State ex rel. Maggard v. Pond

93 Mo. 608

• Court: Supreme Court of Missouri
• Decided: October 15, 1887
• Status: Published

Opinions

Norton, C. J.

It is admitted that, in pursuance of the provisions of the law of 1887 (Acts, 1887, p. 179), an election was held in Trenton, a town having more than twenty-five hundred inhabitants, which resulted' in a majority of votes being cast against the sale of intoxicating liquors. After this result was ascertained, the relator applied to the county court of Grundy county for license to keep a dramshop in said town, having fully complied with the provisions of what is known, in common parlance, as the Downing dram-shop law. The county court refused to grant the license on the ground that the act of the legislature above quoted forbade the sale of intoxicating liquors in said town, a majority of the voters at an election held for that purp ose having voted against such sale. The relator thereupon instituted this proceeding by mandamus to compel the county court to grant him license. The circuit court held the above act to be unconstitutional, and ordered a peremptory writ commanding the county court to grant the license, and this is the judgment from which the respondents have appealed to this court, and the only question which the appeal requires to be decided is, whether the said act is valid or void.

No question of more delicacy or importance ever comes before a court of last resort, than one' which involves the constitutionality of an act passed in due form by the legislative department of thé government. With the policy of the law, the wisdom or want of it in its enactment, we have no concern; that belongs to the domain of the legislature. Our business is to declare what is the law, and not to make laws. When the constitutionality of a law is assailed, before we can assume to declare it void, and thus' erase it from the statute books, its invalidity must be made plainly to appear. Stephens v. Bank, 43 Mo. 390.

“When courts are called upon to pronounce upon the invalidity of an act of the legislature, passed with all the forms and ceremonies requisite to give it force, they approach the question with great caution, * * * and never declare a statute void unless in their judgment its nullity and invalidity are placed beyond a reasonable doubt. No rule of construction is better established, both on principle and authority, than that-acts of the legislature are presumed to be constitutional until the contrary is clearly shown.” State ex rel. v. Railroad, 48 Mo. 460. ‘ ‘ The solution of such a question * * * ought not to be made by a resort tO' mere verbal criticisms, subtle distinctions, abstract reasoning, or nice differences in the meaning of words.” State v. Able, 65 Mo. 362.

In the case last cited, the following is approvingly quoted : “That the legislature is peculiarly under the control of the popular will. It is liable to be changed at short intervals by elections. Its errors, therefore, can be quickly cured. The courts are more remote from the people. If we, by following our doubts in the absence of clear convictions, shall abridge the authority of the-legislature, there is no remedy for six years. Thus, to whatever extent this court might err in denying the rightful authority of the legislature, we would chain that authority for a long period to our feet. It is better and safer, therefore, that the judiciary, if err it must, should not err in that direction. If either department of the government must slightly overstep the limits of its constitutional powers, it should be that one whose official life would soonest end. It has the least motive to-usurp power not given, and the people can sooner relieve themselves of its mistakes. Herein is a sufficient reason that the courts should never strike down a statute unless its conflict with the constitution is clear. The judiciary ought to accord to the legislature as much of purity of purpose as it would claim for itself, as-honest a desire to obey the constitution, and also a high capacity to judge of its meaning.” Brown v. Buzan, 24 Ind. 197. Vide, also, State ex rel. v. Laughlin, 75 ; Philips v. Railroad, 86 Mo. 540; Kelley v. Meeks, 87 Mo. 401.

“ The right of the judiciary to declare a statute void and to arrest its execution, is one which, in the opinionof all courts, is coupled with responsibilities so grave that it is never to be exercised except in very clear cases. * * * The party who wishes us to pronounce. a law unconstitutional takes upon himself the burden of proving, beyond doubt, that it is so.” State v. Addington, 77 Mo. 110. The above authorities have been referred to to indicate the rules for our guidance in determining the validity of the law which this proceeding challenges.

The first ground of challenge is, that the act in question is not a general, but a local or special law, and is in that respect violative of article 4, section 53, of the constitution, which, among other things, provides ‘ ‘ that no local or special law shall be passed where a general law can be made applicable.” We are not left at sea for a rule by which to determine what is a general and what is a special or local law. The distinction between them 'has been very clearly 'drawn by this court in the following cases:

In the case of State ex rel. v. Tolle, 71 Mo. 645, it is held “that a statute which relates to persons or things as a class is a general law, while a statute which relates to particular persons or things of a class, is special.”

In the case of Humes v. Railroad, 82 Mo. 231, it is said to be a settled, rule of construction that a legislative act which applies to and embraces all persons £ £ who .are or may come into like situations and circumstances, is not partial.” Philips v. Railroad, 86 Mo. 540, is to the same effect. Vide, also, Ewing v. Hoblitzelle, 85 Mo. 64. Citations from the. highest courts of other states to the same effect might be added, but reference to them is not deemed to be necessary simply to fortify a rule adopted by this court so consonant with reason and common sense.

Under the rule thus laid down, the contention of the relator, that the act in question is a local or special, and not a general law, is without foundation. The act in question applies to all the counties in the state as a class, and to all incorporated cities or towns as a class having a population of twenty-five hundred- or more inhabitants. All the counties in the state and all cities and towns with the requisite population, may, by complying with its terms, come under its provisions.

This direct question was passed upon by four of the judges of this court in 55 Mo. 297, and a similar law relating to township organization was declared to be a general law, and the reason given for the conclusion was, “that every county in the state might avail itself of the privileges offered by the law by a majority vote of its people.” The fact that one or more counties, or one or more cities or towns, may, by a majority vote, put the law in operation in said county or counties, cities or towns, and that other counties or cities and towns may not do so, does not affect the rule nor furnish a test by which to decide whether the law is local or general, and this court has never held otherwise.

The next ground upon which the validity of the act is assailed, is: That it is a delegation of legislative power to the people of the counties, cities, and towns of the state. While the rule that the legislature is alone invested with the power to make laws, and that it cannot delegate to the people the power to pass a law, does not admit of question or doubt, there is another rule just as firmly and indisputably established, which is, that the legislature may pass a law to take effect or go into operation on the happening of a future event or contingency, and that such contingency may be a vote of the people. City of St. Louis v. Alexander, 23 Mo. ; Cooley’s Const. Lim. [3 Ed.] 117; State ex rel. v. Wilcox, 45 Mo. 465; Township Organization Act, 55 Mo. 295; State ex rel. v. Mayor of St. Joseph, 37 Mo. 270; State v. Binder, 38 Mo. 451; State v. Winkelmeier, 35 Mo. 103.

While this local option act provides that any county, or town, or city of the class named, may, by a majority vote, put such county, town, or city under the operation of the law, it does not refer to them the question of passing a law ; that the legislature had already ■done, and only called upon them to decide by a vote whether they would accept the provisions of a law regularly enacted by both houses of the General Assembly and approved by the Governor. By its provisions "the law and not the vote extended its influence over the locality voting against the sale of intoxicants. It was the law that authorized the vote to be taken, and when "taken the law, and not the vote, declared the result that should follow the vote. The vote was the means provided to ascertain the will of the people, not as to the passage of the law, but whether intoxicating liquors should be sold in their midst. If the majority voted against the sale, the law, and not the vote, declared it .should not be sold. The vote sprang from the law, and not the law from the Vote. By their vote the electors declared no consequences, prescribed no penalties, and exercised no legislative function. The law declared the consequences, and whatever they may be they are exclusively the result of the legislative will.

A law passed by the legislature of Kentucky declared that it should take effect when ratified by a majority of the voters of the county. It was claimed to be unconstitutional on the ground that it delegated legislative power, and it is said by the court in disposing of the question: “If such language is to render the law unconstitutional, it is, in effect, to deny the power of the legislature to refer any question of local government or even police regulation to those directly interested in this character of legislation. The popular will expressed fop or against the provisions of the law does not in any manner affect the legislative intent." Commonwealth v. Weller, 29 Am. Rep. 408-11.

That the law we are considering comes within the police power of the state is held by this court in the case of State ex rel. v. Hudson, 78 Mo. 304, where it is said : “ The state has the right, in the exercise of its police power, to prohibit the sale of intoxicating liquors without a license. * * The license fee exacted by the general law regulating dramshops * * * is not a tax within the meaning * * * of the constitution, but is a price paid for the privilege of doing a thing, the doing of which the legislature has the right to prohibit altogether. Such laws are regarded as ‘police regulations established by the legislature for the prevention of intemperance, pauperism, and crime,’ * * * andaré not regarded as an exercise of the taxing power. ‘Pursuits that are pernicious or detrimental to public morals may be prohibited altogether, or licensed for a compensation to the public.’ ”

The objection that the local option act delegates legislative power, has in effect been decided by this court to be not well taken. The judges of this court were called upon for their opinion of the constitutionality of the township organization law, the constitutionality of which was questioned on the ground that it was in effect a local law, and delegated to the people legislative power. Pour of the judges held it to be constitutional, three of them giving their reasons as follows : “This township organization law contains no provisions, so far as we are able to see, prohibited by the constitution. It is a general law made for the whole state, and by it’s terms took effect from its passage. Every county in the state may avail itself of the privileges offered by this law by a majority vote of the people. It is left to the option of the counties whether they will organize under the law or not. If a majority vote for it, such vote does not create the law, but places the county so voting within its provisions, and the organization then takes effect, and also the law as it existed before the vote was taken. The law does not delegate, nor was it the intention of the law-makers to delegate, legislative authority to the counties. Unless the counties avail themselves of the right to organize they will remain as they were, unaffected by any of the provisions of this statute.” 55 Mo. 296.

It is argued by counsel that the local option law under consideration is a delegation of legislative power, because it cannot be made operative or take effect until a majority of the voters of a county, city, or town vote against the sale of intoxicating liquors. The same argument would apply against the validity of the township organization act, the validity of which was sanctioned by the members of this court, for when it was passed, by the legislature it did not operate as a law in a single county in the state, and by the very terms of the act it could not become operative in any county until a majority of the voters voted in favor of such organization.

The same objections that are made to the local option law under consideration were made to an act of the legislature (G. S., 1865, chap. 47), “authorizing any city, town, or village to organize for school purposes with special privileges.” The law provided that any incorporated city or town in the state might organize-under that chapter, provided a majority of qualified voters, at any election which it authorized to be held, should vote by ballot for the adoption of the chapter, which contains fifteen sections. It further provided that “the electors in favor of the adoption of this chapter shall write upon their ballots ‘ School law,’ and those-opposed thereto should write on their ballots ‘No school law,’ the adoption or rejection of this chapter to be determined by a majority of the votes to be cast in the manner aforesaid. ’ ’ The voters of the town of Utica voted at an election held for that purpose nTfavor of adopting the law, organized under its provisions, and elected directors. The right of one of the directors was challenged on the ground that the law was unconstitutional, in that it was a local law, and because it delegated legislative power to the voters. Both these objections were held by this court to be not well taken, and the constitutionality of the law was affirmed. State ex rel. v. Wilcox, 45 Mo. 458.

In the disposition of the objections made to the law it is said: “The legislature cannot propose a law and submit it to the people to pass or reject it by a general vote. That would be legislation by the people. But the proposition cannot be successfully controverted that a law may be passed to take effect on the happening of a future event or contingency. The future event — the happening of the contingency * * * —affords no additional efficacy to the law, but simply furnishes the occasion for the exercise of the power. The law is complete and effective when it has passed through the forms prescribed for its enactment, though it may not operate, or its influence may not be felt, until a subject has arisen upon which-it can act. In the case we are considering the act took effect with the other laws contained in the statutes. It was passed according to the prescribed forms designated in the constitution. Its enactment did not depend upon any popular vote, but parties to be affected by it were at liberty to accept the privileges granted and incur the burdens and obligations it imposed, as their interests or will should dictate. If they elected not to avail themselves of its privileges, it did not in the least impair its force; it still stood a valid enactment on the statute book. If they organized under it, they were entitled to the benefit of its provisions ; but iu either event the law remained the same. There is no pretense, therefore, for saying that the law is objectionable because it depends for its efficacy on the vote of the people. This point must be ruled against the plaintiff in error. * * * Special statutes relate to certain individual classes or particular localities. Had the act applied to a certain specified town or a single corporation, it would have been special, but such is not the case. It is co-extensive with the state, and its influence is felt in every county and almost every township. It is conceded that it does not include in its operation every individual, nor extend to all the territory, but that is not required.” State ex rel. v. Wilcox, supra.

I have reproduced what is said in the above case, because it is a complete and authoritative judicial answer rendered by this court to the objections made to the local option act under discussion, viz., that it is a local law and delegates legislative functions to the people. The local option act is a complete law, passed by the legislature in conformity with the rules prescribed for the enactment of a law, and took effect by virtue of section 36, article 4, of the constitution, in ninety days after the adjournment of the legislature. After the expiration of that time it authorized a vote to be taken, not as in the school law case, whether the law should be adopted or rejected, but for or against the sale of intoxicating liquors. No question of adopting or rejecting the law, or passing the law, was referred to them, and “ its enactment,” as said in the school law case, “ did not depend upon any popular vote,” and as was also said : “ The daw is complete and effective when it passes through the forms prescribed for its enactment, though it may not operate, or its influence be felt, until a subject has arisen upon which it can act; and there is no pretense for saying that the law is objectionable because it depends for its efficacy on a vote of the people.”

So in the case of City of St. Louis v. Alexander, 23 , whereby an act of the legislature the legality of a subscription to a railroad was made to depend on a majority vote of the voters of the city, the constitutionality of the law was assailed on the ground that it was a delegation of legislative power to the voters, the objection was overruled and the law sustained. So in case of State v. Binder, 38 Mo. 451, the act of March, 1857, provided that the municipal corporations of St. Louis county, whenever authorized by a majority of the legal voters, might grant permission to sell, within the corporate limits, on Sunday, any refreshments except distilled liquors. Under this act an election was held and a majority voted in favor of giving the permission. The city council being thus authorized passed an ordinance accordingly. The law was sustained by the court, notwithstanding the fact that the ordinance passed in pursuance of the vote operated as a repeal of the general laws forbidding, everywhere in the state, the sale of fermented liquors on Sunday, and in passing on the question it is said : “The act of the General Assembly did not directly repeal the statute making it a misdemeanor to sell fermented liquors on Sunday, but it gave to the city of St. Louis the power to pass an ordinance which should have the effect to allow the sale of such liquors on Sunday within the corporate limits, whenever a majority of the legal voters of the city should authorize the same to be done, and when that power had been called into exercise, and ordinances passed in pursuance of such authority given, the effect thereof was necessarily to repeal so far and to supersede the previous statute. The exercise of the power was made to depend upon the consent and authority of a majority of the legal voters of the city.”

The case of Lammert v. Lidwell, 62 Mo. 189, is cited in support of relator’s contention, where it is held that a stock law then before the court for consideration was invalid, because it was not a law enacted by the legislature, but a mere proposal to the people of the counties-of the state to adopt a law by a majority vote. The case of Parker v. Commonwealth, 6 Pa. St. 507, since overruled,, is in part relied upon for the conclusion announced. Whatever of conflict exists between this case and the cases hereinafter cited, I shall not attempt to reconcile, but will say that, so far from overruling any of them in terms, three of them are approvingly cited, namely, the cases in 23 Mo., 45 Mo., and 55 Mo., supra. If the doctrine announced in four of the five cases referred to and decided by this court is to prevail, the objections made to the validity of the local option law of 1887, on the ground that it is a local law, and delegates legislative power, must fall to the ground. If a law can be-enforced, as was held in the case of State v. Binder; supra, which provides that the municipalities of the-county of St. Louis, whenever a majority of the legal voters thereof authorized them to do so, might permit the sale of fermented liquors on Sunday, and that the authority when exercised repealed, as to that locality, the general law forbidding such sales on Sunday — if such a law can be enforced why may not. the law of 1887 be enforced, which declares that when the majority of qualified voters in any city or town in the state with more than twenty-five hundred inhabitants vote against the sale of intoxicating liquor, that it shall not thereafter be sold in such town or city % I am unable to answer the question except by saying that it can. If enforceable in the one case it is enforceable in the other, and the enforceability of either or both rests upon precisely the same principle.

But if these "Cases are to be ignored, and we are to blow out the light which our own ruling sheds upon the subject and look elsewhere for light to guide us, while in the foreign fields to which this course leads us, we will find a conflict of authority : I think it may be safely affirmed that the great weight of authority is in favor-of the validity of local option laws, like ours, and owing to the importance of the subject it will be pardonable to refer in detail at least to some of them. In the case of Fell v. State, 42 Md. 72, an act of the legislature was assailed, which is like our own act. This act provided for an election to be held in July, 1874, at which the voters of the several districts in the counties named should cast ballots “for the sale of spirituous or fermented liquors,” or “ against the sale of spirituous or fermented liquors,” and if it should be found, by the returns of the judges of election and proclamation of the judges of the circuit court, that the majority of votes in any district of either of said counties had been cast against the sale of spirituous or fermented liquors, that then it should not be lawful for any person to sell spirituous liquors, in any district in either of said counties voting by a majority against selling the same, under a penalty ; and it was further provided that the said act should take effect immediately after it should have been determined by a majority of the' voters in any one or more election districts of the counties named, whether or not spirituous or fermented liquors should be sold. It was held by the court, after an exhaustive examination of the subject, in which the attention of the court was called to the same line of authorities cited to us by counsel for relator in this case, that the act was constitutional; that its going into effect and becoming operative, being made to depend upon the result of a popular vote, was not a delegation of legislative power to the people. The same question was up before the Supreme Court of Georgia upon a like statute in the case of Caldwell v. Barrett, 73 Ga. 604, and it was held to be valid.

In the case of Commonwealth v. Weller, 77 Ky. 218, an act which prohibited the sale of intoxicating liquors in the county of Bullitt, “ which provided that the act shall take effect whenever it shall be ratified by a majority of the voters of said county,” was claimed to be void, as delegating legislative power. The objection was overruled and the act was held to be valid, it being said by Pryor, J., as the organ of the court, that “ when it (the act) passed the legislature and was signed by the executive it then became a law, and by reason of the law, the people interested in its passage were authorized to vote for or against its provisions ; that its operation is made to depend on the popular will is a part of the law itself, and its going into operation on the contingency that the people voted for it was the legislative will on the subject.” In the case of State v. Noyes, 30 N. H. 279, it was held that a statute making bowling-alleys in twenty-five rods of a dwelling nuisances is not unconstitutional, nor will it be so, though the statute is to be in force only in those towns in which it is adopted in town meeting.

In Erlinger v. Boneau, 51 Ill. 94, where the court had under consideration an act to prevent domestic animals from running at large, it is held that, it is fairly within the scope of legislative power to prescribe as one of the conditions upon which the law in a given case shall come into operation or be defeated, that it shall depend on a vote of the people of the locality to be affected by its provisions.

In Locke's Appeal, 72 Pa. St. 492, the act authorized the voters of a certain ward in Philadelphia to vote by ballot “for license” or “against license,” and provided that whenever by the returns of the election it shall appear there is a majority against license, it shall not be lawful for any license to issue for the sale of spirituous, vinous, malt, or other intoxicating liquors in said ward, with a section added imposing a penalty for thereafter selling liquors in said ward. In an elaborate opinion, rendered by Judge Agnew, in which he reviews and overthrows the case of Parker v. Commonwealth, 6 Barr, 507, he affirms the constitutionality of the law, the ground upon which it was assailed being that it was a delegation of legislative power.

In case of Smith v. Janesville, 26 Wis. 291, C. J. Dixon, in discussing this question, says : “ But it is said that the act is void, or at least so much of it as pertains to the taxation of shares in national banks, because it was submitted to a vote of the people, or provided that it should take effect only after approval by a majority of the electors voting on the subject at the next general election. This was no more than providing that, the act should take effect on a certain future contingency, that contingency being a popular vote in its favor.”

The constitutionality of local option laws is discussed in 35 Am. Dec. 337, in a note to the case of Commonwealth v. Kimball, and it is said that, on a review of the whole question, it appears that „the great weight of authority, and the better reasons are in favor of the constitutionality of these laws, and as sustaining that view cites the following authorities: Locke's Appeal, 72 Pa. St. 491; State v. Common Pleas Morris County, 36 N. J. L. 72; State v. Wilcox, 42 Conn. 364; Fell v. State, 42 Md. 71; Anderson v. Commonwealth, 13 Bush (Ky.) 485; State v. Cook, 24 Minn. 247, Boyd v. Bryant, 35 Ark. 69; Bancroft v. Dumas, 21 Vt. 456; Commonwealth v. Bennet, 108 Mass. 27 and 110 Mass. 357; State v. O’Neill, 24 Wis. 149; State v. Noyes, 30 N. H. 279; Railroad v. Commissioners of Clinton County, 1 Ohio St. 77.

On the other side, as being opposed to the validity of such laws, is cited the cases of Rice v. Foster, 4 Harr. (Del.) 479; State v. Weir, 33 Iowa, 134; Ex parte Wall, 48 Cal. 279; Lammert v. Lidwell, 62 Mo. 188; Maize v. State, 4 Ind. 342; State v. Swisher, 17 Texas, 441.

It may be said of the cases cited that the case of Ex parte Wall is criticized and weakened, if not destroyed, as authority by the case of People ex rel. v. Nally, 49 Cal. 478, and the case of Maize v. State, 4 Ind. 342, is not supported by the subsequent case of Groesch v. State, 42 Ind. 547. It is squarely held in case of Rice v. Foster, 4 Harr. (Del.) 479, in an exhaustive-opinion, that an act authorizing the people to decide whether the license to sell intoxicating liquors should be permitted, was unconstitutional and void. The decision was put upon the distinct ground that the act was a delegation of legislative power. Much of the opinion is devoted to an elaborate argument to show that the law-making power is lodged alone in the legislature, and that the power to pass a law cannot be delegated to the people. The proposition which this opinion labors to maintain, that under our form of government the power and duty of making laws is cast upon the legislature, and thatisuch power cannot be- delegated, except, perhaps, to municipal corporations for their local government, is too clear to admit of dispute; the disputable question is not whether the legislature can delegate legislative power, for that is conceded, but it is whether the legislature can pass a law, in the mode prescribed by the constitution and complete in all its parts, and making the operation or taking effect of such law depend upon a future event or contingency, such as a majority vote of the people in the localities to be affected by it.

That the legislature can do that has been affirmed, not only by this court, in the cases hereinbefore referred to in this opinion, but also by other courts of the highest authority, whose opinions have also been referred to somewhat in detail, and others simply cited. The logic of the argument against the validity of the law under consideration, if sound, affects the dram-shop law. • That act provides that no person shall sell intoxicating liquors in any quantity less than one gallon without taking out a license as a dram-shop keeper, and it also provides that it shall not be lawful for the county court of any county, or clerk thereof in vacation, to grant any license to keep a dramshop in any city or town containing 2,500 inhabitants or more, until a majority of the tax-paying citizens in the block or square shall sign a petition asking for such license to keep a dramshop in such block or square, nor in any incorporated town or municipal township, until a majority of both of the assessed tax-paying citizens therein, and in the block or square in which the dramshop is to be kept, shall sign a petition asking for such license to keep a dramshop. By this act the lawfulness of granting a license is made to depend on the will of the majority of the tax-paying citizens expressed to the county court, asking that a license be granted, and until that will is so expressed, it is unlawful to grant the license, and when it is so expressed it is made lawful to grant it. The act prohibits the sale of intoxicants in less quantities than one gallon without a license, and leaves it to a majority of the taxpayers to be affected by its sale, to say whether it shall be lawful to grant the license. And no one since the case of State v. Searcy, 20 Mo. 489, has ever pretended that such a law was unconstitutional on the ground that it delegated legislative powder to the people, or on any other ground.

If it is legitimate for the legislature to give to the people the right, as is done in the dram-shop law, to say whether it shall be lawful to grant a license to sell intoxicants, why is it not also legitimate for the legislature to give them the right to accept the provisions of a law which forbids the sale of intoxicants altogether % It is as much a delegation of legislative power in the one case as in the other, but according to the authorities I have hereinbefore cited, it is not a delegation of such power in either case. It is argued that, inasmuch as the law in question may go into operation in one township or county and operate as a repeal of the dram-shop law therein, that it is for that reason invalid. This argument is answered by the cases of State v. Binder, 38 Mo. 451; Township Organization case, 55 Mo. 295, and the School Law case, 45 Mo. 458.

When, the township organization law left the hands of the legislature, except for the purpose of a vote being taken, it had no operation in any county in the state, and could only operate in such counties as might thereafter accept its provisions by a vote, and when so accepted in such county it operated as a repeal in such county of the general law regulating the organization and government of counties in the state. So in the school case, 45 Mo. 458, when chapter 47, G-eneral Statutes, 1865, left the hands of the legislature, it did not operate in a single town' in the state except to enable the voters to adopt it at an election held for that purpose, and when so accepted or adopted by any town, it became operative therein and worked a repeal of the general law governing school districts.

An elaborate argument is also made to show that the law is invalid because it may be accepted in one county and not in another, and that, in consequence of this, a person could be punished in one county for selling liquor and not in the other. The same arguments would apply to the dram-shop law, for if the taxpayers of one town, city, or county withhold their assent to the granting of license, and the taxpayers of another town, city, or county give their assent, a person selling liquor in quantities less than a gallon could be punished for making such sale, while a person selling liquor in the same quantities, when the assent of the taxpayers had been obtained, could not be liable to punishment.

It is insisted that the law repeals the pharmacist and druggist law and is on that account unconstitutional. It will be time enough to determine that question when a case is presented calling for its determination.

The power of the legislature to repeal laws is as broad as their power is to make them, and if, in the exercise of their power to pass a law, they at the same time repeal one, such repeal cannot be made the test to try the validity of the law passed.

It is also claimed that the act in question is irrepealable. I am unable to understand the ground on which this claim is based. The right of the legislature to repeal a law, provided such repeal does not take away a vested right, or impair the obligation of a contract, is, I think, beyond dispute. What vested right would be taken away, or what obligation of a contract would be impaired, by the repeal of this act? The question answers itself.

It is also claimed that the ninth section of the act, which provides a punishment for its violation, is unconstitutional, in that it prescribes a higher punishment for its violation than for a violation of the dram-shop law. It will also be time enough to decide this question when a case arises demanding its decision. But conceding (without deciding the point) that said section 9 is unconstitutional, as claimed, that does not render the whole act void. It is said in case of State v. Clark, 54 Mo. 36, “ * * * it is not pretended that unconstitutional provisions in a law make it totally void. On the contrary, it is well settled that they do not, and that a law may well stand so far as it is constitutional, although it has in it certain provisions which are not valid.” State v. Binder, 38 Mo. 451; Cooley’s Const. Lim. 176-8.

Much of the argument made by counsel for relator is addressed to the impolicy of the act. That line of argument is proper for the legislative ear, but not for ours. With its policy we have nothing to do. Our business is, discer 'e legem, non dare legem, to declare what the law is, not to make it or decide what it ought to be. That is a responsibility resting upon the legislature. In view of the rule stated in the first part of this opinion, by which all courts are guided in determining the constitutionality of a law ; and in view of the decisions of this court on the validity of acts similar in principle to the one under consideration, and the decided weight of authority, as indicated in the opinions of the highest ■courts of otlier states upon like questions, we must hold the said act of 1887 to be a valid and constitutional law.

The judgment of the circuit court awarding peremptory writ is hereby reversed and proceeding dismissed,

with the concurrence of Judges Ray, Black, and Brace. Judge Sherwood dissents.