(dissenting). — I. I am unable to concur in the opinion of tbe majority, in so. far as it holds that the act in question is not a delegation of powers of the legislature to the people, to repeal and enact laws, and therefore not unconstitutional. I am deeply impressed with the duty devolving upon courts, in passing upon the validity of statutes, to' uphold them, if possible. I agree that the. statutes should not be set aside save when they are palpably in violation of either the letter of the constitution, or of those underlying fundamental principles upon which our fabric of government rests. In determining the validity of a statute, we cannot consider or give weight to our judgment as to the necessity for, or the propriety or ■expediency of, the legislation in question. It is not for the court to determine what the law should be, and thus, under the guise of judicial judgment, creiate law, but its' province is to' declare what is the law. It is unfortunate that the legislation touching a subject which so engrosses the attention of the people, and upon which the convictions, of men are so decided and antagonistic, should afford1 any just reason for questioning its constitutionality. When it is so clearly apparent that the real purpose which the legislators had in mind, in the attempted enactment of this statute, could have been so easily and certainly accomplished by the passage of a proper law, which would have had the force and .effect of a completed act of legislation when it left their hands and had been .approved by the governor, it seems incomprehensible that they should have abdicated their powers as a lawmaking body, and deliberately violated a solemn duty devolved upon them by the constitution of the state. The importance of the question, as well as the wish I have had to reach a conclusion in harmony with my brethren, — a result always desirable, and especially so in a case like this, *22which so deeply affects the well-being of all the people of the state, — has led me to give much time and eonsidatiom to the question presented. After a careful consideration, of the views of the majority and a thorough investigation of the authorities bearing upon the question, I am impressed with the conviction that some of the provisions of the act are clearly in violation of the constitution of the state, and are a direct assault upon the very fundamental principles upon which our form of government is based. I cannot, therefore, either assent to the views of the majority, nor can I content myself without, as briefly as I may, expressing my views touching this question. I shall not set forth in detail the act itself. I shall refer to so much of it as is set out in the opinion of the majority, and hereafter state such other of its provisions as may be necessary to a full understanding of my views. The act, as will be seen, undertakes to tax the business of selling intoxicating liquors, through the person of the seller, the owner of the property where the business is carried on, and also the property in which the business is conducted. It then provides, in section 16, that “nothing in this act contained, shall be in any way construed to mean that the business of the sale of intoxicating liquors is in any way legalized, nor is the same to be construed in any manner or form as a license, nor shall the assessment or payment or any tax for the sale of liquors, as aforesaid, protect the wrong doer from any penalty now provided by law, except that on conditions hereinafter provided certain penalties may be suspended.” After thus announcing that they were not legalizing the business, and not conferring authority to license the traffic, they proceed by sections 17 and 18 of the act, to make provision for legalizing the business and exacting a license, at the option of a certain number of legal voters, and of the city council in cities, and boards *23of trustees in incorporated towns, upon the performance of certain acts by the one desiring to sell, and of certain other citizens. The act also provides for the suspension of penalties of the existing prohibitory laws, and bars all proceedings under such laws, upon the petition and action heretofore referred to being procured and had. Section 19 of the act provides that the bar to proceedings under the existing law, created by the performance of the acts before mentioned, shall cease to operate in favor of the party whenever he violates the conditions, at the option of the city council, or trustees of a town, or whenever it is so petitioned by a majority of the citizens. In all such cases the liquor seller becomes liable to all of the penalties of the prohibitory law. But in no case, according to the loording of the act, are proceedings under the prohibitory law suspended or barred, or penalties suspended, unless the requisite number of legal voters petition therefor. The ingenuity of the lawmaking power has often been severely taxed in the preparation and promulgation of prohibitory licenses, tax, and local-option liquor laws; but it is safe to say that the act in controversy is, in many of its features, unlike anything to' be found in any statute relating to intoxicating liquors.
II. It is a rule everywhere asserted, and nowhere denied, that the power of the legislature to enact and repeal laws cannot be delegated to the people; that the people, in their primary capacity, have no power to either enact or repeal a law. State v. Wilcox, 42 Conn. 369; Ex parte Wall, 48 Cal. 279; Locke’s Appeal, 72 Pa. St. 491; Fell v. State, 42 Md. 90; Parker v. Commonwealth, 6 Pa. St. 518; Maize v. State, 4 Ind. 342; People v. Collins, 3 Mich. 343; State v. Copeland, 3 R. I. 35; Rice v. Foster, 4 Har. (Del.) 479; State v. Young, 29 Minn. 474, 9 N. W. Rep. 737; State v. Swisher, 17 Tex. 441; People *24v. Stout, 28 Barb. 358; State v. Bond, 93 Mo. 606, 6 S. W. Rep. 469; Feek v. Township Board (Mich.) 47 N. W. Rep. 40; Santo v. State, 2 Iowa, 202; State v. Geebrick, 5 Iowa, 491; State v. Beneke, 9 Iowa, 203; State v. Weir 33 Iowa, 134; State v. King, 37 Iowa, 467. This doctrine is fully recognized in, the majority opinion. The contention arises over the question as to what, in a given case, constitutes such a prohibited delegation of power. The argument of the majority is based upon the claim that the act being complete in form, and so framed that its provisions may be taken advantage of by the people of any portion of the state, it is not dependent upon the action of the people for its validity, and that, if it operate to repeal the prohibitory laws, such repeal is not dependent upon the action of the people, but is accomplished by the law itself. In my judgment, not one of these claims is well founded. It must be1 understood that I am not now dealing with, the taxing features of this so-called law, but with that part of it which undertakes to suspend' — or, more properly speaking, repeal — the provisions of the prohibitory liquor laws upon petition of a certain number of citizens and the action of the council or board of trustees, as the case may be, which may be had only after such a petition has been filed, and after the performance of certain other acts provided fox’, whereby the sale of liquor is licensed and attempted to be legalized, and the further provisions of which act undertake, upon the said petition of citizens and other acts done thereunder, to revive or reinstate such prohibitory laws in all respects as if the same had never been suspended or repealed.
I maintain that, in so far as the act in question relates to those matters* it is of no' more efficiency than a blank sheet of paper. It is not a legislativé act. It is, at most, a mere proposition, submitted by the legislature to the people, of which they may avail them*25selves at their will, by the petition, thereby giving force and vitality to the act True, in form it is an act of the legislature; that is, it bears the signature and approval of the proper officers, — and in that sense only can it be said to be a completed act. The same thing may be said of any other act which may nevertheless be in fact in plain violation of the constitutional provisions. In arriving at a determination of this question, we may be aidéd by a consideration of what constitute some of the essentials of a law. Law is a rule of action prescribed by the supreme power of a state, commanding what is right and prohibiting what is wrong. Hence, the act, to be valid, must be more than a mere proposition submitted to' the people. It must command something. As is said in case of State v. Geebrick, 5 Iowa, 497: “The legislative power must command. It must not leave to the people the choice to obey or not te> obey -its requirements. It is not a law- enacted according to the requirements of the constitution, if there is left to the action and choice of the people upon whom it is to operate the determination of a question which may-result in a want of uniformity in the operation of a laiw of a general nature.” True it is, by this act the power is granted to the citizens to petition, but it is a mere privilege or power, not a command. Hence, in this respect, the act lacks this essential element of a law. The grant of power is to the people, by petition, in conjunction with the act of the council or board of trustees, to put in force certain proposed legislation, and repeal existing statutes, in cities and towns, when they may elect so to do; and the election of the people, thus expressed, is, by the act, made an absolute prerequisite to the change in the law. The suspension or repeal of the existing prohibitory liquor law’s, and the putting in force, in their stead, of a license law, and the protection of the liquor seller from the provisions and penalties of *26such prohibitory laws, are all based solely upon, and initiated by, the petition of the requisite number of citizens in a certain community. They, and they alone, by the petition, make it possible for the city council or board of trustees to create a rule and penalty. In the absence of the petition, there is no rule and no penalty as the provisions of the act in that respect command nothing, and do not become vitalized into life until the requisite petition'is presented, and certain other steps are taken thereunder. No rule of law and no penalty is created, then, until the people have petitioned, and not then unless the council or board of trustees act in furtherance of the wishes of the petitioners. What, then, gives eff ect and vitality to these provisions of the act? Manifestly, not the law itself, but the petition and the action had thereunder. The so-called legislative act is, in these respects, lifeless, ineffective, without force in and of itself, but life is breathed into the act by the petition and the act® thereunder. The old law is suspended or repealed, not by the act of the legislature, for we must remember that that act commands nothing, requires no> act of the people to be done, but the suspension and repeal of existing laws is accomplished as I have stated. Not only is the old law thus repealed, and the new order of things established; but the law thus enacted by the people themselves may be set aside without the intervention of the legislature, and the prohibitory law re-established by petition of the people, or by act of the council. So the prohibitory law may be repealed in one locality, and remain undisturbed in another locality, and yet, in the face of all these facts, it is contended that the law, ais an act of legislation, is effective in and of itself. If the petition and acts had thereunder do' not operate to suspend or repeal the prohibitory law; if such action does not give life and efficacy to an enactment which, in the absence *27of these acts, is a statute in form only, haying no force, —why is it that the act in question may be in force in one locality and lifeless in another? Clearly, then,- it is the petition and 'the acts thereunder which repeal the prohibitory law. The legislature has not commanded the repeal of the la w, but has said to the people of the several communities, By your petition and certain other action shall the law be repealed. The law-making power remits to the people the task of repealing the law, and thereby invests them with its own legislative authority, — delegates it to them, abrogates its prerogative, and undertakes to confer it on a body not authorized by the constitution to make laws. It is contended that the act itself works the repeal of the old law. How can that be when, as we have seen, the act commands nothing, — not even a vote. It is, in that respect, not mandatory, but a grant to petition for a law. The theory may be plausible, but, in my judgment, is not tenable. As is well said in the dissenting opinion of Reed, J., va. State v. Circuit Court of Gloucester Co., 50 N. J. Law, 585, 15 Atl. Rep. 287: “If this statute, as I have already remarked, delegated to the people the power to do that which is legislative, then, it does not matter how perfect its form, it is void. * * * The assumption that the vote is the result of the law, and not the law of the vote, is only a half truth. The vote is the result of the law and the law is the result of the vote. Unless a scheme framed by the legislature had provided for a vote, of course, there would be no vote. So the votes grow out of the statute. But because the vote is in this sense, a part of the scheme of legislation, it is no less true that all the people, as a legislative body of last resort, is intrusted with the determination of the final question, — law or no law. It adds to those bodies to which the constitution confides the approval of law another body. It makes the *28validity of the framework which the legislature has drafted to depend upon another mind than the legislature itself. Both the legislature and the people concur in the work, but because each contributed to the perfection of the statute makes, none the less the act of each, legislation.”
The argument of the majority opinion amounts to this: That, while the legislature cannot pass a law to take effect upon its approval by a vote of the people, it may pass a law whereby the people of the various localities- of the state may, by vote or petition, avail themselves of its provisions. To my mind, the latter scheme is no less an invasion of the provisions of the constitution than is the former, for, it must be admitted, in the latter case the act has no force and effect until its proposed benefits are accepted in the manner provided herein. As is said by Morse, J., in Feek v. Township Board (Mich.), 47 N. W. Rep. 42: “I have no appreciation of such an argument. It amounts to this, and this only: The legislature says to the people, ‘Do you want this law or not? If you want it, you can have it. If yo-u don’t want it, you can’t have it. Now, meet at your polling places, and vote upon it, and make your choice.’ If, in such a case, the people do not, by an election, make the act a law, or reject it, then I am obtuse. This would be a convenient thing for a legislature wishing to shirk their responsibility, — to submit all their law-s to the vote of the people, for if they can submit one they can all; but it is not the way provided by our constitution for the enactment of laws.” Acts conferring powers upon municipalities are upheld because of the fact that they are complete and valid laws when they come from the hand® of the legislature, and the happening of the contingency or event which furnishes the occasion for the exercise of the power gives no additional efficacy to the law itself. Touching *29this matter, I quote approvingly the language of Wagner, J., in Lammert v. Lidwell, 62 Mo. 192: “It derives, its whole vigor and vitality from the exercise of the legislative will, 'and not from the vote of the people. * * * It must operate by virtue of the legislative authority, and not depend upon popular action or the people’s suffrages for its vitality.” And Sherwood, J.,. in State v. Pond, 93 Mo. 606, 6 S. W. Rep. 489, says: “In certain classes of cases * * * relating to mere local or municipal objects, it is perfectly competent for the legislature, by a law complete in itself, — one announcing penalties for its violation, — to submit to the people of certain localities, to determine by their votes whether some .small minor regulation, incident to, but not necessary to, the existence of the law itself, shall be adopted. But if the law is not complete, if it has no self-enforcing penalty, when it leaves the hands of the legislature; if it is a mere proposal to the people of certain localities to determine whether certain printed matter which appears on the statute books shall become a law or no, — then such a proposal is a clear delegation of legislative power, and for that reason unconstitutional.” It is said that the legislature may pass a law to take effect upon contingency. That is true. In that respect I approve of the rule laid down by Reed, J., in State v. Circuit Court of Gloucester Co., supra, where he saysr. “The difference between the statutes based upon a valid contingency and those based upon a contingency void as a delegation of legislative power, may, I think, be clearly stated. The first is a statute ordaining a fixed rule of - civil conduct, applying to a certain prescribed condition of fact, which may arise in futuro. The last is a statute which leaves to the people the power to say whether, when such a rule has been enacted, it shall ever become operative. One leaves the rule a law ready to operate upon *30the subj ect-matter whenever it arises. The other leaves it to another to say whether the rule shall ever become a law.” It would be an interesting study to review and comment upon very many eases touching what is a delegation of legislative power, but the length of this opinion forbids. I can only say that the rule I contend for finds abundant support in the following cases (I do- not claim that they are all exactly in point, under a state of facts such as we have in the case at bar, but in principle they recognize the doctrine upon which this dissent is based): Parker v. Com., 6 Pa. St. 507; Maize v. State, 4 Ind. 342; Ex parte Wall, 48 Cal. 279; People v. Collins, 3 Mich. 343; Rice v. Foster, 4 Har. (Del.), 479; Parto v. Himrod, 8 N. Y. 483; State v. Swisher, 17 Tex. 441; People v. Stout, 23 Barb. 356; State v. Young, 29 Minn. 474, 9 N. W. Rep. 737; State v. Copeland, 3 R. I. 35; Fell v. State, 42 Md. 90; Locke’s Appeal, 72 Pa. St. 491 (dissenting opinions of Reed and Sharswood, JJ.); Santo v. State, 2 Iowa, 203; State v. Beneke, 9 Iowa, 202; Geebrick v. State, 5 Iowa, 493; State v. Weir, 33 Iowa, 134; and many other cases. It is said in the majority opinion that the first three cases cited above have been overruled, or otherwise weakened as authority. This is a misapprehension, as will be seen from the able dissenting opinion of Sherwood, J., in State v. Pond, supra. Another thing worthy of mention in this connection is that the opinions m-uch reli-ed upon in the majority opinion, in the cases of State v. Circuit Court of Gloucester Co., State v. Pond, and Feek v. Township Board, were rendered by divided courts, there being able dissenting opinions in each of these cases.
*328 *30III. It is s-aid that this question is settled' by our own decisions, though it is conceded that “statements have been made in som-e of the earlier opinions of this court, somewhat at variance with the views herein expressed.” The concession was very proper, as, in my *31judgment, the rule I contend for has found frequent recognition in the opinions of this court. In fact, as I read the cases, there have never been but one or two departures from the rule. One was in the case of Dalby v. Wolf, 14 Iowa, 228, wherein an attempt was made to distinguish that case from the line of cases before that decided by the court. It was said in Weir v. Cram, 37 Iowa, 653: “In the one case the people of the counties are permitted to make certain local police regulations, to have the force of law; in the other, a law is enacted by the legislature which can have no force in any county until sanctioned by the vote of the people thereof.” It occurs to me that the attempted distinction is more imaginary than real. Furthermore, I have endeavored to show that in fact the act in question can and does have no force without the action of the people. Upon a careful examination of the cases of City of Des Moines v. Hillis, 55 Iowa, 643; Morford v. Unger, 8 Iowa, 82; and State v. King, 37 Iowa, 462, — it will appear that none of them came properly within the rule applicable to the case at bar. It has always been held permissible to delegate to municipal corporations certain powers of legislation. So it is not disputed that the legislature may make a grant of power, as of a charter (in the absence of constitutional prohibition), the acceptance of which might involve certain liabilities, and such acceptance may be conditioned upon a vote of the people. Nor do I dispute that administrative powers may be granted to a municipality, dependent upon a vote of the people. The case of Weir v. Cram, 37 Iowa, 653, is, in principle, like that at bar. The act (stock act) was made to depend on the vote of the people, and was held unconstitutional. The rule I contend for has found frequent recognition in cases from this state heretofore cited. But, whatever construction may be placed upon some of the decisions of this *32court which seem to sustain the views of the majority, I am unwilling to recognize or give effect to a rule which I deem so plainly in violation of the constitution. I have discussed but one objection to this law,— that it was an unwarranted delegation of the lawmaking power. I think there are other and all-sufficient reasons for holding it unconstitutional, but I am admonished that the length of this opinion precludes their consideration. Nor is it necessary, as, for the reason that it is a delegation of legislative power, the act is void. I do not wish to be understood as now passing upon the question as to whether the taxing features of this act may be upheld, notwithstanding the void provisions of the act which I have been considering. If the law, as to, the tax provisions, should be held constitutional, it would add those provisions to the existing prohibitory law. That question is not discussed on this appeal, and it will be time enough to pass upon it when it is properly raised. ■What I do hold is that in so far as the act undertakes to submit to the people, by petition, the question as to whether it shall become effective, and enables them by such petition, and other action contemplated in the act to be based thereon, to repeal the existing prohibitory laws, and legalize and license the sale of intoxicating liquors, it is unconstitutional, as a clear evasion of legislative responsibility, and a delegation of the power to pass laws, which rests exclusively in the legislature. Let it be understood that I have no doubt of the power of the legislature to pass a general license law or a general prohibitory law, but I affirm that they cannot pass such a law, and make its taking effect dependent upon a vote or petition of the people. I think the rule of the majority opinion is full of peril, opens wide the door, and invites members of the legislature bo put aside the discharge of the duties properly devolving upon them,*33removes the personal responsibility which, under bur form of government must ever rest upon the law-making power, and takes away the constitutional safeguards against unwise, ill considered, and hasty legislation. In brief, it is a long step towards a government of the town meeting, and tends strongly to encourage the very evils in legislation which our representative form of government was created to correct. The judgment below should be reversed.