country where forms are often overlooked, lead to very serious consequences. * To this we shall again have occasion to refer, when we come to speak of retrospective statutes. So again, as to legislative acts affecting private property. By constitutional provisions generally adopted, private property can be taken for public uses, on certain terms. But can it be taken for private uses? Is an act depriving one man of his property for the benefit of another, a law? Does it come within the scope of the legislative, or of the judicial functions? Nor are these merely speculative or abstract questions. We shall find them presenting themselves in a large class of cases which I am about to examine. The difficulty, generally, appears to have arisen from a want of clear perception as to the true nature of a law; or, in other words, a want of accurate notions as to the boundary line which, under our system, divides the legislative and judicial powers. I now turn to a more detailed consideration of the cases in this country where these questions have been considered, and which, so far as they go, tend to give a practical definition to the term law, and to define the boundaries which separate the legislative from the judicial power. And first, of cases where the legislature has sought to divest itself of its real powers. Efforts have been made, in several cases, by the State legislatures to relieve themselves of the responsibility of their functions, by submitting statutes to the will of the people, in their primary capacity. But these proceedings have been held, and very rightly, to be entirely unconstitu * Syracuse City Bank vs. Davis, 16 Barb. S. C. R. 188; 1 Kent's Com. p. 455. tional 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 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 *Thorne vs. Cramer, 15 Barb. 112; Barto vs. Himrod, 4 Seld. 483. + Parker vs. Commonwealth, 6 Barr. 507. 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. This practice has encountered similar opposition, and has been unfailingly and severely discountenanced. The legislature is to con * Maize vs. 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 vs. 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 vs. Halstead, 10 Wheaton, 51, where the delegation of power, as faras the process of the courts was concerned, was expressly held valid. fine itself to making laws, and cannot make decrees or determine private controversies. It has been said, that which distinguishes a judicial from a legislative act is, that the one is a determination of what the existing law is in relation to some particular thing already done or happened, while the other is a predetermination of what the law shall be for the regulation and government of all future cases falling under its provisions.* This, like other definitions on this subject, may be defective; but the general idea is correct, and the efforts of the courts to repress the State legislatures within their proper limits, are very curious and instructive. It is difficult precisely to classify these objectionable laws, but they will be found, generally, to range under three heads: First, Where the legislature, by a special act, has sought to dispense with a general law in favor of an individual; Second, Where the act is one of legislation for a particular case; Third, Where the act is, in its nature judicial, i. e. seeks to influence, directly or indirectly, the determination of private controversies. In these cases the judiciary have, with an intelligence and firmness that do them great honor, frequently interposed to arrest the operations of the State legislatures; and the legislatures, with equal intelligence and virtue, have, in a great majority of cases, recognized the wisdom and propriety of the judicial interference, and have, without contest or reluctance, made their action conform to the decisions of the courts. So in Vermont, an act of the Assembly releasing a debtor imprisoned on execution at the * Bates vs. Kimball, 2 Chip. 77. suit of a party, from his imprisonment, and freeing his body from arrest for a limited time, has not the characteristics of a law, and is void. And the court say, "A prescribed rule of civil conduct, is the correct and universally approved definition of municipal law."* So in the same State, a special act of the legislature, granting to a party the privilege of an appeal from a decision of the commissioner on claims of an insolvent estate, after the time allowed by law for taking appeals in such cases, is void, "as being in the nature of a sentence or decree rather than a law, wholly retrospective in its operation, and taking away a vested right."+ So in the same State, the legislature has been held to have no power to pass an act authorizing a probate court to renew a commission appointing commissioners upon the estate of a deceased person, after the commission has been closed, and after the expiration of the time limited by the general law for its renewal. So in Massachusetts, where the Declaration of Rights declares (Art. 20), that the power of suspending the laws or the execution of the laws, ought never to be exercised but by the legislature or by authority derived from it, to be exercised in such particular cases only (which means upon such particular laws) as the legislature shall expressly provide for,-it has been held, that a resolve of the legislature, empowering a judge of probate to take an administration bond in a mode differing from that prescribed by the general laws of * Ward vs. Barnard, 1 Aik. 121; Keith vs. Ware, 2 Verm. 175, decides the same point; see also, Lyman vs. Mower, 2 Verm. 517; and Kendall vs. Dodge, 3 Verm. 361. † Staniford vs. Barry, 1 Aik. 315. So a general act of the same kind is void, Hill vs. Town of Sunderland, 3 Verm. 507. Bradford vs. Brooks, 2 Aik. 284. |