incompetent to refer to their decision the question whether an existing law should be repealed. If the one is "a plain surrender to the people of the law-making power," so also is the other.1 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.2 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 corpus during the late rebellion is one, and several others are referred to in the case In re Richard Oliver, 17 Wis. 681. It being conceded that the legislature possesses this general power, the only question here would seem to be, whether a vote of the people in favor of a law is to be excluded from the number of those future contingent events upon which it may be provided that it shall take effect. A sim. ilar question was before this court in a late case (State ex rel. Attorney-General v. O'Neill, Mayor, &c., 24 Wis. 149), and was very elaborately discussed. We came unanimously to the conclusion in that case that a provision for a vote of the electors of the city of Milwaukee in favor of an act of the legislature, before it should take effect, was a lawful contingency, and that the act was valid. That was a law affecting the people of Milwaukee particularly, while this was one affecting the people of the whole State. There the law was submitted to the voters of that city, and here it was submitted to those of the State at large. What is the difference between the two cases? It is manifest, on principle, that there cannot be any. The whole reasoning of that case goes to show that this act must be valid, and so it has been held in the best-considered cases, as will be seen by reference to that opinion. We are constrained to hold, therefore, that this act is and was in all respects valid from the time it took effect, in November, 1866; and consequently that there was no want of authority for the levy and collection of the taxes in question." This decision, though opposed to many others, appears to us entirely sound and reasonable. 1 Geebrick v. State, 5 Iowa, 491; Rice v. Foster, 4 Harr. 479; Parker v. Commonwealth, 6 Pa. St. 507. The case in 5 Iowa was followed in State v. Weir, 33 Iowa, 134; s. c. 11 Am. Rep. 115. 2 State v. Parker, 26 Vt. 357. The act under consideration in that case was, by its terms, to take effect on the second Tuesday of March after its passage, unless the people to whose votes it was submitted should declare against it, in which case it should take effect in the following December. The case was distinguished from Barto v. Himrod, 8 N. Y. 483, and the act sustained. At the same time the court express their dissent from the reasoning upon which the New York case rests. In People v. Collins, 3 Mich. 343, the court was equally divided in a case similar to that in Vermont, except that in the Michigan case the law which was passed and submitted to the people in 1853 was not to go into effect until 1870, if the vote of the people was against it. 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 be 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. It is not to be denied, however, that there is considerable authority against the right of legislative delegation in these cases. The legislature of Delaware, in 1847, passed an act to authorize the citizens of the several counties of the State to decide by ballot whether the license to retail intoxicating liquors should be permitted. By this act a general election was to be held; and if a majority of votes in any county should be cast against license, it should not thereafter be lawful for any person to retail intoxicat 64 1 In New Hampshire an act was passed declaring bowling-alleys, situate within twenty-five rods of a dwelling-house, nuisances, but the statute was to be in force only in those towns in which it should be adopted in town meeting. In State v. Noyes, 10 Fost. 279, this act was held to be constitutional. 'Assuming," say the court," that the legislature has the right to confer the power of local regulation upon cities and towns, that is, the power to pass ordinances and by-laws, in such terms and with such provisions, in the classes of cases to which the power extends, as they may think proper, it seems to us hardly possible seriously to contend that the legislature may not confer the power to adopt within such municipality a law drawn up and framed by themselves. If they may pass a law authorizing towns to make ordinances to punish the keeping of billiard-rooms, bowlingalleys, and other places of gambling, they may surely pass laws to punish the same acts, subject to be adopted by the town before they can be of force in it." And it seems to us difficult to answer this reasoning, if it be confined to such laws as fall within the proper province of local government, and which are therefore usually referred to the judgment of the municipal authorities or their constituency. A similar question arose in Smith v. Village of Adrian, 1 Mich. 495, but was not decided. In Bank of Chenango v. Brown, 26 N. Y. 467, it was held competent to authorize the electors of an incorporated village to determine for themselves what sections of the general act for the incorporation of villages should apply to their village. An act empowering a city, where the legal voters authorize it, to allow Sunday sales of refreshments, is valid. State v. Francis, 95 Mo. 44. The operation of a park act may be left to the vote of a city. State v. District Court, 33 Minn. 235. So, of a law vesting control of streets in aldermen instead of street commissioners. State v. Hoagland, 16 Atl. Rep. 166 (N. J.). So of a law creating a new county. People v. McFadden, 22 Pac. Rep. 851 (Cal.). Whether an election to determine upon putting a law in operation shall be called, may be left to the discretion of officers. Johnson v. Martin, 12 S. W. Rep. 321 (Tex.). See further, People v. Salomon, 51 Ill. 87; Burgess v. Pue, 2 Gill, 11; Hammond v. Haines, 25 Md. 541. ing liquors within such county; but if the majority should be cast in favor of license, then licenses might be granted in the county so voting, in the manner and under the regulations in said act prescribed. The Court of Errors and Appeals of that State held this act void, as an attempted delegation of the trust to make laws, and upon the same reasons which support the cases before cited, where acts have been held void which referred to the people of the State for approval a law of general application.1 A like decision was made near the same time by the Supreme Court of Pennsylvania, followed afterwards by others in Iowa, Indiana, and California. But the decision in Pennsylvania was afterwards overruled on full discussion and consideration, and that in Indiana must, as we think, be deemed overruled also. In other States a like delegation of authority to the local electors has generally been sustained. 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.8 Irrepealable Laws. Similar reasons to those which forbid the legislative department of the State from delegating its authority will also forbid its pass1 Rice v. Foster, 4 Harr. 479. 2 Parker v. Commonwealth, 6 Pa. St. 507. See Commonwealth v. McWilliams, 11 Pa. St. 61. 3 Geebrick v. State, 5 Iowa, 491. See State v. Weir, 33 Iowa, 134; s. c. 11 Am. Rep. 115. Maize v. State, 4 Ind. 342; Meshmeier v. State, 11 Ind. 482. See also State v. Field, 17 Mo. 529; Lammert v. Lidwell, 62 Mo. 188; State v. Copeland, 3 R. I. 33. Ex parte Wall, 48 Cal. 279; s. c. 17 Am. Rep. 425. Locke's Appeal, 72 Pa. St. 491; s. c. 13 Am. Rep. 716. 7 Groesch v. State, 42 Ind. 547. 8 Commonwealth v. Bennett, 108 Mass. 27; Commonwealth r. Dean. 110 Mass. 357; Commonwealth v. Fredericks, 119 Mass. 199; Bancroft v. Dumas, 21 Vt. 456; Slinger v. Henneman, 38 Wis. 504; Erlinger v. Boneau, 51 Ill. 94; Gunnars sohn v. Sterling, 92 Ill. 569; State v. Morris County, 36 N. J. 72; s. c. 13 Am. Rep. 422; State v. Circuit Court, 15 Atl. Rep. 274 (N. J.); State v. Wilcox, 42 Conn. 364; s. c. 19 Am. Rep. 536; Fell v. State, 42 Md. 71; s. c. 20 Am. Rep. 83; State v. Cooke, 24 Minn. 247; s. c. 31 Am. Rep. 344; Cain v. Commissioners, 86 N. C. 8; Boyd v. Bryant, 35 Ark. 69; s. c. 37 Am. Rep. 6; Savage v. Com., 5 S. E. Rep. 565 (Va.); Caldwell . Barrett, 73 Ga. 604; Ex parte Kennedy, 23 Tex. App. 77; Schulherr v. Bordeaux, 64 Miss. 59; State v. Pond, 93 Mo. 606; Terr. v. O'Connor, 41 N. W. Rep. 746 (Dak.). Local option, as applied to the sale of liquors, has also been sustained in Canada. Mayor, &c. v. The Queen, 8 Can. Sup. Ct. 505. But the matter cannot be left to an election precinct. It must be submitted to a municipal corporation. Thornton v. Territory, 17 Pac. Rep. 896 (Wash.). ing any irrepealable law. The constitution, in conferring the legislative authority, has prescribed to its exercise any limitations which the people saw fit to impose; and no other power than the people can superadd other limitations. To say that the legislature may pass irrepealable laws, is to say that it may alter the very constitution from which it derives its authority; since, in so far as one legislature could bind a subsequent one by its enactments, it could in the same degree reduce the legislative power of its successors; and the process might be repeated, until, one by one, the subjects of legislation would be excluded altogether from their control, and the constitutional provision that the legislative power shall be vested in two houses would be to a greater or less degree rendered ineffectual.1 "Acts of Parliament," says Blackstone," derogatory from the power of subsequent Parliaments, bind not; so the statute 11 Henry VII. c. 1, which directs that no person for assisting a king de facto shall be attainted of treason by act of Parliament or otherwise, is held to be good only as to common prosecution for high treason, but it will not restrain nor clog any parliamentary attainder. Because the legislature, being in truth the sovereign power, is always of equal, always of absolute authority; it acknowledges no superior upon earth, which the prior legislature must have been if its ordinances could bind a subsequent Parliament. And upon the same principle, Cicero, in his letters to Atticus, treats with a proper contempt these restraining clauses which endeavor to tie up the hands of succeeding legislatures. When you repeal the law itself,' says he,' you at the same time repeal the prohibitory clause which guards against such repeal.' ” 2 Although this reasoning does not in all its particulars apply to the American legislatures, the principle applicable in each case is the same. There is a modification of the principle, however, by an important provision of the Constitution of the United States, 1 "Unlike the decision of a court, a legislative act does not bind a subsequent legislature. Each body possesses the same power, and has a right to exercise the same discretion. Measures, though often rejected, may receive legislative sanction. There is no mode by which a legislative act can be made irrepealable, except it assume the form and substance of a contract. If in any line of legislation a permanent character could be given to acts, the most injurious consequences would result to the country. Its policy would become fixed and unchangeable on great national interests, which might retard, if not destroy, the public prosperity. Every forbidding the States passing any laws impairing the obligation of contracts. Legislative acts are sometimes in substance contracts between the State and the party who is to derive some right under them, and they are not the less under the protection of the clause quoted because of having assumed this form. Charters of incorporation, except those of a municipal character, - and which, as we have already seen, create mere agencies of government, are held to be contracts between the State and the corporators, and not subject to modification or change by the act of the State alone, except as may be authorized by the terms of the charters themselves. And it now seems to be settled, by the decisions of the Supreme Court of the United States, that a State, by contract to that effect, based upon a consideration, may exempt the property of an individual or corporation from taxation for any specified period, or even permanently. And it is also settled by the same decisions, that where a charter, containing an exemption from taxes, or an agreement that the taxes shall be to a specified amount only, is accepted by the corporators, the exemption is presumed to be upon sufficient consideration, and consequently binding upon the State.2 1 Dartmouth College v. Woodward, 4 Wheat. 518; Planters' Bank v. Sharp, 6 How. 301. 2 Gordon v. Appeal Tax Court, 3 How. 133; New Jersey v. Wilson, 7 Cranch, 164; Piqua Branch Bank v. Knoop, 16 How. 369; Ohio Life Ins. and Trust Co. v. Debolt, 16 How. 416, 432; Dodge v. Woolsey, 18 How. 331; Mechanics' and Traders' Bank v. Debolt, 18 How. 381; Jefferson Branch Bank v. Skelly, 1 Black, 436; Erie R. R. Co. v. Pennsylvania, 21 Wall. 492. See also Hunsaker v. Wright, 30 Ill. 146; Morgan v. Cree, 46 Vt. 773; Spooner v. McConnell, 1 McLean, 347; post, p. 338. The right of a State legislature to grant away the right of taxation, which is one of the essential attributes of sovereignty, has been strenuously denied. See Debolt v. Ohio Life Ins. and Trust Co., 1 Ohio St. 563; Mechanics' and Traders' Bank v. Debolt, 1 Ohio St. 591; Brewster v. Hough, 10 N. H. 138; Mott v. Pennsylvania Railroad Co., 30 Pa. St. 9. And see Thorpe v. Rutland and B. Railroad Co, 27 Vt. 140; post, p. 337 and note. In Brick Presbyterian Church v. Mayor, &c. of New York, 5 Cow. 538, it was held that a municipal corporation had no power, as a party, to make a con tract which should control or embarrass its discharge of legislative duties. And see post, p. 250. In Coats v. Mayor, &c. of New York, 7 Cow. 585, it was decided that though a municipal corporation grant lands for cemetery purposes, and covenant for their quiet enjoyment, it will not thereby be estopped afterwards to forbid by by-law the use of the land for that purpose, when such use becomes or is likely to become a nuisance. In Stone v. Mississippi, 101 U. S. 814, 820, Chief Justice Waite says: "The power of governing is a trust committed by the people to the government, no part of which can be granted away. The people, in their sovereign capacity, have established their agencies for the preservation of the public health and the public morals, and the protection of public and private rights. These several agencies can govern according to their discretion, if within the scope of their general authority, while in power; but they cannot give away nor sell the discretion of those that are to come after them, in respect to matters the government of which, from the very nature of things, must vary with varying circumstances." See also, on the same subject, Morgan v. Smith, 4 Minn. |