vermont, New Jersey, Pennsylvania, 
 Indiana, Iowa, Maryland, Delaware, Virginia, West Virginia, 
 
 1 Stimson's Am. Statute Law, sec. 161 ; Const, of Idaho, art. 4, sec. 7 ; United 
 States Const., art. 2, sec. 2. 
 
 2 See Const, of New York, art. iv, sec. 5. 
 
 3 Story's Com. on the Const., vol. 2, p. 337. As to the executive's power to 
 pardon persons found guilty of contempt of court — see post. 
 
 4 Stimson's Am. Statute Law, sec. 163. 
 6 Ex parte Fleming, 60 Miss. 910. 
 
175] GOVERNMENTAL POWERS 43 
 
 Kentucky, Arkansas, Texas, Oregon, Nevada, South Caro- 
 lina, Georgia, Alabama, Mississippi, Florida, Louisiana, and the 
 newer commonwealths, the executive has the power to remit 
 fines and forfeitures. 1 
 
 Among powers judicial in their nature, exercised by one 
 branch of the legislature generally, is that of impeachment. 
 The constitution of Oregon expressly prohibits the impeach- 
 ment of public officers. 2 The objection was raised in the 
 National Convention of 1787 that the legislative power of im- 
 peachment violated the principle of the separation of govern- 
 mental powers. 3 In Nebraska impeachments are tried by the 
 judges of the supreme court, and in New York by the senate 
 and the judges of the court of appeals. The constitutions of 
 thirty-two commonwealths expressly specify that the governor 
 is liable to impeachment, 4 and the constitutions of twenty- 
 four that judicial officers may be impeached. 5 
 
 In Maine, West Virginia, Nevada, South Carolina, Georgia, 
 Mississippi, Florida, Wyoming and North Dakota, either 
 house may punish any person not a member for disorderly or 
 contemptuous conduct, such punishment not to extend beyond 
 the final adjournment of the session. 6 
 
 In confirming appointments made by the President of the 
 United States, and in ratifying treaties, the Senate of the United 
 States participates in the exercise of powers generally regarded 
 
 1 Stimson's Am. Statute Law, sec. 64; Const, of North Dakota, sec. 76 ; South 
 Dakota, art. 4, sec. 5 ; Wyoming, art. 4, sec. 5 ; Washington, art. 3, sec. 9 ; 
 Montana, art. 7, sec. 10. 
 
 2 Art. 1, sec. 19. 
 
 3 See Story's Com. on Const., vol. 2, p. 548. 
 
 4 Stimson's Am. Statute Law, sec. 260; Const, of North Dakota, sees. 195, 
 196; South Dakota, art. 16, sec. 1; Wyoming, art. 3, sec. 17; Washington, 
 art. 5, sec. I ; Montana, art. 5, sec. 15. 
 
 5 Const, of North Dakota, sec. 197; South Dakota, art. 16, sec. 3; Wyoming, 
 art. 3, sec. 18; Washington, art. 5, sec. 2; Monta?ia, art. 5, sec. 17. 
 
 'Stimson's Am. Statute Law, sec. 276; Const, of North Dakota, sec. 48; 
 Wyoming, art. 3, sec. 1 2. 
 
44 THE SEPARATION OF ' [176 
 
 as executive in their nature. In some commonwealths the leg- 
 islature is given the power of appointing some of the important 
 commonwealth officers. In New Jersey, the legislature, for 
 example, appoints the treasurer and comptroller, in Delaware 
 and Maryland the treasurer, in New Hampshire, Maine and 
 Virginia, the treasurer and secretary, in Tennessee the comp- 
 troller, and in Maine the attorney-general. 1 The senate confirms 
 the governor's appointment of the attorney-general and the sec- 
 retary of state in New Jersey, of the superintendent of public 
 works and prisons in New York, of the secretary of state and the 
 attorney-general in Pennsylvania, and of the secretary of state 
 in West Virginia, Kentucky, and Texas. 2 The constitutions of 
 New Hampshire, Pennsylvania, Ohio, Indiana, Wisconsin, 
 Kentucky, Nebraska, West Virginia, Kansas, Tennessee, Mis- 
 souri, California, Oregon, Nevada, and Florida provide that 
 officers whose appointment is not provided for by the constitu- 
 tion shall be appointed or elected in the manner prescribed 
 by the legislature. In Rhode Island, Ohio, Wisconsin, 
 Kansas, Virginia, West Virginia, North Carolina, California, 
 Nevada, Illinois, New York, and Louisiana, the legislature is 
 empowered to remove certain officers; and in Connecticut, Mary- 
 land, Delaware, Kentucky, Missouri, Texas, Oregon, South 
 Carolina, Mississippi, Louisiana, New Hampshire, Massachu- 
 setts, Pennsylvania and Michigan, both houses of the legislature 
 may address the governor to exercise his power of removal. 3 
 In West Virginia, Minnesota, Missouri, Nevada, Colorado, 
 South Carolina, Texas, North Dakota, South Dakota, Wyo- 
 ming, Washington, and Montana, the legislature may provide 
 for the removal of inferior officers for malfeasance or misfeas- 
 ance of their duties. 4 
 
 Texas, Alabama, Louisiana, Tennessee, Indiana, Arkansas, 
 
 1 Stimson's Am. Statute Law, sec. 202. 2 Ibid., sec. 202. 3 Ibid., sec. 265. 
 
 4 Ibid., sees. 210, 265, 268 ; Const, of North Dakota, sec. 197; South Dakota, 
 art. 16, sec. 4; Wyoming, art. 3, sec. 19; Washington, art. 5, sec. 3; Montana, 
 art. 5, sec. 18. 
 
177] GOVERNMENTAL POWERS 45 
 
 Mississippi, and Oregon permit their courts to remove certain 
 officers, as the attorney-general. 1 
 
 In Massachusetts, Maine, New Hampshire, Rhode Island, 
 Colorado, and South Dakota, the judges of the supreme court 
 are required, upon solemn occasions, upon the request of 
 either house of the legislature, or of the governor and council, 
 to give their opinions upon important questions of law : and in 
 Florida they are required, upon the request of the governor, to 
 give their opinions on any questions affecting his executive 
 powers and duties. 2 
 
 The opinions given in accordance with such constitutional 
 requirements are generally held to be merely advisory, and 
 not binding upon the courts in subsequent cases. 3 
 
 The courts have declared that they will not construe and 
 give their opinion on provisions which do not affect a pending 
 act, 4 and which do not affect purely public rights. 5 In Massa- 
 chusetts, the justices will not give an opinion on the proper 
 construction of an existing act which the legislature may 
 amend, 6 and in Colorado they will not answer questions 
 covered by pending litigation. 7 
 
 In Florida, the justices refused to render an opinion upon 
 request of the governor, as to what character of a bill the 
 legislature is denied the power to pass under a certain pro- 
 vision of the constitution, and which, when submitted to the 
 governor, it will be his duty for that reason to disapprove, 
 on the ground that such an opinion would not affect his 
 executive but only his legislative powers and duties. 8 
 
 In Missouri it has been said that while under provisions 
 like the foregoing the governor may determine for himself 
 
 1 Stimson's Am. Statute Law, sec. 267. 
 
 2 Cooley's Const. Limitations, p. 53 n; Const, of South Dakota, art. 5, sec. 13 
 
 3 See Thayer, Memoranda on the Legal Effect of Opinions given by Judges. 
 
 4 In re Seriate Resolutions, 21 Pac. Rep. 470. 5 Ibid., 21 Pac. Rep. 478. 
 6 Op. of Justices, 21 N. E. Rep. 439. 
 
 ' In re Irrigation Resolution, 9 Col. 620. 8 Op. of Justices, 23 Fla. 297. 
 
46 THE SEPARATION OF [178 
 
 whether the occasion is such as to authorize him to call on 
 the judges for their opinion, they must decide for themselves 
 whether the occasion is such as to warrant the governor in 
 making the call. 1 
 
 In Delaware, the chancellor and judges, though not required 
 by any constitutional provision to do so, gave, as a matter of 
 courtesy, in response to a joint resolution of the general 
 assembly, written opinions as to the power of that body to 
 change the basis of the representation of the several counties 
 in it. 2 
 
 In Vermont there is a statute which provides that the 
 governor may require an opinion on questions connected 
 with the discharge of his duties, and in Kentucky an opinion 
 has been given by the judges to the chief executive, without 
 even the requirement of a statute, on the power of the governor 
 to fill a vacancy in the supreme court. 3 
 
 When President Washington, in 1793, requested the opinion 
 of the judges of the United States supreme court upon the 
 construction of the treaty of 1778 with France, they declined 
 to give such an opinion. 4 
 
 1 Op. of Judges, 49 Mo. 216. The provision in the Missouri constitution of 
 1865 requiring the judges to give opinions in such cases was omitted from the 
 constitution of 1875. 
 
 2 Opinions of the Chancellor and Judges, Dover, 1883. 
 
 3 Op. of Judges, 79 Ky. 621. 
 
 4 5 Marshall's Life of Washington, ch. 66, pp. 433-441. 
 
CHAPTER VI 
 
 THE SEPARATION AND BALANCE OF POWERS IN THE TERRI- 
 TORIES OF THE UNITED STATES 
 
 The territories of the United States present an interesting 
 form of local self-government. Their government is created 
 by Congress acting pursuant to the Constitution, which pro- 
 vides : " The Congress shall have power to dispose of and 
 make all needful rules and regulations respecting the terri- 
 tories or other property belonging to the United States." 1 
 
 From this provision of the Constitution it follows that the 
 political rights of the people of the territories are franchises 
 which they hold as privileges in the legislative discretion of 
 the Congress of the United States. 2 The form of government 
 to be established therein depends exclusively on Congressional 
 discretion. Having the power to erect territorial government, 
 Congress may confer on it such powers, legislative, executive 
 and judicial, as it deems best. It may confer upon it general 
 legislative powers, subject only to the laws and the Constitu- 
 tion of the United States. 
 
 The power of Congress is such that it may not only abro- 
 gate laws of the territorial legislatures, but may itself legislate 
 directly for the local government. It may make a void act of 
 the territorial legislature valid, and a valid act void. In other 
 words it has full and complete authority over the people of 
 the territories, and all of the departments of the territorial 
 governments. It may do for the territories what the people 
 under the constitutions may do for the commonwealths.^ 
 
 1 Art. iv, sec. 3. 2 Murphy vs. Ramsey, 114 U. S. 15, 45. 
 
 3 National Bank vs. Yankton, 101 U. S. 129. See Burgess, Pol. Sc. and Const. 
 Law, vol. 2, p. 159. 
 
 179] 47 
 
>8 THE SEPARA TJON OF [ 1 80 
 
 The relation of the territories to Congress very much 
 resembles the former relation of the colonies to the British 
 Parliament, the organic laws of the territories resembling the 
 charters of the colonies. The organic laws of the territories 
 take the place of the constitutions as the fundamental law of 
 their local governments. 1 
 
 Their organic laws have been construed in very much the 
 same manner as corresponding clauses in the commonwealth 
 constitutions have been. Thus it has been held that the 
 legislative power conferred upon a territorial legislature by an 
 organic act cannot be delegated; 2 that powers conferred upon 
 the governor by such acts cannot be limited or restricted by 
 the legislatures* that territorial legislatures have only such 
 powers as Congress bestows upon them. 4 
 
 Although Congress might have governed the territories 
 directly without the intervention of a local government, it has 
 in most cases delegated the administrative power of governing 
 the territories to local authorities created by it. By statute a 
 government has been established for each of the territories, 
 excepting Alaska and the Indian Territory, consisting of a 
 legislative, executive and judicial department, with powers 
 analogous to those vested in the governmental departments of 
 the central and commonwealth governments of the United 
 States. 
 
 Thus Congress has provided that the executive power of 
 each territory shall be vested in a governor, 5 the legislative 
 power in a governor and a legislative assembly consisting of a 
 council and a house of representatives, 6 and the judicial power, 
 in all territories except Arizona, in a Supreme Court, District 
 Court, Probate Court and Justices of the Peace. 7 The judicial 
 power in Arizona is vested in a Supreme Court and such 
 
 1 National Bank vs. Yankton, 101 U. S. 129. 
 
 s Winter vs. Hughes, 3 Utah, 443. 3 16 Op. of Att'y-Gen'l, 27. 
 
 *Treadwell vs. Schnauber, 1 Dak. 236. 5 U. S. Rev. St., sec. 1841. 
 
 * Ibid., sec. 1846. ' Ibid., sec. 1907. 
 
I 8 1 ] GO VERXMENTAL PO WERS 49 
 
 inferior courts as the legislative council may by law prescribe. 1 
 In some territories the judges are given the power to fix the 
 time and place of holding courts, 2 which power some of the 
 commonwealth courts regard as political or legislative. 
 
 The governors and chief justices are nominated, and by and 
 with the advice and consent of the senate, appointed by the 
 President of the United States.s The members of the legisla- 
 ture are elected by the qualified voters of the territories. 4 
 
 The salaries of some of the judges are fixed by Congress. 5 
 
 The governor is commander-in-chief of the militia of the 
 territory. He is invested with the power of pardon. He may 
 grant reprieves, remit fines and forfeitures for offences against 
 the laws of the territories, and respites for offences against the 
 laws of the United States, till the decision of the President can 
 be made known thereon. 6 He also is invested with a limited 
 veto power. 7 
 
 The territorial legislatures are also expressly invested with 
 the power to regulate and prescribe the manner in which judi- 
 cial appeals are to be taken. 
 
 The laws passed by the legislatures of some of the territories 
 must be submitted to Congress, and, if disapproved by it, they 
 are to be null and void. 8 
 
 The Constitution of the United States and such laws of the 
 United States as are not locally inapplicable, have the same force 
 and effect within all organized territories as elsewhere in the 
 United States? 
 
 Alaska and the Indian Territory are under the direct author- 
 ity of the laws passed by Congress, and of officers appointed 
 by the President, by and with the advice and consent of the 
 senate. 10 
 
 1 U. S. Rev. St., sec. 1908. 2 Ibid., sec. 1915. 3 Ibid., sec. 1897. 
 
 *Ibid.,sec. 1846. * Ibid., sec. 1879. * Ibid., sec. 1841. 
 
 ''Ibid., sec. 1842. s Ibid., sec. 1850. 9 Ibid., 1 891. 
 10 Laws 0/1884, ch. 50. 
 
JO THE SEPARATION OF [^2 
 
 As to Alaska, Congress has specially provided that there 
 shall be no legislative assembly in the district. 1 The Secretary 
 of the Interior is empowered to make all needful provisions for 
 the education of children of school age therein, and the Presi- 
 dent is authorized to make such regulations as are necessary 
 to carry out the provisions of the law in regard to the importa- 
 tion, manufacture and sale of distilled liquors. 2 
 
 The courts have frequently been called upon to determine 
 the exact nature of the territorial courts. It has been decided 
 that they are to be deemed strictly territorial, and in no just 
 sense constitutional courts in which the power conferred by 
 the Constitution is deposited. They are purely territorial 
 creations, 3 administrative bodies, and not courts of the United 
 States; 4 and a territorial judge not being a constitutional, but 
 only an administrative officer, is not regarded as liable to im- 
 peachment, but to suspension and removal by the President. 5 
 
 The District of Columbia is governed pursuant to the con- 
 stitution, which provides that Congress shall have power " to 
 exercise exclusive legislation in all cases whatsoever, over such 
 district (not exceeding ten square miles) as may by cession of 
 particular States, and the acceptance of Congress, become the 
 seat of government of the United States." 6 The legislative 
 power thus given to Congress is direct, exclusive and absolute, 
 and cannot be constitutionally delegated to any other body. 7 
 The administration of the government is committed to three 
 
 1 Laws of 1884, ch. 53, sec. 9. 
 
 2 As to the constitutionality of laws delegating powers of a legislative nature 
 to the executive officers above named, see the Louisa Simpson, 2 Sawyer, 57. 
 
 3 Burgess, Pol. Sc. and Const. Law, vol. 2, p. 332. 
 
 •American Ins. Co. vs. Canter, 1 Pet. 511 ; U. S. vs. Reynolds, 98 U. S. 145; 
 Clinton vs. Englebrecht, 13 Wall. 434; U. S. vs. Guthrie, 17 How. 284. 
 
 5 Howard vs. U. S., 22 Ct. of CI. 305; McAllister vs. U. S., 141 U. S. 174. 
 
 6 Art. 1, sec. 8, clause 17. 
 
 7 Roach vs. Van Riswick, 4 MacArthur, 171 ; 15 Op. Att'y-Gen'l, 56. See 
 also Eckloff vs. Dist. of Columbia, 4 Mackey, 572. 
 
183] GO VERNMENTAL PO WERS 5 j 
 
 commissioners, appointed by the President. Concerning this 
 government, Bryce in his "American Commonwealth" says, 
 " strangely enough, though it is practically a despotism, it 
 (Washington) is the best governed city in the country." 1 
 
 1 It has been proposed that Albany should be governed by the legislature of 
 New York through a special committee of the legislature. See N. Y. Herald, 
 Jan. 29, 1895. 
 
CHAPTER VII 
 
 THE POWER OF THE COURTS TO DECLARE STATUTES 
 UNCONSTITUTIONAL 
 
 There is no safeguard in the balancing of powers itself, 
 which prevents the actual encroachment of one department, 
 generally the legislative, upon the province of the other depart- 
 ments. Although an act of any department of government, 
 beyond the scope of its constitutionally delegated power, must 
 legally be regarded as a void act, yet the constitutions do 
 not expressly indicate how or by whom it is to be determined 
 whether any one of the departments or any agent of the gov- 
 ernment is actually infringing upon and assuming powers dele- 
 gated to another department or agent of the government, or 
 otherwise assuming unauthorized power. The assumption of 
 this power by the courts in the United States has raised those 
 tribunals to their unique and exalted position. The exercise 
 of the power to declare statutes unconstitutional and void 
 serves the courts as a shield of protection as a co-ordinate 
 department of government, and serves the state as a balance- 
 wheel between each of the departments. This power is to the 
 courts what the veto is to the executive. 
 
 New Jersey, North Carolina, Rhode Island and Virginia 
 each claim the distinction of priority in deciding this principle 
 of our constitutional law. 1 
 
 In New Jersey the question as to where this power was 
 
 1 See Carson's The Supreme Court of the United States, p. 120 ; Cooley's Const. 
 Limitations, chap, vii, p. 193, n. ; Charles B. Elliott, " The Legislature and the 
 Courts," Political Science Quarterly, vol. v, p. 224; The Nation, March 7, 1889; 
 Sept. 28, 1893; Oct. 12, 1893; "Relation of the Judiciary to the Constitution," 
 19 American Law Review, 180. 
 
 52 [184 
 
185] GOVERNMENTAL POWERS 53 
 
 vested was considered in 1779 in the case of Holmes against 
 Walton, arising under what were then known as the Seizure 
 Laws. The legislature enacted that trials under the above laws 
 should be held before a jury of only six men. Notwithstand- 
 ing that the court was then under legislative control, it held 
 that this was an unconstitutional jury. The legislature ac- 
 quiesced in the decision. It repealed that part of the act 
 which related to the jury, and substituted a constitutional jury 
 of twelve men in its place. 1 
 
 In Virginia the question was raised, but not decided, as 
 early as 1772, in the case of Robinson against Hardaway. 2 
 
 In 1778 the legislature of Virginia passed a conditional act 
 of attainder. It was never enforced ; but it is uncertain whether 
 the court refused to pass sentence under this law, and therefore 
 put the person charged on trial according to the ordinary 
 course of law, 3 or whether the act was not enforced on account 
 of the voluntary action of the attorney-general. 4 
 
 In 1782 an act passed by the legislature in 1776, taking 
 from the executive his constitutional power of pardon, reached 
 the courts. 5 The judge, without deciding the question at 
 issue, said : " If the whole legislature — an event to be depre- 
 cated — -should attempt to overleap the boundaries prescribed 
 to them by the people, I, in administering the justice of the 
 country, will meet the united powers at my' seat in this 
 tribunal, and pointing to the Constitution will say to them, 
 ' Here is the limit of your authority ; hither shall you go, but 
 no further.' " The reporter's note to that case states that all 
 the judges were of the opinion that the court had the power to 
 
 1 Holmes vs. Walton, Papers of American Historical Society, vol. ii, p. 46. 
 The case is referred to in State vs. Parkhurst, 4 Halstead, 444, and in Taylor vs. 
 Reading, 4 Halstead (App.), 440. 
 
 2 Jefferson's Reports, 109. 
 
 5 Tucker's Blackstone, Appendix, p. 293. 4 4 Burk, 305. 
 
 5 Commonwealth vs. Caton, 4 Call, I. Rives' Life of Madison, vol. ii, p. 262 
 et sea. 
 
5 4 THE SEPARA TION OF [ 1 8 6 
 
 declare any act of the legislature to be unconstitutional and 
 void. 
 
 In 1788, the question was finally put to rest in that com- 
 monwealth by the interesting Case of the Judges. 1 The legis- 
 lature had passed an act increasing the burdens of the judges. 
 The judges in their remonstrances to the general assembly 
 declared that the constitution and acts were in opposition, and 
 could not exist together, and that the former must control the 
 latter; that if this opinion needed any support, it could be 
 found in the opinion of the legislators themselves, who had in 
 several instances considered the constitution as prescribing 
 limits to their powers as well as to those of the other depart- 
 ments of the government. To obviate the objection that the 
 courts, while maintaining the independence of the judiciary, 
 were encroaching upon the other departments, and assuming 
 the right to control the legislature, it was observed that 
 when the courts decided between an act of the people and an 
 act of the legislature, they were within the line of their duty, 
 declaring what the law is and not making a new law ; and that, 
 if the legislature should be disappointed, it could take an ap- 
 peal to the people, who could exercise their original and 
 supreme power whenever they thought proper to do so. 2 
 
 In 1784 the mayor's court of New York City held the 
 Trespass Act, authorizing owners to bring actions against 
 those who occupied their houses under British orders during 
 the British occupation, unconstitutional. The decision rested 
 on the general principle that the act was against natural 
 reason and justice.3 Mass meetings were held in the city de- 
 claring such power most pernicious, and the assembly re- 
 solved such power would render legislation useless. 4 
 
 1 4 Call, 135. 
 
 2 This principle was reaffirmed in 1792 in Turner vs. Turner, 4 Call, 234, and 
 in 1793 in Kempner vs. Hawkins, 2 Virginia Cases, 211. 
 
 8 Rutgers vs. Waddington, Dawson's Pamphlet, 44. See Coxe, Judicial Power 
 and Unconstitutional Legislation, p. 223. 
 
 4 McMaster's History of the People of the United States, vol. i, pp. 219, 220. 
 
1 87 J GOVERNMENTAL POWERS 55 
 
 In 1786 the legislature of Rhode Island passed an act to 
 force people to accept paper money at its face value, and 
 a penalty for refusing so to receive it was made collectible 
 on summary conviction, without trial by jury. The court in- 
 timated that the act was void, because jury trial was assured 
 by the Colonial Charter which then constituted the consti- 
 tution of the commonwealth, but dismissed the case for want 
 of jurisdiction. The law was repealed, but the judges were 
 punished by a refusal of the legislature to re-elect them. 1 
 
 The case of Bayard against Singleton reached the supreme 
 court of North Carolina in 1786, at which time the judges 
 comprising it had already asserted its authority to declare void 
 and unconstitutional acts of the legislature. The court, how- 
 ever, held the case under advisement until 1787, when it de- 
 clared the law then in question void, as destructive of trial by 
 jury. 
 
 It was often difficult for men trained under the English 
 system of jurisprudence to conceive the idea that a mere court 
 should assume the prerogative of setting aside a law enacted 
 by the legislature and approved by the executive. 2 This doc- 
 trine has met with great opposition in the Western States. In 
 1805 a law passed by the legislature of Ohio, extending the 
 jurisdiction of the justices of the peace, was declared void. 3 
 Public clamor denounced this proceeding of the court as an 
 unwarranted assumption of power. Two judges were im- 
 peached, but acquitted. 4 The doctrine was subsequently 
 
 1 Trevctt vs. Weeden ; Arnold's History of Rhode Island, vol. ii, chap. 24, p. 
 525. Judge Cooley cites this as the first case which declared this principle; 
 Const. Limitations, 6th edition, pp. 193, 194 n. In this he is followed by Prof. 
 Bryce, The American Commonwealth, vol. i, p. 244. See Pol. Sc. Quarterly, 
 vol. v, p. 234. 
 
 * Rogers' Constitutional History of the United States, p. 10. 
 
 3 Case of Judge Pease. Cooley's Const. Limitations, p. 160 n. 
 
 * West. Law Monthly, June, 1863. 
 
5 6 THE SEPARA TION OF [ 1 8 8 
 
 affirmed by the courts of that commonwealth without opposi- 
 tion. 1 
 
 In Kentucky a legislative act which relieved the bank of 
 the commonwealth from redeeming its notes in specie, was 
 declared unconstitutional. 2 The legislature thereupon affirmed 
 the constitutionality of the law. The issue of the election of 
 1824 was made to depend upon the right of the courts to 
 annul a law passed by the representatives of the people. A 
 majority, but not the required two-thirds of the House of Rep- 
 resentatives, voted to impeach the judges. The legislature 
 also repealed the law by which the court was organized, and 
 enacted a law for the establishment of a new court. The 
 courts held this act unconstitutional. This gave rise to two 
 parties, the old and the new court parties. The old court 
 party ultimately prevailed. 3 
 
 As late as 1890 a decision of the Supreme Court of the 
 United States, denying the legislature of Minnesota the 
 power to fix railroad rates, aroused violent protests from the 
 Farmers' Alliance. The Alliance passed resolutions declaring : 
 " We call attention to the fact that the citizens of England, 
 from whom we have largely derived our form of government, 
 would not permit for one instant a bench of judges to nullify 
 an act of parliament. No civilized government on earth has 
 ever conferred such powers upon a court as are by our consti- 
 tution granted to the United States Supreme Court. In our 
 attempts to protect the rights of property, we have created a 
 machine that threatens to destroy the rights of man." 4 
 
 1 Jordan vs. Dayton, 4 Ohio, 294, decided in 1829. 
 
 2 Lapsley vs. Breashear, 4 Litt. 47. 
 
 8 Collins' History of Kentucky, vol. i, pp. 218, 222. 
 
 1 Pol. Sc. Quarterly, vol. v, pp. 248, 369. In Switzerland, the only existing 
 republican state, besides the United States, with a federal form of government, 
 the cantonal courts have not, except in Uri, the power to declare invalid a law 
 enacted by a cantonal legislature. Swiss Federal Const, of 1874, arts. 102, no, 
 114. See Dub's " Das oeffentliche Recht der Zweizerischen Eidgenossenschaft," 
 Pt. I, p. 113. 
 
189] GO VERNMENTAL PO WERS 5 7 
 
 The power of the United States courts to declare statutes 
 unconstitutional and void, was in due time asserted by 
 the Supreme Court of the United States. In March, 1792, 
 Congress by law directed the various circuit courts of the 
 United States to pass upon the validity of pension claims, but 
 subjected their decisions to review by the Secretary of War, 
 and finally to revision by Congress. The judges of the circuit 
 court for the district of Pennsylvania addressed a letter to the 
 President, declaring that they could not proceed under the act 
 because the business directed was not of a judicial nature, and 
 because the judgment of the court would be controlled by the 
 legislature or by an executive officer, which would be incon- 
 sistent with the independence of the judicial power which was 
 vested in the courts. 1 The judges of the circuit court for 
 New York unanimously agreed that it was the duty of each 
 branch of the government to abstain from and oppose en- 
 croachments by any department upon either of the others; 
 that the duties assigned by the act were not judicial, and that 
 by the Constitution neither the Secretary of War nor other 
 executive officer, nor any legislative authority, could sit as a 
 court of errors on the judicial acts or opinions of the courts. 
 But, taking into consideration the benevolent object of the act, 
 they agreed to execute it as commissioners. The circuit 
 court for North Qarolina sent like remonstrances to the Presi- 
 
 1 More recently the United States Supreme Court has held for quite similar 
 reasons that it cannot be granted jurisdiction to review the action of the Court of 
 Claims in respect to a claim examined and allowed in the latter court under an act 
 of Congress, under which neither the Court of Claims nor the Supreme Court could 
 do any more than certify their opinion to the Secretary of the Treasury, and under 
 which, whether the claim was paid or not did not depend upon the decision of 
 the court, but upon the future action of the Secretary of the Treasury and of Con- 
 gress. Gordon vs. U. S, 117 U. S. 697. See In re Sanborn, T48 U. S. 222; 
 DeGroot vs. U. S., 5 Wall. 419. The Constitution of North Carolina gives the 
 court original jurisdiction over claims against the government, but provides that its 
 hearings shall be merely recommendatory, and that its decision shall be reported 
 to the next general assembly for its action. — Art. iv, sec. II. See Bledsoe 
 vs. State, 64 N. C. 392. 
 
5 8 THE SEPARATION OF [190 
 
 dent. Judge Wilson, however, refused to act even as a com- 
 missioner. Shortly thereafter, William Hayburn petitioned 
 for a mandamus to compel the circuit court for Pennsylvania 
 to proceed under the act of Congress and to pass upon the 
 validity of his pension claim. 1 As the legislature provided 
 another means for the relief of pensioners while the court 
 held the above motion under advisement, no decision was ever 
 pronounced. 
 
 The new act imposed upon the Secretary of War and At- 
 torney-General the duty to obtain an adjudication of the 
 Supreme Court upon the validity of the pensions allowed by 
 the determination of certain persons who styled themselves 
 commissioners under the act of 1792. An amicable action 
 was therefore brought by the United States against Yale Todd. 
 The judges of the Supreme Court were unanimously of the 
 opinion that the power given to the circuit courts as courts 
 could not be construed to be given to the judges out of court, 
 as commissioners. They held the act unconstitutional because 
 it imposed non-judicial functions on the judiciary, and decided 
 that the judges had not the right voluntarily to proceed under 
 the act as commissioners. 2 
 
 In 1795 a United States circuit court held unconstitutional 
 the Quieting and Confirming Act of Pennsylvania, relative to 
 her controversy with Connecticut as to the title to certain 
 lands. The court declared that every act of the legislature re- 
 pugnant to the Constitution is absolutely void. If a legislative 
 act impugns a constitutional provision, the former must give 
 way. In such case it will be the duty of the court to ad- 
 here to the Constitution and to declare the act null and void. 3 
 Although this opinion had been repeatedly reaffirmed, 4 yet as 
 
 1 Hayburn's Case, and note, 2 Dallas, 409. 
 
 2 United States vs. Fereira, 13 Howard, 52 n. 
 
 3 Van Horn's Lessee vs. Dorrance, 2 Dall. 304. 
 
 4 United States vs. Villato, 2 Dall. 370, 1797; Hylton vs. United States, 3 
 Dall, 171, 1796; Calder vs. Bull, 3 Dall. 386, 1798. 
 
1 91 J GOVERNMENTAL POWERS 59 
 
 late as 1800 Mr. Justice Chase declared: "Although it is 
 alleged all acts of the legislature in direct opposition to the 
 Constitution are void, still it is a question where the power re- 
 sides to declare them void." 1 
 
 Therefore, notwithstanding the case of United States vs. 
 Todd, this question might still have been considered an open 
 one when it came before the Supreme Court in 1803, involved 
 as it was in the case of Marbury against Madison. 2 
 
 By means of a remorseless logic from which there can be no 
 escape, Chief Justice Marshall shivered into atoms any preten- 
 sions of Congress to override the Constitution. In an opinion 
 which cannot be abridged, or too frequently quoted, he says : 
 " The question whether an act repugnant to the constitution 
 ■can become the law of the land, is a question deeply interesting 
 to the United States ; but happily not of an intricacy propor- 
 tioned to its interest. It seems only necessary to recognize 
 certain principles supposed to have been long and well estab- 
 lished, to decide it. 
 
 " That the people have an original right to establish for their 
 future government such principles as in their opinion shall 
 most conduce to their own happiness, is the basis on which the 
 whole American fabric has been erected. . . . 
 
 " The original supreme will organizes the government and as- 
 signs to the different departments their respective powers. It 
 may either stop here, or establish certain limits not to be 
 transcended by those departments. . . . 
 
 "The powers of the legislature are denned and limited; and that 
 those limits may not be mistaken or forgotten, the constitution 
 is written. To what purpose are powers limited, and to what 
 
 1 Cooper vs. Telfair, 4 Dall. 19. 
 
 * 1 Cranch, 137. It may be interesting to observe that Marshall studied law 
 under Chancellor George Wythe, who gave expression to the opinion of the court 
 in the case of Commonwealth vs. Caton [ante, p. 53), and that Judge Iredell, one 
 of the associate justices of the Supreme Court, concurring in the decision of 
 Marbury vs. Madison, was counsel for the plaintiff in the case of Bayard vs. Sin. 
 gleton. (See ante, p. 55.I 
 
6o THE SEPARATION OF [192 
 
 purpose is that limitation committed to writing, if those limits 
 may at any time be passed by those intended to be restrained ? 
 
 "The constitution is either a superior paramount law, un- 
 changeable by ordinary means, or it is on a level with ordinary 
 legislative acts, and like any other act is alterable when the 
 legislature shall please to alter it. 
 
 " If the former part of the alternative be true, then a legislative 
 act contrary to the constitution is not law. If the latter part be 
 true, then written constitutions are absurd attempts on the part 
 of the people to limit a power in its own nature illimitable. 
 
 " Certainly all those who have framed written constitutions, 
 contemplate them as forming the fundamental and paramount 
 law of the nation, and consequently the theory of every such 
 government must be, that an act of the legislature repugnant 
 to the constitution is void. 
 
 " This theory is essentially attached to a written constitution, 
 and is consequently to be considered by this court as one of 
 the fundamental principles of society. It is not, therefore, to 
 be lost sight of in the further consideration of this subject. 
 
 " If an act of the legislature repugnant to the constitution is 
 void, does it, notwithstanding its invalidity, bind the courts 
 and oblige them to give it effect ? Or, in other words, though 
 it be not law, does it constitute a rule as operative as though it 
 was a law ? This would be to overthrow in fact what was 
 established in theory ; and would seem at first view an absur- 
 dity too gross to be insisted upon. 
 
 " It shall, however, receive a more attentive consideration. It 
 is emphatically the province and duty of the judicial department 
 to say what the law is. Those who apply the rule to particu- 
 lar cases must of necessity expound and interpret that rule. If 
 two laws conflict with each other, the courts must decide upon 
 the operation of each. So if a law be in opposition to the 
 constitution ; if both the law and the constitution apply to a 
 particular case, so that the court must either decide that case 
 conformably to the law, disregarding the constitution, or con- 
 
193] GOVERNMENTAL POWERS Q t 
 
 formably to the constitution, disregarding the law — the court 
 must determine which of these conflicting rules governs the 
 case. This is of the very essence of judicial duty. 
 
 " If, then, the courts are to regard the constitution, and the 
 constitution is superior to any ordinary act of the legislature, 
 the constitution, and not such ordinary act, must govern the 
 case to which they both apply, Those, then, who controvert 
 the principle that the constitution is to be considered in court 
 as a paramount law, are reduced to the necessity of maintaining 
 that courts must close their eyes on the constitution and see 
 only the law." 
 
 This opinion established the principle upon a legal basis 
 which cannot be shaken. 1 
 
 Lieber says, " The court does not decide upon the doings of 
 the legislature. It simply decides for the case in hand whether 
 there actually are conflicting laws, and if so, which is the 
 higher law that demands obedience, when both may not be 
 obeyed at the same time. As however the decision becomes the 
 leading decision for all future cases of the same import, until 
 indeed legitimate and proper authority reverses it, the question of 
 constitutionality is virtually decided, and it is decided in a nat- 
 ural, easy, legitimate and safe manner, according to the princi- 
 ple of the supremacy of a law, and the dependence of justice." 2 
 
 Nor does this construction imply a superiority of the ju- 
 dicial to the legislative power. It only implies that the power 
 of the people is superior to both, and that where the will of 
 the legislature declared in its statute stands in opposition to 
 
 1 See also Cohen vs. Virginia, 6 Wheaton, 264, and Fletcher vs. Peck, 6 Cranch, 
 Sy ; Federalist, nos. 22, 78, 80-82 ; Webster on the " Independence of the Judi- 
 ciary," Webster's Works, vol. iii, p. 29. See 131 U. S., Appendix, p. 235, for list 
 of cases in which Supreme Court has held statutes void. See, for comment upon 
 this list, Coxe, Judicial Power and Unconstitutional Legislation. This author 
 maintains that the Constitution of the United States was intended to confer, and 
 does expressly confer, authority upon the courts to determine legislation to be un- 
 constitutional. 
 
 2 Lieber's Civil Liberty and Self- Government. 
 
62 THE SEPARATION OF [194 
 
 the will of the people declared in the constitution, the judges 
 ought to be governed by the latter rather than by the former. 1 
 
 Notwithstanding the firmness with which the foregoing prin- 
 ciple has been established, it would be error to infer that the 
 courts are the only, or, in every case, the ultimate interpreters 
 of the constitution. 2 
 
 Every department of government invested with certain con- 
 stitutional powers, must in the first instance be the judge of 
 its powers under the constitution, or it could not act. 3 So, if 
 a department is required to act in a case not hitherto settled 
 by any proper authority, such department must in the first in- 
 stance decide for itself whether, consistently with the constitu- 
 tion, the act can be done. 
 
 In many cases the decisions of the executive and the legis- 
 lative departments become final and conclusive, being from 
 their very nature incapable of revision. Thus as matters ex- 
 clusively of a political or discretionary character belong to the 
 legislative and executive departments, they cannot be examined 
 elsewhere. 4 Under a constitutional provision that " In all cases 
 
 1 Bates vs. Kimball, 2 Chipp, 77. 
 
 2 Soon after the adoption of the United States Constitution, several common- 
 wealths contended that each commonwealth had a. right to judge for itself as well 
 of the infractions of that Constitution as of the mode and measure of redress. See- 
 Virginia Resolutions of ijgS ; Kentucky Resolutions of 1797, I7<)<). But 
 
 subsequent events have established too firmly to admit of doubt that the United 
 States Supreme Court, and not any commonwealth, or its agencies, is the- 
 ultimate tribunal to determine whether laws of Congress, or of the common- 
 wealth legislatures, or decisions of the commonwealth courts, are in conflict with 
 the Constitution of the United States. Dodge vs. Woolsey, 18 How. 331 ; Martin 
 vs. Hunter's Lessee, I Wheat. 304 ; Story's Com. on the Const., vol. I, pp. 228, 
 275 ; North American Review, Oct., 1830, p. 500. 
 
 3 Kendall vs. Inhabitants of Kingston, 5 Mass. 524. 
 
 4 See Luther vs. Borden, 7 How. 1 ; Cherokee Nation vs. Georgia, 5 Peters, 
 I ; Mississippi vs. Johnston, 4 Wallace, 475 ; Georgia vs. Stanton, 6 Id. 50. 
 Certainly the court must, when called upon to do so, itself finally determine 
 when the case is one primarily affecting private rights and private property, and 
 when, on the contrary, it is primarily a political question. Burgess, Pol. Sc. and 
 Const. Law, vol. 2, p. 327. The court finally determines whether it may review 
 
 t he action of the other departments. 
 
195] GOVERNMENTAL POWERS 63 
 
 where a general law can be made applicable, no special law 
 shall be enacted," it is well settled that the legislature has the 
 ultimate power to determine the cases in which special laws 
 may constitutionally be passed. 1 Where the constitution 
 empowers the executive to convene the legislature on extra- 
 ordinary occasions, he alone is the judge as to whether ex- 
 traordinary occasions within the meaning of the constitution 
 have arisen, and neither the legislative department nor the 
 judicial department can intervene to compel or enjoin action. 2 
 
 In taking care that the laws be faithfully executed, it may 
 become necessary for the executive to interpret the true mean- 
 ing of the constitution and of statutes. 3 If no proper case for 
 the judicial revision of his interpretation of the constitution, or 
 even of a statute, can be framed, and the legislature cannot 
 override the veto which the executive may put in the way of 
 revising his interpretation, the executive's interpretation be- 
 comes in fact ultimate. His construction of a law, and his 
 decision as to its constitutionality, is binding upon and must 
 be followed by his subordinates. So, where a governor held a 
 provision in a law, exempting certain persons under certain 
 conditions from a tax, unconstitutional, and directed the tax 
 to be levied on the property sought to be exempted, it was 
 held that his subordinates must act accordingly. 4 
 
 Whenever the executive or legislative departments are called 
 
 'State vs. Hitchcock, I Kan. 178. See State vs. Boone City Court, 50 Mo. 
 317; Patterson vs. Barlow, 60 Pa. St. 54; Malory vs. Henrietta, II Ohio St. 636. 
 
 2 Cooley's Const. Limitations, p. 55. See In re State Censor, 21 Pac. R. 477; 
 Whitman vs. R. R. Co., 2 Harr. (Del.) 514; Martin vs. Mott, 12 Wheat. 19. 
 
 3 See United States vs. Lytle, 5 McLean, 9; State vs. Hallock, 16 Mo. 373; 
 Castro vs. De Uriarte, 16 Fed. Rep., 93. The Revenue Act of Aug. 24, 1894, 
 contains a paragraph providing for the refunding of the internal revenue tax 
 paid on alcohol used in the arts. The executive department concluded that it 
 would be impossible to carry out its provisions without further legislation, and ac- 
 cordingly the rebate on this tax has never been paid. 
 
 * State vs. Buchanan, 24 W. Va. 362. See U. S. vs. Marble, 3 Mackey, 32 ; 
 State vs. Kelsey, 44 N. J. L. I. 
 
64 THE SEPARATION OF [196 
 
 upon to act, they may construe the constitution for themselves 
 to the extent of abstaining from exercising a power because 
 they deem its exercise unconstitutional, even though the 
 courts have declared it a constitutional assumption of power. 
 On the other hand, acts and powers, the assumption of which 
 the courts have declared unconstitutional, the departments 
 ought to abstain from exercising, because the state has estab- 
 lished and ordained the courts, as its agent, to determine 
 the extent of the powers granted to the departments. In 
 other words, the departments may refrain from exercising 
 powers which the court has considered constitutional because 
 they deem them unconstitutional, but should not exercise a 
 power which the court has declared unconstitutional because 
 they deem it constitutional ; that is, the departments may 
 properly consider themselves entitled to less power than the 
 court would grant them, but not to greater powers. In this 
 sense the departments may ultimately construe the constitu- 
 tion, and treat as unconstitutional an act which the courts 
 declare constitutional ; but they never properly exercise the 
 power to declare constitutional what the courts declare uncon 
 stitutional. 1 
 
 Thus President Jackson acted within the spirit of the Con- 
 stitution when, in opposition to the decision of the United 
 States Supreme Court, maintaining the constitutionality of the 
 act establishing the Bank of the United States, he vetoed a bill 
 providing for a re-charter of the Bank, because he considered 
 it unconstitutional, notwithstanding the decision of the court 
 
 1 The same person who as a legislator would refrain from supporting a proposed 
 law because he considered that it would be unconstitutional, may as a judge feel 
 compelled to declare it constitutional, on account of judicial precedent. Mr. 
 White as a member of Congress refused to support the Income Tax Law of 
 August 24, 1894, because he thought it unconstitutional, notwithstanding any 
 possible decision of the courts to the contrary. When afterwards the question of 
 its constitutionality was presented to him as one of the justices of the Supreme 
 Court, he declared it constitutional. Pollock vs. Farmers' Loan & Trust Co., 
 157 U. S. 429, 158 Id. 601. 
 
197] GOVERNMENTAL POWERS 65 
 
 to the contrary. But, the language which he used in justi- 
 fication of his action is too general to be entirely correct. In 
 the course of his veto message he said : " It is maintained by 
 the advocates of the bank that its constitutionality in all its 
 features ought to be considered as settled by precedent and 
 by the decision of the Supreme Court. To this conclusion I 
 
 cannot assent The opinion of the Supreme Court 
 
 ought not to control the co-ordinate authorities of this gov- 
 ernment. The Congress, the Executive and the Court must 
 each for itself be guided by its own opinion of the constitu- 
 tion. Each public officer who takes an oath to support the 
 constitution swears that he will support it as he understands 
 it. It is as much the duty of the House of Representatives, 
 of the Senate, and of the President to decide upon the con- 
 stitutionality of any bill or resolution which may be presented 
 to them for passage or approval as it is of the Supreme Judges, 
 when it may be brought before them for judicial decision. 
 The opinion of the judges has no more authority over Con- 
 gress than the opinion of Congress has over the judges, and 
 on that point the President is independent of both. 
 
 " The authority of the Supreme Court must not, therefore, 
 be permitted to control Congress or the Executive when acting 
 in their legislative capacity, but to have only such influence as 
 the force of their reasoning may deserve." 
 
 The President having been empowered to veto acts of the 
 legislature, in his own discretion, he can give as the reason for 
 the exercise of his discretion the fact that he deems the pro- 
 posed law unconstitutional, though the courts have held a 
 similar act constitutional. 1 
 
 1 President Lincoln, referring to the decision in the Dred Scott Case, in his 
 inaugural speech, said : " I do not forget the position assumed by some that con- 
 stitutional questions are to be decided by the Supreme Court, nor do I deny that 
 such decision must be binding in any case on the parties to a suit — as to the object 
 of that suit — while they are entitled to very high respect and consideration by all 
 the other departments of the government. . . 
 
 "At the same time the candid citizen must confess that if the policy of the 
 
QQ THE SEPARATION OF ^198 
 
 So, likewise, if the President is called upon to pardon a 
 person imprisoned under a law, whether summarily or after a 
 trial in which the validity of the law was asserted, he may 
 grant the pardon, because he deems the law unconstitutional, 
 even though the courts have declared it constitutional. Thus, 
 Jefferson undoubtedly acted within his authority when he 
 pardoned persons imprisoned under the alien and sedition 
 laws, because he considered them unconstitutional. In justify- 
 ing his action, however, he used language which the occasion 
 did not require. He said, " Each department of the govern- 
 ment is truly independent of the others, and has an equal right 
 to decide for itself what is the meaning of the constitution in 
 the laws submitted to its action, and especially when it is 
 to act ultimately and without appeal." * 
 
 This statement is erroneous. In all cases, except those of a 
 political or discretionary character, like those above referred to, 
 the decisions of the courts ought to be regarded as binding on 
 the other departments of government, because the court, in all 
 other cases, was intended as the final expositor of the constitu- 
 tion. Were the President, because he thought the decision of 
 a court unconstitutional, to refuse or to prevent the enforce- 
 ment of its judgment in a case in which his assistance is 
 needed, he would in effect be sitting as a court of appeals, as- 
 suming the judicial power vested by the constitution in the 
 courts. 
 
 In the history of our country the judgments of the courts 
 have failed to receive the proper recognition of the executive on 
 at least two occasions. 
 
 During Jackson's administration, the Supreme Court de- 
 government upon vital questions affecting the people is to be irrevocably fixed by 
 the decisions of the Supreme Court, the instant they are made in ordinary litiga- 
 tion between parties in personal actions, the people will have ceased to be their 
 own rulers, having to that extent practically resigned their government into the 
 hands of that eminent tribunal." 
 
 1 4 Correspondence, 316, 317. 
 
199] GOVERNMENTAL POWERS Qj 
 
 clared a law of Georgia forbidding white persons to reside 
 within the land of the Cherokee Nation unconstitutional, and 
 ordered Worcester, a missionary, who had been imprisoned 
 under it, to be released. 1 Georgia would not obey, and Jackson 
 would not enforce obedience. He is reported to have said, 
 " John Marshall has made his decision, now let him enforce it." 2 
 
 At the outbreak of the rebellion in 1861, one Merryman, 
 suspected of treason, was arrested by a military officer, and 
 placed in confinement at Fort McHenry. Chief Justice Taney 
 issued a writ of habeas corpus to the officer who had Merry- 
 man in charge. The officer refused to obey the writ on the 
 ground that the President had authorized him to suspend it. 
 On account of the danger of a conflict with the executive who, 
 with the acquiescence of the nation, had assumed despotic 
 war powers, the Chief Justice took no further action beyond 
 filing an opinion to the effect that the privileges of the writ 
 could not be suspended except by act of Congress. 3 
 
 While the reconstruction of certain commonwealths was 
 going on, after the rebellion, Congress so shaped its legislation 
 that the Supreme Court had no opportunity to pass upon the 
 validity of the Re-construction Acts. As the original juris- 
 diction of the court is limited, and as its appellate jurisdiction 
 is by the Constitution subject to "such exceptions and regula- 
 tions as Congress shall provide, 4 Congress, fearing an adverse 
 decision on appeal in a case then pending, involving the consti- 
 tutionality of those acts, repealed the statute under which the 
 appeal was taken and thus compelled the court to dismiss it. s 
 
 In every case in which the executive for any reason what- 
 soever refuses to enforce the judgment of the court, he is 
 
 1 Worcester vs. Georgia, 6 Pet. 515. 
 
 2 Von Hoist, Const. History, vol. 1750-1832, p. 458. 
 
 3 See Merryman's Case, Taney, 246. 
 
 * Ex parte Yerger, 8 Wall. 85; The Lucy, 8 Wall. 307. 
 5 See McCardle's Case, 7 Wall. 506. 
 
68 THE SEPARATION OF [ 2 oO 
 
 guilty of a violation of the constitution, and is responsible pri- 
 marily to the legislature, and ultimately to that great tribunal 
 to which each department is responsible, the people. 1 
 
 1 See Story, Com. on the Const., vol. I, p. 273; vol. 2, p. 391 ; Cooky's Const. 
 Limitations, p. 68 ; " Are the Departments of Government Independent ?" Am. 
 L. Rev., March, 1887. 
 
PART II 
 
 CHAPTER VIII 
 
 RESTRICTED MEANING OF THE TERMS LEGISLATIVE, 
 EXECUTIVE AND JUDICIAL IN THE DISTRIB- 
 UTING CLAUSE. 
 
 (Although the three chief governmental powers of the 
 central and commonwealth governments are vested in three 
 distinct and independent departments, what are legislative, 
 executive or judicial powers within the meaning of the distrib- 
 uting clause, is not defined or expressed in any of the constitu- 
 tions. The boundary linaJb ejajjeen^hatn-ig-u-ndafeed-and-often 
 difficult, ta-cktermine^ 
 
 As the succeeding pages will showf the courts, when called 
 upon to determine the exact meaning ofthe distributing clause, 
 have often construed it as though it provided that powers leg- 
 islative in their nature are vested in the legislature, powers 
 executive in their nature in the executive department of gov- 
 ernment, and powers judicial in their nature in the courts ; and 
 that the legislature shall never assume powers judicial or 
 executive in their nature, nor the executive department powers 
 legislative or judicial in their nature, nor the judicial depart- 
 ment powers legislative or executive in their nature, fit must, 
 however, be self-evident that no clear distinction can be based 
 upon the nature of the powers to be exercised by the different 
 departments^ 
 
 1 State vs. Peters, 43 Ohio St. 629. In the New J-Iampshire Constitution (pt. ii) 
 an effort has been made to define legislative power, but not with much success. 
 201] 69 
 
JO THE SEPARATION OF [202 
 
 Any act which in effect establishes a rule of civil conduct 
 _v irrespective 7 of the i manner in which, "or the bcdy by which, it 
 is enacted, must be conceded to be legislative in its_nature. 
 Of such nature are not only the laws passed by Congress and 
 the commonwealth legislatures, but also the rules of practice 
 and the common law principles established by the decisions of 
 courts and the rules and regulations established by the execu- 
 tive department in the exercise of its delegated ordinance 
 power. 
 
 Powers legislative in their nature are also exercised by 
 various bodies and officers, not belonging to either of the three 
 departments of government, such as the municipal council or 
 other legislative body of a city or village, and the officers hav- 
 ing the general control of county affairs, styled in some com- 
 monwealths supervisors, in others county commissioners, and 
 in still others chosen freeholders. 1 
 
 Aay_act_whkh tends, no matJer_howindJr£cJ^.JtoJthe en- 
 \ forcement of a law, or the enforcement of. a superior-command, 
 is executive in its nature. 
 
 Powers conceded by theoretical writers to be executive in 
 their nature would not only include the powers exercised by 
 the executive department, but also many powers actually exer- 
 cised by the legislative and judicial departments, in many 
 cases necessarily, in order to insure their independence. 
 
 Each one of the three departments must have some appoint- 
 ing power as an incident of its principal power, for without it 
 no department can be independent. Where an appointment 
 is essential to the proper exercise of a judicial duty, the court 
 concerned has authority to make it. 2 Likewise, legislative 
 bodies may elect or appoint officers of their respective branches 
 and relative to their department of government. 3 
 
 1 Waugh vs. Chauncey, 13 Cal. 1 1 ; People vs. Carpenter, 24 N. Y. 86. 
 
 2 State vs. Smith, 15 Mo. App. 412; In re Janitor, 35 Wis. 410, relating to 
 the power of a court to appoint its own janitor; State vs. Noble, 118 Ind. 350. 
 
 ' State vs. Hyde, 121 Ind. 20 ; Tenney vs. State, 27 Wis. 388. 
 
203] GOVERNMENTAL POWERS 7 1 
 
 Powers executive in their nature are also often exercised 
 by administrative officers, or bodies not belonging to either 
 the legislative, judicial or even executive department of gov- 
 ernment provided for by the constitution. 1 
 
 Power to hear and to determine, or power to ascertain facts 
 and to apply the law, to the Facts when ascertained, is judicial 
 in. its nature. 
 
 Powers of such a nature are not only exercised by the 
 courts, but also by the legislative and executive departments, 
 and by various administrative bodies and officers not belong- 
 ing to either of the three foregoing departments. 
 
 All -d^par-teents-ahke.. inquire into facts and proceed upon 
 Uoem. Facts are or should be the basis of legislation as well 
 as of judgment, and when there is a doubt or controversy con- 
 cerning them, the considerate legislator stays his hand until 
 they have been ascertained. /So far as the process is con- 
 cerned, that of the legislator and that of the judge are the 
 same; the difference lies in the use to which the facts are put 
 when found!^ 
 
 The po"wers exercised by the legislature in authorizing the 
 sale of lands of persons resting under legal disabilities, and in 
 granting divorces by special laws, are conceded to be judicial 
 in their nature. Of such nature must be presumed to be the 
 power exercised by the legislature in passing upon the validity 
 of claims against the government, and in determining contested 
 election cases. 3 
 
 The power of removal for cause, often vested in the execu- 
 tive, is judicial in its nature. 
 
 1 State vs. Barbour, 53 Conn. 76; Achley's Case, 4 Abb. Pr. 35, which holds 
 that the power conferred upon the common council of a city to appoint to office is 
 executive, and in no sense legislative, and therefore not subject to the veto power 
 of the mayor. 
 
 2 Ex parte Shrader, 33 Cal. 279. See Watkins vs. Holman, 16 Pet. 25 ; 
 Miners' Bk. vs. U. S., Green (la.), 553. 
 
 3 See State vs. Harmon, 31 Ohio St. 250. 
 
72 THE SEPARATION OF [204 
 
 The proceedings before the interstate commerce commis- 
 sion, which like the courts regularly publishes its reports, and 
 before the various commonwealth commissions and boards, are 
 of a judicial nature. 1 Assessors in the valuation of property 
 for taxation, 2 town boards of equalization in determining the 
 value of lands, 3 commissioners appointed to determine and 
 award damages for property taken by virtue of the right of 
 eminent domain, 4 municipal boards authorized to hear and de- 
 termine claims, 5 county commissioners in passing upon claims 
 against the county, 6 school officers in deciding upon the re- 
 moval of a teacher, or the expulsion of a scholar, 7 police boards 
 disciplining a member of the police force by reprimand, for- 
 feiture, withholding of the salary, or dismissal, 8 county com- 
 missioners in deciding upon the application for a permit to sell 
 intoxicating liquors, and inspectors of elections and boards of 
 registration in deciding upon the existence of the necessary 
 qualifications of a voter, 9 exercise powers judicial in their 
 nature. All hear and determine questions in the exercise of 
 their functions more or less directly affecting private as well as 
 public rights. 10 
 
 Besides each one of the departments exercising powers in 
 their nature legislative, executive and judicial, there are many 
 "j administrative officers in every commonwealth vested with 
 like powers. 11 
 
 I Ex parte Shrader, 33 Ca]. 279. 2 Williams vs. Weaver, 75 N. Y. 30. 
 
 3 Steele vs. Dunham, 26 Wis. 393. 4 Van Steenbergh vs. Bigelow, 3 Wend. 42. 
 5 Wall vs. Trumbull, 16 Mich. 228. 6 B'd of Com'rs vs. Gregory, 42 Ind. 32. 
 7 Stephenson vs. Hall, 14 Barb. 222. 8 Laws of N. K, 1882, ch. 410, sec. 272. 
 
 9 Fausler vs. Parsons, 6 W. Va. 486. 
 
 10 As to the constitutionality of vesting these administrative powers, judicial in 
 their nature, in officers other than judicial, see Keely vs. Pittsburgh, 104 U. S. 
 78; Hagar vs. Reclamation District, in U. S. 701 ; Weimer vs. Bunbery, 30 
 Mich. 201 ; McMillen vs. Anderson, 95 U. S. 37. These cases decide that ad- 
 ministrative process of the customary sort is as much due process of law as judicial 
 process. 
 
 II See Waugh vs. Chauncey, 13 Cal. 11. 
 
205] GOVERNMENTAL POWERS 73 
 
 Judge Cooley, in writing about the classification of public 
 officers, says, " The duties imposed upon officers are supposed 
 to be capable of classification under one of these heads, the 
 legislative, executive or judicial, and to pertain accordingly to 
 one of the three departments of government designated by 
 those names. But th£ classification cannot be very exact, and 
 there are numerous officers who cannot be classified at all 
 under these heads. The reasons will be apparent if we name 
 one class as an illustration. Taxing officers perform duties 
 which in strictness are neither executive nor judicial, though 
 in some particulars they merely execute the orders of super- 
 iors, and in others they judge for themselves what is to be 
 done. But sometimes also their duties partake of the legisla- 
 tive character. All such officers are usually called adminis- 
 trative, while inferior executive officers are designated 
 ministerial." * 
 
 The revised statutes of New York of 1830 classified officers 
 within the commonwealth as legislative officers, executive 
 officers, judicial officers, and administrative officers. " The 
 powers of such administrative officers as supervisors and- 
 county commissioners are sometimes legislative, sometimes 
 judicial, and sometimes executive in their nature. They can- 
 not be classed consistently under any particular head ; and so 
 these officers are allowed to perform the duties enjoined upon 
 them by law, without any nice examination into the character 
 of the powers conferred." 2 "The board of supervisors is a 
 special tribunal with mixed powers, administrative, legislative, 
 and judicial." 3 "Judicial powers are often conferred upon offi- 
 cers whose general functions are executive or ministerial ; and 
 
 1 The Southern Law Rev., vol. 3 (N. S.) 531. Administrative officers may be 
 ministerial officers. It would therefore be advisable to employ the term admin- 
 istrative as indicated hereafter. The term ministerial should be used only in con- 
 tradistinction to discretionary or judicial. 
 
 2 State vs. Com'rs, 7 Nev. 392 ; People vs. El Dorado, 8 Cal. 58. 
 
 3 United States vs. Arredendo, 6 Pet. 691, 729. 
 
74 THE SEPARATION OF [206 
 
 merely executive or ministerial functions are often conferred 
 upon those whose general functions are judicial. So executive, 
 ministerial, or even judicial powers are often conferred upon a 
 body of officers whose general functions are legislative." 1 
 
 These illustrations will suffice to show that either the con- 
 stitutions have been violently disregarded in the union of all 
 the powers in each one of the departments, and in certain ad- 
 ministrative officers, or that the distinction between the de- 
 partments was not intended to be based upon differences ex- 
 isting in the nature of the powers to be exercised by each 
 department. 
 
 That no separation of powers, based upon the nature of the 
 different governmental powers, was ever intended to be inserted 
 in our organic law, would convincingly appear from a most 
 cursory perusal of the debates in the constitutional conventions. 
 
 The framers of our constitutions provided for the organiza~ 
 tion of three great departments of government : the legislature, 
 consisting of a comparatively great number of individuals ; the 
 judiciary, consisting of a comparatively small number of individ-. 
 uals ; and the executive department, consisting generally of one 
 individual, or a certain number of individuals expressly speci- 
 fied in the constitution as being members of the executive de- 
 partment of the government. 
 
 Familiar with the theory of Montesquieu, but unfamiliar 
 with any supposed possibility of classifying powers according, 
 to their intrinsic nature, they vested legislative power, mean T 
 ing thereby only the power of enacting general laws for the 
 entire government, in the legislature ; judicial power, meaning 
 thereby only the power of determining and protecting the 
 rights of persons under the constitution and constitutional 
 laws, in the courts; and executive power, meaning thereby 
 the power of seeing that the laws are faithfully executed, in 
 the executive department. 
 
 Next they considered, in the light of the experience of past 
 
 1 Throop's Law of Public Officers, sec. 25. 
 
207] GOVERNMENTAL POWERS 75 
 
 governments, other important powers which they thought their 
 government in the course of its existence would probably be 
 •called upon to exercise. ^They did not enter into a philo- 
 sophical discussion as to whether such a power was legislative, 
 executive or judicial in its nature, but deliberated in which one 
 or more of the departments already established by them the 
 given power could with greatest propriety and safety be vested],/ 
 Certain governmental powers, either because they were not 
 considered of sufficient importance, or because the proper ex- 
 ercise thereof was supposed to require technical knowledge, or 
 because the departments already established were not deemed 
 properly adapted to their exercise, they vested in a govern- 
 mental agency specially created for the purpose, and which did 
 noLform part of either of the three great departments, 
 powers which would require promptitude, activity, decision, 
 or unity of plan, if of sufficient importance, they vested in the 
 executive] /For instance, for such reason, they made the Pres- 
 ident of the United States commander-in-chief of the army 
 and navy of the United States, and of the militia of the several 
 commonwealths when called into the actual service of the 
 United States. 1 
 
 Considering the necessity in every humane government of a 
 power of tempering, in extreme cases, legal justice with mercy, 
 the importance and the liability to abuse of such a power, and 
 the impracticability of a continuous session of the legislature, 
 they vested the pardoning power in the executive. To the ob- 
 jection that such a provision would invest the executive with 
 power judicial in its nature, they gave little attention 2 . 
 
 They did not waste time in discussing whether the power of 
 receiving ambassadors could be considered executive, legisla- 
 tive, or judicial; but, observing that in all foreign governments 
 this power was exercised by the executive department, and 
 taking into consideration the dignity of the office, they vested 
 the power in the President. 3 
 
 1 See Story's Com. on the Const., vol. 2, p. 338. 2 Ibid., p. 330. 8 Ibid., p. 383. 
 
76 THE SEPARATION OF [20& 
 
 Had the constitutional convention tried to determine whether 
 the treaty-making power was executive or legislative in its 
 nature, with a view to vest it accordingly, they would have 
 found that from one point of view, the manner of its exercise,, 
 it would be considered historically as well as theoretically, ex- 
 ecutive ; from another point of view, that of its effect, as legis- 
 lative. 1 
 
 Considering the secrecy and dispatch which may be neces- 
 sary to the making of a treaty, and the want of secrecy and 
 tendency to delay incident to assemblies, they vested the 
 treaty-making power in the executive ; but fearing the liability 
 to abuse of this great power, they subjected it to the deliber- 
 ative assent of two-thirds of the Senate. 2 
 
 Having premised the foregoing, we are now in a position to 
 understand the true and only meaning which can be ascribed 
 to the distributing clause, and also to understand how irrelevant 
 
 1 This example shows the impossibility of basing any distinctions upon the nature 
 of powers. Just as one governmental power may be both executive and legisla- 
 tive in its nature, so a power may be both judicial and legislative in its nature. 
 In designating a power as judicial, we generally refer to the mode of its exercise ;. 
 in speaking of a power as legislative, we often refer to its effect. 
 
 Had a distinction according to the nature of powers been intended, insurmount- 
 able difficulties would have been encountered in the attempt to define the distinctive 
 elements. The confusion which would result must be evident to those who are 
 familiar with the law regarding writs, especially those of certiorari and mandamus, 
 and the law regarding exemption from responsibility of officers for legislative and 
 judicial acts. Acts considered legislative, executive or judicial, when exercised 
 by one body, are considered to be of a different nature when exercised by another 
 body, or even by the same body for different purposes. Acts regarded as of a 
 special nature when reviewed by the courts for one purpose, as, for example, in 
 order to determine the propriety of granting the writ of mandamus, are regarded 
 by the courts as being of an entirely different nature when reviewed by the courts 
 for another purpose, as, for example, in order to determine the responsibility of an 
 officer for his acts. 
 
 Indeed, the decisions of the courts cannot be reconciled to any formula or gen- 
 eral principle or definition. Every case must stand on its own merits, unless an. 
 exact precedent can be found. 
 
 3 See Story's Com. on the Const., vol. 2, p. 346. 
 
■2091 .GOVERNMENTAL POWERS 77 
 
 it is for the courts to discuss the nature of powers, in deciding 
 upon the constitutional exercise of power, and how erroneous 
 are some of the decisions which have been based upon dis- 
 tinctions as to the nature of the powers exercised. 1 
 
 jjhe general clause, vesting legislative power in the legislature ; 
 vests therein only the power of enacting general laws for the 
 entire government^ Besides this, the constitutions specially 
 vest many other powers in the legislature, such as the power 
 •of impeachment, and of removal in certain cases. /Any and 
 every power vested in the legislature by the constitution, and 
 any and every power not delegated to the other depart- 
 ments of the government, or other governmental agency, by 
 the constitution, and properly assumed by the legislature, irres- 
 pective of its nature becomes legislative in the sense that it 
 cannot be delegated to or exercised or controlled by any other 
 •department or authority 
 
 (By the general clause vesting judicial power in the courts, 
 the constitutions do not vest in them all powers judicial in 
 their nature, but only the power to determine and protect 
 legal rights! The constitution certainly may vest other 
 powers in the courts. The legislature also may delegate 
 powers not specially delegated elsewhere by the constitu- 
 tion, and not already exercised by another department, to 
 the courts. (Any and every power vested by the constitution 
 in the courts, or any and every power properly delegated to 
 them by the legislature and exercised by them, irrespective of 
 its nature, becomes judicial in the sense that it cannot be del- 
 gated to, exercised or controlled by, either of the other de- 
 partmentsj 
 
 Ulesides vesting in the executive the power to see that the 
 laws are faithfully executed, the constitutions vest in him 
 many other powers, such as the veto power, and the power 
 to remove for cause certain officers^ The legislature also 
 may delegate to the executive powers not vested by the 
 
 1 See Kilbourn vs. Thompson. 
 
78 THE SEPARATION OF [210 
 
 constitution in either of the other departments, or other gov- 
 ernmental authority. fAny and every power, irrespective of its 
 nature, vested in the executive by the constitution, or properly 
 delegated to him by the legislature, and exercised by him, be- 
 comes executive in the sense that it cannot be delegated to, or 
 exercised or controlled by, either of the other department^) 
 
 'Any power not expressly vested by the constitution in either 
 of the departments or other governmental authority, irrespective 
 of its- nature, may be assumed by the legislature, or delegated 
 to either of the other departments or any other governmental 
 agency without violating the distributing clausej 
 \ It is in regard to the last proposition that the greatest con- 
 fusion has arisen„_i Every now and then the community is 
 startled by the assumption by the legislature, or the delegation 
 to the executive, of an administrative power, judicial in its 
 nature. Every now and then the courts resent a delegation 
 to them of administrative power, because not judicial in its 
 nature, on the ground that it is a violation of the principle 
 herein considered. 
 
 From the preceding proposition it becomes important ex- 
 actly to determine what is meant by the legislative, the judicial, 
 and especially by the executive department of government. 
 
 The departments of which the constitutions speak, and in 
 respect to which they provide that no person employed in one 
 shall be employed in either of the other two, and that no 
 power exercised by the one shall be exercised or controlled by 
 the others, are the departments of the commonwealth govern- 
 ments (as distinguished from those of local governments) as 
 expressly organized, defined 'and limited in the constitutions ; 
 and the meaning of the provision is that no member of the 
 legislative department as therein defined shall at the same 
 time be a member of the judicial or the executive department as 
 therein organized and defined, and vice versa. Therefore there 
 is nothing in the article which prohibits a judicial officer from 
 exercising functions not in their nature judicial, if they do not 
 
 / 
 
2 1 1 ] GO VERNMENTAL PO WERS 79 
 
 belong either to the legislative or the executive department as 
 those departments are defined and limited in the constitution. 1 
 
 The power__of. allotting to-the -different departments of gov- 
 ernment their appropriate functions is a legislative power, 
 and in so far as the distribution is not made in the constitu- 
 tion, the power to make it is vested in the general assembly 
 as the depositary of the legislative power of the common- 
 wealth. It follows that in many cases . power may appropri- 
 ately be. assigned to and exercised by either of the depart- 
 ments. 2 Tiius^asjivill. subsequently appeat.Jthe. legislature may 
 prescribe_r.ujes of practice. , for,, the courts, or may authorize 
 the courts to make them. It may vest the power of removing 
 officers for cause, whether such power be considered admin- 
 istrative or judicial, in the governor, 3 in the courts, or in infe- 
 rior administrative bodies. The power to try contested elec- 
 tions may be vested in the courts or assumed by the legisla- 
 ture. 4 There are powers strictly legislative, others strictly 
 executive, and others strictly judicial, while still others may 
 be exercised by one department or by another, as the law 
 may provide. 
 
 The constitutions do not define the extent or prescribe the 
 limits of judicial power. The judicial power is, in our consti- j 
 tutions, whatever the laws of the commonwealth from time to 
 
 1 People vs. Provines, 34 Cal. 520. This entire subject is more fully considered 
 hereafter. It is submitted that much would be gained if we would apply the 
 term administrative to all officers not belonging either to the executive, the legis- 
 lative, or the judicial department, and to all powers not vested by the constitution 
 in either of the departments. The following generalization would then result from 
 the distributing clause : The legislature may assume or delegate to the executive 
 or the courts, or even to a single administrative authority, all or any administrative 
 powers, be they legislative, executive or judicial in their nature ; and any adminis- 
 trative power properly exercised by the legislature, the courts or the executive 
 becomes by force of the clause legislative, judicial or executive, and therefore would 
 be beyond the control of any other authority. 
 
 2 State vs. Harmon, 31 Ohio St. 250; Smith vs. Normant, 5 Yerg. 271. 
 8 State vs. Peterson, 52 N. W. 655. 
 
 4 State vs. Harmon, 31 Ohio St., 250. 
 
80 THE SEPARATION OF [212 
 
 time declare it to be. When any subject is declared by law to 
 be of judicial cognizance, it becomes a part of the judicial 
 power, in the only sense in which that term in the constitution 
 can have any practical operation. Other departments of gov- 
 ernment, whijh?Mt so remains a judicial power, are forbidden to 
 exercise it. >&Lo subject, although in its nature judicial, can 
 under our constitutions be regarded as coming within the judi- 
 cialpower, unless it has been assigned to the judicial depart- 
 ment] Therefore a divorce is to be regarded as neither strictly 
 a judicial nor a. legislative act; and there is no reason why the 
 granting of a divorce may not be either a legislative or a judi- 
 cial act — legislative when it is performed as a mere exercise of 
 sound discretion for the good of the parties and the public, and 
 judicial when the divorce is demanded as a right under estab- 
 lished law in consequence of some breach of duty committed 
 by the offending party. 1 
 
 Whenever a power is not distinctly either legislative, execu- 
 tive or judicial, and is not by the constitution confided to a 
 designated department of the government, the mode of its 
 exercise and the agency must necessarily be determined by 
 law, in other words, must necessarily be under the control of 
 the legislature. 2 
 
 As already said, any power, whatever its nature, necessarily 
 takes its character from the department to which it is assigned 
 by the constitution or the legislature. 
 
 (Whate'ver emanates from a judge as such, or proceeds from 
 courts of justice, is judicial, 3 and whatever power or duty is 
 imposed upon the executive department is executive, and 
 therefore free from interference by the other branches of the 
 government^ Certain powers may be exercised by either of 
 .the three departments or by any administrative authority; but, 
 
 1 Op. of Justices, 16 Me. 479; Adams vs. Palmer, 51 Me. 480. 
 2 Cooley's Principles of Constitutional Law, p. 44; Ross vs. Whitman, 6 Cal. 
 361. 
 3 In re Cooper, 22 N. Y. 67. * Attorney- General vs. Brown, 1 Wis. 513. 
 
213] G0 VERNMENTAL PO WERS 8 1 
 
 when vested in the courts, they become judicial. 1 The power 
 to try contested elections, when vested in the courts, is judi- 
 cial; when it is not so vested, but is assumed by the legisla- 
 ture, it is legislative and may not be controlled by the courts. 2 
 The exercise of the power of eminent domain vested in county 
 and township boards, and in corporations, is not the exercise 
 of judicial power, within the meaning of the constitution, 
 while the exercise of the same power by the courts, if vested 
 in them, would be judicial. 3 
 
 Attributing to the terms of the distributing clauses their 
 properly restricted meaning, it follows that the legislature may 
 delegate to administrative authorities administrative powers, 
 judicial in their nature, of a very far-reaching character. 
 
 Whenever the ^legislature., creates- anew Tight, it may grant 
 it, subject-taany conditions which it sees fit to impose. Thus 
 Congress, having full control over the right of aliens to enter 
 or to remain in the United States, may make the right depend 
 upon the decision of any authority, and may make the decision 
 of such authority final and conclusive even upon the courts. 4 
 TAmong the many powers of a far-reaching nature vested in 
 
 TCers not belonging to any of the departments of govern- 
 ment, is that of administrative officers to impose penalties 
 for the violation of law, 5 and even to arrest for such violation 
 without resort to the courts, 6 as in the case of non-payment of 
 taxes!?} 
 
 1 In re Cooper, 22 N. Y. 67. 2 State vs. Harmon, 31 Ohio St. 250. 
 
 3 Ibid. In re City of Buffalo, 139 N. Y. 422, indicates how tar the court, in 
 the exercise of the power of eminent domain, acts by virtue of power delegated 
 to it by the Constitution, and how far by virtue of administrative power delegated 
 to it by the legislature. See In re Hall, 5 Pa. St. 204. 
 
 4 In re Howard, 63 Fed. Rep. 263; U. S. vs. Rogers, 65 Id. 787. 
 
 5 Cooley on Taxation, p. 457 ; Parker and Worthington, Public Health and 
 Safety, p. 103. 
 
 6 Commonwealth vs. Byrne, 20 Gratt. 165-198. 
 
 7 Cooley on Taxation, p. 437. For other examples of administrative execution 
 without judicial process, see Goodnow's Administrative Law, vol. 2, p. 127. 
 
82 THE SEPARATION OF [214 
 
 Where the legislature vests important administrative powers 
 in an administrative body or officer, the practice is now be- 
 coming popular of granting to individuals a right to appeal 
 from the decision of such body or officer, to an administrative 
 body or officer of a higher grade, and in some instances even 
 to one of the departments. 
 
 Thus the United States patent law allows an appeal from 
 the decision of an examiner rejecting an application for a 
 patent to the examiner-in-chief ; then from the decison of the 
 examiner-in-chief, confirming the rejection, to the commis- 
 sioner; and, in certain cases, from his decision, if adverse to the 
 applicant, to the Supreme Court of the District of Columbia. 1 
 
 The income tax law of August 29, 1894 (Sec. 29), au- 
 thorized any person feeling aggrieved by the decision of a dep- 
 uty collector as to the amount of income liable to be taxed, to 
 appeal to the collector of the district, and from his decision 
 to the commissioner of internal revenue. 2 
 
 The customs administrative act of June 10, 1890, gives to 
 the circuit courts of the United States power~to reverse or 
 amend the decisions, even of fact, of the Board of General Ap- 
 praisers as to the classification for duty under the act. 3 
 
 In the State of New York, if a person feels aggrieved by 
 the decision of assessors as to the value of his property for 
 purposes of taxation, courts may, on certiorari, reverse or 
 amend the decision of the assessors on grounds of illegality, 
 unfairness or disproportionality. 4 
 
 Some judges have been at a loss to understand how the leg- 
 islature may ultimately vest in the courts powers primarily 
 vested in an administrative officer. 
 
 A statute passed by the legislature of New York in 1893, 
 
 1 U. S. Rev. St., sees. 4910-4912. See Butterworth vs. U. S., 112 U. S. 50; 
 U. S. vs. Land Co., 148 U. S. 31. 
 
 2 The decision declaring the law unconstitutional was not based on this provision. 
 
 3 U. S. Laws, 1889-1890, chap. 407, sec. 15. 
 
 4 N. Y. Laws, 1880, chap. 209. 
 
215] G0 VERNMENTAL PO WERS 8 3 
 
 provides that courts in certiorari proceedings may command 
 a board of excise to grant a license to an applicant upon the 
 payment of the proper license fee. 1 
 
 The court, in construing this act, on one occasion declared 
 that the legislature was without power to require courts or the 
 judges thereof to perform other than judicial duties, and that 
 it seemed that a provision of law which required courts to pass 
 upon facts and reasons upon which a board of excise took 
 action, apart from alleged errors of law, would be unconstitu- 
 tional, as imposing upon the courts other than judicial func- 
 tions. 2 On a subsequent occasion, the court said it seemed 
 that the legislature could not assign to the courts, or to the 
 justices thereof, the performance of administrative duties, such 
 as are devolved upon boards of excise, boards of health, and 
 boards of supervisors. It held that since the statute vested a 
 discretion in the court, the court was not required to usurp a 
 non-judicial function. 3 
 
 In construing the distributing clause, the courts have for- 
 mulated certain general definitions and rules of construction, 
 which are more or less relied upon in their decisions. 
 
 It is said, " The difference between the departments undoubt- 
 edly is that the legislature makes, the executive executes, and 
 the judiciary construes the laws." 4 It is the province of the 
 legislature, "jus dare, non dicere;'' of the judiciary, "jus dicere, 
 non dare." " The distinction," says Justice Field in the Sinking 
 Fund Cases, " between a judicial and legislative act is well de- 
 fined. ^The one determines what the law is, and what the rights 
 of the parties are with reference to transactions already had ; 
 the other provides what the law shall be in future cases arising 
 
 1 Laws, 1893, cna P- 4 8l> Tbs New York election laws likewise provide for a 
 review by the supreme court, or any of its justices, of the acts and determinations 
 of certain election officers. Laws of 1895, chap. 810, sec. I, § 56. 
 
 2 People vs. Waters, 4 Misc. Rep. 1. 
 
 3 People vs. Dalton, 9 Misc. Rep. 249. 
 
 * Per. Ch. J. Marshall, Wayman vs. Southard, 10 Wheat. 46. 
 
84 THE SEPARATION OF [ 2 l6 
 
 under it~)Qfl£henever an act undertakes to determine a ques- 
 tion of right or obligation, or of property, as the foundation 
 on which it proceeds, such act is to that extent a judiciaTone, 
 and not the proper exercise of legislative functions^ 1 It is the 
 province of the judicial power to decide private disputes be- 
 tween or concerning persons, but of the legislative power to 
 regulate public concerns and to make laws for the benefit and 
 welfare of the state. 2 JTt is the province of the courts to de- 
 cide what the law is or has been, and to determine its applica- 
 tion to particular facts in the decision of cases ; the province 
 of theJegislature to declare what the law shall be in the fu- 
 ture.sjThe distinction lies between a sentence and a rule. 4 The 
 legislature acts from considerations of public policy, the courts 
 are guided by the pleadings and evidence in the case. 5 
 
 " The legislative power we understand to be the authority 
 under the constitution to make laws, and to alter and repeal 
 them. Laws, in the sense in which the term is here employed, 
 are rules of civil conduct which the legislative will prescribes." 6 
 
 Judge Story says: " The laws of a state are usually under- 
 stood to mean the rules and enactments promulgated by the 
 legislative authority thereof." 7 
 
 Each of the three departments has all there is of the element 
 assigned it. Each department has, it is true, incidental rights 
 of a nature intrinsically different from the body of the power 
 distributed to it, but these incidental rights are such only as 
 are necessary to enable it to perform its functions as an inde- 
 pendent branch of the government, and are in fact part of the 
 
 1 99 U. S. 168. 2 Merril vs. Sherburne, I N. H. 199. 
 
 3 Ratcliffe vs. Anderson, 30 Grat. 107. * Ex parte Shrader, 33 Cal. 279. 
 
 6 Taylor vs. Place, 4 R. I. 324. " The judicial power mentioned in the Con- 
 stitution and vested in the courts means the power conferred upon the courts in 
 the strict, sense of that term, courts that compose one of the three great depart- 
 ments of government, and not power judicial in nature or quasi-judicial, some- 
 times invested in individuals for particular purposes or limited times." Mr. Justice 
 Wilson's Charge to the Grand Jury on the Fugitive Slave Law, I Blatchf. 635. 
 
 6 Cooley's Const. Limitations, p. 108. ' Swift vs. Tyson, 16 Pet. 18. 
 
2lj\ GOVERNMENTAL POWERS 85 
 
 principal power itself. 1 How far the power of giving the law 
 may involve every other power in cases where the constitu- 
 tion is silent, never has been, and perhaps never can be, defi- 
 nitely settled. 2 
 
 It will hereafter appear that the authorities are in irre- 
 concilable conflict as to whether the content of the depart- 
 ments should be determined by historical tests. However, as 
 illustrative of the historical interpretation, it has been said that 
 " what constitutes judicial power within the meaning of the 
 constitution is to be determined in the light of the common 
 law and of the history of our institutions as they existed ante- 
 rior to and at the time of the adoption of the constitution." 3 
 And again, " When the constitutions vested in certain courts 
 judicial power, they vested in such courts such powers as 
 courts under the English, and American systems had always 
 exercised in that class of actions. 4 
 
 It will be the^humble endeavor of the succeeding pages to 
 indicate how far the distributing clause, irrespective of other 
 constitutional provisions, has affected the decisions of the 
 courts. 
 
 1 State vs. Noble, 118 Ind. 350. 2 Fletcher vs. Peck, 6 Cranch, 87, 136. 
 
 3 State vs. Harmon, 31 Ohio, 250. * Cullman vs. Judd, 23 Wis. 343, 349. 
 
PART III 
 
 ft 
 
 ^L 
 
 THE LEGISLATURE AND THE COURTS 
 CHAPTER IX 
 
 DECLARATORY STATUTES OR LEGISLATIVE INTERPRETATION 
 
 Although, without one dissentient opinion, it is admitted 
 that it is the exclusive province of the judiciary ultimately to 
 construe and interpret the constitution and laws when called 
 upon to do so in the course of a judicial controversy, the 
 legislatures often seek to assume this power by the enactment 
 of declaratory or expository laws. Bouvier defines a declara- 
 tory statute as one which is passed to put an end to a doubt as 
 to what is the common law, or the meaning of another statute, 
 and which declares what it is and ever has been. 1 Such a 
 statute always is in a certain sense retrospective ; and it is 
 specially important where doubts have already arisen, as it may 
 be found to declare the law to be different from what the 
 courts have already adjudged it to be. The legislature at- 
 tempts to put its own construction upon the law rather than 
 the construction of the court, and in effect declares the judicial 
 interpretation to be unfounded and unwarrantable. 
 
 If such a law is to have its intended effect, it must be con- 
 sidered by the courts either as creating a new rule for the gov- 
 ernment of past cases, or as declaring the interpretation of 
 
 1 Law Dictionary, Statute. 
 86 [218 
 
219] GOVERNMENTAL POWERS 87 
 
 former statutes for the direction of the courts. The act should 
 not be construed to operate in either manner. 
 
 Under either alternative, such an act is open to every objec- 
 tion which can be urged against retrospective laws, other than 
 curative laws. 
 
 It is a principle of the English common law, as ancient as 
 the law itself, that a statute even of its omnipotent parliament 
 should not be construed to have retroactive effect. This 
 maxim of the common law as laid down by Bracton and Coke 
 was probably taken from the civil law. 1 It was also recognized 
 as a fundamental truth by the French Code. 2 New Hampshire, 
 Texas, Ohio, Louisiana, Missouri, Colorado, and Tennessee 
 have deemed it advisable to forbid retroactive laws by their 
 constitutions. 
 
 Nevertheless, retrospective laws, provided they do not con- 
 travene express constitutional limitations, especially those 
 forbidding the impairment of vested rights by the legislature, 
 are within the legislative competency. 3 
 
 There being no vested right in a particular remedy, the leg- 
 islature may change remedies, alter rules of evidence, 4 and vary 
 the periods of prescription and limitation, and make the laws 
 as modified apply to transactions already past. 
 
 On the ground that the legislature has full power to change 
 remedies, statutes closing courts, and suspending the operation 
 of civil process or the rendition of judgments for a reasonable 
 
 1 Dig. 50, 17, 75 ; Code I, 14, 7. 
 
 2 Code de Civil des Franfais, no. 2. 
 
 * There is nothing in the Constitution of the United States to prohibit the several 
 commonwealths from passing retroactive laws, even if they divest rights vested by 
 law in individuals, so long as they do not impair the obligation of contracts or par- 
 take of the nature of ex post facto laws or bills of attainder. Satterlee vs. Mathew- 
 son, 2 Pet. 413; Watson vs. Mercer, 8 Pet. 85; Freeland vs. Williams, 131 U. S. 
 405. See Sturges vs. Carter, 114 U. S. 511. A legislature may always constitu- 
 tionally pass a retroactive law impairing its own rights. See Mayers vs. Byrne, 19 
 Ark. 308. 
 
 * Cooley, Const. Limitations, p. 450. 
 
88 THE SEPARATION OF [ 2 20 
 
 time, are not unconstitutional. They do not affect the remedy 
 so injuriously as to render the right worthless. 1 
 
 So, likewise, it is held that the repeal of a limitation of 
 actions on personal debts, does not, as applied to a debtor 
 against whom the right of action is already barred, unduly 
 deprive him of property. 2 
 
 The retroactive statutes with which we are most concerned, 
 are those curing defects in legal proceedings. Commenting 
 upon these, Judge Cooley observes : 3 " Such statutes, if they 
 are only in aid of judicial proceedings, and tend to their sup- 
 port by precluding parties from taking advantage of errors 
 which do not affect substantial rights, cannot be obnoxious to 
 the charge of usurping judicial power. The legislature does, 
 or may, prescribe the rules under which the judicial power is 
 exercised by the courts, and in so doing it may dispense with 
 any of those formalities which are not essential to the jurisdic- 
 tion of the court; and whatever it may dispense with by statute 
 anterior to the proceedings, it is believed it may also dispense 
 with by statute after the proceedings have been taken, if the 
 court has failed to observe any of those formalities." 4 
 
 Of such nature are statutes validating the sale of lands erro- 
 neously described in a petition for sale, 5 and statutes providing 
 that no levy of execution on real estate previously made shall 
 be deemed void, because the officer embraced in the return 
 thereof, as part of the costs of the levy, greater and other fees 
 than were by law allowable. 6 
 
 But a curative act of the legislature undertaking to confirm 
 judicial proceedings absolutely void, for want of jurisdiction or 
 other cause, would be an attempted exercise of judicial power, 
 and an unwarrantable encroachment by the legislature on 
 
 1 Coxe vs. Martin, 44 Pa. St. 322; Breitenbach vs. Bush, 44 Pa. St. 313. 
 
 8 Campbell vs. Holt, 115 U. S. 620. 3 Const. Limitations, p. 126. 
 
 4 See also Cooley's Const. Limitations, p. 454; Black on Constitutional Pro- 
 hibitions, sec. 210. 
 
 6 Lane vs. Nelson, 79 Pa. St. 407. 6 Booth vs. Booth, 7 Conn. 350. 
 
221 ] GOVERNMENTAL POWERS 89 
 
 the judicial department. If the proceedings are void, it would 
 be the statute alone which would in such case constitute an 
 adjudication upon the rights of the parties. So where by 
 reason of non-compliance with the law regulating constructive 
 service, jurisdiction has not attached, a retroactive statute can- 
 not cure the defect. 1 
 
 Even in those commonwealths where retrospective laws 
 are specifically prohibited by the constitutions, there are certain 
 classes of statutes of that character which are considered valid 
 and constitutional as being salutary and wholesome regulations, 
 and not within the just construction of the inhibition. 2 Such 
 laws are often necessary for the enforcement of justice, as when 
 a mere irregularity would otherwise make a good transaction 
 void. It is generally recognized that a statute expressly re- 
 troactive, the object of which is to correct an innocent mis- 
 take, to remedy a mischief, to execute the intentions of parties 
 and to promote justice, as a matter of right and public policy 
 should be sustained. Such a statute does not deprive a party 
 of a vested right, because a party cannot have a vested right 
 to do a wrong. 3 
 
 Although retrospective curative acts may in some cases be 
 unobjectionable, retrospective expository acts declaring how 
 former statutes are to be interpreted or construed in their 
 application to transactions already past, are in every case 
 objectionable and unconstitutional. If such interpretation or 
 construction by the legislature is to be considered as giving 
 the former acts a new meaning, it then becomes a new rule, 
 and is to have the same effect as any other newly created 
 statute. But if it is to be considered as an exposition of the 
 former acts for the information and government of the courts 
 in the decision of causes before them, the legislature would 
 
 'Israel vs. Arthur, 7 Col. 5; Pryer vs. Downey, 50 Cal. 388; Daniell vs. Cor- 
 rell, 19 111. 226. 
 
 2 See Dimson vs. Bank, 36 N. H. 466; Raixden vs. Holden, 15 Ohio St. 207. 
 
 3 Cooley's Const. Limitations, pp. 460-477. 
 
go THE SEPARATION OF [ 2 22 
 
 then be taking cognizance of a judicial question. 1 Should the 
 legislature by statute declare what was the intention of a former 
 act, or prescribe that a former act should or should not be con- 
 strued in a certain manner, and provide that such declaratory 
 law should have retroactive as well as prospective force, the 
 courts must declare it void as an assumption of judicial power 
 by the legislature. Should a declaratory statute have the in- 
 tended retroactive effect, it would amount to a legislative man- 
 date to the court, establishing a particular interpretation upon 
 a particular statute, thus exercising a judicial power in settling 
 a question of interpretation, and subordinating the judiciary as 
 a co-ordinate department. 2 Accordingly, it has been held that 
 a mandate of the legislature to the judiciary directing what 
 construction shall be placed on an existing statute is unconsti- 
 tutional^ Had the legislature power to give to declaratory 
 acts their intended effect, it would in every case in which it 
 felt so disposed, sit as a court of review to which parties might 
 appeal when dissatisfied with the rulings of the court. 4 The 
 acts of the legislature are committed to writing, and it is by 
 the written language that their sense is to be ascertained, and 
 not by a subsequent legislative body which differs in organi- 
 zation from the body which enacted the law. Such arbitrary 
 interpretation of a law would not be a legal interpretation, but 
 a substitution of the language and meaning of one legislative 
 body for the other. Therefore where the courts held that in- 
 surance companies were taxable to a certain extent under an 
 existing statute, a subsequent act of the legislature declaring 
 that it was intended that they should be taxable at a certain 
 other rate, and that such was the true intention and construc- 
 tion of the original statute, was held void as far as it was in- 
 
 1 Dash vs. Van Kleeck, 7 Johns. 477. 
 
 2 People vs. Board of Supervisors, 16 N. Y. 424; Greenough vs. Greenough, 
 II Pa. St. 489. 
 
 3 Governor vs. Porter, 5 Humph. 165. 
 
 4 Greenough vs. Greenough, supra. 
 
22 3 J GOVERNMENTAL POWERS g 1 
 
 tended to have retroactive force. 1 So where the courts con- 
 strued a law, declaring that every incorporated company must 
 annually within twenty days of the first of January publish a 
 report, to mean whenever January came after the prganiza- 
 tion of the corporation, a subsequent act declaring the word 
 annually as used in the prior act to have meant once a year 
 -after such corporation had been doing business at least twelve 
 months, was held void so far as it was retroactive. 2 
 
 It is evident that the legislature has no authority to inter- 
 pret or define words of the constitution for the courts, 3 or to 
 declare a matter of constitutional construction, nor can it 
 set aside a construction of a constitutional provision which 
 has become fixed and settled by judicial determination. 
 So where the constitution of Georgia entitled the head of a 
 family to enter a homestead, and the courts decided that a 
 single person having no others dependent upon him could not 
 be regarded as the head of a family though keeping house with 
 servants, an act declaring any single person living habitually 
 as housekeeper to himself should be regarded as the head of a 
 family, was held void. 4 And where the courts had construed 
 the meaning of " former jeopardy" as used in the constitution, 
 an act of the legislature making it mean no more than legal 
 conviction, was held unconstitutional. 5 
 
 Similarly, the legislative branch of the government cannot, 
 by a statutory enactment, declare an act of its own to be either 
 constitutional or void, though it may repeal, or refuse to enact, 
 any law because it deems it unconstitutional, irrespective of 
 -whether or not the courts declare it constitutional. 6 The con- 
 
 1 People vs. Board of Supervisors, 16 N. Y. 424. 
 
 2 Union Iron Co. vs. Pierce, 4 Bissel, 327. 
 
 3 Westinghausen vs. People, 44 Mich. 263 ; comp. People vs. Supervisors of 
 La Salle, 100 111. 495. 
 
 4 Calhoun vs. McLendon, 42 Ga. 405. 
 
 5 Powell vs. The State, 17 Texas Appeal, 345. 
 
 6 See In re Lafayette Co., 2 Chaud. (Wis.) 212; In re Ruan Street, 132 Pa. 
 St. 257, 279. 
 
92 THE SEPARATION OF [224 
 
 struction of a statute being a judicial power, the attempt of the 
 legislature to exercise such power by adding a proviso to 
 a law that " nothing herein contained shall be construed as au- 
 thorizing a lottery in this State, or as allowing the sale of lot- 
 tery tickets, contrary to the provisions of the constitution," is- 
 an unconstitutional assumption of the functions of the judi- 
 ciary. 1 
 
 Until the judiciary has fixed the meaning of a doubtful 
 law upon which rights have become vested, it may be ex- 
 plained by legislative enactment; and, when explanatory statutes 
 are designed to explain doubtful statutes, they deserve the at- 
 tention of the judiciary. 2 But when the words and intent of 
 the act are so explicit and plain that no court has ever been ap- 
 pealed to, to declare their meaning, the legislature cannot by 
 a retroactive law put a construction upon them contrary to 
 their obvious letter and spirit. 3 
 
 Since courts will give effect to laws if they possibly can, and 
 since the legislature can make laws looking to the future, de- 
 claratory statutes will be held to govern cases arising after the 
 statute was passed. ♦ If a statute should combine retrospective 
 and prospective criminal legislation, in so far as the two are 
 separable the latter part will be held good. 5 
 
 But some courts refuse to apply this rule of construction,, 
 and intimate that if the legislature would prescribe a different 
 rule for the future from that which the courts enforce, it must 
 be done by a new law, and cannot be done by a mandate to the 
 courts which leaves the law unchanged, but seeks to compel 
 the courts to construe and apply it not according to judicial' 
 
 1 Ex parte Blanchard, 9 Mo. 101. 
 
 2 O'Conner vs. Warren, 4 W. & S. 223; Gough vs. Pratt, 9 Md. 526; Lam- 
 berton vs. Hogan, 2 Pa. St. 22. 
 
 3 Reiser vs. Wm. Tell Association, 39 Pa. St. 137. 
 ' Greenough vs. Greenough, 11 Pa. St. 489. 
 
 8 Jackson vs. People, 128 U. S. 189. 
 
22 5 J GOVERNMENTAL POWERS 93 
 
 but according to legislative judgment. 1 The legislature can- 
 not compel courts for the future to adopt a particular construc- 
 tion of a law which the legislature permits to remain in force. 
 Finally, under the constitution of Pennsylvania, 2 which pro- 
 vides that no law shall be revived, amended, or extended by a 
 reference to its title only, but that so much thereof as is revived, 
 amended, or extended, shall be reenacted and published at 
 length, the courts deem themselves prohibited from giving 
 •effect, even as to future cases, to expository or declaratory acts. 3 
 
 1 Governor vs. Porter, 5 Humph. 165. J Art. 3, Sec. 6. 
 
 3 Titusville Iron Works vs. Keystone Oil Co., 122 Pa. St. 627. 
 
CHAPTER X 
 
 LEGISLATIVE ASSUMPTION OF JUDICIAL POWERS 
 
 Although glaringly in conflict with the constitutional clause 
 under consideration, legislatures have not infrequently enacted 
 laws which, if given the effect intended, would result in legis- 
 lative judgments. It has been held that the foreclosure of a 
 mortgage on private property cannot be accomplished by a 
 legislative enactment. 1 The legislature has no power to in- 
 quire, ascertain, or determine whether a widow is entitled to 
 dower in a specified parcel of land, and an act authorizing 
 commissioners to assign to her her dower in certain premises 
 is void, as far as it is a determination that she is entitled to 
 dower therein, it being a judicial determination. 2 
 
 Likewise it has been held that whether a corporation has 
 been guilty of an abuse of its corporate privileges so as justly 
 to subject it to a forfeiture, is a question to be decided by the 
 courts and not by the legislature. 3 For this reason among 
 others it is held that the charter of a bank cannot be de- 
 clared forfeited by a proclamation of the governor made under 
 an act of the legislature. And the act itself authorizing the 
 executive, upon sufficient proof being made to him of the 
 existence of facts, to make the forfeiture known by his procla- 
 mation, is void. The dissolving of a corporation or declaring 
 a forfeiture of its charter is the province of the bench, the ex- 
 ercise of judicial power. 4 The forfeiture of a corporate charter 
 
 1 Ashuelot R. R. Co. vs. Elliot, 58 N. H. 451. 
 
 2 Edwards vs. Pope, 4 111. 465. 
 8 State vs. Noyes, 47 Me. 189. 
 
 'Campbell vs. Mississippi Union Bk., 6 How. (Miss.) 625. 
 94 [226 
 
227] GOVERNMENTAL POWERS g$ 
 
 can be enforced only by judicial proceedings instituted for that 
 purpose at the instance of the government. 1 
 
 But a reservation by the legislature of the right to repeal an 
 act of incorporation for a violation of its provisions or other 
 default, is not unconstitutional. The exercise of a reserved 
 power of amending and repealing the charter of a corporation is 
 a legislative power. 2 Nor is the inquiry by the legislature into 
 the affairs or defaults of a corporation with a view to continue 
 or discontinue it, a judicial act. 3 A clause in a charter au- 
 thorizing the legislature to repeal it for an "abuse or misuse 
 of corporate privileges '' refers the question of abuse to legis- 
 lative judgment. 4 
 
 Where the legislature reserves in the charter a right to re- 
 peal it for abuse or misuse of corporate powers, a repealing 
 act is constitutional unless the .corporation can show by plain 
 and satisfactory evidence that the privileges granted were not 
 abused or misused. 5 
 
 But it has also been held in some jurisdictions that, where 
 a charter contains a provision that it shall not be repealed 
 " unless it shall be made to appear to the legislature that 
 there has been a violation by the corporation of some of the 
 provisions of the charter," the question of violation neverthe- 
 less is a judicial question, and that the charter cannot be re- 
 pealed until the violation has been made to appear to the leg- 
 islature by some proper judicial proceeding before a judicial 
 tribunal. An act simply providing " the charter is hereby 
 repealed " was held void as the exercise by the legislature of 
 judicial power. 6 
 
 1 Canal Co. vs. Railroad Co., 4 G. & J. I. 
 
 2 Ashuelot R. R. Co. vs. Elliot, 58 N. H. 451. 
 
 3 Lothrop vs. Stedman, 42 Conn. 583; Crease vs. Babcock, 23 Pick. 334; 
 Allen vs. Buchanan, 9 Phil. (Pa.) 283 ; Regents vs. Williams, 9 G. & J. 365. 
 
 4 Miners' Bk. vs. United States, 1 Morris, 482. 
 
 6 Erie & Northeast R. R. Co. vs. Casey, 26 Pa. St. 287 ; Commonwealth vs. Pitts- 
 burgh R. R. Co., 58 Pa. St. 46. See Mowrawetz on Private Corp., Sec. 112. 
 6 Flint & Fentonville R. R. Co. vs. Woodhull, 25 Mich. 99. 
 
96 THE SEPARATION OF [228 
 
 Although where the right to repeal or amend a charter de- 
 pends upon some contingency, some act or omission of the 
 corporation, the right to judge whether that contingency has 
 occurred belongs generally to the legislature, not to the courts, 1 
 yet the power of the legislature is limited to the destruction of 
 the powers it gave to the corporation, as part of its existence, 
 and does not extend to the destruction of the property rights 
 which it acquired through the exercise of such powers. 2 
 
 Upon the ground that the legislature may exercise adminis- 
 trative powers, legislative appointments of trustees to sell prop- 
 erty of persons non sui juris are maintained. 3 Upon the 
 ground that the legislature may delegate to any officer or body, 
 whether created by the constitution or by itself, or to any de- 
 partment of the government, administrative powers, or powers 
 not specifically vested by the constitution in any one of the 
 departments or in any other officer or body, an act authorizing 
 the governor to appoint a receiver to settle the affairs of an in- 
 solvent bank, is constitutional, and an appointment thereunder, 
 valid. 4 
 
 The legislature was also sustained in the appointment of a 
 trustee to take the assets and manage the affairs of a cor- 
 poration whose charter had been repealed. The court said : 
 " If no trustee were appointed by the legislature, a court of 
 equity, which never allows a trust to fail for want of a trustee, 
 would see to the execution of the trust." 5 
 
 For the legislature to assume in any manner directly or in- 
 directly to control the courts in the decision of causes or in 
 the rendering of final judgments, as by revising or annulling 
 their judgments or interfering with the adjudications they 
 
 •McLaren vs. Pennington, I Paige (N. Y.) 102. 
 
 2 People vs. O'Brien, 45 Hun. 519. 
 
 3 Hindman vs. Piper, 50 Mo. 292; Rice vs. Parkham, 16 Mass. 326; Cochran 
 ■vs. Van Surlay, 20 Wend. 373. 
 
 4 Carey vs. Giles, 9 Ga. 253. 
 
 5 Lothrop vs. Stedman, 42 Conn. 583. 
 
229 J GOVERNMENTAL POWERS gj> 
 
 have duly and formally reached, would be the assumption of 
 judicial power, and therefore contrary to the principle of the 
 separation of powers. 
 
 It has been shown that the legislature cannot compel the 
 courts to apply a legislative interpretation of a law. 1 It follows 
 from the same principles that the legislature has no power of 
 directing what particular steps shall be taken in the progress 
 of a judicial inquiry. Therefore an act directing that certain 
 depositions which had previously been taken should be read in 
 evidence on a trial, notwithstanding certain informalities, is 
 void. 2 Nor can the legislature prescribe for the courts what 
 instructions they shall give in a particular pending cause, un- 
 less they have previously embodied in a legislative enactment, 
 as the law of the land, the substance of such instructions. 3 
 
 No act of the legislature can alter the nature or legal effect 
 of an existing contract, or give to such contract a judicial 
 construction which shall be binding upon the parties or upon 
 the courts. 4 
 
 Since the legislature has no judicial power, the pream- 
 ble of a private statute cannot be used by the courts as evi- 
 dence of matters recited therein. The legislature has no 
 power to find facts by legislative enactment so as to be evi- 
 dence in suits pending before the courts. 5 
 
 Although the case or controversy might have been such in 
 its nature that the legislature could have acted upon it, had it 
 seen fit, without the aid of the courts, and without encroaching 
 upon the just claims of the judicial department, yet if a suit 
 should be brought upon it and be pending in the courts, the 
 legislature could not control its subsequent progress. Any 
 
 1 Taylor vs. Place, 4 R. I. 324. 
 
 2 Dufy vs. Wickwire, I D. Chip. 238; s. c, 6 Am. Dec. 729. 
 s State vs. Hopper, 71 Mo. 425. 
 
 4 King vs. Bank, 15 Mass. 447; Weaver vs. Maillot, 15 La. Ann. 395. 
 
 5 Elmendorf vs. Carmechal, 3 Litt. 475. See Lothrop vs. Stedman, 42 Conn. 
 583. 592- 
 
g8 THE SEPARATION OF [230 
 
 attempt on the part of the legislature to exercise its power over 
 the court or the decision of the suit would be the exercise ot 
 judicial power. Thus Congress may collect, by means of ad- 
 ministrative officers of the United States, balances due to the 
 United States from receivers of public money without the aid 
 of the courts. But as it is competent for the government to 
 sue any of its depositors in a court of law, or consent to itself 
 being sued, if such a suit be brought and pending in a court , 
 of the United States, it would be so completely within judicial 
 control that Congress could not by subsequent action control 
 its progress or decision. 1 
 
 If anything is self-evident in the structure of our government, 
 it is that the legislature has no power to order a rehearing or 
 new trial, or to direct the court to order them, either before or 
 after judgment. Such power is judicial. 2 An act of the legis- 
 lature, however, granting a new trial or reopening a judment 
 in favor of the people, is a mere consent on the part of the 
 people, one of the parties to the judgment, that a new trial be 
 granted or judgment reopened, and is not unconstitutional. 3 
 
 Nor has the legislature power to grant to parties a right to 
 appeal after it is gone under the general law. 4 But a statute 
 which takes away the right to a future appeal in an action al- 
 ready pending, but undetermined, when the statute takes ef- 
 tect, is not unconstitutional. 5 After the time prescribed by law 
 for asking a new trial or taking an appeal has expired, the 
 judgment becomes final between the parties, and no subsequent 
 
 1 Murray's Lessee vs. Hoboken Land and Improvement Co., 18 Howard, 272, 
 283. 
 
 2 De Chastellux vs. Fairchild, 15 Pa. St. 18; Durham vs. Lewiston, 4 Me. 
 140; Griffin's Executors vs. Cunningham, 20 Gratt. 31. See Lawson vs. Jeffries, 
 47 Miss. 686, which held that the constitutional convention of Mississippi of 1888, 
 being a legislative body, had no power to grant new trials, such power being judicial. 
 
 :i People vs. Frisbie, 26 Cal. 135. 
 
 4 Hill vs. Sunderland, 3 Vt. 507 ; Lewis vs. Webb, 3 Me. 326. 
 
 5 Grover vs. Coon, 1 N. Y. 536; ex parte McCardle,. 7 Wall. (U. S.) 506; 
 R. R. Co. vs. Grant, 98 U. S. 398. 
 
;23l] GOVERNMENTAL POWERS gg 
 
 legislature can confer the right to a new trial or an appeal in 
 such action. 1 But there are some cases which hold that the 
 legislature has power to confer on the courts the right to hear 
 appeals in special cases 2 , even after the time allowed by the 
 general laws for an appeal has passed. 3 
 
 In order to preserve the independence of the judiciary as 
 a co-ordinate branch of the government, final judgments of the 
 -courts must be beyond the influence and power of the 
 iegislature. 
 
 In some jurisdictions it has been held that an act providing 
 for graduated deductions from the sentence of imprisonment, 
 -as a reward for good conduct, is unconstitutional, because an 
 interference with the judgment of the court sentencing the 
 criminal. 4 
 
 An act reversing and annulling a judgment is unconstitu- 
 tional. 5 So an act of the legislature opening judgments is 
 the exercise of judicial power, and therefore void. 6 It cannot 
 reopen or set aside a final judgment nor compel the courts to 
 do so, no matter how erroneous the judgment may be. 7 A 
 judgment of the court becomes final when by the existing 
 laws the time for a review and reversal for error has expired. 8 
 
 A legislative act directing the levy and collection of a tax 
 which has already been declared illegal by the judiciary, is in- 
 operative and void, as an attempted reversal of judicial action 
 by the legislature. 9 
 
 1 Sydnor vs. Palmer, 32 Wis. 406. 
 
 2 State vs. Northern R. R. Co., 18 Md. 193. 
 
 3 Page vs. Administrator, 40 Ala. 547 ; Prout vs. Berry, 2 Gill, 147. 
 
 4 Commonwealth vs. Halloway, 42 Pa. St. 446. See State vs. Fleming, 7 
 Humph. 152. 
 
 5 Opinion of the judges in the matter of Dorr, 3 R. I. 299. 
 
 6 Taylor vs. Place, 4 R. I. 324. 
 
 ' Ratcliffe vs. Anderson, 31 Gratt. 105; Arnold vs. Kelly, 5 W. Va. 446. 
 
 8 Atkinson vs. Dunlap, 50 Me. III. 
 
 9 Mayor vs. Horn, 26 Md. 194; Butler vs. Supervisors of Saginaw, 26 Mich. 
 .22. See Forster vs. Forster, 129 Mass. 559. 
 
IOO THE SEPARATION OF [232 
 
 Nor can the legislature by a law practically dissolve an in- 
 junction of a court. 1 An act prescribing that no injunction 
 shall be issued against commissioners of certain public works, 
 has been declared invalid. 2 But the constitutionality of acts 
 providing that "no suits for the purpose of restraining 4;he as- 
 sessment or collection of any tax," 3 -shall be maintained in any 
 court, has been frequently reasserted — provided only that the 
 statute leaves to the person, who considers himself aggrieved 
 by the collection of the tax, the usual remedy of an action at 
 law to recover back the amount paid. 4 
 
 It is universally conceded that the legislature may prescribe 
 and change rules of procedure for the courts. 5 The legislature 
 in undertaking to regulate the rules of pleading does not usurp 
 judicial functions. 6 It may prescribe such rules for the trial 
 and determination as well of existing as of future rights and 
 controversies as in its judgment will most completely subserve 
 the ends of justice. 7 
 
 The rules of evidence are at all times subject to the modifi- 
 cation and control of the legislature, the only implied limita- 
 tion upon the power of the legislature in such case being that 
 it cannot by the exercise of its power deprive a party of the 
 right to a fair trial. It has power to prescribe what shall be 
 
 1 Searcy vs. Turnpike Co., 79 [nd. 274. 
 1 Guy vs. Hermance, 5 Cal. 73. 
 
 3 U. S. Rev. St., Sec. 3224. 
 
 4 Moore vs. Cora'rs of Internal Revenue, Sup. Ct., Dist. of Columbia, Jan'y, 1895; 
 Snyder vs. Marks, 109 U. S. 192, and cases cited. See Antoni vs. Greenhow, 
 107 U. S. 769, upholding the validity of a statute that denied to the courts the au- 
 thority to issue writs of mandamus in litigation concerning coupons of common- 
 wealth bonds, because the holders thereof still had other methods of asserting 
 their rights. 
 
 6 Matter of Stillwell, 139 N. Y. 337 ; Ex parte Hickey, 52 Ala. 228. 
 
 6 Whiting vs. Townsend, 57 Cal. 515. 
 
 ' Ogden vs. Saunders, 12 Wheat. 213; Delaplaine vs. Cook, 7 Wis. 44; Him- 
 melman vs. Carpentier, 47 Cal. 42. 
 
233] GOVERNMENTAL POWERS IOI 
 
 received as prima facie or presumptive evidence. 1 Even in 
 criminal matters the legislature may enact that when certain 
 facts have been proved, they shall be prima facie evidence of 
 the main fact in question, provided they have some fair rela- 
 tion to or natural connection with such fact. 2 It has also been 
 said that it may make that which, according to the ordinary 
 rules of human experience, reasonably tends to prove a fact, 
 conclusive evidence thereof. 3 
 
 A question has been raised as to the extent of the authority 
 of the legislature over the power of the courts to punish for 
 contempt. 
 
 In California it has been said, " No authqrity denies the in- 
 herent right of a court in the absence of a limitation placed 
 upon it by the power which created it, to punish as a contempt, 
 an act, whether committed in or out of its presence, which tends 
 to impede, embarass, or obstruct the court in the discharge of 
 its duties. It is founded upon the principle (which is coeval 
 with the existence of the courts, and as necessary as the right 
 of self-protection) that it is a necessary incident to the execution 
 of the powers conferred upon the court, and is necessary to 
 maintain its dignity, if not its very existence. It exists inde- 
 pendently of statutes. The legislative department may regu- 
 late its procedure, and enlarge the power, but it cannot with- 
 out trenching upon the constitutional powers of the court, and 
 destroying the autonomy of that system of checks and balances, 
 which is one of the chief features of our triple-department form 
 •of government, fetter the power itself." 4 
 
 In Arkansas the legislature sanctioned the power of the 
 
 1 B'd of Com'rs vs. Merchant, 103 N. Y. 143; Law Encycl., vol. 3, p. 716; 
 Hand vs. Ballou, 12 N. Y. 54; Howard vs. Moot, 64 N. Y. 262. See State vs. 
 Cunningham, 25 Conn. 195 ; Gibbs vs. Gale, 7 Md. 76. 
 
 2 People vs. Cannon, 139 Nl Y. 32. See Cooley, Const. Limitations, p. 450. 
 "In re Linn County, 15 Kan. 500; People vs. Hill, 44 Hun. 472; Comp. 
 
 Wantlan vs. White, 19 Ind. 470; Little Rock R. R. Co. vs. Payne, 33 Ark. 816. 
 * In re Shortridge, 34 Pac. R. 227. 
 
102 THE SEPARATION OF [234 
 
 court to punish as contempts certain enumerated acts and 
 " no others!' 
 
 The court declared that the sanction was merely declaratory 
 of the common law, and that the prohibitory clause was not 
 binding upon the courts. It declared that the legislature might 
 regulate the exercise of but could not abridge the express or 
 necessarily implied powers granted to the courts by the consti- 
 tution, and that when the court was created and certain judicial 
 powers were conferred upon it, the power to punish contempts 
 of its authority was impliedly given to it as a necessary inci- 
 dent of the exercise of its express powers. 1 
 
 In Colorado it has been held that the power of the courts 
 to punish for contempt is not limited to cases expressly au- 
 thorized by the legislature. 2 In New York, however, it has 
 been admitted that the legislature has authority to limit the 
 power of the courts in this regard, the court of appeals as- 
 suming, without discussion of the question, that such author- 
 ity existed. 3 
 
 In Georgia and Lousiana the constitutions expressly provide 
 that the power shall be limited by the legislature, and in Ar- 
 kansas, that the legislature shall have power to regulate by 
 law the punishment of contempts not committed in the pres- 
 ence or hearing of the courts, or in disobedience of their 
 process. 4 
 
 1 State vs. Morrill, 16 Ark. 384. 
 
 2 People vs. Stapleton, 33 Pac. R. 167. 
 
 8 People vs. Ct. of Oyer and Terminer, 10 1 N. Y. 243. 
 4 Stimson's Am. Statute Law, Sec. 582. 
 
CHAPTER XI 
 
 SPECIAL LAWS AUTHORIZING THE SALE OF LANDS 
 
 Many of the acts before referred to, in addition to their con- 
 stitutional invalidity, will also be found to be objectionable in 
 their character of special laws. The legislatures having plen- 
 ary powers in legislation, except as restricted by the constitu- 
 tions, have the power of passing special or private laws. The 
 number of persons upon whom any law is to operate does not 
 affect its character and is immaterial. 1 Such special laws, even 
 when not expressly prohibited by the constitutions, and not 
 interfering with vested rights, are regarded with great jealousy, 
 and rightly so, because " when in the exercise of proper legis- 
 lative powers general laws are enacted which bear or may bear 
 on the whole community, if they are unjust and against the 
 spirit of the constitution, the whole community will be inter- 
 ested to procure their repeal by a voice potential. That is the 
 great security for just and fair legislation. But when individ- 
 uals are selected from the mass, and laws are enacted affecting 
 their property without summons or notice, at the instigation 
 of an interested party, who is to stand up for them, thus iso- 
 lated from the mass in injury and injustice, or where are they 
 to seek relief from such acts of despotic power?" 2 An idea of 
 how extensively the legislatures have abused the power of 
 enacting special laws may best be formed from the numerous 
 provisions found in the constitution of every commonwealth, 
 .prohibiting special legislation in certain specified cases. 
 
 Our statute books are full of special laws empowering guar- 
 
 1 Watkins vs. Holman, 16 Pet. 25. 
 * Ervine's Appeal, 16 Pa. St. 256, 268. 
 235] 103 
 
104 THE REPARATION OF [236 
 
 dians, and other persons in trust relations, to sell the lands of 
 minors, of persons non compotes mentis, and of others resting 
 under legal disabilities. The acts here described have under 
 certain circumstances and for various reasons been quite 
 universally recognized as a proper subject of legislative 
 power. It has been held that there is nothing in its nature 
 judicial in the granting permission, upon the application 
 of a trustee, to convert by sale the real property of a cestui que 
 trust into personal property, in order to effectuate the purpose 
 of the trust, and to accomplish objects in the interest of the 
 cestui que trust, not otherwise attainable. Such an act merely 
 enlarges the sphere of the fiduciary authority, the better to ac- 
 complish the purposes for which the trusteeship was created. 
 In such a proceeding there is no controversy between party 
 and party, nor any decree or judgment affecting the title to 
 property. The authority granted by the legislature to trans- 
 mute real into personal property is exercised for purposes 
 beneficial to all interested therein. 
 
 Moreover it is always taken into consideration that such 
 power has been frequently exercised by the legislatures of the 
 commonwealths, provinces and colonies. The constant exer- 
 cise of a power by a legislature from the adoption of the con- 
 stitution to the present time, it has been said, ought to be 
 deemed almost conclusive evidence of its rightful possession 
 by that body. 
 
 Furthermore, if it were not true that the legislature pos- 
 sesses the power in question, even general laws delegating to 
 the courts the power to order the sale of lands, under which 
 many estates of minors, of persons non compotes mentis, and 
 of others, have been sold, would, together with the sales 
 made under them, be void. For the courts, acting under 
 those general laws, derived their authority from the legisla- 
 tures; and the power not being of a judicial nature, if the 
 legislatures had it not, they could not communicate it to any 
 other body. 1 Accordingly it has been held that a private act 
 
 1 Rice vs. Parkman, 16 Mass. 326; Clark vs. Van Surlay, 15 Wendell, 436. 
 
237] GOVERNMENTAL POWERS IC >5 
 
 -of the legislature authorizing the sale of the estates of infants 
 for their maintenance and education is within the scope of 
 legislative authority. This power, it is said, is based on 
 reason. It is the legitimate exercise of paternal power over 
 the person and property of infants. 1 The Supreme Court of 
 the United States has confirmed the constitutionality of a 
 special act passed by a commonwealth legislature authoriz- 
 ing a court to decree, on the petition of an administrator, a 
 private sale of the real estate of an intestate to pay his debts, 
 even though the act did not require notice to the heirs or to 
 any other person, and although the same subject was regulated 
 by a general statute more provident in its nature. Such legis- 
 lation was said to be remedial and not judicial. It infringed 
 no contract and involved no usurpation of judicial power. 2 
 Such legislation determines no rights. It deprives no one of 
 his property. It is a grant of a privilege to one person, which 
 at the same time does not affect injuriously the rights of others. 
 The Court of Appeals of New York has held that the legisla- 
 ture has power by special statute to authorize the sale of lands 
 of infants, and that this power even extends to future contin- 
 gent interests of those not in being. 3 The Supreme Court of 
 the United States ruled that where an executor, who proved a 
 will in New Hampshire, made an unauthorized sale of lands in 
 Rhode Island, to satisfy the debts against his decedent's es- 
 tate, a subsequent act of the Rhode Island legislature confirm- 
 ing the sale, was not an encroachment upon the judiciary. 
 The lands descended to the heirs subject to a lien for the pay- 
 ment of such debts, and there is nothing in an act, authorizing 
 the sale of lands to satisfy a lien, which requires that it should 
 ie done by a judicial tribunal, or that it should be performed 
 'hy a delegate rather than by the legislature itself. 4 
 
 1 Cochran vs. Van Surlay, 20 Wendell, 365. 
 
 2 Florentine vs. Barton, 2 Wallace, 210. See also Hoytw. Sprague, 103 U. S. 
 .613. 
 
 3 Brevoort vs. Grace, 53 N. Y. 245. 
 
 'Wilkinson vs. Leland, 2 Peters, 627 ; Acc'd Watkin's vs. Holman's Lessee, 16 
 TPeters, 25. 
 
I0 6 THE SEPARATION OF [238 
 
 It has been held that the legislature can grant this power of 
 sale even to the very person under legal disability and for 
 whose benefit it is to be made. 1 
 
 Such a power, however, is legislative only so far as it is 
 remedial. Accordingly, the legislature cannot against the will 
 or without the consent of a person sui juris, seized of a vested 
 right, authorize the sale of real estate. 2 It has no power to- 
 authorize, without their consent, the sale of lands in which 
 adults competent to act for themselves have an interest vested 
 or contingent. 3 A statute authorizing the sale of real estate on- 
 the petition of the life tenant in opposition to the wishes of the- 
 owner in fee when the latter is under no legal disability is- 
 unconstitutional. 4 Where a minor had a guardian, it was held 
 incompetent for the legislature to empower another to sell his- 
 land.s 
 
 But, in any case, the ascertainment of indebtedness between* 
 two parties and the application of the property of one to the 
 payment of the other, is a judicial act, and cannot be exercised 
 by the legislature. So the legislature cannot pass an act 
 authorizing the sale of so much of the decedent's land as- 
 would raise a specified sum, and order the proceeds to be ap- 
 plied to the extinguishment of certain claims against the 
 deceased. 6 Nor has the legislature power to assume that 
 debts are due and payable, and on that assumption to authorize 
 an administrator to sell lands vested in heirs and apply the- 
 proceeds to the payment of the debts of the estate, without at 
 judicial inquiry as to the existence of such debts before paying; 
 them.? 
 
 On the other hand, in some jurisdictions a different view is; 
 entertained. In Tennessee it is held that special acts authorizing; 
 
 1 McComb vs. Gilkey, 29 Miss. 146. 2 Hegarty's Appeal, 75 Pa. St. 503. 
 
 3 Breevort vs. Grace, 53 N. Y. 245. 
 
 4 Gossom vs. McFerran, 79 Ky. Z36. See Linsby vs. Hubbard, 44 Conn. loo*- 
 
 6 Lincoln vs. Alexander 52 Cal. 482. 6 Lane vs. Doman, 4 111. 238. 
 
 7 Rozier vs. Fagan, 46 111. 404. See Estep vs. Hutchman, 14 S. & R. 435. 
 
239] GOVERNMENTAL POWERS i y 
 
 guardians of the minor heirs of a deceased person to sell lands 
 descended to the heirs, and the proceeds of the sale to be ap- 
 plied to the payment of debts created by the deceased during 
 his lifetime, are unconstitutional because judicial in their nature. 1 
 In New Hamphire the validity of such special statutes is also 
 denied. 2 It is there said that the exercise of such a power by 
 the legislature can never be necessary. If it be fit and proper 
 that the license should be given to one guardian under partic- 
 ular circumstances to sell the estate of his ward, it is fit and 
 proper that all other guardians should under similar circum- 
 stances have the same license. If the jurisdiction of the judges 
 of probate be not sufficiently extensive to reach all proper 
 cases, it may be a good reason why that jurisdiction should 
 be extended, but can hardly be deemed a sufficient reason for 
 the particular interposition of the legislature in an individual 
 case. These cases rest upon the assumption that the exercise 
 of a legislative power must always result in a general act, a. 
 rule of general conduct. 
 
 In most of the jurisdictions in which it has been held that 
 the power of converting real into personal property is a proper 
 subject for legislative action, it has usually been found con- 
 venient to delegate the power of actually ordering the sale to 
 the courts, whose structure better fits them to examine the 
 merits of applications. Proceedings of this character are gen- 
 erally ex parte, and afford great opportunity for fraud. More- 
 over, judicial proceedings, besides being safer, are less expen- 
 sive. General laws are therefore enacted by the legislatures 
 of most commonwealths delegating this power of authorizing 
 sales in proper cases to the courts. 
 
 But, when this power is conferred upon the courts, it does not 
 necessarily become judicial (see next chapter), but may remain 
 ministerial or administrative, requiring discretion and some- 
 times knowledge of the law. " For aught we see, the same 
 
 1 Jones vs. Perry, 10 Yerg. 59. 2 Opinion of Judges, 4 N. H. 565. 
 
108 THE SEPARATION OF [240 
 
 authority might have been given to the selectmen of each town, 
 or to the clerks or registers of the counties." 1 So, whether 
 the general laws are applicable or not to some cases which 
 may arise, or may or may not accomplish all that is desirable, 
 the legislature may nevertheless by special statute grant the 
 permission which, under general laws, would be granted by 
 the courts. Accordingly it is held that, although a general law 
 is in force by which permission might be granted by the courts, 
 it does not deprive the legislature of that full and complete 
 control which it would have possessed, had no statute existed. 
 As has been said, the courts derive their authority to act on 
 the subject from the legislature. The constituent, when he has 
 delegated an authority without an interest, may still do the 
 act himself which he has authorized another to do; and espec- 
 ially is this the case when the constituent is the legislature. 
 The whole authority might be revoked, and the legislature 
 assume the burden itself. 2 
 
 Kentucky, Virginia, Missouri, Oregon, Indiana, Maryland, 
 New Jersey, Arkansas, Florida, Illinois, Wisconsin, Texas, 
 West Virginia, Michigan, and Colorado, obviously regard the 
 exercise of such power by the legislature as improper, since 
 their constitutions forbid the enactment of special laws licens- 
 ing the sale of lands of minors and other persons under legal 
 disabilities. 
 
 Whether the constitutional provisions forbidding special 
 laws in cases where general laws can be made applicable, ex- 
 clude such special acts as those above considered, has never 
 been decided, but they might be held to do so. 3 
 
 1 Rice vs. Parkman, 16 Mass. 326. 2 Ibid. 
 
 3 Cooley's Const. Limitations, p. 117 n. 
 
CHAPTER XII 
 
 LEGISLATIVE DIVORCES 
 
 The constitutions of Alabama, Arkansas, California, Io"wa, 
 Indiana, Maryland, Michigan, Minnesota, Missouri, Nebraska, 
 Oregon, New Jersey, Texas, Wisconsin, Florida, Georgia, Illi- 
 nois, Kansas, Kentucky, Louisiana, Massachusetts, Mississippi, 
 Nevada, New Hampshire, New York, North Carolina, Ohio, 
 Pennsylvania, Tennessee, Virginia, and West Virginia pro- 
 hibit legislative divorces. This prohibition accords with the 
 sentiment expressed by all leading jurists, who maintain that 
 the granting of a divorce is not a proper subject for legis- 
 lative action. 1 Nevertheless, some courts maintain that in the 
 absence of a constitutional prohibition the power of dissolving 
 the matrimonial bond is a proper legislative function. 2 
 
 In England the ecclesiastical courts exercised exclusive 
 jurisdiction over the subject of divorce until the eighteenth 
 century, when their refusal to grant divorces a vinculo 
 even in cases of the grossest conjugal delinquency induced ap- 
 plications to parliament. Since that time parliament has exer- 
 cised the power of granting divorces a vinculo for causes super- 
 venient to the marriage. Following this precedent, the colo- 
 nial and commonwealth legislatures from time to time enacted 
 special laws dissolving the matrimonial bond in special cases. 
 Originally this legislative practice was sustained by the courts 
 on historical grounds. Subsequently it became necessary for 
 
 1 Kent's Commentaries, vol. 2, p. 96 ; Bishop on Marriage, Divorce and Sepa- 
 ration, Sec. 1446. 
 
 2 Bishop on -Marriage, Divorce and Separation, Sees. 1424— 1427, 147 1. 
 
 241] 109 
 
HO THE SEPARATION OF [242 
 
 them to sanction it on grounds of public policy. A long ac- 
 quiescence in repeated acts of the legislature on particular 
 matters is said to be evidence that those matters have been 
 generally considered by the people as within legislative control. 1 
 If legislative investigations take place in divorce proceedings, 
 they are no more than those usually made when a change of a 
 law is designed. Furthermore, if jurisdiction is not vested in 
 the judicial tribunals to grant divorce for any cause, cases 
 might arise beyond the jurisdiction of the courts, in which 
 the continuance of the marriage relation would be intolerable, 
 and in which no principle should prevent the legislature from 
 interfering and putting an end to the relation in the interest 
 •of the parties thereto, as well as of society. Marriage is not 
 a contract in the ordinary sense of the term. When once 
 formed a relation is created between the parties which they 
 ■cannot change. It is an institution of society and controlled 
 by public authority. It is a status over which the legislature 
 has complete control. And as marriage is not a contract, an 
 act declaring a dissolution of the tie does not impair the ob- 
 ligations of contracts. 2 
 
 Should such acts now be held unconstitutional, as an en- 
 croachment upon the judicial department, the legitimacy of 
 •children, the peace of families, and the settlement of estates 
 would be assailed. Such a course would bastardize issue and 
 subject parties to the charge of adultery. Therefore, chiefly to 
 avoid the consequences which would result from declaring 
 those divorces void which have been granted by the legisla- 
 ture, the courts pronounce such divorces valid. 3 
 
 Finally, it is said the fact that the legislature continually 
 ■exercised this power after the separation of powers, justi- 
 fies the conclusion that the division of the government into 
 three departments, and the implied inhibition of the legis- 
 
 1 Starr vs. Pease, 8 Conn. 541 ; Maynard vs. Hill, 125 U. S. 190. 
 
 2 Magee vs. Young, 40 Miss. 164; Maynard vs. Hill, 125 U. S. 190. 
 * Bingham vs. Miller, 17 Ohio, 445. 
 
243] GOVERNMENTAL POWERS ni 
 
 lative department to exercise judicial functions, was neither 
 intended nor understood to exclude legislative control over 
 the marriage relation. 1 
 
 But the legislature is limited to the declaration of the 
 •divorce ; it cannot decide questions of property. A legis- 
 lative act cannot of its own force turn a divorce nisi into an 
 absolute divorce. 2 It has been held that that part of an act 
 ■of divorce which required the husband to pay to trustees 
 money for the use and benefit of his wife, was void. A suit 
 for alimony is a distinct remedy from proceedings to obtain 
 -a divorce, and a wife's maintenance is recoverable only through 
 the intervention of the courts. 3 
 
 Where such act is conceded to be legislative, it follows that 
 the motives of a special law granting the divorce cannot be in- 
 •quired into by the courts, and the validity of the act is not 
 affected by the fact that it was passed upon the husband's ap- 
 plication without the knowledge of or notice to the wife. 4 
 
 It is generally conceded that the determination of the pro- 
 priety of dissolving a marriage may involve investigations 
 -of a judicial nature which can best be conducted by 
 judicial tribunals. Therefore statutes are generally found 
 which authorize courts to decree divorces in certain specified 
 •cases. In some jurisdictions it is held that the delegation of 
 authority to the courts to act in certain enumerated cases does 
 not necessarily involve the negation of the reservation of the 
 power to the legislature to act concurrently in the same class 
 of cases, because acts granting the power to the courts may be 
 
 1 Maynard vs. Hill, 125 U. S. 190. This case held that a special divorce act 
 -of a territorial legislature is a rightful subject of legislation, and not inconsistent 
 
 with the Constitution of the United States. In 1886 a statute was passed by Con- 
 gress forbiding special divorce acts by the territorial legislatures {Stats, of 1S86, 
 •ch. 818, sec. 1). See Starr vs. Pease, 8 Conn. 541. 
 
 2 Sparhawk vs. Sparhawk, 116 Mass. 315. 
 
 3 Crane vs. Meginnis, I G. & J. (Md.) 463. 
 
 4 Maynard vs. Hill, 125 U. S. 190; Wright vs. Wright, 2 Md. 429. 
 
H2 THE SEPARATION OF [244. 
 
 repealed at any time. 1 But, in this class of cases, when a com- 
 petent court has once accepted the jurisdiction and commenced 
 acting on a controversy, the particular matter becomes exclu- 
 sively judicial, and even though the legislature had an equal 
 authority over it before, it has not now. This is but a branch, 
 of the doctrine that between tribunals of concurrent jurisdic- 
 tion, the one which first takes cognizance of a controversy,, 
 can continue it to the end. 2 
 
 A series of cases holds that the power to divorce becomes- 
 a judicial act in those cases in which general laws confer on, 
 the courts power to adjudicate, and that in those cases the 
 legislature cannot pass special laws, though its original control- 
 over the marriage relation will enable it to grant divorces in 
 such other cases as shall in its wisdom appear to justify them.* 
 Until the legislature enacts laws on the subject and invests 
 courts with jurisdiction, it can itself exercise the authority at 
 pleasure. 4 But it is powerless over causes of divorce which it 
 has entrusted to the judiciary, else there would practically be 
 an appeal from the highest judicial tribunal to the legislature. 5 
 The cases, however, generally recognize that, although the 
 legislature has enacted a general law, causes may arise which 
 may make it peculiarly proper to dissolve the marriage rela- 
 tion, but of which the courts could not take cognizance, be- 
 
 1 Wright vs. Wright, 2 Md. 429. 
 
 2 Bishop on Marriage, Divorce and Separation, Sec. 1448, and cases cited. 
 Divorce may be either a legislative or judicial act. Id., Sees., 1432-1446. If 
 the court acts upon an action for divorce over which it has jurisdiction, and de- 
 cides against a divorce being granted, parties may not be granted a divorce by the 
 legislature. Op. of Justices, 16 Me. 479. 
 
 8 Levins vs. Sleator, 2 Greene (Iowa), 604; Opinion of Judges, 16 Me. 479; 
 Adams vs. Palmer, 51 Me. 480; Townsend vs. Griffin, 4 Harr. 440. Bishop on 
 Marriage, Separation and Divorce, Sec. 1449. 
 
 * Where courts have no authority by general law to grant a divorce for a given 
 cause, the legislature cannot confer the authority in a particular case. Simmonds 
 vs. Simmonds, 103 Mass. 572. 
 
 5 Opinion of Judges, 16 Me. 479; Adams, vs. Palmer, 51 Me. 480. 
 
245] GOVERNMENTAL POWERS nj 
 
 cause not invested with jurisdiction. In such cases it is said 
 to be only proper that the legislature should be able to decree 
 the divorce. 
 
 Under the constitution of Pennsylvania, which provides that 
 the legislature shall not have power to enact laws annulling 
 the contract of marriage in any case where by law the courts 
 of the commonwealth are or may be empowered to decree a 
 divorce, it has been decided that this restriction is a recogni- 
 tion of the power of the legislature to grant divorces in all 
 other cases. 1 Under the constitution of Michigan, by which 
 the legislature was prohibited from granting divorces, it was 
 held that a special act could not be passed authorizing the 
 courts to divorce for a cause not embraced in the general laws. 2 
 
 The courts of Ohio, New Hampshire, Florida, Missouri, and 
 Kentucky, have held the granting of a divorce to be in its 
 very nature a judicial act. 3 They maintain that the granting of 
 a divorce is not the enactment of a law. It is a decree, sentence, 
 rule, judgment, but not a law. Nor can the legislature by 
 withholding from the judiciary the means or right of exercising 
 powers properly judicial, by not providing general laws, invest 
 itself with the right of exercising that power. 4 
 
 The conflict of opinion in regard to legislative divorces is 
 exactly analogous to the conflict in regard to special laws 
 authorizing the sale of lands. 
 
 1 Cronise vs. Cronise, 54 Pa. St. 255. 
 
 2 Teft vs. Teft, 3 Mich. 67. 
 
 3 Bingham vs. Miller, 17 Ohio, 445 ; Clark vs. Clark, 10 N. H. 380; Ponder 
 vs. Graham, 4 Fla. 23 ; Gaines vs. Gaines, 9 B. Monroe, 295 ; Bryson vs. Bryson, 
 44 Mo. 232. 
 
 4 Gaines vs. Gaines, 9 B. Monroe, 295. 
 
CHAPTER XIII /■' 
 
 LEGISLATIVE INQUESTS AND THE POWER TO PUNISH FOR 
 CONTEMPT 
 
 As the ascertainment of facts is indispensable to intelligent 
 and effectual legislation, there never has been any question as 
 to the right of the legislature, or of legislators, to make mere 
 naked inquiries. Each house must be allowed to proceed in 
 its own way in the collection of such information as may seem 
 conducive to the discharge of its functions, and, whenever it is 
 deemed desirable that witnesses should be examined, authority 
 to do so is properly given to a committee with such powers of 
 investigation as may seem expedient in the particular case. 1 
 The manner of conducting such an investigation rests in the 
 sound discretion of the legislature. 3 
 
 In considering this inquisitorial power, the courts have been 
 called upon to determine whether the legislature, in order to 
 make its own inquiries, or those of its committees, effective, 
 has the power of punishing as a contempt a refusal to answer 
 interrogatories. The courts, in determining this question, have 
 unnecessarily confused it by considering whether the power to 
 judge of and to punish for contempt is a power judicial in 
 its nature, and, if so, whether, in view of the separation of gov- 
 ernmental powers, it may under any circumstances be exer- 
 cised by the legislature. Whenever they have upheld the 
 exercise of this power by the legislature, they have deemed it 
 incumbent upon them to justify the exercise by the legislature 
 of a power judicial in its nature, as if the constitution had 
 vested all such power in the courts. 
 
 1 People vs. Larned, 5 Hun. 626. 2 In re Falvey, 7 Wis. 630. 
 
 114 [246 
 
.247] G0 VERNMENTAL PO WERS t i 5 
 
 In one of the early cases it was said : " The power is rather 
 judicial in its nature, but in a legislative body exists as an 
 auxiliary to the legislative power only. In the early history 
 of the country from which our institutions, both of law and 
 legislation, are principally derived, the judicial and legislative 
 functions existed in and were exercised by the same body ; 
 and when they were afterwards separated, and each came to 
 be exercised by a separate tribunal or body, the legislative 
 authority necessarily retained a sufficient amount of judicial 
 power to enable it to investigate fully and to comprehend 
 thoroughly any and every subject upon which the body pro- 
 posed to act in its legislative capacity. This included the 
 power to subpcena witnesses to give evidence, to compel them 
 to attend and testify, and to punish for disobedience and con- 
 tempt in refusing to attend, or in refusing to testify upon 
 attendance." 1 
 
 The provision in the constitutions of Massachusetts 2 and 
 Maryland, 3 declaring that the House of Representatives shall 
 be the Grand Inquest of the commonwealth, would probably 
 be regarded as expressly authorizing the legislature to pun- 
 ish witnesses for contempt in the course of inquiries, investiga- 
 tions or inquests conducted by them or their committees. 4 
 
 In 1 82 1 the United States Supreme Court held that the 
 power of punishing for contempt even others than their own 
 members, was possessed by both houses of Congress by neces- 
 sary implication. A general power to punish for contempt was 
 held to be vested in the House of Representatives as a neces- 
 
 1 Wilckens vs. Willet, 4 Abb. App. Dec. 596. Whenever it is necessary for 
 the legisla'ure to assume powers judicial in their nature in order to exercise 
 powers confided to it by the Constitution, the legislature undoubtedly may exer. 
 cise such judicial powers. If the legislature may not exercise powers judicial in 
 their nature in other cases, it is not because of the separation of powers, or because 
 judicial power is vested in the courts, but because the legislature has only such 
 ,powers as the Constitution expressly confers upon it and powers incidental thereto. 
 
 2 Art. 6, sec. 3. s Art. 3, sec. 24. 
 4 See Burnham vs. Morrisey, 14 Gray, 226. 
 
U6 THE SEPARATION OF [248 
 
 sary incident to the exercise of its functions, and its adjudica- 
 tion was held sufficient to establish the fact of contempt. 1 
 
 The question was again before the Supreme Court of the 
 United States in 1885. The contempt in this case consisted 
 in a refusal to answer a question propounded by a committee 
 of the House of Representatives. The resolution under which 
 the committee was created directed it to examine into the 
 history and character of what was called " the real estate pool " 
 of the District of Columbia; and the preamble recited as 
 the ground of the investigation that certain debtors of the 
 United States government, whose affairs were then in litigation 
 before a bankruptcy court, had an interest in the pool or were 
 creditors of it. 
 
 The court, in deciding the case, said : " The latter proposi- 
 tion [that this power exists as one necessary to enable either 
 house of Congress to exercise successfully its function of 
 legislation] is one which we do not wish to decide in the 
 present case, because we are able to decide it without pass- 
 ing upon the existence or non-existence of such a power 
 in aid of the legislative function." The court further said : 
 " We are sure that no person can be punished for contumacy 
 as a witness before either House unless his testimony 
 is required in a matter into which that House has juris- 
 diction to inquire, and that neither of these bodies possesses 
 the general power of making an inquiry into the private affairs 
 of the citizens." 
 
 The decision denying the legislature the power in that 
 particular case, was based upon the ground that the subject 
 matter of the investigation which the committee was directed 
 to make, was judicial in character, that proceedings to deter- 
 mine it were already before the courts, that the investigation 
 related to a matter wherein no relief or redress could be 
 given by Congress, that the resolution under which the investi- 
 gation was held contained no indication of any intention of 
 
 1 Anderson vs. Dunn, 6 Wheat. 204. See Stewart vs. Blaine, I MacArthur, 453. 
 
249] G0 VERNMENTAL PO tVERS 1 1 <j 
 
 final action by Congress, and that it did not appear what 
 Congress could have done to remedy the wrong. The case 
 decided that in ordering an investigation into business mat- 
 ters in which the national government was interested simply 
 as a creditor of one of the parties, without having for its 
 apparent object any legislative action, the House of Representa- 
 tives exceeded its authority, and consequently that the com- 
 mittee had no authority to require the plaintiff to testify before 
 it, or to punish him for contempt for refusing to testify. It over- 
 ruled Anderson against Dunn only so far as the latter held that 
 the resolution of the House finding a person guilty of contempt 
 was conclusive evidence of the fact. 1 
 
 The power of a commonwealth legislature to punish as for 
 contempt the refusal of a witness to testify before its committee, 
 has been thoroughly discussed by the courts of New York. 2 
 Whereas the constitutions of most commonwealths expressly 
 confer the power to punish for contempt in certain cases upon 
 the legislature, 3 the constitution of New York does not con- 
 fer such power upon the legislature in a single case. Charges 
 
 1 Kilbourn vs. Thompson, 103 U. S. 168. This opinion was rendered by the court 
 in overruling the demurrer of the sergeant-at-arms in an action brought against him 
 by the plaintiff for false arrest and imprisonment. On the first trial of the action in 
 the Supreme Court of the District of Columbia, the plaintiff recovered a verdict for 
 $ 100,000. A new trial having been granted on the ground that the damages were 
 excessive, he recovered a verdict for $60,000. A third trial was ordered for the 
 same reason, in which the plaintiff recovered a verdict for $37,000. This amount 
 was subsequently reduced to $20,000 by consent, which amount was paid by order 
 of Congress, together with interest and costs of the action. See 23 St. at Large, 
 427 ; MacArthur & Mackey, 416-432. 
 
 2 McDonald vs. Keeler, 99 N. Y. 463; accord Burnham vs. Morrisey, 14 Gray, 
 226 ; In re Falvey, 7 Wis. 630 ; In re Gunn, 50 Kan. 158. In this case the court 
 was called upon to determine which of two rival legislative bodies was the duly 
 organized house. It was insisted that the house which inflicted the penalty was not 
 the properly organized house, since it failed to receive the recognition of the governor 
 and senate. The court, however, held that it, and not its rival, which did receive 
 such recognition, was the proper house, and had power to punish for contempt. 
 
 3 See " Legislative Inquests," by Frederick W. Whitridge, Pol. Sc. Quarterly, 
 vol. i, p. 90. 
 
H8 THE SEPARATION OF [250 
 
 of fraud and irregularity having been publicly made against 
 the Commissioners of Public Works of New York City, the 
 senate adopted a resolution directing and empowering its stand- 
 ing committee on affairs of cities to investigate the charges, 
 and to make a report thereon. The committee executed this 
 mandate pursuant to a general law which provided that each 
 house should have power to punish for contempt any person 
 refusing to attend or to be examined as a witness either before 
 the house or before a committee appointed to take testimony 
 in legislative proceedings. 1 The court, in sustaining the stat- 
 ute, and the proceedings of the senate thereunder, said that 
 the power of obtaining information for the purpose of framing 
 laws to meet supposed or apprehended evils was one which 
 had from time immemorial been deemed necessary and had 
 been exercised by legislative bodies. The court held it un- 
 necessary to consider whether the questions which the re- 
 lator refused to answer were pertinent, because the contempt 
 charged did not consist in the refusal to answer particular 
 questions, but in the refusal to be further examined, the refusal 
 being based on the ground that the relator's counsel was re- 
 quested to be withdrawn. In regard to this, it was held that 
 he had no constitutional or legal right to the aid of counsel on 
 such an examination. 
 
 The court distinguished the case from Kilbourn against 
 Thompson on the ground that the Department of Public 
 Works was created by statute and was a proper subject for 
 legislative action, and that the committee was directed to re- 
 port the result of its investigation together with recommenda- 
 tions to the senate for further legislation. 
 
 The court also indicated a probable limitation to legislative 
 power in such investigations, which are very liable to abuse. 
 " An investigation instituted for the mere sake of investigation, 
 or for political purposes not connected with intended legisla- 
 tion or with any matters upon which the house could act, but 
 
 1 Rev. St., tit. 2, chap. 7, sec. 1314. 
 
251] GO VERNMENTAL PO WERS r j g 
 
 merely intended to subject a party or body investigated to 
 public animadversion, or to vindicate him or it from unjust 
 aspersion, where the legislature had no power to put him or it 
 on trial for supposed offences, and no legislation was con- 
 templated, but the proceeding must necessarily end with the 
 investigation, will not in our judgment be a legislative proceed- 
 ing, or give to either house jurisdiction to compel the attend- 
 ance of witnesses or punish them for refusing to attend." 
 
 It has also been held that upon the refusal of the clerk of 
 the court of common pleas to produce before a committee any 
 poll-book affecting a contested election, it is lawful for the 
 house from which the committee emanated to order his com- 
 mitment to jail as for contempt of its authority. 1 
 
 An act creating a state board of tax commissioners with 
 power to send for persons, books, and papers, to hear and 
 question witnesses, has been held void so far as it confers on 
 such officers the power to fine and imprison for contempt. 
 The board belongs to the executive department of the state, 
 and the power to punish for contempt belongs, it was said, 
 exclusively to the courts. 2 
 
 Although it is generally conceded that the legislature can- 
 not delegate its power to punish for contempt of its authority, 
 even to its special committee, yet punishment for contempt 
 of the committee, inflicted by the committee itself, was sustained.3 
 
 The question has been raised as to how far, if at all, the 
 courts may review the action of the legislature in punish- 
 
 1 Ex parte Dalton, 43 Ohio St. 142. 
 
 2 Langenberg vs. Decker, 31 N. E. 190, and cases cited. 
 
 3 People vs. Lamed, 5 Hun, 626. The legislature cannot delegate the power 
 to punish for contempt to officers or bodies exercising only administrative powers. 
 People vs. Van Tassel, 17 N. Y. 938; Whitcomb's Case, 120 Mass. 118; Lan- 
 genberg vs. Decker, 31 N. E. 190. It seems, however, that it may delegate such 
 power to such officers or bodies when they are acting as a part of the judicial de- 
 partment of the government. Swafford vs. Berrong, 10 S. E. 593 ; In re Daton, 
 II S. E. 244; State vs. Aiken, 18 S. E. 690; English and American Law 
 Encyc, vol. iii, p. 777. 
 
120 THE SEPARATION OF [252 
 
 ing for the contempts herein considered. The question whether 
 an individual has been prejudiced in his rights by the unau- 
 thorized assumption of power by any governmental agency, in- 
 cluding the legislature, is judicial. The power to determine 
 such a question is part of that judicial power which the consti- 
 tutions have confided to the courts, and with which the legisla- 
 ture cannot interfere in any manner, as by assuming it itself, 
 or by delegating it elsewhere than to the courts. The duty of 
 determining such a question cannot be shirked by the courts. 
 Accordingly, it has been said that when the court issues 
 the writ of habeas corpus to inquire into the cause of impris- 
 onment, it has the right further to inquire into the matter 
 and determine whether the committing body, even when it is 
 the legislature, or a magistrate, had jurisdiction. But the 
 court has no appellate jurisdiction from or supervisory powers 
 over the proceedings of the legislature in a matter within the 
 constitutional jurisdiction of that body. The legislature, in 
 refusing to hear a petition before adjudging a person in con- 
 tempt, may have acted arbitrarily and improperly, yet, as the 
 jurisdiction of the assembly acting in such matters is final, and 
 the courts have no appellate power over it, it is not competent 
 for the court to revise the proceedings of the assembly or sus- 
 pend its judgment because it has made a mistake or abused its 
 discretion in the premises. 1 When the question involved is 
 one of jurisdiction of the committee and house, the question 
 may be reviewed on habeas corpus, and the right of the relator 
 may be determined on such application. 2 
 
 Congress and several of the commonwealth legislatures have 
 by law provided that a person who, being duly summoned to 
 
 1 In re Falvey, 7 Wis. 630. 
 
 2 People, ex rel. Sabold, vs. Webb, 22 N. V. St. R. 324, in which case the 
 committal was held to be without jurisdiction and void. "The house of represen- 
 tatives is not the final judge of its own powers and privileges in cases in which the 
 rights and liberties of subjects are concerned ; but the legality of its action may be 
 determined by the courts." In re Gunn, 50 Kan. 155. 
 
253] G0 VERNMENTAL PO WERS j 2 1 
 
 attend as a witness before either house of the legislature or 
 any committee thereof, authorized to summon witnesses, re- 
 fuses or neglects, without lawful excuse, to attend pursuant to 
 such summons, or who, being present before either house of 
 the legislature, or any committee thereof, refuses to be sworn 
 or affirmed, and to answer any material or proper question, or 
 to produce upon notice any material and proper books, papers 
 or documents in his possession, or under his control, shall be 
 guilty of a misdemeanor and punishable by the courts. 1 
 
 The power of legislative bodies to punish directly for con- 
 tempt in refusing to appear as a witness or to answer inquiries 
 of the legislature or its committees is not superseded by such 
 statutes. 2 
 
 The provisions of an act authorizing the Pacific Railway 
 Commission to invoke the aid of any circuit or district court, 
 to require the attendance of witnesses and the production of 
 books, papers and documents relating to the subject of their 
 inquiry, and empowering the courts in case of contumacy or 
 the refusal of persons to obey subpoenas, to issue orders 
 requiring them to appear before the commissioners and pre- 
 sent books and papers, if so ordered, and give evidence touch- 
 ing the matters in question, and to punish disobedience to 
 its orders, as a contempt of court, have been deemed uncon- 
 stitutional. The court observed that " Congress cannot make 
 the courts its instruments in conducting mere legislative in- 
 vestigations; that the courts would thus be mere executors of 
 the commissioners' will, and would be called upon to exercise 
 either administrative functions or judicial power. If the 
 former, they cannot be vested in the courts. If the latter, the 
 
 !See N. Y. Penal Code, sees. 68-69; 1 N. Y. Rev. St. 154, sec. 13; U. S. 
 Rev. St., sees. 102-104. 
 
 2 People, ex rel. McDonald, vs. Keeler, 99 N. Y. 463. But in the case of Kil- 
 bourn vs. Thompson, C. J. Cartter, of the Sup. Ct. of the Dist. of Columbia, in May, 
 1876, held that as a refusal to testify was an indictable offense by statute, a trial 
 therefor must be had in the courts and not elsewhere. See Cooley's Const. Lim- 
 itations, p. 161 11. 
 
122 THE SEPARATION OF [254 
 
 power can only be exercised in cases of controversies enum- 
 erated in the constitution, or in cases of habeas corpus." 1 
 
 Proceedings under statutes and resolutions like the foregoing- 
 are not trials but investigations. The committees are investi- 
 gators, inquirers, pursuers, " smellers." Their duties are not 
 judicial but administrative. They are not to hear and decide, but 
 to find out and report. Their proceedings may be kept secret, as 
 were those of the Senate Sugar Scandal Committee of 1894, or 
 made public, as were those of the Lexow Police Department In- 
 vestigating Committee of 1894. The witnesses before such 
 committees have no legal right to the aid of counsel, 1 nor are 
 such committees bound by the ordinary laws of evidence. 3 But 
 it seems that a witness cannot be compelled to give an answer 
 which might tend to criminate him, unless adequate provision 
 is made that such evidence shall not be used against him in 
 criminal proceedings. 4 
 
 1 In re Pacific R. Com'n, 32 Fed. Rep. 25 1. In re McLean, 37 Fed. Rep. 648. 
 The decisions of the Circuit Court holding that Congress cannot make courts in- 
 struments in the conduct of mere legislative investigations seem to be inconsistent 
 with a late opinion of the U. S. Supreme Court. That eminent tribunal consid- 
 ered constitutional a provision of a statute which empowered the Circuit Courts of 
 the United States, whenever their aid was invoked by the Interstate Commerce 
 Commission, to order any person or corporation to appear before the Commission 
 and give evidence, and also to punish as a contempt of their authority any failure- 
 to obey such orders. The court observed that the provision was not in conflict 
 with the Constitution of the United States as imposing on judicial tribunals duties- 
 not judicial in their nature, and that a judgment thereunder was none the less one 
 of a judicial tribunal dealing with questions judicial in their nature, because its- 
 effect might be to aid an administrative body in the performance of duties legally 
 imposed upon it by Congress. Interstate Commerce Commission vs. Brimson, 1 54. 
 U. S. 447; Ch. J. Fuller and Judges Jackson and Brewer dissented, 155 U. S. I. 
 
 In Pennsylvania it has been held that the courts may be authorized to procure 
 and present evidence to the legislature in cases of contested elections pending be- 
 fore the legislature, to be acted upon by the legislature as it sees fit. In re Mc- 
 Neill, III Pa. St. 235. 
 
 2 Ex parte McCarthy, 29 Cal. 395 ; McDonald vs. Keeler, 99 N. Y. 463. 
 
 3 See In re Falvey, 7 Wis. 531. 
 
 4 See People vs. Sharp, 107 N. Y. 427 ; Counselman vs. Hitchcock, 142 U. S. 
 547 ; In re Falvey, 7 Wis. 630. 
 
25 S] GOVERNMENTAL POWERS I2 T, 
 
 The counsel and chairman of the Lexow Committee are re- 
 ported to have maintained that the removal of a police captain 
 by the police board because of the evidence and admissions of 
 the captain before the committee was " a misuse of the testi- 
 mony taken before the committee, and a contempt of the Sen- 
 ate of the State of New York." The three police commission- 
 ers promptly obeyed the order of the committee and reinstated 
 the police captain. 1 
 
 Many of the questions herein considered will probably soon 
 again be passed upon by the Supreme Court of the United 
 States. 
 
 The Grand Jury of the Supreme Court of the District of 
 Columbia indicted several persons for refusing to answer 
 questions relating to alleged campaign contributions by the 
 Sugar Trust in order to secure favorable tariff legislation, 
 which were put to them by a committee of the United States 
 Senate, appointed to investigate the sugar scandals. 
 
 During the November Term, 1894, the Supreme Court of 
 the District of Columbia overruled the demurrers to the indict- 
 ments. The court declared constitutional the statute which 
 provides for the indictment of witnesses refusing to answer 
 questions propounded by Congressional committees. It held 
 that the Senatorial committee had jurisdiction to inquire 
 whether senators had been dealing in stocks of the sugar re- 
 fining companies, known as sugar stocks, during the pendency 
 of the tariff bill in the senate ; also, that in order to confer 
 jurisdiction on the committee, it was not necessary for the res- 
 olutions to set forth or avow what final action the Senate had 
 in contemplation upon the information to be obtained. It held 
 it sufficient if it appeared that the Senate had lawful authority 
 to take any legitimate action, unless it also affirmatively ap- 
 peared upon the face of the resolutions that no final action was 
 contemplated, and that the investigation was carried on simply 
 for the purpose of vindication or animadversion. It held that 
 
 1 See N. Y. daily papers, Dec. 19-22, 1894. 
 
124 THE SEPARATION OF [ 2 $6 
 
 the questions were not such as to call for answers which would 
 criminate the witnesses (stock-brokers), they being as much at 
 liberty to deal with senators as with any one else.? 
 
 1 This judgment was subsequently affirmed by the District Court of Appeals. One 
 of the indicted persons was then surrendered by his bail, to enable him to apply to 
 the U. S. Supreme Court for a writ of habeas corpus, in which proceeding it was 
 expected the court would pass on the questions at issue. The Supreme Court, 
 however, denied the application for the writ on the ground that it could not inter- 
 fere in the matter until the case should have been finally disposed of by the dis- 
 trict courts. 
 
 The executive cannot pardon persons punished by the legislature for contempt of 
 its authority. See Story, vol. 2, p. 337. Post., p. 136. 
 
CHAPTER XIV 
 
 JUDICIAL REPUDIATION OF LEGISLATIVE POWERS 
 
 Notwithstanding that the courts have always firmly de- 
 clined the assumption of legislative powers whenever the leg- 
 islature has attempted directly to confer such powers upon 
 them, 1 yet in the early history of our judiciary, attempts were 
 made by the courts indirectly to control legislative acts in 
 such a manner as virtually to result in judicial legislation. 
 From their common law right to interpret the law, the courts 
 developed the right to declare statutes void, not only because 
 they violated express limitations, but because they were con- 
 trary to the principles of natural justice or of republican gov- 
 ernment, or because they were repugnant to the intent and 
 spirit of the constitution. 2 
 
 But it is evident that questions of abstract justice, of public 
 policy and state necessity, belong to the legislature, and not 
 to the courts ; and for this reason the courts have renounced 
 the power to declare acts of the legislature void, except in 
 cases of unquestionable violation of the constitution. 3 It is the 
 function of the courts to say what the law is, and not what it 
 ought to be. The state has entrusted the law-making power 
 to the discretion of the legislature. Should the courts assume 
 to control "this discretion, they would in effect decide whether 
 
 1 See The Delegation of Powers, chap, xxi, post. 
 
 2 Warwick vs. Smith, 5 Paige, 137; People vs. Supervisors, 4 Barb. 64; Benson 
 vs. Mayor, 10 Barb. 223 ; Powers vs. Bergen, 2 Seld. 358. 
 
 "Butler vs. Palmer, 1 Hill, 324; Kent's Commentaries, vol. i, pp. 408,488; 
 Cochran vs. Van Surley, 20 Wend. 381 ; Sedgwick's Construction of Statutory 
 and Constitutional Law, p. 154; People vs. Fisher, 24 Wend. 215; State vs. 
 Smith, 44 Ohio St. 348; Cooley's Const. Limitations, p. 197, et sea. 
 
 257] . I2 5 
 
126 THE SEPARATION OF [258 
 
 the enactment of that body should or should not be the law. 
 -Courts do not, therefore, interfere with matters of legislative 
 discretion. 1 They will not inquire whether acts are expedient 
 or inexpedient, politic or impolitic. 2 So the question whether 
 or not " provision can be made by general law " for a certain 
 purpose is one for the legislature, not for the courts to deter- 
 mine. 3 Where the legislature is empowered " to establish such 
 inferior tribunals from time to time, as it might deem needed," 
 the legislature alone is to judge when the need for such courts 
 has arisen. 4 Whether the use of a new agency (electricity) 
 constitutes a more humane method of inflicting the death pen- 
 alty than hanging, is a question for the determination of the 
 legislature, and its determination is conclusive upon the courts.s 
 Where a clause in a constitution allows the legislature to make 
 " all such laws as may be necessary to carry the constitution 
 into effect," the question of necessity is exclusively determined 
 by the legislature. 6 When the legislature grants a public 
 franchise on the ground of public convenience, the correctness 
 of its judgment as to such convenience cannot be reviewed by 
 the courts. 7 
 
 The constitutional provision 8 vesting in the legislature 
 power to alter senatorial districts, and requiring this to be 
 done so that " each senate district shall contain as nearly as 
 may be an equal number of inhabitants," grants to the legisla- 
 ture a discretion in carrying out the power, and the court has 
 
 'Malory vs. Marietta, 11 Ohio St. 636; State vs. Hitchcock, I Kan. 178; State 
 vs. Boone County Ct., 50 Mo. 317 ; Patterson vs. Barlow, 60 Pa. St. 54. 
 
 1 License Tax Cases, 5 Wall. 462, 469. 
 
 3 State vs. Boone County Ct., 50 Mo. 317. * Ibid. 
 
 5 People, ex rel. Kemmler, vs. Durston, 119 N. Y. 569. 
 
 6 State vs. Shields, 4 Mo. App. 259. 
 
 7 Fall vs. Sutter, 21 Cal. 239. See People vs. Kelly, 5 Abb. (N. C.) 383. 
 6 N. Y. Const., Art. 3, sec. 4. 
 
259] GOVERNMENTAL POWERS l2 J 
 
 no jurisdiction to review the exercise of this discretion unless 
 it appears that it has been plainly and grossly abused. 1 
 
 The motives of the legislature in passing an act cannot be 
 questioned by the courts. The courts must assume that the 
 legislative discretion has been properly exercised. 2 
 
 The judicial department of the United States government 
 will not invade the legislative functions of the commonwealth 
 -governments. 3 
 
 1 People, ex rel. Carter, vs. Rice, 135 N. Y. 473; compare State vs. Cunning- 
 ham, 51 N. W. 724. It has been suggested that courts should be granted the 
 £>ower of reviewing apportionment acts of the legislature, as a check upon gerry- 
 mandering. See " Distrust of Our Law Makers," address of Moorfield Story be- 
 fore Am. Bar Association, N. Y., Aug. 23, 1894. 
 
 2 People vs. Lawrence, 36 Barb. 177 ; People vs. New York Central R. R. Co., 
 
 34 Barb. 123; Baltimore vs. State, 15 Md. 376. See U. S vs. Williams, 5 Mc- 
 Lean, 135, which holds that the action of Congress on the allowance of a claim 
 
 .against the government is conclusive on the judiciary. 
 
 3 Hine vs. Levee Com'rs, 19 Wall. 655. See Rees vs. Watertown, 19 Wall. 
 107. The United States courts will not interfere by injunction with the execu- 
 tion of the registration and election laws of the commonwealths. Green vs. Mills, 
 
 35 U. S. App. 383. 
 
CHAPTER XV 
 
 JUDICIAL LEGISLATION 
 
 Notwithstanding the endeavors of the judiciary to avoid 
 the assumption of legislative power, the English system of 
 judicial interpretation in some cases must inevitably result in 
 judicial legislation. 1 The statutes as curtailed or enlarged by 
 interpretation, and not the bare statutes themselves, become 
 the rule of civil conduct to govern future cases. Where a law 
 is imperfect, but not to such an extent as to render its execu- 
 tion impossible, imperfections in its details may be- supplied by 
 rules of court. 2 Although judicial interpretation ought not to 
 curtail or add anything to a statute 3 but only to express the 
 true intention of the legislature, statutes are often so ambigu- 
 ous that it is impossible to find by rules of construction the in- 
 tention of the law, and then the judge is called upon to deter- 
 mine what the law should be. The judge thus becomes a 
 legislator. Cases may even arise in which statutes may be 
 construed against their letter. 4 In such cases the judgment 
 of the court may become the creature of an entirely new law 
 fashioned out of existing law. 
 
 Whenever a court reverses its own decision, it exercises 
 power legislative as well as judicial in nature. 5 In Hep- 
 
 1 A familiar illustration of judge-made law is the judicial doctrine of prescrip- 
 tion. See Angus vs. Dalton, 6 Ap. Cas. 740. Sedgwick's Construction of Stat- 
 utory and Constitutional Law, chap, vii, p. 250. 
 
 1 Cochran vs. Loring, 17 Ohio, 409. 
 
 3 See " Judge-made Law," in Cooley On Torts, p. 12. 
 
 *See People vs. Utica Ins. Co., 15 Johns. 358, 380; Riggs vs. Palmer, 115 N. 
 Y. 506; People vs. Butler, 147 N. Y. 164. 
 5 See Turnpike Co. vs. State, 28 Ind. 382. 
 
 128 [260 
 
2 6 1 ] GO VERNMENTAL PO WERS x 2 g 
 
 burn against Griswold, 1 the Supreme Court of the United 
 States held the legal tender acts of Congress unconstitu- 
 tional. Subsequently, in the Legal Tender Cases, 2 it held 
 them perfectly sound and constitutional. It has been said 
 that if the court had power absolutely to annul an act for 
 unconstitutionality, the first decision destroyed the legal tender 
 acts, and they could not be revived by the second decision of 
 the court without its indulging in the most bare- faced judicial 
 legislation. 3 
 
 It is an indisputable fact that, notwithstanding the separation 
 of powers, the principles and distinctions established by the 
 decision of single cases become a part of the law of the land. 
 Until overriden by express statutes, judicial precedents become 
 a system of rules binding all, and are regarded by the commu- 
 nity as the law determining the nature of the obligations con- 
 tracted under them. 4 
 
 In the absence of statutory provisions or of general rules of 
 court, many rules of practice are developed by judicial legis- 
 lation. 5 Every court of record has an inherent power to 
 make rules for the transaction of its business. 6 Without 
 this power it would be impossible for courts of justice to dis- 
 pose of the public business. Delays would be interminable. 
 Every court must therefore have stated rules to go by, and 
 they are the most proper judges of their rules of practice. 7 
 
 It not unfrequently happens that a law authorizes or requires 
 judges to meet and in convention to establish rules of prac- 
 
 1 8 Wall. 603. 2 12 Wall. 457. 
 
 3 See Am. Law Rev., March, 1887. 
 
 4 Sedgwick's Construction of Statutory and Constitutional Law, chap, vii, p. 
 250 ; Ordronaux's Constitutional Legislation, p. 408. 
 
 s Fisher vs. Gould, 81 N. Y. 228. 
 
 6 Barry vs. Randolph, 3 Binn. 277. See N. Y. Code of Civil Procedure, sec. 
 7 ; Baldwin vs. Mayor, 42 Barb. 549, aff'd in 45 Barb. 359. 
 
 ' Snyder vs. Bauchman, 8 S. & R. (Pa.) 336; Fullerton vs. Bank of U. S., I 
 Pet. 604. 
 
130 THE SEPARATION OF [262 
 
 tice and procedure which shall be binding upon all courts 
 of record, except courts for the trial of impeachments or 
 superior courts. 1 The rules established by the convention of 
 judges 2 have the force and effect of statutes that cannot be 
 properly departed from. 3 A right secured by a rule so adopted 
 is one of which a party cannot be deprived except by legisla- 
 tion or revision. 4 A rule of court (in the absence of legisla- 
 tion) can be abolished only by the authority of the court, in 
 the same manner as it was made. It cannot remain as a rule 
 of court and at the same time be considered as abolished by 
 an order of the judge, resting only in parol. 5 
 
 It is competent for the judges in convention to make rules 
 altering the practice previously settled by the decisions of the 
 courts. 6 A valid rule may be abolished by the legislature in 
 express terms annulling it, or ordaining something contrary in 
 effect to it. 7 A court may sometimes under special circum- 
 stances suspend its rules, or except a particular case from 
 them, to subserve the ends of justice. 8 
 
 The delegated power of the judges in convention to make 
 rules of practice resembles in every respect legislation. Such 
 a rule of practice differs from a statute only in that it is not en- 
 acted by the legislature, but by the court. It is somewhat 
 analogous to the delegated ordinance power of the executive. 
 
 This power must be considered as essential to the existence 
 
 1 N. Y. Code of Civ. Pro., sees. 17, 193, 323; L. 1882, chap. 410, sec. 1558; 
 N. Y. Law Journal, Nov. 24, 1894. 
 
 2 The legislatures may establish such rules and regulations, or delegate the 
 power of establishing them to the courts. See Wayman vs. Southard, 10 Wheat. I. 
 
 s People vs. Nichols, 18 Hun, 530, 535 ; reversed in 79 N. Y. 582, but only on 
 .another point; Matter of Moore, 108 N. Y. 280; Pratt vs. Pratt, 32 N. E. 747. 
 
 4 People vs. Nichols, 18 Hun, 530. See Kelly vs. Sheehan, 76 N. Y. 325. 
 
 5 Burlington R. R. Co. vs. Marchand, 5 Iowa, 468. 
 
 6 Havemeyer vs. Ingersoll, 12 Abb. Pr. (N. S.) 301. 
 ' Bishop vs. State, 30 Ala. 344. 
 
 - 8 U. S. vs. Breitling, 20 How. 252; Gillette Mfg. Co. vs. Ashton, 56 Neb. 576. 
 
263] GOVERNMENTAL POWERS I3I 
 
 of the courts, as a power having always been exercised by the 
 courts, and therefore not within the intention of the restriction 
 of the distributing clause of the constitutions. 
 
 Since the constitutions do not authorize the legislature 
 to delegate any law-making power proper to a convention of 
 judges, the courts cannot make general rules inconsistent 
 with the code enacted by the legislature. In such case the 
 courts would be enacting a law. 1 A rule in conflict with a 
 a statute is of no effect. 2 A rule intended to operate retro- 
 spectively as an act of limitations, is void. Statutes of limita- 
 tion can be modified only by the legislature. 3 
 
 1 Winton vs. English, 14 Abb. Pr. (N. S.) 124, 125; Gormerly vs. McGlynn, 
 84 N. Y. 284; French vs. Powers, 80 N. Y. 146; Rice vs. Ehele, 55 N. Y. 518; 
 •Glenney vs. Stedwell, 64 N. Y. 120. 
 
 2 People vs. Bruff, 9 Abb. (N. C.) 153. 
 
 3 Reist vs. Heilbrenner, 11 S. & R. (Pa.) 131. 
 
PART IV 
 
 THE LEGISLATURE AND THE EXECUTIVE 
 CHAPTER XVI 
 
 THE PARDONING POWER 
 
 As to what powers should be included in the term execu- 
 tive as that term is used in the distributing clause of the con- 
 stitutions, the opinions of judges are in conflict ; but all agree 
 that whatever power or duty is expressly imposed upon the 
 executive department becomes executive in the sense that it is 
 altogether free from the interference of the other branches of 
 the government. Especially is this the case where the subject 
 is committed to the discretion of the chief executive officer, 
 either by the constitution or by statute. As long as a power 
 is vested in him, it is to be by him exercised, and no other 
 branch of the government can control its exercise. 1 This 
 principle is readily applied to the cases in which the constitu- 
 tions vest certain powers in the executive officers. Its appli- 
 cation to such cases is well established and illustrated by 
 
 1 Att'y Gen'l vs. Brown, I Wis. 442. Groom vs. Gwinn, 43 Md. 572, holds that, 
 although the governor is vested by the constitution with jurisdiction to decide cases 
 of contested elections for attorney general, the power thus conferred is not self- 
 executing, and that it cannot be exercised by the governor until he is clothed by law 
 with authority and means to execute it, as with authority to summon witnesses, to 
 compel their attendance, to punish their refusal to attend, and to administer oaths. 
 
 Where the governor is made the commander-in-chief of the military forces ot 
 the commonwealth, it is generally admitted that his authority must be exercised' 
 under such rules as the legislature may prescribe. 
 
 132 [264 
 
265] GOVERNMENTAL POWERS 133 
 
 decisions relative to the pardoning power, and to the power of 
 remitting fines and forfeitures. 
 
 When the power to remit fines and forfeitures is confided by 
 the constitution to the governor alone, any act of the legisla- 
 ture which attempts directly or indirectly to remit a fine, either 
 before or after it has been paid, is unconstitutional. 1 The leg- 
 islature cannot relieve persons from penalties incurred by the 
 violation of certain penal statutes. 2 It has even been held that 
 where the constitution confers upon the governor power to re- 
 mit fines and forfeitures and to grant reprieves, commutations, 
 and pardons, the legislature cannot authorize a court, or a 
 judge thereof, on an appeal from a judgment of conviction, to 
 suspend the sentence of death. 3 
 
 In the absence of constitutional limitations, the legislature 
 -could, without doubt, confer upon the courts authority to grant 
 pardons or reprieves. The pardoning power is not a power 
 which necessarily inheres in the executive ; 4 and when the 
 constitution is silent, it does not belong to one branch of the 
 government more than to another. That the governor is gen- 
 erally granted this power is the result of history. 5 But, where 
 the constitution grants the power to the governor, the legisla- 
 ture cannot confer it upon any other person or tribunal. 6 Nor 
 •can a judge practically exercise the governor's power of 
 pardon by suspending sentence indefinitely. 7 Nor can the 
 legislature limit or restrict the executive's power to par- 
 don. 8 A legislative enactment signed by the governor, remit- 
 
 1 Haley vs. Clark, 26 Ala. 439. 2 State vs. Sloss, 25 Mo. 291. 
 
 3 Butler vs. State, 97 Ind. 373. * State vs. Nichols, 26 Ark. 74. 
 
 5 Lieber, Civil Liberty and Self-Government, vol. 2, 147. 
 
 6 Sterling vs. Drake, 29 Ohio St. 457 ; State vs. Nichols, 26 Ark. 74; Ogletree 
 vs. Dozier, 59 Ga. 300. 
 
 7 People vs. Brown, 54 Mich. 15. 
 
 8 U. S. vs. Klein, 13 Wall. 128; Armstrong vs. U. S., Id. 154; Paryond vs. 
 U. S., Id. 156. 
 
^4 the separation of [266- 
 
 ting the sentence imposed in a criminal case, was regarded 
 as equivalent to a pardon signed by the governor. 1 
 
 It should be noticed that where a judgment in favor of the 
 government involves the property of the government, it can be 
 released by the legislature on any conditions which it chooses 
 to prescribe. The legislature would have the same right to- 
 discharge it as it would have to release any debtor of the gov- 
 ernment from his obligation. 2 
 
 The modification of penalties by statute is not, as a general 
 rule, considered an interference with the pardoning power. 3 
 
 The Secretar)' of the Treasury may be authorized to remit 
 penalties for the breach of revenue and similar laws, 4 as penal- 
 ties incurred by a steamship carrying too many passengers.. 
 
 The pardoning power is generally understood to extend to 
 all cases except impeachments. Under the liberal construc- 
 tion applied to the clause conferring this power upon the chief 
 executive, it has been held that the exception proves the 
 comprehensive nature of the power. The executive has 
 the power to grant conditional pardons to take effect upon- 
 conditions either precedent or subsequent, 5 and the power 
 to pardon may be exercised before as well as after conviction. 6 ' 
 It has also been decided that the chief executive may grant 
 a conditional pardon to a person under sentence of death, com- 
 muting that punishment into imprisonment for life, although it 
 was argued that the executive granting such a pardon legis- 
 lated a new punishment into existence, and then sentenced 
 the convict to suffer it. 7 Though the warrant of a governor 
 
 1 People vs. Stewart, I Idaho, (N. S.) 546. 2 People vs. Birchara, 12 Cal. 50. 
 
 3 Commonwealth vs. Halloway, 42 Pa. St. 446, 448 ; Ex parte Scott, 19 Ohio- 
 St. 581. 
 
 •The Laura, 114 U. S. 411. 
 
 6 Lee vs. Murphy, 22 Gratt. 789; United States vs. Wilson, 7 Peters, 150; Ex- 
 parte Marks, 64 Cal. 29; Kennedy's Case, 135 Mass. 48. 
 
 6 Dominick vs. Bowdoin, 44 Ga. 357. 
 
 ' Ex parte Wells, 18 How. (U. S.) 307. 
 
267] GOVERNMENTAL POWERS 135 
 
 speaks of commuting punishment, if it substitutes a less for a 
 greater penalty, and this is intended to be done with the con- 
 sent of the prisoner, it will be considered a conditional pardon, 
 and not a commutation, the governor having full power to 
 pardon, but power to commute only capital punishment. 1 
 
 It is generally held that the power to pardon includes 
 the power to reprieve. It has been said : " The governor 
 has the unlimited and unrestricted power to pardon, and 
 upon the principle that the greater includes the less, must be 
 held to have authority to postpone the execution of a sentence 
 while engaged in the consideration of the question of exercis- 
 ing the pardoning power." 2 But the power to reprieve is not 
 derived exclusively from the power to pardon. Courts cannot 
 pardon, but courts may stay execution and may reprieve at 
 common law ; the power of reprieving is also vested in the 
 governor ex necessitate legis. Cases, as of insanity, might arise 
 when courts are not in session, which, although affording no 
 grounds for pardon, yet ought to be reprieved.^ 
 
 The power of the courts to suspend sentence does not con- 
 flict with the power vested by the constitution in the governor 
 to grant reprieves and pardons. 4 
 
 Since a contempt of court is an offence against the state and 
 not an offence against the" judge personally, the order of the 
 judge inflicting a penalty for such contempt comes within the 
 range of the pardoning prerogative vested by the constitution 
 in the executive. 5 The President of the United States is also 
 held to be clothed with the power of granting pardons in cases 
 where judges of the United States courts punish for con- 
 tempt. 6 
 
 1 Lee vs. Murphy, 22 Gratt. 789. 2 Ex parte Fleming, 60 Miss. 910. 
 
 3 Ex parte Howard, 17 N. H. 545. i People vs. Ct. of Sessions, 141 N. Y. 288. 
 
 5 State vs. Sauvinet, 24 La. Ann. 119; Ex parte Hickey, 4 Smedes & Mar- 
 shall, 751. 
 
 D 4 Op. of Att'y Gen'l, 458; In re Mullee, 7 Blatchf. 24. These decisions sug- 
 gest the question how far the executive might interfere with the courts by pardon- 
 
I3 6 THE SEPARATION OF |_ 2 68 
 
 In conclusion it only remains to be stated that Kansas, 
 Florida, Alabama, Arkansas, Texas, Mississippi, Oregon, 
 Indiana, Iowa and Virginia provide by their constitutions that 
 the foregoing powers shall only be exercised by the governor 
 under such regulations as shall be prescribed by law. 1 
 
 In the absence of constitutional provision, statutes regulating 
 the manner of making an application for pardon are merely 
 directory, and do not limit the power of the governor to 
 pardon to cases in which application is made as therein pro- 
 vided, nor is the effect of such statutes enlarged by the usual 
 constitutional provision that the governor may grant the 
 pardon, but that the legislature may by law regulate the man- 
 ner of the application. 2 
 
 ing persons committed by a j udge for the purpose of coercion, as in the case of a 
 contumacious witness. See The Laura, 114 U. S. 411. There is some author- 
 ity for the proposition that the executive cannot pardon persons under sentence by 
 the legislature for contempt of its authority. 2 Story on the Constitution, 337. It 
 is at least questionable whether a distinction should be made between the power 
 of the executive to pardon a contempt of court and a contempt of the legislature. 
 
 1 See State vs. Dunning, 9 Ind. 20. 
 
 2 In re Moore, 31 Pac. R. 980. See Governor vs. Warden, 62 N. Y. 584; N. W. 
 Law Journal, April 24, 1895. 
 
CHAPTER XVII 
 
 THE POWER OF APPOINTMENT AND REMOVAL 
 
 A phase of the relations existing between the legislature 
 and the executive is illustrated by the law of appointment and 
 removal. 
 
 A provision generally found in the commonwealth constitu- 
 tions declares that the governor shall nominate and, by and 
 with the consent of the senate, appoint all officers whose offices 
 are established by the constitution or shall be created by law, 
 and whose appointment or election is not otherwise provided for. 
 
 This clause has received different constructions in the several 
 commonwealths. The conflict in the decisions arises from the 
 •difficulty encountered in the construction and interpretation of 
 the distributing clause. Does the term executive, as employed 
 in this clause, include all powers generally termed executive 
 in their nature, or does the enumeration of certain powers 
 which the constitution expressly vests in the chief executive, 
 imply that the state only intended to include in its grant of the 
 ■executive powers to the executive department such powers as 
 are expressly enumerated ? If the state intended to vest in the 
 ^governor all powers executive in their nature, what was its 
 purpose in specifying particular executive acts which he might 
 •lawfully exercise ? 
 
 It has been held that while the above provision authorizes 
 the legislature to provide for appointment or election to office, 
 it does not authorize that body itself to make such appoint- 
 ment or election. It is one thing to make a place by enacting 
 -a law, and another thing to put a person in that place. The 
 one thing is purely and intrinsically legislative, the other is 
 269] 137 
 
I3 8 THE SEPARATION OF [270 
 
 not. For these reasons, a law effecting an appointment of the 
 board of public works and affairs has in Indiana been held to be- 
 invalid. 1 But, in the same commonwealth, although it has- 
 subsequently been affirmed that appointment is an executive- 
 act and that the legislature has no power to fill offices except 
 such as are connected with the discharge of legislative duties,, 
 it has been decided that the assembly, having since the adop- 
 tion of the constitution uniformly assumed the power of ap- 
 pointing or directing the appointment of officers of benevolent- 
 institutions of the commonwealth, in which assumption all de- 
 partments have apparently acquiesced, is authorized to appoint 
 a trustee of the Institution for the Blind. Benevolent institu- 
 tions were said to be the property of the commonwealth, and 
 as such under the general control of the legislature. 2 When 
 subsequently the Indiana legislature established a department 
 of geology to be under the direction of a director, and the- 
 legislature elected the director, the courts declared that, the- 
 legislature having created the office, but having had no power 
 to fill it, or to delegate that power, it being executive in its nature,, 
 and therefore inhering in the executive department of govern- 
 ment, the office became vacant as soon as created, and that 
 therefore the governor had the right to fill the vacancy. 3 
 
 Although the constitution has confided to the courts the ap- 
 pointment of their own clerks, it has been decided that the- 
 nature of the power is not changed. The act does not become- 
 judicial, but remains intrinsically executive, and therefore- 
 neither an appeal nor a writ of error will lie to the courts to- 
 review, reverse, or nullify it. 4 
 
 The authorities which hold that the power of appointment 
 is executive avoid great difficulty by declaring that though ther 
 
 1 State vs. Denny, 21 N. E. Rep. 252. 
 
 2 Governor vs. State, 21 N. E. Rep. 890. 
 
 3 State vs. Hyde, 121 Ind. 20. 
 
 * Taylor vs. Commonwealth, 3 J. J. Marsh. 401. Explained in Mayor vs. State,, 
 15 Md. 376. 
 
271] GOVERNMENTAL POWERS I39 
 
 appointment to office is an act executive in its nature, yet not 
 every such appointment involves executive functions, as 
 appointments by judicial officers in the discharge of their 
 duties, or appointments by the legislature in the discharge of 
 its duties as an independent body. Such appointments are 
 necessary to maintain the independent existence of the depart- 
 ments, and are not an encroachment upon the executive de- 
 partment. 1 
 
 That nomination to office is an executive act was earnestly 
 maintained by Thomas Jefferson. In one of his letters he 
 says : " Nomination to office is an executive function. To 
 give it to the legislature as we do, is a violation of the princi- 
 ple of the separation of powers. It swerves members from 
 correctness by temptation to contract for office for themselves 
 and to a corrupt barter for votes, and destroys responsibility 
 by dividing it among a multitude. By leaving nomination in 
 its proper place among executive functions, the principle of the 
 distribution of powers and responsibility weighs with its heav- 
 iest force upon a single head." 2 
 
 On the other hand, a large majority of decided cases main- 
 tain the view that all the powers usually denominated execu- 
 tive by theoretical writers, were not intended to be included in 
 the grant to the governor of the executive power, and that the 
 enumeration of specific powers which the executive might 
 exercise was intended to operate as a limitation of the general 
 grant. 3 The power of appointment to office is not generally, 
 under any system of checks and balances, regarded as a func- 
 tion intrinsically executive in the sense that it is inherent in 
 and necessarily belongs to the executive department. 4 Webster 
 says : s " First, the denomination of a department does not 
 fix the limit of the powers conferred on it, nor even their exact 
 
 1 State vs. Denny, 21 N. E. Rep. 252; State vs. Hyde, 30 Am. and Eng. Corp. 
 Cases, 318, 321 n, and 334 n. 
 
 2 Field vs. The People, 3 111. 79, 141. 3 Ibid,, 79. 
 
 * Mayor vs. State, 15 Md. 376. 6 Speech on " Presidential Protest." 
 
140 THE SEPARATION OF [272 
 
 nature ; and second (which indeed follows from the first), in 
 our American government, the chief executive magistrate does 
 not necessarily, and by force of his general character of 
 supreme executive, possess the appointing power." 
 
 Where this view of the distributing clause prevails, it has 
 been held that under a constitutional provision like the one 
 above considered, the legislature may, in cases not provided 
 for by the constitution, prescribe by general law the manner in 
 which all public officers shall be elected or appointed, and that 
 this power includes the power to designate the agent or person 
 who shall appoint as well as the formality with which it shall 
 be done. Were a literal construction of the clause in question 
 to be insisted upon, the time of the senate would be taken 
 up in acting upon the governor's nominations. 1 Where the 
 appointment is to a statutory office, it is competent for the 
 legislature to provide in a different way than that proposed 
 by the constitution, the manner of making original appoint- 
 ments, the terms of office and how all vacancies shall be 
 filled. 2 Vesting the executive power of the commonwealth in 
 the governor does not include the power to fill vacancies in 
 offices created by act of the legislature. 3 
 
 The legislature may provide for the appointment of a civil 
 service commission to make rules and regulations to govern 
 the qualifications and appointment of all statutory officers. 4 
 But the constitution of New York, for the purpose of fixing 
 responsibility, confers on the Superintendent of Public Works 
 of the state power to select and appoint his subordinates. 
 This, it has been held, gives him exclusive power in his ap- 
 pointments, so that the civil service statute, so far as it 
 attempts to restrict him in his choice to persons certified to 
 him by commissioners, is unconstitutional. 5 
 
 1 Bridges vs. Shallcross, 6 W. Va. 562. 2 People vs. Osborne, 7 Col. 605. 
 3 Briggs vs. McBride, 17 Ore. 9. 
 
 * Opinions of Justices, 138 Mass. 601. " This is not the delegation of power to 
 enact laws ; it is merely a delegation of administrative powers and duties. " 
 5 People vs. Angle, 109 N. Y. 564. 
 
273 J GOVERNMENTAL POWERS 741 
 
 The legislature, having power to prescribe the rule of selec- 
 tion, whether it shall be by election or appointment, may itself 
 make the selection. 1 So, for the legislature to name, in an 
 act of incorporation of a city, trustees to organize the city 
 government and conduct its affairs through the first year, is 
 not regarded as an assumption of executive powers. 2 To 
 avoid legislative appointments, provisions are frequently in- 
 serted into the constitutions, declaring that no appointing 
 power shall be exercised by the general assembly, except as 
 prescribed in the constitutions 
 
 Where the question, whether an officer shall be elected or 
 appointed, is left to the discretion of the general assembly, a 
 law directing his election or appointment may be changed at 
 the will of the legislature. 4 The legislature may withdraw the 
 power of appointment to statutory office from the governor 5 
 and vest it in any administrative board or officer. 6 And in 
 New York it has been held that the power of appointment may 
 be granted to unofficial persons, 7 as chambers of commerce 
 and presidents of insurance companies. 
 
 The legislature may change the time of the election of the 
 successor of an officer, so as to prolong the term of such 
 officer till a successor is appointed. This does not amount to 
 a legislative appointment to office. 8 In the absence of express 
 constitutional prohibitions, where a particular office has been 
 created by statute, the legislature may, in its discretion, abolish 
 the office without regard to the tenure or expectations of the 
 incumbent? It may pass an act lengthening or abridging the 
 
 1 Mayor vs. State, 15 Md. 376; People vs. Freeman, 22 Pac. Rep. 173. 
 
 2 State vz. Rosenstock, 11 Nev. 128. 
 
 3 Bridges vs. Shallcross, 6 W. Va. 562; State vs. Kennon, 7 Ohio St. 546. 
 * State vs. Covington, 29 Ohio St. 102; People vs. Draper, 15 N. Y. 532. 
 
 6 Davis vs. State, 7 Md. 151. 6 People vs. Shallcross, 6 W. Va. 562. 
 
 ' Sturgis vs. Spofford,45 N. Y.446. 8 People vs. Batchelor, 22 N. Y. 128. 
 9 State vs. Hermann, 11 Mo. App. 43; Bryan vs. Cattell, 15 la. 538. 
 
I4 2 THE SEPARATION OF [274 
 
 term of such an officer. 1 It may declare such office vacant and 
 appoint another person to fill the vacancy. 2 
 
 When the constitution confers the power of appointment 
 to or removal from office upon the executive department alone, 
 it is evident that such appointment or removal cannot be made 
 directly or indirectly by legislative enactment. 3 It has been 
 held that a constitutional right of the appointing power to re- 
 move at pleasure cannot be abridged by an act providing for 
 the removal in a certain way or for a certain cause. 4 Although 
 a statute which provides for a board, authorizing it to appoint 
 or remove officers, or to fill vacancies, is valid, and although 
 the legislature cannot appoint the officers of such board without 
 exercising the power of appointment, 5 yet where the legisla- 
 ture creates a board of public works of which certain officers 
 ■of the state are ex officio the members, and authorizes such 
 board to appoint to or remove from office, or to fill vacancies, 
 such act does not operate as a legislative appointment to 
 another or different office, but only annexes additional powers 
 and duties to be performed by persons already elected by the 
 people. It does not amount to a legislative appointment to an 
 office created by law. 6 
 
 The Constitution of the United States requires certain 
 officers to be appointed by the President by and with the ad- 
 vice and consent of the Senate. 7 But as, when officers be- 
 •come numerous and sudden removals necessary, inconveniences 
 might otherwise arise, it is provided that Congress may by 
 
 1 Territory vs. Pyle, I Ore. 149. 
 
 2 People vs. Barnard, 27 Cal. 470; Att'y Gen'l vs. Squires, 14 Cal. 13; Bryan 
 vs. Cattell, 15 la. 538. 
 
 3 Hood vs. United States, 15 Ct. of CI. 151. * People vs. Hill, 7 Cal. 97. 
 5 State vs. Kennon, 7 Ohio St. 546. 8 Bridges vs. Shallcross, 6 W. Va. 562. 
 
 7 Generally the President and the governors are empowered to fill all vacancies 
 happening during the recess of the Senate. U. S. Const., art. 2, sec. 2. This 
 provision is regarded as applying to vacancies happening during the session and 
 continuing after adjournment. In re Farrows, 4 Woods (C. C.) 491 ; State vs. 
 Kuhl, 17 Atl. Rep. 102. 
 
275] GOVERNMENTAL POWERS l ^ 
 
 law vest the appointment of other officers in the President alone, 
 in courts of law, or in the heads of departments. Congress, 
 however, has no power to confer authority to appoint to office 
 -upon any persons not named to that end in the Constitution. 1 
 Although the Constitution of the United States is silent as 
 "to the whereabouts of the general power of removal from 
 office, Congress in 1789 affirmed that it was vested in the 
 President, as a power executive in its nature and indispensable 
 to a due execution of the laws and the regular administration 
 •of public affairs. This was acquiesced in as the true construc- 
 tion of the Constitution until the passage by Congress from 
 -political motives of the Tenure of Office Act of March 2, 
 1867, which made the consent of the Senate necessary to the 
 removal of civil officers, even of the heads of the several de- 
 partments. This act was greatly modified on April 5, 1869, 
 .-and was with general approval repealed in 1887. It remains 
 -doubtful whether the President has the sole power of removal 
 4>y virtue of the Constitution or by virtue of the act of Con- 
 rgress. 2 
 
 The commonwealths have placed a similar construction upon 
 "their constitutional provisions, and hold that the fact that the 
 •consent of the senate is necessary to authorize the governor 
 to appoint does not prohibit him from removing officers at 
 fiis pleasure. 3 But there are some decisions to the contrary. 
 •On the ground that the power of removal is incident to the 
 >power of appointment, it has been held that an officer cannot 
 'be removed by the governor without the consent of the senate, 
 -where he is to hold during the pleasure of the power appoint- 
 ing him. 4 
 
 1 United States vs. Germain, 99 U. S. 508. 
 
 2 Story's Commentaries on the Constitution, vol. 2, p. 363. 
 
 3 Wilcox vs. People, 90 111. 186; Lane vs. Commonwealth, 103 Pa. St. 481 ; 
 "Harman vs. Harwood, 58 Md. I; Keenan vs. Perry, 24 Tex. 253; People vs. 
 JHill, 7 Cal. 97. 
 
 1 People vs. Freese, 83 Cal. 453. See Field vs. People, 3 111. 82. 
 
CHAPTER XVIII 
 
 IMPLIED AND INCIDENTAL POWERS OF THE EXECUTIVE- 
 DEPARTMENT 
 
 Since the manner in which a statute is to be executed* 
 may properly be made a part of a statute, it follows that irn 
 many cases, whether the executive shall have discretionary 
 power or act merely ministerially in the execution of laws de- 
 pends largely upon the will of the legislature. But the exec- 
 utive department, in the execution of its duties, constitutional 
 as well as statutory, is often compelled to exercise its discre- 
 tion. While it is limited in the exercise of its power by the- 
 law, it does not follow that it must show a specific provisions 
 for everything it does. No government could attempt to» 
 regulate by law the minute movements of every part "of its- 
 complicated machinery. While the great outlines of its move- 
 ments may be marked out, and limitations imposed on the 
 exercise of its powers, there are numberless things, essential to 
 its proper action, which can neither be anticipated nor defined. 11 
 
 The quasi-legislative power of the President as commander- 
 in-chief of the army and navy to establish rules and regula- 
 tions for the government of the army is undoubted, The 
 Secretary of War being the regular constitutional organ of the 
 President for the administration of the military establishment 
 of the nation, the rules and regulations publicly promulgated 
 through him must be received as the acts of the executive, and 
 as such are binding upon all within the sphere of his legal and! 
 
 1 United States vs. Macdaniel, 7 Peters, 1. 
 144 [276 
 
2 77 J GOVERNMENTAL POWERS 145 
 
 constitutional authority, and cannot be questioned or defied 
 because they may be thought unwise or mistaken. 1 
 
 The governor, as the proper representative of the common- 
 wealth government, is bound to protect its interests. There- 
 fore, in a case where the attorney general, or other officer, is 
 absent from the commonwealth, or fails to discharge his 
 duties, as in taking an appeal, the governor is bound to inter- 
 vene in behalf of the government and take the' appeal. 2 
 
 Although there is no express statute authorizing it, yet the 
 President of the United States has authority to direct a United 
 States marshal to accompany and protect from a threatened 
 assault a Justice of the Supreme Court while in the discharge 
 of his duties, it being the President's duty to see that the laws 
 are executed. 3 
 
 On the same ground the executive department may appoint 
 commissioners and agents to make investigations required by 
 acts or resolutions of Congress, although it cannot pay them 
 except from appropriations for that purpose.-* 
 
 Any power which is not constitutionally vested in one of 
 the departments, or in some particular authority, and which 
 the legislature may delegate, it may vest in the executive, 
 either alone or in conjunction with some other authority. For 
 instance, it may provide that the price to be given for lands 
 
 1 United States vs. Eliason, 16 Pet. 291, 301. See U. S. vs. Freeman, 3 How. 
 (U. S.) 556. 
 
 It having been made the duty of the Secretary of the Treasury from time to 
 time to establish rules and regulations not inconsistent with the laws of the United 
 States, to secure a faithful appraisal of all goods and merchandise imported into 
 the United States, his decision is binding and conclusive upon all the collectors 
 and other officers of the customs, whenever a difficulty arises as to the true con- 
 struction of the revenue laws. Sampson vs. Peaslee, 20 How. 571. 
 
 2 State ex rel. Mahan vs. Dobuclet, 22 La. Ann. 602. See Stephenson vs. 
 Little, 10 Mich. 433. 
 
 s In re Neagle, 135 U. S. I; C. J. Fuller and Lamar, J., dissenting. 
 
 * 4 Op. Att'y Gen'l, 248. 
 
146 THE SEPARATION OF [278 
 
 condemned for public use, shall be subject to the approval of 
 the President as well as of commissioners. 1 
 
 Congress has frequently delegated to the President discre- 
 tionary administrative powers of a far-reaching nature. 
 
 The alien act of July 6, 1798, vested in the President 
 power to order such aliens as he should adjudge dangerous to 
 the peace and safety of the United States, or should have 
 reasonable grounds to suspect were concerned in any treason- 
 able or secret machinations against the government, to depart 
 from the territory of the United States within such time as 
 should be expressed in his order. This act was very unpopular, 
 because it was said to unite legislative and judicial powers with 
 the executive powers of the President. 
 
 An act authorizing the President to establish by proclama- 
 tion or other public acts, rules and regulations for apprehending, 
 restraining, securing and removing alien enemies, was regarded 
 as necessarily conferring upon him all powers for enforcing such 
 orders. It was held that it was unnecessary for him to call in 
 the aid of the judiciary to enforce such regulations, and that 
 the courts should make the ordinances of the President the 
 rule of their decisions. 2 
 
 The making by the President of rules and regulations for 
 calling forth and drafting the milirja is not the exercise of a 
 power strictly and exclusively legislative, and an act of 
 Congress giving the President power to make all necessary 
 rules and regulations to carry into effect the law for calling 
 out the militia, is not the delegation of the legislative powers 
 of Congress, although Congress could have exercised the 
 power it delegated.3 
 
 Recently the Supreme Court of the United States, in 
 
 1 Shoemaker vs. United States, 147 U. S. 281. 
 
 * Lockington vs. Smith, 1 Peters' C. C. 466. 
 
 1 In re Griner, 16 Wis. 423. For good illustrations of the exercise of the ordi- 
 nance power, see Jones vs. United States, 137 U. S. 202; Goodnow's Adm. Law, 
 vol. 2, pp. 30, 40, 44, 106. 
 
279] GOVERNMENTAL POWERS T47 
 
 upholding the validity of the reciprocity clause of the Mc- 
 Kinley act, rendered a decision of great importance. The 
 court held that Congress has the power to delegate to the 
 President of the United States the power by proclamation at a 
 future day to revoke or modify certain clauses of an act. A 
 ■close examination of the dissenting opinions of Chief Justice 
 Fuller and Justice Lamar will reveal the fact that they do not 
 disagree with the principles of law applied by the majority ot 
 the court, but rather with their interpretation of the meaning 
 -of the words of the act. 
 
 The reciprocity clause provided : " With a view to procure 
 reciprocal trade with countries producing the following arti- 
 cles, and for this purpose, whenever and so often as the Presi- 
 dent shall be satisfied that the government of any country pro- 
 ducing and exporting sugar, molasses, coffee, tea, hides, or any 
 other article, imposes duties or other exactions upon the agri- 
 cultural or other products of the United States, which, in view 
 of the free introduction of such sugar, molasses, coffee, tea, or 
 hides into the United States, he may deem to be reciprocally un- 
 equal and unreasonable, he shall have the power, and it shall be 
 his duty to suspend, by proclamation to that effect, the provis- 
 ions of the act relating to the free introduction of such sugar, 
 molasses, coffee, tea, or hides, the products of such country, 
 _for such time as he shall deem just, and in such case and during 
 -such suspension, duties shall be collected and paid upon such 
 products from such country." 
 
 A majority of the court held that the statute vested no 
 discretionary power in the President; that, when he ascer- 
 tained the fact that duties reciprocally unequal and unreasona- 
 ble were imposed upon certain products of the United States 
 by a country exporting sugar, molasses, coffee, tea, or hides, it 
 became his duty to issue a proclamation declaring a suspension 
 of privileges as to that country; and that, in ascertaining the 
 fact and issuing his proclamation, he did not exercise the func- 
 tion of making laws. He was the mere agent of the law male- 
 
I4 8 THE SEPARATION OF [280 
 
 ing department to ascertain and declare the event upon 
 which its expressed will was to take effect. This construction 
 of the act brought it within the rulings of the Supreme Court 
 on the Non-Intercourse Acts of 1809 and 1810, 1 in respect of 
 which it was held that Congress might make their suspension 
 or revival depend upon the proclamation of the President, 
 based upon the ascertainment by him of the fact that the 
 edicts of certain nations had been so revoked or modified that 
 they did or did not violate the neutral rights of the United 
 States. An uninterrupted acquiescence in numerous prece- 
 dents of similar legislation was also regarded by the court as 
 further evidence of the constitutionality of the reciprocity 
 clause. During Washington's administration, Congress au- 
 thorized the President, at times when Congress was not in 
 session, " whenever in his opinion the public safety shall so 
 require," to lay an embargo. 2 During Madison's administra- 
 tion, the President was authorized to repeal certain duties 
 "when the President of the United States shall be satisfied" 
 that duties of foreign nations discriminating against the United 
 States had been abolished. 3 
 
 Chief Justice Fuller and Mr. Justice Lamar, in their dis- 
 senting opinions as to the constitutionality of the clause in 
 question, maintain that it transfers to the President legislative 
 power, that it deputes to him the power to suspend another 
 section in the same act " whenever he may deem " acts of for- 
 eign nations reciprocally unequal, and that it further deputes 
 to him the power to continue that suspension and to impose 
 revenue duties "for such time as he may deem just" and thus 
 attempts to clothe the executive with discretionary powers 
 which the Constitution has vested in the law-making depart- 
 
 1 Brig Aurora vs. United States, 7 Cranch, 382. Schooner Anne vs. United 
 States, Id. 570. 
 
 ' 1 St. 372. 
 
 5 3 St. 224. A summary of analogous laws, and. proclamations made under 
 them, is contained in the decision and reporter's note. 
 
28 1 J GOVERNMENTAL POWERS j.49 
 
 merit. These features, they say, distinguish the act in question 
 from the legislative precedents, none of which, excepting the 
 Non-Intercourse Acts, had undergone review by the Supreme 
 Court, or been sustained by its decision, and which, if really 
 precedents, could not avail as authority against a clear and 
 undoubted principle of the Constitution. 1 
 
 If dire necessity should ever require it, the precedents of our 
 Civil War will probably be adduced as authority for the propo- 
 sition that the war power of the President includes the power 
 to assume the functions of all three departments. Once, at 
 least, the state regarded the President as justified in breaking 
 the Constitution in order to preserve it. By virtue of his war 
 powers, President Lincoln by his Emancipation Proclamations 2 
 of 1862 and 1863 established a law as effectively as any ever 
 passed by a legislature. 3 By his proclamation suspending the 
 writ of habeas corpus without any previous legislative sanc- 
 tion, he assumed powers legislative and judicial. 4 
 
 Although the courts have indicated that the President has 
 no authority to suspend the writ of habeas corpus, except 
 when and as authorized by Congress, because its suspension 
 involves the exercise of legislative power, they upheld the ac- 
 tion of the President in suspending the writ by a proclamation 
 in pursuance of a statute 5 which, during the late Civil War, did 
 
 1 Field vs. Clark, 143 U. S. 649. 
 
 2 The executive's power to issue proclamations admonishing citizens of their own 
 duties and responsibilities as an incidental power, though formerly questioned, is 
 now firmly established. Story's Com. on the Const., vol. 2, p. 387. 
 
 3 Shaback vs. Cushman, 12 Fla. 472; Dorris vs. Grace, 24 Ark. 326; Morgan vs. 
 Nelson, 43 Ala. 586; Hall vs. Keen, 31 Tex. 504. 
 
 * " The Constitution of the United States in Civil War,'' Political Science 
 Quarterly, vol. i, p. 163. "The Suspension of the Habeas Corpus during the 
 War of the Rebellion," Political Science Quarterly, vol. iii, p. 345. See Ex 
 parte Merryman, Taney's Decisions; McCall vs. McDowell, I Abb. (U. S.) 212; 
 Ex parte Field, 5 Blatch. (U. S. Cir.) 63; In re Kemp, 16 Wis. 539; Griffin vs. 
 Wilcox, 21 Ind. 370. 
 
 6 13 St. at Large, 730. 
 
T.50 THE SEPARATION OF [282 
 
 not declare a general suspension of the writ, but empowered 
 the President to exercise his judgment and supersede it in 
 particular cases as he might deem the public interest required. 1 
 
 Many executive war measures, legislative in their nature, 
 were sustained by the courts. The president's order authoriz- 
 ing the arrest wherever found within the jurisdiction of the 
 United States, of persons absenting themselves to avoid being 
 drafted, was declared to be a legal and valid order. 2 
 
 In time of war, if portions of hostile territory are in mili- 
 tary occupation, the President, as commander-in-chief, may 
 appoint provisional courts for the determination of contro- 
 versies within such territory. 3 
 
 Nor was the appointment by the President of provisional 
 governors over the commonwealths in revolt, until in pur- 
 suance of acts of Congress their governments could be recon- 
 structed, the exercise of unconstitutional powers. 4 
 
 1 McCall vs. McDowell, 1 Abb. (U. S.) 212. See Ex parte Field, 5 Blatch. 63. 
 * Allen vs. Colby, 47 N. H. 544. See Jones vs. Seward, 40 Barb. 563. 
 'Jackson vs. Montgomery, 13 How. 498; The Grapeshot, 9 Wall. 129. See 
 Edwards vs. Tanneret, 12 Wall. 446; Mechanics' Bk. vs. Union Bk., 22 Wall. 276. 
 4 See Texas vs. White, 7 Wall. 730. 
 
PART V 
 
 THE EXECUTIVE AND THE COURTS 
 CHAPTER XIX 
 
 EXECUTIVE IMMUNITY FROM JUDICIAL CONTROL 
 
 The questions which arise for consideration under this 
 branch of the subject are not questions involving the direct as- 
 sumption by one of the departments of power vested in the 
 others, but rather questions concerning the indirect control by- 
 one of these departments of powers exercised by the others. 
 
 Notwithstanding that the logical application of the principle 
 of the independence of the departments would require that the 
 acts and persons of each department should be free from the 
 interference and control of any other department, in practice 
 there is a great conflict as to whether theory should not under 
 particular circumstances give way to justice. 
 
 In some jurisdictions the courts, in bold defiance of theory, 
 do not scruple to issue the writ of mandamus against the chief 
 executive officer of the commonwealth to compel the perform- 
 ance of executitive duties. Although it is universally con- 
 ceded that the writ will never issue to control the governor's 
 discretionary powers, yet his ministerial duties, upon whose 
 performance individual rights may depend, have sometimes 
 been held amenable to the compulsory process of the courts, 
 irrespective of the fact whether such ministerial powers were 
 conferred by statute or the constitution. 1 If in addition to his 
 
 'States. Governor, 5 Ohio, St. 528; Cotten vs. Governor, 7 Jones (N. C.) 
 545 ; contra, Chamberlain vs. Sibley, 4 Minn. 309 ; R. R Co. vs. Moore, 36 Ala. 
 
 37 1. 
 
 283] 151 
 
ti; 2 THE SEPARATION OF [284 
 
 executive powers, or among his executive powers, the con- 
 stitution devolves upon the governor ministerial duties, such 
 as the issuing of commissions to persons whose election has 
 been duly certified, a mandamus will lie against him to compel 
 the performance of such duties. 1 
 
 Some courts declare it difficult to understand how a duty- 
 can be any less ministerial, or can be endowed with a political 
 nature, merely by requiring it to be performed by the governor 
 instead of some inferior officer, or why, if it is competent for the 
 legislature to impose upon the governor a ministerial duty, he 
 should not be held responsible for its due execution, and be 
 regarded quoad hoc not as an executive, but as a ministerial 
 officer. 2 
 
 These decisions are frequently based upon a dictum of 
 Chief Justice Marshall in Marbury vs. Madison,s to the effect 
 that it is not, by— the office jgf the person to whom the j writ 
 is-directed, but by the_nature of th e thing ^to_be done, that 
 the propriety or impropriety of issuing a mandamus is to 
 be determined. On the ground that the acts are ministerial, 
 the courts have issued a mandamus to compel the governor 
 to sign a patent, 4 to canvass a vote, 5 to issue a bond and mort- 
 gage, 6 and to issue a warrant upon the custodian of a fund 
 loaned to a railroad company by legislative authority. 7 
 
 Although the courts may compel the governor to authenti- 
 cate a bill which has become law because not vetoed or re- 
 turned within a specified time, 8 yet they may not compel him 
 to sign a bill, because this is a discretionary act.s 
 
 What would happen if the executive should deny the juris- 
 
 1 Magruder vs. Governor, 25 Md. 173. 
 1 Middleton vs. Governor, 30 Cal. 596. 
 ' 1 Cranch, 170. * Middleton vs. Governor, 30 Cal. 596. 
 
 5 Chumasero vs. Potts, 2 Mont. 242. 
 
 6 State vs. Warmouth, 22 La. Ann. 1 ; People vs. Bissell, 19 111. 229. 
 T R. R. Co. vs. Moore, 36 Ala. 371. 
 
 8 Harpending vs. Knight, 39 Cal. 189. 9 Hatch vs. Stoneman, 66 Cal. 632. 
 
28$ J GOVERNMENTAL POWERS 153 
 
 diction of the courts to issue the mandamus against him, 
 these cases leave unanswered. It is very doubtful whether 
 the chief executive would be inclined to enforce against himself 
 punishment for contempt of court, which would be the only- 
 conceivable remedy for the courts in such a case. 
 
 On the other hand, a greater weight of authority withholds 
 from the courts the right of controlling or in any manner inter- 
 fering with the powers or acts of the chief executive. The de- 
 cisions to this effect stand upon a more logical if not a more just 
 foundation. All duties imposed upon the governor, whether 
 by statute or the constitution, they regard as executive and 
 beyond the the control of the courts, even if the same power, if 
 exercised by any other officer, could be controlled by the 
 courts. 1 While he continues in the exercise of his office, the 
 governor is answerable for his official misconduct only to 
 the legislature through its power of impeachment. The 
 •effect of such a judicial remedy would be to deprive the people 
 of the commonwealth of one of the departments of govern- 
 ment. 2 The courts have no power to compel either of the 
 other departments of government to perform its duties, any 
 more than either of those departments can compel the courts 
 to perform their duties. Courts have no means and no power to 
 avoid the effects of non-action by the legislature or the ex- 
 ecutive. 3 If by a treaty, for instance, a sum of money is to be 
 paid to a foreign nation, it becomes the duty of Congress to 
 make the necessary appropriation, but in the nature of things 
 this is a duty the performance of which cannot be coerced. 
 This subject underwent much discussion at the time of the 
 treaty of 1794, known as Jay's Treaty, at the time of the pur- 
 chase of Alaska, and in the case of the award in favor of Eng- 
 land by the Halifax Commission. 
 
 1 Hawkins vs. Governor, 1 Ark. 570. 
 
 2 Low vs. Towns, 8 Ga. 360 ; Dennet vs. Governor, 32 Me. 508. 
 s Myers vs. English, 9 Cal. 341. 
 
154 THE SEPARATION OF [286 
 
 That there must be an adequate remedy for every wrong, 
 that where a clear right exists there must be a mode of enforc- 
 ing that right, is true only in theory. For instance, a party 
 may be deprived of a right by a wrong verdict, or an errone- 
 ous ruling of a judge; a person lawfully chosen to the legisla- 
 ture may have his seat given by the house to another, and be 
 thus wronged without a remedy; a just claim against the gov- 
 ernment may be rejected by a board of auditors, and neither 
 the governor nor the courts can give relief; a convicted person 
 may conclusively demonstrate his innocence to the governor, 
 and still be denied a pardon. The law must leave the final 
 decision upon every controversy somewhere, and when that 
 decision has been made it must be accepted as correct. The 
 presumption is just as conclusive in favor of the executive as 
 in favor of the judiciary. 1 In the formation of government, 
 equal confidence was rightfully reposed in each department to- 
 which independent duties were assigned. If the court unin- 
 tentionally errs, there is no remedy, and the same is true .of the 
 executive. 2 Accordingly, the courts have refused to issue pro- 
 cess to compel the governor to deposit in the office of the sec- 
 retary of state a bill which was not returned with objections 
 within the specified time, 3 or to call an election to fill va- 
 cancies. 4 Nor would the courts issue a mandamus to the 
 governor, even if he voluntarily appeared and professed a wil- 
 lingness to abide by the decision of the court. 5 Nor can the 
 courts restrain the governor from issuing a certificate of elec- 
 tion, whether he acts rightfully or wrongfully, 6 or from organ- 
 izing a county on false census returns. 7 
 
 These authorities further hold that an act is none the less 
 
 1 Per Cooley, in People vs. Governor, 29 Mich. 320. 
 
 a People vs. Bissell, 19 111. 229. s People vs. Yates, 40 111. 126. 
 
 'People vs. Cullom, 100 111. 472. See State vs. Governor, 25 N. J. L. 331. 
 
 6 People vs. Governor, 29 Mich. 320. But see People vs. Bissell, 19 111. 229- 
 
 6 Bates vs. Taylor, 87 Tenn. 319. 
 
 ' See R. R. Co. vs. De Graff, 27 Minn. 1 ; Lacy vs. Martin. 39 Kan. 703. 
 
287] GOVERNMENTAL POWERS jijj 
 
 executive because ministerial. As distinguished from judi- 
 cial duties, all executive duties are ministerial. If the idea is 
 that the_duty of the executive becomes ministerial when no 
 discretion is left as to theTnanher orits performance, and that 
 therTfhe courts may compel its performance, it follows that the 
 judiciary can interfere wherever the executive duty is clear, 
 but that in all cases of doubt and difficulty the responsibility 
 rests upon the executive alone. The question whether an act 
 coming within the range of duties of the chief executive is 
 discretionary, political, or ministerial, cannot be determined 
 judicially, but must be determined by the executive alone. If 
 the court assumes the power to enforce the performance of 
 ministerial duties, it opens thewaytothe^xercise of executive 
 power. The judge then can say what acts are ministerial, 
 what discretionary, and what political, and in that manner re- 
 view or overrule even political acts at his pleasure, and in so 
 doing assume executive functions. 1 
 
 For similar reasons the courts decline to issue a certiorari to 
 review the acts of the chief executive of the commonwealth. 2 
 But acts of the governor are reviewable, and may, in fact, be 
 annulled by the courts. 
 
 Although the courts cannot compel the performance of even 
 constitutional duties by the executive, and will not restrain 
 or in any manner interfere with any action proposed by him, 
 yet acts performed by the executive, like acts of the legisla- 
 ture, may be judicially subjected to the test of the constitution, 
 whenever they are claimed to have prejudiced private rights. 
 Any act of the executive within the scope of his delegated 
 authority is beyond revision by the courts ; but, to determine 
 whether he has acted within the scope of his authority, and, if 
 not, to declare his acts void, is part of the judicial power of 
 
 1 State vs. Warmouth, 24 La. Ann. 351 ; R. R. Co. vs. Lowry, 61 Miss. 102. 
 See Throop, Law of Pud lie Officers, sec. 793 et seq., and High's Extraordinary 
 Legal Remedies, sec 118, for the law of the different commonwealths. 
 
 2 People vs. Hill, 126 N. Y. 497. 
 
I $6 THE SEPARATION OF [288 
 
 which the courts cannot be deprived, and which they must 
 assume, however irksome the duty may be. Acts of the gov- 
 ernor have been held illegal, on quo warranto proceedings. 
 Such was the case where the governor appointed to office a 
 person not properly qualified. 1 And where the governor at- 
 tempted to fill an office not vacant, it was held that the person 
 appointed by him could be ousted by quo warranto proceed- 
 ings. 2 By the same process a court may examine into re- 
 movals by the governor, and determine whether they were 
 made in accordance with law. 3 Courts have also assumed by 
 the writ of habeas corpus to inquire into the validity of a gov- 
 ernor's action in ordering the surrender of a fugitive from jus- 
 tice, and have decided that his action was not in accordance 
 with law. 4 
 
 Where two individuals claim the right to an office and one 
 obtains from the governor a commission, it is competent for the 
 judiciary to go behind the commission, and to inquire into the 
 ' validity of the election and to decide the rights of the contest- 
 ing parties. 5 
 
 The courts will prevent any one from usurping the functions 
 or intruding into the office of the executive, and punish such 
 usurpation. 6 
 
 As regards the exemption of the President of the United 
 States from judicial supervision, a dictum of the Supreme 
 Court disclaims the power of the court to control the Presi- 
 dent, 7 and subsequently the same court refused to enjoin the 
 President from carrying into effect an act of Congress which 
 
 1 People vs. Pratt, 50 Hun, 454. 2 Dullam vs. Wilson, 53 Mich. 392. 
 
 8 People vs. Berrien, 45 N. W. 78. 
 
 4 People vs. Curtis, 50 N. Y. 321 ; 2 Moore on Extradition, 1016 et seq. 
 
 6 Low vs. Towns, 8 Ga. 360. 
 
 6 Att'y-Gen'l vs. Barstow, 4 Wis. 567. See State vs. Gleason, 12 Fla. 190. 
 The courts will determine which of two bodies, each claiming to be the Senate, is 
 the constitutional body. State vs. Rogers, 56 N. J. L. 480. 
 
 7 Kendall vs. United States, 12 Pet. 524, 610. 
 
289] G0 VERNMENTAL PO WERS j 5 7 
 
 was alleged to be unconstitutional, since the duties under it 
 were discretionary, political and executive. The court de- 
 clined to decide whether it had power to compel the President 
 to perform or refrain from performing a ministerial act. 1 
 
 President Jefferson said, if the Supreme Court had granted 
 a mandamus in the case of Marbury vs. Madison, he should 
 have regarded it as trenching on his appropriate sphere of 
 duty. He instructed Madison not to deliver the commission, 
 and said he was prepared as President of the United States to 
 maintain his own construction of the Constitution with all the 
 powers of the government, against any attempt by the judiciary 
 to control what he regarded as the rightful powers of the ex- 
 ecutive and senate within their peculiar departments. 2 
 
 Oiher officers of th.e United States the Supreme Court has 
 held to be amenable to mandamus under certain circum- 
 stances. The court will not issue the writ to control a political 
 or discretionary power conferred upon such an officer by Con- 
 gress, or delegated to him by the President as his agent, 3 but it 
 has assumed the power to grant a mandamus against the head 
 of a department, 4 and against the commissioner of pensions, 5 
 to compel them to perform ministerial duties. In this respect 
 there is no distinction between these officers and other inferior 
 officers of the general government. 
 
 Where the principal officers of the commonwealth govern- 
 ments act as mere assistants or agents of the chief executive in 
 the performance of a political or discretionary act, they are no 
 more subject to the control of the court than the chief execu- 
 
 1 Mississippi vs. Johnson, 4 Wall. 475. 
 
 2 Jefferson's Works, vol. iv, pp. 75, 317, 372. 
 
 3 United States vs. Black, 128 U. S. 40; United States vs. Windom, 137 U. S. 
 636; Gaines vs. Thompson, 7 Wall. 347. 
 
 4 Kendall vs. United States, 12 Pet. 524; United States vs. Schurz, 102 U. S. 
 378. See United States vs. Guthrie, 17 How. 282. 
 
 5 Butterworth vs. United States, 112 U. S. 50. See United States vs. Black, 
 128 U. S. 40. 
 
1:58 THE SEPARATION OF [290 
 
 tive himself. But where a ministerial act is required to be 
 done independently of the executive, though in a certain sense 
 they are executive officers, it would be as idle to dispute 
 their liability to legal process as it would be to make the 
 same claim to exemption on behalf of any other officer en- 
 trusted with similar duties of a lower grade. The writ has 
 been sustained to compel the performance of ministerial duties 
 against the secretary of state in Kansas, Louisiana, Missouri, 
 Wisconsin and Illinois ; against the comptroller in New York, 
 California and Florida; against the auditor in Alabama, 
 Arkansas, Iowa, Louisiana, Illinois, Michigan, Mississippi and 
 Ohio; and against the state treasurer in Alabama, Kansas, 
 Louisiana, Michigan and North Carolina. 1 The mandamus 
 has been issued to compel the president of the senate, in the 
 absence of the governor, to assume the governorship, on his 
 refusal to do so. 2 
 
 On the other hand, Minnesota, Louisiana, Illinois and Texas, 
 on the ground that every act of any executive officer, even if 
 ministerial, is executive, refuse to grant the writ under any 
 circumstances against the principal officers of the government, 
 as the secretary of state, state treasurer and state auditor. 3 
 
 The governor is not subject to the subpcena of the grand 
 jury. He is the absolute judge of what official communi- 
 cations to himself or his agents may or may not be repeated ; 
 also, of what his official duties are, and how they are to be 
 performed. 4 Neither the President of the United States, nor 
 the governors of the commonwealths, nor cabinet officers, are 
 bound to disclose in a judicial inquiry, papers or information 
 
 1 Throop's Law of Public Officers, sec. 798. 
 
 2 Barnard vs. Taggart, 29 Atl. Rep. 1027. 
 
 s Authorities collected in Throop's Law of Public Officers, sec. 798 ; High's 
 Extraordinary Legal Remedies, sec. 124 et sea. 
 
 1 Hartcraft's Appeal, 85 Pa. St. 433; Thompson vs. German Valley R. R. Co., 
 22 N. J. Eq. in. 
 
29 1 J GOVERNMENTAL POWERS i$g 
 
 officially communicated to them, when, in their own judg- 
 ment, the disclosure would on public grounds be inexpedient. 1 
 
 While Burr's trial was progressing, President Jefferson was 
 summoned by subpoena to appear and bring papers with him. 
 He refused to do either. 2 
 
 The courts cannot control executive discretion. Neither the 
 legislature nor the courts can compel or enjoin the governor 
 to convene the legislature on extraordinary occasions. 3 Nor 
 can they control the executive in the exercise of his power to 
 call out the militia in certain exigencies. The President is 
 the exclusive and final judge as to whether such exigencies 
 have arisen. 4 
 
 1 I Greenleaf on Evidence, sec. 25 1 ; 1 Wharton's Law of Evidence, sec. 600. 
 
 2 3 Burr's Trial, 37. 
 
 3 Whitman vs. R. R. Co., 2 Harr. 514. 
 
 4 Martin vs. Mott, 12 Wheat. 9. See People vs. Parker, 3 Neb. 409. 
 
CHAPTER XX 
 
 THE POWER OF REMOVAL FOR CAUSE 
 
 The power to remove for cause a commonwealth officer has 
 been regarded in some jurisdictions as a judicial act, and 
 therefore incapable of being vested by the legislature in any 
 officer or body other than the courts. 1 But it is almost uni- 
 versally regarded as an administrative power, and thus capable 
 of being conferred by the legislature upon the executive or 
 upon administrative officers, 2 or upon the courts. 3 The removal 
 of an officer for neglect of duty involves the exercise of admin- 
 istrative discretion. The grant of power to remove an officer 
 for a certain cause implies authority to judge of the existence 
 of the cause, and this power when vested exclusively in the 
 executive's discretion cannot be controlled in its exercise by 
 any other branch of the government. To institute a judicial 
 inquiry into the cause for which the governor removed an 
 officer, or into the propriety of his action, would be a direct 
 attack upon the independence of the executive and a usurpa- 
 tion of power subversive of the constitution. 4 
 
 Although the general view is that the courts cannot review 
 
 1 See State vs. Pritchard, 36 N. J. L. 101 ; Dullam vs. Wilson, 53 Mich. 392. 
 See also Page vs. Hardin, 8 B. Mon. 648; Honey vs. Graham, 39 Texas, 1. 
 
 * Donahue vs. Wells County, 100 111. 94; Stern vs. People, 102 111. 540; State 
 vs. Hawkins, 44 Ohio St. 98. 
 
 3 State vs. Prince, 45 Wis. 610 ; Keenan vs. Perry, 24 Tex. 253 ; Ex parte 
 Wiley, 54 Ala. 226; State vs. Frazier, 48 Ga. 137; Donahue vs. County of Hill, 
 100 111. 94; Patton vs. Vaughan, 39 Ark. 21 1. See Ex parte Hennen, 13 Pet. 
 230. 
 
 4 State vs. Doherty, 25 La. Ann. 1 19 ; State vs. Hawkins, 44 Ohio St. 98 : State 
 vs. Lamantia, 33 La. Ann. 446. 
 
 160 [292 
 
293] GOVERNMENTAL POWERS \§\ 
 
 the governor's action if it is taken after a hearing, 1 yet the party 
 to be removed must have his common law right to be heard, 
 and an opportunity of defence. 2 In Illinois alone it is held 
 that he need not have such opportunities unless the right to 
 them is expressly secured. 3 
 
 Where the governor has power to remove a public officer 
 upon charges and notice thereof, his act is final, and cannot be 
 reviewed by an information in the nature of a quo warranto 
 against the person appointed in the place of the officer so re- 
 moved. 4 
 
 But the question whether the governor has the power in a 
 particular case, or whether he has exercised it in a lawful man- 
 ner, may become a question for the courts to decide, whenever 
 a right in litigation depends upon such decision. 3 
 
 It has been asserted that a grant to the governor of the 
 power of removal for cause includes the power of temporary 
 suspension by him, pending the trial of the officer for mal- 
 feasance or misfeasance in office. 6 
 
 As to whether the grant of a like power to an administra- 
 tive officer or body would comprise the power of suspension, 
 the decisions conflict. 7 
 
 1 State vs. Hawkins, 44 Ohio St. 98. 
 
 2 Dullam vs. Wilson, 53 Mich. 392. See Mechem, Public Offices and Officers, 
 sec. 454. People vs. Fire Com'rs, 72 N. Y. 445. 
 
 3 Donahue vs. Will Co., 100 111. 94. * State vs. Hawkins, 44 Ohio St. 98. 
 5 Page vs. Hardin, 8 B. Mon. 648. 6 State vs. Peterson, 52 N. W. 655. 
 
 7 The affirmative of the proposition has been maintained in Shannon vs. Ports- 
 mouth, 54 N. H. 183 ; Westberg vs. City of Kansas, 64 Mo. 493 ; contra, State 
 vs. Jersey City, 25 N. J. L. 536; Gregory vs. Mayor, 113 N. Y. 416. For fur- 
 ther consideration of this subject, see Goodnow's Adm. Law, voL 2, p. 99; 
 Mechem's Public Office and Officers, sees. 450, 457. 
 
 ■A\ 
 
PART VI 
 
 QUASI POWERS 
 CHAPTER XXI 
 
 THE DELEGATION OF POWER 
 
 Q3y analogy to well-known principles of the law of agency, it 
 has becOme a settled rule of our constitutional law that a 
 power conferred on one of the departments cannot be dele- 
 gated by it to any other body or authority^ Thus, the gov- 
 ernor cannot pardon a convict on condition that the people 
 ratify his act ; a judge cannot put a certain construction on 
 the law provided the people approve it; nor can the legislature 
 avoid responsibility for the laws it passes. 1 
 
 1 People vs. Governor, 29 Mich. 320. Within the last year both political par- 
 ties in Massachusetts advocated in their platforms, the adoption of the referendum 
 and in the mean time it received in the legislature a vote almost sufficient to 
 authorize its proposal to the people as a constitutional amendment. It was also 
 considered by the recent constitutional conventions of New York and several 
 other commonwealths. 
 
 { f experience is to be h eeded, the referendum is an unwise expedient. 
 
 The same forces that induce the people toelect legislators anxious to avoid 
 the responsibility of enacting laws would operate to induce the people to 
 .approve the inferior laws proposed by them. Furthermore, were the legislatures 
 to become mere proposing bodies, people would be even less interested than they 
 are at present in the qualifications of the persons whom they elect. The proposed 
 Jaws would under such circumstances probably be of such a nature as to de- 
 serve defeat. Finally, statistics show the public indifference to questions sub- 
 mitted to the popular vote, especially when we compare the number of votes 
 •cast by the people for constitutional amendments with the number cast for the 
 •election of officers. In innumerable cases desirable constitutional amendments 
 ihave failed of adoption only because of the neglect of the people to vote. 
 162 [294 
 
295] GOVERNMENTAL POWERS iQ^ 
 
 The state having entrusted the legislature with the power of 
 making laws, the legislature cannot delegate the trust to any 
 •other body, or even to the people themselves. 1 But a statute 
 may be conditional, and its taking effect may be made to de- 
 pend upon some subsequent event. 2 Thus, the^Qjjtjngency 
 upon which the operation -of an art is made to~depeird;-rrray be 
 the action of the legislature of another 'commonwealth. A 
 law which provides that insurance companies of other com- 
 monwealths shall pay in taxes and fines an amount equal to 
 that imposed, by existing or even future laws of the common- 
 wealths of their origin, upon companies of the enacting com- 
 monwealth seeking to do business there, when such amount 
 is greater than that required for such purpose by the existing 
 laws of such commonwealth, is not unconstitutional. 3 
 
 The legislature often enacts that laws shall become effective 
 o-r ineffective upon the determination by some-other authority 
 that such shall be the case. The question ther^arisesas to 
 whether the legislature really _enacts the law, . qr_ the_ body 
 -whose determination was made, a, condition precedent to its 
 taking effect. The proper answer would seem to depend upon 
 the particular circumstances of each case. Thus, it is properly 
 held that a legislative act which is complete, but of which the 
 operative effect is dependent upon a contingency, will not 
 necessarily be objectionable because it provides that some 
 other body shall determine whether the contingency exists. 
 Such body exercises no discretion, and takes no part in mak- 
 ing any portion of the law under which it is acting. While 
 thejegislature cannot delegate its power to make a law, it (can 
 make a law delegating the power to determine some fact or 
 
 1 Geebrick vs. State, 5 la. 491 ; Bradley vs. Baxter, 15 Barb. 522; Barto vs. 
 Himrod, 8 N. Y. 438; Cooley's Constitutional Limitations, p. 137 n; Rice vs. 
 .Foster, 4 Harr. 479 ; 3 Law Encycl. 698. 
 
 2 Brig Aurora vs. United States, 7 Cr. 382; Peck vs. Wedell, 17 Ohio St. 271. 
 8 People vs. Fire Association of Phil., 92 N. Y. 311. 
 
j.64 THE SEPARATION OF [296 
 
 state of things upon which the operation of such law is to 
 depend"/} 
 
 Where the condition on which a general statute is made to 
 depend is the will of the people as expressed at the polls, or 
 otherwise, it would seem that such an act involves the delega- 
 tion of legislative power to the people. The law would be 
 made to depend upon the discretion and will of the people 
 rather than upon the discretion and will of the legislature, in 
 which body alone the state has vested the law-making power. 2 
 
 But, however this may be, the legislature may enact laws to 
 go into operation only upon the condition that they first be 
 approved by a majority of the people of the locality to which 
 they are to apply. The people of t he locali ty wou ld not in 
 such a case enact alaw, in the constitutional sense^Jxut only 
 an ordinance. Such an act Jias been said to be one of admin- 
 Jstration,_pot of legislation. 3 It would only be the exercise of 
 an administrativeor qualifigjJ legislative p ower, just as t he 
 paising^orSiunicipal ordinances by ajmunicipal body is only 
 the ,exeixis£_j}fL-an™adtoinH£ratiy_e_, and not of_a -legislative 
 
 ' Locke's Appeal, 72 Pa. St. 491 ; Ex parte Mato, 19 Texas App. 112. 
 
 '' Barto vs. Himrod, 8 N. Y. 482. See Geebrick vs. State, 5 la. 491 ; State vs. 
 Copeland, 3 R. I. 33; Cooley's Const. Limitations, p. 137. See 3 Law Encycl. 
 700, c. c. ; State vs. Parker, 26 Vt. 357. In at least one case the Constitution 
 of New York provides for a referendum — a delegation of legislative power to the 
 people of the commonwealth. It provides that the commonwealth shall not con- 
 tract a debt exceeding one million dollars unless it is authorized by a law for 
 some single work or purpose, which law, before it takes effect, must be approved 
 by a vote of the people at a general election, when no other law, bill or constitu- 
 tional amendment is voted on. 
 
 In the fall of 1894 the legislature of New York submitted to the people of New 
 York, Brooklyn and some neighboring towns to be affected thereby, the question 
 of their consolidation under one municipal government. This proceeding differed 
 from the referendum, since the vote of the people was not to be a condition prece- 
 dent to any law, but only a test of the sentiment of the popular will, the legislature 
 having reserved the right to effect consolidation or to refuse doing so irrespective 
 of the decision of the people. 
 
 11 Locke's Appeal, 72 Pa. St. 491. 
 
297] GOVERNMENTAL POWERS ^5 
 
 power. If the legislature can delegate the power of local 
 regulation to a body distinct from itself, such as a local board, 
 there is no constitutional provision which prohibits its delega- 
 tion to the people of the locality. 
 
 Conceding that {the legislature may enact laws whose opera- 
 tion depends upon the will of an administrative board or of 
 the people of a locality] can the legislature enact local regula- 
 tions which should go into effect only upon the condition that 
 they are approved by the courts ? Enough has already been 
 said to show that such a law would not provide for a delega- 
 tion of legislative power to the courts. It would at most 
 delegate only administrative power to the judicial tribunals. 
 Whether a law delegating such power to the courts would be 
 held constitutional or not, would therefore depend upon the 
 question whether the courts regard themselves as authorized 
 to exercise administrative powers. As to this question, the 
 courts are in irreconcilable conflict/ The conflict is due 
 partly to the fact that acts such as those described are not 
 distinguished from legislative acts in the constitutional sense, 
 and courts not infrequently give as a reason for their refusal 
 to exercise such power that it is legislative. 1 On the other 
 hand, a majority of the courts consider such power to be ad- 
 ministrative, and find no constitutional obstacle to its exercise. 2 
 Where a general statute prescribed the conditions under which 
 the boundaries of a municipal corporation might be extended, 
 and authorized the courts to determine whether the proper 
 conditions existed and whether justice and equity required 
 that territory should be annexed, it was held that the refer- 
 ence of these questions to the courts did not involve the dele- 
 gation of legislative power, or of the power to create a cor- 
 poration. The questions, it was said, were so far of a judicial 
 
 1 Shumway vs. Bennett, 29 Mich. 45 1 ; People vs. Nevada, 6 Cal. 43. 
 
 2 Cooley's Constitutional Limitations, p. 146, n. 8. 
 
1 66 THE SEPARATION OF [298 
 
 character that they might properly be committed to the judicial 
 department. 1 
 
 In Massachusetts, where local option laws are considered 
 valid, a distinction of some force has recently been indicated. It 
 is there intimated that the legislature cannot refer even to the 
 people of a locality the question whether women shall be en- 
 titled to vote at local elections, because such question is a 
 political one of general and not local concern. The determi- 
 nation of the classes to be invested with political power is a 
 purely legislative power under any circumstances, and is not 
 within the powers of towns and cities.* 
 
 (Any and all powers not strictly legislative, executive or ju- 
 dicial, and not vested by the constitution in any particular, 
 authority, the legislature may, irrespective of whether they are 
 legislative, executive or judicial in their nature, either assume, 
 or delegate to the executive or judicial department, or to any 
 other authority, whether of its own creation or not, without 
 violating the principle of the separation of governmental 
 powers?^ 
 
 It is not a breach of the constitution for the legislature to 
 delegate to an administrative officer or body, administrative 
 powers legislative in their nature. The creation by it of a rail- 
 road commission with power to fix reasonable tolls for freight 
 and passenger transportation, is not an unconstitutional delega- 
 tion of legislative power. 3 
 
 School Boards may be invested with general authority to 
 establish for schools such rules and regulations as they shall 
 deem wise. 4 
 
 1 City of Burlington vs. Leebrick, 43 la. 252; Wahoo vs. Dickinson, 36 N. W. 
 813; contra, Shumway vs. Bennett, 29 Mich. 451. For the constitutional basis of 
 Local Option Laws in general, see Locke's Appeal, 72 Pa. St. 491. 
 
 2 Op. of Judges, 160 Mass. 586. s R. R. Co. vs. Smith, 70 Ga. 694. 
 •Donahue vs. Richards, 38 Me. 376; B'd of Education vs. Minor, 23 Ohio St. 
 
 211; Hopkins vs. Rockport, 105 Mass. 475; Murphy vs. Board of Directors, 30 
 la. 429; Rulison vs. Post, 79 111. 567. 
 
299] GOVERNMENTAL POWERS ify 
 
 The legislature may delegate to local governmental organi- 
 zations quasi- legislative powers. Properly speaking, such 
 powers are administrative rather than legislative. The rule of 
 the delegation of powers must be construed in the light of the^ 
 immemorial usage of this country and England, which alway& 
 recognized certain powers of local regulation. 1 The making, 
 executing and interpreting of municipal ordinances and local 
 rules and regulations, cannot under a constitution which has 
 adopted the English form of local self-government, be included 
 within the powers confided by the constitution to the three 
 departments of government. 
 
 Congress may confer on the territorial governments a gen- 
 eral authority to legislate on their own affairs. But it cannot 
 delegate general legislative authority to the local government 
 of the District of Columbia. 2 Congress must exercise exclusive 
 legislative power over the District. 3 
 
 Administrative powers of a legislative nature may be dele- 
 gated to the courts, and to the executive department of the 
 government. The legislature may delegate to the governor 
 authority to make pilotage regulations. 4 
 
 The legislature cannot assume any judicial power in the 
 restricted constitutional sense, nor can it delegate such power 
 to any other authority than the courts or judicial officers pro- 
 vided for by the constitution. 
 
 While the constitutions permit certain courts to be estab- 
 lished by the legislature, the legislature cannot destroy or in- 
 terfere with the courts established by the constitution itself. It 
 may establish courts, but it does not invest the courts which 
 it creates with judicial power. The constitution alone can do 
 that, for all judicial power comes from that instrument, and is 
 
 1 Cooley's Const. Limitations, p. 191. 
 
 2 Roach vs. Van Riswick, 4 MacArthur, 171. 
 
 3 U. S. Const., art. ii, sec. 5. 
 
 « Martin vs. Withers, 135 Mass. 175. 
 
1 68 THE SEPARATION OF [300 
 
 vested by that instrument in courts and judges. An act pro- 
 viding for the appointment of commissioners by the general 
 assembly, to assist a court in the performance of its duties, was 
 held unconstitutional, as an attempt by the legislature to invest 
 such officers with judicial rights and functions. If the act con- 
 templated that the commissioners should be mere assistants of 
 the court, occupying positions analogous to those of masters, 
 commissioners, or masters in chancery, such assistants, it was 
 held, must be selected by the courts. If the commissioners 
 were not to be considered as judges, they could not be made 
 to share judicial duties. 1 For the same reason, a statute au- 
 thorizing parties by consent of the court to select a person to 
 act as judge for the trial of a particular case, is void. 2 It has 
 been further held that a clerk of a court cannot be authorized 
 by an act to render judgments by default, the clerk being only 
 a ministerial officer. 3 Nor is it within the power of the legis- 
 lature to authorize an unofficial person to sit in the place of a 
 judge who is disqualified. 4 
 
 The legislature cannot delegate judicial power to the gover- 
 nor or any other commonwealth officer. It cannot, therefore, 
 authorize the governor, or any other officer, to pass upon the 
 validity of a government grant and to correct errors therein.* 
 
 But^idministrative powers of a judicial nature may be dele- 
 gated to the executive department of government's the power 
 to remove officers for cause generally, or for specified causes. 
 And, as has already appeared,^administrative power of a judi- 
 cial nature may be assumed by the legislature! 
 
 1 See State vs. Noble, 21 N. E. Rep. 244 ; 39 Alb. Law J., 242, 257 ; Hutkuff vs. 
 Demorest, 103 N. Y. 377 ; Schultz vs. McPhilters, 79 Ind. 373 ; Cohen vs. Hoff, 
 3 Brev. 500. , 
 
 ' Winchester vs. Ayres, 4 la. 104. s Hall vs. Marks, 34 111. 358. 
 
 *Van Slyke vs. Insurance Co., 39 Wis. 390; State vs. Judges, 13 Cent. Rep. 
 324 and n. 
 
 5 Hilliard vs. Conelly, 7 Ga. 172. 
 
30lJ GOVERNMENTAL POWERS ifig 
 
 Administrative powers of a judicial nature may also be 
 vested in officers not belonging to either of the departments. 
 
 A board of police commissioners is not a court, but an ad- 
 ministrative body, often vested with disciplinary powers of 
 punishment and removal. It may be authorized to regulate 
 its own practice and procedure, and is not restricted by the 
 limitations of a court at common law. 1 
 
 The legislature may confer upon municipal bodies the power 
 to judge of the election of their own members. 2 
 
 The greatest confusion exists in the authorities as to the 
 delegation of administrative powers of a judicial nature to 
 officers or bodies not belonging to the judicial department 
 of government, and as to the delegation of administrative 
 powers of a legislative nature to judges and courts. 
 
 Congress has absolute power to legislate concerning aliens. 
 It may permit them to land, or expel them upon any condi- 
 tion it sees fit to impose. It may make the right of an alien 
 to land or remain in the country depend upon the decision 
 of any officer or body. 
 
 The proceedings before a United States judge under the 
 Chinese Exclusion Act of 1892, which authorized judges of the 
 United States Courts finally to determine whether an alien 
 should be sent out of the country or be permitted to remain, 
 were in no sense judicial, but only administrative. The 
 order of deportation thereunder was but a method of en- 
 forcing the return of an alien who had not complied with the 
 conditions upon the performance of which the government had 
 determined that his continued residence should depend. 3 
 
 When recently the Secretary of the Treasury of the United 
 States exercised a statutory power somewhat similar to the 
 foregoing, the American people were amazed at the absolute 
 power with which an administrative officer could be vested. 
 
 1 People vs. Police Com'rs., 84 Hun, 65. 
 
 2 Mayor vs. Morgan, 18 Am. Dec. 232. 
 
 s Fong Yue Ting vs. U. S., 149 U. S. 698. 
 
I j THE SEPARATION OF [302 
 
 The United States Circuit Court held that although the alien in 
 question, an undercoachman, was a domestic servant, and there- 
 fore not prohibited by the Contract Labor Law from coming to- 
 and remaining in this country, yet since the act authorized 
 "the Secretary of the Treasury in case he shall be satisfied"' 
 that an immigrant had been allowed to land contrary to the 
 prohibition of that law, to cause such immigrant within the 
 period of one year after landing or entry, to be taken into cus- 
 tody and returned to the country from which he came, the 
 question whether he should be deported must be determined 
 exclusively and finally by the Secretary of the Treasury. 1 
 
 The United States Supreme Court had already on a previous- 
 occasion declared that " although Congress might, if it saw fit,, 
 authorize courts to investigate and ascertain the facts upon 
 which the alien's right to land or remain in this country was. 
 made by statute to depend, yet Congress might entrust the 
 final determination of these facts to an executive officer, and if 
 it does so, his order is due process of law, and no other tribu- 
 nal, unless expressly authorized by law to do so, would be at 
 liberty to re-examine the evidence on which he acted, or to" 
 controvert its sufficiency." 
 
 The power of Congress to expel, like the power to exclude 
 aliens or any specified class of aliens from the country, may 
 be exercised entirely through executive officers, or Congress- 
 may call in the aid of the judiciary to ascertain any contested' 
 facts on which an alien's right to remain in the country has- 
 been made by Congress to depend. 2 
 
 As has often been reiterated, " No legislative body can- 
 delegate to another department of government or to any- 
 other authority its power to enact laws." 3 
 
 1 In re Howard, 63 Fed. Rep. 263. Happily the Secretary in deference to the- 
 opinion of the judge that the alien was a domestic servant, ordered his release,, 
 although he could not be compelled to do so. See, also, U. S. vs. Rogers, 65, 
 Fed. Rep. 787. 
 
 * Nishimura Ekins vs. U. S., 142 U. S. 651. 
 
 8 Locke on Civil Government, 142. 
 
303] GOVERNMENTAL POWERS iy\ 
 
 Besides being a breach of the trust and confidence reposed 
 by the people in the legislature, an act delegating law-making 
 power to the courts would conflict with the principle of the 
 separation of powers. To the lasting honor of the ju- 
 diciary of the United States it may be said that it has 
 not only resisted the encroachment of one department 
 upon the other, but has also as honestly and unhesitatingly 
 declined to exercise any of the powers properly belonging to 
 the legislature or the executive, when called upon to do so. 
 
 In their anxiety to avoid the assumption of any legislative 
 power, courts have often refused to exercise administrative 
 powers of a legislative nature, as if the constitution had pro- 
 vided that the courts should exercise no powers of a legislative 
 nature. 
 
 Judging from the few reported cases in point, it would seem 
 that the legislatures have not frequently been tempted to 
 delegate their purely legislative authority to the courts. Most 
 of the cases cited to sustain this conclusion are attempted dele- 
 gations of administrative rather than legislative powers. It is, 
 however, conclusively established that the courts cannot be 
 clothed with strictly legislative powers. The legislature cannot 
 transfer its power to judge of the election of its members to 
 the courts, if the constitution vests that power in the legisla- 
 ture. 1 Courts cannot be empowered to decide which of two 
 sections of a statute shall take effect and be law. 2 A statute 
 cannot devolve upon the judicial department of government 
 the duty to determine the highest rate of taxation which can be 
 borne by a municipality without injury to its creditors at large. 
 The courts cannot assume or control the legislative function of 
 deciding what sum public interest requires or permits to be 
 raised. 3 The legislature cannot empower the courts to super- 
 
 1 State vs. Gilmore, 20 Kan. 551 ; Dalton vs. State, 43 Ohio St. 652. 
 
 2 State vs. Young, 29 Minn. 474. 
 
 3 Hardenburgh vs. Kidd, 10 Cal. 402; Munday vs. Railway, 40 N. J. 338. 
 
!]2 THE SEPARATION OF [304 
 
 sede, revoke, or annul a statute, since to do so would be to 
 exercise legislative power. 1 An act providing for a pros- 
 pective determination by the courts of the validity of school 
 rules prepared by commissioners, which shall be enforced on 
 such approval, is void. 2 Likewise an act providing that sal- 
 aries of the official reporters of a court shall be fixed by. the 
 judges by an order entered on the minutes of the court, has 
 been said to impose legislative functions on the judiciary ? 
 
 As has already been said, in many of the cases above re- 
 ferred to, the power which has been delegated was administra- 
 tive or qualified legislative power rather than purely legislative. 
 Many of the cases, since they fail to distinguish between ad- 
 ministrative and legislative acts, may fairly be considered as 
 deciding that the legislature cannot delegate, nor the courts 
 assume, legislative powers. As to whether the courts may- 
 constitutionally assume administrative powers as distinguished 
 from legislative powers, the decisions are conflicting. 
 
 Some courts have refused to exercise such powers on the 
 ground that only judicial powers are within their competency. 
 Other courts have assumed to exercise only such adminis- 
 trative duties as are judicial in their nature, and still others 
 have assumed administrative duties which are quasi-executive 
 or even quasi-legislative. 4 
 
 In California, Tennessee, and Illinois it has been held that 
 the power to determine or change the boundaries of municipal 
 corporations, not being judicial, cannot be conferred upon the 
 courts. 5 
 
 1 Shephard vs. Wheeling, 30 West Virginia, 479. 
 
 2 In re School Law Manual, 63 N. H. 574. s Smith vs. Strother, 68 Cal. 194. 
 * " No duties shall be imposed by law upon the Supreme Court or any of the 
 
 judges thereof, except such as are judicial, nor shall any of the judges thereof 
 exercise any power of appointment except as herein provided." Const, of Wyo- 
 ming, art. 5, sec. 17. '. 
 
 6 People vs. Nevada, 6 Cal. 143; State vs. Armstrong, 3 Sneed, 634; Ex parte 
 Chadwell, 3 Bax. 98 ; Willett vs. Belleville, 1 1 La. I ; Galesburg vs. Hawkinson, 
 75 111. 152. See also Shumway vs. Bennett, 29 Mich. 451. 
 
305] GOVERNMENTAL POWERS x 73 
 
 In Missouri * and Arkansas z the legislature may vest in the 
 courts the power to determine whether the limits of a town 
 should be extended or a town become incorporated. — 
 
 Administrative powers such as the confirmation of the re- 
 ports of commissioners of estimates and assessments may be 
 imposed upon the courts, not because they are judicial in 
 their nature, or because such mode of determining the ques- 
 tion is required by the constitution, but merely from con- 
 siderations of convenience and general propriety. 3 If the 
 exercise of such administrative powers would be unconsti- 
 tutional, the power of reviewing, controlling and amending 
 administrative acts could not be exercised by or delegated to 
 the courts. 4 The power of the court exercised under the 
 clause of the constitution 5 providing that compensation for 
 private property taken for public use " shall be ascertained by 
 ,a jury, or by not less than three commissioners appointed by 
 a court of record, as shall be prescribed by law," is administra- 
 tive and not judicial, and an act is not invalid because it au- 
 thorizes the taking of lands outside the territorial jurisdiction 
 of the court appointing the commissioners. 6 
 
 It is now generally conceded that a judge may exercise extra- 
 judicial powers as a commissioner. The case of the United 
 States against Todd 7 is regarded as having decided only that 
 if the power conferred upon the court, of passing upon the 
 validity of pension claims, was a judicial function, the act was 
 void because it made a judicial decision reviewable by a de- 
 partment other than the judicial; that, if it was not a judicial 
 function, it could not be conferred upon the court, and that the 
 
 1 Kayser vs. Trustees, 16 Mo. 88. 
 
 4 Foreman vs. Town of Mariana, 43 Ark. 324. 
 
 3 Matter of Trustees of N. Y. P. E. Pub. School, 31 N. Y. 574. 
 * See Goodnow, The Writ of Certiorari, 6 Political Science Quarterly, 493 ; 
 Goodnow, The Executive and the Courts, I P. S. Q., 533. 
 
 5 Constitution of New York, art. I, sec. 7. 
 
 6 In re City of Buffalo, 15 N. Y. Supp. 858. 7 13 Howard 52, note. 
 
!74 THE SEPARATION OF [306 
 
 act could not be construed as authorizing the judges composing 
 the court to exercise the power out of court in the character of 
 commissioners. Acts of Congress empowering judges in 
 pursuance of treaty stipulations to examine and adjudge claims 
 for injuries sustained by applicants, are valid. Such acts do 
 not confer any powers on the courts of which the judges are 
 members; but the judges act as commissioners, and as such 
 may be directed to report their decision with the evidence 
 upon which it is based to the Secretary of the Treasury for his 
 discretionary action thereon ; and it is not an objection to 
 such an act that it does not provide an appeal from the award 
 of the judges to the Supreme Court of the United States. 1 
 
 Certainly the judges are at liberty to decline to act as com- 
 missioners. 2 Thus we find Judges Sharswood and Hare in 
 i860 writing to Governor Parker refusing to become members 
 of the Public Building Commission. 3 The Massachusetts 
 courts say that their judges cannot as commissioners appoint 
 supervisors of election because the constitution does not allow 
 judges to hold any such office. 4 
 
 Whether the quasi-executive power to appoint officers other 
 than those whose business pertains to the courts can be vested 
 
 1 United States vs. Fereira, 13 How. 40. These cases are commented upon in 
 Int. Commerce Commission vs. Brimson, 154 U. S. 447. Mr. Justice Brewer has 
 lately accepted a position on the Venezuelan Boundary Commission, which is to 
 report the result of its investigations to the executive and legislative departments 
 for their further consideration. A Justice of the Supreme Court of the United 
 States ought always seriously to consider the nature of the commission of 
 which he is asked to become a member, especially where his membership will re- 
 quire the performance of extrajudicial duties of a political nature. The history 
 of the Electoral Commission of 1876, of which three justices of the Supreme 
 Court were members, is too well known to require comment. 
 
 2 In re Appointment of Member of Board of Review, 27 Weekly Law Bull. 334. 
 * 8 Am. Law Reg. See also "Extra-Judicial Duties of Judges," Legal Int., 
 
 ■vol. 35, p. 16. 
 
 4 Case of Supervisors of Election, 1 14 Mass. 247 ; contra, State vs. George, 29 
 Pac. Rep. 356 ; In re Cincinnati Citizens, 2 Flipp. 228. Administrative officers 
 may be removed by the courts. In re Eaves, 30 Fed. Rep. 21. 
 
307] GOVERNMENTAL POWERS ij^ 
 
 in the courts by statute, has also been questioned in some 
 jurisdictions. The power to appoint election commissioners 
 not having been characterized by the constitution as a legis- 
 lative, executive, or judicial power, that instrument does not 
 prohibit the legislature from authorizing the county courts to 
 appoint such commissioners, 1 commissioners of public parks, 
 and similar officers. 2 The circuit courts of the United States 
 appoint supervisors of election. 3 But the courts of Massa- 
 chusetts and Michigan hold that they cannot be authorized to 
 -exercise such quasi-executive powers, so as to appoint super- 
 visors of election 4 and surveyors. 5 
 
 The legislative power to incorporate a locality includes the 
 power to fix its boundary, notwithstanding that private rights 
 may thereby be affected. 6 The legislature may delegate to 
 local bodies or boards of officers the power to determine 
 the extent of territory to be included within the corporate 
 limits, and what property and what persons shall accordingly 
 be subject to municipal rule and taxation. 7 Though the ex- 
 ecution of this power involves the exercise of discretion and ot 
 power legislative in its nature, in most jurisdictions the courts 
 have entertained no difficulty in executing it. 8 
 
 An act allowing judges to hold special terms at discretion, 
 and authorizing them to designate the time for holding district 
 
 1 People vs. Hoffman, 116 111. 587. 
 
 2 People vs. Morgan, go 111. 558; People vs. Williams, 51 111. 63. 
 
 3 I U. S. St. at Large, sec. 2012; Ex parte Siebold, 100 U. S. 371 ; In re 
 Cincinnati Citizens, 2 Flipp. 228; Russell vs. Cooly, 69 Ga. 215. 
 
 * Supervisors of Election, 1 14 Mass. 247. 
 6 Houseman vs. Montgomery, 58 Mich. 364. 
 
 6 Galesburg vs. Hawkinson, 75 111. 153 ; Kelly vs. Pittsburgh, IC4 U. S. 78. 
 
 7 People vs. Carpenter, 24 N. Y. 86. 
 
 "State vs. Armstrong, 3 Sneed, 634; Keyser vs. Trustees, 16 Mo. 88; Ex 
 parte Cadwell, 3 Bax. 98; City of Wahoo vs. Dickinson, 36 N. W. 318; Willet 
 -vs. Belleville, 11 Ga. I. Comp. Shumway vs. Bennett, 29 Mich. 451 ; People vs. 
 .Nevada, 6 Cal. 143. 
 
IjQ THE SEPARATION OF [308 
 
 courts in newly organized counties within their districts, does 
 not involve a delegation of legislative powers. 1 
 
 It has been held that the legislature may delegate to the 
 courts the quasi-legislative function of determining whether 
 a proposed local improvement shall be undertaken. 2 
 
 An act authorizing courts on application to order the build- 
 ing of a bridge over a stream forming a boundary between two 
 towns, 3 or on the application of local authorities, and upon 
 notice, to require railroad corporations to erect and maintain 
 gates at crossings with attendants to open and close them, is 
 not an unconstitutional grant of legislative powers to the 
 courts. 4 
 
 In naturalizing aliens, courts exercise an administrative power 
 delegated to them not by a commonwealth but by the United 
 States government. Congress adopted the commonwealth 
 tribunals as its agents to exercise this power. The concur- 
 rence of the commonwealth legislation adds the sanction of 
 the commonwealth to this delegation of power to the courts. 
 That the act of the court in exercising the power is lawful, is 
 not questioned. 5 The commonwealth legislatures may forbid 
 the commonwealth courts to naturalize aliens, or may regulate 
 their exercise of the power. 6 
 
 An evidently non-judicial administrative power exercised by 
 judges and not questioned, is their power to solemnize mar- 
 riages. 7 
 
 The legislative delegation to the courts of the power to allow 
 or to disallow coroner's bills of fees and expenses incident to 
 
 1 Grinad vs. State, 34 Ga. 270; Ex parte Mato, 19 Tex. App. 112. 
 
 2 Bryant vs. Robins, 70 Wis. 258. 
 
 5 Matter of Towns of Mt. Morris and Castile, 41 Hun. 29. 
 * People vs. L. I. R. R. Co., 47 St. R. 648. 
 
 5 State vs. Penney, 10 Ark. 621. 
 
 6 State vs. Judges, 32 Atl. Rep. 743. 
 
 7 See N. Y. Laws, 1889, chap. 415. 
 
309] GOVERNMENTAL POWERS iyy 
 
 inquests, was upheld, where such power had been exercised 
 under a statute for thirty-five years. 1 
 
 Doubts have arisen as to whether acts like those above de- 
 scribed, when performed by the courts, are reviewable. It has 
 been said : " Duties of this class, and they are very numer- 
 ous, necessarily take their character from the departments to 
 which they are respectively assigned. The same power which 
 when exercised by one class of officers not connected with the 
 judiciary would be regarded and treated as purely administra- 
 tive, becomes at once judicial when exercised by a court of 
 justice. And since judicial power in the constitutional sense 
 is the power pertaining to courts of justice (Webster's defini- 
 tion), or power belonging to or emanating from a judge 
 as such, or the authority vested in judges (Bouvier's defini- 
 tion), it has been held that such administrative powers when ex- 
 ercised by a court become judicial and reviewable by a higher 
 court," if at all. 
 
 Qj/hen similar powers are vested in the officers of the execu- 
 tive department, they upon a like principle ought to be re- 
 garded as executive. But where such powers are conferred 
 upon administrative officers not belonging to either of the 
 three departments of government, the legislature may author- 
 ize the courts to review, supervise, control, and even amend or 
 modify their acts, whether legislative, executive, or judicial in 
 character, because in such a case the courts would at most 
 . be called upon to exercise only administrative poweriO 
 
 The Interstate Commerce Comission is not an " inferior 
 court " of the United States. It is an administrative, not a 
 judicial, body, and exercises administrative, not judicial, 
 powers. Its members do not possess the constitutional tenure 
 of office during good behavior. Congress may make its find- 
 ings prima facie evidence in judicial proceedings. 2 
 
 1 Locke vs. Speed, 62 Mich. 408. 
 
 2 Kentucky Bridge Co. vs. R. R. Co. 37 Fed. Rep. 567. See Int. Com. Com- 
 mission vs. Brimson, 154 U. S. 447. 
 
CHAPTER XXII 
 
 ADMINISTRATIVE OFFICES AND OFFICERS 
 
 Great misconception has pervaded the authorities as to 
 the content of the departments established by the constitution, 
 especially the executive department. 
 
 Considering the purpose for which the distributing clause 
 was inserted in the constitutions, it becomes evident that the 
 clause means that the powers of the central government — not of 
 the local governments — shall be divided into three departments, 
 and that the members of one department shall have no part or 
 lot in the management of the affairs of either of the other cen- 
 tral departments. The departments of which the constitutions 
 speak and in respect to which they provide that no person em- 
 ployed in one shall be employed in either of the other two, are 
 the departments of the central government, as expressly defined 
 and limited in the constitutions, and mean that no member of 
 the legislative department, as defined in the constitutions, shall at 
 the same time be a member of the executive or judicial depart- 
 ment as therein defined; and vice versa. The constitution only 
 forbids persons charged with the exercise of powers belonging 
 to one department from exercising functions pertaining to 
 the others. But the powers thus referred to must be powers 
 which in their essential nature strictly belong to one of the 
 other departments as defined in the constitution, or which are 
 in express terms conferred upon one of the other departments. 1 
 
 Powers of local government, whether legislative, executive, 
 or judicial in their nature, may each and all be exercised by the 
 
 1 People vs. Provines, 34 Cal. 520. 
 178 310] 
 
3Il] GOVERNMENTAL POWERS 179 
 
 same body, or may each and all be exercised by one of the 
 three constitutional departments, as far as the distributing 
 clauses are concerned. Quasi-legislative, quasi-judicial, or 
 quasi-executive powers may be conferred upon the courts, or 
 reviewed and modified by the courts, without violating the 
 principle of the separation of powers. 1 
 
 The question has been raised, whether, in spite of the dis- 
 tributing clause and of the constitutional provision that the 
 judicial powers of the commonwealth shall be vested in a 
 supreme court, and in such inferior courts as the legislature 
 may from time to time order and establish, and in justices of 
 the peace, the legislature can confer the judicial powers of 
 justices of the peace on the mayors of municipalities. 
 
 In Louisiana, under a constitutional provision like that just 
 stated, such an act was held valid, 2 but under a constitutional 
 provision that the judicial power should be vested in a su- 
 preme court, district courts, and in justices of the peace, such 
 act was held unconstitutional. 3 
 
 In Maryland an act of incorporation provided that the 
 mayor should have all the powers of justices of the peace. 
 Subsequently a revised constitution was adopted vesting all 
 judicial powers of the commonwealth in certain enumerated 
 courts and in the justices of the peace. It was held that the 
 new constitution stripped the mayor of all judicial power or 
 jurisdiction appertaining to the office of justice of the peace, 
 but did not deprive him of the police powers of justices of 
 the peace as conservator of the peace. 4 
 
 1 Where an appeal from the assessment of a corporation by a proper officer was 
 authorized to be taken to a court, it was held that the conclusion by the court 
 upon the appeal was in no proper sense a judgment, but only an assessment, and 
 therefore error would not lie upon it. Auditor Gen'l vs. Pullman Co., 34 Mich. 59. 
 See Writ of Certiorari, 6 Pol. Sc. Q. 493 ; 7%,? Executive and the Courts, 1 Pol. 
 Sc. Q. 533. 
 
 2 Baton Rouge vs. Dearing, 15 La. Ann. 208. 
 8 Lafon vs. Dufrocq, 9 La. Ann. 350. 
 
 « Hagerstown vs. Dechert, 32 Md. 369. 
 
t8o THE SEPARATION OF [3 1 2 
 
 In Illinois, North Carolina, and Maryland it is held that the 
 mayor cannot be invested with the judicial powers of jus- 
 tices of the peace; 1 that the mayor of the city has no judicial 
 power under the constitution, and that therefore the legislature 
 can confer none upon him. 2 
 
 But the better and more prevalent opinion seems to be that 
 the distributing and judiciary clauses of the constitutions were 
 not intended to deprive the mayor of the judicial powers 
 which he has always exercised. In a majority of the jurisdic- 
 tions it is held that the legislature can confer the judicial 
 powers of justices of the peace upon the mayor. 3 In New 
 Jersey it has been held that the powers of the justices of the 
 peace may be conferred upon the mayor, recorder, and alder- 
 men of a city or borough/ 
 
 The objection to the same person holding the office of mayor 
 and justice of the peace (under the criminal laws of the com- 
 monwealth) is that the mayor is an executive officer, and that 
 judicial authority is conferred upon him in conflict with that 
 provision of the constitution which says no person charged 
 with the exercise of powers properly belonging to one of the 
 departments — the executive, the legislative, or the judicial — 
 shall ever exercise any functions appertaining to either of the 
 others. These departments are the departments of the govern- 
 ment of the commonwealth. The mayor of the city is not a 
 part of the government of the commonwealth. He exercises 
 none of the functions belonging to that department. What- 
 ever executive offices he may perform pertain to him only as 
 an officer of the corporation. He is not an executive officer 
 in any proper sense. 5 
 
 'State vs. Maynard, 14 Til. 419; Beesman vs. Peoria, 16 111. 484; Hagerstown 
 vs. Dechert, 32 Md. 369. 
 
 1 Town of Edenton vs. Wool, 65 N. C. 379. 
 
 3 Robinson vs. Benton County, 49 Ark. 49 ; Bain vs. Mitchell, 82 Ala. 304 ; 
 State vs. Ziegler, 32 N. J. L. 262; Gulick vs. New, 14 Ind. 93. 
 ' Hutchings vs. Scott, 4 Halst. 218. 5 Santo vs. State, 2 Iowa, 165. 
 
313] GOVERNMENTAL POWERS r 8i 
 
 The executive and administrative duties of the mayor are 
 not within the executive and administrative departments estab- 
 lished by the constitution. In respect to such duties the mayor 
 is merely an officer of the municipal corporation, and he may 
 discharge the duties of justice of the peace and his corporate 
 functions at the same time without violating the constitution. 
 The judicial duties of the mayor are not incidental to his 
 municipal office, for he is clothed in this respect with a 
 general power to administer judicially the laws of the com- 
 monwealth. The mayor acting both as mayor and judge, 
 sits in two capacities. Thus the same act may on the same 
 day be punished by him once as mayor acting for the city, 
 and once as a judge, for violation of the laws of the common- 
 wealth. Though he would act in two capacities or offices, only 
 one of them would be an office under the commonwealth. 1 
 
 On the ground that the distributing clause means that the 
 powers of the commonwealth government — not local govern- 
 ments — are divided into three departments, and the members 
 of one department shall have no part or lot in the manage- 
 ment of the affairs of either of the other departments, the police 
 judge of a city and county may hold and perform the duties of 
 the office of police commissioner of the same city and county 
 as an ex officio officer thereof. 2 In Arkansas no person can at 
 the same time hold the office of treasurer of the stafe and jus- 
 tice of the peace. The office of state treasurer, as well as the 
 offices of secretary of state, auditor, treasurer, attorney gen- 
 eral, sheriff, deputy-sheriff, coroner, constable, and military 
 offices, are executive, and belong to the executive department; 
 for the constitution of the commonwealth assigns them to that 
 division of power and makes all their duties necessarily of an 
 executive character, whereas the office of justice of the peace 
 is as much a judicial office as the office of a supreme judge. 3 
 
 1 Waldo vs. Wallace, 12 Ind. 569. 2 People vs. Provines, 34 Cal. 520. 
 
 3 State vs. Hutt, 2 Ark. 282; Banks vs. Curran, 10 Ark. 142. See Oliver vs. 
 Martin, 36 Ark. 137. 
 
j82 the separation of [314 
 
 Although the recorder of the city of Philadelphia possessed 
 some powers and performs some duties of a judicial nature, he 
 was not a judge within the terms, spirit, and meaning of the 
 constitutional provision that no officer under the United States 
 should be a judge in Pennsylvania. 1 
 
 The question has also arisen as to whether officers like the 
 mayor, when exercising the powers of justices of the peace, are 
 included in the constitutional provisions which relate to the 
 eligibility of judicial officers to other than judicial office. A 
 mayor exercising such powers has been held to be a judicial 
 officer, and therefore ineligible to the office of sheriff under a 
 a constitutional provision which declares : " No person elected 
 to any judicial office shall during the term be eligible to any 
 office of trust or profit under the state other than a judicial 
 office." 2 He is also in the same commonwealth ineligible to 
 the office of prison director during the time in which he is 
 mayor. 3 
 
 Though the constitution expressly declare that the judicial 
 power of the commonwealth shall be vested in a supreme 
 court, district courts, and justices of the peace, the legislature 
 may establish local tribunals, usually called municipal courts, 
 and authorize them to punish violations of municipal ordi- 
 nances. The power of punishing violations of municipal 
 ordinances is an administrative, or at most a qualified judicial, 
 power, and not a judicial power in the strict sense of that term. 
 An act in violation of municipal police regulations is an offence 
 against the municipality and not against the laws of the com- 
 monwealth, and is therefore not a crime. 
 
 Power to create municipal corporations necessarily includes 
 the power to authorize them to make by-laws and ordi- 
 nances for the government of the inhabitants, and also the 
 
 1 Commonwealth vs. Dallas, 4 Dallas, 229. 
 
 ! Gulick vs. New, 14 Ind. 93; Waldo vs. Wallace, 12 Ind. 569. 
 
 3 Howard vs. Shoemaker, 35 Ind. III. 
 
315] GO VERNMENTAL PO WERS \ 8 3 
 
 power to authorize them to enforce such ordinances. The 
 ability to enforce ordinances is just as essential to the good 
 government of the municipality as the power to enact them. 
 " The administration of judicial ordinances is the exercise of a 
 sort of judicial power, but no part of the judicial power con- 
 templated by the section of the constitution referred to. That 
 section refers to the enforcement of the laws of the commonwealth 
 at large. The constitutional courts there named have exclu- 
 sive cognizance of all subjects arising directly under the laws 
 of the legislature or at common law or in chancery, but it was 
 not intended that in them alone could power to enforce city ordi- 
 nances be deposited." 1 It would be impossible for a large city 
 to preserve order if in every case it were a necessary prelimi- 
 nary that the offender should be regularly prosecuted, indicted, 
 and tried. Under the police power of the municipality, a per- 
 son disturbing the public peace, a person guilty of a nuisance 
 or of obstructing the highways, or guilty of like offences, may 
 be summarily arrested, fined, or even imprisoned, without in- 
 fringing the judicial power of the constitution. Thus, where a 
 mayor was authorized by a municipal ordinance to try and fine 
 disorderly persons found within the corporate limits, it was 
 held that the power was not in the sense of the constitution a 
 part of the judicial power. It was part of the police power, 
 as contradistinguished from the regular judiciary powers of the 
 commonwealth. 2 But a contrary view was entertained in 
 Louisiana, where it was held that for the violation of an ordi- 
 nance the corporation should resort to the judicial tribunals 
 organized under the constitution, and that an act conferring 
 power in such case on the mayor was void. 3 
 
 Since local officers are neither legislative, executive, nor 
 judicial within the restrictions of the distributing clause, the 
 legislature may vest in them either purely executive or judi- 
 
 1 State vs. Young, 3 Kansas, 445. 2 Shafer vs. Mumma, 17 Md. 331. 
 3 Lafon vs. Dufrocq, 9 La. Ann. 350. 
 
1 84 THE SEPARA TION OF [3 1 6 
 
 cial powers of the commonwealth without violating that clause. 
 Therefore the legislature may, if there is no express constitu- 
 tional restriction, vest in local tribunals or officers, like the 
 mayor, jurisdiction over cases arising under the laws of the 
 commonwealth, that is, even vest in them jurisdiction over 
 crimes. In such case the legislature makes use of the local 
 officers or institutions as direct agencies of the commonwealth. 1 
 When such tribunals are by constitutional or statutory pro- 
 visions vested with such limited civil or criminal jurisdiction 
 over offences against the commonwealth laws, their actions in 
 regard to such jurisdiction become judicial in the most lim- 
 ited sense of that term, and are not merely administrative. 
 Therefore prosecutions in such courts for violations of the crim- 
 inal laws of the commonwealth should be carried on in the 
 name of the government, but there is no propriety in requiring 
 that the commonwealth should be a party to every petty pro- 
 secution under the police regulations of a municipal corpora- 
 tion. 2 The question whether a municipal court is acting as an 
 administrative or judicial tribunal may become of great im- 
 portance. Where the legislature or the municipality itself un- 
 dertakes to confer on municipal courts summary jurisdiction 
 of criminal offences, and the constitution provides that no 
 freeman shall be put to answer a criminal charge but by in- 
 dictment, nor be convicted of any crime but by the verdict of 
 a jury of good and lawful men, such acts are void. 3 Where a 
 constitution requires presentment and indictment, and a statute 
 dispenses with the necessity of these, the statute is void, and 
 the trial in a city court under such statute is coram nonjudice 
 and cannot form a bar to a subsequent indictment for the same 
 cause. 4 There can be no summary conviction under an ordi- 
 
 1 Ex parte Slattery, 3 Ark. 485 ; Rector vs. State, 6 Ark. 187. 
 
 2 Davenport vs. Bird, 34 Iowa, 524. 
 
 3 State vs. Moss, 2 Jones (N. C.) 66. 
 i Rector vs. State, 6 Ark. 187. 
 
317] G ° VERNMENTAL PO WERS 1 8 5 
 
 nance for that which is a criminal offence by the general laws 
 of the commonwealth. 1 
 
 The provision of the United States Constitution, that " trials 
 of all crimes except in cases of impeachment shall be by jury," 
 is to be construed in the light of the principles which at com- 
 mon law determined whether or not a person accused of a 
 crime was entitled to be tried by a jury. But the violation of 
 municipal ordinances concerning local affairs in respect to 
 matters non-criminal in their nature, may be proceeded against 
 in a summary manner. 3 Offences against ordinances proper 
 made in virtue of the implied or incidental powers of corpora- 
 tions, or in the exercise of their legitimate police authority for 
 the preservation of the peace, good order, safety, and health, 
 and which relate to minor acts and matters not embraced in 
 the public criminal statutes of the commonwealth, are not 
 usually or properly regarded as criminal, 3 and hence need not 
 necessarily be prosecuted by indictment or tried by a jury. 4 
 
 In view of the recent reform movements in municipal govern- 
 ment, it may be said that although a concentration of the powers 
 of municipal government in the same hands is not a violation 
 of the principle of the separation of governmental powers, it 
 may be a violation of common sense. Much might be gained, 
 if the powers of local self-government bestowed upon munici- 
 palities were distributed among the principal municipal de- 
 partments, in a manner similar to that in which powers are 
 distributed in the central government. 5 
 
 1 People vs. Slaughter, 2 Douglass (Mich.) 334. 
 
 2 Callan vs. Wilson, 127 U. S. 540. 
 
 3 Ex parte Hollwedell, 74 Mo. 395. 
 
 4 Williamson vs. Augusta, 4 Ga. 509; Byers vs. Commonwealth, 42 Pa. St. 
 89, 94. See Dillon on Municip. Corp., Sec. 427 et. seq. 
 
 5 See " An American View of Municipal Government in the United States," by 
 Seth.Low. Bryce's Am. Com., chap. 52. 
 
Note. — On p. 140, supra, the case of People vs. Angle, 109 N. Y., 564, is 
 cited, to the effect that the civil service law of New York could not apply to the 
 Department of Public Works for the reason that, by the Constitution then in force, 
 the power of appointment vested in the head of that department was exclusive, 
 and not subject to restriction by act of the legislature. In the case of People vs, 
 Roberts, decided by the Court of Appeals February 18, 1896, 148 N. Y., 360, it 
 has been held that under the new Constitution of New York, which went into 
 effect January I, 1895, appointments by the Superintendent of Public Works are 
 subject to the civil service law. The case of People vs. Angle is, therefore, no 
 longer law. 
 
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 The set of thirteen series is now offered, uniformly bound in cloth, for library use, 
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Systematic Political Science 
 
 BY THK 
 
 UNIVERSITY FACULTY OF POLITICAL SCIENCE 
 OF COLUMBIA COLLEGE. 
 
 The University Faculty of Political Science of Columbia College 
 have in course of publication a series of systematic works covering 
 the entire field of political science proper and of the allied sciences 
 of public law and economics. The method of treatment is historical, 
 comparative and statistical ; and it is the aim of the writers to pre- 
 sent the latest results of institutional development and of scientific 
 thought in Europe and America. 
 
 The series includes the following ten works : 
 
 Political Science and Comparative Constitutional Law. 
 
 2 vols. Published by Ginn &• Co., r8qi. By John W. Burgess. 
 
 Comparative Administrative Law. 
 
 2 vols. Published by G. P. Putnam's Sons, 1893. By FRANK J. Goodnow. 
 
 International Law. In preparation. . . By John Bassett Moore. 
 
 Historical and Comparative Jurisprudence. 
 
 In preparation By Munroe Smith. 
 
 The Distribution of Wealth. 2 vols. In preparation. By John B. Clark. 
 
 The Science of Statistics. 2 vols. Vol. I, published by the Columbia Uni- 
 versity Press (Macmillan), 1895. ■ By Richmond Mayo-Smith. 
 
 Historical and Comparative Science Of Finance. 
 
 2 vols. In preparation. By Edwin R. A. Seligman. 
 
 The Principles of Sociology. Published by the Columbia University Press 
 {Macmillan), 1896. . .By Franklin H. Giddings. 
 
 History of Political Theories. In preparation. By William A. Dunning. 
 
 Literature of Political Science. In preparation. By George II. Baker.