(dissenting).
Even after according § 602.59 the strong presumption of constitutionality to which it is entitled, I am unable to agree with that part of . Division III of the majority opinion dealing with delegation of legislative power under Article III, § 1 of the Iowa Constitution. I find that delegation to be unconstitutional, and I therefore dissent.
I. I agree that legislative power may be delegated to another branch of government if adequate guidelines (or, in some cases, safeguards) for its exercise accompany the delegation. See Iron Workers Local No. 67 v. Hart, 191 N.W.2d 758, 772 (Iowa 1971); Elk Run Telephone Company v. General Telephone Company, 160 N.W.2d 311, 317 (Iowa 1968).
I disagree, however, with the majority’s conclusion the authority granted to district judges under § 602.59 meets this constitutional test. The majority concedes this is true if § 602.59 is considered by itself. It then reaches out for support to §§ 602.57 and 602.61 as pari materia statutes whose *903provisions, it is said, supply the guidelines lacking in § 602.59. But §§ 602.57 and 602.61 are not pari materia statutes at all. The former contains guidelines, indeed, but they are for the allocation of magistrates among the counties as the workload dictates, not for the manner magistrates should be selected. The latter (§ 602.61) is another housekeeping statute authorizing chief judges to use the available magistrates to the best advantage. Both of these statutes deal only with day-to-day internal operations, which courts have inherent power to regulate, even without legislative sanction. See 1 Sutherland Statutory Construction, 4th Ed. (Sands) 1972, § 4.06 pages 79-80.
II. The majority ignores the added scrutiny to which delegations of legislative power are subjected when authority is vested in the judiciary. The majority says this is “unimportant.” The authorities are to the contrary.
This is well stated in Westring v. James, 71 Wis.2d 462, 238 N.W.2d 695, 698-699 (1976) as follows:
“[Schmidt v. Department of Local Affairs and Development, 39 Wis.2d 46, 158 N.W.2d 306] emphasizes the fact that legislative powers which may be delegated to the courts are very limited.- * * * The courts cannot be delegated the legislative responsibility of determining what is ‘in the public interest’ in respect to the creation of municipalities.”
In Westring the court was referring to the following statements from Schmidt v. Department of Resource Development, 39 Wis.2d 46, 158 N.W.2d 306, 311-313 (1968) (quoting from a prior Wisconsin decision):
“What is ‘desirable’ or ‘advisable’ or ‘ought to be’ is a question of policy, not a question of fact. What is ‘necessary’ or what is ‘in the best interest’ is not a fact and its determination by the judiciary is an exercise of legislative power when each involves political considerations and reasons why there should or should not be an annexation. * * * ”
******
“We are dealing here not with a delegation of legislative power to the judiciary but with a delegation of that power to an administrative agency or administrative director. The legislative agency or director is, in fact, an arm or agent of the legislature itself. The very existence of the administrative agency or director is dependent upon the will of the legislature; its or his powers, duties and scope of authority are fixed and circumscribed by the legislature and subject to legislative change. An administrative agency does not stand on the same footing as a court when considering the doctrine of separation of powers. An administrative agency is subject to more rigid control by the legislature and judicial review of its legislative authority and the manner in which that authority is exercised. * * *
U * * *
“The power to declare whether or not there shall be a law; to. determine the general purpose or policy to be achieved by the law; to fix the limits within which the law shall operate — is a power which is vested by our Constitution in the legislature and may not be delegated. * * ” (Emphasis added.)
Other states, too, emphasize this necessity for more strict construction when legislative power is delegated to the judiciary.
In Copeland v. Kansas State Board of Examiners in Optometry, 213 Kan. 741, 518 P.2d 377, 380 (1974), the court said:
“The legislature may impose a function upon the courts that is clearly judicial, but by reason of the separation of powers doctrine, the legislature cannot impose a legislative function upon the judiciary.”
The same thought was expressed this way in Galloway v. Truesdell, 83 Nev. 13, 422 P.2d 237, 244-246 (1967):
“Generally, the legislature may not confer or impose powers non-judicial in character upon the judiciary.
« * * *
“Our Constitution, even though being a ‘living thing’ and flexible still has limitations upon the powers that the legislature *904can grant to a District Court. As was pointed out above, non-judicial functions cannot be imposed upon courts and judges unless expressly stated in the Constitution. * * * ”
See also In Re Fond du Lac Metropolitan District, 42 Wis.2d 323, 166 N.W.2d 225, 227-228 (1969).
Our own cases also recognize this distinction. In Iowa-Illinois Gas and Electric Co. v. Fort Dodge, 248 Iowa 1201, 1216-1217, 85 N.W.2d 28, 37 (1957) we said:
“The Constitution of Iowa, like other American state constitutions, effects a complete separation of legislative, executive and judicial powers. It has been so many times recognized and declared that regulation of public utility rates is a legislative function, that this court will not dwell upon the matter in this opinion * * * It should suffice to mention at this time that while the legislative body may create a public utilities commission and delegate legislative powers to it, subject to standards to be provided by the legislature, and may likewise delegate such legislative powers to municipal corporations, such delegation cannot be made to the courts even by express legislative enactment. Citations.” (Emphasis supplied.)
See also Graham v. Worthington, 259 Iowa 845, 857, 146 N.W.2d 626, 635 (1966), where the powers the legislature may delegate to a judicial body were limited to procedures, mechanics, and factfinding process with-reasonably proper guides and standards.
In State of Iowa ex rel. Klise v. Town of Riverdale, 244 Iowa 423, 436, 57 N.W.2d 63, 70 (1953) we said:
“What is desirable is not a question of fact that can be judicially determined. It is a question of policy or public interest exercisable by the legislature alone. * * No one knows what the legislature meant by its requirement of desirability. It probably meant the court was to decide what would best promote or be conducive to the public good. Plainly this is legislation. The legislature has been entrusted with the power to pass laws for the public good. It cannot delegate to the courts, as a condition to the laws taking effect, the choice of determining whether the law will have a salutary effect. * * * ”
Later, at 24 Iowa 441, 57 N.W.2d at 73, the Klise opinion contains this:
“No case is cited that goes so far as to allow annexation if the court felt it ‘desirable.’ Such a requirement as a determination of desirability leaves the court free to first formulate all of the conditions precedent to annexation and then to find if they exist. This is a delegation of unlimited power in the courts to determine whether property shall be annexed or not and hence the statute is unconstitutional.”
In an earlier case, Denny v. Des Moines County, 143 Iowa 466, 473-474, 121 N.W. 1066, 1069 (1909), this court said:
“In other states statutes providing for proceedings in court with reference to a creation of a municipal corporation, or the extension of its limits, have frequently been considered by the courts, with the general conclusion, supported by the great weight of authority, that if the proceeding involves the determination of a legislative question, or the exercise of administrative powers, the statute is unconstitutional, and that such statutes can be upheld only where they leave to the courts the determination of questions of fact, as distinguished from the exercise of a general discretion involving the public interest.”
III. Applying the foregoing principles to the present case, I find the delegation of power under § 602.59 constitutionally offensive. As the majority points out, the authority that statute delegates to the district, judges allows them to work substantial and material changes in the judicial system- in personnel, jurisdiction, manner of appointing magistrates, term of office, and salary.
Surely the determination of such mailer;! is legislative. If delegable at all, the power given the judges over these vital policy questions must be limited to well-defined factfinding under adequate guidelines.
*905Here, on the contrary, the delegation is carte blanche. It may be exercised at will. Then, at a later date, the judges may order a reversion to the original system if that seems “desirable.” See § 602.59(5). This is a delegation of unfettered power which allows the district judges to decide what is advisable, or desirable, or necessary. As the authorities heretofore cited demonstrate, these are policy decisions. They are not facts properly determinable by judicial bodies. In addition to the authorities cited in Division II, see Lewis Consolidated School District v. Johnston, 256 Iowa 236, 248-249, 127 N.W.2d 118, 126 (1964); State v. Van Trump, 224 Iowa 504, 508-509, 275 N.W. 569, 572 (1937); 1 Am.Jur.2d, Administrative Law, § 108, pages 907-908 (1962).
Today’s decision goes far beyond any previous announcement of this court. It approves — for the first time — a delegation of legislative power without either guidelines or safeguards. I have already discussed the absence of guidelines. As to safeguards, I simply point out there is no provision for notice, hearing, or judicial review. This is vividly illustrated by the present case when plaintiffs were forced to invoke the original jurisdiction of this court — a rare remedy— to test the statute.
It is probably unnecessary to add I would hold § 602.59 to be an unconstitutional delegation of legislative power.