rights in the future may be incidentally affected by a change in the law.1

Legislative Encroachments upon Executive Power.

If it is difficult to point out the precise boundary which separates legislative from judicial duties, it is still more difficult to discriminate, in particular cases, between what is properly legislative and what is properly executive duty. The authority that makes the laws has large discretion in determining the means through which they shall be executed; and the performance of many duties which they may provide for by law, [*115] they may refer either to the chief executive of the State, or, at their option, to any other executive or ministerial officer, or even to a person specially named for the duty.2 What can be definitely said on this subject is this: That such powers as are specially conferred by the constitution upon the governor, or upon any other specified officer, the legislature cannot require or authorize to be performed by any other officer or authority; and from those duties which the constitution requires of him he cannot be excused by law.3

Starr v. Pease, 8 Conn. 545.

This is affirmed in the recent case of Bridges v. Shallcross, in the Supreme Court of West Virginia, not yet reported. The constitution of that State provides that the governor shall nominate, and by and with the advice and consent of the Senate appoint, all officers whose offices are established by the constitution, or shall be created by law, and whose appointment or election is not otherwise provided for, and that no such officers shall be appointed or elected by the legislature. The Court decided that this did not preclude the legislature from creating a Board of Public Works of which the State officers should be ex officio the members.

3 Attorney-General v. Brown, 1 Wis. 522. "Whatever power or duty is expressly given to, or imposed upon, the executive department, is altogether free from the interference of the other branches of the government. Especially is this the case where the subject is committed to the discretion of the chief executive officer, either by the constitution or by the laws. So long as the power is vested in him, it is to be by him exercised, and no other branch of the government can control its exercise." Under the Constitution of Ohio, which forbids the exercise of any appointing power by the legislature, except as therein authorized, it was held that the legislature could not, by law, constitute certain designated persons a State board, with power to appoint commissioners of the State House, and directors of the penitentiary, and to remove such directors for cause. State v. Kennon, 7 Ohio, N. s. 546. And see Davis v. State, 7 Md. 161; also, Bridges v. Shallcross, Sup. Court of West Va., not yet reported. As to what are public officers, see State v. Stanley, 66 N. C. 59; s. c. 8 Am. Rep. 488. An appointment to office was said in Taylor v. Commonwealth, 3 J. J. Marsh. 404, to be intrinsi

But other powers or duties the executive cannot exercise or assume except by legislative authority, and the power which in its discretion it confers it may also in its discretion withhold, or confide to other hands. Whether in those cases where power is given by the constitution to the governor, the legislature have the same authority to make rules for the exercise of the power, that they have to make rules to govern the proceedings in the courts, may [*116] perhaps be a question.2 It would seem that this must depend generally upon the nature of the power, and upon

*

cally an executive act. In a certain sense this is doubtless so, but it would not follow that the legislature could exercise no appointing power, or could confer none on others than the chief executive of the State. Where the constitution contains no negative words to limit the legislative authority in this regard, the legislature in enacting a law must decide for itself what are the suitable, convenient, or necessary agencies for its execution, and the authority of the executive must be limited to taking care that the law is executed by such agencies.

1 "In deciding this question [as to the authority of the governor], recurrence must be had to the constitution. That furnishes the only rule by which the court can be governed. That is the charter of the governor's authority. All the powers delegated to him by or in accordance with that instrument, he is entitled to exercise, and no others. The constitution is a limitation upon the powers of the legislative department of the government, but it is to be regarded as a grant of powers to the other departments. Neither the executive nor the judiciary, therefore, can exercise any authority or power except such as is clearly granted by the constitution." Field v. People, 2 Scam. 80.

Whether the legislature can constitutionally remit a fine, when the pardoning power is vested in the governor by the constitution, has been made a question; and the cases of Haley v. Clarke, 26 Ala. 439, and People v. Bircham, 12 Cal. 50, are opposed to each other upon the point. If the fine is payable to the State, perhaps the legislature should be considered as having the same right to discharge it that they would have to release any other debtor to the State from his obligation. In Morgan v. Buffington, 21 Mo. 549, it was held 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. The 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

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

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, wisdon, and patriotism this high prerogative has been intrusted cannot relieve itself of the responsibility by choosing other agen

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.

cies 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.1

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.2 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. In these cases the legis

[118] lative

act is regarded as complete when it has passed through the constitutional formalities necessary to per

"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.

66

Secondly. These laws also ought to be designed for no other end ultimately but the good of the people.

66

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." Locke on Civil Government, § 142.

That legislative power cannot be delegated, see Thorne v. Cramer, 15 Barb. 112; Bradley v. Baxter, ib. 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; 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. MeWilliams, 11 Penn. St. 61; Maize v. State, 4 Ind. 342; Meshmeier v. State, 11 Ind. 482; State v. Parker, 26 Vt. 362; State v. Swisher, 17 Texas, 441; State v. Copeland, 3 R. I. 33; State v. Wilcox, 45 Mo. 458.

2 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.

3 Angell and Ames on Corp. § 81.

fected 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., 4 Zab. 385; Cheany v. Hooser, 9 B. Monr. 330; Berlin v. 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 v.