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posal deals fundamentally with liberty. It
would certainly take an hour's effort to
survey the whole field of administrative law
and to give an analysis of some of the
philosophical leanings or concepts of
government that are involved by the writers
on this subject in this field of law and this
kind of delegation. It deals with that liberty
which is jeopardized, and I think all his-
tory proves that it is so jeopardized when
too much power is concentrated in one
branch of the government.
Now, I think there are two points that
must be clearly understood by the delegates.
The first point is that this provision and
this recommendation pose absolutely no
threat to administrative agencies or ad-
ministrative law. These agencies have been
delegated legislative, executive, and judicial
power. They have proliferated over the past
40 to 50 years all the time while this pro-
vision has been in the Constitution. That is
point number one.
Point number two is that the necessity
for keeping this provision in the Consti-
tution has not been eliminated because we
simply provide in this constitution that the
executive power shall be vested in the gov-
ernor, the judicial power shall be vested in
the courts, and the legislative power shall
be vested in the General Assembly.
That power has been vested in those
groups under prior constitutions, and we
have had, at the same time, this provision
continuing in our Constitution back to 1776.
This committee proposal is absolutely
necessary if you want to prevent one thing,
and one thing only, and that is a delega-
tion of legislative power to another branch
of the government, not to an administrative
agency.
If you do not want to see legislative
power delegated to the judges, if you do not
want to see judicial power delegated to the
legislature or to the executive, and so on
and so forth, then you have got to support
this committee proposal.
T,HE CHAIRMAN: You have one minute,
Delegate Gleason.
DELEGATE GLEASON: In brief, we are
talking here about preventing what has
been attempted in this state in the past,
and it has been prevented successfully be-
cause this provision has been in the Con-
stitution. I have to say my good friend, Del-
egate Macdonald, that in talking about the
state treasurer, and as you know this has
been eliminated by this body up to this
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point, he is talking about administrative
agencies. Those are administrative agencies
and this power just does not touch them.
If you are saying this should be elimina-
ted because it is an anachronism of govern-
ment, then I say you should go back and
look at the cases because you just have not
done your homework.
THE CHAIRMAN: Delegate Henderson.
DELEGATE HENDERSON: Mr. Chair-
man, fellow delegates, with some reluctance
I rise to oppose the committee recommen-
dation, and I do so because I believe that
this statement of the separation of legisla-
tive, executive and judicial powers, that
this declaration in our present Constitution
would create more problems than it solves.
To give one very quick example, for
example, the rule-making power which is
conferred upon the Court of Appeals is a
legislative power — there can be no ques-
tion about it — and that is something which
has existed there for the past twenty-five
years and will continue into the future,
shared to some extent with the legislature.
Every exercise of rule - making power
which is exercised by the executive agen-
cies — and almost every one of them has to
some extent or another the rule-making
power — is a legislative power.
One might go on and cite example after
example. One example which struck me
with great force was the fact that under the
local government in Montgomery County
the board there which really runs the
county shares the legislative and executive
powers, and that type of government was
recommended by the National Municipal
League.
You might go on and on, and probably if
I had the time I could give you 40 different
exceptions to this general principle. It
never was really a legal principle. The view
of the Frenchman I mentioned on an earlier
occasion, Montesquieu, was quite incorrect,
as based on the British Parliament, because
from time immemorial the House of Lords
was both a legislative body and a court, as
it is today.
To put this in the constitution will lead, I
take it, to any number of difficult court de-
cisions and constructions, and the need for
it, if it ever existed, has largely been done
away with by the fact that in our present
constitution we have set up and delineated
the powers of the three branches and give
plenary power to the legislature; judicial
power to another body; and the executive
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