important, therefore, to ascertain in what respect the State legislatures resemble the Parliament in the powers they exercise, and how far we may extend the comparison without losing sight of the fundamental ideas and principles of the American system. The first and most notable difference is that to which we have already alluded, and which springs from the different theory on which the British Constitution rests. So long as the Parliament is recognized as rightfully exercising the sovereign authority of the country, it is evident that the resemblance between it and American legislatures in regard to their ultimate powers cannot be traced very far. The American legislatures only exercise a certain portion of the sovereign power. The sovereignty is in the people; and the legislatures which they have created are only to discharge a trust of which they have been made a depositary, but which has been placed in their hands with well-defined restrictions. Upon this difference it is to be observed, that while Parliament, to any extent it may choose, may exercise judicial authority, one of the most noticeable features in American constitutional law is the care which has been taken to separate legislative, executive, and judicial functions. It has evidently been the intention of the people in every State that the exercise of each should rest with a separate department. The different classes of power have been apportioned to different departments; and as all derive their authority from the same instrument, there is an implied exclusion of each department from exercising the functions conferred upon the others. There are two fundamental rules by which we may measure the extent of the legislative authority in the States : 1. In creating a legislative department and conferring upon it the legislative power, the people must be understood to have conferred the full and complete power as it rests in, and may be exercised by, the sovereign power of any country, subject only to such restrictions as they may have seen fit to impose, and to the limitations which are contained in the Constitution of the United States. The legislative department is not made a special agency for the exercise of specifically defined legislative powers, but is intrusted with the general authority to make laws at discretion. 2. But the apportionment to this department of legislative power does not sanction the exercise of executive or judicial functions, except in those cases, warranted by parliamentary usage, where they are incidental, necessary, or proper to the exercise of legislative authority, or where the constitution itself, 1 Ante, p. 93. in specified cases, may expressly permit it.1 Executive power is so intimately connected with legislative, that it is not easy to draw a line of separation; but the grant of the judicial power to the department created for the purpose of exercising it must be regarded as an exclusive grant, covering the whole power, subject only to the limitations which the constitutions impose, and to the incidental exceptions before referred to.2 While, therefore, the American legislatures may exercise the legislative powers which the Parliament of Great Britain wields, except as restrictions are imposed, they are at the same time excluded from other functions which may be, and sometimes habitually are, exercised by the Parliament. "The people in framing the constitution," says Denio, Ch. J., "committed to the legislature the whole law-making power of the State, which they did not expressly or impliedly withhold. Plenary power in the legislature, for all purposes of civil government, is the rule. A prohibition to exercise a particular power is an exception. In inquiring, therefore, whether a given statute is constitutional, it is for those who question its validity to show that it is forbidden. I do not mean that the power must be expressly inhibited, for there are but few positive restraints upon the legislative power contained in the instrument. The first article lays down the ancient limitations which have always been considered essential in a constitutional government, whether monarchial or popular; and there are scattered through the instrument a few other provisions in restraint of legislative authority. But the affirmative prescriptions and the general arrangements of the constitution are far more fruitful of restraints upon the legislature. Every positive direction contains an implication against anything contrary to it, or which would frustrate or disappoint the purpose of that provision. The frame of the government, the grant of legislative power itself, the organization of the executive authority, the erection of the principal courts of justice, create implied limitations upon the lawmaking authority as strong as though a negative was expressed in each instance; but independently of these restraints, express or implied, every subject within the scope of civil government is liable to be dealt with by the legislature." 3 "It has never been questioned, so far as I know," says Redfield, Ch. J., "that the American legislatures have the same unlimited power in regard to legislation which resides in the British Parliament, except where they are restrained by written constitutions. 1 See post, pp. 110 to 136, 457, 458. 3 People v. Draper, 15 N. Y. 532, 543. 2 See post, p. 107, note. * That must be conceded, I think, to be a fundamental principle in the political organizations of the American States. We cannot well comprehend how, upon principle, it should be otherwise. The people must, of course, possess all legislative power originally. They have committed this in the most general and unlimited manner to the several State legislatures, saving only such restrictions as are imposed by the Constitution of the United States, or of the particular State in question." 1 "I entertain no doubt," says Comstock, J., " that, aside from the special limitations of the constitution, 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 government. 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 other departments, I think there would be great difficulty and great danger in attempting to define the limits of this power. Chief Justice Marshall said: How far the power of giving the law may involve every other power, in cases where the constitution is silent, never has been, and perhaps never can be, definitely stated.'2 That very eminent judge felt the difficulty; but the danger was less apparent then than it is now, when theories, alleged to be founded in natural reason or inalienable rights, but subversive of the just and necessary powers of government, attract the belief of considerable classes of men, and when too much reverence for government and law is certainly among the least of the perils to which our institutions are exposed. I am reluctant to enter upon this field of inquiry, satisfied, as I am, that no rule can be laid down in terms which may not contain the germ of great mischief to society, by giving to private opinion and speculation a license to oppose themselves to the just and legitimate powers of government." 3 Other judicial opinions in great number might be cited in sup 1 Thorpe v. Rutland & Burlington Railroad Co., 27 Vt. 140, 142. See also Adams v. Howe, 14 Mass. 340, s. c. 14 Am. Dec. 216; People v. Rucker, 5 Col. 455; People v. Osborne, 7 Col. 605; Leggett v. Hunter, 19 N. Y. 445; Cochran v. Van Surlay, 20 Wend. 365; People v. Morrell, 21 Wend. 563; Sears v. Cottrell, 5 Mich. 251; Beachamp v. State, 6 Blackf. 299; Mason v. Wait, 5 Ill. 127; People v. Supervisors of Orange, 27 Barb. 575; Taylor v. Porter, 4 Hill, 140, per Bronson, J.; State v. Reid, 1 Ala. 612, s. c. 35 Am. Dec. 44; Andrews v. State, 3 Heisk. 165; 2 Fletcher v. Peck, 6 Cranch, 87, 136. 391. port of the same general doctrine; but as there will be occasion to refer to them elsewhere when the circumstances under which a statute may be declared unconstitutional are considered, we refrain from further references in this place. Nor shall we enter upon a discussion of the question suggested by Chief Justice Marshall as above quoted; 2 since, however interesting it may be as an abstract question, it is made practically unimportant by the careful separation of powers and duties between the several departments of the government which has been made by each of the State constitutions. Had no such separation been made, the disposal of executive and judicial duties must have devolved upon the department vested with the general authority to make laws; 1 See post, p. 201, and cases cited in notes. 2 The power to distribute the judicial power, except so far as that has been done by the Constitution, rests with the legislature: Commonwealth v. Hipple, 69 Pa. St. 9; State v. New Brunswick, 42 N. J. 51; State v. Brown, 71 Mo. 454; Jackson v. Nimmo, 3 Lea, 608; see Burke v. St. Paul, M. &c. Ry. Co., 35 Minn. 172; St. Paul v. Umstetter, 37 Minn. 15; but when the Constitution has conferred it upon certain specified courts, this must be understood to embrace the whole judicial power, and the legislature cannot vest any portion of it elsewhere. Greenough v. Greenough, 11 Pa. St. 489; State v. Maynard, 14 Ill. 420; Gibson v. Emerson, 7 Ark. 172; Chandler v. Nash, 5 Mich. 409; Succession of Tanner, 22 La. Ann. 90; Gough v. Dorsey, 27 Wis. 119; Van Slyke v. Ins. Co., 39 Wis. 390; s. c. 20 Am. Rep. 50; Alexander v. Bennett, 60 N. Y. 204; People v. Young, 72 Ill. 411; In re Cleveland, 17 Atl. Rep. 772 (N. J.); Risser v. Hoyt, 53 Mich. 185; Shoultz v. McPheeters, 79 Ind. 373. The legislature cannot select persons to assist courts in the performance of their duties and act as a commission of appeal. State v. Noble, 21 N. E. Rep. 244 (Ind.); In re Courts of Appeals, 9 Col. 623. Courts established by the legislature cannot exercise jurisdiction to the exclusion of that conferred by the Constitution on other courts. Montross v. State, 61 Miss. 429. See State v. Butt, 5 Sou. Rep. 597 (Fla.). But a general provision in the Constitution for the distribution of the judicial power, not referring to courtsmartial, would not be held to forbid such courts by implication. People v. Daniell, 50 N. Y. 274. Nor would it be held to embrace administrative functions of a quasi judicial nature, such as the assessment of property for taxation. State ». Commissioners of Ormsby County, 7 Nev. 392, and cases cited. See Auditor of State v. Atchison, &c. R. R. Co., 6 Kan. 500; s. c. 7 Am. Rep. 575. But a court may determine whether a proposed local improvement shall be undertaken. Bryant v. Robbins, 70 Wis. 258. It is not competent to confer upon the courts the power to tax: Monday v. Rahway, 43 N. J. 338; nor to impose on them administrative duties, Houseman v. Kent Circ. Judge, 58 Mich. 364. But after thirty-five years of exercise of such power under a statute, it is too late to object. Locke v. Speed, 62 Mich. 408. The power to appoint election commissioners not having been expressly conferred on any department, the legislature may impose the duty of appointment on the county court. People v. Hoffman, 116 Ill. 587. Such appointments are upheld in In re Citizens of Cincinnati, 2 Flipp. 228; Russell v. Cooley, 69 Ga. 215. But in Supervisors of Election, 114 Mass. 247, s. c. 19 Am. Rep. 341, a contrary doctrine is laid down. A chief justice cannot be empowered to determine which claimant of an office shall hold it pending a contest. Such power, if executive, cannot be given a judge; if judicial, belongs to a court. In re Cleveland, 17 Atl. Rep. 772 (N. J.). The legislature cannot require a court to give its opinions in writing: Vaughn v. Harp, 49 Ark. 160; nor to write syllabi to its decisions. In re Griffiths, 20 N. E. Rep. 513 (Ind.). 3 Calder v. Bull, 2 Root, 350, and 3 Dall. 386; Ross v. Whitman, 6 Cal. 361; but assuming them to be apportioned already, we are only at liberty to liken the power of the State legislature to that of the Parliament, when it confines its action to an exercise of legislative functions; and such authority as is in its nature either executive or judicial is beyond its constitutional powers, with the few exceptions to which we have already referred. It will be important therefore to consider those cases where legislation has been questioned as encroaching upon judicial authority; and to this end it may be useful, at the outset, to endeavor to define legislative and judicial power respectively, that we may the better be enabled to point out the proper line of distinction when questions arise in their practical application to actual cases. 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 word is here employed, are rules of civil conduct, or statutes, which the legislative will has prescribed. "The laws of a State," observes Mr. Justice Story, "are more usually understood to mean the rules and enactments promulgated by the legislative authority thereof, or long-established local customs having the force of laws."1 "The difference between the departments undoubtedly is, that the legislature makes, the executive executes, and the judiciary construes, the law." 2 And it is said that that which distinguishes a judicial from a legislative act is, that the one is a determination of what the existing law is in relation to some existing thing already done or happened, while the other is a predetermination of what the law shall be for the regulation of all future cases falling under its provisions. And in another case it is said: "The legislative power extends only to the making of laws, and in its exercise it is limited and restrained by the paramount authority of the federal and State constitutions. It cannot directly reach the property or vested rights of the citizen by providing for their forfeiture or Smith v. Judge, 17 Cal. 547; per Patterson, J., in Cooper v. Telfair, 4 Dall. 19; Martin v. Hunter's Lessee, 1 Wheat. 304. 1 Swift v. Tyson, 16 Pet. 18. 2 Per Marshall, Ch. J., in Wayman v. Southard, 10 Wheat. 46; per Gibson, Ch. J., in Greenough v. Greenough, 11 Pa. St. 494. See Governor v. Porter, 7 Humph. 165; State v. Gleason, 12 Fla. 190; Hawkins v. Governor, 1 Ark. 570; Westinghausen v. People, 44 Mich. 265. 3 Bates v. Kimball, 2 Chip. 77. A prospective determination by a court of the validity of school rules, compiled under legislative authority, is not an exercise of judicial power. In re School Law Manual, 63 N. H. 574. Power to supersede an ordinance upon petition of taxpayers as contrary to law cannot be conferred upon a court Shephard ». Wheeling, 30 W. Va. 479; nor to fix the salary of a reporter in advance : Smith v. Strother, 68 Cal. 194; nor to make upon its own whim a party a competent witness who otherwise would not be. Tillman v. Cocke, 9 Bax. 429. |