It is in the legislative department that the supreme and absolute authority is vest ed ; 1 Bla. Corn. 52, 142 ; Locke, Govt. ch. xii. xiii. par. 153.
"The legislative power is that which has the right to direct how the force of the com munity shall be employed for preserving the community and the members of it." Locke, Govt. ch. xii. par. 143. But it was only upon the ruins of the royal prerogative, so far as concerned the right to dispense with any statute, that the foundations were laid on which by a steady, if at times an in terrupted growth, was built up the final om nipotence of parliament. The power of the king was defined by the decision in Godden v. Hales, Comb. 21; s. c. Show. 475. See also 1 Thayer, Cas. Const. L. 29, n.
A state constitution, adopted before that of the United States, is a result of all the plenary legislative power of the people un trammelled by any higher law ; Sage v. City of New York, 154 N. Y. 61, 47 N. E. 1096, 38 L. R. A. 606, 61 Am. St. Rep. 592.
It has always been understood that the sovereignty of the federal government is in congress, though limited to specified objects. "Tile wisdom and the discretion of congress, their identity with the people, and the influ ence which their constituents possess at elec tions, are, in this, as in many other instanc es, as that, for example, of declaring war, the sole restraints on which they have relied, to secure them from its abuse." Gibbons v. Ogden, 9 Wheat. (U. S.) 187, 6 L. Ed. 23, per Marshall, C. J.
So the state legislature is vested with au thority to make law and that authority volves legislative discretion ; State v. Chit tenden, 127 Wis. 468, 107 N. W. 500.
Legislative discretion is of two kinds, le gal and political. "Legal dikretion is limit ed. It is thus defined by Lord Coke: Dis cretio est discernere per legem quid sit jus tum. Political discretion has a wider range. It embraces, combines, and considers all cir cumstances, events, and projects, foreign or domestic, that can affect the national inters ests. Legal discretion has not the means of ascertaining the grounds on which political discretion may have proceeded." Hall, Am.
L. J. 255.
While each of the three departments of government is essential to the existence of a state, as modern government is understood, it is undoubtedly true that the strongest is the legislative. That would result from its control of the public purse, if from nothing else; but notwithstanding this fact, the ju diciary which is in theory the weakest of the departments has held its own place as a co-equal and co-ordinate department, and aft er the lapse of a century it is said "that the three departments still retain their balance, each with its prerogatives unimpaired." 1 Post. Const. § 45.
Besides the vantage ground which the leg islative department naturally occupies as contrasted with the other two by reason of the character of its functions, it has been said that it is the branch of the government which has grown the most. And it is sug gested, that coming as it does from the peo ple, much is tolerated which would not be permitted in the other departments ; Miller, Const. U. S. 95. It has been maintained by some writers that congress has encroached permanently upon the other departments, but this opinion is controverted ; 1 Post Const. § 45, n. 11. There is no question as to the importance of the constitutional re straint upon the power of congress. Montes quieu said that the English constitution would perish if the legislative power should become more corrupt than the executive; and a later writer considered that while it was important to restrain the executive pow er, it was still more important to restrain the legislative ; De Lolme, Const. 190.
It has been said that : "In the United States, all legislative power exists in two forms, viz.: 1st. As political or sovereign power, the nation as a whole embodying the political sovereignty supreme,and unlimited; 2d. As civil or delegated power, the legis lature representing the legal sovereignty as bounded by .constitutional limitations. Polit ical legislation, therefore, being among the powers of sovereignty, belongs exclusively to the people as a nation.