others, because each department possesses auxiliary powers necessary to its own maintenance and efficiency,11 and because a blending of governmental powers permits each department to act as a check upon the arbitrary or impolitic action of the others. An example is the veto power vested in the President and in state governors. So also, the Senate in the exercise of its power to consent to or confirm executive apい pointments to office performs an executive or administrative, rather than a legislative, function.12

LIMITATIONS ON LEGISLATIVE POWER

73. The principle of the separation of powers requires that the legislature shall not usurp the powers of the executive or judicial departments, nor attempt to control either of them in the proper exercise of their constitutional functions.

As Respects the Executive

The legislature cannot lawfully usurp any of the functions confided by the Constitution to the executive department.18 Nor can it confer executive power on certain of its own members as, for instance, a joint committee of the two houses.14 Although both the legislature and the courts may fill such offices as are incidental to the performance of their own prescribed duties, and the legislature may provide by law for the appointment of all officers not provided for in the Constitution, yet the appointing power must be lodged in the executive department.15 For appointment to office is an executive function which cannot be taken away from that department by the legislative branch, and in which the judgment and discretion of the governor cannot constitutionally be limited, abridged, or restricted by a statute.16 It is held, however, that

11 State v. Hyde, 121 Ind. 20, 22 N. E. 644; Flint & F. Plank Road Co. v. Woodhull, 25 Mich. 99, 12 Am. Rep. 233.

12 People v. Shawver, 30 Wyo. 366, 222 P. 11.

13 In re Opinion of the Justices, 208 Mass. 610, 94 N. E. 852.

14 Stockman v. Leddy, 55 Colo. 24, 129 P. 220, Ann. Cas. 1916B, 1052; Gibson v. Kay, 68 Or. 589, 137 P. 864.

15 City of Evansville v. State, 118 Ind. 426, 21 N. E. 267, 4 L. R. A. 93. See State v. Miller, 17 Ohio App. 309. Note, however, that the Constitution of the United States provides (Art. 2, § 2) that "Congress may by law vest the appointment of such inferior officers as they think proper in the Presi dent alone, in the courts of law, or in the heads of departments."

16 Westlake v. Merritt, 85 Fla. 28, 95 So. 662; People v. Capp, 61 Colo. 396, 158 P. 143; State ex rel. Harvey v. Wright, 251 Mo. 325, 158 S. W. 823, Ann

a statute providing that removal from office by the governor shall be only for a legal cause shown is not an unjustifiable interference with his prerogative.17 So the power to grant pardons and commutations of sentences is an executive function, and any attempt to exercise it by the legislature would be unconstitutional, as would also a statute attempting to place limitations or conditions upon the exercise of this power by the governor.1 18 But a statute is not unconstitutional because it infringes on the powers of such a state officer as the attorney general, since the constitutional provision for the separation of powers has no reference to a distribution of power within the various divisions of the executive department.19

Same; Indeterminate and Suspended Sentences

Statutes such as are in force in many states providing for indeterminate sentences in criminal cases, the exact term of imprisonment to be fixed later by a prison board or other agency, are not unconstitutional as interfering with or derogating from the governor's pardoning power.20 The same is true of statutes authorizing the courts in criminal Cas. 1915A, 588; State ex rel. Tolerton v. Gordon, 236 Mo. 142, 139 S. W. 403; State v. Hyde, 121 Ind. 20, 22 N. E. 644; Wood v. United States, 15 Ct. Cl. 151; Pratt v. Breckinridge, 112 Ky. 1, 65 S. W. 136, 23 Ky. Law Rep. 1356; Sweeney v. Coulter, 109 Ky. 295, 58 S. W. 784, 22 Ky. Law Rep. 885; State v. Washburn, 167 Mo. 680, 67 S. W. 592, 90 Am. St. Rep. 430; In re Branch, 70 N. J. Law, 537, 57 A. 431. Compare Ingard v. Barker, 27 Idaho, 124, 147 P. 293. A statutory provision that the county welfare board shall be composed of five men and four women who are qualified electors of the county, does not illegally curtail the governor's power of selection. State v. Daniel, 87 Fla. 270, 99 So. 804.

17 State v. Frazier, 47 N. D. 314, 182 N. W. 545.

18 People v. La Buy, 285 Ill. 141, 120 N. E. 537; Ex parte Bustillos, 26 N. M. 449, 194 P. 886; In re Court of Pardons, 97 N. J. Eq. 555, 129 A. 624; Ex parte Wadleigh, 82 Cal. 518, 23 P. 190; Fite v. State, 114 Tenn. 646, 88 S. W. 941, 1 L. R. A. (N. S.) 520.

19 Follmer v. State, 94 Neb. 217, 142 N. W. 908, Ann. Cas. 1914D, 151. 20 Ex parte Lee, 177 Cal. 690, 171 P. 958; People v. Hale, 64 Cal. App. 523, 222 P. 148; State v. Dugan, 84 N. J. Law, 603, 89 A. 691; Wallace v. State, 91 Neb. 158, 135 N. W. 549; Woods v. State, 130 Tenn. 100, 169 S. W. 558, L. R. A. 1915F, 531; Mutart v. Pratt, 51 Utah, 246, 170 P. 67; Commonwealth v. McKenty, 52 Pa. Super. Ct. 332; Commonwealth v. Kalck, 239 Pa. 533, 87 A. 61; State v. District Court of Eighteenth Judicial Dist., 73 Mont. 541, 237 P. 525; Miller v. State, 149 Ind. 607, 49 N. E. 894, 40 L. R. A. 109; State v. Stephenson, 69 Kan. 405, 76 P. 905, 105 Am. St. Rep. 171; State v. Page, 60 Kan. 664, 57 P. 514; People v. Cook, 147 Mich. 127, 110 N. W. 514; People V. Madden, 120 App. Div. 338, 105 N. Y. S. 554. Contra, People v. Sama, 189 Cal, 153, 207 P. 893.

21

cases to suspend the execution of sentences in the case of first offenders, or upon prescribed conditions, or to grant paroles to convicted prisoners.22

As Respects the Judiciary

Any act of the legislature which should undertake to determine questions of law or fact, as affecting the rights of persons or property properly the subject of litigation, would be judicial in character and therefore invalid.23 Thus, the legislature cannot pass an act declaring that an individual is indebted to the state in a given sum and create a lien on his property for it,24 nor enact that money appropriated to pay the salary of a state officer shall be paid to one of two adverse claimants of the office,25 nor assume to ascertain and fix the amount due to a creditor of the state,26 and the determination of what is just compensation

21 Barrett v. State, 18 Ala. App. 246, 90 So. 13; Ex parte Giannini, 18 Cal. App. 166, 122 P. 831; Martin v. People, 69 Colo. 60, 168 P. 1171; Belden v. Hugo, 88 Conn. 500, 91 A. 369; State v. Owen, 80 N. H. 426, 117 A. 814; Ex parte Bates, 20 N. M. 542, 151 P. 698, L. R. A. 1916A, 1285; Baker v. State, 70 Tex. Cr. R. 618, 158 S. W. 998; Richardson v. Commonwealth, 131 Va. 802, 109 S. E. 460; State v. Starwich, 119 Wash. 561, 206 P. 29, 26 A. L. R. 393. Contra, Vinson v. State, 16 Ala. App. 536, 79 So. 316; State v. Anderson, 43 S. D. 630, 181 N. W. 839. In Ex parte United States (1916) 242 U. S. 27, 37 S. Ct. 72, 61 L. Ed. 129, L. R. A. 1917E, 1178, Ann. Cas. 1917B, 355, it was held that a federal district court exceeds its power by ordering that the ex ecution of a sentence to imprisonment imposed by it upon a plea of guilty be suspended indefinitely during good behavior, on considerations wholly extraneous to the legality of the conviction. Thereafter Congress, by an Act of March 4, 1925 (U. S. Comp. St. § 10564%; 18 U. S. C. A. § 724) authorized federal district judges, in proper cases, to suspend sentences and to place offenders upon probation "after conviction or after a plea of guilty or nolo contendere, for any crime or offense not punishable by death or life imprisonment." This statute, even in its application to prisoners sentenced before the passage of the act, was held constitutional and no encroachment on the pardoning power of the President. Nix v. James (C. C. A. Cal.) 7 F.(2d) 590.

22 People v. Roth, 249 Ill. 532, 94 N. E. 953, Ann. Cas. 1912A, 100; People v. Nowasky, 254 Ill. 146, 98 N. E. 242; People ex rel. Kane v. Hanley, 116 Misc. Rep. 624, 191 N. Y. S. 41.

23 Bridgeport Public Library v. Burroughs Home, 85 Conn. 309, 82 A. 582; Ruff v. Georgia, S. & F. Ry. Co., 67 Fla. 224, 64 So. 782; Bettenbrock v. Miller, 185 Ind. 600, 112 N. E. 771; In re Ellison, 256 Mo. 378, 165 S. W. 987. 24 CAROLINA GLASS CO. V. STATE, 87 S. C. 270, 69 S. E. 391, Black Cas. Constitutional Law, 34.

25 State v. Carr, 129 Ind. 44, 28 N. E. 88, 13 L. R. A. 177, 28 Am. St. Rep. 163. 26 McLaughlin v. Charleston County Com'rs, 7 S. C. 375.

for private property when taken for public use is a judicial act.27 On the other hand, an election contest is of statutory origin and within the control of the political department, and the manner of conducting it and of determining the questions raised is within the control of the legislature.28 But the decision of the question whether a corporate charter has been so misused that it ought to be forfeited is judicial and not legislative.29 It is unconstitutional for the legislative body to adjudge that a public officer has been guilty of misconduct,30 or, on the other hand, to direct the discharge of a defendant indicted for a crime.31 So the legislature cannot lawfully direct the courts as to what judgments they shall enter in given cases or what the judgment shall be when the court is equally divided in opinion.32 And when litigation has proceeded to a judgment which determines the controversy on the merits, it is beyond the power of the legislature to alter or control.33 Hence that body cannot vacate or annul a' final judgment, nor in any way invalidate it or set it aside, nor empower the court to do so,34 nor grant a new trial or an appeal or writ of error.35 Neither can the legislature conclude the validity of its own enactments, or de

27 Davis v. George B. Newton Coal Co., 267 U. S. 292, 45 S. Ct. 305, 69 L. Ed. 617; Rich v. City of Chicago, 59 Ill. 286.

28 Link v. Karb, 89 Ohio St. 326, 104 N. E. 632; Toncray v. Budge, 14 Idaho, 621, 95 P. 26.

29 In re Opinion of the Justices, 237 Mass. 619, 131 N. E. 29; Flint & F. Plank Road Co. v. Woodhull, 25 Mich. 99, 12 Am. Rep. 233.

30 State ex rel. Tolerton v: Gordon, 236 Mo. 142, 139 S. W. 403.

31 State v. Costen, 141 Tenn. 539, 213 S. W. 910.

32 Northern v. Barnes, 2 Lea (Tenn.) 603.

33 Martin v. South Salem Land Co., 94 Va. 28, 26 S. E. 591.

34 People v. New York Cent. R. Co., 283 Ill. 334, 119 N. E. 299; People v. Clark, 300 Ill. 583, 133 N. E. 247; Selectmen of Town of Brookline v. Boston & A. R. Co., 236 Mass. 260, 128 N. E. 97; Wilcox v. Miner (Iowa) 205 N. W. 847; Central of Georgia R. Co. v. Alabama Railroad Commission (C. C.) 161 F. 925; State v. New York, N. H. & H. R. Co., 71 Conn. 43, 40 A. 925; Roberts v. State, 160 N. Y. 217, 54 N. E. 678; Ratcliffe v. Anderson, 31 Grat. (Va.) 105, 31 Am. Rep. 716; De Chastellux v. Fairchild, 15 Pa. 18, 53 Am. Dec. 570; Miller v. State, 8 Gill (Md.) 145.

35 Petition of Siblerud, 148 Minn. 347, 182 N. W. 168; Sinopoli v. Chicago Rys. Co., 316 Ill. 609, 147 N. E. 487; State v. Flint, 61 Minn. 539, 63 N. W. 1113; McCabe v. Emerson, 18 Pa. 111; City of Aurora v. Schoeberlein, 230 Ill. 496, 82 N. E. 860; In re Handley's Estate, 15 Utah, 212, 49 P. 829, 62 Am. St. Rep. 926; Peerce v. Kitzmiller, 19 W. Va. 564. But the act of Congress authorizing certificates of naturalization, issued ex parte, to be impeached where fraudulently procured is not unconstitutional as an exercise

BL.CONST.L. (4TH ED.)—7

clare that a previous act of its own was constitutional, nor validate things previously done under an unconstitutional statute.36 But the legislature may retroactively validate a contract or other transaction which has been adjudged invalid by the courts, provided the curative statute relates only to matters which the legislature might have authorized, or dispensed with, in the first instance.37

Establishment and Jurisdiction of Courts

Courts created by the Constitution cannot be abolished nor deprived of their jurisdiction by act of the legislature. But subject to this, it is in the power of the legislature to create new courts,88 though once in being they possess certain necessary inherent powers, such as the power to make rules of practice, to punish for contempt, and to appoint and remove their own officers,39 of which they cannot afterwards be deprived. The determination of the jurisdiction of given courts (unless fixed by the Constitution) is also within the authority of the legislature,40 which may likewise provide by statute for the removal of causes from one court to another,41 or provide that particular causes may be tried before one or more judges of any court.42

of judicial power. Johannessen v. United States, 225 U. S. 227, 32 S. Ct. 613, 56 L. Ed. 1066.

36 City of Richmond v. Carneal, 129 Va. 388, 106 S. E. 403, 14 A. L. R. 1341; Bartlett v. State, 73 Ohio St. 54, 75 N. E. 939; In re County Seat of La Fayette County, 2 Chand. (Wis.) 212.

37 Steele County v. Erskine, 98 F. 215, 39 C. C. A. 173; Steger v. Traveling Men's Building & Loan Ass'n, 208 Ill. 236, 70 N. E. 236, 100 Am. St. Rep. 225; Schneck v. City of Jeffersonville, 152 Ind. 204, 52 N. E. 212; Camp v. State, 71 Fla. 381, 72 So. 483.

38 Klein v. Hutton, 49 N. D. 248, 191 N. W. 485. The legislature may create any court and vest it with whatever jurisdiction it pleases, provided only that it shall be inferior to the Supreme Court. City of Detroit v. Dingeman, 233 Mich. 356, 206 N. W. 582.

39 In re Judith Gap Commercial Co. (D. C. Mont.) 1 F.(2d) 508; Epstein v. State, 190 Ind. 693, 128 N. E. 353. The clerk of the Supreme Court is not such an assistant, essential to the court and its powers, that the independent exercise of judicial power requires his appointment by the court. People v. Brady, 275 Ill. 261, 114 N. E. 25.

40 Duncan v. Fox (D. C. Fla.) 300 F. 165; State v. Aiello, 317 Ill. 159, 147 N. E. 916; Key v. City of Ardmore (Okl. Cr. App.) 234 P. 793; White v. City of Ottawa, 318 Ill. 463, 149 N. E. 521; Dexter Yarn Co. v. American

41 Gaines v. Fuentes, 92 U. S. 10, 23 L. Ed. 524; Strauder v. West Virginia, 100 U. S. 303, 25 L. Ed. 664; Levine v. Allen, 96 Okl. 252, 221 P. 771. 42 Ashley v. Wait, 228 Mass. 63, 116 N. E. 961, 8 A. L. R. 1463. BL.CONST.L. (4TH ED.)