102 



CALIFORNIA. 



be approved by the Governor ; or, if vetoed 

 by the Executive, must again be passed by the 

 constitutional majority. Thus, and thus only, 

 can a general statute be enacted." It being 

 urged that it was not a delegation of the law- 

 making "power when the Legislature enacted 

 that a law should take effect provided the peo- 

 ple of the State or of a district should ratify it, 

 the court remarked that this position had been 

 upheld by courts of high character, but thought 

 that the decisions in which it had been denied 

 were sustained by better reasons. The court 

 admitted that a statute might be conditional, 

 its taking effect being sometimes made to de- 

 pend upon a subsequent event. This last prop- 

 osition was illustrated by the case of The Oar- 

 go of the Brig Aurora vs. The United States (7 

 Oranch, 382), in which the validity of a pro- 

 vision of the "non-intercourse law " was up- 

 held. The provision was to the effect that in 

 case Great Britain or France should revoke or 

 modify its edicts previously issued so that 

 they should cease to violate the neutral com- 

 merce of the United States the trade sus- 

 pended by the law should be renewed. It will 

 be observed that in this instance the members 

 of Congress exercised their own judgment, and 

 simply determined that trade should be sus- 

 pended while the Orders in Council or edicts 

 should continue in operation. 



In drawing the distinction between a statute 

 being made dependent upon a condition of 

 this kind and the one at bar, the court said : 



But it does not follow that a statute may be made 

 to take effect upon the happening of any subsequent 

 event which may be named in it. The event must 

 be one which shall produce such a change of circum- 

 stances as that the law-makers in the exercise of 

 their own judgment can declare it to be wise and 

 expedient that the law shall take effect when the 

 event shall occur. The Legislature cannot transfer 

 to others the responsibility of deciding what legisla- 

 tion is expedient and proper, with reference either 

 to present conditions or future contingencies. To 

 say that the legislators may deem a law to be expe- 

 dient, provided the people shall deem it expedient, 

 is to suggest an abandonment of the legislative func- 

 tion by those to whose wisdom and patriotism the 

 constitution has intrusted the prerogative of deter- 

 mining whether a law is or is not expedient. Can it 

 be said in such a case that any member of the Legis- 

 lature declares the prohibition or enactment to be 

 expedient \ 



A statute to take effect upon a subsequent event, 

 when it comes from the hands of the Legislature, 

 must be a law in presenti to take effect in futuro. 

 On the question of the expediency of the law, the 

 Legislature must exercise its own judgment definite- 

 ly and finally. If it can be made to take effect on 

 the occurrence of an event, the Legislature must de- 

 clare the law expedient if the event shall happen, 

 but inexpedient if the event shall not happen. They 

 can appeal to no other man or men to judge for them 

 in relation to its present or future propriety or ne- 

 cessity ; they must exercise that power themselves, 

 and thus perform the duty imposed upon them by 

 the constitution. But in case of a law to take effect, 

 if it shall be approved by a popular vote, no event 

 affecting the expediency of the law is expected to" 

 happen. The expediency or wisdom of the law, ab- 

 stractly considered, does not depend on the vote of 

 the people. If it is unwise before the vote is taken, 

 it is equally unwise afterward. The Legislature has 



no more right to refer such a question to the whole 

 people, than to a single individual. The people 

 are sovereign, but their sovereignty must be ex- 

 ercised in the mode pointed out by the constitu- 

 tion. (Barto vs. Himrod, 8 N. Y., 483 ; Kice vs. Fos- 

 ter, 4 Harr., 479.) 



In support of the validity of the law, it was 

 urged that the general statute which prohibits 

 the sale of intoxicating liquors without license, 

 and the "local-option" statute, should be read 

 as one law, and that, so reading them, it was 

 not left to the popular vote to give effect 

 to the law, but only to determine whether 

 licenses should be issued under it. To sus- 

 tain this position, a decision of the Supreme 

 Court of New Jersey was cited, in which this 

 distinction seems to have been recognized. In 

 that State a statute was sustained, which, in 

 itself, contained a prohibition of sales without 

 license, and then left to the people in town- 

 meeting to say whether licenses should be 

 granted. The court, however, not only ques- 

 tioned the soundness of this decision, but also 

 pointed out an essential difference between the 

 circumstances of that case and the one under 

 consideration. For, in the New Jersey case, 

 the determination of the question was referred 

 by the Legislature to the town-meetings; while, 

 in the California case, it was submitted not to 

 the voters of a town, but to those of the terri- 

 torial subdivision of a county ; and the court 

 pointed out that a wide distinction existed be- 

 tween the system of town government and that 

 of a city, county, or subdivision of a county. 

 "The marked and characteristic distinction," 

 in the language of Chief-Justice Shaw, of Mas- 

 sachusetts, " between a town organization and 

 that of a city, is, that in the former all the 

 qualified voters meet, deliberate, act, and vote ; 

 whereas, under a city government, this is all 

 done by their representatives." In pointing 

 out the fact that, although the constitution 

 made it imperative for the Legislature to "es- 

 tablish a system of county and town govern- 

 ments," such a system of "town governments" 

 had, nevertheless, never been established, the 

 court says : 



The Legislature of California has never estab- 

 lished a " system of town governments." The word 

 " town" is nowhere used in the statutes in the sense 

 in which it is employed in the constitution. The 

 supervisors are authorized (Pol. Code, 4056) to 

 divide the counties into " townships," as they are 

 authorized to divide them into election, school, road, 

 and supervisorial districts : but the territory included 

 in any one of the districts last named need not be the 

 same as that included within the limits of a town- 

 ship. No township governments have been estab- 

 lished. The only officers mentioned in the general 

 laws as township officers are justices of the peace 

 and constables. The townships have neither been 

 given personality nor any other of the attributes of 

 corporation ; no official has been named empowered 

 to call the inhabitants or voters together for the pur- 

 pose of consultation and joint action ; no act has 

 been passed providing for any presiding officer, or 

 regulating the mode of conducting business, or of 

 declaring the result of the action of the inhabitants 

 or voters when assembled ; and neither the voters 

 themselves, nor any boards of officers elected by the 

 voters, have ever been constituted a deliberative as- 



