Upon the question whether this principle may be applied to the state at large and the operation of a law be made to depend upon the result of a popular vote, the weight of judicial opinion is decidedly to the effect that it is an unlawful delegation of legisla tive power ; State v. Beneke, 9 Ia. 203 ; Ex parte Wall, 48 Cal. 279, 313, 17 Am. Rep. 425; Bank of Chenango v. Brown, 26 N. Y. 470; State v. Pond, 93 Mo. 606, 6 S. W. 469 ; State v. Swisher, 17 Tex. 441; Caldwell v. Barrett, 73 Ga. 604 ; Bradshaw v. Lankford, 73 Md. 428, 21 Atl. 66, 11 L. R. A. 582, 25 Am. St. Rep. 602.
Earlier cases, however, have maintained this view more strongly than later ones. The ground upon which the doctrine of the invalidity of such legislation is based is very well stated in the leading case of Barto v. Himrod, 8 N. Y. 489, 59 Am. Dec. 506. In that case it was said by Ruggles, C. J., that the exercise of such power by the people is forbidden by necessary implication. The entire power of legislation is vested in the legislature, and it hag no power to sub mit a proposed law to the people who volun-1 tartly surrendered the power of direct legis lation when they adopted as a form of gov ernment a representative democracy.
There are, however, opposing opinions ex pressed with much force. Redfield, C. J., considers the arguments by which the doc trine is sustained to be "the result of false analogies and so founded upon a latent fal lacy," though he admits that he was "at first, without much examination, somewhat inclined to the same opinion." State v. Par ker, 26 Vt. 357.
The argument pressed as against the pre vailing doctrine is that it is competent for the legislature to pass a law which shall only take effect upon the happening of a contin gency and that it is no extension of this principle to provide that the contingency shall be a popular vote in its favor ; Smith v. City of Janesville, 26 Wis. 291. In the Ver mont case the act held valid was to take ef fect in any contingency ; but in case of a popular vote being against it, the time when it should take effect was postponed to a later day ; and in the Wisconsin case an act tax ing shares in national banks was to take effect only after approval of a majority of the electors voting on the subject at a gen eral election. In another case similar to that in Vermont the court was equally divid ed; People v. Collins, 3 Mich. 343.
This question of the submission of the legislation to a popular vote has been special ly considered in connection with so-called lo cal option laws as to which there has been strong pressure of public opinion tending to wards the relaxation of the strictness of the earlier rule and the tendency to hold that the question, whether a general police regula tion should be of force in a particular locali ty, might be submitted to the voters of the district.
Acts (commonly called local-option laws) permitting the people of a locality to accept or reject for themselveg particular, police regulations, have been upheld as constitution al; Appeal of Locke, 72 Pa. 491, 13 Am. Rep. 716 ; Com. v. Fredericks, 119 Mass. 199 ; Groesch v. State, 42 Ind. 547; contra, Parker v. Com., 6 Pa. 507, 47 Am. Dec. 480;. Rice v. Foster, 4 Harring. (Del.) 479; State v. Weir, 33 Ia. 134, 11 Am. Rep. 115. See Cooley, Const. Lim. 150 ; State v. Carpenter, 60 Conn. 97, 22 Atl. 497 ; and see DELEGATION ; Liquott LAWS ; LOCAL OPTION.
With respect to any subject matter prop er to be submitted to a popular vote it is held that the expression of the sovereign will of the legislature that a particular prop osition or question be so submitted need not take the form of a law, but it may be in the form of a joint resolution; the secretary of state must certify to the proper officers of the various counties in the state a joint res olution passed by the legislature, that the question whether a constitutional convention should be held should be submitted to the people; and in case of his refusal may be compelled by mandamus to do so ; State v. Dahl, 6 N. D. 81, 68 N. W. 418, 34 L. R. A. 97.
The legislature cannot delegate its law making power, but it has the power to cre ate municipal corporations and to invest them with the powers of local government, including particularly local taxation and po lice regulation; Cooley, Const. Lim. [191].
The state government may delegate to a municipal corporation part of its own but these powers cannot be delegated by the corporation, unless the authority to delegate is specially granted by the legisla ture, nor can the corporation divest itself of the discretion vested by the statute ; State v. Garibaldi, 44 La. Ann. 809, 11 South. 36.