5 Dakota 397 | Supreme Court Of The Territory Of Dakota | 1889
The petitioner, Patrick McMahon, was arrested upon complaint before a justice of the peace of Grand Forks county, charging him with selling intoxicating liquors in violation of chapter 70, Laws 1887, known as the “Local Option Law.” The petitioner, having been bound over to await the action of the grand jury of that county, and declining to give bail, was committed to the jail of said Grand Forks county, and he sues out of this court a writ of habeas corpus, directed to the defendant, O’Connor, as the person having him in custody, alleging that he is unlawfully restrained of his liberty, in that the statute upon which this offense is based is unconstitutional and void, and was never enacted by the legislative assembly of the territory.
No question is raised as tp the right and power of the court to determine these questions in this manner, and, as the proceeding is a friendly one, brought as a test case to determine at an early day, and in a speedy manner, the legality of this statute, the court has not seen fit to examine into, and will not pass upon, questions other than those mooted at the argument.
The plaintiff in this proceeding seeks to attack the validity of chapter 70 of the Laws of the Legislative Assembly, passed at the
The petitioner contends — First. That the act is within the prohibition of the constitution of the United States, in that he is ■ deprived of his property without due process of law. Second. ‘That the act is in violation of the organic law of the territory .and the statutes of the United States, (a) in that it conflicts with the revenue laws of the United States granting licenses to :sell intoxicating liquors; (b) in that it conflicts with the section ■ of the Revised Statutes of the United States which prohibits the legislature from enacting any law “impairing the rights of private property;” (c) in that it conflicts with the statute of the United States prohibiting local or special legislation; (d) in that it conflicts with the statute of the United States by delegating •the legislative power conferred upon the legislative assembly. Third. That the law is inoperative, and cannot be enforced, for the reason that no penalties or punishments are prescribed for .its infraction or disobedience. Fourth. That the act was never
We will consider these objections in the order presented.
It was contended at the argument that this statute was within the prohibition of the first section of the fourteenth amendment to the constitution, which provides that no state “shall deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction-the equal protection of the laws.” It need only be stated, what has been so often decided, that the first amendments of the constitution were limitations upon the government of the-United States, and upon the powers granted by the constitution to the national government. But the fourteenth amendment, was intended to be, as its language plainly expresses, a limitation upon the states in their sovereign capacity. This section can therefore be of little aid in determining the powers of the territorial legislature. The territory has no powers, legislative, executive, or judicial, except such as are conferred upon it by act of congress. It can have over a given subject no-greater powers than congress itself has, and such powers may be as limited as congress may determine. It has no powers,, in fact, except such as are expressly, or by fair implication,, conferred by congress itself. The sovereignty of the territory,, so called, comes from congress, not the* people. If congress, have not the power under the constitution, it can confer non®, upon the territory. As has been aptly stated, the territory is “an outlying province of the national government,” subject to. its direct control through congressional legislation, or its indirect control through congressional supervision of territorial legislation. That this national sovereignty over the territories-exists has never been denied. Upon what particular section, of the national constitution such grant of power is ba'sed, the-decisions of the court are not harmonious, but, whether it. comes from the power granted “to make all needful rules and regulations respecting the territory,” etc., or from whatever-clause of that instrument the power is derived, it is sufficient.
And the next question for our consideration is, has congress conferred such power of legislation upon the legislative assembly of the territory ? The legislative power of the territory is conferred by section 1851, Rev. St. U. S., which provides that
The legislatures of all the territories, under organic acts almost like our own, have exercised and granted to public corporations to exercise the right of eminent domain, one of the highest prerogatives of sovereignty, and this not only with the silent acquiescence of congress and the people, but by the solemn adjudication of the courts. Swan v. Williams, 2 Mich. 427.
It is too late now for the courts to hold that the territory is other than a temporary sovereign government, — temporary, in that its organic laws and its very existence are subject to the paramount will of congress, its creator; sovereign, in that its executive, legislative, and judicial powers are unlimited except by the terms of the constitution or its organic law. When congress created the temporary sovereign government of the terri-ritory, it intended to confer upon it such legislative powers as are usually exercised by sovereign states. Police powers are among the more common powers exercised by the sovereign states. •Mr. Cooley defines police powers to be: “The police of a state, in a comprehensive sense, embraces its whole system of internal regulation by which the state seeks not only to preserve the public order, and to prevent offenses against the state, but also to establish, for the intercourse of citizens with citizens, those rules of good manners and good neighborhood which are calculated to prevent a conflict of rights, and to insure to each the uninterrupted enjoyment of his own so far as is reasonably consistent with a like enjoyment of rights by others.” Cooley, Const. Lim. 706. Blackstone defines it to be (4 Bl. Comm. 162) “the due regulation and domestic order of the kingdom, whereby the individuals of the state, like members of a well-governed family, are bound to conform their general behavior to the rules of propriety, good neighborhood, and good manners; and to be
It is contended that the act is in conflict with the revenue laws of the United States granting license to sell intoxicating liquors. This question is determined by the license eases found, eo nomine, McGuire v. Com., 3 Wall. 387, and License Tax Cases, 5 Wall. 462, in which the supreme court holds that these laws are enacted for revenue merely, and that, whether the tax be'collected under the form of a tax or license, it is in fact a tax, and not a license or permission to perform the act. In the ease last above cited, the court says: “The granting of a license, therefore, must be regarded as nothing more than a mere form of imposing a tax, and of implying nothing except that the licensee shall be subject to no penalties under national law if he pays it. * * * But, as we have already said, these licenses give no authority. They are mere receipts for taxes.” But it is contended that the statute of 1864, which in terms provided “that no license provided for in the act should be construed to authorize any business within any state or territory prohibited by the law's thereof,” was amended by the Bevision of 1878, by leaving out the word “territory,” thereby intending to give the construction that in the territories the acts should give a license. Whatever of force there might have been to this argument, an examination of the entire title on revenue, in which this section occurs, reveals the fact that the word “state” is made to include “territory.” The first section of chapter 1, tit. “Internal Be venue,” Bev. St. U. S., provides that “the word ‘state,’ when used in this title, shall be construed to include the territories and the District of Columbia where such construction is necessary to carry out these provisions.” And an inspection of the entire title shows that the word “state” is used throughout the chapter to include “territory,” as in section
The objection is equally untenable that the act “impairs the rights of private property.” The act contemplates nothing beyond the prohibition of the sale of intoxicating liquors. It does not seek to confiscate, destroy, or prevent any lawful use of intoxicating liquors, or to lessen the value of such property, or of other property used in or about the sale of such liquors, except in so far as a depreciation in value may result from the prohibition of the sale. Such impairing of the rights of private property must always more or less result from the enforcement of police regulations. The exercise of the police power which establishes fire limits, regulates markets, controls gunpowder and combustible materials, fixes the speed of trains and vehicles, establishes stands for hackney coaches, prohibits cattle from running at large, and otherwise interferes with the use of private property for the public good, in a similar way impairs the rights of private property. “The right of private property” is always subject to the fundamental law that “no man may so use his own property as to injure another.” Upon this fundamental principle rests the whole police power of our government, and whether the use of private property in a particular manner does injure another is the test of every police regulation. But this is not a question for the courts where the legislation is honestly and fairly what it purports to be. It is properly an exercise of legislative power; and though the courts might differ materially from the legislature as to the wisdom or the propriety of th6 legislation, and even whether in fact the exercise of one’s right in private property did result in public injury, — whether certain foods were unwholesome; whether éer-tain drinks were deleterious; or whether certain materials and compositions were dangerous, — yet the determination of such questions is for the legislature, and not for the judiciary, and its decision is binding on the courts, except in cases where, un
, Courts are reluctant to declare legislative enactments unconstitutional and void. As stated by Chief Justice Waite, in Sinking Fund Cases, 99 U. S. 718: “Every possible presumption is in favor of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt. One branch of the government cannot encroach on the domain of another without danger. The safety of our institutions depends in no small degree on a strict observance of this salutary rule.” See, also, Fletcher v. Peck, 6 Cranch, 87, 128; College v. Woodward, 4 Wheat. 518, 625; Livingston v. Darlington, 101 U. S. 407.
That it is in conflict with the statute of the United States prohibiting special legislation, or that it is a delegation of legislative power, might have been urged with some plausibility in the earlier days of American jurisprudence. It is now too late to argue the question as an original proposition. Matters affecting the police, such as the sale of intoxicating drinks, running at large of cattle, and kindred questions, are so differently regarded in different localities that it has been by no means uncommon to submit them to the people of the locality to be affected by their exercise, and laws so submitting such questions have been almost uniformly sustained, though not always upon the same ground. Many of the authorities in a case like the one before us hold that the law was perfect in all its parts, and complete, so far as any further action of the legislature was concerned, when it was approved by the executive, and that its adoption or rejection by the voters, or, rather, the favorable or unfavorable vote as to execution of the law, was a contingency merely provided for by the legislature as to the time when it should become operative. Mr. Justice Agnew, in Locke’s Appeal, 72 Pa. St. 491, thus expresses it: “The law did not spring from the vote, but the vote sprang from the law, and the law alone declared the consequence to flow from the vote. The assumption that the act is not a law till enacted by the people
It would seem to be conceded that the legislature has power to authorize or allow municipal governments by charter to exercise all the ordinary police powers, including the regulation and prohibition of the sale of intoxicating liquors. If this be so, it-is certainly far less a delegation of power to enact for such locality a perfect and complete statute, leaving to its people only the power to fix the date when it shall come into force, than to give to such locality complete control and power over such legislation. The law being conceded to belong to the police powers of the government, and to be local in character, it may with propriety be left to the county to determine when it shall and when it shall not be enforced.
The objection that the statute provides no penalties, and cannot, therefore, be enforced, is answered by examination of the statute which, in terms and by implication, continues the former penalties in force, and provides^an additional remedy for the restraint of such sale by injunction. See section 5, supra. The language of the section is too plain to admit of doubt. The legislature clearly intended to apply the penalties of the former law to a disobedience of the latter law. The former law is in no manner repealed, in terms or by implication, but was in several sections amended by the same legislature, and continued in full force. Chapters 71, 72, etc., Laws 1887. By reference to the penalties prescribed by a former statute, and by providing others “in addition thereto,” the statute must be construed as including and as having incorporated into it the penalties of the statute referred to. Turney v. Wilton, 36 Ill. 385 ; State v. Wilcox, 19 Amer. Rep. 536.
The last point raised by counsel, to-wit, that the law never passed the two branches of the legislature in the manner prescribed by law, and which was ably and ingeniously presented, •can receive but a passing notice here. How far, under our law, a court has power to go behind the statute, as it appears to be .approved by the executive, and examine the journals and other