attention is paid to the fresh material on special points of mediæval or modern fiscal or economic history that have been discussed during the past decade in England. While, therefore, it is a perfectly reliable and worthy book, which will no doubt be of use in France, it does not afford anything of especial value for the English reader.

Another chapter is added to the economic history of Illinois by the publication of Professor George William Dowrie's Development of Banking in Illinois (University of Illinois Studies in the Social Sciences, Volume ii, number 4, December, 1913; Urbana-Champaign, University of Illinois; 181 pp.) The study covers the period from 1817 to 1863 and includes a full account of the operations of all the banks from the beginning of the state's history until the abolition of banks of issue. The monograph is of importance to others than those interested merely in Illinois history, for the experiences of this state are typical of those of many of the commonwealths of the union. Of especial value is the chapter describing history of the banks during the riotous years of the internal improvement mania.

The Carnegie Institution of Washington, in an effort to gather material upon which to base a comprehensive financial history of the country, has encouraged the preparation of financial histories of the individual states. Of the monographs which have thus far appeared one of the most pretentious is William C. Fankhauser's Financial History of California (Berkeley, University of California Press, 1913; 101-408 pp.) The years prior to 1850 are covered in a few pages so that practically the entire book is devoted to a period of sixty years. The evolution of the revenue system and the history of the state debt and of public expenditures are set forth with great faithfulness and detail, but with a somewhat regrettable lack of information as to actual operation of the system.

The success of Professor Lewis H. Haney's Business Organization and Combination, first published in 1913, is attested by the necessity within a year of a new edition (New York, The Macmillan Company, 1914; xv, 523 pp.). The combination of a treatment of corporation finance with discussion of the trust problem resulted in a book which has a wide appeal. The new edition contains two additional chapters. In the section devoted to the "Structure and Life History of a Typical Business Corporation" is inserted a chapter dealing with "The Development and Organization of the International Harvester Company," and the section on "Public Policy" is strengthened by a chapter entitled "The Sherman Act and Its Interpretation."'

POLITICAL

SCIENCE

QUARTERLY

THE FUNCTION OF A STATE CONSTITUTION

1. State Constitution as a Limitation upon Legislative Power.

TH

HE view is frequently expressed that state legislatures have inherently all power not denied to them by state and national constitutions. This view is based upon the notion that state legislatures inherited the powers of the British parliament and possess such powers in full unless denied. On the other hand it has been said that state legislatures possess no inherent powers, but only such power as has been granted to them by the state constitutions under which they act. This view is supported by the political theories of those who framed the first state constitutions. Certainly the political philosophy of 1776 was based very largely on the notion of social compact and did not recognize the existence of inherent governmental power in either legislative, executive or judicial department. The notion that state legislatures exercise delegated or granted powers is to some extent borne out by the texts of the first state constitutions. So in South Carolina in 1776 and 1778 the legislative power was in terms "vested" in the general assembly and legislative council.' Georgia in 1777 provided that the house of assembly "shall have power to make such laws and regulations as may be conducive to the good order and well-being of the state," and expressly granted a power to repeal laws. Massachusetts in 1780 granted to the

'South Carolina, 1776, sec. vii; 1778, sec. ii. See also North Carolina, 1776, sec. i.

*Georgia, article vii.

general court power to make “ all manner of wholesome and reasonable orders, laws, statutes and ordinances . . . as they shall judge to be for the good and welfare of this commonwealth..." and a provision of the declaration of rights at the same time laid down the principle that all powers of government are derived from the people. Similar provisions appear in the New Hampshire constitution of 1784.

In further support of the view that the state legislatures exercise delegated powers are provisions in bills of rights that "this enumeration of rights shall not be construed to impair or deny others retained by the people." And in some constitutions the language continues, " and all powers not herein delegated remain with the people." The most vigorous judicial utterances with respect to delegated legislative power have come from states which have the latter clause.

In 1852 Chief Justice Ranney of Ohio took a strong position upon the matter:

...

But the authority of the general assembly is much too broadly stated when it is claimed that all its acts must be regarded as valid which are not expressly prohibited by the constitution. . . . [The people] have the most undoubted right to delegate just as much or just as little of this political power with which they are invested as they see proper, and to such agents or departments of government as they see fit to designate. To the constitution we must look for the manner and extent of this delegation; and from that instrument alone must every department of government derive its authority to exercise any portion of political power. That instrument is the letter of attorney, by which alone they are authorized to act at all, and in all cases they must be able to show that their acts are authorized by it. To prevent the enlargement of this grant of power by construction or otherwise, we find it declared in section 28 of the same article [article viii of constitution of 1802] that "all powers not hereby delegated remain with the people...." From these considerations it follows that it is always legitimate to insist that any legislative enactment, drawn in question, is void, either because it does not fall within the general grant of power

1 Massachusetts, 1780, part i, art. v; part ii, chap. i. sec. i, art. iv.

2e. g., Kansas, Ohio, Nebraska, North Carolina.

to that body, or because it is expressly prohibited by some provision of the constitution.1

In Commissioners of Leavenworth County v. Miller,2 Justice Valentine, speaking for the supreme court of Kansas, said:

We suppose that it will be conceded by everyone that the legislature have no inherent power of any kind; that they possess no power except such as is delegated to them by the people; and that unless the constitution of the state authorizes them to enact such a law as the one now under consideration, they have no authority to do it. . . . The question then is, not whether the people had the power to authorize the legislature to pass said act; for that must be conceded; but it is whether the people actually did so authorize the legislature to pass such acts.

Justice Brewer in a dissenting opinion asserted the same view with even more vigor.

The North Carolina bill of rights adopted with the constitution of 1868 contained this provision: "This enumeration of rights shall not be construed to impair or deny others retained by the people; and all powers, not herein delegated, remain with the people." Speaking in 1873, the North Carolina supreme court said:

It is not true as contended for upon the argument that the legislature is supreme except in so far as it is expressly restrained. However that may be in other governments and however it may have heretofore been in this state, it is plain that since the adoption of our present constitution the legislative, just like each of the other departments, acts under a grant of powers and cannot exceed them.3

This view has since been departed from, Chief Justice Clark saying for the court in 1906: "That the federal government is one of granted powers solely, and the state government is one of granted powers as to the executive and judicial departments,

'C. W. & Z. R. R. v. Com'rs of Clinton County, 1 Ohio St. 77 (1852), pp. 84, 85. See a similar expression by Chief Justice Ranney in a dissenting opinion in Cass v. Dillon, 2 Ohio St. 607, pp. 628, 639.

27 Kan. 479 (1871). And see page 549. See also Wright v. Noell, 16 Kan. 601, p. 603.

3 People ex rel. Nichols v. McKee, 68 N. C. 429.

but of full legislative power except where it is restricted by the state and federal constitutions, is elementary law." Justice Connor in an earlier case vigorously combated this view, saying: "The argument that the act is valid because no provision is found in the constitution prohibiting its passage is, I submit with great deference but equal confidence, based upon a misconception of the nature of our government and the fundamental principles upon which it is founded."

The views expressed by courts that a state constitution is a grant of power to the state legislature have been largely dicta, as have also been many of the judicial discussions as to the nature of state constitutions. The notion of delegated power as stated by Justice Connor substantially claims that there are other limitations upon legislatures than those in the texts of constitutions, but this view is probably not held today by any court. The Ohio, Kansas, and North Carolina courts have expressly declared that there are no limits upon state legislative power except such as may be found in the state and national constitutions. Yet in a number of cases it has been urged that legislative power is limited otherwise than by the limitations contained in state and national constitutions; and such an argument has often been adopted by the courts themselves.3

The theory that a state legislature exercises granted or delegated power does not, however, necessarily imply that the legislature shall be subject to other limitations than those in the texts of constitutions themselves. This is true of the theory as stated by Cooley:

In creating a legislative department and conferring upon it the legislative power, the people must be understood to have conferred the full and complete power as it rests in, and may be exercised by, the sov

1 State v. Lewis, 142 N. C. 626 (1906). Daniels v. Homer, 139 N. C. 219 (1905), p. 237. See also Ewart v. Jones, 116 N. C. 570 (1895), p. 580.

2 State ex rel. Attorney-General v. Corrington, 29 Ohio St. 102 (1876). Ratcliffe v. Wichita Union Stock Yards Co., 74 Kan. 1 (1906). State v. Lewis, 142 N. C. 626 (1906).

Loan Association v. Topeka, 20 Wall. 655 (1874) is a classic example. The doctrine of limitations other than those in the constitutions played a rather large part in the development of judicial power over legislation before the Civil War.