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(What questions may be submitted to a popular vote.)
will not be referred to a popular vote. The frequent and unnecessary recurrence of popular elections, always demoralizing in their effects, is among the worst evils that can befall a republican government; and the legislation depending upon them, must be as variable as the passions of the multitude; each county will have a code of laws different from the others; murder may be punished with death in one, by imprisonment, in another, and by a fine, in a third; slavery may exist in one, and be abolished in another. The law of to-day will be repealed or altered to-morrow, and everything be involved in chaos and confusion. The general assembly will become a body merely to digest and prepare legislative propositions; and their journals a register of bills to be submitted to the people for their enactment. Finally, the people themselves will be overwhelmed by the very evils and dangers against which the founders of our government so anxiously intended to protect them; all the barriers so carefully erected by the constitution around civil liberty, to guard it against legislative encroachments, and against the assaults of vindictive, arbitrary and excited majorities, will be thrown down; and a pure democracy, "the worst of all political evils," will hold its sway under the hollow and lifeless. form of a republican government.
The only check which the constitution interposes to an act of the legislature tending to such consequences, is an independent and upright judiciary. As the act passed on the 19th of February 1847, entitled "an act authorizing the people to decide by ballot whether the license to retail intoxicating liquors shall be permitted among them," is repugnant to the principles, spirit and true intent and meaning of the constitution of this state, and tends to subvert our representative republican form of government, it is the unanimous opinion of this court, that the said act is null and void; and that judgment be rendered by the superior court, for the plaintiff.
(What questions may be submitted to a popular vote.)
The precedent set by the court of errors and appeals of the state of Delaware, in Rice v. Foster, was adopted and followed by the supreme court of Pennsylvania, in Parker v. Commonwealth, 6 Penn. St. R. 507, in which case, Bell, J., delivering the opinion of the court, said that although the government of Pennsylvania was not one of enumerated powers, still, it was a government of limited authority, and that the action of its legislature might be invalid, though it should contravene no express provision of the constitution, if it were in violation of the spirit of that instrument, and the genius of the public institutions created by it. That the people having, by their fundamental law, decreed that the legislative power should be vested in a general assembly, to consist of a senate and house of representatives, had solemnly divested themselves of all right, directly, to make or declare the law, or to interfere with the ordinary legislation of the state. That the power of making laws, vested in the general assembly, was not so much a privilege, as a duty; and that it could not be delegated by them to a portion of the people. That the act of 1846, as it left the halls of legislation, was imperfect and unfinished; for it lacked the qualities of command and prohibition absolutely essential to every law; and that it could not receive vitality from the fiat of a portion of the people expressed by a popular vote. For these reasons, it was declared unconstitutional and void.
The same principle had been enunciated by Chief Justice Gibson, in the case of the Borough of West Philadelphia, 5 W. & S. 283: he there says, that "under a well-balanced constitution, the legislature can no more delegate its proper function, than can the judiciary; it is on the lines which separate the cardinal branches of the government, that the liberties of the citizen depend; for a consolidated sovereignty, in whatever form, is a despotism, in so far as it subjects the governed, not to prescribed rules of action, to which he may safely square his conduct beforehand, but to the unsettled will of the ruling power, which cannot be foreseen; and a government becomes consolidated in proportion as its legislative branch abandons its own functions, or usurps those which have been vested elsewhere."
And in Barto v. Himrod, 8 N. Y. 483, it was decided by the court of appeals of New York, that their act to establish free schools throughout the state, was unconstitutional and void, for the reason that the fact of its becoming a law was made to depend upon the result of a popular vote. In that case, Willard, J., said, "the law under con
(What questions may be submitted to a popular vote.)
sideration is in conflict with the constitution in various respects; instead of becoming a law by the action of the organs appointed by the constitution for that purpose, it claims to become a law by the vote of the electors; and it claims that the popular vote may make it void and restore the former law. All the safeguards which the constitution has provided are broken down, and the members of the legislature are allowed to evade the responsibility which belongs to their office. If this mode of legislation is permitted, and becomes general, it will soon bring to a close the whole system of representative government, which has been so justly our pride; the legislature will become an irresponsible cabal, too timid to assume the responsibility of lawgivers, and with just wisdom enough to devise subtle schemes of imposture, to mislead the people. All checks against improvident legislation will be swept away; and the character of the constitution will be radically changed."
So, in the case of the Cincinnati, Wilmington and Zanesville Railroad Co. v. Commissioners of Clinton County, 1 Ohio St. R. 84, the court say, that "the authority of the general assembly is much too broadly stated, when it is claimed, that all their acts must be regarded as valid, which are not prohibited by the constitution; a moment's attention to principles, which may be regarded as fundamental in all the American systems of government, will demonstrate the unsoundness of such a conclusion; one of these principles, lying at the very foundation of these systems, is, that all political power resides with the people. They have, therefore, the most undoubted right to delegate just as much or just as little, of this political power, with which they are invested, as they see proper, and to such agents and departments of government as they see fit to designate. As the general assembly, like other departments of the government, exercises only delegated authority, it cannot be doubted, that any act passed by it, not falling fully within the scope of legislative power, is as clearly void, as though expressly prohibited. That the general assembly cannot surrender any portion of the legislative authority with which it is invested, or authorize its exercise by any other person or body, is a proposition too clear for argument, and is denied by no one. This inability arises no less from the general principle applicable to any delegated power requiring knowledge, discretion and rectitude, in its exercise, than from the positive provisions of the constitution itself. The people, in whom it re
(What questions may be submitted to a popular vote.) sided, have voluntarily relinquished its exercise, and have positively ordained that it shall be vested in the general assembly. It can only be reclaimed by them, by an amendment or abolition of the constitution, for which they are alone competent; to allow the general assembly to cast it back upon them, would be to subvert the constitution, and change its distribution of powers, without their action or consent. The checks, balances and safeguards of that instrument, are intended no less for the protection and safety of the minority, than the majority; hence, while it continues in force, every citizen has a right to demand that his civil conduct shall only be regulated by the associated wisdom, intelligence and integrity of the whole representation of the state." The law was held to be the same in Iowa, in Geebrick v. State, 5 Iowa 491. See also Chase v. Miller, 41 Penn. St. R. 422; People's Railroad v. Memphis Railroad, 10 Wall. 50. In Maryland, the case of Rice v. Foster is not held to be law; Hammond v. Haines, 25 Md. 541; nor is it, in New Hampshire; State v. Noyes, 10 Fost. 279. And see State v. O'Neill, 24 Wis. 149; Smith v. City of Janesville, 3 Chicago Leg. News 227.
But the decision in Parker v. Commonwealth, settled nothing more than that the general assembly of the commonwealth could not delegate to the people the power to enact laws, by the exercise of the ballot, affecting the property and binding the political and social rights of the citizens; it did not prevent the legislature from submitting to a vote of the people the question of the creation of a new township; Commonwealth v. Judges of the Quarter Sessions, 8 Penn. St. R. 391; the division of a county; People v. Reynolds, 5 Gilman 1; the consolidation of certain adjacent territory into one municipal corporation; Smith v. McCarthy, 56 Penn. St. R. 359; or the question of a municipal subscription to the stock of a railroad company; Moers v. City of Reading, 21 Penn. St. R. 188; Cincinnati, Wilmington and Zanesville Railroad Co. v. Commissioners of Clinton County, 1 Ohio St. R. 77; Talbot v. Dent, 9 B. Mon. 526; Slack o. Maysville and Lexington Railroad Co. 13 B. Mon. 1; Louisville and Nashville Railroad Co. v. County of Davidson, 1 Sneed 637. It cannot be said that the exercise of such a discretion, is the making of a law; there is no reason why the acceptance of a new power, tendered to a public corporation, may not be made to depend on the will of the people. 21 Penn. St. R. 202.
ANDERSON v. BAKER.
In the Court of Appeals of Maryland.
OCTOBER TERM 1865.
(REPORTED 23 MARYLAND 531.)
[States' rights to regulate the elective franchise.]
Among the absolute, unqualified rights of the states, is that of regulating the elective franchise; it is the foundation of state authority.
The right of suffrage is altogether a conventional one; it may be granted, abridged or taken away, by the state government, in its discretion, except so far as it is secured by the state constitution.
This was an appeal from an order of the Circuit Court for Montgomery county, dismissing the petition of the appellant for a writ of mandamus, to be directed to the appellees, officers of registration, commanding them to register his name on the list of registered voters for the said county and district, wherein he resided.
The petitioner set forth that he was, and for many years past had been, a citizen of Maryland, residing in the fourth election district of Montgomery county; that theretofore he had there possessed and exercised the right of suffrage, without hindrance or question, and that he had done no act by which any of his rights as a citizen could be justly forfeited or impaired; he also averred that, under the supposed authority of the first article of the constitution, and of the act of 1865, ch. 174, the respondents were appointed to register the voters of his election district; that he duly appeared before them and demanded that he should be unconditionally registered as a legal voter, and that they refused so to do; he then charged, in support of his alleged right to unconditional registration, that the provisions of the constitution and act above mentioned, in so far as they prescribed the test oath to be administered