"the law of the land," that is, the constitution." The American doctrine is that the judicial department is an independent, co-ordinate branch of the government, neither superior, inferior, or ancillary to either of the others. It is not to be controlled or dictated to by the legislature. Nor, on the other hand, in the exercise of such powers as are involved in adjudging the unconstitutionality of a statute, does it assume any supervisory authority or control over the legislative department. It is inherently the weakest of all, but is sustained by the public appreciation of the need of independent tribunals and the public confidence in the judges.11 THE SEPARATION NOT ABSOLUTE. 52. The separation of the three departments of government is a general principle, but not a rule of absolute exclusion. 53. The constitutions, in a limited number of cases, provide for, or allow of, the exercise by each department of powers theoretically belonging to the others, because (a) Each department possesses auxiliary powers nec- (c) Certain powers are of a mixed or composite nature, Under the American system of government, the separation of the powers of government, though not absolute, is carried far enough to insure the proper independence of each department and to prevent either from encroaching upon the functions of the others or 11 Among the cases of this kind to which the attention of the student should be particularly directed are the following: In re Cavendish, 1 And. 152; Darcy v. Allen (Case of Monopolies), Moore, 671; Case of Ship-Money, 3 How. St. Tr. 825; Case of Proclamations, 12 Coke, 74; Thomas v. Sorrell, Vaughan, 330; Bates' Case, 2 How. St. Tr. 371. Compare Godden v. Hales, 2 Show. 475. 18 U. S. v. Lee, 106 U. S. 196, 223, 1 Sup. Ct. 240. usurping their authority. There are three principal reasons why the apportionment of these powers is not made absolutely exclusive. First Reason. Each department must possess such powers as are necessary to the preservation of its independence and dignity, and to enable it to discharge its appropriate functions. It is for this reason that each house of a legislature is empowered to judge of the election and qualification of its own members, and to appoint or elect its own officers, though appointments to office usually belong to the executive. So also the courts are frequently allowed to appoint their inferior ministerial officers, as well as to admit attorneys to practice before them, and usually to make rules of practice. So the executive department may make rules and regulations for the administration of the public business belonging to its sphere, and put its own practical construction upon the laws, subject to the interpretation of the courts. Second Reason. A certain mixture of powers furnishes a system of checks and balances, and tends to make the whole government stronger and more compact and harmonious. The veto power is a conspicuous illustration of this reason. By it the executive is enabled to take part in the making of laws, not, indeed, by way of initiative, nor absolutely in any event, but so far as to establish a salutary check on hasty, unwise, or unjust legislation. The requirement that the federal executive shall make appointments to office "by and with the advice and consent of the senate" is another example of the blending of executive power with legislative functions, for the purpose of establishing a check on arbitrary power. The power of impeachment vested in the legislative department is a grant of judicial authority to that body with a view to correcting any tendency to usurpation or malfeasance on the part of either of the other departments. And the pardoning power should be mentioned here, as it amounts to an authority to alter or reverse the sentences of the judicial department in criminal cases, but is lodged with the executive as a means of correcting failures of justice in the courts Third Reason. There are, as above stated, certain powers or functions, chiefly of minor importance, which are in their nature mixed or composite, or which are not distinctly and unmistakably referable to the proper field of activity of either of the departments of government. Thus, although the courts have control over litigation pending before them, it is admitted that the matter of pleading and practice is a proper subject of legislative regulation. So it is, also, with declaratory or expository statutes. It is the peculiar function of the judicial department to interpret and expound the laws; yet acts of legislation explaining prior statutes, and declaring what their true meaning shall be taken to be, are not invalid, at least in so far as they operate prospectively only. To this head also must probably be referred the participation of the United States senate with the President in the making of treaties. A treaty is in the nature of a contract with a foreign power, and therefore belongs to the execu tive department; but it is also the supreme law of the land, and therefore should be sanctioned by at least one house of congress. LIMITATIONS ON THE THREE DEPARTMENTS OF GOVERN MENT. 54. The principle of the separation of the three departments of government imposes upon each the limitation that it must not usurp the powers nor encroach upon the jurisdiction of either of the others. The reasons which make the apportionment of governmental powers to different departments important to good and just government also require that each of the departments should be recognized as co-ordinate with the others and that all should be esteemed equal in dignity and authority within their respective spheres. This co-ordination and equality would be destroyed unless each branch of the government were placed in a position of independence of the chers; and from this necessary independence it follows that neither may lawfully usurp the functions of the others nor encroach upon their rightful sphere of jurisdiction. Further, the principle of their separation requires that neither should be charged with duties foreign to the field of its legitimate activity. 18 Whiting v. Townsend, 57 Cal. 515. Constitutional Provisions. As the rule, it may be said that the American state constitutions now divide the powers of government, and provide that no person or body belonging to one branch shall exercise powers or functions belonging to the others. But even in the absence of such an explicit declaration, the creation of the several departments and the description of their respective powers would be sufficient to secure each against encroachments by the others. Thus, the federal constitution declares that "all legislative powers herein granted shall be vested in a congress of the United States"; that "the executive power shall be vested in a President"; 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 establish." By the first of these provisions the President and the courts are prevented from making laws. By the second, congress and the courts are forbidden to usurp the functions of the executive. By the third, the courts would be justified in declaring invalid any act of congress or act or rule of the executive department which should amount to an attempted exercise of judicial power. Limitations on Legislative Power-As Respects the Executive. The legislature cannot lawfully usurp any of the functions confided by the constitution to the executive department. Thus, it is the generally accepted doctrine that appointment to office is an executive function, which cannot be taken away from that department by the legislative branch, although both the legislature and the courts may fill such offices as are incidental to the performance of their own prescribed duties. The legislature may provide by law for the appointment of all officers not provided for in the constitution, but the appointing power must be lodged somewhere within the executive department.' 15 And for the same reason an act of the legislature granting a pardon or reprieve (where the pardoning power is vested by the constitution in the executive), or remitting a fine, or authorizing courts to suspend their sentences, would be un 14 State v. Hyde, 121 Ind. 20, 22 N. E. 644; Wood v. U. S., 15 Ct. Cl. 151. See Mayor, etc., of Baltimore v. State, 15 Md. 376. Compare People v. Freeman, 80 Cal. 233, 22 Pac. 173. 16 City of Evansville v. State, 118 Ind. 426, 21 N. E. 267. constitutional.1 But a statute giving to prisoners certain deductions from their term of imprisonment for good conduct does not infringe upon the power of the executive to grant pardons." Equally invalid would be any attempt on the part of the legislature to impose upon the members of the executive department powers or duties more properly belonging to the legislature itself or to the courts. Same As Respects the Judiciary. The faculty of judgment clearly belongs to the legislature in so far as it has the right to determine upon the policy or expediency of the bills presented for its action, and as regards the ascertainment of the facts and circumstances upon which its legislative action is to be based, and also it must judge for itself of the existing state of the law when it is proposed to make changes by new enactments. But any act of legislation which should undertake to determine questions of fact or law, as affecting the rights of persons or property properly the subject of litigation, would be judicial in its character and therefore invalid.18 Thus, to ascertain that a deed to a private corporation is conditional, that there has been a breach of the condition, and to enforce a forfeiture for the breach, are judicial functions, which it is not within the competency of the legislative power to exercise.10 So, the legislature cannot enact that the money appropriated to pay the salary of a state office must be paid to a certain one of two adverse claimants of the office, since that would amount to an adjudication upon such claimant's title to the office. Nor can the legislature assume to ascertain and fix the amount due to a creditor of the state, although it may appropriate or set apart a specified sum of money to pay such creditor, for that is no more than a tender, such as any debtor may make to his creditor, and which the latter may accept or refuse. Neither can the legislature law. fully direct the courts as to what judgments they shall enter in 20 10 Haley v. Clark, 26 Ala. 439; Ogletree v. Dozier, 59 Ga. 800; Butler v. State, 97 Ind. 373. See The Laura, 114 U. S. 411, 5 Sup. Ct. 881. 17 Ex parte Wadleigh, 82 Cal. 518, 23 Pac. 190. 18 Ponder v. Graham, 4 Fla. 23. 19 Board of Education v. Bakewell, 122 Ill. 339, 10 N. E. 878. 20 State v. Carr, 129 Ind. 44, 28 N. E. 88. 21 McLaughlin v. County Com'rs, 7 S. C. 375. |