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. Place1o 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 Cf. a paper entitled "The Distinction between Legislative and Judicial Functions," in Report of the American Bar Association, 1885, p. 261.

§ 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 a 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.

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." 13

In Mitchell v. Clark 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.

been done or committed, or act may have been omitted to be done."

Notwithstanding the very broad language of this act of immunity, the constitutionality of the measure was sustained. The court was, however, careful, in its opinion, to restrict its operation to the validation only of acts that it might have been possible for the President or Congress to have authorized at the time they were committed. Thus the opinion declares: "That an act passed after the event, which in effect ratifies what has been done and declares that no suit shall be sustained against the party acting under color of authority, is valid, so far as Congress could have conferred such authority before, admits of no reasonable doubt. These are ordinary acts of indemnity passed by all governments when the occasion requires."

§ 746. Legislative Control of Judicial Procedure and Powers. The power of the courts to refuse to apply legislative acts inconsistent with constitutional provisions has already been considered. This is as far as the courts will go in the control of the legislative department. They do not possess and have never claimed to possess the power to pass upon the credentials of one claiming membership in a legislative body. They do not attempt to regulate the rules by which such bodies are governed in the conduct of their work, and, to only a very limited extent, will they question the correctness of the legislative records that are kept. Finally, they never attempt to command or to prohibit the performance of a legislative act. Individually, however, the members of a legislature are, of course, subject to judicial process, except so far as they have been granted express immunity by the Constitution.

Upon the other hand, as we shall see, the courts have not hesitated to protect their own independence from legislative control, not simply by refusing to give effect to retroactive declaratory statutes, or to acts attempting the revision or reversal of judicial determinations, but they have refused themselves to entertain jurisdiction in cases in which they have not been given the power

to enforce their decrees by their own writs of execution. Thus, as already mentioned, they have refused to act where their decisions have been subject to legislative or administrative revisions. Finally, even where the extent of their jurisdiction, both as to parties litigant and subject-matter, has been subject to legislative control, the courts have not permitted themselves to be deprived of the power necessary for maintaining their dignity, the orderliness of their procedure, and the effectiveness of their writs.

In order that a court may perform its judicial functions with dignity and effectiveness, it is necessary that it should possess certain powers. Among these are the right to issue certain writs, called extraordinary writs, such as mandamus, injunction, certiorari, prohibition, etc., and, especially, to punish for contempt and disobedience to its orders. The possession of these powers the courts have jealously guarded, and in accordance with the constitutional doctrine of the separation and independence of the three departments of government, have held, and undoubtedly will continue to hold, invalid any attempt on the part of the legislature to deprive them by statute of any power the exercise of which they deem essential to the proper performance of their judicial functions. The extent of their jurisdiction, they argue, may be more or less within legislative control, but the possession of powers for the efficient exercise of that jurisdiction, whether statutory or constitutional, which they do possess, they cannot be deprived of.

§ 747. Jurisdiction and Judicial Power Distinguished.

It has been already pointed out that the jurisdictions of the inferior federal courts and the appellate jurisdiction of the Supreme Court is wholly within the control of Congress, depending as they do upon statutory grant. It has, however, been argued that while the extent of this jurisdiction is thus within the control of the legislature, that body may not control the manner in which the jurisdiction which is granted shall be exercised, at least to the extent of denying to the courts the authority to issue writs and take other judicial action necessary for the proper and effective execution of their functions. In other words, the argument is,