Geebrick v. State

5 Iowa 491

Opinions

Stockton, J.

Footnotes

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The question made upon the demurrer to the indictment, is whether the facts alleged constitute a public offence. The defendant is charged with vending and retailing spirituous liquors and intoxicating drinks, without having first complied with the conditions and obtained license, as required by the first section of the act entitled “ an act to license and regulate the sale of malt, spirituous and vinous liquors in the state of Iowa,” approved January 29,1857.

This act authorizes the county judge of any county, to issue a license to any person, making application according to its provisions, for the sale of malt, spirituous and vinous liquors; and provides for the punishment of any person selling without a license. By the seventeenth and eighteenth sections, it is provided, that the act entitled “an act for the suppression of intemperance,” approved January 22, 1855, is not repealed in any county of the state, unless the people of such county shall, by vote taken upon the question of licensing the sale of spirituous or vinous liquors, adopt the said act of January 29, 1857; and if a majority of the legal voters in any county, shall vote in favor of the act, then the county judge shall proceed to issue license, as by the said act is provided.

It is not averred in the indictment, nor does it in any manner appear in the pleadings or evidence, that the act of January 29, 1857, (the license law), has been adopted by a majority of the legal voters of Des Moines county; nor that the question of adopting the same, has ever been submitted in said county to a vote of the people. No question is, however, made in the argument, upon the fact, that it is not averred or shown by the record that the act had been adopted. The constitutionality of the act, is the only question argued before us, and the only one we are called upon to decide.

In Santo v. The State, 2 Iowa, 203, it was held, that the eighteenth section of the act for the suppression of intemperance, approved January 22, 1855, which provided for submitting to the people of the state, the question of prohibiting the sale of intoxicating liquors, was not a submission in its largest and broadest sense of the question, whether the act aforesaid should become a law ; that such a submission would have been unconstitutional and void; that “ the general assembly cannot legally submit to the people, the proposition whether an act shall become a law or not; and that the people have no power in their primary or individual capacity, to make laws. They must do this by their representatives.”

This decision is in conformity with that of Rice v. Foster, 4 Harrington, 492, in which it is said: “ The legislature is invested with no power to pass an act which is not a law in itself, when passed, and has no authority as such, and is not to become or be a law, until it shall have been created and established by the will and act of some other persons or body, by whose will, also, existing laws are to be repealed or altered and supplied.

To the same purport is the decision in Thorne v. Kramer, 15 Barbour, 112. The constitution of the state of New York, provided that “the legislative power of the state should be vested in a Senate and Assembly.” The court say: “ The law making power being thus intrusted _ to the Senate and Assembly, by the constitution, it cannot, according to any fair construction of that instrument, be also lodged with, or transferred to, any other body. The members of the Senate and Assembly are elected by their constituents for the important duty of making laws. It is to be presumed they are chosen for their wisdom, integrity, experience and fitness. Upon what principle, then, can the representatives transfer to any other person or persons, the power of making, or what is tantamount, the power of breathing life and efficacy into laws.” See also Parker v. Commonwealth, 6 Barr, 507; Bradley v. Baxter, 15 Barbour, 122.

The position seems to us too clear to admit of any doubt, that if the act of January 29, 1857, receives its vitality and force from a vote of the people, such vote is an exercise of legislative power, and the law is unconstitutional and void. The legislative power is vested in the General Assembly, and can be exercised by that body alone. It is to be observed, that the question of the adoption of the act, is not submitted to a vote of the people of the whole state, and is only to be voted upon by the people of any county, upon the order and direction' of tlie county judge, on the petition of one hundred of the legal voters of the county. Two effects are given to a vote in its favor: Í. If the act is adopted by a majority of the legal voters of any county, then the “ act for the suppression of intemperance,” approved January 22, 1855, is repealed in such county. 2. The county judge is to issue licenses for the sale of malt, spirituous and vinous liquors, to any one making the necessary application.

Under the “ act for the suppression of intemperance,” ■ approved January 22, 1855, fhe rule of law was total prohibition of the manufacture or sale of intoxicating liquors. This had become the established policy of the state ; the prohibitory law had received the sanction of each department of the state government, legislative, executive and judicial. If any other endorsement was requisite, it was not wanting, when it received, at the hands of the people of the state, by their vote in its favor at the April election, 1855, the emphatic impress of their approval. The act of January 29, 1857, undertakes to change this rule of law, and to inaugurate a different policy. It attempts to abrogate the uniform operation, and consequently, the force and validity, of a law general in its nature, and intended to secure the entire prohibition of the sale of intoxicating liquors in the state,'and to provide for licensing the sale thereof, in any county of the state desiring the change, not by virtue of an act of the legislature passed into a law, according to the form of the constitution, but by the vote of a majority of the people of such county expressed at the polls.

We cannot be mistaken in interpreting this act, and the proceedings authorized by it, to be in effect, the repeal of one law, and the enactment of another, by a vote of the people. The question does not differ essentially, from that decided in Rice v. Foster, supra,, in which it is held that a reference to the decision of the people at the polls, of the question whether license shall be granted or not, and according to their decision in any county, continuing or repealing therein the former law, and substituting the new one in its place, is a plain surrender to the people, of the law making power. A law can no more be repealed, than it can be made, by the vote of the people, and the fact of a majority of the votes being cast in favor of license, can have no more effect in repealing the prohibitory liquor law, than it can have in authorizing the county judge to issue license. It is true that the vote, authorized under the act of 1867, is not to be taken directly upon the question, whether the act shall, or shall not, become a law. It is to be taken, however, upon a question, the adoption of which, by the people of a county, is to give all its force and operation to the law, whether for the repeal of the former prohibition, or for authorizing the issuing of license by the county judge. No rule of conduct in reference to the subject matter of the act, is established or changed by it, until it is adopted by the people of any county’ It does not occur, as was held by the majority of the court, in Santo v. The State, under the act of January 22, 1856, that the law is to take effect and be in full force. Whatever may be the result of the vote, and even without such vote, it receives its vital force in this case, from something outside of the will of the legislature.

A further argument against the propriety or admissibility of submitting the question of license, under the act aforesaid, to a vote of the people of the different counties, arises under the sixth section of the bill of rights, which declares, that “ all acts of a general nature shall have a uniform operation.” Constitution, article 1. Recognizing as we do, the distinction between laws of a general nature and those of a special or local character, we understand by the “ operation ” of a law, is meant its practical working and effect. It is not, in our opinion, a sufficient compliance with the requisition of the constitution, that under the provisions of the act of the 29th of January, 1857, the question of licensing the sale of spirituous liquors, is to be submitted to the vote of the qualified electors of all the counties of the state. Something more is contemplated by the constitution, in the words “ uniform opera tion.” We must look further,'and to the effect of such submission to the vote of the people, and to the consequences to result from the adoption of law. The prohibitory liquor law, is a law of a general nature, and its operation must be uniform throughout the state. Can we say that such is the case, if it remains in full force in one county, while it is repealed in others by a vote of the people, and a license law adopted in its stead ? and is the act of 1857, if the effect of it is to bring about this want of uniformity in the operation of a law of a general nature, to be deemed constitutional and valid? We think not.

The vote authorized to be taken upon the adoption of the act, while it is objectionable in a constitutional point of view, as transferring the law-making power from the legislature to the people, is further objectionable in view of the possible, not to say the probable, result of such vote. We cannot undertake to determine, nor can it, under any circumstances, be foreseen, that the result of the vote will be uniform in all the counties of the state, either in favor of license or against it. In some of the counties, the vote may not be taken; in others, the majority may be against license; while in others, the majority may be in its favor. Unanimity of sentiment, either one way or the other, can hardly be reckoned upon. These views, we think, add weight to the argument against the constitutionality of submitting the act to a vote of the people. We do not, however, base wholly upon them our conclusion against the validity of the act in question, nor upon the fact that the result of the vote upon the question of adopting it, may not be uniform throughout the state. Upon this latter branch of the subject, the members of the court are not unanimous in opinion.

The majority of the court, however, are of opinion, that while the act must without doubt be deemed to be a law of a general nature, it is liable to objection, as prescribing no uniform rule of civil conduct to the people of the state, and as not providing of itself, for its uniform operation. The legislative power must command. It must not leave to the people, the choice to obey, or not to obey, its requirements. It is not a law enacted according- to the requirements of the constitution, if there is left to the action and choice of the people upon whom it is to operate, the determination of a question which may result in a want of uniformity in the operation of a law of a general nature.

The further inquiry is suggested, whether a distinction may not be drawn between such provisions of the act of 1857, as may be deemed in conflict with the constitution, and the remainder of the act; whereby its essential features may be maintained, and only so much thereof declared void, as shall be held repugnant to the constitution. "We are referred, in this connection, to the opinion of the court in the case of Santo v. The State, supra, wherein it is suggested, that a statute may be void in part, and not necessarily void as to the whole; and that the courts should distinguish between a particular feature of an act, liable to constitutional pbjections, as providing for submitting to a vote .of the people, the question of its becoming a law, and the body of the act, otherwise liable to no such objection, and which should be held to be in full force. This act is not, however, so framed, as that a portion of it, liable to constitutional objections, can be adjudged invalid, and the remainder of the act be permitted to stand. The matter relative to submitting to a vote of the people, the question of licensing the sale of liquors, is in such a sense, the very body and substance of the act, that if it is declared void, there is nothing to stand as the will of the legislature or the law of the land. It is in no manner declared by the act, that the prohibitory liquor law is repealed, and a license law adopted in its stead. This was the question to be voted upon, and decided by the people of each county. If the portion making provision for a vote by the people, is held to be void, nothing remains commanded by the legislature as a rule of civil conduct. We cannot undertake to say, that the prohibitory liquor law is repealed, and a license law adopted in its stead, according to the forms prescribed by the constitution.

It results from the foregoing considerations, that the act entitled “ an act to license and regulate the sale of malt, spirituous and vinous liquors, in the state of Iowa,” approved January 29, 1857, is unconstitutional and void. The defendant’s demurrer to the indictment against him for selling liquors, without having first obtained a license, as required by such act, was improperly overruled, and the judgment of the district court will be reversed.

Wright, C. J. dissenting.