114 N.W. 962 | N.D. | 1907
Lead Opinion
Application for writ of habeas corpus. Petitioner alleges that he is deprived of his liberty through a commitment issued by the district court of Burleigh county pursuant to a judgment of that court adjudging him in contempt for violating an order excluding' him from the grand jury room while a grand jury was in session. Petitioner admits that he willfully violated such order, but he challenges the validity of the same, claiming the right to enter such room for three reasons: (1) Because he claims to
Petitioner admits that prior to such official appointments and employment he had been employed by private individuals to prosecute certain criminal cases against one Edward G. Patterson for alleged violation of the law of this state prohibiting the manufacture and sale of intoxicating liquors, and that said official appointments and official employment were made for the purpose of investing him with legal authority in said criminal prosecutions, and to authorize him to attend before said grand jury in the interest of such private employers. Petitioner concedes that his appointment as assistant state’s attorney was and is .void for the reason that he is a nonresident of Burleigh county. His employment by the board of county commissioners was concededly for a nominal-consideration. It -was not a good-faith employment for the purpose of assisting the state’s attorney in the discharge of his public duties, but was, as conceded by him, as above stated, for the purpose of gaining admission to the sessions of the grand jury for the purpose of discharging his duties under such private employment. Even if a good-faith employment by the county commissioners would legally qualify him to visit the grand jury session, which we seriously question, we are clear that he had no such right under the employment in question, as he concedes, as before stated, that it was merely to enable him to fulfill a contract of employment entered into with private individuals. Under such facts, it was manifestly improper for him to appear before such grand jury, and the district judge properly excluded him therefrom.
Petitioner’s right to enter such room, therefore, necessarily depends upon his official character of deputy enforcement commissioner. The facts are. not in dispute, but in opposition to the granting of the writ it is urged that the law -creating the offices of enforcement commissioner and deputy enforcement commissioner, being chapter 187, page 303, of the Laws of 1907 of this state, is unconstitutional and void for several reasons, only one of» which it is necessary for us to notice, as in- our opinion the same is clearly
Keeping in mind this rule, let us examine the act in question. By section 1 the governor is authorized to appoint a capable citizen of this state to be enforcement commissioner, said enforcement commissioner to be paid a salary of $2,000 per annum, and his actual expenses, and to maintain an office at the capital. Section 2 requires that such appointee shall be an attorney at law, and he is authorized to exercise in any part of the state, with the advice and under the direction of the governor, all of the common-law and statutory powers of state’s attorneys in their respective counties in the enforcement of the law against the manufacture and sale of intoxicating liquors. Section 3' provides for the appointment of one deputy commissioner whenever the commissioner may deem such deputy necessary. Such deputy shall have the same powers as are given to the enforcement commissioner. Section é pro
We think it clear, from the language employed, that it was the intention of the legislative assembly, in the enactment of this law, to vest in the enforcement commissioner the power, whenever he deems the exercise thereof necessary, to displace the regularly elected state’s attorney and sheriff in any county, so far as the enforcement of the so-called “Prohibition Law” is concerned in such county, and appoint in their stead a deputy enforcement commissioner and a special enforcement sheriff to discharge the duties of such regularly elected officers during the pleasure of the enforcement commissioner.
Has the legislative assembly, under the constitution of this state, the power to do this? In disposing of this important question
We take it to be a self-evident proposition that if the legislative assembly had the power to pass the act in question, then they had the power to go further and provide that such special enforcement officers should have the right to permanently displace the said county officers. Not only this, but they had the power to go still further and provide for the appointment of special officers by the central authority to perform all duties pertaining to the enforcement of all criminal laws in lieu of the regularly elected county officers provided for in the constitution, and thus frustrate to this extent the evident purpose of the framers of the constitution in providing for the election by the people in each county of officers for the performance of such public functions. By the express provisions of the act in question the enforcement commissioner, a mere appointee of. the governor, may, whenever in his judgment he thinks it necessary or advisable, appoint any number of so-called “enforcement sheriffs” in any county in the state without consulting the wishes of the citizens of such county, and even against their will, and such appointed officials are clothed with all the powers and duties (in the enforcement of the prohibition law) possessed by the sheriff whom the people have, by the exercise of their sovereign right, expressly declared shall be elected by them. The same is true with reference to state’s attorneys and the performance of their duties. If the legislative assembly has the power to do this, why has -it not the power to provide for the appoint
Section 173 of our constitution is relied upon as upholding this statute. This section, after enumerating the county officers and
If the offices mentioned in section 173, which includes those of state’s attorney and sheriff, “are imbedded in the constitution,” it inevitably follows that they cannot be stripped by the legislature of the important duties inherently connected therewith, for if this can be done, then these offices were “imbedded in the constitution” for no purpose. We do not deny the power of the legislature to prescribe duties for these officers, which power carries with it by implication the right to change such duties from time to time
In the argument of this case counsel called to our attention a great many cases dealing with the question of home rule or local self-government. There is much conflict of views among the courts upon this question, some holding that this right of local self-government does not extend to functions of government in which the people of the entire state are interested, while others hold to the contrary view. Most of the cases deal with the question as applied to municipalities, and not to counties or other political subdivisions of the state. Upon an analysis of the cases it will be found that most of the decisions turn upon the question as to whether the implied right of local self-government is guaranteed to municipalities under the constitution. It must not be overlooked that there is a wide distinction in this respect between counties and municipalities, the former, by express provisions of the constitution, having been made political subdivisions of the state, while cities and other
On account of the importance of the question here involved we deem it proper to review some of the leading decisions relating to the right of local self-government. In the following cases it has been held that towns and cities are entirely subject to legislative control in the absence of a constitutional provision to the contrary: People v. Draper, 15 N. Y. 532; Mayor, etc., v. State, 15 Md. 376, 74 Am. Dec. 572; State v. County Court, 34 Mo. 546; Booth v. Town of Woodbury, 32 Conn. 118; Webster v. Town of Harwinton, 32 Conn. 131; People v. Mahaney, 13 Mich. 481; People v. Shepard, 36 N. Y. 285; Town v. Jenkins, 57 N. Y. 177; Barnes v. Dist. of Columbia, 91 U. S. 540, 23 L. Ed. 440; State v. Covington, 29 Ohio St. 102; Pumphrey v. Mayor, etc., 47 Md. 145, 28 Am. Rep. 446; Burch v. Hardwicke, 30 Grat. (Va.) 24, 32 Am. Rep. 640; Perkins v. Slack, 86 Pa. 270; Meriwether v. Garrett, 102 U. S. 472, 26 L. Ed. 197; Coyle v. McIntire, 7 Houst. (Del.) 44, 30 Atl. 728, 40 Am. St. Rep. 109; State v. Smith, 44 Ohio St. 348, 7 N. E. 447, 12 N. E. 829; State v. Hunter, 38 Kan. 578, 17 Pac. 177; Com. v. Plaisted, 148 Mass. 386, 19 N. E. 224, 2 L. R. A. 142, 12 Am. St. Rep. 566; Trimble v. People, 19 Colo. 187, 34 Pac. 981, 41 Am. St. Rep. 236; State v. Williams, 68 Conn. 131, 35 Atl. 24, 421, 48 L. R. A. 465. On the other hand, the following authorities, among others, lay down the proposition that although the constitution is silent upon the subject, the legislature cannot in any way interfere with certain powers of municipalities. In other words, they recognize the implied right of local self-government as applied to cities and towns. People v. Hurlbut, 24 Mich. 44, 9 Am. Rep. 103; People v. Albertson, 55 N. Y. 50; People v. The Common Council of Detroit, 28 Mich. 228, 15 Am. Rep. 202; Park Com’rs v. Mayor, etc., 29 Mich. 343; People v. Lynch, 51 Cal. 15, 21 Am. Rep. 677; Allor v. Wayne County, 43 Mich. 76, 4 N. W. 492; People v. Porter, 90 N. Y. 68; Robertson v. Baxter, 57 Mich. 127, 23 N. W. 711; Atty. Gen. v. Detroit, 58 Mich. 213, 24 N. W. 887; Wilcox v. Paddock, 65 Mich. 23, 31 N. W. 609; State v. Denny, 118 Ind. 382; City of Evansville v. State, 118 Ind. 426, 21 N. E. 267, 4 L. R. A. 93; Board of Metropolitan Police v. Board
The question of the implied right of local self-government as to municipalities necessitates a construction of the constitution and the extent of powers conferred by said instrument upon the legislative department of the state. In Cooley’s great work on Constitutional Limitations (6th Ed.) 49, it is said that a constitution “grants no right to the people, but is the creature of their power, the instrument of their convenience. * * * A written constitution is, in every instance, a limitation upon the powers of government in the hands of agents.”
In State v. Denny, supra, it was said: “At the adoption of the state constitution all power was vested in the people of the state The people still retain all power, except such as they expressly delegated to the several departments of the state government by the adoption of the constitution. In the first section and first article of the constitution it is declared that “all power is inherent in the people.” It is contended by counsel that, as certain rights were granted and certain other rights reserved by the people, therefore all rights were granted, except such as were expressly reserved. The peculiarity of the theory is that while the people, by the constitution, made grants of power to three different departments of government, it is contended that all power that was at that time in the grantor, the people, passed to one branch of the government, viz., the political or legislative branch, and that it took all power not mentioned in the instrument, and the executive and judiciary took only such as was expressly granted to them, and the people retained such only as was specifically named and reserved. It is certainly a novel method of construction, and contrary to all rules for construing contracts, deeds, wills and other instruments, and it seems to us that the proposition need but to be stated to. prove its fallacy. In construing and giving an interpretation to the constitution, we must take into consideration the situation as it existed at the time of its adoption, the fact expressed in the instrument that all power is inherent in the people, the rights and powers vested in and then exercised by the people, the existence of cities
Mr. Cooley, in speaking of the extent of powers delegated by the people to the legislature, says: “They must be understood to grant the whole legislative power which they possessed, except so far as, at the same time, they saw fit to impose restrictions. While, therefore, the Parliament of Britain possesses completely the absolute and uncontrolled power of legislation, the legislative bodies of the American states possess the same power, except, first, as it may have been limited by the constitution of the United States, and, second, as it may have been limited by the constitution of the state.” Cooley’s Const. Lim. (6th Ed.) 205.
In People v. Draper, supra, Chief Justice Denia stated the rule thus: “The people, in framing the constitution, committed to the legislature the whole lawmaking power of the state which they did not expressly or impliedly withhold. * * * The constitution was not framed for a people entering into a political society for the first time, but for a community already organized, and furnished with political and legal institutions adapted to all or nearly all the purposes of civil government; and that it was not intended to abolish these institutions, except so far as they were repugnant to the constitution then framed.”
Again, in People v. Hurlbut, supra, that eminent author and jurist, Judge Cooley, in writing the opinion, said: “If this charter of state government which we call a constitution were all there was of constitutional command; if the usages, the customs, the maxims, that have sprung* from the habits of life, modes of thought, methods of trying facts by the neighborhood and mutual responsibility in neighborhood interests; the precepts that have come from the revolutions which overturned tyrannies; the sentiments-of manly independence and self-control which impelled our ancestors to summon the local community to redress local evils, instead of relying on king or legislature at a distance to do so — if a recognition of all these were to "be stricken from the body of our constitutional law, a lifeless skeleton might remain, but the living spirit— that which gives if force and attraction, which makes it valuable, and draws to it -the affections of the people, that which distinguishes it from the numberless constitutions, so called, which in Europe have been set up and thrown down within the last hun
It is thus apparent that, in construing a constitution, the same must be construed in the light of contemporaneous history — of conditions existing at and prior to its adoption. By no other mode of construction can the intent of its framers be determined and their purpose given force and effect. In other words, the spirit, as well as the letter of the instrument, bust be given effect. It was the unwritten and necessarily implied provisions of the constitution with which the courts were dealing in the foregoing cited cases, in which the implied right of local self-government for municipalities was affirmed on the one hand and denied on the other. If the constitution had expressly created these municipalities and provided for the election of their officers by the people, as our constitution does as to counties and their officers, then we apprehend that these cases would not have arisen. We do not claim that the act in question is unconstitutional because it violates any implied constitutional restriction of legislative power to interfere with the right of local self-government, but we do assert that the people, in framing the constitution and in providing for the election of those officers, thereby expressly vested in such officers, and intended to vest in them, the function of administering the criminal laws of the state as theretofore administered by such officers; that when a method of administration of laws is provided for by the constitution, the legislative assembly cannot provide a different method. They cannot transfer the duties, of any such officers to a new office created by them. The constitutional method of local administration of .laws cannot be changed by the legislative assembly simply because they are of the opinion that the local officers wil not honestly administer such duties. In other words, in adopting the constitution the people decided that these local officers will administer the law better than any one else, and the legislative department is powerless to impeach their judgment.
A very able and exhaustive article upon the subject of “The Right to Local Self-Government” is contained in volumes 13 and 14
We have quoted thus at length from this able article because its clear and forcible logic carries conviction to our minds of its absolute soundness. As late as 1903 the Court of Appeals of New York, in the case of People ex rel. Met. St. Ry. Co. v. Tax Com’rs, 174 N. Y. 417, 67 N. E. 69, 63 L. R. A. 884, 105 Am. St. Rep. 674, had under consideration the validity of a statute taxing for the first time in the history of that state special franchises, and providing for a state board of tax commissioners appointed by the governor. It was urged that the act in question violated the home-rule provisions of the constitution, for the reason that it deprived the local taxing officers of the functions of taxation. The validity of the act was upheld, but the decision was placed upon the ground that the function of assessing a special franchise did not, in its nature, belong to a county, city, town or village, as such function had never been execised by such local officers, but that the function belonged to the state, by which it was exercised for the first time. The court said: “It did not come within the experience of former times, and was not contemplated by the framers of the constitution.” The opinion was written by Judge Vann, and concurred in by all the other justices, and the same contains a very able and exhaustive treatment of the doctrine of local self-government, reviewing all the prior decisions of that court upon the subject. After reviewing the history in that state, and after referring to the provisions of the constitution of New York similar to section 173 of our constitution, the opinion reads: “These and other commands of the different constitutions, when read in the light of prior and contemporaneous history, show that the object of the people in enacting them was to prevent centralization of power in the state, and to continue, preserve and expand local self-government. This was effected through a judicious distribution of the power of selecting public officers, by assigning the choice of local officers to the people of the local divisions, and to the people generally, those belonging to the state at large. * * * The principle of home rule is preserved by continuing the right of these divisions to select their local officers, with the general functions which have always belonged to the office. Unless the office, by whatever name it is known, is protected, as the courts have uniformly held, the right to choose the officer would be lost, for with his former
In State v. Hastings, 11 Wis. 448, the court held unconstitutional an act passed by the legislature providing for the appointment and prescribing the duties of a state comptroller, upon the ground that the function of auditing accounts was, by the constitution, vested in the secretary of state, who was made ex offiio auditor by the constitution. The act in question did not purport to supplant the secretary of state in the performance of this function of auditing accounts, but it made it the duty of this newly created officer to audit the same after the secretary of state as such ex officio auditor had done so. The court said: “The act, taken all together, looks like a studied effort to attain indirectly what it was evident to the framers could not be accomplished directly. The result is that we have two auditors instead of one, both of whom must act in succession, before any business can be transacted. The question arises whether, under the foregoing provision of the constitution, the legislature have the power to create a second auditor or officer authorized to perform the same duties, whose concurrence is necessary before the acts of the constitutional auditor shall take effect. We think they have not, and that the functions of that officer cannot, in whole or in part, be transferred to, or be exercised concurrently or otherwise by, any other person or officer. It falls directly within the rule that the express mention of one thing implies the exclusion of another. Expressio unius est exclusio
The foregoing opinion fully sustains what we have heretofore said to the effeot that, the constitution having named certain officers, the functions essentially and inherently connnected with such of
In State v. Brunst, 26 Wis. 412, 7 Am. Rep. 84, the Supreme Court of that state was again called upon to pass upon a similar question. By an act of the legislature of that state passed in 1870, it was declared that the building known as the “House of Correction” of the county of Milwaukee, should constitute the county jail of the county, and making the inspector thereof ex officio the jailer of the county, giving him the exclusive charge and custody of such jail and of the prisoners therein, and making it the duty of the sheriff to deliver’ to said inspector on demand all prisoners in the old jail, etc. A writ of mandamus was applied for to compel the sheriff to comply with this statute, and he resisted the application for the writ upon the ground that the act was unconstitutional, contending that the legislature could not take from his office his public function and transfer the same to the relator. He insisted that by virtue of his office of sheriff, and as a part and parcel of the duties from time immemorial belonging to his office by law, he, as such sheriff, was entitled to the custody of the jail and the prisoners therein, and that it was no more competent for the legislature to deprive him of such duties and transfer them to another officer than to deprive him of the right to execute writs and processes or the duty of conserving the public peace. We quote from the opinion of the court. “It seems to us that this view of the question is rational, and in harmony with the spirit of the constitution. The office of sheriff, in a certain sense, is a constitutional office; that is, the constitution provides that sheriffs shall be chosen by the electors of the respective counties. * * * Now, it is quite true that the constitution nowhere defines what powers, rights and duties shall attach or belong to the office of sheriff. But there can be no doubt that the framers of the constitution had reference to the office with those generally recognized legal duties and functions belonging to it in this coun
The court in its opinion in the foregoing case, refers to State v. Dews, R. M. Charit. (Ga.) 397, which was decided early in the history of that state, as holding to a contrary view, but cites, as sustaining its opinion, Warner v. People, 2 Denio (N. Y.) 272, 43 Am. Dec. 740; State v. Hastings, 10 Wis. 525, and McCabe v. Mazzuchelli, 13 Wis. 478. The case from Georgia was urged before us upon the argument of the cast at bar as announcing the correct rule. This case was decided in 1835 by the superior court of the Eastern district of Georgia, and in so far as the points actually raised and determined in that case were concerned was perhaps correctly decided, but we consider it of but very little, if any, weight as an authority upon the question here involved and expressly decided by the Wisconsin court.
In O’Connor v. City of Fond du Lac, 109 Wis. 253, 85 N. W. 327, 53 L. R. A. 831, the Supreme Court of Wisconsin had under consideration the home rule provision of their constitution, which is identically the same as that of New York, and the court cites and approves the construction adopted by the later New York decisions. Speaking of the constitutional provision aforesaid, the court ob
In the late case of State v. Anson (Wis.) 112 N. W. 475, the question of the constitutional limitation on legislative interference with local self-government for counties and municipalities is quite fully considered, and the prior adjudications of that court, as well as the courts of other states, are cited. The constitutional provision in question is as follows: “All county officers whose election or appointment is not provided for by this constitution shall be elected by the electors of the respective counties, or appointed by the boards of supervisors or other county authorities, as the legislature shall direct. * * * All officers whose offices may hereafter be created by law shall be elected by the people or appointed as the legislature may direct.” The legislature of that state created the office of jury commissioners, and provided for the appointment of such commissioners by the circuit courts or judges of the state. The functions of these newly created officers were theretofore imposed upon certain county officers, who also had various other duties, the duties pertaining to the drawing of jurors being merely incidental. It was urged that this law violated the foregoing constitutional provision, but the court sustained the validity of the law; the decision, however, being placed upon the ground that at the time of the adoption of the constitution there were no officers known as “jury commissioners,” either as county officers or otherwise. It is apparent that the decision would have been to the contrary had there existed, prior to and at the time of the adoption of the constitution, county officers charged with the performance of these functions. The court said: “It is not contended that at the time of the adoption of the constitution any officers known as ‘jury commissioners’ existed in this state, either as county officers or otherwise; but it is contended that the selection of names to go upon the jury list for the circuit courts of the state was at that time imposed upon certain county officers, who also had various other duties, and that the creation of an officer to exer
In the light of the foregoing rule, we ask, can it be said that the duties of sheriffs, with reference to the enforcement of the criminal statutes of the state at the time of the adoption of our constitution, were merely incidental and casual, and without relation to the characteristics of their respective offices? If so, it is possible that the legislative assembly could take away such duties and confer them upon an officer to be appointed by central authority. We think it clear that these duties were not merely incidental to such office, but, on the contrary, they have from time immemorial been inseparably connected with, and in fact have constituted, the paramount functions of such office. The Wisconsin court, in the recent decision above cited, after quoting from the Draper case in 15 N. Y., and citing the later New York decisions, further says: “We can see no reason to disagree with the views thus expressed, at least as to such functions as are obviously not essential to the existence of counties, cities, villages and townsj or to their efficiency to accomplish those purposes for which the constitution employs them, or such powers as are not essentially characteristic of specific local officers named in the constitution and by it required to exist and persist.” The court then goes on to show that at the time the constitution of Wisconsin was adopted the function of drawing jurors did not belong to any particular county officer, and was merely incidental to the duties of certain county officers, and it reaches the conclusion that for this reason the legislature is at liberty to impose the duty upon newly created officers to be appointed by the circuit judges. We think the opinion fully sustains the respondent’s contention in the case at bar.
The foregoing language is quite applicable to the case at bar. Under the act in question, as before stated, the legislative assembly have .attempted to confer upon the enforcement commissioner the power, whenever he deems it necessary, to displace the sheriff and state’s attorney in the discharge of important functions or duties connected with their offices. The enforcement commissioner might find it necessary, in his opinion, to displace these officers by deputy commissioners and special' sheriffs in every county of the state, not only temporarily but permanently. The constitutionality of the act must be tested by what it is possible to do under its provisions, and not what it is probable may be done. Furthermore, as before stated, a law which displaces these officers by appointive officials during a portion of the time is no less open to this constitutional obj ection than it would be if it provided for their permanent displacement in such manner.
In the case of People v. Keeler, 29 Hun. 175, the Supreme Court of New York, in a well-considered opinion relative to the constitutionality of a statute of that state passed in 1882 transferring to the superintendent of the Albany county penitentiary certain functions theretofore exercised by the sheriff, had this to say: “It is claimed by the respondent that the statute is a violation of article 10, section 1, of the constitution, which provides that sheriffs shall be chosen by the electors of their respective counties; and the argument of the respondent is that the statute takes from the sheriff of Albany county and gives the superintendent of the penitentiary (an officer that is not elected) powers and duties which cannot thus be taken away. On the part of the relator, as we understand, it is not disputed that a law which should take away all or practically all the powers and duties of a sheriff and should give them to some 'officer not elected by the people would be a violation of the constitution, even though it should permit the people to elect an officer who should have the name of
Applying the foregoing language to the case at bar, can it be said that the special enforcement sheriffs, who, under the act in question, are expressly clothed with “all the common law and statutory powers of sheriffs in their respective counties,” may, in the enforcement of the criminal statute by this act committed to their charge, summon the power of the county to their aid? Did the framers of the constitution intend to delegate such powér to officers appointed by central authority? If so, why were they so careful to provide for the election by the people of the officer who from time immemorial had been vested with such authority?
The Supreme Court of New York in the foregoing case makes use of the following very apt and significant language, which, we think, is a complete answer to some of the arguments presented by the petitioner in the case at bar: “It is not necessary to say that the legislature cannot abolish some, or per aps all, of the duties of the sheriff. For instance, the legislature might abolish all imprisonment in civil cases, as well as in cases in tort as on contract, and such legislation would destroy a part of the present duties of the sheriff. But the' question, as above remarked, is not whether the legislature can abolish, but whether it can retain, those powers and duties, and give them to an officer not elected. Upon this point the case of Warren v. People, 2 Denio (N. Y.) 272, 43 Am. Dec. 740, seems to be conclusive, and the reasoning therein is sound. It may be difficult to draw the line in regard to numerous instances which are suggested by the relator’s counsel, of talcing away from sheriffs certain special duties and giving them to an appointed officer, and to say, as to each, whether it would be a violation of the constitution, or only a permissible modification of the sheriff’s duties. If any general rule could be laid down, it would probably be that the common-law powers and duties pertaining to the office of sheriff could not be transferred to an appointed officer, whatever might be done as to powers and duties of another character.” For the general rule upon the subject the court cites People v. Albertson, 55 N. Y. 51, and People v. Ray
The Supreme Court of New York, in re Brenner, 66 App. Div. 375, 73 N. Y. Supp. 689, which decision was affirmed by the Court of Appeals of New York in 170 N. Y. 185, 63 N. E. 133, after commenting upon the prior decisions in that state upon the home-rule provisions of their constitution, said: “From these and other authorities which might be cited, it must be regarded as well settled that the purpose of the constitutional provision in question is to secure to localities the fundamental right of self-government; that it protects all official duties existing at the time of its adoption, vested in local officers, and inhibits the transference of such duties to officers not elected by the electors of the locality or appointed by local authority; that it is not the officer, but the office, the existing duties and functions, to which the protection is extended, and which cannot be transferred to an officer elected or appointed other than in the prescribed manner. Nor can this be done by any change of name or colorable change of duties. Under this construction, it becomes necessary to ascertain the duties of the office in question, and whether substantially the same duties- were performed by -any officer at the time of the adoption of the constitution, and the particular officer on whom the same were devolved.” The court held that the act in question, which attempted to transfer functions theretofore belonging to a county officer to an officer appointed
King v. Hunter, 65 N. C. 603, 6 Am. Rep. 754, is a very instructive case. There the legislature undertook to take away a portion of the duties of sheriffs, to wit, the collection of taxes, and vest such duties in a newly created officer known as “tax collect- or.” One ground of the decision is that the act is unconstitutional for the reason that it impairs the obligation of the contract between the people and the sheriffs. The decision can have no weight as an authority upon this point outside of the state of North Carolina, which is the only state holding that an office creates a contract; but the second ground of the decision we think clearly sound, the court holding that the act in question is liable “to the more serious objection that it breaks faith with the people, by taking from them the right to choose the officer who may go into every man’s house and distrain his property, or otherwise collect the taxes. Probably there is no right of which the people are more jealous, and for the infringement of which they will hold the legislature and the courts to a more rigid accountability. If the people may be deprived of the election of this officer, and if his duties and emoluments may be transferred to an appointee of an irresponsible body, of what other similar right may they not be deprived? With as much propriety every other office in the state may be cut up, and those who have been put into the office by the people may be starved out, and irresponsible persons put in. The people have secured to themselves the selection of governor because they would have the important interests of the state committed to an agent of their own choice. With. as much propriety the duties with which he has been intrusted might be transferred to others, irresponsible to the people; and so -with every other officer in the state.” In addition to the foregoing authorities, we call attention to People v. Bollam, 182 Ill. 528, 54 N. E. 1032; State v. Barker, 116 Iowa, 96, 89 N. W. 204, 57 L. R. A. 244, 93 Am. S.t. Rep. 222; State v. Arrington, 18 Nev. 412, 4 Pac. 735; Mechem on Pub. Officers, section 467: “Where a state constitution provides for the election of sheriffs and fixes the term of office, though it does not define what powers, rights and duties shall attach or belong to -the office, the legislature has no power
The argument of petitioner that the functions of these newly created officers are state functions and not local, and that therefore the legislature, under the police power of the state, had a constitutional right to pass the act in question, is fully answered by the foregoing authorities, and especially by Mr. Eaton in his article her tofore referred to. In 14 Harvard Law Review, p. 128, he states: “It will be noticed that many of the cases cited involved the question of the validity of the appointment of police commissioners by the governor for certain cities. It will be claimed that, even admitting the right to local self-government, police officers are doing a state duty, and therefore, being state officers and not town or city officers, the state has the right to appoint them. Therefore, it is claimed, the legislature, in authorizing the governor to appoint a board of police for a city, is not interfering with the right to local self-government. To this argument there is more than one reply. It is not denied that the legislature can appoint state police. It is claimed, however, that when it does so it must pay them with state money. * * * But, apart from this objection, there is no agreement among the authorities that police officers are state and not local officers. The following cases hold that they are state officers: People v. Draper, 15 N. Y. 344, at pages 362 and 373; Mayor, etc., of Baltimore v. Howard, 15 Md. 376; Cobb v. City of Portland, 55 Me. 381, 74 Am. Dec. 572; People v. Hurlbut, 24 Mich. 81-83, 9 Am. Rep. 103; Chicago v. Wright, 69 Ill. 326; Burch v. Hardwicke, 30 Grat. (Va.) 24, 32 Am. Rep. 640; State v. Hunter, 38 Kan. 581, 17 Pac. 177; Commonwealth v. Plaisted, 148 Mass. 375, 19 N. E. 224, 2 L. R. A. 142, 12 Am. St. Rep. 566; and lastly Kelley, Adm’r v. Cook 21 R. I. 29, 41 Atl. 571 (a case in which this point was conceded by the plaintiff and no authorities cited. It is at variance with the history of the subject in Rhode Island as has been shown in these articles, and may yet return to plague its inventors. * * *). The following cases hold that they are not state officers: Speed & Worthington v. Crawford, 3 Metc. (Ky.) 210; Allor v. Wayne County, 43 Mich. 76, 4 N. W. 492 (a thoroughly well-considered case, in which the
It will be seen from an examination of the numerous authorities that the doctrine of local self-government, as generally understood, rests upon implied restrictions found in the various constitutions, and most of the cases, as will be noticed, involve the implied rights of municipalities in this respect. Here we are dealing with express constitutional limitations upon the legislative power, and this distinction must be kept in mind. But petitioner argues that under section 217 of our constitution, being article 20, which prohibits the manufacture and sale of intoxicating liquors in this state, the legislative assembly is given express authority to enact any law looking to the enforcement of that section. 'This contention is based upon the following language contained in said article: “The legislative assembly shall by law prescribe regulations for the enforcement of the provisions of this article and shall thereby provide suitable penalties for the violation thereof.” It seems to us a strange and wholly unwarranted construction of the foregoing language to say that the framers of the constitution intended thereby to give the legislative assembly an absolutely free band in prescribing such regulations and penalties. We think article 20 must be construed in connection with and in the light of the other provisions of that instrument, and when thus construed it is apparent that all that was intended by the use of this language was that the legislative assembly shall prescribe such regulations, etc., not inconsistent with the other provisions of the constitution. To say that under the power to prescribe regulations the legislative assembly may create new offices in contravention of the whole scheme
Entertaining the views herein expressed, we are compelled to ■hold the act in question unconstitutional and void. The application for the writ is accordingly denied.
Dissenting Opinion
(dissenting.) The principles announced in the opinion of my associates in this case seem to me so at variance with those underlying the formation of society into the organization known as “the state” that I am unable to give them my assent. If I understand their opinion correctly, it holds: First, that the election of sheriffs and state’s attorneys, being provided for in the constitution, none of the duties pertaining to those offices under the law, at the time the constitution was adopted, can be taken from them, and conferred upon any other officer appointed by authority of the legislature; and, second, for the reason that the constitution has provided for the election of sheriffs and state’s attorneys by counties, it must be implied that the people of the state, in adopting the constitution intended to establish the principle of what is commonly known as “home rule,” or local self-government, and that they thereby turned over or delegated to counties the absolute right to the control of all matters relating to the enforcement of the criminal statutes of the state, and in practical effect relinquished their right to determine how or in what manner the duties of such officers shall be performed, or whether they shall be performed at all.
The courts of several of the states with constitutional provisions on this subject practically like our own have repudiated in toto the doctrine of home rule; but in considerting this case, I shall not base my conclusions upon the reasoning of the courts of this class of states, but shall assume, though it may be a debatable question, that this principle is recognized by our constitution, and that its proper application should be protected by the courts. I, however, cannot assent to the terms and methods of its application used by my brethren. I am strongly impressed with the opinion that they have been led into error by an earnest, and from their viewpoint a laudable, desire to recognize in this new state the right of local self-government, so called, in its different coun
Before proceeding with a discussion of the principles applicable to the law in question, I desire to call a little more definite attention to some of its provisions than has been done in the majority opinion, and also to some contemporaneous history, serving as the inducement to the legislature to enact this statute. Section 1 of chapter 187, page 303 of the Laws of 1907, provides for the appointment of a commissioner by the governor; for his compensation and expenses etc. Section 2 prescribes his qualification, and that with the advice and under the direction of the governor, he shall have and is authorized to exercise in any part of the state certain duties. Section 3 provides for the appointment of a deputy and his powers. Section 4, for the appointment of enforcement sheriffs in such number as in the judgment of the commissioner may be necessary, giving them the powers of sheriffs in their respective counties, in the enforcement of the law against the manufacture and sale of intoxicating liquors. Sections, 5, 6 and 7
The territory of Dakota was under various laws relating to the traffic in intoxicating liquors. It had both high and low license laws, and in 1887 the legislature enacted a county local option law, under which some of the counties in the present state of North Dakota voted to prohibit the traffic, and others to license it. The experience of the people with the subject evidently convinced them that this traffic was-the cause of much of the poverty which existed, of a very large percentage of the crime, and was a great burden on the taxpayers of the state, as well as highly detrimental to the morals of any community tolerating the traffic. It was also deemed to be a fruitful source of corruption in politics. The voters of a large number of the various districts which elected delegates to the convention which framed the constitution of the new state in 1889 instructed their candidates to vote for constitutional prohibition of the manufacture and sale of intoxicants. Accordingly the convention framed article 20 of our constitution, which provides “No person, association or corporation shall within this state, manufacture for sale or gift, any intoxicating liquors, and no person, association or corporation shall import any of the same for sale or gift, or keep or sell or offer the same for sale, or gift, barter or trade as a beverage. The legislative assembly shall by law prescribe regulations for the enforcement of the provisions
My opinion on the constitutionality of the law, however, is to no considerable extent based upon its having any relation to consti
The people in the formation of the state, by a compact between themselves for the purpose of protecting life, liberty and property, and the reputation of its inhabitants and of all the people within its borders, and as a guaranty to their inalienable right to pursue and obtain happiness, delegated to the legislative assembly the power to enact laws not expressly or by necessary implication prohibited by the constitution. This state was not formed by a union of pre-existing local or other governments or bodies of people. The state was made the supreme organization; counties, cities, towns and other political or municipal subdivisions are the mere creatures of the state.
The majority opinion places great stress upon the article of that eminent attorney, Mr. Amasa M. Eaton, published in the Harvard Law Review. While I shall call further attention to them, it is sufficient to say here that he had been employed to attack a law of the state of Rhode Island authorizing the governor to appoint a commission which should have the appointment of police officers for the city of Newport,, control and remove them, and to make rules and regulations to govern them, and he did so upon the ground that it was an invasion of the doctrine of home rule or local self-government, and based his contention upon the historic development of the town governments of Rhode Island and of other New England states, which is entirely unlike that of the county in this state. He contended that because the state of Rhode Island had been formed by a union of four colonies or towns which each contained and maintained all the machinery incidental to government and sovereignty in itself for many years prior to the union, and because the state conducted all its affairs until 1842 without a constitution, that each of the towns or municipalities
Prof. Burgess, in his work on Political Science and Comparative Constitutional Law, in speaking of the ends of the state, on page 36 of volume 1, says “First of all, the state must establish a reign of peace and of law, and it must establish a government, and vest it with sufficient power to defend the state against external attack and internal disorder. This is the first step out of barbarism, and, until it shall have been taken, every other consideration must remain in abeyance. If it be necessary that the whole power of the state be exercised by the government in order to secure this result, there should be no hesitation in authorizing or approving it. The highest duty of the state is to preserve its own healthful growth and development.” How can its own healthful growth and its existence and development be preserved if the voters of a locality can at any moment set at defiance the laws of the state by an intentional election of officers, ■ whose known purpose and design is to nullify and defy the laws constitutionally enacted by the legislative assembly, and the state retain no power to enforce its own laws? The application of the doctrine of home rule sought and made in this proceeding is but a reassertion, in a new form with local application, of the South Carolina doctrine of nullification. The majority of the people of that state, as will be remembered, in 1832 asserted the right within its borders to nullify a law of congress in terms of uniform and universal application throughout the Union. The chief executive of the nation, a man learned in the law, who had served six years as judge of the highest court of Tennessee, answered the ordinance written by Mr. Calhoun, adopted by South Carolina, and the doctrine it contained, which Mr. Calhoun preferred not to call nullification, but rather a “suspensive veto” of the laws of congress, in a proclamation which has become historic. In this proclamation he says, “The power
In State v. Mason, 153 Mo. 23, 54 S. W. 524, it is said: “The right to establish peace and order is an inherent attribute of government whatever its form, and is coextensive within the geographical limits thereof, touching every part of its territory. From this duty flows a corresponding power to impose upon municipalities of its own' creation a police force of its own creation, and compel its support out of the municipal funds. Such is the conceded doctrine by the most learned writers upon constitutional law, and such is the concensus of judicial decision throughoút the United States.” “It could not be true that the legislature exercising the sovereign power of the state to legislate can create a peace board, and impose upon the city the duty of maintaining it, and yet be powerless if the city sees fit to attempt to thwart the prime purpose of its existence as such.” This decision was written in 1898, and refers to the constitution of 1875, and although, when that constitution went intó effect, police officers were recognized as existing officers with definite duties, and although the constitution contains provisions identical with section 173 of our own, the Missouri court held that the state could take the appointment of police officers from the city.
Mr. Black, in his work on Constitutional Law, at section 108, says: “There is in every sovereignty an inherent right and plenary power to make all such laws as are necessary to a proper preservation of public security, order, health, morality and justice. This power is called the police power. It is a fundamental power and essential to government, and is based upon the law of overruling necessity. It cannot be surrendered by the legislature, or irrevocably alienated in favor of individuals. * * * It cannot be
“Subject to the paramount power of the national government, each state, under our constitutional system, is supreme and sovereign throughout its own borders — as well within cities and villages, as with rural counties, towns and scho.ol divisions. No one of these divisions, as a rule, has any political rights or authority save that which the state concedes and recognizes. Within all parts of its jurisdiction there is both an authority and a duty on the part of every state — and also an obligation on the part of all its citizens — to take care that the enforcement of its constitution and laws are such as will most contribute to the welfare of the whole people of the state, without discriminating locally in favor of any portion of them at the cost of others, whether they reside in cities, villages or towns. For the state to neglect its duty, or to surrender such authority, would be treason to itself and disastrous to the well-being of the people.” Dorman B. Eaton, Government of Municipalities.
The preservation of the peace has always been regarded both in England and America as one of the most important prerogatives of the state. It is not the peace of the city or county, but the peace of the king or state, that is violated by crimes and disorders. The prosecution is on behalf of the state. People v. Hurlbut, 24 Mich. 44, 9 Am. Rep. 103.
Cooley defines a state as a body politic, or a society of men united together for the purpose of promoting their mutual safety and advantage by the joint efforts of their combined strength. Several authorities define it as a self-sufficient body of persons united together in one community for the defense of their rights, and for other purposes. In this sense the state means the whole people united together in one body politic. Another writer defines, as
It is again answered that the remedy lies in the removal of officers who fail to perform their sworn duties. This answer is clearly weak. With public sentiment against the enforcement of criminal law in a county, so no officer can be elected who will enforce the law, but only such as are known to oppose its enforcement, how can a jury be obtained or proceedings maintained to punish an officer for failing to do things which he pledged the people he would refrain from doing, and who in case of removal would appoint others like him? And again, if the officer have a sacred inheritance in the duties incumbent upon the office when the state was organized and the people of the county the sole right to name him, no power of removal can exist except.on the part of the very people who elected him. It cannot be asserted that in practical operation there is any method of removal except by failure to re-elect on the expiration of the term of office. What is a county, and what is its relation in the enforcement of state laws, to the state as a whole? Prof. Fairlie, in his work on Local Government in Counties, Towns and Villages, says “A county is one of the civil divisions of the state or territory for judicial and political purposes, and at the same time a district of quasi corporate character for purposes of local civil administration. By constitution or statute,
For the distinction between counties and full municipal corporations, see 7 Am. & Eng. Ene. Law, p. 903, and cases cited in note 2. In Alabama this distinction has been very clearly drawn. It is said in Askew v. Hale County, 54 Ala. 641, 25 Am. Rep. 730: “It is created mainly for the interest, advantage and conveniece of the people residing within its territorial boundaries, and the better to enable the government to extend the protection to which they are entitled, and the more beneficently to exercise over them its powers. All the powers with which the county is entrusted are the powers of the state, and all the duties with which they are charged are the duties of the state. If these were not committed to the county, they must be conferred upon some other governmental agency. The character of these powers, so far as counties in this state are concerned, are all for the purposes of civil and political organization. The levy and collection of taxes, the care of the poor, the supervision and control of roads, bridges, ferries, the compensation of jurors attending the state courts, and the supervision of convicts sentenced to hard labor as punishment for many violations of the criminal law, it is the general policy of the state to intrust to the several counties, and are all but parts of the power and duty of the state. These powers can be withdrawn
Black’s Constitutional Law, section 132, defining a municipal corporation, says: “Municipal corporations are the administrative agencies established for the local government of towns, cities and counties, or other particular districts. The special powers conferred on them are not vested rights as against the state, nor are they in the nature of contracts, but, being wholly political, they exist only during the will of the legislature. Such powers may at any time be changed, modified, repealed or destroyed by the legislature, saving only the vested rights of the individuals.” See, also, Hare’s Constitutional Law, section 628.
County officers are but the instrumentalities or agencies through whom the county exercises its functions, both those pertaining to itself as a quasi municipal corporation, and those which it exercises as the agent of the state in the conduct of political affairs and in the execution of state laws. For this reason county officers can have no greater rights in the duties of their respective offices than has the county in the performance of its functions as an instrumentality or agent of the state.
In Board of Commissioners v. Board of Commissioners, 92 U. S. 307, 23 L. Ed. 552, Mr. Justice Clifford says: “Public duties are required of counties, as well as of towns, as a part of the machinery of the state, and in order that they may be able to perform these duties they are vested with certain corporate powers, and their functions are of a wholly public nature, and they are at all times as much subject to the will of the legislature as incorporated towns.” And again: “Such corporations are the mere creatures of the legislative will. * * * These officers are nothing more than the local agents of the state; their powers may be revoked and enlarged, and their acts may be set aside or confirmed at the pleasure of the paramount authority, so long as private rights are not thereby violated.” Fairlie, at page 106, describes a sheriff as a county officer representing the executive power of the state within his county, as the chief conservator of the peace, and as considered in law the agent of the state government, and not as a local officer. Pie says that as the conservator of the peace in his county the sheriff is the representative of the sovereign power of the state
A sheriff is a public officer, a mere creature of law created by the sovereign power of the state for public purposes connected with the execution of the law and the administration of justice, as the agent of the body politic, to give effect to its sovereignty and carry into effect its will. His office is a mere civil institution, established for public political purposes, and may be regulated or changed by society. The mere ceature of the law, he holds not by contract, and his duties change with the law. He is the mere agent of the public, under a naked authority to perform duties prescribed to him by law, the expression of the public will for the public benefit, and all that can be claimed to be granted to him is the mere authority to be such agent. State v. Dews, R. M. Charit. (Ga.) 397.
The prosecuting, or state’s attorney as he is designated in this state, is an expansion of the old English office of attorney general. He conducts suits on behalf of the central government. The colonies each had an attorney general, and Connecticut in the early part of the eighteenth century established local assistants to the attorney general, and from this beginning the present system of public prosecuting officers has been established. Their most important duties are connected with criminal prosecutions, which are brought in the name of the state, and the prosecuting attorney in such cases is acting as the agent of the state, and not as a local officer. Fairlie, Local Government, p. 104; 23 Am. & Eng. Enc. Law, 275.
From these definitions, I think it may safely be inferred that, in considering the right of the state to modify or change the duties of the sheriff and prosecuting officer, they are to be regarded as the representatives of the state, and it is clear that they are not in this respect local officers, and such duties do not pertain to local self-administration of communities. Regarding the modification or change in their duties, which it is held by this decison are not constitutional, we may at the outset eliminate from our consideration the New York and Wisconsin cases, some of which, although duly recognizing the sovereignty of the state, appear to hold that such duties cannot be changed, for the reason that they are grounded upon the constitutional provisions adopted in New York in 1846,
But apply the principle to the law attacked in this proceeding. The legislature of this state was providing regulations for the enforcement of the police power of the state, and it made, in effect, a district of the state for that purpose, as it related to the prohibition law, and provided for the appointment of state officers who, under the direction of the governor, who, by the constitution, is charged with the duty of seeing that the laws of the state are executed, are to serve as his aids or agents for that purpose. The principle of the statute is identical with that of the New York law and others, which have from time to time been attacked on the same ground and held valid. People v. Draper, decided and recognized in the very latest cases, wherein the .courts have passed upon these principles, and notably in these of People v. Tax Commissioners, 174 N. Y. 417, 67 N. E. 69, and State v. Anson (Wis.) 112 N. W. 475, infra.
Great stress is laid upon the case of People v. Tax Commissioners, 174 N. Y. 417, 67 N. E. 69, and the opinion in this case says that the court, in upholding the New York law, regarding the taxation of franchises, placed its decision upon the ground that the function of assessing special franchises did not in its nature belong to the county, city, town, or village, but belonged to the state. So I say the function of enforcing the criminal laws of the state, the right to self preservation, is a sovereign function of the state, and never has been delegated to the county, and never can be so delegated by any far fetched implication derived from the terms of the constitution. It is only by the grossest acts of judicial legislation that any such implication can be read into or out of the terms of our constitution, or any such construction placed upon article 173.
In People v. Tax Commissioners, supra, a law enacted by the legislature of New York, which provided for the appointment by the governor of a tax commission to assess all special franchises, was attacked. That law was aimed specially at the railways, and it made such franchises real property. The function of assessors
State v. Anson (Wis.) 112 N. W. 475, is nearly parallel to the New York case. The legislature of Wisconsin transferred the duties of jury commissioner from the clerk and constitutional officer who had performed them as part of his official duties prior to the adoption of the constitution, to a commissioner appointed by
The opinion of my associates states, in connection with the Wisconsin case, that it is apparent that the decision would have been to the contrary had there existed prior to and at the time of the adoption of the constitution county officers charged with the performance of this function, but it is expressly stated in the Wisconsin opinion that that function had devolved upon certain county officers.
In State v. Hastings, 11 Wis. 518, the law held invalid provided for an officer whose duty it should be to audit accounts against the state, and whose concurrence was necessary in their approval, before the acts of the constitutional officer should take effect. I think this is in no sense in point. Had the law of that state provided for an officer to aid the governor in executing the laws of the state, and then provided that no acts of the governor of this nature should be valid unless concurred in by this new officer, or that no act of the sheriff or state’s attorney should be valid except with the concurrence of the new officer, then there might have been a parallel. Again the court of Wisconsin based its decision somewhat upon the ground that the duties of the auditor were of a judicial nature, and that in such matters the people of the state had a right to the judgment of the officer they had selected for that purpose, rather than that of an officer otherwise named.
State v. Brunst, 26 Wis. 412, 7 Am. Rep. 84, and People v. Keeler, 29 Hun. (N. Y.) 175, are not authorities, because the decisions in these cases were expressly stated to be largely upon the ground that the act held invalid deprived the sheriff of the principal part of his duties and emoluments. Then, too, the constitutional provisions of these states heretofore referred to were in force. .
State v. Cunningham, 88 Wis. 81, 57 N. W. 1119, 59 N. W. 503, holds that the constitution having appropriated the proceeds of public lands to the school fund, it is beyond the power of the legislature to divert them to any other use than the support of schools, and that it cannot set them aside for a city park, or withhold the lands from sale, inasmuch as that power was intrusted to the discretion of the commissioners of public lands by the constitution.
State v. Arrington, 18 Nev. 412, 4 Pac. 735, decided that the legislature could not extend the terms of constitutional officers beyond the time for which they were elected, and the remarks contained in that opinion cited as authority for the holding of this court are clearly obiter.
McCabe et al. v. Mazzuchelli, 13 Wis. 534, simply holds that a patent to land executed by the governor and the secretary of state, instead of by a board of commissioners, established by the constitution for the sale of school and university lands, was void and not competent evidence.
In People v. Squires, 14 Cal. 13, it was held that it was competent for the legislature to enact laws transferring the duties of assessors and collectors of taxes, which were constitutional offices, to the sheriff. The court says: “We do not see that it would be at all unconstitutional to authorize every taxpayer to pay his taxes directly into the treasury. The law authorizes many acts, such as service of papers, etc., which seem appropriately to belong to the sheriff’s office, to be done by parties or private persons. The law might authorize the collection of stamp duties 'by various officers named’; indeed, the whole of the license receipts, where licenses are required, we apprehend, might be made if they are not
The constitution may receive interpretation from long, constant, and uniform legislative practice, and where, as in many instances, the legislature exercises the power of appointment to office, unquestioned, this is evidence of a constitutional construction concerning the separate nature of the departmental functions, and an acquiescence by the people and the various departments in such practical interpretation. Mayor v. State, 15 Md. 376, 74 Am. Dec. 572.
Apply this principle as an aid to the construction of the enforcement commissioner law. What do we find the legislative construction of the constitution, as evidenced by similar acts, has been in this state? Our legislature has enacted laws providing for game wardens, whose duties include some of those which, prior to statehood, devolved upon sheriffs. They have provided for railway policemen, whose duties likewise infringe on those of sheriffs and police officers, A law changing the duty of executing condemned murderers from sheriffs to the wardens of the penitentiary has been enacted. The same law took the custody of such criminals from the sheriff and placed it with the warden. A state board of health has been provided; a sealer of weights and measures to perform duties which were formerly performed by sheriffs. Laws have been enacted permitting the service of process by private persons. All of these laws come within the ban of the principle of home rule, if properly applied in the majority opinion. But we may go much farther and conclude that, if the duties of the sheriff and state’s attorney are as sacred as maintained —that the .repeal of law creating crimes is obnoxious to the divine principle of home rule- — -that any change in any law which in any manner decreases the duties of this officer is equally invalid. On this subject a most instructive opinion is found in R. M.
While this law is attacked as an interference by the state with the right of counties to local self-government, the majority opinion is confined on that subject mostly to authorities relating to cities and towns. This is doubtless due to the fact that the books contain practically no cases showing that the doctrine has been contended for on behalf of counties, or held to apply to them, while they are very numerous as relates to cities. It may be contended that there is no distinction in the principle. For the purposes of this case, this may be conceded, although in my opinion the principle of local self-government, while possibly applicable in some respects to counties, is far less applicable to them than to cities and towns, and it is so held by the various authorities, from some of which I have quoted. A county is only a quasi municipal corporation, while a city is a full municipal corporation. The county has far less interests which may be termed private than has a city. But assuming that the law relating to police powers, and the principles of local self-government which Prof. Goodnow in his work on Municipal Home Rule says is more properly termed “local self-administration,” applies alike to cities and counties, I shall discuss it without making any distinction, and the principles established by the authorites which I cite relating to the doctrine in cities apply with equal and greater force to counties.
As shown, the functions of a municipal corporation are dual or twofold. They relate not only to the conduct of the private and the local affairs of the corporation, such as the care of streets, sidewalks and waterworks, and other similar duties, and the ownership of necessary property to enable them to conduct their affairs, but they also have duties, as agents or departments of the state, for the local enforcement of law, the collection of taxes, and in many other ways. The distinction between those duties which are purely local and private, and those which devolve upon the municipality as the agent of the state, have not always been clearly made where the doctrine of local self-government has been conceded or upheld, but I find no case in any state extending the doctrine to those duties relating to its public functions as an agent or local subdivision of the state for the administration or enforcement of state laws. The failure to note this distinction, I think, is re
Black, in his work on Constitutional Law, at section 134, says: “In respect to all those matters in which the people of the state generally have an interest and concern, the legislature may require and compel the municipalities to discharge duties, perform works, and, if necessary, contract debts; but in regard to matters of purely local concern which are not of importance to the state at large, and which are generally best regulated by the local authorities, the rule of local self-government requires that the municipality should be controlled only by the preference and determination of its own citizens. The double functions of municipal corporations require them to assume a share in the performance of state duties, as the legislature shall apportion the same, and also' to regulate the matters which only concern the particular community. In respect to the first class of duties, the legislature has control, and it may grant, modify or abrogate municipal powers as its wisdom shall dictate. * * * While municipal corporations are subordinate agencies of the state, and as such subject to the control and legislative authority of the state, yet they are also in some respects assimilated to private corporations in respect to their rights and powers. Governmental powers granted to the municipality may be altered or revoked.” And again at section 136: “Officers having to do with municipal corporations are of two sorts; those whose
Black continues: “Thus a municipal board of police is clearly an agency of the state government, and not the municipality, and therefore belongs to the first class above mentioned.” This is also held in People v. Hurlburt, supra. At section 138, Mr. Black gives the particular limitations upon the power of municipal corporations to enact by-laws, and, among other things, he says, “They must not be in conflict with any provision of the constitution of the state, nor with the general statutes of the state, and must not exceed or violate the limitations imposed by the charter of the particular community.” It may be pertinent to inquire, if the municipality cannot pass by-laws in conflict with the constitution or the laws of the state, can it accomplish the same result, but even more effectually, by electing officers who are pledged to permit the violation of such laws, and the state be left powerless to enforce either its own constitution or its laws?
The Supreme Court of the United States minimizes the doctrine of local self-government, and in Barnes v. District, 91 U. S. 540, 23 L. Ed. 440, says: “A municipal corporation in the exercise of all its duties, including those most strictly local and internal, is but a department of the state. The legislature may give it all the powers such a being is capable of receiving, making it a miniature ■state within its locality. Again, it may strip it of every power, leaving it a corporation in name only, and it may create and recreate these changes as often as it chooses, or it may itself exercise within the locality any or all the powers usually committed to a municipality. We do not regard its acts as sometimes those of
In Mr. Eaton’s articles he refers to the case of State v. Moores, 55 Neb. 480, 76 N. W. 175, 41 L. R. A. 624, as an authority strongly supporting the principles enunciated in the majority opinion, and the opinion in Newport v. Horton, supra, refers, in connection with this case, to Nebraska as the only state still holding that police officers are not state officers, and their control and appointment a proper subject for state legislation; but in Redell v. Moores, 63 Neb. 219, 88 N. W. 243, 55 L. R. A. 740, 93 Am. St. Rep. 431, States v. Moores is overruled, and the Supreme Court of that state in overruling it used some very forceful and cogent arguments. The latter case refers to the constitutionality of a statute conferring upon the governor the power to appoint members of a board of fire and police commissioners of cities. This case upholds the power of the legislature to make these provisions, and in referring to the former opinion of the court it says: “After careful examination of the opinion, and with all due appreciation of the learning and the ability of the members of the court who concur therein, we beg to say that it does not commend itself to our judgment. It holds that the provisions of the statute placing the power to appoint members of the board of fire and police commissioners in the hands of the governor are invalid, not because they are in conflict with any express provisions of the state or federal constitutions, but because they are repugnant to the inherent right of local self-government, which it is claimed was retained by the people at the time of the adoption of the organic law. As far as individual members of society are concerned, in the nature of things there can be no such thing as an inherent right to local self-government. The right of local self-government is purely a political right, and all political rights of necessity have
People v. Lynch, 51 Cal. 15, 21 Am. Rep. 677, is cited as an authority in the majority opinion. I, however, do not read it that way. It holds that the legislature cannot by special act deprive the city council or the proper local authority of a city, of all discretion in respect to local improvements, when the charter leaves such matters to the judgment and direction of the local authorities, and that the legislature is limited under the California constitution relating to assessments to preventing the abuse by municipalities of that power. The learned court discusses at great length the powers of municipalities in such matters, and limits their uncontrolled exercise of those powers clearly and emphatically to internal affairs of purely local concern, and cites with approval the opinion of Judge Campbell in People v. Detroit, 28 Mich. 228, 15 Am. Rep. 202, wherein he says: “There is a clear distinction between the functions of officers whose jurisdiction is limited territorially, considered as agents of the state and as agents of the municipality. The only confusion existing on this subject has arisen from the custom, prevalent under all free governments, so far as possible of making use of local corporate agencies whenever it can be done
In Newport v. Horton, supra, the Supreme Court of Rhode Island says: “The proposition of the petitioners goes too far. It assumes that, because state control interferes at all with local control, it violates the principles of local self-government. In any system of government, towns, as well as individuals, must yield something of individual independence for the public good. The most important laws are made bv the legislature, and agencies are created to enforce them. Ordinarily the state makes use of existing agencies, like town or city officials, to do this, but none the less are they the officers of the state. To say, therefore, that the state cannot assume control of these agencies in public affairs is to say that a town can nullify a state law which it does not approve by choosing officers who will not enforce it. This is not the national doctrine, and for a stronger reason it cannot be the state doctrine. Two replies .to this statement can be made: First, that the state can appoint its own officers to enforce its law. To this we reply that economy and expediency at once suggest the futility of having' two sets of officers whose duty it is to do the same thing, and also that we see no more infringement of the right of local self-government in appointing special state officers to execute a law than in requiring local officers to execute the same laws. It may also be said that courts should not assume that local officers will not do their duty. The court does not so assume. The legislature has evidently made the assumption by the action it has taken and assuming its power, the question of policy is one for the legis
In Michigan, the doctrine of local self-government seems to have received from the courts its most emphatic endorsement, but in none of the cases reported from that state does its court of last resort hold that the principle applies to municipal corporations in relation to their public functions. The last case I find from that state marking the distinction is Davock v. Moore, 105 Mich. 120, 63 N. W. 424, 28 L. R. A. 783. It upholds an act establishing a city board of health to be appointed by the governor, and the opinion refers to the distinction between public and private functions, and says, “In the discharge of public duties, there is no right of local self-government involved,” and “that the care of the public health is within the police power, and therefore within the control of the legislature,” and that it concurs in the distinction made in the prior Michigan cases between local and general duties, and that as regards duties which the people in the several counties owe to the commonwealth at large they cannot be allowed discretionary authority to perform them or not as they may choose. Such an authority would be wholly inconsistent with anything like regulated or uniform government in the state, and whenever the legislature imposes the performance of public duties there is no right of local self-government involved. They have certain duties imposed upon them which are of a governmental character, and which are performed by the local corporation bodies as the agents of the state, and such duties may be enlarged or diminished at the will of the legislature.
In Attorney General v. Lowrey, et al., 131 Mich. 639, 92 N. W. 289, in speaking of quasi corporations, it uses this language: “They consist of counties, townships, school districts, highway districts, etc. They are governmental agencies, and it is, to say the least doubtful if they are in any respect anything else, or have any rights that cari be called private. They perform many functions, but these are for and about the business of the state, which has imposed upon them the responsibility and expense of maintaining highways, schools, drains, and bridges,” etc. And the opinion in Youngblood v. Sexton, 32 Mich. 407, 20 Am. Rep. 654, is a direct answer to the construction placed upon the early Michigan cases by the majority opinion. An act of the legislature of Michigan transferred the duties of tax collectors from city, town
In all matters of general concern there is no local right to act independently of the state, and the local authorities cannot be permitted to determine whether they are to contribute through taxation to the support of the state government or assist when called upon to suppress insurrections, or aid in the enforcement of state laws. Upon all such subjects the state may exercise compulsory' authority and may enforce the performance of local duties, whether by employing local officers for that purpose, or through agents or officers of its own appointment. People v. Detroit, supra; People v. Mahaney, supra; Bay City v. State Treasurer, 23 Mich. 503; People v. Hurlburt, supra.
The Indiana court is cited as an authority in the case at bar, but in Evansville v. State, 118 Ind. 426, 21 N. E. 267, 4 L. R. A. 93, in an opinion holding that a board of metropolitan police and fire board to be appointed by the legislature for cities, which is to have the control of both departments, is unconstitutional, as a denial of the right of local! self-government, the court says: “If the act related alone to the management of the police department, and the state proposed to take upon itself the burden of maintaining the department as well as its management, or if it were made
Arnett v. State (Ind.) 80 N. E. 153, 8 L. R. A. (N. S.) 1192, expressly holdá that the legislature can control the appointment of police commissioners of a city, for the reason that the maintenance of the peace, and the suppression of crime and immorality, are matters of general interest, and subject to state control, and not necessary to be submitted to the people of a locality, and states that this principle has so often been vindicated against attack that the question should now be considered at rest. To the same effect, see State ex rel. Kennedy v. Broatch, 68 Neb. 687, 94 N. W. 1016; State v. Nolan, 71 Neb. 136, 98 N. W. 657; State v. Fox, 158 Ind. 126, 63 N. E. 19, 56 L. R. A. 893; State v. Hunter, 38 Kan. 578, 17 Pac. 177; Diamond v. Cain, 21 La. Ann. 309; and Commonwealth v. Plaisted, 148 Mass. 375, 19 N. E. 224, 2 L. R. A. 142, 12 Am. St. Rep. 566 — in which the courts held that the privilege of local self-government in any particular in which such privilege is not guaranteed by any provisions of the constitution is not ground for declaring an act of the legislature invalid.
In State v. Fox, supra, this language is used: “It is very clear from the tenor of the whole instrument that the constitution makers never intended that the territorial divisions recognized — that is, counties, townships and towns — should govern themseleves independently of state supervision or state supremacy, but in every matter which affects the safety, morals, health or general welfare of the people at large there is undoubtedly reserved in the state the power to supervise, control, and even coerce local officers in the discharge of public duties, and even to send its own agents into organized districts, if necessary to enforce the public right or to accomplish a public benefit. * * * The enforcement of the state’s criminal and revenue laws are of equal importance to all. In
In State v. Covington, 29 Ohio St. 102, an act of the legislature was held constitutional which vested the police power and duties of cities in a board to be appointed by the governor, notwithstanding the fact that at the time of the adoption of the constitution the police of cities were elected by electors resident therein, or appointed by boards or officers elected by such electors; and it was held that matters relating to the police power do not fall within the doctrine of local self-government. Also People v. Shepard, 36 N. Y. 285; Metropolitan Board of Health v. Heister, 37 N. Y. 661.
Astor v. N. Y., 62 N. Y. 567, holds that it would be carrying the doctrine of noninterference with local affairs far beyond any reported case to hold that in no case whatever could any of the powers existing in a local officer at the time of the adoption of the constitution be taken away without violating constitutional provisions. People v. McDonald, 69 N. Y. 362, holds that commissioners appointed by the legislature to widen designated highways, were lawful officers, because the commissioners of highways already in office were continued in office, with charge of the highway after the fulfillment of the office of commissioner appointed by the legislature. Same effect, see Re Woolsey, 95 N. Y. 135.
David v. Portland AVater Committee, 14 Or. 98, 12 Pac. 174, sustains an act which empowers a committee appointed by an act of the legislature to establish or purchase waterworks, and says .that the subjects ordinarily classed as private affairs often become matters of public importance, and holds that when the legislature determines they are of public importance they cannot be designated as mere private affairs.
The Colorado Supreme Court, in Re Senate Bill, 12 Colo. 188, 21 Pac. 481, holds that, while there was strong reason to recognize the right of local self-government, it was a matter pertaining to the policy of proposed legislation, rather than a question of constitutional construction. See, also, State v. Smith, 44 Ohio St. 348, 7 N. E. 447, 12 N. E. 829, and State v. Williams, 68 Conn. 131, 35 Atl. 24, 421.
State v. Barker, 116 Iowa, 96, 89 N. W. 204, 57 L. R. A. 244, 93 Am. St. Rep. 222, relates to the validity of a law authorizing the appointment of trustees of the city water and supply system by the district court, and it was held that such provisions were unconsti
The distinction between the functions of political subdivisions of the state which relate to their own duties and those wherein they act as the instrumentality of the state for the enforcement of law and for the carrying out of the general policy of state government runs all through the decisions of the courts relating to the liabilities of such subdivisions, and Prof. Goodnow, in his work before referred to, lays down the rule that municipal corporations are not responsible for torts committed in exercising a part of the state power, but that they are' liable when acting in the exercise of those duties which are purely municipal or private. See chapter 7, and cases there collected and cited. The same rule applies as to the control of property and its alienation by municipalities. Prof. Goodnow cites the laws providing for public examiners in the states of North and South Dakota and several others, as evidence, as he puts it, that with the common sense that is characteristic of the people of this country we have, notwithstanding our supposed adhesion to the political theory' of local self-government or administration, not hesitated to centralize our administrative system of subjecting our local authorities to the central administrative control whenever we have seen that uncontrolled local action has led to administrative inefficiency or inequality of financial burdens.
The state of Vermont found the same difficulty in securing the enforcement óf criminal laws in some counties which was experienced in this state, and which resulted in the statute which we are considering. In that state, state’s attorneys can nolle pros, criminal proceedings; and to prevent this, and to ensure the enforcement of law, the legislature enacted a law providing for the appointment by the governor, in his discretion, of special prosecutors of criminal offenses within cities and towns where,, by reason of neglect or inefficiency of local prosecuting officers, criminal laws of the state were not properly enforced, and authorizing such special prosecutors to institute prosecutions and to appear in court and control the trial and disposition' of such cases, and required state’s attorneys to assist in such trials. The constitution of the state contained the requirement that state’s attorneys should be elected by -the voters of their respective counties, identical in effect with the provisions requiring county officers to be elected in this state, but the Vermont constitution contained no requirement that the legislature prescribe their duties. A prosecution was commenced by a special prosecutor so appointed, and a petition for a writ of habeas corpus was heard by the Supreme Court, wherein it was complained that the defendant was proceeded against by a special prosecutor, and it was contended that his imprisonment was illegal, because the act authorizing such appointment was in conflict with the article of the constitution requiring the election of state’s attorneys by counties, and the court held the act in question constitutional, and that the legislature had power to provide for the appointment of such officers by the governor, and by officers not elected by the people, although another phase of the law was not passed upon. In re Snell, 58 Vt. 207, 1 Atl. 566.
In Massachusetts, the .legislature in 1865 enacted a law providing for state police, known as the “State Constabulary Law,” which provided that the governor should appoint a state constable, who might appoint deputies who should be possessed of all the common-law and statutory powers of constables except the service
The Supreme Court of South Dakota had before it in 1892 a law which authorized -the attorney general in certain contingencies •to appoint such reputable attorney as he should see fit, and who should be authorized to sign, verify and file such informations or papers as the state’s attorney was authorized to sign, file or verify, and to perform' any act that the state’s attorney might lawfully do and perform. This law was attacked, and the court says: “The contention of the defendant in error is that the legislature could not lawfully empower the attorney general to make this appointment; that it was the creation of a new office, and while the legislature might do this, it could not authorize the attorney general to do so. This position cannot be maintained. The office of attorney general is a constitutional office, but his duties ‘shall be prescribed by-law’ (section 13, art. 4, Const.), and so with the state’s attorney. ‘The legislature shall have power to provide for state’s attorneys and prescribe their duties.’ Section 24, art. 5, Const. I,t is thus left with the legislature to define the 'duties of each of these officers. The attorney general is in the same department of service as the state’s attorney,.but having a larger jurisdiction, and is in a sense a superior and supervising officer. We have no doubt, but that it would be competent for the legislature to authorize the attorney general to appoint an assistant for himself, or an assistant or deputy state’s attorney, in any county,
Mr. Dorman B. Eaton, in his celebrated work on the Government of Municipalities, says: “The subject of home rule for municipalities — the question hów far their residents should be allowed to control their own local affairs — is one of great importance, as to which there seems to be much confusion of thought. It is quite in harmony with our republican system, and highly desirable, that public authority should not be needlessly centralized; that it should be as directly and largely exercised by bodies and officers of local jurisdiction as is compatible with just and efficient government for the nation and states. Indeed, one of the paramount objects in the creation of cities and villages — as in the creation of towns, counties, and even of states — is to. facilitate the local control of their truly local affairs. The government of each of these jurisdictions involves a common principle and policy. The problem of home rule, as we ought to clearly see at the outset, raises not only a question between cities and states, but one between the states and the nation; for the pretended right of secession was but a phase of the question both of principle and policy. We ought clearly to see at the start that if a city has the absolute right ■to control what it may be pleased to call its own affairs, a village, a town, and a county may have the same right. These principles are indisputable. * * * Legally considered, the claim of right, on the part of every city, town or village, to regulate its own affairs, is a mere question — to be decided by the proper courts — as to the true interpretation of the constitution and laws applicable to them. It hardly need be said that on every basis of 'justice and law
It is significant of the thoughtless facility with which false and dangerous theories of home rule have lately found acceptance that the vital distinction here pointed out — the duty of the state to confer local power for improving and not degrading local government — has not been noticed, and that unscrupulous party majorities in great cities, shouting for larger home rule for degrading and partisan ends, have been, in substance, taught that they have a right to it, irrespective of consequences, merely because such a majority demands it.
The doctrine of home rule, as often presented, is not only one tending to disintegration, insubordination and anarchy, but is one which enfeebles the state and degrades it in the estimate of the people, in the same degree that it stimulates selfishness, arrogance, and partisan domination on the part of cities. When several states made war on the Union in the name of false theories as to the right of home rule, a mayor of New York, Fernando Wood, rightly interpreted their example, when he proclaimed the right of the city of New York to be a free city. Some of the champions of unrestrained home rule for cities seem to go quite as far as that notorious mayor, when they declare that “our large cities must stand in the same relation to the national government that states do,” and that it is necessary “our large cities should be free cities.”
We have on one side the sovereignty of the people of the whole state, and among the elements of such sovereignty is the police power, as I have shown by citations and otherwise, existing in the very foundations of society, even before the organization of the state or constitution, a power necessary to the maintenance of the state, to its self-protection and preservation as a unit of the American nation, and as a body whose supreme duty is to protect the peace and sovereignty of its citizenship, and the good order of communities, and we have article 20 of the constitution, supra, commanding the legislature to prescribe regulations for enforcing its provisions. On the other hand we have the doctrine — announced in the majority opinion — that it is not competent for the legislature to enact laws taking from sheriffs or state’s
A constitutional provision should not be so construed as to defeat its evident purpose, but rather so as to give it effective operation and suppress the mischief it was aimed at (Jarrolt v. Moberly, 103 U. S. 585, 26 L. Ed. 492), and courts will look to the history of the times and examine the state of things when the constitution was adopted to ascertain the old law, the mischief, and the remedy. 6 Am. & Eng., Enc. Law, 930, notes 3 and 4.
No court of justice can be authorized so to construe any clause of the constitution as to defeat its obvious ends when another construction equally accordant with the words and sense thereof will
I have indicated the circumstances under' which article 20 of the constitution was adopted. It requires that “the legislature shall prescribe regulations for the enforcement of its provisions,” and from citations hereinbefore made it is clear that under such circumstances courts construe the kind and character of such regulations as being within the legitimate exercise of the judgment of the. legislature; that it is the judgment of the legislature rather than courts that is to be exercised. And again, the people having voted upon this article separately from the remainder of the constitution, and having by their votes adopted it, it was given an emphasis which otherwise would not have belonged to it, and it is entitled to a liberal construction with a view to carrying out the purpose of the voters in adopting it. When one section treats specifically and solely of a matter, that section prevails in reference to that matter, over other sections in which 'only incidental reference is made thereto, because the legislative mind, having been in the one section directed to this matter, must be presumed to have there expressed its intention, rather than the sections where its attention was turned to other things, and the same rule applies to constitutional provisions. 26 Am. & Eng. Enc. Law, 620, and cases cited; Warren v. Shuman, supra; Gulf R. R. v. Rambolt, supra.
It is an elementary principle that when a power is conferred everything necessary to carry out the purpose of the power con
The logical and practical application of this decision in this proceeding means that this state not only has, in spite of the plain terms of the constitution to the contrary, local option as to the liquor traffic, but worse yet, that it lies in the option of any county, indirectly, by electing officers pledged to violate their oaths of office, to disobey any or all statutes enacted for the suppression of crime, for the promotion of public health and morality, for the protection of life and property, the assessment and collection of
It must not be overlooked that, in construing a constitution, the courts always regard not simply what is happening, but what may or what is possible to happen. I repeat that the things above suggested are possible under an undue, and as I believe unwarranted extension of the principle of local self-government, so-called. I, however, have little fear that such conditions will ever prevail to any considerable extent. Fortunately, there will always be a majority of the people in most, and I believe in the near future in ail, our counties, whose respect and reverence for law, though they may doubt the wisdom of a partcular law, will prevent the prevalence of any such conditions.
From a review of all the authorities on the subject to which I have had access, I find none holding that positive prohibition not contained in the constitution can rest solely upon implication, when the result or effect is or may be to deprive the state of its police power, and negative its ability to afford its subjects the protection which is intended to operate as among the primary functions of the state. No such doctrine should be based upon any mere implication. The statement of it means that the county is bound by no laws except those its people may choose to ratify, and that all others may be annulled or resisted locally. “Our constitution does not contain the absurdity of giving power to make laws, and another to resist them.” At least such absurdity should rest upon some stronger authority than any derived merely by implication, when opposed by a positive prohibition. The enforcement of the criminal laws of the state has been universally conceded as a function of the state, and not solely included in the proper sphere of local self-government, the principle of which only applies to matters in which the people of the state at large have no interest, and I deem it beyond the province of the courts to hold that, because the constitution has permited the election of state’s attorneys and sheriffs by counties, it must be implied that the exclusive right and power to say whether criminal laws shall or shall not be observed rests in each county.
From a consideration of the cases cited and many others, I am satisfied that the state has, within well-defined limits, the right to prescribe the methods and means to be used to enforce its criminal laws; that the office provided for in the law in question was a state office, with state and not local duties; that -the providing for it was a political question, the determination of which was within the judgment of the legislature, and not subject to the review of courts; that it exercised its judgment as to the method best adapted to meet the emergency, and without conflict with any principles of local self-government; but that if there existed such conflict, the express command and prohibition of the constitution should prevail rather than anything which must be read into it or unnecessarily implied from it.
I therefore conclude that the law in question is not subject to the objections made, but is a proper exercise of the legislative powers and functions.
The principle of the majority opinion is very far-reaching, and by implication puts a restriction on legislative power and discretion, as well as upon the people of the state, so great that it will be found, under the practical working of the rule announced, that the lawmaking power will be seriously hampered in framing legislation to meet new situations as well as present and future conditions, and this is my apology for the great amount of space which I have used in expressing my views and the reasons which seem to me to afford them ample support.
