Santo v. State

2 Iowa 165 | Iowa | 1855

Dissenting Opinion

"Woodward, J".,

(Wright, C. R, dissenting.) — This case arises under the act entitled: “ An act for the Suppression of Intemperance,” approved Tanuary 22, 1855; and thus are raised among us, some interesting questions, which have "been so considerably discussed in several of our sister states. These questions are approached with all the sense of responsibility, and with all the solicitude for the attainment of right, which belong to their nature and their importance. Such are their well known relations, and such the interest felt by the public in the possible fate of this act of the General Assembly, that these are the last questions, and this the last occasion, upon which we should venture to indulge in theorizing, or to reason upon merely theoretic grounds. This mode of treating the subject, would be not only unsafe for a judicial tribunal, but also unsatisfactory to other minds. Such has been found to be the case, in respect to several opinions upon some one or other of the questions involved.

All acknowledge the great principles, and probably the lesser rules also, by which these cases must be tried; but the main difficulty in this, as in many legal matters, lies in the just and true application of those principles and rules, about which there is no dispute. To make this just application in the matter" at bar, it is more than usually necessary to keep near to, and within sight of, the well known shores; to sail in waters which have been often navigated; and not launch out into the broad sea of speculation upon human rights. That which all the states have been accustomed to do — those things which have commonly been held right— those decisions which courts have made in past time, in reference to other subjects, of an analogous nature, or involving similar principles — must be our guides. This is the only course which will satisfy the mind of the lawyer, or of any other thinking man.

It is often true, that a proposition is seen, felt, and admitted to be true, whilst .it is difficult to point out the process of reasoning which, leads to, or supports it, or to answer arguments which may be urged against it. This is true of many •of the maxims lying at the basis of onr political being. Who would doubt the proposition, that any one of our state .governments, has the rightful power to protect itself or its public, the community, from the evils of pauperism, immorality, and crime ? and yet how extensive and how difficult the range of argument through which the question carries ns. The states have always exercised this power, and it has not been questioned, until it came to be applied to intoxicating liquors, the vast evils of the use -of which, have been more especially observed within the past generation. If the states have not this power rightfully, the statute books •of all of them, are lumbered by a mass of matter which has no place there^ and if the power cannot be applied to this ■subject, it will be difficult to show the reasoning by which it can be applied to some others, to which it has alwaj^s been applied, without doubting. It cannot be a question of degree, it is one of power or right.

There is no statistical or economical proposition better established, nor one to which a more general assent is given by reading and intelligent minds, than this, that the use of intoxicating liquors as a drink, is the cause of more want, pauperism, suffering, crime, and public expense, than any «other cause — and perhaps it should be said, than all other causes combined. Even those who are opposed to restriction, oftentimes admit this truth. Every state applies the most stringent legal power, to lotteries, gambling, keeping gambling houses and' implements, and to debauchery and obscenity, and no one questions the right and the justness of it; and yet how small is the weight of woe produced by all these united, when compared with that which is created by the use of intoxicating drinks alone. If by any process of reasoning, the state or the country is bound to support the pauper, to maintain a judicial system, in order to protect the community from crime, and to confine and maintain the criminal, then how is it possible to say, that she cannot look to the canses and sources of poverty and crime, and cut them off, or dry them up. But the right of-these,'our civil communities, to protect themselves against intoxicating drinks, is denied, and for this there are two processes' of reasoning. The one is, that the liquors are property, and that the right to make and the right to sell, are inherent in, or incident to, the right of property. The other is, that the laws of the United States permit the importation; the right to import, carries the right to sell, at least in original packages ; the right to sell in bulk, implies the right to buy, and the right to break bulk and sell by retail, follows. If this reasoning and this result are correct, then, indeed, are the states helpless. They have not one of the most necessary attributes of sovereignty, and even of individual right — that of self-protection ; and state sovereignty is a fancy. Then, neither state or United States, can exercise this power, which is always admitted to belong to every independent community.

But the argument in the case at bar, stands thus : Thisjs a limited, a constitutional government, and although the people may, yet the legislature, under the constitution, does not possess the power here claimed. We proceed to con sider this question, keeping as near as possible to the beaten paths. Let us see what doctrines have been held in some cases, which may serve both as an answer to objections, and as a basis for our own reasoning.

In the case of Fisher v. McGirr, and the other cases (1 Gray, 1), C. J. Shaw says : “We have no doubt that it is competent for the legislature, to declare the possession of certain articles of property, either absolutely, or when, held in particular places, and under particular circumstances, to be unlawful, because theyowould be injurious, dangerous, or noxious; and by due process of law, by proceedings in rem, to provide both for the abatement of the nuisance, and the punishment of the offender, by the seizure and confiscation of the property, and by the removal, sale, or destruction of the noxious articles. Therefore, as well to abate the nuisance, as to punish the offending or careless owner, the property may be justly declared forfeited, and either sold for the public benefit, or destrojmd, as the circumstances of the case may require, and the wisdom of the legislature direct. Besides, the actual seizure of the property intended to be offensively used, may be effected, where it would not be practicable to detect and punish the offender personally.”

This able judge then states the question to be, “ whether the measures directed and authorized by the statute in question (the Massachusetts Act), are so far inconsistent with the principles of justice, and the established maxims of jurispru-dence, intended for the security of public and private rights, or so repugnant to the declaration of rights and the constitution, that it was not within the power of the legislature to give them the force of law, and that they must be held unconstitutional and void ;” and that court were all of opinion that they were. These cases are referred to at this time, on account of the above views, and because these views are all that are required for such a law to stand upon; and are thus unequivocally set forth by that court, in cases which are cited, and relied upon, apparently with confidence, as conclusive against the act before us. The points upon which those cases were decided, and the differences between the Massachusetts and Iowa acts, will be noticed hereafter.

There have been some cases determined in the Supreme Court of the United States, also, upon laws enacted upon this same subject, which command our attention. "We are not unmindful of the distinction, which has been so urgently pressed in relation to them, that they determine the lights of the states only, under the constitution and laws of the United States, but do not touch upon their powers under their own constitutions. This is true. Yet in those cases, are thoughts and reasoning upon the powers of the states in-relation to thése subjects, which, coming from that tribunal, are entitled to our deepest respect and gravest consideration. And it would be puerile to pretend not to see nor regard, the reasoning of that branch, even in cases where they are not • to be cited as authority. As we quote commentators and elementary writers, so, a fortiori, would we resort to the fountains from which the elementary writers themselves, draw.

In the case of New York v. Miln, 11 Pet. 102, the Su•preme Court say, that K it is not only the right, but the bounden and solemn duty of a state, to advance the happiness, the safety, and prosperity of its people, and to provide for its general welfare, by any and every act of legislation which it may -deem conducive to these ends, where the power -over the particular subject, or the manner of its exercise, is not surrendered or restrained, in the manner just stated; that •all those powers which relate to merely municipal legislation, or what may, perhaps, be more properly called internal police, are not thus surrendered or restrained; and that consequently, in relation to these, the authority of a state is complete, unqualified, and exclusive.”

The considerations and reasoning in the cases of Thurlow v. The State of Massachusetts; Fletcher v. The State of Rhode Island; and Pierce v. The State of New Hampshire, 5 How. 504, are very important in their bearings upon the present law of Iowa. The Massachusetts law prohibits a sale-of liquors without license, in a quantity less than twenty-eight gallons, whieh was a quantity greater than the law of the United States permitted to be imported in kegs. The Rhode -Island law forbade a sale without license, in a quantity less •than ten gallons, which was a quantity greater than the law of the United States permitted to be imported in bottles'. The New Hampshire law forbade a sale in any quantity* without license. Neither of :.the cases was against an importer. The first two cases, related to foreign liquors imported. The New Hampshire case, related to liquor of domestic production, transported coastwise from one state to another, viz: from Massachusetts to New Hampshire. The •objections to these laws were based upon those provisions of the constitution (art. 1, §-8, cl. 3, and § 10), which prohibit a state laying imports or duties upon importations, and giving to Congress the power to regulate commerce with foreign nations and -among the states. The constitutionality of eaeh of these laws, was maintained. But such was the importance of the cases, and such the difference of the train of reasons by which the-Supreme Judges arrived at their conclusions* severally ¿ that they nearly all gave their views,, in one or more separate opinions. And in these, are views and reasons which help us on to a conclusion,, on the various points made in the case at bar.

Chief Justice Taney says (5 How. 577): “ These laws-may,. indeed, discourage imports, and dimmish the price which ardent spirits would otherwise bring. But although a state is bound to receive, and to permit the sale by the importer, of any article of merchandise which Congress authorizes to be imported, it is not bound to furnish a market for it, nor to abstain from the passage of any law which it may deem necessary or advisable, to guard the health or morals-of its citizens, although such law may discourage importation, or diminish the profits of the importer, or lessen the revenue of the general government. And, if any state deems .the retail and internal traffic in ardent spirits, injurious to its citizens, and calculated to produce idleness, vice, or debauchery, I see nothing in the constitution of the United States, to prevent it from regulating and restraining the traffic, or from prohibiting it altogether, if it thinks proper.”'

Mr. Justice McLean says: “The acknowledged police power of a state, extends often to the destruction of property.. A nuisance may be abated. Everything prejudicial to the health or morals of a city, .may be removed. Merchandise from a port where a contagious disease prevails, being liable to communicate the disease, may be excluded; and in extreme cases, it may be thrown into the sea. This comes in direct conflict with the regulation of commerce; and yet no one doubts the local power. It is a power of self preservation, and exists, necessarily, in every organized community.. It is, indeed, the law of nature, and is possessed by man in his individual capacity. He may resist that which does him harm, whether he be assailed by an assassin or approached by poison. And it is the settled construction of every regulation of commerce, that, under the sanction of its general laws, no person can introduce into a community, malignant diseases, nor anything which contaminates its morals, or endangers its safety. And this- is an acknowledged principle* applicable to all general regulations. Individuals, in the enjoyment of their own rights, must be careful not to injure the rights of others.” “ The police power of a state, and the foreign commercial power of Congress,.must stand together. Neither of them can be so exercised, as materially to affect the other. The sources and objects of these powers are exclusive, distinct, and independent, and are essential to both governments. The one operates upon our foreign intercourse, the other upon the internal concerns of a state. The former ceases, when the foreign product becomes commingled with the other property of the state. At this point, the local law attaches and regulates it, as it does other property. A state cannot, with a view to encourage its local manufactures, prohibit the use of foreign articles, nor impose such a regulation as shall in effect be a prohibition. But it may tax such property as it taxes other and similar articles in the state, either specifically, or in the form of a license to sell. A license may be required to sell foreign articles, when those of a domestic manufacture are sold without one. And if the foreign article be injurious to the health or morals of the community, a state may, in the exercise of that great conservative power which lies at the foundation of its prosperity, prohibit the sale of it. No one doubts this in relation to infected goods or licentious publications. Such a regulation must be made in good faith, and have for its sole object the preservation of the health or morals of society.” “ When, in the appropriate exercise of these federal and state powers, contingently and incidentally, their lines of action run into each other, if the state power be necessary to the preservation of the morals, health, or safety of the community, it must he maintained. But this exigency is not to be founded on any notions of commercial policy, or sustained by a course of reasoning about that which may be supposed to affect, in some degree, the public welfare. The import must be of such a character as to produce, by its admission or use, a great physical or moral evil. Any diminution of the revenue arising from this exercise of-local power, would be more than repaid by the beneficial result. By preserving, as far as possible, the health, the safety, and the moral energies of society, its prosperity is advanced.”

Justice Catron, who may be considered as the least favorable in his reasoning, to the general views expressed above, in the same cases, says: “ I admit as inevitable, that if the state has the power of restraint by licenses, to any extent, she has the discretionary power to judge of its limit, and may go to the length of prohibiting sales altogether, if such be her policy; and that if this court cannot interfere in the case before us, so neither could we interfere in the extreme case of entire exclusion, except to protect imports belonging to foreign commerce, as already defined.” And he held that the states had the power of restraint by licenses, and, consequently, of prohibition, until Congress should pass some act regulating commerce between the states. These remarks were made in relation to the New Hampshire case, the law of which state forbade sales at all, without a license, including the importer in its terms; but in which case, the judge considered the liquors as standing upon the same ground as domestic liquors.

Mr. Justice Daniel gives a greater latitude to the rights of the states, than the other members of that eminent court, and dissents from some restraints put upon the states, by the court, in the case of Brown v. Maryland, 12 Wheat. 419. In relation to the cases before that court, he says: “Every power delegated to the federal government, must be expounded in coincidence with the possession by the states of every power and right necessary for their existence and preservation.” “The power to regulate this commerce (foreign), may properly comprise the times and places at which, the inodes and vehicles in which, and the conditions upon which, it may as a foreign commerce, be carried on; but precisely at that point of its existence that it is changed from foreign commerce, at that point this power of regulation in the federal government must cease, the subject for the action of this power being gone.” “ But they (subjects of foreign commerce) must be continuing, and still, in reality, subjects to foreign commerce, and such they can no longer be, after that commerce with regard to them has terminated, and -they are completely vested as property in a citizen of a state, whether he be the first, second, or third proprietor; if this were otherwise, then by the same reasoning, they would remain imports, or subjects of foreign commerce, through every possible transmission of title, because they had been once imported.” “It cannot be'correctly maintained, that state laws which'may remotely or incidentally affect foreign commerce, are, on that account, to be deemed void. To render them so, they must bg essentially and directly in conflict with some other power clearly vested in Congress by the constitution; and, I would add, with some regulation actually established by Congress, in virtue of that power. In the case of Brown v. The State of Maryland, 12 Wheat. 419, it is said by the court, that liberty to import, implies unqualified liberty to sell at the place of importation. In the argument of this case, the proposition just mentioned does not, in all its amplitude, seem broad enough for counsel, who have contended that liberty to import, implies, on the part of the states, a duty to encourage, if not to enforce, the consumption of foreign merchandise, arising, it is affirmed, from a farther duty incumbent on the states, to regard, a priori, the acts of the federal government as wisest and best, and, therefore, imposing an obligation on the states for cooperation with them. These very exacting propositions, it is believed, can hardly be vindicated, either -by the legitimate meaning of words, or any correct theory of the constitutional powers of Congress.” “ When importations may have been made with the direct view to sell, it does not follow by necessary induction, that permission for the former to import, implies permission for the latter to sell, nor the power of granting the former, the power of confining the latter; much less, that it implies the power or the obligation on the part of the government to command or insure a sale.”

It was upon this point of the implied right of the importer to sell, that Justice Daniel differed from the court. In relation to the argument, that the importer pays a duty to the government, for the permission to introduce and vend his merchandise, he says: “ In truth, no such right as the one supposed, is purchased by the importer, and no injury, in any accurate sense, is inflicted on him by denying to him the power demanded. He has, doubtless, in view the profits resulting from the sale of his commodities, but he has not purchased, and cannot purchase, from the government, that which it could not insure to him, a sale, independently of the laws and polity of the states. He has, under the legitimate power of the federal government to regulate foreign commerce, purchased the right to import or introduce his merchandise — the right to come in with it in quest of a market, and nothing beyond this. The habits, the tastes, the necessities, the health, the morals, and the safety of society form the true foundation of his calculations, or of any power or right which may be conceded to him for the sale of his merchandise, and not any supposed right in the federal government, in contravention of all these, to enforce such sale.” “ These stipulations (in treaties) no more signify that commodities shall be circulated and used free of all internal regulation, than they convey a positive mandate for their being purchased and consumed, eaten and drank, nolens volens, or at all events! Every state, that is in any sense sovereign and independent, possesses, and must possess, the inherent power of controlling property held and owned within its jurisdiction, and in virtue and under the protection of its own laws, whether that control be exercised in taxing it, or in determining its tenure, or in directing the manner of its transmission; and this, too, irrespective of the quantities in which it is held or transferred, or the sources whenee it may have been derived.”

In the same cases, Mr. Judge Woodbury says: “ It is not enough to fancy some remote or indirect repugnance to acts of Congress — a ‘potential inconvenience’ — in order to annul the laws of sovereign states, and Overturn the deliberate decisions of state tribunals. There must be an actual collision, a direct inconsistency, and that deprecated case of ‘ clashing sovereignties,’ in order to demand the judicial interferenee of this court to reconcile them. McCulloch v. Maryland, 4 Wheat. 487; 1 Sto. Com. on Const. 432.” “ And what power or measure of the general government, -would a prohibition of sales within-a state conflict with, if it consisted merely in regulations of the police or internal commerce of the state itself.1' “ The idea, too, that a prohibition 4o sell would be tantamount to a prohibition to import, does not seem to me either logical or 'founded in fact. Eor, even under a prohibition to sell, a person could import, as be often does, for bis own consumption and that of bis family .and plantations * and also of revenue wbieb would otherwise accrue from foreign imports, or from those of that particular article.” This able judge further says: “But I go farther on this point, than some of the court, and wish to meet the case in point, and in- its worst bearings. If, as in the view of some, these license . laws were really in the nature of partial or entire prohibition.to sell certain articles within the limits of -a state, as being dangerous to public health .and morals, or were virtual taxes on them as state property, 'in a fair ratio with other taxation, it does not seem to me that their conflict with the •constitution would, by any means, be clear. Taking for granted, till the contrary appears, that the real design in passing them for such purposes, is the avowed •one, and especially while their provisions are suited' to effect the professed object, and nothing beyond that, and do not -apply to persons or things except where within the limits of .state territory, they would appear entirely defensible as a matter of right, though prohibiting salesi” “ Whether such laws •of the states as to license, are to be classed as police measures, or as regulations of their internal commerce, or as tax.•ation merely, imposed on local property and local business, •and are to he justified by all of them together, is of little •consequence, if they are laws which, from their nature and object, must belong to all sovereign states. Call them by whatever name, if they are necessary to the well-being and independence of all communities, they remain among, the reserved rights of the states, no express grant of them to the ¿general government laving been .either properly or apparently embraced in the constitution. So, whether they conflict or not, indirectly and slightly, with some regulations-of foreign commerce, after the subject matter of that commerce touches the soil or waters within the limits of á state;, is not perhaps very material, if they do not really relate to-that commerce, nor any other topic within the jurisdiction of-the general-government.” “As a general rule, the power of a state over all matters not granted away,, must be as full in the bays, ports, and harbors within, her territory, Antra fauces terra, as on her wharves or shores,, or interior soil. And there can _ be little check on such legislation,, beyond the discretion of each state, if we considerthe great conservative;, reserved powers of the states, in their quarantine or health systems, in the regulation of their internal commerce, in-their authority over taxation; and, in.short, every local measure necessary to protect themselves against persons or things- dangerous to their peace or theirmorals.” “ It is the-undoubted and reserved power of every state here,, as a political body, to- decide, independent of any provisions made-by Congress, though subject not to conflict with any of them when rightful, who shall compose its- population, who become its residents, who-its citizens, who enjoy the privileges-of its laws, and be entitled to their protection and favor,. and-what kind-of property and business-it will tolerate and'protect: And no- one government, or its agents or navigators,. possesses any right' to make another state,, against its consent, a penitentiary or hospital, or-poor-house farm, for its wretched-outcasts, or a receptacle for its poisons to health, and instruments of gambling and debauchery"

Mr. Justice Grier says: “-Without attempting to define-what are the peculiar subjects or limits of this (the state) power, it may safely be affirmed, that every law for the restraint and punishment of crime, for the preservation of the-public-peace, health, and'morals, must come within this category, — that'is, of the authority being complete, unqualified,, and exclusive. If the right to control these subjects be ‘ complete,’ unqualified, and exclusive in the state legislature, no* regulations of secondary importance,, can. supersede or. re-strain their operations, on any ground of prerogative or supremacy. The exigencies of the social compact require, that such latos be executed before and above all others“ It is not necessary for the sake of justifying the state legislation now under consideration, to- array the appalling statistics of misery, pauperism, and crime, which have their origin i-n the use or abuse of ardent spirits. The police power, which is exclusively in the states, is alone competent to the correction-of these great evils, and all measures of restraint or prohibition necessary to effect the purpose, are within the scope of that authority. There is no conflict of' power or of legislation, as between the states and the United States; each is-acting within its- sphere, and for the public good, and if a. loss of revenue should accrue to-the United States, from a diminished consumption of ardent spirits, she' will be the gainer a thousand fold in the health, wealth, and happiness,, of the people.”

Thus are given quotations from six of the nine-judges constituting the supreme bench of the, United States, and from each one who prepared an opinion. If any apology is needed for the amplitude of these quotations, let it be found in the importance of the subject, and in the general want of correct information in respect to the views of that court upon these subjects. Obtaining right notions of those views, we are enlightened upon the questions before us, and upon such similar ones as may arise. It is cheering to find, in these opinions, that the reasoning of some courts even, receives no. countenance- from that bench; and that the rights conceded to the importer, are not considered as carrying with them such a train of consequences as has sometimes been held— consequences which take from a state the right of self-protection.

Let us now see what that court has judicially holden, which bears upon the questions before us. The case of, Brown v. The State of Maryland, was brought against the importer of dry goods. The .state law required such importer to take out and pay for a license to sell. It was held,, that the importer had a right to sell his imported goods, ia their original packages, without further tax than the duties required by the law of Congress, and that the state law imposing a tax for a license, was invalid. In Gibbons v. Ogden, 9 Wheat. 1, it was held, that the power to regulate commerce between the states, given to Congress by the constitution,, was not exclusive in Congress, until exereised — nor, perhaps, until there was a collision between regulations made by Congress and by a state. And the same view was taken in Wilson v. Blackbird Creek Marsh Company, 2 Pet. 251. In the. above cases of Fletcher v. Rhode Island, and Thurlow v. Massachusetts, 5 How. 504, it was held, that laws requiring a license to be obtained before selling liquors (including foreign and imported) in less quantities than ten and twenty-eight gallons, were constitutional and valid. In Pierce v. New Hampshire, 5 How. 504, it was held, that a law requiring a license to be obtained, (which license might be refused,) before the sale of liquors in any quantity, was valid and constitutional, when applied to liquors imported from another of these states, Congress having made no regulations in relation to commerce between the states. In the above three license cases, all of the six judges wh'o delivered opinions, recognize the authority of a state to prohibit the sale of spirits within its borders, as a poliee or internal regulation — excepting only the importer of foreign spirits, selling in the original quantities imported. There has been nothing decided, then, by the Supreme Court of the United States, with which the prohibitory law of Iowa conflicts. That act prohibits the sale of intoxicating liquors in any quantity; but it saves the ease of the importer. The objection, therefore, that this act is in conflict with the constitution or laws of the United States, is not well taken.

The second class of objections urged against the act under consideration, is, that in several of its provisions, or omissions to make provisions, it is a violation of some requirements of the constitution of the state, or of its spirit and meaning. As two of the objections in this class, are of a nature quite different from the others, it will be convenient' to consider them by themselves. These are:

First. “ That the statute under which the proceedings axe commenced, is not a valid and existing law of Iowa, nor can be; for that the legislature of the state in the making thereof, delegated the power of its taking effect, to the contingency of a vote of the people in its favor.”

Second. “ That no publication of said law has been had, as the constitution of the state requires.”

We will first consider the question relating to the submission of an act to a vote of the people. And on this subject, we entertain no doubts. The General Assembly cannot legally submit to the people, the proposition whether an act should become a law or not; and the people have no power, in their primary or individual capacity, to make laws. They do this by representatives. There is no doubt of the authority of the legislature, to pass an act to take effect upon a contingency. But what is a contingency, in this sense and connection? It is some event independent of the will of the law-making power, as exercised in making the law, or some event over which the legislature has not control. Eor instance, the embargo laws and their cessation, were made to depend upon the action of foreign powers in relation to certain decrees. The will of the law maker is not a contingency in relation to himself. It may be such in relation to another and external power, but to call it so in relation to himself, is an abuse of language. Now, if the people are to say whether or not an act shall become a law, they become, or are put in the place of, the law maker. And here is the constitutional objection. Their will is not a contingency ■upon which certain things are, or are not, to be done under the law, but it becomes the determining power whether such shall he the law or not. This makes them the “ legislative authority ” which, by the constitution, is vested in the Senate and House of Representatives, and not in the people.

It cannot be considered necessary to argue concerning the submission of acts of incorporation to the acceptance of the corporators. These are private matters, and not a part. of the public law of the land. It is a quéstion of private interest only, whether certain persons shall become a corporation; and, in the case of a strictly private one, probably the legislature could not make them such against their assent. And in the case of municipal corporations, they are, in the legal sense, private; and so they are in a common sense, to all practical intents. It is a question for the local community alone to determine, whether they will be incorporated, or whether they will be so as a town or city. This distinction is made practically, always and everywhere, whether it be founded in strict logic or not. The constitution prescribes the manner in which bills shall become laws, and acts or laws can be enacted in no other way. A certaip body, or department, is created for this purpose, and no other has the smallest authority in that respect. Article 3d of the constitution is, in part, as follows: “ The powers of the government of Iowa, shall be divided into three separate departments — the legislative, the executive, and the judicial. The legislative authority of this state, shall be vested in a Senate and House of Representatives, which shall be designated the General Assembly of the state of Iowa; and the style of their laws shall be, ‘ Be it enacted by the General Assembly of the state of Iowa.’ ” How is a law enacted? Section 16th of the same article, directs that “ Bills may originate in either house, except, &c.; and every bill having passed both houses, shall be signed by the speaker and president of their respective houses.” And section 17 provides that “ Every bill which shall have passed the General Assembly, shall, before it becomes a law, be presented to the governor. If he approve, he shall sign it; but if not, he shall return it with his obj ections, ” &c. Then follow directions as to how it shall become a law, notwithstanding the governor’s objections. It will be observed that there are, under the constitution, but three departments of the ^government; that the legislative department consists of the '¡Senate and House of Representatives, and the people do kot constitute a portion of it; and that laws are enacted “by the General Assembly.” This is the mode provided by the constitution, for making laws. A bill becomes an act or a law in the above manner, or it never becomes such. A vote of tlie people cannot make it become a law, nor can it prevent it becoming one. After a bill has thus passed the two houses, and received the approval of the governor, and thus become a law by the constitution, how can a vote of the people affect, it ? As well might this court, submit the decision of these causes to a vote of the people of the state, or of a judicial district; or the governor his pardoning power. If there is any efficacy in a vote of the people in passing a law, then of course, it can be repealed only by a vote.

What effect, then, had the vote of the people ? None at all, in a legal sense or manner. The constitution made it an act of the General Assembly, when it had passed the two houses, and received the proper signatures. But it is argued, that the 'eighteenth section, submitting the act to a vote, is part of the act; and so becomes law with the rest. The answer to this is, that if the General Assembly has no authority to submit such a question, then such a provision is void, and it will follow that either the whole act, or the section containing the objectionable matter, is null and void. The following are authorities on both sides of the question, of submitting acts to a vote of the people. The following hold it constitutional: The State of Vermont v. Parkes, 3 Liv. Law Mag. 13; Johnson v. Rich, 9 Barb. 680. The following hold it unconstitutional: Thorne v. Cramer, 15 Barb. 112; Bradley v. Baxter, 15 Barb. 122; 1 Am. Law Reg. 658; Barto v. Himrod, 4 Seld. 483, 4 Harringt. (Del.) 479; The People v. Collins, 2 Am. Law Reg. 591; Commonwealth v. Williams, 11 Penn. 61; Parker v. Commonwealth, 6 Barr. 507.

This leads us to the next step; which is, whether the whole act, or the eighteenth section only, is invalid. It is assumed, for the present, that the matter was submitted to the people in the largest and broadest sense. This is unconstitutional and void. But an act void in part, is not necessarily void for the whole. If sufficient remains to effect its object, without the aid of the invalid portion, the latter only shall be rejected, and the former shall stand. This doctrine is clearly maintained in the Massachusetts cases. Fisher v. McGirr and other cases, 1 Gray, 1; 6 How. (Miss.) 625; State v. Cox, 3 Eng. (Ark.) 437; Commonwealth v. Kimball, 24 Pick. 361; Morris v. Boston, 4 Met. 288; Clark v. Ellis, 2 Blackford, 10. Now, the prohibitory act of Iowa is a complete act in all its parts, without the eighteenth section, submitting it to the people. No part depends, for its efficacy or practicability, on that section. It can' be carried into effect as well without it, as with it. That section relates to nothing but the vote, the returns, publication of the result, and like matters. Testing this act, then, by the same rules which are applied to others, we see no reason why the whole act should be declared unconstitutional and void. It was not the vote of the people which was unconstitutional, but it was the submission to the people; and that part of the act was and is invalid, if it submitted the question whether it should be the law or not; and the vote was, to a legal intent, nugatory. It effected nothing. The act would have been law, had the vote been against it. Why the courts of some states have held an act submitted to the people to be void, rather than the mere act of submission — as in the case of the New York school law — does not clearly appear. Under our constitution and laws, there seems to be no difficulty, as will be shown in the next step of our inquiry.

Thus far, we have spoken in gross, and without discrimination, of the submission to a vote. But, if we are not correct in, viewing the submission alone, as the invalid part of the act — in other words, if a submission tó a vote of the people, renders the whole act void, then it becomes necessary to be more exact, and to see what was submitted, and in what terms or manner. Let us assume, for this part of the argument, that the'whole act is rendered unconstitutional, if •it was submitted to the vote, ujdou the condition that if the •vote was in its favor, it shall be a law, and if the vote was against it, then it should not become a law. In the case of the New York free school law, section 10 provided, that “ The electors shall determine by ballot, at the annual election, to be held in November next, whether this act shall or .shall hot become a law,” And section 14 was, that if a majority of the votes should be against it, then “this act shall be null and void.;” and if they should be in its favor, “ then this act should become a lato, and talce effect.” In this case it was distinctly put to a vote of the people, whether the act should become a law or not. And if the legislature could, by any possibility, put from itself the determination of this question, it did so in that cj,se.

But it is apprehended that the Iowa act, stands quite differently. The eighteenth, and last section is, in substance, as follows, certain parts b<apg quoted literally i “At the. April election, to be holden on the first Monday in April, A. D. 1855, the question of prohibiting the sale and manufacture of intoxicating liquor, shall be submitted to the legal voters of the state;” then follow provisions concerning the election and the returns; the ballot is to be “ Eor the Prohibitory Liquor Law,” or “Against the Prohibitory Liquor Law;” an official statement of the result of the vote is to be made and published; “and if it shall appear from such official statement, that a majority of the votes cast as aforesaid upon said question of prohibition, shall be for the prohibitory liquor law, then this act shall take effect on the first day of July, A. D. 1855;” but providing that those portions of the act which relate to the election directed in this section, should take effect from and after publication in the newspapers therein named. .The act is signed by the president of the Senate and the speaker of the House, and approved by the governor. Now it is manifest, that here is no distinct submission to the people, of the question “ whether this act shall or shall not become a law,” as in the New York case„ It is not provided that if the vote be against it, it shall not become a law, or that it shall not take effect. The provision that if the vote be for it, it shall take effect on the first day of July, affords some little weight of argument against this view; but it is not possible to give to the implication contained in them, a weight sufficient to override the argument drawn from the provisions of the constitution relative to the passage of laws, and from the want of power in the legislature. And the more especially is this true, when- a fair and 'Constitutional object .for these provisions can be found, and a consistent meaning and proper effect, can be given to the provisions of the act, so as to give effect to the whole.

Eor some time after the establishment of the state government, it was doubted whether the judiciary possessed authority to declare and hold an act of the legislature unconstitutional and void, and the exercise of the power was declined •by some courts. And now, although the power is universally admitted, its exercise is considered of the most delicate and responsible nature, and is not resorted to, unless the case be clear, decisive, and unavoidable. It is the duty of the •court to give an act such a construction, if possible, as will maintain it. Rice v. Foster, 4 Harring. (Del.) 479; Fisher v. McGirr, &c., 1 Gray, 1; Maize v. State, 4 Ind. 342; 20 Ohio, Append. 1; Commonwealth v. Williams, 11 Penn. 61; State v. Cooper, 5 Blackford, 258; 2 Pet. 522; Ogden v. Saunders, 12 Wheat. 270; 19 Johns. 58, 1 Cow. 550; Calder v. Bull, 3 Dall. 386; 4 Dall. 309; Fletcher v. Peck, 6 Cran. 87. Every lawyer knows that it is a common argument, often •resorted to, against some construction of an act, that that would be giving it an unlawful, an -unconstitutional effect, and therefore, the legislature did not so intend i-t. And this is a legitimate argument, and one which not unfrequently prevails. Certainly some more words, and negative words, are wanting in this section, to compel a court to give it such a construction as will nullify the whole, or even the section alone.

But what meaning can be given -it, which will leave it consistent and valid ? -Suppose the legislature, having enacted the law, designed to ascertain the moral sentiment of the people of the state on the subject of “prohibition,” in order, first, that if tbe community should be in favor of that policy, the law might have the aid of the power of that public moral sentiment; -and secondly, that, if -the public voice should be against the policy, this might be certainly-ascertained, and the law repealed. This would be entirely consistent with the constitution, and perfectly rational; for not only does our government peculiarly stand upon public sentiment, but it is also well understood, that a law of this nature, especially, requires the aid of the public moral sense, as well as its legal authority, for its enforcement. Had this been the intent of the law-making power, it could not have used language better adapted to it, with the slight exception above alluded to; nor, indeed, could omission of language have been more appropriate. And what the act does not say, is important, as well as what it does say. Now, when the language and provisions of an act are consistent with a lawful end, and this is its apparent meaning, whilst another construction would give it an unlawful effect, it is the duty of a court to take that view which is lawful and consistent. In view of the rules and considerations above suggested, which are the ordinary ones applied by courts to all acts ol the legislature, we are constrained to hold:

1. That the whole act is not rendered invalid, even though the submission to a vote should be held unconstitutional.

2. That the vote called for in the eighteenth section of this act, was not upon the question, whether it should become a law or not, and therefore there is no sufficient objection, even to that section.

Another objection of a constitutional character arises under Art. 1, § 28, which'is: Every law shall embrace but one obj ect, which shall be expressed in the title. It is urged, that this act contains both more than one object, and objects not expressed in the title. The title is, “an act for the suppression of intemperance.” It would require too much space to pass in detail, through the argument of the counsel in the case against Santo, on this question. He carries it farther than we are inclined to follow him. In the course of it, he substitutes the word subject for object (between which, it is apprehended, that there may be a distinction), and applies both of. them to each sfep-whieh may be taken toward the attainment of the object of the enactment. According to this argument, the provisions for the punishment of drunkenness, prohibiting the sale, declaring certain things nuisances, the appointment of agents, &c., — each distinct idea or step — is severally a. new object. We cannot concur in the objection. The act is'eñtirely free from it. Were tbe argument valid, an act could hardly extend beyond one period — certainly not beyond one section. Each step toward the main object, must be provided for by a separate enactment. Half the acts in the statute books, embrace several ideás or steps in the progress of their provisions toward the attainment of the main object. The object may be a broader or narrower one, but if it be a bona fide object for legislative attainment, and the several steps embraced in it, are fairly conducive to that end or object, it is still a unit. Under what other view, could a school or revenue act be framed or upheld. -Does not each of these present a unity of object? Must they be divided into as many separate acts, as there are provisions to carry out the main end ? Such is not the design of the constitution. This act presents a fair unity of object. See the case of The State ex rel. Weir v. County Judge of Davis County, post.

The next class of objections presented, arises from the following provisions of the constitution :

Art. 1. — Sec. 1. That all men have the right of acquiring and protecting property.

Sec. 8. The right of the people to be secure in their persons, houses, papers and effects, against unreasonable seizures and searches, shall not be violated; and no warrant shall issue, but on probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the papers and things to be seized.

Sec. 10. That in all criminal prosecutions, the accused shall have a right to be informed of the accusation against him, and to be confronted with 'the witnesses against him.

Sec. 18. Private property shall not be taken for public use, without just compensation.

Art. 8. — Sec. 27. That no law of a public nature shall take effect, until the same shall be published and circulated in the several counties, by authority.

Let us keep in mind, what has been before said concerning the duty of a court to sustain an act of the legislative department of the government, if it can be done consistently, and to give it such a construction as will uphold it, if tins can be clone fairfy, rather than one which will overthrow it. We have said that we should not incline to theorize. Neither will we quote the merely theoretic writers. Por a sufficient expression upon the rights of individuals, and of the state governments, reference is made to the quotations heretofore made from the opinions of the able men comprising the highest judicial tribunal in our country, and upon these we shall, for the present, rest. We will next endeavor to state, as connectedly as possible, and to notice, the objections arising under each of the foregoing provisions of the constitution. And, as there will be occasion probably to refer to the constitutions and laws of the United States, and of Indiana, Michigan, Wisconsin, Missouri, and Kentucky, it is here stated, once for all, to save repetition, that each of them has provisions like those above cited from that of Iowa, and either in the same terms (which is generally so), or in terms so similar, that no distinction need be taken — excepting that which relates to the publication of laws.

First It is objected that there has been no publication of this act, as is required by the constitution. This objection is not explained and applied, so as to make it intelligible. Art. 8, § 27, provides only that the law shall not take effect, until published and circulated. It gives no detailed directions. The Code, § 22, makes general provision on this subject, and directs that acts of a public nature shall take effect, on the first day of July following the session: and that every ■such act shall be presumed to have taken effect at that time, unless the contrary appear, as provided in §§ 28 and 24. No facts are shown in the case, to make a question. We find tbe act in the volume of session laws, which was published before the first day of July, 1855, and believe it took effect on that day, by virtue of the above general provisions. But -here it is objected, that a part of the act, that is, that part relating to the vote, is made, by tbe act itself, to take effect •on the publication of the law in certain newspapers. We -see no valid objection to this. By Art. 8, § 27, of the constitution, if the General Assembly deem a law of immediate importance, they may provide that it take effect by publication in newspapers. And it is no uncommon thing for an act to be made to take effect, in part at one time,, and in part at another. This is generally true of our acts incorporating towns and cities, in which there is a submission to the acceptance of the citizens.

Second. "We give our attention- to the exceptions taken under Art. 1, sections 1, 8, 10, 18f above cited. They arer thus enumerated:

1. No particular description of the place' to be searched,, or the property to be seized, is required by the act.

2. The charge is not required to be distinctly and fully made against the defendant,

3. The prosecution is a criminal one, and it is not mader necessary to inform the defendant, nor need he be confronted with the witnesses.

4. It authorizes a destruction of the property, without-notifying the defendant.

5. It authorizes- a forfeiture and destruction ©f private-' property, without trial, and as a penalty for crime, which? need not be proved.

6. It presumes the guilt of the accused.

7. It authorizes the abatement and destruction of property, real and personal,- upon the fact of finding, the liquor,Avithout other proof.

8. It gives justices of the peace jurisdiction of an unlimited amount of property.

These questions, especially, ave desire to try,, and to test this law, by the laAvs here and elseAvhei-e on other subjects.-

1, As to the description in the search Avarra-nt. The act requires the place, person and projierty, to be described “as particularly as may be,” and the argument is raised, that iff the complainant describe them as particularly as- he can, or as-he knows how, this shall be held sufficient, hoAvever loose and indefinite it may be. This-is giving a false and unnecessary sense to these words. They seem to us to convey the idea of the greatest degree of certainty. The constitutions of Missouri and Kentucky have the same language as our act — “'describing the person, place ©r thing,, as nearly as may <&e.” Was this intended to loosen tbe particularity of the description required? On the contrary, it is giving additional emphasis to the word “ particularly.”

2. As to the manner of charging the offence. The objectors do not specify any defects. The act requires the charge to be made in like manner as is required in relation to other offences. It gives no especial directions, but, like other laws, describes the offenee, and requires an information, and this must conform to the usual rules of law.

“ 3. On informing the defendant, and confronting him with the witnesses. It is true that the act does not require that the defendant be arrested, nor is this necessary; but it requires a notice to him, as effectual, in substance, as when he is sued for any amount of indebtedness, and on which judgment may be rendered for a thousand or ten thousand dollars. And the act requires, or rather allows, him to be confronted with the witnesses, in the same manner that other provisions of law do. There is n© distinction between this act and others, on these questions generally. The objections are drawn from another source, which will be noticed presently.

4. That the act authorizes the destruction of the property, without notifying the defendant. This objection is not founded in fact, and if it were, it is not clear that it would be valid.

5. That the act authorizes a forfeiture and destruction of private property, without trial, and as a penalty for crime which need not be proved; and,

6. It presumes the guilt of the accused.

The first clause of this objection is utterly without foundation. The act requires a trial as much, and in the same manner, as any other act does. The objection relating to-the presumption of guilt, arises on the seventh section of the act, which is, in substance, “that no person shall own or keep intoxicating liquor, with intent to sell the same in this state; and the proof of finding the liquor named, in the possession of the accused, in any place, except his private dwelling house, or its dependencies, shall be received and acted upon, as presumptive evidence that such liquor was kept or held for sale, contrary to the provisions of this act.” The charge that the act either presumes the guilt of the defendant, or inflicts a penalty for a crime, without proof, is not true, in fact. The objection intended, was probably, that the act presumes the guilt from certain facts, or from insufficient facts. The length of this opinion, already warns us, that we' cannot enter fully into all the questions raised and suggested; and that we must not attempt to go at large, into that of the power of the legislature over the subject of evidence.

The act prohibits the sale of ardent spirits, and, consequently, forbids the keeping it, with intent to sell; and then it makes the keeping it in certain circumstances — or, if you please, in any but certain circumstances — presumptive evidence of keeping, with intent to sell. It does not forbid the use of it, nor the keeping it, but it cannot be kept free from legal suspicion, unless kept in one’s dwelling-house or its dependencies. The dealer in gunpowder is often restricted to one place for keeping this portion of his property, and is forbidden, perhaps, to keep it within the town in which he lives,, and transacts his business. The sale of spirits being prohibited, its possession is rendered a suspicious fact, unless it be so kept as to indicate an intent for private use. So, the possession of more than a certain number of counterfeit coins, or bank bills, is sometimes rendered presumptive evidence of an intent to utter. Illicit goods, found amongst a passenger’s baggage, become strong presumptive evidence of an intent to evade the revenue laws. (1 U. S. St. at large, 662, § 40); and they are seized and forfeited. Goods entered under a false invoice, serve the same purpose, and are forfeited Same, § 66. By the Rev. Stat. of Indiana, 968, the knowingly retaining in possesssion, dies, plates, &c., used in forging coin, or notes, is presumptive evidence of an intent to use them. So, by the same law, keeping gaming tools is punished upon the same ground. And instances of the like kind, from the laws of all the states, could be multiplied. We have seen that the legislative authority of the state, extends to its internal commerce and police, and to tbe health and morals of the community; and. under tbis, a sound discretion is tbe only limit wbicb can be prescribed to laws regulating tbe uses or possession of suspicious, injurious, or dangerous property.

7. Of tbe jurisdiction conferred upon justices of the peace. Tbe exception is a novel one. It is not, that tbe justice bas jurisdiction of offences of too high a grade, for in tbis respect, tbis act comes witbin the general provisión of tbe Code; but it is, that incidentally, be may obtain cognizance of property of an undefined amount. Such a criterion for tbe jurisdiction of a justice of tbe peace in criminal cases, as is intimated in tbis objection, is not known to tbe constitution or laws of tbis state, nor of any other, of wbicb we have any knowledge. Tbis objection, if valid, would lie to all tbe laws of tbis and tbe other states, relating to the seizure of gaming tables and implements, of instruments and tools for counterfeiting, of obscene books and prints, &c.

We have thus adverted briefly, to all tbe several legal matters embraced in tbe exceptions taken to tbis act, and coming within tbe range of constitutional provision. But it is felt that tbis range of quotations, is not entirely complete and satisfactory, being limited to tbe objections actually assigned in tbe cases. And as there are three cases before tbe court, and tbe arguments in some of them, go beyond tbe errors assigned, in their bearing and spirit, and aim to cover broader ground, we will not feel ourselves rigidly confined.

Tbe objection is not, that tbe power of search and seizure, given by tbis act, is unreasonable, witbin tbe meaning. of tbe constitution. Tbe term "unreasonable” in tbe constitutions of tbe states, bas allusion to what bad been jxracticed before our revolution, and. especially, to general search warrants, in wbicb tbe person, place or thing was not described. It is believed that no search warrant is unreasonable, in tbe legal sense, when it is for a thing obnoxious to the law, and of a person and place, particularly described, and is issued on oath of probable cause. Tbe laws of tbe United States in relation to commerce, go far beyond this act. 1 Stat. at large, 662. The officer is not required, generally, to have a warrant. A passenger’s baggage is searched, and illicit goods are seized and forfeited. § 46. Goods removed from a wharf, &c., before they are weighed, gauged, measured, or whatever, are forfeited, and may be seized. § 51. Collectors, naval officers, &c., may board vessels within four leagues of the coast, and search them in “every part.” §§ 54 and 99. Goods entered with a fraudulent invoice, are forfeited, and if the collector suspect it, he may seize them. § 66. The laws of the states generally, concerning the search of gaming houses, and the seizure of persons and implements ; for the search and seizure of base coin, and counterfeiting tools, devices and implements ; of lotteries and tickets, and of obscene books, prints and pictures; stand upon the same ground, and have no more legal virtue, than the warrant, search, and seizure required or permitted by this act; and if this must fall, by reason of any objection here urged, they must fall with it, so far as the principle is concerned. These have never been objected to, on constitutional grounds, although they have existed from the beginning of these governments. The supposed doubt has arisen, only on the present subject.

The same remarks extend to the objections based on the constitutional provisions concerning the right to acquire and protect property, and the other objections based on the idea of interference with private right, and on the destruction of property. All the laws above referred to, require the destruction of various kinds of property; they interfere with the individual’s notions of the pursuit of happiness, with his supposed private rights, and his property. The legislative power is the supreme judge and guardian of the public health, safety, happiness and morals; and if the traffic in certain property, is held detrimental or dangerous to these, it may be prohibited, and such property illicitly held, kept or used, may be declared forfeited, and being forfeited, may be destroyed; and this is not taking private property for public use, in any sense wbicb any one attaches to the constitution.

There is one other manner of viewing this act, which may afford some satisfaction. It cannot but be observed, by one who compares, that the most of the objections presented against the Iowa act are, or seem to be, drawn from objections made to the Massachusetts act, in the cases of Fisher v. McGirr, Commonwealth v. Albro, and Herrick v. Smith, 1 Gray, 1. And for this reason it is, perhaps, that some of them are not more pertinent. On account of the general similarity of that act to ours, and of the important bearing which the rulings of that court, in those cases, have, or seem to have, on the questions here made, it will be useful to compare that act, and the points decided upon it, with our own law. This will be done as briefly as possible :

1. The court, in those cases, says: It is nowhere provided, in direct terms, that keeping, or having liquor deposited for sale, shall be in itself unlawful, and render the property liable to .confiscation, or subject the owner, agent or other deposita^, to a penalty therefor. This position of the court, or this fact in relation to the act, has an important effect in the reasoning and views of the court, which is traceable throughout the opinion. The Iowa act, section 7, provides, that “ no person shall own or keep, or be in any way concerned, engaged, or employed in owning or keeping, any intoxicating liquor, with intent to sell the same in this state (or to permit the same to be sold therein), in violation of the provisions of this actand for the first offence, he is to pay a fine of twenty dollars ; for the second, fifty; and for the - third, &c., one hundred dollars, and to be imprisoned-We start, then, clear of the effect of this objection on the act of the Iowa legislature.

2. The Massachusetts act did not limit the officer’s authority for seizing, to any liquors described, by quantity, quality or mark, nor to those intended for sale, but he was to seize any found in the place described. This objection is obviated by our act. It requires the liquors to be “ described as particular as may be,” in both the complaint and warrant; and the officer is to be commanded to seize “the said liquor.”

8. The other objections to the Massachusetts act, will be coupled together. It provides for the destruction of the property, and the punishment of the owner, without his being duly charged or summoned — without giving him a day in court — without providing for a trial — or for legal proof — ■ and without giving him an opportunity to defend, and to meet the witnesses face to face. No one of those objections lies to the Iowa act. By this, if the proceeding is in personam.,, the party will be arrested and proceeded with, in the same manner as he would be for any other offence cognizable by a justice of the peace. If the proceeding is in rem, the party is to be notified, by a notice equal to that upon which a judgment for debt may be recovered against him. In relation to this objection, it is worthy of remark, that when goods are seized and libeled under the United States revenue laws, for a violation of them, it is not provided that the owner should be known, or named, or notified. Notice of the proceeding is given by advertisement and posting only, and the owner may appear and claim the property in the goods, and bo let in to a defence, by giving bond to defend and pay the costs. Act 2 of Mar. 1799, § 89; 1 Stat. at large, 662, et seq. And as much as has been said in these cases, in relation to the presumption raised by the statute from certain facts, let us observe a provision in section 71, of the foregoing act of Congress. It is this: “ In actions, suits, or informations to be brought when any seizure shall be made pursuant to this act, if the property he claimed by any person, in every such case the onus prohandi shall be on the claimant,” when probable cause has been shown in a complaint. This goes far beyond the act before us, and yet that law was made in a day when questions of personal right were tender ones. And the provisions of the constitution of the United States are, in these respects, like those of the constitution of this state, as well as of that of Massachusetts and other states. These laws of the United States have stood nearly sixty years; why have they not been overthrown. ?

The chapter of the Code relating to the sale of intoxieating liquors, has never been questioned in these respects, and yet in some of them, it is, perhaps, equally liable to objection, with either the Massachusetts or the recent Iowa act. By this latter, a day for trial is to be appointed, not less than five, nor more than fifteen days, after giving the notices; the complainants, ‘ or other witnesses, are to be summoned, and the trial is to proceed like other trials. It is true that all of the minutiae of the proceedings, are not detailed; nor are they generally, by the laws of this state, or of any state, where a new offence is'ereated and made punishable. They are left to come under the general provisions of law in relation to such matters, and a detail of them is not necessary in every instance. They apply to all cases.

Whilst these Massachusetts cases have been relied upon as strong, perhaps conclusive, authority against the Iowa act; it is singularly true, that the Iowa act has especially and carefully guarded every one of those points on which the Supreme Court of Massachusetts decided against the validity of their act. So true is this, that the mind is led to the conclusion, that the draftsman of our act was acquainted with the other, and sought to avoid its difficulties. And it affords us great satisfaction, that in following our legal convictions in regard to the law of Iowa, we are not opposing any doctrine advanced by that able bench. We conclude, then, that none of the objections made to this law, on constitutional grounds, are valid, and there remains nothing for us to do, but to examine the objections to the proceedings in the particular cases.

In the case of Santo and others v. The State, in a motion to dismiss the prosecution, seventeen reasons, of a constitutional nature, are assigned. These are much divided and attenuated, so that it is difficult to take them up seriatim, but it is believed that the substantial thoughts involved in them, are embraced in the foregoing remarks. The other objections to the proceedings, contained in the assignment •of errors, will be briefly noticed. The first error assigned, is in overruling the motion to dismiss the proceedings. This is understood to refer to the motion before the mayor, which contains the above seventeen reasons. Those of a different nature are the following:

First. That the mayor of the city of Keokuk, had no legal authority to entertain the cause. The charter of that city, approved December IS, 1848, section 23, and an act in amendment thereof approved January 22, 1853, sections 12 and 13, are very distinct in conferring upon the mayor the jurisdiction of a justice of the peace, under the criminal laws of the state, and make him a justice, in substance, although they do not call him such in terms, as do the charters of some other towns. Should there be any constitutional objection to the above section in the amendatory act, it is not necessary to consider it now, as the original charter gives all the authority here required. The objection intended is, that the mayor is an executive .officer, and that judicial authority is conferred upon him, in conflict with that provision of the constitution which says, that no person- charged with the exercise of ¡cowers properly belonging to one of these departments — the executive, the legislative, or the judicial — shall exercise any function appertaining to either of the others. These “ departments,” are the departments of the government of the state of Iowa. The mayor of the city of Keokuk, is not a part of the government of Iowa. He exercises none of the functions belonging to that department. Whatever executive offices he may perform, pertain to him only as an officer of that corporation. But we do not mean to say that he is an executive officer, in any proper sense. Similar provisions exist in the constitutions of all, -or nearly all, the other states, and yet from time immemorial, similar powers have been conferred upon the mayors of cities. We are of opinion, that the objection is not well taken.

Second. The want of the mayor’s seal on the warrant. The seal of the town is a “ corporate seal” (see charter, § 1), and is not known to the general law of the land. It is not his seal as a justice of the peace under the state law, and his court is not a court of record.

Third. It is objected that Mark P. Landon was a constable of Keokuk, and that the same person is one of the complainants. The Code, section 175, provides, that no sheriff, deputy sheriff, coroner or constable, shall appear in any court, as attorney or counsel for any party, nor. make any writing or process to commence [a suit, or a proceeding,] or to be in any manner used in the same, and such writing or process made by any of them, shall be rejected. It is quite unnecessary to extend the construction of this section, so far as to prohibit peace officers from making complaint of the violation of the penal laws. This would be without the letter, and against the spirit, of the section, and destructive of half the object and utility of those officers.

The fourth objection is, That the information and warrant are void, inasmuch as neither the place to be searched, nor the intoxicating liquors to be searched for and -seized, are not particularly described. This objection was not made before the mayor, and is not included in the supposed affidavit of causes for appeal, but appears to have been first made in the District Court. The defendants having appeared before the ma3ror, and had a trial, without making this question, and it not being assigned as an error in the affidavit, it is not now open to inquiry.

The second error assigned to the proceedings of the District Court, is, the refusing the defendants a jury trial. The constitution, Art. 1, section 9, says: “ The right of trial by jury, shall remain inviolate; but the General Assembly may authorize trial by a jury of a less number than twelve men, in inferior courts.” Our law' gives a jury of six, in trials before a justice of the peace. Sections 3358 and 3361 of the Code, have been so construed, as to leave in the District Court an authority to inquire into the appeal, so far as to determine vffiether a new trial should take place, and to grant or refuse it. See Baurose v. The State, 1 Iowa, 374. The section (3361) is ambiguous and difficult of interpretation, and that given it, may not be entirely satisfactory. In exereising this authority, then, the court did not err. And whether it exercised it properly or not, is not made to appear. It is here assumed, that the general provision in the last-cited section of the Code, is applicable to this case, as to others ; and that it is not superseded by anything in section 10 of the act in question. This is considered the true doctrine.

The next five errors assigned are:

3. In affirming the judgment of the court below.

4. In adj udging that the liquors were kept for the purpose of being sold, in violation of the law.

5. In adjudging that the liquors were forfeited.

6. In ordering the defendants to pay the costs of appeal, as well as those below.

7. In ordering that the liquors be destroyed.

There was a trial before the mayor, and a verdict rendered against the defendants by a j ury; and if there was no error, for which the District Court should reverse the judgment of the mayor, and no ground upon which a new trial should be granted, then these things followed as legal consequences, and the court did not err therein.

The eighth error assigned, is “ In overruling various other motions and questions, apparent upon the record, which is made part and parcel of this assignment of errors.” This is too broad. It is not the office of the court to hunt for errors. And there is so much want of congruity between the positions taken in the different stages of the case — before the mayor- — -in the District Court, and in this court — that we-may have noticed questions not really before us, but it has been our desire not to seem to avoid any question fairly presented. We are aware that some other points were started in the early stage of the case, but they have not been continued throughout the cause, and brought before us. Such is the irregular state of the papers, that it is somewhat difficult to ascertain what is properly presented. It may be, that there is nothing before us properly, for, to state one of the ambiguities of the case, the act, section 10, gives the defendant an appeal, if he, or some person for him, shall make an affidavit stating the fact, showing the alleged errors in the proceedings or judgment complained of; and it is questionable luheiher there is such an affidavit in the case. We have, however, treated a certain paper, or certain papers, as such.

The judgment is affirmed.

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Dissenting Opinion

Weight, C. J.

(dissenting). — On one question, discussed in the foregoing opinion, I find myself unable to concur with the majority of the court. That question arises on the construction given to section eighteen of the act of January 22, 1855, which reads as follows:

“ Sec. 18. At the April election to be hoi den on the first Monday in April, A. D. 1855, the question of prohibiting the sale and manufacture of intoxicating liquor, shall be submitted to the legal voters of this State, and at said April election, a poll shall be opened for that purpose, at the place of election in each township of each county. The vote on said question shall be by ballot, and the voters in favor of such prohibition, shall cast a ballot, whereon shall be written or printed, the words, “For the prohibitory liquor laxoand the voters opposed to such prohibition, shall cast a ballot, whereon shall be written or printed, the words, “Against the prohibitory liqxtor law.” The said ballot shall be received and canvassed by the judges of election, in the same manner as ballots for the election of officers, and a return of the same shall be made to the county judge, in the same manner and at the same time,'as provided for in the election of officers at the April election. Such return shall be treated by the county canvassers, in the same manner as returns for the election of officers, and an abstract of said vote, made upon a separate sheet, shall be forwarded to the Secretary of State, in the same manner and at the same time, as provided in the case3 of abstracts of votes for Superintendent and District Court Judges, elected at any April election. The returns of said vote, so returned to the office of the Secretary of State, shall be opened and examined by the Board of State Canvassers, in the same manner and at the same time, as in the case of returns of election of officers had at said April election. Immediately after such examination and canvass, the said Board of State canvassers shall make and publish an official state* ment of said vote; and if it shall appear from such official statement, that a majority of the votes cast as aforesaid upon said question of prohibition, shall be for the prohibitory liquor law, then this act shall take effect on the first day of July, A. D. 1855: Provided, however, that those portions of the act having relation to the election provided for iú this sec* tion, shall be in force from and after its publication in the Iowa Capital Reporter and the Iowa Republican.”.

I pass over the objection, urged by the plaintiffs in error, that this section provides for the taking effect of the law in a manner not recognized by the constitution. If this section had been entirely omitted, I grant that the act would have taken effect, like all other laws, on the first day of July, 1855. And therefore, so far, I think, it might properly be disregarded. But in my opinion this section has a meaning and purpose beyond this — -going to the very life and essence of the law — and as such courts cannot disregard it.

A statute may be constitutional in part, and unconstitutional in other parts, and the constitutional provisions be ujDheld. But not so, whore the void provisions are vital to the execution of such as are constitutional — or where the act itself, is passed in a manner unwarranted by the fundamental law. And I also grant, that it is competent for the legislature to pass laws, the operative effect of which may depend upon a contingency — or upon the occurrence or nonoccurrence of a particular thing. Indeed, most, if not all, the laws on our statute books are more or less of this character. In all such cases, the law is complete and perfect in all its parts — no other than the constitutional departments have aided in passing the same — it is the will of the lawmaking power, to be applied and become operative, when the law is violated, or when the citizen shall claim the benefit of its provisions. But I think it quite different, when the law is made to depend, for its creation and existence, upon the will or voice of any other body or power, than that to which such power is alone constitutionally delegated. Tbe distinction is not in all cases, perhaps, susceptible of definite explanation, but to my mind it is, nevertheless, clear and ■important. For instance, I think the legislature may give to the judges of the different counties, power to submit to •the people the question, whether any extraordinary expenditure shall be made for the construction of roads, bridges or the like. Such a law is the rule prescribed, and is not dependent -for its creation or life, upon the aid of any other power. Whether it .shall ever be of any practical effect, depends upon circumstances, but it is nevertheless a law. But if, on the other hand, such a law had legislative sanction, dependent upon the sanction of the county judge or the people, it would have no life, without such approval, and I maintain that it is not competent .for the legislature to give vitality to law, on any such method.

That this last proposition is true, I think, is manifest, and indeed, on this subject, I do not understand, from the opinion of the majority, there is any diversity of opinion. But it is •claimed, that this law is not, by the 18th section, made to •depend, for its life and existence, upon the contingency of a popular vote. In other words, that, though a majority of -the votes cast at the said April election, had been “Against •the prohibitory liquor law,” the aGt would, nevertheless, have taken effect under the general provisions of the Code, on the first day of July. And this, I think, is the .fair and legitimate result of the argument. For when the popular vote is disregarded in considering the existence of the law, ■it conclusively-follows, that though .the vote had been otherwise, this act would, nevertheless, be the -law of the land* ■Ór, in other words, -the position is, that .this section is of no .force, so far as the life of the law is concerned — but it was to be enforced, whatever might be the result of that election.; .and that such election was only provided for, to test the minds of the people, and ascertain whether .they would give their sanction thereto.

In the first place, I never could have obtained the consent of my mind, to declare this law in force, if the popular vote -had been otherwise. And .this, not because such holding would be in violation of public opinion, but because I should regard it contrary to the manifest intention of the legislature, I am not, in my position as a judge, to control that will, when exercised within constitutional limits — but to- carry it out,, according to the best lights I can obtain. And, to say that it was the legislative will, that this law was to take effect, and become a rule of action,, whatever the result of-this election, to my mind would most palpably violate that intention, as-gathered from the law itself, and circumstances contemporaneous with its passage. To so hold, would be to say that this section means nothing — is a blank- — that the legislature provided for all the trouble, expense and form of an election,, for no end or purpose.. If so, then it was a deliberate fraud upon the people, and one which I do not believe was intended or thought of. But further,-1 cannot forget, nor have I a right to, that the submission of this law to a popular vote, and the propriety and constitutionality of such submission, was a question much discussed before, at the time, and after the passage of the law. And when I find a provision making such submission, I cannot feel justified in saying, that it had not some practical end in view.

It is said, however, that the practical end was this: If the people decided in favor of the law, then, having the moral power arising from their concurrence, the law would be more likely to be enforced. But this position, I think, is clearly inconsistent with the argument, that the law -would have taken effect, whatever the result of the election. For, to say that this vote was only to obtain the moral influence resulting from popular approval — and to hold that the law would be in force, in violation of popular sentiment, if so expressed at such election, would be to use an argument that destroys-itself. The reply to this is, that if the vote had been against the law, then the law, though in force, would not have been executed, and the next legislature would have repealed the same, and thus carried out the will of the peojcle. But ifr. in the meantime, prosecutions had been commenced under the law, or if the legislature, at a subsequent session, should fail to repeal the law, then it must necessarily have been executed, despite public opinion, and, as I think, in violation of the legislative intention, as expressed in the law itself.

But it is said again, that there are no negative words in this section ; and that by the general provisions of the Code, this law would have taken effect by publication at the time therein fixed; and therefore, no conclusion can be drawn, that the vitality of the law was made dependent upon the will or vote of the people. Granting the premises, is the conclusion legitimate. Now, ordinarily, laws are passed to take effect from their passage; from .their publication and distribution in pamphlet form; by publication in newspapers ; on a day named, after such publication; or no time is mentioned — in which latter'case, of course, the time of their taking effect would be regulated by the general law. The general law is, as before stated, that statutes shall take effect on the first day of July next after their passage. This section provides, that if it shall appear that a majority of the votes cast upon said question of prohibition, shall be “ for the prohibitory liquor law,” then the act shall take effect on the first day of July — the very day provided by law for the taking effect of all other laws. Had the time of its taking effect been some other than that named in the general law, the argument drawn by the majority of the court, from the absence of negative words, would, to my mind, have been stronger than at present. Then, it might have been urged with more plausibility, that if the vote was in favor, it was to take effect at the time named (say first of Juno); if against, then, of course, at the time of all other laws. But as it stands at present, -the argument is this: If the people approve, the law shall take effect on the first day of July, but if they should not approve, then it shall, nevertheless, take effect on the same day. Where, then, let me ask again, the necessity of the election? I answer, none, except for one that was illegitimate, and in violation of the constitution. I regard that by this section, the legislature intended to say, and have in effect said, this: If the people approve this law, then our will is, that it shall take effect at the time of all other laws; if they do not, then our will is, that it shall not take effect, either-then or at any other time. In other words, notwithstanding the people have, by their constitution, vested legislative power exclusively in us, yet we will not exercise that power ourselves, but will call in the aid of a power unknown to the constitution. If this section does not mean this, then I affirm it means nothing.

But let me make one query here : suppose at this election, no vote had been cast, either for or against the law, in the entire state. Would it have been the law of the land ? If not, then I say, it is conclusive that the law was not enacted by the constitutional power, but depended for its validity upon another power. If it would have been a law, then I say, it would have been such, in violation of the express will of the legislature — for that expressed will is, that it should take effect dependent upon this very vote, and in the case supposed, we have no vote.

Our constitution vests the legislative power of this state, in a Senate and House of Representatives, known as a General Assembly. To legislate, is to enact or make laws. To enact or make laws, is to decree or establish the will of the supreme power, which, under the constitution, is this General Assembly — limited, of course, by the charter which confers the power. Believing then, as I do, that the General Assembly have not declared their will unconditionally in the law, but have called in the aid of a power not provided for, nor contemplated, by the constitution, to assist in its en'actment, I cannot hold it to be in force. It had no life — no vitality — when it left the hands of the General Assembly. Eor its creation, it had to depend upon the breath given it 'by the popular vote. Without this breath, thus given, it never was designed to have an existence. And with it, I must regard it as being created and brought into life, in violation of the spirit of a constitutional government.

This character of legislation is novel, and we have but few authorities on either side of the question involved. These authorities are cited'in the opinion of the majority, and I need not refer to them. That the highest tribunals of the different states, should differ upon a question, involving so many nice distinctions, and susceptible of much argument on either side, is hut natural. After all the reflection which I have been able to give to the question, however, I am reluctantly led to the conclusion above indicated. I say reluctantly, because I would certainly prefer, if consistent witb duty, to have an entire concurrence on a question so unsettled, and subject to so much controversy. But while I thus dissent, I may say, in conclnsion, that I concur with the majority of the court, on the other constitutional questions discussed. I have neither sympathy nor favor to bestow upon those constitutional objections, which are urged against the main principles involved in this law. To promote the happiness, peace and prosperity of the state, is the highest duty of the legislator, and I know of no more certain means of accomplishing this, than to suppress intemperance, pauperism and crime. Those laws which restrain men from doing mischief to their fellows, while they may diminish the natural, increase the civil, liberty of mankind. Natural liberty must be so far restrained by human laws, as is expedient and necessary for the general advantage of the public, in order to constitute political or civil liberty. This restraint should not, of course, be wanton and causeless, but have in view the public advantage, and the general freedom of the' people in those matters of importance, which alone can secure perfect independence, and a prosperous and healthy state of society. These objects, this law, in my opinion, contemplates, and was designed to accomplish. Bnt a law ever so beneficent in its design, or beneficial in its consequences, must become such by the action of the legitimate constitutional power; and if not so enacted, should no more receive judicial sanction, than if ever so pernicious and dangerous. And it is because I do not believe tbat this law was so framed, that I do most respectfully dissent from the opinion of the majority.