point unequivocally to the retail trade, making sales in small quantities to consumers as the business for which a license is required; and, taking the law as a whole, we conclude the legislature 115 did not intend to depart from the former policy of the state and require licenses for any but the retail trade."

The act of 1887, with its various amendments (Gen. Stats. 1895, secs. 1990-1993) applies only to the sale of intoxicating liquors in quantities of less than five gallonsthat is, to the retail liquor business; and an examination of the subsequent legislation discloses nothing which leads us to think that there has been any change of policy. The evident object of the statute under consideration is to prohibit sales in small quantities, and this intention is expressed in the first section of the act. By disregarding the word "not" in section 2 the provisions are thus made consistent, and the entire statute is brought into harmony with the general policy of the state.

The other ground assigned for reversal is that the act is unconstitutional, in that it is in conflict with section 1, article 3 of the state constitution, which reads as follows: "The powers of the government shall be divided into three distinct departments-legislative, executive and judicial; and no person or persons belonging to or constituting one of these departments shall exercise any of the powers properly belonging to either of the others, except in the instances expressly provided in this constitution."

The construction and application of this provision of the constitution has been frequently before this court: Sanborn v. Commissioners of Rice County, 9 Minn. 258 (273); In re Application of Senate, 10 Minn. 56 (78); Home Ins. Co. v. Flint, 13 Minn. 228, (244); Rice v. Austin, 19 Minn. 74 (103), 18 Am. Rep. 330; State v. Young, 29 Minn. 474, 9 N. W. 737; State v. Ueland, 30 Minn. 29, 14 N. W. 58; State v. Simons, 32 Minn. 540, 21 N. W. 750; Foreman v. Board of County Commrs., 64 Minn. 371, 67 N. W. 207; McGee v. Board of County Commrs., 84 Minn. 472, 86 N. W. 6; State v. Crosby, 92 Minn. 176, 99 N. W. 636. As a general proposition of law the legislature cannot delegate legislative powers to the judiciary or require the judges of the various courts of the state to do any acts which are not in their nature judicial: Kilbourn v. Thompson, 103 U. S. 168, 26 L. ed. 377, and cases there cited; Case of Super

visors of Election, 114 Mass. 247, 19 Am. Rep. 341; State v. Barker, 116 Iowa, 96, 93 Am. St. Rep. 222, 89 N. W. 204, 57 L. R. A. 244.

116 But it is not always easy to discover the line which marks the distinction between executive, judicial, and legislative functions, and when duties of an ambiguous character are imposed upon a judicial officer, any doubt will be resolved in favor of the validity of the statute, and the powers held to be judicial: Foreman v. Board of County Commrs., 64 Minn. 371, 67 N. W. 207. In many instances the acts which are to be done require the performance of functions, some of which are judicial and others legislative or executive, and these are often so interwoven and connected that they cannot readily be separated and distinguished. When this is the case the court will not attempt to unravel the combination, but will sustain the act as against the constitutional objection: McGee v. Board of County Commrs., 84 Minn. 472, 86 N. W. 6; State v. Crosby, 92 Minn. 176, 99 N. W. 636.

In State v. Crosby, 92 Minn. 176, 99 N. W. 636, where the constitutionality of the ditch law was sustained, Justice Brown said: "The authorities are numerous sustaining statutes which impose upon the courts powers involving the exercise of both judicial and legislative functions, such as the condemnation of land for public purposes, the appointment of commissioners of election in proceedings for adding territory to municipal corporations, and laying out and establishing highways. The proceedings provided for by the statute under consideration involve the exercise of both legislative and judicial powers. The question of the propriety or necessity of public ditches to drain marshy or overflowed lands is one of legislative character. The condemnation of land through which such ditches may be constructed, the assessment of damages, and the determination of the legal rights to parties affected, are judicial. The exercise of all these powers is involved in proceedings under this statute."

Some confusion in the authorities has resulted from the unwarranted assumption that all the functions of government must necessarily be either executive, legislative, or judicial in their nature, and therefore referred by the constitutional provision to one or the other of the three departments of government. It may very well be true that the

duty imposed by a statute such as the one under consideration is neither the one nor the other. The constitution has referred legislative power to the legislature, executive power to the executive, and judicial power to the judiciary; but it has nowhere declared that all the powers which are necessary for the proper government of the commonwealth are included 117 in this classification. Analyzing the constitutional provision, we find it consists of (1) a distributive clause, "The powers of government shall be divided into three departments, legislative, executive and judicial"; (2) a prohibitive clause, "No person or persons belonging to, or constituting one of these departments shall exercise any of the power properly belonging to either of the others"; and (3) an exception clause, "Except in the instances expressly provided in this constitution." The constitution does not attempt to make an abstract distribution of governmental functions. It merely assigns such as are of recognized character to the departments which are created by it for their convenient and effective exercise.

The theory of the distribution of governmental functions is certainly as old as Aristotle (Politics, bk. 6, c. 11, sec. 1), and has been a controlling principle and accepted doctrine of political science since it was elaborated by Montesquieu in his Spirit of Laws. The belief in its importance was never stronger than during the latter part of the century, when our national constitution was formed and the government established: See 1 Blackstone's Commentaries, 146, 154 (Hammond's ed., pp. 362, 371); 2 Woolsey, Pol. Sci., p. 259; Maine's Popular Government, 219; Montesquieu on Spirit of Laws (Nugent's Trans.), b. 11, c. 6; The Federalist, Nos. 47, 48, 51. But the founders were too intensely practical to be controlled by any political theory, and, while they recognized the principle in constructing the framework of the government, they violated it in practice and so distributed the powers as to create a system of checks and balances: See Mason on Veto Power. The principle formulated by Montesquieu still lies at the base of most political organizations of the present day, but during the last century the tendency of political science has been to discard it in its extreme form, because, as said by Goodnow, "It is incapable of accurate statement, and because it seems to be impossible to apply it with beneficial results in the formation of any concrete political organization. The

flaw in Montesquieu's reasoning and in that of his followers was in the assumption that the expressions of the governmental power by different authorities were different powers": Goodnow, Adm. Law, 20, 21. The recent tendency of legislatures and courts is commented on by Justice Brown in State v. Crosby, 92 Minn. 176, 99 N. W. 636. The present attitude of the courts toward questions arising under this constitutional provision is well expressed by the supreme 118 court of North Carolina: "While . . . . the executive, legislative, and supreme judicial powers of the government ought to be forever separate and distinct, it is also true that the science of government is a practical one. Therefore, while each should firmly maintain the essential powers belonging to it, it cannot be forgotten that the three co-ordinate parts constitute one brotherhood, whose common trust requires a mutual toleration of the occupancy of what seems to be a 'common because of vicinage' bordering on the domains of each': Brown v. Turner, 70 N. C. 93.

It is well to recognize the fact that "there are a multitude of governmental duties which have never been, and cannot possibly be, performed either by the legislature or by the governor, and which are certainly not prescribed by the constitution to the judiciary": Paul v. Gloucester County, 50 N. J. L. 585, 15 Atl. 272, 1 L. R. A. 86; Bluntschli on Theory of the State, c. 7. The constitutional provision has no application to acts of this character. It applies only to the powers which because of their nature are assigned by the constitution itself to one of the departments exclusively: Ross v. Board of Freeholders, 69 N. J. L. 291, 55 Atl. 310; Eckert v. Perth Amboy etc. R. Co., 66 N. J. Eq. 437, 57 Atl. 438. The powers not thus assigned remain properly under the control of the legislature. As said by Black: "There may be cases in which a particular power cannot be said to be either executive, legislative or judicial; and if such a power is not by the constitution unequivocally intrusted to either the executive or judicial departments of the government, the mode of its exercise and the agency must necessarily be determined by law-that is, by the legislature": Black's Constitutional Law, 74. See, also, Cooley's Constitutional Limitations, 2d ed., 42, 43; McClain's Constitutional Law in United States, sec. 24; Bridges v. Shallcross, 6 W. Va. 562; Field v. People, 2 Scam. 79; People v. Hurlbut, 24 Mich. 44, 9 Am. Rep. 103.

An examination of the authorities in this country suggests the thought that in some instances the courts have assumed that the separation of the powers of government into three classes results from the application of a natural, instead of a conventional, rule. Such a theory leads to strained and artificial reasoning, and induces a system of construction which denies proper force and effect to the constitutional provision. If the powers which are conferred upon the judge of the district court and the chairman of the board of county commissioners by 119 the act under consideration are neither necessarily executive, legislative, nor judicial, the act is not in violation of section 1, article 3, of the constitution of the state. The same conclusion follows, under the previous decisions of this court, if the acts to be performed are of an ambiguous character, or are in part judicial and in part executive or legislative. We therefore hold that chapter 346, page 626, of the Laws of 1905 is effective and constitutional.

The order appealed from is affirmed, and it is ordered that the relator be remanded to the custody of the respondent.

The Questions Involved in the Principal Case were presented to the same court in State v. Braun, 96 Minn. 521, 105 N. W. 975, which, in rendering its decision, so far as the same points were involved, approved and followed the principal case.

In the Construction of Statutes a word which evidently is an interpolation and which is without sensible meaning may be disregarded: Paxton etc. Land Co. v. Farmers' etc. Land Co., 45 Neb. 884, 50 Am. St. Rep. 585. As to which of two conflicting provisions in a statute, the first or the last, should be given effect, see Calhoun Gold Min. Co. v. Ajax Gold Min. Co., 27 Colo. 1, 83 Am. St. Rep. 17.

On the Delegation of Nonjudicial Duties to the courts, see Miller v. Enterprise Canal etc. Co., 142 Cal. 208, 100 Am. St. Rep. 115; State v. Barker, 116 Iowa, 96, 93 Am. St. Rep. 222; State v. George, 22 Or. 142, 29 Am. St. Rep. 586; Carter v. State, 42 La. Ann. 927, 21 Am. St. Rep. 404. It has been held that a statute providing that when as many voters of a county as represent one-half of the votes cast at the last election for governor shall petition the circuit court to submit the question of granting liquor licenses at the next congressional, election, the court shall issue an order to the sheriff for an election on that question, requires the court to perform nonjudicial duties: Board of Supervisors v. Todd, 97 Md. 247, 99 Am. St. Rep. 438.