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act is regarded as complete when it has passed through the constitutional formalities necessary to perfected legislation, notwithstanding its actually going into operation as law may depend upon its subsequent acceptance. We have elsewhere spoken of municipal corporations, and of the powers of legislation which may be and commonly are bestowed upon them, and the bestowal of which is not to be considered as trenching upon the maxim that legislative power is not to be delegated, since that maxim is to be understood in the light of the immemorial practice of this country and of England, which has always recognized the propriety of vesting in the municipal organizations certain powers of local regulation, in respect to which the parties immediately interested may fairly be supposed more competent to judge of their needs than any central authority. As municipal organizations are mere auxiliaries of the State government in the important business of municipal rule, the legislature may create them at will from its own views of propriety or necessity, and without consulting the parties interested; and it also possesses the like power to abolish them, without stopping to inquire what may be the desire of the corporators on that subject.1 .

Nevertheless, as the corporators have a special and peculiar interest in the terms and conditions of the charter, in the powers conferred and liabilities imposed, as well as in the general question whether they shall originally be or afterwards remain incorporated at all or not, and as the burdens of municipal government must rest upon their shoulders, and especially as by becoming incorporated they are held, in law, to contract to discharge the duties the charter imposes, it seems eminently proper that their voice should be heard on the question of their incorporation, and that their decision should be conclusive, unless, for strong reasons of state policy or local necessity, it should seem important to overrule the opinion of the local majority. The right to refer any legislation of this character to the people peculiarly interested does not seem to be questioned, and the reference is by no means unusual.2

1

City of Patterson v. Society, &c., 4 Zab. 385; Cheany v. Hooser, 9 B. Monr. 330; Berlin v. Gorham, 34 N. H. 266. See Ang. & Ames on Corp. § 31 and note. See also post, Chap. VIII.

2 Bull v. Read, 13 Grat. 78; Corning v. Greene, 23 Barb. 33; Morford v. Unger, 8 Iowa, 82; City of Patterson v. Society, &c., 4 Zab. 385; Commonwealth

For the like reasons the question whether a county or township shall be divided and a new one formed, or two townships or school districts formerly one be reunited,2 or a county seat located at a particular place, or after its location removed elsewhere,3 or the municipality contract particular debts, or engage in works of local improvement, is always a question which may with propriety be referred to the voters of the municipality for decision.

The question then arises, whether that which may be done in

v. Judges of Quarter Sessions, 8 Penn. St. 391; Commonwealth v. Painter, 10 Penn. St. 214; Call v. Chadbourne, 46 Me. 206; State v. Scott, 17 Mo. 521; Hobart v. Supervisors, &c., 17 Cal. 23; Bank of Chenango v. Brown, 26 N. Y. 467; Steward v. Jefferson, 3 Harr. 335; Burgess v. Pue, 2 Gill, 11.

1 State v. Reynolds, 5 Gilm. 1.

2 Commonwealth v. Judges, &c., 8 Penn. St. 391; Call v. Chadbourne, 46 Me. 206.

3 Commonwealth v. Painter, 10 Penn. St. 214.

Goddin v. Crump, 8 Leigh, 120; Bridgeport v. Housatonic Railroad Co., 15 Conn. 475; Thomas v. Leland, 24 Wend. 65; Clark v. Rochester, 24 Barb. 446; Benson v. Mayor, &c. of Albany, 24 Barb. 248; Corning v. Greene, 23 Barb. 33; Grant v. Courter, 24 Barb. 232; Starin v. Genoa, 29 Barb. 442, and 23 N. Y. 439; Bank of Rome v. Village of Rome, 18 N. Y. 38; Prettyman v. Supervisors, &c., 19 Ill. 406; Robertson v. Rochford, 21 Ill. 451; Johnson v. Stack, 24 Ill. 75; Perkins v. Perkins, Ibid. 208; Bushnell v. Beloit, 10 Wis. 195; Clark v. Janesville, Ibid. 136; Mayor of Wetumpka v. Winter, 29 Ala. 651; Patterson v. Yuba, 13 Cal. 175; Blanding v. Burr, Ibid. 343; Hobart v. Supervisors, &c., 17 Cal. 23; Dubuque County v. Railroad Co., 4 Greene (Iowa), 1; State v. Bissell, Ibid. 328; Clapp v. Cedar County, 5 Iowa, 15; Gaines v. Robb, 8 Iowa, 193; McMillen v. Boyles, 6 Iowa, 304; Taylor v. Newberne, 2 Jones, Eq. 141; Caidwell v. Justices of Burke, 4 Jones, Eq. 323; Louisville, &c. Railroad Co. v. Davidson, 1 Sneed, 637; Nichol v. Mayor of Nashville, 9 Humph. 252; Railroad Co. v. Commissioners of Clinton Co., 1 Ohio, N. S. 77; Trustees of Paris v. Cherry, 8 Ohio, N. S. 564; Cass v. Dillon, 2 Ohio, N. S. 607; State v. Commissioners of Clinton Co., 6 Ohio, N. S. 280; State v. Van Horne, 7 Ohio, N. S. 327; State v. Trustees of Union, 8 Ohio, N. S. 394; Trustees, &c. v. Shoemaker, 12 Ohio, N. S. 624; State v. Commissioners of Hancock, 12 Ohio, N. S. 596; Commonwealth v. McWilliams, 11 Penn. St. 61; Sharpless v. Mayor, &c., 21 Penn. St. 147; Moers v. Reading, Ibid. 188; Talbot v. Dent, 9 B. Monr. 526; Slack v. Railroad Co., 13 B. Monr. 1; City of St. Louis v. Alexander, 23 Mo. 483; City of Aurora v. West, 9 Ind. 74; Cotton v. Commissioners of Leon, 6 Flor. 610; Copes v. Charleston, 10 Rich. 491; Commissioners of Knox County v. Aspinwall, 21 How. 539, and 24 How. 326; Same v. Wallace, 21 How. 547; Zabriske v. Railroad Co., 23 How. 381; Amey v. Mayor, &c., 24 How. 365; Gelpecke v. Dubuque, 1 Wal. 175; Thompson v. Lee County, 3 Wal. 327; Rogers v. Burlington, Ibid. 654; Butler v. Dunham, 27 Ill. 474; Gibbons v. Mobile & Great Northern Railroad Co., 36 Ala. 410.

reference to any municipal organization within the State may not also be done in reference to the State at large? May not any law framed for the State at large be made conditional on its acceptance by the people at large, declared through the ballot-box? If it is not unconstitutional to delegate to a single locality the power to decide whether it will be governed by a particular charter, must it not quite as clearly be within the power of the legislature to refer to the people at large, from whom all power is derived, the decision upon any proposed statute affecting the whole State? And can that be called a delegation of power which consists only in the agent or trustee referring back to the principal the final decision in a case where the principal is the party concerned, and where perhaps there are questions of policy and propriety involved which no authority can decide so satisfactorily and so conclusively as the principal to whom they are referred.

If the decision of these questions is to depend upon the weight of judicial authority up to the present time, it must be held that there is no power to refer the adoption or rejection of a general law to the people of the State, any more than there is to refer it to any other authority. The prevailing doctrine in the courts appears to be, that, except in those cases where, by the constitution, the people have expressly reserved to themselves a power of decision, the function of legislation cannot be exercised by them, even to the extent of accepting or rejecting a law which has been framed for their consideration. "The exercise of this power by the people in other cases is not expressly and in terms prohibited by the constitution, but it is forbidden by necessary and unavoidable implication. The Senate and Assembly are the only bodies of men clothed with the power of general legislation. They possess the entire power, with the exception above stated. The people reserved no part of it to themselves [with that exception], and can therefore exercise it in no other case." It is therefore held that the legislature have no power to submit a proposed law to the people, nor have the people power to bind each other by acting upon it. They voluntarily surrendered that power when they adopted the constitution. The government of the State is democratic, but it is a representative democracy, and in passing general laws the people act only through their representatives in the legislature.1

1 Per Ruggles, Ch. J. in Barto v. Himrod, 8 N. Y. 489. It is worthy of con

Nor, it seems, can such legislation be sustained as legislation of a conditional character, whose force is to depend upon the happening of some future event, or upon some future change of circumstances. "The event or change of circumstances on which a law may be made to take effect must be such as, in the judgment of the legislature, affects the question of the expediency of the law; an event on which the expediency of the law in the opinion of the law-makers depends. On this question of expediency, the legislature must exercise its own judgment definitively and finally. When a law is made to take effect upon the happening of such an event, the legislature in effect declare the law inexpedient if the event should not happen, but expedient if it should happen. They appeal to no other man or men to judge for them in relation to its present or future expediency. They exercise that power themselves, and then perform the duty which the constitution imposes upon them." But it was held that in the case of the submission of a proposed free-school law to the people, no such event or change of circumstances affecting the expediency of the law was expected to happen. The wisdom or expediency of the School Act, abstractly considered, did not depend on the vote of the people. If it was unwise or inexpedient before that vote was taken, it was equally so afterwards. The event on which the act was to take effect was nothing else than the vote of the people on the identical question which the constitution makes it the duty of the legislature itself to decide. The legislature has no power to make a statute dependent on such a sideration, however, whether there is anything in the reference of a statute to the people for acceptance or rejection which is inconsistent with the representative system of government. To refer it to the people to frame and agree upon a statute for themselves would be equally impracticable and inconsistent with the representative system; but to take the opinion of the people upon a bill already framed by representatives and submitted to them, is not only practicable, but is in precise accordance with the mode in which the constitution of the State is adopted, and with the action which is taken in many other cases. The representative in these cases has fulfilled precisely those functions which the people as a democracy could not fulfil; and where the case has reached a stage when the body of the people can act without confusion, the representative has stepped aside to allow their opinion to be expressed. The legislature is not attempting in such a case to delegate its authority to a new agency, but the trustee, vested with a large discretionary authority, is taking the opinion of the principal upon the necessity, policy, or propriety of an act which is to govern the principal himself.

contingency, because it would be confiding to others that legislative discretion which they are bound to exercise themselves, and which they cannot delegate or commit to any other man or men to be exercised.1

1 Per Ruggles, Ch. J. in Barto v. Himrod, 8 N. Y. 490. And see Santo v. State, 2 Iowa, 165; State v. Beneke, 9 Iowa, 203; State v. Swisher, 17 Texas, 441; State v. Field, 17 Mo. 529; Bank of Chenango v. Brown, 26 N. Y. 470; People v. Stout, 23 Barb. 349. But upon this point there is great force in what is said by Redfield, Ch. J. in State v. Parker, 26 Vt. 357: "If the operation of a law may fairly be made to depend upon a future contingency, then, in my apprehension, it makes no essential difference what is the nature of the contingency, so it be an equal and fair one, a moral and legal one, not opposed to sound policy, and so far connected with the object and purpose of the statute as not to be a mere idle and arbitrary one. And to us the contingency, upon which the present statute was to be suspended until another legislature should meet and have opportunity of reconsidering it, was not only proper and legal, and just and moral, but highly commendable and creditable to the legislature who passed the statute; for at the very threshold of inquiry into the expediency of such a law lies the other and more important inquiry, Are the people prepared for such a law? Can it be successfully enforced? These questions being answered in the affirmative, he must be a bold man who would even vote against the law; and something more must he be who would, after it had been passed with that assurance, be willing to embarrass its operation or rejoice at its defeat.

"After a full examination of the arguments by which it is attempted to be sustained that statutes made dependent upon such contingencies are not valid laws, and a good deal of study and reflection, and I must declare that I am fully convinced — although at first, without much examination, somewhat inclined to the same opinion that the opinion is the result of false analogies, and so founded upon a latent fallacy. It seems to me that the distinction attempted between the contingency of a popular vote and other future contingencies is without all just foundation in sound policy or sound reasoning, and that it has too often been made more from necessity than choice, rather to escape from an overwhelming analogy than from any obvious difference in principle in the two classes of cases; for . . . . one may find any number of cases in the legislation of Congress, where statutes have been made dependent upon the shifting character of the revenue laws, or the navigation laws, or commercial rules, edicts, or restrictions of other countries. In some, perhaps, these laws are made by representative bodies, or, it may be, by the people of these states, and in others by the lords of the treasury, or the boards of trade, or by the proclamation of the sovereign; and in all these cases no question can be made of the perfect legality of our acts of Congress being made dependent upon such contingencies. It is, in fact, the only possible mode of meeting them, unless Congress is kept constantly in session. The same is true of acts of Congress by which power is vested in the President to levy troops or draw money from the public treasury, upon the contingency of a declaration or an act of war committed by some foreign state, empire, kingdom, prince, or potentate. If these illustrations are not sufficient to show the fallacy of the

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