It is the settled law in this country that the judicial power extends to and includes the determination of the constitutionality and validity of legislative acts, although the propriety of this conclusion Is still some times challenged. For a discussion of the subject, its history, and the authorities, see CONSTITUTIONAL.
But a court has no power to declare un constitutional a duly enacted statute simply because it may seem to the court that such legislation does not conform to the general theory upon which the government is found ed; Reeves v. Corning, 51 Fed. 774.
The constitution declares that "the judicial power of the United States shall be vested in one supreme court, and such inferior courts as the congress may from time to time ordain and establish." Art. 3, s. 1.
It has been remarked that the essential character of its judiciary is a distinct recog nition by the constitution of the nationality of the federal government ; Pom. Const. L. § 108.
By the constitutions of the several states, the judicial power is vested in such courts as are enumerated in each respectively.
A provision in a state constitution that the powers of government shall be divided into three distinct departments, each confided to separate persons, operates to forbid the ex ercise by a court or judge of a power not ju dicial; Appeal of Norwalk St. Ry. Co., 69 Conn. 576, 37 AU. 1080, 38 Atl. 708, 39 L. R. A. 794. And a constitutional grant of judi cial authority is power to administer reme dies for remedial rights; to render judicial decisions, so called, in actions or special pro ceedings to enforce the same; State v. Chit tenden, 127 Wis. 468, 107 N. W. 500.
Where a state constitution expressly pro vided that judges of the supreme court should not exercise non-judicial powers or powers of appointment, the maxim expressio untius est exclusio aiterius was applied, and the power of appointment of local officers by judges of other courts was held valid, the exercise of such power having been accord ing to the usage of the state ; Com. v. Col
lier, 213 Pa. 138, 62 Atl. 567, 5 Ann. Cas. 92.
There is nothing in the constitution of the United States to forbid or prevent the legis lature of a state from exercising judicial functions ; Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 29 Sup. Ct. 67, 53 L. Ed. 150 ; or from conferring judicial power on non-judicial bodies ; Consolidated Rendering Co. v. Vermont, 207 U. S. 541, 28 Sup. Ct. 178, 52 L. Ed. 327, 12 Ann. Cas. 658; but even in the absence of special limitations in the state constitutions, legislatures can not exercise powers in their nature essen tially judicial ; Wynehamer v. People, 13 N. Y. 391. The different classes of power have been apportioned to different depart ments, and as all derive their authority from the same instrument, there is an implied ex clusion of each department from exercising the functions conferred upon the others ; Cooley, Const. Lim. 106. The legislative pow er cannot from its nature be assimilated to the judicial ; the law is made by the one, and applied by the other ; Merrill v. Sherburne, 1 N. H. 204, 8 Am. Dec. 52 ; Greenough v. Greenough, 11 Pa. 494, 51 Am. Dec. 567 ; Cin cinnati, W. & Z. R. Co. v. Com'rs of Clinton County, 1 Ohio St. 81; Wynehamer v. Peo ple, 13 N. Y. 391; In re Ridgefield Park, 54