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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 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. In Blanding v. Burr, 13 Cal. 357, Field, J., said of a local law providing for its submission to popular vote: "The act in question authorizes the issuance of the bonds upon the condition that objection to their issuance was not interposed in a specified manner. As an emanation of the legislative will it was perfect in all its parts. The condition upon the exercise of authority was imposed by the legislature itself, and involved no delegation of legislative authority. Laws may be absolute, dependent upon no contingency, or they may be subject to such conditions as the legislature, in its wisdom, may impose. They may take effect only upon the happening of events which are future and uncertain; and, among others, the voluntary act of the parties upon whom they are designed to operate. They are not less perfect and complete when passed by the legislature,
though future and contingent events
to be submitted to the qualified voters of the state to determine "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."
1 The chief justice amplified in this language: "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 judgment of the law makers depends. On this question of expediency the legislature must exercise its own judgment definitively 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 thus perform the duty which the constitution imposes upon them.
"But in the present case, no such event or change of circumstances affecting the expediency of the law was expected to happen. The wisdom or expediency of the free-school act, abstractly considered, did not depend on the vote of the people. If it was unwise or inexpedient before that vote was taken, it was equally so afterwards. The event on which the act was made to take effect was nothing 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 constitution makes it the duty of the legislature itself to decide. The legislature has no power to make a statute dependent on such a contingency, because it would be confiding to others that legislative discretion which they are bound to exercise themselves, and which they cannot delegate or commit to any other man or men to be exercised. They have no more authority to refer such a question to the whole people than to an individual. The people are sov
ereign, but their sovereignty must be
1 Santo v. State, 2 Iowa, 165. See
result of a popular vote is a contingency on which laws may be enacted to take effect.1
In a very late case in Mississippi,2 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. One was 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 same way had 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
1See cases cited ante, $$ 71, 72; People v. Hoffman, 116 Ill. 587; S. C. 11 Am. & Eng. Corp. Cas. 40; Potwin v. Johnson, 108 Ill. 70; Fell v. State, 42 Md. 71; Mayor, etc. v. Clunet, 23 id. 469; Bull v. Read, 13 Gratt. 88; Burgess v. Pue, 2 Gill, 11; People v. Salomon, 51 Ill. 37; People v. Rey
nolds, 5 Gilm. 1; Alcorn v. Hamer, 38 Miss. 652; Guild v. Chicago, 82 Ill. 472; Locke's Appeal, 72 Pa. St. 491; People v. Butte, 4 Mont. 174; State v. Wilcox, 42 Conn. 364; State v. Cooke, 24 Minn. 247.
2 Schulherr v. Bordeaux, 64 Miss. 59. 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 . . . one 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,3 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. similar question was before this court in a late case and was
13 Mich. 343.
2 See People v. Burns, 5 Mich. 114. 326 Wis. 291.
4 In re Oliver, 17 Wis. 681.
5 State v. O'Neill, 24 Wis. 149.