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DELEGATE ANDERSON: Mr. Chair-
man, I feel that before Delegate Scanlan's
steamroller gets too far, we had better stop
and look and listen.
Forty states have a provision in their
constitution calling for the separation of
the power. I am not going to speak at length
because I think it is so fundamental, and
with the number of lawyers in this Conven-
tion, it seems to me a waste of time to even
argue the question.
You simply have to take a question or a
proposition that I like to cite and if you
were to join those powers together, the
police officers would stop you on the street,
write you off a .ticket, find you guilty, and
take you to jail.
I say that I have discussed this matter
with some other delegates at various times
and the only reason they could give for it
•not being1 in the constitution was that in the
draft constitution it was set up separately,
but it does not say that it has to be set up
separately. I think we certainly want to
keep the main functions of our government
separate and distinct, and I would strongly
urge that we vote against this amendment.
THE CHAIRMAN: Delegate Henderson.
DELEGATE HENDERSON: Mr. Chair-
man, fellow delegates, I should like to speak
in favor of ,the amendment.
This proposition of the absolute separa-
tion of powers has never been true in his-
tory. It started out, I suggest, with the
Frenchmen's misconception of what the
British Parliament was. I do not need to go
into this. I mean, we all know that when the
governor vetoes a bill, he is exercising legis-
lative power. There are literally dozens of
examples where the powers are not com-
pletely separate and never have been, and
it is a very misleading thing. By putting it
in the constitution, you set up an impossible
test, which has been disregarded in the past
and probably would be in the future, but it
is extremely confusing, particularly when
you get into the administrative fields and
you try to rigidly separate the three powers.
You find immense difficulty.
Now, under this system we have as far as
possible, I think, by spelling out the powers
and functions of the three separate de-
partments, separated those powers as far
as is practicable, but to put this provision
in the constitution, to continue it there, I
think would be a great mistake.
THE CHAIRMAN: Delegate Weidemeyer.
DELEGATE WEIDEMEYER: Mr. Presi-
dent, members of the Convention, I oppose
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this amendment because it strikes out of
our constitution one of our fundamental
concepts, namely, the separation of power,
and I am not at all convinced by the argu-
ment of those who say that the legislature's
powers are defined clearly in their area, and
the governor's powers and the executive's
are defined clearly in theirs, the judiciary's
are defined clearly in theirs.
Wherever the judiciary is given appointed
powers, it is specifically mentioned in the
constitution, but beyond those clearly men-
tioned functions of the main branches of
our government is this concept of the sepa-
ration of powers, and even though the
judges' duties are defined in there, I do not
want him going out and passing laws, and
I do not want the legislature arresting
people, and I do not want the other branch
of government overstepping, other than
what we have clearly provided in the con-
stitution.
Now, maybe this as we have it in our
report is not clearly and fully expressed,
but Recommendation GP-11 g-oes into that
and recognizes the concept of the separation
of powers of government. It also recognizes
that the legislature in setting up adminis-
trative boards and agencies may provide
for powers, provided in so doing1, it pro-
vides for due process and judicial review.
We have to look back over the history of
legislative enactments to set up administra-
tive boards and commissions, but in setting up those boards and commissions most al-
ways they are the providers for administra-
tive review of the actions of that
commingled board or they provide for ju-
dicial review.
The reason they provided for administra-
tive review or judicial review is in view of
this prohibitive language. That is where
they have gotten around it. No one raised
the point. I do not want to take this out
and say to them that the green light is on,
you can invade any other department of
g-overnment irrespective of the constitution-
al provisions, and if you defeat this, if you
grant this amendment striking this out, I
hope that when you come to GP-11 you will
carefully consider it and that you will at
least pass that.
THE CHAIRMAN: Delegate Willoner.
DELEGATE WILLONER: Mr. Chairman,
Article III, section GO of the present Con-
stitution, provides that the General Assem-
bly shall have the power to provide by suit-
able general enactment for the suspension
of sentence by the court in criminal cases
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