In re O'Brien

• Decision Date: 09 February 1904
• Citation: 75 P. 196,29 Mont. 530
• Parties: In re O'BRIEN.
• Court: Montana Supreme Court

75 P. 196

29 Mont. 530

In re O'BRIEN.

Supreme Court of Montana

February 9, 1904

Application by W. P. O'Brien for a writ of habeas corpus. Dismissed.

Chas S. Wagner and Thos. C. Marshall, for petitioner.

R. A O'Hara and W. P. Baker, for respondent.

HOLLOWAY J.

On the 1st day of December, 1903, an election was held in Ravalli county, Mont, pursuant to the provisions of chapter 10, tit 7, pt. 3, §§3180-3188, of the Political Code, at which election a majority of all the votes cast were for "Sale of Intoxicating Liquors: No," and thereafter the returns of the election were duly canvassed, and the result published, as required by law. The provisions of said chapter thereupon became operative in that county on the 7th day of January, 1904. Within the confines of Ravalli county is the town of Hamilton, incorporated under the general incorporation act of Montana. Pursuant to that act the town council had enacted an ordinance regulating and licensing the saloon or retail liquor business, and had regularly issued to this complainant a license to conduct such saloon business in that town. On January 7, 1904, after the local option law is claimed to have become operative in Ravalli county, the complainant was arrested and tried for and convicted of selling intoxicating liquors in violation of that law, and sentenced to pay a fine of $100, and in default of payment was confined in the county jail. He thereupon applied to this court for a writ of habeas corpus, which was issued. Upon the petition and the return of the sheriff thereto the cause was submitted for decision to this court, it being conceded that no questions of fact were raised by the return of the sheriff.

Only two questions were argued and submitted for determination and we have carefully confined our decision to them. In order that no broader application may be made of the language herein used than is intended, the following is quoted from complainant's brief as showing the scope of this inquiry: "It will be conceded here that the proceedings of the trial and conviction were regular, and that, if the said so-called local option law is valid and constitutional, and has operative force in the territorial limits of the town of Hamilton, then this petition and writ should be dismissed. First. We take the position, as we have indicated, that the law is invalid, unconstitutional, and void. Second. That the law, even if valid, has no operative force within the corporate limits of the town of Hamilton, and there can be no violation of it within that territory. That the law is unconstitutional upon the several grounds and for the reasons following: (a) That it is a delegation of legislative power. (b) That it delegates to the people the legislative function of determining the expediency of the law. (c) That it is local and special legislation. (d) That it is not complete in all its terms and provisions. (e) That it undertakes to absolutely prohibit the sale of spirituous, vinous, malt, and intoxicating liquors, making no exceptions for medical or sacramental purposes, or for physicians, or for lawful interstate commerce."

1. Is the law unconstitutional? The same objections which are urged against the constitutionality of this act have been frequently lodged against so-called local option laws, and, while in comparatively few instances such laws have been held unconstitutional, the very great weight of authority and nearly all the later decisions have upheld them.

(a, b) The most frequent objection made is that such laws are an unwarranted delegation of legislative power to the people. Under our system of government the lawmaking authority is vested in the legislative assembly, and can be exercised by no one else. The legal effect of the popular vote, however, is not infrequently misconceived. If the law is complete in all its parts, it is an expression of the legislative will none the less that the contingency upon which it takes effect in any particular locality is made to depend upon a favorable vote of the people of that locality. The act under consideration was passed by the Legislature, received the Governor's approval, and became a law of state-wide application on July 1, 1895. A vote of the people of Ravalli county adds nothing whatever to the efficacy of the law, but merely furnishes the occasion for the exercise of the power inherent in the law. The law remains intact, and is a valid enactment on the statute books, whether a vote be taken upon it in any county, or whether any vote so taken results favorably or unfavorably to calling into operation its provisions. While the Legislature may not delegate to the people the authority to make the law, or to say what kind of a restrictive measure shall be adopted, or propose a law and submit it to a vote of the people to say whether or not it shall in fact be enacted into law, it may pass an act which takes effect only upon the happening of a contingency--a favorable vote of the people. With equal propriety could it be said that the general incorporation act under which the town of Hamilton assumes to license and regulate the saloon business within its corporate limits is unconstitutional for the same reason, for that act is purely a local option law, which is to be put into operation in the same manner as the law in question. In fact, this same objection was urged against the act of the territorial Legislature incorporating the city of Butte; but this court disposed of the question adversely to the contention of the relator, and, after citing numerous authorities in support of its position, among other things said: "These cases have been cited to show, first, that it is within the competency of legislative authority to enact laws the taking effect of which may be conditional or contingent, depending upon some uncertain future event; and, second, that it is competent for a legislature to delegate to one man, or to a certain designated body or class of men, or to the whole people, the question as to when the contingency or event has or shall take place. And such determination is not in any sense the making of the law. It is declaring when a law already made shall go into effect." People ex rel. Boardman v. City of Butte, 4 Mont. 174, 1 P. 414, 47 Am. Rep. 346; Cooley's Constitutional Limitations, 145; Black on Intoxicating Liquors, 45, and numerous cases cited.

(c) Is the law local or special in the sense that it is prohibited by section 26, art. 5, of the Constitution? Considering this same question, the Supreme Court of Dakota, in Territory v. O'Connor, 5 Dak. 752, 41 N.W. 746, 3 L. R. A. 355, said: "That it is in conflict with the statute of the United States prohibiting special legislation (by the territorial Legislature), 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." The mere fact that the adoption of this law in Ravalli county, and its rejection or nonacceptance in Missoula county, for instance, will make that unlawful in the former which is lawful in the latter, does not render the act void. The error in the argument made in support of this contention lies in the assumption that the vote makes the law, and that what is a law in Ravalli county is not a law in Missoula county. The law is the same for all, and equally available to all. Territory v. O'Connor, supra; State v. Pond, 93 Mo. 606, 6 S.W. 469.

Considering this objection to a like statutory enactment the Supreme Court of New Jersey in Paul v. Circuit Court, 50 N J. Law, 585, 15 A. 272, 1 L. R. A. 86, said: "The inhibition in the Constitution is not intended to secure uniformity in the exercise of delegated police powers, but to forbid the passing of a law vesting in one town or county a power of local government not granted to another. If one town or county was excepted from the operation of this law, it would be special and local. Under it one county or town has neither greater nor less power than every other, nor does such power differ in any respect. The authority granted is in every aspect of it the same. It may be exercised in a different way or the same way. *** The law, in my judgment, is unquestionably a general law. The quality of uniformity in result coexists with the right of self-government in various sections of the state." In discussing a township organization act which was purely a local option law, the Supreme Court of Missouri, in Township Organization Act, 55 Mo. 295, said: "It is a general law, made for the whole state, and by its terms took effect from its passage. Every county in the state may avail itself of the privileges offered by this law by a majority vote of the people. It is left to the option of the counties whether they will organize under the law or not. If a majority vote for it, such vote does not create the law, but places...