Fell v. State

Bartol, C. J.,

delivered the opinion of the Court.

The appellant was indicted for selling spirituous liquors on the 5th day of October, 1874, within the third election district of Caroline County, in violation of the provisions of the Act of 1874, ch. 453.

The case was submitted to the Circuit Court upon an agreed statement of facts, set out in the record, and the judgment being against the defendant, he has prosecuted this appeal.

It is admitted that an election was held as provided by the Act, on the second Tuesday of July, 1874, and that the returns thereof were duly made by the proper officers, that in the third, election district, a majority of the votes cast were against the sale of spirituous or fermented liquors; and on the 4th day of August, 1874, proclamation of the resuLt was made by the Judges of the Circuit Court, as provided by the Act. It was also admitted that the sales were made by the defendant as charged in the indictment.

If tbs Act of Assembly be valid, tbe offeree eomes eleaxly within the second and, third sections. But it is contended on the part of the appellant, that the Act is unconstitutional and void, because it is alleged to be an attempt by the Legislature to delegate to the legal voters of the district, the power of making the law. By the Constitution, the legislative power is delegated to the General Assembly exclusively, and that the power thus delegated, cannot constitutionally be exercised by any other body or authority is universally conceded.

Mr. Cooley, in his work on “ Constitutional Limitations," page 117, says, “ One of the settled maxims of constitutional law is that the power conferred on the Legislature to make laws, cannot he delegated hy that department to any other body or authority.”

This principle rests upon the established rule “ delegatus non potest deleg ari,” and the application of this rule to the several dejjartments of the government created hy the Constitution, and clothed with the exercise of political power, is sanctioned both by reason and authority. The .tnm question, therefore, is whether the Act of Assembly now under consideration is a delegation of the legislative power to the voters, and to determine this question it is important to examine the provisions of the Act.

Section 1 Provides for an election to he held on the second Tuesday of July, 1874, at which the voters of the several election districts, in the counties named, shall cast ballots “for the sale of spirituous or fermented liquors” or “ against the sale of spirituous or fermented liquors;” and directs that the judges of the election shall make return of the votes to the Judges of the Circuit Court, who shall make proclamation of the result.

Section 2nd, Enacts that if it shall be found by the returns of the judges of election, and proclamation of the Judges of the Circuit Court, that a majority of the votes, in any district of either of said counties * * * has been cast against the sale of spirituous or fermented liquors, that then it shall not be lawful for any person, or persons, or body corporate to sell spirituous or fermented liquors, in any district of either of said counties voting by a majority against selling the same.

Section 3rd, Prescribes the penalty for a violation of the Act.

Section ith, Provides that the Act shall take effect, immediately after it shall have been determined by a majority of the people in any one or more election districts of the counties named, whether or not spirituous or fermented liquors shall not be sold, as before provided for.

Now what has been delegated to the voters by this Act of Assembly? Certainly not the power to make the law, or to'repeal existing laws. They are called on by the first section simply to express, by their ballots, their opinion or sentiment as to the subject-matter to which the law relates. They declare no consequences, prescribe no penalties and .exercise no legislative functions. The consequences are declared in the law, and are exclusively the result of the legislative will. The Act of Assembly is “a perfect and complete law as it left the halls of legislation and was approved by the Governor;” but by its terms, it was made to go into operation in any district, upon the contingency of a majority of the legal voters within the district, being ascertained to be in favor of the prohibition contained in the second section. The question before us therefore resolves itself simply into this. May the Legislature constitutionally enact a law, and make its operation depend upon the contingency of the popular vote ? It has never been denied that “ the Legislature may provide that an Act shall not take effect until a future day, or until the happening of some particular event, or in some contingency thereafter to arise, or upon the performance of some specified condition.” A familiar example of such legislation may be found in the Acts of Congress, which came under review before the Supreme Court in the case of the Brig Aurora vs. United States, 7 Cranch, 382.

It was decided by this Court that “ a valid law may be passed, to take effect upon the happening of a future contingent event, even where that event involves the assent to its provisions by other parties.” Mayor, &c. of Balt, vs. Clunet, et al., 23 Md., 469; in support of this proposition many cases might be cited.

It. has been well remarked by a learned Judge : “ If the Legislature may make the operation of its Act depend on some contingency thereafter to happen, or may prescribe' conditions, it must be for them to judge in what contingency, or upon what condition the Act shall take effect. They must have the power to prescribe any they may think proper; and if the condition be that a vote of approval shall first be given by the people affected by the proposed measure, it is difficult to see why it may not be as good and valid as any other condition whatever. There can be no inherent vice in the nature of such a condition, which shall serve to defeat the Act, when it would be legal and effectual, if made to depend upon some other event. To say in such a case, that the Act is made by the voters and not by the Legislature, is to disregard all proper distinctions, and involves an utter confusion of ideas upon this subject.”

“ Wherever the contingency upon which a law is to take effect, depends upon the action of third persons, it might be said with equal truth, that the law was enacted by those persons instead of the Legislature.” Bull vs. Read, 13 Grattan, 90, 91.

In the same case Judge Lee uses the following argument which seems to us to present the question in a very clear and forcible manner:

“ It will not be questioned, that it is entirely competent for the Legislature to provide for taking a vote of the people or any portion of them, upon a measure directly affecting them, and if a given number be in favor of its adoption, to enact a law thereupon, carrying it into effect. And there would seem to be but little difference in substance, in a reversal of the process, by first enacting the law in all its parts ; but providing that its operation is to be suspended until it be ascertained that the requisite number of the people to be affected by it were in favor of its adoption.” 13 Grattan, 88.

We refer also to the opinion of Redfield, C. J., in The State vs. Parker, 26 Vermont, 365, where the same views are expressed.

It must be borne in mind that the question with which we are dealing, is one of constitutional power. As to the wisdom or expediency of such legislation we are not authorized to judge. These are questions which under our system of government, are exclusively confided to the Legislature, and so long as that department acts within the constitutional limits of its authority, this Court has no power to sit in judgment on the wisdom, or expediency of its action.

The constitutional question here involved is not a new one in this State. In our judgment it has been distinctly passed upon by our predecessors in this Court.

By the Act of 1825, cli. 162, a general system of primary schools was established. The 29th and 30th sections of that Act were as follows:

i£29th. Be it enacted, That at the next election of delegates to the General Assembly, every voter when he offers to vote, shall be required by the judges of election, to state whether he is for or against the establishment of primary schools, and the said judges shall record the number of votes for and against primary schools, and make return thereof to the Legislature, during the first week of the session, and if a majority of the said votes in any County shall be in favor of the establishment of primary schools as is therein provided for, then and in that case the said Act shall be valid for such County or Counties, otherwise of no effect whatever.”

“Sec. 30th. And he it enacted, That if a majority of the votes of any County in this State, shall be against the establishment of primary schools, as established by this Act, then and in that case the said Act shall be void as to that County.”

This law came before the Court of Appeals in Burgess vs. Pue, 2 Gill, 11, (decided in 1844.) Its validity was assailed, on the same ground as is now urged against the Act of 1874. That is, that its operation in any County was made to depend upon the result of a popular vote. It was urged there as here, that the effect of the 29th and 30th sections, was to delegate the law-making power to the voters, which the Legislature could not constitutionally do. After a most full and able argument, the Court decided that the law was valid, and that there was no validity in the constitutional objection.

The same question again arose in a case between the same parties, 2 Gill, 254, and again the constitutionality of the law was maintained. It would he difficult to find a more solemn and authoritative decision upon any question than is presented by those cases ; and if would be equally difficult to distinguish the principle then decided, from, that involved in the present case ; so far as it concerns the question of the supposed delegation of legislative power, by a submission to the popular vote to determine the contingency upon which a law is to go into operation. Again in Hammond vs. Haines, 25 Md., 541, this Court by a unanimous decision held the Act of 1864, ch. 348, to be valid, and constitutional. That Act submitted to the qualified voters of,the borough of North East, to decide by ballot whether any license should he granted to sell spirituous or fermented liquors within the borough.

The position of the appellant finds no support in the decided cases in Maryland. In other States there has been much conflict in the decisions. In some of them, the Courts have held laws to be invalid, because their operation was made to depend upon the contingency of a popular vote. Among the earliest of these cases are Parker vs. Commonwealth, 6 Barr, (Penn.,) 507, (decided in 1847 ;) Rice vs. Foster, 4 Harr., (Del.,) 479, (decided about the same time ;) and Barto vs. Himrod, 4 Selden, (N. Y.,) 483. These were followed by the Courts of Indiana, Iowa, Michigan and some others. We do not consider it necessary to refer to these cases more particularly. In many of the States, decisions have been rendered by the Courts of last resort, in accordance with the ruling of this Court in Burgess vs. Pue, and Hammond vs. Haines. In Pennsylvania the leading case of Parker vs. The Commonwealth, ■which furnished the basis of many of the decisions in other States, cited by the appellant, has recently been overruled and reversed by the Supreme Court of the same State in Locke’s Appeal, 72 Penn., 491. This last decision by that able Court was made after full argument, and an examination of the course of judicial decision upon the question, and is in accordance with the conclusions we have expressed.

In the examination of the question before us, we have kept in view the cardinal principle, which must always govern the Courts, when called on to pass upon the constitutionality of the acts of a co-ordinate department of the government.

Every intendment ought to be made in support of the legislative enactment, and it is not to be declared invalid, except for the plainest and most conclusive reasons. In this case, we have failed to discover any sufficient grounds to justify us in declaring the Act of 1874, ch. 453, unconstitutional or inoperative. So to pronounce would in our judgment be contrary to sound reason, as well as at variance with the previous decisions of this Court.

There can be no question of the power of the Legislature to fix the time when a law shall go into effect; nor can it be doubted that the Legislature has power to prohibit the sale of spirituous or fermented liquors, in any part of the State ; notwithstanding a party to be affected by the law, may have procured a license, under the general license laws of the State, which has not yet expired. Such a license is in no sense a contract made by the State with the party holding the license. It is a mere permit, subject to be modified or annulled at the pleasure of the Legislature, who have the power to change or repeal the law under which the license was granted. Parkinson vs. State, 14 Md., 185.

(Decided 11th March, 1875.)

Being of opinion that none of the objections to the validity of the law, urged by the appellant are valid ; the judgment of the Circuit Court has been affirmed.

Judgment affirmed.