LAW; JUDOE-MADE LAW ; JUDICIAL POWER.
The separation of the three powers of gov ernment which underlie all modern civilized government has been discussed under the title EXECUTIVE POWER, in which, as well as well as in the title JUDICIAL POWER, many of the questions arising in connection with the difference of the spheres of action of these three powers have been discussed, and to these titles reference should be made and they should be read in connection with this title.
The powers of the departments of the gov ernment are not merely equal, but are ex clusive; Langenberg v. Decker, 131 Ind. 471, 31 N. E. 190, 16 L. R. A. 108.
"Legislation is essentially an act of sover eign power ; . . . the very definition of law, . . . shows the intrinsic superiority of the legislature. It may be said, the power of the legislature, also, is limited by pre scribed rules. It is so. But it is neverthe less the power of the people and sovereign as far as it extends." Gibson, J., in Eakin v. Raub, 12 S. & R. (Pa.) 330.
"Plenary power in the legislature for all the purposes of civil government is the rule. A prohibition to exercise a particular power is the exception." People v. Draper, 15 N. Y. 532.
"The legislative power of a state extends to everything within the sphere of such pow er, except as it is restricted by the federal constitution or that of the state." Swayne, J., in Pine Grove Tp. v. Talcott, 19 Wall. (U. S.) 666, 22 L. Ed. 227.
The legislature of a state does not look to the state constitution for power to act on a particular subject, but only to determine whether the sovereign legislative will has been in any manner restricted or limited by that instrument; Platt v. Le Cocq, 150 Fed.
391; McCreary v. Fields, 148 Ky. 730, 147 S. W. 901. The state may provide not only for the health, morals and safety of its peo ple, but for their well-being, peace, happi ness and prosperity ; Halter v. Nebraska, 205 U. S. 34, 27 Sup. Ct. 419, 51 L. Ed. 696, 10 Ann. Cas. 525. "Questions of power do not depend on the degree to which it may be exercised ;" Brown v. Maryland. 12 Wheat.
(U. S.) 419, 439, 6 L. Ed. 678, per Marshall, C. J.
A state legislature possesses all legisla tive power except such as has been delegated to congress and prohibited by the constitu tion of the United States, or is impliedly withheld from it by the state constitution ; and the only limitations on its power are those of the state and federal constitutions and the treaties and acts of Congress enact ed and adopted under the latter ; Townsend v. State, 147 Ind. 624, 47 N. E. 19, 37 L. R. A. 294, 62 Am. St. Rep. 477; Motlow v. State, 125 Tenn. 547, 145 S. W. 177; Gautier v. Ditmar, 204 N. Y. 20, 97 N. E. 464, Ann. Cas. 1913C, 960; Moss v. Tazewell County, 112 Va. 878, 72 S. E. 945.
There has been some discussion as to the meaning of the term "legislature" in the federal constitution. It is said to occur there thirteen times, and the conclusion is reached that where the power given is legis lative, it be taken to mean the two branches acting separately with the approval of the governor, but in other cases the word is to be taken in its popular sense; 24 Harv. L. Rev. 220.
"The state does not act by its people in ,their collective capacity, but through such political agencies as are duly constituted and established. The legislative power is the supreme authority except as limited by the constitution of the state, and the sover eignty of the people is exercised through their representatives in the legislature, un less, by the fundamental law, power is else where reposed." McPherson v. Blacker, 146 U. S. 25, 13 Sup. Ct. 3, 36 L. Ed. 869. "Irre spective of the operation of the federal con stitution and restrictions asserted to be in herent, In the nature of American institu tions, the general rule is that there are no limitations upon the legislative power of the legislature of a state, except those imposed by its written constitutions." Giozza v. Tier nan, 148 U. S. 661, 13 Sup. Ct. 721, 37 L. Ed. 599.