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another's land. The court said: "This action, which was originally employed in England to enable the lessee of lands, who had been ejected therefrom during his term, to recover damages therefor, was subsequently enlarged to enable him also to recover possession of the land. In later years it has been used both in England and in this country to try questions involving the title to real estate. Under our statute (§ 1247, R. L.) a person having claim to the seizin or possession of lands, tenements or hereditaments, is entitled to an action by writ of ejectment, and if he recover judgment it shall be for his damages and the seizin and possession of lands. 1 Chit. Pl. 188, defines the action as sustainable for the recovery of the possession of property upon which an entry might in point of fact be made, and of which the sheriff could deliver actual possession, and are not in general sustainable for the recovery of property which is not tangible. Tyler on Ejectment says (p. 37) that by the common law and the general rule ejectment will not lie for any thing whenever an entry cannot be made, or of which the sheriff cannot deliver possession; that is only maintainable for corporeal hereditaments; that any thing attached to the soil of which the sheriff can deliver possession may be recovered in this action. The action of ejectment will lie whenever a right of entry exists, and the interest is of such a character that it can be held and enjoyed, and possession thereof delivered in execution of a judgment for its recovery. Rowan v. Kelsey, 18 Barb. 484; Jackson v. Buel, 9 Johns: 298. The precise question in the case at bar is whether the projection of the side of defendant's roof over plaintiff's land, and sixteen feet above it, was an ouster of plaintiff's possession of his land, or a mere intrusion upon and interference with a right incident to his enjoyment of the land. Blackstone, bk. 2, p. 18, says: 'Land hath also, in its legal signification, an indefinite extent, upwards as well as downwards.

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The

word 'land' includes not only the face of the earth but every thing under it or over it.' The defendant's counsel claims that this action cannot be maintained because there was no intrusion upon the plaintiff's soil, but upon the air or space above it; while plaintiff's counsel claims the rule to be that the action will lie provided the intrusion extends over the line of plaintiff's premises, no matter how slight it is, nor how far above the soil. If the defendants had constructed their barn so that the foundation wall and the building itself had been wholly or in part over the line upon plaintiff's land, there could have been no question as to the plaintiff's right to maintain ejectment. But suppose they had built their foundation wall strictly upon their own land, but close to the line, and had projected the entire side of the building itself a few inches over the line, and above the plaintiff's land. Could the plaintiff maintain ejectment for the intrusion? would be because the intrusion was not upon the land itself, but the space above it. If he could not maintain ejectment he would be obliged to submit to the invasion, and only have his damages therefor.

But the law says the land is his even to the sky, and therefore he has a right to it, and should not be compelled to part with any portion of it upon the mere payment of damages by the trespasser. A case can readily be conceived where the projection of the side of a building, or even of bay-windows by one party over land of another, would be of so great inconvenience and injury to the latter that a judg ment for damages would afford no adequate compensation. But to carry the illustration one step further. One owner of a party or division wall places upon the top thereof a cornice about two and a half inches wide, which projects over the lot of the adjoining owner. Can the latter maintain ejectment? It was held in Vrooman v. Jackson, 6 Hun, 326, that he could not. It was also held in Aiken v. Benedict, 39 Barb. 400, that where one erects a building upon the line of his premises, so that the eaves or gutters project over the land of his neighbor, ejectment would not lie; that an action for a nuisance was the proper remedy,—the court in that case dissenting from the doctrine of Sherry v. Frecking, 4 Duer, 452. A similar case to the one last cited is that of Stedman v. Smith, 92 E. C. L. 1. There the plaintiff and defendant occupied adjacent plots of ground, divided by a wall of which they were the owners in common. There was a shed on defendant's ground contiguous to the wall, the roof of which rested on the top of the wall, across its whole width. Defendant took the coping stones off the top of the wall, heightened the wall, replaced the coping stones on the top, and built a wash-house contiguous to the wall where the shed had stood, the roof of the wash-house occupying the whole width of the top of the wall; and he set a stone into the wall, with the inscription on it stating that the wall and the land on which it stood belonged to him. It was held that on these facts a jury might find an actual ouster by defendant of plaintiff from the possession of the wall, which would constitute a trespass upon which plaintiff might maintain an action against defend

ant.

This case is in point, as showing a disseizin of the plaintiff's possession, rather than a mere infringement of a right. In McCourt v. Eckstein, 22 Wis. 153, it was held that where some of the stones of defendant's foundation wall projected eight inches over plaintiff's land, the plaintiff might treat this as a disseizin rather than a trespass, and might maintain ejectment. It clearly is not essential that the intruding object should actually rest upon the plaintiff's soil to entitle him to the action of ejectment, for this action will lie for an upper room in a dwelling-house or other building. As the law gives the owner of the land all above it, within its boundaries, we can find no reason, resting in principle, why, for the projection by one party of a portion of his building over the land of another, as in this If not, it case, he may not be liable in ejectment. The plaintiff was disseized of his land, and the defendant was in wrongful possession thereof by his projecting roof. Chamberlin v. Donahue, 41 Vt. 306. There is no more difficulty in describing in a declara

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tion a projection above the soil than one upon it, nor can there be any difficulty in the sheriff delivering possession to the plaintiff."

TRUSTS FOR CHARITY.

HE recent decision in the Tilden Will Case has

"Among such Roman Catholic charities, institutions, schools or churches in the city of New York," as a majority of the trustees should select, and in such sums as they should think proper, held valid. Power v. Cassidy, 79 N. Y. 602; S. C., 35 Am. Rep. 550.

"For the purchase and distribution of such religious books as they shall deem best," held valid. Simpson v. Welcome, 72 Me. 496; S. C., 39 Am. Rep.

Ted us to collect the following memoranda 349.

of recent adjudications involving construction of
charitable trusts:

"For the relief of the resident poor in a certain
village," held, valid. To "establish a school for
the education of young persons in the domestic and
useful arts," held valid. Webster v. Morris, 66
Wis. 466; S. C., 57 Am. Rep. 909.

"For such charitable and religious purposes and objects, and in such sums and in such manner as will in his judgment best promote the cause of Christ," held invalid. Maught v. Getzendanner, 65 Md. 527; S. C., 57 Am. Rep. 252.

"For the aid and support of those of my children and their descendants who may be destitute, and in the opinion of said trustees need such aid,” held invalid. Kent v. Dunham, 142 Mass. 216;

S. C., 56 Am. Rep. 667.

For testator's 66 next of kin who may be needy," held invalid. Fontaine's Adm'r v. Thompson's Adm'r, 89 Va. 229; S. C., 56 Am. Rep. 588.

“To be used at discretion by the selectmen of B. for the special benefit of the worthy, deserving, poor, white, American, Protestant, Democratic widows and orphans residing in B," held valid. Beardsley v. Selectmen of Bridgeport, 53 Conn. 489; S. C., 55 Am. Rep. 152.

"For such charitable institution for women in the city of Chicago as he may select," held, valid. Mills v. Newberry, 112 Ill. 123; S. C., 54 Am. Rep. 213.

For a home "for aged, respectable indigent women who have been residents of New London," held valid. Coit v. Comstock, 51 Conn. 352; S. C., 50 Am. Rep. 29.

"To be distributed by them (executors) after my decease among my relations, and for benevolent objects, in such sums as in their judgment shall be for the best," held valid. Goodale v. Mooney, 60 N. H. 528; S. C., 49 Am. Rep. 334.

For the suppression of the manufacture and sale of intoxicating liquors, held valid. Haines v. Allen, 78 Ind. 100; S. C., 41 Am. Rep. 555.

"To assist, relieve and benefit the poor and necessitous persons, and to assist and co-operate with any such charitable, religious, literary and scientific societies and associations, or any or either of them, as shall appear to the trustees best to deserve such assistance or co-operation," held valid. Suter v. Hilliard, 132 Mass. 412; S. C., 42 Am. Rep. 444.

For "the education of the scholars of poor people" of a certain county, held valid. Clement v. Hyde, 50 Vt. 716; S. C., 28 Am. Rep. 522.

To "distribute to such persons, societies or institutions as they shall consider most deserving," held void. Nichols v. Allen, 130 Mass. 211; S. C., 39 Am. Rep. 445.

"For any and all benevolent purposes that he may see fit," held void. Adye v. Smith, 44 Conn. 60; S. C., 26 Am. Rep. 424.

"Among such incorporated societies organized under the laws of the State of New York or the State of Maryland, having lawful authority to receive or hold funds upon permanent trusts for charitable or educational uses, as the trustees might select, and in such sums as they should determine, held void. Pritchard v. Thompson, 95 N. Y. 76; S. C., 48 Am. Rep. 9.

66

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To aid indigent young men " of a certain town "in fitting themselves for the evangelical ministry," held valid. Trustees, etc., v. Whitney, Conn. Sup. Ct., Jan. 26, 1887.

For the preaching of the gospel as taught by the people known as "Disciples of Christ," in Lorain county, in Birminghain, and at Berlin, Erie county, Ohio, held valid. Sowers v. Cyrenius, 39 Ohio St. 29; S. C., 45 Am. Rep. 418.

"To divide said remainder among such charitable institutions in the city of St. Louis as he (the trustee) shall deem worthy," held valid. Howe v. Wilson, 91 Mo. 45.

"All the rest and residue of my estate, including that which may lapse for any cause, I direct to be invested or loaned upon the best terms possible, so as to produce the largest income, and said income to be distributed among the worthy poor of La Salle, in such a manner as a Court of Chancery may direct," held valid. Hunt v. Fowler, Sup. Ct. Ill., June 17, 1887.

"For the relief of the most deserving poor of the city of Paterson aforesaid, forever, without regard to color or sex; but no person who is known to be intemperate, lazy, immoral or undeserving, to receive any benefit from the said fund," held valid. Hesketh v. Murphy, 26 N. J. Eq, 304.

"I do will and bequeath to the Methodist Episcopal Church South, to be applied to foreign missions, all of my property, real and personal, after the payment of my just debts, for their use and benefit exclusively," held valid. Kinney v. Kinney's Ex'r, Ky. Ct. App., Jan., 1888.

"I hereby authorize and empower my executrix to disburse and give (in furtherance of my wishes expressed to her at sundry times) from my estate, to such worthy persons and objects as she may

LOCAL OPTION.

deem proper, such sums as it is her pleasure thus to CONSTITUTIONAL LAW-HIGH LICENSE-
appropriate, not to exceed in all the total sum of
five thousand dollars," held invalid. Bristol v.
Bristol, 53 Conn. 242.

NEW JERSEY COURT OF ERRORS AND APPEALS, AU-
GUST 10, 1888. (Dissenting opinion.)

FOR prevailing opinion see ante, p. 348.

A bequest of all the residue of testator's estate to his executors, "to be applied by them for the pur- STATE V. CIRCUIT COURT OF GLOUCESTER COUNTY. pose of having prayers offered in a Roman Catholic church, to be by them selected, for the repose of my soul, and the souls of my family, and also the souls of all others who may be in purgatory," held invalid for the lack of a defined and ascertained beneficiary. Holland v. Alcock, N. Y. Ct. App., Feb. 7, 1888.

REED, J. (dissenting). I assume as my first proposition that the Legislature, to whose judgment, wis dom, and patriotism the high prerogative of legisla tion has been intrusted by the Constitution, cannot relieve itself of the responsibility by choosing other agencies upon which the power shall be devolved; nor can it substitute the judgment, wisdom, or patriotism of any other body for that to which alone the people have seen fit to confide this sovereign trust. Cooley Const. Lim. 116. This principle has become so firmly

A testator bequeathed a portion of his estate "to the poor of the city of Green Bay." There were no city paupers nor a poor fund in the city of Green Bay at the time of the testator's death. Held that the bequest was void for uncertainty. In re Hop-intrenched in the jurisprudence of this country, and per's Estate, Wis. Sup. Ct., Jan., 1888. This was put partly on the ground that the bequest was not

in trust.

Trustees in a will were empowered to spend a certain sum in erecting a church and parsonage, and were authorized, empowered and directed, upon completion thereof, to make a good and sufficient conveyance of said church, parsonage and grounds, and to turn over any balance of the said sum remaining in their hands to such organization or society, or organization of the Presbyterian church in the State of Maryland as they in their judgment might see fit and deem best, etc. A codicil provided:. "In explanation of the bequest to the church, in case it being carried out, I wish and desire it to be a branch of the Central Presbyterian Church," etc. Held valid. Crisp v. Crisp, 65

Md. 422.

A bequest to a town "for the worthy and unfortunate poor, and to save them from pauperism, to be funded, and one-half the income to be expended by a woman's aid society to be formed for that purpose," held valid, although the society was not formed. Dascomb v. Marston (Me.), 38 ALB. LAW JOUR. 239.

A trust by will of a residuum "to be disposed of by him for such charitable purposes as he shall think proper," held valid. Minot v. Baker, Mass. Sup. Jud. Ct., July 10, 1888, 38 ALB. LAW JOUR.

152.

"The residue of my estate to be kept in reserve for further consideration in the way of charitable purposes, in a liberal way, not to any particular creed or sect of religion," held invalid. Norcross' Admr's v. Murphy's Admr's, N. J. Ct. Er. & App., Aug. 7, 1888.

In Seda v. Huble, Iowa Sup. Ct., Oct. 9, 1888, 39 N. W. Rep. 685, it was held that a bequest of money "in trust for the benefit of the Catholic church on my farm in T. county," with a direction that the legatees "invest said money safely for the benefit of said church, and that service shall be held in said church for my soul yearly," is a bequest to a charitable use which is clearly identified, although the church is not incorporated.

has been so authoritatively recognized by the courts of this State, that discussion of it would be profitless.

City of Paterson v. Society, 24 N. J. Law, 385; State v.

Commissioners, 37 id. 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 inop erative, is a delegation of legislative power. Thi 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 future. The provision of the Legislature is constantly called into action to meet the condition 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 existperson or persons other than the Legislature, so as to ence of the law dependent upon the volition of some involve a delegation of the law-making 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 signed to take effect upon a contingent event are meet a contingent state of affairs, therefore all acts degood, 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 tion of legislative power, may, I think, be clearly and those based upon a contingency void as a delega stated. The first is a statute ordaining a fixed rule of civil conduct applying to a certain prescribed condi

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tion 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-matter whenever it arises; the other leaves it to another will to say whether the rule shall ever be a law. Now, take any of the instances of legislation dependent upon a contingency, which has received judicial sanction, and I am confident it can be placed in the former class. The case of The Aurora, 7 Cranch, 382, is a stock case of those who hold the contingency theory. Congress had passed a law forbidding the importations by England and France. One of the sections provided that the president, in case either England or France should revoke her 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. If the operation of the law had been left to the absolute discretion of the president, it would have been a delegation of legislative power. Judge Cooley has intimated another ground upon which he thought it might be possible to justify such a delegation of legislative function. It is this: that the submission of a statute to the people for their approval or disapproval is but a reference of the law-making power back to the course of all legislation. The suggestion is, that as the Legislature is the creature of the people, and is one of the agencies by which the people carry on representative government, therefore a submission of the propriety of a certain legislative policy is but the reference back to the principal by the agent. If there was force in this contention, it is perceived at once that it can only be true when the submission is made to the entire people of the State. It is the people of the State at large who adopt the organic law of the State, and a reference back to a portion of the people of the State is not a submission to the original source of legislative power. But indeed there is no analogy between the relation of principal and agent and the relation which the public bears toward the Legislature. The people, when they devolved upon the Legislature the legislative branch of the government, stripped themselves of this power so long as the Constitution stands. The people could have retained the character of a pure republic, in which the people enacted all rules of civil conduct. But instead they adopted a system of representative government for the very purpose of avoiding the difficulties which would result if legislation was left to the spasmodic, hasty, and often inconsiderate action of an unwieldy body, too large for deliberation, and too liable to transitory gusts of passion and prejudice for wise and sober legislative work. This is manifest from the character of the scheme which was adopted. It was deemed well enough to have in the Legislature those who represented the present sentiment of each locality of the State. So the House of Assembly was composed of a large membership elected annually. Then the Senate was organized, smaller in membership, and with terms long enough to ride the waves of popular feeling, and to view public feeling from a different standpoint. And again, the veto power was confided to the executive for the purpose of compelling more deliberation and thought in the framing of the statutes. Our government, like all of the State governments, was modelled after the National Legislature, and the object of the required concurrence of these three diversely-constituted bodies in that scheme of legislation is apparent

from the debates when this most important feature was before the Federal Convention of 1787. After the adoption of this well-matured scheme, it seems absurd to say that the very power which by the words of the Constitution is vested in the Senate and General Assembly, can be exercised by any other body. And it seems equally absurd to say, that so long as the Constitution exists in its present form, the Legislature can consent to its exercise in other than the constitutional method; for it seems clear that a withdrawal of legislative power, even by the consent of that branch of the government, and its resumption by the people, is pro tanto a suspension of the Constitution, and this can be done only by a new convention, or in the manner prescribed by the Constitution itself. Indeed, I am unable to perceive, if this constitutional provision can be disregarded because the law is adopted by the people who adopted the Constitution, why any law cannot by the same method be passed, regardless of any constitutional restriction. Ex post facto laws, laws creating lotteries, or granting divorces, by submission to the people would by the same line of reasoning become valid enactments, because the people who framed the Constitution had afterward approved the law, and so withdrawn the delegation of power from that body which alone is bound by the provisions of the Constitution.

Another view however upon which some judges have recognized the validity of laws referring to the people for approval or disapproval, is an outgrowth of the contingent theory. It is that the law is perfect when it comes from the hands of the Legislature, and derives its force from the enactment of the Legislature, and not from the vote of the people; that the vote is the result of the law, and not the law of the vote. I cannot see any plausibility in this notion, although it has been dressed in the subtlest phraseology. It is said that it is a perfect law when it comes from the hands of the Legislature. By this is meant that the law has the signature of the speaker of the house and of the president of the Senate, and perhaps of the governor. In this sense it is perfect. So is any statute which contravenes a constitutional prohibition, or a fundamental rule of public policy, and for that reason is absolutely void. If this statute, as I have already remarked, delegates to the people the power to do that which is legislation, then it does not matter how perfect its form; it is void. An act of this kind does leave to the people the final word upon the question of law or no law. The assertion that the vote is the result of the law, and not the law of the vote, is only a half truth. The vote is the result of the law, and the law is the result of the vote. Unless a scheme framed by the Legislature had provided for a vote, of course there would be no vote; so the vote grows out of the statute. But because the vote is, in this sense, a part of the scheme of legislation, it is no less true that all the people, as a legislative body in the last resort, is intrusted with the determination of the final question, law or no law. It adds to those bodies to which the Constitution confides the approval of law another body. It makes the validity of the framework which the Legislature has drafted to depend upon another mind than that of the Legislature itself. Both the Legislature and the people concur in the work; but that each contributed to the perfection of the statute makes none the less the act of each legislation. The leges regia in Rome under the kings were proposed by the king, approved by the senate, and confirmed by the populus in the comitia. It would hardly be contended that under this system of jurisprudence the people took no part in the legislation. Yet in what respect does it differ from the scheme erected by the Legislature whenever it submits the final question of the confirmation of a rule of

conduct, framed by itself, to the people. It matters not whence the power originates, whether from the Constitution of the State, as in Rome, or from a statute of the Legislature; the authority itself is a power of legislation. When this is conceded all is conceded; for if it has its source in the Legislature, then the inability of the Legislature to confer is admitted. The radical objection to legislation in this form is tersely stated by Chief Justice Ruggles in his opinion in the case of Barto v. Himrod, decided in the Court of Appeals of New York, and reported in 8 N. Y. 483. An act for the establishment of free schools throughout the State contained the proviso that the electors should determine by ballot at the annual election whether the act should or should not become a law. The chief justice said: "The event on which the act was to take effect was nothing else than the votes of the people on the identical question which the Constitution makes it the duty of the Legislature to decide. The Legislature has no power to make a statute dependent upon such a contingency, because it would be confiding to others that legislative discretion which they are bound to exercise themselves, and which they cannot commit to any other man or men to be exercised. They have no more power to refer such a question to the whole people than to an individual. The people are sovereign, and their sovereignty must be exercised in the mode they have pointed out in the Constitution. All legislative power is derived from the people; and when the people adopted the Constitution, they surrendered the power to make laws to the Legislature, except in the single instance of contracting public debts." As I regard the question, there is no logical escape from this view; and] as Judge Cooley admits, the weight of judicial authority is in the same direction. His language is: "If this question is to depend upon the weight of judicial authority up to the present time, it must be held that there is no power to refer the adoption or rejection of a general law to the people of a State, any more than there is to refer it to any other authority." Cooley Const. Lim. 120. An exception to this rule is the acceptance of the grant of corporate powers by vote, and the reasons are pointed out in City of Paterson v. Society, 24 N. J. Law, 385. And the same reasons which preclude the original enactment of a law from being referred to the people, make it equally incompetent to refer the question whether an existing law should be repealed. Cooley Const. Lim. 121; State v. Geebrick, 5 Iowa, 491; Parker v. Com., 6 Penn. St. 507.

My next proposition is that the local option feature of the statute under consideration is a delegation of the legislative function to a portion of the people of the State. The operation of this act upon existing laws is manifested in the following manner: All licenses in the State for retailing of intoxicating liquor are granted by virtue of the authority conferred upon the Court of Common Pleas by the first and second sections of the act concerning inns and taverns. Certain limitation upon the method of exercising the licensing power is found in other sections, but the grant of power is in the two mentioned. It is perceived by a glance at the general act that there is a general power in the court to grant licenses which will operate as a permission to sell in quantities less than a quart. The purpose of the present statute is to submit to the voters of a county, as a question of public policy, whether the power to grant licenses conferred by the general act shall be suspended; or in other words, whether the act shall be pro tanto repealed. That this is the effect of the present act appears to me undeniable. The act provides for the ordering of an election in any county, at which election the legal voter shall vote upon the question whether intoxicat

ing liquors shall or shall not be sold. The result of a vote against the sale is declared by a subsequent section to be that no license shall be granted within the limits of the county so voting. Its effect is exactly the same as if the act had read, that in the event of such a vote, the first two sections of the act concerning inns and taverns should be repealed for three years, and thence until another vote was taken, with a different result. This is a conspicuous instance of the submission of a repealing act to the people for their approval. And if the preceding proposition is proven, it is a delegation of legislative power. But it is said that a different view can be taken of this legislation which entirely relieves it of the character which I have just asoribed to it. The view so propounded is that the present act does not repeal or suspend a general act, but is a mere regulation of the method of granting licenses. The argument in favor of this view is the following: It is admitted that the present method of granting licenses under the general act is legally unobjectionable. By the provisions of that act it is requisite that an application for a license shall be accompanied by the recommendation of twelve freeholders of the township certifying to the character of the applicant, to the equipment of the applicant's house for the entertainment of travellers, and that the house is necessary, and will conduce to the public good. If (it is argued) it is competent for the Legislature to require the recommendation of twelve freeholders as a condition precedent to the granting of a license, why may not the Legislature require the recommendation of a majority of the freeholders of a township, or a majority of the legal voters of a township; and if of the township, why not of the county? And if the Legislature can require a recommendation in each application for a license, why may not the sentiment of a county upon the question of granting any license in the county be ascertained by popular vote? This view has such a plausible appearance that I was first inclined to yield my assent to its soundness, but upon reflection I am convinced that there is a line where the increase of the number of acquired approvers, and change in the method of ascertaining their sentiment, encounters a fundamental obstacle. That obstacle is that the scheme becomes one involv ing a submission to the people of the existence or non-existence of a statute, or the repeal or non-repeal of a statute. I think no one can deny that if the admitted power of the Legislature to require the recommendation of twelve freeholders proves the existence of legislative power to submit the question of license or no license to the people of a county, it also proves its right to submit the same question to the people of a State. Yet it has the semblance of the absurd to say that such a provision is a mere regulation of the method by which courts exercise their functions under the Inn and Tavern Act. For if the Legislature passed an act providing that no intoxicating liquor should be sold in the State, and further providing that the act should not take effect unless ratified by a popular vote of the State, it would be a clear instance of the delegation of legislative power. If the Legisla ture passed an act that no person should thereafter be licensed to sell intoxicating liquor in this State, with a proviso that the act should not take effect until ratified by a popular vote, the two acts would, in effect, be precisely the same. A failure to ratify would, in both instances, leave the present law with all its provisions for licensing untouched. A vote to ratify would, in both instances, involve an entire prohibition of the retail traffic in intoxicating liquor. As no one can sell without the license, the law which prohibits the licensing is of exactly the same import as the law which prohibits the sale. In dealing with questions involving the constructions of statutes, we

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