We perceive no ground for overruling that case or dissenting from the reasoning of the opinion; and as the proceeding in the Court of Appeals on an appeal in an interference controversy presents all the features of a civil case, a plaintiff, a defendant, and a judge, and deals with a question judicial in its nature, in respect of which the judgment of the court is final so far as the particular action of the Patent Office is concerned, such judgment is none the less a judgment "because its effect may be to aid an administrative or executive body in the performance of duties legally imposed upon it by Congress in execution of a power granted by the Constitution." Interstate Commerce Commission v. Brimson, 154 U. S. 447.

It will have been seen that in the gradual development of the policy of Congress in dealing with the subject of patents, the recognition of the judicial character of the questions involved became more and more pronounced.

By the acts of 1839 and 1852 an appeal was given, not to the Circuit Court of the District of Columbia, but the chief judge or one of the assistant judges thereof, who was thus called on to act as a special judicial tribunal. The competency of Congress to make use of such an instrumentality or to create such a tribunal in the attainment of the ends of the Patent Office seems never to have been questioned, and we think could not have been successfully. The nature of the thing to be done being judicial, Congress had power to provide for judicial interference through a special tribunal, United States v. Coe, 155 U. S. 76; and a fortiori existing courts of competent jurisdiction might be availed of.

We agree that it is of vital importance that the line of demarcation between the three great departments of government should be observed, and that each should be limited to the exercise of its appropriate powers, but in the matter of this appeal we find no such encroachment of one department on the domain of another as to justify us in holding the act in question unconstitutional.

Judgment affirmed.

See also the cases collected below in Part II as to the power of the courts to review administrative action, through the writs of mandamus, certiorari, injunction, etc.

III. THE EFFECT OF THE PRINCIPLE ON LOCAL GOVERNMENT.

FOX V. McDONALD.

Supreme Court of Alabama. November, 1892.
101 Ala. 51.

HEAD, J. On December 12, 1892, the General Assembly passed "An act to establish a Board of Commissioners of Police for the city of Birmingham, Alabama"; which act provides for the appointment by the probate judge in and for Jefferson county, of a board of Commissioners of police for said city, consisting of five persons, and defines its power and duties, among which are to appoint a chief of police and such other police officers and policemen as is or may be prescribed by city ordinances,

Accordingly, the probate judge appointed five persons, who entered upon the duties of their offices, and, as a board, appointed T. C. McDonald to the office of Chief of Police, who thereafter presented himself to David J. Fox, the mayor of the city, for qualification, and demanded that the oath of office be administered to him; it being the duty of the mayor, under city ordinance, to administer the oaths of office to the officers of police. Fox declined to administer the oath, and McDonald applied to the city court of Birmingham for the writ of mandamus compelling him to do so. From an order of the court granting the peremptory writ, Fox appealed to this court.

This act is assailed by the appellant as unconstitutional, on several grounds. We will notice first, the chief contention, that it offends sections 1 and 2 of article III of the Constitution.

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 one of the judicial departments 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 con-.

fided 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,

The term "departments,"

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.

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 courts and so forth, above named, as constituting that department. Keeping these definitions in view, we can the better determine the vital questions 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 cannot be delegated to any other body, whether such body be of either of the other defined departments or not, but must be exercised exclusively by the General Assembly itself. 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 cannot be conferred elsewhere. Cooley on Const. 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,

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 delegated 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 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 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 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.

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 of England, such as shires, towns and parishes, enjoyed a degree of freedom, and were permitted to assess upon themselves their local burdens and to manage their local affairs; and Judge Dillon declares that our ancestors, in the settlement of this country, brought these notions with them, and that they found here a field of unexampled extent for their free development.

The conventions which framed our several constitutions, therefore, had no need to expressly reserve to municipal corporations the legislative, executive and judicial powers, so long wont to be exercised by them, when, in the distribution of the powers of the government of the State, they declared that the legislative, executive and judicial power, should be confined to the respective departments or bodies of magistracy by them created and defined. The reservation arose by implication out of the existing order of things.

Thus viewed, we irresistibly conclude that it was not the inten