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given cases or classes of cases, or what the judgment shall be when the court is equally divided in opinion.22 And "the legislature has no right, directly or indirectly, to annul in whole or in part a judgment or decree of a court already rendered, or to authorize the courts to reopen and rehear judgments and decrees already final, by which the rights of the parties are finally adjudicated, fixed, and vested; every such attempt of legislative action is plainly an invasion of judicial power."23 Thus, when an action or other judicial proceeding has been tried and a decision rendered, the legislature cannot, by an act subsequently passed, grant a new trial,24 or grant a writ of error after the right to the same has become barred by lapse of time, or after the appellate court has finally adjudicated the case.25 On a similar principle, the legislature cannot, by a statutory enactment, declare an act of its own to be either constitutional or void, though it may repeal any law (subject to any rights which may have been acquired under it) on the assumption that it was valid when enacted.2 Expository statutes, the office of which is to declare what shall be taken to be the true meaning and intent of a law already in force, are valid if they are to apply only to controversies thereafter arising; but in so far as they are intended to have a retrospective operation, that is an unlawful assumption of judicial power and invalid." And although, to a considerable extent, the rules of evidence are under the control of the legislature, it is not competent for that body to make a rule which shall in effect finally deter

22 Northern v. Barnes, 2 Lea (Tenn.) 603.

28 Ratcliffe v. Anderson, 31 Grat. (Va.) 105. See, also, De Chastellux v. Fairchild, 15 Pa. St. 18; Miller v. State, 8 Gill (Md.) 145.

24 State v. Flint, 61 Minn. 539, 63 N. W. 1113.

25 McCabe v. Emerson, 18 Pa. St. 111.

26 In re County Seat of La Fayette County, 2 Chand. (Wis.) 212.

27 Koshkonong v. Burton, 104 U. S. 668; Gorman v. Commissioners, 25 Fed. 647; Singer Manuf'g Co. v. McCullock, 24 Fed. 667; Lambertson v. Hogan, 2 Pa. St. 22; Greenough v. Greenough, 11 Pa. St. 489; Reiser v. Association, 39 Pa. St. 137; Todd v. Clapp, 118 Mass. 495; Shallow v. City of Salem, 136 Mass. 136; Dash v. Van Kleeck, 7 Johns. 477; People v. Board of Sup'rs of New York, 16 N. Y. 424; Lincoln Bldg. & Sav. Ass'n v. Graham, 7 Neb. 173; Kelsey v. Kendall, 48 Vt. 24; McNichol v. Reporting Agency, 74 Mo. 457; McManning v. Farrar, 46 Mo. 376; Dequindre v. Williams, 31 Ind. 444; James v. Rowland, 52 Md. 462.


mine controversies and deprive the courts of their functions. Thus, a tax deed cannot be made conclusive evidence in respect to the merits of the controversy in which it appears.28 Nor can the legislature take away from courts created by the constitution the power to punish for contempt, although reasonable regulations by that body touching the exercise of this power are binding.29 But, on the other hand, a legislative act of divorce is not an unconstitutional encroachment upon the office of the judiciary, if it proceeds no further than to the dissolution of the relation of marriage, without affecting property rights of the parties.3°

Limitations on Executive Power.

It is not competent for the executive officers of the government to assume any share in the making of laws. Their business is merely to enforce the laws.


Aside from the few cases in which the executive is charged with quasi-judicial powers (as in the instance of his authority to grant pardons), the independence of the judicial department requires that it should be free from his control, authority, or influence. It is his duty to execute the judgments and sentences of the courts. He cannot suspend the operations of the tribunals in their regular duty of administering the laws nor supersede their authority, unless in case of war, or, to a limited extent, by a declaration of martial law, nor has he the power, under our constitutions generally, to remove the judges from their office. The chief executive of a state or of the nation has the right, and it is his duty, in considering a legislative bill awaiting his approval, to judge for himself as to its constitutional validity, and especially where its tendency is to encroach upon his own powers. But when once the measure has been enacted as a law, with or without his assent, he ought to as

28 Callanan v. Hurley, 93 U. S. 387; McCready v. Sexton, 29 Iowa, 356. 29 Wyatt v. People. 17 Colo. 252, 28 Pac. 961.

30 1 Bish. Mar. & Div. §§ 680–686.

31 The governor of an English colony has not, by virtue of his appointment, the sovereign authority delegated to him, and an act done by him, legislative in its nature, on his own authority, unauthorized either by his commission, or expressly or impliedly by any instructions, is not equivalent to such an act being done by the crown itself, and is not valid. Cameron v. Kyte, 3 Knapp,

sume that it is in accordance with the constitution and proceed to enforce it. And when the validity of the act has been passed upon by the courts, the executive is as much bound by their decision as any private citizen. It would be a gross trespass upon the functions of the judicial department if he should attempt to enforce a law which they had pronounced invalid, or refuse to execute a statute which had passed their scrutiny, in accordance with his private judgment.

Limitations on Judicial Power-As Respects the Legislature.

The judicial department is not to make the law, but to interpret and administer it. Nevertheless it is well known that much of the law actually administered in our courts does not owe its existence to legislative enactment, or even to the adoption of the common law, but to the interpretations of the courts, to their enforcement of custom, to the growth of lines of precedents, and to the development of the system of equity. But the gradual formation of this body of law, called "case-law" or "judge-made law," is not regarded as an infraction of the principle under consideration, or as an usurpation of legislative power by the courts. But as regards statutes, not unconstitutional, it is the plain duty of the courts to apply them as they find them. For instance, the correctness or incorrectness of a legislative opinion on which an act is founded is not a question within the province of the courts to determine; they must assume the fact to be as the legislature states or assumes it.32 Another application of the main rule teaches us that legislative powers cannot be imposed upon the judicial department. For example, a statute authorizing a court to assess county taxes is unconstitutional, as it orders a judicial tribunal to do a legislative act.13

Same As Respects the Executive.

There are but few conceivable cases in which the judicial department could usurp purely executive functions or attempt the performance of purely executive acts. But the importance of the principle, in this connection, is discovered in the rule that the courts must arrogate no supervision or control over the executive

32 People v. Lawrence, 36 Barb. 177.

33 Hardenburgh v. Kidd, 10 Cal. 402. See, also, Vaughn v. Harp, 49 Ark. 160; Ex parte Griffiths, 118 Ind. 83, 20 N. E. 513.

department in the discharge of its proper duties. The judiciary does not possess, and cannot exercise, any revisory power over executive duties. Thus the courts have no authority to require the chief executive of the state by mandamus, or forbid him by injunc tion, to perform any executive act which is political in its character, or which involves the exercise of judgment or discretion. At the same time, it is generally (though not universally) conceded that if the duty sought to be enforced is one within the scope of the governor's powers, but is merely ministerial in its nature, not political and not involving the exercise of judgment or discretion, but simply obedience to the commands of positive law, then, if the rights of private persons depend upon the performance of this duty by the executive, the writ of mandamus may issue to compel him.35 The rule settled by the United States courts in this regard is that they "will not interfere by mandamus with the executive officers of the government [such as the heads of departments or bureaus] in the exercise of their ordinary official duties, even where those duties require an interpretation of the law, the courts having no appellate power for that purpose. But when they refuse to act in a case at all, or when, by special statute or otherwise, a mere ministerial duty is imposed upon them, that is, a service which they are bound to perform without further question, then, if they refuse, mandamus will be issued to compel them." 86

34 Astrom v. Hammond, 8 McLean, 107, Fed. Cas. No. 596.

35 Harpending v. Haight, 39 Cal. 189; State v. Fletcher, 39 Mo. 388; People v. Bissell, 19 Ill. 229; People v. Yates, 40 Ill. 126; State v. Chase, 5 Ohio St. 528. 36 U. S. v. Black, 128 U. S. 40, 9 Sup. St. 12; Marbury v. Madison, 1 Cranch, 137; U. S. v. Schurz, 102 U. S. 378; Gaines v. Thompson, 7 Wall. 347; Secretary v. McGarrahan, 9 Wall. 298; Noble v. Union River L. R. Co., 147 U. S. 165, 13 Sup. Ct. 271; Board of Liquidation v. McComb, 92 U. S. 531; U. S. v. Blaine, 139 U. S. 306, 11 Sup. Ct. 607; Decatur Bank v. Paulding, 14 Pet. 497. Mandamus will not lie to compel the secretary of state to pay over to a private citizen money collected by the United States from a foreign government, under arbitration or by diplomatic intervention, as indemnity for injuries inflicted by such foreign power or its subjects upon such citizen. There is no element of contract between the latter and the United States, nor is the fund held in trust for him in such sense that he can require its payment to him by process of law. U. S. v. Bayard, 4 Mackey (D. C.) 310.


55. Questions which are of a political nature are not the subject of judicial cognizance; courts will leave the determination of them to the executive and legislative departments of the government.

Chief Justice Marshall, at an early day, observed that "questions in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court." " And it is a well-settled general rule that no court will undertake to decide questions of this sort. When such questions arise in the course of litigation, the courts will refuse to take jurisdiction of the action, if it necessarily involves such a determination, or, if the question has been settled by the action of the political departments of the gov ernment, the judiciary will accept and follow their conclusions without question. There are two reasons for this rule. In the first place, courts ought not to usurp the functions of the political branches of the government nor intrude upon their jurisdiction, And, second, in public affairs of the state or nation, such as may be made the basis of executive or legislative action, the judicial tribunals must not hamper or embarrass the other departments by prejudging the questions which they will have to decide, or attempting to review their decisions already made.


37 Marbury v. Madison, 1 Cranch, 137, 170.

88 A good illustration of this rule is found in the case of Georgia v. Stanton, 6 Wall. 50. It was a bill filed by the state of Georgia against the Secretary of War, the general of the army, and the commander of the third military district, to restrain them from executing the "Reconstruction Acts” of congress, on the ground that such execution would annul and abolish the existing state government of Georgia, and establish another and different one in its place. The bill also alleged the ownership by Georgia of certain real and personal property, including the state capitol and executive mansion, and that the execution of the acts would deprive plaintiff of the possession and enjoyment of its property. It was held that the rights thus sought to be protected, being rights of sovereignty, of political jurisdiction, of government, of corporate existence as a state, with its constitutional powers and privileges, the questions presented were political questions merely, belonging to the two great political departments of the government, and not the subject of judicial cognizance.

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