State v. Parker

26 Vt. 357

• Court: Supreme Court of Vermont
• Decided: March 15, 1854
• Status: Published

Opinion

The opinion of the court was delivered by'

Redfield, Ch. J.

This was an indictment for selling and giving away spiritous liquors, contrary to the statute of 1852. One ground of exception to the conviction, was the unconstitutionality of the law of 1852, by reason of its being submitted to the people at what time the law should come in force. It was provided, in the statute, that it should come in force on the second Tuesday of March, 1853 ; with a proviso, that the meetings of the freemen of the state should be holden on the second Tuesday of February, 1853, to vote upon “Their judgment and choice in regard to this act,” and “ if a majority of the ballots cast shall be “ no,” .then this act shall take effect in December, 1853.” The vote was “yes,” and this offense occurred before December, 1853.

The subject of the legality ,of such enactments has been somewhat discussed, in this state, and in many of the other states. In Bancroft et al. v. Dumas, 21 Vt. 456, the license law of 1846, was under consideration. By that law it was to be annually submitted to the vote of the freemen, whether licenses should be granted, or not. This was, in effect, submitting quite as much to the discretion of the people as in the case before the court, but in a somewhat different form. So that ¡the case is not altogether decisive, perhaps, of the one before us.

The decisions in the ¡other states, which have come to our notice, are, most of them, quite aside of the direct question. The statute in the case of Rice v. Foster, 4 Harrington Deleware R. 479, seems to have been a mere proposition to the people, to pass such a law, and as such,, certainly differs, in form at least, from this statute. Parker v. The Commonwealth of Penn., 6 Barr. 507, is not the case of a general law, but only an attempt to enforce an edict, or decree, so to speak, in a certain district, by the vote of the people of the district. The fact that this was not a general law, or, indeed, properly an act of legislation, was probably sufficient reason for disregarding it. And it is understood that the general question of the legality of statutes, made dependent upon the contingency of a popular vote, was ruled in favor of the statute, in a subsequent case, in the same state. Commonwealth v. Williams, 11 Penn. 61. See also 8 Barb. 391. 9 Barb. 685. 10 Barb. 214 20 Ohio App. 1. C. W. & Y. R. R. v. Clinton Co., 1 Ohio N. S. 77. Some or all of which, to some extent, countenance such statutes. The case of The People v. Collins, in the State of Michigan, in regard to their license laws, is where the court were equally divided upon the main question, and of course is not authority, either way. The case of Bartow v. Himrod, in the New York Court of Appeals, in regard to their school law, is a clear, unqualified decision, in July, 1853, against such a law, when its entire force is made dependent upon the vote of the people at large. Many of the Supreme courts of that state had, upon consideration and argument, held otherwise. The comparative force of these determinations would, doubtless, be different, out of that state, from what it is there. We have, thqn, as far as I know, the decision, in Delaware and New York, against such statutes, and the other cases referred to, more or less countenancing them, and the court equally divided in the state of Michigan. So that there is no considerable preponderance of authority either way. We must, then, look at the matter upon principle.

In this state, the constitution vests the legislative power in the general assembly, consisting of the house of representatives and the senate; and if the mode of proceeding under consideration is equivalent to giving legislative power to the people at large, it is, no doubt, in conflict with the constitution. But it is not very obvious, to us, why this should be so regarded, unless it is done as matter of argument, and to justify a foregone conclusion, which is not one of the legitimate elements of a judicial determination, more than it is of a legislative act, that it shall have the sanction of the people. But the law of 1852 did, not, even in form, depend upon the vote of the people for its coming in force. The statute, in terms, was made to come in force just when it did, on the second Tuesday of March, 1853 — and if there had been no meetings of the freemen called, or no vote had been taken, the statute would still have become a law just when it did. The only thing made contingent and conditional in the statute, was, in one single event, the operation of the law should be suspended until after the next session of the legislature. It may be said, this difference is not much. I know that very well. But it is as much as that between a condition precedent, and subsequent; and this, in the case of an illegal condition, as it is claimed this was, is quite important. In the former case, the contract or act is rendered void, and in the latter, the condition is only avoided, and the contract or act remains in force. And we do not see, but, upon sound reasoning and good logic, the result must be the same, in regard to statutes. We think it must, and should be. The condition .ox; proviso was only fox-suspending the operation of the statute: and if the legislature had no right to annex any such condition, then the statute will not be affected by it. It might have been wholly disregarded by the people, and the effect must have been the same — the law would have come in force on the second Tuesday in March. And did the taking a vote (which was in the affirmative besure, but which, if it had been in the negative, was', it is claimed, of no force, and should consequently have been disregarded,) make the legal state of the enactment any different? We think not. And thus the ^ form of enacting this statute seems to steer quite clear of the main I ax-gument, upon which all the cases have gone, where similar stat-| utes have been held invalid. And, in regard to the statute of 1852,, it cannot, with any show of fairness, be said the legislature didv not enact the law, and fully pass upon all questions of constitution- ( ality or expediency involved in the subject. And it is admitted on ! all hands that the legislature may enact laws, the operation or suspension of which shall be made to depend upon a contingency. This could not be questioned, with any show of reason or sound logic. It has been practiced in all free states for hundreds of yeax-s, and no one has been lynx-eyed enough to discover, or certainly bold enough to declare, that such legislation was, on that account, void or irregular-. And it is, in my judgment, a singular fact, that this remarkable discovery should first be made in the free representative democracies of America; and in regard to taking the sense of these same people, upon the expediency of legislation, where the legislators are confessedly the mere agents and instruments of the people, to express their sovereign and superior will, to save the necessity of assembling the people in mass ; and when, from the very nature of the case, the representative is, in honor and good faith, bound to conform his action to the will and desire of his constituents.

Does any one seriously doubt the perfect propriety of the legislature, upon questions of general policy, affecting equally the whole state, acting upon the known will of the state, where that is known ? We suppose not. And if the sessions of the legislature were long enough, this might be ascertained during the session — as it is to a considerable extent, sometimes — by petitions, and legislation made to conform to such informally expressed will. But if the sessions are too short, and a njore formal expression of the will of the people is desired, it amounts to the same thing practically, to provide that the law shall not come into full operation until the people have had an opportunity to say whether they are prepared to-conform to the required change. And in regard to these great moral, social, and economical reforms, cairit be doubted that the question of the preparation of the public mind to sustain them, firmly and quietly, lies at the very foundation of all hopeful legislation on the subject? And is this not precisely what American legislatures both state and national have always, in effect, although not in form, been accustomed to do ? The legislatures have the power to alter county and town lines, and the places of holding courts. But'legislation upon these subjects is made to conform, as far as practica- , ble, to the supposed wishes of those interested; and numerous statutes upon these important subjects, whose binding force has never been questioned, have, in terms, been made to depend for their whole force and vitality upon the future contingency of the expressed and recorded corporate vote of those interested. Congress passes laws, almost every session, whose operation is made contingent upon the revenue laws of foreign-states, or their navigation laws or regulations, and upon a hundred other uncertanties, more or less affected by the will or agency of voluntary beings or communities ; and in most of these cases the suspension or operation of the enactment depends ultimately, perhaps, upon the mere will and agency of our executive government; and of the perfect regularity and constitutionality of such enactments no question was ever made. Numerous other instances may he found where statutes have been made dependent upon future contingencies, not only for the time of their coming in force, but for their very vitality ; and no question of their validity has ever been made upon that ground. This is all recognized as sound law and established precedent by those courts and by those judges who have attempted' to argue that a law, made dependent upon a popular vote, was different in principle from one dependent upon other contingencies. But all such attempts seem to me altogether illusory, and, to some extent, captious, not to say frivolous.

: If the operation of a law may fairly be made to depend upon a future contingency, then, in my apprehension, it makes no essential difference what is the nature of the contingency, so it be an equal and a fair one, a moral and legal one, not opposed to sound policy, and so far connected with the object and_ purpose of the statute as not to be a mere idle and arbitrary one. ; And to us the contingency upon which the present statute was tolbe suspended, until another legislature should meet and have an opportunity of reconsidering it, was not only proper and legal, and just and moral, but highly commendable and creditable to the legislature who passed the statute ; for, at the very threshold of inquiry into the expediency of such a law, lies the other and more important inquiry, are the people prepared for such a law ? Can it be successfully enforced P These' questions being answered in the affirmative, he must be a bold man who would even vote against the law; and something more must he be who would, after it had been passed with that assurance, be willing to embarrass its operation or rejoice at its defeat.

After a full examination of the arguments by which it is attempted to be maintained, that statutes made dependent upon such contingencies are not valid laws, and a good deal of study and reflection, I must declare, that I am fully convinced — although at first, without much examination, somewhat inclined to the same opinion, that the opinion is the result of false analogies, and so founded upon a latent fallacy. 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 been made more from necessity than choice — rather to escape from an overwhelming analogy, than from any obvious difference in principle in tbe two classes of cases; for, as bas been mentioned, one may find any number of cases, in tbe legislation of congress, where statutes have been made dependent upon tbe shifting character of tbe revenue laws, or tbe navigation laws, or commercial rules, edicts, or restrictions of other countries. In some, perhaps, these laws are made by representative bodies, or, it may be, by tbe people of these states, and, in others, by tbe lords of the treasury, or tbe boards of trade, or by tbe proclamation of the sovereign; and in all these cases, no question can be made of tbe perfect legality of our acts of congress being made dependent upon such contingencies. It is, in fact, tbe only possible mode of meeting them, unless congress is kept constantly in session. The same is true of acts of congress by which power is vested in tbe President to levy troops or draw money from tbe public treasury, upon tbe contingency of a declaration or an act of war committed by some foreign state, empire, kingdom, prince, or potentate. If these illustrations are not sufficient to show tbe fallacy of the argument, more would not avail.

Judgment, that tbe respondent take nothing by bis exceptions and motion in arrest, and a fine to tbe state treasury of --and costs.