Sometimes such power is implied, as in the following cases : First, when, by the law, such power is indispensable in order to accomplish the end proposed: as, for exam ple, when goods are directed to be sold at auction, and the law forbids such sales ex cept by licensed auctioneers; Laussatt v. Lippincott, 6 S. & R. (Pa.) 386, 9 Am. Dec. 440. Second, when the employment of such substitute is in the ordinary course of trade: as, where it is the custom of trade to em ploy a shipbroker or other agent for the purpose of procuring freight and the like; 2 M. & S. 301; Gray v. Murry, 3 Johns. Ch. (N. Y.) 167; Laussatt v. Lippincott, 6 S. & R. (Pa.) 386, 9 Am. Dec. 440. Third, when it is understood by 'the parties to be the mode in which the particular thing would or might be done; 9 Ves. 234, 251, 252; 2 M. & S. 301, 303, note. See the Guiding Star, 53 Fed. 936. Fourth, when the powers thus delegated are merely mechanical in their nature; Commer cial Bank of Lake Erie v. Norton, 1 Hill (N. Y.) 501; Sugd. Pow. 176. See AND AGENT.
As to the form of the delegation, for most purposes it may be either in writing, not under seal, or verbally without writing; or the authority may be implied. When, how ever, the act is required to be done under seal, the delegation must also be under seal unless the principal is present and verbally or impliedly authorizes the act ; Story, Ag. § 51; Mech. Ag. 81; Gardner v. Gardner, 5 Cush. (Mass.) 483, 52 Am. Dec. 740.
Judicial power cannot be delegated; Cohen 'v. Hoff, 3 Brev. (S. C.) 500; Fertilizer Co. v. Taylor, 112 N. C. 141, 17 S. E. 69; a statute authorizing an attorney to sit in the place of a judge who was disqualified, by reason of prejudice or interest, is void; Van Slyke v. Ins. Co., 39 Wis. 390, 20 Am. Rep. 50.
Of Legislative Power. It is the general rule that legislative power cannot be dele gated by the legislature to any other body or authority ; Brewer Brick Co. v. Brewer, 62 Me. 62, 16 Am. Rep. 395; Farnsworth Co. v. Lisbon, 62 Me. 451; Willis v. Owen, 43 Tex. 41; Appeal of Locke, 72 Pa. 491, 13 Am. Rep. 716 ; State v. Wilcox, 45 Ma. 458; State v. Parker, 26 Vt. 362; Rice v. Foster, 4 Harring. (Del.) 479; Barth v. Himrod, 8 N. Y. 483, 59 Am. Dec. 506; Cooley, Const. Lim. 141; U. S. v. Bridge Co., 45 Fed. 178; City of St. Joseph v. Wilshire, 47 Mo. App. 125; see Marshall Field & Co. v. Clark, 143 U. S. 649, 12 Sup. Ct. 495, 36 L. Ed. 294; but the taking effect of a statute may be made to depend upon some subsequent event ; The Aurora v. U. S., 7 Cra. (U. S.) 382, 3 L. Ed. 378; Mayor, etc., of Baltimore v. Clunet, 23 Md. 449; Lothrop v. Stedman, 42 Conn. 583, Fed. Cas. No. 8,519.
It has often beeti said that it is tary law that legislative power cannot be del egated. The difficulty is in determining what authority or discretion may be conferred on a body other than the legislature without contravening constitutional principle. Tne
general question was the subject of extended discussion in a case sustaining the validity of an act conferring upon railroad commis sioners the power to determine what are reasonable rates for transportation; State v. Ry. Co., 38 Minn. 281, 37 N. W. 782.
In that case the court quotes from a previous de cision (State v. Young, 29 Minn. 474, 9 N. W. 737) the general rule against the delegation of legislative power, as requiring the legislature to pass upon two things, the authority to make, and the expediency of, the enactment. The court then proceeds to lay down a limitation for the rule growing out of the necessity of the exercise of discretion and judgment in the exercise of certain powers. Attention is di rectsd to the difficulty in many cases of discriminat ing between what is properly legislative and what may be executive or administrative duty, and it is said that, while still recognizing the difference be tween the departments of government, "the maker of the law may commit something to the discretion of the other departments, and the precise boundary of this power is a subject of delicate and difficult inquiry into which a court will not necessarily en ter. Wayman v. Southard, 10 Wheat. (U. S.) 1, 46, 6 L. Ed. 253. The principle is repeatedly recognized by all courts that the legislature may authorize oth ers to do things which it might properly, but can not conveniently or advantageously, do itself. All laws are carried into execution by officers appointed for the purpose ; some with more, others with less, hut all clothed with power sufficient for the efficient execution of the law. These powers often necessa rily involve in a large degree the exercise of discre tion and judgment even to the extent of investigat ing and determining the facts, and acting upon and in accordance with the facts as thus found. In fact, this must be so, if the legislature is to be permitted effectually to exercise its constitutional powers. If this was not permissible, the wheels of govern ment would often be blocked and the sovereign state find itself hopelessly entangled in the meshes of its own constitution." A number of examples are given of statutes granting discretionary powers to officers charged with the execution of the laws ; power given to boards in control of public institu tions to make contracts, adopt rules, etc.; the as sessment of property for the purpose of taxation ; the exercise of the police power in requiring and granting licenses, and the conclusion is stated in the exact words of Judge Ranney, quoted The decision of the Minnesota case was reversed upon grounds not affecting this general statement of the doctrine of the delegation of legislative power ; Chicago, M. & St. P. Ry. Co. v. Minnesota, 134 U. S. 418, 10 Sup. Ct. 462, 702, 33 L. Ed. 970.