c10:Nos. 564 and 573

Mr. Justice Holmes.
The great ordinances of the Constitution do not establish and divide fields of black and white. Even the more specific of them are found to terminate in a penumbra shading gradually from one extreme to the other. Property must not be taken without compensation, but with the help of a phrase, (the police power) some property may be taken or destroyed for public use without paying for it, if you do not take too much. When we come to the fundamental distinctions it is still more obvious that they must be received with a certain latitude or our government could not go on.
To make a rule of conduct applicable to an individual who but for such action would be free from it is to legislate — yet it is what the judges do whenever they determine which of two competing principles of policy shall prevail. At an early date it was held that Congress could delegate to the Courts the power to regulate process, which certainly is lawmaking so far as it goes. Wayman v. Southard, 10 Wheat. 1, 42. Bank of the United States v. Halstead, 10 Wheat. 51. With regard to the Executive, Congress has delegated to it or to some branch of it the power to impose penalties, Oceanic Steam Navigation Co. v. Stranahan, 214 U. S. 320; to make conclusive determination of dutiable values, Passavant v. United States, 148 U. S. 214; to establish standards for imports, Buttfield v. Stranahan, 192 U. S. 470; to make regulations as to forest reserves, United States v. Grimaud, 220 U. S. 506, and other powers not needing to be stated in further detail. Houston v. St. Louis Independent Packing Co., 249 U. S. 479. Union Bridge Co. v. United States, 204 U. S. 364. Ex parte Kollock, 165 U. S. 526. Congress has authorized the President to suspend the operation of a statute, even one suspending commercial intercourse with another country, Field v. Clark, 143 U. S. 649, and very recently it has been decided that the President might be given power to change the tariff. J. W. Hampton, Jr., & Co. v. United States, 276 U. S. 394. It is said that the powers of Congress cannot be delegated, yet Congress has established the Interstate Commerce Commission, which does legislative, judicial and executive acts, only softened by a quasi; makes regulations, Intermountain Rate Cases, 234 U. S. 476, 486, issues reparation orders, and performs executive functions in connection with Safety Appliance Acts, Boiler Inspection Acts, &c.' Congress also has made effective excursions in the other, direction. It has withdrawn jurisdiction of a case after it has been argued. Ex parte McCardle, 7 Wall. 506. It has granted an amnesty, notwithstanding the grant to the President of the power to pardon. Brown v. Walker, 161 U. S. 591, 601. A territorial legislature has granted a divorce. Maynard v. Hill, 125 U. S. 190. Congress has declared lawful an obstruction to navigation that this Court has declared unlawful. Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 421. Parallel to the case before us, Congress long ago established the Smithsonian Institution, to question which would be to lay hands on the Ark of the Covenant; not to speak of later similar exercises of power hitherto unquestioned, so far as I know.
It does not seem to need argument to show that however we may disguise it by veiling words we do not and cannot carry out the distinction between legislative and executive action with mathematical precision and divide the branches into watertight compartments, were it ever so desirable to do so, which I aiq far from believing that it is, or that the Constitution requires.
The only qualification of such latitude as otherwise would be consistent with the threefold division of power, is the proviso in § 22 of the organic Act “ that all executive functions of the Government must be directly under the Governor Geheral or within one of the executive departments,” &c. Act of August 29, 1916, c. 416, 39 Stat. 553, U. S. C., Title 48, § 1114. That does not appear to me to govern the case. The corporations concerned were private corporations which the legislature had power to incorporate. Whoever owned the stock, the corporation did not perform functions of the Government. This would be plain if the stock were in private hands, and if the Government bought* the stock from private owners «the functions of the corporations would not be changed. If I am right in what I have said I think that ownership would not make voting upon the stock an executive function of the Government when the acts of the corporation were not. I cannot believe that the legislature might not have provided for the holding of the stock by a board of private persons with no duty to the Government other than to keep it informed and to pay over such dividends as might accrue. It is said that the functions of the Board of Control are not legislative or judicial and therefore they must be executive. I should say rather that they plainly ate no part of the executive functions of the Government but rather fall into the indiscriminate residue of matters within legislative control. I think it would be lamentable even to hint a doubt as to the legitimacy of the action of Congress in establishing the Smithsonian as it did, and I see no sufficient reason for denying the Philippine legislature a similar power.
Mr. Justice Brandéis agrees with this opinion.

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