Barto v. . Himrod , 8 N.Y. 483 ( 1853 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The act establishing free schools throughout the state, passed March 26, 1849, contains the following provisions:

"§ 10. The electors shall determine by ballot at the annual election to be held in November next whether this act shall orshall not become a law."

The 11th and 12th sections prescribe the manner in which the question is to be voted on by the people at the election: the 13th and 14th sections are as follows:

"§ 13. The inspectors of election in the several election districts shall furnish a separate ballot box in which shall be placed all the ballots given for or against the new school law. The inspectors shall canvass the ballots and make return thereof in the same manner as votes given for the office of governor and lieutenant governor are by law canvassed and returned.

"§ 14. In case a majority of all the votes in the state shall be cast against the new school law, this act shall be null and void; and in case a majority of all the votes in the state shall be cast for the new school law, then this act shall become alaw and shall take effect, c."

It will be observed that although the act directs the inspectors of the election in each town to canvass the ballots for and against the law, and to make return thereof in the same manner as votes for governor and lieutenant governor are canvassed and returned, it makes no such provision for the county or state canvass; and it gives no direction to the county clerks, or to the county or state canvassers in relation to their duty. It provides that if a majority of all the votes in the state shall be against the law, it shall be void, and if in its favor, it shall be valid. But it fails entirely in pointing out the mode in which the general result of the popular vote is to be ascertained and determined. The general election law contains no provision applicable to this case. The state canvassers could not have been made answerable civilly or criminally for neglecting or refusing to canvass the votes and certify the result, because they were not required to do so by the statute itself, or by the general election law. Whatever they may have done in regard to it, was voluntary and unofficial.

Courts are in general bound to take judicial notice of public statutes. They have the means of knowing from the statute books, and therefore are presumed to know what laws are in force. But that rule is inapplicable to a case like the present. It can not be ascertained from the statute book whether the act of 1849 was adopted or rejected by the popular vote. The certificate of the state canvassers would not be legal evidence on that question, because it is not made so by the act, and because they had no authority to determine or certify the result of the vote. The act of 1849 does not prescribe the evidence by which it is to be known whether the act took effect or not. It was imperfect in its provisions, and there seems to be no mode of ascertaining by legal evidence the result of the vote upon it, except by the production and examination of the returns of the town inspectors of elections. These officers only were empowered to make the certificates.

In the present case the result of the popular vote was neither admitted on the pleadings nor established by evidence. And there was a total defect in the proof that the act had been adopted by the vote of the people.

We should therefore be compelled to affirm the judgment of the supreme court for the want of this proof, whether the law is valid or not.

But upon the argument in this court, the case was rested mainly on the objection to the validity of the statute, on the ground that it was never enacted in form or spirit according to the constitution, and therefore never took effect, although it may have had the vote of the people in its favor.

This objection to the validity of the act has been several times under consideration in the supreme court. In one of the districts it was held to be constitutional and valid: in three others it was adjudged to be void.

The immediate practical importance of the question has been much diminished by the enactment in the usual form of "An act to establish free schools throughout the state," passed April 12th, 1851. (Laws 1851, p. 292.) To this statute, the objections made to the act of 1849 do not apply.

The question is however still highly important in regard to future legislation, and as such it has been carefully considered; and we are of opinion that the act in question is invalid, because the provisions contained in it in relation to free schools were never constitutionally enacted.

The legislative power in this state is vested by the constitution in the senate and assembly. (Art. 3, § 1.) The power of passing general statutes exists exclusively in the legislative bodies. In one instance only it is limited or qualified: "No law for the contracting of a debt shall take effect until it shall at a general election have been submitted to the people, and have received a majority of all the votes cast for and against it at such election." (Art. 7, § 12.) In this special and single case, the people by the constitution reserved legislative power to themselves. The legislature pass the bill in the usual form of enactment, but the statute has no force or authority until it is sanctioned by a vote of the people. In substance and reality the legislature propose the low. The people pass or reject it by a general vote. This is legislation by the people.

The exercise of this power by the people in other cases is not expressly and in terms prohibited by the constitution; but it is forbidden by necessary and unavoidable implication. The senate and assembly are the only bodies of men clothed with the power of general legislation. They possess the entire power with the exception above stated. The people reserved no part of it to themselves excepting in regard to laws creating public debt; and can therefore exercise it in no other case.

The act of 1849 does not on its face purport to be a law as it came from the hands of the legislature, for any other purpose than to submit to the people the question whether its provisions in relation to free schools "should or should not become a law," (section 10;) and by section 14 the act was to become law only in case it should have a majority of the votes of the people in its favor. Without contradicting the express terms of the 10th and 14th sections, it can not be said that the propositions contained in it in relation to free schools were enacted as law by the legislature. They were not law or to become law, until they had received a majority of the votes of the people at the general election in their favor, nor unless they received such majority. It results therefore unavoidably from the terms of the act itself, that it was the popular vote which made the law. The legislature prepared the plan or project and submitted it to the people to be passed or rejected.

The legislature had no power to make such submission, nor had the people the power to bind each other by acting upon it. They voluntarily surrendered that power when they adopted the constitution. The government of this state is democratic; but it is a representative democracy, and in passing general laws the people act only through their representatives in the legislature.

In Johnson v. Rich, 9 Barbour, 680, it was held by the supreme court in the 7th district that the act in question was a valid law, on the ground that it was a conditional statute made to take effect upon the happening of a future contingent event, to wit: the vote of a majority of the people in its favor. It is not denied that a valid statute may be passed, to take effect upon the happening of some future event certain or uncertain. But such a statute when it comes from the hands of the legislature must be law in presenti to take effect in futuro. If the observations already made are correct, the act of 1849 was not such a statute. But if by the terms of the act it had been declared to be law from the time of its passage, to take effect in case it should receive a majority of votes in its favor, it would nevertheless have been invalid, because the result of the popular vote upon the expediency of the law is not such a future event, as the statute can be made to take effect upon, according to the meaning and intent of the constitution.

The event or change of circumstances on which a law may be made to take effect, must be such as in the judgment of the legislature affects the question of the expediency of the law: an event on which the expediency of the law, in the judgment of the law makers, depends. On this question of expediency, the legislature must exercise its own judgment definitively and finally. When a law is made to take effect upon the happening of such an event, the legislature in effect declare the law inexpedient if the event should not happen; but expedient if it should happen. They appeal to no other man or men to judge for them in relation to its present or future expediency. They exercise that power themselves and then perform the duty which the constitution imposes upon them.

But in the present case no such event or change of circumstances affecting the expediency of the law was expected to happen. The wisdom or expediency of the free school act, abstractly considered, did not depend on the vote of the people. If it was unwise or inexpedient before that vote was taken, it was equally so afterwards. The event on which the act was made to take effect was nothing else than the vote of the people on the identical question which the constitution makes it the duty of the legislature itself to decide. The legislature has no power to make a statute dependent on such a contingency, because it would be confiding to others that legislative discretion which they are bound to exercise themselves, and which they can not delegate or commit to any other man or men to be exercised. They have no more authority to refer such a question to the whole people than to an individual. The people are sovereign, but their sovereignty must be exercised in the mode which they have pointed out in the constitution. All legislative power is derived from the people; but when the people adopted the constitution, they surrendered the power of making laws to the legislature, and imposed it upon that body as a duty. They did not reserve to themselves the power of ratifying or adopting laws proposed by the legislature, except in the single case of contracting public debt. They probably foresaw the evil consequences likely to arise from such a reservation. These are well and forcibly expressed by Mr. Justice Johnson in his opinion in the case of Johnson v. Rich, 9 Barb. 686. "I regard it," said he, "as an unwise and unsound policy, calculated to lead to loose and improvident legislation, and to take away from the legislator all just sense of his high and enduring responsibility to his constituents and to posterity, by shifting that responsibility upon others. Experience has also shown that laws passed in this manner are seldom permanent, but are changed the moment the instrument under which they are ratified has abated or reversed its current; of all the evils which afflict a state, that of unstable and capricious legislation is among the greatest."

For further illustration, let us suppose that the 10th and subsequent sections of the act of 1849 had directed the attorney general, or the archbishop of the Catholic church, or the common council of the city of New York, to certify on the next general election day whether in his or their opinion that act ought to become a law; and had further provided that the act should or should not take effect according to such certificate: it can not be pretended that the statute would have become operative upon the making of the certificate in its favor. The constitution does not authorize the power of legislation to be so delegated. If the legislature can not delegate to an individual the authority to determine by the mere exercise of his judgment whether a statute ought to take effect or become a law, it follows as a necessary consequence that they can not delegate it to the whole people. The constitution has no more authorized it in the latter case than in the former. The people have limited the exercise of their own power to the modes pointed out in the constitution. And although they hold the ultimate sovereignty of the state they are subject like other sovereigns to established fundamental law. The people may change or abrogate that law, but they are bound by it until changed or abrogated.

The judgment of the supreme court ought to be affirmed.