ment. Because it was by that instrument that the state government was instituted, the departments created, and the powers to be exercised by each defined and distributed. It is established by that instrument that the powers of government should be divided into the distinct departments. This is to be considered in connection with the known political truth that this is necessary no less for the security of public liberty than private rights -a truth that has been so proclaimed and enforced by some of the most wise and eminent men of this and other countries, and is besides in the full tide of successful experiment in all the sister states as well as the federal government.

A careful examination shows some exceptions to these usual conditions. It is hardly too much to say that in every American government the legislature by the forms of the constitution does something in an administrative way by its officials, at times may hold a trial in a judicial way. The judiciary also in accordance with permission of the constitution may in a few cases make rules for the conduct of its proceedings, and maintain direction over the execution of its decrees. The execu tive itself often has a part in the enactment of legislation, and certain questions are left to the adjudication of the administration. These exceptions are all of them unimportant. Nothing can be argued from the power of impeachment of the legislature, from the advisory opinions of the judges, from the veto of the executive. These are all avowed exceptions in the constitutional structure placed there in pursuance of a certain political doctrine -the theory of checks and balances. Whatever the positive provisions of a constitution may provide can

not be questioned; but neither can any qualification of the general theory of the division of functions be admitted that is not based so upon explicit constitutional provision. The truth of the matter is that the doctrine of the constitutional necessity of the distribution of the powers of government to the corresponding departments of the government is more than a principle of policy. It is a rule of law.

The most extreme instance of this rule against the confusion of powers may be imagined where an administrative body is given both legislative and judicial functions. An administrative body, then, will have legislative, judicial, and executive powers; that will be as contrary to the rule requiring separation of powers as can be. This is not a supposititious case; it is Western Union Tel. Company v. Myatt, 98 Fed. 335 (1899). By Chapter 28 of the Special Sessions Law of 1898, a special tribunal was established to pass upon all questions of rates of public service companies, to be denominated the Court of Visitation. One Maxwell tendered to the Western Union Company certain messages and a certain sum fixed by the Court at a previous sitting. Upon refusal of the complainant to perform the service at such rates, Maxwell filed a complaint with the state solicitor; and the latter filed an information thereon against the complainant in the Court of Visitation, caused citation to be issued upon it, and was proceeding to enforce the performance of the telegraphic service at the maximum rates prescribed. The complainant attacked the validity of said enactments of the legislature, and claimed that the enforcement thereof would operate to deprive it of its property without due

process of law, and as a denial of the equal protection of the laws; and this suit was brought to enjoin further proceedings for the enforcement of the maximum rates complained of. The cause now arose on an application of complainant for a temporary injunction. The proofs on such application clearly showed that the rates prescribed by the law were not only not compensatory, but were materially less than the actual cost of the service It was not denied by defendants that sufficient proof had been made by complainant in this respect.

The opinion in this case was an elaborate one, citing many cases deciding upon the separation of powers. HOOK, District Judge, concluded: In the enactment of the law creating the Court of Visitation and defining its powers and jurisdiction, and of the subsequent law extending such powers and jurisdiction to telegraph companies, the legislature attempted to confer upon a single board or body important and substantial legislative, administrative, and judicial powers, to be exercised in the same proceeding, and as to the same subject-matter. It attempted to confer full power to regulate the operation of railroad and telegraph companies, and to prescribe schedules of rates and charges, which power is legislative or administrative in its character. It also attempted to confer upon the Court of Visitation the power to pass judicially upon its regulations, and the reasonableness of the rates fixed by it, to embody its determinations in decrees, which it was authorized to enforce by the appointment of receivers and the sequestration of the property of the companies. The distinction between legislative and judicial functions is a vital one, and it is not subject to change or impairment either

by legislative act or by judicial decree, for such distinction inheres in the constitution itself, and is as much a part of it as though it were definitely defined therein. When the legislature has once acted, either by itself or through some subordinate board or agency, and has prescribed a tariff of rates and charges, then whether its action is violative of some constitutional safeguard or limitation is a judicial question, the determination of which involves the exercise of judicial functions. The question is then beyond the province of legislative jurisdiction.17

$ 23. Distribution.

How far these principles against confusion of powers would go came at once to the test when the earliest Congress began upon their work for the elaboration of the framework of the governmental system. One of the first missteps was in the enactment of the method of the grant of pensions. The Act of the 5th of April, 1791,

17 DIVISION OF FUNCTIONS.-Murray's Lessee v. Hoboken Land Co., 18 How. 272; Stone v. Farmers' Trust Co., 116 U. S. 307; Andrews v. Hovey, 124 U. S. 717; Shoemaker v. U. S., 147 U. S. 282; Ex Parte Riebeling, 70 Fed. 310; Western Union Tel. Co. v. Myatt, 98 Fed. 335; Fox v. McDonald, 101 Ala. 51; Ex Parte Allis, 12 Ark. 101; Ex Parte Shrader, 33 Cal. 279; People v. Scott, 9 Colo. 422; State v. Staub, 61 Conn. 568; In Re Miller, 5 Mackey 507; McWhorter v. Pensacola R. R., 24 Fla. 417; People v. Harper, 91 Ill. 357; Langenberg v. Decker, 131 Ind. 471; Brown v. Duffus, 66 Ia. 193; Martin v. Ingham, 38 Kan. 654; State v. Shakespeare, 41 La. Ann. 156; Portland, etc., R. R. v. Grand Trunk R. R., 46 Me. 69; Baltimore v. State, 15 Md. 457; Supervisors of Election, 114 Mass. 247; People v. Hurlbut, 24 Mich. 63; State v. Hathaway, 115 Mo. 36; Thorp v. Woolman, 1 Mont. 168; Miller v. Wheeler, 33 Neb. 765; Sawyer v. Dooley, 21 Nev. 390; In Re Cleveland, 51 N. J. L. 311; Brown v. Turner, 70 N. C. 102; Taylor v. Place, 4 R. I. 338; Hoke v. Henderson, 4 Dev. 1.

provided that the petitions should be submitted to the judges of the United States who should certify their findings to the Secretary of War, who should then upon consideration of the whole matter grant or refuse the pension, as to him should seem fit. It is fortunate that we have some account of the rather obscure proceedings in the courts upon this statute in the report of Hayburn's Case, 2 Dallas, 409 (1792).

In the Circuit Court of the district of New York JAY proceeded, on the 5th of April, 1791, to take into consideration the Act of Congress entitled, "An Act to provide for the settlement of claims for petitions to be granted by the Secretary of War." And he was thereupon of opinion that by the constitution of the United States the government thereof is divided into three distinet and independent branches; that neither the legis lative nor executive branch can constitutionally assign to the judiciary any duties but such as are appropriate thereto and to be performed in a judicial manner; that the duties assigned by this act make the decision of the court subject to the consideration and suspension of the Secretary of War and legislature, whereas by the constitution neither the Secretary of War nor other executive officer is authorized to sit as a court of error upon the judicial opinions of this court. Such revision and control are deemed radically inconsistent with the independence of that judicial power which is vested in the court. The legislative, executive and judicial departments are each formed in a separate and independent manner, and the basis of each is the constitution, only within the limits of which each department can alone justify any act of authority; that as the objects of this