The Hillsdale standard. [volume] (Hillsdale, Mich.) 1851-1909, 1854-05-02

ernmrnt secures deli Grafton and responsible
~ In legislation: and affords protection against
the .lespotism of official rulers on the one hand,
and of irresponsible numerical ma lorities on
the other. IL has been appropriately termed
the ''hnwcr of modern civilization"
But If The legislature may transfer this pow
or and this responsibility to the people. where
are tho checks which the constitution intended
to provide for hasty aud pconsderate pgisla-
tioni Where the securities against arbitrary
and irresponsible power? We may he subicc-
ted to tho dominion of the popular majority OF
the hour--a majority whose opinion must be
formed without Legislative discussion or DELHI
eration--a majority responsible to no one. be-
cause it has no superior--impa'i of re-
straint because conscious f its strength. and
APT TO think itself inIallible: and against q hose
resisiess will, TINS exercised on matters ut To-
CATION. with an elective judiciary. all the re-
strainis which tho constitution has imposed
upon legislative power will in the end prove
utterly navnlling.
In short, ii this power NAV he delegated Ia
the people, then bv the action If one of its de-
partments this representative government may
be transformed into collective democracy
tho only such democracy practicable where
tho people are to numerous to assemble en-
masse--namelv. democracy in which Sc
lcct body propose The laws and the people
adopt or reject them No such revolution
can be effected in the nature of this govern
men, wiihunt either a change or violation oi
the constitution.
The legislature. then, cannot delcraio pow
er If legislation 10 reference TO general laws
On this point it is believed that the members
of this Court are all agreed. We are not
ware that any jnrs' in this country has ever
Expressed different opinion.
Nohody makes question that tho act oi
February H. 1853, is general law.
If so. il is clear that ii is not now the law OF
this State. nnlcss made so by the legislature
in whom The power of legislation in reference
to general laws is exclusively sted.
We are of the opinion that although it may
bo n valid act 10 take effect in 1870. the legis-
lature have never yet put il in force: aud that
sections lS. 10 and 20. and tho vote under
them, are void. because an attempted delega-
ton to and exercise of Legislative power BY
the people in violation of The constitution.
As one half the members of this court do
not concur in this opinion. We must be par
doned il, in order to make our views more
clearly understood. we recur to principles and
definitions somewhat elementary in their ma
ture.
All power proceeds from. and its exercise
implies. the exeriion of Intelligent iDM. lis
different kinds are distinguished bv the nature
of the end which this will is exered to accom-
plish aud of the discretion which It's exertion
implies Legislative power is the power Of
prescribing rules of civil conduct. or in other
words. of enac'ing laws. It's possession impo-
ses the duty of judging what laws arc expedi-
ent and what are inexpedient It's exercise
consists in The expression of will, as to what
laws shall he in force founded upon this fact.
"A statute" saws Chancellor Kent, sis the ex.
press written will oft Legislature. rendered
authenric by certain prescribed forms and so-
IDENTITIES. I'll Kent Com. 447 Its enact
men, always implies III judgment of the Leg
isla' urr that it is expcdient.
There certainly can be no statute Law which
is rot The will of the law makers implying this
judgement as 10 its cxpediencv AID every
expression of this will implying this Judgment,
which is the proximate cause If an obligatory
rule of civil conduct, is clearly an exercise of
egis ative power
Now. when the legislature make the taking
effect of an act depend up"n rh' approval or
disapproval ofothers. what is the nature and
effect of their action? They do not them.
selves will that the act shall become a law hut
merely that it shall be referred ro The will of
others 20 determine whether il shall become a
law or not. Their action does not implv their
iudgmen, that the law would he exncdie 4. hut
merely that il is expedent To refer the ones
tion of the exnediency of the law to tho judg-
ncnt of others. They d. not therefore. cxcr-
else the power and the discretion necessary to
enact The law or. in other words, Ia make il an
operative rule of conduct. but they confer up.
on others iden icslly The same power. and i'm
pose the duty of exercising the same discretion.
which they themselves would have exercised if
they had enacted il They merely propose u
law to be adopted or rejected by others.
This seems TO us most clearly delegation
Of Legislative power.
Probably no doubts would have over arisen
On this subject were !, rot for the indirect man
ner in which the delegation is made Bat
there is obviously no diff,rcnce in principle
between naking the taking effect ofnn act de-
pc d upon the approval or disapprovAl of nth
crs ard comforting. in express terms. the pow
er of lcgislaiina on the same subject. The
only difference there can be is in the extent.
noi in the nature of the. power deeraied-
Tins. if the legislature should pass an act pre-
scribing the manner in which tho streets at
Detroit should be paved.and make its tnkng ef
feet depend upon the approval or disapprocal of
tho Common Council. this mode of lepsl tion
would confer upon tho Common Council power
of the same nfiure as that which would be
scribe the mode of having streets. The only
difference in The two cases is that in the for
mer the power OF the Common Council is Inn
tied to tho adoption or rejection Of a law pro-
posed 10 ,hem--in tho latter they are at liberty
to adopt whatever law they chnose on the same
subject. Again: by the COMMON law. which
prevails in most Of the Statos. tho owner of
cattle running mt large is liable for anv damage
they may occasion to others But il is some
times expedient that different rule should
prevail in particular townships. owing to Pc
cnliar circumstances. Suppose this beiny the
general law. the legislature should pass an act
declaring that cattle nigh run at large. in
particular township without such liability of
the owners, to take effect on vote of The poo
plo ofthe township in ts favor. Such law
would confer upon the people substantially
the same power as law authorizing them to
enact hy-law 10 tho same effect And most
clearly the latter would delegate power of To-
cal legislation.
Legislative power may be conferred upon
small bodies like the Common Council of a ctv.
or the neoplo Of a township, in either of the
modes refarred IN. hut IN is ohvious that tho