SUPREME COURT OF THE TERRITORY OF WASHINGTON
January 31, 1888, Decided
ERROR to the District Court holding terms at Snohomish.
Third District.
The plaintiff in error was indicted for selling intoxicating
liquors in Snohomish precinct, in Snohomish county, in
violation of the local option act, said precinct, at an
election held therein under the provisions of that law,
having by a majority of its legal voters declared against
licensing the sale of liquors in that precinct. An agreed
statement of facts was filed by the parties, wherein the
defendant admitted the facts charged in the indictment,
whereupon the court adjudged him guilty. A motion in arrest
of judgment was made, on the ground that the local option
act was unconstitutional and invalid, which motion was
overruled, and judgment for fine rendered against the
defendant, from which judgment the defendant appealed.
Court: Decision reversed.
Syllabus: 1. CONSTITUTIONAL LAW--LOCAL OPTION ACT--ELECTION
PRECINCTS--LEGISLATIVE POWER, DELEGATION OF.--The act of the
legislative assembly of Washington Territory, approved
January 25, 1886, and generally known as the local option
act (Sess. Laws 1886, p. 31), attempts to delegate
legislative power to each of the various election precincts
of the territory, and is therefore unconstitutional and
void.
2. CONSTITUTIONAL LAW--MUNICIPAL CORPORATIONS--INTOXICATING
LIQUORS, SALE OF.--The legislature of the territory has
power to grant to municipal corporations the right to
regulate, restrain, or license the sale of intoxicating
liquors within their corporate limits, and such grant of
power to municipal corporations is valid, and will be upheld
by the courts. But an election precinct, under the laws of
this territory, is not a municipal corporation within that
sense, and is therefore incapable of receiving such grant of
power or of exercising the same. Per JONES, C. J.
Counsel: Messrs. Metcalfe & Rochester, and Messrs. Lewis &
Gilman, for the Plaintiff in Error.
Election precincts are created by the power vested in the
county commissioners, and are neither a legal political
subdivision of the territory, defined by law, nor a public
corporation, nor a quasi corporation. (Sec. 3067, Code.)
They are not created by the statute. Their boundaries are
not defined by law, and consequently not even a quasi
corporation; for a quasi corporation must be created by the
legislature, and subject, always, to legislative control.
The sovereign authority only is competent to create a
corporation. ( McCulloch v. State of Maryland, 4 Wheat. 316,
424; Atkinson v. Marietta etc. R. R. Co., 15 Ohio St. 21;
McPherson v. Foster, 43 Iowa, 48, 22 Am. Rep. 215.) Election
precincts are not involuntary quasi corporations, because
not created by competent authority. The electors resident in
the election precincts in Washington Territory have no
attribute of individuality as a mass. They are no
distinctive part of the governmental machinery. Even so
important a legal subdivision of a state as a county is but
a quasi corporation, and is invested with limited corporate
powers. (1 Dillon's Municipal Corporations, secs. 22, 23;
Finch v. Board etc., 30 Ohio, 37; People v. Ingersoll, 58 N.
Y. 1, 17 Am. Rep. 178; Ray Co. v. Bentley, 49 Mo. 236;
Goodnow v. Commissioners etc., 11 Minn. 31.) Counties,
cities, and towns are municipal corporations, and are parts
of the machinery for carrying on the affairs of state, and
are usually invested with certain subordinate legislative
powers to facilitate the due administration of their own
internal affairs, and to promote the general welfare of the
community, to exercise police powers. But even they have no
inherent jurisdiction to make laws or to adopt governmental
regulations. They cannot exercise any powers of this
description, except such as are expressly or impliedly
derived from their charters or by statute. ( Laramie Co. v.
Albany Co. et al., 92 U.S. 308; Johnson v. Louisville, 11
Bush. 527; Wallace v. San Jose, 29 Cal. 181; Leavenworth v.
Norton, 1 Kan. 432; Alley v. Inhabitants etc., 53 Me., 446;
Booth v. Town of Woodbury, 32 Conn. 118.) The legislature
has no right to delegate to the people living within certain
territorial limits who have no distinctive political
character or governmental organization. ( Ex parte Wall, 48
Cal. 321.) The operation of the act depends on the vote of
the qualified voters of an election precinct; and an
election precinct is not a legally defined body or part of
the territory, inasmuch as the fixing of the boundaries of
the election precinct is delegated by the Code to the county
commissioners; while the fixing of the boundaries of
municipal or quasi corporations is a function of legislative
authority which the legislature has no constitutional power
to delegate. (The People v. Parks et al., 8 Pac. Coast Law
Jour. 219, 231, 233, 237; Prince George's Co. v.
Bladensburg, 9 Rep. 406.) Police powers can only be
conferred or delegated by the legislature on municipal or
public corporations, or quasi corporations, having
prescribed and defined boundaries, either theretofore known
and recognized by, or then created by, the sovereign
law-giving power. Even the extent of the police power
exercised by the local governments of municipal corporations
depends upon the limitations of their charters. (Teideman's
Lim. Police Pow., sec. 212, p. 638; 1 Dillon's Municipal
Corporations, sec. 89, p. 115.)
Mr. J. T. Ronald, Prosecuting Attorney, for the Defendant in
Error.
The relation of election precincts to a county is like
that of a ward to a city. ( Davenport v. Dodge Co., 105 U.S.
241; Nemaha Co. v. Frank, 120 U.S. 46; Blair v. Cuming Co.,
111 U.S. 363.) The only question submitted by the local
option act to the vote of the electors in the precincts is,
whether or not the county commissioners shall exercise the
power of granting licenses in the particular precinct. (
Bank of Chenango v. Brown, 26 N. Y. 467; Bank of Rome v.
Village of Rome, 18 N. Y. 38, 44.) The question is one
relating to a local regulation which it is competent for the
legislature to submit to the people of the particular
district to be affected. ( Clark v. City of Rochester, 28 N.
Y. 605.) The question of license has been reserved for the
action of the board of commissioners, who are the officers
of the county--an organized body. The legislature has the
power to make the action of the board of commissioners, in
regard to any election district, dependent upon the voters
of that district. The fact that a license is to be issued by
county officers, instead of by the precinct officers, does
not change the power of the legislature of submitting the
question of license to the voters of the election precinct
affected thereby. This principle has been recognized in
numerous cases in regard to the issuing of railroad bonds by
towns in the state of New York. The court holds that the
legislature has power to bind the minority in any locality,
saying: "For if it may bind one citizen, without his
consent, it may bind all; the rights and immunities of all
being no more beyond the legislative power than those of
each individual. It therefore rests in the legislative
discretion to impose any conditions it may think the public
welfare requires to the exercise of such a power." ( Town of
Duanesburgh v. Jenkins, 57 N. Y. 190; Ralls Co. Court v. U.
S., 105 U.S. 737.) In this territory election precincts are
a distinct subdivision of the county, authorized by statute.
Justices of the peace and constables are elected by the
voters of such precincts. The local option law submits the
question of license or not to the voters of the different
precincts in the county, and provides that incorporated
towns or cities shall be considered a precinct for the
purposes of the act.
Judge(s) Mr. Justice LANGFORD delivered the opinion of the
court. ALLYN, J., concurred. TURNER, J., dissented. Mr.
Chief Justice JONES concurring.
Opinion By: LANGFORD
Mr. Justice LANGFORD delivered the opinion of the court.
The question before the court is, whether the "local
option law" (so called) is void under the provisions of the
organic act and the constitution of the United States.
The statute in force at the time the said "local option
law" was passed, in terms, prohibited all retail sale of
spirituous liquors. The local option act provides that a
vote in each precinct may do the same. In this there is no
proposed change. The former act provides a penalty for
selling; so does the latter.
Each act provides a mode by which the penalty may be
avoided, which operates under each act as an exemption from
the prohibitory clause and the penalty. The former act
exempts from the prohibition those who prove moral
character, give bond, and, by paying a penalty, procure a
license.
The "local option act" does not exempt this class, but
exempts from the prohibition druggists alone.
There is also in the local option act a provision to the
effect that even druggists shall not sell liquor for a
beverage; but this is more formal than real, as liquor is so
sold by druggists, or others, for the profits of the sale,
with no control of the use after the sale is made, whether
it be made for medicine or beverage. The purpose of the
drunkard, until he has drank, and even then, is not
susceptible of proof. If a man says he drinks for medicine,
there is no way to disprove it.
Thus we see that the essential difference between the
so-called license law and the local option act is, that the
former permits sale by all who conform to certain
provisions, and the latter permits only druggists to sell.
The local option act narrows the class of persons whom the
former act permits to sell, and thus far purports to repeal
the former statute. The former statute will prevail except
by petition and vote. The law is repealed in the district
voting, and this by the operation of the vote.
It is well, when considering an act like this, to recur to
the definition of law. Law is (1) a rule of action, (2)
prescribed by the supreme power of the state, (3) commanding
what is right and prohibiting what is wrong.
First: It is a rule of action. A rule of action does not
relate to one act alone, but to all of a class of actions.
An order to perform any particular action is a mandate or
decree, but not a law. This rule of action is general and
applies to all of a class. This rule must be prescribed, or
it is not a law; this, as to statute law, means that as
written it must be approved by the legislature. The law must
command; a mere request or permission is not a law. If the
local option act conforms to all these three requisites, it
is a law; if it fails to conform to one or more, it is not a
law.
First, then, let us examine the act, to perceive what, if
anything, it commands to be done. It grants the power to
petition and to vote, but it commands neither; and hence it,
in this respect, is not a law. Strike this grant of power,
which we have seen is not a law nor any part of a law, out,
and there is nothing left in the act which can have any
effect. The act merely grants power to certain persons by a
petition and vote to repeal a statute of the territory. If
the power is thus granted to repeal the statute in each
precinct wherein the people elect, then the repeal takes
effect solely by those citizens electing to create a rule
and a penalty. The rule and the penalty are the only parts
of the statute which purport to be mandatory or law, and
these have all the effect they do have, not by virtue of
legislative act, but by virtue of petition and vote.
The statute is repealed in each precinct voting "yes"; in
others it is not repealed; which clearly shows that the vote
repeals the law. Is this repeal prescribed? if so, where
will this prescription be found? Is this repeal in any
precinct written anywhere? if so, where? Whether the statute
is repealed in any precinct can only be determined by parol
evidence. The courts take judicial knowledge of laws, but to
find the rule of action and the penalty in any precinct, the
court can resort neither to judicial knowledge nor any
statute, but must try the question of whether the law exists
as a fact, by evidence.
It will be seen that the local option act lacks one of the
essential elements; it is not prescribed by the supreme
power of the state; in fact, it is not prescribed at all. If
it exists, it exists by virtue of the petition and vote
alone, and is to be found by proving the petition, the order
of the board of commissioners, the posting of election
notices, and the majority vote. It has been said that the
law rules the vote; and not the vote, the law. This
misapprehension arises from misnaming the grant to vote a
law, though it is not mandatory.
It has been said that the law is in force from the date
of its passage, but takes effect only upon the happening of
the contingency of a petition and election resulting in a
certain way. If this be the contingency, then a law can be
made to go into effect at the option of those subject
thereto. If a law goes into effect only at the option of
those subject thereto, then it is not mandatory.
Can that be law which is not mandatory, and from the terms
of which it cannot be discovered whether the rule of action
exists, or whether there exists a penalty for the violation
of this rule?
If a man should go to any precinct in the territory, and
ask whether a man, according to the law of the land, might,
by making proof and payment, set up a business of selling
spirits, or whether druggists alone might make such sales,
he would be shown the local option statute.
This giving no information, he would inquire whether there
had been any election; learning that there had, he would
inquire whether or not it was legal; and as this question
involves the investigation of each step which must be a
condition precedent to its legality, he would have to
investigate both the facts as to what had been done and the
conditions of the grant of power establishing the rule.
These uncertainties, as to whether a man would be subject to
fine or imprisonment, are not the qualities of law, but
rather the qualities of anarchy.
Every state constitution, and our organic act, grant the
power to make laws to the legislature alone, and that this
power cannot be delegated is conceded by every decision of
every court. This being conceded, it has also been conceded
that towns and cities may be granted the power to make laws
for the inhabitants thereof. These two well settled
principles appear to be in conflict, but in reality are not
so.
The laws of the city or town are by-laws and not state
laws; the laws of the state are not by-laws, but state laws.
If a man performs an act which violates an ordinance or
by-law, and the same act is a violation of state law, he can
be punished twice for the same act; once as a violator of
the laws of one government, and again as a violator of the
laws of the other government. In this respect the laws of
the city or town are as distinct from the laws of the state
as are the laws of the several states from the laws of the
United States. Police powers are not delegated to cities or
towns, but are or may be granted.
The grant is an act of the legislature, but not a law
thereof.
The granting act, whether in one or many, is merely a
power granted to and forming a government, containing, it
may be, many conditions precedent to the right to exercise
the power, but the charters are never rules of action
prescribed for the government of the citizens of the state,
as such.
When the power to make by-laws is granted, the power is as
to some subject matter, and history has not shown a single
instance wherein the power to make by-laws on such subjects
is also a power to repeal any ordinance as well as make it.
In fact, the power to make by-laws, when given, creates a
local legislature, as free to act within the scope of the
power granted as is the state legislature to act upon the
subject matter which the state constitution grants to it.
These by-laws must not only be passed by the local
legislative body, but are of no force until they are duly
authenticated and recorded. They, like other laws, must be
prescribed before they have any effect, and be thus made
certain in a form in which they can be read by subjects who
are compelled to obey them.
Towns and cities are governments within the government;
adding something to, but not taking anything from, the state
government; not acting as the delegate of the state, but
acting "by virtue of a power granted by the state." Towns
and cities can in no manner enact, or repeal, or affect
state laws. These city or town legislators meet, discuss,
amend, enact, and repeal ordinances and the by-laws. Acts
made are prescribed in the town or city record, so that all
subject thereto may know the exact terms which they are
bound to obey. The act of a precinct is not the act of a
local legislature, in that the power granted to the precinct
is not the power to pass by-laws upon a particular subject
matter, and repeal or modify such by-laws. There is no
provision made as to how the by-law, when passed, shall be
authenticated or prescribed. In fact, the act does not
purport to grant the right to make a by-law, but attempts to
give power to cause a state law to exist. It is an attempt
to delegate the power to make a state law exist, without its
being prescribed at all, or without its being accepted or
passed as a by-law by the local legislature.
From the above contrast between the granted power to a
local legislature to make and amend by-laws, and this
statute, it will be seen that the former is a quasi
government over the subject matter granted, while the latter
is not, but is a pretended power to cause one state law to
live, which was, previous to the local action, dead. The
local option statute attempts to delegate power to the
voters of a precinct to make a state law; the power granted
to towns or cities is merely to make by-laws. The local
option act is clearly, therefore, opposed to the rule that
the power to make state laws cannot be delegated; the
creation of local city or town governments, with power to
make by-laws, not being a law, but a grant, is not subject
to the same objection.
So, while we think all the decisions which hold that
police power may be granted to towns and cities to pass
by-laws to prohibit or regulate the sale of spirits are
entirely inapplicable to the statute we are now considering,
the validity of a power to make by-laws upon prohibition in
no way proves or tends to prove that an election to make a
state law exist is valid. Indeed, the word "election," until
quite lately, when applied to political subjects, never
denoted the choice of a principle, or a rule of action, but
merely a choice of persons. To make the word "election" mean
the choice of a state law, is to invent for a word a new
meaning, which it never previously had.
There are very few decisions which militate against the
above very obvious distinction. That a city or town may
accept or reject a statutory proposal of a grant and
exercise of local power, is not an exception, for, as we
have seen, the power lies in the grant; and it is not
supposed that any set of persons are bound to accept or use
a grant which they refuse to accept, although everyone must
obey a state law, whether he consents or does not consent.
The only exception is where the inhabitants of a county
have been permitted to vote whether there shall be fence
laws within its borders. It is impossible to say what the
nature of those counties was, whether they had the power to
make by-laws or not. If they had not the power to make
by-laws, then the decisions were in favor of a delegation of
power to make state laws, which is not only opposed to the
vast weight of authority, but also to fundamental principles
of our government. There are a number of other decisions
which are cited as being in favor of the delegation of the
power to make state laws. There are decisions which uphold
statutes which provide that the vote of the people in a
certain locality may locate a county line, county buildings,
county roads, or the like. By an examination of all the
statutes thus held valid, it will be found that none of them
attempt to authorize a vote to establish a rule of action.
To exactly locate anything is not a rule of action, inasmuch
as it is no rule at all, but is a specific act; it is an act
as to one particular thing, and concerning which an act of
the legislature could not of itself be effective. The most
that a specific act of the legislature could do, would be to
adopt a previous survey or landmarks and courses. To locate
anything, administrative officers are almost always
required, and the act to be performed is not to make rules
of action, not to impose penalties, but to do a particular
act--to choose places of location.
As the board of county commissioners may locate and
establish roads, or as the commissioners of public buildings
may construct and locate buildings, so commissioners may be
authorized to construct a code of laws, but not to pass
them; none of these commissioners can enact a law.
It is established that a legislature may grant
administrative powers to whomsoever it pleases; and the act
of locating a county line, a county road, or a county
building, is essentially an administrative act. That the
legislature may make all the people of any locality
administrative officers, to perform such acts, must be
admitted by all. Statutes of this class empower whom they
choose to perform these administrative acts. The same acts
generally prescribe conditions precedent to the exercise of
the power; and they also contain rules of action to govern
these administrative officers. The part of the act which
conveys the power is in the nature of a grant; that part
which prescribes rules of action is the only part of the act
which is a law. Judges are but one kind of administrative
officers; an act creates their power as courts. This grant
of administrative power is not a delegation of power; for,
in the most part, the legislature itself cannot of itself do
what it empowers administrative officers to do. As, for
instance, it grants judicial power, but itself cannot
exercise it. Administrative officers are often empowered to
exercise discretion, as an assessor, a board of
commissioners, or the like, but never can any of these
prescribe rules of action.
Courts may prescribe rules of practice, but this is a
lawmaking power which clung to courts from their former
power to make laws as well as to adjudicate them, before the
strict line of division was made between legislative
functions and judicial functions. Then, the act of locating
county seats and county boundaries, being administrative in
its nature, may be granted to one man or all the men in any
locality; and such grant is not a delegation of power, much
less of legislative power. For these reasons, all decisions
applicable to such statutes are irrelevant to the case at
bar and can shed no light for the decision of this case.
Eliminate all the decisions in the two classes of cases
above mentioned, as to grants of power of government to
towns and cities and grants to administrative officers, and
there are hardly any which have been cited in favor of
sustaining this law which can be considered; for all, or
nearly all, apply to one or the other of these two classes.
We see, therefore, that the fixed principle that
legislative power cannot be delegated has no well-considered
decision opposed to it, and very few decisions
ill-considered opposed to it, while it is supported by a
host of well-considered opinions.
The science of government, so far as it is a machine for
the protection of the natural rights of the individual, is
of comparatively late discovery. All the ancient
governments, and most modern ones, have been constructed
upon the theory that sovereignty cannot be divided, but that
executive, judicial, administrative, and legislative
functions are all united in one body. The division of these
functions, so that different bodies were each confined to
the exercise of one, and no other body could interfere with
it, is an invention to protect private right. No man's
rights can be abated or impaired, except three different
bodies, each acting separately within its functions, have
agreed to it.
Ancient democracies were like a mob or vigilance
committee; they prescribed few laws, but, upon the impulse
of the moment, deprived any citizen of his country, his
property, or his life. The ancient German tribes who
conquered England thus acted. As civilization advanced and
the tribes were united into a kingdom, gradually it became a
rule that no man should suffer in life, limb, or body,
except for a violation of prescribed law. Indeed, the
separation of power into different co-ordinate departments
and an independent judiciary were not well established; and
for this reason bills of attainder for past acts and other
oppression of the individual, still prevailed. Even in New
England, the towns simulated the ancient absolute democratic
form of the ancient German tribes. As people became
enlightened they sought to limit the powers of government by
establishing constitutions, which limited, defined, and
separated the powers of government; and this was done to
protect the individual citizen in his person and property.
By this system the legislative department was separated
from each of the other departments, and its functions
restricted to making laws; and it was prohibited from
administering or enforcing them. This effectually protected
the citizens from any laws which had not been previously
written and enacted, except common law, which was prescribed
by the decisions of the courts.
The judicial department was limited to deciding individual
cases according to the law already prescribed. The
legislative action was restrained, first, by express
prohibition; second, by being forced in each house to have
three readings of bills; third, by the separate agreement to
the exact words of the statute by the three distinct
branches of the legislature; fourth, by a court which should
decide whether the act was within the constitutional power
of the legislature.
The tendency of bodies of men is to tyraunize over the
weaker or the minority. These checks were made to prevent
this tendency. Learning ancient acts of government gives
little light as to this system; it is the best that has been
invented for human happiness.
That laws shall exist which are not plainly in exact words
prescribed, so that an individual may know them, which are
not passed by the deliberation of each of the three
legislative departments, each member in each branch sworn to
exercise his best judgment for the people upon his own
responsibility, is directly opposed to every principle of
the American or any good government.
The local option act attempts to violate these principles.
The legislator, in this act, has sought to escape the
responsibility of his trust by delegating power to an
absolute democracy, who neither deliberate in three
different bodies nor have any mode of prescribing their
action or their laws. If the legislature can delegate its
powers, so may the executive and judiciary; and each having
resigned its trust, the government is revolutionized into an
absolute democracy, unchecked in its impulses. We shall have
abandoned all the salutary checks which alone protect
private right, and each man holds his life, liberty, and
property at the mercy of the uncontrolled and hasty impulse
of local majorities. To prevent such calamities the
judiciary was created and made independent, and sworn to
protect each individual's rights in so far as he has not, by
violating prescribed law, forfeited them.
Let the decision below be reversed.
ALLYN, J., concurred.
TURNER, J., dissented.
Mr. Chief Justice JONES delivered the following concurring
opinion:
The act in question purports by its title to be one "to
prohibit the sale of intoxicating liquors in the several
precincts of Washington Territory, whenever a majority of
the legal voters of any such precincts, at an election held
for that purpose, vote in favor of such prohibition."
The mere title imports an anomaly, and requires the
exercise of strong presumption to sustain anything that may
follow it. But as every reasonable intendment should be
exercised in favor of the validity of an act of the
legislature, we should not, unless compelled by the dictates
of sound reason, declare them invalid.
Passing by mere quibbles and fine distinctions, it must be
conceded that the legislature has power, unless deprived of
it by the supreme law of the land, to grant the power to
municipal corporations to regulate their own internal local
affairs as shall conduce to their own welfare and security,
and it is no longer an open question in the United States
that the several states and territories may make such grants
relating to the licensing, or not licensing, the sale of
intoxicating liquors, and all experience has proven that
such "local option" laws are a wise, and perhaps the very
best, system yet adopted to regulate and restrain the
traffic in intoxicating beverages.
In this act, however, there is no municipal corporation
designated capable of receiving such grant or exercising the
power mentioned in the act.
A precinct, under our system, has no existence in that
sense, and in the only instances where the grant might
otherwise have been sustained, the act in question very
carefully disqualified those municipal corporations from
exercising the power or granting it to them.
I have no doubt whatever that such a grant may be given to
a city, or incorporated town, or village, or to a county,
but instead of making such grant, the act studiously follows
its title by declaring in section 8 that "each incorporated
city and town in this territory, for the purposes of this
act, shall be deemed to be but one election precinct; but if
any outlying territory, adjacent to a city or town, is not
included in any other precinct . . . . the electors residing
in such outlying and adjacent territory shall be deemed
electors of such city or town," and may vote on the
question, and constitute part of such city or town "for the
purposes of this act," thus imparting into every city or
town so situated an element not governed by the by-laws and
ordinances of the city or town, to make by-laws and
ordinances, or assist in making them, for the city or town,
and establishing a rule for the inhabitants of the municipal
corporation, of which they are not members.
As already said, the ground on which these grants are
upheld is that of a local government being empowered to make
its own regulations on this matter within their own limits,
and it seems to me a more flagrant violation of that theory
could not well be imagined.
It is in keeping with this idea that the board of county
commissioners of the county, for the convenience of the
electors "mentioned in this section," may establish polling
places in the city or town, and also in the "outlying and
adjacent territory" forming part of the "precinct" thus
created, and the same board shall, at the same time, call
the election in this "precinct," as provided in preceding
sections for other precincts, and "appoint the judges of
election for such polling places."
It is completely in harmony with this and the preceding
sections that section 9 should require the "county auditor
of the county," on the tenth day after any "election under
this act . . . . to notify two county officers, one of whom
shall be the judge of probate, to be present at the office
of the auditor," and proceed with the auditor, at a time to
be designated by him, "to canvass the votes" cast at such
election; and, after taking an oath, they shall "proceed to
canvass and tabulate such election returns" in a manner
stated, and to "such tabulated statement they shall affix
their certificates" to its truth.
It is then provided in the same section that the auditor
of the county shall record this statement and the
certificates in a book, and from that time it is "notice to
all the world" of its contents.
Section 10 then prohibits the city or town authorities in
this "precinct" from granting licenses for the sale of
liquors, if the election under this act "shall result in
favor of prohibition;" and according to the provisions of
section 11, all licenses before that time granted, and then
in force, are "terminated and at an end."
Section 14 prohibits the courts from inquiring into any
irregularities regarding the election, or any of the
proceedings leading up to it, in any prosecution instituted
"under this act or any other act, but the tabulated
statement of the canvassers provided for in section 9 of
this act shall be conclusive of the facts therein stated and
of all the proceedings antecedent thereto." After this, in
section 16 of the act, it is declared, "This act shall
control, in so far as it conflicts with any general or local
law already enacted, or hereafter to be enacted, and to the
extent of its provisions so conflicting, such general or
local law" (already enacted, or hereafter to be enacted)
"shall be deemed a modification of the same, unless in such
law the legislature expressly declare a contrary intent."
It would seem to be unnecessary to say, after this recital
of the provisions of the act itself, that it is in no sense
a grant of power to local municipal corporations to regulate
or prohibit the matter of sale or license of sale of
intoxicating liquors.
It is not a delegation of police power; it annihilates,
for the purposes of the act, the only corporate bodies
mentioned in it, and leaves the court, however disposed to
sustain a wise and well-considered local option law, no room
on which to base an opinion in its favor.
The judgment in this action must be reversed, with costs.