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CH. V.]

POWERS EXERCISED BY LEGISLATIVE DEPARTMENT.

123

The same reasons which preclude the original enactment of a law from being referred to the people would render it equally incompetent to refer to their decision the question, whether an existing law should be repealed. If the one is "a plain surrender to the people of the law-making power," so also is the other.1 It would seem, however, that if a legislative act is, by its terms, to take effect in any contingency, it is not unconstitutional to make the time when it shall take effect depend upon the event of a popular vote being for or against it, the time of its going into operation being postponed to a later day in the latter contingency. It would also seem that if the question of the acceptance or rejection of a municipal charter can be referred to the voters of the locality specially interested, it would be equally competent to refer to them the question whether a State law establishing a particular police regulation should be of force in such locality or not. Municipal charters refer most questions of local government, including police regulations, to the local authorities; on the supposition that they are better able to decide for themselves upon the needs, as well as the sentiments, of their constituents, than the legislature possibly can be, and are therefore more competent to judge what local regulations are important, and also how far the local sentiment will assist in their enforcement. The same reasons would apply in favor of allowing the people of the locality to accept or reject for themselves a particular police regulation, since this is only allowing them less extensive powers of local government than a municipal charter would confer; and the fact that the rule of law on that subject might be different in different

argument, more would not avail." See v. Read, 13 Grat. 78; Johnson v. Rich, 1; Robinson v. Bidwell, 22 Cal. 349.

also State v. Noyes, 10 Fost. 292; Bull
Barb. 680; State v. Reynolds, 5 Gilm.

1 Geebrick v. State, 5 Iowa, 491; Rice v. Foster, 4 Harr. 492; Parker v. Commonwealth, 6 Penn. St. 507.

2 State v. Parker, 26 Vt. 357. The act under consideration in that case was, by its terms, to take effect on the second Tuesday of March after its passage, unless the people, to whose votes it was submitted, should declare against it, in which case it should take effect in the following December. The case was distinguished from Barto v. Himrod, 8 N. Y. 483, and the act sustained. At the same time the court express their dissent from the reasoning upon which the New York case rests. In People v. Collins, 3 Mich. 343, the court was equally divided in a case similar to that in Vermont, except that in the Michigan case the law, which was passed and submitted to the people in 1853, was not to go into effect until 1870, if the vote of the people was against it.

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localities, according as the people accepted or rejected the regulation, would not seem to affect the principle, when the same result is brought about by the different regulations which municipal corporations establish for themselves in the exercise of an undisputed authority. The current of authority, however, is perhaps against the constitutionality of any such reference.

The legislature of Delaware, in 1847, passed an act to authorize the citizens of the several counties of the State to decide by ballot whether the license to retail intoxicating liquors should be permitted. By this act a general election was to be held: and if a majority of votes in any county should be cast against license, it should not thereafter be lawful for any person to retail intoxicating liquors within such county; but if the majority should be cast in favor of license, then licenses might be granted in the county so voting, in the manner and under the regulations in said. act prescribed. The Court of Errors and Appeals of that State held this act void, as an attempted delegation of the trust to make laws, and upon the same reasons which support the cases before cited, where acts have been held void which referred to the people of the State for approval a law of general application.2 The same decision was made near the same time by the Supreme

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1 In New Hampshire a statute was passed making bowling-alleys, situate within twenty-five rods of a dwelling-house, nuisances; but the statute was to be in force only in those towns in which it should be adopted in town meeting. In State v. Noyes, 10 Fost. 293, this act was held to be constitutional. Assuming," say the court," that the legislature has the right to confer the power of local regulation 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 of force in it." And 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, and which are therefore usually referred to the judgment of the municipal authorities or their constituency. A similar question arose in Smith v. Village of Adrian, 1 Mich. 495, but was not decided. In Bank of Chenango v. Brown, 26 N. Y. 467, it was held competent to authorize the electors of an incorporated village to determine for themselves what sections of the general act for the incorporation of villages should apply to their village.

Rice v. Foster, 4 Harr. 479.

Court of Pennsylvania,1 followed afterwards in an elaborate opinion by the Supreme Court of Iowa.2

By statute in Indiana it was enacted that no person should retail spirituous liquors, except for sacramental, mechanical, chemical, medicinal, or culinary purposes, without the consent of the majority of the legal voters of the proper township who might cast their votes for license at the April election, nor without filing with the county auditor a bond as therein provided; upon the filing of which the auditor was to issue to the person filing the same a license to retail spirituous liquors, which was to be good for one year from the day of the election. This act was held void upon similar reasons to those above quoted. This case follows the decisions in Pennsylvania and Delaware, and it has since been followed by another decision of the Supreme Court of that State, except that while in the first case only that portion of the statute which provided for submission to the people was held void, in the later case that unconstitutional provision was held to affect the whole statute with infirmity, and render the whole invalid.5

Irrepealable Laws.

Similar reasons to those which forbid the legislative department of the State from delegating its authority will also forbid its passing any irrepealable law. The constitution, in conferring the legislative authority, has prescribed to its exercise any limitations which the people saw fit to impose; and no other power than the people can superadd other limitations. To say that the legislature may pass irrepealable laws, is to say that it may alter the very constitution from which it derives its authority; since in so far as one legislature could bind a subsequent one by its enactments, it could in the same degree reduce the legislative power of its successors, and the process might be repeated until, one by one, the subjects of legislation would be excluded altogether from their control, and the constitutional provision, that the 1 Parker v. Commonwealth, 6 Penn. St. 507. Geebrick v. State, 5 Iowa, 495.

Maize v. State, 4 Ind. 342.

Parker v. Commonwealth, 6 Penn. St. 507; Rice v. Foster, 4 Harr. 479. See also State v. Field, 17 Mo. 529; Commonwealth v. McWilliams, 11 Penn. St. 61; State v. Copeland, 3 R. I. 33.

Meshmeier v. State, 11 Ind. 484.

legislative power shall be vested in two houses, would be to a greater or less degree rendered ineffectual.1

"Acts of Parliament," says Blackstone, "derogatory to the power of subsequent Parliaments, bind not; so the statute 11 Henry VII. ch. 1, which directs that no person for assisting a king de facto shall be attainted of treason by act of Parliament or otherwise, is held to be good only as to common prosecutions for high treason, but it will not restrain or clog any parliamentary attainder. Because the legislature, being in truth the sovereign power, is always of equal, and always of absolute authority; it acknowledges no superior upon earth, which the prior legislature must have been if its ordinances could bind a subsequent Parliament. And upon the same principle, Cicero, in his letters to Atticus, treats with a proper contempt those restraining clauses which endeavor to tie up the hands of succeeding legislatures. When you repeal the law itself,' says he, 'you at the same time repeal the prohibitory clause which guards against such repeal.'" 2 Although this reasoning does not in all its particulars apply to the American legislatures, the principle applicable in each case is the same. There is a modification of the principle, however, by an important provision of the Constitution of the United States, forbidding the State from passing any laws impairing the obligation of contracts. Legislative acts are sometimes in substance contracts between the State and the party who is to derive some right under them, and they are not the less under the protection of the clause quoted because of having assumed this form. Charters of incorporation, except those of a municipal character, and which as we have already seen are mere agencies of govern

1 "Unlike the decision of a court, a legislative act does not bind a subsequent legislature. Each body possesses the same power, and has a right to exercise the same discretion. Measures, though often rejected, may receive legislative sanction. There is no mode by which a legislative act can be made irrepealable, except it assume the form and substance of a contract. If in any line of legislation, a permanent character could be given to acts, the most injurious consequences would result to the country. Its policy would become fixed and unchangeable on great national interests, which might retard, if not destroy, the public prosperity. Every legislative body, unless restricted by the constitution, may modify or abolish the acts of its predecessors; whether it would be wise to do so is a matter for legislative discretion." Bloomer v. Stolley, 5 McLean, 161. In Kellogg v. Oshkosh, 14 Wis. 623, it was held that one legislature could not bind a future one to a particular mode of repeal.

1 Bl. Com. 90.

ment, are held to be contracts between the State and the corporators, and not subject to modification or change by the act of the State alone, except as may be authorized by the terms of the charters themselves.1 And it now seems to be settled, by the decisions of the Supreme Court of the United States, that a State, by contract to that effect, based upon a consideration, may exempt the property of an individual or corporation from taxation for any specified period or permanently. And it is also settled, by the same decisions, that where a charter containing an exemption from taxes, or an agreement that the taxes shall be to a specified amount only, is accepted by the corporators, the exemption is presumed to be upon sufficient consideration, and consequently binding upon the State.2

Territorial Limitation to State Legislative Authority.

The legislative authority of every State must spend its force 1 Dartmouth College v. Woodward, 4 Wheat. 518; Planters' Bank v. Sharp, 6 How. 301.

* Gordon v. Appeal Tax Court, 3 How. 133; New Jersey v. Wilson, 7 Cranch, 164; Piqua Branch Bank v. Knoop, 16 How. 369; Ohio Life Ins. and Trust Co. v. Debolt, 16 How. 416, 432; Dodge v. Woolsey, 18 How. 331; Mechanics and Traders' Bank v. Debolt, 18 How. 381; Jefferson Branch Bank v. Skelly, 1 Black, 436. See also Hunsaker v. Wright, 30 Ill. 146; Spooner v. McConnell, 1 McLean, 347. The right of a State legislature to grant away the right of taxation, which is one of the essential attributes of sovereignty, has been strenuously denied. Debolt v. Ohio Life Ins. and Trust Co., 1 Ohio, N. S. 563; Mechanics and Traders' Bank v. Debolt, Ibid. 591; Brewster v. Hough, 10 N. H. 143; Mott v. Pennsylvania Railroad Co., 30 Penn. St. 9. And see Thorpe v. Rutland and B. Railroad Co., 27 Vt. 146. In Brick Presbyterian Church v. Mayor, &c. of New York, 5 Cow. 538, it was held that a municipal corporation had no power as a party to make a contract which should control or embarrass its discharge of legislative duties. In Coats v. Mayor, &c. of New York, 7 Cow. 585, it was decided that though a municipal corporation grant lands for cemetery purposes, and covenant for their quiet enjoyment, it will not thereby be estopped afterwards to forbid the use of the land, by by-law, for that purpose, when such use becomes or is likely to become a nuisance. See also, on the same subject, Morgan v. Smith, 4 Minn. 104; Hamrick v. Rouse, 17 Geo. 56, where it was held that the legislature could not bind its successors not to remove a county seat; Bass v. Fontleroy, 11 Texas, 698; Shaw v. Macon, 21 Geo. 280; Regents of University v. Williams, 9 G. & J. 390; Mott v. Pennsylvania Railroad Co., 30 Penn. St. 9. In Bank of Republic v. Hamilton, 21 Ill. 53, it was held that, in construing a statute, it will not be intended that the legislature designed to abandon its right as to taxation. This subject will be referred to again in the chapter on the Eminent Domain.

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