[*119] * For the like reasons the question whether a county or township shall be divided and a new one formed, or two townships or school districts formerly one be reunited,2 or a county seat located at a particular place, or after its location removed elsewhere, or the municipality contract particular debts, or engage in a particular improvement, is always a question which may with propriety be referred to the voters of the municipality for decision.

Unger, 8 Iowa, 82; City of Patterson v. Society, &c., 4 Zab. 385; Gorham v. Springfield, 21 Me. 58; Commonwealth v. Judges of Quarter Sessions, 8 Penn. St. 391; Commonwealth v. Painter, 10 Penn. St. 214; Call v. Chadbourne, 46 Me. 206; State v. Scott, 17 Mo. 521; State v. Wilcox, 45 Mo. 458; Hobart v. Supervisors, &c., 17 Cal. 23; Bank of Chenango v. Brown, 26 N. Y. 467; Steward v. Jefferson, 3 Harr. 335; Burgess v. Pue, 2 Gill, 11; Lafayette, &c., R. R. Co. v. Geiger, 34 Ind. 185. The right to refer to the people of several municipalities the question of their consolidation was disputed in Smith v. McCarthy, 56 Penn. St. 359, but sustained by the court.

State v. Reynolds, 5 Gilm. 1. See State v. McNiell, 24 Wis. 149. The question whether a general school law shall be accepted in a particular municipality may be referred to its voters. State v. Wilcox, 45 Mo. 458.

2 Commonwealth v. Judges, &c., 8 Penn. St. 391; Call v. Chadbourne, 46 Me. 206.

3 Commonwealth v. Painter, 10 Penn. St. 214. See People v. Salomon, 51 Ill. 37.

The following are cases in which municipal subscriptions to works of internal improvement, under statutes empowering them to be made, have been sustained: Goddin v. Crump, 8 Leigh, 120; Bridgeport v. Housatonic Railroad Co., 15 Conn. 475; Thomas v. Leland, 24 Wend. 65; Clarke v. Rochester, 24 Barb. 446; Benson v. Mayor, &c., of Albany, 24 Barb. 248; Corning v. Greene, 23 Barb. 33; Grant v. Courter, 24 Barb. 232; Starin v. Genoa, 29 Barb. 442, and 23 N. Y. 439; Bank of Rome v. Village of Rome, 18 N. Y. 38; Prettyman v. Supervisors, &c., 19 Ill. 406; Robertson v. Rockford, 21 Ill. 451; Johnson v. Stack, 24 Ill. 75; Perkins v. Perkins, ib. 208; Bushnell v. Beloit, 10 Wis. 195; Clark v. Janesville, ib. 136; Stein v. Mobile, 24 Ala. 591; Mayor of Wetumpka v. Winter, 29 Ala. 651; Pattison v. Yuba, 13 Cal. 175; Blanding v. Burr, ib. 343; Hobart v. Supervisors, &c., 17 Cal. 23; Dubuque County v. Railroad Co., 4 Greene (Iowa), 1; State v. Bissell, ib. 328; Clapp v. Cedar County, 5 Iowa, 15; Gaines v. Robb, 8 Iowa, 193; McMillen v. Boyles, 6 Iowa, 304; Taylor v. Newberne, 2 Jones Eq. 141; Caldwell v. Justices of Burke, 4 Jones Eq. 323; Louisville, &c., Railroad Co. v. Davidson, 1 Sneed, 637; Nichol v. Mayor of Nashville, 9 Humph. 252; Railroad Co. v. Commissioners of Clinton Co., 1 Ohio, N. s. 77; Trustees of Paris v. Cherry, 8 Ohio, N. s. 564; Cass v. Dillon, 2 Ohio, N. s. 607; State v. Commissioners of Clinton Co., 6 Ohio, N. s. 280; State v. Van Horne, 7 Ohio, N. s. 327; State v. Trustees of Union, 8 Ohio, N. s. 394; Trustees, &c. v. Shoemaker, 12 Ohio, N. s. 624; State v.

*

The question then arises, whether that which may be done in reference to any municipal organization within [120] the State may not also be done in reference to the State

at large? May not any law framed for the State at large be made conditional on an acceptance by the people at large, declared through the ballot-box? If it is not unconstitutional to delegate to a single locality the power to decide whether it will be governed by a particular charter, must it not quite as clearly be within the power of the legislature to refer to the people at large, from whom all power is derived, the decision upon any proposed statute affecting the whole State? And can that be called a delegation of power which consists only in the agent or trustee referring back to the principal the final decision in a case where the principal is the party concerned, and where perhaps there are questions of policy and propriety involved which no authority can decide so satisfactorily and so conclusively as the principal to whom they are referred?

If the decision of these questions is to depend upon the weight of judicial authority up to the present time, it must be held that there is no power to refer the adoption or rejection of a general law to the people of the State, any more than there is to refer it to Commissioners of Hancock, 12 Ohio, N. s. 596; Powers v. Dougherty Co., 23 Geo. 65; San Antonio v. Jones, 28 Texas, 19; Commonwealth v. McWilliams, 11 Penn. St. 61; Sharpless v. Mayor, &c., 21 Penn. St. 147; Moers v. Reading, ib. 188; Talbot v. Dent, 9 B. Monr. 526; Slack v. Railroad Co., 13 B. Monr. 1; City of St. Louis v. Alexander, 23 Mo. 483; City of Aurora v. West, 9 Ind. 74; Cotton v. Commissioners of Leon, 6 Fla. 610; Copes v. Charleston, 10 Rich. 491; Commissioners of Knox County v. Aspinwall, 21 How. 539, and 24 How. 326; Same v. Wallace, 21 How. 547; Zabriske v. Railroad Co., 23 How. 381; Amey v. Mayor, &c., 24 How. 365; Gelpecke v. Dubuque, 1 Wal. 175; Thompson v. Lee County, 3 Wall. 327; Rogers v. Burlington, ib. 654; Butler v. Dunham, 27 Ill. 474; Gibbons v. Mobile & Great Northern Railroad Co., 36 Ala. 410; St. Joseph, &c., Railroad Co. v. Buchanan Co. Court, 39 Mo. 485; State v. Linn Co. Court, 44 Mo. 504; Stewart v. Supervisors of Polk Co., 30 Iowa, 9; John v. C. R. & F. W. R. R. Co., 35 Ind. 539; Leavenworth County v. Miller, 7 Kan. 479; Walker v. Cincinnati, 21 Ohio, N. s. 14; Ex parte Selma, &c., R.R. Co., 45 Ala. 696; S. & V. R.R. Co. v. Stockton, 41 Cal. 149. In several of them the power to authorize the municipalities to decide upon such subscriptions has been contested as a delegation of legislative authority, but the courts — even those which hold the subscriptions void on other grounds - do not look upon these cases as being obnoxious to the constitutional principle referred to in the

text.

any other authority. The prevailing doctrine in the courts appears to be, that, except in those cases where, by the constitution, the people have expressly reserved to themselves a power of decision, the function of legislation cannot be exercised by them, even to the extent of accepting or rejecting a law which has been framed for their consideration. "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 [with that exception], and can therefore exercise it in no other case." It is therefore held that the legislature have no power to submit a proposed law to the people, nor have the people power to bind each other by acting upon it. They voluntarily surrendered that power when they adopted the constitution. The government of the State is democratic, but it is a representative democracy, and in passing general laws the people act only through their representatives in the legislature.1

[* 121]

Nor, it seems, can such legislation be sustained as legislation of a conditional character, whose force is to depend upon the happening of some future event, or upon some future change of circumstances. "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

1 Per Ruggles, Ch. J., in Barto v. Himrod, 8 N. Y. 489. It is worthy of consideration, however, whether there is any thing in the reference of a statute to the people for acceptance or rejection which is inconsistent with the representative system of government. To refer it to the people to frame and agree upon a statute for themselves would be equally impracticable and inconsistent with the representative system; but to take the opinion of the people upon a bill already framed by representatives and submitted to them, is not only practicable, but is in precise accordance with the mode in which the constitution of the State is adopted, and with the act on which is taken in many other cases. The representative in these cases has fulfilled precisely those functions which the people as a democracy could not fulfil; and where the case has reached a stage when the body of the people can act without confusion, the representative has stepped aside to allow their opinion to be expressed. The legislature is not attempting in such a case to delegate its authority to a new agency, but the trustee, vested with a large discretionary authority, is taking the opinion of the principal upon the necessity, policy, or propriety of an act which is to govern the principal himself. See Smith v. Janesville, 26 Wis. 291.

expediency of the law; an event on which the expediency of the law in the opinion 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 declared 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 it was held that in the case of the submission of a proposed free-school law to the people, no such event or change of circumstances affecting the expediency of the law was expected to happen. The wisdom or expediency of the 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 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 [* 122] that legislative discretion which they are bound to exer

cise themselves, and which they cannot delegate or commit to any other man or men to be exercised.1

1 Per Ruggles, Ch. J., in Barto v. Himrod, 8 N. Y. 490. And see Santo v. State, 2 Iowa, 165; State v. Beneke, 9 Iowa, 203; State v. Swisher, 17 Texas, 441; State v. Field, 17 Mo. 529; Bank of Chenango v. Brown, 26 N. Y. 470; People v. Stout, 23 Barb. 349; State v. Wilcox, 45 Mo. 458. But upon this point there is great force in what is said by Redfield, Ch. J., in State v. Parker, 26 Vt. 357: "If the operation of a law may fairly be made to depend upon a future contingency, then, in my apprehension, it makes no essential difference what is the nature of the contingency, so it be an equal and fair one, a moral and legal one, not opposed to sound policy, and so far connected with the object and purpose of the statute as not to be a mere idle and arbitrary one. And to us the contingency, upon which the present statute was to be suspended until another legislature should meet and have opportunity of reconsidering it, was not only proper and legal, and just and moral, but highly commendable and creditable to the legislature who passed the statute; for at the very threshold of inquiry into the expediency of such a law lies the other and more important inquiry, Are the people prepared for such a law? Can it be successfully enforced? These questions being answered in the affirmative, he must be a bold man who would even vote against the law; and something more must he be who would, after it had

[* 123]

*The same reasons which preclude the original enactment of a law from being referred to the people would

been passed with that assurance, be willing to embarrass its operation or rejoice at its defeat.

"After a full examination of the arguments by which it is attempted to be sustained that statutes made dependent upon such contingencies are not valid laws, and a good deal of study and reflection, I must declare that I am fully convinced although at first, without much examination, somewhat inclined to the same opinion that the opinion is the result of false analogies, and so founded upon a latent fallacy. It seems to me that the distinction attempted between the contingency of a popular vote and other future contingencies is without all just foundation in sound policy or sound reasoning, and that it has too often been made more from necessity than choice, — rather to escape from an overwhelming analogy than from any obvious difference in principle in the two classes of cases; for... one may find any number of cases in the legislation of Congress, where statutes have been made dependent upon the shifting character of the revenue laws, or the navigation laws, or commercial rules, edicts, or restrictions of other countries. In some, perhaps, these laws are made by representative bodies, or, it may be, by the people of these States, and in others by the lords of the treasury, or the boards of trade, or by the proclamation of the sovereign; and in all these cases no question can be made of the perfect legality of our acts of Congress being made dependent upon such contingencies. It is, in fact, the only possible mode of meeting them, unless Congress is kept constantly in session. The same is true of acts of Congress by which power is vested in the President to levy troops or draw money from the public treasury, upon the contingency of a declaration or an act of war committed by some foreign state, empire, kingdom, prince, or potentate. If these illustrations are not sufficient to show the fallacy of the argument, more would not avail." See also State v. Noyes, 10 Fost. 292; Bull v. Read, 13 Grat. 78; Johnson v. Rich, 9 Barb. 680; State v. Reynolds, 5 Gilm. 1; Robinson v. Bidwell, 22 Cal. 349. In the recent case of Smith v. Janesville, 26 Wis. 291, Chief Justice Dixon discusses this subject in the following language: "But it is said that the act is void, or at least so much of it as pertains to the taxation of shares in national banks, because it was submitted to a vote of the people, or provided that it should take effect only after approval by a majority of the electors voting on the subject at the next general election. This was no more than providing that the act should take effect on the happening of a certain future contingency, that contingency being a popular vote in its favor. No one doubts the general power of the legislature to make such regulations and conditions as it pleases with regard to the taking effect or operation of laws. They may be absolute, or conditional and contingent; and if the latter, they may take effect on the happening of any event which is future and uncertain. Instances of this kind of legislation are not unfrequent. The law of Congress suspending the writ of habeas corpus during the late rebellion is one, and several others are referred to in the case In re Richard Oliver, 17 Wis. 681. It being conceded that the legislature possesses this general power, the only question here would seem to be, whether a vote of the people in favor of a law is to be excluded from the number of those future contingent events upon which it may be pro