(dissenting). — On one question, discussed in the foregoing opinion, I find myself unable to concur with the majority of the court. That question arises on the construction given to section eighteen of the act of January 22, 1855, which reads as follows:
“ Sec. 18. At the April election to be hoi den on the first Monday in April, A. D. 1855, the question of prohibiting the sale and manufacture of intoxicating liquor, shall be submitted to the legal voters of this State, and at said April election, a poll shall be opened for that purpose, at the place of election in each township of each county. The vote on said question shall be by ballot, and the voters in favor of such prohibition, shall cast a ballot, whereon shall be written or printed, the words, “For the prohibitory liquor laxoand the voters opposed to such prohibition, shall cast a ballot, whereon shall be written or printed, the words, “Against the prohibitory liqxtor law.” The said ballot shall be received and canvassed by the judges of election, in the same manner as ballots for the election of officers, and a return of the same shall be made to the county judge, in the same manner and at the same time,'as provided for in the election of officers at the April election. Such return shall be treated by the county canvassers, in the same manner as returns for the election of officers, and an abstract of said vote, made upon a separate sheet, shall be forwarded to the Secretary of State, in the same manner and at the same time, as provided in the case3 of abstracts of votes for Superintendent and District Court Judges, elected at any April election. The returns of said vote, so returned to the office of the Secretary of State, shall be opened and examined by the Board of State Canvassers, in the same manner and at the same time, as in the case of returns of election of officers had at said April election. Im*224mediately after such examination and canvass, the said Board of State canvassers shall make and publish an official state* ment of said vote; and if it shall appear from such official statement, that a majority of the votes cast as aforesaid upon said question of prohibition, shall be for the prohibitory liquor law, then this act shall take effect on the first day of July, A. D. 1855: Provided, however, that those portions of the act having relation to the election provided for iú this sec* tion, shall be in force from and after its publication in the Iowa Capital Reporter and the Iowa Republican.”.
I pass over the objection, urged by the plaintiffs in error, that this section provides for the taking effect of the law in a manner not recognized by the constitution. If this section had been entirely omitted, I grant that the act would have taken effect, like all other laws, on the first day of July, 1855. And therefore, so far, I think, it might properly be disregarded. But in my opinion this section has a meaning and purpose beyond this — -going to the very life and essence of the law — and as such courts cannot disregard it.
A statute may be constitutional in part, and unconstitutional in other parts, and the constitutional provisions be ujDheld. But not so, whore the void provisions are vital to the execution of such as are constitutional — or where the act itself, is passed in a manner unwarranted by the fundamental law. And I also grant, that it is competent for the legislature to pass laws, the operative effect of which may depend upon a contingency — or upon the occurrence or nonoccurrence of a particular thing. Indeed, most, if not all, the laws on our statute books are more or less of this character. In all such cases, the law is complete and perfect in all its parts — no other than the constitutional departments have aided in passing the same — it is the will of the lawmaking power, to be applied and become operative, when the law is violated, or when the citizen shall claim the benefit of its provisions. But I think it quite different, when the law is made to depend, for its creation and existence, upon the will or voice of any other body or power, than that to which such power is alone constitutionally delegated. *225Tbe distinction is not in all cases, perhaps, susceptible of definite explanation, but to my mind it is, nevertheless, clear and ■important. For instance, I think the legislature may give to the judges of the different counties, power to submit to •the people the question, whether any extraordinary expenditure shall be made for the construction of roads, bridges or the like. Such a law is the rule prescribed, and is not dependent -for its creation or life, upon the aid of any other power. Whether it .shall ever be of any practical effect, depends upon circumstances, but it is nevertheless a law. But if, on the other hand, such a law had legislative sanction, dependent upon the sanction of the county judge or the people, it would have no life, without such approval, and I maintain that it is not competent .for the legislature to give vitality to law, on any such method.
That this last proposition is true, I think, is manifest, and indeed, on this subject, I do not understand, from the opinion of the majority, there is any diversity of opinion. But it is •claimed, that this law is not, by the 18th section, made to •depend, for its life and existence, upon the contingency of a popular vote. In other words, that, though a majority of -the votes cast at the said April election, had been “Against •the prohibitory liquor law,” the aGt would, nevertheless, have taken effect under the general provisions of the Code, on the first day of July. And this, I think, is the .fair and legitimate result of the argument. For when the popular vote is disregarded in considering the existence of the law, ■it conclusively-follows, that though .the vote had been otherwise, this act would, nevertheless, be the -law of the land* ■Ór, in other words, -the position is, that .this section is of no .force, so far as the life of the law is concerned — but it was to be enforced, whatever might be the result of that election.; .and that such election was only provided for, to test the minds of the people, and ascertain whether .they would give their sanction thereto.
In the first place, I never could have obtained the consent of my mind, to declare this law in force, if the popular vote -had been otherwise. And .this, not because such holding *226would be in violation of public opinion, but because I should regard it contrary to the manifest intention of the legislature, I am not, in my position as a judge, to control that will, when exercised within constitutional limits — but to- carry it out,, according to the best lights I can obtain. And, to say that it was the legislative will, that this law was to take effect, and become a rule of action,, whatever the result of-this election, to my mind would most palpably violate that intention, as-gathered from the law itself, and circumstances contemporaneous with its passage. To so hold, would be to say that this section means nothing — is a blank- — that the legislature provided for all the trouble, expense and form of an election,, for no end or purpose.. If so, then it was a deliberate fraud upon the people, and one which I do not believe was intended or thought of. But further,-1 cannot forget, nor have I a right to, that the submission of this law to a popular vote, and the propriety and constitutionality of such submission, was a question much discussed before, at the time, and after the passage of the law. And when I find a provision making such submission, I cannot feel justified in saying, that it had not some practical end in view.
It is said, however, that the practical end was this: If the people decided in favor of the law, then, having the moral power arising from their concurrence, the law would be more likely to be enforced. But this position, I think, is clearly inconsistent with the argument, that the law -would have taken effect, whatever the result of the election. For, to say that this vote was only to obtain the moral influence resulting from popular approval — and to hold that the law would be in force, in violation of popular sentiment, if so expressed at such election, would be to use an argument that destroys-itself. The reply to this is, that if the vote had been against the law, then the law, though in force, would not have been executed, and the next legislature would have repealed the same, and thus carried out the will of the peojcle. But ifr. in the meantime, prosecutions had been commenced under the law, or if the legislature, at a subsequent session, should fail to repeal the law, then it must necessarily have been ex*227ecuted, despite public opinion, and, as I think, in violation of the legislative intention, as expressed in the law itself.
But it is said again, that there are no negative words in this section ; and that by the general provisions of the Code, this law would have taken effect by publication at the time therein fixed; and therefore, no conclusion can be drawn, that the vitality of the law was made dependent upon the will or vote of the people. Granting the premises, is the conclusion legitimate. Now, ordinarily, laws are passed to take effect from their passage; from .their publication and distribution in pamphlet form; by publication in newspapers ; on a day named, after such publication; or no time is mentioned — in which latter'case, of course, the time of their taking effect would be regulated by the general law. The general law is, as before stated, that statutes shall take effect on the first day of July next after their passage. This section provides, that if it shall appear that a majority of the votes cast upon said question of prohibition, shall be “ for the prohibitory liquor law,” then the act shall take effect on the first day of July — the very day provided by law for the taking effect of all other laws. Had the time of its taking effect been some other than that named in the general law, the argument drawn by the majority of the court, from the absence of negative words, would, to my mind, have been stronger than at present. Then, it might have been urged with more plausibility, that if the vote was in favor, it was to take effect at the time named (say first of Juno); if against, then, of course, at the time of all other laws. But as it stands at present, -the argument is this: If the people approve, the law shall take effect on the first day of July, but if they should not approve, then it shall, nevertheless, take effect on the same day. Where, then, let me ask again, the necessity of the election? I answer, none, except for one that was illegitimate, and in violation of the constitution. I regard that by this section, the legislature intended to say, and have in effect said, this: If the people approve this law, then our will is, that it shall take effect at the time of all other laws; if they do not, then our will is, that it shall not *228take effect, either-then or at any other time. In other words, notwithstanding the people have, by their constitution, vested legislative power exclusively in us, yet we will not exercise that power ourselves, but will call in the aid of a power unknown to the constitution. If this section does not mean this, then I affirm it means nothing.
But let me make one query here : suppose at this election, no vote had been cast, either for or against the law, in the entire state. Would it have been the law of the land ? If not, then I say, it is conclusive that the law was not enacted by the constitutional power, but depended for its validity upon another power. If it would have been a law, then I say, it would have been such, in violation of the express will of the legislature — for that expressed will is, that it should take effect dependent upon this very vote, and in the case supposed, we have no vote.
Our constitution vests the legislative power of this state, in a Senate and House of Representatives, known as a General Assembly. To legislate, is to enact or make laws. To enact or make laws, is to decree or establish the will of the supreme power, which, under the constitution, is this General Assembly — limited, of course, by the charter which confers the power. Believing then, as I do, that the General Assembly have not declared their will unconditionally in the law, but have called in the aid of a power not provided for, nor contemplated, by the constitution, to assist in its en'actment, I cannot hold it to be in force. It had no life — no vitality — when it left the hands of the General Assembly. Eor its creation, it had to depend upon the breath given it 'by the popular vote. Without this breath, thus given, it never was designed to have an existence. And with it, I must regard it as being created and brought into life, in violation of the spirit of a constitutional government.
This character of legislation is novel, and we have but few authorities on either side of the question involved. These authorities are cited'in the opinion of the majority, and I need not refer to them. That the highest tribunals of the different states, should differ upon a question, involving so *229many nice distinctions, and susceptible of much argument on either side, is hut natural. After all the reflection which I have been able to give to the question, however, I am reluctantly led to the conclusion above indicated. I say reluctantly, because I would certainly prefer, if consistent witb duty, to have an entire concurrence on a question so unsettled, and subject to so much controversy. But while I thus dissent, I may say, in conclnsion, that I concur with the majority of the court, on the other constitutional questions discussed. I have neither sympathy nor favor to bestow upon those constitutional objections, which are urged against the main principles involved in this law. To promote the happiness, peace and prosperity of the state, is the highest duty of the legislator, and I know of no more certain means of accomplishing this, than to suppress intemperance, pauperism and crime. Those laws which restrain men from doing mischief to their fellows, while they may diminish the natural, increase the civil, liberty of mankind. Natural liberty must be so far restrained by human laws, as is expedient and necessary for the general advantage of the public, in order to constitute political or civil liberty. This restraint should not, of course, be wanton and causeless, but have in view the public advantage, and the general freedom of the' people in those matters of importance, which alone can secure perfect independence, and a prosperous and healthy state of society. These objects, this law, in my opinion, contemplates, and was designed to accomplish. Bnt a law ever so beneficent in its design, or beneficial in its consequences, must become such by the action of the legitimate constitutional power; and if not so enacted, should no more receive judicial sanction, than if ever so pernicious and dangerous. And it is because I do not believe tbat this law was so framed, that I do most respectfully dissent from the opinion of the majority.