Judge Kinne Denies
The public interest in the local option question has been greatly intensified by the attempt to prevent an election. It has been the main subject of conversation for several days in Ann Arbor. Mr. Hardinghaus's more has excited the people of Washtenaw county outside of Ann Arbor. Last Saturday mnming, two wellknown farmers of Salem telegraphed to John Schumacher to secure the best legal talent possible and make a hard fight of it. This the local option executive committee had already attended to by retaining Sawjer & Knowlton. The prospect of a debate on this absorbing question in which Messrs. Sawyer St Knowlton should be pitted against Messrs. Chas. R. Whitman and J. F. Lawrence, the attorneys for Mr. Hardinghaus, the brewer, attracted a large crowd to the circuit courtroom Tuesday evening. There was not even standiog room left. The hearing had been postponed till evening to accommodate Mr. Whitman. The defendant's attorneys f ecured the opening and closing speeches on the ground that they were to show cause why the election ehould be called. Mr. Knowlton opened the discussion by a speech one hour and a half long. Mr. Lawrence followed him for the complainant, consuming about the same, time, and Mr. Wbitman had but fairly started when Judge Kinne adjonrned the court till next morning at 9 o'clock. Yesterday' forecoon, the arguments were brought to a close, A. J. Sawyer making the last speech. Last evening the circuit court room was densely crowdej to bear Jud?e Kinne's decisión. The judge read the document in about ten minutes. The decisiveness of Lis views ü 80 great, and the force of his statements so irresistible, that his decisión produced a good impression upon the people assembled. He characïerized the demand for an injunction as "a remarkable and dangerous demand," and he refused to grant ene. The decisión is printed in full on another page, and it will be found profitable reading. Mr. Hardinghaus, a brewer of Ann Arbor, had asked for an icjunction from the court of equity to restrain the county clerk from calling the electiou under the local option law. The following is an abstract of the speeches of the attorneys. 11R. KNOWLTON'S ARGUMENT. He said that the defense would deny the unconstitutionality of the local option law. In the reply filed by the delense there was an affidavit ot the county clerk showing that the number of signatures on the petition for an election were euffioient under the law, and that the county clerk was on the point of calling an election when he was served with notice to appear before Judge Kinne to show canse why an injunotion ahould not be iisued restraiaing him from calling the election. Mr. Kflowlton took the ground that it was wholly immaterial, so far as this question is concerned, whetber the local option aet is constitutional or not. The court bOw has not the power to declare the law unconstitutional. If the law is conBtitutional, of course the complainant has no case. He would maintain that the law is constitutiona!, however. TheOrchard Lkecase would piofyably be oited fno constitmion deolares tht a law hall have out One purpose, which (hall be expressed in its tille. Ia the Ofchard Lake cjse, the title of the act indicated its purpose to be that of regulation whila. thtí [afpose of the áct Waa really tobibition. This ia not so in the local üptiütt law. The local option law had regülation in its title, but the body of the !aw has the idea of regulation also. it would regúlate the liquor business by prcviding for its licensing or its prohibition. Tne legislature cannöt delégate to the people its legislative power. Did the legislaiure do this ia passing the local option law ? He claimed that it did not to any greater extent than has been sanctioned by courts. No greater power was delegated than is when city charters are granted. He read Judge öooley to support this. The legielature can pass laws Subject to the sanction of looalitieSj a proposition whioh he supported by reading decision8 in looal option cases in Georgia. In Georgia it bas bèëh cUstomary to ieave many qüestions to local decisión. He cited a case in the U. S. District oouit in Georgia, Weal vs. Calhoun, which was to ehjoin the declaration of the result of an election. It was parallel to this case, afid the cumplaint was denied. The grantiog of a preliminary injunction ia never a matter of right. The complainant should show some immediate danger to bis rights. He should not have an njuüction on the ground of the unoonstitutiuaality of the law uatil its vaÜdity had been tested. There should be urgent necesity for it. The election ro.ay not endanger the interests of tha complainant. It cannot, until prohibition is carried and put in force. It may not be csrried, and even if carried, it May not be operative if umsonstitutional as the complainant claimed. The poísible wïong to the complainant is too remote for th granting of an injauction. Mr. Knowlpn cited many decisiono, in one of which a man asked that an election be prevented on the ground that , interests were endangered, but it [CONTINUE 'ON 8EC0ND PAGK.] JUDGE KINNE DENIES. [C0XT1NCED FROM FIRST PAGE. ■was denied on the ground that the danger was too remote : the el ctton might turn the other wey. Supposing that the people adoot prohi bition and it be enforoed, then the complainant can raise the question of uncon stitutionality. If he raises it on the ground of Djury to busiaess, of couree t would not hold, in view of the Kansas case in the U. S. supreme court. Such damages are not an objection to the law. Many kinds of business are injured by legislation. If the court has the power to grant tbis icjunction, then all elections may be prevented, and government be stopped. This court is entirely without jurisdiction in this case. The holding of this election is an exercise ol local legislative power. Such power cannot be enjoined any more than the legislature can be enjoined trom passing an unconstitutional law. This is an authorized and constitutional local legisla tive power. The court has no power to prevent a common council from passing an ordinance, but can stop the enforcement of the ordinance. The filing of the petition, the notice by the clerk, etc , are all in the exercise of pDÜtical power over which this court has no juriödiction. An order from a iudge interfering with an election is void. The clerk can go on, 10 spite of an injuoction, and cali an election, without being Hable to a fine for contempt. The corapUinant is seeking to deprive the people of the right to vote. This court has no power to interfere with the political power cf the people. JJHH F. LAWRENCES ARCIMENT. Mr. Lawrence, for the complainant, first considered the question of the remoteness of the injury whicb his dient expected would result frorn the election. His cliënt wonld have to stop business May 1, or else be in danger of fine and imprisonment. Thia citizen owns a piece of property whicb, if the law passes, will be destroyed. He is threatened with iniury. ... , . As to the constitutionahty, he claims that the title of the act does not embrace the object of the act. The title is to "regúlate," and the body of the act is to "protiibit," as in the Orchard Lake ca-e. If "regulation" and "prohibition" are not synonymous, then the title does not include the body of the law, and it is unconstitutional. The act does not attempt to regúlate, although the title says that is what it is for. He also claimed that the law was an unlawful delegation of legislative power. The constitution does not provide that legislative power can be conferred upon voters of state or county. Tho nunnle have narted with all powers not reserved. The people of s county are practically the same as the people of a state. He read a New York decisión which goes to ahow that the legislature could not make the operati in of a law contingent upon the will of the people. The legislature caonot Bubmit the question to the people as regards to the repealing ot a law, and that is essentially what is attempted in the local option law. Mr. Lawrence spent much time in trying to show that because the petitions were not generally eigned by names in full, but by initiale of given names, that there really was no petition and the county clerk could not cali an election. The law requires that registration lista shall have names in full. How can the county clerk be sure ths.t one fifih of the legal voters have Bignetl the petition unless the names are in full so that he can compare them with the regi6tration liste ? If the eignatures are not those of elector?, how can the county clerk lawfully cali an election ? Mr. Lawrence tried to créate gympatby for his cliënt by drawing an affecting picture ot the ruin that would be wrought by the law if put in force. cnAe. b. whitman's argcment. Mr. Whitman begaa bis argurrent Tuesday evening. and concluded Wednesday morning. He began by saying that a threat against property effected its vake at once. Is there any doubt about the unconstitutionality of tliia law? Can a man's property be imperilled by an unconstitutional law? He attaoked the constitutionality of the law on the ground of iU title not embodying the object of the bill, and then on the ground of its being an improper delegation of powers, claiming that ihe decisions cited by Mr. Knowlton could not be applied to this. What is sought to be done by this act? He called attention to act 313 of 1887, the present tax law under which saloons are regulated. Now, after this the local option law was passed. If the people vote for prohibition under the local option law, it will virtually repeal the tax law, No. 313. The tax law could not be in force it prohibition were in force, so the legislatura has given the people the power to repeal a law. Act No. 197 itself in its language recognizes that it is to prohibit while its title says it is for the purpoee of " regulating." If the people vote to adopt prohibition, they will also vote to suspend another law, act 313, just as much as though they were members of the legislatura. It has never been upheld that the people in such a way have the authority by ballot to suepend the operation of any pre-existing law. The most that has been ttied is to put in force some new law without setting aside an old law. It is impossible to have a constitutional eleotion without surrounding the ballot with all possible safeguards. In the mat ter of registration, for instance, which he described at length, as well as how elections are carried on legally. We have all possible protection to the ballot. The legislature, who is certainly not greater than the constitution, make a law permitting a special election, providing that before auch election eau be held, there must be an election, that is, one-fifth of the voters shall petition the county clerk to cali the election. There should be safeguards about this. The county clerk cannot do the impossible. How can he canvass onefifth of the electors as presented to onr countv clerk? Here Mr. Whitman askod the sheriff to bring in the "so-called petition." He endeavored to show the impossibility of the clerk's determining whether it was signeá by one fii'th o', the voters, ridiculini the petition. It is impossible for a mau or for a eet of men, to say on oath that the petition wbs a proper one. He then raised the point that because the petition had been filed in parts, it was not a proper petition. It is sought to suspend a law, henee it is necessaary to comply strictly with the statute. When does it become a petition, if it be not all filed on one day ? If the law be unconstitutional what reason can there be for the election ? Some would vote yes for the propositioa becau9e they are opposed to the liquor business, aüd some no, and others yes or no for various reaeons, but all would want the election only if it be constitutional. The other side must show why the ir junction should not be issued. If there is any doubt in your Honor's mind about the constitutionality of the law, I would not a-k you to graat the injunction; but if the law is clearly unconstitutional, the election ghould not be permitted. Mr. Whitman then considered the point raised by Mr. Knowlton that, even granting the unconstitutionality of the Uw, the irijurction should not be granted, rebuttiog tbe decisions that had been cited by the other pide. How can the complainant secure repsration if he be irjured by an unconstitutinnal law ? In regard to ilr. Knowl on's point that the cleik could cali the election anyway, Mr. Whitman examined the authonty. It is true where tne act is done under a constitutional law ; but when the law is unconstitutional, he wonld be liable to a fine for contempt cL court if be failed to obey the injunction that may be granted. All the cases cited by the defense were where the election had been held, and where the court was asked to et j in the countinjfof the vote, a purely judicial act ; but this issuing of the notica oy the cl-rk is a purely ministerial act which can be enjoined by the court. The injunction should be grar.ted on the ground that ïf the election be oalled, there will be immediate injury to the complainant, and it will be done under an unconstitutional law. Even the friends of the law want the election for its gubstantial effect, henee if the law U void, the writ should not iesue. It couU not benefit anyone. A court of equity seeks to get at absjlute jiiRtice, and avoids form. If there is any doubt about the unconstitutionality of the law, then the complainant's prayer ghould not be granted ; but if the court believes that it is unconstitutional, then thecounty clerk should be enjoined frora calling the election. a j sawyer's argument. I oceupy a peculiar position. I never before was employed oa a case in which my cliënt declined to consult with me. It is probably proper enough : he is the representative of the people. He thought it would be a long time before a county clerk of Mr. Howlett's intelligence would defy the wisheB of 1900 voters of Washte naw county, or put ay impediment in the wav of the operation of the law. Mr. Sawyer proceeded to clear up the cise from the techuicalities thrown around it by the opposing c maoil. lt mases no difference whether tbe law is constitutional or not. No court can declare a law in embryo unconstitutional. After it is a law in force here, then the courts can get hold of it. This is an attempt to defeat the right of the people to vote, and if it can be done in this case, it can in others. It isn't a question of whether the law shall be enfoced, but it is whether we shall have a chance to put it in force. The opposing counsel have not brought authority to show their right to defeat an election. A8 regards the title and body of the law agreeing, he claimed that the law essen - tially embodied the idea of regulation, just what the title called for. If the law declared that only colored men should engage in the liquor business, that would Le rej;ulation yet it would prohibit him. The Orchard Lake case was prohibition pure and -imple. In this local option law, there is not pure prohibition ; other things enter into it, and henee it amounts to regulation. As regards delegation of legislative power, he eaid that four state decisions would 8UStain the position that the tion intended in this law ia Dot contrary to the constitution. It is merely taking advice of the people as to whether they want a law in forcé or not. As to the question whether the court should stap this law in advance of its enforcement which might result in putting a man in jail before its constitiuionality could be tested, Mr. Sawyer said that he had investigated it, and had found that it was just exactly a law in which a court would not interfere, ond he read authority. The court is chary, especially in criminal law?, lo decide on them before actual caes of enforcement are brought to his attention. If the injunction be granted, it will be on the theory that a business will be injured by an expression of the will o' the people. Now, if this be done, I can, on the same legal principies, askforan injunction that ministers be enjoined from preaching, because if the preachers win the world over to Christianity, it will destroy the liquor business. This goes to the heart of the matter. There is no damage caused by this local option law which a court can properly prevent. In regard to the looal option law, when adopted by a county, repealing the tax law now in lorce, Mr. Sawyer read from the tax law to show that the poasibility oí probibition had been provided tor in it. Aa regards the petitions being improper, he found that a poll list in Ann Arbor contsiiif d names not in full. His own name was written A. J. Sawyer, and h9 honor's name was on the poll list a E. D. Kinne. They gay that the election should not be called because the petition was not signed by name in full. Who is to settle the question whether 1900 voters have signed the petition? Does it belong to a court? No. It is a pohtical question. Who is to settle it ? Suppose all had been signed in full ; then they would say that the names were forged. There must be common Kcnse somewhere, The question ig left to the county clerk to decide. It is judicial, and no court can interfere. There is no real injury to en)oin. The vote tnay never be taken. If taken, the law may not be carried ; if carried, it may not be enforced. It is a hypothetical injury which no court should step in to avert. He cited cases to show that the applica tion is premature. If the law is unconstitutional, it will be set aside when the officers attempt to enfore it; if it be constitutiona!, then it cannot be complained of. When an election is to be called and held, it is to be done according to statute. It is not a question for a court to decide how it shall be done or whether it shall be done at all or not. If anything illegal results from it, then the law can step in. This local option law provided all the machinery necessary for an election, and the question of whether the election shall be held or not belongs to the county clerk and not to the ccurt. Mr. Sawyer read a decisión in a similar case in which the unconstitutionality of the law was admitted, yet the court rtfused to grant an irijunotiOD restraning the election, because a case had not been presented. Granting that the law be oarried and enforoed, then found unconstitutiona), there is no injury to any one in a legal sense. Tbisquesüon was fairly befóte the Georgia supreme court twi;:e, and was so decided. None of the prrperty can be laken under the law ; the vnlue oí the propeny may be incidemally lesened by the pa-sage of the law; butt'his lannot be tru arded sgainst in all legUluiou. hnpairing the valué of Dropertv by legislation caunot be said te be legal damage. JUDGE KINNE DKNIES IT. The complain&nt in this cause is a resident of this county, and onder the lawa of this State has been permitted to become invested with large property interests. Both he and his propeity. under the laws of the State, are eniitlea to the same recognition and the same protection. as if he were a tiller of the soil or a merchant prince, and he is naturally and rightfully as sensitive to anyencroachment or invasión of those rights as any other person. and no court, upon grounds of public opinión or agita tion, should hesitate to accord to him the full complement of his legal and equitabie rights. This isa proceeding upon the chancery side of the court, and the problem here presented is: Does the complainant by his bill of complaiut make such a showing as entltles bim to the relief asked? The complalnant allefïes that he is the owner of a large and valuable brewery: ihat the defendant, who is the county clerk of Washtenaw county, is about to isue a cali tor an election by the electora of Washtenaw County, to be hoiaeu in accoraance with the provisions of Act 197, of the Session Laws of 18S7, of the State of Michigan, to determine wbtther or not intoxicating liquor shall be manufactured or sold within the county of Washtenaw. The complainant allegee that the pelitlon flled witb. the county clerk, upon which il is supposed he is about to act, is insufficient, for the reasons that it is eompowd of separate and dettched petitions, and hecause a large proportlon of the signers to said petition have signed their given names in initials. He further alleges, that if a majority of the electors of this county, at the impending election, should vote against the manufacture and sale of intoxicating liquors, it would reault in his absolute financia] ruin. He therefore asks for an injunction of this court, restraining the county clerk from calling said lection. It has been said, and we think truly, that an injunction being the strong arm ol equity should never be grauted, except in a clear caie of irreparable injury and with a futí convietion on the part of the courl of its urgent necessity. Whether the objections made to the petitions are tenable or not, become unimportant on this hearing, for the reason that the legislatura han lodged with the county clerk ihe authority to determine their Eufnciency, and thii court cannot on this motion review his action. The relief, therefore, asked forby the complainant involves not oniy the granting ot an injunction , but a judicial determinaron that this act of the legislature is unconstitutional and yoid. The legislature and judiciary are coordínate branches of our state government. and a court cannot proceed with too much caution, when it is asked to nullify the laws of the state, nor in my opinión, should this be done, uuless the case is free from doubt. Thelawitselt may be oppressive, unpopular, and may be deemed unwise, and even a public calamity. Yet these considerations would not authorize this court to declare the law uuconstitutional. If the position of the complainant. in respect to the unconstitutionality of this law, is correct and sound, and for the purpose ol tms nearing 1 may assume it so to be, men the apprehensions of the complainant are groundless, for the election could work him no irreparable injury. If the act of the legislature ia void, then no rights can be created under it, there can be no enforcement of lts provisions, nor any puuishment for lts violatious. Again, courts of equity do not interfere where there is an adequate remedy at law. In the case at bar the legal redress is open and complete. The law may uever become operattve in the county of Washteuaw, but if it should, yet if, as complainant alleges, it is void and a nullity, the laws of this state afford him ampie protection. Again, the relief askea for in this case is of an unusual and extraordinary nature. It is alleged that the people of this county are about to exercise the inalienable right of treemen, the right of elective franchise, an indispensable element in American liberty, and the complainant asks that this election of the people, by the people. and for the people, be re6trained and prohibited. It seems to me that such a request must strike every r flecting mind as a remarKable and dangerous demand. The assumption of such a pow1-r by a court of chancery would be a most singular and pernicious prerogative. It is a direct assault upen the legislative and political power of the land. It has been well said that if courts can díctate to the officers of the people that they Bhall not hold an election. from fear of some real or imaginan' wrong, then the people and the officers are entirely subservient to the courts, and the consequences are too fearful to contémplate. Such a principie would imperil every election, and furnish the most Wholesale provisión for obstructing the operations of our uovernment. It would place the state at the very verge of political chaos and make it the mere pensioner of a judge's mandate. Such an idea cannot be tolerated. The power to hold an election is political and not judicial, and a court of equity has no power to restrain an officer from the exercise of such power. This court has no jurisdiction of the matters alleged in the bill of eompiaint. This is not the forum for the trial of such grievances. Such questious. if they arise, must be determined in a legal forum, and are foreign to the well defined jurisdiction of equity. I may be allowed to reman that personally, I am, to say the least, conservative upon the questions involved and discussed on this hearing. I think the financial situation of the complainant appeals strougly to the sympathies of every rational and unpr.judiced mind, but this iüjunclion caunot be gramted without violence to the conscienee of the court, and the wellsettled Principies of equity jurieprudence. It is therefore my conclusión tbat the wrlt must be denied and the order to show cause cbargea.
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Ann Arbor Register