LOCAL OPTION-(See INTOXICATING LIQUORS, vol. 11, p. 614).

1. Definition. The use of the words "local option law" is generally restricted to its popular application to local option liquor laws, but it seems that a local option law may be more correctly defined as any legislative act applicable to the State generally, or to some political division thereof which leaves the question of its adoption or practical enforcement to be decided by a vote of the electors of the State or political division to which it applies.

2. Constitutionality. The question of the constitutionality of local option laws is one on which there is great difference of opinion. Objection to the validity of such laws is made on the ground that they are a delegation of legislative power, that they are special laws, and, in the case of municipal aid bonds, that they violate constitutional provisions relating to taxation.

1. Delegation of Legislative Power.-The objection that local option laws are invalid because they delegate legislative power rests upon the claim that such statutes actually become laws only upon a popular vote in their favor; that what the legislature does is to submit a plan or project to the people who in fact give it force or declare that it shall not become law.1

to

State, the meaning in each case
be determined by the territory which
the board shall find to be unjustly dis-
criminated against. State v. Fremont,
E. & M. V. R. Co. (Neb.), 35 N. W.
Rep. 125.

1. A leading case on this branch of the subject is Barto v. Himrod, 8 N. Y. 483. RUGGLES, C. J., said: "The act of 1849 does not, on its face, purport to be a law, as it came from the hands of the legislature, for any other purpose than to submit to the people the question whether its provisions in relation to free schools 'should or should not become a law' (section 10); and by section 14 the act was to become law only in case it should have a majority of the votes of the people in its favor. Without contradicting the express terms of the tenth and fourteenth sections, it cannot be said that the propositions contained in it in relation to free schools were enacted as law by the legislature. They were not law, or to become law, until they had received a majority of the votes of the people at the general election in their favor, nor

unless they received such majority. It
results, therefore, unavoidably, from
the terms of the act itself, that it was
the popular vote which made the law.
The legislature prepared the plan or
project, and submitted it to the people
to be passed or rejected. The legisla-
ture had no power to make such sub-
mission, nor had the people the power
to bind each other by acting upon it.
They voluntarily surrendered that
power when they adopted the constitu-
tion. The government of this State is
democratic, but it is a representative
democracy; and in passing general laws
the people act only through their rep-
resentatives in the legislature.
The event on which the act was made
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 de-
cide. The legislature has no power to
make a statute dependent on such a
contingency, because it would be con-
fiding to others that legislative discre-
tion which they are bound to exercise
themselves, and which they cannot

On the other hand, it has been held that such enactments by the legislature are not a delegation of its legislative power, but that it is simply the delegation of a power to determine some fact or state of things upon which the law making body makes or intends to make its own action depend.1

a. Law Complete when Enacted-Depending Only on a Contingency. Many local option laws have been sustained on the ground that as they came from the legislature they were complete statutes whose operation and effect depended upon a condition, a vote of the people. Such a condition the courts hold is not distinguishable in principle from many other contingencies whose propriety have never been questioned.1

commissioners to determine the exact site for, and to erect the public buildings in, the new county town, if a majority of the voters of the county shall vote in favor of the change, was held constitutional, and in the opinion, COULTER, J., said: "A strong illustration of the faculty of the legislative power in this respect may be found in the act of congress of the 9th of July, 1846, submitting the question of the retrocession of the county of Alexandria, in the District of Columbia, to the State of Virginia, to a vote of the qualified electors of that county. Virginia had previously enacted a law signifying her willingness to take back the county, whenever the same should be receded by the congress of the United States. Congress enacted the law of the 9th of July, 1846, submitting the question to the qualified electors and providing the machinery for the elec tion, and enacting that, if a majority of the electors shall be against accepting the provisions of the act, it shall be void and of no effect; but if a majority of votes shall be in favor of accepting, then it shall be in full force. And in that event, it shall be the duty of the President to inform the Governor of Virginia of the result of the election, and that the law is consequently in force. Many of the most profound constitutional lawyers in the Union were in congress at that time, and the State of Virginia never hesitated to accept the retrocession, because the congress of the United States delegated to the people the decision of the question. Com. v. Painter, 10 Pa. St. 214.

"The true distinction, therefore, is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made." Cincinnati etc. R. Co. v. Commrs. Clinton Co., 1 Ohio St. 77.

1. Issue of County Bonds.-"It is in

geniously urged that this language shows that the authority for the issuance of the bonds comes from this election, and not from the law, and that, therefore, the voters are really the law makers. This argument is more specious than sound. If effect were given to it, it would prove that no condition dependent upon the act or will of a third person could be made in a law, since the person so acting would be in effect the law maker. But we have seen that the provisions of the law were complete by the act of the legislature; that by those provisions the condition to the operation and effect of the law was made, and that the legislature had as much power to annex the condition as the substantive provision to which the condition attaches; that there is no difference in principle between affixing a condition of popular approval of the acts authorized and any other condition; and no difference between ascertaining that approval by popular vote at an election held under the usual forms and an expression by writing or otherwise. Indeed, it seems strange that it ever should be doubted that the legislature, not trammeled in this respect by constitutional rules, should have the acknowledged power to direct the issuance of these bonds absolutely, and should be denied the power to direct their issuance in the event that those who are alone interested approved of their act; that this general power did not include the right to qualify it by the expressed assent of those affected by its exercise." Hobart v. Supervisors Butte Co., 17 Cal. 24; Robinson v. Bidwell, 22 Cal. 379; People v. Coon, 25 Cal. 635; Blanding v. Burr, 13 Cal. 343; Upham v. Supervisors of Sutter Co., 8 Cal. 378; State v. Wilcox, 42 Conn. 364; Territory v. O'Connor, 5 Dakota 397; Erlinger v. Boneau, 51 Ill. 94; People v. Salomon, 51 Ill. 37, 53; People v. Reynolds, 10 Ill. 1; Dalby v. Wolf, 14 Iowa 228; Police Jury v. McDonogh, 8 La. An. 341; New Orleans v. Graihle, 9 La. An. 562; New Orleans v. St. Romes, 9 La. An. 574; Wales v. Bel

b. Matters of Local Concern.-Where matters of purely local concern have been referred to a popular vote of the locality affected thereby, it has been held that such statutes were not objectionable as delegations of legislative power, but were rather to be sustained as a part of the American system of local self government.1

cher, 3 Pick. (Mass.) 508; Alcorn v. Hamer, 38 Miss. 652, 752; Williams v. Cammack, 27 Miss. 209; State v. Wilcox, 45 Mo. 458; City etc. St. Louis v. Alexander, 23 Mo. 483; State v. Pond, 93 Mo. 606; s. c., 18 Am. & Eng. Corp. Cas. 568; Township Organization Law, 55 Mo. 295; State v. Field, 17 Mo. 529; Manly v. Raleigh, 4 Jones Eq. (N. Car.) 370; Caldwell v. Justices of Burke, 4 Jones Eq. (N. Car.) 323; Cain v. Commrs., 86 N. Car. 8; State v. Morris Common Pleas, 36 N. J. L. 72; s. c., 13 Am. Rep. 422; Corning v. Greene, 23 Barb. (N. Y.) 33; Clarke v. Rochester, 24 Barb. (N. Y.) 447; Trustees of Paris Township . Cherry, 8 Ohio St. 564; Louisville etc. R. Co. v. Davidson Co., I Sneed (Tenn.) 637, 676; Bancroft v. Dumas, 21 Vt. 456; State v. Parker, 26 Vt. 357; State v. O'Neill, 24 Wis. 149; Slinger v. Henneman, 38 Wis. 504; Smith v. Janesville, 26 Wis. 291.

Popular Vote as a Contingency.-"It is not denied that a valid statute may be passed to take effect upon the happening of some future event certain or uncertain. But such a statute when it comes from the hands of the legislature must be law in præsenti to take effect in futuro. If the observations already made are correct, the act of 1849 was not a statute. But if by the terms of the act it had been declared to be law from time of its passage, to take effect in case it should receive a majority of votes in its favor, it would, nevertheless, have been invalid, because the result of the popular vote upon the expediency of the law is not such a future event as the statute can be made to take effect upon, according to the meaning and intent of the constitution." Barto v. Himrod, 8 N. Y. 483.

1. "But while general statutes must be enacted by the legislature it is plain the power to make local regulations, having the force of law in limited localities, may be committed to other bodies representing the people in their local divisions or to the people of those districts themselves. Our whole system of local government in cities, vil13 C. of L.-63

lages, counties and towns depends upon that distinction. The practice has existed from the foundation of the State, and has always been considered a prominent feature in the American system of government. It is recognized in the constitution itself, in the section which prescribes to the legislature the duty to provide for the organization of cities and incorporated villages, etc., restricting their power of taxation and borrowing. It contains an irresistible implication that the authority to lay local taxes and to borrow money for local objects may be constitutionally committed to local boards or councils within the cities and villages. And if such power may be conferred to be exercised according to the judgment of such boards or councils, and without the condition that the electors shall concur in the measure, it is plain that it may be granted upon that condition or with any other reasonable safeguards which may be prescribed. I do not say that it can be submitted to the electors of a city or village to determine what powers its local legislature shall possess, but only that these bodies may be made the depositories of such powers of local government as the legislature may see fit to prescribe, and the exercise of which is not repugnant to any of the general arrangements of the constitution." Clarke v. Rochester, 28 N. Y. 605; People v. Nally, 49 Cal. 478; Lafayette etc. R. Co. v. Geiger, 34 Ind. 185; Hammond v. Haines, 25 Md. 541; State v. Noyes, 30 N. H. 279; Bank of Rome v. Village of Rome, 18 N. Y. 38; Gloversville v. Howell, 70 N. Y. 287; Smith v. McCarthy, 56 Pa. St. 359; Com. v. Judges etc., 8 Pa. St. 391; Bull v. Read, 13 Gratt. (Va.) 78; State v. O'Neill, 24 Wis. 149. See also Opinion of FULLER. C. J., in Stoutenburgh v. Hennick, 129 U. S. 141.

Question Submitted to Whole State or Only a Part.-EмOTT, J., in speaking of Barto v. Himrod, said: "It is a material distinction, however, between the cases, that the people of a particular municipality or local body are not the constituents of the legislature. They are not. the people of the State of New York, 993

2. Local and Special Laws.-Statutes permitting the inhabitants of a particular locality to subject themselves to its provisions by a majority vote are not violations of the constitutional prohibition against local and special statutes.1

3. Elections 1. What Constitutes a Majority-(See ELECTIONS, vol. 6, p. 445).—In cases where the question was made to depend upon a "majority" vote, it has been variously held to

A majority of those voting on the question.2

A majority of those participating in the election, whether voting on the particular question or not.3