PART II CHAPTER VIII RESTRICTED MEANING OF THE TERMS LEGISLATIVE, ALTHOUGH the three chief governmental powers of the central and commonwealth governments are vested in three distinct and independent departments, what are legislative, executive or judicial powers within the meaning of the distributing clause, is not defined or expressed in any of the constitutions. The boundary line between them is undefined and often difficult to determine.1 As the succeeding pages will show, the courts, when called upon to determine the exact meaning of the distributing clause, have often construed it as though it provided that powers legislative in their nature are vested in the legislature, powers executive in their nature in the executive department of government, and powers judicial in their nature in the courts; and that the legislature shall never assume powers judicial or executive in their nature, nor the executive department powers legislative or judicial in their nature, nor the judicial department powers legislative or executive in their nature. It must, however, be self-evident that no clear distinction can be based upon the nature of the powers to be exercised by the different departments. 1 State vs. Peters, 43 Ohio St. 629. In the New Hampshire Constitution (pt. ii) an effort has been made to define legislative power, but not with much success. 201] 69 Any act which in effect establishes a rule of civil conduct irrespective of the manner in which, or the body by which, it is enacted, must be conceded to be legislative in its nature. Of such nature are not only the laws passed by Congress and the commonwealth legislatures, but also the rules of practice and the common law principles established by the decisions of courts and the rules and regulations established by the executive department in the exercise of its delegated ordinance power. Powers legislative in their nature are also exercised by various bodies and officers, not belonging to either of the three departments of government, such as the municipal council or other legislative body of a city or village, and the officers having the general control of county affairs, styled in some commonwealths supervisors, in others county commissioners, and in still others chosen freeholders.1 Any act which tends, no matter how indirectly, to the enforcement of a law, or the enforcement of a superior command, is executive in its nature. Powers conceded by theoretical writers to be executive in their nature would not only include the powers exercised by the executive department, but also many powers actually exercised by the legislative and judicial departments, in many cases necessarily, in order to insure their independence. Each one of the three departments must have some appointing power as an incident of its principal power, for without it no department can be independent. Where an appointment is essential to the proper exercise of a judicial duty, the court concerned has authority to make it. Likewise, legislative bodies may elect or appoint officers of their respective branches and relative to their department of government.3 1 Waugh vs. Chauncey, 13 Cal. 11; People vs. Carpenter, 24 N. Y. 86. 2 State vs. Smith, 15 Mo. App. 412; In re Janitor, 35 Wis. 410, relating to the power of a court to appoint its own janitor; State vs. Noble, 118 Ind. 350. State vs. Hyde, 121 Ind. 20; Tenney vs. State, 27 Wis. 388. Powers executive in their nature are also often exercised by administrative officers, or bodies not belonging to either the legislative, judicial or even executive department of government provided for by the constitution.1 Power to hear and to determine, or power to ascertain facts and to apply the law to the facts when ascertained, is judicial in its nature. Powers of such a nature are not only exercised by the courts, but also by the legislative and executive departments, and by various administrative bodies and officers not belonging to either of the three foregoing departments. All departments alike inquire into facts and proceed upon them. Facts are or should be the basis of legislation as well as of judgment, and when there is a doubt or controversy concerning them, the considerate legislator stays his hand until they have been ascertained. So far as the process is concerned, that of the legislator and that of the judge are the same; the difference lies in the use to which the facts are put when found.2 The powers exercised by the legislature in authorizing the sale of lands of persons resting under legal disabilities, and in granting divorces by special laws, are conceded to be judicial in their nature. Of such nature must be presumed to be the power exercised by the legislature in passing upon the validity of claims against the government, and in determining contested election cases.3 The power of removal for cause, often vested in the executive, is judicial in its nature. 1 State vs. Barbour, 53 Conn. 76; Achley's Case, 4 Abb. Pr. 35, which holds that the power conferred upon the common council of a city to appoint to office is executive, and in no sense legislative, and therefore not subject to the veto power of the mayor. 2 Ex parte Shrader, 33 Cal. 279. See Watkins vs. Holman, 16 Pet. 25; Miners' Bk. vs. U. S., Green (Ia.), 553. 3 See State vs. Harmon, 31 Ohio St. 250. The proceedings before the interstate commerce commission, which like the courts regularly publishes its reports, and before the various commonwealth commissions and boards, are of a judicial nature. Assessors in the valuation of property for taxation, town boards of equalization in determining the value of lands,3 commissioners appointed to determine and award damages for property taken by virtue of the right of eminent domain,+ municipal boards authorized to hear and determine claims,5 county commissioners in passing upon claims against the county, school officers in deciding upon the removal of a teacher, or the expulsion of a scholar,' police boards disciplining a member of the police force by reprimand, forfeiture, withholding of the salary, or dismissal, county commissioners in deciding upon the application for a permit to sell intoxicating liquors, and inspectors of elections and boards of registration in deciding upon the existence of the necessary qualifications of a voter, exercise powers judicial in their nature. All hear and determine questions in the exercise of their functions more or less directly affecting private as well as public rights.10 Besides each one of the departments exercising powers in their nature legislative, executive and judicial, there are many administrative officers in every commonwealth vested with like powers." Ex parte Shrader, 33 Cal. 279. 3 Steele vs. Dunham, 26 Wis. 393. 5 Wall vs. Trumbull, 16 Mich. 228. 7 Stephenson vs. Hall, 14 Barb. 222. 9 Fausler vs. Parsons, 6 W. Va. 486. 2 Williams vs. Weaver, 75 N. Y. 30. 10 As to the constitutionality of vesting these administrative powers, judicial in their nature, in officers other than judicial, see Keely vs. Pittsburgh, 104 U. S. 78; Hagar vs. Reclamation District, 111 U. S. 701; Weimer vs. Bunbery, 30 Mich. 201; McMillen vs. Anderson, 95 U. S. 37. These cases decide that administrative process of the customary sort is as much due process of law as judicial process. 11 See Waugh vs. Chauncey, 13 Cal. 11. Judge Cooley, in writing about the classification of public officers, says, "The duties imposed upon officers are supposed to be capable of classification under one of these heads, the legislative, executive or judicial, and to pertain accordingly to one of the three departments of government designated by those names. But the classification cannot be very exact, and there are numerous officers who cannot be classified at all under these heads. The reasons will be apparent if we name one class as an illustration. Taxing officers perform duties which in strictness are neither executive nor judicial, though in some particulars they merely execute the orders of superiors, and in others they judge for themselves what is to be done. But sometimes also their duties partake of the legislative character. All such officers are usually called administrative, while inferior executive officers are designated ministerial." I The revised statutes of New York of 1830 classified officers within the commonwealth as legislative officers, executive officers, judicial officers, and administrative officers. "The powers of such administrative officers as supervisors and county commissioners are sometimes legislative, sometimes judicial, and sometimes executive in their nature. They cannot be classed consistently under any particular head; and so these officers are allowed to perform the duties enjoined upon them by law, without any nice examination into the character of the powers conferred." "The board of supervisors is a special tribunal with mixed powers, administrative, legislative, and judicial."3 "Judicial powers are often conferred upon officers whose general functions are executive or ministerial; and Administrative officers may be 1 The Southern Law Rev., vol. 3 (N. S.) 531. ministerial officers. It would therefore be advisable to employ the term administrative as indicated hereafter. The term ministerial should be used only in contradistinction to discretionary or judicial. * State vs. Com'rs, 7 Nev. 392; People vs. El Dorado, 8 Cal. 58. United States vs. Arredendo, 6 Pet. 691, 729. |