Local Option!

Last evening wasset down for the hears Ing of the argumenta in the famous in' junction suit to prerent the county clerk from calliiijr an election to be hold for c the purpose of voting upon the local option provisión of tlie liquor law. At 7 o'clock the argument commeneed, ] of which W are only able to give a pyn' opgis. I I. C. KNOWLTON commenceU the argument hy citing the bill of coiuplaint, etc. He said the , jections urged to holding the election , would be: i 1. That the law under which said eleellon j is iiiil to be held ia uaconstltulional. , i. That no petltlon lias been flled wlth the county clerk In accordance wlth the statute. The respondents would show cause and ' insist : 1. That the act complalned of is constltutlonal. ¦i. That a petltlon his been flled In corapllancewlth the act, whlch petltlon consista of several petitlons, intendeu by the petltloners to be flled together as constltullng one de mand upon the clerk Uut an election be cal led. 3. Tbedefendant demurstotbe coraplaln iits blll of complalnt, on the ground that lt ¦ does not set forth the lacts calllng for an equitable relief, and that t h Is cuurt Is without Jurlsdlctlon to Krant a prellmlnary or Ínterlocutory lnjunctlon. 1. Constitutionality of Act Xo. 197, 18SK - We do not intend to consider the constitutionality of this law, for the reason that the question is not before this court. Our malii reliance will be upon the obJectiou that this court Is without jurisdictlon to grant the injunction prayed for. We may note brielly, however, that lt is urged that this law is unconstitutional, for the reasons: 1 That the object of the act is not ezpressed in lts tille. 2. That the act contémplate an unautliorlzed di'legallon of legislativo power. Upon the question as to the title of the act. This act is clearly distinguished from tlie act involved in the Orcliard Lake case, for the reason that In one case absolute prohlbitlon was provided for, while in the other, prohibition was made contingent upon further action, and in any event was not to be general. Act Xo. 197 simply attempted to regúlate the manufacture and sale of intoxicating liquors in the state by providing that such sale and manufacture tnight be piohibited or licensed in the several countles of the state, as they should vote upon the qiiüstion when subniitted, and made such submiislon dependeut upon the action of a suffleient number of the votera in each county. To cali sucli an act prohibitory would be a misnomcr. The act in question does not involve a delcgation ot' lejfislative power to any greater extent thaii has heretofore been sanctioned by the courts of this country. The legislatura has the power to pass an act, with the proviso that it shall become a law, in any given locality, upon approval by such locality. II. Elemenlary Principies.- Whii regard to the granting of the injunction, there are certain elementar principies which should be considered at the ouUet. 1. The granting of an injunction is never a matter of right, and this principie applies to the granting of interlocutory injunctions. 2. The plaintiffmust show some clear, legal and equitable right, and a well grounded apprehension of immediate injuries to these right?. 3. Equity will not restrain proccedings under the law on the ground that they are unconstitutional, uutil its validity is tested at law. i. Before granting a preliminary injunctiou the court will balance the considerations of relative conveniences and inconveniences. The complainant will receive no injury from the election; hii injury is not even threatened until tbe law Is attempted to be enforced; the election may be beneficial rather than prejurtioiol to llio fnmiilainiint. Oll the Other hand, the granting of the injuuction stays the expression of the will of the people, tramples upon their political rights and entails serious conflict between the judicial and legislativa departments of the state. III. The BUI wühout Equity. 1. No such threatened injury is shown asentitles the complainant to relief. The po8sible wrong complained of is too remote; it can never arise from the holding of the election, but only from the enforcement of the law, if adopted. The holding of the election can in no sense become the proxluiate cause of the Injury complained of. á. The complainant bas an adequate remedy at law in case the act in question should be adopted. If it is valid law, the complainaut's injury cannot be relieved against by this court. Thedamage to his property and business is no objection to the law. If the law Is void, ou the ground of coiistitutionality, it cannot in any way effect the complaiuant. lt is as no law, and Ite may defeat its enforcenient in the law courts. Wesubmit, that conceding to the complainant all that his bilí avers, lie has shown no ground for equitable relief, no wrong can possibly come from the eleci tion, and as against the wrong which he complains of, the courts of law afford adequate relief. IV. Want of Jarisdiction. Wesubtait that this court is without jurisdiction to arrest the holding of an election for the the following reasous: 1. The holding of this election is an exercise of local legislatlve power, and as we liave peen, is no way in conflict with the principie which prohibits the delegation of legislative power. But wliether the act or election under it, be constitutional or unconstltutional, the power is legislative, and the courts eau no more eujoin tliis exercise than they can enjoiii the legislatura froni passing an iinconstitutional law. Whentheparties attemptto enforce the law, or claim riglits under it, is the first time the judicial power can be inyoked, any other law would bring the judicial and legislative departmentit ot the government in hopelefs conflict. 2. Act No. 197 makes it the duty of thecounty clerk to cali an election wTien the requisite petition Is flled, and whether such petition is properly riled or not, Is for him to determine; there is no provisión for judicial interference. This court as an court of equity cannot inquire into the fact, whether the pi tilions are proper or not. The determination of the clerk, so far as concerns the issue before this court, is conclusive. The duty he must pcriorm, the mándate of this court, to tbe contrary notwithstanding. In calling the election he acts as the agent ot a branch of the the government over which the courts have no jurisdiction. 3. The exercise of the right to vote is political, and not judicial in itscharacter. This is a republican form of goveniment, and the courts are powerless to prohibit ;i ti election under my clrcumstances. Upon this broad round dicisions are nuraerous. JOHN f. LAWHENCE for the complainant contended that the court had equity jurisdiction, under the common law. He doubted very much whether the clerk was proceeding as he ought to proceed. Down In Georgia it 8eems that they wlll not enjoin in certain local option cases, but where private property rights are at issue, the cases cited by his brother attorney do not apply. Mr. Knowlton had claimed that the danger was too remote, and that the coinplainnnt's time to seek redress was ii fu? r t lic enforcement of the law ghould be commenced. Under this larthe complainant would have to answer to a criminal prosecution, not defend a civil snit, and therefore he averred that the dunger to the complainant Is immediate and pressing. Tliis case is not like an ordinary citizen tiling a bilí for election purposes. He has a valuable piece of property in this city that will become worthless should this law become ative. lio is scoking to prevent the adoptlon of a uncoDStitutlonal law which destroys bis business and his propcrty. ín referenco to tlio suit belng brought by the Attorncy General, tbis is acaso whore a private person Is interested ; shoulil an injury be thrcatened that ell'ects all citize'us alike, tbcn it would be proper that the suit sliouM be broiight by the Attorney General. Sec. 20, article 4 of the constitution provides that "no law shall embrace more than one object, which shall be expressed in lts title." Now the law under which it is sought to hold this election, is entitled "An act to regúlate the manufacture and sale ot' malt, brewed and yinous liquors in the several counties of this state." The object expressed is to "recúlate,'1 not "restrain " therefore plainly unconstitutional. The staker then cited a recent decisión of our supreme court upon this very point, in the Orchard Lake case, wlierc a law was enacted to regúlate the sale of liquor within cortain limits of the military academy in that place, when the intent was to prohibit, the court lioldlng that the law was unconstitutional. This act also provides for an unlawlul delegation of power. The United States constitulion is one of enumerated powers, that is congress can pass no law uniera it linds warrant therefore in the constitution of the United State, while a state legiblature may pasa any law which tlie constitution of the state does not prohibit, and which does not interfere with the U. B. constitution. All power is originally froin the people, and when the people adopt a constitution they part with certain of their powers which are vested In the leglslature. This graut of powers to the lep-shiture prevents the people from approving or rejecting any law submitted to them by the legislatnre, unless expressly authorized by the constitution. Tliere Is no provisión of the constitution which authorizes the lefíislature to delégate any of its legislativo powers to the people of a county or state. There can be no case citeu wliere an existing luw ca be repealed by the peopie of the state or county, that right ' having been delegated by the people to i its legislature. The legielature of a state has as imicW rlght to submit to the people of a county the right to reject all state laws, lis in thls particular instance. lias the clerk of this county, without authority of law, the right to cali an elt'ction, the result of which raay subject the complainant in this case to arrest and iinprisonnient ? Another point is the initial of a voter. The law says that one-flfth of the legal voters of the county símil sign the petition. Nmv what constitutes the name of an elector entitled to vote at the polls ? Ilowell's Stntutes were brought into requisitiou and the delinltion read wbich stated that the Chrlstian or baptismnl name must be writtcn in Inll upon the registration booksas well as the sir name, and there was an object in thls provisión. As .111 nstiiiKv, tbere was no such person known to the law as A. J. Sawyer. A. J. Siiwycr coald not be elccted to an office iñ this county or state, under the law. How then could voters legally sign thelr ñames on this petition by initial? It could not be done, legally, and the county clerk had no authority to take cognizance of such signatures. These registration lists are returned to the county clerk by the township clerks, and this is the reason why the county clerk was made the offieer to cali this election, because he alone had the means of knowing whcther or not slgnatures were genuine. If this election procceda, the county clerk, without authority of thu law, will wipe out of existence the private property of several people of this county. This statute is harsh nnd unfeeling, it extinguishes in a breath the hard earnings of years of toll, giving no opportun-ity to make any change of business, or no chance to save what it has taken years to accumulate. While we ask no favors we; submit that legal principies should not be strained or legal rules bent to hold a statute constitutional which with hardly a word of warning sweeps the accuruulations of a life time Into the abyss of tinnncial ruin. Many cases were cited to sustain points named. BOM. CHAS. R. WHITMAN commenced bis argument, but had only fairly got started wheu the court decided that the hour being so late, asked if it were not better to adjourn until to-morrow moruing, which was done, the hour being tixed at 9 o'clock. When the time arrived Mr. Whitmnn commenced lus argument. The first point made was in reference to the immediate danger to the complainant. If there was a probabiliiy that the law would not be euforced then what use was there to go to the expense of holding an election ? Why seek to pass a law that would not be carried out? Did any oue desire it? In opening his argument in the nioniing Mr. Wliitmau cited many cases to show that the proposition to carry this election was au atlenipt to legislate by the people, which is not constitutional. When a voter goes to the polls, on this proposition, he votes for two things. He votes to prohibit the sale of liouors, and he votes to suspend the operation ot' the law dow in torce. He submitted that no case could be cited where the people could vote to suspend the operation of a law. Under certain contingencies the people mlght sanction by their votes the upproval of a law but never to suapend an existing law. Then the point of there being two objects in this law was dwelt upou. The point was also made that the cali for a vote upon this question failed to make proper provisiou for the registration of voters, and was therefore unconstltutional in thus deprivtng certain electors of their rights. The legislature in this law sueks to compel tue county clerk to do things which he can not do. How ishe to decide whether the signatures upon these socalled petitions are genuiue and bonafide voters in this county or not? He cannot do it, and on that ground the law is unconstltutional and void. The signing by cnitial was also dwe t upon, then the flling of the petition by piece-ineal was trealed, and the assertion made that under the law it must be by petition, not petitions. He then took up all the citatious givea by Mr. Knowlton, and showed wliereiu they were not appllcable to this case. After reviewiug all the poiuts, and cliuching them on the under ,-idc, he closed with au eloquent appeal for thegranting ot the injunction. Mr. Sawyer had the closlng argument, but untortunately we were obliged to close our forma too early to secure a synopsis of his argument, which closed about 1 o'clock. Judge Kiune announced upon the closing of the argument that he would gire his decisión tbis evening at 7 o'clock.