Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1875-02-23

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alive vote Of the people, It can legislate
upon any question in the same way. If it
can make the privilege Of tippling depend
ent on vote Of the people in any locality,
they can also make the privilege of mer-
chandizing, in all It's varied and necessary
departments, dependent upon the same
condition. Our whole Criminal Code
could be subjected to the same tests.
| Whether courts should be held in any
! specified locality, or held at all, might be
made dependent upon tie same condition.
] If the General Assembly can declare that
/ the right to exercise one privilege in any
! locality, shall be dependent upon popular
yote, it can certainly apply the same test 10
| all. Pursuits absolutely necessary to the
health and happiness Of a community are
/ declared privileges by our code Of laws.
Suppose the General Assembly should de-
! clare that the privilege Of selling drugs and
! medicine should be exercised only upon a
/ permissive vote Of the people and should
/ prescribe a day, year hence, as the time
| for holding the election, will any one say
/ such a law would be justified by the spirit
! Of our Constitution? Certainly not; and
although the subject Of the two laws are
very different in their relations to society,
yet, where is the difference in principle?
They are both privileges and alike subject
to the regulations CT law. The question OF
q delegation Of power by the Gene.al As
sembly has but seldom come before cur
courts. In 81 Sneed 64j, it is said (Mc-
Kinney Judge: ''Ibe delegation of sOver-
eign power, is in itself, an act Of sovereign
ty, and can only be made by the cOnstltu-
ent body, in whom the original power re-
sides or 10y its express authority"
Again, in speaking Of the powers Of the
General Assembly, The learned Judge says:
"lc- the Constitution has prescribed Ger
tain bounds which it Che Legislature) can
not transcend, and beyond these limits its
acts are void. The Idea Of 2 transfer or
delegation thereof TCieTUug to legislative
p0Wers) b ing in direct opposition to the
design and ends Of its creation IN that
case the court held that the General As
sembly could not delegate the power con-
feTTed by the Constitution Of 1884, to grant
charters to interpretations, to the courts.
Before the adoption of the Constitution
Of 1884, it was held in EnlOe vs.. Mari,
Terger. 453, that the General Assembly
could Let authorize a county to levy a tax,
npf could it delegate the power Of taxation;
aud it las since been held that the right to
empower county or corporation to levy a
tax exists only in direct authority Of the
Constitution.
But we have aGiud.CatiOns Of other States
where statutes similar to this bill, have
been suijeC.ed to judicial tests. In Penn
SylvaHia, an act with essentially the same
provisions was tested before the Supreme
Court in the case Of Parker Us. Common
wealth, 9Th Pennsylvania State Reports,
l. a
tioGal and void. The court say:
"From this summary of its features, it
viii be be perceived, this act Of the Gener-
al Assembly, whether considered as an en-
actInenJ Of new and substantial provisions
or as a statute Of repeal abrogating exist
ing laws, depends for its validity and bind
ing force, with the several counties named
IN it, upon the popular vote Of designated
districts. Without this afhTmatively eX-
pressed it IS inert. Possessing 10 innate
force, It remains dead letter until breathed
upon by the people and called into activity
by an eXeTtion Of their voice in their pri-
mary assemblies. Until then it prohibits
no act, creates no Ofense, points out no
mode of trial, fixes 10 penalty, and when so
hidden into life its existence, as a rule Of
action, is limited to the brief period Of a
single year, unless new energy be again in
fused through the medium Of the ballot
box. If a majority within the particular
district should vote negatively upon the
question yearly to be submitted to the
people, the act, as a statute, has no exist |
ence. 1t is not to be deemed law in
the district where such a vote is cast. |
If a majority Of the votes be cast in |
the affirmative, then this act is to take ef- |
ga F-H 'f-1rf ysrrF.
and repeating the old. IL operates not |
prOyriU rig0rC, but, if at all, only by virtue /
OF "a mandate. expressed subsequently, 10 its |
enactment, in pursuance of an invitation |
given by the legislative bodies. IS it lef. |
the halls Of legislation it was imperfect |
and unfinished, for it lacked the qualities |
of command and prohibition absolutely |
necessary TO every law. We have seen |
there can be no such thing as a law unless /
it he mandatory a. d obligatory upon those /
who are to be the subjects of il, by a decla- /
ration Of the legislative viii. From whence /
does the act Of 1916 derive this mandatory
and obligatory character? Not from the 4
Legislature. for in the day of its enactment |
il possessed it not. If il has that charac-
ter at all, il mus, have been conferred by a
fiat of portion Of the people, expressed |
through their votes. But the popular decree /
can only have worked this effect, because
the citizens voting, were in some way
clothed with the power Of ordinary leciSla-
ton. Now it CannG5 be pretended they |
possess this power unless they drew It from
the invitation 10 declare their will by an /
exercise Of the elective franchise. IF so,
what IS this other than a delegation Of the
Legislature franchise by an act Of the Gen
eral Assembly? But as has been shown,
this body was altogether incompetent to
make such q transfer" Again, page $50: |
ut is insisted, however, that the legislator
when contemplating important changes in
the existing law, has not only right to
consult the opinions and wishes If his con-
stituents. but ought to DO so, inasmuch as
in a country Of free institutions. the only
security for the stability Of the law is that
IL rests IN the appreciation Of those who are
the subjects Of il. This is not denied, and
in truth, in the practical working Of our
system such is always the case. But the
public opinion, when asceTtalned, must be
adopted by tie Legislature inthe form Of a
statute before it can have the force Of
law: for, repeat, to give to legislative ac-
tion this effect it must Re by an expression
o. the legislative viii alone.
In Rogers Va. Rice. 4th Harringt0n's Del
aware Reports, page 40, a statute contain
ing the same provisions as this bill was de-
clared 10 be unconstitutional. The Opin-
ion Of the Chief Justice Is Charact cried by
great ability, and his reasoning is iTesisui-
ble and unanswerable. The Court say: IS
Tag when passed by the Legislature is
complete, positive and absolute law in it.
self. deriving its authority from the Legis-
lafure. and not depending ior the enact
Uient Of its provisions upon any other tOGg,
;-;j3.uaI or persons ''But the Legisla-
flre is invested with no power TO pass an
art which is not a law in itself, when
Dassed. and has no force or authority as
sucI. and is nos TO become or be a law un-
I'll IL shall have been created or established,
bv the ,riH or act Of some other person or ;