Barto v. . Himrod , 8 N.Y. 483 ( 1853 )

The objection to the law is, that it was not enacted in the manner prescribed by the constitution, but was submitted by the legislature to the electors to determine by ballot, at the annual election in November, 1849, whether the act should or should not become a law.

By the 11th section of the 7th article of the constitution, the legislature is prohibited from creating any debts except such as are specified in the tenth and eleventh sections of the same article, unless in the manner therein mentioned; and no such law shall take effect until it shall at a general election have been submitted to the people, and have received a majority of all the votes cast for and against it, at such election. The section also provides that on the final passage of such bill in either house of the legislature, the question shall be taken by ayes and noes to be duly entered on the journals thereof, and shall be: "Shall this bill pass, and ought the same to receive the sanction of the people?" A subsequent clause in the same section provides that no such law shall be submitted to be voted on within three months after its final passage, or at any general election, when any other law, or any bill, or any amendment of the constitution shall be submitted to be voted for or against. This is the only case in which a law is required to be submitted to the people; and there is no other part of the constitution that recognizes, even by implication, the right of the legislature thus to delegate their trust. It is worthy also of remark, that in this case, the legislature are required to assume all the responsibility which attaches upon the passage of a law; for they are required to respond in the affirmative, not only to the question whether the bill shall pass their respective houses, but also whether it ought to receive the sanction of the people. The members of the legislature, therefore, can not in making a submission to the people under this section, elude the responsibility which properly belongs to their station.

I pass by, as inapplicable to this discussion, the 13th article of the constitution, which provides for the submission to the people, by the legislature, of proposed amendments to that instrument. And I do not mean to lay much stress upon the implication arising from the express provision to submit a law creating a debt to the people, and the silence of the constitution in relation to submitting to the people other matters of legislation. The maxim Expressio unius est exclusioalterius, is more applicable to deeds and contracts than to a constitution, and requires great caution in its application, in all cases.

The present question must be decided with reference to our existing constitution. By that instrument the legislative power of the state is vested in a senate and assembly. (Const. art. 3, § 1.) The enacting clause of all bills is required to be, "The people of the state of New York, represented in senate andassembly, do enact as follows." It is not the people at thepolls, who enact a law, but the people represented in senate and assembly. Every bill before it becomes a law must receive the assent of a majority of all the members elected to each branch of the legislature, and the question upon its final passage must be taken immediately upon its last reading, and the yeas and nays entered on the journal. (lb. § 14, 15.) The assent of two thirds of the members elected to each house is requisite to every bill appropriating the public moneys or property for local or private purposes. (Art. 1, § 9.) On the final passage in either house, of every act which imposes, continues or revives a tax, or creates a debt or charge, or makes, continues or revives any appropriation of public or trust money or property, or releases, discharges or commutes any claim or demand of the state, the question shall be taken by yeas and nays, which shall be duly entered on the journal, and three-fifths of all members elected to either house, shall, in all such cases, be necessary to constitute a quorum therein. (Id. art. 7, § 14.) These various provisions are designed to insure the full attendance of both houses, when a bill is passed, and to cause the members to feel their individual responsibility.

It is worthy of note that the act under consideration falls within the 14th section of article 7, just quoted, and required a quorum of three-fifths of all the members elected to both branches of the legislature to be present at the time of the final vote on its passage.

All the foregoing provisions contemplate that a law receives its vitality from the legislature. The representatives of the people are the law makers, and they are responsible to their constituents for their conduct in that capacity. By following the directions of the constitution, each member has an opportunity of proposing amendments. The general policy of the law, as well as the fitness of its details, is open to discussion. The popular feeling is expressed through their representatives; and the latter are enlightened and influenced more or less by the discussions of the public press.

A complicated system can only be perfected by a body composed of a limited number, with power to make amendments and to enjoy the benefit of free discussion and consultation. This can never be accomplished with reference to such a system when submitted to a vote of the people. They must take the system proposed or nothing. They can adopt no amendments, however obvious may be their necessity. With respect to the single case where the constitution requires a submission of the law to the people, the inconvenience is less felt, because only a single proposition is submitted, with respect to which no other answer can be given than yes or no.

The law under consideration is in conflict with the constitution in various respects. Instead of becoming a law by the action of the organs appointed by the constitution for that purpose, it claims to become a law by the vote of the electors; and it claims that the popular vote may make it void and restore the former law. All the safeguards which the constitution has provided are broken down, and the members of the legislature are allowed to evade the responsibility which belongs to their office.

It is not denied that a law may be passed to take effect on the happening of a future event. There are numerous examples of this species of legislation which are not obnoxious to any objection. The general appropriation bill each year affords numerous specimens. Thus an appropriation of four thousand dollars is usually made for the apprehension of fugitives from justice. The money is not payable until a fugitive has been apprehended, and the requisite evidence of the arrest, together with the amount of expenses, furnished to the proper officer. There is also a standing appropriation for the apprehension of criminals, which does not become payable until the criminal has been arrested, and the proof thereof has been produced. But in all these cases the law does not derive its power from the arrest of the fugitive or the apprehension of the criminal, but from the legislature. Those cases are widely different from this. Here the law was not in force until the people had cast a majority of votes for it in a given way. In the other case, the law is in force whether there be a fugitive or a criminal or not. The future event gives no additional efficacy to the law, but furnishes the occasion for the exercise of its power.

The fundamental error of the court in Johnson v. Rich, (9Barbour, 680,) consists in confounding laws which become operative at a future day, with laws which do not become operative until approved by a popular vote. In the first case, the law is complete when it has passed through the forms prescribed by the constitution, though its influence may not be felt until a subject matter has arisen upon which it can act. A law punishing murder with death, is inoperative until a murder has been committed. It is not, however, the murder which imparts efficacy to the law. The latter was complete when first enacted; and the murder merely affords the opportunity for awakening its energies. Had no murder ever been committed it would still be a law, threatening vengeance on the crime whenever it should be perpetrated.

It was far otherwise with the free school law. Had a majority of the electors failed to vote for it, no one pretends that it would have been a law. The voting by the electors does not furnish the occasion for the exercise of the power of the law, but was designed to give vitality to what was before lifeless. In short, the law was a mere proposition submitted to the people to be adopted or rejected as they pleased.

If this mode of legislation is permitted and becomes general, it will soon bring to a close the whole system of representative government which has been so justly our pride. The legislature will become an irresponsible cabal, too timid to assume the responsibility of lawgivers, and with just wisdom enough to devise subtile schemes of imposture, to mislead the people. All the checks against improvident legislation will be swept away; and the character of the constitution will be radically changed.

Without enlarging upon this subject, or reviewing the decisions in other states adverse to this mode of legislation, I think it is in conflict with our constitution.

Judgment affirmed.