Upham v. Supervisors

Terry, C. J., delivered.the opinion of the Court—Burnett, L, concurring. The only question presented by the record in this case is the constitutionality of the act of 1856, to provide for the location of the county seat of Sutter county.

The act authorizes the question to be submitted to the voters of the county, and provides that any place, receiving a majority of all the votes cast, should be declared the county seat.

The appellant contends that under the provisions of the tenth section of article six of the Constitution, which directs that “ the times and places of holding the terms of the Supreme Court, and the general and special terms of the District Courts, within the several districts, shall be provided for by law ;” th e Legislature must directly select the places of holding the terms of the District Courts, and the authority to do so cannot be delegated.

Admitting this construction to be correct, it does not necessarily follow that the right to locate county seats may not be conferred upon the people of the different counties; the Constitution does not require the terms of the Districts Courts to be held at the county seats, and we think' it would be competent for the Legislature to fix upon other places for that purpose.

But we are not able to perceive any conflict between the Constitution and the apt in question; we think that the places of holding Courts are “provided for by law.” When it is enacted that the terms shall be held at the county seats of the different counties, providing for a place does not necessarily include its direct selection; if the mode of selection is prescribed by law, then the place is provided for. By the Constitution the Legislature is required.to provide for many objects which cannot be effected by the direct action of the Legislature, and while the maxim delegatus non potest delegare, is undoubtedly true, the extent of its application to legislative bodies must depend upon the nature and design of the legislation and the means necessary to accomplish the design, as well as a knowledge of the powers [383]of the Legislature and the acts which may be done in the exercise of those powers. A question similar to the one under .consideration arose in the case of the People v. Reynolds, 5 Gil., 1. The Court said:

“ In determining what is legitimate and proper legislation, we feel warranted in looking at the past to see what kind of laws legislative bodies have been in the habit of passing. If we take the action of all past legislators in determining what may and should properly be done in the exercise of legislative powers, we see that while they are bound to make the laws, yet those laws need not be absolute, nor make every provision for doing that which they may authorize to be done; while all must be done under their sanction, yet they need not do all, nor command all. A law may depend upon a future event, or contingency, for its taking effect; and that contingency may arise from the voluntary act of others. Of this class are all laws creating private corporations, and a very large proportion of the laws creating public, or municipal corporations. The former must necessarily be submitted to the corporators for acceptance before they take effect; and this has been very usually done with the latter, especially in the incorporation of towns and cities, and not unfrequently of counties; and we have never heard it questioned before, that the Legislature might properly submit a law, creating either a private or a public corporation, to the acceptance of the corporators. All such laws are perfect and complete when they leave the hands of the Legislature, although a future event shall determine whether they can take effect or not. If we say that this is an unauthorized delegation of legistive power, we forget what is a proper and legitimate exercise of that power. If the saying be true, that the Legislature cannot delegate its powers, it is only so in its most general sense. We may well admit that the Legislature cannot delegate its general legislative authority; still, it may authorize many things to be done by others which it might properly do itself. All power possessed by the Legislature Is delegated to it by the people, and yet few will be found to insist that whatever the Legislature may do, it shall' do, or else- it shall go undone. To establish such a principle in a large State would be almost to destroy the government. The Legislature may grant ferry-licenses, or it may lay out roads and specify their metes and bounds, and yet, who will doubt that it may delegate this power to others, either by general or special laws ? So, also, it may pass all the laws requisite for the government of a particular city, or township, or school district, and who will doubt the propriety of its authorizing this to be done by the people within the limits of the city, town, or district, by their local representatives, or even directly ? . This is making laws, and laws, too, of as binding efficacy as if passed directly by the Legislature. They are de