erty which the legislature deems important. A similar justification and gradual amending of the constitution takes place when the court permits Congress to extend the taxing power or the commerce power to the regulation of rates, services, wages, hours of labor, safety, health, and compensation for accidents.

This distinction between discretion on the part of the legislature and interpretation on the part of the courts is a distinction not so much between the several powers of government as between the functions peculiar to the several branches of government. It leads us to distinguish the public authorities who share in the exercise of the public powers.

Government can interpret and exercise its powers only through individuals. Each of these individuals takes an oath appropriate to his office, agreeing to support the constitution, to execute the law, to maintain order. For the time being his acts are the acts of the state, provided he keeps within the authority granted to him. To the legislature is granted the authority of deciding on public policy for the future, and, in doing so, it exercises discretion. To the courts belongs the power of deciding particular cases as they arise, and in doing so they interpret the laws. The executive enforces the law. But, to a fourth and new branch of government, unrecognized in the original constitutions, which may be called the administration,' is coming to be assigned the function of investigation of those economic and social conditions upon which the several branches of government base their decisions. While these functions cannot be separated in practice, yet they stand out as characteristic of each branch of government. Execution, discretion, interpretation, and investigation are the four great divisions in the functions of officials, and the executive, the legislature, the judiciary and the administration are the four branches that are specialized for these functions.

a. The Executive. The executive authorities are entitled to use violence if necessary, and to deprive individuals of life, liberty, and property without their consent. Private individuals may not even resist an officer of the law. The army,

1Die Verwaltung. The term “administration” has been used by the Supreme Court in this sense, 224 U. S. 474 (1911); 230 U. S. 196, 274 (1912).

navy, and militia may be called upon by the governor or president in time of strike or riot. Sheriffs, marshals, their deputies and policemen, may arrest and imprison individuals in order to prevent violence and to execute the orders of the court in the administration of civil and criminal justice. They belong to the military or "police" force of the state, which, under our theory, is subordinate to the civil authorities. The police force, as already stated, differs from the police power, in that the police power is the authorization, or justification, under which civil authorities are entitled to exercise discretion in enacting laws and issuing orders, while the police force is the agency which exercises coercion as directed by these laws and orders.

While in law the military and police forces have no discretion, but must follow orders, yet, in the urgency of immediate action, they must exercise discretion before their acts can be passed upon by the civil authorities. Only in case of war can executives legally set aside the superior authority of the courts, but war can be declared only by the legislature, a civil authority. The arbitrary discretion of the executive is sought to be held in check by that greatest instrument of freedom, the writ of habeas corpus. By means of this writ the court, a civil authority, orders the executive, or military power, to bring out a prisoner for hearing and for release if wrongly imprisoned. If the executive refuses, then the civil authority ipso facto becomes subordinate to military force. In so far as the executives and the military and police authorities exercise discretion, their opinion of the rights and duties of employer and employee is sometimes the deciding factor one way or the other in determining the relative power of the two in the wage bargain as affected by strikes, lockouts, public assembly, public speaking, agitation, arrest of leaders, protection of strike-breakers, picketing, the use of the streets, and otherwise.

b. The Legislature. The legislature is the authority which, acting within limits, is entitled to exercise discretion in de

'This has apparently been denied by the Supreme Court of West Virginia, which sustained the acts of a "military commission" in sentencing strikers to prison, State ex rel. Mays v. Brown, 71 W. Va. 519, 77 S. E. 243 (1912); ex parte Jones, 71 W. Va. 567, 77 S. E. 1029 (1913).

ciding upon public policy and enacting laws to carry the policy into effect. It is the one branch of government where the representatives of conflicting opinions are entitled to express their joint opinion in the form of law that shall be enforced on all persons with or without their consent. Other branches of government are considered to be impartial and limited to the execution of the law as the legislature prescribes. But the legislature may be partisan in politics and partial between employers and employees. It is considered that, if partisans meet and discuss in an orderly way their points of antagonism, the outcome will be a compromise in which the arbitrary power of no individual or class will dominate others. Yet, in fear that the legislature may not act justly, and may override minorities or those not represented, the people have enacted the higher law known as the constitution, with its bill of rights and its limitations on the legislature. This leads to the judiciary.

c. The Judiciary. Under our constitutional system the judicial branch holds a high and unique position. In order that it may be removed from the heat of partisanship and partiality it is made independent of the executive and legislative branches. In order that the federal system of a central government and forty-eight state governments, each supreme in its own field, may operate in harmony, the federal court is made the final authority to determine how far the field of each extends. By the fourteenth amendment to the constitution, all persons born or naturalized in this country enjoy a double citizenship-that of the United States and of the state wherein they reside. By this amendment the federal courts have authority to prevent any state from abridging the rights which the federal constitution and laws grant to them as citizens of the United States, and to prevent any state from depriving any person of life, liberty, or property without due process of law. The federal courts interpret and apply treaties with foreign nations and protect the rights of aliens. Finally, since the acts of the federal Congress or executive may conflict with the constitution, the federal court may declare them unconstitutional and hence refuse to apply them, in order to protect the constitution.

In this many-sided jurisdiction over states, over Congress,

over the executive, over inferior courts, and over private citizens, and in the interpretation of these many laws, the Supreme Court of the United States exercises authority not only judicial, but also, in fact, legislative and executive. So with the supreme courts of the states within their proper jurisdictions. When deciding between a law of the legislature and the law of the constitution, they necessarily decide between the policy of the legislature and their own opinion, based on previous decisions, of the policy contained in the constitution. When nullifying an act of the executive they interpose their opinion of the law and the constitution against the executive's opinion. Yet they are but performing the judicial function of interpreting the laws and making their application to the facts of each particular case, as it arises. Their legislative and executive functions arise because they have authority to apply their interpretation to cases in which the acts of legislatures and executives are called in question, as well as cases where only private citizens are the litigants. In this way is established, as the court has said, "a government of laws and not of men."1

But the courts, just as legislatures and executives, are composed of men. They, too, are guided by opinions, and their opinions change with change in experience and change in judges. The difference consists in the procedure, the standards, and the safeguards by which the judges arrive at their opinions, compared with those which restrain the more hasty opinions of lawmakers and executives. It is merely "opinions," after all, rather than written constitutions, that protect, enlarge, and abridge rights and duties.

d. The Administration. But opinions of individuals are so capricious, fluctuating, and uncertain, so liable to be bent by bias, passion, and interest, that our constitutional system of government imposes methods and principles designed to reduce them to an orderly system based on reason. These methods are investigation or the accurate discovery of facts and conditions, and in more recent times the administrative branch of government has been devised with investigation as its main purpose. Investigation is so involved in all the

'Marbury v. Madison, I Cranch 137, at p. 163 (1803).

topics of labor legislation that the treatment of administration is reserved for the concluding chapter.

The other essential to an orderly system of reason in place of capricious opinion is the principles, standards, or “maxims” that underlie due process of law. Under the theory of our courts, the principles of law and justice are immutable and unchanging. Facts and conditions change, and these are revealed by investigation, but the principles remain the same, though their application changes when the facts change. The leading principles that concern us are "public benefit" and "equal protection of the laws."

a. Public Benefit. The effect and purpose of the police power is to impose a duty on some individual which redounds to the benefit of other individuals. In despotic or oligarchic governments these benefited individuals are likely to be the favorites and courtiers of the monarch or the privileged and aristocratic classes. In a democratic or republican government they are likely to be political partisans, monied interests, employers' organizations, trade unions, or other classes who get control of the legislature and enact laws merely for the benefit of their private interest at the expense of other private interests. But if a thing of this kind happens, then the legislature is doing the very thing which revolutions and written constitutions were designed to prevent when despots and aristocrats were the offenders. Hence it is that every act of the legislature must be tested by a standard which shall determine whether the persons or classes of persons to be benefited are so benefited merely because they have power in the legislature to impose burdens on others, or because the benefit to them is also a benefit to that body of the whole people which we call "the public." If the benefit goes only to private persons for their private benefit, then the legislation is unconstitutional, because it employs the sovereign power of government for private purposes. But if those persons who

See "The Police Power," p. 13.