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(What questions may be submitted to a popular vote.) nounced by the returns of an election, there would be an analogy between the two cases. Were it possible to suppose such an absurdity on the part of congress, their act would have been declared void, which thus undertook to transfer the legislative power exclusively to the president, and to abrogate the constitution.
In the case of Steward v. Jefferson, the court of errors and appeals of this state held, that the supplement to the act for the establishment of free schools, authorizing a tax to be laid in each district by a majority of the school voters in such district, was a constitutional law. It is argued, that the power of taxation is legislative power; that this power is delegated by the school law to the voters in each school district, authorizing them to raise taxes for the support of their schools, and that the operation of the law, so far as regards the tax, depends on the popular vote of the district. By the law of this state for establishing and supporting free schools, each school district is constituted a corporation with limited powers; the clear income of the school fund is apportioned among the several counties; the share of each county is divided among the several school districts of such county, and an equal portion given to each, as a donation, provided, the voters in such district raise by subscription or tax, in any one year, a sum equal to one-half of such district's share of the school fund. (8 Del. Laws 21.) But no such tax can be levied or assessed in any school district, unless, upon a vote by ballot, there shall be a majority of votes for the tax. (8 Del. Laws 171.) In the distribution of the school fund, the legislature had the right to appropriate an equal portion to each school district, as a donation; and to prescribe as a condition, that before it should be paid, a certain sum should be raised in the district, either by a voluntary subscription or by a tax, as should be determined upon by the corporators themselves. No power is granted to them, or to any other persons, to repeal or change any part of the law; nor does its existence.
(What questions may be submitted to a popular vote.)
or operation depend on the performance of the condition, or in any manner, upon the will or acts of the corporators. If the condition be not performed, the defaulting district loses its portion of the fund; which, after a certain period, is appropriated to the support of free schools in the other districts.
No ingenuity can discover the shadow of similitude between the act of the 19th of February 1847, and any part of the school law. To say that the authority given to the school voters (to members of a corporation) to determine whether a tax shall be laid or not, is a grant of legislative power, is an abuse of language. Legislative power is the power of making laws; the making of a law prescribing by what persons, or by what body, when, and in what manner, taxes shall be laid and collected, is the exercise of legislative power; but the making of a resolution or order, or the determination or direction, by the persons or body appointed for such purpose by the law, that taxes shall be laid or collected, is simply the execution of an authority granted by statute; the collection of them is the performance of a mere ministerial duty. The imposition of taxes, therefore, by managers of marsh companies and other incorporated bodies, and by the levy court of a county, is the execution of an authority granted by the statute which appointed them as the proper persons or body to carry its provisions into effect; it is not the exercise, in any sense of the term, of legislative power.
The case of Gray v. State of Delaware, 2 Harrington 76, does not announce any such principle as that the legislative power of the state may be delegated; and although the point was argued, the case does not profess to decide it. The decision is merely that the Mayor's Court of the city of Wilmington has jurisdiction to try cases of assault and battery. It was not necessary to decide that the mayor's court could try such cases without the intervention of a jury, as it appeared from the record, that the plaintiff in error had submitted himself to that mode of
(What questions may be submitted to a popular vote.)
trial. (p. 88.) The argument of the learned judge, which appears in the report of that case, goes only to the extent, that as the general assembly had the right, under the 15th section of the 6th article of the constitution, to confer on the mayor's court jurisdiction in cases of assault and battery, either with or without trial by jury, it was not a delegation of the legislative power of the state, to enact in the city charter, that the mayor's court should have power to try such cases, "with or without trial by jury, as should be provided by the ordinances of the said city.”
The granting of an act of incorporation is the exercise of legislative power. To make ordinances for its own government, subject to the control of the legislature, and not inconsistent with the constitution and laws of the state or of the United States, is one of the rights inseparably incident to every corporation aggregate; this is implied by law from the very act of incorporation itself, although the charter may be silent on the subject. With what show of reason then can it be said, that the power, whether expressed in the charter or not, to make ordinances for the management of the local concerns of the corporation, and the government of its members, is a transfer or delegation of the legislative power of the state? Or that it is anything else than the execution of an authority or trust expressly or impliedly conferred by the act of incorporation; an act which is a complete law in itself, and not in the power of the corporation, or of any body or set of men, to change, alter or abrogate, except the legislature; and deriving all its power and efficiency from that source and no other?
The city of Wilmington is a municipal corporation, invested, by the express terms of its charter, with power to make ordinances, subject to the control of the legisla ture, for its own local purposes, and the government of the city, which can effect none but those who come within its jurisdiction, or who have assented to them, by themselves or their representatives. An ordinance, then, is
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but a law of the city; the making of it is the exercise only of the law-making power of the city; and the authority to make it cannot be a delegation of the legislative power of the state. Therefore, when the charter gave to the mayor's court the power to hear and determine assaults and batteries, with or without trial by jury, the mode of trial was properly left to be regulated by an ordinance of the city.
But the defendant's counsel contend, that the act of February 1847 is valid, because it is merely a conditional act, to take effect upon a contingency-upon the result of a popular election. Admitting it, in that sense of the term, to be a conditional act, and further, that it is an act perfect and complete in itself, and instead of giving power to the people of a county, to repeal, enact, change and reenact laws, it expressly repealed the license laws and prohibited the sale of intoxicating liquors in every part of the state; but before it shall go into operation, let us suppose, that it is to be submitted to the vote, not of the people of a county, but of the people of the whole state, for their approval or disapproval; if approved by the majority, it is to become a law; if disapproved it is not to become a law. This presents the case in the most favorable point of view for the defendant. But were such the character of the act, it would as clearly be unconstitutional, as it is in its present form; in the one case, the people of the state are constituted a component part of the legislature; in the other, the legislative power of the state is delegated to the people of a county. In the former case, a new power in legislation is introduced, unknown to the constitution; but which the legislature undertake to grant, by requiring the assent or dissent of the people to the enactment of laws; a power commonly called the veto power; and which was expressly refused to the executive, by the convention that formed the constitution. In the latter case, by vesting the law-making power in the people, the legislature venture to introduce a pure democracy, and thus to sub
(What questions may be submitted to a popular vote.) vert the constitution of this state, and infringe upon that of the United States, which guaranties to every state a republican form of government.
The very object of having two distinct branches of the legislature, and each to act separately from the other, is to avoid hasty and precipitate legislation, and the evils arising in single assemblies, from passion, prejudice, party animosities and the intrigues of demagogues. If the legislature were to pass a bill, not by the action of each house separately (the course prescribed by the common law), but by both houses in joint meeting, it would be void. But they assume the power of authorizing the people, collectively, not of the state, but of a county, to make a law, which the legislature themselves, collectively, cannot make.
It has been urged with much force, that the legislature have no authority to call into action the elective franchise, in any other cases, or for any other purposes, than those designated by the constitution; that the peace and harmony of society are not to be invaded, nor the passions of the people excited, by calling them out to vote upon speculative questions of morals or policy; that the meaning of an election and the legitimate object of the ballot-box, are the choice of men to fill public offices, and of representatives to carry out political measures for the interest and welfare of their constituents and the community at large; and that every conceivable case where such an election can be necessary or proper for public purposes, is provided for by the constitution itself. There is much strength in the argument; and it may well be questioned, whether the legislature, constitutionally, possess such authority.
But it is quite certain, that they usurp power, when they call on the people to legislate by the ballot-box; if they can refer one subject, they can refer any other, to popular legislation; there is scarcely a case, where much diversity of sentiment exists, and the people are excited and agitated by the acts and influence of demagogues, that