11. If an ambiguity exists which cannot be cleared up by a consideration of the constitution itself, then, in order to determine its meaning and purpose, resort may be had to extraneous facts, such as the prior state of the law, the evil to be remedied, the circumstances of contemporary history, or the discussions of the constitutional convention."

12. The contemporary construction of the constitution, especially if universally adopted, and also its practical construction, especially if acquiesced in for a long period of time, are valuable aids in determining its meaning and intention in cases of doubt; but these aids must be resorted to with caution and reserve, and they can never be allowed to abrogate, contradict, enlarge, or restrict the plain and obvious meaning of the text."0

13. Where a clause or provision in a constitution, which has received a settled judicial construction, is adopted in the same words by the framers of another constitution, it will be presumed that the construction thereof was likewise adopted."1

14. The office of a schedule to a constitution is temporary only, and its provisions will be understood as merely transitory, wherever that construction is logically possible. The schedule should not be allowed to abrogate or contradict the provisions of the permanent part of the constitution.""

15. The principle of stare decisis applies with special force to the construction of constitutions, and an interpretation once deliberately put upon the provisions of such an instrument should not be departed from without grave reasons.**

59 Mayor, etc., of Baltimore v. State, 15 Md. 376; Cronise v. Cronise, 54 Pa. St. 255; Com. v. Balph, 111 Pa. St. 365, 3 Atl. 220; People v. May, 9 Colo. 80, 10 Pac. 641.

60 People v. May, 9 Colo. 80, 10 Pac. 641; 1 Story, Const. §§ 406, 407.

61 Ex parte Roundtree, 51 Ala. 42; Jenkins v. Ewin, 8 Heisk. (Tenn.) 456 62 Com. v. Clark, 7 Watts & S. (Pa.) 127; State v. Taylor, 15 Ohio St. 137. • Maddox v. Graham, 2 Metc. (Ky.) 56.

CHAPTER V.

THE THREE DEPARTMENTS OF GOVERNMENT.

50. Classification of Governmental Powers.

51. Separation of Governmental Powers.

52-53. The Separation not Absolute.

54. Limitations on the Three Departments of Government.
55. Political Questions.

56. Advisory Opinions by the Courts.

CLASSIFICATION OF GOVERNMENTAL POWERS.

50. The powers of government are divided into three classes, to wit:

(a) Legislative.
(b) Executive.
(c) Judicial.

Constitutional government is a government by law. The office of the state is to establish and maintain laws. But law in its application to the individual presents itself in three aspects. It is a thing to be ordained, a thing to be administered, and a thing to be interpreted and applied. There is, therefore, a natural threefold division of the powers and functions of the state in the idea of government by law. First, there is the power to ordain or prescribe the laws, which includes, incidentally, the power to change, amend, or repeal any existing laws. This is called the "legislative" power. Second, there is the power to administer the laws, which means carrying them into practical operation and enforcing their due observance. This is denominated "executive" power. Third, there is the power to apply the laws to contests or disputes concerning legally recognized rights or duties between the state and private persons, or between individual litigants, in cases properly brought before the judicial tribunals, which includes the power to ascertain what are the valid and binding laws of the state, and to interpret and construe them, and to render authoritative judgments. This is called "judicial" power.

The fundamental distinction between legislative and judicial power is the difference between ordaining and applying. The legisla tive power creates a rule of law which did not before exist, or at least did not exist as a statutory rule. The judicial power creates nothing. It simply takes the law as it finds it at the moment of decision, and determines what application, if any, it has to the matters under judicial consideration.1 A second distinction is found in the fact that legislative power declares what the law in the future shall be, while judicial power ascertains and declares what the law s at the present time, or what it was at a period of past time when the facts in controversy arose."

SEPARATION OF GOVERNMENTAL POWERS.

51. All American constitutions, state and federal, provide for the separation of the three great powers of government and their apportionment to distinct and independent departments of the government.

It is a fundamental maxim of political science, recognized and carried into effect in the federal constitution and the constitutions of all the states, that good government and the protection of rights require that the legislative, executive, and judicial powers should not be confided to the same person or body, but should be apportioned to separate and mutually independent departments of government.

1 “A judicial act is the determining of the rights of parties by the application of those rules of law which the court finds to exist to facts which are either admitted or proved; while a legislative is the establishment of a new rule for the future. The new rule may be made either for one or a few individuals alone, in which case it is termed a special act, or for the entire community, when it is denominated a general statute." 1 Bish. Mar. & Div. § 682.

2 "To enact laws, or to declare what the law shall be, is legislative power. To interpret law-to declare what the law is or has been-is judicial power." Wolfe v. McCaull, 76 Va. 876. "Legislative power is the power to enact, alter, and repeal laws, while judicial power is the power to construe and interpret the constitution and laws, and to render judgments and make decrees determining private controversies." Hovey v. State, 119 Ind. 395, 21 N. E. 21. And see Wayman v. Southard, 10 Wheat. 1; Smith v. Strother, 68 Cal. 194, 8 Pac. 852. Sill v. Village of Corning, 15 N. Y. 297, 303.

The idea of an apportionment of the powers of government, and of their separation into three co-ordinate departments, is not a modern invention. It was suggested by Aristotle in his treatise on Politics, and was not unfamiliar to the more advanced of the medieval jurists. But the importance of this division of power, with the principle of classification, were never fully apprehended, in theory, until Montesquieu gave to the world his great work on the "Spirit of the Laws." Since then his analysis of the various powers of the state has formed part, as Maine says," of the accepted political doctrine of the civilized world. Montesquieu says: "In each state there are three sorts of power; the legislative power, executive power with relation to matters depending on international law, and executive power with relation to matters depending on the civil law. The last is called judicial power. If the legislative power is united, in the same person or body of magistrates, with the executive power, there is no liberty; for it is to be apprehended that the monarch or the senate, as the case may be, will make tyrannical laws in order to execute them tyrannically. Neither is there any liberty if the judicial power is not separated from the legislative and the executive power. If it were joined with the legislative power, there would be arbitrary authority over the life and liberty of the citizens; for the judge would be the lawmaker. If it were joined with the executive power, the judge would have the might of an oppressor. All would be lost if the same man, or the same body of chiefs, or of nobles, or of the people, exercised these three powers, that of making the laws, that of executing the public resolutions, and that of judging the crimes or controversies of individuals." The framers of our constitution were strongly influenced by these opinions of the French jurist, to whose views, in general, they were disposed to pay great deference, as is fully apparent from the pages of the Federalist. And though the British constitution, as it stood at that time, furnished a precedent for a partial and limited independence of the several departments of government,' it is not probable that the constitution of the United

♦ Book 6, c. 11, § 1; 2 Wools. Pol. Science, 259. Maine, Popular Government, 219.

• Montesq. Esprit des Lois, liv. 11, e. 6.

7 See 1 Bl. Comm. 146, 154.

States would have carried out this principle of division as thoroughly as it did, and particularly in securing the independence of the judiciary, had it not been for the attention paid to the writings mentioned, and the conviction of the framers as to the soundness of the views therein expressed.

It requires a constitutional provision to effect the separation of the three departments of government. That is to say, if it is not otherwise provided by the constitution, the power to execute and interpret the laws, or to dispose of the executive and judicial duties, will belong to the legislative department, as being the repository of the general authority to enact laws. And in American history, prior to the revolution, the separation of these functions was by no means an invariable rule. But this important principle of civil liberty and good government is now recognized and secured throughout the states by the provisions of the constitutions. It is to be observed, however, that, as regards each state, it depends upon the constitution of the state. There is nothing in the federal constitution which forbids the legislature of a state to exercise judicial functions. 10

Independence of the Judiciary.

In making secure provision for the independence of the Judicial department, the framers of the federal constitution went far beyond the limits then established in the constitution of the mother country. Yet the conception of the judiciary as guardians of the constitution existed in the English system, and had been put for ward as a bulwark against the encroachments of the king or the parliament on many notable occasions. More than once had the English judges resolutely set their faces against unlawful extensions of the royal prerogative, and refused to carry into effect the grants or decrees of the king when contrary, in their judgment, to

• “When any of the duties or powers of one of the departments of the state government are not disposed of, or distributed to particular officers of that department, such powers or duties are left to the disposal of the legislature." Ross v. Whitman, 6 Cal. 361. And see Sawyer v. Dooley, 21 Nev. 390, 32 Pac. 437.

• See Calder v. Bull, 2 Root (Conn.) 350.

10 Satterlee v. Matthewson, 2 Pet. 380, 413.