State v. Judge of the Circuit Court

Reed, J.

(dissenting). I assume, as my first proposition, that the legislature, to whose judgment, wisdom and patriotism, the high prerogative of legislation has been entrusted by ■the constitution, cannot relieve itself of the responsibility by ■choosing other agencies upon which the power shall be devolved, nor can it substitute the judgment, wisdom or patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust. Cooley on Const, him. 116.

This principle has become so firmly intrenched in the jurisprudence of this country, and has been so authoritatively recognized by the courts of this state, that discussion of it would be profitless. City of Paterson v. Society, 4 Zab. 385; State, Gaines, pros., v. Hudson County Com., 8 Vroom 12 .

My next proposition is, that the submission to the people ■of the state of the question, whether a statute framed by the legislature shall be operative or inoperative, is a delegation of legislative power. This seems to me so obvious that had not some learned judges announced a contrary view, I should not think it a question open for discussion.

One of the processes of reasoning by which these judges reach this result is based upon what I shall hereafter, for brevity, style the contingency theory. It is admitted, say they, that a statute may be passed to take effect upon a contingency, therefore the contingency may as well be a popular vote of approval or disapproval of the legislation as any other uncertain future event.

Now, it is, of course, entirely settled that the legislature can pass an act to take effect upon the occurrence of a future event— upon an anticipated condition of affairs to arise in the future. The prevision of the legislature is constantly called into action *614 to meet a condition of facts which may arise in the future. Congress passes an act concerning the revenue, which shall be dependent for its operation upon what some other nation does in regard to the same matter. A state legislature passes an act that counties may subscribe for railroad stock whenever two-thirds of said stock has been taken by private subscription, or to donate $15,0Q0 to a monument fund, whenever the same sum has been raised by private subscription. These are all legitimate contingencies, because they involve no conflict with any organic law. But a statute which, by its terms, becomes operative upon a contingency which would result in a lottery,, would be palpably void; and, for the same reason, a statute, to take effect upon a contingency that left the very existence of the law dependent upon the volition of some person or persons other than the legislature, so as to involve a delegation of the law-making function, encounters an implied constitutional principle, and, for that reason, is void. The argument, therefore, that because an act of the legislature may be framed to meet a contingent state of affairs, therefore all acts designed to take effect upon a contingent event are good, is not tenable. If the contingency runs counter to a rule of public policy or of constitutional prohibition, it must give way to the higher law. The difference between statutes based upon a valid contingency and those based upon-a contingency void as a delegation of legislative power, may, I think, be-clearly stated. The first is a statute ordaining a fixed rule of civil conduct applying to a certain prescribed condition of fact which may arise in futuro. The last is a statute which leaves to the people the power to say whether, when such a rule has been enacted, it shall ever become operative. One leaves the rule a law ready to operate upon the subject whenever it arises. The other leaves it to another will to say whether the-rule shall ever be a law. Now, take any of the instances of legislation dependent upon a contingency, which has received judicial sanction, and I am confident that it can be placed in the former class. The case of the Aurora v. United States, 7 Cranch 382 , is a stock case of those who hold the contingency *615 theory. Congress had passed a law forbidding importations by England and France. One of the sections provided that the president, in case either England or France should revoke their edicts, should declare the same by proclamation, after which trade might be renewed. The operative force of this act is said to depend upon the will of the president. But it does. not. It depends upon a future condition of affairs, namely, whether either England or France, or both, do or do not permit us to trade with them. The proclamation of the president is only a notice of such change of condition, upon the existence of which alone the law depended. If the operation of the law had been left to the absolute discretion of the president, it would have been a delegation of the legislative 'power.

Judge Cooley has intimated another ground upon which he thought it might be possible to justify such a delegation of legislative function. It is this: That the submission of a statute to the people for their approval or disapproval, is but a reference of the law-making power back to the source of all legislation. The suggestion is, that as the legislature is the creature of the people, and is one of the agencies by which the people carry on representative government, therefore a submission of the propriety of a certain legislative policy is but the reference back to the principal by the agent.

If there is force in this contention, it is perceived at once that it can only be true when the submission is made to the entire people of the state. It is the people of the state at large who adopt the organic law of the state, and a reference back to a portion of the people of the state is not a submission to the original source of legislative power.

But, indeed, there is no analogy between the relation of principal and agent, and the relation which the publie bears toward the legislature. The people, when they devolved upon the legislature the legislative branch of the government, stripped themselves of this power so long as the constitution stands. The people could have retained the character of a pure republic, in which the people enacted all rules of civil conduct. But, instead, they adopted a system of representa *616 tive government for the very purpose of avoiding the difficulties which would result if legislation was left to the spasmodic, hasty and often inconsiderate action of an unwieldly body, too large for deliberation and too liable to transitory gusts of passion and prejudice for wise and sober legislative work. This 3s manifest from the character of the scheme which was adopted. It was deemed well enough to have in the legislature those who represented the present sentiment of each locality of the state. So the house of assembly was composed of a large membership elected annually. Then the senate was organized, smaller in membership, and with terms long enough to ride the waves of popular feeling, and to view public questions from a different standpoint. And, again, the veto power was confided to the executive for the purpose of compelling more deliberation and thought in the framing of statutes.

Our government, like all of the state governments, was modeled after the national legislature, and the object of the required concurrence of these three diversely constituted bodies in that scheme of legislation is apparent from the debates when this most important feature was before the federal convention of 1787.

■ After the adoption of this well-matured scheme, it seems absurd to say that the very power which, by the words of the constitution, is vested in the senate and general assembly, can be exercised by any other body. And it seems equally absurd to say that, so long as the constitution exists in its present form, the legislature can consent to its exercise in other than the constitutional method. For it seems clear that a withdrawal of legislative power, even by the consent of that branch of the government, and its resumption by the people, is, pro tanto, a suspension of the constitution, and this can be done only by a new convention or in the manner prescribed by the constitution itself. Indeed, I am unable to perceive, if this constitutional provision can be disregarded because the law is adopted by the people who adopted the constitution, why any law cannot, by the same method, be passed, regardless of any constitutional restriction. Ex post facto laws, laws *617 creating lotteries or granting divorces, by submission to the people, would, by the same line of reasoning, become valid enactments, because the people who framed the constitution had afterwards approved the law, and so withdrawn the delegation of power from that body, which alone is bound by the provisions of the constitution.

Another view, however, upon which some judges have recognized the validity of laws referred to the people for approval or disapproval, is an outgrowth of the contingency theory. It is that the law is perfect when it comes from the hands of the legislature, and derives its force from the enactment of the legislature and not from the vote of the people; that the vote is the result of the law, and not the law of the vote. I cannot see any plausibility in this'notion, although it has been dressed in the subtlest phraseology. It is said that it is a perfect law when it comes from the hands of the legislature. By this it is meant that the law has the signature of the speaker of the house and of the president of the senate, and, perhaps, of the governor. In this sense it is perfect. So is any statute which contravenes a constitutional prohibition, or a fundamental rule of public policy, and, for that reason, is absolutely void. If this statute, as I have already remarked, delegates to the people the power to do that which is legislation, then it does not matter how perfect its form, it is void. An act of this kind does leave to the people the final word upon the question of law or no law. The assertion that the vote is the result of the law, and not the law of the vote, is only a half truth. The vote is the result of the law, and the law is the result of the vote. Unless a scheme framed by the legislature had provided for a vote, of course there would be no vote; so the vote grows out of the statute. But because the vote is, in this sense, a part of the scheme of legislation, it is no less true that all the people, as a legislative body in the last resort, is entrusted with the determination of the final question, law or no law. It adds to those bodies to which the constitution confides the approval of the law, another body. It makes the vitality of the frame-work which the legislature has drafted, *618 to depend upon a mind other than that of the legislature itself. Both the legislature and the people concur in the work, but because each contributed to the perfection of the statute, makes none the less the act of each legislation. The Leges Begice in Rome, under the kings, were proposed by the king, approved by the senate and confirmed by the populus in the commitice. It would hardly be contended that, under this system of legislation the people took no part in the legislation. Yet, in what respect does it differ from the scheme erected by the legislature whenever it submits the final question of the confirmation of a rule of civil conduct framed by itself to the people. It matters not whence the power originates, whether from the constitution of the state, as in Rome, or from a statute of the legislature, the authority itself is a power of legislation. When this is conceded all is conceded, for if it has its source in the legislature, then the inability of the legislature to confer is admitted.

The radical objection to legislation in this form is tersely stated by Chief Justice Ruggles, in his opinion in the case of Barto v. Himrod, decided in the Court of Appeals of New York, and reported in 8 N. Y. 483 . An act for the establishment of free schools throughout the state, contained the proviso that the electors should determine, by ballot, at the annual election, whether the act should or should not become law. The chief justice said: “ The event on which the act was to take effect was nothing else than the votes of the people on the identical question which the constitution makes it the duty of the legislature to decide. The legislature has no power to make a statute dependent upon such a contingency, because it would be confiding to others that legislative discretion which they are bound to exercise themselves, and which they cannot commit to any other man or men to be exercised. They have uo more power to refer such a question to the whole people than to an individual. The people are sovereign, and their sovereignty must be exercised in the mode they have pointed out in the constitution. All legislative power is derived from the people; and when the people adopted the *619 constitution, they surrendered the power to make laws to the legislature, except in the single instance of contracting public debts.”

As I regard the question, there is no logical escape from this view, and, as Judge Cooley admits, the weight of judicial authority is in the same direction. His language is : “ If this question is to depend upon the weight of judicial authority up to the present time, it must be held that there is no power to refer the adoption or rejection of a general law to the people of a state, any more than there is to refer it to any other authority.” Cooley’s Const. Lim. 120.

An exception to this rule exists in the case of the acceptance of a grant of corporate powers by vote, and the reasons are pointed out in City of Paterson v. Society, 4 Zab. 385.

The same reasons which preclude the original enactment of a law from being referred to the people, make it equally incompetent to refer the question, whether an existing law shall be repealed. Cooley’s Const. Lim. 121; State v. Geebrick, 5 Iowa 491 ; Parker v. Commonwealth, 6 Penna. St. 507.

My next proposition is that the local option feature of the statute under consideration is a delegation of the legislative function to a portion of the people of the state.

The operation of this act upon existing laws is manifested in the following manner: All licenses in the state for the retailing of intoxicating liquor are granted by virtue of the authority conferred upon the Court of Common Pleas by the first and second sections of the act concerning inns and taverns.

Certain limitation upon the method of exercising the licensing power is found in other sections, but the grant of power is in the two mentioned. It is perceived by a glance at the general act, that there is a general power in the court to grant licenses which will operate as a permission to sell in quantities less than a quart. The purpose of the present statute is to submit to the voters of a county, as a question of public policy, whether the power to grant licenses conferred by the general act, shall be suspended; or, in other words, whether *620 the act shall be pro tanto repealed. That this is the effect of the present act, appears to me undeniable. The act provides for the ordering of an election in any county, at which election the legal voters shall vote upon the question, whether intoxicating liquors shall or shall not be sold. The result of a vote against the sale is declared by a subsequent section to be that no license shall be granted within the limits of the county so voting. Its effect is exactly the same as if the act had read that in the event of such a vote, the first two sections of the act concerning inns and taverns should be repealed for three years, and thence until another vote shall be taken, with a different result. This is a conspicuous instance of the submission of a repealing act to the people for their approval. And if the preceding proposition is proven, it is a delegation of legislative power.

But it is said that a different view can be taken of this legislation which entirely relieves it of the character which I have just ascribed to it. The view so propounded is, that the present act does not repeal or suspend a general act, but is a mere regulation of the method of granting licenses.

The argument in favor of this view is the following: It is admitted that the present method of granting licenses under the general act is legally unobjectionable. By the provisions of that act, it is requisite that an application for a license shall be accompanied by the recommendation of twelve freeholders of the township, certifying to the character of the applicant, to the equipment of the applicant’s house for the entertainment of travellers, and that the house is necessary and will conduce to the public good. If (it is argued) it is competent for the legislature to require the recommendation of twelve freeholders as a condition precedent to the granting of a license, why may not the legislature require the recommendation of a majority of the freeholders of a township, 'or a majority of the legal voters of a township, and if of the township, why not of the county? And if the legislature can require a recommendation in each application for a license, why may not the sentiment of a county, upon the question of granting any license *621 iii the county, be ascertained by popular vote? This view has such a plausible appearance that I was at first inclined to yield my assent to its soundness, but upon reflection I am convinced that there is a line where the increase of the number of acquired approvers, and where the change in the method of ascertaining their sentiment, encounters a fundamental obstacle. That obstacle is that the scheme becomes one involving a submission to the people of the existence or non-existence of a statute, or the repeal or non-repeal of a statute.

I think no one can deny that if the admitted power of the legislature to require the recommendation of twelve freeholders, proves the existence of legislative power to submit the question of license or no license to the people of a county, it also proves its right to submit the same question to the people of a'state. Yet it has the semblance of the absurd to say that such a provision is a mere regulation of the method by which courts exercise their functions under the inn and tavern act. For if the legislature passed an act providing that no intoxicating liquor should be sold in the state, and further providing that the act should not take effect unless ratified by a popular vote of the state, it would be a clear instance of the delegation of legislative power. If the legislature passed an act that no person should thereafter be licensed to sell intoxicating liquor in this state, with a proviso that the act should not take effect until ratified by a popular vote, the two acts would, in effect, be precisely the same. A failure to ratify would, in both instances, leave the present law, with all its provisions for licensing, untouched. A vote to ratify would, in both instances, involve an entire prohibition of the retail traffic in intoxicating liquor. á.s no one can sell without the license, the law which prohibits the licensing is of exactly the same import as the law which prohibits the sale. In dealing with questions involving the construction of statutes, we regard the intention of the law-maker and the result of the legislation, and words, however differently collocated, which mean the same thing, receive the same constructiop. If, then, the statute first mentioned involves the delegation of legislative function, *622 so does the second. Now, if an act which leaves the question of license or no license to the people of the state is of this character, why is not also one which leaves it to the people of a county? v

Tlie attempt to force the provision in the general act into an authority for the local option clause, must be a failure, because of the entire diversity of the objects which the respective provisions had in view. The provision for twelve approvers of the application under the general act, is designed as a rule of evidence, regulating the procedure of the courts in granting licenses. The approvers have nothing to do with the general policy of vending intoxicating liquors; this question had not assumed the moral shape which it now presents at the time the provision was enacted. That licenses would be granted was assumed by the law-makers. The court was to exercise their judgment as to the necessity of a licensed-house for the purposes of entertaining the traveling public and affording places for public meetings. In this, as in other instances, the legislature was compelled to invest the court with the exercise of discretionary powers in the administration of the law. The court could receive whatever evidence it might choose upon these questions. The court is bound by the statute to have some evidence before it can act. The recommendation is only evidence making a prima facie case that the statutory requirements had been filled. The public good, to which the approver certified, was the public advantage in these respects. It was far from the mind of the legislature that there was to be a certificate that the sale of liquor was for the moral exaltation of the community. It did not mean that any man should certify that the drinking of whiskey would conduce to the public good in the way of advancing ethical culture. The twelve approvers, as such, had no voice in respect to the general policy of granting licenses. The law reposed in no twelve men the power to say that any license or licenses should or should not be granted. They were witnesses whose testimony could be supplied by any other twelve freeholders and could be overcome by any other evidence. Their connection *623 with the subject ceased with the determination of the particular application to keep a particular house at a particular place.

Now, I cannot perceive that this provision bears any resemblance to one which submits the entire policy of licensing to the people at large. As an illustration of the difference, I remark that the legislature has the undoubted ability to enact that no one can be indicted or convicted for maintaining a public nuisance, unless such indictment and conviction is found on the testimony of at least six witnesses. Now would any one contend that this power proved that the legislature could leave to the people of a county to say whether the criminal law against nuisances should be suspended or repealed? The General Eoad act provides for the application to the Court of Common Pleas by ten freeholders for the laying out or vacation in a particular place of a public road, but does the existence of this provision prove that the legislature may remit to the people of a county the question whether the road law in the county shall be repealed ?

In fact, neither the provision for ten applicants for a particular road, nor the assumed requirements of six witnesses before indictment, nor of the twelve freeholders’ recommendation for license, are acts of legislation, but of administration only. And so, in respect to the matter submitted to the court, it has a discretion like any other court, but its discretion is judicial, and not legislative. But, whenever the legislature changes either of these provisions, so that it becomes a palpable scheme of legislation by the people, it runs counter to the constitution. I regard the present act as one of this kind.

The leading case in this country upon this point, as it is involved in the construction of licensing statutes, is that of Rice v. Ross, reported in 4 Harr. (Del.) 479. It was a case involving the identical question now under discussion. The legislature of Delaware, in 1847, passed an act providing that on a certain day the citizens of the several counties should decide, by their votes, whether or not the retailing of intoxicating liquors should be permitted in said county. The second section provided that the voters should ballot for license or no license. *624 The third section provided that if the vote should be no license, then no person should retail within such county, and no court should recommend any person for license. The cause was argued by Bayard and Clayton, and other leading counsel, ■ before the Court of Errors and Appeals. The questions involved were exhaustively discussed in opinions by Chief Justice Booth, Chancellor Johns, and Justice Harrington. The court held unanimously that the statute was unconstitutional, because it delegated legislative power to the people of each county. Said Chief Justice Booth : “ On each ballot is to be written or printed the words ‘ license ’ or ‘ no licensed If there be a majority vote for no license, the several propositions contained in the act are by such majority enacted into a law, and the license laws are repealed. If a majority vote for no license, the propositions are rejected, and the license laws continue in full force. There is no substantial difference between this and the case of a bill introduced in either branch of the legislature. In the latter, the bill becomes a law by a majority of the votes of the members of each house. In the former, by a majority of the votes of the people of the county at an election.” Similar language was used concerning a similar statute in the case of Ex parte Wall, 48 Cal. 279 .

I regard these cases as presenting the correct view of statutes whose structures are similar to the one now under consideration, and as supporting my present view that the local option feature of this act delegates legislative power.

My next proposition is that the local option feature of the present act cannot be vindicated upon the ground that it is a delegation of the power of police regulation to a political corporation.

No one doubts the ability of the legislature to confer upon municipal corporations the right to exercise that somewhat undefined power inherent in the state, known as the police power. Nor is there any uncertainty as to the fact that comprised within this class of powers is the regulation of the sale of intoxicating liquors. Long before the formation of our constitution, the municipal corporations of Great Britian exer *625 eised this power as one inherent in the grant of charter privileges to them by the sovereign. As early as 1667 it was ruled, in the case of Player v. Jenkins, Sid. 284, that if the number of taverns and ale houses increase in Cheapside, London, to so great an extent as to be a nuisance, they may be restrained by by-law.

Not is there a doubt of the ability of the legislature to confer upon a municipal corporation the entire control and regulation of the sale of spirituous and malt liquors.

Nor have I a doubt of the unrestricted ability of the legislature to create municipal corporations. The legislature can invest the people within any territorial limits, whether the limits be co-incident with those of a county or not, with corporate functions. All this power is admitted. I, however, deny the insistence that an act which merely confers upon the people within a certain area the privilege of voting whether a general statute shall be suspended or repealed, invests such people with corporate functions.

The argument in favor of the view that this is a delegation of police power is, that none but a political corporation can receive such power; therefore, as the legislature can create corporations, it must be presumed when they conferred power which can only be exercised by a corporation, they meant to invest them with corporate functions. This argument means, that if the present act had, instead of providing for a vote by the people of the county, provided for a vote by the people of each congressional district, each district would have become, by force of the act, a political corporation with municipal functions. If the act had left the question to the people of East and "West Jersey respectively, the State of New Jersey would have been divided into two municipal corporations. This view seems to me to be untenable.

Nor do I think that the argument in favor of this act as a delegation of police power to a municipal corporation is much strengthened by the fact that t'he territory, to the voters within which the question is submitted, happens to be a county. The county is, in no sense, a municipal corporation. It never *626 had any power to make by-laws concerning matters of police regulation, which power is inherent in the British municipalities. Now, admitting the power of the legislature to permit counties to create excise boards, or otherwise regulate the vending of liquor, it is clear that the legislature has never done so. Whatever other powers the county may have exercised, it has never exerted this. The power to license resides elsewhere than in the county government. In every city or town within the limits of a county, this power has been and still is confided to the city or town government. Within the county territory, not included within cities, the licensing power has been, and still is, in the Court of Common Pleas. But it is a mistake to speak of these courts as constituting a part of the governmental machinery of the county. They are, in no sense, municipal or corporation courts. They are state courts, organized in different subdivisions of the state for the purposes of the convenient administration of the laws of the state. And it is for the purposes of convenience to jurors, witnesses and suitors that their territorial jurisdiction is confined to the county limits. The judges are no more officers of the county, as a corporation, than is the sheriff, or surrogate, or county clerk. As to these last officers, it has been held that they are n.ot corporation officers, for whose acts the county is liable. The truth is that the functions of a county organization and a municipal government are entirely different. The organization of the latter is for local and police purposes; of the former, to assist in the administration of the general laws of the state. As was said by the court, in the case of Hamilton County v. Mighels, 7 Ohio 109 : “ With scarcely an exception, all the powers and functions of a county organization have a direct and exclusive reference to the general policy of the state, and are, in fact, but a branch of the general administration of that policy.”

Now, this condition of affairs is significant to my mind, not as bearing upon the question whether a county is equipped to receive, or can be equipped to receive, a delegation of police power, but as throwing light upon the character of the present *627 act as disclosing whether it is a mere regulation of the manner of granting licenses, or is, as I contend, a power conferred upon the people of the county, in their sovereign capacity, to say that the general power to grant licenses shall be repealed. Upon this question it seems to me significant that the act still leaves the granting of all licenses to the same licensing bodies and courts as before; that it confides to no county officer any duty in respect to the exercise of this power. The county, as a corporation, having no power to license, and this act conferring no such power, how can it be said that it is a regulation of the licensing power conferred upon a county.

I think the weight of authority is against the view that an ■act like the present can rest upon this ground. The only case, I think, where a similar act has been supported, is that of State v. Pond, 93 Mo. 606 . The opinion of a majority of the court in favor of the constitutionality of that act, was grounded upon the contingency theory, and not upon the theory of a delegation of police powers to a county. The eases cited on the argument in this case in favor of this legislation, were nearly all cases which were decided upon the contingency theory. If the contingency theory is unsound, whenever the contingency involves a delegation of legislative power, as I have ■endeavored to show, then the support of these decisions crumbles away. On the other hand, in the cases of Rice v. Ross, 4 Harr. (Del.) 479; in Barto v. Himrod, 8 N. Y. 483 ; Santo v. State, 2 Iowa 165 ; State v. Weir, 33 Iowa 134 ; Ex parte Wall, 48 Cal. 279 ; Swisher v. Texas, 17 Tex. 441 , the legislation was held void, because it delegated the law making ■power to the people, and it was not thought that the question of the delegation of police power to a municipality was involved at all. I shall leave this branch of the case without further remark, because I am satisfied that if the constitutionality of this act could have been resolved in its favor upon this ground, had the act been passed previous to the adoption ■of the amended constitution, it now encounters an unsurmountable difficulty, which I state in my next proposition.

My fifth proposition is, that in whatever light this legisla *628 tion cau be viewed, it is special and local, and regulates the-internal affairs of either counties or cities.

The familiar secti.on of the constitution to which I allude is paragraph 11 of section 7, and it prescribes that the legislature shall not pass any private, special or local law * * * regulating the internal affairs of towns or counties. „

It is not necessary to discuss the general scope of this provision. It has been the subject of construction and application in so many cases that its force, as a rule of legislative restriction, is well defined and limited. It may be stated, as-the result of numerous adjudications, that a general law is one that operates with equal force upon all subjects within a class, the classifieation being made in respect of the subject-matter of the legislation. Now, my position is, that the act, whether it is viewed as one leaving to the contingency of a popular-vote in a county the repeal of an existing law, or whether it is regarded as an additional limitation upon the licensing power administered by the courts, in either aspect, it operates Arith unequal force upon the regulation of an internal affair of a county or a city.

I Avill first discuss the legislation as I have regarded it, namely, as an act providing that if the people of any county so declare by a popular vote, the inn and tavern act shall be suspended. For the purposes of this argument, I Avill assume that the general act regulates an internal affair of a county. Now, I presume that no laAvyer would argue that if this act had provided that the general inn and tavern statute should be repealed in certain counties in this state, it would not be a special and local, and, therefore, unconstitutional enactment. And I presume that no one would deny that, by reason of the popular vote which this act contemplates, the general hrw may become operative in one county and inoperative in another. In both instances the repeal is effected by a law of the state repealing another Lav of the state; only, in the first of the instances, the legislature says what counties shall be affected by the repealer, and, in the second instance, the people of the respective counties decide it. Now, the inquiry naturally sug *629 ■gests itself, wherein lies the difference between the two instances in respect to the generality of operation. The force of the legislation in its effect upon some, and not all, of the counties ■of the state is precisely the same. If, therefore, the special character of the first statute is manifest, how is the general character of the second demonstrated? Here comes in again the contingency theory as an explanation of the way the latter •act evades the charge of specialty. “ The law was perfect when it came from the hands of the legislature; the law made ■the provision for the vote, ,and the vote did not make the law. The provision for the vote was the contingency upon which the law was to take effect. The perfect law provided that all ■counties should vote; therefore, it applied to all counties alike, and, therefore, it is general legislation.” A specimen of this line of reasoning is found in the case of State v. Wilcox, 45 Mo. 458 . Missouri is one of the states whose constitution contains a provision against special and local legislation. The case of State v. Pond, already mentioned, held that a statute ■of that state which submitted the question of the sale of liquor to the voters of a county, was not local, and grounded the decision on the authority of State v. Wilcox, supra. In State v. Wilcox, the court said: “ The legislature cannot propose a law and submit it to the people to pass or reject it by a general vote. That would be legislation by the people. But the proposition cannot be successfully controverted that a law may be passed to take effect upon the happening of a contingency * * * The law is complete and effective when it has passed through the forms prescribed for its enactment, though it may not operate, or its influence may not be felt, until a subject has arisen upon which it can act. * * * Every county in the state may avail itself of the privilege offered by the law by a majority vote of the people.”

I have cited the pith of the argument of the judge to show that the generality of the law is rested upon the doctrine of the right to pass acts to take effect upon a contingency. I have already discussed the soundness of this theory, as applied to illegal contingencies, one of which, in my judgment, *630 is a delegation of legislative power. In addition to what has been already said, under a former head, I remark upon the-admission in the above opinion, that the legislature caunot propose a law, and submit it to the people, followed by the assertion that they can make such an act dependent upon a contingency, although such contingency is a vote of the same people. This distinction is to me unperceivable. The fallacy of this argument is, that the law has no force until approved, and never can be operative upon any prescribed condition of affairs till it has the sanction of popular approval. The law has no operative force until after the vote. It then springs into life, and for the first time, operates upon the real object of its being, which in this case is the suspension of the power to license.

Nor can I conceive of a more conspicuous instance of its fallacy than its operation, in view of the constitutional clause now under discussion prohibiting local and special legislation. It has been said that in the consideration of legislative acts we must look at its results. I entirely assent to that view. Let us glance a moment at the power which the admission of the right to submit a law to the approval of the people of cities and counties confers. I venture the assertion, that an, ingenious draftsman of statutes can provide a different special charter for every city in the state, and a different government for each county and township. For an instance, take the police tenure of office act. An act general in form may be passed, providing that all policemen shall hold their terms-t for five years; another act, that they shall hold their office at the will of the common council, and still another, that they shall hold during good behavior. And- so on in a dozen different shapes, but each act provides that it shall not become operative in any city until accepted by a majority of the votes of the people of said cities. One city votes to accept one act, another city votes to accept another act, and a third city still another act, and so on until in each city there is a different law for each one of the classes. Each act, when so accepted, becomes a part of the charter of the accepting city. Now, *631 what is true of the operation of this rule in respect to the police branch, is true of any other branch, and so every department of a city’s government may be organized by a law controlling the same department, but differing from that of any other city. What more can be accomplished by any species of local or special legislation ? This doctrine leaves in full flower the noxious features which the constitutional provision was designed to extirpate. It leaves the same endless variety of charters to be construed, and relieves the body of legislators from, all legislative responsibility. These were the principal evils which, as pointed out in the opinion of Van Riper v. Parsons, 11 Vroom 1 , were to be cured by the constitutional amendment. One city may apply for any kind of- legislation, and all other cities, knowing. that it cannot affect them without their vote, have no interest in watching or limiting the legislation.

It seems to me that the fallacious foundation of this doctrine of generality, resulting from the power of all cities to vote for or against a law, is demonstrable by a single illustration. It has been advanced as a reason for the submission of legislation to the approval of the people, that legislators are bound to carry out the wishes of their constituents, and to do so they must ascertain their sentiments, and that one way, as good, if not better than any other, is by a vote of the people upon the policy of the legislator. In this view, the vote is only for the purpose of enabling the legislator to meet the views of those who elected him. Now, suppose that before the passage of an act, the views of the people of the different municipalities which would be affected by its enactment should be taken by vote; suppose, that after the ascertainment of the sentiment of the people, an act Avas passed to operate only upon those Avho had expressed an approval of the legislation, and not upon others. No one would for a moment contend that the latter was a specimen of general legislation. Therefore, generality depends upon whether the approval is expressed before or after the passage of the act.

The constitutional provisions in reference to special legisla *632 tion are of comparatively recent growth, and the adjudications on the point now involved are not numerous, but the doctrine of the following cases is squarely against the constitutionality of this legislation. In the case of the People v. Cooper, 83 Ill. 585 , the legislature attempted to confer upon the council of a city the power to assess and collect taxes through certain officers named therein, or through certain other and different officers, named in the general incorporation act. An option was conferred upon the city council to have either one of the two sets of officers for the purpose named. The act was held invalid as establishing dissimilarities in the power and mode of different cities in the levy and collection of taxes, and so was special and local. The principal is the same as I have applied in the present case. There is here an existing law providing for licenses. The present act confers upon the people of the county the option of saying whether the old or the new shall be the prevailing system. In the case of the City of Scranton School District et al. v. Lackawanna Iron and Coal Co., 4 West. Rep. 311, a supplement to a tax act provided that no city of the third class, nor any city of less than ten thousand, heretofore incorporated, shall become subject to the foregoing provisions of this act until the same be accepted by an ordinance. Mr. Justice Green, in delivering the opinion of the Supreme Court of Pennsylvania, said: “According to this, those that do accept will be subject to the methods of assessment and collection prescribed by the first five sections, and all those that do not will not be so subject, and as to them different methods will prevail. Whether the methods prescribed by the act shall be the law, depends, not upon the terms of the legislation, but upon the will of others who are not law-makers at all, and what may be law in one city of the third class would not be law in another city of the third class. ”

These cases are authorities, because the taxing power, like the power of police regulation, may admittedly be conferred upon municipal corporations. Dillon on Mun. Cor., § 590. So there is no dissimilarity in principle in that respect. The *633 power of a city government to accept an act of this kind stands upon the same footing as the power of the people to accept, for it must be kept in mind that the generality of the operations of these acts rest upon the fact that all cities may accept, and so all are placed in the same posture. The invalidity of the Pennsylvania act is not put upon the ground that the people, and not the common council, may be empowered t-o accept, but upon the ground that the power to accept, by either people or common council, is a power to create differences in municipal affairs.

In the case of Maize v. State, 4 Ind. 342 , the act provided that a vote be taken on the license question in townships, and if the vote was adverse, no license should issue. The act was held unconstitutional upon the ground that it was special. This branch of the case was approved in the subsequent case of Meshmeier v. State, 11 Ind. 482 . The doctrine of these cases has never been overruled, although the case of State v. Groesch, 42 Ind. 547 , was improperly distinguished from the preceding cases.

In the case of Geebrick v. State, 5 Iowa 492 , an act authorized the county judge to issue licenses. A section provided that the existing prohibitory law should not be repealed unless the people of each county should vote in favor of the last act, and if they so voted, then the judge should grant licenses. The court, after holding that a law can no more be repealed than it can be made by a vote of the people, said : “ The prohibition liquor law is a law of a general nature, and its operation must be uniform throughout the state. Can they say that such is the case if it remains in full force in one county while it is repealed in others by a vote of the people and a license law adopted in its stead?”

In the case of the State v. Wier, 33 Iowa 135 , an act made it unlawful to sell ale, &c., except as provided in a general act for the sale of spirituous liquors. Another section provided that the adoption of the act should be submitted to the voters of a county, and if a majority was for prohibition, then the latter act was to be in full force. The court said, “ The effect *634 of a vote in favor of the act of 1870 is to adopt a provision in direct conflict with the law of 1853, and hence to repeal it by necessary implication. It falls so completely within the principle and reasoning of Geebrick v. State that it seems only-necessary to refer to that case to show the unconstitutionality of the act in question.” -

With the citation of these cases, I leave this branch of the case with a remark in regard to a difficulty which has been suggested if we deny to cities the power to accept general acts. It is said that if you do this it becomes impossible to delegate power to cities and towns at all, for, it is said, you must hold special all the diversities of municipal government which arise from a different exercise, by different cities, of the same power. But there is no difficulty upon this ground. An act to confer upon all cities the power to regulate the sale of liquors would be entirely valid. Nor would it matter that the common council might, in different cities, prescribe different regulations by ordinance. But this is entirely different from the legislature by statute making one regulation for one city and a different regulation for another city, or permiting one city to accept one scheme while another city has another. The difference is, that in the one instance the diversity arises from the regulation, exercised by a municipality, over a class of subjects which custom has sanctioned, or which, by usage antedating the constitution, the legislature could confer upon them. To regulations of this kind the constitution does not apply; the language of the constitution is, that the legislature shall not pass special laws. It is when a statute regulates directly that the constitutional rule applies. And an act which becomes operative upon approval of a common council is. a statute and not an ordinance. It is a legislative act and not a municipal regulation; it is amenable to the constitutional rule while the municipal ordinance is not. My conclusion is, that, regarding this feature of the act as one providing for a suspension or partial repeal of a general act by the test of a popular vote, it is local and special legislation.

Again, if this feature of the act is regarded as providing *635 for a mere additional limitation upon the licensing power, I do not see how it escapes the restrictive words of the constitution. Within the limits of nearly all, if not all, of the counties of the state are cities, or towns clothed with a complete local government. Among the other powers confided to them is that of regulating the sale of liquor, which is exercised usually by licenses granted by some branch of the municipal government. The fees arising from such licenses are paid into the municipal treasury, and the whole scheme of licensing is a municipal affair. Now, all the cases from the Bingham v. Camden, 11 Vroom 156 , to Hightstown v. Glenn, 18 Vroom 105 , and Closson v. Trenton, 19 Vroom 438 , (the last affirmed in this court), have declared that the licensing power is an internal, municipal affair. These cases have declared, with equal unanimity, that all statutes which touch this power must apply a uniform rule. Now, taire the theory of regulation applied in the construction of this statute. Upon this theory the present act does not strip cities and towns of the power to grant licenses. It only regulates the method by which licenses are granted. It only requires the recommendation of a majority of the voters in a county instead of twelve freeholders.

But can the legislature say that one city may grant licenses upon the recommendation of twelve men, and another city upon the recommendation of fifty? Yet this law permits Cape May City to grant a license upon the approval of less than twelve hundred voters, while Salem cannot license without the approval of twenty-six hundred.

Further than this, the standard is not a municipal but a foreign standard. It does not provide for the approval of voters or freeholders of a city, but partly of voters resident beyond the limits of the corporation. So it is a regulation of municipal affairs, but its operation varies, not with the size or circumstances of the city itself, but varies with the population of an outlying territory which happens to be contiguous. If this is not special legislation, I have not learned the mean *636 ing of the term or caught the sigaificance of our own adjudication upon the subject.

For reasons which I have thus expressed at greater length than I intended, I am constrained to vote to reverse the judgment of the Supreme Court.

For affirmance — The Chief Justice, Depue, Dixon, Magie, Sgudder, Van Syokel, Clement, Paterson. 8.

For reversal — The Chancellor, Knapp, Reed, Brown, Cole, McGregor, Whitaker. 7.