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at the time it leaves the hands of the legislative department. statute may be conditional, and its taking effect may be made to depend upon some subsequent event.1 Affirmative legislation may in some cases be adopted, of which the parties interested are at liberty to avail themselves or not at their option. A private act of incorporation cannot be forced upon the corporators; they may refuse the franchise if they so choose.2 In these cases the legislative 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 must not 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 and policy 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

event." The legislature cannot delegate the power to fix penalties to a Board of Harbor Commissioners. Board of Harbor Commissioners v. Excelsior Redwood Co., 88 Cal. 491, 26 Pac. 375.]

1 Brig Aurora v. United States, 7 Cranch, 382; Bull v. Read, 13 Gratt. 78; State v. Parker, 26 Vt. 357; Peck v. Weddell, 17 Ohio St. 271; State v. Kirkley, 29 Md. 85; Walton v. Greenwood, 60 Me. 356; Baltimore v. Clunet, 23 Md. 449. It is not a delegation of legislative power to make the repeal of a charter depend upon the failure of the corporation to make up a deficiency which is to be ascertained and determined by a tribunal provided by the repealing act. Lothrop e. Stedman, 42 Conn. 583. See Crease v. Babcock, 23 Pick. 334, 344. Nor to refer the question of extending municipal boundaries to a court where issues may be formed and disputed facts tried. Burlington . Leebrick, 43 Iowa, 252; Wahoo v. Dickinson, 23 Neb. 426, 36 N. W. 813. [But a court cannot be authorized to create a municipal corpora

tion upon petition of a majority of the inhabitants of the territory to be incorporated. Terr. v. Stewart, 1 Wash. 98, 23 Pac. 405, 8 L. R. A. 106.] It is competent to make an act take effect on condition that those applying for it shall erect a station at a place named. State v. New Haven, &c. Co., 43 Conn. 351. Railroad Commissioners may be empowered to fix rates. Georgia R. R., &c. Co. v. Smith, 70 Ga. 694. A commission may be empowered to select a site for a public building. People v. Dunn, 80 Cal. 211, 22 Pac. 140; Terr. v. Scott, 3 Dak. 357, 20 N. W. 401. An act taxing corporations of another State doing business within the State as its corporations are taxed in such other State is not an abandonment of legislative functions. The law is complete; its operation, contingent. Home Ins. Co. v. Swigert, 104 Ill. 653; Phoenix Ins. Co. v. Welch, 29 Kan. 672. Contra, Clark v. Mobile, 67 Ala. 217.

2 Angell and Ames on Corp. § 81.

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 undertake 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 decisions should be conclusive, unless, for strong reasons of State policy or local necessity, it should seem important for the State 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 Paterson v. Society, &c., 24 N. J. 385; Cheany v. Hooser, 9 B. Monr. 330; Berlin v. Gorham, 34 N. H. 266; State v. Holden, 19 Neb. 249, 27 N. W. 120; Attorney-General v. Weimer, 59 Mich. 580, 26 N. W. 773. The question of a levee tax may lawfully be referred to the voters of the district of territory over which it is proposed to spread the tax, regardless of municipal divisions. Alcorn v. Hamer, 38 Miss. 652. Power to grant an exclusive franchise in aid of navigation may be delegated to a village: Farnum v. Johnson, 62 Wis. 620, 22 N. W. 751; power to determine the penalty to be imposed for infraction of a State law may not: Montross v. State, 61 Miss. 429; nor power to increase its representation on a county board, when the constitution ordains that the legislature shall determine such representation. People v. Riordan, 73 Mich. 508, 41 N. W. 482. And see, in general, Angell and Ames on Corp. § 31 and note; also post, pp. 264-266.

2 Bull v. Read, 13 Gratt. 78; Corning v. Greene, 23 Barb. 33; Morford v. Unger, 8 Iowa, 82; City of Paterson v. Society, &c., 24 N. J. 385; Gorham v. Springfield, 21 Me. 58; Commonwealth v. Judges of Quarter Sessions, 8 Pa. St. 391; Com

monwealth v. Painter, 10 Pa. St. 214; Call v. Chadbourne, 46 Me. 206; State v. Scott, 17 Mo. 521; State v. Wilcox, 45 Mo. 458 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; Lafayette, &c. R. R. Co. v. Geiger, 34 Ind. 185; Clarke v. Rogers, 81 Ky. 43. As the question need not be submitted at all, the legislature may submit it to the freeholders alone. People v. Butte, 4 Mont. 174, 1 Pac. 414. The right to refer to the people of several municipalities the question of their consolidation was disputed in Smith v. McCarthy, 56 Pa. St. 359, but sustained by the court. And see Smyth v. Titcomb, 31 Me. 272; Erlinger v. Boneau, 51 Ill. 94; Lammert v. Lidwell, 62 Mo. 188; State v. Wilcox, 45 Mo. 458; Brunswick v. Finney, 54 Ga. 317; Response to House Resolution, 55 Mo. 295; People v. Fleming, 10 Col. 553, 16 Pac. 298; Graham v. Greenville, 67 Tex. 62, 2 S. W. 742. [Such reference is now permitted in Minnesota. Hopkins v. Duluth, 81 Minn. 189, 83 N. W. 536. For a consideration of various questions arising in regard to such a reference, see State v. Denny, 4 Wash. 135, 29 Pac. 991, 16 L. R. A. 214.]

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 city charter be revised, or a county seat located at a particular place, or after its location removed elsewhere, or the municipality contract particular debts, or engage in a particular improvement,5 is

always a question which may with propriety be referred to the voters of the municipality for decision.1

The question then arises, whether that which may be done in 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 an acceptance by the people at large, declared through the ballotbox? 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

text. [In any event the power must be exercised strictly in accordance with the conditions attached to the legislative permission. Barnum v. Okolona, 148 U. S. 393, 13 Sup. Ct. Rep. 638.]

1 Whatever powers the legislature may delegate to any public agency for exercise, it may itself resume and exercise. Dyer . Tuscaloosa Bridge Co., 2 Port. 296, 27 Am. Dec. 655; AttorneyGeneral v. Marr, 55 Mich. 445, 21 N. W. 883; Chicago & N. W. Ry. Co. v. Langlade Co., 56 Wis. 614, 14 N. W. 844; [Brand v. Multnomah Co., 38 Oreg. 79, 60 Pac. 390, 50 L. R. A. 389, 84 Am St. 772.] But this must be understood with

the exception of those cases in which the constitution of the State requires local matters to be regulated by local authority. [County commissioners may be authorized to provide additional justices of the peace for any precinct above 20,000 inhabitants if "the needs of the precinct . . . require." Pueblo Co. Com'rs v. Smith, 22 Col. 534, 45 Pac. 357, 33 L. R. A. 465. Where local matters are required to be submitted to popular vote, if two or more propositions are submitted at one election, they must be so submitted that they may be voted on separately. Denver v. Hayes, 28 Col. 110, 63 Pac. 311.]

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

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 definitely 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

1 Per Ruggles, Ch. J., in Barto v. Himrod, 8 N. Y. 483. It is worthy of consideration, 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, bat 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 trus tee, 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. See Smith v. Janesville, 26 Wis. 291; Fell v. State, 42 Md. 71, 20 Am. Rep. 83; King v. Reed, 43 N. J. 186.