The second class of cases to which we have alluded hold that divorce is a judicial act in those cases upon which the general laws confer on the courts power to adjudicate; and that consequently in those cases the legislature cannot pass special laws, but its full control over the relation of marriage will leave it at liberty to grant divorces in other cases, for such causes as shall appear to its wisdom to justify them.1

A third class of cases deny altogether the authority of these special legislative enactments, and declare the act of divorce to be in its nature judicial, and not properly within the province of the legislative power.2 The most of these decisions, however, lay more or less stress upon clauses in the constitutions other than those which in general terms separate the legislative and judicial functions, and some of them would perhaps have been differently decided but for those other clauses. But it is safe to say, that the general sentiment in the legal profession is against the rightfulness of special legislative divorces; and it is believed that, if the question could originally have been considered by the courts, unembarrassed by any considerations of long acquiescence, and of the serious consequences which must result from affirming their unlawfulness, after so many had been granted and new relations formed, it is highly probable that these enactments would have been held to be usurpations of judicial authority, and we should have been spared the necessity for the special constitutional provisions which have since been introduced. Fortunately, these provisions render the question now discussed of little practical importance; at the same time that they refer the decision.

Meginnis, 1 G. & J. 463; Wright v. Wright, 2 Md. 429; Gaines v. Gaines, 9 B. Monr. 295; Cabell v. Cabell, 1 Met. (Ky.) 319; Dickson v. Dickson, 1 Yerg. 110; Melizet's Appeal, 17 Penn. St. 449; Townsend v. Griffin, 4 Harr. 440; Noel v. Ewing, 9 Ind. 37; and the examination of the whole subject by Mr. Bishop, in his work on Marriage and Divorce.

1 Levins v. Sleator, 2 Greene (Iowa), 604; Opinions of Judges, 16 Me. 479; Adams v. Palmer, 51 Me. 480. See also Townsend v. Griffin, 4 Harr. 440. It is a well-reasoned case in Kentucky, it was held that a legislative divorce, obtained on the application of one of the parties while suit for divorce was pending in a court of competent jurisdiction, would not affect the rights to property of the other, growing out of the relation. Gaines v. Gaines, 9 B. Monr. 295. * Bingham v. Miller, 17 Ohio, 445; Clark v. Clark, 10 N. H. 380; Ponder v. Graham, 4 Flor. 23; State v. Fry, 4 Mo. 120; Bryson v. Campbell, 12 Mo. 498; Bryson v. Bryson, 17 Mo. 590. See also Jones v. Jones, 12 Penn. St. 353, 354.

upon applications for divorce to those tribunals which must proceed upon inquiry, and cannot condemn unheard.1

The force of a legislative divorce must in any case be confined to a dissolution of the relation; it can only be justified on the ground that it merely lays down a rule of conduct for the parties to observe towards each other for the future. It cannot inquire into the past, with a view to punish the parties for their offences against the marriage relation, except so far as the divorce itself is a punishment. It cannot order the payment of alimony, for that would be a judgment; it cannot adjudge upon conflicting claims to property between the parties, but it must leave all questions of this character to the courts. Those rights of property which depend upon the continued existence of the relation will be terminated by the dissolution, but only as in any other case rights in the future may be incidentally affected by a change in the law.3

Legislative Encroachments upon Executive Power.

If it is difficult to point out the precise boundary which separates legislative from judicial duties, it is still more difficult to discriminate, in particular cases, between what is properly legislative and what is properly executive duty. The authority that makes the laws has large discretion in determining the means through which they shall be executed; and the performance of

1 1 If marriage is a natural right, then it would seem that any particular marriage that parties might lawfully form they must have a lawful right to continue in, unless by misbehavior they subject themselves to a forfeiture of the right. And if the legislature can annul the relation in one case, without any finding that a breach of the marriage contract has been committed, then it would seem that they might annul it in every case, and even prohibit all parties from entering into the same relation in the future. The recognition of a full and complete control of the relation in the legislature, to be exercised at its will, leads inevitably to this conclusion; so that, under the "rightful powers of legislation" which our constitutions confer upon the legislative department, a relation essential to organized civil society might be abrogated entirely. Single legislative divorces are but single steps towards this barbarism which the application of the same principle to every individual case, by a general law, would necessarily bring upon us. See what is said by the Supreme Court of Missouri in Bryson v. Bryson, 17 Mo. 593, 594.

2 Crane v. Meginnis, 1 G. & J. 463.

3 Star v. Pease, 8 Conn. 545.

many duties which they may provide for by law, they may refer either to the chief executive of the State, or, at their option, to any other executive or ministerial officer, or even to a person specially named for the duty. What can be definitely said on this subject is this: that such powers as are specially conferred by the constitution upon the governor, or any specified officer, the legislature cannot confer upon any other officer or authority; and from those duties which the constitution requires of him he cannot be excused by law.1 But other powers or duties the executive cannot exercise or assume except by legislative authority, and the power which in its discretion it confers it may also withhold or confer in other directions.2 Whether in those cases where power is conferred by the constitution upon the governor, the legislature have the same authority to make rules for the exercise of the power, that they have to make rules to govern the proceedings in the courts, may perhaps be a question.3 It would seem

1 Attorney-General v. Brown, 1 Wis. 522. "Whatever power or duty is expressly given to, or imposed upon, the executive department, is altogether free from the interference of the other branches of the government. Especially is this the case where the subject is committed to the discretion of the chief executive officer, either by the constitution or by the laws. So long as the power is vested in him, it is to be by him exercised, and no other branch of the government can control its exercise." Under the constitution of Ohio, which forbids the exercise of any appointing power by the legislature, except as therein authorized, it was held that the legislature could not, by law, constitute certain designated persons a State board, with power to appoint commissioners of the State House, and directors of the penitentiary, and to remove such directors for cause. State v. Kennon, 7 Ohio St. 546. And see Davis v. State, 7 Md. 161.

2

"In deciding this question [as to the authority of the governor], recurrence must be had to the constitution. That furnishes the only rule by which the court can be governed. That is the charter of the governor's authority. All the powers delegated to him by, or in accordance with that instrument, he is entitled to exercise, and no others. The constitution is a limitation upon the powers of the legislative department of the government, but it is to be regarded as a grant of powers to the other departments. Neither the executive nor the judiciary, therefore, can exercise any authority or power except such as is clearly granted by the constitution." Field v. People, 2 Scam. 80.

* Whether the legislature can constitutionally remit a fine, when the pardoning power is vested in the governor by the constitution, has been made a question; and the cases of Haley v. Clarke, 26 Ala. 439, and People v. Bircham, 12 Cal. 50, are opposed to each other upon the point. If the fine is payable to the State, perhaps the legislature should be considered as having the same right to discharge it that they would have to release any other debtor to the State from his obligation. In Morgan v. Buffington, 21 Mo. 549, it was held that the State Auditor was not obliged

that this must depend generally upon the nature of the power, and upon the question whether the constitution, in conferring it, has furnished a sufficient rule for its exercise. If complete power to pardon is conferred upon the executive, it may be doubted if the legislature can impose restrictions under the name of rules or regulations; but when the governor is made commander-in-chief of the military forces of the State, his authority must be exercised under such proper rules as the legislature may prescribe, because the military forces are themselves under the control of the legislature, and military law is prescribed by that department. There would be this clear limitation upon the power of the legislature to prescribe rules for the executive department, that they must not be such as, under pretence of regulation, divest the executive of, or preclude his exercising, any of his constitutional prerogatives or powers. Those matters which the constitution specifically confides to him the legislature cannot take from his control.

Delegating Legislative Power.

One of the settled maxims in constitutional law is, that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority. Where the sovereign power of the State has located the authority, there it must remain; and by the constitutional agency alone

to accept as conclusive the certificate from the Speaker of the House as to the sum due a member of the House for attendance upon it, but that he might lawfully inquire whether the amount had been actually earned by attendance or not. The legislative rule, therefore, cannot go to the extent of compelling an executive officer to do something else than his duty, under any pretence of regulation. The power to pardon offenders is vested by the several State constitutions in the governor. It is not, however, a power which necessarily inheres in the executive. State v. Dunning, 9 Ind. 22. And several of the State constitutions have provided that it shall be exercised under such regulations as shall be prescribed by law. There are provisions more or less broad to this purport in those of Kansas, Florida, Alabama, Arkansas, Texas, Mississippi, Oregon, Indiana, Iowa, and Virginia. In State v. Dunning, 9 Ind. 20, an act of the legislature requiring the applicant for the remission of a fine or forfeiture to forward to the governor, with his application, the opinion of certain county officers as to the propriety of the remission, was sustained as an act within the power conferred by the constitution upon the legislature to prescribe regulations in these cases. And see Branham v. Lange, 16 Ind. 500. The power to reprieve is not included in the power to pardon. Ex parte Howard, 17 N. H. 545.

the laws must be made until the constitution itself is changed. The power to whose judgment, wisdom, and patriotism this high prerogative has been intrusted cannot relieve itself of the responsibility by choosing other agencies upon which the power shall be devolved, nor can it substitute the judgment, wisdom, and patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust.1

But it is not always essential that a legislative act should be a completed statute which must in any event take effect as law, at the time it leaves the hands of the legislative department. A statute may be conditional, and its taking effect may be made to depend upon some subsequent event.2 Affirmative legislation may in some cases be adopted, of which the parties interested are at liberty to avail themselves or not at their option. A private act of incorporation cannot be forced upon the corporators; they may refuse the franchise if they so choose. In these cases the legislative

"These are the bounds which the trust that is put in them by the society, and the law of God and nature, have set to the legislative power of every commonwealth, in all forms of government:

"First. They are to govern by promulgated established laws, not to be varied in particular cases, but to have one rule for rich and poor, for the favorite at court and the countryman at plough.

"Secondly. These laws also ought to be designed for no other end ultimately but the good of the people.

"Thirdly. They must not raise taxes on the property of the people without the consent of the people, given by themselves or their deputies. And this properly concerns only such governments where the legislative is always in being, or at least where the people have not reserved any part of the legislative to deputies, to be from time to time chosen by themselves.

"Fourthly. The legislative neither must nor can transfer the power of making laws to anybody else, or place it anywhere but where the people have." Locke on Civil Government, § 142.

That legislative power cannot be delegated, see Thorne v. Cramer, 15 Barb. 112; Bradley v. Baxter, Ib. 122; Barto v. Himrod, 8 N. Y. 483; People v. Stout, 23 Barb. 349; Rice v. Foster, 4 Harr. 479; Santo v. State, 2 Iowa, 165; Geebrick v. State, 5 Iowa, 491; State v. Beneke, 9 Iowa, 203; People v. Collins, 3 Mich. 243; Railroad Co. v. Commissioners of Clinton County, 1 Ohio, N. S. 77; Parker v. Commonwealth, 6 Penn. St. 507; Commonwealth v. McWilliams, 11 Penn. St. 61; Maize v. State, 4 Ind. 342; Meshmeier v. State, 11 Ind. 482; State v. Parker, 26 Vt. 362; State v. Swisher, 17 Texas, 441; State v. Copeland, 3 R. I. 33.

2

Brig Aurora v. United States, 7 Cranch, 382; Bull v. Read, 13 Grat. 78; State v. Parker, 26 Vt. 357.

3 Ang. & Ames on Corp. § 81.