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$71. Effect of submitting laws or questions controlling their effect to popular vote.- The legislature having the general power of enacting laws may enact them in its own form when not restricted, and give them such effect, to be worked out in such a way and by such means as it chooses to prescribe. It may provide that a law shall go into effect at one time or another; absolutely or on condition; upon certain terms or on a certain event, or without regard to future events.'
$ 72. It is agreed by all the authorities that an act may be valid though its taking effect is made to depend on a future contingent event. The case of the Cargo of Brig Aurora v. United States presents an instance of such an act.
The result of a popular vote is an uncertain event; but there is some diversity of decision on the question whether the taking effect of a general act can be made to depend on such a contingency. Very few cases, however, have come before the courts involving that question. Barto v. Himrod 3 is an early one of that limited number, decided in 1853. An act “establishing free schools throughout the state” was by its terms
1 Hobart v. Supervisors, 17 Cal. 23. though future and contingent events In Blanding v. Burr, 13 Cal. 357, may determine whether or not they Field, J., said of a local law provid- shall ever take effect. In anticipation ing for its submission to popular vote: of invasion or insurrection or local “The act in question authorizes the disturbance, or other emergencies reissuance of the bonds upon the con- quiring the exercise of special powers, dition that objection to their issuance acts were constantly passed, and yet was not interposed in a specified man- no one has ever questioned their
As an emanation of the legisla- validity as laws, because dependent tive will it was perfect in all its parts. in their operation upon occasions The condition upon the exercise of which may never arise. So the legisauthority was imposed by the legis- lature may confer a power without lature itself, and involved no delega- desiring to enforce its exercise, and tion of legislative authority. Laws leave the question whether it shall be may be absolute, dependent upon no assumed to be determined by the contingency, or they may be subject electors of a particular district. The to such conditions as the legislature, legislature may determine absolutely in its wisdom, may impose. They what shall be done, or it may authormay take effect only upon the hap- ize the same thing to be done upon pening of events which are future the consent of third parties. It may and uncertain; and, among others, command, or it may only permit; and the voluntary act of the parties upon in the latter case, as in the former, its whom they are designed to operate. acts have the efficacy of laws." They are not less perfect and com- 27 Cranch, 382. plete when passed by the legislature, 38 N, Y. 483.
to be submitted to the qualified voters of the state to determine 6 whether this act shall or shall not become a law.” The act -- not merely the provisions for submission – was held void, because there was a delegation of legislative power to the people; they were to decide whether it should become a law or not. The act was framed and duly passed by the legislature and approved. It provided for a system of free schools. It enacted that it should be voted upon; what should be the effect of a majority in the negative, and the effect of a majority in the affirmative. In one event the system was to be practically adopted — put in operation; in the other, it was to be abandoned; these effects were alternatives in the act; it was so written. If valid, the system would go into effect or not, because the legislature had so provided. In either case the act would operate as a law. The expressions, therefore, in one event, that the act should become a law," and in the other that it should “not become a law,” were precisely equivalent in substance to “take effect ” or “not take effect.”
“ And Ruggles, C. J., said: “If, by the terms of the act, it had been declared to be law from the 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.” I
1 The chief justice amplified in this man or men to judge for them in relanguage: “The event or change of lation to its present or future expecircumstances on which a law may diency. They exercise that power be made to take effect must be such themselves, and thus perform the as, in the judgment of the legislature, duty which the constitution imposes affects the question of the expediency upon them. of the law; an event on which the “But in the present case, no such expediency of the law in the judg- event or change of circumstances afment of the law makers depends. On fecting the expediency of the law this question of expediency the legis- was expected to happen. The wislature must exercise its own judg- dom or expediency of the free-school ment definitively and finally. When a act, abstractly considered, did not delaw is made to take effect upon the pend on the vote of the people. If it happening of such an event, the leg- was unwise or inexpedient before islature in effect declare the law in- that vote was taken, it was equally so expedient if the event should not afterwards. The event on which the happen; but expedient if it should act was made to take effect was nothhappen. They appeal to no other ing else than the vote of the people
A case arose in Iowa involving a similar question, and it was decided in the same way. It recognized the validity of laws made to take effect upon the happening of a contingent event. On the question whether the result of a popular vote on the act going into effect was an event on which its going into effect could be made to depend, the court used this language: “If the people are to say whether an act shall become a law, they become, or are put in the place of, the law makers. And here is the constitutional objection. Their will is not a contingency upon which certain things are, or are not, to be done under the law, but it becomes the determining power whether such shall be the law or not. This makes them the legislative authority, which, by the constitution, is vested in the senate and house of representatives, and not in the people.” The legislature cannot refer a bill to the people for them to make it a law by popular vote. When such vote is called for to give the force of law to a proposal or plan of a law formulated by the legislature and submitted to the people, the courts only declare a truism, on which there is no dissent, in holding acts so adopted unconstitutional. But if an act is adopted by the legislature as a law, and, pursuant to its provisions, it is submitted to the people, and on their expression of approval or disapproval, as a fact or event, the act by its terms does or does not take effect, or takes effect at one particular date rather than another, then apparently the only question is whether the legislature can pass a law to take effect on such a contingency. The authorities would seem now to have established the doctrine, though not universally, that the
on the identical question which the ereign, but their sovereignty must be constitution makes it the duty of the exercised in the mode which they legislature itself to decide. The leg- have pointed out in the constitution. islature has no power to make a stat- All legislative power is derived from ute dependent on such a contingency, the people; but when the people because it would be confiding to adopted the constitution, they surothers
that legislative discretion rendered the power of making laws which they are bound to exercise to the legislature, and imposed it upon themselves, and which they cannot that body as a duty.” delegate or commit to any other man 1 Santo v. State, 2 Iowa, 165. See or men to be exercised. They have Geebrick v. State, 5 id. 491; Weir v. no more authority to refer such a Cram, 37 id. 649; State v. Weir, 33 question to the whole people than to id. 134. an individual. The people are sov
result of a popular vote is a contingency on which laws may be enacted to take effect.
In a very late case in Mississippi, Campbell, J., delivering the opinion of the court, said: “On the question of the right to make an act of the legislature to depend for its operation on a future contingency, argument was exhausted long ago, and the principle established by oft-repeated examples, and by adjudications in this state and elsewhere in great numbers, that this may be done without violating the constitution. It is idle to talk of precedent and subsequent contingencies or conditions, between defeating the operation of an act or putting it in operation. There is no such distinction. It is merely fanciful and deceptive. It is for the legislature in its discretion to prescribe the future contingency, and it is not an objection on constitutional grounds that a popular vote is made the contingency.”
$ 73. Same - Cases maintaining constitutionality of such acts.- Two cases arose in 1854 involving the question whether a provision of an act was valid which referred to the people a choice of the time when an act should take effect. State v. Parker. By the terms of the act it was to take effect on the second Tuesday of March, 1853, with a proviso “ that if a majority of the ballots to be cast as hereinafter provided shall be no,' then this act shall take effect on the first Monday of December, A. D. 1853." The act was held valid. The case must have been determined in the
proviso for submission to the people been held void, and the act otherwise valid; but the proviso was sustained upon thorough consideration. Redfield, C. J., delivering the opinion of the court, used this language: “It seems to me that the distinction attempted between the contingency of a popular vote and other future uncertainties is without all just foundation in sound policy or sound reasoning, and that it has too often
See cases cited ante, SS 71, 72; nolds, 5 Gilm. 1; Alcorn v. Hamer, People v. Hoffman, 116 Ill. 587; S. C. 38 Miss. 652; Guild v. Chicago, 82 Ill. 11 Am. & Eng. Corp. Cas. 40; Potwin 472; Locke's Appeal, 72 Pa. St. 491 ; v. Johnson, 108 Ill. 70; Fell v. State, People v. Butte, 4 Mont. 174; State v. 42 Md. 71 ; Mayor, etc. v. Clunet, 23 Wilcox, 42 Conn. 364; State v. Cooke, id. 469; Bull v. Read, 13 Gratt. 88; 24 Minn. 247. Burgess v. Pue, 2 Gill, 11 ; People v. 2 Schulherr v. Bordeaux, 64 Miss. 59. Salomon, 51 nl. 37; People v. Rey- 3 26 Vt. 357.
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 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.”
The other case is People v. Collins. The act in question was passed in February, 1853. It provided in substance that if a majority of the votes were “yes,” the act should “become a law of the state from and after the 1st day of December, 1853, and if a majority were 'no,' then the act should take effect and become a law from and after the 1st day of March, 1870.” The court was equally divided on the question of the validity of the act.?
In Smith v. Janesville," the supreme court of Wisconsin held a general act valid which by its provisions was to take effect only after approval by a majority of the electors voting on the subject at a general election. The court by Dixon, C. J., thus maintains the validity of acts referred to the people for approval or disapproval: “ This,” he says, “is no more than providing that the act should take effect on the happening of a certain future contingency, that contingency being a popular vote in its favor. No one doubts the general power of the legislature to make such regulations and conditions as it pleases with regard to the taking effect or operation of laws. They may be absolute or conditional, and contingent; and if the latter, they may take effect on the happening of any event which is future and uncertain. Instances of this kind of legislation are not unfrequent. The law of congress suspending the writ of habeas corpus during the late rebellion is one. • It being conceded that the legislature possesses this general power, the only question here would seem to be whether a vote of the people in favor of a law is to be excluded from the number of these future contingent events upon which it may be provided that it shall take effect. A similar question was before this court in a late cases and was
13 Mich. 343.
4 In re Oliver, 17 Wis. 681.