Art. 2d. The inhabitants of the said territory, shall always be entitled to the benefits of the writ of habeas corpus, and of the trial by jury; of a proportionate representation of the people in the legislature, and of judicial proceedings according to the course of the common law. All persons shall be bailable, unless for capital offences, where the proof shall be evident, or the presumption great. All fines shall be moderate; and no cruel or unlawful punishments shall be inflicted. No man shall be deprived of his liberty or property, but by the judgment of his peers, or the law of the land, and should the public exigencies make it necessary, for the common preservation, to take any person's property, or to demand his particular services, full compensation shall be made for the same. And in the just preservation of rights and property, it is understood and declared, that no law ought ever to be made, or have force in the said territory, that shall, in any manner whatever, interfere with, or affect private contracts or engagements, bona fide, and without fraud previously formed.

Art. 6th. There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes, whereof the party shall have been duly convicted.

III

LAW-MAKING POWERS OF THE GENERAL

ASSEMBLY

THE General Assembly of Iowa was first organized under the Constitution of 1846: it was continued with the same name and with substantially the same powers under the Constitution of 1857. And so, for present purposes it will be unnecessary to consider this law-making body historically by constitutional periods. In this paper it will be sufficient to indicate in general the constitutional status of the State government and to discuss in particular the statute-making powers of the General Assembly under the present Constitution.

Fundamental principles of constitutional law relative to the status of State government have come to be fairly well defined and generally recognized. Thus it is well understood that State government is constitutional government; that it must be republican in form; that its general principles are codified in a written instrument; that it emanates from the people and has only such authority as is granted by the sovereign people; that it is a government of general powers which are granted in general terms; that its general grant of power is limited expressly and impliedly by provisions of the Federal Constitution and by provisions of the State Constitution; that in construing the powers of a State government the courts will follow the rule that what is not denied either by express provision or by implication is granted. From these principles of constitutional law it follows that the

authority of any branch of the State government consists of the general powers conferred upon that department by the State Constitution, subject to the limitations found in both the State and the Federal Constitution.

As to the historical origin of legislative authority it is well understood that the law-making powers of the British Parliament descended to the American State legislatures; but no law-making assembly in this country has ever claimed for itself the omnipotence of Parliament. State legislatures are not sovereign law-making bodies: deriving their authority from the people, they are distinctly limited in the extent and exercise of law-making power by written constitutions. The extent of their power is measured by the constitutional limitations imposed.

There are, says Cooley, two fundamental rules by which the extent of the legislative authority in the States may be measured, namely:

1. In creating a legislative department and conferring upon it the legislative power, the people must be understood to have conferred the full and complete power as it rests in, and may be exercised by, the sovereign power of any country, subject only to such restrictions as they may have seen fit to impose, and to the limitations which are contained in the Constitution of the United States. The legislative department is not made a special agency for the exercise of specifically defined legislative powers, but is intrusted with the general authority to make laws at discretion.

2. But the apportionment to this department of legislative power does not sanction the exercise of executive or judicial functions, except in those cases, warranted by parliamentary usage, where they are incidental, necessary, or proper to the exercise of legislative authority, or where the constitution itself, in specified cases, may expressly permit it. Executive power is so intimately connected with legislative, that it is not easy to draw

a line of separation; but the grant of the judicial power to the department created for the purpose of exercising it must be regarded as an exclusive grant, covering the whole power, subject only to the limitations which the constitutions impose, and to the incidental exceptions before referred to. While, therefore, the American legislatures may exercise the legislative powers which the Parliament of Great Britain wields, except as restrictions are imposed, they are at the same time excluded from other functions which may be, and sometimes habitually are, exercised by the Parliament. 15

Judicial opinions concerning the nature, extent, and limitations of the statute law-making power of the State legislature are great in number: indeed, it would be difficult to estimate the volume of decisions, State and Federal, which deal in a practical way with this subject.16 At the same time the conclusions of the courts are for the most part clear and uniform. Thus it is well settled that, with the exception of certain powers delegated to Congress or denied to the States by the Federal Constitution, an absolute and uncontrolled law-making authority resides in the people of the States who may exercise it directly themselves or delegate its exercise wholly or in part to others; that for the exercise of legislative authority the people, through their State Constitutions, have created law-making assemblies or legislatures; that in delegating authority to the legislature the people commit to that body the whole of the law-making power of the State except what they expressly or impliedly withhold; that legislative power is granted to the State legislature in general terms, and that "a prohibition to exercise a particular power is an exception"; " that "plenary power in the legislature for all purposes of civil government is the rule"; 18 that the powers of a State legislature are

limited by express prohibitions in the Federal Constitution, by express prohibitions in the State Constitution, and by implied prohibitions in both the Federal and the State Constitution; and that "the frame of government; the grant of legislative power itself; the organization of the executive authority; the erection of the principal courts of justice, create implied limitations upon the law making authority as strong as though a negative was expressed in each instance."'19

It is equally well settled that the legislative authority does not extend beyond the territorial limits of the State; that no legislature can enact irrepealable statutes; that "the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority";20 that the creation of municipal corporations with power to make local regulations does not trench upon the maxim that legislative power can not be delegated; that "a statute may be conditional, and its taking effect may be made to depend upon some subsequent event";21 and that all laws should be made, taxes levied, and monies appropriated for public purposes. It is not so clear that the legislature may grant divorces or enact statutes empowering guardians and other trustees to sell lands although such legislation has been held valid.

Nor can the legislature "exercise powers which are in their nature essentially judicial or executive", since these powers are confided to other departments of the State government. It is the business of the legislature to make laws or statutes which serve as rules of civil conduct: it is not within its province to construe and apply the law, or "to decide private disputes between or concerning persons". At the same time it is conceded that the legislature may properly enact declaratory statutes.