CHAMPLIN
J.
Charles
Hauck was convicted in the circuit court for the county of
Jackson upon an information charging him with being engaged
in keeping a saloon in the city of Jackson, where malt
brewed, fermented, and vinous liquors were sold and kept for
sale at retail, and, while so engaged, kept his saloon and
bar therein open, and did not keep said saloon and bar
closed, until 6 o'clock of the following morning on the
29th day of February, 1888; said 29th day of February, 1888
being an election day, said election being held in the city
and county of Jackson on said day, under and by virtue of a
general law of the state, being act No. 197 of the Laws of
1887 of said state, approved June 18, 1887, the said Charles
Hauck not being engaged in selling drugs, etc.
The court sentenced him to pay a fine of $50, and costs,
assessed at $25, and, in default of the payment of such fine
and costs, that he be imprisoned in the county jail of said
county until such fine and costs are paid; not exceeding,
however, the period of 60 days from the day of sentence,
which was on the 14th day of April, 1888. Default was made in
the payment of the fine and costs, and Hauck was committed to
the county jail, from whence he has petitioned this court for
a writ of habeas corpus to inquire into the cause of
his detention. In his petition he alleges 13 reasons why his
imprisonment is illegal, as follows: "(1) It is in
violation of that part of article 4,� 20, of the constitution
of this state, which requires the object of a law to be
expressed in its title; said act being entitled 'An act
to regulate the manufacture and sale of malt, brewed,
fermented, spirituous, and vinous liquors in the several
counties of this state,' while the object of said act is
to prohibit such manufacture and sale in counties where a
majority of the electors voting at an election, to be called
in accordance with the provisions of said act, shall vote
against such manufacture and sale. (2) Because it violates
section 1, art. 4, of the constitution, in that it delegates
to the people of the several counties legislative power
vested by said section in the senate and house of
representatives. Said act does not take effect in any county
by its own terms and provisions, nor upon the judgment and
determination of the legislature; but takes effect only by
virtue of the vote of a majority of the electors voting as
aforesaid. (3) Because said act does not make the holding of
an election compulsory, but leaves it entirely to the option
of the people of the several counties to act upon it or not.
(4) Because any township or city, containing one-fifth or
more of the electors in a county, may force upon the other
cities and townships an election against their wishes,
thereby subverting the right of local self-government. (5)
Because the legislature cannot authorize the holding of such
election upon the petition of one-fifth of the voters of the
county; it being the duty of the legislature to provide for
the holding of such election, or to refer it to some
authority recognized by the constitution. (6)
Because the act does not provide any means for determining
whether the applications for an election, presented to the
county clerk, as provided for in section 1 of said act, are
signed by one-fifth of the voters of the county, or that such
signers are voters. (7) Because there is no provision in said
act for making any record of the determination of the county
clerk that one-fifth of the voters of the county have made
such application for the holding of such election, nor for
the preservation of said applications, or the making of any
record of the call issued by said county clerk for such
election, or the preservation of any proof thereof, or any
record or proof of any act in connection with the holding of
such election until the
return of the local election boards. (8) Because there is no
provision in said act for giving notice to the electors of
the townships and wards by the township clerks or inspectors
of elections of the wards in any city or otherwise of the
calling of said election, or time and place of holding the
same. (9) Because no provision is made for the opening or
closing of the polls, nor the manner of conducting such
election, excepting the manner of casting the ballots and
making the returns. (10) Because there is no provision for a
county canvass of the votes or returns, or other official
determination of the result of the election. (11) Because the
tabular statement of the votes cast in each voting precinct
in the county, provided to be made by the county clerk, is
made prima facie evidence of the truth of the
matters therein contained, including the result of such
election. (12) Because said act attempts to confer upon the
majority of the electors voting at such election a power not
possessed by the legislature itself, viz.: to alter, amend,
suspend, and supersede, as provided in section 1, other
general statutes, as well those existing at the time of such
vote as those which may be passed by the legislature
thereafter. The legislature cannot revise, alter, or amend a
law by reference to its title only. Const. art. 4, � 25.
Neither can it pass irrepealable laws. (13) Because said act
was repealed by act No. 313, Pub. Acts 1887, being an act
providing for the taxation and regulation of the traffic in
liquors. The proviso in said last act designed to prevent
such repeal is prohibitory legislation, and
entirely foreign to the object indicated by its title, and is
in conflict with section 20, art. 4, of the
constitution." About the same time the petition for
habeas corpus was presented to us, another petition
was presented by the people, on the relation of Charles E.
Keefer, for a mandamus against the common council of
the city of Hillsdale, to compel them to approve a bond
presented to them for the purpose of complying with the
provisions of act No. 313, Pub. Acts 1887, which requires
every person engaged in the sale of liquors, except
druggists, to present to the common council a bond for their
approval on or before the first Monday in May. The common
council refused to act upon the bond, for the reason that the
provisions of the act aforesaid was suspended in the county
of Hillsdale by a vote taken under act No. 197, Pub. Acts
1887. This act the relator alleges to be unconstitutional and
void. The cases, involving the same questions, have been
heard and argued together, and this opinion will cover the
points taken in both cases.
Act No
197, Pub. Acts 1887, reads as follows: "An act to
regulate the manufacture and sale of malt, brewed, or
fermented, spirituous and vinous liquors in the several
counties of this state. Section 1. The people of the state of
Michigan enact that the manufacture and sale of malt, brewed,
or fermented spirituous and vinous liquors in the several
counties in this state be, and the same is hereby, regulated
as follows: That upon application by petition, signed by not
less than one-fifth of the voters of any county, as shown by
the last preceding vote on governor, who are qualified to
vote for county officers in any county in this state, the
county clerk of such county shall call an election to be held
at the places of holding elections for state and county
officers, to take place within 40 days after the receipt of
said petition by said county clerk, to determine whether or
not intoxicating liquors, as mentioned in section two of this
act, shall be manufactured or sold within the limits of such
designated county, provided that no election held under this
act shall be held in any month in which an election for
state, county, city, village, or township officers is held;
and such question, having been once submitted
and decided by the votes of the electors, shall not be again
submitted for a period of three years, but shall, at any time
after the expiration of the said three years, upon like
petition, be again submitted. Notice that such a question is
to be submitted shall be given by the county clerk for the
same time and in the same manner as is provided by law for
giving notice of special elections for county officers. The
vote shall be by ballot, and the ballots shall be deposited
in ballot-boxes furnished for the purpose, and separate
poll-lists and tally-sheets shall be kept. The county clerk
shall provide poll-lists, tally-sheets, and a sufficient
number of tickets for such election, at each polling place,
at the expense of the county. All the electors voting at any
such election that the manufacture and sale of intoxicating
liquors for use as a beverage shall be prohibited, shall have
printed or written, or partly printed or partly written, on
their ballots, the words, 'Against the manufacture and
sale of intoxicating liquors;' and all the electors
voting at any such election that such manufacture and sale
shall not be prohibited, shall have printed or written, or
partly printed or partly written, on their ballots, the
words, 'For the manufacture and sale of intoxicating
liquors.' The inspectors of elections, as provided by
law, shall act, and shall have authority to appoint
assistants, if any shall be necessary. The ballots shall be
cast and counted, and the returns of the same shall be made
from each voting precinct to the clerk of the county in which
such election is held, in the manner prescribed by law for
the election of county officers. The clerk of the county
shall enter in a book to be provided by him for that purpose
a tabular statement of the number of votes cast for and
against such proposition in each...
