state of things upon which the operation of such law is to depend.1

Where the condition on which a general statute is made to depend is the will of the people as expressed at the polls, or otherwise, it would seem that such an act involves the delegation of legislative power to the people. The law would be made to depend upon the discretion and will of the people rather than upon the discretion and will of the legislature, in which body alone the state has vested the law-making power.

But, however this may be, the legislature may enact laws to go into operation only upon the condition that they first be approved by a majority of the people of the locality to which they are to apply. The people of the locality would not in such a case enact a law, in the constitutional sense, but only an ordinance. Such an act has been said to be one of administration, not of legislation.3 It would only be the exercise of an administrative or qualified legislative power, just as the passing of municipal ordinances by a municipal body is only the exercise of an administrative and not of a legislative

1 Locke's Appeal, 72 Pa. St. 491; Ex parte Mato, 19 Texas App. 112.

Barto vs. Himrod, 8 N. Y. 482. See Geebrick vs. State, 5 Ia. 491; State vs. Copeland, 3 R. I. 33; Cooley's Const. Limitations, p. 137. See 3 Law Encycl. 700, c. c.; State vs. Parker, 26 Vt. 357. In at least one case the Constitution of New York provides for a referendum-a delegation of legislative power to the people of the commonwealth. It provides that the commonwealth shall not contract a debt exceeding one million dollars unless it is authorized by a law for some single work or purpose, which law, before it takes effect, must be approved by a vote of the people at a general election, when no other law, bill or constitutional amendment is voted on.

In the fall of 1894 the legislature of New York submitted to the people of New York, Brooklyn and some neighboring towns to be affected thereby, the question of their consolidation under one municipal government. This proceeding differed from the referendum, since the vote of the people was not to be a condition precedent to any law, but only a test of the sentiment of the popular will, the legislature having reserved the right to effect consolidation or to refuse doing so irrespective of the decision of the people.

3 Locke's Appeal, 72 Pa. St. 491.

power. If the legislature can delegate the power of local regulation to a body distinct from itself, such as a local board, there is no constitutional provision which prohibits its delegation to the people of the locality.

Conceding that the legislature may enact laws whose operation depends upon the will of an administrative board or of the people of a locality, can the legislature enact local regulations which should go into effect only upon the condition that they are approved by the courts? Enough has already been said to show that such a law would not provide for a delegation of legislative power to the courts. It would at most delegate only administrative power to the judicial tribunals. Whether a law delegating such power to the courts would be held constitutional or not, would therefore depend upon the question whether the courts regard themselves as authorized to exercise administrative powers. As to this question, the courts are in irreconcilable conflict. The conflict is due partly to the fact that acts such as those described are not distinguished from legislative acts in the constitutional sense, and courts not infrequently give as a reason for their refusal to exercise such power that it is legislative. On the other hand, a majority of the courts consider such power to be administrative, and find no constitutional obstacle to its exercise.2 Where a general statute prescribed the conditions under which the boundaries of a municipal corporation might be extended, and authorized the courts to determine whether the proper conditions existed and whether justice and equity required that territory should be annexed, it was held that the reference of these questions to the courts did not involve the delegation of legislative power, or of the power to create a corporation. The questions, it was said, were so far of a judicial

1 Shumway vs. Bennett, 29 Mich. 451; People vs. Nevada, 6 Cal. 43.

2 Cooley's Constitutional Limitations, p. 146, n. 8.

character that they might properly be committed to the judicial department.'

In Massachusetts, where local option laws are considered valid, a distinction of some force has recently been indicated. It is there intimated that the legislature cannot refer even to the people of a locality the question whether women shall be entitled to vote at local elections, because such question is a political one of general and not local concern. The determination of the classes to be invested with political power is a purely legislative power under any circumstances, and is not within the powers of towns and cities.2

Any and all powers not strictly legislative, executive or judicial, and not vested by the constitution in any particular authority, the legislature may, irrespective of whether they are legislative, executive or judicial in their nature, either assume, or delegate to the executive or judicial department, or to any other authority, whether of its own creation or not, without violating the principle of the separation of governmental powers.

It is not a breach of the constitution for the legislature to delegate to an administrative officer or body, administrative powers legislative in their nature. The creation by it of a railroad commission with power to fix reasonable tolls for freight and passenger transportation, is not an unconstitutional delegation of legislative power.3

School Boards may be invested with general authority to establish for schools such rules and regulations as they shall deem wise.4

1 City of Burlington vs. Leebrick, 43 Ia. 252; Wahoo vs. Dickinson, 36 N. W. 813; contra, Shumway vs. Bennett, 29 Mich. 451. For the constitutional basis of Local Option Laws in general, see Locke's Appeal, 72 Pa. St. 491.

2 Op. of Judges, 160 Mass. 586.

3 R. R. Co. vs. Smith, 70 Ga. 694.

Donahue vs. Richards, 38 Me. 376; B'd of Education vs. Minor, 23 Ohio St. 211; Hopkins vs. Rockport, 105 Mass. 475; Murphy vs. Board of Directors, 30 Ia. 429; Rulison vs. Post, 79 Ill. 567.

The legislature may delegate to local governmental organizations quasi-legislative powers. Properly speaking, such powers are administrative rather than legislative. The rule of the delegation of powers must be construed in the light of the immemorial usage of this country and England, which always recognized certain powers of local regulation.' The making, executing and interpreting of municipal ordinances and local rules and regulations, cannot under a constitution which has adopted the English form of local self-government, be included within the powers confided by the constitution to the three departments of government.

Congress may confer on the territorial governments a general authority to legislate on their own affairs. But it cannot delegate general legislative authority to the local government of the District of Columbia. Congress must exercise exclusive legislative power over the District.3

Administrative powers of a legislative nature may be delegated to the courts, and to the executive department of the government. The legislature may delegate to the governor authority to make pilotage regulations.4

The legislature cannot assume any judicial power in the restricted constitutional sense, nor can it delegate such power to any other authority than the courts or judicial officers provided for by the constitution.

While the constitutions permit certain courts to be established by the legislature, the legislature cannot destroy or interfere with the courts established by the constitution itself. It may establish courts, but it does not invest the courts which it creates with judicial power. The constitution alone can do that, for all judicial power comes from that instrument, and is

1 Cooley's Const. Limitations, p. 191.

2 Roach vs. Van Riswick, 4 MacArthur, 171.

3 U. S. Const., art. ii, sec. 5.

Martin vs. Withers, 135 Mass. 175.

vested by that instrument in courts and judges. An act providing for the appointment of commissioners by the general assembly, to assist a court in the performance of its duties, was held unconstitutional, as an attempt by the legislature to invest such officers with judicial rights and functions. If the act contemplated that the commissioners should be mere assistants of the court, occupying positions analogous to those of masters, commissioners, or masters in chancery, such assistants, it was held, must be selected by the courts. If the commissioners were not to be considered as judges, they could not be made to share judicial duties. For the same reason, a statute authorizing parties by consent of the court to select a person to act as judge for the trial of a particular case, is void. It has been further held that a clerk of a court cannot be authorized by an act to render judgments by default, the clerk being only a ministerial officer.3 Nor is it within the power of the legislature to authorize an unofficial person to sit in the place of a judge who is disqualified.*

The legislature cannot delegate judicial power to the governor or any other commonwealth officer. It cannot, therefore, authorize the governor, or any other officer, to pass upon the validity of a government grant and to correct errors therein.5

But administrative powers of a judicial nature may be delegated to the executive department of government, as the power to remove officers for cause generally, or for specified causes. And, as has already appeared, administrative power of a judicial nature may be assumed by the legislature.

1 See State vs. Noble, 21 N. E. Rep. 244; 39 Alb. Law J., 242, 257; Hutkuff vs. Demorest, 103 N. Y. 377; Schultz vs. McPhilters, 79 Ind. 373; Cohen vs. Hoff, 3 Brev. 500.

2 Winchester vs. Ayres, 4 Ia. 104.

Hall vs. Marks, 34 Ill. 358.

Van Slyke vs. Insurance Co., 39 Wis. 390; State vs. Judges, 13 Cent. Rep. 324 and n.

Hilliard vs. Conelly, 7 Ga. 172.