Ex parte Wall

By the Court, McKinstry, J.:

Under the Act of March, 18, 1874, “To permit the voters of every township or incorporated city to vote on the question of granting licenses to sell intoxicating liquors,” an election was held in the Fourth Township of Contra Costa County, at which a majority of the votes were cast “ against license."

The petitioner was afterward convicted of an alleged violation of the law, as declared by the statute, and sentenced to imprisonment in the county jail.

The power to make laws conferred by the Constitution on the Legislature cannot be delegated by the Legislature to the people of the State, or to. any portion of the people. (Houghton v. Austin, 47 Cal. 646; Barto v. Himrod, 8 N. Y. 483; Bank of Rome v. Village of Rome, 18 N. Y. 38; Starin v. The Town of Genoa, 23 N. Y. 429; Clark v. The City of Rochester, 28 N. Y. 605; Thorn v. Cramer, 15 Barb. 112; Bradley v. Baxter, Id. 122; Parker v. Commonwealth, 6 Penn. St. 507; Commonwealth v. Quarter Sessions, 8 Penn. St. 391; Locke’s Appeal, 72 Penn. St. 491; State v. Wilcox, 45 Mo. 459; Rice v. Foster, 4 Harr. 479; State v. Copeland, 3 R. I. 33; R. R. Co. v. Commissioners of Clinton County, 1 Ohio, N. S. 77; People v. Collins, 3 Mich. 343; Santo v. State, 2 Iowa, (Clarke) 165; Geebrick v. State, 5 Iowa, 491; State v. Beneke, 9 Iowa, 203; State v. Weir, 33 Iowa, 134; Maize v. State, 4 Ind. 342; Meshmeier v. State, 11 Ind. 482; State v. Swisher, 17 Tex. 441; State v. Panker, 26 Vt. 362.)

Our government is a representative republic, not a simple democracy. Whenever it shall be transformed, into the latter—as we are taught by the examples of history— the tyranny of a changeable majority will soon drive honest men to seek refuge beneath the despotism of a single ruler. To become a law, an act must be passed through both Houses of the Legislature, be signed by the President of the Senate, and Speaker of the Assembly, and be approved by the Governor; or, if vetoed by the Executive, must again be passed by the constitutional majority. Thus, and thus only, can a general statute be enacted.

While the power and responsibility of legislation remain where the Constitution has placed them, a proposed measure, before it can become a law, must pass through the ordeal of a public and deliberate discussion in the Legislature. “Public opinion will prevail; but it will be enlightened, deliberate, permanent, and organically expressed public opinion. It is this opinion alone which the Constitution designed should govern. Such a government secures deliberation and responsibility. in legislation, and affords protection against the despotism of official rulers on the one hand, and of irresponsible numerical majorities on the other. It has been appropriately termed ‘ the flower of modern civilization.’ ” .(People v. Collins, 3 Mich. 416.)

It is urged, however, that for the Legislature to enact that a law shall take effect, provided the people of the State, or of a district, shall vote in favor of it, is not to delegate the law-making power. This position has been upheld by Courts of high character, but I think the decisions in which it has been denied are sustained by the better reasons.

It is true a statute maybe conditional; its taking effect may sometimes be made to depend upon a subsequent event. The last proposition is illustrated by the case of The Cargo of the Brig Aurora v. United States, 7 Cranch 382, in which the validity of a provision of the “ non-intercourse law ” was upheld. The provision was to the effect 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 the law should be renewed. It will be observed that in this instance the members of Congress exercised their own judgment, and simply determined that trade should be suspended, while the orders in council or edicts should continue.

But it does not follow that a statute may be made to take effect upon the happening of any subsequent event which may be named in it. The event must be one which shall produce such a change of circumstances as that the lawmakers—in the exercise of their own judgment—can declare it to be wise and expedient that the law shall take effect when the event shall occur. The Legislature cannot transfer to others the responsibility of deciding what legislation is expedient and proper, with reference either to present conditions or future contingencies. To say that the legislators may deem a law to be expedient, provided the people shall deem it expedient, is to suggest an abandonment of the legislative function by those to whose wisdom and patriotism the Constitution has intrusted the prerogative of determining whether a law is or is not expedient. Can it be said in such case that any member of the Legislature declares the prohibition or enactment to be expedient ?

A statute to take effect upon a subsequent event, when it comes from the hands of the Legislature, must be a law in presentí to take effect in futuro. On the question of the expediency of the law, the Legislature must exercise its own judgment definitely and finally. If it can be made to take effect on the occurrence of an event, the Legislature must declare the law expedient if the event shall happen, but inexpedient if it shall not happen. They can appeal to no other man or men to judge for them in relation to its present or future propriety or necessity; they must exercise that power themselves, and thus perform the duty imposed upon them by the Constitution. But in ease of a law to take effect, if it shall be approved by a popular vote, no event affecting the expediency oí the law is expected to happen. The expediency or wisdom of the law, abstractly considered, does not depend on a vote of the people. If it is unwise before the vote is taken, it is equally unwise afterward. The Legislature has no more right to refer such a question to'the whole people than to a single individual. The people are sovereign, but" their sovereignty .must be exercised in the mode pointed out -by the Constitution. (Barto v. Himrod, 8 N. Y. 483; Rice v. Foster, 4 Harr.. 479.)

It was argued that the general statute which prohibits the sale of intoxicating liquors without license and the “Local Option ” statute should be read as one law, and so reading them, that it is not left to the popular vote to give effect to the law, but only to determine whether licenses shall be issued under the law. This distinction seems to have been recognized by the Supreme Court of New Jersey in State v. Morris Common Pleas, (November, 1872.) There a statute was sustained which, in itself, contained a prohibition of sales without license, and then left to the people in town meeting, to say whether licenses should be granted. The Supreme Court of that State, after stating the test to be whether the enactment, when it passed from the hands of the law-givers, had taken the form of a complete law, said: “It (the statute), denounces as a misdemeanor, the selling of liquor without license; so far it is positive and free from any contingency; it is left to the popular vote to determine; not whether it should be lawful to sell without license, but whether the contingency should arise under which licenses should be granted.” The New Jersey statute left the option whether licenses should or should not be granted to the people in “town meeting.” The difference between the action of towns, as local governments, and a submission to the voters living in any merely territorial subdivision of a county, will be hereinafter pointed out. I do not think, however, that the distinction asserted by the Supreme Court of New Jersey, can be maintained. A law being in operation authorizing the business of retailing liquors, provided a license be first obtained, the Legislature enacts that the people of a town shall determine whether any license shall be granted. If they determine that licenses shall not be granted, none can be issued.

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.

It is certain that the sections of the G-eneral ¡Revenue law relating to licenses to vendors of liquors, remain in force until the vote is counted and announced, as required by the statute; it is equally certain (if the statute is valid,) that these sections cease to have force from the time the vote is announced, if the majority is against license. By whom, in such case, are the provisions of the Revenue law repealed or suspended—by the Legislature or by the people of the town ?

And we are thus brought to another question: Can this law be sustained as in effect conferring on “towns’’ the power of regulating within their limits the sale of intoxicating liquors ?

In'd.etermining this question, I do not deem it necessary to decide any of the following:

1. Can the officers of a city or town be empowered to regulate the sale of intoxicating liquors; and, if so, can they prohibit the sale in certain quantities under the power to regulate it ?

2. Can a city or town by ordinance or by-law, make that a criminal offense which is legalized by the' general laws of the State ?

3. Does an Act of the Legislature authorizing a by-law, the effect of which is to relieve those making sales of more than five gallons, within the town, from the payment of a license-tax, which those engaged in the' same business outside of the town are obliged to pay, violate the provision of the Constitution: “ All laws of a general nature must have a uniform operation?”

4. Would a law be unconstitutional which conferred a power upon the officers of a county or town, to be exercised at the option of the officers, provided the people of the county or town should vote in favor of the , exercise of the power by the officers ?

It is enough to say that this statute cannot be sustained as conferring on the towns the power referred to, because no “towns” have ever been created in this State.

Our Constitution, in terms, makes it the imperative duty of the Legislature to create certain local governments. “ The Legislature shall establish a system of county and town governments, which shall be as nearly uniform as practicable throughout the State.” (Art. XL Sec. 4.) “It shall be the duty of the Legislature to provide for the organization of cities and incorporated villages,” etc. (Art. IV, Sec. 37.) The behest of the Constitution as to “towns” will be obeyed when a system of town governments shall be established by law. When the system shall be established, the towns may make such local rules or by-laws as they shall be authorized to make by the statutes which shall give them life and entity. The bestowal on them of the power to make proper local rules or by-laws, will not be a delegation of legislative power conferred on the Senate and Assembly, because, as" was said in Hougton v. Austin, supra, the exercise of such power by the counties, towns, cities and incorporated villages, is recognized by the same Constitution which confers the general legislative power upon the State Legislature.

But the Constitution is not self-éxecuting; the town governments must be created by statute. And it will be observed, the Constitution commands the Legislature to establish a system of town governments. This form of expression conveyed a definite meaning, when the Constitution was adopted, and is at once understood by those familiar with the systems of town government elsewhere; it would be meaningless, unless applied with reference to organizations, in their general features at least, like those in other States, where systems of town government had been established. To establish a system of government, the duties of the several local officials must be defined, in some of whom (or in the inhabitants of the town acting in a public capacity) a discretionary action must be vested within the scope of the powers given by the organic law which creates the system. In view of the origin of towns and their history in other States, I can conceive of no system of town government which is not continuous; which does not furnish officers to whom is given (during their term of office) the management of the machinery of local government, and which does not provide a legislative assembly, whose enactments shall be the product of deliberation and mutual consultation. This last seems the very life _of any such system heretofore known in the United States. If the subjects of local legislation are committed to the people of the town, they must be committed to them as to a deliberative body; a project for a local regulation must be submitted to the wisdom and discretion of the people in organized assembly, by whom, after proper discussion and consideration, it may be rejected, or molded into a rule to be enforced as law. In our country, the idea of legislation —in its broader sense, or as applied to local concerns—involves an examination into the merits of a proposed law by the assembled legislators. Under the system of town governments in New England, it has been the practice (by notice designating the questions to be presented), for the Selectmen to call meetings of the voters of the town—-which are presided over by a moderator, and restrained by rules intended to secure orderly proceedings—at which the propriety and expediency of proposed measures may be considered, adopted or rejected. The voters of the town are supposed to be so few in number, that they may act directly on matters of local concern, but they act as a subordinate, legislative and deliberative body, in every sense that their representatives would so act, if representatives were selected by them. The matters of local interest are discussed in the town meeting, before they are passed upon.

“The marked and characteristic distinction,” says Chief Justice Shaw, in Warren v. Charlestown, “between a town organization and that of a city is, that in the former all the qualified voters meet, deliberate, act and vote; whereas, under a city government, this is all done by their representatives.” (2 Gray, 84-101.) Mr. Quincy, in his “Municipal History of Boston ” (p. 28), in explaining the causes which led to the establishment of a city government for Boston, while he proves that the town government had outlived its usefulness, shows that before the city was incorporated all the qualified electors constituted the local Legislature. He says: “With a population upwards of forty thousand, and with seven thousand qualified voters, it was evidently impossible calmly to deliberate and act. When a town meeting was held on any exciting subject in Faneuil Hall, those only who obtained places near the moderator could even hear the discussion.”

The system of town governments, as it existed in Hew York prior to 1846, is fully explained in the eleventh chapter of the first part of the revised statutes of 1827-8. There, as in New England, the towns possessed certain of the faculties of a body corporate; could sue and be sued, hold lands and make contracts necessary to the exercise of their corporate powers. In New York, as elsewhere, the citizens of towns chose certain town officers, and when assembled as a deliberative body (Justices of the Peace pre-" siding), made “ prudential rules and regulations,” with respect to local matters committed to their discretion. In some other States this power would seem to have been vested in Boards of Trustees, who constituted the local parliaments.

The Legislature of California has never established a “system of town governments.” The word “town” is nowhere used in the statutes in the sense in which it is employed in the Constitution. The Supervisors are authorized (Political Code, Sec. 4,046) to divide the counties into “townships,” as they are authorized to divide them into election, school, road, and supervisorial districts; but the territory included in any one of the districts last named need, not be the same as that included within the limits oí a township. No township governments have been established. The only officers mentioned in the general laws as township officers are Justices of the Peace and Constables. The townships have neither been given personality nor any other of the attributes of a corporation; no official has been named empowered to call the inhabitants or voters together for the purposes of consultation and joint action; no Act has been passed providing for any presiding officer, or regulating the mode of conducting business, or of declaring the result of the action of the inhabitants or voters when assembled; and neither the voters themselves, nor any boards of officers elected by the voters have ever been constituted a deliberative assembly for the purpose of adopting prudential rules or regulations in respect to matters placed under the control of the town governments.

The exercise by the town governments, when they shall be established, of the power to make local rules will co-exist with the power of the State Legislature to make general law»', and will apparently (but apparently only) constitute an exception to the rule, that the power to make laws, placed by the Constitution in the Senate and Assembly cannot be delegated. When the mandate of the Constitution shall have been obeyed, and a “ system of town governments ” shall have been established, and when local legislatures shall have been organized under that system, the State Legislature may confide to members of such local legislatures the task of deliberating and acting upon matters purely local in their nature. The Legislature may give to the town governments, when formed, the right to make local rules; but the Legislature has no more right to delegate to the people living within certain territorial limits, but who have no distinctive political character or governmental organization, the power to make laws, than it can delegate the same power to all the people of the State.

The statute of March 18, 1874, under the provisions of which the petitioner was convicted, does not itself establish any system of town government. The only officers who are directed to perform any acts are county officers; the election is to be ordered by and the returns made to the Supervisors. There is no provision for an assemblage of the people of the town for deliberation; the vote to be taken can in no way be said to express the result of such deliberation. The Constitution intended that the opinion of a majority should govern as to town matters, but that it should be an “organically expressed” opinion. The power to enact laws must be employed by the State Legislature; that to make by-laws for a town by the local Legislature; to become law or by-law, it must first be considered by the appropriate deliberative body. The statute under consideration simply permits a species of plébiscitum with reference to a particular subject, in which the only' option of the people of a township is to say “yes” o,r “no” to a complicated project. After this spasmodic effort at the polls, the “town government” (if this can be called one) subsides into inaction, without any form or power of self-vitalization, until again aroused to the exertion of its single function by the Supervisors of the county. This statute furnishes neither a system nor a government.

When M. de Tocqueville and other writers,' who have studied our institutions in a philosophical spirit, have expressed their admiration for the system of town governments existing in New England, as affording an excellent school of preparation for the discharge by the citizen of his duties to the State, it was in view of the public discussions in reference to affairs of local, but sometimes absorbing interest, at which all the qualified inhabitants of the town could be present, and in which all were authorized to take part. To substitute for such local legislation, where measures receive the sanction of law only after public interchange of opinions, the machinery of a “ primary election” would be to degrade the whole system. That cannot be called a system of town government in which no deliberative assemblage is provided for, and in which a local law is adopted by the ballots of perhaps a bare majority, who vote secretly, and without consultation with the rest of the voters; who are actuated by motives which need not be publicly avowed, or controlled by reasons the weakness of which would be exposed by a public discussion.

I think, therefore, first—This statute is void, because it did not become a law when it left the hands of the Legislature, but was to take effect only when it should be approved by a majority of the people of a township, and then only in the township where thus approved. Second—That this statute is not a law conferring upon towns any governmental or police powers.

Let the petitioner be discharged.

Mr. Justice Rhodes and Mr. Justice Crockett dissented.

Rote.—It is to be understood that the necessities of this ■ case do not demand of the Court to determine what powers may be granted to the towns. It may b© difficult, perhaps impracticable, to draw the line by general definition; but it is certain that all the powers of legislation cannot be conferred on the counties or towns. As was said by Douglas, J., in The People v. Collins, 3 Mich. 415, “only powers of legislation over matters of local concern can be delegated. If the Legislature should attempt to invest the Boards of Supervisors with power to enact the entire Civil and Criminal Codes which should be in force within their respective counties, this would be manifestly in violation of the true intent and spirit of the Constitution.”

It would be an entire abandonment by the Legislature of the power to pass general laws, and would be destructive of our government; resolving the State into petty districts, or communes, each with different laws, to be enforced only within its own borders. ♦