supervision on the part of the legislative department over the executive has sometimes been suggested as evidence of the subordination of the executive to the power of the legislature. But in discharging the power of impeachment and trying the officer for the crime or misconduct alleged against him, the branches of the legislative department act rather in a judicial than a legislative capacity. The court of impeachment, consisting of the senate in the case of a federal officer, and usually of the higher branch of the state legislature in the case of a state officer, does not act as a legislative body, but proceeds in accordance with the provisions of the federal or state constitution, as the case may be, to determine whether the officer charged has been guilty of the crime or misconduct alleged, and whether, in consequence thereof, he shall be removed from office. (See below, § 28.) In this there is no infringement by the legislative department of executive independence.

It has already been pointed out (see above, § 7) that there are many political questions and questions affecting international relations, as to which the action of the executive department is conclusive, and cannot be reviewed or passed upon by the

courts.

26. The Legislature Cannot Exercise Judicial Power.

The independence of the different departments of government is especially emphasized with reference to the functions of the judiciary. It is a fundamental principle of constitutional government that the courts, which are organized for the purpose of deciding controversies, shall be free from bias or extraneous influence, and that judicial questions shall be determined by the courts, and not by the executive or the legislature. Therefore it is fully recognized that under our system of government questions which are in their nature essentially and necessarily judicial cannot be passed upon save by judicial tribunals; and the decisions of such tribunals are final and cannot be reviewed by any other department of the government. Neither the legislature nor the executive can, as between adverse claimants to property, vest the title in the one or the other, and thus in

§ 27]

Judicial Independence.

59

effect adjudicate the ownership of the property; nor can the legislature determine that an individual has been guilty of crime, and subject him to punishment therefor without a judicial trial. These principles are involved in the usual constitutional guaranties of due process of law and prohibition of bills of attainder; but a fuller exposition of them will be given in another place. (See below, §§ 228, 258.) However, an important application of these principles should be noticed here, involving the power of the legislature to interfere with the judgments of the courts. It is well settled that when a judgment has been rendered, the legislature cannot by a statutory enactment undo what the courts have done, or reverse their decisions. For instance, although the legislature may authorize new trials, it cannot provide for a new trial in a case already tried; and although it may provide for appeals, it cannot of its own authority in a particular case review or reverse a decision of a court.

Some judicial authority is exercised in England by the House of Lords, but in so acting it is a court, and not a legislative body. Likewise at one time in New York the senate was a court for the correction of errors, to which appeals might be taken from the courts of the state, but this also was the exercise of judicial, and not legislative, functions. Legislative divorces have been recognized as valid in many of the states, it being considered that the power to grant a divorce was not a judicial power; but in some of the states, at least, there are now constitutional prohibitions of legislation with reference to granting divorces in specific cases, although, of course, the legislature may provide the laws in accordance with which divorces may be granted by the courts.

27. Judges of Courts Cannot Exercise Executive Functions.

The independence of the judiciary, which, as suggested in the last section, has been preserved with peculiar care, involves also the exemption of the judges of the courts from any obligation to perform functions which are not judicial. There are in many states inferior tribunals of a mixed character, such as

the so-called county courts, the judges of which have administrative as well as judicial powers; but the courts provided for by the constitutions of the different states for the exercise of judicial power, and the judges thereof, are regarded as exempt from any duty to perform functions which properly belong to other departments of the government. Thus the judges cannot be required to act as commissioners of elections (Case of Supervisors of Elections) nor as trustees for the administration of municipal works such as waterworks (State v. Barker), or the like; and it may be stated as a general proposition that such authority cannot be exercised by them.

28. Impeachment of Officers through Legislatures.

By the constitution of England, Parliament exercises some restraint on the power of the king by means of the impeachment of the king's ministers, the officers appointed by him to discharge important functions of government. This power is said to have been exercised by Parliament as early as the year 1376, and has been recognized throughout the subsequent constitutional history of Great Britain down to the present time, the charge being presented by the House of Commons to the House of Lords, in which the trial for the offence is conducted. In the Act of Settlement (1700), the king was expressly prohibited from exercising the power of pardon with reference to a charge made or punishment imposed by way of impeachment.

This power of Parliament no doubt furnished to the framers of state and federal constitutions the suggestion of a means by which the legislative department might exercise a legitimate restraint on executive power, and provision is made in many, if not all the state constitutions, as well as in the constitution of the United States, for the removal of officers by the higher branch of the legislative body on complaint of the lower branch. It is to be noticed, however, that the power is circumscribed by our written constitutions as to (1) the persons who may be impeached, (2) the misconduct which may be made the ground of impeachment, (3) the method of procedure, and (4) the Dunishment to be imposed.

§ 28]

Impeachment.

61

By the federal constitution (Art. II, § 4), it is provided that "The president, vice-president, and all civil officers of the United States shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors," and it is now generally conceded that only one who is in office can be thus proceeded against, and that the punishment can only extend to his removal from office and disqualification for holding office in the future. But he may be tried and punished by the courts in accordance with law for any crime he may have committed, notwithstanding the impeachment (Art. I, § 3, 7). The president's power of pardon cannot be exercised in cases of impeachment (Art. II, § 2, ¶ 1).

There has been much uncertainty as to the grounds for removal by impeachment. Those specified in the federal constitution are, no doubt, exclusive so far as federal officers are concerned; but it may now be regarded as settled by practice that "high crimes and misdemeanors " may include misconduct in office which does not in itself constitute a crime.

The impeachment, that is, the accusation against the officer, is formulated by the lower branch of the state legislature or of Congress and presented to the higher branch, which acts as a court for the trial of the officer on the charges presented, and in the case of the United States Senate there is a special provision that when the president of the United States is to be thus tried, the chief justice of the supreme court of the United States shall preside, and that a conviction can be had only upon the concurrence of two-thirds of the members present (Art. I, § 3, 6).

Any attempt on the part of the legislative department to interfere with the executive department by removal of the president or other executive officer on accusations not involving breach of duty, as distinct from the exercise of a legitimate discretion, would be wholly unwarranted by the spirit of our constitutional system, and fortunately no such effort, if it can properly be said to have been made, has ever been successful.

But final authority in determining the sufficiency of the grounds presented is with the legislative body before which the officer is put on trial, and the courts have no power to interfere with the proceedings or pass upon the validity of the action taken.

29. Legislative Power may not be Delegated.

The legal principle that an officer or agent cannot delegate to another the powers confided to him, unless authorized to do so, is specially applicable to legislative bodies. Since the power to make laws is vested in the legislative department, and involves a large exercise of discretion and judgment to be discharged by those directly selected for that purpose by the people, it is properly insisted that the authority thus conferred cannot be transferred to any other person or body of persons, unless authorized by the constitution. Therefore, it is well settled that, unless in the state constitution there is some provision made for a referendum (see above, § 4), the legislature cannot make the validity of a statute depend upon the result of a popular election, in which the voters are asked to decide whether or not the proposed law shall go into effect (Rice v. Foster; Geebrick v. State). The constitutional power of the electors with reference to the making of laws, in the absence of a provision for referendum, is limited to the selection of members of the legislature, in whom the legislative authority is vested. For the same reasons, it is well settled that Congress cannot delegate to the president the power to determine whether or not a statutory provision shall become a law. While the president may in proper form approve or veto a bill which has passed both houses of Congress, he cannot be given authority, in his own judgment and discretion, to determine whether a proposed measure shall go into effect. A statute must rest for its authority on its lawful adoption by the houses of Congress and approval by the president, and not merely on the executive authority.

A distinction must be drawn, however, between the making of laws, and the provision, by means of laws duly made, for the exercise of authority and discretion by some officer or