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My view, therefore, is that for both of the reasons heretofore expressed this act must be considered as a violation of the Constitution, and is therefore void, and I am therefore in favor of affirming the order appealed from.

MCLAUGHLIN, J. I concur in the opinion of Presiding Justice INGRAHAM, in so far as he holds that the effect of section 16 of the act under consideration is to render the whole act unconstitutional.

CLARKE, J., concurs.

SCOTT, J. The relator is held by the defendant under a warrant issued out of the Court of General Sessions. He was convicted in that court on October 25, 1912, of the crime of murder, committed on June 6, 1912, within the territory constituting the borough of the Bronx, and which has, as it is asserted, been constituted the county of Bronx by virtue of an act of the Legislature passed on April 19, 1912, and known as chapter 548, Laws 1912.

The relator's contention is that the effect of that act was to deprive the Court of General Sessions in the County of New York of jurisdiction to try him for the crime of which he was accused. This question of jurisdiction can properly be raised by a writ of habeas corpus, and is the only question that can be so raised after conviction. People v. Kaiser, 206 N. Y. 52, 99 N. E. 195. The question of the validity of the act is therefore called directly into question and will be first considered. This question is an important one, which should be promptly decided, not only by reason of its relation to the rights of this relator, but also because it is one of great public consequence, since the act calls upon public officers to do certain things in the near future which it will be their duty to do if the act is valid, but not if it is invalid.

The title of the act is:

"An act to erect the county of Bronx from the territory now comprised within the limits of the borough of the Bronx; in the city of New York, as constituted by chapter 378 of the Laws of 1897 and all acts amendatory and supplemental thereto."

The erection of a new county is essentially a legislative act, and the first, and perhaps the most serious, objection to the validity of the act under consideration is that which is based upon the sixteenth section, which reads as follows:

"Sec. 16. At the general election in November, nineteen hundred and twelve, there shall be submitted to the voters of the borough of the Bronx the question, 'Shall the territory within the borough of the Bronx be erected into the county of Bronx? If it shall appear that the majority of the votes cast on said question at said general election were against the erection of the county of Bronx, then this act shall be inoperative and void."

The Constitution of the state (article 3, § 1) provides that:

"The legislative power of the state shall be vested in the Senate and Assembly."

And the argument against the validity of the Bronx County Act is that by its sixteenth section, quoted above, the Legislature relinquished its constitutional power and duty, and has delegated to the people of the territory proposed to be embraced in the new county the determination of a question which by the Constitution has been committed to the Legislature alone. The question how far, and in what cases, the Legislature may make a statute contingent on approval by a vote of the people, is one which has been much discussed by the courts and by writers of text-books, and cannot as yet be said to have been generally agreed upon. Some point has been made as to the form of the question to be submitted to the people in the present case; but I consider that, so far as it concerns the power of the Legislature, it is immaterial. The point is that it is left to the people to determine by their votes whether or not the act shall be effective.

One of the earliest cases dealing with this question was Barto v. Himrod, 8 N. Y. 483, 59 Am. Dec. 506. That case dealt with an act of the Legislature of this state entitled "An act establishing free schools throughout the state," and provided that the electors of the whole state should say whether "this act shall or shall not become a law." It was held that the statute had not been constitutionally enacted. After quoting the provisions of the Constitution imparting all legislative power to the Senate and Assembly, and noting the single case in which the Constitution itself had provided for a reference to the people, the court said:

"The exercise of this power by the people in other cases is not expressly and in terms prohibited by the Constitution; but it is forbidden by necessary and unavoidable implication. The Senate and Assembly are the only bodies of men clothed with the power of general legislation. They possess the entire power, with the exception above stated. The people reserved no part of it to themselves, except in regard to laws creating a public debt, and can, therefore, exercise it in no other case."

After referring to some features of the act, the court proceeded:

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"It results, therefore, unavoidably from the terms of the act itself that it was the popular vote which made the law. The Legislature prepared the plan or project, and submitted it to the people to be passed or rejected. The Legislature had no power to make submission, nor had the people the power to bind each other by acting upon it. They voluntarily surrendered that power when they adopted the Constitution. It is not denied that a valid statute may be passed, to take effect upon the happening of some future event, certain or uncertain; but such a statute, when it comes from the hands of the Legislature, must be law in præsenti, to take effect in futuro. * But if by the terms of the act it had been declared to be the law from the time of its passage, to take effect in case it should receive a majority of votes in its favor, it would nevertheless have been invalid, because the result of the popular vote upon the expediency of the law is not such a future event as the statute can be made to take effect upon, according to the meaning and intent of the Constitution."

This case stands to-day as a binding authority upon the precise question which it decided, and its reasoning is, in fact, generally followed throughout the country, in so far as concerns general statutes made to be dependent upon the popular vote of all the electors of the state, although very eminent jurists, such as Judge Redfield and Judge

Cooley, have expressed dissent from its reasoning. State v. Parker, 26 Vt. 357; Cooley's Const. Lim. (7th Ed.) p. 167 et seq. It has, however, been followed by a majority of the justices comprising the Supreme Court in Massachusetts. In re Opinion of the Justices, 160 Mass. 586, 36 N. E. 488, 23 L. R. A. 113.

The language used in Barto v. Himrod was sufficiently strong to invalidate any attempt on the part of the Legislature to submit to the people the question whether any proposed act should or should not go into effect. It soon began to be limited, however, to the precise question decided; the Court of Appeals saying in People v. Fire Association of Philadelphia, 92 N. Y. 311-318 (44 Am. Rep. 380):

"This court has steadily declined to push the doctrine of Barto v. Himrod beyond the point which it decided."

Acts were passed authorizing certain towns and villages to incur obligations in behalf of projected railroads; the question whether they should or should not incur such obligations being left to the determination of the electors, or local authorities of the several municipalities. These acts were easily distinguished from Barto v. Himrod, on the ground that the acts themselves took effect and became law solely by act of the Legislature, which did no more than to leave it to the determination of the parties interested whether or not they would bring themselves within the law. Bank of Rome v. Village of Rome, 18 Ñ. Y. 38; Starin v. Town of Genoa, 23 N. Y. 439; Clarke v. City of Rochester, 28 N. Y. 605.

In People v. Fire Association of Philadelphia, 92 N. Y. at page 317, 44 Am. Rep. 380, the court explained what it understood to have been the specific point decided in Barto v. Himrod. Speaking of that case it said:

"What was then denominated the School Law came from the hands of the Legislature, not as a law, but as a proposition. Whether it should be a law or not was precisely the question submitted to the popular vote. The Legislature proposed the law, but left it to the people to enact. The process, carried out and applied to all bills, would have resulted in a complete abdication by the Senate and Assembly of their authority and function. Instead of making laws, they would simply have suggested them, reported them for consideration, but left the judgment upon them-the determination of their expediency and wisdom-to an authority outside their own. As to the School Law, the people were made the Legislature, and left to decide whether the bill proposed should or should not become a law. This court held that the Legislature, under the Constitution, could not so delegate its power, but it was bound todetermine for itself the expediency of the measure and either enact or reject it. But nothing in that decision denied to the Legislature the right to pass a law whose operation might depend upon, or be affected by, a future contingency. The opinions expressly conceded the existence of this power. It was not denied that a valid statute may be passed to take effect upon the happening of some future event, certain or uncertain."

Later cases in the Court of Appeals have discussed Barto v. Himrod along the same lines as in those already cited. It will be necessary to refer here to only one, and that the latest expression of the court upon the subject. The act under consideration was one requiring the question of the removal of a county seat and county buildings in the county of Essex to be submitted to the electors of the

county. The validity of the act was challenged upon the ground that it involved an unconstitutional delegation of the power of the Legislature. The court referred to and discussed Barto v. Himrod and the other cases hereinbefore referred to. It pointed out the fact that the Legislature possessed very wide powers, some not strictly legislative, but covering all departments of the government, including the administrative and executive, and, as well, in a limited sense, the judicial department. As to the latter class of powers, it quoted Chief Justice Marshall in Wayman v. Southard, 10 Wheat. 1-42 (6 L. Ed. 253), in which he said:

"It will not be contended that Congress can delegate to the courts or any other tribunal powers which are strictly and exclusively legislative; but Congress may certainly delegate to others powers which the Legislature may rightfully exercise itself"

-citing as illustrative the power of the Congress either to itself prescribe rules of procedure in judicial actions or to leave the power to make such rules to the courts. The Court of Appeals then said:

"But, while general statutes must be enacted by the Legislature, it is plain the power to make local regulations having the force of law in limited localities may be committed to other bodies representing the people in their local divisions, or to the people of those districts themselves. Our whole system of local government in cities, villages, counties, and towns depends upon that distinction. The practice has existed from the foundation of the state, and has always been considered a prominent feature in the American system of government. It is recognized in the Constitution itself, in that section which prescribes to the Legislature the duty to provide for the organization of cities and incorporated villages, etc., restricting their power of taxation and borrowing. We have thus distinctly presented the differences between enactments pertaining to the whole state and those pertaining to localities, and such distinction is not left to those which are local or general laws; for general laws may be, and in certain cases must be, enacted which pertain to localities only. * While it may not be necessary, the Legislature has generally recognized the right of the electors of a county to select and locate their own county buildings. They, of all persons, can best determine the place that would be most accessible and convenient for the transaction of the business of a county. There is, therefore, a manifest propriety in making a change dependent upon the affirmative vote of a majority of the electors." Stanton v. Board of Supervisors, 191 N. Y. 428, 84 N. E. 380.

The question whether or not, and under what circumstances, the Legislature may lawfully commit to the determination of the electors the question whether an act shall become operative, has been considered in innumerable cases in other jurisdictions. The general rule to be deduced from the decisions of our own state, and from the best considered decisions in other states, appears to be that the Legislature may not lawfully so submit a mere proposition for a law, or a statute affecting the whole state and establishing the general policy of the state, but that it may lawfully so submit statutes, whether local or general in form, which affect only the people of a separate district, locality, or municipal corporation, and as to the desirability of which the people of the locality are best able to judge. This is subject to the condition that the statute when it leaves the Legislature must be a complete act, ready to go into full operation when accepted by the electors of the district to be affected, to whom is submitted

only the question whether or not the act as framed by the Legislature shall become operative.

In my opinion, the act under consideration falls within the class of laws which may constitutionally be submitted for acceptance or rejection by the people of the territory proposed to be erected into a county. It directly affects only the people of that territory. Upon them is to fall the increased burden imposed by the act, and to them will accrue the advantages, if any, attendant upon the establishment of a separate county government. The Legislature has the undoubted right under our Constitution to erect a new county without consulting the wishes of the persons most directly interested; but it is not unreasonable, and not, I think, an abdication of legislative duty and power, to consult the preference of the persons directly interested. It is not unreasonable that the Legislature should be unwilling to impose added burdens upon the residents of a particular district, or, on the other hand, to withhold supposed benefits, except with the consent of those to be affected. The precise question has not heretofore arisen in this state, but the solution at which I have arrived is not only in harmony with the trend of decisions in this state, but is the rule that has been universally applied in other states where the precise question has arisen. People v. McFadden, 81 Cal. 489, 22 Pac. 851, 15 Am. St. Rep. 66; People v. Nally, 49 Cal. 478; Erlinger v. Boneau, 51 Ill. 94; People v. Salomon, 51 Ill. 37; People v. Reynolds, 10 Ill. (5 Gilm.) 1; State v. Elwood, 11 Wis. 17.

It has been suggested that the. reference should have been to the electors of the whole county of New York, out of which the new county is to be carved. I am unable to see that the electors of that part of New York county not set apart have any interest in the question whether or not the borough of the Bronx shall be elected into a separate county, or at least any interest that is comparable to that which the electors of the Bronx may be presumed to have. At all events, the determination whether the matter should or should not be referred to popular vote, and, if so referred, to whom the reference should be made, was one which rested alone in the discretion of the Legislature, which we have no power to review. Assuming, then, that the act was not rendered invalid by the reference to a vote of the electors contained in its sixteenth clause, there are still other questions to be considered, depending upon when the act became or will become fully operative.

The first section of the act provides that the territory now comprising the borough of the Bronx

"is hereby set off from the county of New York and is erected into the county of Bronx as a separate and distinct county of the state of New York from and after the date of taking effect of this act."

And the last section provides that:

"This act shall take effect immediately."

The act provides for an election of county officers in November. 1913, who are to take office on January 1, 1914, and further provides


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