Clark v. State

• Decision Date: 15 January 1938
• Citation: 113 S.W.2d 374
• Parties: CLARK et al. v. STATE ex rel. BOBO.
• Court: Tennessee Supreme Court

Page 374

113 S.W.2d 374

CLARK et al. v. STATE ex rel. BOBO.

Supreme Court of Tennessee.

January 15, 1938.

Appeal from Chancery Court, Moore County; Thos. B. Lytle, Chancellor.

Suit by the State, on the relation of Landry C. Bobo, against William Clark, chairman of the Quarterly County Court of Moore County, and others, to enjoin defendants from calling an election on the question of manufacturing intoxicating liquors within the boundaries of the county. From a decree sustaining the bill on demurrer and granting the injunction, relator and defendants appeal.

Decree reversed, and bill dismissed.

Walker & Hooker, of Nashville, for appellant.

Roy H. Beeler, Atty. Gen., and Henry C. Foutch, Asst. Atty. Gen., for the State.

J. J. Bean, of Lynchburg, and Andrew Tanner, John C. Sandidge, and John M. Cate, all of Nashville, for appellees.

DeHAVEN, Justice.

The question before the court is the constitutionality of chapter 193, Public Acts of 1937. The title of the act is as follows:

"An Act to be entitled An Act to permit, authorize and make lawful the manufacture of intoxicating liquors and other intoxicating drinks within the State of Tennessee; and to make lawful the possession, storing and transporting the products thereof, upon certain conditions."

Under section 1 of the act, the quarterly county court of any county within the State of Tennessee is required to call an election upon the question of permitting and legalizing the manufacture of intoxicating liquors within the boundaries of said county, when requested to do so by a petition bearing the signatures of 10 per cent., or more, of the qualified voters of such county, based upon the number of votes cast in the last preceding presidential election in such county. It is made the duty of the county election commissioners to call and hold an election, as provided, upon direction by resolution of the quarterly county court, and to place upon the ballots the words "For Manufacturing Liquors" and "Against Manufacturing Liquors." It is further provided that, if a majority of the qualified votes cast in said election in a county, so holding an election, favor the manufacture of intoxicating liquors, it shall be lawful to manufacture such liquors within the boundaries of such county, upon the payment of certain specified privilege taxes, and, under section 3 of the act, it shall not be unlawful for the owner or operator of a plant for the manufacture of intoxicating liquors to store or transport the products of said plant over and across the State of Tennessee, provided the storing shall be within the county authorizing the operation of said manufacture of said intoxicants, and while being transported to points outside of the State by the manufacturer or common carrier.

It is further provided, "that nothing in this Act shall be construed as licensing or legalizing the sale of intoxicating liquors and/or intoxicating drinks within the State of Tennessee by any distillery or manufacturing plant authorized under this Act." Section 1. Under section 4 it is provided: "That this Act take effect from and after its passage, the public welfare requiring it."

It is averred in the original bill that defendant, William Clark, chairman of the quarterly county court of Moore county, was about to call a special meeting of the court for the purpose of calling an election by the qualified voters of Moore county, under the provisions of chapter 193, Public Acts of 1937, upon the question of permitting the manufacture of intoxicating liquors within the boundaries of that county, and, unless enjoined, such meeting of the court would be held. The injunctive relief sought was predicated upon the allegation that the act in question is unconstitutional because violative of article 2, section 17, of the Constitution of the State of Tennessee, and of article 4, § 2, and of section 1 of the Fourteenth Amendment of the Constitution of the United States (for reasons set forth in the bill and hereinafter noticed), and because the act unlawfully delegates legislative power and authority to the qualified voters of the respective counties of the State. Upon the latter ground, alone, the chancellor sustained the bill on demurrer, held the act unconstitutional, and granted the injunction as prayed. Both parties to the suit have appealed and assigned errors.

The sole question presented on the appeal of defendants is whether or not the Legislature, by the act in question, unlawfully delegated legislative power and authority to the qualified voters of the respective counties of the State with reference to the manufacture of intoxicating liquors for sale without the State.

The general rule is that, while the Legislature may not delegate its power to make a law, it may make a law to become operative on the happening of a certain contingency or event. Cooley on Constitutional Limitations, 8th Ed., 227; 6 R.C.L. 166; 12 C.J. 864. In Wright v. Cunningham, 115 Tenn. 445, 458, 91 S.W. 293, 295, the court said:

"The act may provide upon its face that this duty of compliance may depend upon the happening of a condition or contingency. It has been so held in this state (State v. Tennessee C. I. & R. R. Co., 16 Lea 136); and this rule is general."

In Leeper v. State, 103 Tenn. 500, 526, 53 S.W. 962, 967, 48 L.R.A. 167, the court said:

"The legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. Locke's Appeal, 72 Pa. 491, 498 ."

The authority cited involved a local option law on the sale of intoxicating liquors in one of the wards of the city of Philadelphia.

It is insisted, however, that the condition or contingency upon which a statute shall become operative cannot be a favorable vote of the people. Under the weight of authority, this is true with reference to a general law applicable to the State as a whole; but, the rule is otherwise when the law is complete in itself and the question only of its operative effect is left to local subdivisions of the State. In 12 C. J. 870, it is stated:

"As has been stated, it is the rule in most, although not all jurisdictions that, in the absence of constitutional authorization, the question whether an act shall become a law cannot be submitted to the voters of the entire state; but that, where there is affirmative legislation and the law is complete in itself as it leaves the legislature, the question whether or not it shall be operative and enforceable in certain localities or local subdivisions of the state may be submitted to the voters of such localities or such subdivisions."

In Cooley on Constitutional Limitations, 8th Ed., 239, it is said:

"If the decision of these questions is to depend upon the weight of judicial authority up to the present time, it must be held that there is no power to refer the adoption or rejection of a general law to the people of the State, any more than there is to refer it to any other authority. The prevailing doctrine in the courts appears to be, that, except in those cases where, by the constitution, the people have expressly reserved to themselves a power of decision, the function of legislation cannot be exercised by them, even to the extent of accepting or rejecting a law which has been framed for their consideration. * * * It is therefore held that the legislature have no power to submit a proposed law to the people, nor have the people power to bind each other by acting upon it. They voluntarily surrendered that power when they adopted the constitution. The government of the State is democratic, but it is a representative democracy, and in passing general laws the people act only through their representatives in the legislature."

With reference to local option laws, however, Mr. Cooley (p. 245) states that they have been generally sustained. He says:

"They relate to subjects which, like the retailing of intoxicating drinks, or the running at large of cattle in the highways, may be differently regarded in different localities, and they are sustained on what seems to us the impregnable ground, that the subject, though not embraced within the ordinary power of the municipalities to make by-laws and ordinances, is nevertheless within the class of police regulations, in respect to which it is proper that the local judgment should control."

The act here in question was a complete law when it passed through the several stages of legislative enactment and, by its terms, took effect from and after its passage. It required nothing further to give it validity. The question to be submitted to the voters of any county in the State, when 10 per cent. of the voters therein petition the county court to order an election, is whether or not intoxicating liquors shall be permitted to be manufactured, under the act, within the boundaries of the county. The vote is not for or against the act. If Moore county voted against the manufacture of intoxicating liquors, the act would remain unaffected. So, if the voters of all the counties voted in the negative, the act would remain in full force and effect, because other and future elections could be held under the act in any of the counties of the State, the act containing no limitation on the number of elections that may be held.

In 33 C.J. 511, it is stated:

"Prior to the Eighteenth Amendment, it had been held that a `local option' law, authorizing the municipal divisions of the state to decide by popular vote whether or not a prohibitive or restrictive liquor law should be in force in their limits, if it was a complete enactment in itself, requiring nothing further to give it validity, and depending upon the popular vote for nothing but a determination of the territorial limits of its operation, was a valid and constitutional exercise of the legislative power."

In a note under this section in the original text and in...