State Ex Rel. Pearson v. Hayes

A municipal "corporation is properly an investing the people of the place with the local government thereof." Cuddon v. Eastwick, 1 Salk. 192, 193. "This latter description is the most appropriate, and is justified by the history of these institutions, and the nature of the powers with which they were and are invested. The forming of cities into communities, corporations, or bodies politic, and granting them the privileges of municipal jurisdiction, contributed more than any other cause to introduce regular government, police, and arts, and to diffuse them throughout Europe. Some of the cities assumed the necessary privileges, and formed themselves into bodies politic under a government established by common consent. Others purchased them from their superiors, or acquired them gratuitously from the generosity of the prince, and to enable him to counterbalance the powers of the aristocracy. The feudal government had degenerated into a system of oppression, and the great body of the people were subjected by the power of princes or superior lords to the most degrading and intolerable servitude. Many of the English charters incorporating cities and towns were likewise acquired by means of an appeal either to the fears, avarice, necessities, or generosity of the crown, and, like those on the continent, are to be viewed, as they in truth are, in the nature of a bill of rights. It was the acquisition of so much liberty conceded by, or extorted from, a sovereign claiming nearly absolute power; and hence the idea of inviolability so generally and justly attached to them. They were constitutional charters, which the crown could not encroach upon without violating the freedom of the subject." People v. Morris, 13 Wend. 325, 334. Of New York municipalities, the court in that case say (pp. 330, 331), — "The powers delegated within the bounds of each, executive, legislative, and judicial, and the rights vested in the inhabitants or respective corporate bodies, are of the same kind, and designed to accomplish the same end, to wit, the good government of the place." "All our thoughts and notions of civil government are inseparably associated with counties, cities, and towns. . . . Here have been the seats of modern civilization, the nurseries of public spirit, and the centres of constitutional liberty. They are the opposites of those systems which collect all power at a common centre." Brown, J., in People v. Draper, 15 N.Y. 532,562.

"In contradistinction to those governments where power is concentrated in one man, or one or more bodies of men, whose supervision and active control extend to all the objects of government within the territorial limits of the state, the American system is one of complete decentralization, the primary and vital idea of which is that local affairs shall be managed by local authorities, and general affairs only by the central authority. It was under the control of this idea that a national constitution was formed, under which the states, while yielding to the national government complete and exclusive jurisdiction over external affairs, conferred upon it such powers only, in regard to matters of internal regulation, as seemed to be essential to national union, strength, and harmony. . . . It is this also that impels the several states, as if by common arrangement, to subdivide their territory into counties, towns, road and school-districts, and to confer upon each the powers of local legislation. . . . The system is one which almost seems a part of the very nature of the race to which we belong. A similar subdivision of the realm for the purposes of municipal government has existed in England from the earliest ages; and in America, the first settlers, as if instinctively, adopted it in their frame of government, and no other has ever supplanted it, or even found advocates. In most of the colonies the central power created and provided for the organization of the towns; in one, at least, the towns preceded and created the central authority; but in all the final result was substantially the same, that towns, villages, boroughs, cities, and counties exercised the powers of local government, and the colony or state the powers of a more general nature.

"The several state constitutions have been framed with this system in view, and the delegations of power which they make, and the express and implied restraints which they impose thereupon, can only be correctly understood and construed by keeping in view its present existence and anticipated continuance. There are few of the general rules of constitutional law that are not more or less affected by the fact that the powers of government are not concentrated in one body of men, but are carefully distributed with a view to being exercised with intelligence, economy, and facility, and, as far as possible, by the persons most directly and immediately interested.

"It has already been seen that the legislature cannot delegate its power to make laws; but fundamental as this maxim is, it is so qualified by the customs of our race, and by other maxims which regard local government, that the right of the legislature, in the entire absence of authorization or prohibition, to create towns and other inferior municipal organizations, and to confer upon them the powers of local government, and especially of local taxation and police regulation usual with such corporations, would always pass unchallenged. . . . The municipalities . . . are governments of enumerated powers acting by a delegated authority." Cooley Const. Lim. 189-192. "Immemorial custom, which tacitly or expressly has been incorporated in the several state constitutions, has made these organizations a necessary part of the general machinery of state government, and they are allowed large authority in matters of local government, and to a considerable extent are permitted to make the local laws." Cooley Taxation (2d ed.) 63.

In People v. Hurlbut, 24 Mich. 44, Judge Cooley says, — "The question . . . can be nothing short of this, Whether local self-government in this state is or is not a mere privilege, conceded by the legislature in its discretion, and which may be withdrawn at any time at pleasure. . . . It must be conceded that the judicial decisions and law writers generally assert that the state creates the municipal bodies, endows them with such of the functions of corporate life, and intrusts them with such share in the local government, as to the legislative judgment shall seem best; that it controls and regulates their action while they exist, subjects them to such changes as public policy may dictate, and abolishes them at discretion; in short, that the corporate entities are mere agencies which the state employs for the convenience of government, clothing them for the time being with a portion of its sovereignty, but recalling the whole or any part thereof whenever the necessity or usefulness of the delegation is no longer apparent. This I understand to be the accepted theory of state constitutional law as regards the municipal governments. . . . But such maxims of government are very seldom true in anything more than a general sense: they never are and never can be literally accepted in practice. . . .

"The implied restrictions upon the power of the legislature, as regards local government, though their limits may not be so plainly defined as express provisions might have made them, are nevertheless equally imperative in character. . . . The circumstances from which these implications arise are, — first, that the constitution has been adopted in view of a system of local government, well understood and tolerably uniform in character, existing from the very earliest settlement of the country, never for a moment suspended or displaced, and the continued existence of which is assumed; and, second, that the liberties of the people have generally been supposed to spring from, and be dependent upon, that system.

"De Tocqueville speaks of our system of local government as the American system, and contrasts it forcibly with the French idea of centralization, under the influence of which constitutional freedom has hitherto proved impossible. Democracy in America, c. 5. Leiber makes the same comparison, and shows that a centralized government, though by representatives freely chosen, must be despotic, as any other form of centralization necessarily is. . . . The writer first named, speaking of the New England township government, whose system we have followed in the main, says, — ``In this part of the Union the impulsion of political activity was given in the townships; and it may almost be said that each of them originally formed an independent nation. When the kings of England asserted their supremacy, they were contented to assume the central power of the state. The townships of New England remained as they were before; and although they are now subject to the state, they were at first scarcely dependent upon it. . . . Among the inhabitants of New England I believe that not a man is to be found who would acknowledge that the state has any right to interfere in their local interests.' The historical fact is, that local governments universally, in this country, were either simultaneous with or preceded the more central authority. . . . The local governments, however, were less complete in the states further south; and this with some of their leading statesmen was a source of regret. Mr. Jefferson, writing to Governor Tyler in 1810, speaks of the two great measures which he has at heart, one of which is the division of counties into hundreds. ``These little republics,' he says, ``would be the main strength of the great one. We owe to them the vigor given to our Revolution, in its commencement, in the Eastern states. . . . Could I once see this, I should consider it as the dawn of the salvation of the republic.' Jefferson's Works, vol. 5, p. 525. The state may mould local institutions according to its views of policy or expediency; but local government is matter of absolute right, and the state cannot take it away. . . . The right in the state is a right, not to run and operate the machinery of local government, but to provide for and put it in motion. . . . When the state reaches out, and draws to itself and appropriates the powers which from time immemorial have been locally possessed and exercised, and introduces into its legislation the centralizing ideas of continental Europe, under which despotism, whether of monarch or commune, alone has flourished, we seem forced back upon, and compelled to take up and defend, the plainest and most primary axioms of free government." To the same effect is People v. Albertson, 55 N.Y. 50.

"The fundamental idea of a municipal corporation proper, both in England and in this country," says Dillon, "is to invest compact or dense populations with the power of local self-government. . . . In general, all of our American cities, towns, and counties are public corporations, full or quasi. They are created by the legislature, and are usually endowed with power to decide and control local and subordinate matters pertaining to their respective localities. The number and freedom of these local organizations, whereby political power is conferred upon the citizens of the various local subdivisions of a state, who have a right to vote and to regulate their own domestic concerns, constitute a marked feature in our free system of government. In general, each road-district, each school-district, each city, and each county is, as to its local concerns, self-governed. . . . The policy of creating local public and municipal corporations, for the management of matters of local concern, runs back to an early period in our colonial history, is exhibited in all our legislation, and expressly or impliedly guaranteed in our state constitutions. The elective franchise in these ``local republics' is not, as was the case until recently in England, a privilege dependent upon custom or usage, or confined to certain classes, but is uniform and universal, extending to all of the adult male citizens. . . . The effect of this policy of establishing cities, towns, and districts of country into bodies politic, and investing the citizens thereof with the power of self-government, has, upon the whole, been most happy. It has been noticed by Chancellor Kent that one of the most philosophical and fair of foreign observers was much struck with the institutions of New England towns, and considered them as small, independent republics in all matters of local concern, and as forming the principle of the life of American liberty existing at this day. . . . ``Local assemblies of citizens constitute the strength of free nations. Municipal institutions are to liberty what primary schools are to science: they bring it within the people's reach; they teach men how to use and how to enjoy it. A nation may establish a system of free government, but without the spirit of municipal institutions it cannot have the spirit of liberty.' M. de Tocqueville's Democracy in America, c. V. . . . ``It is most convenient that the local establishments and police should be sustained in that manner; and, indeed, to the interest taken in them by the inhabitants of the particular districts, and the information upon law and public matters generally thereby diffused through the body of the people, has been attributed by profound thinkers much of that spirit of liberty and capacity for self-government, through representatives, which has been so conspicuous in the mother country, and which so eminently distinguishes the people of America ' Per Ruffin, J., in Caldwell v. Justices, 4 Jones (N.C.) Eq. 323.

"The value of our system of municipal institutions . . . may be seen on comparing the political condition of the people of the United States with that of the people of modern France, — selected as a fair example of a government without municipal freedom. France is a highly centralized government. The state there is everything, — the people, nothing. Municipal institutions, with a democratic element, or with the power of independent local self-government, belong there to the past. The central power governs and regulates everything. It provides amusements, constructs roads, bridges, internal improvements, controls trade, inspects manufactures." After a quoted statement of some of the evils of this system, the author proceeds: "Such are the withering effects of a centralized despotism. How different with the decentralized system of government in the United States, where each local constituency chooses its own officers, — each road-district, school-district, village, town, city, and county administers its own affairs by the people and for the people. . . . We may therefore define a municipal corporation to be the incorporation, by the authority of the government, of the inhabitants of a particular place or district, and authorizing them in their corporate capacity to exercise subordinate specified powers of legislation and regulation with respect to their local and internal concerns. This power of local government is the distinguishing feature of a municipal corporation proper.

"The New England town affords, perhaps, an example of as pure a democracy as anywhere exists. All of the qualified inhabitants meet, and directly act upon and manage, or direct the management of, their own local concerns. This form of government was adopted at a very early period, and is firmly adhered to and deeply cherished by the people of the New England states. The result has demonstrated how well adapted it is to promote the well-being of the communities that for so long a space of time have thus governed themselves. . . . In the course of time, many of the towns, or portions thereof, grew to be large and populous. and the system of meetings of the electors in their original capacity became inconvenient and almost impracticable. When the population of a town or place exceeds 10,000 or 12,000 persons, the need of the representative system is urgently felt. Accordingly, in the New England states, there are now, in addition to towns, a large number of incorporated cities, with charters or constituent statutes, organized upon the usual representative model, with a legislative or governing body, and an executive head, and subordinate officers. . . . Permitting the voters of a municipality to decide upon questions of local interest or expediency . . . seems to the author to be conformable to those ideas of self-government and self-regulation by the people concerned which lie at the basis not only of our municipalities, but of our institutions. . . . It is one of the distinguishing features of our municipal institutions that local rates shall be locally imposed by those who have to pay them or bear their burden; and this power, from very early periods, has in the different states been constantly delegated to and exercised by the local authorities. . . . The legislature may confer the taxing power upon municipalities." Dillon Mun. Corp., ss. 183, 9, 10, 12, 19, 20, 28, 44, 739, 740.

"It seems to be generally conceded that powers of local legislation may be granted to cities, towns, and other municipal corporations. And it would require strong reasons to satisfy us that it could have been the design of the framers of our constitution to take from the legislature a power which has been exercised in Europe by governments of all classes from the earliest history, and the exercise of which has probably done more to promote civilization than all other causes combined; which has been constantly exercised in every part of our country from its earliest settlement, and which has raised up among us many of our most valuable institutions. . . . No mischiefs are suggested as having resulted or being likely to result from local legislation, which could be supposed to require the prohibition to the legislature to confer such powers. . . . We are therefore unable to entertain a doubt that the legislature may rightfully confer upon the cities, towns, and other municipal corporations, the power to pass such local regulations. . . . Assuming that the legislature has the right to confer the power of local legislation upon cities and towns,-that is, the power to pass ordinances and bylaws, in such terms and with such provisions in the classes of cases to which the power extends, as they may think proper, — it seems to us hardly possible seriously to contend that the legislature may not confer the power to adopt, within such municipality, a law drawn up and framed by themselves. If they may pass a law authorizing towns to make ordinances to punish the keeping of billiard rooms, bowling alleys, and other places of gambling, they may surely pass laws to punish the same acts, subject to be adopted by the town before they can be in force in it. It is not suggested that there is any rule which forbids the making of places for gambling public nuisances, and consequently punishable like other nuisances, or which prohibits the grant of authority to towns to declare such places to be nuisances." State v. Noyes, 30 N.H. 279, 292, 293, 294. "It seems to us difficult to answer this reasoning, if it be confined to such laws as fall within the proper province of local government." Cooley Const. Lim. 124 n. "On many subjects, the state power of local legislation is delegated to the popular legislatures of towns and the representative legislatures of cities." And for some purposes "it is immaterial whether the power is exercised by the state legislature or by the city councils, to whom the state has delegated it." Kelley v. Kennard, 60 N.H. 1, 6. "A reason for submitting a local question to the voters in town-meeting is, that by their interest in it they are peculiarly qualified to decide it. And in many cases the more direct and exclusive their interest, the more reason there is supposed to be for delegating to them the power of legislation." Dorchester v. Youngman, 60 N.H. 385, 397, 398; Cooley Const. Lim. 118, 119. The bounds of reasonableness by which the municipal exercise of legislative power is generally limited (1 Dillon Mun. Corp., ss. 307-330) do not make the power executive or judicial, nor alter the fact that it is delegated.

In 1639, the inhabitants of Exeter, "judging themselves without the jurisdiction of Massachusetts," "combined into a separate body politic, and chose rulers and assistants, who were sworn to the due discharge of their office, and the people were as solemnly sworn to obey them. Their rulers were Isaac Grosse, Nicholas Needham, and Thomas Wilson, each of whom continued in office the space of a year, having two assistants. The laws were made in a popular assembly, and formally consented to by the rulers. Treason and rebellion against the king . . . or the country were made capital crimes; and sedition was punishable by a fine of ten pounds or otherwise, at the discretion of the court. . . . The people of Dover and Portsmouth, during all this time, had no power of government delegated from the crown; but finding the necessity of some more determinate form than they had yet enjoyed, combined themselves each into a body politic, after the example of their neighbors at Exeter." October 22, 1640, "the inhabitants of Dover, by a written instrument signed by forty-one persons, agreed to submit to the laws of England, and such others as should be enacted by a majority of their number, until the royal pleasure should be known. The date of the combination at Portsmouth is uncertain, their first book of records having been destroyed in 1652. . . . Four distinct governments (including one at Kittery, on the north side of the river) were now formed on the several branches of Piscataqua. These combinations being only voluntary agreements, liable to be broken or subdivided on the first popular discontent, there could be no safety in the continuance of them. The distractions in England at this time had cut off all hope of the royal attention, and the people of the several settlements were too much divided in their opinions to form any general plan of government which could afford a prospect of permanent utility. The more considerate persons among them, therefore, thought it best to treat with Massachusetts about taking them under their protection. . . . The affair was more than a year in agitation, and was at length concluded," as to Portsmouth and Dover, April 14, 1641. "The inhabitants of Exeter had hitherto continued their combination; but finding themselves comprehended within the claim of Massachusetts, and being weary of their inefficacious mode of government, they petitioned the court, and were readily admitted under their jurisdiction," September 8, 1642. Belknap Hist. N.H., c. 2; 1 N.H. Prov. Papers 327, 328, 332.

The written and signed "combination of the people of Dover to establish a form of government" was, "Whereas sundry mischiefs and inconveniences have befallen us, and more and greater may, in regard of want of civil government, his most gracious Majesty having settled no order for us to our knowledge: We, whose names are under written, being inhabitants upon the river Piscataqua, have voluntarily agreed to combine ourselves into a body politic, that we may the more comfortably enjoy the benefit of his Majesty's laws, together with all such laws as shall be concluded by a major part of the freemen of our society." 1 N. H[.] Prov. Papers 126; 10 N.H. Prov. Papers 700. The social contract written and signed at Exeter was, "We . . . brethren of the church of Exeter . . . with other inhabitants there, considering with ourselves the holy will of God, and our own necessity, that we should not live without wholesome laws and government amongst us, of which we are altogether destitute, do . . . combine ourselves together to erect and set up amongst us such government as shall be to our best discerning, . . . binding ourselves . . . to submit ourselves to such godly and christian laws as are established in the realm of England to our best knowledge, and to all other such laws which shall upon good grounds be made and enacted amongst us." 1 N.H. Prov. Papers 132. Under this local constitution, the exercise of legislative power in town-meeting was not lacking in formality or vigor. "It is enacted for a law, constituted, made, and consented unto by the whole assembly, at the court solemnly met together in Exeter the 9 day of the 2 month, Ano. 1640, That if any person . . . shall plot or practise . . . the betraying of the country," he "shall be punished with death," and "if any person . . . shall plot or practise treachery, treason, or rebellion, or shall revile his majesty the Lord's Anointed," he "shall be punished with death." 1 N.H. Prov. Papers 140.

Since the want of government was supplied by the settlers at Exeter, Dover, and Portsmouth, the system of decentralization has accompanied the occupation of our territory. Local self-government (including much administration of law, and an extensive use of the law-making powers of taxation and police), introduced not only before the organization of both the state and province of New Hampshire, but also before the extension of Massachusetts jurisdiction to the Piscataqua, and continuing in uninterrupted operation more than two hundred and forty years, has been constitutionally established by recognition and usage. Preceding all other New Hampshire legislation, and firmly fixed in the foundation of our institutions as an executed intention of the people, the local exercise of the power of making local law is an application of the principle of self-government that retains the control of local affairs in the community most interested in them. It is a positive and operative principle that cannot be displaced by a theory of centralization constructed upon the mere negation that a law is not invalidated by being made to take effect upon a contingency. Equally impossible is it to reverse the nature of an inalienable trust, and make the entire fiduciary duty of general legislation assignable, by an application of the principle of local government to legislation that is not local.

When a father conveys his farm to his son to be held upon the express or implied condition that the latter shall maintain his parents thereon, the personal trust reposed in the grantee cannot be transferred by him to a substitute. Flanders v. Lamphear, 9 N.H. 201. For good reasons, the grantor chooses that the contract shall be a personal one, and shall not extend to the grantee's assigns. Eastman v. Batchelder, 36 N.H. 141, 150. "There must be many contracts, the performance of which may be secured by a conveyance of land, which have such peculiarities that the provisions of law relative to mortgages can have but a very partial, if any, application to them. Among these classes, that which becomes material in this case is probably the most considerable, namely, the class of contracts for personal services; those in which one of the parties agrees that he will, in his own person, render certain services to another. In such cases, from the nature of the contract secured, the rights of one or both the parties do not admit of assignment, and the mortgage, which is but an incident to the debt, and cannot be transferred except in connection with it, is necessarily unassignable." Bethlehem v. Annis, 40 N.H. 34, 41. When land was held, under the feudal system, by vassals, upon condition of rendering certain services in their own persons, they could not assign, nor could their heirs inherit, the obligation of personal service, or the land held on such a condition. Cole v. Lake Co., 54 N.H. 242, 285.

"An agent ordinarily, and without express authority, or a fair presumption of one, growing out of the particular transaction or the usage of trade, has not power to employ a sub-agent to do the business without the knowledge or consent of his principal. The maxim is, that delegatus non potest delegare, and the agency is generally a personal trust and confidence which cannot be delegated; for the principal employs the agent from the opinion which he has of his personal skill and integrity, and the latter has no right to turn his principal over to another of whom he knows nothing. "2 Kent Com. 633. "The directors of a corporation, specially empowered by the charter to contract on its behalf, have no power to appoint sub-agents to contract for the corporation. . . . Neither can an agent, appointed by the corporation, and authorized to make a particular contract, or to do a certain piece of business, delegate his trust, unless specially empowered to do so, the personal confidence of the principal in the agent being the supposed motive of the selection and appointment of the latter." Angell Ames Corporations, s. 277. "An agent cannot delegate to another any portion of his power requiring the exercise of discretion or judgment, unless in the power conferred upon the agent is involved the power of substitution by the agent, in express terms, or, at least, by necessary implication." Gillis v. Bailey, 21 N.H. 149, 165. "All the magistrates and officers of government," legislative, executive, and judicial, are the "agents" of the people. Bill of Rights, art. 8.

Of the power to authorize the drawing of lotteries, granted to the city of Washington by its charter, the court say, — "A corporation aggregate can legislate within its prescribed limits, but can carry its laws into execution only by its agents. . . . It is a trust, and an important trust, confided to the corporation itself for the purpose of effecting important improvements in the city, and ought therefore to be executed under the immediate authority and inspection of the corporation. . . . The power thus cautiously granted is deposited with the corporation itself without an indication that it is assignable." Clark v. Washington, 12 Wheat. 40, 53, 54. Without legislative consent a railroad company cannot alienate its public duty and responsibility by a sale or lease of its road (Pierce v. Emery, 32 N.H. 484, 504, Richards v. Railroad,44 N.H. 127, 136, Hall v. Sullivan Railroad, 21 Law Reporter 138, 140, 141, Y. M. L. R. Co. v. Winans, 17 How. 30, 39, Thomas v. Railroad Co.,101 U.S. 71, 83, 84, Abbott v. Horse Railroad Co., 80 N.Y. 27, 30), or by forming a general partnership with another company. Burke v. Concord Railroad, 61 N.H. 160.

In Stoughton v. Baker, 4 Mass. 522, 530, Loud and two others were a committee authorized by a resolution of the legislature to cause such fishways to be constructed at certain dams as in the opinion of all or the major part of them would be sufficient for the passage of shad and alewives. Of the appointment of Loud as a sub-committee, the court say, — "The authority given to the committee is, by the terms of the resolve, to be exercised by them, or the major part of them. The exercise of this authority is personal, and cannot be delegated. If it could be delegated, it might be delegated to any other man as well as to Mr. Loud, one of the committee." For the same reason, a power conferred on towns to divide their territory into convenient school-districts cannot be transferred by them to the selectmen (School District v. Gilman, 3 N.H. 168); and the same power conferred on the selectmen cannot be transferred by them to the town. Neal v. Lewis, 46 N.H. 276, 279. A town's power of selecting a railroad for the construction of which money could be raised by the town, could not be delegated to a committee. M. Railroad v. Peterborough, 49 N.H. 281. "Towns have power to raise money to defray the necessary charges of the town, but it is well settled that this is a power which cannot be transferred. It cannot be vested in a committee. Gove v. Lovering, 3 N.H. 292. Districts, too, may raise money; but their power cannot be delegated, for the same reason which limits the powers of towns." Harris v. School District,28 N.H. 58, 63; Hitchcock v. Galveston, 96 U.S. 341, 348; Dillon Mun. Corp., ss. 96, 779.

A "very important limitation which rests upon municipal powers is that they shall be executed by the municipality itself, or by such agencies or officers as the statute has pointed out. So far as its functions are legislative, they rest in the discretion and judgment of the municipal body intrusted with them, and that body cannot refer the exercise of the power to the discretion and judgment of its subordinates or of any other authority. . . . This restriction, it will be perceived, is the same which rests upon the legislative power of the state, and it springs from the same reasons. The people in the one case in creating the legislative department, and the legislature in the other in conferring the corporate powers, have selected the depositary of the power which they have designed should be exercised, and in confiding it to such depositary have impliedly prohibited its being exercised by any other agency. A trust created for any public purpose cannot be assignable at the will of the trustee." Cooley Const. Lim. 204, 205. "One of the settled maxims in constitutional law is, that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority. Where the sovereign power of the state has located the authority, there it must remain; and by the constitutional agency alone the laws must be made until the constitution itself is changed. The power to whose judgment, wisdom, and patriotism this high prerogative has been intrusted cannot relieve itself of the responsibility by choosing other agencies upon which the power shall be devolved, nor can it substitute the judgment, wisdom, and patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust." Cooley Const. Lim. 116

An act of 1849 for the establishment of free schools in New York provided, in ss. 10 and 14, that "The electors shall determine by ballot at the annual election to be held in November next whether this act shall or shall not become a law," and that "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 a law." In an opinion holding this act invalid, the court say, — "The legislative power in this state is vested by the constitution in the senate and assembly. Art. 3, s. 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, s. 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 law. 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 cannot 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.

"A valid statute may be passed to take effect upon the happening of some future event certain or uncertain. . . . 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 cannot 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.' . . .

"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 law, and had further provided that the act should or should not take effect according to such certificate: it cannot 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 cannot 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 cannot 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 establish fundamental law." Barto v. Himrod, 8 N.Y. 483. In the same case, Willard, J., says the act "was a mere proposition submitted to the people to be adopted or rejected, as they pleased," and by this method of proposing laws "all the safeguards which the constitution has provided are broken down, and the members of the legislature are allowed to evade the responsibility which belongs to their office."

In Clarke v. Rochester, 28 N.Y. 605, 633, Denio, C. J., delivering the opinion, and citing Barto v. Himrod and other New York cases, says — "The principles settled in these cases are, first, that the legislature cannot commit the power of enacting laws to any other body than itself, not even to all the electors of the state; and that this principle cannot be evaded by a statute which shall prescribe the details of a particular legislative act, and then provides that the question whether it shall be established as law shall be determined by a vote of the electors. This was the plan resorted to in respect to the free-school act which was in question in Barto v. Himrod. It was said, with entire accuracy, as I conceive, that what was done by the legislature in that case was to propose to the people the details of a statute, and then to put it to the electors to determine whether they would or would not clothe it with the attributes of law. If it met their approval, it was to become a statute of the state; otherwise it was to be entirely void. The statute which was thus proposed, and which was approved of by the voice of the electors, was one of the most general character, affecting the whole state; and the deliberate judgment of this court was, that such statutory provisions could not be brought into existence in that manner. The government organized by the constitution was considered to be, as it undoubtedly is, that of a representative republic, and no power existed in the legislature to convert it, on any occasion, or for any purpose, into a pure democracy. The organization of the law-making power is one of the principal purposes of a constitutional charter of government, and in all communities of considerable extent this must be effected by means of a system of representation by which the people at stated periods delegate to citizens chosen by them the power of enacting general laws, by which all the members of the state are to be governed. That purpose is expressed in the constitution of this state by the declaration that the legislative power shall be vested in the senate and assembly. Art. 3. . . . But while general statutes must be enacted by the legislature, it is plain the power to make local regulations, having the force of law in limited localities, may be committed to other bodies representing the people in their local divisions, or to the people of those districts themselves. Our whole system of local government, in cities, villages, counties, and towns, depends upon that distinction. The practice has existed from the foundation of the state, and has always been considered a prominent feature in the American system of government." In that case, a question of local legislation had been submitted to and decided by the electors of Rochester. In such a case in this state, the senate and house would not be responsible for the legislative decision they intended not to make. M. Railroad v. Peterborough, supra; Perry v. Keene, 56 N.H. 514, 530 — S.C., 58 N.H. 40; Gloversville v. Howell, 70 N.Y. 287, 291.

"Legislative power can be delegated to towns only in local town affairs." Bowles v. Landaff, 59 N.H. 164, 192. "By the constitution, legislative power is vested not in the towns, but in the senate and house of representatives. And without a well established ground of exception, the senate and house are as incapable of delegating their legislative power, as the governor and council are of delegating the power of pardon, or the court of delegating the power of deciding the constitutional question raised in these cases. All power is derived from the people, and all magistrates and officers of government are their agents, and at all times accountable to them. Bill of Rights, art. 8. And these agents have not a general authority to avoid their official responsibility by relegating their duties to their assignees. If the legislative seats were filled with substitutes, it would not be claimed that a bill passed by them was law. The vote of a body of substitutes, assembled in the state house or elsewhere, is not legislation, unless authorized by a legal construction of the constitution. . . . The grant by the people to the senate and house of the power of delegating a power of local legislation, is implied from the principle of local self-government." Gould v. Raymond, 59 N.H. 260, 276.

In the organization of the state government, for reasons by them deemed sufficient, the people vested the supreme legislative power not in themselves, but in certain agents, as a personal trust to be executed under the obligation of an official oath. By this oath, they bound each senator and representative "accepting the trust" to the support of the constitution, and the constitutional performance of his fiduciary duty. Const., art. 2, 84. They were of opinion that while there might be good reason for granting to municipalities a limited power of making local law, it was not wise to attempt to carry on the work of state legislation in town-meeting. They might have made an effort to overcome one of the difficulties of that method by authorizing a state committee to propose laws, and requiring the governor to ascertain and proclaim the result of the popular vote in the manner adopted by the act of 1879. They preferred and they established a representative republic; and they did not confer upon the legislature the power of abolishing it, repealing the second article of the constitution, and changing the supreme law-making body into a committee on proposals. That power the legislature would have if they could transfer from themselves to others the responsibility of passing or refusing to pass a law of a non-local character. If the power of general legislation could be conveyed by the act of 1879 to those who might be induced to exercise it in town-meeting, all laws could be made and repealed in the same way, and the representative character of the government could easily be extinguished. If the senate and house can transfer the powers and responsibilities of general legislation, they can select their assignee, to whom all executive and judicial functions being also conveyed by the governor, council, courts, and juries, the concentrated despotism, prohibited by the thirty-seventh article of the bill of rights (Ashuelot R. R. Co. v. Elliot, 58 N.H. 451, 452, 453), can be introduced.

The act of 1879, on which the relator's claim is based, is not a local law. If it is a law, it is in force throughout the state: and counsel on both sides agree that the power of making it could not be delegated by the legislature. The relator's position is, that the second, third, fourth, and fifth sections were not a delegation of legislative power; and that if they were, the delegation was void, and the first section took effect, and would have taken effect, whichever way the people voted. The legal construction of the act is the ascertainment of the intention of the legislature. In one sense, their intention is a matter of law: it is a question for the court. In another sense, and for the purpose of the present inquiry, it is a matter of fact: it is to be determined by the natural weight of competent evidence. The nature of such questions, and the ground of their decision, were made clear by Judge Ladd's restatement of the law of interpretation in Rice v. Society, 56 N.H. 191, 197, 198, 202,203. Edes v. Boardman, 58 N.H. 580, 592; Burke v. Concord Railroad, ante 160, 233. The second section of the act provides that "the sense of the voters of this state shall be taken upon section one of this act, by ballot, those in favor thereof voting ``yes,' and those opposed voting ``no.'" The fourth section provides that "the governor shall, on or before the fifteenth day of January, 1881, make proclamation of the result of said vote; and if it shall appear that a majority of the voters voting upon said proposition voted in favor thereof, then section one of this act shall go into effect, and become a law, from and after said fifteenth day of January, 1881; and otherwise shall be of no effect." This is competent and conclusive evidence of the fact that the legislature intended the first section should not "become a law" unless "a majority of the voters, voting upon said proposition, voted in favor thereof." If a majority had voted against it in the town-meetings, the power of enacting the first section would not have been intentionally exercised by the senate and house; their purpose and understanding would have been that the first section should not "become a law;" and no rule of construction could make it a law contrary to the expressed will of the legislature.

Under general authority given by the city charter of Concord (Laws 1849, c. 835, s. 17) to make by-laws and regulations, the city council passed an ordinance prohibiting the keeping of intoxicating liquors in any refreshment saloon for any purpose whatever. In State v. Clark,28 N.H. 176, the defendant was convicted in the police court, and sentenced to pay a fine and costs, for a violation of the ordinance; and on appeal, the judgment of the police court was affirmed. It was held that the ordinance was a valid local law, enacted by the city council in the exercise of delegated power. On the same ground, an ordinance of Dover, prohibiting restaurants to be kept open after ten o'clock at night, was sustained. State v. Freeman, 38 N.H. 426. The legislative character of the municipal acts, in such cases, is affirmed in Lisbon v. Clark, 18 N.H. 234, 238, 242, 243, and State v. Ferguson,33 N.H. 424, 428, 429, 430, 431, 432, 433. By c. 245 of Laws of 1845, entitled "An act to suppress bowling alleys," it was enacted "that any bowling alley situate within twenty-five rods of any dwelling-house, store, shop, school-house, or place of public worship, shall be taken and deemed to be a public nuisance. Sec. 2. This act shall not be in force except in such towns as shall at some legal meeting adopt the same." The act was adopted by the town of Franklin. In State v. Noyes, 30 N.H. 279, the defendant was indicted and convicted for a violation of the act which (in the language of the indictment), by force of the vote in town-meeting, "became, and ever since has been, and still is, the law of said state of New Hampshire within the said town of Franklin;" and the statutory prohibition was held to be a valid local law made by the town in the exercise of delegated power. The doctrine of these decisions is too well settled in this state to be shaken by any authorities of other jurisdictions which hold in such cases either that the power is not legislative in its character, or that it is not delegated

P. Church v. City of New York, 5 Cow. 538, 540, was an action on the defendants' covenant for quiet enjoyment of land conveyed by the defendants to the plaintiffs' grantors in 1766, for a cemetery. The alleged breach of covenant was a by-law made by the defendants in 1823, prohibiting that use of the land. The court say, — "The defendants are a corporation, and in that capacity are authorized by their charter. and by-law, to purchase and hold, sell and convey, real estate in the same manner as individuals. They are considered a person in law within the scope of their corporate powers, and are subject to the same liabilities and entitled to the same remedies for the violation of contracts as natural persons. They are also clothed, as well by their charter as by subsequent statutes of the state, with legislative powers; and in the capacity of a local legislature are particularly charged with the care of the public morals and the public health within their jurisdiction. In ascertaining their rights and liabilities as a corporation, or as an individual, we must not consider their legislative character. They had no power as a party to make a contract which should control or embarrass their legislative powers and duties. Their enactments, in their legislative capacity, are to have the same effect upon their individual acts as upon those of any other persons, or the public at large, and no other effect. The liability of the defendants, therefore, upon the covenant in question must be the same as if it had been entered into by an individual, and the effect of the by-law upon it the same as if that by-law had been an act of the state legislature. It is expressly authorized by the legislature; and whether it be their act, or an act of the local city legislature, makes no difference." "Powers are conferred upon municipal corporations for public purposes; and as their legislative powers cannot . . . be delegated, so they cannot be bargained or bartered away." Dillon Mun. Corp., s. 97.

A New Hampshire town is "a municipal corporation, established for the general purposes of government, with limited legislative powers" — "a legislative corporation, established as a part of the government of the country." Fowle v. Alexandria, 3 Pet. 398, 409. An act authorizing a municipality to make "by-laws and ordinances for the graduation and levelling of the streets," "gives a power to legislate on the subject. . . . The power of this body to make a contract which should so operate as to bind its legislative capacities forever thereafter, and disable it from enacting a by-law which the legislature enables it to enact, may well be questioned. We rather think that the corporation cannot abridge its own legislative power." Goszler v. Georgetown, 6 Wheat. 593, 595, 598. That the city council of Dubuque "have legislative powers in regard to the police of the city is admitted." Fanning v. Gregoire, 16 How. 524, 533. "A municipal corporation . . . is but a department of the state. The legislature may give it all the powers such a being is capable of receiving, making it a miniature state within its locality." Barnes v. District of Columbia,91 U.S. 540, 544; Murphy v. Webster, 131 Mass. 482, 487. There is a "surrender by the government to the municipality of a portion of its sovereign power." Conrad v. Ithaca, 16 N.Y. 158, 171, note. "By the repeal (of the city charter of Memphis) the legislative powers previously possessed by the corporation . . . reverted to the state." Field, J., in Meriwether v. Garrett, 102 U.S. 472, 511. "By St. 1799, c. 61, it was for the first time provided that the owner of neat cattle so going at large, if prohibited by the inhabitants of a town at any town-meeting legally held for that purpose, should be subject to a penalty. . . . The legislature has authorized towns to legislate on this subject." Gilmore v. Holt, 4 Pick. 258, 262, 264. "It is competent for the general assembly to delegate to corporations of this character the power to enact ordinances ' which, when authorized, have the force and effect of laws passed by the legislature of the state within the corporate limits.' . . . Within the sphere of their delegated powers, municipal corporations have as absolute control as the general assembly would have if it never had delegated such powers, and exercised them by its own laws. . . . The general assembly is a coordinate branch of the state government, and so is the lawmaking power of public municipal corporations within the prescribed limits." D. M. G. Co. v. Des Moines, 44 Iowa 505, 508, 509. "To accomplish, within the specified territorial limits, the objects enumerated, the corporate authorities (of Baltimore) were clothed with all the legislative powers which the general assembly could have exerted." Harrison v. Baltimore, 1 Gill 264, 276.

An act authorizing the city council or the electors of Portsmouth to vote a tax for building a free bridge half way across the Piscataqua, if the existing toll-bridge should be discontinued, would be a contingent delegation of legislative power, and it would not be made valid or void by its contingent character. The delegation would be valid because the bridge would be a local public purpose, for which the city or its municipal legislature could be authorized to exercise the legislative power of taxation. If the act provided that it should "go into effect and become a law" when the legislature of Maine authorized the town of Kittery to build the east half of the bridge, and that the vote of Portsmouth should go into effect when Kittery voted to build the east half, these additional contingencies would not show a purpose to confer upon the legislature of Maine or upon the town of Kittery a power of making New Hampshire law. But a provision that "the sense of the voters of Portsmouth shall be taken upon the question of taxation, those in favor thereof voting ``yes,' and those opposed voting ``no,' and if it shall appear that a majority of the voters voting upon said proposition voted in favor thereof, then this act shall go into effect and become a law, and otherwise shall be of no effect," would be designed by the legislature and understood by the people of this state to be a grant of law-making power to the voters of Portsmouth. The fact of intended grant would be proved by the language of the act, taken in the sense in which the local option law of bowling-alleys was understood in State v. Noyes, supra, and the sense in which such terms would naturally be understood by a people not accustomed to regard their ancient system of local government as the contingent action of central authority, or to explain and defend it by imputing to the centre a responsibility at variance with historical fact and their own experience.

"Whereas particular towns have many things which concern only themselves, and the ordering their own affairs, and disposing of business in their own town: It is therefore ordered that the freemen of every town, with such others as are allowed, or the major part of them, shall have power . . . to make such laws and constitutions as may concern the welfare of their town; provided they be not of a criminal but of a prudential nature, and that their penalties exceed not twenty shillings for one offence, and that they be not repugnant to the public laws and orders of the country." Mass. Anc. Charters 195. The local power of local legislation confirmed by this order was exercised by our towns, as parts of Massachusetts, until they became a separate province; and the order was copied in the code enacted by our first provincial legislature in 1680. 1 N.H. Prov. Papers 403. By the province charter, the acts of the general assembly were in force until the king's pleasure was known on the question whether they should "receive any change or confirmation, or be totally disallowed." N.H. Prov. Papers 380, 436. The king's reported disallowance of the whole code of 1680, in December, 1681 (1 N.H. Prov. Papers 408, Belknap Hist. N.H., Preface of Vol. 2), does not tend to show by whom the people of New Hampshire have understood their town laws were made. A municipal power of legislation was a principle of the common law of the province. Its limits have been fixed by provincial and state authority, but it has always been a substantial part of our government. In 1692, it was enacted "That it shall and may be lawful for the selectmen of each town within this province, or the major part of them, with the approbation of one justice of the peace, to convene the freeholders of these towns together, to consider, debate, and conclude of such things as are necessary for the prudential affairs of their town, as often as they shall find occasion; and they, or the major part of them, so met, to make such orders as they shall find necessary for the prudential concerns of their towns, provided the penalty of any default made of such orders shall not exceed the sum of twenty shillings." 3 N.H. Prov. Papers 167. Acts of 1719, 1791, 1811, 1827, 1837, and 1842 are referred to in Lisbon v. Clark, 18 N.H. 234. Liberal grants of legislative power are made to towns and cities by Gen. Laws, cc. 37, 48; c. 49, ss. 4, 5, 6; c. 50, s. 1; c. 53, s. 10; c. 85, s. 2; c. 86, ss. 1, 2, 3, 24; c. 89, ss. 2, 19; c. 90, ss. 2, 4, 5; c. 91, s. 6; and c. 176, s. 9.

The Portsmouth school law, passed July 7, 1826, provides "That this act shall not take effect until the inhabitants of said town, at their annual meeting for town officers in March next or at some other legal meeting held expressly for that purpose, shall adopt the same by a vote of a majority of the legal voters present." An amendment of this act, passed July 4, 1829, provides "That this act shall not take effect until the same shall be adopted by said town at their annual meeting for the choice of town officers in March next." The Portsmouth act of the Revised Statutes (c. 74) provides (s. 15) for its adoption by any town. The Somersworth school law was not to "take effect in said district until adopted by a vote thereof, at a meeting called for the purpose." Laws 1848, c. 631, s. 8. The Somersworth act was "extended and made applicable to all school-districts which may adopt said act at legal meetings held for that purpose." Laws 1848, c. 718. The Concord act was to "be in force whenever adopted by said Union School District, in Concord, at any legal meeting thereof duly notified for that purpose." Laws 1859, c. 2231, s. 2.

Chapter 113 of the Revised Statutes, containing the law "of offences against the police of towns," and c. 114, "of police officers," are substantially a reenactment of the act of 1823, entitled "An act to establish a system of police in the town of Portsmouth, and for other purposes," the last section of which is, "That any town or towns in this state, at their annual meeting, or at any other meeting lawfully called for this purpose, may adopt such of the provisions of the foregoing act as they may deem expedient and necessary; in which case such provisions so adopted shall be considered to extend to such town or towns adopting the same, as fully, to all intents and purposes, as to the town of Portsmouth." Section 10 of c. 114, Rev. St., is, "This chapter shall be in force in all towns which have at any legal meeting adopted its provisions, and in all towns in which any of the provisions of an act entitled ``An act to establish a system of police in the town of Portsmouth, and for other purposes,' passed June 23, 1823, are in force." In the General Statutes, the law of "offences against the police of towns" is given in c. 252, the seventeenth section of which is, "The preceding sections of this chapter shall be in force in all towns which shall, at any legal meeting, adopt its provisions, and in all towns in which any of the provisions of c. 113 of the Revised Statutes are in force." This section was repealed by s. 67, c. 1, Laws 1868.

"There shall be in each town in this state, in which this act may be in force, a police court. . . . This act shall be in force in any town which shall, at any legal town-meeting called for that purpose, by a majority of the voters present and voting thereon, determine to adopt the same." Laws 1852, c. 1282, ss. 1, 12. In an amendment of that chapter, it is enacted "That any town in this state which shall have adopted, or which shall hereafter adopt, the provisions of said act, be and they hereby are authorized and empowered by a major vote of the legal voters in the same, present at any meeting thereof duly notified and warned for that purpose, and voting upon the question, to rescind any vote by which said provisions shall have been adopted. All right to hold office by virtue of said act or any of its provisions, or to perform the duties thereof, shall cease and be fully determined upon the rescission of any vote for its adoption as aforesaid." Laws 1854, c. 1534, ss. 1, 2.

"An act to establish the city of Keene" was to "become null and void unless the town of Keene shall, at a meeting called for that purpose, vote to adopt the same within one year from date." Laws 1865, c. 4145, s. 19. In 1866 an amendment provided that this act should be revived and continued in force if the town adopted it within one year from the passage of the amendment. Laws 1866, c. 4323. The town having adopted the charter in March, 1867, "An act to enable the city of Keene to resume its town organization" suspended the operation of the charter until, at another annual meeting, "a majority of the legal voters of said Keene, present and voting . . . shall vote to reaffirm and readopt said city charter." Laws 1867, c. 10. "Towns have by law a general power and duty to divide their territories into school districts, and may from time to time alter the divisions that have been made. Rev. St., c. 69. But this power, delegated by law the legislature, which is supreme on such subjects, may for good cause resume." School District v. Smart, 18 N.H. 268, 273. An act annexing Roxbury to Keene was to "take effect whenever a majority of the legal voters of each of said towns, present and voting at a meeting duly warned and held for that purpose, shall adopt the same." Laws 1868, c. 29, s. 5. The city charter of Manchester, conferring large legislative power on the city council, was to be void unless adopted by major vote at a legal town-meeting. The legislature reserved the power of amending it, with proviso that whenever any amendment shall be made, and the voters, "at a legal meeting for that purpose, determine, by a majority of voters, to surrender this charter, they may be allowed so to do, and to adopt a town organization." Laws 1846, c. 384, ss. 14, 17, 31, 32.

By an act passed at the last session, s. 2 of c. 90, Gen. Laws, is "so amended as to read as follows: Sec. 2. Any town, by a major vote in town-meeting, or any school-district having not less than one hundred children between six and sixteen years of age therein, by vote of two thirds of the legal voters of said district at a legal meeting, may determine to establish a high school, and shall thereby be constituted a high school district; and no high school district so established shall thereafter be discontinued except by a vote of two thirds of the legal voters of said district." Laws 1881, c. 23. By another chapter, passed at the same session, it is enacted, in ss. 1 and 2, that the state shall be divided into two congressional districts, and in s. 3, that "Sections 1 and 2 of c. 33 of the General Laws of New Hampshire shall be repealed, and this act shall go into effect upon the passage by congress of an apportionment act allotting to New Hampshire two representatives in congress." Laws 1881, c. 96. These two statutes (cc. 23 and 96) are contingent. The effect of each depends upon the exercise of legislative power by persons not members of the state legislature. Such power is conveyed to towns and school-districts by c. 23, and is not conveyed to congress by c. 96.

As "a man may refuse to accept a grant, whether from the government or an individual" (Ellis v. Marshall, 2 Mass. 269, 277), the grant contained in the charter of a private corporation "is ineffectual until it is accepted by the corporators. . . . But there is no such rule in the case of public corporations of a municipal character. . . . The legislature has entire control over municipal corporations, to create, change, or destroy them at pleasure, and they are absolutely created by the act of incorporation, without the acceptance of the people, or any act on their part, unless otherwise provided by the act itself." Berlin v. Gorham, 34 N.H. 266, 275; Dillon Mun. Corp., s. 44. A contract may be made by a town and a toll-bridge company accepting a statute that takes effect when accepted by them. C. Bridge Co. v. Lowell, 15 Gray 106, 116. The fact that a municipal ordinance "amounts to a contract . . . by no means deprives it of its legislative character." D. M. G. Co. v. Des Moines, 44 Iowa 505, 510;58 N.H. 623. What by-laws of a non-municipal corporation become stipulations of a contract between its members, or between it and third persons, and what difference, if any, between municipal and other corporations, is contemplated in such statutes as Gen. Laws, c. 77, ss. 4, 5, 6, we need not now inquire. Lisbon v. Clark, 18 N.H. 234, 238,242, 243; Laconia v. Gilman, 55 N.H. 127; Gilman v. Laconia, 55 N.H. 130,131; Markham v. Brown, 8 N.H. 523; Hilliard v. Goold, 34 N.H. 230, 241; Johnson v. C. Railroad, 46 N.H. 213, 219; Com. v. Worcester, 3 Pick. 462, 473; Com. v. Power, 7 Met. 596, 600, 601; Worcester v. E. M. Bridge Co., 7 Gray 457; Heland v. Lowell, 3 Allen 407; Crocker v. Railroad, 24 Conn. 249,260, 261; Hibbard v. Railroad, 15 N.Y. 455, 458; Marshall v. Ins Co.,27 N.H. 157, 164; Blasdel v. Locke, 52 N.H. 238, 243; 2 Kent Com. 296; Angell Ames Corporations, c. 10; Redfield Railways, c. 6; Dillon Mun. Corp., ss. 336, 338, 409, 410.

"The power of pardoning offences . . . shall be in the governor, by and with the advice of council." Const., art. 52. Although "all power," legislative, judicial, and executive, is "derived from the people," and "all the magistrates and officers of government are their substitutes and agents, and at all times accountable to them" (Bill of Rights, art. 8), the constitutional relation of principal and agent existing between the people on the one hand, and the governor and council on the other, does not authorize the executive agents to refer an application for pardon to their principal for decision. The principal has determined that the pardoning power, vested in the governor and council, shall not be conveyed back to the grantor, in one case, or in all cases, without the grantor's consent given by an authorized alteration of the social contract, and that the executive agents shall not evade their duty and responsibility by altering the constitution at their pleasure. While the relation of principal and agent, existing between the people and the legislature, did not empower the legislative agents to alter the constitution by making voters in town-meeting referees to decide the question whether the, first section of the act of 1879 should be law, that relation is evidence tending to show that the question was submitted to the voters for decision. When a proposition to buy a principal's property is formally submitted to him by his agent, and is categorically accepted or rejected by the principal, it is not understood by them that this amounts to the agent's assumption of the responsibility of making the sale or refusing to make it. By the act of 1879, the proposition that a grant should be made of a new power to minorities in the election of corporate directors, was submitted to the people by agents of the people. On the question of fact whether the agents understood they were assuming the responsibility of making the proposed grant, it is a circumstance of some significance that the body to whom they submitted the proposition was regarded by them, and by the organic law, as the sovereign principal from whom all powers of government are derived.

It might be asked, If the act of 1879 is not a transfer of the responsibility of enacting the first section, what language could the legislature have used to express more clearly a transferring purpose? and if it is a transfer, how could they have expressed more clearly a contingent purpose to bear the entire responsibility? But the answers that might be given to either of these questions need not be examined. The case is decided by a simple and plain rule of construction. Common and familiar legislative language, naturally signifying a delegation of legislative power to voters in town-meeting, and firmly established in that meaning by long use, must be judicially understood in the sense in which it is known to be used and understood by the legislature and the entire population of the state. It is not necessary, in this case, to dissent from, or concur in, the remark of the court in Barto v. Himrod, 8 N.Y. 483, 490, that "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." Whatever opinions may be entertained on such a point under the act of 1879, they do not determine the question of fact whether the legislature intended to retain and bear the responsibility of enacting the first section, or to convey that responsibility to their constituents.

Had the constitution conferred validity upon every statute made to take effect upon a contingency, the delegation of powers of municipal legislation need not have been authorized by the principle of local government; all law-making power would have been negotiable; and the personal trust of state legislation, inalienably vested in the senate and house by the constitution, could have been divested in one case and in all cases by conditional forms of enactment. But the question whether there is a contingent clause in the act of 1879 cannot be substituted for the question whether the legislature understood that the second, third, fourth, and fifth sections exonerated them from the responsibility of deciding that the first section should or should not become a law. There can be no arbitrary test for determining in what cases questions are submitted by the legislature to the people for decision, and in what cases the questions submitted are contingently decided by the senate and house. The legal meaning of this act does not differ from its actual meaning. It must be taken in the natural, ordinary, and established sense of its terms. A different construction would put upon the legislature a responsibility they did not assume, and find their intention contrary to the fact. If the fourth section had provided that "section one of this act shall go into effect and become a law" in every town where "it shall appear that a majority of the voters voting upon said proposition voted in favor thereof," it would have been understood that the question of the first section becoming a local law was submitted to each town for decision. Construed in the light of history, by the universal understanding of language ordinarily used in the submission of local questions to voters in town-meeting, the act was intended to be a delegation of legislative power. The presumption in favor of its validity is overcome by competent evidence. Other questions have been argued, but it is not necessary to decide them.

Judgment for the defendant.

All concurred.