another; in other words, that the legislative and judicial characters be kept separate." Moral Philosophy, bk. 6, c. 8.

Blackstone says: "In this distinct and separate existence of the judicial power in a peculiar body of men, nominated, indeed, but not removable at pleasure, by the crown, consists one main preservative of the public liberty, which cannot subsist long in any state unless the administration of common justice be in some degree separated both from the legislative and also from the executive power. Were it joined with the legislative, the life, liberty, and property of the subject would be in the hands of arbitrary judges, whose decisions would be then regulated only by their own opinions, and not by any fundamental principles of law, which, though legislators may depart from, yet judges are bound to observe. Were it joined with the executive, this union might soon be an overbalance for the legislative." 1 Bl. Comm. 269.

Baron Montesquieu writes: "When the legislative and executive powers are united in the same person, or the same body of magistrates, there can be no liberty, because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty of the judiciary power if it be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. There would be an end of everything were the same man, or the same body, whether of nobles or of the people, to exercise these three powers,-that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals." Spirit of Laws, bk. 11, c. 6.

It is true that this is ancient doctrine, but it serves no ill purpose to renew familiarity therewith, especially in times when it is claimed that the complexity of commercial affairs affords sufficient cause to either undermine or openly destroy those safeguards that are deemed so essential to the permanency of a free government. In the distribution of the powers of government between the three departments the federal Constitution is as general in its provisions as that of the state of Kansas. There is the same absence of any positive and specific prohibition against the conferring of the powers of the one upon the other. In Kilbourn v. Thompson [103 U. S. 191, 26 L. Ed. 377] it was said: "It is believed to be one of the chief merits of the American system of written constitutional law that all the powers intrusted to government, whether state or national, are divided into the three grand departments, the executive, the legislative, and the judicial; that the functions appropriate to each of these branches of government shall be HALL CASES CONST.L.-3

vested in a separate body of public servants, and that the perfection of the system requires that the lines which separate and divide these departments shall be broadly and clearly defined. It is also essential to the successful working of this system that the persons intrusted with power in any one of these branches shall not be permitted to encroach upon the powers confided to the others, but that each shall, by the law of its creation, be limited to the exercise of the powers appropriated to its own department, and no other. * The Constitution declares that the judicial power of the United States shall be vested in one supreme court, and in such inferior courts as the congress may, from time to time, ordain and establish. If what we have said of the division of the powers of the government among the three departments be sound, this is equivalent to a declaration that no judicial power is vested in the congress, or either branch of it, save in the cases specifically enumerated to which we have referred."

*

*

The decisions of the supreme court of Kansas upon the interpretation of the fundamental law of the state in regard to this question and the application thereof to legislative enactments are to the same effect, and in such matters they are binding upon this court. * * [Here follow quotations from In re Huron, 58 Kan. 152, 48 Pac. 576, 36 L. R. A. 824, 62 Am. St. Rep. 614, In re Sims, 54 Kan. 1, 37 Pac. 135, 25 L. R. A. 110, 45 Am. St. Rep. 261, and Auditor v. Ry. Co., 6 Kan. 500, 7 Am. Rep. 575.] Following the decisions of the highest court in the state, I am therefore constrained to hold that the act of the legislature is violative of the provisions of the Constitution of the state of Kansas. Temporary injunction granted.*

4 The Virginia Constitution of 1902 provided (sections 155, 156) for a Corporation Commission in which various powers were united. Of this it was said by Harrison, J., in Winchester & S. Ry. Co. v. Commonwealth, 106 Va. 264, 267-270, 55 S. E. 692, 693 (1906) [approved in Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 225, 29 Sup. Ct. 67, 53 L. Ed. 150 (1908)]:

"This court has recognized the validity of the State Corporation Commission as a legally constituted tribunal of the state, clothed with legislative, judicial, and executive powers. Atlantic Coast Line v. Commonwealth, 102 Va. 599, 46 S. E. 911; Norfolk, etc., Co. v. Commonwealth, 103 Va. 294, 49 S. E. 39. In the last-named case, at page 295 of 103 Va., page 41 of 49 S. E., it is said: "The State Corporation Commission, created by constitutional authority, is the instrumentality through which the state exercises its governmental power for the regulation and control of public service corporations. For that purpose it has been clothed with legislative, judicial, and executive powers.' * * * [Here follow references to the exercise of both legislative and judicial powers by the British House of Lords; to Calder v. Bull, 3 Dall. 386, 394, 395, 1 L. Ed. 648, denying that the federal Constitution forbade a state legislature to exercise judicial functions, as by granting new trial; and to Satterlee v. Matthewson, 2 Pet. 380, 413, 7 L. Ed. 458.]

"The doctrine that it is competent for a state to unite in one board or tribunal some of the legislative, executive, and judicial powers of the government, as well as the further proposition, that when a state does this, it violates no prohibition of the federal Constitution, and that any such question is one for the determination of the state, its action in the matter being ac

THE FEDERAL EXECUTIVE1

STATE OF MISSISSIPPI v. JOHNSON.

(Supreme Court of United States, 1867. 4 Wall. 475, 18 L. Ed. 437.) [Original proceeding to enjoin the enforcement in Mississippi of certain federal statutes providing for the government by military commanders under authority of Congress of certain of the Southern states lately in rebellion. President Johnson had vetoed them as unconstitutional, and they had been passed over his veto.]

Mr. Chief Justice CHASE. A motion was made, some days since, in behalf of the state of Mississippi, for leave to file a bill in the name of the state, praying this court perpetually to enjoin and restrain Andrew Johnson, President of the United States, and E. O. C. Ord, general commanding in the district of Mississippi and Arkansas, from executing, or in any manner carrying out, certain acts of Congress therein named. The acts referred to are those of March 2 and March 23, 1867, commonly known as the Reconstruction Acts. The Attorney General objected to the leave asked for, upon the ground that no bill which makes a President a defendant, and seeks an injunction against him to restrain the performance of his duties as President, should be allowed to be filed in this court. This point has been fully argued, and we will now dispose of it.

cepted as final, is well supported by the more recent case of Dreyer v. Illinois, 187 U. S. 71, 84, 23 Sup. Ct. 28, 32 (47 L. Ed. 79) in which Mr. Justice Harlan, delivering the unanimous opinion of the court, says: 'Whether the legislative, executive, and judicial powers of a state shall be kept altogether distinct and separate, or whether persons or collections of persons, belonging to one department, may, in respect to some matters, exert powers which, strictly speaking, pertain to another department of government, is for the determination of the state, and its determination one way or the other cannot be an element in the inquiry whether the due process of law prescribed by the fourteenth amendment has been respected by the state or its representatives when dealing with matters involving life or liberty. "When we speak," said Story, "of a separation of the three great departments of government, and maintain that that separation is indispensable to public liberty, we are to understand this maxim in a limited sense. It is not meant to affirm that they must be kept wholly and entirely separate and distinct, and have no common link or dependence, the one upon the other, in the slightest degree. The true meaning is that the whole power of one of these departments should not be exercised by the same hands which possess the whole power of either of the other departments; and that such exercise of the whole would subvert the principles of a free Constitution." Story's Const. (5th Ed.) 393. Again: "Indeed, there is not a single Constitution of any state in the Union which does not practically embrace some acknowledgment of the maxim, and at the same time some admixture of powers constituting an exception to it." Story's Const. (5th Ed.) 395.'"

1 For discussion of principles, see Black, Const. Law (3d Ed.) §§ 66, 69.

We shall limit our inquiry to the question presented by the objection, without expressing any opinion on the broader issues discussed in argument, whether, in any case, the President of the United States may be required, by the process of this court, to perform a purely ministerial act under a positive law, or may be held amenable, in any case, otherwise than by impeachment for crime. The single point which requires consideration is this: Can the President be restrained by injunction from carrying into effect an act of Congress alleged to be unconstitutional?

It is assumed by the counsel for the state of Mississippi, that the President, in the execution of the Reconstruction Acts, is required to perform a mere ministerial duty. In this assumption there is, we think, a confounding of the terms ministerial and executive, which are by no means equivalent in import. A ministerial duty, the performance of which may, in proper cases, be required of the head of a department, by judicial process, is one in respect to which nothing is left to discretion. It is a simple, definite duty, arising under conditions admitted or proved to exist, and imposed by law.

The case of Marbury v. Madison, Secretary of State, 1 Cranch, 137, 2 L. Ed. 60, furnishes an illustration. A citizen had been nominated, confirmed, and appointed a justice of the peace for the District of Columbia, and his commission had been made out, signed, and sealed. Nothing remained to be done except delivery, and the duty of delivery was imposed by law on the Secretary of State. It was held that the performance of this duty might be enforced by mandamus issuing from a court having jurisdiction. So, in the case of Kendall, Postmaster General, v. Stockton & Stokes, 12 Pet. 527, 9 L. Ed. 1181, an act of Congress had directed the Postmaster General to credit Stockton & Stokes with such sums as the Solicitor of the Treasury should find due to them; and that officer refused to credit them with certain sums, so found due. It was held that the crediting of this money was a mere ministerial duty, the performance of which might be judicially enforced. In each of these cases nothing was left to discretion. There was no room for the exercise of judgment. The law required the performance of a single specific act; and that performance, it was held, might be required by mandamus.

Very different is the duty of the President in the exercise of the power to see that the laws are faithfully executed, and among these laws the acts named in the bill. By the first of these acts he is required to assign generals to command in the several military districts, and to detail sufficient military force to enable such officers to discharge their duties under the law. By the supplementary act, other duties are imposed on the several commanding generals, and these duties must necessarily be performed under the supervision of the President as commander in chief. The duty thus im

posed on the President is in no just sense ministerial. It is purely executive and political.

An attempt on the part of the judicial department of the government to enforce the performance of such duties by the President might be justly characterized, in the language of Chief Justice Marshall, as "an absurd and excessive extravagance." It is true that in the instance before us the interposition of the court is not sought to enforce action by the executive under constitutional legislation, but to restrain such action under legislation alleged to be unconstitutional. But we are unable to perceive that this circumstance takes the case out of the general principles which forbid judicial interference with the exercise of executive discretion. It was admitted in the argument that the application now made to us is without a precedent; and this is of much weight against it. Had it been supposed at the bar that this court would, in any case, interpose, by injunction, to prevent the execution of an unconstitutional act of Congress, it can hardly be doubted that applications with that object would have been heretofore addressed to it. Occasions have not been wanting. The constitutionality of the act for the annexation of Texas was vehemently denied. It made important and permanent changes in the relative importance of states and sections, and was by many supposed to be pregnant with disastrous results to large interests in particular states. But no one seems to have thought of an application for an injunction against the execution of the act by the President. And yet it is difficult to perceive upon what principle the application now before us can be allowed and similar applications in that and other cases have been denied. The fact that no such application was ever before made in any case indicates the general judgment of the profession that no such application should be entertained.

It will hardly be contended that Congress can interpose, in any case, to restrain the enactment of an unconstitutional law; and yet how can the right to judicial interposition to prevent such an enactment, when the purpose is evident and the execution of that purpose certain, be distinguished, in principle, from the right to such interposition against the execution of such a law by the President? The Congress is the legislative department of the government; the President is the executive department. Neither can be restrained in its action by the judicial department; though the acts of both, when performed, are, in proper cases, subject to its cog

nizance.

The impropriety of such interference will be clearly seen upon consideration of its possible consequences. Suppose the bill filed and the injunction prayed for allowed. If the President refuse obedience, it is needless to observe that the court is without power to enforce its process. If, on the other hand, the President complies with the order of the court and refuses to execute the acts of