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to have been intended by the party or people who are the original source of the power.
$ 68. The legislative department as an integral part of our political system is confined to the exercise of its proper powers, and possesses them exclusively, as the other departments severally have theirs. As the possessor of the law-making power, it may confer authority and impose duties upon the others and regulate the exercise of their several functions. It may pass general laws for that purpose, giving them expressly or by necessary implication an incidental discretion to employ the proper means to fill up and regulate the details for themselves and subordinates, though the exercise of that discretion be quasi legislative. This is illustrated by laws empowering the courts in the exercise of their jurisdiction to adopt rules of practice and forms of procedure;' and by the powers
1 Wayman v. Southard, 10 Wheat. 1; islature without the intervention of Bank of United States v. Halstead, the courts; yet it is not alleged that id. 51; Coleman v. Newby, 7 Kan. 88; the power may not be conferred Anderson v. Levely, 58 Md. 192; on the judicial department. Thompson v. Floyd, 2 Jones' L. 313; “The line has not been exactly Ross v. Duval, 13 Pet. 45.
drawn which separates those imporIn Wayman v. Southard, supra, tant subjects which must be entirely Marshall, C. J., said: “It will not be regulated by the legislature itself, contended that congress can delegate from those of less interest, in which to the courts, or to any other tribunal, a general provision may be made, powers which are strictly and exclu- and a general power given to those sively legislative. But congress may who are to act under such general certainly delegate to others powers provisions to fill up the details. The which the legislature may rightfully seventeenth section of the judiciary exercise itself. Without going fur- act of 1787, ch. 20, enacted “That all ther for examples, we will take that the said courts shall have power to the legality of which the counsel for make and establish all necessary the defendants admit. The seven- rules for the orderly conducting busiteenth section of the judiciary act, ness in the said courts, provided such and the seventh section of the addi- rules are not repugnant to the laws tional act, empower the courts re- of the United States ;' and the sevspectively to regulate their practice. enth section of the act referred to as It certainly will not be contended the additional act (act 1793, ch. 22, that this might not be done by con- $7) details more at large the powers gress. The courts, for example, may conferred by the seventeenth section make rules directing the returning of the judiciary act. These sections of writs and processes, the filing of were held to give the court full jurisdeclarations and other pleadings, and diction over all matters of practice." other things of the same description. The question in this case related to It will not be contended that these execution. things might not be done by the leg- “A general superintendence,” say
granted to the president in such cases as that disclosed in Houston v. Moore. An act of congress authorized the presi
' dent in certain exigencies to call forth such number of the militia of the states most convenient to the scene of action as he might judge necessary, and to issue his orders for that purpose to such officers of the militia as he should think proper.? It prescribed a punishment for failing to obey the orders of the president as an offense against the laws of the United States. Another conspicuous example of such discretion confided to the president was the act of congress in 1963 empowering him to suspend the writ of habeas corpus.'
The true distinction is between the delegation of power to
the court, “over this subject seems to discretionary power, where does the be properly within the judicial prov- supreme court get authority to say ince, and has always been so consid- that the district court shall not be ered. It is, undoubtedly, proper for clothed with such discretionary the legislature to prescribe the man- power by making rules limiting that ner in which these ministerial offices discretion? It is not in the nature of shall be performed, and this duty will things for one court to exercise disnever be devolved on any other de- cretion for another court; and if it partment without urgent reasons. cannot, who shall say that it can, as But in the mode of obeying the man- a judicial act or otherwise, make date of a writ issuing from a court rules limiting or regulating the deso much of that which may be done cision of another court? An attempt by the judiciary, under the authority to do so is an attempt to legislate. of the legislature, seems to be blended It is claimed, however, that the legiswith that for which the legislature lature have authorized the supreme must expressly and directly provide, court to make rules for the district that there is some difficulty in dis- court; but this the legislature could cerning the exact limits within which not do if they would. The making the legislature may avail itself of the of rules is not a subject of judicial agency of its courts. The difference power, as has already been shown; between the departments undoubt- and the legislature cannot bring edly is, that the legislature makes, under the judicial power a matter the executive executes, and the judi- which from its nature is not a subject ciary construes the law; but the for judicial determination.” Murmaker of the law may commit some- ray v. Hoboken Land Imp. Co., 18 thing to the discretion of the other How. 284; Auditor of State v. 1. T. departments, and the precise bound- & S. Fe R. R. Co. 6 Kan. 500. ary of this power is a subject of deli- 15 Wheat. 1. cate and difficult inquiry, into which 2 Act 2d May, 1862. a court will not enter unnecessarily." 3 In re Griner, 16 Wis. 423.
In Coleman v. Newby, supra, Val- 4 In re Oliver, 17 Wis. 681; Coe v. entine, J., said: “If the legislature Schultz, 47 Barb. 64; Hildreth v. says that the district courts shall, in Crawford, 63 Iowa, 339; 21 N. W. certain cases, be clothed with certain Rep. 667.
make the law which involves a discretion as to what the law shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.
$ 69. What is a delegation of legislative power?-- The constitution vests this power in the legislature; it must there remain by force of the constitution. It is exclusively vested in the legislature. The legislature cannot divest itself of the power, nor impart it to others, except in accordance with this distinction, though there are some recognized exceptions which will presently be considered. Legislative power is delegated contrary to the maxim stated when the legislature attempts to confer on others a power of substantive legislation, to be exercised independently or in conjunction with the legislature, or when it constitutes an inferior legislature or law-making body. An instance of such delegation is furnished by the case Slinger v. Henneman.? A section of a statute relative to dogs made the owner of any dog liable to the owner of domestic animals wounded by it for the damages without proving a knowledge of its vicious disposition; by a provision of the act, power was given to the board of supervisors to determine whether or not during the current year their county should be governed by the provisions of the act of which that section constituted a part. It was held that the legislature could not confer that power. The court pertinently remark that it could no more confer such a power than to authorize the board of supervisors of a county to abolish in such county the days of grace on commercial paper, or to suspend the statute of limitations. A similar statute in Missouri was held void for the same reason. A general statute formulating a road system contained a provision that “if the county court of any county should be of opinion that the provisions of the act should not be enforced, they might, in their discretion, suspend the operation of the same for any specified length of time; and thereupon the act should become inoperative in such county for the period specified in such order, and thereupon order the road to be opened and kept in good repair under the
1 Cincinnati, etc. R. R. Co. v. Com- 2 38 Wis. 504, 508-510. niissioners, 1 Ohio St. 77.
3 State v. Field, 17 Mo. 529.
laws theretofore in force.” Gamble, J., said, “this act, by its own provisions, repeals the inconsistent provisions of a former act, and yet it is left to the county court to say which act shall be in force in their county. The act does not submit the question to the county court as an original question, to be decided by that tribunal, whether the act shall commence its operation within the county; but it became by its own terms a law in every county not excepted by name in the act. It did not then require the county court to do any act in order to give it effect. But being the law in the county, and having by its provisions superseded and abrogated the inconsistent provisions of the previous laws, the county court is empowered to suspend this act, and revive the repealed provisions of the former act. When the question is before the county court, for that tribunal to determine which law shall be in force, it is urged before us that the power then to be exercised by the court is strictly legislative power, which, under our constitution, cannot be delegated to that tribunal or to any other body of men in the state. In the present case the question is not presented in the abstract; for the county court of Salem county, after the act had been for several months in force in that county, did, by order, suspend its operation; and during that suspension, the offense was committed which is the subject of the present indictment."
$ 70. Exceptions which have been established. There are some valid delegations of legislative power. Congress has delegated it to territorial governments; other legislatures have delegated it to municipalities. Congress has power to annul territorial legislation; so state legislatures may annul municipal laws; but the annulling act has only the effect of a repeal. They are valid until annulled; they are not thus made void from the beginning. The delegation of legislative power to cities is a limited one— to make by-laws or ordinances; but still a delegation of legislative power. The delegation of power in these instances is to formulate and put in force rules of civil conduct of more or less scope. The territorial grant extends to “all rightful subjects of legislation;” it is granted as broadly as by constitutions to the state legislatures. The power to legislate for the territories was granted to congress by the fed
1 Kelly v. Meeks, 87 Mo. 396; S. C. 13 Am. & Eng. Corp. Cas. 220.
eral constitution. The delegation of it to the territorial government is a departure from the general rule, but consistent with the principles which support the rule; for it is a concession of the right of self-government to those who would otherwise have no voice in making the laws which govern them. The delegation of this power to municipalities is justified on the ground of presumed intention of the people, from the immemorial practice in this country and in England of creating their local governments. These departures decentralize the governing power; the governed have thus a direct voice in the regulation of their local affairs.
Dred Scott v. Sandford, 19 How. rules for the orderly conduct of busi393; National Bank v. County of ness in a court of justice is a legisYankton, 101 U. S. 129.
lative power, and yet it has often 2 Trigally v. Mayor, etc. 6 Cold. 382; been intrusted to the courts themClarke v. Rochester, 28 N. Y. 605; selves with the approbation of everyCooley's Con. Lim. 143. This subject body. The truth is, that in the manis thus discussed by Battle, J., in agement of all the various and miThompson v. Floyd, 2 Jones' L. 313: nute details which a highly civilized "Neither is it necessary for us to con- and refined society requires, the gensider the general question whether eral assembly must have, and are the general assembly can delegate universally conceded to have, the any portion of its legislative func- power to act by means of agents, tions to any man or set of men act- which agents may be either individuing either in an individual or corpo- als or political bodies, most generally rate capacity. That it may has been the latter. Without such power the too long settled and acquiesced in by legislature would be an unwieldy every department of the govern- body, incapable of accomplishing ment and by the people to be now one-half of the great purposes for disputed or even discussed. The tax- which it was created. ing power is unquestionably a legis- "The act [in question] authorized lative power, and one of the highest the county court to ascertain a importance, and yet it has, ever since fact, i. e., whether a majority of the adoption of the constitution, been them were in favor of surrenderpartially delegated to the justices of ing the jurisdiction of having jury the county courts and to every in- trials in that court, and in the corporated city, town and village event of the fact being thus found, throughout the state. The power to enacted that thereafter such jurispass laws and ordinances for the gov- diction should be taken from them ernment of the members of a corpo- and vested exclusively in the suration is a legislative power, and yet perior court of the county. When no person has yet thought it an in- the fact was ascertained and the confringement of the constitution for sequence ensued, the county courts the legislature to confer the power of were functi officio — had no further making by-laws upon the corpora- power over the matter; they had not tion itself. The power of prescribing in any proper sense legislative power."