transfer to another, without trial and judgment in the courts; for to do so would be the exercise of a power which belongs to another branch of the government, and is forbidden to the legislative." 1 "That is not legislation which adjudicates in a particular case, prescribes the rule contrary to the general law, and orders it to be enforced. Such power assimilates itself more closely to despotic rule than any other attribute of government." 2

On the other hand, to adjudicate upon, and protect the rights and interests of individual citizens, and to that end to construe and apply the laws, is the peculiar province of the judicial department.3 "No particular definition of judicial power," says Woodbury, J., “is given in the constitution [of New Hampshire ], and, considering the general nature of the instrument, none was to be expected. Critical statements of the meanings in which all important words were employed would have swollen into volumes; and when those words possessed a customary signification, a definition of them would have been useless. But powers judicial,' 'judiciary powers,' and 'judicatories' are all phrases used in the constitution; and though not particularly defined, are still so used to designate with clearness that department of government which it was intended should interpret and administer the laws. On general principles, therefore, those inquiries, deliberations, orders, and decrees, which are peculiar to such a department, must in their nature be judicial acts. Nor can they be both judicial and legislative; because a marked difference exists between the employments of judicial and legislative tribunals. The former decide upon the legality of claims and conduct, and the latter make rules upon which, in connection with the constitution, those decisions should be founded. It is the province of judges to determine what is the law upon existing cases. In fine, the law is applied by the one, and made by the other. To do the first, therefore, -to compare the claims of parties with the law of the land before established,-is in its nature a judicial act. But to do the last-to pass new rules for the regulation of new controversies-is in its nature a legislative act; and if these rules interfere with the past, or the present, and do not look wholly to the future, they violate the definition of a law as a rule.

1 Newland v. Marsh, 19 Ill. 383.

2 Ervine's Appeal, 16 Pa. St. 256, 266. See also Greenough v. Greenough, 11 Pa. St. 489; Dechastellux v. Fairchild, 15 Pa. St. 18; Trustees, &c. v. Bailey, 10 Fla. 238.

3 Cincinnati, &c. Railroad Co. v. Commissioners of Clinton Co., 1 Ohio St. 77.

See also King v. Dedham Bank, 15 Mass. 447; Gordon v. Ingraham, 1 Grant's Cases, 152; People v. Supervisors of New York, 16 N. Y. 424; Beebe v. State, 6 Ind. 501; Greenough v. Greenough, 11 Pa. St. 489; Taylor v. Place, 4 R. L 324.

of civil conduct;'1 because no rule of conduct can with consistency operate upon what occurred before the rule itself was promulgated.

"It is the province of judicial power, also, to decide private disputes between or concerning persons; but of legislative power to regulate public concerns, and to make laws for the benefit and welfare of the State. Nor does the passage of private statutes conflict with these principles; because such statutes, when lawful, are enacted on petition, or by the consent of all concerned; or else they forbear to interfere with past transactions and vested rights." 2

With these definitions and explanations, we shall now proceed to consider some of the cases in which the courts have attempted to draw the line of distinction between the proper functions of the legislative and judicial departments, in cases where it has been claimed that the legislature have exceeded their power by invading the domain of judicial authority.

Declaratory Statutes.

Legislation is either introductory of new rules, or it is declaratory of existing rules. "A declaratory statute is one which is passed in order 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."3 Such a statute, therefore, is

1 1 Bl. Com. 44. The distinction between legislative and judicial power lies between a rule and a sentence. Shrader, Ex parte, 33 Cal. 279. See Shumway v. Bennett, 29 Mich. 451; Supervisors of Election, 114 Mass. 247. The legislature cannot empower election boards to decide whether one by duelling has forfeited his right to vote or hold office. Commonwealth v. Jones, 10 Bush, 725; Burkett v. McCurty, 10 Bush, 758. But a board may be empowered to re-count votes and make a statement of results. If they have no power to investigate frauds, they do not exercise judicial power. Andrews v. Carney, 41 N. W. Rep. 923 (Mich.). Under a constitutional provision allowing the legislature to provide for removal of an election officer for such cause as it deems proper, the power to determine whether the cause exists need not be vested in the courts. People v. Stuart, 41 N. W. Rep. 1091 (Mich.). See Brown v. Duffus, 66 Iowa, 193. It is not an infringement of judicial power to enact that a jury shall

assess the punishment in a murder case. State v. Hockett, 70 Iowa, 442; nor that persons sentenced to jail may be employed on roads by county commissioners, under regulations to be made by them. Holland v. State, 23 Fla. 123.

But it is an invasion of judicial power to provide that in case of doubt a statute shall be construed so as to save a lien given by it. Meyer v. Berlandi, 39 Minn. 438. Power to declare what acts shall be a misdemeanor cannot be conferred on commissioners of vine culture. Ex parte Cox, 63 Cal. 21. A county clerk cannot fix the amount of bail. Gregory v. State, 94 Ind. 384.

2 Merrill v. Sherburne, 1 N. H. 199, 203. See Jones v. Perry, 10 Yerg. 69; Taylor v. Porter, 4 Hill, 140; Ogden v. Blackledge, 2 Cranch, 272; Dash v. Van Kleek, 7 Johns. 477; Wilkinson v. Leland, 2 Pet. 627; Leland v. Wilkinson, 10 Pet. 294; State v. Hopper, 71 Mo. 425.

3 Bouv. Law Dict. " Statute;" Austin on Jurisprudence, Lect. 37.

always in a certain sense retrospective; because it assumes to determine what the law was before it was passed; and as a declaratory statute is important only in those cases where doubts have already arisen, the statute, when passed, may be found to declare the law to be different from what it has already been adjudged to be by the courts. Thus Mr. Fox's Libel Act declared that, by the law of England, juries were judges of the law in prosecutions for libel; it did not purport to introduce a new rule, but to declare a rule already and always in force. Yet previous to the passage of this act the courts had repeatedly held that the jury in these cases were only to pass upon the fact of publication and the truth of the innuendoes; and whether the publication was libellous or not was a question of law which addressed itself exclusively to the court. It would appear, therefore, that the legislature declared the law to be what the courts had declared it was not. So in the State of New York, after the courts had held that insurance companies were taxable to a certain extent under an existing statute, the legislature passed another act, declaring that such companies were only taxable at a certain other rate; and it was thereby declared that such was the intention and true construction of the original statute. In these cases it will be perceived that the courts, in the due exercise of their authority as interpreters of the laws, have declared what the rule established by the common law or by statute is, and that the legislature has then interposed, put its own construction upon the existing law, and in effect declared the judicial interpretation to be unfounded and unwarrantable. The courts in these cases have clearly kept within the proper limits of their jurisdiction, and if they have erred, the error has been one of judgment only, and has not extended to usurpation of power. Was the legislature also within the limits of its authority when it passed the declaratory statute?

The decision of this question must depend perhaps upon the purpose which was in the mind of the legislature in passing the declaratory statute; whether the design was to give to the rule now declared a retrospective operation, or, on the other hand, merely to establish a construction of the doubtful law for the determination of cases that may arise in the future. It is always competent to change an existing law by a declaratory statute; and where the statute is only to operate upon future cases, it is no objection to its validity that it assumes the law to have been in the past what it is now declared that it shall be in the

1 People v. Supervisors of New York, 16 N. Y. 424.

future. But the legislative action cannot be made to retroact upon past controversies, and to reverse decisions which the courts, in the exercise of their undoubted authority, have made; for this would not only be the exercise of judicial power, but it would be its exercise in the most objectionable and offensive form, since the legislature would in effect sit as a court of review to which parties might appeal when dissatisfied with the rulings of the courts.2

1

As the legislature cannot set aside the construction of the law. already applied by the courts to actual cases, neither can it compel the courts for the future to adopt a particular construction of a law which the legislature permits to remain in force. "To declare what the law is, or has been is a judicial power; to declare what the law shall be, is legislative. One of the fundamental principles of all our governments is, that the legislative power shall be separate from the judicial." If the legislature would prescribe a different rule for the future from that which the courts enforce, it must be done by statute, and cannot be done by a mandate to the courts, which leaves the law unchanged, but sceks to compel the courts to construe and apply it, not according to the judicial, but according to the legislative judgment. But in any case the substance of the legislative action should be regarded rather than the form; and if it appears to be the intention to establish by declaratory statute a rule of conduct for the future, the courts should accept and act upon it, without too nicely inquiring whether the mode by which the new rule is established is or is not the best, most decorous, and suitable that could have been adopted. If the legislature cannot thus indirectly control the action of the courts, by requiring of them a construction of the law according to its own views, it is very plain it cannot do so directly, by setting aside their judgments, compelling them to grant new trials,3

1 Dash v. Van Kleek, 7 Johns. 477, 498, per Thompson, J.; Ogden v. Blackledge, 2 Cranch, 272; Lambertson v. Hogan, 2 Pa. St. 22; Seibert v. Linton, 5 W. Va. 57; Arnold r. Kelley, 5 W. Va. 446; McDaniel v. Correll, 19 Ill. 226. The legislature cannot dictate what instructions shall be given by the court to a jury, except by general law. State v. Hopper, 71 Mo. 425. A legislative act directing the levy and collection of a tax which has already been declared illegal by the judiciary, is void, as an attempted reversal of judicial action. Mayor, &c. v. Horn, 26 Md. 194; Butler v. Supervisors of Saginaw, 26 Mich. 22. See Forster v. Forster, 129 Mass. 559. This doctrine, however, would not prevent the correction of mere errors in taxation by legislation of a retrospective character. See post, p. 456.

2 Governor v. Porter, 5 Humph. 165; People v. Supervisors, &c., 16 N. Y. 424; Reiser r. Tell Association, 39 Pa. St. 137; O'Conner v. Warner, 4 W. & S. 223; Lambertson v. Hogan, 2 Pa. St. 22. An act directing that a certain deposition

which had previously been taken should be read in evidence on the trial of a certain cause, notwithstanding informalities, is void. Dupy v. Wickwire, 1 D. Chip. 237; s. c. 6 Am. Dec. 729.

3 Lewis v. Webb, 3 Me. 326; Durham v. Lewiston, 4 Me. 140; Atkinson e. Dunlap, 50 Me. 111; Bates v. Kimball, 2 Chip. 77; Staniford v. Barry, 1 Aik. 314; Merrill v. Sherburne, 1 N. H. 199; Opinion of Judges in Matter of Dorr, 3 R. I. 299; Taylor v. Place, 4 R. I. 324; De Chastellux v. Fairchild, 15 Pa. St. 18; Young v. State Bank, 4 Ind. 301; Beebe v. State, 6 Ind. 501; Lanier v. Gallatas, 13 La. Ann. 175; Mayor, &c. v. Horn, 26 Md. 194; Weaver v. Lapsley, 43 Ala. 224; Sanders v. Cabaniss, 43 Ala. 173; Moser v. White, 29 Mich. 59; Sydnor v. Palmer, 32 Wis. 406; People v. Frisbie, 26 Cal. 135; Lawson v. Jeffries, 47 Miss. 686; s. c. 12 Am. Rep. 342; Ratcliffe v. Anderson, 31 Gratt. 105; s. c. 31 Am. Rep. 716. And see post, pp. 482-484, and notes. It is not competent by legislation to authorize the court of final resort to reopen and rehear cases previously decided.