The Bennington evening banner. (Bennington, Vt.) 19??-1961, 1913-01-17
MUNICIPAL CHARTERS AMENDED
Law Giving Power to Public Service
Commission Unconstitutional.


Montpelier, Jan. 14.-The follow
ing is the full text of the opinion of
the Supreme court delivered to the
governor in Act No 115 of the SEES
sion laws of 1910, relating to amend
ment of city and village charters by
the public service commissions:
I'm reply to your requirements OF
our opinion as to the constitutionality
of No. IFS, Acts of 1910, entitled an
act relating to the incorporation of
villages and amendment of city and
village charters we have the honor
to submit the following
1T is a maxim of the common law
that delegation of authority cannot
without permission, be delegated by
the person to whom it is gwen if that
authority involves a trust and re-
quires the exercise of the judgment
and discretion of such person in its
execution.
This maxim is applicable here, for
the power exercised by the Legisla-
ture is the peoples power, delegated
to it by the people in the constitution
of the state, which expressly commits
to the Legislature the power to con
stitute towns, boroughs, cities and
counties. This power is essentially
a trust, and requires the exercise of
judgment and discretion in its eXecu-
ton, and no authority is given to dele
gate it. The Legislature must there
fore exercise its own judgment and
in 70 70 10
necessary to discharge the personal
trust committed to it. This, however,
is not saying that the Legislature can
delegate nothing concerning this mat
ter, for there are undoubtedly some
things pertaining to it that the Legis-
lature can delegate. But We are not
called upon to draw the line between
the delegable and non delegable, nor
10 suggest a way in which the desira-
tum of general law for the incor-
poration of villages can be attained.
Testing the act by the general
principles above stated, we think it
goes too far when it leaves to the
commission to determine the plan
and frame of government of the pro-
posed villages; what powers and
functions it may exercise; and what
shall be the limit of its expenditures
and Indebtedness, for these are
questions Of legislative judgment and
discretion, and therefore their deter
mination cannot be delegated Nor
is this objection obviated as to pow
ers ard functions by limiting them TO
specific things as is done in the 1Ith
section of the act, for it is still left
to the commission to determine in its
discretion what of these powers and
functions it will confer in the parti-
cular case.
I'VE think that section II and 10
of the act are constitutional. They
apply to villages only after they are
chartered, and have nothing to do
with the constitution of villages I'M
der the act. Their purpose is to pro-
vide a way for taking land by the
right of eminent domain, and are en-
tirely separate from the rest of the
act, and so many stand though the
rest falls.
"As to the rest OF the act, even
though some of its provisions may be
good, yet all are so connected and
joined together, and form such uni
fed scheme. that the good, if there is
any, must fall with the bad SO We
think the entire act unconstitutional
except sections II and 49,"