Western sentinel. [volume] (Winston [i.e. Winston-Salem], N.C.) 1856-1886, 1881-06-16
THE PROHIBITION ACT.
Its Constitutionality.
JUDGE MERRIMoN's POSITION THEREON
CONSIDERED.
GoLDsBoRo, June 5, 1881.


Jfr. Editor = Judge Merrimo
in his recent letter on the consti
tulionality of the prohibitory leg
islatlon enacted at the last sessio
Of the Legislature, views it sinpl.
AS affected by the vote to be take
upon it in August next.
The argument he sets ont with
showing the great latitude permis
sible to legislative action had il
pursuance OF what are known a
the "police powers of the States,
is aside from the real question. l
is conceded on every hand that /;
State Legislature has the undoubtee
right to enact an absolute o
qualified prohibition of the sale O
manufacture Of spirituous, vinous
or malt liquors without hereby
coming in conflict with the Consti
tuition Of the United States. The
right has long been claimed, ascer
tanned, availed of and sustained by
decisions Of the Supreme Court OF
the United States. 1t now be
longs to the res aliudtcata, if q
layman may quote law Latin with
out committing sacrilege, and as
such throws no light upon the real
question at issue, which may be
simply stated thus:
Did the Legislature pass Pro-
hibition Act in harmony with the
provisions of the State Constitu-
ton and so constructed as to be
oper alive!
| am decidedly Of the opinion
that it did not. In examining the
case Judge Merrimon states his
premises in this wise:
"The sixth section of the act un~
der consideration provides that it
shall take effect on the first day OF
October, A. D., 1881, and that saf-
ter that day it shall haze ful! force
and effect The seventh section,
however, provides that if at an
election to be held on tie first
Monday ia August next, to take
the sense of the electors OF this
State upon the question of prohi-
bition,' a majority of the votes cast
shall be Against Prohibition,' then
and in that case the penal provis-
ions of the act shall not be opera
tive; that is, ir the language of the
act, then and in that case no per :
son shall be prosecuted or punished
for any violation of this act
'It will be observed that the
seventh section of the act does not
provide in the contingency provided
for that the act itself, as whole,
shall be imperative and void. j
certainly, in terms, only provides
that the penal provisions shall in
that event be imperative. In
other respects the act is to remain
in full force and effect"
Further on he makes this admis-
sion-I bring the para graphs to
gether to show his case more clear
ly.
cit may be conceded that the
Legislature cannot delegate legis
lative power to the electors of the
State, to the people generally, Oh
to any other body or organization
of men, to enact public laws, I'M
less in cases specially provided fol
in the constitution because the
constitution vests such powers OF
legislation in the Legislature. an6
no other body. The electors of the
State cannot be authorized anC
empowered to fix the purpose anc
devise and form the details of {
public statute"
He then claims that the snbnis-
sion OF the question to the peopl'
, in the manner set forth in the Bill
does not make it obnoxious to con
stitutional limitations, becaus
the act itself as whole" is no
Z to be passed upon at the polls bu
only the "penal provisions y
i In reviewing this position, til
= question first arises as to VIVA
t makes the law operative or "ir
:, operative" 1t IS clear that some
thing more than the mere enact
= nient of statute by competen
Legislative body IS necessary to vi
falize it. To make it operative,
must have the inherent capa
bility of berisg enforced, c
y must clearly and certainly con
nect itself with other laws that wi
lend it such force as it may lac
in this regard. II for any on
of many possible reasons its pre-
visions are impossible OF execntlo
: by the executive branch OF til
!. government, or impossible of vim
Z dication at the hands OF tile court
the law is clearly s'ineperative."
,r If the peuafprovisions of a la
II II declaring and defining a crime al
as ne for any cause rendered ssinopers
tive" then the law becomes ''ir
1s ls operative Blackstone lays PAL