the constitution, and to that end, if need be, must take judicial notice of every ballot cast at that election.

Amendment of the Constitution of the United States.

An amendment becomes a part of the Constitution of the United States when it has been proposed by a twothirds vote of both branches of Congress, and has been ratified by three-fourths of the States. In the National

2

I

Prohibition Cases, decided in 1919, in which the U. S. Supreme Court ruled that the Eighteenth or Prohibitory Amendment has been added to the Constitution in due and legal form, Justice Van Devanter said:

The adoption by both Houses of Congress, each by a twothirds vote, of a joint resolution proposing an amendment to the Constitution sufficiently shows that the proposal was deemed necessary by all who voted for it. . . . The prohibition of the manufacture, sale, transportation, importation, and exportation of intoxicating liquors for beverage purposes, as embodied in the Eighteenth Amendment, by lawful proposal and ratification, has become a part of the Constitution, and must be respected and given effect the same as the other provisions of that instrument.

Ratifying Clauses of Constitutions.

.

A constitution becomes a law of government when it has been ratified or accepted by the people in the manner prescribed by its ratifying clause. The Constitutions of all of the original thirteen States except Rhode Island and Connecticut, which used their royal charters as constitutions, and Massachusetts, which ratified its constitution by a popular election, became

U. S. Const. Art. V., provides for a national constitutional convention, but no such body has ever been called together. 2253 U. S. Rep., 350, 386.

effective by the acceptance of the people. Some of the States admitted to the Union soon after the adoption of the U. S. Constitution also made their constitutions operative without submission to the people. All State constitutions are now voted upon at elections before going into effect.

The Constitution of the United States was established in 1788 by the ratifications of the conventions of eleven of the thirteen existing States and has since then been ratified by conventions in all of the other States.

CHAPTER V

THE DIVISION OF GOVERNMENTAL POWERS

The Constitution of the United States distinctly provides that the legislative power shall be exercised by the Congress, that the executive power shall vest in the President, and that the judicial power shall be held by a Supreme Court and such subordinate courts as the Congress shall establish. Theoretically, this assignment of the three distinct functions of government to three different departments so subdivides the powers of the National Government that the Congress shall make, but may not execute or judge, the laws; that the President shall execute, but may not make or judge, the laws; that the courts of the United States shall judge, but may not make or execute, the laws. The thought that influenced the framers of the Constitution undoubtedly was that such a distribution of governmental powers would make arbitrary government impossible. That conception was based upon the fact that, if a government could make such laws as it saw fit, could then say what those laws meant and how they applied to subsequent events, and could afterward execute them in its own way, the life, liberty, and property of every citizen would be at its mercy.

This conception of the subdivision of governmental power as a barrier against arbitrary government, which

had been formulated by Montesquieu in his famous work on "The Spirit of the Laws," had been incorporated into the first Constitution of Massachusetts' in the following words:

In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws and not of men.

In the case of Witter v. Cook County,' decided in 1912 by the Supreme Court of Illinois, Justice Cartwright said:

Article 3 of the Constitution [Illinois] divides the powers of the government into three distinct departments,—the legislative, executive, and judicial, and prohibits the exercise of any power belonging to either department by any person or collection of persons belonging to another department, except as expressly directed or permitted by the constitution. The body that deliberates and enacts laws, whether of the whole State or (by delegation) for minor subdivisions and municipalities, is legislative. The executive power is that power which compels obedience to the laws and executes them. The instrumentalities employed for that purpose are officers who are elected or appointed and who are charged with the enforcement of the laws (People v. Morgan, 90 Ill, 558). The judicial power is that which adjudicates upon and protects the rights and interests of individual citizens and to that end construes and applies the laws. It is that power which applies the law and adjudges in particular cases.

' Article XXX., Part I.

2 256 Illinois Rep., 616, 621.

Overlapping of Powers.

In the United States Constitution, this subdivision of powers is not made exactly. The Senate exercises judicial powers when it sits as a court of impeachment at trials of public officers on charges of misconduct, and the House of Representatives performs executive functions when it prosecutes impeachment cases. The Senate exercises executive functions when it confirms the nominations of public officers made by the President and when it gives or withholds its confirmation of treaties he has negotiated. On one occasion, the Congress performed a distinctly judicial act by declaring that the bridge over the Ohio River at Wheeling should be "held and taken to be [a lawful structure], anything in the law or laws of the United States to the contrary notwithstanding." The President legislates through the heads of the executive departments who make rules and regulations which, if not inconsistent with law, have the force and effect of law; and judges some cases through administrative tribunals, such as the land courts and the immigration officials who pass upon the admission or exclusion of aliens. The President also legislates when he vetoes or approves laws enacted by the Congress and presented for his approval. It might be going too far to say that the courts of the United States sometimes do legislative acts. They do, in the course of their duties, declare unconstitutional and refuse to enforce acts of Congress which they hold to be unauthorized by the provisions of the Constitution. Though savoring of the legislative character, such acts are held to be within the judicial power vested in the Courts.

Furthermore, the powers assigned by our State and 1 Penna. v. Wheeling &c. Bridge Co., 18 Howard (U. S.) Rep., 518.