The clarion. [volume] (Jackson, Miss.) 1883-1888, 1886-11-10

The following is the opinion Of the
Supreme Court, delivered in the case Of
J. N. Schulherr V. r. " Bordeaux,
Sheriff of Lauderdale county, which was
a proceeding by Mandamus at the in
stance of schulherr to compel the sheriff
to sell him gallon license, after the
election had been held, and majority
Of the vote cast were against the sale:"
CAMPBELL, J., delivered the opinion Of /
the Court.
II "An act for preventing the evils Of |
intemperance by local option etc, /
approved March II, 1856, is not q law, /
the mandamus should be awarded. Ii
valid, but there are certain Objectionable
/ provisions not involving the whole act, /
| the mandamus was properly denied.
/ The act is assaulted BY argument in
this case on five grounds, only two Of
which gotot the entire act, and these only
need be disposed of now, for they are
decisive Of this case. They are; 1. That
the act violates sec. 80, Art. * Of the
Constitution of this State, which pro
vides, "Ihe Legislature shall provide oy
law for determining contested cleo
| tons, because no provision exists for
cOAtesting the elections contemplated by
this act. ,. The act j. not a declaration
Of the viii Of the Legislature, (which is
the sole repository Of legislative power,
but delegation Of its authority TO the
voters.
Upon the first it may perhaps be said
2 that the elections for determining CON
tests about which the Constitution de-
clares the Legislature shall provide, are
elections contemplated and provided for
q by the Constitution, but il all elections
D are held % be embraced in the direction
70 the Legislature, and il is its duty 10
provide for cOntesting all elections, and
. the constitutional requirement be man
i dafOry, it does not follow that all cleo.
tions are to fail and be held nugatory
ID because of the failure Of the Legislature
to make provision for contesting them.
We are not willing to concede the power
Of ore of the departments Of the STATE
Government to wreck and destroy it By
non action. Suppose the Legislature
had failed to provide by law for con
testing any would any con
tend that the elections failed of thei
o. effect, and the popular will should bt
q defeated, either by leaving Offices vacan
or by continuing the incumbents il
Office until the constitutional require
." ment should be obeyed? This would
%. involve consequences not to be tolerated
10 and is suggestive Of the unsoundness o
7 any view which makes them possible
Z We reject any such view and nold tina
the provision Of the Constitution unde
4 consideration, ike many others in it, i
u addressed to the Legislature and manda
4 tory upon it, but that it ends with tina
s department; and the courts should no
= annul acts of the Legislature on tn
: subject Of elections, because of its fail
, ure to observe the requirement addresse,
4 to it as TO providing for contesting cleo
u tions.
10 On the question of the right to max
an act Of the Legislature to depend 70
- its operation on a future contingency
/ argument was exhausted long ago, an
3 the principle established by oft-repeatet
. examples and by adjudications in thi
> State and elsewhere in great number;
that this may be done without violatiq
- the Constitution. It is idle to talk o
~ precedent and subsequent cOntingencie
or conditions, between defeating til
" operation OF an act or puttingit in opera
ton, There is no such distinction /
is merely fanciful and deceptive. It
for the Legislature in its discretion t
- prescribe the future contingency and
is not an objection on Constitutions
"a grounds that popular vote is made tn
lie contingency. The Legislature has plenar
Is power over the matter of licensing 0
n not licensing the traffic in liquors an
may, in its discretion, fix the terms o
10 which a license may be granted
q may make it depend ON the petition o
lie freeholders, householders, heads c
A families, voters, women, widows, wiye;
mothers or maidens, or what it please,
~ We know no limit to its discretion as t
OF this
is The purpose and scope Of the act is t
ST take the popular sense whether or nc
- the traffic shall be licensed by countie
80 and by vote, instead of by Supervisor
IN districts and towns and by petition, q
IS before; and the act contains provision
n for these new conditions OF obtainin
licenses or denying them. The La
existing before and this act, togethe
evince the will of the Legislature to b
that the sale of liquors shall be pre-
&c hibited or permitted, and licenses gran
ne ed, if at all, as the voters of a count
pr may decide at an election to be held fo
the purpose if applied for, and If II
- election is held, the matter is to renal
r as before.
IN The act is a valid law and must b
upheld as such.