to have been intended by the party or people who are the original source of the power.

§ 68. The legislative department as an integral part of our political system is confined to the exercise of its proper powers, and possesses them exclusively, as the other departments severally have theirs. As the possessor of the law-making power, it may confer authority and impose duties upon the others and regulate the exercise of their several functions. It may pass general laws for that purpose, giving them expressly or by necessary implication an incidental discretion to employ the proper means to fill up and regulate the details for themselves and subordinates, though the exercise of that discretion be quasi legislative. This is illustrated by laws empowering the courts in the exercise of their jurisdiction to adopt rules of practice and forms of procedure; and by the powers

1 Wayman v. Southard, 10 Wheat. 1; Bank of United States v. Halstead, id. 51; Coleman v. Newby, 7 Kan. 88; Anderson v. Levely, 58 Md. 192; Thompson v. Floyd, 2 Jones' L. 313; Ross v. Duval, 13 Pet. 45.

In Wayman v. Southard, supra, Marshall, C. J., said: "It will not be contended that congress can delegate to the courts, or to any other tribunal, powers which are strictly and exclusively legislative. But congress may certainly delegate to others powers which the legislature may rightfully exercise itself. Without going further for examples, we will take that the legality of which the counsel for the defendants admit. The seventeenth section of the judiciary act, and the seventh section of the additional act, empower the courts respectively to regulate their practice. It certainly will not be contended that this might not be done by congress. The courts, for example, may make rules directing the returning of writs and processes, the filing of declarations and other pleadings, and other things of the same description. It will not be contended that these things might not be done by the leg

islature without the intervention of the courts; yet it is not alleged that the power may not be conferred on the judicial department.

"The line has not been exactly drawn which separates those important subjects which must be entirely regulated by the legislature itself, from those of less interest, in which a general provision may be made, and a general power given to those who are to act under such general provisions to fill up the details. The seventeenth section of the judiciary act of 1787, ch. 20, enacted 'That all the said courts shall have power to make and establish all necessary rules for the orderly conducting business in the said courts, provided such rules are not repugnant to the laws of the United States;' and the seventh section of the act referred to as the additional act (act 1793, ch. 22, §7) details more at large the powers conferred by the seventeenth section of the judiciary act. These sections were held to give the court full jurisdiction over all matters of practice.” The question in this case related to execution.

"A general superintendence," say

It

granted to the president in such cases as that disclosed in Houston v. Moore.' An act of congress authorized the president in certain exigencies to call forth such number of the militia of the states most convenient to the scene of action as he might judge necessary, and to issue his orders for that purpose to such officers of the militia as he should think proper.2 prescribed a punishment for failing to obey the orders of the president as an offense against the laws of the United States.3 Another conspicuous example of such discretion confided to the president was the act of congress in 1863 empowering him to suspend the writ of habeas corpus.1 The true distinction is between the delegation of power to

the court, "over this subject seems to be properly within the judicial province, and has always been so considered. It is, undoubtedly, proper for the legislature to prescribe the manner in which these ministerial offices shall be performed, and this duty will never be devolved on any other department without urgent reasons. But in the mode of obeying the mandate of a writ issuing from a court, so much of that which may be done by the judiciary, under the authority of the legislature, seems to be blended with that for which the legislature must expressly and directly provide, that there is some difficulty in discerning the exact limits within which the legislature may avail itself of the agency of its courts. The difference between the departments undoubtedly is, that the legislature makes, the executive executes, and the judiciary construes the law; but the maker of the law may commit something to the discretion of the other departments, and the precise boundary of this power is a subject of delicate and difficult inquiry, into which a court will not enter unnecessarily."

In Coleman v. Newby, supra, Valentine, J., said: "If the legislature says that the district courts shall, in certain cases, be clothed with certain

discretionary power, where does the
supreme court get authority to say
that the district court shall not be
clothed with such discretionary
power by making rules limiting that
discretion? It is not in the nature of
things for one court to exercise dis-
cretion for another court; and if it
cannot, who shall say that it can, as
a judicial act or otherwise, make
rules limiting or regulating the de-
cision of another court? An attempt
to do so is an attempt to legislate.
It is claimed, however, that the legis-
lature have authorized the supreme
court to make rules for the district
court; but this the legislature could
not do if they would. The making
of rules is not a subject of judicial
power, as has already been shown;
and the legislature cannot bring
under the judicial power a matter
which from its nature is not a subject
for judicial determination." Mur-
ray v. Hoboken Land Imp. Co., 18
How. 284; Auditor of State v. A. T.
& S. Fe R. R. Co. 6 Kan. 500.
15 Wheat. 1.

2 Act 2d May, 1862.

3 In re Griner, 16 Wis. 423.

4 In re Oliver, 17 Wis. 681; Coe v. Schultz, 47 Barb. 64; Hildreth v. Crawford, 65 Iowa, 339; 21 N. W. Rep. 667.

make the law which involves a discretion as to what the law shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.1

§ 69. What is a delegation of legislative power?— The constitution vests this power in the legislature; it must there remain by force of the constitution. It is exclusively vested in the legislature. The legislature cannot divest itself of the power, nor impart it to others, except in accordance with this distinction, though there are some recognized exceptions which will presently be considered. Legislative power is delegated contrary to the maxim stated when the legislature attempts to confer on others a power of substantive legislation, to be exercised independently or in conjunction with the legislature, or when it constitutes an inferior legislature or law-making body. An instance of such delegation is furnished by the case Slinger v. Henneman.? A section of a statute relative to dogs made the owner of any dog liable to the owner of domestic animals wounded by it for the damages without proving a knowledge of its vicious disposition; by a provision of the act, power was given to the board of supervisors to determine whether or not during the current year their county should be governed by the provisions of the act of which that section constituted a part. It was held that the legislature could not confer that power. The court pertinently remark that it could no more confer such a power than to authorize the board of supervisors of a county to abolish in such county the days of grace on commercial paper, or to suspend the statute of limitations. A similar statute in Missouri was held void for the same reason. A general statute formulating a road system contained a provision that "if the county court of any county should be of opinion that the provisions of the act should not be enforced, they might, in their discretion, suspend the operation of the same for any specified length of time; and thereupon the act should become inoperative in such county for the period specified in such order, and thereupon order the road to be opened and kept in good repair under the

1 Cincinnati, etc. R. R. Co. v. Commissioners, 1 Ohio St. 77.

238 Wis. 504, 508-510.

3 State v. Field, 17 Mo. 529.

laws theretofore in force." Gamble, J., said, "this act, by its own provisions, repeals the inconsistent provisions of a former act, and yet it is left to the county court to say which act shall be in force in their county. The act does not submit the question to the county court as an original question, to be decided by that tribunal, whether the act shall commence its operation within the county; but it became by its own terms a law in every county not excepted by name in the act. It did not then require the county court to do any act in order to give it effect. But being the law in the county, and having by its provisions superseded and abrogated the inconsistent provisions of the previous laws, the county court is .. empowered to suspend this act, and revive the repealed provisions of the former act. When the question is before the county court, for that tribunal to determine which law shall be in force, it is urged before us that the power then to be exercised by the court is strictly legislative power, which, under our constitution, cannot be delegated to that tribunal or to any other body of men in the state. In the present case the question is not presented in the abstract; for the county court of Salem county, after the act had been for several months in force in that county, did, by order, suspend its operation; and during that suspension, the offense was committed which is the subject of the present indictment."

§ 70. Exceptions which have been established. There are some valid delegations of legislative power. Congress has delegated it to territorial governments; other legislatures have delegated it to municipalities. Congress has power to annul territorial legislation; so state legislatures may annul municipal laws; but the annulling act has only the effect of a repeal. They are valid until annulled; they are not thus made void from the beginning. The delegation of legislative power to cities is a limited one- to make by-laws or ordinances; but still a delegation of legislative power. The delegation of power in these instances is to formulate and put in force rules of civil conduct of more or less scope. The territorial grant extends to "all rightful subjects of legislation; " it is granted as broadly as by constitutions to the state legislatures. The power to legislate for the territories was granted to congress by the fed1 Kelly v. Meeks, 87 Mo. 396; S. C. 13 Am. & Eng. Corp. Cas. 220.

eral constitution.' The delegation of it to the territorial government is a departure from the general rule, but consistent with the principles which support the rule; for it is a concession of the right of self-government to those who would otherwise have no voice in making the laws which govern them. The delegation of this power to municipalities is justified on the ground of presumed intention of the people, from the immemorial practice in this country and in England of creating their local governments. These departures decentralize the governing power; the governed have thus a direct voice in the regulation of their local affairs.