Hammond v. Haines

Weisel, J., delivered the opinion of this Court. Yincent Hammond, the appellant, applied, on the 21st day of July, 1864, to the Circuit Court for Cecil county for a mandamus to compel the clerk of that Court, the appellee, to issue to him a license to keep an ordinary in the borough of North East, in that county. The Court passed an order on the appellee to show cause by a day named why the writ should not issue. The cause shewn was, that the General Assembly of Maryland, on the 10th day of March, 1864, passed an Act (chap'. 348,) entitled, “An Act to regulate the -issuing of licenses for the sale of spirituous or fermented liquors within the borough of North East, in Cecil county,” which law is set out; that after the day for its going into effect, viz: on the 11th day of April, 1864, at an election called by the commissioners of the borough of North East for the purpose of deciding by ballot, whether a license to sell spirituous or fermented liquors of any kind whatsoever should be granted or issued, by the clerk of the Circuit Court of Cecil county, to any person to vend or sell the same within -the limits of said borough, it appeared, by sixty-one ballots to fifteen, that the election was unfavorable to the issuing of said licenses; and that a certificate of said election, signed by the judges and attested by the clerk of said election, was duly made to the respondent as clerk of said Court, and filed in his office.

Wherefore, he alleged it was not lawful for him to issue the license to the appellant, and that he properly refused, and continued to refuse, to issue the same, &c. The appellant thereupon moved the Court to quash the return of the respondent, and for a peremptory mcmdmrms,. The Court overruled the motion, declared the return sniff ⁵⁵⁷ dent cause why the mandamus should not issue, discharged the rule and dismissed the petition. Prom this order this appeal was taken.

The Act of Assembly, set out in the appellee’s return, provides, first, that the qualified voters residing in the borough of North East, in Cecil county, shall have the privilege of deciding by ballot, at an election called by tbe commissioners of said borough for tlie purpose, on some day in April, 1864, and on some day in the same month, in each subsequent year, whether any license to sell spirituous or fermented liquors, of any kind or description whatsoever, shall he granted or issued, by tbe clerk of the Circuit Court of Cecil county, to any person to vend or sell tbe same within tbe limits of said borough. Secondly, that should a majority of the votes cast at an election held as provided above, be unfavorable to the issuing of said license, it shall not be lawful for tbe said clerk of tbe Circuit Court to issue any license for tbe sale of spirituous or fermented liquors of any kind within the limits of said borough for one year from the first day of May ensuing said decision, in each and every year in which such decision shall be made. The Act to take effect from the date of its passage. The object of this appeal is to obtain from this Court an opinion and decision upon the constitutionality of this law, in order that those whose interests are affected by it may know whether it is of binding force in regulating their conduct and business.

No other purpose could be effected now upon this application for tbe mandamus, the time in which a favorable determination could have availed the petitioner having long since passed, the appeal itself having been taken as late as the 3rd of July, 1865, more than six months after the order appealed from had been passed. Notwithstanding this, we have considered the question of the constitutional ■validity of the law, and wo proceed to state briefly our com elusion upon it. ⁵⁵⁸ It does not belong to that class of laws which contain an express provision for referring it to the vote of the people for their acceptance before it can become a law. The law as it passed the legislature is complete in itself, requiring no other sanction. We are not, therefore, to pass upon a law which submits to the people, in the largest, broadest sense, the passage of the law, or requires from them legislative action upon it before it can have the force of law.

The objection to the law under consideration is, that it provides for the suspension or repeal, periodically, of an existing State law, by a portion of the people within a prescribed limit, by means of the ballot, at an election called for the purpose. It is not to be overlooked, that the town of North East is an incorporated borough, a municipality with the usual powers to pass by-laws and ordinances for the police regulations of the place, and it will not be questioned that it was competent for the. legislature to confer upon it the power to prohibit the sale of ardent spirits within its limits, notwithstanding the general license law of the State. In such case the local law would prevail. 1 Code, Art. 1, seo. 11. The authority in this case is given to the qualified voters of the borough, at an election called for the purpose by the commissioners of the borough, to declare annually, by ballot, whether any license to sell spirituous or fermented liquors within its limits shall be granted by the clerk of the Circuit Court for the county.

If not, the clerk on being so certified, is not to issue any license for the purpose. This species of legislation has undergone examination and decision in several of the States of this Union, and has called forth some of the ablest expositions of the character and nature of our representative systems of government, and of the legislative power and action of the State, to be found in any of our judicial reports. In Delaware, Pennsylvania, and Iowa, it has been pronounced unconstitutional. Rice vs. Foster, 4 Harrington.

Parker vs. Commonwealth, 6 Barr., ⁵⁵⁹ 507. Geebrick vs. The State, 5 Iowa, 491 . On tbc other hand, there are decisions of a contrary character, recognizing the validity of such laws. In Pennsylvania, a distinction was recognized between the law passed upon in 6 Barr.-, referred to, and a law which authorized the qualified voters of two townships to decide by ballot on the erection of a new township taken from one of them.

This law the Supreme Court of Pennsylvania held to be valid; the same judge who pronounced the opinion in Parker vs. The Commonwealth, delivering the judgment of the Court in this, and asserting that it was not within the principle settled in the former ease* That settled nothing more than that the General Assembly could not delegate to the people a power to enact laws, by the exercise of the ballot, afi'ecting the property and