In a dissenting opinion rendered in the Sinking Fund Cases9 Justice Field says: "The distinction between a judicial and legislative act is well defined. The one determines what the law is, and what rights the parties have with reference to transactions already had; the other prescribes what the law shall be in future cases arising under it. Whenever an act undertakes to determine a question of right or obligation, or of property, the foundation upon which it proceeds, such act is, to that extent, a judicial one, and not the proper exercise of legislative functions."

In Taylor v. Place10 the court say: "The judicial power is exercised in the decision of cases; the legislature in making general regulations, by the enactment of laws. The latter acts from consideration of public policy; the former is guided by the pleadings and evidence in the cases."

In further distinction of the two functions it might be added that legislative action is initiated by the enacting body, whereas the judiciary may act only when called upon to do so, and that the former acts upon its own knowledge, the latter upon knowlege given to it.11

9 99 U. S. 700; 25 L. ed. 496. 10 4 R. I. 324.

11 Cf. a paper entitled "The Distinction between Legislative and Judicial Functions," in Report of the American Bar Association, 1885. p. 261.