The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1896-11-26


on q particular subject, 1t may by general
law limit that power by prescribing the pro
Visions which the bylaws shall contain and
leaving to the local body merely the power
10 accept or reject the bylaw. Then, wheth-
er or not 1t is constitutional to delegate by
local option law the power to adopt or re-
3ect prescribed charter, charter pro-
vision, 1t Is clearly constitutional to delegate
In this manner the power to adopt or reject
prescribed bylaw or ordinance.
1t Is well-established principle that the
constitution will be Interpreted with refer
ence to the laws and customs prevailing at
the time OF its adoption, and the distinction
between what Is delegation of power to
ADOPT charter or charter provisions, and
bylaw or ordinance, must be determined
largely Dy ascertaining what had usually
been the custom IN this state up to and at
tne time this constitutional amendment was
ADOPTED. Undoubtedly the line of this dis
inction Is somewhat il1-defined. But If
there Is doubt as to the constitutionalfty Of
a law that doubt must be resolved in favor
OF It's constitutionality. Therefore if by
reference to the practice heretofore prevail
ing, 1t is doubtful whether the delegation of
power Is one to adopt charter provisions, or
one to adopt mere bylaws or ordinances, that
oouDt must be resolved In favor of holding
the law delegEting such power constitutional.
There is another distinction to be censid-
cred and that Is the distinction between what
:! tne legislature can practically do and what
IL can not. The main reason for the exist
ence or ordinances has always been that
they regulated local subjects and matters
OF detail which the legislature could not d.
rectly or properly regulate by the passage
OF permanent laws, either general or special
This old principle must be applied to new
instances, which will continually arise under
the constitutional amendments prohibiting
special legislation. The regulation of such
matters may always be delegated in general
terms to local bodies and It necessarily fol-
lows that more limited powers may be thus
delegated by the passage of local option laws
for the regulation OF these matters These
are distinctions which have sometimes been
overlooked In the decisions Of those states
having similar constitutional provisions. Let
US notice some of these provisions and the
decisions under them
The constitution OF New Jersey provides
that the legislature shall not pass private,
local or special laws regulating the internal
affairs Of towns (held to include eities) and
counties" It Is held by the courts of that
state that those restrictions were not in
tended to secure uniformity in the operation
general in form, giving to the municipalities
the right to accept OF reject the provisions
OF the law, are constitutional. Paul vs..
81 ID sse Co. 50 N IL 1 sS
The constitution OF Pennsylvania provides
that the general assembly shall not pass
any local or special laws regulating the at
fairs Of counties, cities or townships" Under
this provision 1t is held unconstitutional to
delegate to municipalities the right to ac-
cept or reject such local option law. Scran-
ton school district appeal. 113 Pa. st. 176.
Frost VS.: Cherry, 122. Id, Alt. Com. VS..
Bensworth, 145, Id. 172.
Neither the constitution of Pennsylvania
or New Jersey expressly require that the
out the state, but the Pennsylvania court re-
CARDS the prohibition of special legislation as
equivalent to requirement of uniformity
while the New Jersey court does not.
The constitution of Florida provides: 'The
legislature shall nat pass local OF special laws
tn any Of the following cases I" regu-
latfng county, town and municipal business
regulating the election of county, township
In all cases enumerated In the preceding
section. and In all other cases where gen
eral law can be made applicable, all laws
shall be general and of uniform operation
throughout the state
1.-THE legislature shall establish a uniform
system of county, town and municipal gov
ernment''
Under these provisions the supreme court
of that state has held repeatedly that gen.
eral local option law for the organization OF
cities is not a law Of uniform operation
throughout the state, and therefore not con-
stitutional.
McConihe VS.. State, II Fla. 2SS. State VS.
Stark, Is Fla. 255. Elk parte, Wells, Il Fla
$780,
In Maize vs. the State, 5 Ind, 342, It was
held that by reason Of such constitutional
provisions a local option law which by It's
terms went into effect and prohibited the sale
of intoxicating liquors in such townships as
adopted it is unconstitutional. The decision
was approved in Lafayette, etc., r. Co. VS..
Geiger, "a Ind, 226-70. The supreme court of
Iowa held likewise under their constitutional
prohibition In State VS.. Gebrick To-, 492.
In Dahlby vs. Wolf, IA To-, 238, the eouri
sustained law authorizing the people of the
several counties to decide by majority vote
to restrain hogs and sheep from running al
large. The court distinguished the case from
that in 10. on the ground that 'they THE
voters) only determine whether a certain
thing shall be done under the law and not
whether the law shall take effect as was
provided by the law held invalid in 10. From
what has been said 1t will appear that there
is but little in the distinction. The position
of the Indiana and Iowa courts that law
which can only take effect in each munich
pality on being adopted by the same con-
travenes these constitutional provisions, is in
our opinion undoubtedly correct when applied
to a proper matter, but we are of the opinion
that the prohibition of licensing of the sale
of intoxicating liquors Is not such matter.
These constitutional provisions do not re-
Quire the legislature to do what Is imprac-
ticable, what they have never been able to
do. to effectively regulate the liquor traffic
without regard to locality or local sentiment.
Experience has demonstrated that prohibition
can only be enforced where there is a strong
public sentiment behind it, and there is a
great difference between the amount of this
sentiment in different localities in the same
state. Again, this sentiment changes from
time to time in the same locality. Then the
legislature has the right to say that the
question of license or prohibition In each To-
cality Is not matter for them to decide or
a matter to be settled by any statute fixing
absolutely or permanently the status in this
respect of the whole state or of the different
localities. In the case of Frost VS.. Cherry
122 Pa, ST., AT, the court held local option
fence law to take effect in each county when
adopted by the voters of that county uncon-
stitutional as special legislation. 1t seems to
us that the same reason OF impracticability
applies to a fence law as to license or pro-
hibition law. 1t is oftenR1tterly impractieable
for the legislature to enact an expedient I'M
oa6f Inv T1nA
should be fenced or the stock allowed to run
at large in any particular locality depends
wholly on the very complex local conditions,
which determine what Is for the best inter-
ests of the majority of the people of the To-
cality. and is a question which each locality
should usually be allowed to settle for itself
The distinction as between what is properly
legislation and what is properly or necessar-
lily a local bylaw. That is not delegation
of legislative power to grant to some desig-
mated body, powers which the legislature can
not themselves practically or efficiently ex-
ercise themselves, is laid down in State VS..
Ry. Co., IS Mimi, 298-301, and in Anderson
VS.. Manchester Fire ms. Co., SO Mimi. 1915.
This distinction between what the legislature
can do and what they can not, exists in the
nature OF things, and has not been eradicated
by the constitutional provisions prohibiting
special legislation and requiring legislation
of uniform operation. 1t seems to us that
several of the courts above mentioned have
been misled by ignoring this, and failing to
consider that legislation containing a local
grant Of power to each local body to ADOPT or
reject a prescribed bylaw, and that by pre-
scribing the contents OF the bylaws the legis-
lature had really granted less powers to
each local body than If they had granted the
power to pass any local bylaw the local
body saw fit concerning the particular sub
5ect matter.
Let US now proceed to apply these principles
to the case at bar. The most of the powers
provided by Chapter 288, 1895, are distinct
lively charter powers. That is they pertain
to matters which are almost invariably reg
ulated by city charters and not by the by
laws passed under such charters. Then the
legislature can not do indirectly what they
can not do directly. and this act is not con-
rSifr Lex fl A