Thornton v. Territory

• Citation: 3 Wash.Terr. 482,17 P. 896
• Parties: THORNTON v. TERRITORY.
• Decision Date: 31 January 1888
• Court: United States State Supreme Court of Washington

17 P. 896

3 Wash.Terr. 482

THORNTON v. TERRITORY.

Supreme Court of Territory of Washington

January 31, 1888

Error to district court, Third district.

TURNER J., dissenting. ^[1]

Mr. Metcalfe, Mr. Rochester, and J. H. Lewis, for plaintiff in error.

J. T. Ronald, Pros. Atty., for defendant in error.

LANGFORD, J.

The question before the court is whether the local option law, so called, is void under the provisions of the organic act and the constitution of the United States. The statute in force at the time the said local option law was passed, in terms prohibited all retail sale of spirituous liquors. The local option act provides that a vote in each precinct may do the same. In this there is no proposed change. The former act provides a penalty for selling; so does the latter. Each act provides a mode by which the penalty may be avoided, which operates under each act as an exemption from the prohibitory clause, and the penalty. The former act exempts from the prohibition those who prove moral character give bond, and by paying a penalty procure a license, The local option act does not exempt this class, but exempts from the prohibition druggists alone. There is also in the local option act a provision to the effect that even druggists shall not sell liquor for a beverage; but this is more formal than real, as liquor is so sold by druggists or others for the profits of the sale, with no control of the use after the sale is made, whether it be for medicine or beverage. The purpose of the drunkard until he has drank, and even then, is not susceptible of proof. If a man says he drinks for medicine, there is no way to disprove it. Thus we see that the essential difference between the so-called license law and the local option act is that the former permits sale by all who conform to certain provisions, and the latter permits only druggists to sell. The local option act narrows the class of persons whom the former act permits to sell, and thus far purports to repeal the former statute. The former statute will prevail except by petition and vote. The law is repealed in the district voting, and this by the operation of the vote. It is well, when considering an act like this, to recur to the definition of law. Law is (1) a rule of action (2) prescribed by the supreme power of the state, (3) commanding what is right, and prohibiting what is wrong. First, it is a rule of action. A rule of action does not relate to one act alone, but to all of a class of actions. An order to perform any particular action is a mandate or decree, but not a law. This rule of action is general, and applies to all of a class. This rule must be prescribed, or it is not a law; this, as to statute law, means that, as written, it must be approved by the legislature. The law must command; a mere request or permission is not a law. If the local option act conforms to all these three requisites, it is a law; if it fails to conform to one or more, it is not a law.

First then, let us examine the act to perceive what, if anything, it commands to be done. It grants the power to petition and to vote, but it commands neither; and hence it, in this respect, is not a law. Strike this grant of power, which we have seen is not a law, nor any part of a law, out, and there is nothing left in the act which can have any effect. The act merely grants power to certain persons, by a petition and vote, to repeal the statute in each precinct wherein the people elect; then the repeal takes effect solely by those citizens electing to create a rule and a penalty. The rule and the penalty are the only parts of the statute which purport to be mandatory or law; and these have all the effect they do have, not by virtue of legislative act, but by virtue of petition and vote. The statute is repealed in each precinct voting "Yes;" in others it is not repealed; which clearly shows that the vote repeals the law. Is this repeal prescribed? If so, where will this prescription be found? Is the repeal in any precinct written anywhere? If so, where? Whether the statute is repealed in any precinct can only be determined by parol evidence. The courts take judicial knowledge of laws; but to find the rule of action and the penalty in any precinct the court can resort neither to judicial knowledge nor any statute, but must try the question of whether the law exists as a fact, by evidence. It will be seen that the local option act lacks one of the essential elements; it is not prescribed by the supreme power of the state; in fact it is not prescribed at all. If it exists, it exists by virtue of the petition and vote alone, and is to be found by proving the petition, the order of the board of commissioners, the posting of election notices, and the majority vote. It has been said that the law rules the vote, and not the vote the law. This misapprehension arises from misnaming the grant to vote a law, though it is not mandatory. It has been said that the law is in force from the date of its passage, but takes effect only upon the happening of the contingency of a petition and election resulting in a certain way. If this be the contingency, then a law can be made to go into effect at the option of those subject thereto. If a law goes into effect only at the option of those subject thereto, then it is not mandatory. Can that be a law which is not mandatory, and from the terms of which it cannot be discovered whether the rule of action exists, or whether there exists a penalty for the violation of this rule? If a man should go to any precinct in the territory, and ask whether a man, according to the law of the land, might, by making proof and payment, set up the business of selling spirits, or whether druggists might alone make such sales, he would be shown the local option statute. This giving no information, he would inquire whether there had been any election. Learning that there had, he would inquire whether or not it was legal; and, as this question involves the investigation of each step which must be a condition precedent to its legality, he would have to investigate both the facts as to what had been done, and the conditions of the grant of power establishing the rule. These uncertainties as to whether a man would be subject to fine or imprisonment are not the qualities of law, but rather the qualities of anarchy. Every state constitution and our organic act grants the power to make laws to the legislature alone; and that this power cannot be delegated is conceded by every decision of every court. This being conceded, it has also been conceded that towns and cities may be granted the power to make laws for the inhabitants thereof. These two well-settled principles appear to be in conflict, but in reality are not so. The laws of the city or town are by-laws, and not state laws; the laws of the state are not by-laws, but state laws. If a man performs an act which violates an ordinance or by-law, and the same act is a violation of state law, he can be punished twice for the same act; once as the violator of the laws of one government, and again as a violator of the laws of the other government. In this respect the laws of the city or town are as distinct from the laws of the state as are the laws of the several states from the laws of the United States. Police powers are not delegated to cities or towns, but are or may be granted. The grant is an act of the legislature, but not a law thereof. The granting act, whether in one or many, is merely a power granted to and forming a government, containing, it may be, many conditions precedent to the right to exercise the power, but the charters are never rules of action prescribed for the government of the citizens of the state as such. When the power to make by-laws is granted, the power is as to some subject-matters; and history has not shown a single instance wherein the power to make by-laws on such subjects is also a power to repeal any ordinance, as well as make it. In fact, the power to make by-laws, when given, creates a local legislature as free to act within the scope of the power granted as is the state legislature to act upon the subject-matters which the state constitution grants to it. These by-laws must not only be passed by the local legislative body, but are of no force until they are duly authenticated and recorded. They, like other laws, must be prescribed before they have any effect, and be thus made certain in a form in which they can be read by subjects, who are compelled to obey them. Towns and cities are governments within the government, adding something to, but not taking anything from, the state government; not acting as the delegate of the state, but acting "by virtue of a power granted by the state." Towns and cities can in no manner enact or repeal or effect state laws. These city or town legislators meet, discuss, amend, enact, and repeal ordinances and the by-laws. Acts made are prescribed in the town or city record, so that all subject thereto may know the exact terms which they are bound to obey. The act of a precinct is not the act of a local legislature, in that the power granted to the precinct is not the power to pass by-laws upon a particular subject-matter, and repeal or modify such by-laws. There is no provision made as to how the by-law, when passed, shall be authenticated or prescribed. In fact, the act does not purport to grant the right to make a by-law, but attempts to give power to cause a state law to exist. It is an attempt to delegate the power to make a state law exist without its being prescribed at all, or without its being accepted or passed as a by-law by the local legislature.

From the above contrast between the granted power to a local legislature to make and amend by-laws and this statute, it...