belong either to the legislative or the executive department as those departments are defined and limited in the constitution.' The power of allotting to the different departments of government their appropriate functions is a legislative power, ⚫ and in so far as the distribution is not made in the constitution, the power to make it is vested in the general assembly as the depositary of the legislative power of the commonwealth. It follows that in many cases power may appropriately be assigned to and exercised by either of the departments. Thus, as will subsequently appear, the legislature may prescribe rules of practice for the courts, or may authorize the courts to make them. It may vest the power of removing officers for cause, whether such power be considered administrative or judicial, in the governor,3 in the courts, or in inferior administrative bodies. The power to try contested elections may be vested in the courts or assumed by the legisla ture. There are powers strictly legislative, others strictly executive, and others strictly judicial, while still others may be exercised by one department or by another, as the law may provide.

The constitutions do not define the extent or prescribe the limits of judicial power. The judicial power is, in our constitutions, whatever the laws of the commonwealth from time to

1 People vs. Provines, 34 Cal. 520. This entire subject is more fully considered hereafter. It is submitted that much would be gained if we would apply the term administrative to all officers not belonging either to the executive, the legis lative, or the judicial department, and to all powers not vested by the constitution in either of the departments. The following generalization would then result from the distributing clause: The legislature may assume or delegate to the executive or the courts, or even to a single administrative authority, all or any administrative powers, be they legislative, executive or judicial in their nature; and any administrative power properly exercised by the legislature, the courts or the executive becomes by force of the clause legislative, judicial or executive, and therefore would be beyond the control of any other authority.

2 State vs. Harmon, 31 Ohio St. 250; Smith vs. Normant, 5 Yerg. 271.

State vs. Peterson, 52 N. W. 655.

State vs. Harmon, 31 Ohio St., 250.

time declare it to be. When any subject is declared by law to be of judicial cognizance, it becomes a part of the judicial power, in the only sense in which that term in the constitution can have any practical operation. Other departments of government, while it so remains a judicial power, are forbidden to exercise it. No subject, although in its nature judicial, can under our constitutions be regarded as coming within the judicial power, unless it has been assigned to the judicial department. Therefore a divorce is to be regarded as neither strictly a judicial nor a legislative act; and there is no reason why the granting of a divorce may not be either a legislative or a judicial act-legislative when it is performed as a mere exercise of sound discretion for the good of the parties and the public, and judicial when the divorce is demanded as a right under established law in consequence of some breach of duty committed by the offending party.1

Whenever a power is not distinctly either legislative, executive or judicial, and is not by the constitution confided to a designated department of the government, the mode of its exercise and the agency must necessarily be determined by law, in other words, must necessarily be under the control of the legislature.2

As already said, any power, whatever its nature, necessarily takes its character from the department to which it is assigned by the constitution or the legislature.

Whatever emanates from a judge as such, or proceeds from courts of justice, is judicial,3 and whatever power or duty is imposed upon the executive department is executive, and therefore free from interference by the other branches of the government. Certain powers may be exercised by either of the three departments or by any administrative authority; but,

1

2

361.

Op. of Justices, 16 Me. 479; Adams vs. Palmer, 51 Me. 480.

Cooley's Principles of Constitutional Law, p. 44; Ross vs. Whitman, 6 Cal.

In re Cooper, 22 N. Y. 67.

Attorney-General vs. Brown, I Wis. 513.

when vested in the courts, they become judicial. The power to try contested elections, when vested in the courts, is judicial; when it is not so vested, but is assumed by the legislature, it is legislative and may not be controlled by the courts." The exercise of the power of eminent domain vested in county and township boards, and in corporations, is not the exercise of judicial power, within the meaning of the constitution, while the exercise of the same power by the courts, if vested in them, would be judicial.3

Attributing to the terms of the distributing clauses their properly restricted meaning, it follows that the legislature may delegate to administrative authorities administrative powers, judicial in their nature, of a very far-reaching character.

Whenever the legislature creates a new right, it may grant it, subject to any conditions which it sees fit to impose. Thus Congress, having full control over the right of aliens to enter or to remain in the United States, may make the right depend upon the decision of any authority, and may make the decision of such authority final and conclusive even upon the courts.4

Among the many powers of a far-reaching nature vested in officers not belonging to any of the departments of government, is that of administrative officers to impose penalties for the violation of law,5 and even to arrest for such violation without resort to the courts, as in the case of non-payment of

taxes.7

1 In re Cooper, 22 N. Y. 67.

2 State vs. Harmon, 31 Ohio St. 250.

Ibid. In re City of Buffalo, 139 N. Y. 422, indicates how far the court, in the exercise of the power of eminent domain, acts by virtue of power delegated to it by the Constitution, and how far by virtue of administrative power delegated to it by the legislature. See In re Hall, 5 Pa. St. 204.

4 In re Howard, 63 Fed. Rep. 263; U. S. vs. Rogers, 65 Id. 787.

5 Cooley on Taxation, p. 457; Parker and Worthington, Public Health and Safety, p. 103.

6 Commonwealth vs. Byrne, 20 Gratt. 165-198.

7 Cooley on Taxation, p. 437. For other examples of administrative execution without judicial process, see Goodnow's Administrative Law, vol. 2, p. 127.

Where the legislature vests important administrative powers in an administrative body or officer, the practice is now becoming popular of granting to individuals a right to appeal from the decision of such body or officer, to an administrative body or officer of a higher grade, and in some instances even to one of the departments.

Thus the United States patent law allows an appeal from the decision of an examiner rejecting an application for a patent to the examiner-in-chief; then from the decison of the examiner-in-chief, confirming the rejection, to the commissioner; and, in certain cases, from his decision, if adverse to the applicant, to the Supreme Court of the District of Columbia.'

The income tax law of August 29, 1894 (Sec. 29), authorized any person feeling aggrieved by the decision of a deputy collector as to the amount of income liable to be taxed, to appeal to the collector of the district, and from his decision to the commissioner of internal revenue.2

The customs administrative act of June 10, 1890, gives to the circuit courts of the United States power to reverse or amend the decisions, even of fact, of the Board of General Appraisers as to the classification for duty under the act.3

In the State of New York, if a person feels aggrieved by the decision of assessors as to the value of his property for purposes of taxation, courts may, on certiorari, reverse or amend the decision of the assessors on grounds of illegality, unfairness or disproportionality.4

Some judges have been at a loss to understand how the legislature may ultimately vest in the courts powers primarily vested in an administrative officer.

A statute passed by the legislature of New York in 1893,

1 U. S. Rev. St., secs. 4910-4912.

U. S. vs. Land Co., 148 U. S. 31.

See Butterworth vs. U. S., 112 U. S. 50;

2 The decision declaring the law unconstitutional was not based on this provision.

3 U. S. Laws, 1889-1890, chap. 407, sec. 15.

N. Y. Laws, 1880, chap. 209.

provides that courts in certiorari proceedings may command a board of excise to grant a license to an applicant upon the payment of the proper license fee.

The court, in construing this act, on one occasion declared that the legislature was without power to require courts or the judges thereof to perform other than judicial duties, and that it seemed that a provision of law which required courts to pass upon facts and reasons upon which a board of excise took action, apart from alleged errors of law, would be unconstitutional, as imposing upon the courts other than judicial func

On a subsequent occasion, the court said it seemed. that the legislature could not assign to the courts, or to the justices thereof, the performance of administrative duties, such as are devolved upon boards of excise, boards of health, and boards of supervisors. It held that since the statute vested a discretion in the court, the court was not required to usurp a non-judicial function.3

In construing the distributing clause, the courts have formulated certain general definitions and rules of construction, which are more or less relied upon in their decisions.

It is said, "The difference between the departments undoubtedly is that the legislature makes, the executive executes, and the judiciary construes the laws." It is the province of the legislature, "jus dare, non dicere;" of the judiciary, "jus dicere, non dare." "The distinction," says Justice Field in the Sinking Fund Cases," between a judicial and legislative act is well defined. The one determines what the law is, and what the rights of the parties are with reference to transactions already had; the other provides what the law shall be in future cases arising

1 Laws, 1893, chap. 481. The New York election laws likewise provide for a review by the supreme court, or any of its justices, of the acts and determinations of certain election officers. Laws of 1895, chap. 810, sec. 1, § 56.

'People vs. Waters, 4 Misc. Rep. 1.

3 People vs. Dalton, 9 Misc. Rep. 249.

Per. Ch. J. Marshall, Wayman vs. Southard, 10 Wheat. 46.