Lapas attēli
PDF
ePub

of the road, throwing the plaintiffs and their child out of the buggy upon the ground, and injuring them. It was further proved that said horse was a very quiet work-horse in a buggy, and that said land-slide came into the road on July 9, 1887, eight days before the plaintiffs were injured. These facts show clearly that the road was out of repair and in a dangerous condition. The only question therefore is, do they show that the negligence of the plaintiffs in any degree contributed directly to the injury suffered by them? It seems to me, according to the rules and principles of law above stated, that there can be no doubt that such was the fact. The whole roadway, with exception of about two feet, was obstructed by the land-slide, which was four feet deeper or higher on the upper or bank side of the road than it was on the lower. In fact, the roadway was almost entirely closed by the obstruction. The testimony of the plaintiffs shows that they regarded this obstruction, consisting of rocks and dirt, as dangerous. It was not only open and visible, but the plaintiffs knew its exact condition, and notwithstanding these facts they heedlessly and recklessly ran upon it. And what was still more reckless and inexcusable, neither of them got out of the buggy, or took any precaution to avoid any accident or injury; but in the face of almost unavoidable danger they all remained in the buggy and drove the horse and buggy over the obstruction. No sensible or reasonable person could have expected to escape injury in doing such an act. They not only did this, but they run the buggy over a rock about six inches high, as though they were determined to upset. It is plain, from all these facts, that the plaintiffs not only contributed to the injury they sustained, but their recklessness was the direct and sole legal cause of it. They took an unreasonable and dangerous risk, and having sustained injury thereby they cannot escape responsibility by showing the defective condition of the road." See Merrill v. North Yarmouth, 78 Me. 200; S. C., 57 Am. Rep. 794 (flooded road); Pittsburgh So. Ry. Co. v. Taylor, 104 Penn. St. 306; S. C., 49 Am. Rep. 580 (horse frightened at cars off track in highway); City of Erie v. Magill, 101 Penn. St. 616; S. C., 47 Am. Rep. 739, and note, 744 (icy sidewalk); Town of Albion v. Hetrick, 90 Ind. 545; S. C., 46 Am. Rep. 230 (gully in road); City of Altoona v. Lotz, 114 Penn. St. 238; S. C., 60 Am. Rep. 346 (defective sidewalk); Henry Co. Turnp. Co. v. Jackson, 86 Ind. 111; S. C., 44 Am. Rep. 274, and note, 276 (washout in road).

CONSTITUTIONAL LAW-HIGH LICENSE-
LOCAL OPTION.

NEW JERSEY COURT OF ERRORS AND APPEALS, AU-
GUST 10, 1888.

STATE V. CIRCUIT COURT OF GLOUCESTER County. An act entitled "An act to regulate the sale of intoxicating and brewed liquors" may lawfully interdict the sale of such liquors by the small measure. It is regulation and

not prohibition. The act is not void within that provis ion of the State Constitution which says: To avoid im. proper influences, which may result from intermixing in one and the same act such things as have no proper relation to each other, every law shall embrace but one object, and that shall be expressed in the title." The classification by population for the purpose of fixing the minimum license fee in the several townships and cities.

is a valid classification, and imparts to the law the quality of general legislation.

The law is not in contravention of our constitutional provis ion that "the Legislature shall not pass private, local, or special laws regulating the internal affairs of towns and counties." This inhibition in the Constitution is not intended to secure uniformity in the exercise of delegated police powers, but to forbid the passing of a law vesting in one town or county a power of local government not granted to another.

The provision in the law, that if a majority of the legal voters in a county shall vote against the sale of intoxicating and brewed liquors, no license shall be granted within the county for the sale thereof, is not an unlawful delegation of power by the Legislature.

[blocks in formation]

VAN SYCKEL, J. The principal question in these cases is as to the constitutionality of an act passed at the last session of our Legislature, entitled "An act to regulate the sale of intoxicating and brewed liquors." The law consists of two parts. The first part establishes a minimum license fee for the several townships, towns, boroughs and cities of the State, graduated according to population, and is called the "High License Law." The second part of the law provides for a vote in each county on the application of onetenth of the legal voters, to determine whether or not any intoxicating or brewed liquors shall be sold within the county, and is styled the "Local Option Law," in the discussion of the case. The Paul Case involves the validity of the local option part of the law; the Hart Case that of the high license feature.

The Constitution of this State provides that "to avoid improper influences, which may result from intermixing in one and the same act such things as have no proper relation to each other, every law shall embrace but one object, and that shall be expressed in the title." Upon this part of the fundamental law of the State the first attack upon this legislation is based. The contention is that the object of the act is not expressed in the title; that the effect of the act is to prohibit the sale of liquors; and that the object is not indicated by the title, "An act to regulate." The case principally relied upon to support this view is the Hauck Case, 38 N. W. Rep. 269, in the Supreme Court of Michigan. The law there provided that when the majority vote in the county was cast against the sale, it should be thereafter unlawful to manufacture, sell, give away or furnish malt liquors or intoxicating liquors of any kind, or in any quantity. This case was well decided. The enactment clearly and expressly prohibited the sale of liquors, and that purpose was not manifest in the title. Mr. Justice Dixon, in State v. Fay, 44 N. J. Law, 477, tersely states the true view in this way: "Intrinsically regulation and prohibition range in different spheres. No sale which is prohibited is regulated, and none regulated is prohibited." If therefore the law under review prohibits the entire traffic in case of an adverse vote, there could be no hesitancy in pronouncing it a violation of the constitu

tional mandate. The first three sections relate expressly to the sale by small measure. They provide for the license fee, and regulate the sale under the license. In our law no provision has been made for requiring license to sell by greater quantity than one quart, unless to be drank upon the premises. Section 4 authorizes a vote, "to determine whether or not any intoxicating or brewed liquor shall be sold within the county." This language is broad enough to include the entire traffic, but the section forbids nothing-it makes nothing unlawful. Nor is there any thing in sections 5 or 6 which declares any sale to be illegal. Section 7 expressly states what shall be the effect of the majority vote against selling, in these words: "Whenever it shall appear that a majority of the votes cast in such county are against the sale of intoxicating liquors, no license shall thereafter be granted to any person within the limits of such county to keep an inn or tavern or saloon, or to sell spirituous, vinous, malt, or brewed liquors, to be drunk on or about the premises." This unquestionably relates only to sales for which license is required. If it had been intended by the vote to prohibit the sale generally, the seventh section would have said, in the language of section 4, that no intoxicating or brewed liquors should thereafter be sold. The Legislature having thus distinctly stated what the effect of the majority vote shall be, the maxim expressio unius, exclusio alterius, clearly applies. Other or different effect cannot by judicial interpretation be given to the vote, unless some after-language in this statute plainly indicates that such was the intent of the law-maker. The only remaining section bearing upon this topic is the eighth. It provides that "any person who shall traffic in, sell, expose for sale, or give away, with intent to violate any of the provisions of this act, or shall suffer to be trafficked in, sold, or exposed for sale, or so given away, any liquors mentioned in the seventh section of this act, by whatever name called, shall be deemed guilty of a misdemeanor." This section is badly drawn, and does not indicate with clearness what the purpose of the draughtsman was. The words "so given away" show that the object in the mind of the framer will be promoted by transposing the words" with intent to violate any of the provisions of this act," and reading it in this way: "That any person who shall traffic in, sell, expose for sale, or give away, or shall suffer to be trafficked in, sold, or exposed for sale, or so given away, any liquors mentioned in the seventh section of this act, by whatever name called, with intent to violate any of the provisions of this act, shall be deemed guilty of a misdemeanor." This construction harmonizes the previous sections of the act, and restricts its bearing to the liquors mentioned in the seventh section of the act; that is to say, to the sale of liquors in such quantities as there must, under our laws, be license to sell. If total prohibition was intended, it cannot reasonably be conceived that the Legislature would have failed to use the simple language necessary to express that purpose, without restricting the prohibition to the liquors mentioned in the seventh section.

Due regard must also be given to the title of the act in determining the scope which the legislative will has imparted to it. In Hendrickson v. Fries, 45 N. J. Law, 555, this court held that a statute which made void a power of attorney inserted in the body of a note or bond, did not apply to such a note made in this State for the purpose of entering judgment by confession in Pennsylvania, for the reason that the section containing this provision was in a statute entitled "An act to regulate the practice of law," and could not therefore be construed to affect such instruments, when not designed to be used to enter judgments in our own courts. In State v. Inhabitants of Northampton, de

cided at the last term of court, and reported in 14 Atl. Rep. 587, Mr. Justice Depue said: "The constitutional mandate that the object of every law shall be expressed in its title, has given the title of an act a twofold effect. It has added additional force to the title as an indication of legislative intent in aid of the construction of a statute couched in language of doubtful import, and it also operates as a constructive limitation upon the enacting part." The Legislature, in the title adopted for this act, has indicated its purpose to restrict it to regulation, and not to extend it to prohibition of the entire traffic. Conceding that there is some doubt as to the extent of the prohibition, this will not overthrow the law. The expressed will of the law-maker cannot be set aside by the judiciary unless it is clear that he has transcended his constitutional prerogative. To be in doubt is to be resolved in favor of the law. Upon what language in this act could an indictment for selling by larger measure than one quart be maintained? A criminal offense will not be created by doubtful construction; there must be something equivalent to expression to justify the punishing as a crime that which has hitherto been a legitimate business in which hundreds are engaged. The act before us will certainly bear the construction I have given it, and in a case of doubt that interpretation must be adopted which will uphold the law. Assuming that the extreme effect of this legislation is to forbid the sale by small measure, in my judgment it must be regarded as a law regulating the sale of intoxicating and brewed liquors. It regulates the sale by prohibiting it in small quantities. Every license law is to some extent a prohibitory law; it prohibits the sale by all persons who have no license. But it is said that the prohibition is absolute within the sphere in which the law operates; that is, as to the sale by small measure. So is the law which absolutely forbids the sale by the small measure on Sunday, or ou election day. So would be a law which prohibited the sale to minors, or within a certain distance from a college. Such laws are therefore none the less regulations of the liquor traffic. They operate as a check; as a partial restraint upon the sale, not an absolute inhibition; and are in the strictest sense regulation. The regulation becomes more or less stringent as you increase or diminish the extent to which it operates to prevent sales; but it reaches the point of prohibition, and ceases to be regulation, only when it wholly inhibits the traffic. Unless this view is accepted, we cannot stop short of maintaining that every law which prohibits any portion of the traffic is a prohibitory law. This would give to the word "regulate" no substantial significance. It may be that if this law forbade the sale in less quantity than 10,000 hogsheads, this court would pronounce it null and void; but it would be because the title would be manifestly and intentionally misleading, and would show that the accepted quantity was inserted as a mere subterfuge to evade the constitutional mandate. The soundness of legal principles cannot be tested by such instances. The fees for license to sell by the small measure, when granted, and under what circumstances such licenses shall be wholly refused, are kindred subjects, which pertain to the regulation of the liquor traffic, and they may be dealt with in a single act by the Legislature. The title sufficiently expresses the object of the act, and no infirmity is found in it.

In dealing with this constitutional limitation, it will always be well to look at the source from which it was derived, which will be found in section 18 of the instructions for Lord Cornbury, in 1702, in these words: "You are also as much as possible to observe in the passing of all laws that whatever may be requisite upon each different matter be accordingly provided for by a different law, without intermixing in one and

the same act such things as have no proper relation to each other; and you are especially to take care that no clause or clauses be inserted in or annexed to any act which shall be foreign to what the title of such respective act imports." Leaming & Spicer, 623. This instruction, like the provision in our Constitution, and unlike many of the State Constitutions, embodies the reason which led to its adoption. Taking that as a guide to interpretation, it must be admitted that it has been applied with sufficient strictness.

The second question to be considered is whether the classification by population in the first section of the act for the purpose of fixing the minimum license fee is vicious? It is conceded that the section is a regulation of the internal affairs of towns and cities, and that the diversity created by it is fatal to its validity, unless the basis of the classification is a substantial

one.

capacity to delegate is implied, as a necessary result, from the fact that in our system of government the power to make the laws is lodged in our Senate and General Assembly; that a consequent obligation rests upon them to exercise the function with which they are intrusted; and that in the absence of express authority to delegate, such authority does not exist. The only restraints upon the exercise of the legislative prerogative are those expressly or impliedly contained in the Federal and State Constitutions, and those immutable principles which lie at the very foundation of society. When we recur to the fact that the power of eminent domain has been delegated to railroad and other corporations without challenge; that the important power of taxation and all the powers of local government have for more than three generations been delegated in our State-we are admonished not to be too confident in asserting where the precise limitation is upon the competency of the Legislature to delegate powers of government. We must be careful therefore how, in the absence of express injunc

Whether the basis of classification is wise or judicious, or whether it will operate as fairly as some other basis that might be adopted, is a question for the Legislature, and not for the courts. The extreme limit of our inquiry in this direction is, does population, or clear implication, we strip a co-ordinate tion bear any reasonable relation to the subject to which the Legislature has applied it; is it germane to the law? In administering the license laws, the practice has prevailed, under the Inn and Tavern Act, to regard the density of population in fixing the license fees. Where the population is dense, the Legislature may have concluded that the people will be more prosperous, that they will expend their money for luxuries more freely, and will pay higher prices, than in sparsely settled districts. Also that the larger the population the greater will be the expense of maintaining the police department. No more suitable class basis of classification, which the Legislature could have selected for itself, has suggested itself during my consideration of this subject. I regard this branch of the case as entirely settled by the latest declaration of this court. I refer to Randolph v. Wood, 49 N. J. Law, 85. The act in that case provides that in cities having a population less than 12,000, the term of office of councilmen shall be for as many years as there are members in each ward. Mr. Justice Knapp, in delivering the opinion of the Supreme Court, said: “The question is whether, for the purpose of this legislation enlarging the terms of office of councilmen, smallness of population may not be a substantial and sufficiently important ground to distinguish such communities from the great cities of the State. May it not be believed that in small cities the duties of such office are reasonably small, and that unless the term is for a considerable time, competent men are not likely to be had, and that in this large cities differ. If these or other considerations justify the drawing of some line between larger and smaller populations, it is for the Legislature to say where the line shall be drawn. I am not prepared to say that the selection of the smaller population as the object to which this legislation shall apply is so inappropriate that we may deny to the legislation based on it the quality of a general law." This case was unanimously affirmed by this court, and the opinion of Justice Knapp in the Supreme Court adopted as the opinion of this court. Randolph v. Wood, 50 N. J. Law, 175, ante, 271.

The questions which have been discussed in re erence to the mode of trial and the penalty prescribed for the violation of this law are not necessarily involved in either of the cases before us. It is sufficient to say that the provisions in this regard may be eliminated from the act without destroying its validity.

branch of the State government of the right to give expression to its will in the form of law, within its own department. At a very early day the Federal court upheld a law which was framed to take effect upon a contingency as to the conduct of foreign gov ernments. I refer to the "non-intercourse" law, which, in effect, provided that in case Great Britain or France should revoke or modify its edicts previously issued, so that they should cease to violate the neutral commerce of the United States, the trade suspended by law should be renewed. The Aurora, 7 Cranch, 382. In the numerous judicial discussions of laws for the control or suppression of the liquor traffic, the subject of contingent legislation has been widely debated, and many adjudications have been made to turn upon the views of judges as to the character of the contingency. The following cases will give reference to many others, and present the conflicting views of such legislation: Ex parte Wall, 48 Cal. 279; Bartov. Himrod, 8 N. Y. 483; Rice v. Foster, 4 Har. (Del.) 479; Locke's Appeal, 72 Penn. St. 491; Smith v. Janesville, 26 Wis. 291; State v. Pond, 6 S. W. Rep. 469. I do not propose to enter upon a criticism of these cases in this aspect, nor to attempt to support the legislation before us upon the theory that it is valid as contingent legislation. The judgment of this court can be rested upon what I conceive to be solid ground, aside from the consideration of the circumstances under which laws may be made to depend on a contingency. Three propositions will be assumed, which cannot be successfully controverted without subverting legislation which has stood unchallenged for more than a century: (1) That the mode prescribed by the Inn and Tavern Act for granting license is valid; (2) that the Legislature had the right to grant to municipal corporations the power to regulate and prohibit the sale of liquors; (3) that the Legisla ture has power to pass a prohibitory law. These premises have not been denied by any of the counsel who appeared against the law, and were expressly conceded by some of them. With these concessions, it seems to me that the conclusion is inevitable that there is no unlawful delegation of legislative power in this case. This part of the case can safely be rested upon either of two grounds:

First. The sale of intoxicating liquor has from the earliest history of our State been dealt with by legis lation in an exceptional way. It is a subject by itself, The remaining questions to be discussed concern to the treatment of which all the analogies of the law the "local option "branch of the law. In approach-appropriate to other topics cannot be applied. And at ing this subject, it is pertinent to remark that there is no express provision in our Constitution that legislative power shall not be delegated. The assumed in

the outset it is of the first importance to observe that the statement that the vote authorized by this law, if against the sale, prohibits the sale, or that it makes

ture incompetent to enact a law that no license shall be granted when twelve men certify that it will conduce to the public injury. Does the Legislature, under the old law, in the language of the learned judge, determine in the particular case that license shall or shall not be granted? Does not the old law leave it to the twelve men to determine what he says the Legislature must determine for themselves in order to give effect to the law? The only difference between the old and new law is the extent to which they operate. Nothing is left by the new law to the voters which is not left by the old law to the certifiers. Assuming that the old law is valid, let us examine whether the new law creates, in substance and principle, any different state of affairs, so far as relates to the question of constitutionality. The law still says that the sale by the small measure shall be absolutely prohibited. The law still, in substance and effect, is that license shall be granted, as heretofore, if the public good requires it. It must be assumed that the Legislature supposed that the people would vote for what they deemed to be the public good, and instead of being content with the certificate of twelve men, the Legislature deemed it

this law, in effect, prohibitory of the sale by small measure, is inaccurate and erroneous. If the vote is in favor of the sale, that does not authorize the sale, and no more does the adverse vote prohibit it. The refusal to license does not prohibit the sale by any one; its only effect is that by such refusal no one is enabled to sell in contravention of the law, which prohibits all. If licenses be granted to some, still all not having license are within the interdiction. The prohibition therefore is not dependent on the vote; it arises out of the law, and not out of the vote. The question whether license shall be granted is all that is involved in the vote, and that question, I will endeavor to show, has always been committed to the judgment of a tribunal selected by the Legislature. For brevity I will term the law before us the "new law," and the previously existing law the "old law." The old law, which remains unrepealed, absolutely forbids the sale by small measure. This inhibition can be escaped only by obtaining license. No one has a right to demand a license. License is a special privilege granted to a few; denied to the many. We shall probably therefore be led into error, if we reason upon this subject as we may in respect to those pursuitsprudent and judicious that those to whom the issuing which are open to all upon the mere payment of a license fee. The license, by the old law, cannot be granted unless twelve reputable freeholders certify that it is necessary, and will conduce to the public good. The necessity for a recommendation appears in the license law as early as 1738. Nev. Laws, 239; Allin. Laws, 102. The act of 1797 (Patt. Laws, 235) required "the chosen freeholders, the commissioners of appeal, and the overseers of the poor, or at least twothirds of them," to recommend the application for li

cense.

|

of license is intrusted shall be informed by a majority vote of the people of the county whether it will conduce to the public good to grant the license. If the new law had provided that every voter should say upon his ballot whether in his opinion it will conduce to the public good to grant license, would it be any clearer that the Legislature intended to make the granting of license to depend upon the question whether it is for the public good? What then is the distinction between the old law and the new law in this respect? In neither does the Legislature decide the question for itself; in both cases it commits this question to others. If the Legislature may refer the question of the propriety of granting license in the one case to a small number of the people to be affected by it, why may it not in the other case refer it to a larger number? What limitation is there upon the number to whom it shall be referred? What difference is there in principle, whether the opinion of those to whom the reference is made is communicated by means of a petition, or a remonstrance, or a majority ballot? But

What then is the precise enactment in the old law? It is simply this, nothing more, nothing less, viz. That license may be granted if "it is necessary, and will conduce to the public good." Revision, Inn and Tavern Act, § 3. The Legislature has never decided for itself whether the granting of license will be for the public good. It has adopted the various modes that I have referred to for determining that question, and made the granting of license to depend upon the finding of a tribunal other than itself. The Inn and Tavern Act is none the less a valid law because the Legislature did not decide for itself whether the pub-it is said that in this case, under the adverse vote, lic good required license, or because it refers that question to others. The Legislature did by the law determine that liquor shall not be sold by the small measure, and that no license shall be granted unless the public good requires it. That has always been regarded as a complete law. If the old law requiring twelve men to certify that license will conduce to the public good is valid, will it not be equally competent for the Legislature to provide that no license shall be granted when twelve men certify that it will conduce to the public detriment and injury? If not, why not? If such were the law, would the law be uncertain, or would its integrity as a law depend on the action of twelve men? Would it be a delegation to the twelve men of the power to make the law? In the Wall Case, 48 Cal. 279, Judge McKinstry, in commenting on the New Jersey case (State v. Common Pleas, 36 N. J. Law, 72), says: "It is plain in such case that the law-makers do not intend to establish the new rule until it shall have other sanction and allowance than that of the Legislature itself. Licenses were granted by authority of the old law; they can be prohibited only by a new law. But in the case supposed, the Legislature does not determine that licenses shall not be granted, but leaves it to the popular vote to determine the very contingency which the Legislature must determine for themselves, in order to give effect to the law." This reasoning, if accepted, and logically applied, will overthrow our own license law, and make the Legisla

there is a refusal of all license, while in other cases it is a question how many licenses shall be granted. Concede it; but as the Legislature may absolutely prohibit license, or repeal the license laws, what difference is there in principle? If the Legislature may refer to another tribunal the question whether it is wise to grant license to some persons, and not to others, what obstacle is there to the reference to a like tribunal to determine whether it is wise to grant license in any case? There cannot be any difference in principle, conceding, as we must, that the Legislature may lawfully prohibit all license. The difference in the effect of these laws that one prevents some licenses, and the other prevents more or all licenses, is altogether too slender and unsubstantial a distinction to justify judicial interference with legislative action. In my opinion the law is a complete law in itself; as complete, at least, as the old law in this particular. It is unchanged by the vote of the people. Before the vote, the sale by retail is prohibited. After the vote, it is still prohibited. Before the vote, it authorizes license, when it is indicated by a majority vote that it is for the public good. After the vote, the law is the same. The granting of the license as under the old law is exercised only when the tribunal selected by the law-maker decides upon the expediency of doing so. The right of the Legislature to refer that question in the one case must involve the right to refer it in the other. And here it may not be inappropriate

to call the attention of those expounders of the Constitution who so confidently set up their theories and assertions to overthrow laws of this character to an act of Congress passed March 3, 1887. St. U. S. 1885-87, p. 475. It is an act authorizing the president, when he is satisfied that certain acts of hostility have been committed against our fishermen, not only to put in force certain provisions in said act contained against the adversary, but also authorizes him, in his discretion, to qualify and limit the application of the provisions of the act, and makes the violation of the president's proclamation a misdemeanor, punishable by fine and imprisonment. I do not commit myself to the competency of this Federal legislation in its entire scope, but refer to it to show how a body of men, containing lawyers of eminent ability familiar with constitutional principles, have exercised the legislative prerogative.

Secondly. The validity of this law may be rested securely upon the right of the Legislature to delegate the powers of local government to political subdivisions of the State. The capacity to grant such legislative powers, commonly called "police powers," to municipal corporations, is admitted. The distinction is suggested that the by-laws and ordinances of local governments have not the force or effect of laws; that they must be reasonable; and are subject to be set aside, on certiorari, by the courts. To this I cannot assent. The rule in this respect is correctly and accurately stated by Mr. Justice Depue, in Haynes v. City of Cape May, 50 N. J. Law, 55, in this way: "A grant of power to a municipal corporation to legislate by ordinance on enumerated subjects connected with municipal affairs is in addition to the power of making by-laws, which is incidental to the creating a corporation. State v. Morristown, 33 N. J. Law, 57. The court will inquire into the reasonableness of ordinances passed by a municipal body under legislative authority, when the powers granted are expressed in terms which are general and indefinite. But when the Legislature has defined the delegated powers, and prescribed with precision the penalties that may be imposed, an ordinance within the delegated limit cannot be set aside as unreasonable." Again, it is said that the right of the Legislature to delegate police powers has its origin in the common law of England, under which the king, by his royal charter, erected the municipalities, and that such delegation can now be made by the Legislature only to the extent sanctioned by settled usage at the time our State Constitution was adopted. No argument can safely be founded upon the conditions which, in this respect, existed at common law. At the time of the adoption of the Constitution the people of New Jersey) were sovereigns. All the powers which had resided in the king of England, Great Britain, passed to them, with the absolute right to govern themselves. When, in the exercise of their sovereignty, they adopted a written Constitution distributing the powers of government, the right to legislate in its entire scope passed to the legislative bodies which the people erected. No legislative capacity was reserved to the people themselves, and no provision was made that any part of the legislative function might be delegated. We must look for the origin of the right to delegate these legislative powers not in the name of the political district, nor in the condition of the people to which they were committed. That might have created a necessity for the delegation, but could not have conferred upon the lawmaker the right to make it. Its true foundation is in the fact that it must have been deemed, in general acceptance, the exercise of one of the legitimate functions of legislation to grant these powers to political subdivisions of the State at the will of the Legislature. There is no more right inherent in a city than in a

county to have these powers bestowed upon it. If there is, then the Legislature, having absolute power to create a city co-extensive with county lines, can by its own act enlarge its powers under the Constitution. The mistake is in assuming that the legislative capacity is dependent upon and inseparable from the character of a political subdivision of territory, which it can at will create or extinguish. The power of the Legislature springs solely from the character of the grant. But it is said that if the Legislature may grant this power to counties, all legislative function may be referred back to the people. The limitation upon legislative power is in the subject itself, and not in the nature or character of the political subdivision of the State to which the grant is made. Can the right to declare what the law of attachment shall be, or how the action of ejectment shall be conducted, or what the law of descent shall be, be committed to a city any more than to a county? Hitherto the right to delegate has been restricted to such powers in the nature of police powers as are necessary to local government, among which the control of the liquor traffic is included. The Legislature is omnipotent to grant these powers to political divisions of the State now existing or to be created by it. Again, it is said that counties are not in a condition to receive such powers. Why not? What condition is necessary in this case except the legislative will to give the power, and the machinery necessary to the execution of it by the county? Those portions of our territory which have been erected by legislation into townships and cities did not become susceptible of accepting such grants by any thing which inhered in them as mere parts of the State's domain before any powers were bestowed. From time to time the Legislature gave them such powers as it elected. It was competent to graut one power, and to withhold all others, or to grant any number, and, after granting, to revoke them. Subdivisions of the State may now be created and endowed with capacity for self-government simply by act of the Legislature, providing that any portion of territory it may select shall exercise one or more such powers. It is essential only that legislation be general as to powers granted. Where is the restraint as to the territory over which the legislative power shall extend? If the Legislature deemed it expedient to secure uniformity, could it not give to every county in the State the right to regulate the liquor traffic, or the police department, or the sanitary laws for the whole county, and withdraw those powers from the political subdi visions of the county? What hinders, since it must be admitted that the Legislature may make the city and county lines co-extensive and co-incident? The power of the Legislature under the Constitution cannot depend on the capacity of a political division of the State to receive the authority in question, since that capacity can be given to it at the will of the Legisla

ture.

A constitutional limitation upon the power of the Legislature cannot arise out of a condition which the Legislature itself may remove. As well might we assert that the power that arrests a ball in its falling through the air proceeds from the ball itself. The bestowal of powers upon a county which had no means of executing them, might prove an abortive measure; but it would not be unconstitutional. The granted powers would lie dormant until further legislation enabled the county to use them. I am unwilling to adopt a view so narrow. The extent of the legislative prerogative cannot be dependent upon the names which the Legislature itself gives to localities, nor is it of such a nature that it can be increased or decreased, added to or diminished, by the Legislature itself. The power of the Legislature must at all times be the same. To assert that the legislative power does not exist, and cannot be exercised, before the county is

« iepriekšējāTurpināt »