for disorderly conduct as it is in the Constitution of the United States. All these matters are in this State left under the regula tions of the statutes and there is not even express authority to enact such statutes. (R. S., chap. 7, tit. 2.) The necessity of the powers mentioned is apparent, and is conceded in all the authorities (See Cooley's Const. Lim., 133), yet it is equally apparent that statutes upon the subject must authorize some action partaking of a judicial character. If that feature is a fatal objection it annuls all the statutory provisions in which it appears.

"The same principle which renders it the duty of the courts to hold legislative action illegal when it unduly encroaches upon the province of the judiciary, forbids interference by the latter with the action of the legislative bodies or the exercise of their discretion in matters within the range of their constitutional powers."

In Wilkens v. Willet (4 Abb. Ct. App. Dec., 601), the court, considering the general power of Congress to subpoena witnesses to testify before it, and to punish disobedience of its process, said:

body exists

That the power exists admits of no doubt whatever. It is a necessary incident to the sovereign power of making laws; and its exercise is often indispensable to the great end of enlightened, judicious and wholesome legislation. The power is rather judicial in its nature, but in a legislative as an auxiliary to the legislative power only. In the earlier history of the country from which our institutions, both of law and legislation, are principally derived, judicial and legislative functions existed in and were exercised by the same body. And when they were afterwards separated, and each came to be exercised by a separate tribunal or body, the legislative body necessarily retained a sufficient amount of the judicial power to enable it to investigate fully and to comprehend thoroughly any and every subject upon which the body proposed to act in its legislative capacity. This included the power to subpoena witnesses to give evidence, to compel them to attend and tes tify, and to punish for disobedience and contempt in refusing to attend, or in refusing to testify upon attendance. The power to punish for disobedience and contempt is a necessary incident to the power to require and compel attendance.”

These authorities are an ample refutation of the claim that the judiciary alone has the right to exercise power judicial in

its nature, and that it is necessary that in all cases the right should be expressly conferred.

It is equally well settled that where the power is lodged in a legislative body to judge of the elections, returns and qualifications of its own members, such power is exclusive and cannot by its own consent, or by legislative action, be vested in any other tribunal, or officer and cannot be questioned by the executive or judicial departments of the government. (Opinion of the Justices, 56 N. H., 570; State v. Gilmore, 20 Kan., 551; State v. Tomlinson, 20 Kan., 692; People v. Mahaney, 13 Mich., 481.)

Thus far the question has been considered upon the theory that the Convention, in passing upon the election and qualification of its members, acts in a quasi-judicial capacity. This, however, is by no means conceded. It is merely a power inseparable from, inherent in, and incidental and necessary to, the political powers possessed by the Convention or by any legis lative body. Every department of the government and every officer in every department in the performance of his duties must frequently act in a quasi-judicial capacity. Questions of expediency, of public policy, frequently arise which, although they call for the exercise of judgment and discretion, are not proper subjects of judicial cognizance. Controversies often arise with respect to the organization of a Legislature and as to which of several governments of State, is the constitutional government. None of these can come within the jurisdiction of the courts for judgment or decision, because these bodies are subject to no judicial authority. A political problem arises which can only be determined by public opinion, compromise

or a resort to force.

Luther v. Borden, 7 How. (U. S.), 1.
State of Georgia v. Stanton, 6 Wall., 50.
Jones v. United States, 137 U. S., 217.
In re Cooper 143, U. S.

Kerr v. Trego, 47 Pa. St., 292.

Robertson v. State, 109 Ind., 79.

In the first of these cases Mr. Justice Woodbury, in his dissenting opinion, which, however, on this point, was in entire accord with that of the majority of the court, said :

"Fortunately for our freedom from political excitements in judicial duties, this court can never, with propriety, be called on officially to be the umpire in questions merely political. The

adjustment of these things belongs to the people and their political representatives either in the State or the general government."

So it has been held that the chief executive officer of a State in the exercise of his political or executive powers or the functions which are confided to his discretion by the Constitution is entirely independent of the judiciary, and the latter cannot use its process either to direct or to prohibit the performance of such executive acts or to regulate the manner of their exercise.

Commonwealth v. Denison, 24 How., U. S.,

66.

In re Dennett, 32 Maine, 508.
Mauran v. Smith, 8 R. I., 192.

State v. Governor, 25 N. J. (Law), 351.

In the last case cited, Chief Justice Greene said:

"All the powers conferred by the Constitution on the governor are political powers, all the duties enjoined are political duties. Touching all the powers conferred on the executive, by the Constitution, he is entirely independent of the control of the judiciary, being responsible to the people alone and liable to impeachment for misdemeanor in office.

"While it is the acknowledged duty of courts of justice to exert all their appropriate powers for the redress of a private wrong, it is no less a duty sedulously to guard against any encroachment upon the right or usurpation of the powers of the co-ordinate departments of government in the delicate and complicated machinery of our republican system, it is of the utmost importance that each department of the government should confine itself strictly within the limits prescribed by the Constitution.

It

"It is obvious that the exercise of the power now Invoked, will have a direct and immediate tendency to bring the executive and judicial departments of the government into conflict. cannot alter the principle that in the present case the Governor assents to the application. We have Mr. Jefferson's authority for saying, that if the Supreme Court had granted a mandamus in the case of Marbury v. Madison (1 Cranch, 137), he should have regarded it as trenching on his appropriate sphere of duty; that he had instructed Mr. Madison not to deliver the commission, and that he was prepared, as President of the United States, to maintain his own construction of the Constitution with all the powers of the government against any control that might

be attempted by the judiciary, in effecting what he regarded as the rightful powers of the executive and Senate within their peculiar departments. (Jefferson's Works, vol. 4, pp. 75, 317, 372.)"

What is true of the relations between the judicial and the executive departments of the government, is equally true of the relations of the former with the legislative departments. While it is within the undoubted province of the courts to pass upon the constitutionality of acts performed by such bodies, their judicial functions are in suspense until there has been action. To attempt to interfere with the co-ordinate branches of the government so as to prevent them from acting at all, or to prescribe the methods to be pursued, would be a direct attack upon our political system.

Irrespective of these important considerations there is another reason why the Supreme Court does not possess the right to prohibit the Convention from considering the pending contest. The clause of the Constitution which creates the Constitutional Convention requires the Legislature "to provide by law for the election of delegates to such Convention." This leaves it within the discretion of the Legislature to regulate the method of conducting the election and of determining the result so long as it does not infringe upon the powers properly pertaining to the Convention. In the exercise of this authority the Legislature, in the act of 1893, providing for the election of delegates, declared that the Convention should have the power to judge the elections and qualifications of its members. This was a legitimate exercise of the power conferred upon the Legislature by the Constitution. The election provided for was an election subject to the power of the Convention, to pass upon the qualifications and election of the persons claiming to be elected.

The provision was, moreover, ratified and adopted by the People in electing delegates to exercise the powers so provided for. The election of delegates under this law was the election of officers to exercise this specific power among others. In the words of Judges Bronson, Beardsley and Jewett, above quoted, "The people have not only decided in favor of a Convention, but they have determined that it shall be held in accordance with the provisions of the act."

LOUIS MARSHALL,

CHARLES H. TRUAX,
ELIHU ROOT,

Sub-Committee.

STATE INVESTMENTS AND FUNDS.

REPORT OF THE COMPTROLLER

In conformity with the resolution of Mr. Holls, passed May 23, showing the sources, extent, nature and present investment and income of every fund and property belonging to or controlled by the State, of which either the principal or interest is devoted to educational uses, together with the reasons which have been advanced to me, as chief financial officer of the State, in favor of the abolition of these funds, and also those in favor of their retention and maintenance. Ordered printed and placed on the files of the members.

STATE OF NEW YORK :

To the Constitutional Convention :

Comptroller's Office,

Albany, May 24, 1894.

Gentlemen.-In conformity with the resolution of your honorable body, passed on the 23d inst., I beg leave to submit a statement in detail showing the “ sources, extent, nature and present investment and income of every fund, and property belonging to, or controlled by the State, of which either the principal or interest is devoted to educational uses," together with the reasons which have been advanced to me, as chief financial officer of the State, in favor of the abolition of these funds, and also those in favor of their retention and mainte

nance.

Article 9 of the present Constitution of the State provides that "the capital of the common school fund, the capital of the literature fund, and the capital of the United States deposit fund shall be respectively preserved inviolate."

This provision was inserted in our Constitution by the convention of 1846, and has since remained unchanged, but its essential character was derived from the Constitution of 1821. It seems to have been an expression of the early policy of the State, to wit: The policy of supporting the State government from the revenues