$ 30] Delegation.-Checks and Balances. 63

body, exercised in accordance with the provisions of such laws. Thus, the legislature of a State may by statute, duly enacted, leave it to be determined by vote of the electors of the cities whether or not licenses for selling liquor shall be granted in such cities, or whether domestic animals shall be allowed to run at large (Dalby v. Wolf), and Congress may, by statute regularly passed, leave it to the president to decide whether retaliatory tariff duties shall be collected on goods brought from a particular country (Field v. Clark). Moreover, limited legislative authority may be directly conferred by a state legislature upon municipal corporations, such delegation of authority being within the implied powers of the legislative department, even though not expressly recognized in the constitution. (See below, § 97.)

30. Checks and Balances in our Government.

It is often said that our governmental system is one of checks and balances for the purpose of restraining the undue exercise of power by the government or its officers, the theory being that unlimited power is not vested in any department; and, to the degree previously set forth in this chapter, this statement is measurably true. Each department of government does, in a sense, serve the purpose of a check upon the others. While the legislative department cannot directly control the action of the executive or judiciary, it can, by virtue of its sole power to provide for the raising and expenditure of money, exercise a very potent influence with reference to legislative and judicial action; and the judiciary department, by virtue of its authority in a proper case to pass upon the validity of the acts of the legislature or the executive, can restrain those departments within the scope of their proper functions. Again, the division of sovereignty between the federal and the state governments, so that the federal government has supreme power as to limited subjects of a federal nature, while the state governments have general power as to all matters not placed in the control of the federal government, makes each, to some extent, a check upon the other. But the theory of checks and

balances must not be interpreted as meaning that either the state or federal government may interfere with the other in the proper discharge of the powers conferred upon it; nor with the well-established rule that in case of an apparent conflict of authority between a state and the federal government, the latter has the ultimate power to decide upon the extent of its own authority. This power is to be exercised, it is true, in accordance with the provisions and limitations of the constitution, but the necessity of providing some tribunal where such conflicts of authority may be authoritatively decided in accordance with the constitution and the law, and not by force or revolution, has dictated the wise provision that the federal judiciary is vested with this ultimate authority. (See above, § 19.) In other words, the checks which federal and state governments may exercise with reference to each other, and likewise those which are vested in the departments of government, are, after all, merely the checks which, by the constitution, are imposed on each; and the whole matter comes to this, that no government, or department of government, can constitutionally exceed the authority given to it, nor act otherwise than as authorized by the constitution.

Part II.

Organization of Government.

CHAPTER V.

LEGISLATIVE DEPARTMENTS.

31. References.

Joseph Story, Constitution, $$ 545-904, 1410-1488, 1963; T. M. Cooley, Constitutional Limitations, ch. vi; J. R. Tucker, Constitution, §§ 186-212; The Federalist, Nos. 52-63; H. C. Black, Constitutional Law, §§ 141, 144-148; A. B. Hart, Actual Government (Amer. Citizen Series), chs. vii, xiii, xiv; James Wilson, Lectures on Jurisprudence (Andrews' ed.), II, ch. i; James Bryce, American Commonwealth, I, chs. xix, xl.

32. Legislative Branches.

Under the constitution of England as it has existed for several centuries, Parliament, the legislative department of the government of Great Britain, is composed of two houses, and their concurrence in legislation is necessary. The membership of the upper house consists of lords, both secular and ecclesiastical, whose titles are derived from the crown, and the lower branch, or House of Commons, is composed of members chosen by a limited suffrage. In the colonial governments there was usually provision for some sort of legislative assembly of two branches, the members of the upper branch being appointed by the king or his representative, the governor, and the members of the lower branch elected by the people. It was natural, therefore, that in the earliest

state constitutions, as well as in the federal constitution, it should be provided that the legislative power should be vested in an assembly consisting of two branches, the higher branch. less numerous than the lower, and that the concurrence of the two branches should be essential to the enactment of laws. This so-called bicameral system is found also in other countries, and possesses some theoretical and practical advantages which have been sufficient to cause it to be retained in the formation of the later state constitutions. Indeed, this system is so fully recognized and firmly established that it may be regarded as a part of our plan of republican gov

ernment.

In England the assent of the king to legislation proposed by Parliament has always been regarded as essential, and it was natural that the approval of the chief executive should likewise be required in the state and federal constitutions. But in England the king is not regarded as a part or component element of Parliament, and it cannot be properly said that the delegation of the veto power to the executive renders the executive a component part of the legislative department in the matter of legislation, and the functions of the executive in approving or vetoing proposed legislation will therefore properly be discussed in one of the chapters relating to the executive power. (See below, ch. xxi.) Although in Great Britain and also in the colonial governments the higher branch of the legislative body was composed of appointed members, the higher branch, under our system of government, usually called the Senate, as well as the lower and more numerous branch, usually called the House of Representatives, is composed of members selected by some form of election; but the qualifications and method of election of the members of the higher branch may be somewhat different from those provided in case of members of the lower branch. This is especially noticeable with reference to the organization of Congress, the senators being regarded as representatives of the states, while the members of the House of Representatives are selected by vote of the people in separate districts of each state.

33. Legislative Representation; Election and Qualification of Members; Privileges.

For the purpose of selecting senators and representatives in the state legislature, the states are generally divided, under the provisions of their constitutions, into senatorial and representative districts, and from each one or more members are selected for the respective branches of the legislative body.

By the constitution of the United States it is provided that two senators shall be chosen in each state by the legislature thereof (Art. I, § 3, ¶ 1), the term of office being six years. There is now some popular agitation in favor of the choice of senators by popular vote instead of by legislative selection, but any such change would require a constitutional amendment. In case a vacancy occurs by resignation or otherwise, while the legislature of the state is in session, it is filled by the legislature, but if a vacancy occurs during the recess of the state legislature, the executive thereof may make a temporary appointment until the next meeting of the legislature (Art. I, § 3, ¶ 2).

The members of the House of Representatives of the United States are chosen every second year by the people of the several states by the electors of the state having the qualifications requisite for members of the most numerous branch of the state legislature (Art. I, § 2, ¶ 1). The number of members from each state is determined by the enumeration in the census taken each ten years of the whole number of persons in each state, excluding Indians not taxed (Art. I, § 2, 3, and Amend. XIV, § 2). Congress determines after each census the number of members of which the House of Representatives shall be composed, and apportions them among the various states in proportion to population, each state being entitled, however, to at least one representative. The provision of the Fourteenth Amendment that representation of any state in Congress may be reduced proportionally if the right to vote is denied to any of the male inhabitants of such state, being twenty-one years of age and citizens of