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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 appropriate to its own department and no others.” 8

To preserve the separation of powers and to render government efficient for the protection of civil liberty, the framers of our federal and state constitutions saw that it was necessary not simply to create separate depositaries for the three powers, but that means should be provided for preventing, if possible, the control by one department of the other departments. With this end in view the executive, legislative, and judicial establishments are made as independent as possible of one another. Thus the legislatures are made the sole judges as to the constitutional qualifications of those claiming membership, they have the power of disciplining and expelling members, their members are in general not liable to arrest except for felony, treason, or breach of the reace, and they may not be held responsible in actions of slander or libel for words spoken or printed by them as members. The independence of the courts is in general secured by tenures of office, and official compensation free from legislative control, and, furthermore, they have the great power of declining to recognize all laws or executive acts which they hold to be unconstitutional or otherwise illegal. The executive has, of course, within its own hands, the material force of the State, and within the limits of the discretion placed by law within his hands, may not be held legally responsible in the courts for his acts.

§ 742. Separation of Powers not Complete.

While, as has been said, the principle of the separation of powers has generally been accepted as binding in our systems of constitutional jurisprudence — state and national — the practical necessities of efficient government have prevented its complete application. It has from the beginning been necessary to vest in each of the three departments of government certain powers which, in their essential nature, would not belong to it. Thus, to mention only a few of the more evident examples, the courts have been given the essentially legislative power to establish rules of practice and procedure, and the executive power to appoint certain officials — sheriffs, criers, bailiffs, clerks, etc.; the executive has been granted the legislative veto power, and the judicial right of pardoning; the legislature has been given the judicial powers of impeachment, and of judging of the qualifications of its own members, and the Senate, the essentially executive power of participating in the appointment of civil officials.

8 The principle of the separation of powers does not limit Congress when providing governments for the Territories, for as to this Congress has complete discretion.

Not only this, but as we shall later see, the principle of the separation of powers does not prevent the legislative delegation to executive officers both of a considerable ordinance-making power, and of authority to pass, with or without an appeal to the courts, upon questions of fact. Essentially, the promulgation of administrative orders or ordinances is legislative in character, and the determination of facts after a hearing is judicial. In both cases, however, these functions are performed in pursuance of statutory authority, and as incidental to the execution of law. In like manner, the legislature is conceded to have, as incidental to its law-making power, the essentially judicial function of punishing for contempt or disobedience to its orders.

$ 743. The General Principle Stated.

Thus it is not a correct statement of the principle of the separation of powers to say that it prohibits absolutely the performance by one department of acts which, by their essential nature, belong to another. Rather, the correct statement is that a department may constitutionally exercise any power, whatever its essential nature, which has, by the Constitution, been delegated to it, but that it may not exercise powers not so constitutionally granted, which, from their essential nature, do not fall within its division of governmental functions, unless such powers are properly incidental to the performance by it of its own appropriate functions.

From the rule, as thus stated, it appears that in very many cases the propriety of its exercise of a power by a given department does not depend upon whether, in its essential nature, the power is executive, legislative, or judicial, but whether it has been specifically vested by the Constitution in that department, or whether it is properly incidental to the performance of the appropriate functions of the department into whose hands its exercise has been given.

Generally speaking, it may be said that when a power is not peculiarly and distinctly legislative, executive, or judicial, it lies within the authority of the legislature to determine where its exercise shall be vested.

§ 744. Distinction Between Legislative and Judicial Acts.

In a dissenting opinion rendered in the Sinking Fund Cases® Justice Field says:

The distinction between a judicial and legislative act is well defined. The one determines what the law is, and what rights the parties have with reference to transactions already had; the other prescribes what the law shall be in future cases arising under it. Whenever an act undertakes to determine a question of right or obligation, or of property, the foundation upon which it proceeds, such act is, to that extent, a judicial one, and not the proper exercise of legislative functions." In Taylor v. Place the court say:

“ The judicial power is exercised in the decision of cases; the legislature in making general regulations, by the enactment of laws. The latter acts from consideration of public policy; the former is guided by the pleadings and evidence in the cases.”

In further distinction of the two functions it might be added that legislative action is initiated by the enacting body, whereas the judiciary may act only when called upon to do so, and that the former acts upon its own knowledge, the latter upon knowlege given to it. 11

999 U. S. 700; 25 L, ed. 496. 10 4 R. I. 324.

11 ('f. a paper entitled " The Distinction between Legislative and Judicial Functions,” in Report of the American Bar Association, 1885, p. 261.


8 745. Declaratory and Retroactive Legislation,

The foregoing distinctions support the doctrines that have been established with reference to the legislative enactment of declaratory and retroactive statutes.

Declaratory statutes, that is, those legislative pronouncements as to how certain laws, previously established, are to be interpreted in courts and by executive agents, are valid only in so far as they are designed to govern future action. Cooley states the law upon this point as follows: “ If the legislature would prescribe a different rule for the future from that which the courts enforce, it must be done by statute, and can not 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 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.” 12

If,” continues Cooley, “ the legislature can not 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 can not do so directly, by setting aside their judgments, compelling them to grant new trials, ordering the discharge of offenders, or directing what particular steps shall be taken in the progress of judicial inquiry.”

Retroactive legislation which does not impair vested rights, or violate express constitutional prohibitions, is valid, and, therefore, particular legal remedies, and, to a certain extent, rules of evidence, may be changed and, as changed, made applicable to past transactions, for it is held that, so long as the general requirements of due process of law are satisfied, no person has a vested right in any particular legal remedy or mode of judical procedure. 12 Constitutional Limitations, 7th ed., p. 137.


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Again, in certain cases, the legislature is competent to validate proceedings otherwise invalid because of formal irregularities. But substantial rights may not thus be interfered with. To quote again from Cooley: “ The legislature does, or may, prescribe the rules under which the judicial power is exercised by the courts ; and in doing so it may dispense with any of those formalities which are not essential to the jurisdiction of the court; and whatever it may dispense with by statute anterior to the proceedings, we believe it may also dispense with by statute after the proceedings have been taken, if the court has failed to observe any of those formalities. But it would not be competent for the legislature to authorize a court to proceed and adjudicate upon the rights of parties, without giving them an opportunity to be heard before it; and, for the same reason it would be incompetent for it, by retrospective legislation, to make valid any proceedings which had been nad in the courts, but which were void for want of jurisdiction over the parties.

In Mitchell v. Clark14 was involved the constitutionality of a statute of 1863, by which Congress had declared: “ That any order of the President, or under his authority, made at any time during the existence of the present rebellion, shall be a defense in all courts to any action or prosecution, civil or criminal, pending or to be commenced, for any such seizure, arrest or imprisonment, made, done or committed, or acts omitted to be done under and by virtue of such order, or under color of any law of Congress, and such defense may be made by special plea or under the general issue ;” and “ That no suit or prosecution, civil or criminal, shall be maintained for any arrest or imprisonment made, or other trespass or wrongs done or committed, or act omitted to be done, at any time during the present rebellion by virtue or under color of any authority derived from or exercised by or under the President of the United States, or by or under any act of Congress unless the same shall be commenced within two years next after such arrest, imprisonment, trespass or wrong may have

13 Op. cit. 150. 14 110 U. S. 633; 4 Sup. Ct. Rep. 170; 28 L. ed. 279.

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