¶1Concurring as I do, in the judgment of the Court, as pronounced by the Chief Justice, on the principal question in this cause; I should not add any thing, had I not been particularly referred to as having drawn the opinion in the case of Welcome Gray vs. The State of Delaware. That opinion was not delivered; nor is it published as the opinion of the Court. No judgment was pronounced on the point now brought up. If, therefore, there be any thing in it which the deliberate judgment of this Court does not sanction, it can have no authority here. The Chief Justice has said that there is no conflict between the cases; if there was, I hope I should have candor enough to admit and to correct the error, as I had much rather be right, than to be consistent: but the distinction between that case and this is, I think, striking and obvious.
¶2It is conceded by all that legislative power cannot be delegated. That case assumes that the legislature may pass a conditional law. Both of these propositions are true. The error in the argument is in supposing them to be alternative or inconsistent. Doubtless, the legislature may pass many conditional laws; but there are many conditions that would make such laws improper. A law opening a road, *500 on condition that the owner of the land over which it passes will give it for that purpose: a law for building a bridge, on condition that individuals will contribute to the cost in certain proportions: a law altering, abridging or enlarging the vested powers of corporations aggregate, subject to the consent of such corporations; or a law giving to school districts a portion of the school fund, on condition that such districts will raise an equivalent or proportional sum — are all instances of proper conditional legislation; even though the assent of the corporators in the one case to the change of their charter, or of the district in the other to accept the donation, and comply with its terms, should be signified by a majority vote. These are all good conditions, capable of being performed without in any way interfering with the legislative will. But a law declaring an offence, or providing a punishment, or repealing an existing law, on condition that the Governor, or any other individual, shall assent to it, is as plainly unconstitutional. It is the naked veto power. It substitutes for, or rather adds to, the legislative will, another will which it makes necessary to the existence of the law. This is unconstitutional. No one doubts it. No one will pretend that a law with such a condition would be good. Yet what is the difference in principle between that, and the condition of the act of 1847. It "authorizes the people to decide by ballot," whether a new law of the State shall prevail: whether an old law of the State shall be repealed — nay; it goes further, and authorizes the people of a county again and again to repeal or re-enact this law at pleasure, without any return to the legislature, or further expression of their will. Is not this plainly substituting the will of the people for the will of the legislature; is it not in fact, abandoning the power of legislation on the subject? What is the subject matter of this act? The policy of permitting any license for the sale of intoxicating liquor. Who can say from this bill what was the judgment of the last legislature on that subject? — The bill, instead of announcing the absolute will of the representatives of the people on this question, gives no intimation of their judgment upon it; but "authorizes" the people "to decide" whether this new law, or the old law, shall be the law of the land. This fact, apparent on the face of the act, would seem to be conclusive against it. There is no power but the legislature that can make the retailing of liquor an indictable offence, or repeal ah existing law; and the legislature can neither devolve this power upon another, nor call into operation the will or agency of any other power for this purpose. The act in question assumes to do both; but no man can say from *501 the law itself, or from the journals of the legislature, whether it was the judgment and will of any member of that body, that the retailing of liquor should be an indictable offence, or that existing laws on that subject should be repealed. Yet it is this judgment and will of the legislature that is law; if, therefore, the act give no evidence of legislative will, how can it be a law. Law is a rule of conduct prescribed by legislative power — the result of legislative judgment, and the manifestation of legislative will: this act prescribes no rule, expresses no judgment, manifests no will of the legislature; but leaves it to the judgment and will of the people to "decide by ballot whether the license to retail intoxicating liquors shall be permitted among them." The most that can be possibly claimed for such an act as the expression of legislative will is, that it is to be a law, enacted by the legislature, on condition that a majority of the people of one of the counties approves of it. But this is the very condition which has been conceded to be unconstitutional in the case of a bill subject to the approval of the Governor. What is the difference? A law depending for its existence on the approval of one man, is the same in principle with a law depending on the approval of any number of men, or of the whole people. For it is not pretended that any legislative power resides in the people, any more than in the Governor. What difference is there, then, between the two cases?
¶3It is much to be regretted that this provisional mode of legislation could not have been tested on some subject concerning which the public judgment was less likely to be influenced by their wishes than on this question of restraining licenses for the sale of liquor. So ardent are the friends of temperance to push forward their good work, and so many hopes are resting upon this act as an effective auxilliary to these efforts, that the principle of the act is in some danger of being concealed by the anxiety to see it established as law. Nor can any one, considering it as closely as he may, and in the light thrown upon it by argument and authority, entirely divest himself of the imposing weight of a popular vote of a large county in its favor, and the concurring voice of many citizens in all the counties engaged in the great, cause which this act was intended to subserve. For myself, I can say with perfect truth, that I have met this question hoping to find it compatible with my duty to sustain the law, and yielding reluctantly at last to a contrary conviction. But these are considerations which are limited by higher obligations; and, when the matter to be considered is the constitutional power of the legislature to pass an act authorizing the people to decide by ballot whether *502 any thing shall be law or not, it is precisely the same whether the subject of such legislation be the restraint of licenses, the punishment of crime, the descent of property, the protection of life or liberty, or any other subject of public policy. Take for instance the question of slavery. It exists by law. It can be abolished by law. If a majority of the representatives of the people in General Assembly met should pass a law to abolish slavery, the citizens would all be bound by it; because all are represented there, and have agreed to be bound by any law thus made. But if the legislature, instead of passing such a law themselves, should direct an election to be held in each county, and make the existence of slavery in such county to depend on a majority vote, upon what principle could such an act be binding? Even the citizens of the county voting have never consented to be bound by the will of a majority expressed in that form; but what shall we say of the citizens of the other counties who have neither vote nor voice in the decision? It is vain to say they are not interested in the matter, as the law is to operate only in the county voting for it; they are all interested in every question of general policy, and must be directly affected by the result; to say nothing about the absurdity of different rules of conduct existing in the several counties on the same general subject of legislation.
¶4I have said that law is a rule of conduct, prescribed by legislative power, commanding what is right, or prohibiting what is wrong. This is the exact definition given by the highest authorities. It is arule — a certain, positive and known principle of action; a rule prescribed — fixed upon, defined, ordered and made known; a rule prescribed by legislative power — by that depository of sovereignty, or branch of government, whose province it is to make law. No other can prescribe a rule of conduct for the citizen, or announce a will that the citizen is bound to obey. Law is never, in this sense, contingent; it is never subject to the discretion of those whose conduct it is designed govern. It is acommand; not counsel merely, or advice; it prohibits, and does not persuade. It extends its iron sway over the unwilling as well as the willing, and never asks the consent or ratification of any other than the creative power.
¶5It is true that, in this country, law may be said in one sense to depend on the consent of the citizens; but it is a general consent expressed through their representatives in the act which makes the law, and never depends on subsequent individual approval. The people have agreed to be bound by the judgment and will of their representatives, as expressed in their legislative acts, because all the people are *503 there represented; but they have never agreed to be Bound by the judgment and will of a majority of the citizens of any county, where they are in no respect represented. Neither have they ever agreed that their representatives should place them in this dilemma. It is the right and the duty of the representatives of the people in legislature assembled to make the law according to their own judgment. In this judgment the people confide; in this body the people are all represented; and by its judgment, as expressed in the law which it announces, the people are all bound, for the very reason that it is their own act, done by their authorized agents. But when these representatives, by an imperfect legislative act, assume to subject their constituents to the judgment and will of any other body, however numerous; expressed in any other form, however imposing; the delegation of such power is unauthorized and invalid, and the execution of it is not an act of legislation but of usurpation, which the citizen is not obliged, and the other departments of government are not at liberty, to obey.
¶6The validity of by-laws of corporations rests on the same principle of consent. They are local in their character; generally unimportant in their bearing on public interests; and binding only on the members of the corporation, or strangers who voluntarily place themselves within the corporate jurisdiction. The right of the legislature to bestow on corporations the power of internal regulation; and the capacity of corporations to receive and exercise such power, even though it involve legislative power within the corporate limits, exist at common law, and are recognized by the constitution. (Art. 2. sec. 17; Art. 7. sec. 8.)
¶7The case of Gray vs. The State is pressed upon us as a case of conditional legislation. Granted. But the condition was one that might be lawfully performed. And this is the very matter in issue. A law creating an offence, and punishing it, on condition that the governor, or any other individual, or any number of individuals, shall approve of it, is void; because the legislaturecannot constitutionally confer on any individuals such a power: a law giving the mayor's court of Wilmington power to try assaults and batteries, and leaving it to the judgment of the city council to decide whether the mode of trial shall be by jury, or not, is agood law; because the city council has the constitutional power to decide this very matter. The mayor's court is the court of acorporation: and the city council is the legislature of the corporation. It has power to regulate the mode of trial in its own court. A municipal corporation in *504 a State, is a government within a government; having all the powers within the sphere of its action, of any other government, legislative, judicial, and executive. The power to enact by-laws is inherent in such a corporation. It was expressly granted to this corporation in both its charters. "Sec. 5. The members of the council shall constitute thelegislative body of the said city," with full power to pass laws for the government of the corporation. When, therefore, the jurisdiction of the mayor's court was extended to assaults and batteries by act of assembly, it was very properly left to thelegislature of this corporation to decide upon the mode of trial; a matter directly within their constitutional power. Now, the question in that case was, whether the city council was a body upon which the legislature could devolve the power of deciding the mode of trial in the mayor's court, and the question is answered by the statement of the case itself. The city council, as the legislature of this corporation, had by common law, and also, by grant, long prior to this act, full power to pass laws for the punishment of certain offences within this city, as well as to regulate the mode of trial; and, the law referred to, only recognized that power in a body which was perfectly capable of executing it. Had the legislature said nothing about the mode of trial, the city council would have had power to regulate it. The act now under consideration does not, therefore, derive any support from the opinion cited, even if that opinion had the force of a decision. Until it can be shown in this case that "a majority of the people" in each county, have the constitutional power "to decide by ballot" whether a new criminal offence shall be created, and an existing law repealed; both of which are acts of the highest legislation; an act of the general assembly "authorizing" them to do so, can find no support by comparison with a law authorizing the legislature of a corporation to perform an ordinary act of legislation, within the scope of its constitutional powers. The people of a county — nay, the people of the State, have no such constitutional power. They parted with it for their own good, when they "vested" it in "a general assembly, to consist of a Senate and House of Representatives;" and it is not in the power of the general assembly to return it to them. Gloomy, indeed, would be the prospect for this, or any other representative republic, if the people themselves should ever withdraw this power from their representatives, to exercise it through the medium of legislative ballot-boxes. All history teaches, not only that this would lead to anarchy and despotism; but that it is itself a state of anarchy. Fortunate it is for us, that our wise and patriotic *505 ancestors, have interposed between us and such a state, the restraints of the constitution; which neither the judiciary, nor the legislature, nor the people themselves, will ever disregard, when the true principles of the constitution come to be considered, and fully understood.*The Chancellor. — I concur in the opinion of the court as delivered. It may, perhaps, be expedient for me to present in addition to what has been said there, a brief argument which appears to me decisive upon the question.
¶8The action of power I regard as distinct from the power itself. Law is the result of the legitimate action of legislative power. The people, in the exercise of their sovereign power, make the organic or fundamental law; which, as the constitution of the State, is unalterable, *506 except in the mode it prescribes, or by revolution. The constitution being established by the sovereign power, exists as the expression of that will, and constitutes the agreement or social compact under and in conformity with which the citizens assent to be governed. Hence, the constitution is always held to be the paramount law; and, being the expression of the sovereign will, must necessarily control and invalidate every act of an inferior power when in conflict, or subversive. In the State of Delaware, the constitution has defined and distributed the different powers of government, executive, legislative, and judicial. They are respectively derived from, and exist under the constitution; and, whenever their action would destroy the constitution, it becomes suicidal. The offspring must inevitably perish with the parent; the branches cannot survive the destruction of stock and root. These general principles I apprehend will not be questioned. It is also evident that the powers delegated must not only act in the appropriate sphere, but also, in the legitimate mode or manner essential to effect a valid act. Hence, the legislative power, as it exists under our constitution, cannot depart from the sphere of municipal legislation, except its action conforms to the amendment as prescribed in the constitution itself. In like manner, the action of the legislative power, when exercised in order to produce a valid law, must be in accordance with the mode of action prescribed in the constitution; otherwise, the result cannot be pursuant to the agreement as contained in the social compact; and, therefore, not obligatory on the citizen. To illustrate and explain the principle, I will advert to the constitutional provision relative to the action of the legislative power, and the delegation thereof. In the 2d article of the constitution of the State, sec. 1st., "The legislative power of this State shall be vested in a General Assembly, which shall consist of a Senate and House of Representatives." Sec. 6. "A majority of each house shall constitute a quorum to do business." Sec. 8. "Each house shall keep a journal of its proceedings." Hence, it is obvious the legislative power is vested, not in a single body, but in two — a Senate and House of Representatives; and by sections six and eight, it is manifest the action of each, in the exercise of the power, is required to be several; although no bill can become a law without passing both houses. Thus each is a check on the other; and the constitution, by this provision, has intended protection against hasty and. injudicious legislation. Suppose the legislature should resolve to meet in joint session, and as a single body enact laws, thus varying the mode or manner of action of the legislative *507 power, although the power would exist in the component parts of the body, yet action would be incapable of making a constitutional law. If then the joint action of the body possessing the power separately, cannot, in consequence of the irregular mode of action, make a law, it would seem impossible for the mind of man to imagine any ground capable of sustaining the position, that a law of the State of Delaware can be made by a popular vote that would be constitutional; even should it be by a majority of the votes of all the citizens thereof who were entitled to exercise the right of suffrage. But when it is impossible to find the law making power either in existence or action in the popular vote of a State, it would certainly be useless to expect to find it in a minority, or in a county. Should it be thus abandoned by its depositaries, I hope the spirit and emphatic language of the Delaware constitution, announced by an independent judiciary, will always, with an intelligent people, be found an adequate and sufficient remedy.
¶9* The Supreme Court of Pennsylvania has expressed the same views, not only on the general question, but on the particular distinction here contended for. In the case of the borough of West Philadelphia, (5 Watts Serg. 283,) ChiefJustice Gibson, delivering the opinion of all the court, said — "Under a well-balanced constitution, thelegislature can no more delegate its proper function, than canthe judiciary. It is on the preservation of the lines which separate the cardinal branches of the government, that the liberties of the citizen depend; for a consolidated sovereignty, in whatever form, is a despotism, in so far as it subjects the governed, not to prescribed rules of action, to which he may safely square his conduct before-hand, but to the unsettled will of the ruling power, which cannot be foreseen; and a government becomes consolidated in proportion as its legislative branch abandons its own functions, or usurps those which have been vested elsewhere. In the very constitution of things, the whole people of a State cannot assemble together to exercise their sovereign power in person; and it is not to be regretted that they cannot, for their rule being untrammelled by any thing but their own will, would be as arbitrary and fitful in its exercise as any other uncontrolled domination. When they delegate it to an undivided agency, they slip their hold on it, and in turn become its slaves. These are considerations to show that the exercise of a doubtful power under the constitution, is not to be extended by implication, even where the lines of demarcation are so fine as to be almost invisible. The legislature may certainlyauthorize a corporation to enact ordinances and by-laws; for these are not only incidental, but rules of self-government, such as any other individual may prescribe for his own conduct; and it may also authorize voluntary associations to assume corporate powers in specific cases;on the performance of certain conditions, as it has done in the case of associations for literary, charitable, or religious purposes."