People v. Nally

By Crockett, J., Rhodes, J., concurring: The first section of the Act of March 28, 1874, (Statutes 1873-4, p. 755), directed a vote to be taken of the qualified electors of Siskiyou county, whether a certain portion of Klamath county should be annexed to Siskiyou. If a majority of votes should be in the affirmative, the Act provides that Klamath county shall be abolished, and a portion of its territory shall be annexed to Siskiyou, and the remainder to Humboldt county. It is claimed on behalf of the relator, that this was a delegation of legislative power to the people of Siskiyou, and that for this reason the Act is unconstitutional and void.

Whilst it is undoubtedly true that there is a considerable conflict in the authorities on the questions whether an Act [480]of the Legislature, which is to take effect or not, as it may be determined by the popular vote, is a delegation of the law making power, I think the weight of authority in this State and elsewhere, fully supports the negative of the proposition, and especially in respect to local statutes.

In this case, the only proposition submitted to a popular vote was whether a portion of Klamath should be annexed to Siskiyou county, and if the vote was in the affirmative, then the county of Klamath was to be abolished and its territory annexed to Siskiyou and Humboldt counties, in the manner provided in the Act. The case, therefore, presents the naked question whether an Act annexing a portion of one county to another, and which is to take effect only in the event that a popular vote of one of the counties is in favor of the annexation, is a delegation of legislative power. It is to be observed that the Act related to a matter of purely local concern, in which the people of the district to be affected by it, were alone interested. In this respect it differs materially from the Local Option Liquor Law, so called, which was involved in Ex parte Wall, 48 Cal. 278. In that case the question was whether a statute authorizing a general law to be suspended in certain political subdivisions of the State, by a vote of the people of the district, was a delegation of legislative power. However the rule may be in that class of cases, it is settled, I think, by an overwhelming weight of authority in this and many other States, that in matters of purely local concern, it is competent for the Legislature to enact that a statute affecting only a particular locality shall take effect on condition that it is approved by a vote of a majority of the people whom the Legislature shall decide are those who are interested in the question. In Upham v. The Supervisors of Sutter County, 8 Cal. 379, the question was, whether an Act authorizing the location of a county seat, to be determined by a popular vote, was unconstitutional on the ground that it was a delegation of legislative power; and the Act was held not to be obnoxious to this objection. In Hobart v. The Supervisors of Butte County, 17 Cal. 23, the same objection was urged against an Act which authorized the Supervisors to issue