The Opinion of the Court was delivered by
The law, the constitutionality of which is questioned by this application, provides for the division of Gallatin county, incorporating a part of its territory into a * new county, called Saline. The Act goes on in detail, with all the various provisions necessary to effect the change, and then, in the tenth section, provides for an election, authorizing the people of that county to say, by their vote, whether they wished the division or not, and that the law should only go into operation in the event that a majority of the voters at such election desired a division.
To establish the unconstitutionality of this Act it is assumed, that instead of being a law finished and obligatory from the hands of the General Assembly, this is merely a bill prepared by that department of the Government, and submitted to the people of Gallatin county, to be by them passed into a law, or defeated at the polls. This assumption is not true in fact. The law, as passed, was complete and! perfect, although its principal provisions were to take effect upon a contingency, the determination of which did not depend upon the exercise of legislative powers by the people; but upon an expression which they were authorized to make, rather in the execution than in the enactment of the law, an expression to be made in a legitimate and an ordinary way. To the General Assembly have the people delegated the legislative powers of the Government, only limited and controlled by the Federal and State Constitutions, and it is insisted that these powers cannot be delegated to any body of men or any portion of the people, upon the principle that delegated powers cannot be delegated. This maxim is true, unless the delegate is empowered to employ others. The extent to which this maxim should be applied to a legislator depends upon a proper understanding of legislative powers; upon a proper determination of what may legitimately be done in the exercise of those powers. It is easy to say that it is the business of the Legislature to make laws : but then we must inquire, what kind of laws may be made ? Must they be full, complete, perfect, absolute, depending upon no contingency and conferring no discretion? This would be absolute legislation, exhausting legislative power on the subject matter of the law. We presume that no where has constitutional learning advanced so far as to assert this doctrine. For. ourselves, in determining what is legitimate and proper legislation, we feel warranted in looking at the past to see what kind of laws legislative bodies have been in the habit of passing. Legislative power is not a new idea only sprung into existence at the formation of this republic, but it has been known and understood since the formation of society and the institution of civil governments; and its meaning is not changed by its introduction into the American Constitutions, although its exercise is there limited, restricted and controlled, as well by their express provisions as by the genius of the governments of which they are the fundamental laws. If we take the action of all past legislators as determining what may and should properly be done in the exercise of legislative powers, we see that while they are bound to make the laws, yet those laws need not be absolute, nor make every provision for doing that which they may authorize to be done. While all must be done under their sanction, yet they need not do all, nor command all. A law |may depend upon a future event or contingency for its taking I effect, and that contingency may arise from the voluntary j act of others. Of this class are all laws creating private corporations, and a very large proportion of the laws creating public or municipal corporations. The former must necessarily be submitted to the corporators for acceptance before they take effect, and this has been very usually done with the latter, especially in the incorporation of towns and cities, and not unfrequently of counties ; and we have never heard it questioned before, that the Legislature might properly submit a law, creating either a private or a public corporation, to the acceptance of the corporators. All such laws are perfect and complete when they leave the hands of the Legislature, although a future event shall determine whether they can take effect or not. If we say that this is an unauthorized delegation of legislative power, we forget what is a proper and legitimate exercise of that power. If the saying be true, that the Legislature cannot delegate its powers, it is only so in its most general sense. We may well admit that the Legislature cannot delegate its general legislative authority; still it may authorize many things to be done by others which it might properly do itself. All power possessed by the Legislature is delegated to it by the people, and yet few will be found to insist, that whatever the Legislature may do, it shall do, or else it shall go undone. To establish such a principle in a large State would be almost to destroy the Government. The Legislature may grant ferry licenses, or it may lay out roads and specify their metes and bounds, and yet, who will doubt that it may delegate this power to others, either by general or special laws P ■ So, also, it may pass all. the laws requisite for the government of a particular city or township, or school district, and who will doubt the propriety of its authorizing this to be done by the people within the limits of the city, town or district, by their local representatives, or even directly. This is making laws, and laws, too, of as binding efficacy as if passed directly by the Legislature. They are dependent upon the legislature for their vitality and force, though the act of incorporation, or law under and by virtue of which they are ,- made. Necessarily, regarding many things especially, affecting local or individual interests the Legislature may act either mediately or immediately. We see, then, that while the Legislature may not divest itself of its proper functions, or delegate its general legislative authority, it may still authorize others to do those things which it might properly, yet cannot understandingly or advantageously do itself. Without this power legislation would become oppressive, and yet imbecile. Local laws almost universally call into action, to a greater or less extent, the agency and discretion, either | of the people or individuals, to accomplish in detail what is J authorized or required in general terms. The object to be | accomplished, or the thing permitted may be specified, and ! the rest left to the agency of others, with better opportunities of accomplishing the object, or doing the thing understandingly. In this way have the seats of justice of most of the counties in the State been located. Indeed, the old county seat of this very county was fixed by five persons named in an Act of the Legislature, and under authority therein delegated to them. Session Laws of 1826, p. 77. If- the Constitution has been violated by the passage of the law now in question, then was that location by the persons named without its sanction. If, by declaring this law in-valid, we restore old Gallatin to her original boundaries, then by the same decision do we unsettle the old county seat, because it was located in pursuance of authority delegated by the Legislature to individuals. We should say, because the Legislature might have named the place, it should have done so, and in no other way could it have been constitutionally selected.
The only cases to which we have been referred in the least countenancing the position assumed by the Relator appear to have been decided by the Supreme Courts of Pennsylvania and Delaware, and noticed in the January and June No’s (1848,) of the Western Law Journal. These we feel called upon to notice, and it is to be regretted that we have not full reports of the cases. They appear to be identical in their facts and decisions, and the same course of reasoning is pursued by both Courts. The first is Parker v. The Commonwealth, noticed in the January No. There it appears that the Supreme Court of Pennsylvania, by a majority of three judges to two, held that an Act entitled “ Jin diet authorizing the citizens of certain counties to decide by ballot whether the sale of vinous and spirituous liquors should be continued in said counties,” was unconstitutional. It appears that by other laws of that State, the sale of such liquors is prohibited, except by persons obtaining a license from the Court of Quarter Sessions. The Legislature then -passed the law complained df, authorizing the people of certain counties to determine by their vote, whether the sale of spirituous liquors should be altogether prohibited in these counties, or in other words, whether any licenses should be granted. In both cases it was admitted that the laws did not. contravene any express provision of their State Constitutions, but then it was said that they were invalid because they palpably violated the principles and spirit of their constitutions and tended to subvert their republican forms of government. And how were their republican governments ■to be subverted ? -By allowing the people of the county to determine by ballot whether or not intoxicating drinks should be sold in the county. Here they perceive an attempt by the Legislature to establish a pure democracy, from which, we are informed, they think greater danger is to be apprehended than from an absolute monarchy. Such an attempt, it is supposed, is revolutionary in its tendency, and subversive of a republican government.
Besides the objection that it is inconsistent with the genius of a republican government to submit such a question to the decision of the people, the maxim before alluded to, that delegated power cannot be delegated, was invoked and relied upon by these Courts. In Delaware, the Court say: “The powers of government are trusts of the highest importance; on the faithful and proper exercise of which depend the welfare and happiness of society. These trusts must be exercised in strict conformity with the spirit and intention of the Constitution by those with whom they are deposited ; and in no case whatever can they be transferred or delegated to any other body or persons; not even to the whole people of the State; and still less to the people of a county. It is a plain proposition of law, that a power or authority vested in one or more persons, to act for others, involving in its exercise judgment and discretion, is a trust and confidence reposed in the party, which cannot be transferred or delegated. The making of laws is the highest act •of sovereignty ^that can be performed in a free nation; and therefore, the legislative power may be truly said to be the supreme power of a State. Its exercise requires superior intellectual faculties, improved by study and experience; although it seems to be a common notion with many pretended advocates of popular rights at the present day, that every man is instinctively fitted to be a member of the Legislature.”
We cannot concur in the application to legislative powers, of the maxim relied upon to the extent asserted by that Court. The apprehension of disastrous consequences which might result from an unwise use of a discretion vested in the people or any portion of them, seems to have led the Court to lay down a principle, which certainly cannot, in our judgment, be maintained. No exception is made to the rule which is asserted, that legislative power is a trust which cannot he transferred or delegated. If this be true, it necessarily follows, that the Legislature can authorize others, either the people, the Courts or individuals tó do nothing which it might do itself. While we may concur with that Court in deprecating and condemning the fulsome effusions and unprincipled conduct of the demagogue, whose only merit consists in an artful ability to deceive the people and flatter the public vanity; ever persuading them that they can do no wrong; approving, defending and advocating every popular prejudice, even at the sacrifice of his own judgment, that he may acquire an influence and use their power for selfish purposes; — who is even willing to ride upon the whirlwind that hastens to destruction, for the giddy pleasure of guiding the storm, we ought not to allow such occasional abuse of the. public confidence or credulity, to impel us to the other extreme, and conclude that the people are not safe repositories of any power — that they cannot judiciously exercise any discretion.
We have before attempted to show that the Legislature may, to a certain extent, authorize others to do that which it might properly do itself; and as its powers are all derivative, it may delegate at least some of its delegated powers, the right to do which is also denied in terms by the Court in Pennsylvania; and yet the authority to do this, we'apprehend, is clearly recognized by the latter Court in the case then before it.
In the absence of all legislation on the subject, the right of all persons to sell spirituous liquors is undoubted. A law was then passed, prohibiting the sale of such liquors by all, except such persons as should obtain a license from the Court of Quarter Sessions. Now the Legislature might, had it seen fit, have exempted certain persons by name from the operation of the law by authorizing them still to sell liquor, but instead of doing so, it delegated that power to the Court of Quarter Sessions by authorizing it to grant licenses, upon terms prescribed by the law, or by its discretion, or without terms, which it is immaterial for our present purpose. This delegation of authority is not censured by the Court, nor is its propriety questioned. We do not know whether it is left to the discretion of that Court to determine whether it would grant any licenses or not. At any rate, that might have been done with equal propriety; and if that had been done, then had the Legislature delegated the very power to one man or a few men, which it was determined could not be delegated to many men, — to the voters of the county. The same power might with equal propriety have been delegated to — or, if the expression is preferred, the same jurisdiction might have been conferred upon some individual by name, which was given to the Court, and if they could confer it upon one man, why not upon more — the voters of the county? Had this authority been given to the Court instead of the voters, we are compelled to believe that no complaint of its constitutionality would have been entertained, and yet there would have been as much a delegation of powers in one case as in the others. To prove this needs no argument. If, by leaving this question to the people, the republican form of government is to be overturned, and its principles subverted by a miniature democracy, may not the same awful calamities be apprehended from a miniature monarchy ? If, by giving this power to the people, the one is created, then by conferring it upon one individual, we have the other. It seems to us that the latter is quite as inconsistent with the genius of a republic as the former and as subversive of its principles, although it is manifest that there is a wide difference of opinion upon the political question, as to which of these extremes we should first incline.
It is the substance of the thing which we should look at, more than the form. It matters not whether this question is submitted to the people, the Court or indivicljuals, by a separate Act or by the original law prohibiting the sale, and authorizing the granting of licenses, and we repeat that we apprehend the constitutionality of a clause would never have been questioned, authorizing the Court of Quarter Sessions to determine by its vote or order, whether any licenses should be granted in the county or not. The answer is, that in the case supposed^ the Court would only have been executing a law, vesting it with a discretion, and this we conceive is the true answer to the objection which was urged against the laws in question. We are unable to appreciate the danger or impropriety, either ih a political or a legal view, of allowing the Legislature to vest a discretion of this kind depending upon many local circumstances for its proper exercise, either in the people or a Court, either of whom may, in truth, be much better qualified to exercise it understandingly, than the Legislature itself. The application made of the maxim that delegated power cannot be delegated, would lead to most embarrassing results, and would have a much more certain tendency to despotism, than the action complained of. How those Courts reconciled their use of this maxim, with the powers universally conferred upon municipal corporations, we are not fully advised. Such corporations are always delegated with authority to pass laws, local in their character, it is true, but universal in their application within their jurisdictions; — laws precisely such as those in question. If in Pennsylvania and Delaware, there are no incorporated towns or Cities, authorized to pass and enforce laws prohibiting the sale of spirituous liquors, and many other acts lawful in themselves, within their limits, we venture the assertion, that those States stand alone in this respect; and in other States, at least we imagine it has never been questioned, that such powers may well be conferred. It may be true, that this authority is usually conferred upon a board of trustees or city council, but that does not affect the question so far as a delegation of authority is concerned. This authority might as rightfully be conferred upon the mayor alone, or upon the voters of the city, as upon a common council. It is presumed that there is no constitutional provision, determining upon how many or upon how few, the Legislature may confer this power-. That must be. left to legislative discretion. If the voters of a city or town maybe authorized to determine, either directly by their vote, or by their local representatives whether spirituous liquors shall be sold within their precincts, then surely the voters of a county may be allowed to do the same. Upon the question of authority it can matter little, whether the te'rritory be greater or less, or whether it be densely or sparsely populated. Both counties and cities are municipal corporations and vested with greater or less powers, according to the discretion of the Legislature. Both of these as well as other less important, perhaps, but similar corporations, are usually vested with power to levy taxes, often by a direct vote of the people, and collect them, which has been well said to be one of the highest acts of sovereignty, and yet this authority is admitted to be legitimate by the Court in Delaware, in the very case, because it is said to be not the making, but merely the execution of a law. If to say that a certain tax shall or shall not be assessed and collected, is not legislation, then we are unable to see how it is the making of a law to say that spirituous liquors shall or shall not be sold. And yet hew variously different men may look upon the same thing. The Supreme Court of Delaware says : “No ingenuity can discover the shadow of a similitude between the Act of the 19th of January, 1847, (the unconstitutional law,) and any part of the school law. To say that the authority given to the school voters — to members of a corporation, to determine whether a tax shall be laid or not, is a grant of legislative power, is an abuse of language.” Pardon our simplicity when we inquire where they get that authority if it is not granted them by the Legislature P Who else gives it them ? The majority may vote this tax upon the minority against their consent. This we had supposed was not an inherent and natural right, but could only be delegated by the sovereign power of the State. This, the same Court says, is vested in the Legislature, which might have imposed the tax specifically by a direct law. If all of this be true, we are unable to perceive the abuse of language anticipated; nor do we think it requires any extraordinary degree of ingenuity not only to “discover the shadow of a similitude between the” two laws, but a very striking resemblance in their principles.
Without pursuing the subject further, we think enough has already been said, to show that the Legislature may delegate authority, either to individuals cr to bodies of people, to do many important legislative acts, not only similar to that authorized by the law, the validity of which is here questioned, but also others of a more important, and, upon principle, of a much more questionable propriety; but in doing this it does not divest itself of any of its original powers. It still possesses all the authority it ever had. It is still the repository of .the legislative power of the State.
Entertaining no doubt of the constitutionality of the law authorizing the division of Gallatin county, this application for a mandamus will have to be denied.
However clear this may appear to us, and however novel the principle contended for may have been, still two decisions made by tribunals of as great respectability as the Supreme Courts of Pennsylvania and Delaware, and upon questions so very like this, may well have justified those whose interests and judgments inclined them to disapprove of the Act complained of, in doubting, or denying its constitutionality. The question, however, is now settled, and we entertain no doubt that all will cheerfully submit to the provisions and operation of the law.