1261

ing any perof law is con

be held that

we shall later titutions operate ve, and legislative

vernment.

a specific distributing clauses which provide ed shall be vested in a he executive power shall 1 States of America," and ted States shall be vested in ferior courts as Congress may blish."

the light of the accepted doce federal organs of government ted them by the Constitution, and may not by them be delegated to other 'rom the beginning, been held to secure ng clauses in the state constitutions are the case of Kilbourn v. Thompson the eved to be one of the chief merits of the ritten constitutional law that all powers innent, whether state or national, are divided 1 departments, the executive, the legislative nat the functions appropriate to each of these ment shall be vested in a separate body of pubthat the perfection of that system requires that separate and divide these departments shall be arly defined. It is also essential to the successful e system that the persons intrusted with power in

American Administrative Law, p. 35.

668; 26 L. ed. 377.

of our constitutions, and doubtless the continuance of regulated liberty depends on maintaining these boundaries." 4

Under the influence of this doctrine most of the States in their first Constitutions incorporated what have since been known as "distributing clauses." Thus Massachusetts in her Constitution, adopted in 1780, provided that "in the government of this commonwealth the legislative department shall never exercise the executive and judicial powers or either of them; the executive shall never exercise legislative and judicial powers or either of them; the judicial shall never exercise legislative and executive powers or either of them; to the end that it may be a government of laws and not of men." Maryland in her first instrument of government declared "that the legislative, executive and judicial powers of government ought to be forever separate and distinct from each other," and New Hampshire provided that "the legislative, executive and judiciary powers ought to be kept as separate from and independent of each other as the nature of a free government will admit, or as is consistent with the chain of connection that binds the whole fabric of the constitution in one indissoluble bond of unity and amity."

In practically all of the state constitutions which have been adopted since the revolutionary period there have been either distributing clauses similar to those given, or express provision that the legislative shall be vested in the legislature, the judicial in the courts, and the executive in the executive organs therein created. A number of constitutions, however, are careful to state that the principle of absolute separation is not to apply in those cases in which express provision otherwise is made.

§ 740. Separation of Powers in the States not Compelled by the Federal Constitution.

It is to be observed that this general acceptance by the States of the principle of the separation of powers is not one forced upon them by federal law,5 except in so far as the prohibition of the

4 For these and other quotations see the valuable work of Dr. Bondy, The Separation of Powers.

5 For an early statement of this see Calder v. Bull, 3 Dall. 386; 1 L. ed. 648.

Fourteenth Amendment with reference to the depriving any person of life, liberty, or property without due process of law is concerned or possibly, in extreme cases, where it might be held that the government is not republican in form. Nor, as we shall later see, do the distributing clauses in the state constitutions operate to prevent the consolidation of judicial, executive, and legislative powers in local government organs.

6

§ 741. Powers Separated in the Federal Government.

The federal Constitution does not contain a specific distributing clause, but its equivalent is found in the clauses which provide that "all legislative power herein granted shall be vested in a congress of the United States," that "the executive power shall be vested in a President of the United States of America," 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."

These provisions interpreted in the light of the accepted doctrines that each and all of the federal organs of government possess only those powers granted them by the Constitution, and that the powers not granted may not by them be delegated to other and different organs, have, from the beginning, been held to secure what the specific distributing clauses in the state constitutions are designed to provide. In the case of Kilbourn v. Thompson the court say: "It is believed to be one of the chief merits of the American system of written constitutional law that all powers intrusted to the government, whether state or national, are divided into the three grand departments, the executive, the legislative and the judicial; that the functions appropriate to each of these branches of government shall be vested in a separate body of public servants, and that the perfection of that system requires that the lines which separate and divide these departments shall be broadly and clearly defined. It is also essential to the successful working of the system that the persons intrusted with power in 6 Cf. Goodnow, American Administrative Law, p. 35. 7103 U. S. 168; 26 L. ed. 377.

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 peace, 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

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.

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.

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.