Saidu Muhammed v. Bhanukuttan, Executive Officer, Chavara Panchayat

1. The petitioner was assessed to profession tax under the provisions of the travancore - cochin panchayats act, 1950 for the four half years, 1101953 to 3 91955. He was duly served with notices of demand. He met these notices with protests but not with payment and has not, To this day, Paid the tax assessed. The travancore - cochin panchayats act provided for the recovery of arrears of tax by resort to the revenue recovery act it did not provide any other mode of recovery, And, In particular, Did not make non - payment an offence but, Whether any steps were taken for such recovery we have not been told, And, If they were, It is clear that they must have ended in failure. The travancore - cochin panchayats act was repealed on 111962 by s. 151 of the kerala panchayats act, 1960 for short, The act. However, Clause. 8 (2) of the transitional provisions in schedule v of the act says:

"all arrears of tax or other payments by way of compensation for a tax or due for expenses or compensation or otherwise due to a panchayat at the commencement of this act may be recovered as if they had accrued under this act."

and, The second proviso to s. 74 of the act which came into force on 111962 says with reference to recovery of arrears of tax (for which the first proviso authorises, Subject to the rules, The distraint and sale of the movable properties of the defaulter) :

"provided further that, If for any reason the distraint or a sufficient distraint of the defaulter's property is impracticable, The executive authority may prosecute the defaulter before a magistrate"

the kerala panchayats (taxation and appeal) rules, 1963 for short, The rules made under s. 74 and 129 of the act came info force on 20 31963. R. 26 of these rules makes the wilful omission to pay the amount due from him by a person prosecuted under the second proviso to s. 74 an offence punishable with fine not exceeding twice the amount due from him; it also provides for summary recovery by the magistrate of the amount due. On 16 71963 a notice of demand was served on the petitioner for the tax in arrear as required by r. 13 of the rules which makes service of such a demand a condition precedent to action under s. 74. To this the petitioner replied on 26 71963 denying liability; and a further notice of demand elicited a similar response on 9 - 3 - 1964. On 17 - 9 - 1965 a distress - warrant was issued, But that was returned on 20 91965 with the endorsement that distraint was impracticable since the petitioner had no movable property within the panchayat area under r. 23 of the rules only movable property found within the panchayat area can be distrained. The condition precedent to a prosecution under the second proviso to s. 74 of the act, Namely, That a distraint of the defaulter's property was impracticable being thus satisfied, The executive authority laid a complaint before the additional first class magistrate, Karunagapalli on 28 91965 charging the petitioner with an offence under s. 74 of the act read with r. 26 of the rules. The petitioner's principal defence was that art. 20 (1) of the constitution was a bar to his conviction, The act charged against him as an offence having been committed by him before s. 74 of the act and r. 26 of the rules came into force. That and certain other defences taken by him were overruled and he was convicted of the offence charged against him and was sentenced to pay a fine of rs. 25/ -, In default to undergo simple imprisonment fora week. It was further ordered that

"arrears of tax amounting to rs. 385/ - and notice fees, Warrant fees etc. Amounting to rs. 150/ - will also be realised from him."

the petitioner having unsuccessfully moved the district magistrate to make a reference to this court under s. 438 of the criminal procedure code has come up himself with this petition under s. 435 and 439. And, Since it was thought that there was a conflict between the division bench ruling in paul v, Karthiyani 1967 klt. 27 and the ruling of a single judge in muhammed lubba v. Neelambaran 1967 klt. 249 the case has been referred to a full bench.

2. An offence, The general clauses act, S. 3 (38), Tells us is "any act or omission made punishable by any law for the time being in force. " and what art. 20 (1) of the constitution says is:

"20. (1) no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, Nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence."

the question then is: did the petitioner commit an act we are using the word "act" to include also an omission made punishable by s. 74 of the act read with r. 26 of the rules after these provisions came into force?

3. The prosecution in paul v. Karthiyani 1967 klt. 27 was not for wilful omission to pay tax but for wilful prevention of distraint which also is an offence under r. 26 of the rules read with s. 74 of the act the prevention in that case was after both the section and the rule had come into force although the arrears of tax had accrued due earlier under the provisions of the travancore - cochin panchayats act. Hence no question of the application of art. 20 (1) of the constitution arose in that case the act charged as an offence was committed after the law which made it an offence had come into force. But the defence was nevertheless taken, And, In passing, Their lordships observed

"the gravamen of the offence charged against the accused is the continued default in payment of the tax leading to distraint proceedings and the impracticability of distraint and/or wilfully preventing such distraint."

the rejection of the defence was however based on the definite finding that the wilful prevention of the distraint took place long after the provisions of law making such prevention an offence came into force.

4. Muhammad lubba v. Neelambaran 1967 klt. 249 was a case of omission to pay a bid amount accrued due under the provisions of the travancore - cochin panchayats act. It was held that, By reason of art. 20 (1) of the constitution, There could be no conviction under s. 74 of the act read with r. 26 of the rules. In so holding, The learned judge stated that the act constituting the offence was, "the omission to pay the dues to the panchayat when it fell due". (the emphasis is ours). And he went on to observe that "that having occurred at a time when it did not constitute an offence, The prosecution laid in this case is

obviously under an ex post facto law and as such unwarranted". By the words, "when it fell due" the learned judge introduced a time element which is not to be found in the statute, Neither in s. 74 of the act nor in r. 26 of the rules. Had the statute imported any such time element, And made the omission to pay within a particular time the gist of the offence, We would have been inclined to agree with the learned judge. For, The act constituting the offence would have been committed once and for all, And, Therefore, The offence once and for all when that time expired. But, As it is, We are afraid he was wrong.

5. S. 74 of the act reads:

74. Recovery of arrears of tax, Cess, Etc. Any arrear of cess, Rate, Surcharge or tax imposed or cess levied under this act shall be recoverable as an arrear of public revenue under the law relating to the recovery of arrears of public revenue for the time being in force:

provided that the executive authority may directly recover by distraint, Under his warrant, And sale of movable properties of the defaulter subject to such rules as may be prescribed:

provided further that, If for any reason the distraint or a sufficient distrait of the defaulter's property is impracticable, The executive authority may prosecute the defaulters before a magistrate. " and r. 26:

"26. Magistrate to recover tax, Warrant fee etc. (1) every person who the word used in the rule is, "if", But this is obviously a slip for, "is" is prosecuted under the second proviso to s. 74 of the act shall be liable, On proof to the satisfaction of the magistrate that he wilfully omitted to pay the amount due by him or that he wilfully prevented distraint or a sufficient distraint, To pay a fine not exceeding twice the amount which may be due by him on account of

(a) the tax and the warrant fee, If any, And

(b) if distraint has taken place, The distraint fee and the expenses incidential to the detention and sale if any, Of the property distrained.

(2) whenever any person is convicted of an offence under sub - rule (1), The magistrate shall, In addition to any fine which may be imposed, Recover summarily and pay over to the panchayat the amounts, If any, Due under the heads specified in clauses (a) and (b) of sub - rule (1), And may in his discretion also recover summarily and pay to the panchayat such amount, If any as he may fix as the costs of the prosecution. "

now, It will be noticed that, As we have already observed, Neither the section nor the rule imports any time element. It is the wilful omission, As such, To pay the amount due, Not the omission to pay within a particular time that is made an offence. An omission to do a thing is, By its very nature, A continuing act and it continues so long as the obligation to do the thing lasts this is recognised by the proviso to s. 119 of the act as also by s. 117 of the act which fixes the starting point for limitation for a prosecution (as for a distraint or suit) for non - payment of dues as the date when the proceedings might first have been commenced, Not as the date of the commission of the offence. Unless, Therefore, The offence is the omission to do the thing by a particular time, The act constituting the offence continues to be done so long as the obligation to do the thing continues. In this particular case, It is no longer disputed that the obligation to pay the tax subsists. Therefore, The omission to pay it, Which began when the tax first became due, Has continued up to now. The act constituting the offence we are for the time being ignoring the mental element imported by the word, "wilfully" has been continuously committed throughout the period, In other words, It has been committed after s. 74 of the act and r. 26 of the rules which make it an offence came into force. There is therefore no question of art. 20 (1) of the constitution coming into play.

[we have purposely refrained from using the ambiguous phrase, "continuing offence", Lest the ambiguity give rise to misunderstanding. The phrase is used as, For example, In s. 182 of the criminal procedure code and in the proviso to s. 119 of the act to denote an offence, The act constituting which extends over a period of time, But, Nevertheless, May constitute only one offence. But, It is more often used to indicate such a continuing act which, At every point of time, Constitutes a fresh offence. In other words, The continuing act gives rise to recurring offences at every moment of time, (c. F. S. 22 of the limitation act, 1963 which proceeds on the assumption that, In the case of a continuing wrongful act, A wrong is committed every moment of time during which the act continues), But, Since the law in such matters generally takes no note of divisions of time less than a day, It is usually said in such cases that an offence is committed from day to day, Or that a fresh offence is committed every day. Such continuing offences are generally the special and express creatures of statute see, For example, S. 92 of the factories act, S. 454 (5) of the companies act and s. 130 (1) of the act which expressly create a fresh offence for every day during which the wrongful act continues. Had we used the phrase, "continuing offence" with reference to the offence we are now considering, That might have been open to the construction that a fresh offence is committed every day during which the omission to pay the tax continues].

6. We might perhaps observe that the learned district magistrate ruled out the application of art. 20 (1) of the constitution on the ground that there was a demand made after s. 74 of the act and r. 26 of the rules came into force which the accused failed to meet, And, Therefore, A wilful omission after the law making such omission an offence had come into force. The learned public prosecutor has commended this view for our acceptance. The argument would have been very well if the act which is made an offence was failure to comply with a demand made under the provisions of the statute. But that is not the offence. The offence, As we have already said, Is simply the wilful omission to pay the amount due to the panchayat.

7. We shall now proceed to consider, One by one, The other defences taken before us. It is said that clause. 8 (2) of schedule v of the act only says that all arrears of tax and all other dues due to a panchayat at the commencement of the act may be recovered as if they had accrued under the act. It does not say that all such arrears shall be deemed to be arrears accrued under the act so that s. 74 of the act and r. 26 of the rules can apply only if prosecution for the offence of non - payment is a mode of recovering the arrears. That, It is said, It cannot be, Since the purpose of a prosecution is to punish an offence, And, Where the offence is, As in this case, The omission to pay tax, The prosecution and a conviction thereon do not effect recovery even if, As a result of the conviction, There can be an incidental order for the recovery of the tax. But, We have no doubt that the act regards prosecution as a mode of recovery. The heading of s. 74 which makes provision for the prosecution of the defaulter reads, "recovery of arrears of tax, Cess, Etc. " while the heading of s. 117 which prescribes limitation for a prosecution for non - payment reads, "limitation for recovery of dues"; and, What is more, S. 129 (2) (xvi) says that the government may make rules" as to the realisation of any tax or other sum due to a panchayat xxx by prosecution before a magistrate xxx. " thus it is clear that the act regards prosecution before a magistrate as a means of realisation of tax due to a panchayat. And that indeed is the effect of the prosecution since, On conviction, The magistrate is empowered by sub - rule (2) of r. 26 of the rules to recover summarily, And pay to the panchayat, The amount due.

8. It is next said that the act does not authorise the making of any such rule as r. 26 of the rules creating an offence, And it is pointed out that in the several local self - government statutes on which the act is modelled, A provision like r. 26 finds place in the statute as made by the legislature itself, Even if it be in a schedule which the rule - making authority is empowered to amend. For example, In the madras district boards act, 1920, One of the statutes repealed by s. 151 of the act, Provisions corresponding to s. 74 of the act and r. 26 of the rules are to be found in schedule iv, (in r. 33 (2) and 39 respectively) enacted by the legislature itself. S. 74 of the act, It is said, Does not create an offence but only says that the defaulter may be prosecuted before a magistrate, No doubt for an offence, But without specifying what the offence is for which he may be prosecuted. S. 129 (2) (xvi) only empowers the government to make rules as to the realisation of any tax or other sum due to a panchayat by prosecution before a magistrate; and that, It is contended, Only authorises the making of rules regulating the procedure for such realisation and not a rule creating the offence for which a prosecution is to be launched. S. 130 (1) no doubt empowers the government to create an offence by rule by providing a punishment. But that is only for the breach of a rule, And since the payment of tax is not an obligation enjoined by any rule but one imposed by the provisions of act itself, Non - payment is not a breach of a rule. Moreover, The maximum punishment that can be provided under s. 130 (1) is a fine which may extend to rs. 100/ - whereas the punishment authorised by r. 26, Namely, A fine not exceeding twice the amount due, May well exceed rs. 100/ - as, In this case, It does.

9. We think that the act could have been better worded and that in copying statutes that have stood the test of time it would have done well to have copied them faithfully. Nevertheless, We are of the view that r. 26 of the rules falls within the rule making power conferred by the act, If not expressly, At least by necessary intendment. By saying that the defaulter may be prosecuted before a magistrate, S. 74 makes it abundantly clear that default in the payment of tax can be an offence since, In the context, The words "prosecute the defaulter before a magistrate" can only mean prosecute for a criminal offence. However, Beyond giving the broad indication that the act constituting the offence is non - payment of tax, The section does not say what the other elements, If any, Of the offence are, Or prescribe the punishment which alone can make an act an offence. There is no other provision of the act that defines the offence or prescribes the punishment. But sub - section (1) of s. 129 says that the government shall have power to make rules generally to carry out the purposes of the act. One of the purposes of the act, It cannot be doubted in the face of s. 74, Is to prosecute defaulters in the payment of tax or other dues, And, Since the act itself makes no provision in that behalf, We should think that a rule like r. 26 of the rules that defines the offence for which the prosecution is to be laid, And prescribes the penalty therefor, Is within the power conferred by the sub - section. And, In the particular context in which it appears, Especially when read along with s. 74, We should think that the particular power conferred by clause (xvi) of sub - section (2) of s. 129 to make rules as to the realisation of any tax or other sum due to a panchayat by prosecution before a magistrate, Includes the power to define the offence for which the prosecution is to be laid and to prescribe the penalty therefor. The words, "as to" we may point out are words of very wide import.

10. It was, In passing, Mentioned that, If this be the effect of s. 129, There would be no limit placed upon the punishment that could be prescribed by rule, And there would be nothing to prevent the rule - making authority, Namely, The government, From prescribing even the penalty of death. And s. 129 would be clearly bad for the vice of excessive delegation. We should think that, If the power conferred by the section were to be so abused, It would be the abuse rather than the section itself that would be struck down. But, Since this aspect of the matter was not fully argued before us by either side, And a decision thereon is not necessary for the disposal of this case, We do not think it proper to pronounce on it.

11. One of the defences taken at the trial was that the prosecution was barred by limitation. There are two sections of the act dealing with limitation, S, 117 and s. 119. S. 117 makes special provision for limitation for the recovery of sums due to a panchayat, Whether by distraint, Prosecution, Or suit. S. 119, Apart from being a general provision, Opens with the disclaimer, "save as otherwise expressly provided in this act" so that there is no question of this section applying to a case like the present for which express provision is made in s. 117. There fore, We need not consider whether the present prosecution would be barred under s. 119; and, So far as s. 117 is concerned, That section was brought into force only on 141966 whereas the complaint in this case was, As we have seen, Laid earlier, On 28 91965. Thus there can be no question of the prosecution being barred by time.

12. Before us the objection has taken a different form. It is that s. 74 and s. 117 form parts of an integral whole, And that s. 1 (3) of the act does not authorise the government to bring the one into force without at the same time bringing the other. Therefore, Although s. 74 was notified as coming into force on 111962, It validly came into force only on 141966 when s. 117 was brought into force. In other words, S. 74 was not in force on 28 91965 when the present complaint was laid and the complaint must fail on that short ground.

13. We consider this objection well - founded. sub - section (3) of s. 1 runs thus:

"it (the act) shall come into force on such date as the government may, By notification in the gazette, Appoint and different dates may be appointed for different areas and for different provisions of this act."

one thing is clear, Namely, That it is only different provisions that can be brought into force at different tines and not different parts of the same provision what then does the word, "provision" mean in this particular context? it is, We are afraid, Too readily assumed that it is synonymous with, "section". We do not think that this is correct. We think that the true meaning of the word, "provision" in the context is a section or series of sections forming a self - contained integral whole, Perhaps, Even a part of a section if it can stand by itself and satisfy this test. The meaning of the word, "provision" as given by the concise oxford dictionary is, "legal or formal statement providing for something, Clause of this" the wider meaning is in accord with what we have said a provision is the whole of the statement providing for something. And the narrower meaning would give rise to the absurdity that different clauses of the same section could be brought into force at different times. If a section contains a proviso, The body of the section could be brought into force without the proviso being brought into force at all, And the penal or taxing sections of a statute could be brought into force without bringing into force other sections providing exemptions or reliefs. The legislative intent is clear that a prosecution under s. 74 should be governed by the limitation prescribed by s. 117. Supposing, Instead of there being a separate section for limitation, S. 74 itself had said that the executive authority may prosecute the defaulter before a magistrate within such and such a time. Would anyone have dreamt of bringing the section into force omitting the clause providing for limitation? why should the position be different merely because limitation is provided for by a separate section?

14. Another way of looking at the matter is this: sub - section (3) of s. 1 provides for conditional legislation, And it is well - recognised that conditional or delegated legislation must conform with the legislative intent as disclosed by the statute and must not run counter to it. In particular, It must not effect any change of policy or any essential change in the act regarded as a whole see rajnarain singh v. Chairman p. A. Committee air. 1954 sc. 569.

15. Lastly, It has been argued that the prosecution has failed to establish the mental element required for the offence, The element imported by the word, "wilfully" in the clause, "wilfully omitted to pay the amount due by him" occurring in r. 26 (1) of the rules. This contention also seems to us well - founded. For, Whatever else might be imported by the word, "wilfully" we think that it certainly postulates the ability, In other words, The means, To pay the amount due. You do not wilfully omit to do a thing which with the best will in the world you cannot do the concise oxford dictionary defines "wilful" as, "for which compulsion or ignorance or accident cannot be pleaded as excuse, Intentional, Deliberate, Due to perversity or self - will. " there is absolutely no evidence in this case to show that the petitioner had, At any time, The means to pay the tax due indeed the failure to recover the amount under the provisions of the revenue recovery act or by distraint of movables would, If anything, Indicate the contrary. That the accused did not plead want of means does not relieve the prosecution of the burden to establish all the ingredients of the offence.

16. We allow this petition, Set aside the conviction and sentence recorded against the petitioner, And acquit him. Needless to say, The order for recovery goes with the conviction.

isaac, J.

1a. I have had the privilege of reading the judgment prepared by my lord justice shri raman nayar. I respectfully agree with his conclusion and the reasons stated in support of the same, Except on the question of the validity of r. 26 of the kerala panchayats (taxation and appeal) rules, 1963. As this is a question of some importance, I shall briefly state my reasons for the dissent.

2a. The kerala panchayats (taxation and appeal) rules, 1963 (hereinafter referred to as the rules) were made by the government in exercise of the powers conferred by s. 74 and 129 of the kerala panchayats act, 1960 (hereinafter referred to as the act). R. 26 reads as follows:

"26, Magistrate to recover tax, Warrant fee etc. Every person who is prosecuted under the second proviso to s. 74 of the act shall be liable, On proof to the satisfaction of the magistrate that he wilfully omitted to pay the amount due by him or that he wilfully prevented distraint or a sufficient distraint, To pay a fine not exceeding twice the amount which may be due by him on account of

(a) the tax and the warrant fee, If any, And

(b) if distraint has taken place, The distraint fee and the expenses incidental to the detention and sale, If any, Of the property distrained.

(2) whenever any person is convicted of an offence under sub - rule (1), The magistrate shall, In addition to any fine which may be imposed, Recover summarily and pay over to the panchayat the amounts, If any, Due under the heads specified in clauses (a) and (b) of sub - rule (1) ; and may in his discretion also recover summarily and pay to the panchayat such amount, If any, As he may fix as the costs of the prosecution. "

the attack against this rule is that it is beyond the rule making powers conferred by the act on the government. R. 26 creates an offence and prescribes the punishment for the commission of the said offence. The only provisions in the act, Which were invoked as conferring the power on the government to make such a rule are s. 74 and 129 (1) and clause (xvi) of s. 129 (2). These provisions may be read:

74. Recovery of arrears of tax, Cess, Etc. Any arrear of cess, Rate, Surcharge or tax imposed or fees levied under this act shall be recoverable as an arrear of public revenue under the law relating to the recovery of arrears of public revenue for the time being in force:

provided that the executive authority may directly recover by distraint, Under his warrant, The sale of movable properties of the defaulter subject to such rules as may be prescribed:

provided further that, If for any reason the distraint or a sufficient distraint of the defaulter's property is impracticable, The executive authority may prosecute the defaulters before a magistrate.

s. 129 (1) powers of government to make rules. (1) the government shall, In addition to the rule making powers concerned on them by any other provisions contained in this act, Have power to make rules generally to carry out the purposes of this act.

(2) in particular, And without prejudice to the generality of the foregoing power, The government may make rules

(xvi) as to the realisation of any tax or other sum due to a panchayat under this act or any other law or any rule or bye - law whether by distraint and sale of movable property, By prosecution before a magistrate, By a suit or otherwise;"

xx xx xx xx

the learned government pleader submitted that, Under s. 74 of the act, Prosecution of the defaulter before a magistrate is one of the modes of recovery of arrears of tax due to a panchayat, And that prosecution before a magistrate means prosecution for an offence. I shall assume that this submission is right, Though the recovery of a tax through a magistrate need not necessarily be by creating the nonpayment of tax an offence, And then by providing for the prosecution of the defaulter for the said offence. The provision contained in s. 23 (2) (b) of the kerala general sales tax act, 1963 is an illustration, Which provides that any tax assessed or any amount due under that act may be recovered by a magistrate, On application by the assessing authority, As if it was a fine imposed by the magistrate. The next step in the argument of the learned government pleader is that s. 129 (1) contains a general power to make rules for carrying out the purposes of the act, And clause (xvi) of s. 129 (2) contains the particular power to make rules for the prosecution of the defaulter before a magistrate for the realisation of tax and other amounts due to a panchayat, And that these provisions empower the government to make rules generally to carry out the purposes of the act. Assuming that prosecution of a defaulter is one of the purposes of s. 74, A power to make rules generally can only mean the power to make rules regarding the institution of a prosecution, And its trial and disposal. It cannot include the power to make nonpayment of tax or other amounts due to a panchayat an offence, And prescribe punishment for such an offence. Clause (xvi) of s 129 (2) does not take the matter any further. Creation of an offence and prescribing punishment are essentially a legislative matter. It cannot be delegated by the legislature to another authority. Conference of such a power is different from the provisions sometimes found in statutes, Which empower the rule - making authority to provide that a breach of the rule shall be punishable. Such a provision is an incidental provision for the enforcement of the rule itself. In some cases, The statute itself prescribed the punishment; and sometimes the statute provides the maximum of the punishment that can be prescribed by the rule making authority. S. 130 (1) of the act, Which enacts that, In making any rule, The government may provide that a breach thereof shall be punishable with fine which may extend to one hundred rupees, Or in case of a continuing breach, With fine not exceeding fifteen rupees for every day during which the breach continues, Is an illustration of such a legislative provision. This section shows that when the legislature wanted to empower the government to make the breach of rule an offence, It made a special provision authorising the government to do so, And further provided the maximum punishment for such an offence. This also indicates that, If the legislature intended to empower the government to make a rule creating non - payment of tax or other amounts due to a panchayat an offence, And prescribing a punishment for the same, It would have made express provisions to that effect. There is a chapter in the act dealing with penalties; but the act contains no provision making non - payment of tax or other amounts an offence or prescribing any punishment for the same. The omission to provide these things in the statute is clearly a legislative lacuna; and it is not the function of the court to read into the statute provisions which are not contained therein; but which should have been there. I am, Therefore, Of the opinion that r. 26 of the rules, In so far as it provides that non - payment of an amount due to a panchayat is an offence, And it prescribes a punishment for the said offence, Is beyond the powers conferred on the government under the act.

3a. The learned counsel for the petitioner contended that, If r. 26 of the rules is intravires, The power conferred by the act to make such a rule is unconstitutional, As the act has not enunciated any policy or principle or given guidance to the rule - making authority in the matter of making non - payment of amounts due to a panchayat an offence and prescribing a punishment for the same. This contention is also entitled to succeed. There is nothing in the act to guide the rule - making authority to prescribe the elements or the circumstances which would constitute non - payment of an amount due to a panchayat an offence. There is also no guidance in prescribing the punishment; nor has the act even fixed the maximum punishment that the rule making authority can prescribe. Conference of such unguided and naked power on any authority amounts to an abdication of the legislative function, And is clearly unconstitutional. In such a case, There is no question whether the power conferred on the authority has been exercised reasonably or not. Unreasonable exercise of power, Or abuse of power may be a ground to strike down the act done in exercise of the power. But that is a different question; and it does not arise in this case.