EDWARD L. RICE vs. JOHN FOSTER
Superior Court of the State of Delaware
June term, 1847
48 Del. 479
Johns, Jr., Chancellor; Booth, Chief Justice, and Judges Harrington, Milligan and Hazzard
Legislative power in this State is vested in a General Assembly, consisting of a Senate and House of Representatives.
The people have divested themselves of all legislative power, and vested it in this body. They can resume it only in the forms of the constitution, or by revolution.
The General Assembly cannot delegate this power to any other person, or body; not even to the people at large; nor can they make it to depend on the assent or approval of any other.
The citizen is bound to obey the will of the legislature, as prescribed in the written statute. If the statute in itself give no evidence of legislative will, as a rule of conduct, the citizen cannot obey it; if it subject the legislative will to any other will, the citizen is not bound to obey it.
The act of 1847 “authorizing the people to decide by ballot whether the license to retail intoxicating liquors shall be permitted among them,” expresses no legislative will on this question; prescribes no rule of conduct for the government of the citizen; and delegates legislative power to the people of each county.
DEBT on a lease. Case stated. The legislature of Delaware by act of the 19th of February, 1847, entitled “An act authorizing the people to decide by ballot, whether the license to retail intoxicating liquors shall be permitted among them,” enacted as follows:—
Sec. 1. That on the first Tuesday in April, 1847, the citizens of the several counties in this State, shall decide by their votes whether or not the retailing of intoxicating liquors shall be permitted in said counties.
Sec. 2. The officers of the last general election shall, on that day, open a poll at the several election districts, and receive the ballots of qualified voters for “license” or “no license;” and an accurate return of the votes shall be made to the clerk of the Court of General Sessions, to be laid before the judges.
Sec. 3. If at such elections there shall be a majority of votes for “no license” in any or all of the said counties, it shall not at any time thereafter be lawful for any person to retail intoxicating liquors within such county; and it shall not be lawful for the said court to recommend for license any person to keep a tavern or store for the sale of intoxicating liquors within said county; and the retailing intoxicating liquors within the county so voting is declared to be a nuisance, and is prohibited, until such decision of the majority of votes shall have been reversed as hereinafter provided.
Sec. 4. If any county, by a majority of votes, shall decide against
Sec. 5. On application of one-fourth of the legal voters to the Levy Court, to present the question of “license” or “no license” again to the electors, another election shall be held for the same purpose, and in the same manner, on the first Tuesday in April next succeeding.
Sec. 6. If there shall be a majority of votes for “no license” in any county, it shall be an indictable misdemeanor for any person to sell liquor in such county contrary to this act.
Sec. 7. If at any such election there shall be a majority of votes for “license,” then the laws now in force regulating the licensing of taverns, &c., shall remain and be in full force as before, so far as respects such county or counties which shall so determine. (10th v. 178.)
In pursuance of this act, elections were held in April, 1847; and certain paper writings purporting to be the returns of said elections were filed in the court, showing a majority of votes in New Castle county against license.
The present action was brought for the purpose of trying the constitutionality of this act of assembly. It was an action of debt on a lease, from Rice to Foster, of a tavern house in Wilmington, at a rent of $700 per annum; subject to a proviso that the rent should be only $500; “if by the law of this State, the Court of General Sessions have not at the May term, 1847, any lawful authority to recommend to the governor, any person to keep a public house or tavern for the sale of intoxicating liquors within the county of New Castle.” One quarter‘s rent was due and payable, by the terms of the lease, on the 8th of May, 1847: the defendant paid $125, and refused to pay any more; and this suit was brought for the residue.
The questions arising on the record were submitted to the Superior Court; and were reserved, by order of that court, for hearing before all the judges. The case came up for hearing in the Court of Appeals, consisting of Johns, Jr., Chancellor; Booth, Chief Justice, and
The plaintiff‘s counsel made the following points: 1st. That no authentic evidence of the election, and its result, had been presented to the court. 2d. That the act of 1847 was unconstitutional, because it was contrary to the limitations of legislative power necessarily involved in a representative republican form of government.
The people cannot make a law; neither the whole people nor a part of them. All laws must be made by their representatives in general assembly met for deliberation, consultation and judgment; acting under oath, and under the restrictions of the constitution.
The representatives of the people in the legislature, though, in general, bound to respect the will of their constituents, are also bound to exercise their own judgment, and to oppose that will, when it invades individual rights, or violates the principles of the social compact. This is a right of minorities, which it was the object of the constitution to secure.
The general assembly is the depository of legislative power; which is a trust to be executed with judgment and discretion, and cannot be delegated to any other body, or persons.
The act of 1847 delegates legislative power to a majority of the people of a county. The restriction upon the granting of licenses is not imposed by the act itself, but by a vote of the people. It may be repealed, and again revived, without any further action of the legislature, or any expression of legislative will. If it be constitutional thus to legislate on this subject, it is so on all others; and legislative power is thus virtually transferred from the general assembly, where the constitution has placed it, to a portion of the citizens; though it does not exist even in all the citizens.
Legislative power exists as a unit, to be applied to all the people alike who are under the same sovereignty; and a law applicable to a general offence, cannot be limited to a part only. The same crime, or offence, cannot be punished differently in the different counties.
The act in question is unconstitutional as a revenue bill; and, also, as conflicting with the clause that requires all elections to be free and equal; because it seeks to bind all the people by the vote of a majority of the people of one county only.
Original and ultimate sovereignty is in the people; yet it is never exercised by them collectively, but only through agents of their selection. The purpose of elections is to choose such agents.
The defendant‘s counsel argued: 1st. That the election returns, though informal, were sufficient. 2d. That the act of 1847 was constitutional.
It does not delegate legislative power. Legislative power is the power of making laws; not merely voting for or against laws made by others, but of proposing and maturing laws. The legislature passed this law. They expressed the judgment that such a law was beneficial to the community; and they declared the legislative will that such a law should exist, if a certain number, to wit, a majority of the people of either county, should vote in a certain way.
A strong argument in favor of the law is furnished by the practice of similar legislation in the General Government, and of the several States.
The Constitution of the United States was itself subjected by the federal convention to the sanction of Congress, and of the States. The same may be said of most of the State constitutions, which were submitted to a vote of the people.
The ordinance of 1787, for the government of the N. W. Territory, which was subject to the laws of Congress, authorized the governor and judges to report laws which should be in force unless disapproved of by Congress; and this kind of legislation was sustained by the courts. (3 U.S. L. 2074; 5 Wend. 478; 7 Ibid 539.)
The acts authorizing the President to give notice in respect to the joint occupation of Oregon, and for the admission of Texas, on a vote of the people, are of the same character.
The acts of 1809, 1810, repealed the non-intercourse laws on a subsequent event, to be made known by the President‘s proclamation; and this conditional mode of legislation was sustained by the Supreme Court, in the case of The Aurora v. The United States, 7 Cranch 382; 3 St. Pa. 297. The act now in question is on the same principle.
Under the Constitution of the United States no new State can be formed by dividing a State without the consent of its legislature; yet the State of Maine was formed of Massachusetts territory on a law
Similar laws have been passed in other States, and in our own. (13 Conn. Rep. 120; Laws Kenty. 1842; 4 B. & Mun. Rep. 146-49; M. & Per. Dig. 566; 24 Pick. 359; 12 Ibid 184; 7 Cow. 349, 585; 2 Overton 171; 2 Yeates 493; 2 Marshall 483; Laws Mich. 1845, ch. 46; Laws Vermt. 1846, ch. 24; Laws Ohio 1847, p. 131, Laws of N. York 1845, p. 322; Laws of Penna. 1846, p. 348; Laws of N. Car. 49, ch. 36; Laws of Del. 8 vol. 21, 24; 3 Harr. Rep. 335; Dig. 493; 3 Kent Com. 278; 13 Wend. 355; 9 Del. Laws 284, 527.)
The act for the establishment of free schools, sec. 5; and the supplement to the Wilmington city charter; and also the act for the removal of the seat of justice from New Castle; and the act authorizing school district No. 18, Kent county, to lay taxes by vote, are all on the same principle. So, also, the laws authorizing the Levy Court to lay taxes, to accept roads, &c., &c.
The law of 1847, is not objectionable on either of the other grounds mentioned.
Examples of legislation for a single county or district are frequent, and often requisite to meet the condition of such county or district. This is peculiarly so as to nuisances; and the sale of liquor is declared in this act to be a nuisance.
The provision for the freedom and equality of elections has no reference to, or bearing on this question; and there is nothing in the constitution to prevent a ballot on an abstract question, as well as on the election of officers.
This is not a revenue bill; but a mere police arrangement to restrain the sale of liquor. The revenue raised by it is merely incidental.
The plaintiff‘s counsel replied, that the framing of constitutions or organic laws, where no constitution existed before, was a different thing from passing laws under constitutions which vest legislative power in a particular branch; and that the instances of irregular legislation in other States were of no authority, unless they had been sustained by judicial investigation.
That the argument of the defendants gave to the people at least a veto on the acts of the legislature, which was unconstitutional.
That the legislature had no more power to make their action to depend on the will of the people, than either of the other branches of government; the judiciary, for instance, or the executive.
And, they maintained, that there was a distinction between this act and the free school law, and other laws with which it had been compared; except the act for removing the seat of justice from New Castle, which was admitted to be liable to the same objection.
The opinion of the Court was delivered by the Chief Justice, who was followed by Judge Harrington, and the Chancellor; the former of whom, with Judge Hazzard, dissented on the first point, viz: the sufficiency of the election returns. On the Constitutional question, the Court were unanimous.
BOOTH, Chief Justice.—The question arising upon the statement of facts in the case submitted to the court, is, whether the judges of the Court of General Sessions of the Peace and Gaol Delivery have any lawful authority to recommend to the governor of the State, any person or persons to keep an inn, tavern, or public house of entertainment, for the sale of intoxicating liquors, within the county of New Castle.
At a very early period in the history of our colonial government, licenses to keep inns, taverns, and public houses of entertainment, were granted by the governor, upon the recommendation of the judges of the Court of General Sessions of the Peace and Gaol Delivery. Spirituous and vinous liquors were retailed by virtue of this license, although not mentioned in its words. With a few slight modifications, the law on this subject has continued in force to the present time. The legislature of this State at their late session, passed an act on the nineteenth day of February last, authorizing the people in their several counties, on the first Tuesday of April, A. D. 1847, to decide by ballot, whether the retailing of intoxicating liquors should be permitted among them. If a majority of votes polled in any county at such election was for “no license,” by the terms of the act, the retailing of intoxicating liquors is prohibited within such county; and the judges of the Court of General Sessions of the Peace and Gaol Delivery have no lawful authority to recommend any person for a license to keep an inn, tavern, or public house of entertainment. If a majority of votes was for “license,” the law continues in force, and licenses are to be granted as heretofore.
The question then depends on the validity of the act of the nineteenth of February, 1847; and if valid, on the result of the popular vote in New Castle county, at the election held on the first Tuesday of April last.
The proposition that an act of the legislature is not unconstitutional unless it contravenes some express provision of the constitution is, in the opinion of this court, untenable. The nature and spirit of our republican form of government; the purpose for which the constitution was formed, which is to protect life, liberty, reputation and property, and the right of all men to attain objects suitable to their condition without injury by one to another; to secure the impartial administration of justice; and generally, the peace, safety and happiness of society, have established limits to the exercise of legislative power, beyond which it cannot constitutionally pass. An act of the legislature directly repugnant to the nature and spirit of our form of government, or destructive of any of the great ends of the constitution, is contrary to its true intent and meaning; and can have no more obligatory force, than when it opposes some express prohibition contained in that instrument. It is irrational to maintain, that such an act is a law, when it defeats the very object and intention of granting legislative power. Therefore an act, such as that mentioned in the argument, to make a man a judge in his own cause, would not be valid; because it never was the intention of the constitution to vest such power in the legislature, the exercise of which violates the plainest principles of natural justice. So also an act is void, if it palpably violates the principles and spirit of the constitution, or tends to subvert our republican form of government. Of this character, it is contended, is the act of the legislature of the nineteenth of February, 1847.
The powers of government in the United States are derived from the people, who are the origin and source of sovereign authority. The framers of the Constitution of the United States, and of the first constitution of this State, were men of wisdom, experience, disinterested patriotism, and versed in the science of government. They had been taught by the lessons of history, that equal and indeed greater dangers resulted from a pure democracy, than from an absolute monarchy. Each leads to despotism. Wherever the power of making laws, which is the supreme power in a State, has been
In the convention of 1787, which formed the Constitution of the United States, the spirit of insubordination, and the tendency to a democracy in many parts of our country, were viewed as unfavorable auguries in regard both to the adoption of the constitution, and its perpetuity. The members most tenacious of republicanism, were as loud as any in declaiming against the vices of democracy. Mr. Gerry, of Massachusetts, the friend and associate of Mr. Jefferson, thought it “the worst of all political evils.” The necessity of guarding against its tendencies, in order to attain stability and permanency in our government, was acknowledged by all. Even the propriety of electing by an immediate vote of the people, the first branch of the national legislature, was seriously questioned by some of the ablest members, and warmest advocates of a republican form of government. Mr. Sherman, of Connecticut, opposed it on the ground
The Constitution of the State of Delaware begins by asserting the great principles on which it is founded; and the aim and object of
The question then arises, whether the act of the 19th of February last, transfers or delegates legislative power. If it does, it is unconstitutional.
The legislature at their late session, were urged by numerous petitions signed by a large number of very respectable citizens, to refer it to the people to decide, whether the laws licensing the sale of intoxicating liquors should be repealed. If the members of the legislature, by the convictions of their own judgment, were assured that the sad evils of intemperance flowed from the existence of these laws, it was their duty to repeal them; or to introduce such modifications as might destroy their baneful influence. This course was required of them, although the will of the constituents of many of the members might have been opposed to it. The doctrine of the common law is, that a member of a legislative body, although elected by a particular county or district, is bound, in the performance of his functions, to act not merely for the benefit of his own constituents, but for the whole State. The opinions and will of his constituents ought always to command the most respectful attention; but if clearly opposed to his deliberate judgment, to the principles of the constitution, to the dictates of sound morality, or to the public welfare; as an honest and upright man, he ought not to obey them. The representative (says Mr. Burke) owes to his constituents, not only his industry, but his judgment; and he betrays, instead of serving them, if he sacrifices it to their opinions. Our legislature, acting with the best intentions, and following the precedents set by the legislatures of other States, the constitutionality of which had never been brought to the test of a legal decision,* declined the responsibility which it was their duty to
The laws licensing the sale of spirituous and vinous liquors are valid laws; and must remain in full force, until repealed or modified by the regular and constitutional exercise of the legislative power; by a law passed by the Senate and House of Representatives, in General Assembly met. No such law has been, or was intended to be passed by the legislature. They purposely avoided it. They merely left the subject to the people of each county to decide by ballot, whether the license laws should be repealed or not, within such county; and until such decision should be made by a majority of the legal voters, the laws were to remain in full force. The people of each county were to act on the subject, and not the legislature. The license laws were to be repealed in a county, not by the will of the legislature, but by the will of a majority of the citizens who voted in such county, although it might be against the will of a majority of the citizens of the State; by the exercise of legislative power by the people of a county, which could not be done by the people of the State: by a law (falsely so called) enacted and passed through the medium of ballot-boxes, and not by a law enacted by the Senate and House of Representatives of the State of Delaware, in General Assembly. The design and true character of the act of the 19th of February last are, to confer the functions of the legislature of the State upon the people of a county; to give them the means of exercising legislative power, by authorizing them to decide by their votes, whether the retailing of intoxicating liquors should thereafter be lawful in their county.
A law when passed by the legislature, is a complete, positive, and absolute law in itself, deriving its authority from the legislature; and not depending for the enactment of its provisions, upon any other tribunal, body, or persons. It may be limited to expire at a certain period; or not to go into operation until a future time, or the happening of a contingency, or some future event; or until some condition be performed. Of this description, are many of the laws of the general government respecting duties and imposts; and laws of our own State respecting private corporations; which latter are not to operate until some condition be performed, or the assent of the corporators be given; because a private incorporation is a contract between the State and the corporators; and therefore, the legislature
But it is argued, that the act of February last, does not transfer or delegate legislative power: that the legislature have the right to pass conditional laws, which are to commence their operation or to be void upon the happening of some future event, or some contingency: that this act is one of that character, and does not differ in principle from several acts of Congress, and statutes of our own State,
The Supreme Court of the United States decided that the legislature may make the revival of an act depend on a future event, and direct that event to be made known by proclamation; that there was no sufficient reason why it should not exercise its discretion in reviving the act of March 1, 1809, either expressly or conditionally; and that the nineteenth section of that act could not restrict their power of extending its operation without limitation, upon the occurrence of any subsequent combination of events. There is not the slightest resemblance between the law of Congress and the act of our legislature. The non-intercourse law was complete and perfect in itself when it passed from the hands of its makers. The act of May, 1810, declared it should be revived on the happening of a subsequent event, to be made known by the president‘s proclamation, which operated simply as a rule of evidence, but did not make or enact the law. Had the president been empowered to repeal existing laws and create a new law, by the exercise of his will, and to announce his decision by a proclamation, as the people of New Castle county were empowered to do by the legislature of this State, and to have their decision announced by the returns of an election, there would be an analogy between the two cases. Were it possible to
By the law of this State for establishing and supporting free schools, each school district is constituted a corporation with limited powers; the clear income of the school fund is apportioned among the several counties; the share of each county is divided among the several school districts of such county, and an equal portion given to each, as a donation; provided, the voters in such district raise by subscription or tax, in any one year, a sum equal to one-half of such district‘s share of the school fund. (Vol. 8, Del. Laws 21.) But no tax can be levied or assessed in any school district, unless upon a vote by ballot there shall be a majority of votes for the tax. (Vol. 8, Del Laws 171.)
In the distribution of the school fund, the legislature had the right to appropriate an equal portion to each school district, as a donation; and to prescribe as a condition, that before it should be paid, a certain sum should be raised in the district, either by voluntary subscription or by a tax, as should be determined upon by the corporators themselves. No power is granted to them, or to any other persons, to repeal or change any part of the law; nor does its existence or operation depend on the performance of the condition, or in any manner upon the will or acts of the corporators. If the condition be not performed, the defaulting district loses its portion of the fund; which, after a certain period, is appropriated to the support of free schools in the other districts. No ingenuity can discover the shadow of similitude between the act of the 19th of February, 1847, and any part of the school law. To say that the authority given to the school voters—to members of a corporation—to determine whether a tax shall be laid or not, is a grant of legislative power; is an abuse of language. Legislative power is the power of making laws. The making of a law prescribing by what persons, or by
The case of Gray v. The State of Delaware (2 Harr. 76,) does not announce any such principle as that the legislative power of the State may be delegated; and, although the point was argued, the case does not profess to decide it. The decision is merely that the mayor‘s court of the city of Wilmington has jurisdiction to try cases of assault and battery. It was not necessary to decide that the mayor‘s court could try such cases without the intervention of a jury, as it appeared from the record, that the plaintiff in error had submitted himself to that mode of trial. (p. 88.) The argument of the learned judge, which appears in the report of that case, goes only to the extent, that as the general assembly had the right under the fifteenth section of the sixth article of the constitution, to confer on the mayor‘s court, jurisdiction in cases of assault and battery, either with or without trial by jury; it was not a delegation of the legislative power of the State to enact in the city charter, that the mayor‘s court should “have power to try such cases with or without trial by jury, as should be provided by the ordinances of the said city.”
The granting of an act of incorporation is the exercise of legislative power. To make ordinances for its own government, subject to the control of the legislature, and not inconsistent with the constitution and laws of the State or of the United States, is one of the rights inseparably incident to every corporation aggregate. This is implied by law from the very act of incorporation itself, although the charter may be silent on the subject. With what show of reason then can it be said, that the power, whether expressed in the charter or not, to make ordinances for the management of the local concerns of the corporation, and the government of its members, is a transfer or delegation of the legislative power of the State? Or that it is any thing else than the execution of an authority or trust expressly
But the defendant‘s counsel contend, that the act of February, 1847, is valid, because it is merely a conditional act; to take effect upon a contingency, upon the result of a popular election. Admitting it in that sense of the term to be a conditional act, and further, that it is an act perfect and complete in itself, and instead of giving power to the people of a county to repeal, enact, change, and re-enact laws, it expressly repealed the license laws and prohibited the sale of intoxicating liquors in every part of the State; but before it shall go into operation, let us suppose that it is to be submitted to the vote, not of the people of a county, but of the people of the whole State, for their approval or disapproval. If approved by the majority, it is to become a law; if disapproved, it is not to become a law. This presents the case in the most favorable point of view for the defendant. But were such the character of the act, it would as clearly be unconstitutional, as it is in its present form. In the one case, the people of the State are constituted a component part of the legislature: in the other, the legislative power of the State is delegated to the people of a county. In the former case, a new power in legislation is introduced, unknown to the constitution; but which the legislature undertake to grant, by requiring the assent or dissent of the people to the enactment of laws; a power commonly called the veto power; and which was expressly refused to the executive, by the convention that formed the constitution. In the latter case, by vesting the law making power in the people, the legislature venture
It has been argued with much force, that the legislature have no authority to call into action the elective franchise in any other cases, or for any other purposes, than those designated by the constitution: that the peace and harmony of society are not to be invaded, nor the passions of the people excited, by calling them out to vote upon speculative questions of morals or policy: that the meaning of an election and the legitimate object of the ballot-box, is the choice of men to fill public offices, and of representatives to carry out political measures for the interest and welfare of their constituents and the community at large; and that every conceivable case where such an election can be necessary or proper for public purposes, is provided for, by the constitution itself. There is much strength in the argument; and it may be well questioned whether the legislature constitutionally possess such authority. But it is quite certain, that they usurp power when they call on the people to legislate by the ballot-box. If they can refer one subject, they can refer any other, to popular legislation. There is scarcely a case, where much diversity of sentiment exists, and the people are excited and agitated by the arts and influence of demagogues, that will not be referred to a popular vote. The frequent and unnecessary recurrence of popular elections, always demoralizing in their effects, are among the worst evils that can befall a republican government; and the legislation depending upon them, must be as variable, as the passions of the multitude. Each county will have a code of laws different from the others; murder may be punished with death in one; by imprisonment in another; and by a fine in a third: slavery may exist in one, and be abolished in another. The law of to-day will be repealed or altered to-morrow, and every thing be involved in chaos and con-
The only check which the constitution interposes to an act of the legislature tending to such consequences, is an independent and upright judiciary. As the act passed on the 19th of February, A. D. 1847, entitled “An act authorizing the people to decide by ballot whether the license to retail intoxicating liquors shall be permitted among them,” is repugnant to the principles, spirit, and true intent and meaning of the constitution of this State, and tends to subvert our representative republican form of government, it is the unanimous opinion of this Court, that the said act is null and void; and that judgment be rendered, by the Superior Court, for the plaintiff.
HARRINGTON, Justice.—Concurring as I do, in the judgment of the Court, as pronounced by the Chief Justice, on the principal question in this cause; I should not add any thing, had I not been particularly referred to as having drawn the opinion in the case of Welcome Gray v. The State of Delaware. That opinion was not delivered; nor is it published as the opinion of the Court. No judgment was pronounced on the point now brought up. If, therefore, there be any thing in it which the deliberate judgment of this Court does not sanction, it can have no authority here. The Chief Justice has said that there is no conflict between the cases; if there was, I hope I should have candor enough to admit and to correct the error, as I had much rather be right, than to be consistent: but the distinction between that case and this is, I think, striking and obvious.
It is conceded by all that legislative power cannot be delegated. That case assumes that the legislature may pass a conditional law. Both of these propositions are true. The error in the argument is in supposing them to be alternative or inconsistent. Doubtless, the legislature may pass many conditional laws; but there are many conditions that would make such laws improper. A law opening a road,
It is much to be regretted that this provisional mode of legislation could not have been tested on some subject concerning which the public judgment was less likely to be influenced by their wishes than on this question of restraining licenses for the sale of liquor. So ardent are the friends of temperance to push forward their good work, and so many hopes are resting upon this act as an effective auxilliary to these efforts, that the principle of the act is in some danger of being concealed by the anxiety to see it established as law. Nor can any one, considering it as closely as he may, and in the light thrown upon it by argument and authority, entirely divest himself of the imposing weight of a popular vote of a large county in its favor, and the concurring voice of many citizens in all the counties engaged in the great cause which this act was intended to subserve. For myself, I can say with perfect truth, that I have met this question hoping to find it compatible with my duty to sustain the law, and yielding reluctantly at last to a contrary conviction. But these are considerations which are limited by higher obligations; and, when the matter to be considered is the constitutional power of the legislature to pass an act authorizing the people to decide by ballot whether
I have said that law is a rule of conduct, prescribed by legislative power, commanding what is right, or prohibiting what is wrong. This is the exact definition given by the highest authorities. It is a rule—a certain, positive and known principle of action; a rule prescribed—fixed upon, defined, ordered and made known; a rule prescribed by legislative power—by that depository of sovereignty, or branch of government, whose province it is to make law. No other can prescribe a rule of conduct for the citizen, or announce a will that the citizen is bound to obey. Law is never, in this sense, contingent; it is never subject to the discretion of those whose conduct it is designed govern. It is a command; not counsel merely, or advice; it prohibits, and does not persuade. It extends its iron sway over the unwilling as well as the willing, and never asks the consent or ratification of any other than the creative power.
It is true that, in this country, law may be said in one sense to depend on the consent of the citizens; but it is a general consent expressed through their representatives in the act which makes the law, and never depends on subsequent individual approval. The people have agreed to be bound by the judgment and will of their representatives, as expressed in their legislative acts, because all the people are
The validity of by-laws of corporations rests on the same principle of consent. They are local in their character; generally unimportant in their bearing on public interests; and binding only on the members of the corporation, or strangers who voluntarily place themselves within the corporate jurisdiction. The right of the legislature to bestow on corporations the power of internal regulation; and the capacity of corporations to receive and exercise such power, even though it involve legislative power within the corporate limits, exist at common law, and are recognized by the constitution. (
The case of Gray v. The State is pressed upon us as a case of conditional legislation. Granted. But the condition was one that might be lawfully performed. And this is the very matter in issue. A law creating an offence, and punishing it, on condition that the governor, or any other individual, or any number of individuals, shall approve of it, is void; because the legislature cannot constitutionally confer on any individuals such a power: a law giving the mayor‘s court of Wilmington power to try assaults and batteries, and leaving it to the judgment of the city council to decide whether the mode of trial shall be by jury; or not, is a good law; because the city council has the constitutional power to decide this very matter. The mayor‘s court is the court of a corporation; and the city council is the legislature of the corporation. It has power to regulate the mode of trial in its own court. A municipal corporation in
The Chancellor.—I concur in the opinion of the court as delivered. It may, perhaps, be expedient for me to present in addition to what has been said there, a brief argument which appears to me decisive upon the question.
The action of power I regard as distinct from the power itself. Law is the result of the legitimate action of legislative power. The people, in the exercise of their sovereign power, make the organic or fundamental law; which, as the constitution of the State, is un-
Bayard, Wales and Clayton, for plaintiff.
Smithers, Bradford and Layton, for defendant.