responsibility of their functions, by submitting statutes to the will of the people, in their primary capacity. But these pro

assent as to certain sections before they were to be acted upon, is valid. Clarke v. Rochester, 28 N. Y. 605; 24 Barb. 446.

A fortiori, a grant of power to do certain acts upon obtaining the consent of specified persons, is valid. Morgan v. Monmouth Pl. R. Co. 2 Dutch. 99.

The following are instances in which statutes providing for a submission to the popular vote of the localities affected, have been sustained: Providing for the change and location of a county seat, Commonwealth v. Painter, 10 Penn. St. 214; for the uniting specified towns or districts, Commonwealth v. Judges, 8 Penn. St. 391; Call v. Chadbourne, 46 Me. 206; for the division of a county or town, State v. Reynolds, 5 Gilm. 1; for a tax to be laid upon a district for the purpose of constructing levees, Alcorn v. Hamer, 38 Miss. 652.

A license law depending for its going into effect in any county upon the popular vote of such county, is invalid. State v. Swisher, 17 Tex. 441; Geebrick v. State, 5 Clarke (Ia.) 491; Packer v. Commonwealth, 6 Penn. St. 507; Rice v. Foster, 4 Harr. (Del.) 479; State v. Weir, 33 Iowa, 134; and the same where the vote was to be by towns. Mishmeier v. State, 11 Ind. 484; Maize v. State, 4 Ind. 342; but see Hammond v. Haines, 25 Md. 541, where a statute allowing a particular municipality to determine by popular vote whether such licenses should be granted therein, was sustained. Where the Constitution provided that places for holding courts should be “provided by law," and the Legislature enacted that they should be held at the county seat, and then gave the counties the power to choose their county seats, this was held to be a compliance with the Constitution. Upham v. Supervisors, 8 Cal. 378.

A statute submitting to the people of several municipalities the question whether they should be consolidated, is valid. Smith v. M'Carthy, 56 Penn. St. 359.

In the following cases the reference to the people was held not to be a reference of the question whether the proposed act should be a law. Santo v. State, 2 Clarke (Ia.), 165; Beneke v. State, 9 Iowa, 203. And it seems that it is the provision for a reference to the people, and not the whole statute that is to be considered void. Ibid. Where the Constitution provided that no county of a certain size should be divided without a popular vote, and an act for the division of such a county provided in one section that the "act" should be submitted to popular vote, and, in another section, that the act should take effect forthwith, it was held that the question of division and not the act, was intended to be submitted, and that therefore the statute was valid. State v. Elwood, 11 Wisc. 17.

Where the Constitution provided that no law, except in certain specified cases, should be passed to take effect upon the approval of any other authority than the General Assembly, it was held that an act giving township trustees power to purchase land for a cemetery, etc., provided that the electors should so vote, was constitutional. Paris Township v. Cherry, 8 Ohio, N. S. 564.

The Constitution of Minnesota provides that all laws changing county lines before taking effect shall be submitted to the electors of the county. A general statute that upon petition of a certain proportion of the electors of any county for a change, the question should be submitted to a vote of the people, without providing for any decision of the question by the Legislature in the first instance, was held void, the court holding that there must be a complete law, and then a vote as to its going into effect. Roos v. Swenson, 6 Minn. 428.

A clause in a general act for the incorporation of towns, that towns already in

ceedings have been held, and very rightly, to be entirely unconstitutional and invalid. The duties of legislation are not to be exercised by the people at large. The majority governs, but only in the prescribed form; the introduction of practices of this kind would remove all checks on hasty and improvident legislation, and greatly diminish the benefits of representative government. So where an act to establish free schools was, by its terms, directed to be submitted to the electors of the State, to become a law only in case a majority of the votes were given. in its favor, it was held, in New York, that the whole proceeding was entirely void. "The Legislature," said the Court of Appeals, "have no power to make such submission, nor had the people the power to bind each other by acting upon it. They voluntarily surrendered that power when they adopted the Constitution. The government of this State is democratic; but it is a representative democracy, and in passing general laws, the people act only through their representatives in the Legislature."* And in Pennsylvania, in the case of an excise statute, the same stern and salutary doctrine has been applied. In some of the more recent State Constitutions this rule has been made a part of the fundamental law. So in Indiana, the

*Thorne v. Cramer, 15 Barb. 112; Barto v. Himrod, 4 Seld. 483.

Parker v. Commonwealth, 6 Barr. 507.

corporated may by popular vote adopt such of its provisions as they please, was upheld in Bank of Chenango v. Brown, 26 N. Y. 467; and the same was held of an act authorizing the electors of a county to determine by vote whether the running at large of sheep and swine should be restrained. Dalby v. Wolf, 14 Iowa, 228.

In general, statutes fully enacted by the Legislature may be conditional in their operation, to take effect upon some future event. State v. Parker, 26 Vt. 357; Bull v. Read, 13 Gratt. 78; State v. Kirkby, 29 Md. 85; Peck v. Weddell, 17 Ohio, N. S. 271. And it has been held that if a general law is passed to take effect at one or the other of two specified times, the question may be referred to a popular vote of the whole State, at which of these times it shall go into effect. State v. Parker, 26 Vt. 357; and see People v. Collins, 3 Mich. 343, in which the court was equally divided.

Subject to the foregoing exceptions and limitations, the question whether a general law shall go into effect or not cannot be referred to a popular vote of the whole State. People v. Stout, 23 Barb. 349; State v. Wilcox, 45 Mo. 458; State v. Field, 17 Mo. 529; State v. Swisher, 17 Tex. 441; State v. Beneke, 9 Iowa, 203; Bank of Chenango v. Brown, 26 N. Y. 467. Nor the question whether such a law shall be repealed. Geebrick v. State, 5 Iowa, 491; Packer v. Commonwealth, 6 Penn. St. 507; Rice v. Foster, 4 Harr. (Del.) 479; State v. Weir, 33 Iowa, 134.

principle is now framed into a constitutional provision which vests the legislative authority in a Senate and House of Representatives, and declares that "no law shall be passed, the taking effect of which shall be made to depend upon any authority except as provided in the Constitution." And under these provisions it has been held, that so much of an act as relates to its submission to the popular vote, was null and void.*

For the same reason, that a Legislature cannot return or throw back upon the people the duty of making laws, for the same reason its powers cannot be delegated by it to any inferior authority. "It will not be contended," says Marshall, C. J., in the Supreme Court of the United States, "that Congress can delegate to the courts, or to any other tribunals, powers which are strictly legislative." +

Another sort of departure from the true functions of the law-making power, has been manifested in other cases. While, in the instances we have just noticed, the State Legislatures have sought to relieve themselves from the responsibility justly devolving upon them; in other cases they have been induced to trench on the functions of the legal tribunals, and, in the shape and under the name of laws, to assume the right to pass enactments really of a judicial nature. (a) This practice has

Maize v. The State, 4 Indiana, 342. See an able and independent opinion by Stuart, J. But I doubt whether, logically, the whole act should not fail. Non constat that the Legislature would have passed the law without the clause in question. The New York and Pennsylvania decisions appear to me, in this respect, to rest on a sounder basis.

Wayman v. Southard, 10 Wheaton, pp. 1, 46. Still, it was intimated, in this case, that the federal Legislature could delegate to the courts power to make rules for their process; and it was said, "The difference between the departments undoubtedly is, that the Legislature makes, the executive executes, and the judiciary construes the law; but the maker of

the law may commit something to the discretion of the other departments; and the precise boundary of this power is a subject of delicate and difficult inquiry, into which a court will not enter unnecessarily." See, also, United States Bank v. Halstead, 10 Wheaton, 51, where the delegation of power, as far as the process of the courts was concerned, was expressly held valid. [The Legislature may give to a board of health power to make by laws. Coe v. Schultz, 47 Barb. 64; ex parte Shrader, 33 Cal. 279; but see Schuster v. Metropolitan Board, 49 Barb. 450. The power may be given to municipal corporations to make sanitary regulations. Bliss v. Krauss, 16 Ohio, N. S. 55.]

(a) The subject-matter of the text and of this note properly belongs to the discussion of the constitutional provisions respecting "due process of law" and "the law of the land." The exact question proposed in the text and in this note is, What is a law, within the meaning of these provisions, so as to be within the province of a Legislature, in contradistinction from a judicial act, which is within the jurisdiction of courts alone? In general, it is the function of courts to deal with facts already transpired, and to proceed upon the law as it then stands, and of the Legislature to

encountered similar opposition, and has been unfailingly and severely discountenanced. The Legislature is to confine itself

declare the rule for future cases. Law of the land means due process of law, not an arbitrary act of the Legislature. Craig v. Kline, 65 Penn. St. 399.

Any legislation which, by changing the fundamental relations and vested rights of the parties, attempts to reverse the ruling of the court on a past case, or to control its decision in a pending case, is a usurpation of the judicial function, and is void. Thus, an act purporting to validate an assignment in insolvency, already declared void by the highest court of the State, is a judicial act, and invalid. Denny v. Mattoon, 2 Allen, 361. For the same reason, it seems, the Legislature cannot provide for deduction from terms of imprisonment, according to a scale for good behavior. State v. Halloway, 42 Penn. St. 446. A statute of Congress providing that the acceptance of a pardon from the President shall be proof of the commission of the criminal acts pardoned, and that such pardon shall not be considered by the courts in support of certain claims against the United States (the Supreme Court having previously decided that pardoned persons might maintain such claims), is unconstitutional and void, since it seeks to reverse the decisions of the courts, and to prescribe a rule to them in particular cases. United States v. Klein, 13 Wal. 128. A statute intended to deprive a plaintiff of the benefit of a judgment obtained by him, is invalid. Hadfield v. Mayor, &c. 6 Robt. 501. Nor has the Legislature power to open judgments. Davis v. Menasha, 21 Wisc. 491; Atkinson v. Dunlap, 50 Me. 111; Taylor v. Place, 4 R. L. 324; Young v. State Bank, 4 Ind. 301; Baggs' Appeal, 43 Penn. St. 5:2; Miller v. Gibson, 63 N. C. 635; Griffin's Ex'or v. Cunningham, 20 Gratt. 31; see, also, U. S. v. Samperyac, 1 Hemp. C. C. 118; Burch v. Newbury, 10 N. Y. 374, per Jewett, J. Nor to restore discontinued appeals. Carleton v. Goodwin's Ex'or, 41 Ala. 153. Nor to prohibit the issuing of an injunction in a particular case. Guy v. Hermance, 5 Cal. 73. The Legislature cannot, by declaratory statute, give a construction to the Constitution, which shall be binding on the courts. Calhoun v. McLendon, 42 Geo. 405. Nor declare the meaning of an existing statute, so as to affect pending suits and vested rights. People v. Supervisors, 16 N. Y. 424; Reiser v. William Tell Ass. 39 Penn. St. 137; Trask v. Green, 9 Mich. 358, 366; but see Savings Bank v. Allen, 28 Conn. 97; Tilford v. Ramsey, 43 Mo. 410.

The Legislature may, it seems, authorize a court to re-open a particular case, if such court is satisfied, on the facts shown, that the ends of justice will be promoted thereby. Calvert v. Williams, 10 Md. 478. But a statute allowing the court to grant a divorce between particular individuals is a judicial decree, and not a law, and is void. Simonds v. Simonds, 103 Mass. 572. The change of venue, however, in a particular case, by the Legislature, is not a judicial act. Smith v. Judge, 17 Cal. 547.

Notwithstanding the generality of the rule above illustrated, and notwithstanding the general theory upon which the government is framed, it is impossible to separate the judicial and the legislative functions absolutely. The Legislature must, in matters of public concern, frequently exercise quasi-judicial powers-must enact measures which are essentially judicial. The following are a few illustrations of this principle: In Massachusetts, the Legislature may, by commissioners, apportion the expense of maintaining a highway upon the counties through which it runs. Hingham, &c. Co. v. Norfolk, 6 Allen, 353; see, also, Salem Turn. Co. v. Essex Co. 100 Mass. 282; Commonwealth v. Newburyport, 103 Mass. 129; Haverhill Bridge Co. v. Essex Co. 103 Mass. 120; Dow v. Wakefield, 103 Mass. 267; Waterville v. County

to making laws, and cannot make decrees or determine private controversies. It has been said, that which distinguishes a ju

Comm'rs, 59 Me. 80. And the Legislature may apportion payments to be made for a bridge, contracted for by a county, between such county and a new county carved out of it. People v. Alameda, 26 Cal. 641. And may apportion debts where a town is formed out of two old ones. State v. Elvins, 3 Vroom. 362.

The Legislature is not the final judge as to the forfeiture of a charter for misuser, non-user, or abuse. Commonwealth v. Pittsburg, &c. R. R. 58 Penn. St. 26.

Private Statutes in Relation to Persons not Sui Juris, Charities, and the Like.— Not only in matters of public concern, but in strictly private matters, the Legislature may, under some special circumstances, and within well-defined limits, exercise judicial functions and enact measures which are strictly judicial. The cases cited are illustrations and examples of this power and practice. The reader is referred to them for a discussion of the principle upon which the Legislature proceeds, and the limit

ations upon its power. Statutes have been sustained in many instances which au

thorize sales by executors, guardians, and the like, where the parties in interest are not sui juris. Kneass' Appeal, 31 Penn. St. 87; Matter of Bull, 45 Barb. 334; Leggett v. Hunter, 19 N. Y. 445; McComb v. Gilkey, 29 Miss. 146; Ward v. New England, &c. Co. 1 Cliff. C. C. 565; Davis' Lessee v. Helbig, 27 Md. 452; Stewart v. Griffith, 33 Mo. 13; DeMill v. Lockwood, 3 Blatch. C. C. 56. But Legislature cannot authorize or validate a sale of land devised with a restriction upon alienation. Stewart v. Griffith, 33 Mo. 13, 24. The Legislature may also authorize sale of land held in trust for life tenants, with remainder to heirs, upon security being given for investment of the proceeds in other lands upon the same trusts. Clarke v. Hayes, 9 Gray, 426. Where a married woman, to whom land had been devised for life, without power of alienation, remainder to her heirs, conveyed in fee, and the Legislature passed an act confirming her deed, such act was held void. Shonk v. Brown, 61 Penn. St. 320.

The Legislature possesses the same general power in cases of charities-e. g., it may vest the title of trustees of charities in a corporation. Matter of New York, &c. School, 31 N. Y. 574. A statute appointing a trustee to fill a vacancy under a deed of trust, the appropriate court having been suspended, was held valid. Hindman v. Piper, 50 Mo. 292. It was held in Delaware that where land had been devised in trust for a charity, to be rented and not sold, the Legislature could not authorize it to be converted into personal property, although such conversion would be for the benefit of the trust. Tharp v. Fleming, 1 Houst. 580. Otherwise in Connecticut. Stanley v. Colt, 5 Wal. 119. The Legislature cannot, by private act, authorize the sheriff to sell, in a particular case, after the time allowed by law. Taylor v. Allen, 67 N. C. 346.

The Legislature cannot, in general, order sale of a person's interest who is sui juris. Kneass' Appeal, ubi sup.; Schoenberger v. School Directors, 32 Penn. St. 34. But in Pennsylvania sale may be so ordered where it is necessary for purposes of partition, even though the parties are sui juris. Fullerton v. McArthur, 1 Grant's Cases, 232. Qu., if all the parties are sui juris. It has been held that the Legislature may, by special act, authorize the sale of lands of a decedent to pay his debts. Florentine v. Barten, 2 Wal. 210. The contrary has also been held, and such power denied, unless it were the carrying out of a judicial proceeding ascertaining the debts, &c. Rozier v. Fagan, 46 Ill. 404. And a statute authorizing an administrator to sell the real estate of his intestate for purposes other than the payment of his debts