[Fox v. McDonald.] ers of the government of the State of Alabama shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, towit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another. § 2. No person, or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted." It is contended that the act in question is violative of these provisions for the reason, that the probate judge, upon whom the power of appointing the commissioners is conferred, is of the judicial department of the State government, while this power of appointment so conferred upon him properly belongs to the executive department, within the meaning of the constitutional provisions quoted. To solve the question thus presented, we must learn what these provisions mean. Noticing them analytically, we observe, first, that the general purpose of the article is the distribution of the powers of the government of the State; and to that end, it is declared first, that those powers shall be divided into three distinct "departments"; secondly, that each of these "departments" shall be confided to a separate "body of magistracy," to-wit, those powers which are legislative, to one; those which are executive to another; and those which are judicial to another; and, thirdly, that no person, or collection of persons, being of one of those "departments" shall exercise any power properly belonging to either of the others, except in the instances expressly directed or permitted. Thus we see that the powers of government distributed are those which are divided into the three departments, and, by these three divisions or departments, confided to separate bodies of magistracy. First, then, what are we to understand by the terms "departments" and "body of magistracy," as they are here used? How are these bodies of magistracy to whom these powers are to be confided to be created and made known? Of whom or what shall they consist? We get definite and complete information upon this subject from the three succeeding articles of the constitution itself, viz.: "Article IV. LEGISLATIVE DEPARTMENT. § 1. The legislative power of this State shall be vested in a general assembly, which [Fox v. McDonald.] shall consist of a senate and house of representatives." "Article V. EXECUTIVE DEPARTMENT. §1. The executive department shall consist of a governor, secretary of state, state treasurer, state auditor, attorney general and superintendent of education, and a sheriff for each county. $2. The supreme executive power of this State shall be vested in a chief magistrate who shall be styled The Governor of the State of Alabama." "Article VI. JuDICIAL DEPARTMENT. §1. The judicial power of the State shall be vested in the senate, sitting as a court of impeachment, a supreme court, circuit courts, courts of probate, such inferior courts of law and equity, to consist of not more than five members, as the general assembly may from time to time establish, and such persons as may be by law invested with powers of a judicial nature." The term "departments," it will be observed, is first used to denote the three parts or divisions into which the powers of government are to be divided; but in the context it is used interchangeably with the term "body of magistracy," to denote the governing bodies to which the powers of government are respectively confided. Here then, we have a department or body of magistracy, consisting of a senate and house of representatives to which is confided the legislative power; a department or body of magistracy consisting of a governor, secretary of state, state treasurer, state auditor, attorney general and superintendent of education, and a sheriff for each county, to which is confided the executive power, the supreme executive power being vested in the governor; and a department, or body of magistracy, consisting of the senate, sitting as a court of impeachment, supreme court, circuit courts, courts of probate, such inferior courts of law and equity, to consist of not more than five members, as the general assembly may from time to time establish, and such persons as may be by law invested with powers of a judicial nature, to which is confided the judicial power, intended by the constitution to be distributed. When we speak, therefore, of the legislative department let us be understood to mean, as the constitution intends, the senate and house of representatives; of the executive department, the governor and other officers above named with him; and of the judicial department, the senate sitting as a court of impeachment, the [Fox v. McDonald.] courts and so forth, above named, as constituting that department. Keeping these definitions in view, we can the better determine the vital question arising upon the contention now under discussion in this cause, which is, what powers of government does the constitution intend shall be confided to the exercise, respectively, of these several governing bodies? Now, it must be conceded that the powers thus vested in these several departments are intended to be committed to their exclusive exercise; and this, independently of the provision that no person or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others. Thus, for instance, the legislative power intended to be vested in the General Assembly can not be delegated to any other body, whether such body be of either the other defined departments or not, but must be exercised exclusively by the General Assembly itself. So also, an executive power intended to be vested in the executive department, can not, by legislation, be vested in any other person or body, whether such person or body be of either of the other departments or not. For instance, the pardoning power, or the power to fill vacancies in certain specified offices, being, by the constitution, vested in the Governor, can not, by legislation, be transferred to another, but must be exercised by the Governor exclusively. As this is so, in reference to acts expressly confided to a particular department, so also must it be true with reference to acts which, by construction or implication, are confided to that department. To repeat, all acts, expressly or impliedly, assigned to a department by the constitution must be performed by that department, and the power to perform them can not be conferred elsewhere. Cooley on Con. Lim., marg. p. 115. We return then to the question: What powers does the constitution intend shall be thus confided to the exclusive exercise, respectively, of these several governing bodies? The insistence in argument of counsel for appellant, or that to which it leads, is, that, except in cases otherwise provided by the constitution itself, every act which is legislative in its nature and which pertains to, or in any wise affects, the government of the citizen, or which controls and regulates the conduct of citizens in their mutual intercourse, wheresoever, within the State, such govern L [Fox v. McDonald.] ment or control is to be accomplished, and for whatsoever purpose such accomplishment is intended, must be exercised by the state legislative department; that all acts which are of a judicial nature, affecting the government of the citizen, or pertaining to the enjoyment, enforcement or administration of the laws of the land, must be exercised by the state judicfal department, or some member of it; and likewise, that all such acts which are of an executive nature must be exercised by the state executive department, or one of the designated officers composing it. The argument is that the nature of the act to be performed must, in every instance, determine the question; and that nature being found to be legislative, executive or judicial, the performance of the act must be assigned to the appropriate state department. We are quite clear the contention takes a step too far./ Now, it is certain that all powers which are, by the constitution itself, expressly or by necessary implication, referred to the exclusive exercise of these departments must be so exercised. There are many such provisions, but none of them provide for the appointment of officers of the kind here involved created by legislative enactment. All other powers, not expressly designated in the constitution itself, intended to be confided to the exclusive exercise of the departments thereby created, must be ascertained by construction./It is a well settled principle that constitutions, like statutes, are properly to be expounded in the light of conditions existing at the time of their adoption; and we look at the antecedent government, consider its system, as a whole and in its several parts, and the experiences and practices of its administration; and we consider and weigh the evils of the old system which the people intended to cure by the new. Thus aided, we interpret those provisions which require construction, and determine what the intention of the framers of the instrument was, and give effect to that intention; and it not infrequently occurs, in the exposition of written laws, both constitutional and statutory, that the letter of a provision will be justly made to yield to a manifest intention in opposition to it, derived by construction alone. When we take our constitution, therefore, and read it in the light of this history, we see plainly that it was not intended to declare that every act pertaining to government and the regulation of the social [Fox v. McDonald.] and property rights of the citizen, should be exercised exclusively by the legislative, executive or judicial department of the state government, or some member of it, according as the act possessed a legislative, executive or judicial character; for we find there are many such acts especially peculiar to the very nature of our system, and necessarily inherent in it, which, time out of mind, have not been exclusively exercised by these departments, and which, for the ease and efficiency of our system, could not be so exercised. For illustration, confine literally all power of a legislative nature to the General Assembly, and we strike down, at once, all governments of towns and cities, by and through municipal corporations, whose very existence and efficiency depend upon the legislative, executive and judicial powers with which, by their nature, they must be clothed, and which they have ever, under the legislative authority of the State alone, been accustomed to exercise. In the light of long established usage and experience, we construe the constitution and determine that its framers never intended to interfere with the right of municipal corporations, under legislative sanction, to exercise these functions of government. It is true, that under the present constitution, it may be said that the right to create municipal governments with their usual powers, is recognized or provided for, but with the same provisions distributing the powers of government as those now in force, contained in the constitutions of 1819, 1861 and 1865, and with no mention in those instruments of authority in the General Assembly to create municipal corporations, the General Assembly, from 1819 to the present time, has exercised that authority, and the corporations so created have exercised the powers so conferred, without objection or suggestion from any source that such exercise was not within constitutional authority, on the assumption that all legislative, executive and judicial power was, by the constitution, confided to certain other designated bodies of magistracy. When we read upon this subject, we find the books teach us that the spirit of localized government, by local territorial sub-divisions, carried on through subordinate governmental agencies, found early root and growth in the notions of English liberty and polity; and we are told that from an immemorial or early period the local territorial sub-divisions VOL. 101. |