quired it; and that the effect of the rail road act was merely to appropriate to another and distinct public use a portion of the lands over which the former franchise was to be used; and that if the whole franchise should become necessary for the public use, the right of eminent domain would authorize the legislature to take it, on payment of a full equivalent. This case seems to have taken it for granted, that this use of the property by the rail road corporation was a public use.(a)

§ 345. Chief Justice Shaw, in the case last cited, said, "It is difficult, perhaps impossible, to lay down any general rule that would precisely define the power of the government, in the exercise of the acknowledged right of eminent domain. It must be large and liberal, so as to meet the public exigencies, and it must be so limited and restrained, as to secure effectually the rights of the citizen. It must depend, in some instances, upon the nature of the exigencies as they arise, and the circumstances of particular cases. In the present case, the court are all of the opinion, that the rights of the plaintiffs in the land of the fall and receiving basin, are not of such a character as to exclude the authority of the legislature from taking a small portion of it, for laying out a rail road, it being for another and distinct public use, not interfering with the franchise of the plaintiff."

§ 346. Having considered the qualified restrictions upon legislative power under the heads above stated, we shall proceed, in the next place, to the consideration of those of an absolute character. Some of the state constitutions, for instance that of Maine, prohibits the passage of bills of attainder, ex post facto laws, or laws impairing the obligation of a contract; and in others, that

(a) Boston Water Power Company v. Boston and Worcester Rail Road Company, 23 Pick. R. 360.

of New Hampshire for instance, that no retrospective law shall be made. We have already considered in the preceding chapter what are bills of attainder, ex post facto laws, and what laws have or have not been considered as impairing the obligation of a contract. Such deci'sions and definitions apply with equal force to all provisions of a similar character in the respective state constitutions; hence, we shall omit in this connection any further consideration of them.

§ 347. The constitutions of several of the states declare substantially, that the government shall be vested in three departments, the legislative, executive, and judicial; and contain provisions that neither of those departments shall exercise any power properly belonging to the other. The question has arisen, whether particular acts of the legislature were not unconstitutional, on the ground of conflict with such provisions. In order to a correct determination of this question, the line of demarcation between an act legislative, and one that is executive or judicial, must be kept distinctly in view. If an act of the legislature in terms judicially determines a question of right or of property, as the basis upon which the act is founded, so far the act must be regarded as a judicial act, and repugnant to the constitution. But if the act simply authorizes the doing of an act with the view of attaining a given end, or accomplishing a particular result, without any determination of the fact of the existence of that which secures to a party a right to the fruits of the act; such an act is not liable to this constitutional objection. In accordance with this principle, it has been held, that an act of the legislature which authorized A to sell so much of the lands of a deceased person as would be sufficient to raise a specific sum, together with interest and costs, and directing that the proceeds should be applied to the extinguishment of the claims of A and B against the estate of the deceased,

for monies advanced and liabilities incurred by them, on account of the estate, was unconstitutional, on the ground that it was a judicial determination of the fact that the estate was indebted to A and B, for monies advanced and liabilities incurred on account of the estate.(a)

§ 348. On the same principle it has been decided, that an act of the legislature which directed among other things, the assignment of dower to a widow by certain commissioners, so far as it was a judicial determination that she was entitled to dower, was null and void, on the ground that the legislature had no power to inquire into, or ascertain and determine her rights in the premises.(b) An act of the legislature granting a divorce, and directing payment by the husband of a given sum for alimony, so far as it granted alimony has been considered a judicial act, and on that account unconstitutional.(c) This decision held, that although in the state of Maryland the granting of a divorce had been and might be performed by the legislature, yet that section which directe alimony, was an exercise of judicial powers. The granting of alimony was within judicial cognizance. Under the 6th section of the bill of rights, it was declared, That the legislative and judicial powers of government ought to be forever separate and distinct from each other." This political maxim had made its appearance in some form in all the state constitutions framed about the time of the war of the revolution, and was said to have been borrowed from Montesquieu.(d) In whatever terms it had been adopted, in none of the constitutions had the judiciary and legislative departments been

(a) Lane v. Dorman, 3 Scam. R. 240.
(b) Edwards v. Pope, 3 Scam. R. 465.
(c) Crane v. Megnis, 1 Gill. & John. R. 475.
(d) Spirit of Laws, vol. i. p. 181.

kept wholly separate and unmixed. In some the executive was appointed by the legislature, and the judiciary by the executive. In others, the powers of the several departments were still more blended and mingled together. It seemed to have been the intention to have engrafted this invaluable maxim of political science on their respective systems, only so far as comported with free government, and to prohibit the exercise by one department of the power of another department, or to confine each department to the exclusive exercise of its own powers. This idea had been admirably expressed in the constitution of Massachusetts, "The legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; and the judiciary shall never exercise the executive and legislative powers, or either of them." The inhibition went to the practical exercise of powers conferred by the constitution, and to be used after it was in operation, and did not apply simply to the original distribution of powers among the departments of government. It was in the same sense, this 6th article in the bill of rights should be construed, which had the same object in view as the constitution of Massachusetts, although somewhat different terms were employed to express it. The one imitated the language, the other dived into and expressed the meaning of the venerated author from whom they both copied. Their common purpose was to confine in practice the action of each department to its own appropriate sphere, forbidding it the use of powers allotted to the co-ordinate departments. That the act in question was the exercise by the legislature of judicial powers, and hence repugnant to the constitution.

$349. In Tennessee an act of the legislature, passed upon the application of the guardian of the infant heirs

of a deceased ancestor, with the approbation of the minors, authorizing the guardian to sell certain lands of which the ancestor died seised, and declaring the proceeds assets, was declared unconstitutional and void, for the reason it was not the exercise of legislative power, but one of a judicial nature. It was said it did not partake of the character of a law, as it formed no rule of action of that uniform and universal character which Blackstone in his commentaries had said constitutes the fundamental principle of a municipal law. It was but a judicial decree enacted upon the avowed ground, that the estate of the ancestor was indebted. It adjudged the existence of debts, and decreed the land to be sold for their payment. Although it was in the form of a law, it did not differ in substance from a judicial decree. If in substance a judicial decree, the form in which the makers had thought fit to clothe it, could not alter its character.(a)

§ 350. In New Hampshire a question was submitted to the judges, whether the legislature could authorize a guardian of minors, by a special act or resolve, to make a valid conveyance of the real estate of his wards? They expressed a decisive opinion against the exercise of such a power. Their decision was placed on the ground, that the exercise of such a power by the legislature was, in its nature, both legislative and judicial. It was the province of the legislature to prescribe the rule of law, but to apply it to particular cases was the business of courts of law. The 38th article of the bill of rights of that state declared, that "In the government of this state, the three essential powers thereof, to wit: the legislative, executive, and judicial, ought to be kept as separate from, and independent of, each other, as the

(a) Jones v. Perry, 10 Yerger's R. 59.