proclamation a misdemeanor punishable by fine and imprisonment.

I do not commit myself to the competency of this Federal legislation in its entire scope, but refer to it to show how a body of men containing lawyers of eminent ability, familiar with constitutional principles, have exercised the legislative prerogative.

2. The validity of this law may be rested securely upon the right of the Legislature to delegate the powers of local government to political subdivisions of the State.

The capacity to grant such legislative powers, commonly called police powers, to municipal corporations is admitted."

The distinction is suggested that the by-laws and ordinances of local goverments have not the force or effect of laws; that they must be reasonable, and are subject to be set aside on certiorari by the courts. To this I cannot as sent. The rule in this respect is correctly and accurately stated by Mr. Justice Depue in this way: "A grant of power to a municipal corporation to legislate by ordinance on enumerated subjects connected with its municipal affairs is in addition to the power of making by-laws, which is incidental to the creation of a corporation." State v. Morristown, 4 Vroom, 57. The court will inquire into the reasonableness of ordinances passed by a municipal body under legislative authority, when the powers granted are expressed in terms which are general and indefinite. But when the Legislature has defined the delegated powers, and prescribed with precision the penalties that may be imposed, an ordinance within the delegated limit cannot be set aside as unreasonable." Haynes v. Cape May, 11 Cent. Rep. 578, 21 Vroom, 55.

Again, it is said that the right of the Legislature to delegate police powers has its origin in the common law of England, under which the king by his royal charter erected the municipalities, and that such delegation can now be made by the Legislature only to the extent sanctioned by settled usage at the time our State Constitution was adopted.

No argument can safely be founded upon the conditions which in this respect existed at common law. At the time of the adoption of the Constitution, the people of New Jersey were sovereigns. All the powers which had resided in the king of Great Britain passed to them, with the absolute right to govern themselves. When, in the exercise of their sovereignty, they adopted a written Constitution distributing the powers of government, the right to legislate in its entire scope passed to the legislative bodies which the people erected. No legislative capacity was reserved to the people themselves, and no provision was made that any part of the legislative function might be delegated.

We must look for the origin of the right to delegate these legislative powers, not in the name of the political district, or in the condition of the people to which they were committed. That might have created a necessity for the delegation, but could not have conferred upon the lawmaker the right to make it. Its true foundation is in the fact that it must have been deemed, in general acceptance, the exercise of one of the legitimate functions of legislation to grant these powers to political sub

divisions of the State at the will of the Legislature.

There is no more right inherent in a city than in a county to have these powers bestowed upon it. If there is, then the Legislature, having absolute power to create a city coextensive with county lines, can by its own act enlarge its powers under the Constitution.

The mistake is in assuming that the legislative capacity is dependent upon, and inseparable from, the character of a political subdivision of territory which it can at will create or extinguish.

The power of the Legislature springs solely from the character of the grant.

But it is said that if the Legislature may grant this power to counties, all legislative function may be referred back to the people.

The limitation upon legislative power is in the subject itself, and not in the nature or character of the political subdivision of the State to which the grant is made.

Can the right to declare what the law of attachment shall be, or how the action of ejectment shall be conducted, or what the law of descent shall be,-be committed to a city any more than to a county?

Hitherto the right to delegate has been restricted to such powers, in the nature of police powers, as are necessary to local government, among which the control of the liquor traffic is included. The Legislature is omnipotent to grant these powers to political divisions of the State, now existing or to be created by it.

Again, it is said that counties are not in a condition to receive such powers. Why not? What condition is necessary in this case, except the legislative will, to give the power and the machinery necessary to the execution of it by the county?

Those portions of our territory which have been erected by legislation into townships and cities did not become susceptible of accepting such grants by anything which inhered in them as mere parts of the State's domain before any powers were bestowed. From time to time the Legislature gave them such powers as it elected. It was competent to grant one power, and to withhold all others, or to grant any number, and, after granting, to revoke them. Subdivisions of the State may now be created and endowed with capacity for self-government, simply by Act of the Legislature providing that any portion of territory it may select shall exercise one or more such powers. It is essential only that legislation be general as to powers granted. Where is the restraint as to the territory over which the legislative power shall extend? If the Legislature deemed it expedient to secure uniformity, could it not give to every county in the State the right to regulate the liquor traffic, or the police depart ment, or the sanitary laws for the whole county, and withdraw those powers from the political subdivisions of the county?

What hinders, since it must be admitted that the Legislature may make the city and county lines coextensive and coincident? The power of the Legislature under the Constitution cannot depend on the capacity of a political division of the State to receive the authority in question, since that capacity can be given to it at the will of the Legislature. A constitutional

An examination of the authorities, and the careful reflection which a subject of such importance merits, have led me to the conclusions which I have announced.

The cases will be found by reference to those before cited. They are too numerous to be analyzed and discussed within the reasonable limits of an opinion of this court. They present views of judges of ability, on either side of the questions involved in this controversy, and they cannot be reconciled.

This court concurs in the views expressed by our supreme court in State v. Morris Common Pleas, 7 Vroom, 72, which has stood for years unquestioned as to the law of the State.

At every step of this discussion we are confronted with the rule, which has become axiomatic, that when we are in doubt as to the constitutionality of a law, we must resolve the doubt in favor of its validity.

With the long array of adjudications by learned judges upon both sides of the questions involved, and the forcible presentation of the diverse views of the able counsel engaged in the argument of this cause, we may well be left in doubt, and be led to pause before we interpose the arm of the court to overthrow the action of the Legislature.

Whether it is admissible to delegate control of the liquor traffic to all the people of the State in one body is obviously a different question. When we speak of the powers of local government, it seems to be necessarily implied that they are powers committed to subdivisions of the State.

Local government signifies government by the several parts of the State, each part for itself. Under the Constitution, counties are indestructible.

The question remains to be considered, whether this legislation is special and local, and therefore in contravention of the constitutional provision that "the Legislature shall not pass private, local, or special laws regulating the internal affairs of towns and counties."

The argument is that this law produces different results in different counties, dependent upon the vote for or against the sale of liquors, and that thus the Legislature, by the indirect mode of submitting this matter to the popular vote, accomplishes what it could not do by direct legislation, viz., it makes the law in one county to differ from that in another. This is the same argument herein before considered, presented in another form, against the validity of this law, viz., that this is not a law, that the Legislature did not make the law, that the vote makes the law, and that the law varies with the vote. This error underlies this entire argument. It assumes, what I have denied, that the law is not complete in itself.

If a complete law when it left the hands of the Legislature, it is general. It is the same law for all, and equally within the grasp of the people of each and every county to apply and enforce it at will.

But I will not content myself with this an

swer.

The grounds relied on to prove that the Legislature has transcended its power in this instance will equally denounce as void the law providing for county road boards, the Act enabling city councils to establish excise boards, the Martin Act (Laws 1886, chap. 112), and others of the same general character. The latter Act becomes applicable only by its adoption by the common council of any city, or upon petition of a specified number of taxpayers.

These laws, it is true, have not passed the test of judicial scrutiny, and it may therefore be said that they are of doubtful constitutionality, and that one doubtful law cannot be relied upon as a safe prop to the validity of another law of the like character. Let us recognize the force of this answer. I shall not argue that several doubts make a certainty.

In my judgment it is not difficult to demonstrate the fallacy of this argument, that this is a special law. Let us see.

The argument is that, under this law, the effect will be to prohibit license in Mercer County if the vote is adverse, and to allow license in Essex County if the vote is favorable; that an express Act of the Legislature that there shall be license in Mercer, and shall not in Essex, would be a special law, and therefore this law, which has the same effect, must likewise be special.

This reasoning will render absolutely void any law, general in form, which the most astute mind can draw, authorizing every municipal government in the State to regulate and prohibit the sale of intoxicating liquors. Under such a law the city of Trenton might prohibit license, while the city of Newark would leave the traffic practically unrestrained. In applying such a law, the greatest diversity might exist in different localities. Such in fact is the present condition under existing municipal laws.

The Legislature could not lawfully enact that license shall be prohibited in the city of Trenton, and shall not be prohibited in the city of Newark, and therefore the law granting to municipal governments the power of control over this subject is void. That cannot be done by indirection which cannot be done by direct enactment.

The error lies in charging to the law the diversity which is attributable only to the different modes in which the various communities elect to govern themselves under the delegated powers.

These laws, authorizing the people to govern themselves, are enabling Acts,-Acts which enable localities to govern themselves according to their own will. If diversity in the mode in which they govern themselves under such laws condemns the law as special, then it is manifest that it is incompetent for the Legislature to delegate by general law the powers of local government.

The delegation of this police power necessarily implies the right to each political district to regulate it in its own way, or to prohibit it. If the law must be absolute, unconditional, and

peremptory; if it must hold all to a like use of it, it is not a delegation of any authority. The very object of delegating these powers is to enable the local governments to make such diverse laws as they may deem expedient. Otherwise the delegation is abortive.

An argument so totally destructive of the power to legislate in any form for the political subdivisions of the State must be rejected as an utter fallacy.

The law, in my judgment, is unquestionably a general law. The quality of uniformity in result coexists with the right of self-government in various sections of the State.

The constitutionality of that part of the statute which relates to the ordering of an election is also assailed in two particulars. One particular is presented in an argument thus: the law enacts that under certain circumstances an election shall be held; that a circuit judge shall determine whether those circumstances have arisen; that this determination will be a judicial act; and that the interposition of this judicial act between the passage of the law and its execution renders it unconstitutional; that if judicial action is necessary to establish some point before it can be executed, then the Act is unconstitutional."

I am unable to see any force in this argument. The test of constitutionality thus contended for seems to exclude every criminal statute; or, to take more similar instances, it would exclude statutes which provided that on forfeiture of his office by any officer a special election should be held to choose his successor; or if, in a contested election case, it should be determined that no person was duly elected, a new election should be ordered. Yet I think it has never been surmised that there was any unconstitutional feature in these legal conditions. Such laws are valid.

The other particular is, that for the judge to order an election, and set the day on which it shall be held, violates article 3 of the Constitution, which says: "The powers of government shall be divided into three distinct departments, -the legislative, executive, and judicial; and no person or persons belonging to or constituting one of these departments shall exercise any of the powers properly belonging to either of the others, except as herein expressly provided."

One counsel insists that "the naming of the day is an act of legislation;" another, that the ordering of an election is "a power properly belonging to the legislative and executive departments of the government."

The inability of counsel to agree upon the proper classification of this power indicates the weakness of the argument. They both disregard the fact that there are many powers of

But there is a multitude of governmental duties which have never been and cannot possibly be performed either by the Legislature or by the governor, and which are certainly not prescribed by the Constitution to the judiciary. Yet the Constitution vests all the legislative power, of which it here speaks, in the Senate and General Assembly; all the executive power in the governor; and all the judicial power in the courts.

The conclusion is inevitable that this multitude of duties was regarded as lying outside of what were termed the powers properly belong. ing to the executive, legislative, and judicial departments, and was left by the Constitution to be discharged in such mode as the law should provide. For instance, contracts may be and are made on behalf of the State by the legisla tive, the executive, or the judicial department. Each of these departments appoints the incumbents of statutory offices. The governor and chief justice act together on various commissions; and in divers other respects one department exercises authority which might as well have been devolved by statute upon another.

There is no reason for denying that the mere ordering of a special election, when the conditions exist which legally require it, and the setting a day for holding it, are included in this large class of acts which may be performed indifferently by any department to which legislative discretion may assign them. Ever since the present Constitution was adopted, the power to order a special election to fill vacancies in the Legislature, and fix a day therefor, has been lodged without question in the House where the vacancy existed, or in the governor, according to circumstances. If this power properly belonged” by the Constitution to either, the other could not exercise it.

A similar power with regard to a vacancy in the office of sheriff was for many years reposed in the common pleas. Nixon, Dig. Sheriffs, $ 10, 33.

In this respect the Act is valid.

The remaining objections relate to the mode in which the Act has been pursued.

First, that the judge ordering the election failed to have notice of the application to him published in each newspaper in the county entitled to publish the laws, as the statute requires, the contention of counsel being that no newspapers become entitled to publish the laws until they are designated for that purpose by the governor and comptroller, and that no designation has yet been made. It is sufficient answer to this to note that the judge's order recites that the notice had been published in all the newspapers entitled to publish the

But, besides this, the publication in all the newspapers among which the governor and comptroller must make their selection is a compliance with the statute.

The second objection is that the judge or dered the election to be held on Wednesday, while the general Act to regulate elections requires all special elections to be held on Tuesday. Rev. p. 362, § 139.

We think the statute under review does not adopt this clause of the election law. Those provisions of that Act which regulate the manner of holding the election, which prescribe the duties and compensation of the election officers and the penalties of misconduct are expressly adopted for the purposes of the election to be held under this statute; but the day is to be fixed by the judge himself, without any other limitation than that it shall not be within sixty days of any general election in the county, or less than three months or more than six months from the date of the order.

No infirmity being found in the legislative Act, so far as it relates to these cases, or in the proceedings below, the judgment of the Supreme Court in both cases should be affirmed.

Reed, J., dissenting, in State, Paul, v. Judge of Gloucester Circuit Court:

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 tbe judgment, wisdom, or patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust. Cooley, Const, Lim. 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. Paterson v. Society for Establishing Useful Manufactures, 4 Zab. 385; State v. Hudson Co. Comrs. 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 have thought it a question open for discussion.

One of the processes of reasoning by which these judges reach their 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 fu

stantly called into action to meet conditions 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 $15,000 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 lawmaking function, encounters an implied constitutional principle, and for that reason it 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. other leaves it to another will to say whether the rule shall ever be a law.

The

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, 11 U. S. 7 Cranch, 382 (3 L. ed. 378), is a stock case of those who hold the contingency 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 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. operation of the law had been left to the absolute discretion of the President, it would have been a delegation of legislative power.

If the

Judge Cooley has intimated another ground upon which he thought it might be possible to justify such a delegation of legislative func