[* 116] would seem that this must depend generally upon the nature of the power, and upon the question whether the constitution, in conferring it, has furnished a sufficient rule for its exercise. Where complete power to pardon is conferred upon the executive, it may be doubted if the legislature can impose restrictions under the name of rules or regulations; but where the governor is made commander-in-chief of the military forces of the State, it is obvious that his authority must be exercised under such proper rules as the legislature may prescribe, because the military forces are themselves under the control of the legislature, and military law is prescribed by that department. There would be this clear limitation upon the power of the legislature to prescribe rules for the executive department; that they must not be such as, under pretence of regulation, divest the executive of, or preclude his exercising, any of his constitutional prerog

The

that the State auditor was not obliged to accept as conclusive the certificate from the Speaker of the House as to the sum due a member of the House for attendance upon it, but that he might lawfully inquire whether the amount had been actually earned by attendance or not. legislative rule, therefore, cannot go to the extent of compelling an executive officer to do something else than his duty, under any pretence of regulation. The power to pardon offenders is vested by the several State constitutions in the governor. It is not, however, a power which necessarily inheres in the executive. State v. Dunning, 9 Ind. 22. And several of the State constitutions have provided that it shall be exercised under such regulations as shall be prescribed by law. There are provisions more or less broad to this purport in those of Kansas, Florida, Alabama, Arkansas, Texas, Mississippi, Oregon, Indiana, Iowa, and Virginia. In State v. Dunning, 9 Ind. 20, an act of the legislature requiring the applicant for the remission of a fine or forfeiture to forward to the governor, with his application, the opinion of

certain county officers as to the propriety of the remission, was sustained as an act within the power conferred by the constitution upon the legislature to prescribe regulations in these cases. And see Branham v. Lange, 16 Ind. 500. The power to reprieve is not included in the power to pardon. Ex parte Howard, 17 N. H. 545. It has been decided that to give parties who have been convicted and fined the benefit of the insolvent laws is not an exercise of the pardoning power. Ex parte Scott, 19 Ohio, N. s. 581. And where the constitution provided that "In all criminal and penal cases, except those of treason and impeachment, [the governor] shall have power to grant pardons after conviction, and remit fines and forfeitures," &c., it was held that this did not preclude the legislature, from passing an act of pardon and amnesty for parties liable to prosecution, but not yet convicted. State v. Nichols, 26 Ark. 74; s. c. 7 Am. Rep. 600. Pardons may be made conditional, and forfeited if the condition is not observed. State v. Smith, 1 Bailey, 283; Lee v. Murphy, 22 Gratt. 789.

atives or powers. Those matters which the constitution specifically confides to him the legislature cannot directly or indirectly take from his control.

It may be proper to say here, that the executive, in the proper discharge of his duties under the constitution, is as independent of the courts as he is of the legislature.1

Delegating Legislative Power.

One of the settled maxims in constitutional law is, that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority. Where the sovereign power of the State has located the authority, there it must remain; and by the constitutional agency alone the laws must be made until the constitution [* 117] itself is changed. The power to whose judgment, wisdom, and patriotism this high prerogative has been intrusted cannot relieve itself of the responsibility by choosing other agencies upon which the power shall be devolved, nor can it substitute the judgment, wisdom, and patriotism of any other body for those to which alone the people have seen fit to confide this Sovereign trust.2

1 It has been a disputed question whether the writ of mandamus will lie to compel the performance of executive duties. In the following cases the power has either been expressly affirmed,

or it has been exercised without being questioned. State v. Moffitt, 5 Ohio, 358; State v. Governor, 5 Ohio, N. s. 529; Coltin v. Ellis, 7 Jones, 545; Chamberlain v. Sibley, 4 Minn. 309; Magruder v. Governor, 25 Md. 173; Groove v. Gwinn, 43 Md. 572; Tennessee, &c. R. R. Co. v. Moore, 36 Ala. 371; Middleton v. Lowe, 30 Cal. 596; Harpending v. Haight, 39 Cal. 189; s. c. 2 Am. Rep. 432; Chumasero v. Potts, 2 Montana, 242. In the following cases the power has been denied: Hawkins v. Governor, 1 Ark. 570; Low v. Towns, 8 Geo. 360; State v. Kirkwood, 14 Iowa, 162; Dennett, Petitioner, 32 Me. 510; People v. Bissell,

19 Ill. 229; People v. Gates, 40 Ill. 126; State v. Governor, 25 N. J. 331; Mauran v. Smith, 8 R. I. 192; State v. Warmoth, 22 La. Ann. 1; s. c. 2 Am. Rep. 712; Same v. Same, 24 La. Ann. 351; s. c. 13 Am. Rep. 126; People v. Governor, 29 Mich. 320; s. c. 18 Am. Rep. 89; State v. Governor, 39 Mo. 388.

2 These are the bounds which the trust that is put in them by the society, and the law of God and nature, have set to the legislative power of every Commonwealth, in all forms of government:

"First. They are to govern by promulgated established laws, not to be varied in particular cases, but to have one rule for rich and poor, for the favorite at court and the countryman at plough.

"Secondly. These laws also ought to be designed for no other end

But it is not always essential that a legislative act should be a completed statute which must in any event take effect as law, at the time it leaves the hands of the legislative department. A statute may be conditional, and its taking effect may be made to depend upon some subsequent event.1 Affirmative legislation may in some cases be adopted, of which the parties interested are at liberty to avail themselves or not at their option. A private act of incorporation cannot be forced upon the corporators; they may refuse the franchise if they so choose.2 In these [* 118] cases the legislative act is regarded as complete when it has passed through the constitutional formalities necessary

*

ultimately but the good of the Swisher, 17 Tex. 441; State v. Copepeople.

"Thirdly. They must not raise taxes on the property of the people without the consent of the people, given by themselves or their deputies. And this properly concerns only such governments where the legislative is always in being, or at least where the people have not reserved any part of the legislative to deputies, to be from time to time chosen by themselves.

"Fourthly. The legislative neither must nor can transfer the power of making laws to anybody else, or place it anywhere but where the people have." § 142.

Locke on Civil Government,

That legislative power cannot be delegated, see Thorne v. Cramer, 15 Barb. 112; Bradley v. Baxter, 15 Barb. 122; Barto v. Himrod, 8 N. Y. 483; People v. Stout, 23 Barb. 349; Rice v. Foster, 4 Harr. 479; Santo v. State, 2 Iowa, 165; Geebrick v. State, 5 Iowa, 491; State v. Beneke, 9 Iowa, 203; State v. Weir, 33 Iowa, 134; s. c. 11 Am. Rep. 115; People v. Collins, 3 Mich. 343; Railroad Company v. Commissioners of Clinton County, 1 Ohio, N. s. 77; Parker v. Commonwealth, 6 Penn. St. 507; Commonwealth v. McWilliams, 11 Penn. St. 61; Maize v. State, 4 Ind. 342; Meshmeier v. State, 11 Ind. 482; State v. Parker, 26 Vt. 362; State v.

land, 3 R. I. 33; State v. Wilcox, 45 Mo. 458; Commonwealth v. Locke, 72 Penn. St. 491; Ex parte Wall, 48 Cal. 279; Willis v. Owen, 43 Tex. 41; Farnsworth v. Lisbon, 62 Me. 451; Brewer v. Brewer, 62 Me. 62; State v. Hudson County, 37 N. J. 12.

1 Brig Aurora v. United States, 7 Cranch, 382; Bull v. Read, 13 Grat. 78; State v. Parker, 26 Vt. 357; Peck v. Weddell, 17 Ohio, N. s. 271; State v. Kirkley, 29 Md. 85; Walton v. Greenwood, 60 Me. 356; Baltimore v. Clunet, 23 Md. 449. It is not a delegation of legislative power to make the repeal of a charter depend upon the failure of the corporation to make up a deficiency which is to be ascertained and determined by a tribunal provided by the repealing act. Lothrop v. Stedman, 42 Conn. 583. See Crease v. Babcock, 23 Pick. 334, 344. Nor to refer the question of extending municipal boundaries to a court where issues may be formed and disputed facts tried. Burlington v. Leebrick, 43 Iowa, 252. It is competent to make an act take effect on condition that those applying for it shall erect a station at a place named. State v. New Haven, &c. Co., 43 Conn. 351.

2 Angell and Ames on Corp. § 81.

to perfected legislation, notwithstanding its actually going into operation as law may depend upon its subsequent acceptance. We have elsewhere spoken of municipal corporations, and of the powers of legislation which may be and commonly are bestowed upon them, and the bestowal of which is not to be considered as trenching upon the maxim that legislative power is not to be delegated, since that maxim is to be understood in the light of the immemorial practice of this country and of England, which has always recognized the propriety of vesting in the municipal organizations certain powers of local regulation, in respect to which the parties immediately interested may fairly be supposed more competent to judge of their needs than any central authority. As municipal organizations are mere auxiliaries of the State government in the important business of municipal rule, the legislature may create them at will from its own views of propriety or necessity, and without consulting the parties interested; and it also possesses the like power to abolish them, without stopping to inquire what may be the desire of the corporators on that subject.1

Nevertheless, as the corporators have a special and peculiar interest in the terms and conditions of the charter, in the powers conferred and liabilities imposed, as well as in the general question whether they shall originally be or afterwards remain incorporated at all or not, and as the burdens of municipal government must rest upon their shoulders, and especially as by becoming incorporated they are held, in law, to undertake to discharge the duties the charter imposes, it seems eminently proper that their voice should be heard on the question of their incorporation, and that their decision should be conclusive, unless, for strong reasons of State policy or local necessity, it should seem important for the State to overrule the opinion of the local majority. The right to refer any legislation of this character to the people peculiarly interested does not seem to be questioned, and the reference is by no means unusual.2

1 City of Patterson v. Society, &c., 24 N. J. 385; Cheany v. Hooser, 9 B. Monr. 330; Berlin . Gorham, 34 N. H. 266. The question of a levee tax may lawfully be referred to the voters of the district of territory over which it is proposed to spread the tax,

regardless of municipal divisions. Alcorn v. Hamer, 38 Miss. 652. And see, in general, Angell and Ames on Corp., § 31 and note; also post, pp. * 190-* 192.

2 Bull v. Read, 13 Grat. 78; Corning v. Greene, 23 Barb. 33; Morford

[* 119] * For the like reasons the question whether a county or township shall be divided and a new one formed,1 or two townships or school districts formerly one be reunited,2 or a city charter be revised, or a county seat located at a particular place, or after its location removed elsewhere, or the municipality contract particular debts, or engage in a particular improvement,5 is