Fayette County herald. [volume] (Washington [Washington Court House], Fayette County, O. [Ohio]) 1860-1???, 1879-02-06
Local option.
co1uMBus, o Jan. 27th, 1879.

COLUMBUS, . Jan. 27ths 1873.
EDS. HERALD:
Dear Sirs-Permit me, through the coll
umns of your valuable paper, to say a
few words in regard to the question of
Local Option, as proposed by House bill
No. 619. l am pleased to know that
you approve of the main features of the
bill. You say, rightly, that under our
for the Legislature to do, is to restrict the
traffic. In my view, we cannot have
prohibition Hereunder, neither license.
But we can regulate the traffic therein.
Article 16, Sec. TO of the Constitution
gives authority TO s'provide against evils
resulting therefrom, . the 'therefrom' re-
fe-ing to the traffic in Intoxicating liq-
uors. Sec. 8 Of the Local Option bill
would regulate the sale thereof and avoid
the constitutional objection to prohibition
by excepting that the act shall not apply
to Intoxicating liquors, beer, ale or wine,
sold on the prescription of pracEicing
physician, for medicinal purposes.
would not be willing however, to af-
firm that the Legislature does not, under
the Constitution have authority to re-
strain and prohibit the sale of ale, beer
and wine Authority was given by legis-
lative enactment to city and village coun-
ellis, throughout the State, under Sec. 1913
of the Municipal Code to regulate, re-
strain and prohibit the keeping of ale,
beer and peter houses and shops, and
places of notorious and habitual resort
for tippiing and intemperance.'' Under
such authority was passed by many Of
the village councils throughout the State,
what was known as the McConnelsville
ordinance, by which the sale of ale, beer
and wine was,in fact, not only restrained,
but prohibited. This ordinance was up
held and sustained in the Supreme Court
of the State, in the case of Buckholter
against the Incorporated Village of Nc
Connelsville, in 20 o. S., p 308.
If the Legislature could delegate such
authority to village councils it can GER
tain1y exercise it itself.
In regard to any obstructions to the
proposed law being carried into effect, by
reason of the provisions of Art. ., Sec %,
of the Constitution, and which you quo
ted, and which will here quote; [ think
you are mistaken:
Sec. 26. All laws of general nature
shall have a uniform operation through
out the State; nor shall any act, except
such as relates to public schools, be pass
ed to take effect upon the approval of any
other authority than the General Assem-
bly,, except as otherwise provided in this
Constitution.
By the last section of the Local Option
bill it is proposed that it shall take effect
| from and after its passage. So with mosl
| of the statutes that are enacted.
You say you 'tknow not by what con-
struction of the above section of the Con-
stitution the Legislature has power to en-
act local option law; a law thai
would depend upon the subsequent vote
of majority of the legal voters within q
certain prescribed line for its vitality
therein
Let us see. It is discretionary power
graRted, or proposed to be granted by the
| bill, to the people of the township of the
State, to determine by the vote of the
electors of each township, whether or not
to call into operation the law by which
they may restrain the sale of intoxicat-
ing liquors, beer, ale and wine therein
except for medicinal purposes, upon the
prescription of practicing physician.
will now quote from decision made by
| the Supreme Court of the State of Ohio
| in the case of the Cincinnati, Whining
| ton and GAINESVILLE Railroad Company
against the Commissioners ofClinton Co.
reported in 1st o. S. Rep. PIP. ~ TO 105
| The decision was made on very impor-
tant question that arose in Clinton coun
ty. In 1851 an act was passed by the Leg
islature authorizing the Commissioner
of Clinton county to subscribe $4,000 t.
the railroad, and to issue bonds of th,
county therefor, which were to be paiG
by assessment on the property, both rea
and personal, in eleven ofthe townships
Two townships of the county were ex
cepted from the operation of the law
The act submitted the question of tn
subscription to the road, and the issuin;
of the bonds, to the electors of the clever
townships, for their approval or rejection
The vote was had and carried affrma
lively. The subscription of the $500, 90
was made, but afterward the Commis
siOners refused to issue the bonds, on de
mand of the officers of the road. sui
in mandamns was brought to conpe
them so to do. The question was raise
as to the eonstitutionality of the act, b
reason of the submission of the questio
of issuing the bonds to the people of til
townships.
The Supreme Court, in passing on th
act, made use of the following language
..But because such discretion is given al
Ithese and all similar enactments to /
deemed imperfect and migratory?
would take bold man to affirm it. /
what does this discretion consist? Ce
Itainly not in fixing the terms and cOnd
tions upon which the act may be pc
/ formed, or the obligations thereupon a
taching. These are all irrevocably pr
: scribed by the Legislature, and whenev
called into operation conclusively goVel
every step taken. The law, therefore,
perfect, final and decisive in all its part
and the discretion given only relates
its execution. 1t may be employed
;a not employed. If employed, it rul
Throughout; if not employed, it still !
mains the law, ready to be employ
whenever the preliminary condition
performed. The true distinction, thel
fore, is between the delegation of pow
to make the law, which necessarily
\ wolves discretion as to what it shall
and comforting an authority or discreet
as to its execution, to be exercised unt
and in pursuance of the law. The fl
cannot be done; to the latter no valid
lection can be made.''
This decision was made under the
constitution, the spirit of which in t
respect, however, was the same as
yroennt