The intelligencer. [volume] (Lexington, Mo.) 1887-1891, 1888-01-28

liquors Is tHt pODuIHf VOl9
il taken, and its effect declared"
The case of State &C REL VS.. Court
Common Pleas (36 N. j Law, 72l
is cited as announcing different ruls
than that announced in the State of
Delaware. The act which came under
review ia that case by ITS express terms
| 'ook effect immediately and repealed
all inconsistent acts. IL also forbade
the selling without license of malt,
vinous and spirituous liquors in less
quantity, etc, in the township of
Chatham, declaring that any ono who
should sell without license should be
deemed guilty OF u miSdemeanor and
punishable by fine, etc. Ii also
contained sections which allowed the
voters of that township TO determine
| by ballots, marked "license" or ono
| license" whether liCcuse should be
granted. The vote taken was against
| license, and Sanford, having presented
Il proper petition under the old law,
and been denied license, applied for a
mandamus to compel the issuance of
II license. Upon this state of facts,
Van SvCkol, j :, delivered the opinion |
of the court, holding the law valid.
|
can have no sanction if it is a delega-
ton OF the law making power to the |
people of the township.
If the right TO declare what the law |
shall be in one case may be referred to
the people, the right TO do so may be
given in all cases; and thus the legisla-
lure may divest itself wholly of the
power lodged in il by the fundamental
| l.I hNS ni al /
shall be resumed. Ii is also obvious
that ii is not competent to delegate to
the people the right to say whether All
existing law shall be repealed or its
Operation suspended. To say that
what is now the law shall not here.
after, or shall not tor Il specified time,
he the law, is in effect To declare the
law to be otherwise than it now is, and
is IL clear exercise OF the lawmaking
power. The will of the Legislature
must be expressed in the form of n
law by their own act. Ii Il is left to
the contingency OF u popular vote to
pronounce whether it shall take effect,
il is not the will of the law makers but
The voice of their constituents, which
moulds the rule of action. If the vote
is affirmative, it is law; if in the mega
tive, il is not law. Tho vote makes or
defeats the law, and thus the people
are permitted unlswfully TO resume the
right ot which they have divested
) themselves by II written constitution,
TO declare by their own direct action
n what shall be law. The cases upon
this subject, so far as they assert the
n principles above stated, have my entire
concurrence. Parker vs.. Common
wealth, 6 Barr, j07; Rice VS. Foster,
n 1 Harrington, 40; Maize vs.. State, 4
Ind 3l2; State VS.. Parker, 26 VT,
II S57; Santo vs.. Stale, , Iowa, 1863 !;
Paterson VS.. Society etc 4 Zab 335)"
The test will be whether this enact
ment, when it passed from the hands
q of the law -giver, had taken the form
II OF a complete law 1t denouuces ~ a
misdemeanor the selling of liquor
without license. So far il is positive
and free from any contingency.
II lett to the popular vote to deter
II mine, not whether il should be lawful
- to sell without license, but whether the
- contingency should arise under which
! license might bc granted
The leading cases of Rice vs.. Foster,
and Parker W. Commonwealth, are
Is distinguishablc in principle from this
n In these cases the prohibition and
penalty Vere not denounced by The
taU Itself. but by tie pOpHiar UOte. The
selling Of liquor tOaS not pronounced "
be unlawtHI; IL ,cds referred to III.
people 10 determine Whetter u should 6t
~ restrained
Of So in the law proposed to bo passed
ut the last session of our Legislature
=, ''the offense defined by the act could
:, not he committed uncss the voters oi
the town determined that licenses
T" should not be granted" But if thi.
is construed AS an act authorizing the
township, by majority vote, to pro
hibit the retail traffic in liquors. it may
still be supported.
The right Of the legislature TO grant
the power of local government Il
municipalities is conceded, and il il
immaterlal whether the enactment con
ferring il is regarded as II declaration
OF the supreme legislative will, anC
strictly law, or merely as conCe ssiol
OF grant by the Legislature, MS ths
representative of the sovereignty o.
the people. Ii will thus be seen tina
this case asserts nothing TO the contrary
OF other cases heretofore cited, and
barring constitutional objections as Il
special or local laws, and as to regu
lating the affairs of counties, cities
etc and of changing the charters o
cities, | have 40 doubt that Il valiC
local option law applying to the town
Of Trenton could have been passed u
limited in the sphere of its operation
as the one mentioned in New Jersey
and for precisely the same reasons. l.
M the authority OF cities TO pass or di
nance and laws is not, under the rules
D9 laid down in State vs.. Field, SHpfG, {
No delegation of Legislative power, thei
w neither are further legislative enact
Al ments Of like Tenor and effect. SiInilal
views of the unConSti'utiOHality of sucl
laws are well expressed in Maize VS.
w State, Ind, 342, Biacktord, d., being
he on the bench. This case was substan
TALLY followed in Mesheimer VS.. State
IL Ind, 4S2, to the extent of holding
g such laws unconstitutional; and Ric'
vs. Foster, Barto VS.. Himrod, ant
Parker VS.. Com. supra, were approx
in2ly cited. The case of Gedesche va
State, AZ Ind, j41, does not Overrul,
any former decision The statute il
in that case was essentially different from
- anV former one on the subject. IL wa,
- perfect and complete. IL denounced ,
ID penalty against selling liquor withoH
le license, and then provided how licenst
~ might be obtained, which might h'
al done by majDrily OF the legal voter
% signing petition to the effect, etc.
er thus resembling very closely the New
E, Jerse, statute and our own "DOwnins
10 Law" Such laws a. depend for iheil
ct efficacy on the ma jurity vote have aIsC
J. been held invalid Ia Iowa. (Samio VS.
L State, 2 Iowa, lGj; Gcclich VS. State
J. 5 H., 49i, State vs. Bricke, j IT,, BOB.
" Ia State vs. Weir, 33 H., l34, the sam,
OF point came up again for discussion
ni and Day, &. =, in delivering the opin
yc ion of tho Court said
at The act of 1870 makes it unlaw tu
q. to sell ale, wine, malt liquors, or beer
T. except as provided in chapter 81 of thu
Or revision Of 1860 and establishes TIN
4. same penalties and mode Of procedur,
ne for its violation as are provided in sal,
l. chaptcr 81 OF the revision for tue Un
) lawful sale oi intoEicaiin. liquors
ri Section \ of this aC' provides tor tn
ih submission, ri Il general election, t
OF the legal voters OF county, the quea
tinn ut the adoption of the provision
er of the act, and enarte that II ma alorit
W OF all the votes cast at such election il
re said county be 'ior prohibition then
ct ant not OtherWiSe, shall the provision
)n of this net be i'll full force in SAT-
nj county from and after the first Munda
L. i'll January next following such elec
d. tiou 'And il majority q