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states have been enacted in compliance with the state constitution ;' and so in all matters not involving Federal issues. But it is otherwise in matters of substantive law.3

Treaties

and statin pari

utes come

passu; and

the latest prevails.

383. It will be seen that treaties as well as statutes, wher emanating from the general government within its constitutional orbit, are part of the supreme law of the land. When a statute and a treaty, adopted by the general government, or two successive statutes, come in collision, it is the last in date that prevails. How far treaties are self-acting is considered in a future section. But, unless there is a plain conflict between a statute and a treaty, neither will be construed to override the other." § 384. When a statute is susceptible of two pro- Presumpbable interpretations, by one of which it is uncon- tion is stitutional, and by the other of which it is constitutional, the latter will be preferred.

1 Infra, § 603; Railroad Co. v. Georgia, 98 U. S. 359.

in favor of constitutionality.

nor refuse to give effect to a law of congress, however much it may seem

Fairfield v. Gallatin, 100 U. S. 47. to conflict with the stipulations of the • Infra, § 526.

♦ Infra, §§ 623 et seq. Foster v. Neilson, 2 Pet. 254; The Cherokee Tobacco, -11 Wall. 616; Taylor v. Morton, 2 Curt C. C. 454; Langford v. U. S., 12 N. & H. 338; Baker v. Portland, 5 Sawyer, 566; Ropes v. Clinch, 8 Blatch. C. C. 304; The Clinton Bridge, 1 Woolworth, 150 In Ah Lung, in re, 18 Fed. Rep. 28 S. C., under name of Pong, in re, 17 Cent. L. J. 310, it is said by Field, J.: "An act of congress, then, upon a subject within its legislative power is as binding upon the courts as a treaty on the same subject. Both are binding, except as the latter one conflicts or interferes with the former. If the nation with whom we have made the treaty objects to the action of the legislative department, it may present its complaint to the executive department, and take such other measures as it may deem that justice to its own citizens or subjects requires. The courts cannot heed such complaint,

treaty. Whether a treaty has been violated by our legislation, so as to be the proper occasion of complaint by the foreign government, is not a judicial question. To the courts it is simply the case of conflicting laws, the last modifying or superseding the earlier." S. P., Edye v. Robertson, Blatchford, J., 16 Rep. 547. This was recognized on all sides to be the case with Jay's treaty, which modified the prior legislation of congress as to the relations of the United States to Great Britain.

5 Infra, § 506. As to conflicting action of legislature and executive, see infra, § 388.

6 Leavenworth R. R. v. U. S., 92 U. S. 733; Chin, in re, 18 Fed. Rep. 306. That a Federal treaty, if constitutional, overrides a conflicting state statute, see Mager, succession of, 12 Rob. La. 584; People v. Gerke, 5 Cal. 381.

1 Infra, § 606.

Unconstitutional

part of sta

tute may be

rejected as

surplusage.

§ 385. When a statute is divisible, such portions of it as are unconstitutional may be discharged as surplusage without affecting the remainder.' It is otherwise when the statute is not susceptible of such division, but is composed of interdependent provisions.2 § 386. As will hereafter be seen more fully, the courts will not hold a statute to be binding unless passed in conformity with the limitations of the applicatory constitution. The Federal courts will in this respect follow the adjudications of the state courts having jurisdiction, though not so far as to unseat title acquired under a prior decision of a state court affirming the constitutionality of the passage of a statute afterwards declared to be unconstitutionally passed."

Statute must be constitutionally passed.

III. RELATIONS OF DEPARtments of Government.

Legislative, judicial, and executive func

tions to be kept sepa

rate.

§ 388. There are many cases in which the executive, the judicial, and the legislative departments of government act on common ground. A striking illustratration of this may be found in the electoral commission through the instrumentality of which Mr. Hayes was declared president of the United States. That commission exercised functions ordinarily belonging to the executive in receiving and testing election returns. It exercised legislative functions in laying down the law applicable to moot elections. It exercised judicial functions in deciding the several questions of law rising in the contest. If we reject

v. Bumm, 83 Penn. St. 237; State v. Allen, 2 McCord, 55; Gamble v. McCrady, 75 N. C. 509; Darby v. Wil

1 Com. v. Hitchings, 5 Gray, 482; Middletown, in re, 82 N. Y. 196; Fraser, ex parte, 54 Cal. 94; Hinze v. People, 92 Ill. 406; Cooley Const. Lim., 208-mington, 76 N. C. 133; State v. Clarke, 14.

2 Ibid.; Allen v. Louisana, 103 U. S. 80. That the unconstitutional provisions of a statute when divisible may be rejected as surplusage, see Bank of Hamilton v. Dudley, 2 Pet. 492; Yarmouth v. North Yarmouth, 34 Me. 411; Fisher v. McGirr, 1 Gray, 1; Berlin v. New Britain, 9 Conn. 175; Lea

54 Mo. 17. But this cannot be done
when these provisions qualify the
whole statute, in which case the
whole statute falls. State v. Perry, 5
Ohio St. 497; Hinze v. People, 92 I11.
406; People v. Mahaney, 13 Mich.
481; Rood v. McCargar, 49 Cal. 117.
• Infra, § 603.
4 Infra, §§ 480, 526.

the precedent as anomalous and unconstitutional, we are still met by the union of judicial and legislative, and of executive and legislative, functions in the senate, which sits as a branch of the legislature, when performing its ordinary duties, as a judicial body when the president of the United States is impeached, and as an executive, when acting on the appointments sent to it by the president. But these cases are exceptional. As a rule, judicial or executive, functions cannot be imposed on the legislature, or legislative or executive functions on the judiciary. Thus it has been held that judges cannot be required to exercise the functions of appraisers of property; nor to act as agents of congress in determining what is an appropriate matter of legislation; nor to appoint supervisors of elections; nor to take management of corporations except through receiverships. The legislature, also, cannot undertake a distinctively judicial act, as the determination of a litigated case, or the granting of new trials, or the taking other revisory action when there is an adequate judicial remedy. Nor can a legislature constitutionally divest existing rights by prescribing what shall be conclusive evidence; nor can a legislature determine what instructions shall be given in a litigated suit pending. A statute, also, directing that no judgment of a court of appeals reversing a judgment of the supreme court shall be operative unless concurred in by a majority of the judges of the court of appeal, is unconstitutional." And so is action by either house of con

1 Kilbourn v. Thompson, 103 U. S. 168; State v. Doherty, 60 Me. 504; Denny v. Mattoon, 2 Allen, 361; McDaniel v. Correll, 19 Ill. 226.

Northern v. Barnes, 2 Lea (Tenn.), 603; Little Rock R. R. v. Payne, 33 Ark. 816.

7 Brent v. Chapman, 5 Cranch, 358;

2 Auditor v. Atchison R. R. Co., 6 Leffingwell v. Warren, 2 Black, 599; Kans. 500.

$ U. S. v. Ferreira, 13 How. 40.

♦ This, however (Supervisor's Case, 14 Mass. 247), according to the practice of most states, does not preclude the vesting in the courts of the appointment of the officers of charitable and other public boards.

5 Heine v. Levee Com., 19 Wall. 655. Ratcliffe v. Anderson, 31 Grat. 105;

Alexander v. Bennett, 60 N. Y. 204;
State v. Jersey City, 42 N. J. L. 47;
De Chastellux v. Fairchild, 15 Penn.
St. 18; Com. v. Halloway, 42 Penn. St.
446; Baggs's Appeal, 43 Penn. St.
512; Dorsey v. Gary, 37 Md. 64; see
Cooley's Const. Lim., ch. 5.
• Infra, § 494.

9 State v. Hopper, 71 Mo. 425.
10 Clepp v. Ely, 3 Dutch. 622.

gress committing a witness for contempt in refusing to answer as to a matter distinctively judicial. This limitation, however, does not preclude legislatures from passing curative and remedial acts for the removal of clouds on titles when no vested interest is thereby impaired.-Nor can the legislature assume what are distinctively executive functions.3-Nor is the executive, as to matters distinctively executive, subject to the

1 Kilbourn v. Thompson, 103 U. S. 168; infra, § 397. In Massachusetts a statute enacting that M. and W. should be "husband and wife to all legal intents and purposes," M. having been previously divorced from his first wife without power to marry again, has been held unconstitutional. White v. White, 105 Mass. 325. That a state can divorce by legislative act unless the procedure be given by the constitution to the judiciary is a position generally accepted in this country. 2 Story's Const. Law, 259; Adams v. Palmer, 51 Me. 480; Clark v. Clark, 10 N. H. 385; White v. White, 105 Mass. 325; Cronise v. Cronise, 54 Penn. St. 255; Carson v. Carson, 40 Miss. 349. That special legislative divorces are unconstitutional when a judicial procedure is provided for the purpose by the constitution, see Simonds v. Simonds, 103 Mass. 572; Richeson v. Simmons, 47 Mo. 20.

2 Infra, § 567.

"Whatever power or duty is expressly given to or imposed upon the executive department, is altogether free from the interference of the other branches of government." AttorneyGeneral v. Brown, 1 Wis. 513; and see State v. Kennon, 7 Oh. St. 546; infra, §§ 502, 573 et seq. See Mr. Buchanan's message of March 28, 1860; 2 Curtis's Life of Buchanan, 250. Under this head may be noticed the difficult questions arising when the house of representatives undertakes to interfere with

the negotiations of a treaty. This it can only do by refusing to appropriate funds required by the treaty; and such refusal is open to great constitutional objections. As to treaties see supra, § 383; infra, § 506.

In the charge to the jury in the Dorr Case, the chief justice of Rhode Island, speaking for the whole court, said: "Courts and juries, gentlemen, do not count votes to determine whether a constitution has been adopted or a governor elected or not. Courts take notice without proof offered from the bar what the constitution is or was, and who is or was the governor of their own state. It belongs to the legislature to exercise this high duty. It is the legislature which, in the exercise of its delegated sovereignty, counts the votes and declares whether a constitution be adopted or a governor elected or not, and we cannot revive or reverse their acts in this particular without usurping their power. And why not? Because if we did so we should cease to be a mere judicial and become a political tribunal with the whole sovereignty in our hand; neither the people nor the legislature would be sovereign; we should be sovereign, or you would be sovereign." "Sovereignty is above courts and juries, and the creature cannot sit in judgment upon its creator." This opinion was approved by the supreme court of the United States in Luther v. Borden, 7 How. 1.

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control of the courts. Hence, "it is clear that the legislature cannot change the effect of such a pardon (an amnesty) auy more than the executive can change a law." Nor can the executive be enjoined by the courts from political action either at home or abroad.3-How far the legislature can leave specific questions to popular decision will be hereafter considered.*

Judiciary

supervise matter

political.

§ 389. Chief among the checks on inconsiderate legislation is to be noticed the function of the supreme court to declare acts of the legislature unconstitutional. cannot Several interesting questions may arise as to this function. The first is that though when a statute is held to be unconstitutional it is inoperative in the special issue, it does not follow that a decision of the supreme court as to the constitutionality of certain laws precludes the executive or the legislature from subsequently taking an independent position. Of the refusal of the executive to be so bound we have several instances." Thus General Jackson maintained, and maintained, according to the views heretofore expressed, rightfully, that the decision of the supreme court of the United States affirming the constitutionality of the Bank of the United States did not prevent him from vetoing the bill for the bank's recharter in part on the ground of unconstitutionality; and Mr. Lincoln, in like manner, held that he was not bound by the constitutional rulings of the supreme court of the United States in the Dred Scott case. And, secondly, there are many points which by the constitution of the United States are exclusively for the executive, and with which the courts cannot interfere. This has been held to be the case with the power of pardoning, with the action of the executive in interposing to put down a state insurrection, and with the action of the government in recon

■ Infra, § 513.

2 U. S. v. Klein, 13 Wall. 128.

3 Mississippi v. Johnson, 4 Wall. 475. In Georgia v. Stanton, 6 Wall. 50, the supreme court of the United States refused to grant an injunction to prevent Mr. Stanton, secretary of war, from carrying into effect the reconstruction acts, the ground being that the ques

tion was political, not judicial. See more fully infra, § 593.

4

Infra, § 601.

Supra, § 362.

6 See infra, § 522.

1 Supra, §§ 22, 388.
8 Supra, § 388.

Luther v. Borden, 7 How. 1; Mississippi v. Johnson, 4 Wall. 475.

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