Locke's Appeal.

• Decision Date: 17 March 1873
• Parties: Locke's Appeal. Commonwealth <I>ex rel.</I> McClain <I>versus</I> Locke <I>et al.</I>
• Court: Pennsylvania Supreme Court

72 Pa. 491

Locke's Appeal.

Commonwealth ex rel. McClain versus Locke et al.

Supreme Court of Pennsylvania.

February 24 and 25, 1873.

March 17, 1873.

February 24th and 25th 1873.

Before READ, C. J., AGNEW, SHARSWOOD, WILLIAMS and MERCUR, JJ.

Appeal from the Court of Common Pleas of Philadelphia: In Equity: No. 52, to January Term 1873 G. W. Biddle and W. L. Hirst, for plaintiffs in error.—The legislature cannot delegate to the people power to enact new laws or to repeal existing laws which affect the property or bind the political or social rights of the citizen: Cooley's Constitutional Limitations 116, 117; Rice v. Foster, 4 Harrington 492; Parker v. Commonwealth, 6 Barr 507; People v. Stout, 23 Barb. 338; Barto v. Himrod, 8 N. Y. Rep. 483; State v. Swisher, 17 Texas 441; The Aurora v. United States, 7 Cranch 382; Thorne v. Cramer, 15 Barbour 112; Bradley v. Baxter, Id. 122; Johnson v. Rich, 9 Id. 68.

The authorizing municipal corporations to do certain acts, such as to contract particular debts, to subscribe to improvements, to impose taxes for local purposes, to pass by-laws, ordinances, &c., is no delegation of the law-making power, provided that no act thus authorized abridges or enlarges any of those rules of conduct that affect the social and political rights of a citizen: when they do so the law is pro tanto unconstitutional: Comm'th v. Judges of Quarter Sessions, 8 Barr 395; Parker v. Comm'th, supra; Comm'th v. Painter, 10 Barr 391; Cooley on Constitutional Lim. 116, 125; Commissioners v. Gas Co., 2 Jones 318; Ex parte Burnett, 30 Ala. 461; S. C. 32 Id. 728; Thorne v. Cramer, Bradley v. Baxter, Barto v. Himrod, supra; People v. Stout, 23 Barb. 338; State v. Copeland, 2 Rhode Island 30; Maize v. State, 4 Ind. 351; Santo v. State, 2 Iowa 206; Geebrick 5 Id. 493; People v. Collins, 3 Mich. 415; State v. Parker, 26 Verm. 336.

An act making it wholly illegal and penal to carry on a business lawful at common law, is a law affecting the property and the social and political rights of the citizen. The legislature cannot delegate the power to pass or repeal such a law, to any other body, much less to the people of a local district: Moers v. Reading, 9 Harris 188; Railroad v. Clinton Co., 1 Ohio N. S. 77; Ex parte Burnett, supra.

W. H. Rawle and Porter (with whom were W. McElroy and F. C. Brewster), for appellants.—An act of the legislature is not to be declared void, unless the violation of the Constitution is so manifest as to leave no room for reasonable doubt: Com. v. Smith, 4 Binn. 117; Hilbish v. Catherman, 14 P. F. Smith 154; Bancroft v. Dumas, 21 Verm. 461; Wellington v. Petitioners, 16 Pick. 95; Respub. v. Duquet, 2 Yeates 493; Com. v. Zephon, 8 W. & S. 382; Sharpless v. The Mayor, 9 Harris 147; Speer v. School Directors, 14 Wright 158; Erie R. R. v. Casey, 2 Casey 287; Durach's Appeal, 12 P. F. Smith 495; Pennsylvania Railroad v. Riblet, 16 Id. 164.

This kind of law is a police regulation, being applicable only to a business which is hazardous or injurious to the citizens: People v. Hawley, 3 Mich. 330.

A writ of error to the same court by the Commonwealth at the relation of McClain and others, against Locke and others, city commissioners, was argued at the same time.

The error assigned in that case was the refusal of the court below to issue a mandamus to compel the commissioners to issue license to the relators.

The opinion of the court was delivered, March 17th 1873, by AGNEW, J.

That a power conferred upon an agent because of his fitness and the confidence reposed in him cannot be delegated by him to another, is a general and admitted rule. Legislatures stand in this relation to the people whom they represent. Hence it is a cardinal principle of representative government, that the legislature cannot delegate the power to make laws to any other body or authority. The true question in this case is, whether the Act of May 3d 1871 (Pamph. L. 523), "to allow the voters of the Twenty-second ward of the city of Philadelphia, to vote on the question of granting license to sell intoxicating liquors," is a delegation of legislative power. This must be determined by an analysis of the provisions of the act itself; and depends, not upon the numerical order of the sections, but upon the nature of the legislative determination when the act left the hands of the Assembly. Whatever the legislature then determined to be is law, for so much was then a fixed and absolute resolve. What did the legislature then determine absolutely? It enacted in the fifth section that any person who shall hereafter be convicted of selling, or offering for sale, in the Twenty-second ward of the city of Philadelphia, any intoxicating liquors, spirituous, vinous, malt or other intoxicating liquors, without a license, shall be sentenced to pay a fine of fifty dollars," &c. The provisions of the first, second and third sections are equally imperative and absolute, and may be summed up in a few words, viz.: That a special election shall be held in the Twenty-second ward at the next annual municipal election, and every third year thereafter; that the constable of the ward shall give a certain notice of such special election, at which time the question of license or no license will be submitted to the voters of this ward; that the election shall be held by the same officers, in the same manner, and under the same penalties prescribed by the general election law, and due returns of the election made in a similar manner. The language is imperative, and the law was absolute in all these respects when the act was approved by the governor. We come then to the fourth section, which provides that whenever, by the returns of election, it shall appear that there is a majority against license, it shall not be lawful for any license to issue for the sale of spirituous and other liquors in said ward, at any time thereafter, until at an election, as above provided, a majority of the voters of said ward shall vote in favor of a license.

What did the legislature, in this section, submit to the people, and what did they not submit? This is quite as clear as any other part of the act. Each elector is to vote a ticket for license or against license. He is allowed by the law to say, "I am for the issuing of license," or "I am against the issuing of licenses," and thus to express his judgment or opinion. But this is all he was permitted by law to do. He declared no consequences, and prescribed no rule resulting from his opinion. Nor does the majority of the votes declare a consequence. The return of a majority is but of a mere numerical preponderance of votes, and expresses only the opinion of the greater number of electors upon the expediency or inexpediency of licenses in this ward. When this is certified by the return, the legislature, not the voters, declare "it shall (or it shall not) be lawful for any license to issue for the sale of spirituous liquors." Thus it is perfectly manifest this law was not made, pronounced or ratified by the people; and the majority vote is but an ascertainment of the public sentiment — the expression of a general opinion, which, as a fact, the legislature have made the contingency on which the law shall operate. When the law came from the halls of legislation it came a perfect law, mandatory in all its parts, prohibiting in this ward the sale of intoxicating liquors without license; commanding an election to be held every third year to ascertain the expediency of issuing licenses, and when the fact of expediency or inexpediency shall have been returned, commanding that licenses shall issue or shall not issue. Then what did the vote decide? Clearly, not that the act should be a law or not be, for the law already existed. Indeed, it was not delegated to the people to decide anything. They simply declared their views or wishes, and when they did so, it was the fiat of the law, not their vote, which commanded licenses to be issued or not to be issued.

Now, in what respect does a vote upon license or no license, in a particular ward or township, differ from a vote, whether a new township shall be continued or annulled; or from a vote to determine whether a seat of justice shall be continued where it is or be removed to another place; or from a vote for or against a subscription by a city to the stock of a railroad company; or from a vote of the people of a district for or against a consolidation of it with a city? Yet in all these instances (to which reference will be made hereafter) it has been decided that the determination of these questions by a vote of the people interested in them, and an enactment of law dependent on the result of this vote, are not a delegation of the law-making power to the people, but a submission only of the expediency of the proposed measure. This is simply common sense, for in none of the instances did the legislature commit to the people the making of the law, but merely the province of determining a matter important to wise and judicious legislation — something upon which the legislature deemed it proper its own act should wait, and then should operate accordingly. The wit of man cannot draw a well-grounded distinction between the result of a vote upon license in a township, and the result of a vote upon the existence of a township, and the removal of a court-house, or a subscription to stock, or the consolidation of an outlying district with a city.

The legislature in the Act of 1871 have given to the people a law, not a mere invitation; needing no ratification, no popular breath to give it vitality. The law is simply contingent upon the determination of the fact, whether licenses are needed, or are desired, in this ward. And why shall not the legislature take the sense of the people? Is it not the right of the legislature to seek information of the condition of a locality, or of the public sentiment there? The Constitution grants the power to legislate, but it does not confer...