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(What questions may be submitted to a popular vote.) tional exercise of the legislative power; by a law passed by the senate and house of representatives in general assembly met. No such law has been, or was intended to be passed by the legislature; they purposely avoided it. They merely left the subject to the people of each county, to decide by ballot, whether the license laws should be repealed or not, within such a county; and until such decision should be made by a majority of the legal voters, the laws were to remain in full force. The people of each county were to act on the subject, and not the legislature; the license laws were to be repealed in a county, not by the will of the legislature, but by the will of a majority of the citizens who voted in such county, although it might be against the will of a majority of the citizens of the state; by the exercise of legislative power by the people of a county, which could not be done by the people of the state; by a law (falsely so called) enacted and passed through the medium of ballot-boxes, and not a law enacted by the senate and house of representatives of the State of Delaware in general assembly. The design and true character of the act of the 19th of February last, are, to confer the functions of the legislature of the state upon the people of a county; to give them the means of exercising legislative power, by authorizing them to decide by their votes, whether the retailing of intoxicating liquors should thereafter be lawful in their county.
A law when passed by the legislature, is a complete, positive and absolute law in itself, deriving its authority from the legislature; and not depending for the enactment of its provisions, upon any other tribunal, body or persons. It may be limited to expire at a certain period; or not to go into operation until a future time, or the happening of a contingency, or some future event; or until some condition be performed. Of this description are many of the laws of the general government respecting duties and imposts; and laws of our own state respecting private corporations; which latter are not to operate until some con
(What questions may be submitted to a popular vote.) dition be performed, or the assent of the corporators be given; because a private incorporation is a contract between the state and the corporators, and therefore, the legislature cannot compel persons to become an incorporated body; or, against their consent, impair, alter or repeal the rights and privileges conferred by the charter. All such laws are complete and positive in themselves, when they pass from the hands of the legislature, and are not to become laws by the creative power of other persons. But the legislature are invested with no power to pass an act, which is not a law in itself when passed, and has no force or authority as such, and is not to become or be a law, until it shall have been created and established by the will and act of some other persons or body, by whose will also existing laws are to be repealed, or altered and supplied. The act of the 19th of February 1847, is of this character; in a legal sense, it is not a law; it is not complete and positive in itself; it is not a rule prescribed by the supreme power of the state to its citizens, enforcing some duty or prohibiting some act; but was to become a rule only when enacted or sanctioned by the popular vote of a county; and then to be a rule prescribed, not by the constitutional legislative power of the state, but by the power of the majority in a county over the minority. Excepting the 5th section, the act of February last, in effect, is in the nature of a bill prepared and presented by the legislature of the state to the people of each county to be enacted or rejected by them. It contains, in substance, three propositions:
1. That the court of general sessions of the peace and gaol delivery shall not recommend any person or persons for licenses to sell intoxicating liquors; that the retailing of them shall be prohibited as a nuisance, except when sold for medicinal or sacramental purposes, or to be used in the arts.
2. That it shall be the duty of the same court to license a competent number of persons to keep temperance houses,
(What questions may be submitted to a popular vote.) without the sale of intoxicating liquors; and a sufficient number of storekeepers, physicians and apothecaries to sell spirituous and vinous liquors for medicinal and sacramental purposes, and to be used in the arts, but for no other purposes whatsoever.
3. That every person or persons who shall sell or deliver any intoxicating liquors, except for the purposes before mentioned, shall be liable to indictment, and on conviction be fined, in not less than $20, nor more than $100.
The people are called upon to decide the matter by ballot, at the usual places of holding elections; on each ballot is to be written or printed the words "license," or "no license;" if there be a majority of votes for "no license," the several propositions contained in the act are, by such majority, enacted into a law, and the license laws are repealed; if a majority of votes be for "license," the propositions are rejected, and the license laws continue in force. There is no substantial difference between this, and the case of a bill introduced into either branch of the legisla ture; in the latter, the bill becomes a law by a majority of the votes of the members of each house; in the former, by a majority of the votes of the people of a county, at an
But the act of the 19th of February, delegates the legislative power of the state to be exercised by the people of each county, not only in a single instance, but year after year. By the 5th section, whenever one-fourth in number of the legal voters at the last preceding election in any county, shall request the levy court to present the question of "license" or "no license," again to the people, it becomes the duty of the levy court to give public notice thereof; and the question is to be again decided by ballot, on the next succeeding first Tuesday in April; and so on, in every year in which such written request shall be made. By the constitution of this state, the legislative power cannot be called into action. oftener than once in every two years, except by the governor upon extraordinary
(What questions may be submitted to a popular vote.) occasions; and then to be exercised only by a senate and house of representatives; but the 5th section of this act, transcending the constitution, authorizes a minority of voters in each county to call into action every year, the legislative power on this subject, to be exercised by the people of such county through a ballot-box; thus, actually annulling the constitution, and subverting our form of government. Although such absurd and pernicious consequences are the result, the section referred to is strictly in accordance with the principle and intention of the act itself, which proceeds on the assumption, that as legislative power is derived from the people, it may be transferred back to, resumed and be exercised by them; and that a law which they make, in the exercise of such power, is valid and binding. It is a legal maxim, that the same authority and strength which create an obligation, are required to annul or dissolve it; therefore, if such a misnamed law be valid, it cannot be suspended, changed or repealed, except in the manner in which it was made, and by the same authority, that is, by means of a popular election, and by a majority of persons voting at such election.
But it is argued, that the act of February last does not transfer or delegate legislative power; that the legislature have the right to pass conditional laws, which are to commence their operation or to be void upon the happening of some future event, or some contingency; that this act is one of that character, and does not differ in principle from several acts of congress and statutes of our own state, whose validity has been affirmed by judicial decision. By way of illustration we are referred to the cases of The Aurora v. United States, 7 Cranch 382; Steward v. Jefferson, 3 Harrington 335; and Gray v. State of Delaware, 2 Harrington 76.
In the first case, it appears, that on the 1st of March 1809, congress passed an act interdicting commercial intercourse between the United States and Great Britain
(What questions may be submitted to a popular vote.)
and France, commonly called the non-intercourse law, which, by the 19th section, was to continue in force until a certain period and no longer; that by the 4th section of the act of congress of the 1st of May 1810, on the same subject, it was declared that, in case either of those nations should revoke or modify her edicts, so that they should cease to violate the neutral commerce of the United States, the president should declare the fact, by proclamation; and if the other nation should not, within three months afterwards, revoke or modify her edicts in like manner, then that certain enumerated sections of the act of the 1st of March 1809, should be revived and be in full force so far as related to such nation; and in regard to the nation revoking or modifying her edicts, that the restrictions imposed by the act of the 1st of May 1810, should, from the date of such proclamation, cease and be discontinued. The supreme court of the United States decided, that the legislature may make the revival of an act depend on a future event, and direct that event to be made known by proclamation; that there was no sufficient reason why it should not exercise its discretion in reviving the act of 1st March 1809, either expressly or conditionally; and that the 19th section of that act could not restrict their power of extending its operation, without limitation, upon the occurrence of any subsequent combination of events.
There is not the slightest resemblance between the law of congress and the act of our legislature. The nonintercourse law was complete and perfect in itself, when it passed from the hands of its makers; the act of May 1810, declared it should be revived on the happening of a subsequent event, to be made known by the president's proclamation, which operated simply as a rule of evidence, but did not make or enact the law. Had the president been empowered to repeal existing laws, and create a new law, by the exercise of his will, and to announce his decision by a proclamation, as the people of New Castle county were empowered to do, and to have their decision an