In every government constitutional in any sense there is a division into three departments: the legislative, the executive, and the judicial. Each of these departments is independent. Its independence is a condition to be taken into the account in any discussion of the position of the administration. As the departments are co-ordinate, the executive cannot be subordinated to either of the departments by any means. This is the legal consequence of the division of the departments.

The separation of powers in government must be taken into the same account. The usual distribution will folThere are three sorts of func

low the same division.

tions of government: legislative, executive, and judicial. The legislative department will in a normal case exercise all legislative functions; the executive department, all executive functions; the judiciary department, all judicial functions. Any other distribution would lead

to a confusion of powers. This is the legal consequence of the separation of powers.

$ 18. Separation of departments.

In last analysis, as we have seen, all governmental power relates back to the sovereign. In any separation of departments, therefore, each department exercises sovereignty; each in its own sphere is beyond control even of the others. What division of powers there shall be between the departments is a high question of state beyond any rules, a division which may be made in one way in one nation, or in another way in another nation. Forms of government may differ. This essential unity back of it all in government as a whole gives political science its universal character. All exercise of governmental power through all the departments is upon the same basis then; and therefore it is not an abstract theory which makes the great departments of government co-ordinate, each beyond the control of the others in its action; it is rather a fundamental condition. As this discussion goes on, the precise values to be given to the various rules which make up the law upon the separation of powers will often prove to involve most subtle distinctions, it is feared.

This theory of the necessary separation of powers in government has been held from the beginning of speculation upon matters of state to be an elementary principle. In the ancient world ARISTOTLE in his Politics laid it down as accepted that in every form of government there are three departments, these three, one is the part that deliberates, the second is that which has to do with public offices, and the third is the judicial

part. At the beginning of the Rennaissance, these inquiries began anew; that most remarkable book the Defensor Pacis of MARSILLIO of PADUA, in intricate way, sets forth the essential division in the government between the giving of law, the enforcing of it, and the judging of it. Just before the French Revolution was a time of speculation in theories of government such as the world has never seen; in that time in his Esprit de Lois, MONTESQUIEU laid down the theory in final form: there are in each state three sorts of powers, the legis lative power, the executive power, and the judicial power.

The direct effect of this theory of the separation of powers in determining the framework of governments in the United States can be proved by the express declarations of the makers of the original constitutions. No one with any acquaintance with the literature of that period can have any doubt that his theory of the separation of the departments is at the basis of our constitutional structure. It is so in form; in the typical constitution in the United States, one article is devoted to the construction of the legislature, another article to the erection of the judiciary, another to the creation of the executive. The suggestion that is in this is that the three departments have an equal origin in the constitution; it must therefore be a principle that they are co-ordinate.

A constitution which so divides the departments of government must be obeyed; legislation that contravenes such a constitution must be held void. An instance of the application of this rule is seen in Auditor v. Atchison, etc., R. R., 6 Kan. 506 (1870)—an im

portant problem in view of the amount of legislation governing the administration of the matter of taxation. In this commonwealth a Board of Appraisers and Assessors was established by law to assess railroad préperty. The property of the railroad here in the litigation was assessed and the assessment was deposited with the Auditor of the State together with the full record of the proceedings. The auditor appealed from the assessment as too low to the Supreme Court of Kansas in accordance with the clause in the statutes providing such appeal. The appeal being filed, the railroad moved the court to dismiss it on ground of want of jurisdiction because of the unconstitutionality of the statute.

KINGMAN would not entertain the appeal: The legislature is restricted to the grant of appeals in their nature and essence judicial in their character. It would be absurd to claim that it is in the power of the legis lature to clothe this court with authority to review acts purely executive in their character, by giving an appeal to this court. Many of the duties which the executive is called upon to perform require great care and judgment in deciding how to act. Yet, when the decision is made an appeal could not be given to this court for that would give to the court executive powers. as well as judicial-a power as dangerous to good gov ernment as it is subversive of the constitution which has carefully kept separate the executive, legislative and judicial departments of the government. It certainly could not be so, or it would of necessity obliterate the lines by which the framers of that instrument sought to keep separate and distinct, the three branches of our government.

Adm. Law-5.

This principle of the independence of the administration must not be imposed too far, however, upon the conditions of constitutional government in the United States. It may be well to cite one remarkable claim of this sort, that made by the Comptroller, in Re Sugar Bounty, 2 Compt. Dec. 98 (1895). This was a claim of the Oxnard Beet Sugar Company for $11,782.50, bounty of 2 cents per pound on sugar produced within the United States, according to the provision in the act of July 31, 1894. The Auditor certified the case to the Comptroller; whereupon the Comptroller called upon the claimant to show why the Comptroller should not refuse payment of these bounties on the ground of the unconstitutionality of the appropriation.

And upon that basis BOWLER, the Comptroller, refused payment: The conclusion is irresistible that it is the duty of the executive officer to obey the law; that the constitution is the supreme law, and so are statutes passed in pursuance thereof; that statutes which do not conform to the constitution are not law, and therefore when a statute is in apparent conflict it becomes the duty of the executive officer to determine for himself as between the statute and the constitution whether the statute is the law. It is true that the statute is to be considered prima facie constitutional and that it should be followed unless clearly unconstitutional. It is true also that the officer acts at his peril if he does not execute a constitutional statute, but it is none the less true that he acts at his peril if he executes an unconstitutional statute. The comptroller has never claimed to be invested with any judicial power by virtue of which he is authorized to hold and treat an act