to make laws;1 but assuming them to be apportioned already, we are only at liberty to liken the power of the State legislature to that of the Parliament, when it confines its action to an exercise. of legislative functions; and such authority as is in its nature either executive or judicial is beyond its constitutional powers, with the few exceptions to which we have already referred.

It will be important therefore to consider those cases where legislation has been questioned as encroaching upon judicial authority; and to this end it may be useful, at the outset, to endeavor to define legislative and judicial power respectively, that we may the better be enabled to point out the proper line of distinction when questions arise in their practical application to actual cases.

66

The legislative power we understand to be the authority, under the constitution, to make laws, and to alter and repeal them. Laws, in the sense in which the word is here employed, are rules of civil conduct, or statutes, which the legislative will has prescribed. "The laws of a State," observes Mr. Justice Story, are more usually understood to mean the rules and enactments promulgated by the legislative authority thereof, or long[* 91] established local customs having the force of laws." 2 The difference between the departments undoubtedly is, that the legislature makes, the executive executes, and the judiciary construes, the law."3 And it is said that that which distinguishes a judicial from a legislative act is, that the one is a determination of what the existing law is in relation to some existing thing already done or happened, while the other is a predetermination of what the law shall be for the regulation of all future cases falling under its provisions. And in another case it is said: "The legislative power extends only to the making of laws, and in its exercise it is limited and restrained by the paramount authority of the federal and State constitutions. It cannot directly reach the property or vested rights of the citizen by providing for their forfeiture or transfer to another,

1 Calder v. Bull, 2 Root, 350, and 3 Dall. 386; Ross v. Whitman, 6 Cal. 361; Smith v. Judge, 17 Cal. 547; per Patterson, J., in Cooper v. Telfair, 4 Dall. 19; Martin v. Hunter's Lessee, 1 Wheat. 304.

2 Swift v. Tyson, 16 Pet. 18.

8 Per Marshall, Ch. J., in Wayman v. Southard, 10 Wheat. 46; per Gibson, Ch. J., in Greenough v. Greenough, 11 Penn. St. 491. See State r. Gleason, 12 Fla. 190; Hawkins c. Governor, 1 Ark. 570.

4 Bates v. Kimball, 2 Chip. 77.

without trial and judgment in the courts; for to do so would be the exercise of a power which belongs to another branch of the government, and is forbidden to the legislative." 1 "That is not legislation which adjudicates in a particular case, prescribes the rule contrary to the general law, and orders it to be enforced. Such power assimilates itself more closely to despotic rule than any other attribute of government." 2

6

On the other hand, to adjudicate upon, and protect, the rights and interests of individual citizens, and to that end to construe and apply the laws, is the peculiar province of the judicial department.3 "No particular definition of judicial power," says Woodbury, J.," is given in the constitution [of New Hampshire], and, considering the general nature of the instrument, none was to be expected. Critical statements of the meanings in which all important words were employed would have swollen into volumes; and when those words possessed a customary signification, a definition of them would have been useless. But powers judicial,' *judiciary powers,' and 'judicatures' are all [*92] phrases used in the constitution; and though not particularly defined, are still so used to designate with clearness that department of government which it was intended should interpret and administer the laws. On general principles, therefore, those inquiries, deliberations, orders, and decrees, which are peculiar to such a department, must in their nature be judicial acts. Nor can they be both judicial and legislative; because a marked difference exists between the employment of judicial and legislative tribunals. The former decide upon the legality of claims and conduct, and the latter make rules upon which, in connection with the constitution, those decisions should be founded. It is the province of judges to determine what is the law upon existing cases. In fine, the law is applied by the one, and made by the other. To do the first, therefore, to compare the claims of parties with the law of the land before established, is in its

1 Newland v. Marsh, 19 Ill. 382. 2 Ervine's Appeal, 16 Penn. St. 266. See also Greenough v. Greenough, 11 Penn. St. 494; Dechastellux v. Fairchild, 15 Penn. St. 18; Trustees, &c. v. Bailey, 10 Fla. 238.

3 Cincinnati, &c. Railroad Co. v. Commissioners of Clinton Co., 1 Ohio,

N. s. 81. See also King v. Dedham Bank, 15 Mass. 454; Gordon v. Ingraham, 1 Grant's Cases, 152; People v. Supervisors of New York, 16 N. Y. 432; Beebe v. State, 6 Ind. 515; Greenough v. Greenough, 11 Penn. St. 494; Taylor v. Place, 4 R. I. 324.

nature a judicial act. But to do the last to pass new rules for the regulation of new controversies is in its nature a legislative act; and if these rules interfere with the past, or the present, and do not look wholly to the future, they violate the definition of a law as a rule of civil conduct;' because no rule of conduct can with consistency operate upon what occurred before the rule itself was promulgated.

"It is the province of judicial power, also, to decide private disputes between or concerning persons; but of legislative power to regulate public concerns, and to make laws for the benefit and welfare of the State. Nor does the passage of private statutes conflict with these principles; because such statutes, when lawful, are enacted on petition, or by the consent of all concerned; or else they forbear to interfere with past transactions and vested rights." 2

With these definitions and explanations, we shall now proceed to consider some of the cases in which the courts have attempted to draw the line of distinction between the proper functions of the legislative and judicial departments, in cases where it has been claimed that the legislature have exceeded their power by invading the domain of judicial authority.

Legislation is either introductory of new rules, or it is declaratory of existing rules. "A declaratory statute is one which is passed in order to put an end to a doubt as to what is the common law, or the meaning of another statute, and which declares what it is and ever has been." 3 Such a statute, therefore, is always in a certain sense retrospective; because it assumes to determine

11 Bl. Comm. 44. The distinction between legislative and judicial power lies between a rule and a sentence. Shrader, Ex parte, 33 Cal. 279. See Shumway v. Bennett, 29 Mich. 451; Supervisors of Election, 114 Mass. 247. The legislature cannot empower election boards to decide whether one by duelling has forfeited his right to vote or hold office. Commonwealth v. Jones, 10 Bush,

725; Burkett v. McCurty, 10 Bush, 758.

204.

2 Merrill v. Sherburne, 1 N. H. See Jones v. Perry, 10 Yerg. 69; Taylor v. Porter, 4 Hill, 144; Ogden v. Blackledge, 2 Cranch, 272; Dash v. Van Kleek, 7 Johns. 498; Wilkinson v. Leland, 2 Pet. 657; Leland v. Wilkinson, 10 Pet. 297.

3 Bouv. Law Dict. 66 Statute;" Austin on Jurisprudence, Lec. 37.

what the law was before it was passed; and as a declaratory statute is important only in those cases where doubts have already arisen, the statute, when passed, may be found to declare the law to be different from what it has already been adjudged to be by the courts. Thus Mr. Fox's Libel Act declared that, by the law of England, juries were judges of the law in prosecutions for libel; it did not purport to introduce a new rule, but to declare a rule already and always in force. Yet previous to the passage of this act the courts had repeatedly held that the jury in these cases were only to pass upon the fact of publication and the truth of the innuendoes; and whether the publication was libellous or not was a question of law which addressed itself exclusively to the court. It would appear, therefore, that the legislature declared the law to be what the courts had declared it was not. So in the State of New York, after the courts had held that insurance companies were taxable to a certain extent under an existing statute, the legislature passed another act, declaring that such companies were only taxable at a certain other rate; and it was thereby declared that such was the intention and true construction of the original statute.1 In these cases it will be perceived that the courts, in the due exercise of their authority as interpreters of the laws, have declared what the rule established by the common law or by statute is, and that the legislature has then interposed, put its own construction upon the existing law, and in effect declared the judicial interpretation to be unfounded and unwarrantable. The courts in these cases have clearly kept within the proper limits of their jurisdiction, and if they have erred, the error has been one of judgment only, and has not extended to usurpation of power. Was the legislature also within the limits of its authority when it passed the declaratory statute?

*The decision of this question must depend perhaps [*94] upon the purpose which was in the mind of the legislature in passing the declaratory statute; whether the design was to give to the rule now declared a retrospective operation, or, on the other hand, merely to establish a construction of the doubtful law for the determination of cases that may arise in the future. It is always competent to change an existing law by a declaratory statute; and where the statute is only to operate upon future

1 People v. Supervisors of New York, 16 N. Y. 424.

cases, it is no objection to its validity that it assumes the law to have been in the past what it is now declared that it shall be in the future. But the legislative action cannot be made to retroact upon past controversies, and to reverse decisions which the courts, in the exercise of their undoubted authority, have made; for this would not only be the exercise of judicial power, but it would be its exercise in the most objectionable and offensive form, since the legislature would in effect sit as a court of review to which parties might appeal when dissatisfied with the rulings of the courts.2