State v. Judge of the Circuit Court ( 1888 )

The opinion of the court was delivered by

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 2'>arts. 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 one-tenth 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 object is not indicated by the title “ an act to regulate.”

The case principally relied upon to support this view, is the Hauck Case, in the Supreme Court of Michigan, reported in 14 W. Rep. 471. The law there provided that when a majority vote in the county was cast against the sale, it should be thereafter unlawful to manufacture, sell, give away or furnish malt 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, 15 Vroom 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 hesitation in pronouncing it a violation of the constitutional 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 anything 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 liquoi’s, 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 exelusio atterius,” 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 draftsman 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, that is to say, to the sale of liquors in such quantities as there must, under our laws, be a 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. Jones, 16 Vroom 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 Dobbins v. Northampton, ante p. 496, 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 two-fold 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, 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 offence 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 x-egulates the sale by prohibiting it in small quaxxtities.

Every license law is, to some extent, a px’ohibitoxy law; it prohibits the sale by all persons who have no license.

But it is said that the prohibition is absolute within the sphex’e ixx which the law operates; that is, as to the sale by the small measure.

So is the law which absolutely forbids the sale by the small measure on Sunday, or on election day.

So would be a law which prohibited the sale to nxinors, or within a certain distance from a college. Such laws ax’e, 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 ten thousand 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 excepted 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 Oornbury 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, p. 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.

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 bear any reasonable relation to the subject to which the legislature has applied it; is it germain to the law?

In administering the license laws, the practice has prevailed uiider 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 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, reported in 20 Vroom 85.

The act in that case provides that in cities having a population less than twelve thousand, 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 Li 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 Suprenie Court, adopted as the opinion of this court. Randolph v. Wood, 21 Vroom 175.

The questions which have been discussed in reference 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.

The remaining questions to be discussed concern the “ local option” branch of the law.

In approaching 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 incapacity 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 entrusted; 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 pow._r 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 mpst be careful, therefore, how, in the absence of express injunction or clear implication, we strip a co-ordinate 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 earlvdav the federal__court upheld a law which was framed to take effect upon a contingency as to the conduct of foreign governments^» I refer to the “ non-intercourse ” law, which, in effect, provided that in ease 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 v. United States, 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; Barto v. Himrod, 8 N. Y. 483; Rice v. Foster, 4 Harr. (Del.) 479; Locke’s Appeal, 72 Penna. St. 491; Smith v. Janesville, 20 Wis. 291; Waggard v. Pond, 12 Wes. Rep. 368.

I do not propose to enter upon a criticism of these eases 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 bejassnmed,.which cannot be successfully eentroverted without subverting legislation which has stood unchallenged. century.

1. That the mode prescribed by the inn and tavern act for granting license, is valid.

2. That the legislature has a right to grant to municipal corporations the power to regulate and prohibit the sale of/ liquors.

3. That the legislature has power to pass a prohibitory law.

These premises have not been denied by any of the counselwho appeared against the law, and were expressly conceded by some of them. These premises have not been denied by any of the counsel

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 — bv-legislation in an ..ex= ■ceptional~way. It is a subject by itself,.to-the — treatment of whictTallthe., analogiesof the law, appropriate to other topics, ■cannot be applied.

And, at 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 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 hv such.refusal no one is enabled to_sell in contravention"oUtne law, which prohibits all. If. licen be grmitedT(TsomA^tiíC"HTAvíngNicir~Íicense are with the interdiction. The prohibition, therefore, is not depende 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 the few, denied to the many. We will probably, therefore, be led into error, if we reason upon this subject, as we may in respect to those pursuits 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. Nevill’s L., p. 239; AMinson’s L.} p, 102.

The act of 1797 (Pat. L., p. 235), required “the chosen freeholders, the commissioners of appeal and the overseers of the poor, or at least two-thirds of them,” to recommend the application for license.

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." Rev., Inn and Tavern act, § 3.

The Jggislature has never decided.Jbx itself whether the-gran ti ng-of ■IrcTTR^wi-l-l J^ibrNKepn hi i c-good--

It has adopted the various modes 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 public 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, 7 Vroom 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 allow-ance 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 old license law, and make the legislature incompetent to enact a law that no license shall be granted, when twelve men certify that it will conduce to the public injury.

Loes the legislature, under the old law, in the language of the learned judge, determine, in the particular ease, that license shall or shall not be granted ? Loes 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 prudent and j udicious— that those to wF.omJAaAssning.AUiew^sfl-iR.entrnsted, shall he informed by a majority vo.te-offAhe-^rqd^-^ffAhe-monnty. whether it will conduce-to-ihe 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 it is said that in this case, under the adverse vote, there is a refusal of all license, while, in the other case, 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 unchangedd by ththe sale byj?etaxl is pTuhrbited. ■ After -the-vote^itjs 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 3d, 1887. U. S. Stab., 1886-7, 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.

Second. The validity of this law may be rested-securfily— xxpon~tho7?|^i^Bfirthsdagis32liireto delegate the powers_o£ local government to political subdivisions of thejstate.

Tlhe capacity to grantsucUTegislative 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 rixle, in this respect, is correctly and accurately stated by Mr. Justice Depue, in this way: “ A grant of power to a municipal corporation to legislate by ordinance on enumerated subjects connected with its municipal affairs, is in addition to the power of making by-laws, which is incidental to the creating a corporation.” State, Taintor, v. Morristown, 4 Vroom 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. jt-But when the legislature has defined the delegated powers (.and prescribed, witli precision, the penalties that may be imposed, an ordinance within the delegated limit cannot be set aside as unreasonable.” Haynes v. Cape May, 21 Vroom 55.

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 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 law-maker 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 thjs 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 anything 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 grant 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 this 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 subdivisions of the county?

What hinders, since it must be admitted that the legislature may make the city and the 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 legislature. 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' wmuld 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 ..prpunrcative caj^aet-be-dependent upon the names which the legislature itself gums to loéalities, lior^is it of such a natu-reMllárdt~cairÍ3e^ncrease(l, 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 countvJa^firectelEEylegislation into a city, but that it may be exercised^ afterwards, is constitution-making, and not interpretation of the constitution.

I am unable to find anything in the fundamental law, or in reason, which forbids the law-maker to bestow upon the people of the county the right to exercise all powers of local government within the county limits, to the exclusion of all other political bodies, and without changing the name from county to city. Hence, if all police powers may be granted or delegated to the county, some may be granted and others withheld ; the greater includes the less.

The extent to which the delegation shall be made lies wholly within the legislative discretion.

The rtme-basis of the legislative right to delegate these powers. is. as LJia^,esaI3rHrthe_fesrTlíátit has always been recognized as a legitimate part of the legislative function, _as well as a duty in harmony with the spirit of our institutions,, to enable the people, in whom alTpower ultimately_resides, to^. control the.poIi^'poJTCj&uiucoinmunities for themselves.

The expression of the legislative will in due form, that the power shall be conferred, is, in itself, a law. The legislature itself must grant the power, and it cannot disable itself of the right to revoke it. It cannot delegate to the voters of Mercer county the power to determine whether the city of Newark, or the city of Trenton, shall be endowed with the capacity to govern its people. That question must be committedJxMhe district within which the law is to. operate.

c— In Paterson v. Society, 4 Zab. 385, 395, this distinction is clearly presented by Chief Justice Green. He there says: 44 Had the question been submitted to the people of the state, or of the county of Passaic, whether it was expedient for the legislature to grant a city charter to the township of Paterson, and the operation of the law had been made to depend on that election, the constitutional difficulty would have been fairly presented.”

Instances are not wanting in which powers of this character have been delegated to the counties and townships. Examples of the latter are so numerous that it is not necessary to particularize. As early as February 28th, 1714, an act was passed 4‘ authorizing the election of two freeholders in. every town, and providing that the freeholders so chosen and the justices of the peace should meet and constitute the governing board of the county.” Aüinson’s L., p. 14.

The act of 1743 (Allinson’s L.,p. 128), gives power to the chosen freeholders of any county, in conjunction with three justices of the peace, to order the raising of money to build jails and bridges. The board of freeholders of the county has long been an incorporated body, exercising these and other like powers without the intervention of the justices.

The general road board act provides that on application of twenty-five freeholders and tax-payers to the board of chosen freeholders of the county, such board shall, if they deem it proper, cause it to be submitted to the vote of the legal voters of the county, whether a road board shall be established.

The acts establishing county boards of health are further examples of similar law-making.

All the powers exercised by the counties are of a governmental character.

But why multiply instances of like legislation ?

The delegation of the liquor traffic, to be controlled and regulated by the constituted authorities, for and within the limits of the entire county, has all the sanction of venerable usage.

So far as usage goes, the argument as between townships and counties, is in favor of the latter.

Among the earliest laws in our state are those committing the subject of license in each county to the county courts, to be dealt with on the recommendation of specified persons, and very soon afterwards requiring the certificate of twelve freeholders.

When these laws were first promulgated, and for a long period thereafter, the judges of the Court of Common Pleas consisted of the justices of the peace of the county. They were appointed under the old constitution by the legislature in joint meeting, but they acted in their official capacity for the people of the county. The argument is just as strong as if they had been elected by the popular vote, as they now are. The duty these judges were charged with was a duty for the people of the county, which did not, in this regard, require the performance of a judicial act.

It might, with equal propriety, have been committed to the board of chosen freeholders, or to any other board created by the legislature. It may now be entrusted to such a board. In our municipalities it is commonly referred to the city council or to an excise board.

The extent to which this subject was committed to the county, is wholly immaterial to this branch of the case. The controlling point is, that, in effect, the power was delegated to the people of the county, to be exercised by them and for them, through those acting for them. Until a recent date, all the general laws of the state have regulated this subject by counties, and not by cities or townships. Although I deem the county to be a public corporation, it js immaterial to show that it is so in the strict sense. It is enough that it is capable of exorcising the grant of power, or if without the means of doing so, that the requisite means to that end shall be coupled with the grant. It is quite too late, therefore, to draw a line on this idea, which cannot be overstepped by the law-giver.

An examination of the authorities, and the careful reflection which a subject of such importance merits, have led me to the conclusions which I have announced. The following are some of the cases in accord with the views I have expres«ed: Groesch v. State, 42 Ind. 557; Dalby v. Wolf, 14 Iowa 228; Fell v. Slate, 42 Md. 71; State v. Wilcox, 42 Conn. 364; Commonwealth v. Bennett, 108 Mass. 27; Commonwealth v. Dean, 110 Mass. 357; State v. Cooke, 24 Minn. 247.

Other cases will be found by reference to those before cited. They are too numerous to be analyzed and discussed within the reasonable limits of an opinion of this court. They present the views of judges of ability, on either side of the questions involved in this controversy, and they cannot be reconciled.

This court concurs in the views expressed by our own Supreme Court, in State v. Morris Common Pleas, 7 Vroom 72, which has stood for years unquestioned as the law of the state.

At every step of this discussion we are confronted with the rule, which has become axiomatic, that when we are in doubt as to the constitutionality of a law, we must resolve the doubt in favor of its validity.

With the long array of adjudications by learned judges upon both sides of the questions involved, and the forcible presentation of the diverse views of the able counsel engaged in the argument of this cause, we may well be left in doubt, and be led to pause before we interpose the arm of the court to overthrow the action of the legislature.

Whether it is admissible to delegate control of the liquor traffic to all the people of the state in one body, is, obviously, a different question. When we speak of the powers of local government, it seems to be necessarily implied that they are powers committed to subdivisions of the state.

Local government signifies government by the several parts of the state, each part for itself. Under the constitution, counties are indestructible.

The question, remains to be considered, wether this legislation is special and local, and, therefore, in contravention of the constitutional provision, that "the legislature shall not pass private, local or special laws, regulating the internal affairs of towns and counties."

The argument is that this law produces different, resnlt,s.rin different counties, dependent upon the vote for or against the sale of liquors, and that ’ thus théTégíslature, by the indirect mode of submitting this matter to the popular vote, accomplishes what it could not do by direct legislation, viz.: it makes the law in one county to differ from that in another.

This is the same argument hereinbefore considered, presented in another form, against the validity of this law, viz.: that this is not a law 5 that the legislature did not make the law; that the vote makes the law, and that the law varies with the vote. This error underlies this entire argument. It assumes what I have denied, that the law is not complete in itself.

If a complete law when it left the hands of the legislature, it is general. It is the same law for all, and equally within the grasp of the people of each and every county to apply and enforce it at will.

'But I will not content myself with this answer.

In establishing legal principles, and especially in expounding constitutional law, we must look at the results which will flow from the views we adopt. That is a legitimate and universally accepted line of argument.

The grounds relied on to prove that the legislature has transcended its power in this instance, will equally denounce as void the law providing for county road boards, the act enabling city councils to establish excise boards, the Martin act, and others of the same general character. The latter act becomes applicable only by its adoption by the common council of any city, or upon petition of a specified number of taxpayers.

These laws, it is true, have not passed the test of judicial scrutiny, and it may therefore be said that they are of doubtful constitutionality, and that one doubtful law cannot be relied .upon as a safe prop to the validity of another law of the like character.

Let us recognize the force of this answer.

I shall not argue that several doubts make a certainty.

In my judgment, it is not difficult to demonstrate the fallacy of this argument, that this is a special law. Let us see.

The argument is, that under this 'law the effect will be to prohibit license in Mercer county if the vote is adverse, and to allow license in Essex county if the vote is favorable; that an express act of the legislature that there shall be license in Mercer and shall not in Essex, would be a special law, and, therefore, this law, which has the same effect, must likewise be special.

This reasoning will render absolutely void any law, general in form, which the most astute mind can draw, authorizing every municipal government in the state to regulate and prohibit the sale of intoxicating liquors.

Under such a law the city of Trenton might prohibit license, while the city of Newark would leave the traffic practically unrestrained. In applying such a law, the greatest diversity might exist in different localities. Such, in fact, is the present condition under existing municipal laws.

The legislature could not lawfully enact, that license shall be prohibited in the city of Trenton, and shall not be prohibited in the city of Newark, and, therefore, the law granting to municipal governments the power of control over this subject is void.

That cannot be done by indirection which cannot be done by direct enactment.

The error lies in charging to the law the diversity which'is attributable only to the different modes in which the various communities elect to govern themselves under the delegated powers.

JThese laws authorizing- the people to govern themselves are enabling acts=acts which enable-localities to govern themselves according to their own will. If diversity in the mode in which they govern themselves under such laws condemns the law as special, then it is manifest that it is incompetent for the legislature to delegate, by general law, the powers of local government.

The delegation of this police power necessarily implies the right to each political district to regulate it in its own way, or to prohibit it. If the law must be absolute, unconditional and peremptorv^iflt must hold all to a like use of it — it is not a delegation of any authority.

The very object of delegating these powersjs to enable the local governments to miMTsuch~cliverse laws aiJKey may deem_expadis&t. Otherwise, the delegation is abortive.

The 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. If one town or county was excepted^omtheN>peration of this law, it would be special and local. Under it, one county or town has neither greater or less power than every other, nor does such power differ in any respect.

The authority granted is, in every aspect of it, the same; it may be exercised in a different way or the same way.

An argument so totally destructive of the power to legislate in any form for the political subdivisions of the state, must be rejected as an utter fallacy.

The law, in my judgment, is unquestionably a general law.

The quality of uniformity in result cannot co-exist with the right of self-government in various sections of the state.

The constitutionality of that part of the statute which relates to the ordering of an election, is also assailed in two particulars.

One particular is presented in an argument, thus: The law enacts that, under certain circumstances, a'n electionjFaljJoe held : that a circuit iimieHsIiiir^ whether these circumstances have arisen; that this determination will be a judicial act; and that the interposition of this judicial “act between the passage of the law and its execution, renders it unconstitutional; that if judicial action is necessary to establish some point, before it can be executed, then the act is unconstitutional.”

I am unable to see any force in this argument. The test of constitutionality thus contended for seems to exclude every criminal statute; or, to take more similar instances, it would exclude statutes which provided that on forfeiture of his office by any officer, a special election should be held to choose his successor, or, if in a contested election case, it should be determined that no person was duly elected, a new election should be ordered. Yet I think it has never been surmised that there was any unconstitutional feature in these legal conditions. Such laws are valid.

The other particular is, that for the judge to order an election and set the day on which it shall be held, violates article III. of the constitution, which says: “ The powers of government shall be divided into three distinct departments — the legislative, executive and judicial; and no person or persons belonging to or constituting one of these departments, shall exercise any of the powers properly belonging to either of the others, except as herein expressly provided.”

One counsel insists that “ the naming of the day is an act of legislation;” another, that the ordering of an election is “ a power properly belonging to the legislative and executive departments of the government.”

The inability of counsel to agree upon the proper classification of this power, indicates the weakness of the argument. They both disregard the fact that there are many powers of government, speaking generally, which do not, in a constitutional sense, properly belong to either of the departments mentioned.

This constitutional clause relates only to those powers which, by the constitution itself, are assignedjp,. or.wdncli^ln-J'.haLr nature,..pertain, to one of these departments^xaLusut&[y. Thus, I presume, the chancellor could not be authorized to act as .governor, in case of the death of the governor, the president of the senate and the speaker of the house of assembly; and the senator of each county could not be authorized to hold the Circuit Court during the recess of the legislature.

But there is a multitude of govemmantal duties which have never been and cannot possibly be performed, either by the legislature or by the governor, andwhich are certainly not prescribed by the constitution to the judiciary. Yet the constitution vests all the legislative power, of which it here speaks, in the senate and general assembly, all the executive power in the governor, and all the judicial power in the courts^

The conclusion is inevitable that this multitude of duties was regarded as lying outside of what were termed the power properly belonging to the executive, legislative and judicial departments, and was left by the constitution to be discharged in such mode as thedaw should provide.

For instance: Contracts may be and are made on behalf of the state by the legislature, the executive or the judicial department. Each of these departments appoints the incumbents of statutory offices. The governor and chief justice act together on various commissions; and, iu divers other respects, one department exercises authority which might as well have been devolved by statute upon another.

There is no reason for denying that the mere ordering of a special election, when the conditions exist which legally re•quire it, and the setting a day for holding it, are in eluded in this large class of acts which may be performed indifferently by any department to which legislative discretion may assign them.

Ever since the present constitution was adopted, the power to order^special election to fill vacancies in the legislature, and hxrmrTday^thergfo^has been lodged, without question, in the honsa-where, the vacancy existed, or in the governor, according to circumstances.

If this power "properly belonged,” by the constitution, to either, the other could not exercise it.

A similar powei’, with regard to a vacancy in the office of sheriff, was, for many years, reposed in the Common Pleas. Nix. Dig., tit. “Sheriffs,” §§ 10, 33.

In this respect- the act is valid.

The remaining objections relate to the mode in which the act has been pursued.

First, that the judge ordering the election failed to have notice of the application to him published in each newspaper in the county entitled to publish the laws, as the statute requires, the contention of counsel being that no newspapers become entitled to publish the laws until they are designated for that purpose by the governor and comptroller, and that no designation has yet been made. It is a sufficient answer to this to note that the judge's order recites that the notice had been published in all the newspapers entitled to publish the laws in the county ; that the Supreme Court has affirmed this order, and that there is nothing before us to show that the adjudication of fact contained in this affirmance was erroneous in law.

But, besides this, the publication in all the newspapers, among which the governor and comptroller must make their selection, is a compliance with the statute.

The second objection is, that the judge ordered the election to be held on Wednesday, while the general act to regulate elections requires all special elections to be held on Tuesday. Rev., p. 362, § 139.

We think the statute under review does not adopt this clause of the election law. Those provisions of that act which regulate the manner of holding the election, which prescribe the duties and compensation of the election officers, and the penalties of misconduct, are expressly adopted for the purposes of the election to be held under this statute, but the day is to be fixed by the judge himself, without any other limitation than that it shall not be within sixty days of any general election in the county, nor less than three months, nor more than six months, from the date of the order.

No infirmity being found in the legislative act, so far as it relátes to these cases, nor in the proceedings below, the judgment of the Supreme Court, in both cases, should be affirmed.