Wood County reporter. [volume] (Grand Rapids [i.e. Wisconsin Rapids], Wis.) 1857-1923, 1863-04-09

that 1t Is tie peculiar junction OF the leg
islative department TO make the law: of
the executive to execute, and the judicial
to constr dc it :; that these powers are not to
be COMPOUNDED or delegated by the cne de-
partment to the other; and that Congr ess
in authorizing the President to make all
necessary rules and regulations for enroll
ing the militia, and curing defects in
existing state militia laws, attempted to
confer upon him high legislative powers.
The general soundness of this argument
will not be questioned. Most of the pro-
positions stated are recognized political
axioms under our form of government. It
Is only the conclusion or deduction from
these propositions about which any doubt
can exist. No one will seriously contend
that Congress can delegate legislative
power to the President. But distinction
must be made between "those important
"subiects which must be entirely regua.
"ted by the legislature itself, from those
" OF less interest, IN which general pro-
" vision may be made, and power given to
those who are to act under such general
"provisions to fill up the Details
1t would seem that the power
given the President to make all
rules and regulations to carry into eff
feet the law for calling out the militia is
OF the latter character. Congress might
| have regulated by its legislation the whole
details of the draft If it had thought pro-
per to do SO. But having in the most am.
pie manner clothed the President with
power to call forth militia, it further pro.
vided that be should make all proper rules
and regulations for the enforcement of tie
draft where State laws unon the subject
were defective. Where state laws existed
1t was undoubtedly intended or supposed
that the Pre- ident would avail himself of
their machlneryin bringing into the field the
quota of the States. When the militia
were once called forth it was a matter of
no vital Importance how they should be
detached or drafted. Congress indicated
an intention of adopting the State laws
upon the subject as far as they were appli-
cable. When they were not applicable,
or none existed, the President was author
lied to make proper rules and regulations
for enrolling the militia and drafting
them. And this no more partakes of leg
islative power than that discretionary au-
tho1ity intrusted to every department of
the government in variety of cases. This
practice OF giving discretionary power to
other departments or agencies who were
intrusted with the duty Of carrying into
effect some general provisions Of law, had
its origin at the adoption Of the constitu
tion and in the action of the first Congress
under it, as the federal legislation album
dainty shows. 1t was undoubtedly in
strict conformity to the views entertained
by the great statesmen of that day of the
genius and intent of the instrument which
they had had such great share in tram
ing. They could not have regarded it as
a delegation of the legislative power of
Congress. This practical construction of
the constitution go frequently and con-
stantly manifested in the federal legisla-
ton is worthy of serious consideration
The Attorney General in another case ar
gued at this term furnished numerous in
stances where such discretionary power is
given to other functionaries by Congress.
1t would render this opinion needlessly
proiix to refer to ali these laws. A few
of the more striking and signal examples
of this species of legislation may be profit
ably noticed. In 1898 when q war with
France was deemed imminent, Congress
authorized the raising of provisional
army and provided that the companies of
volunteers and the members of each COM
pany who should be duly engaged and &C
cepted by the President of the United
States and organized with proper officers
commissioned by him should submit to
aud observe such rules of training and
discipline as should be thought necessary
to prepare them for actual service ''aohich
rules the President Of the United States IS
hereby authorized to make and establish"
(Uhapter 81, i U. S. S. at Large, 569) This
legislation was had although the Constitu
ton conters in clear and specific terms
upon Congress the power "to make rules
for the government and regulation of the
land aud naval forces" and "for arming
and disciplining the militia" Exclusive
and unlimited power of legislation is given
to Congress by the Constitution over the
District of Columbis. Still Congress has
organized and established within the dis
trict, municipal corporations, comforting
upon them all the powers OF police and To-
cal legislation which are common and in
cident 10 such corporations. The Consti-
tuition gives Congress the power to dds
pose of and make all needful rules and
regulations respecting the territory or
other property belonging to the United
States" Under this grant Congress has
organized various territorial governments,
clothing them with great powers of local
government.
In execution of the power conferred
upon it, Congress has established courts
of the United States, and passed several
acts regulating processes 10 such courts.
The State laws regulating the modes of
proceedings in suits at common law. as 1T
stood in 1889, were adopted, Subject,
however, to such ali erations and additions
as the said courts respectively shall in
their discretion deem expedient, ur to
such regulations as the Supreme Court of
the United States shall think proper from
time to time, by rule to prescribe to any
circuit or district court, concerning the
same."-Q o. S. S. at Large, page 275.
Chapter Sc, S. 2.) In the case of Way
man VS.. Southland 10, Wheaton l, the Su
preme Court gave construction to this
provision, and held that is enabled the
several courts of the Union to make such
improvements in its forms and modes of
proceeding as experience might suggest,
and especially to adopt such State laos as
might cary to advantage the forms and
modes Of proceedings aohich prevailed in
September, 1879, page 40. The objection
was taken in that case, which is urged
here, that this was a delegation of legisls
tive power to the courts of the Union. 1t
was claimed and insisted that the rules by
which the citizen was deprived of his lib
erty or property, or by which judicial sen.
fences were enforced, were of vital i'm
portance and could only be prescribed by
the legislative department. of the