Hammond v. Haines

25 Md. 541, 1866 Md. LEXIS 78

• Court: Court of Appeals of Maryland
• Decided: July 19, 1866
• Status: Published

Opinion

Weisel, J.,

delivered the opinion of this Court.

Yincent Hammond, the appellant, applied, on the 21st day of July, 1864, to the Circuit Court for Cecil county for a mandamus to compel the clerk of that Court, the appellee, to issue to him a license to keep an ordinary in the borough of North East, in that county. The Court passed an order on the appellee to show cause by a day named why the writ should not issue. The cause shewn was, that the General Assembly of Maryland, on the 10th day of March, 1864, passed an Act (chap'. 348,) entitled, “An Act to regulate the -issuing of licenses for the sale of spirituous or fermented liquors within the borough of North East, in Cecil county,” which law is set out; that after the day for its going into effect, viz: on the 11th day of April, 1864, at an election called by the commissioners of the borough of North East for the purpose of deciding by ballot, whether a license to sell spirituous or fermented liquors of any kind whatsoever should be granted or issued, by the clerk of the Circuit Court of Cecil county, to any person to vend or sell the same within -the limits of said borough, it appeared, by sixty-one ballots to fifteen, that the election was unfavorable to the issuing of said licenses; and that a certificate of said election, signed by the judges and attested by the clerk of said election, was duly made to the respondent as clerk of said Court, and filed in his office. Wherefore, he alleged it was not lawful for him to issue the license to the appellant, and that he properly refused, and continued to refuse, to issue the same, &c. The appellant thereupon moved the Court to quash the return of the respondent, and for a peremptory mcmdmrms,. The Court overruled the motion, declared the return sniff dent cause why the mandamus should not issue, discharged the rule and dismissed the petition. Prom this order this appeal was taken.

The Act of Assembly, set out in the appellee’s return, provides, first, that the qualified voters residing in the borough of North East, in Cecil county, shall have the privilege of deciding by ballot, at an election called by tbe commissioners of said borough for tlie purpose, on some day in April, 1864, and on some day in the same month, in each subsequent year, whether any license to sell spirituous or fermented liquors, of any kind or description whatsoever, shall he granted or issued, by tbe clerk of the Circuit Court of Cecil county, to any person to vend or sell tbe same within tbe limits of said borough. Secondly, that should a majority of the votes cast at an election held as provided above, be unfavorable to the issuing of said license, it shall not be lawful for tbe said clerk of tbe Circuit Court to issue any license for tbe sale of spirituous or fermented liquors of any kind within the limits of said borough for one year from the first day of May ensuing said decision, in each and every year in which such decision shall be made. The Act to take effect from the date of its passage.

The object of this appeal is to obtain from this Court an opinion and decision upon the constitutionality of this law, in order that those whose interests are affected by it may know whether it is of binding force in regulating their conduct and business. No other purpose could be effected now upon this application for tbe mandamus, the time in which a favorable determination could have availed the petitioner having long since passed, the appeal itself having been taken as late as the 3rd of July, 1865, more than six months after the order appealed from had been passed. Notwithstanding this, we have considered the question of the constitutional ■validity of the law, and wo proceed to state briefly our com elusion upon it.

It does not belong to that class of laws which contain an express provision for referring it to the vote of the people for their acceptance before it can become a law. The law as it passed the legislature is complete in itself, requiring no other sanction. We are not, therefore, to pass upon a law which submits to the people, in the largest, broadest sense, the passage of the law, or requires from them legislative action upon it before it can have the force of law.

The objection to the law under consideration is, that it provides for the suspension or repeal, periodically, of an existing State law, by a portion of the people within a prescribed limit, by means of the ballot, at an election called for the purpose. It is not to be overlooked, that the town of North East is an incorporated borough, a municipality with the usual powers to pass by-laws and ordinances for the police regulations of the place, and it will not be questioned that it was competent for the. legislature to confer upon it the power to prohibit the sale of ardent spirits within its limits, notwithstanding the general license law of the State. In such case the local law would prevail. 1 Code, Art. 1, seo. 11. The authority in this case is given to the qualified voters of the borough, at an election called for the purpose by the commissioners of the borough, to declare annually, by ballot, whether any license to sell spirituous or fermented liquors within its limits shall be granted by the clerk of the Circuit Court for the county. If not, the clerk on being so certified, is not to issue any license for the purpose.

This species of legislation has undergone examination and decision in several of the States of this Union, and has called forth some of the ablest expositions of the character and nature of our representative systems of government, and of the legislative power and action of the State, to be found in any of our judicial reports. In Delaware, Pennsylvania, and Iowa, it has been pronounced unconstitutional. Rice vs. Foster, 4 Harrington. Parker vs. Commonwealth, 6 Barr., 507. Geebrick vs. The State, 5 Iowa, 491. On tbc other hand, there are decisions of a contrary character, recognizing the validity of such laws. In Pennsylvania, a distinction was recognized between the law passed upon in 6 Barr.-, referred to, and a law which authorized the qualified voters of two townships to decide by ballot on the erection of a new township taken from one of them. This law the Supreme Court of Pennsylvania held to be valid; the same judge who pronounced the opinion in Parker vs. The Commonwealth, delivering the judgment of the Court in this, and asserting that it was not within the principle settled in the former ease* That settled nothing more than that the General Assembly could not delegate to the people a power to enact laws, by the exercise of the ballot, afi'ecting the property and binding the political and social rights of the citizens, but that the erection of a township or the creation of a new district for merely municipal purposes, or convenience in the transaction of the public business, was in no degree similar to the exercise of the law-making power. He assimilated it to the cases of laying out public roads or erecting bridges, which had long been conferred upon subordinate tribunals, without question as to the power of the legislature to do so; and if the Courts could be invested with such power, the people could also primarily be authorised to exercise it- See Commonwealth vs. Quarter Sessions, 8 Barr., 395. This decision has been criticised as in conflict with that in 6 Ba/rr.; whether' justly or not it is unnecessary for us now to examine.

In New Hampshire, similar legislation has been sustained as constitutional; State vs. Noyes, 10 Foster, 279; though the law in that case was subject to adoption by the people of the counties, and in this respect was similar to the primary school law of Maryland of 1825, ch. 162, and of Pennsylvania of 1836. The distinction which pertains to this species oí legislation seems to bo well drawn in the case in 6 Barr., 524. It might be still further illustrated by a class of laws-not uncommon and of unquestioned Validity, viz., general laws of incorporation, under which parties accepting their terms, or availing themselves of their provisions, may be incorporated without special acts of incorporation.

The case of Burgess vs. Pue, 2 Gill, 11 & 254, were strongly relied upon by the appellee in the argument of this-case as settling the question in this State, and establishing the validity of this law. Those cases arose under the operation of the primary school law above referred to, (1825, ch' 162,) and the provisions of the 29th & 30th sections of that law for submitting it to the votes of the people of the several counties, with a view to its adoption and operation in such as would vote accordingly, were urged in the argument as-not warranted by the Constitution, and as avoiding the law. This Court, however, held the law to be constitutional, but not distinctly upon the ground that there was no- force in the objection taken to those sections, but that it was competent ■for the legislature to delegate the power of taxation to the' taxable inhabitants for the purpose' of raising a fund for the support of the schools, pp. 11, 281 & 285.

We are not, however, without an express adjudication by this Court upon a law substantially similar to the one now under consideration, but which, not being reported, was not' cited in the argument of this cause. The General Assembly of Maryland, at its session of 1846, ch. 172, passed an Act declaring that from and after its passage, it should not be - lawful for the clerk of Washington county Court to issue s-license to any person or persons to sell ardent spirits within two miles of the College of St. James, in Washington county, without an order in writing from one of the judges of said Court, who was thereby authorized to grant such order if he' should be satisfied, from the representations of respectable citizens in the neighborhood of said college, of the necessity and propriety of granting such license.

This law, it is true, contains a section repealing all laws, or parts of laws, inconsistent with, it, hut it still left the' license law operative within the interdicted limits, provided one of the judges of the county Court, being satisfied of its propriety and necessity, by the representations of respectable Citizens in the neighborhood of the college, should give ati Order to the clerk to issue the license. ín this case the' representations of respectable citizens of the neighborhood, and an order of the' judge thefeon, was declared effective to put the law in operation in á prescribed district. In the' town of North East, a majority of its qualified voter’s, speaking through the ballot box, was declared to have the effect of suspending the operation of the law within its limits. The' éffect was, or is, the same in both, one operating affirmatively, the other negatively j the mode of expressing the assent of dissent only being different. We regard both laws as virtually involving the same principle, and alike obnoxious to1 the constitutional objection.-

A man named Lancaster, living within two miles of the College of St. James, was indicted for selling liquor at his residence, and convicted and fined. Ilis defence was that he had tendered the price of a license" to the clerk of Washington county Court who refused to grant it without the order of a judge, as required by the law. Lancaster appealed to the Court of Appeals, and in this Court, by agreement of counsel, the question of the constitutionality of the law of 1846, ch. 172, was submitted to the Court and argUed as the only one' for its determin’ation. The Court was unanimous in the opinion that the law was constitutional and so adjudged. Lancaster vs. The State, decided at December term, 1850, referred to in Rawlings vs. The State, 1 Md. Rep., 128.

We think this case decides the law for the town of North East under consideration in this appeal, and that the ord'óf of the Court below discharging the rule and dismissing the petition for a mandamus was correct and should be a-ilumied.

(Decided July 19th, 1866.)

in deciding this law to he constitutional,- this Court is not to he understood as embracing within its views the character of a law which would, in a broader or more enlarged sense, submit its passage or existence to the popular vote. “ Law, (as has been most aptly defined) is the result of the legitimate' action of legislative power.” The Constitution wisely distributes the powers of government among several and distinct departments-, and the limits of these cannot be extended, or an encroachment of one upon the other permitted, without a violation of the social compact and a derangement of the social order. The General Assembly, composed of the Senate and House of Delegates, is in this State the only law mating power. The popular will'is not to be disregarded, but that, always in theory and generally in practice, is reflected by the representatives of the people in the legislative department of the government. With them is lodged the power of mating laws for the government of the people, and the due responsibility of the representative to his constituents is best maintained, and stable and wholesome legislation secured, by avoiding judicial refinements by which this power is extended to any whom the Constitution has not invested with legislative action.

Order affirmed*