Full opinion text
HARPER, Judge. The sole question involved in this ease.is the constitutionality of what is known as the “Pool Hall Law,” being chapter 74 of the Acts of the Thirtv-third Legislature. The law provides for a petition to the Commissioners Court, and the court is required by the law to order the election when the petition is signed by the requisite number of voters; the law provides how the election shall be held, and how the result shall be declared. In fact,, the law as passed by the Legislature is minute in all its details, and provides for everything that is necessary to be done and is mandatory in its provisions. The law then provides: “When any such election has been held and has resulted in favor of the prohibition of the operation and maintenance of pool halls within the territory for which the election is held, any person who shall thereafter, within the prescribed bounds of said territory, operate or maintain a pool hall such as is defined herein shall be subject to prosecution, and on conviction shall be punished by a fine of not less than twenty-five and not to exceed one hundred dollars, or by confinement in the county jail not less than thirty days nor more than one year, and each, day such pool hall or pool room is run shall be a separate offense.” It is thus seen that all the voters can do or determine is whether or not they will pass their county under the provisions of the law as-enacted by the Legislature. This is an “option” given to the voters of each county by the law enacted by the Legislature and nothing more. As said, there is nothing to pass on in this case other than the constitutionality of the law,—the agreement on file stating: “That said John Mode (relator) did operate a pool hall, as charged in the information, and unless said law is unconstitutional he is not entitled to the writ of habeas corpus.” This question was before us in the case of Ex parte Francis, 72 Texas Crim. Rep., 304, and after a most careful and thoughtful consideration we upheld the validity of the law, Judge Davidson, however, entering a dissent. Since the rendition of that opinion our Supreme Court, in the case of Ex parte Mitchell, 177 S. W. Rep., 953, has held the law invalid. Judge Hawkins entering his dissent to such holding. The opinion of the majority of the Supreme-Court base their holding on two grounds: “(1) That it amounts to-a delegation by the Legislature of its own legislative power imposed upon it by the Constitution which it alone must exercise and which it may not commit to any other agency; (2) that it authorizes the suspension of a general law of the State by the voters of a county, namely,, the statute licensing the operation of pool halls generally within the-State, in violation of article 1, section 28, of the Constitution, which is,. ‘Ho power of suspending laws shall be exercised except by the Legislature/” Judge Davidsofi’s dissent in the Francis case, supra, being; also based upon these grounds. As to the rule of law, that the Legislature can not delegate its power to either enact a law or suspend a law, we agree with the Supreme Court, and so held in the case of Ex parte Francis, supra, holding in that case, “if the Act in question delegated the power and authority to suspend a law of the State, or to enact a law, of course, it would be unconstitutional.” So the difference in the opinions of the Supreme Court and this court is not whether the Legislature has the power to delegate its. power and authority, in the particulars named, but by the law enacted by the. Legislature, known as the “Pool Hall Law” has the Legislature delegated its power to enact a law or suspend a law of the State ? That court placed the construction on the law that it did do so, while we held it did not do so. Having the utmost respect for the ability of the members of the Supreme Court so holding and our senior judge, Judge Davidson, when this application was presented, we granted the writ and set it down for a hearing in order that we might again have the question presented by eminent counsel and that we might give it more careful thought and study. We regret that our Supreme Court has not as yet filed its opinion, giving its reasons why it thought a proper construction of the Act would show a delegation of the power and authority of the Legislature. In the short opinion filed there is a mere statement that they so hold, yet do not point out wherein the Act does do so, and neither does the dissenting opinion of Judge Davidson in the Francis case, supra. Not being favored with their reasons for so holding, during our vacation just closed, we have studied the text-books and the decisions of all the other States in tire Union, and we find not only is the great weight of authority with the holding of this court, that such an Act as the “Pool Hall Law” does not delegate the power and authority of the Legislature to enact a law or suspend a law, but ascertain all the text-books of any note so hold, and the courts of last resort of every State in the Union (with possibly one solitary exception) so hold, and we are confirmed in our opinion that the law in question Joes not delegate the power and authority of the Legislature in either of the respects named, and that the law is valid. It is true that some of the earlier decisions did so hold, but upon a more mature thought each of the courts so holding has receded from such conclusion and overruled their earlier decisions. Those who contend that a “local option law” is a delegation of the authority and power of the Legislature to enact a law rely mainly upon the first case in which it was so held—Parker v. Commonwealth, 6 Pa., 307—but the Pennsylvania Supreme Court thereafter overruled that case, and in- the case of Locke’s Appeal, 72 Pa., 494, in a clear and lucid opinion, point out the error in the Parker case, and so aptly discuss the question there and here involved, we copy at length from the opinion in the latter case. It holds: “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, T am for the. issuing of license,’ or T 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 prescribéd 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 fit shall (or it shall not) he 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 o'f 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. “'How, 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 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 mat can not 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 courthouse, 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 1cm, 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 the Legislature to legislate, but it does not confer knowledge. The very trust implies that the power should be exercised wisely and judiciously. Are not public sentiment and local circumstances just subjects of inquiry ? A judicious exercise of power in one place may not be so in another. Public sentiment or local condition may make the law unwise, inapt, or inoperative in some places, and otherwise elsewhere. Instead of being contrary to, it is consistent with, the genius of our free institutions, to take the public sense in many instances, that the legislators' may faithfully represent the people, and promote their welfare. So long, therefore, as the Legislature only calls to its aid the means of ascertaining the utility or expediency of a measure, and does not delegate the power to make the law itself, it is acting within the sphere of its just powers. “It is urged that Parker v. Commonwealth, 6 Barr, 507, decided the question befoi'e us. That case was overruled soon after it was decided, not in express terms, it is true, but its foundation was .undermined when it was held that laws could constitutionally be made dependent on a popular vote for their operation. The reasoning in Parker v. Commonwealth is fallacious, in assuming the fact that there was a delegation of legislative power. There is much in the opinion well and ably said. The first eight pages may be passed over, and we are brought then to the marrow of the argument, which is contained in the following sentences: After a summary of the Act of 1846 Justice Bell proceeds to say, that as a statute it ‘depends for its validity and binding efficacy, within the several counties named in it, upon the popular vote of designated districts.’ ‘Possessing no innate force, it remains a dead letter until breathed upon by the people, and called into activity by an exertion of their voice in their primary assemblies.’ ‘If a majority within a particular district should vote negatively upon the question yearly to be submitted to the people, the Act as a statute has no existence.' ‘If a majority of the votes be cast in the affirmative, then the Act is to take effect as a statute/ ‘It operates not proprio vigore, but, if at all, only by virtue of a mandate expressed subsequently to its enactment, in pursuance of an invitation given by the legislative bodies.’ ‘As it left the halls of legislation it was imperfect and unfinishedj for it lacked the qualities of command and prohibition absolutely essential to every law.’ I «have italicised the portions which show the thought of the opinion and evince the assumption on which the argument rests. If we admit the fact that the law now before us Was of this character, an imperfect and unfinished, act, a mere invitation to the people to issue their subsequent mandate, and to breathe into it all its vitality, and thus give to it all its validity and binding efficacy as a law, we might have to concede the conclusion that there was a delegation to the people of the power to legislate. But it is beyond cavil that when the Act of 1871 left the halls of legislation it was a mandatory law in all its parts, and the only thing committed to the people was to vote for or against the issuing of licenses, and thereby supply the evidence of expediency. It acts proprio vigore, and is called into existence by no subsequent popular mandate. By its command the sale of liquors is forbidden, the popular vote is taken, and its effect declared. This popular vote is but the law’s appointed means of determining a .result, which the law enacts, in an alternative form, shall be the contingency of its operation. The law did not spring from the vote, but the vote sprang from the law, and the law alone declared the consequence to flow from the vote. The assumption that the Act is not a law, till enacted by the people, is the foundation of the argument, and with its fall the superstructure vanishes. The character of this law is precisely that of hundreds of others, which the legislative will makes dependent on some future act or fact for its operation. To assert that a law is less than a law because it is made to depend on a future event or act, is to rob the Legislature of the power to act wisely for the public welfare/whenever a law is passed relating to a state of affairs not yet developed, or to things future, and impossible to be fully known. Such an assertion attacks even the moral government of the Creator. God breathes into His creature the power of judgment and discretion, and then declares to him in His law: ‘As you determine your act, so shall be the consequence.’ The law is active and operates only when man determines. Does man or God make the law?” See also McGonnell’s License, 209 Pa., 327. Some who contend that the local option law is a delegation of the power of the Legislature to suspend a law, as well as a delegation to enact a law, cite the case of Ex parte Wall, 48 Cal., 279, but the California Supreme Court had never so held until the rendition of that opinion, and shortly after the rendition of the opinion in the Wall case it was overruled. In the ease of Ex parte Beck, 162 Cal., 704, the California court discusses the question at length, and holds: “The opinion in Ex parte Wall, 48 Cal., 279 (17 Am. Rep., 425), was concurred in by but three justices, Justices Rhodes and Crockett dissenting. In its conclusion that such an act as was there and is here under consideration is void as an unwarranted delegation of legislative power it is now opposed to the overwhelming weight of authority in other States, as we shall show hereafter. Subsequent decisions of this court have been such, we think, as to practically overrule it as an authority upon the question we are considering. “In People v. Nally, 49 Cal., 478, the legislative Act under consideration was one providing for an election in Siskiyou County on the question of the annexation to Siskiyou County of a portion of Klamath County, described in the Act, and that if a majority voted for annexation statements of the result should be forwarded to the boards of supervisors of Klamath and Humboldt Counties, and that thirty days thereafter the organization and government of Klamath County must be abandoned, and the described portion thereof annexed to Siskiyou County and the remainder to Humboldt County. The election was held in Siskiyou County as ordered, and a majority of the votes were in favor of the annexation. The subsequent proceedings were as required by the Act. Thereafter, Hally, the assessor of Klamath County, refused to prepare an assessment book for that county, claiming that it was no longer a county. The proceeding was a mandamus to compel him to prepare such a book. The writ was denied. The principal opinion in the case, that of Justice Crockett, concurred in by Justice Rhodes, declared that the Act related to a matter of ‘purely local concern, in which the people of the district to be affected by it were alone concerned/ Ex parte Wall was referred to as a case wherein the question was whether a statute authorizing a general law to be suspended in certain political subdivisions of the State, by a vote of the people of the district, was a delegation of legislative power, the basis of this statement probably being the fact that there was then a general law of the State providing for the licensing of the sale of intoxicating liquors and fixing the amount of license, which we have before referred to. The court said: 'However the rule may be in that class of cases, it is settled, I think, by an overwhelming weight of authority in this and many other States, that in matters of purely local concern it is competent for the Legislature to enact that a statute affecting only a particular locality shall take effect only upon condition that it is approved by a vote of the majority of the people whom the Legislature shall decide are those who are interested in the question In People v. McFadden, 81 Cal., 489 (15 Am. St. Rep., 66, 22 Pac. Rep., 851), an Act providing for the formation of a new county, upon the assent of two-thirds of the qualified electors thereof voting at an election to be held for that purpose, was declared by the court in bank to be constitutional and not a delegation of legislative authority. It is squarely held that as to such a question, the same being primarily one of local concern, the subsequent event upon which the taking effect of the legislative Act might be made to depend, could be a favorable vote of the electors primarily interested. 4 Cooley on Constitutional Limitations (p. 141 et seq.) was quoted approvingly as follows: 'But it is not always essential that a legislative Act should be a completed statute which must in any event take effect as a law, at the time it leaves the hands of the legislative department. A statute may be conditional, and its taking effect may be made to depend upon some' subsequent event. Affirmative legislation may in some cases be adopted, of which the parties interested are at liberty to avail themselves or not, at their option/ In holding that such event might, as to certain questions, be a favorable vote of the electors, the decision in People v. McFadden, 81 Cal., 489 (15 Am. St. Rep., 66, 22 Pac. Rep., 851), was squarely opposed to material portions of the majority opinion in Ex parte Wall Board of Law Library Trustees v. Board of Supervisors, 99 Cal., 571 (34 Pac. Rep., 244), is still more in point. The Act there involved was one providing for the establishment of county law libraries in the counties of the State, and it contained a proviso as follows: 'And provided further, that it shall be discretionary with the’ board of supervisors of any county to provide by ordinance for the application of the provisions of this Act to such county’ the court Bank said: 'We think the Legislature had the power to provide in the Act that counties might come within or remain without the provisions of the Act, as the boards of supervisors of the respective counties might determine. It is not necessary to enter into a discussion of the constitutionality of this law in that regard, for in the recent case of People v. McFadden, 81 Cal., 489 (15 Am. St. Rep., 66, 22 Pac. Rep., 851), involving the constitutionality of the Act creating the County of Orange, there is found an exhaustive discussion of the same principle, with the citation of many cases bearing upon the question.’ And finally, in Wheeler v. Herbert, 152 Cal., 224, 234 (92 Pac. Rep., 353), it was declared as follows: ‘That it is competent for the Legislature to pass a law which shall be executed only in the event that a majority of a certain class of persons shall declare in favor of it is a principle too well settled to require discussion,’ citing People v. McFadden, 81 Cal., 489 (15 Am. St. Rep., 66, 22 Pac. Rep., 851), and other cases. “It thus appears that it is now settled m this State, as it is generally elsewhere, that the rule prohibiting the delegation of its legislative powers by a State Legislature, does not necessarily prohibit a conditional statute, the taking effect of which may be made to depend upon such a subsequent event as its approval by the electors of the locality specially interested. (See Cooley on Constitutional Limitations, pp. 163 to 165 and 171, 172.) It is said on the pages last referred to: ‘It would seem, however, that if a legislative Act is, by its terms, to take effect in any contingency, it is not unconstitutional to make the time when it shall take effect depend upon the event of a popular vote being for or against it—the time of its going into operation being postponed to a later day in the latter contingency. It would also seem that if the question of the acceptance or rejection of a municipal charter can be referred to the voters of the locality specially interested, it would be equally competent to refer to them the question whether a State law establishing a particular police regulation should be of force in such locality or not. Municipal charters'refer most questions of local government, including police regulations, to the local authorities, on the supposition that they are better able to decide for themselves upon the needs, as well as the sentiments, of their constituents, than the Legislature possibly can be, and are, therefore, more competent to judge what local regulations are important, and also how far the local sentiment will assist in their enforcement. The same reasons would apply in favor of permitting the people of the locality to accept or reject for themselves a particular police regulation, since this is only allowing them less extensive powers of local government than a municipal charter would confer, and the fact that the rule of law on that subject might he different in different localities, according as the people accepted or rejected the regulation, would not seem to affect the principle, when the same result is brought about by the different regulations which municipal corporations establish for themselves in the exercise of an undisputed authority.’ And on pages 173 and 174, while admitting that there have been some decisions to the contrary, the learned author says: ‘Such laws are known, in common parlance, as local option laws. They relate to subjects which, like the retailing of intoxicating drinks, or the running at large of cattle in the highways, may be differently regarded in different localities, and they are sustained on what seems to us the impregnable ground, that the subject, though not embraced within the ordinary power of'the municipalities to make by-laws and ordinances, is, nevertheless, within the class of police regulations, in respect to which it is proper that the local judgment should control.’ “On the question whether a law relating to the retailing of intoxicating liquors relates to such a subject that its taking effect in any particular locality of the State may be made to depend upon a favorable vote of the electors, without involving a forbidden delegation of legislative power, the decisions are practically unanimous. This is so declared in Joyce on Intoxicating Liquors, secs. 368 and 371. The following decisions sustain this view, viz: State v. Wilcox, 42 Conn., 364 (19 Am. Rep., 536; McPherson v. State, 174 Ind., 60 (31 L. R. A. (N. S.), 188, 90 N. E. Rep., 610); State v. Forkner, 94 Iowa, 16 (28 L. R. A., 206, 62 N. W. Rep., 772); Stickrod v. Commonwealth, 86 Ky., 285, 290, 5 S. W. Rep., 580; Fell v. State, 42 Md., 71 (20 Am. Rep., 83); Commonwealth v. Bennett, 108 Mass., 27; State v. Pond, 93 Mo., 606 (6 S. W. Rep., 469); In re O’Brien, 29 Mont., 530 (1 Ann. Cas., 373, 72 Pac. Rep., 196); Paul v. Gloucester Co., 50 N. J. L., 585 (1 L. R. A., 86, 15 Atl. Rep., 272); Gordon v. State, 46 Ohio St., 607 (6.L. R. A., 749, 23 N. E. Rep., 63); Fouts v. City of Hood River, 46 Ore., 492 (7 Ann. Cas., 1160, 1 L. R. A. (N. S.), 483, 81 Pac. Rep., 370); Locke’s Appeal, 72 Pa. St., 491 (13 Am. Rep., 716); State v. Barber, 19 S. Dak., 1 (101 N. W. Rep., 1078); State v. Scampini, 77 Vt., 92 (59 Atl. Rep., 829); State v. Donovan, 61 Wash., 209 (112 Pac. Rep., 260). Without any discussion of this particular question, local option laws of a similar character were sustained in Ladson v. State, 56 Fla., 54 (47 So. Rep., 517); City of Barnesville v. Means, 128 Ga., 197 (57 S. E. Rep., 422); Garrett v. Mayor, 47 La. Ann., 618 (17 So. Rep., 238); Feek v. Township Board, 82 Mich., 393 (10 L. R. A., 69, 47 N. W. Rep., 37); State v. Johnson, 86 Minn., 121 (90 N. W. Rep., 161); Hoover v. Thomas, 35 Texas Civ. App., 535 (80 S. W. Rep., 859), and Willis v. Kalmbach, 109 Va., 475 (21 L. R. A. (N. S.), 1009, 64 S. E. Rep., 342). There is now practically no State holding to the contrary with the possible exception of Tennessee (see Wright v. Cunningham, 115 Tenn., 445 (91 S. W. Rep., 293), a few earlier decisions in Pennsylvania, Iowa, and Indiana having been practically overruled by later decisions, as above shown. . . . “It is claimed that the Act gives the electors of the specified districts the power to suspend provisions of general laws of the State, such as, in the case of cities and towns organized and existing under' the general Municipal Corporation Act, provisions authorizing the licensing of the traffic in alcoholic liquors for purposes of .revenue and regulation, and in the case of portions of supervisor districts outside of cities and towns, provisions of the County Government Act of the same character. This claim rests on the same basis as that of there being a delegation by the Legislature of its legislative power. “As we have shown, there is no delegation of legislative power to the electors. It is the Act enacted by the State Legislature that suspends the provisions referred to, and not the vote of the electors. As we have seen, the, Legislature has simply enacted a law applicable to the whole State, which in substance and effect prohibits the sale or distribution of alcoholic liquor in any of the districts created by the Act where, twenty-five per cent of the electors insisting on an official expression of opinion thereon, a majority of the electors are not in favor of such traffic. The Act constitutes a declaration by the State Legislature that such traffic is inexpedient in any such district where such a large proportion of the people are opposed thereto, and denounces such traffic under such circumstances as a crime.” Maize v. State, 4 Ind., 342, is at times relied on as sustaining the proposition that a local option law delegates legislative authority, but the Supreme Court of Indiana, in the case of McPherson v. State, 174 Ind., 195, shows that the Maize case was discredited, if not directly overruled, in Groesch v. State, 42 Ind., 558, and in the McPherson case the local option law of Indiana is held valid. In that case the court says: “The Legislature in this Act has not attempted to give the voters power or authority to assist in making the law. The people by voting Tor or against prohibition add nothing to the law, and take nothing from it. It is the law that authorizes the vote, and the law that declares what the result of the election shall be. All the vote can, or does, accomplish is the disclosure of a local condition, namely, whether it is expedient to prohibit the sale of intoxicating liquors as a beverage in the voting district. The voters have nothing to do even with the expediency of the law. The Legislature has rightfully determined that by providing in the Act that sales as a beverage shall not be peremptorily denied in counties therein, a majority of the electors express themselves as favorable to such sales, and that such sales shall be denied in counties where a majority express themselves as favorable to its exclusion. So it is seen that, if a majority vote against the sale, it is the Legislature and not the voters that declares it shall not be sold. The vote springs from the law, and not the law from the vote. The principle is in perfect accord with our institutions. It has behind it the popular sympathy and support of the people, and a sound public policy.” McClanahan v. Breeding, 172 Ind., 457. Sometimes some of the decisions of Iowa are referred to as sustaining the contention that a local option law is a delegation of legislative power. But the Iowa Supreme Court places no such construction on these decisions. In the case of Eckerson v. Des Moines, 137 Iowa, 452, it is held: “We may concede that the law-making body of the State is not authorized to submit to a popular vote of the State the question whether or not an Act proposed by it shall become a law. This court has so held in a number of cases. Santo v. State, 2 Iowa, 165; State v. Weir, 33 Iowa, 134; State v. Forkner, 94 Iowa, 733. But while this is so, it does not follow by any means that the law-making body may not reserve to the electors of any subdivision of the State—included within the interested scope of operation of an Act designed to have effect upon local governmental conditions—the right to determine on popular vote whether or not they will advantage themselves of the Act. If an Act in question is complete in itself and requires nothing further to give it validity as a legislative Act, it is not vulnerable to attack on constitutional grounds simply because the limits of its operation are made to depend upon a vote of the people. And such is not only the doctrine of our cases, but it accords with the great weight of authority.” In State v. Forkner, 94 Iowa, 1, the Supreme Court held: “The popular will is expressed under and by virtue of the law that is in force and effect and the people neither make or repeal it. They only determine whether a certain thing shall be done under the law, and not whether said law shall take effect. The law had full and absolute vitality when it passed' from the hands of the Legislature; and the people under the ‘rule of action’ therein given for their government proceeded to act. The same rule—the same law—was given to all the people of the State, to all parts of it; the same method of taking the vote was presented for all the counties; the same penalties were attached. As a result a different regulation, of a police nature, might exist in one- county from what existed in another, just as one county might determine by a popular vote that a higher rate of tax should be levied than that provided by the general law. In one case the people of the counties are permitted to make certain police regulations, to have the force of law; in the other a law is enacted by the Legislature, which can have no force in any county until sanctioned by a vote of the people thereof. The Act in question is complete in itself, requiring nothing further to give it validity, and does not depend upon the popular vote of the people, or if it does, depends upon this vote simply to determine the limits of its operation. The rule we have established, first announced more than thirty years ago, is supported by the 'Overwhelming weight of authority. See Black, Intox. Liq., see. 45, and cases cited.” The case of Barto v. Himrod, 8 N. Y., 483, is also sometimes referred to as sustaining the doctrine that local option laws are unconstitutional, but the New York court of final resort demonstrates it is subject to no such construction in Stanton v. Board of Supervisors, 191 New York, 428, and that it only decides that the Legislature can not submit the question of whether a certain Act is to become a law of the State— that the Legislature must enact the law. No one questions this. But in Stanton v. Board of Supervisors, supra, the court holds that the Legislature may enact a law of a police nature and provide that localities may by popular vote determine for themselves whether or not any license shall be granted in their respective localities. This case deals at length with these matters and upholds the validity of local option laws. See also Bank of Rome v. Village of Rome, 18 N. Y., 38; Bank of Chenango v. Brown, 26 N. Y., 467; Clark v. City of Rochester, 28 N. Y., 605; Village of Gloversville v. Howell, 70 N. Y., 287; in the matter of 34th Street Railway, 102 N. Y., 343. Delaware is also often referred to as sustaining the proposition that a local option statute is unqonstitutional, in that it is a delegation of the legislative power, and the case of Rice v. Foster, 4 Har., 479, is cited as so holding, and is one of the cases that caused a seeming conflict in the earlier decisions. However, the Delaware cou^t just about the time they rendered the above decision, held a statute valid which authorized a vote to be had in the various communities to determine whether or not a tax should be levied for school purposes. (See Steward v. Jefferson, 3 Har., 335.) If submitting the matter to a vote was a delegation of legislative power in one instance, it certainly was in the other, and vice versa, because there was no more warrant in their Constitution for holding one election than the other. However, the Delaware Supreme Court has in recent years had the question before them again, and after calling attention to a change in their Constitution, which rendered unnecessary the discussion of the opinion in Rice v. Foster, supra, that court holds in State v. Fountain, 69 Atl. Rep., 926, in passing on an Act providing for submitting to a vote of the qualified electors of the several districts of the State the question of whether the manufacture and sale of intoxicating liquors should be licensed or prohibited: “The police power, which is exclusively in the States, is competent to prohibit the sale and manufacture of an article of commerce, which they believe to be pernicious in its effects, and all measures of restraint or prohibition necessary to affect the purpose are within the scope of that authority. There can be no distinction in principle in the application of the Federal Constitution to a prohibitory statute and to a local option statute; the one being a direct and express prohibition of the sale of intoxicating liquors, and the other a conditional prohibition thereof, the condition being a result of a vote to be taken upon the question. It can be said, therefore, as the result of the examination of many authorities, that a local option statute, such as the one in question, is not obnoxious to any provision of the Constitution of the United States.” Citing Boston Beer Co. v. Massachusetts, 97 U. S., 25; Grindlig v. Chicago, 177 U. S., 183; Gray v. Connecticut, 159 U. S., 74, and other cases from the Supreme Court of the United States. The above are the cases principally relied on by those contending that a local option law is a delegation of legislative power, and it is seen that in each and every instance they are no longer followed in the States where rendered, but each has been distinguished, discredited, or specifically overruled, and in each of the States, Pennsylvania, California, Iowa, Indiana, Hew York and Delaware, local option laws are. sustained, and held not to be a delegation of legislative authority and power to either enact a law or to suspend a law. But we did not stop with this investigation, but went to the reports of each State in the Union, and found that the various States were unanimous (with one possible exception) in sustaining such laws. And we give in brief form the holding of each of the other States: Alabama—In State v. Montgomery, 59 So. Rep. (Ala.), 298, the Supreme Court of Alabama holds: “It is urged that the Parks bill and Smith bill delegate'to the people legislative power, because they hinge the issuance of license to sell liquor and the establishment of dispensaries, according to the preference of the electorate, upon mtliori zation or legalization, of the sale thereof by the vote of the people. In short, the contention is that the vote of the people and not the law, authorizes—legalizes—the sale. We would prefer out of deference to counsel to find in this contention something more than a mere play of words, but we are unable to do so. The italicised terms must be referred- to the legislative purpose, to be read from these intimately related laws. The issues submitted to the electorate and the unequivocal provision of the consequences of the choice by the electorate, favorable to the restoral of the manufacture and traffic to the county voting thereon, demonstrate that no legislative power, no commission to the electorate to make law was intended or effected. All the electorate can do under these laws (as respects the displacement of an existing order of things when the election is held) is to choose whether to pass their county under the laws already then written. Ho court could, under acts employing as these do, the terms discussed, possibly attain any other- conclusion.” In Davis v. State, 141 Ala., 84, the Supreme Court of that State sustains the validity of a local option stock law, and holds such law not a delegation of legislative authority and power, and says it is legislation to take effect upon a fixed contingency. See also McGrew v. Court, 89 Ala., 407; Edmonson v. Ledbetter, 114 Ala., 479. Arkansas—In the ease of Boyd v. Bryant, 35 Ark., 63, the Supreme Court holds: “It is further submitted that the Act is unconstitutional because it is left to take effect or operate in the school districts at the option of a majority of the adult residents thereof, etc. In other words, that it is a local option law. If the Act is unconstitutional for that reason, it would follow that all our statutes making the granting or withholding of licenses to sell liquors, etc., to depend upon the suffrages of the electors of townships and wards, would be for a like reason invalid, and the State and her courts have done great injustice to vendors of ardent spirits by enforcing such acts, for they are and have been classed as local option laws. In some States such laws have been held unconstitutional, but the great weight of authority is now in support of the validity of such acts.” Arizona—In Thalheimer v. Board of Supervisors of Maricopia County, 93 Pac. Rep., 1129, the Supreme Court of Arizona holds: “The only question for our consideration is the validity of the local option legislation as embodied in title 43, Rev. Stats., 1901. That title- provides that upon a petition being filed with the board of supervisors, signed by a certain number of voters, an election shall be ordered, etc. The contention of appellant is that the Act is invalid for the reason that the Legislature has attempted to delegate its power. The legal conflict over, the local option laws in various States has cem tered upon the question whether they in fact involve a delegation of legislative power, and the overwhelming weight of authority is that they do not. We content ourselves with calling attention to two recent decisions in which the authorities are collated and commented upon. In re O’Brien, 29 Mont., 530; Founts v. City of Hood River, 46 Ore., 492. Colorado—In Schwartz v. The People, 46 Colo., 240, the Supreme Court of that State holds valid the local option law of that State. The court says: “By the local option law power and authority is conferred upon the qualified electors of certain specified political subdivisions of the State to determine by popular vote whether a given district or political subdivision shall become anti-saloon territory, or having by said vote become anti-saloon territory, whether it shall remain so. When a majority of the qualified voters within such district or subdivision voting on the question declare in favor of anti-saloon territory, then the statute provides that it shall be unlawful to sell intoxicating liquors at all therein.” Thus it is seen that the same question was involved as in our pool hall case, and the Supreme Court sustained the validity of the law in an exhaustive opinion. The court had theretofore so held also in the ease of People v. Rains, 20 Colo., 489, in which it was specifically held it was not an unlawful delegation of legislative power and authority. The same principle is reannounced in Railway v. State Railway Commission, 54 Colo., 65, sustaining the law creating a State Railway Commission, and conferring upon it authority to act. Connecticut—In the ease of State v. Wilcox, 42 Conn., 364, the Supreme Court held: “The Act of 1874 with regard to the sale of intoxicating liquors authorized the county commissioners to grant licenses for such sale in the several towns of the county, such licenses to be granted only on recommendation of a majority of the selectmen of the respective towns, and provided that any town might, at its annual meeting, determine, by ballot, whether the selectmen should make any such recommendations for the year ensuing, and forbade the selectmen to make any recommendations if the town so instructed them, and prohibited the sale of liquors by any person not so licensed. Held to be constitutional and valid, and that the Act does not delegate legislative power.” Florida—In Cotton v. County Commissioners of Leon County, 6 Fla., 610, it was early held “that the provision of the Act of the Legislature, which required that a subscription to the stock of the railroad company by county commissioners should depend upon a vote of the qualified electors of the county, was not a delegation to the people of legislative powers.” The Act authorized a subscription if three-fourths of the people at an election voted in favor of it, and prohibited a subscription if more than one-fourth voted against it. ^ In State v. Railway Co., 56 Fla., 617, the Supreme Court of that State holds that it is- competent for the Legislature to enact a law complete in itself to take effect of its own force upon the happening of a contingency, citing many authorities from that State and other States. In State v. Sammons, 57 So. Rep. (Fla.), 199, the Supreme Court of Florida, in speaking of an Act of their Legislature, says: “When the requisite vote was east it afforded the contingency upon which the Act by its terms became effective.” Its validity was sustained, and held not to be a delegation of legislative authority and power. The statutes of Florida provide “that it shall be the duty of the board of county commissioners of each county in the State, upon the presentation to said board at a regular or special meeting thereof of a written application asking for an election in the county in which said application has been made, to decide whether the sale of intoxicating liquors, wines or beer shall be prohibited therein, and signed by one-fourth of the registered voters of said county, to order an election in said county, not oftener than once in every two years, to decide whether the sale of intoxicating liquors, wines and beer should be prohibited in said county,” etc. This statute has been upheld, and is now in force in that State. Arpen v. Brown, 19 Fla., 563; Cook v. State, 25 Fla., 698; Ladson v. State, 56 Fla., 54; Randall v. Tillis, Sheriff, 43 Fla., 43; Minn v. Finger, 66 Fla., 572. Georgia—In the ease of Caldwell v. Barnett, 73 Ga., 604, the Supreme Court of Georgia seems to go much further than it is necessary to go to uphold a general local option law. It says: “Under our form of government, where the people rule, and where representatives in the Legislature are but agents of the people, and act alone for them, it would seem that when the wishes of the people as to whether a proposed Act should become a law can be clearly ascertained by an election, this mode would be consonant with the genius and form of our government. The fundamental law of the State, and even particular sections thereof, is and has been left to be determined by a vote of the people. If the Constitution, the organic law of the State, has been made to depend upon the vote of the people, it is not easy to perceive why a local law affecting a particular community should not be determined 'by a vote of the people of that locality. It has been the practice in this State for more than half a century to leave local questions, such as the location of county seats, the building of public houses, municipal charters and amendments thereof, to the vote of the people. Such laws have never been thought to be unconstitutional." See also Coleman v. Board of Education, 131 Ga., 653. Idaho—In 1909 Idaho passed a law authorizing counties, etc., to vote on whether the sale of intoxicating liquors should be prohibited in the respective counties. The Supreme Court of that State, in the case of Gillesby v. County Commissioners, 17 Idaho, 587, sustained the constitutionality of the law. In Mimms v. Gilmore, 17 Idaho, 609, the constitutionality of the law is again passed on and sustained. And in Miff v. County Commissioners, 18 Idaho, 695, the court says: “By the adoption of the local option law the Legislature intended to authorize electors of each county to determine whether the sale of intoxicating liquors should be prohibited in the county.” The law was fully sustained by the court, and held not to be a delegation of authority. Illinois—In People v. McBride, 234 Ill., 146, the Supreme Court of Illinois holds: ' “A local option statute which is a complete expression of legislative will is not invalid as a delegation of authority on the ground that such a law is to become operative by a vote of the people of the district affected.” People v. Simond, 176 Ill., 165; People v. Hipley, 171 Ill., 44; Meigo Tier Trans. Co. v. Greer, 223 Ill., 104; Waugh v. Glos, 46 Ill., 604. Kansas—In Cole v. Dorr, 80 Kan., 253, the Supreme Court of Kansas, says: “The claim that in leaving the various cities free to adopt or reject the provisions of the Act of 1907 the Legislature attempted to delegate its powers to the' people of these municipalities, requires little discussion. _ Even in jurisdictions where it is held that the taking effect of a statute can not be made to depend upon the result of a popular vote, the principle is recognized that ‘if an Act is complete in itself, and requires nothing further to give it validity as a legislative Act, it is not vulnerable to attack on constitutional grounds simply because the limits of its operations are made to depend upon a vote of the people. If this court has not heretofore expressly approved this doctrine, it has approved it too nearly to leave any substantial ground for controversy. (See State v. Butler County, 77 Kan., 527, and cases cited.)’ And so many other courts have affirmed it that the question can not fairly be regarded as an open one.” ' In Burlingame v. Thompson, 74 Kan., 395, the Supreme Court of that State holds that the Legislature may authorize cities and towns to prohibit and suppress pool rooms and pool halls, and upheld the validity of the statute so providing, wherein it was left optional with the cities and towns. Kentucky—The Supreme Court in Commonwealth v. Weller, 14 Bush Repts., 218, holds an Act prohibiting the sale of intoxicating liquors in a certain county, and providing that it shall take effect upon ratification of the majority of the voters of the county, is constitutional. The takipg effect of an Act of the Legislature may be made to depend upon the result of a popular vote of a county, since in such a case the people are not called upon to decide at the polls whether the Act authorizing the vote is a law, but whether or not they will accept its provisions. Again in Anderson v. Com., 13 Bush, 485, the Kentucky Supreme Court holds a local option law referring it to the popular vote of a municipality whether licenses to sell liquor shall be granted or refused altogether is constitutional and valid; the question is one of local police power, and may constitutionally be left to the decision of the County Court, municipal authorities, or the qualified voters of a city or town, or court district. Gayle v. Owen County Court, 83 Ky., 61; Strickrod v. Com., 86 Ky., 285; Burnside v. Lincoln Co. Court, 86 Ky., 423. Louisiana—In the case of Garrett v. Aly, 47 La. Ann., 618, the Supreme Court holds: Louisiana Act 76 of 1884, by which the Legislature declared that the vote or decision of the people of a parish shall control the sale of spirituous liquors, is within the constitutional power of the Legislature. Massachusetts—In the case of Commonwealth v. Bennett, 108 Mass., 27, the Supreme Court held: The Massachusetts statute of 1870, chapter 389, which provides that the inhabitants of any city may annually vote upon the question as to whether any person shall be allowed to .sell intoxicating liquors, and in the event of such vote being unfavorable, the sale of such liquors in any such city or town shall be prohibited, is not unconstitutional in that it delegates legislative power. That court reannounces the rule in Com. v. Marlin, 110 Mass., 357; Graham v. Roberts, 200 Mass., 152. Maine—In Fannin et al. v. Commissioners of Arostock County, 82 Atl. Rep., 545, the Supreme Court of Maine was passing on an Act of the Legislature of that State which left to the voters of the county the determination of a change in county lines, and the location of the registrary office. It was held not to be a delegation of legislative power, although no specific authority was found in the Constitution for so doing, it being a law to become effective' upon the contingencies named. Maryland—In the case of Fell v. State, 42 Md., 71, the Supreme Court of Maryland, in passing on a local option statute, holds: “How what has been delegated to the voters by the Act of the assembly? Certainly not the power to make the law, or to repeal existing laws. They are called on by the first section simply to express by their ballots iheir opinion or sentiment as to the subject matter to which the law relates. They declare no consequences, prescribe no penalties, and exercise no legislative functions. The consequences are declared in the law and are exclusively the result of the legislative will. The Act of the assembly is a perfect and complete law as it left the halls of legislation, and was approved by the Governor, but by its terms it was made to go into operation in any district upon the contingency of a majority of the legal voters within the district being ascertained to be in favor of the prohibition. The question before us, therefore, resolves itself simply into this: ‘May the Legislature constitutionally enact a law, and make its operation depend upon the contingency of the popular vote?’” Answering the question, it was answered in the affirmative, and the court held it was not a delegation of authority. Michigan—The Supreme Court of Michigan in Floeck v. Board of Bloomingdale, 82 Mich., 393, holds, in regard to the local option law of that State: The statute provided for ascertaining the sense of the community by a vote of the legal electors. This is all their vote expresses, and there it ends. If'the people prefer taxation to prohibition, then the general law continues in force, and the traffic is regulated. The Legislature in conferring upon the board the authority io pass such an order, had the right to prescribe the conditions under which it should be exercised, and this condition is that the majority of the legal voters vote in favor of the law. There is no constitutional objection to this. The voters do not make the law. .The law, with its various provisions, was enacted by the Legislature. See also Attorney General v. Springville Tp. Board, 143 Mich., 523. Minnesota—In State v. Cook, 24 Minn., 247, the Supreme Court of Minnesota holds: “An Act which authorizes the legal voters of a city to determine whether licenses for the sale of liquors shall be granted, and providing that if the voters shall determine that no licenses shall be granted, any person thereafter who shall sell, barter or dispose of any spirituous, malt, fermented or intoxicating liquors, within the corporate limits of such city, shall be deemed guilty of a misdemeanor,, and upon conviction shall be punished as therein provided, is valid and not unconstitutional. And under such Act if the voters determine against granting licenses, it operates as a revocation of all outsatnding licenses.” See also Ex parte Miller, 147 N. W. Rep. (Minn.), 660. Mississippi—In Schulhen v. Bordeaux, 64 Mississippi, 70, the Supreme Court of that State upholds the validity of local option laws. It says: “On the question of the right to make an Act of the Legislature to depend for its operation on a future contingency, argument was exhausted long ago, and the principle established by oft repeated examples and by adjudication in this State and elsewhere in great numbers, that this may be done without violating the Constitution. It is idle to talk of precedent and subsequent contingencies or conditions, between defeating the operation of an Act or putting it in operation. There is no such deduction. It is merely fanciful and deceptive. It is for the Legislature in its discretion to prescribe the future contingency, and it is not objectionable on constitutional grounds that the popular vote is made the contingency. The purpose and scope of the Act is to take the popular sense whether or not the traffic shall be licensed by counties, and by vote, and it is valid and must be upheld.” See also Board v. Davis, 59 So. Rep. (Miss.), 811. Missouri—In the case of Maggard v. Pond, 93 Mo., 606, the Supreme Court of that State holds the Missouri local option Act of 1907, permitting the majority of the voters in a county, town or city, to determine whether the sale of liquors shall be prohibited and licenses refused thereon, was properly passed by the Legislature in the exercise of its police 'power, and the- same is not unconstitutional as delegating legislative power to the people. See also State v. Moore, 107 Mo., 78; State v. Dugan, 110 Mo., 138; State v. Watts, 111 Mo., 553; State v. Handler, 178 Mo., 36; State v. Harp, 109 S. W. Rep., 578. In the ease of City of Tarkin v. Cook, 120 Mo., 1, the Supreme Court of Missouri says: “Keepers of billiard tables are not recognized by the State as exercising a useful occupation. They are subject to the police regulation of the State and by cities and towns granted them by . the State. They are prohibited from allowing minors to play on their tables. Villages may prohibit them altogether under section 1672 of, Bevised Statutes. Public billiard halls are regarded by many as vicious in their tendencies, leading to idleness, gambling and other vices. Each. municipality can best determine for itself to what regulation they should be subjected.” Montana—In the ease of In re O’Brien, 29 Mont., 530, the Supreme Court of Montana holds: “The local option liquor law is. not unconstitutional as a delegation o.f legislative.power.” And among other things, the court says: “Counsel contend that the decisions of the courts'of" Texas and Kentucky should not be considered by this court, for the reason that the local option laws of those States were enacted pursuant to constitutional provisions, but we are unable to perceive the difference in effect between a law passed by a Legislature because it is compelled so to do, and one passed by a Legislature because it has full authority and power to do so. Each alike is a legislative mandate when duly passed, and each is of equal dignity and importance.” In Evers v, Hudson, 36 Mont., 136, in passing on a local option school law, the court holds: The Act of 1907, chapter 29, authorizing the establishment of county free high schools, being a local option law, of uniform operation, the taking effect of which in any particular county is made dependent upon a favorable .vote of the electors, is not an unwarranted delegation of legislative power to such electors. See also State v. Holland, 96 Pac Rep. (Mont.), 719. Nebraska—In Cole v. Village of Culbertown, 86 Neb., 160, the Supreme Court holds: “The Legislature has full power to grant authority to villages to license, regulate or prohibit billiard halls, pool balls, or bowling alleys within the limits of such village.” The same principle of law is reannounced in State v. Howard, 96 Neb., 278. In State v. Ure, 135 N. W. Rep., 227, the Supreme Cou-rt of Nebraska holds: On the general subject of the powers of the Legislature to submit to the electors of local subdivisions of the State, the question whether they shall adopt or reject, as applying to such subdivision, the provisions of a general law, many cases are cited in 8 Cyc., 840, note 17. In this State so far as has been brought to our attention, the right of the citizens of a county to vote upon the division of the same, or the herd law, or upon the question of Whether bounties should be paid by the county for the killing of wild animals, has never been questioned. We conclude, therefore, that it was within the power of the Legislature by general law to. allow the electors of all cities in the same class to adopt or reject the commission plan of government. Nevada—In the case of Warren, Relator, v. The District Court, 30 Nev., 225, the Supreme Court held a law valid which provided that “whenever a majority of the qualified electors, who are taxpayers, within the limits of a city or town proposed to be incorporated, shall desire to be organized into a city or incorporated they may apply in writing to the district of the proper county stating the name proposed for such incorporated town, accompanied by proof as to number of inhabitants. When such application is made, and the court becomes satisfied of the legal sufficiency thereof, it becomes the duty of the court to enter an order declaring the town incorporated. It is seen the law provided a means whereby a majority of the citizens could incorporate by accepting the provisions of the law, and.it was contended this was a delegation of legislative power ; that the law did not incorporate the town, but it/' was the act of the people in getting up and signing the petition and the court in entering the order that did so. The court said the Act is a general one, and may be made to apply to all unincorporated cities and towns in the State. It prescribes the conditions under which they may foe incorporated, and authorize the court to determine whether there has been a compliance with the requirements. The court is merely acting to give the law effect after having determined the requisites as fixed by, the Legislature. Upon compliance with and ascertainment and certification of the conditions by the court the incorporation results from provisions of the law as passed by the Legislature. 'We feel satisfied the law does not confer legislative power, and the law is not unconstitutional and invalid. New Hampshire—In State v. Noyes, 30 N. H., 279, the Supreme Court upheld a local option statute dealing with bowling alleys, holding that “a statute making bowling alleys, situate within twenty-five rods of a dwelling house, nuisances, is not unconstitutional, nor will it be so, though the statute is to be in force only in those towns in which it is adopted