52 So. 941 | Ala. | 1909
Lead Opinion
It first appeared to this court, that the act in question (Sp. Sess. Laws 1907, p. 89) was violative of the Constitution because it delegated to officials of street railroad companies, not only the right to legislate, but to, in effect, suspend the law by a suspension or abolition of the rules. The question is still a close one, but all doubts should be resolved in favor of the constitutionality of a law, and it should be upheld when it is capable of being construed so as to harmonize with the Constitution without doing violence to the legislative intent. The right to make reasonable rules by street car companies, through its officers and / servants, exists independent of the act, and the authority thereby given is not the delegation of authority to legislate, but merely reiterates the right of the officers, to make reasonable rules in and about the conducting of the business of the public service utility, and, in addition thereto, prohibits under penalty, a violation of said rules. This statute makes it unlawful to,/ fraudulently or wilfully violate said rules. A party cannot be guilty of violating this law unless he violates A the rules fraudulently or wilfully and knowingly. The rules must be reasonable, and must be known to him at
The act in question being valid, and there being no reversible error disclosed by the record, the judgment of the criminal court is affirmed.
Affirmed.
Dissenting Opinion
(dissenting). I do not doubt that the Legislature may in the proper exercise of the police
The Massachusetts case from which I have just quoted states, as well as it can be stated, the theory of penal rules and the justification for them. Chief Justice Marshall had before that used this language, which, in my judgment points out, by inference at least, an exceedingly important limitation upon the delegated power of establishing such rules: “It will not be contended that. Congress can delegate to the courts, or to any other tribunals, powers which are strictly and exclusively legislative. But Congress may certainly delegate to others powers which the Legislature may rightfully exercise itself. * * * The difference between the departments undoubtedly is that the Legislature makes, the executive executes, and the judiciary construes, the law. But the makers of the law may commit something to the discretion of the other departments, and the precise boundary of this power is a subject of delicate
Dissenting Opinion
(dissenting). I concur in all that is said by Justice Sayke in his dissenting opinion, and in addition thereto I feel constrained to add the following, as expressive of my views of the unconstitutional - ity and invalidity of the statute in question, and whicli is upheld by the court in the majority opinion:
If the statute in question only declared that any person who, with intent to defraud or injure another, issues transfers or otherwise disposes thereof, in wilful violation of any reasonable rules of any common carrier, shall be guilty of a misdemeanor, and, on conviction, shall be punished by a fine of $100, and may, also be sentenced to imprisonment in the county jail, etc.,
I concede that it would be within the power of the Legislature, and might be valid if constitutionally enacted. The statute in question, however, does not do this, but in my opinion it has attempted to authorize any person or corporation operating a street railroad within this state; acting through a president or other authorized managing officer, to make any and all rules and regulations for the issue and use of transfer tickets, commonly called “transfers,” which may be necessary for, the protection of the person or corporation making the rules. The statute does not at all limit it to rules which are reasonable, but permits it to make any rules for the issue or use of transfers which the carrier deems necessary for its protection. If it does not mean this, what is the use or sense of the first section of the statute? The power and right to make all such reasonable rules as to transfers, already existed. The act is certainly not merely declaratory of the common law; it was clearly not so intended.
The second section of the act makes it unlawful for' any person not authorized by the rules (not jJm-statute) to issue or dispose of such transfers.
Section four attempts to make it a crime for any conductor or other agent of the corporation to issue or dispose of such transfers in violation of any existing rules, or of any that might thereafter be adopted by the common carrier, and to fix a penalty for the violation.
Section five makes it a crime for any person, other than the conductor or agent of the common carrier, to issue or dispose of any transfer in violation of any rule or regulation that might be adopted by the person or corporation operating a street railroad; and also makes it a crime for any person to buy or receive, for the purpose of using, or to use or attempt to use, any such transfer, as fare, on any car operated upon such street railroad, wilfully in violation of such rules, and prescribes a penalty by fine and imprisonment or hard labor.
The act, in addition to the foregoing, does make it a crime to issue, dispose of, or use, such transfers in violation of the rules and with the intent to defraud. This provision I think is proper, if the act was otherwise valid. In short, the act is in my opinion nothing more nor less than an attempt, on the part of the Legislature, to authorize any and all persons in this state who operate a street railroad, or the president or managing officer of a corporation which operates such a street railroad, to make and unmake the criminal laws of the state pertaining to the issue, use, or disposition of transfers used in connection with street railroads.
The act does not attempt to authorize, regulate, or prohibit, anything except the issuance, use, or disposi
The act does not attempt to provide that all street car companies shall make the same rules, but authorizes entirely different ones, and makes all the criminal law on the subject. — whether they be reasonable or unreasonable, consistent or inconsistent. That is, if this statute is valid, the criminal law on the subject of transfers for street railroads depends solely upon the ipse dixit of those individuals authorized to make the rules and regulations. In my judgment there is no es
Mr. Cooley, in his work on Constitutional Limitations (page 163), says: “One of the settled maxims in constitutional law is that the power conferred upon the Legislature to make laws cannot be delegated by that department to any other body or authority. Where the sovereign power of the state has located the authority, there it must remain; and by the constitutional agency alone the laws must be made until the Constitution itself is° changed. The power to whose judgment, wisdom, and patriotism this high prerogative has been Intrusted cannot relieve itself of the responsibility by •choosing other agencies upon which the power shall be devolved, nor can it substitute the judgment, wisdom, and patriotism of any other body for those to which alone the people have seen fit to' confide this sovereign trust;” and he there, as well as in other places in his book, cites approvingly what Mr. Locke, in his work on Civil Government, says as follows: “There are the bounds which the trust that is put in them by the society, and the law of God and nature, have set to the legislative power of every commonwealth, in all forms •of government: First. They are to govern by promulgated established laws, not to be varied in- particular cases, but to have one rule for rich and poor, for the favorite at court and the countryman at plow. Secondly. These laws also ought to be designed for no other end ultimately but the good of the people. Thirdly.
While there are certain delegations of the law-making power which have been upheld, such as are pointed out and referred to by Justice Sayre in his dissenting opinion, and there may be others,, which are exceptions to or qualifications of the general rule denying the delegability of the law-making power, I do not believe that any like the one in question has ever before been upheld. The Massachusetts Court held, in the recent case of Welch v. Swasey, 193 Mass. 364, 79 N. E. 745, 118 Am. St. Rep. 523, 23 L. R. A. (N. S.) 1160, that matters of local self-government might always be intrusted to the inhabitants of the town, and that, the Legislature might delegate to a commission the power to fix the heights to which buildings might he erected; hut that court has never held that the Legislature could delegate to private individuals the power to make criminal laws, though the laws did pertain to public service corporations.
It is likewise true that the Legislature, in the exercise of the police power, may regulate the issuance and transfer of railroad or street car tickets or prevent the transfer thereof, or provide that no one but the carrier or his agent shall sell or deal in such tickets; and may make it a crime for any other person to sell such tickets. But a statute which made it a crime for any
A statute which authorized an insurance commissioner to prepare a standard policy of insurance, and prohibited the use of any other form, was held void as an unauthorized delegation of legislative power, and because the law was not complete in all its terms when it left that branch of the law-making power of the government.-O'Neil v. Ins. Co., 166 Pa. 72, 30 Atl. 943, 26 L. R. A. 715, 45 Am. St. Rep. 650. In speaking of the power thus delegated to the insurance commissioner, the court said: “Take out the form prepared by the insurance commissioner and to be found in some pigeonhole in his office, and the act is without meaning or effect. It is completely eviscerated. * * * By its provisions the Legislature says in effect to its appointee: Trepare just such policy or contract as you please; we do not care to know what it is. The Governor shall have no opportunity to veto it. Pile it in your own office, and we will compel its adoption, whether it is right or wrong, by the punishment of every company officer, or agent who hesitates to use it.’ * * * We do not see how a case could be stated that would show a more complete and unconstitutional surrender of the legislative function to an appointee.”
If this law is valid, how can this court, or any citizen desiring to observe or enforce the criminal law relating to these transfers, know or find it? Only by interrogating every person who by this act is authorized to make the law. And, if you could reach all, while you were interrogating one, the other might be making other laws or repealing those then existing. It is true that under our system of government a state Legislature, as a law-making power, is well nigh omnipotent. There are no limits to its power for this purpose, except those written in or implied from the state and federal Constitutions. The entire law-making function of the state sovereign is vested in the Legislature, subject only to the above exceptions or restrictions. Without these, the power would be as that qf the whole people from whom it is derived. But this power, almost unlimited, as it is, must be exercised in the manner and mode pointed out by the Constitution. This much is necessary to the preservation of the Constitution, or of the government itself; for the Constitution is the sole instrument by which this law-making power is created, and it defines and limits the power of the Legislature, and prescribes the principles by which, alone, the affairs of the government are to be administered.
Justice Patterson, speaking of the important and almost sacred character of the Constitution, in the case of
Justice Bell in the case of Parker v. Commonwealth, 6 Pa. 507, 47 Am. Dec. 480, after quoting the above from Justice Patterson, adds: “Until altered or destroyed by this authority, it is obligatoi’y upon the people themselves; and Legislatures, which are merely its creatures, xnust conform to it, or their acts will be void. Everything done in contravention of its principles is an act of xxsuxqxa.tion, which, uncorrected, tends directly to overthrow it.” And in the same opinion the learned justice adds: “As has been well remarked, the constituent is entitled not only to the industry and fidelity of his representative, but to his judgment, also, in all that relates to the business of public legislation. Axnoxxg the principal axioms of jurisprudence, political and municipal, is to be foxxnd the principle that an agent unless expressly empowered, cannot transfer his delegated authority to another, more especially when it rests in a confidence, partaking the nature of a trust, and requiring for its due discharge understanding, knowledge, and rectitxxde. The ixxaxinx is delegata potestas non potest delegari. And what shall be said to be a higher trust, based upon a broader confidence, than the possession of the legislative function ? What task can be imposed on a man, as a mexxxber of society, requiring a
Mr. Justice Chase, in the case of Calder v. Bull, 3 Dall. 386, 1 L. Ed. 648, says: “I cannot subscribe to the omnipotence of a state Legislature, or that it is absolute and without control; although its authority should not be expressly restrained by the Constitution, or fundamental law, of the state.”
Chief Justice Marshall said, in the famous case of Marbury v. Madison, 1 Cranch, 137, 2 L. Ed. 60, that: “Courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty — indeed, they are under a solemn duty — to look at the substance of things Avhenever they enter upon the inquiry whether the Legislature had transcended the limits of its authority. If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or public safety has no real or substantial relations to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the court to so adjudicate and thereby give effect to the Constitution.”
I know that the majority of this court' do not think the law means what I construe it to mean, if they did they would strike it down. They of course believe and hold that it is a proper police regulation of the issue, use, and disposition of street railroad transfers, and, if they are correct, of course the enactment would be valid. But in my opinion the act is, in effect, an attempt to authorize those who operate street cars to make criminal laws as regards street railroad transfers, and to make it a crime to violate the laws thus made by such street car operators. This the Legislature has no power to do.
My conclusion is that the act is in violation of the /Constitution (1) because it is an unwarranted delegation of legislative power to individuals; (2) because it is an attempt to authorize individuals to suspend the ' laws at pleasure.