Fell v. The State.

be as good and valid as any other condition whatever. There can be on inherent vice in the nature of such a condition, which shall serve to defeat the act, when it would be legal and effectual, if made to depend upon some other event. To say in such a case that the act is made by the voters and not by the legislature is to disregard all proper distinc tions, and involves an utter confusion of ideas upon this subject."

"Wherever the contingency upon which a law is to take effect depends upon the action of third persous, it might be said with equal truth, that the law was enacted by those persons instead of the legislature." Bull v. Read, 13 Gratt. 90, 91.

In the same case Judge LEE uses the following argument, which seems to us to present the question in a very clear and forcible manner :

"It will not be questioned that it is entirely competent for the legislature to provide for taking a vote of the people, or any portion of them, upon a measure directly affecting them, and if a given number be in favor of its adoption, to enact a law thereupon, carrying it into effect. And there would seem to be but little difference in substance, in a reversal of the process, by first enacting the law in all its parts; but providing that its operation is to be suspended until it be ascertained that the requisite number of the people to be affected by it were in favor of its adoption." 13 Gratt. 88.

We refer also to the opinion of REDFIELD, C. J., in The State v. Par ker, 26 Vt. 365, where the same views are expressed.

It must be borne in mind that the question with which we are dealing is one of constitutional power. As to the wisdom or expediency of such legislation we are not authorized to judge. These are questions which, under our system of government, are exclusively confided to the legislature, and so long as that department acts within the constitutional limits of its authority, this court has no power to sit in judgment on the wisdom, or expediency of its action.

The constitutional question here involved is not a new one in this State. In our judgment it has been distinctly passed upon by our prede cessors in this court.

By the act of 1825, ch. 162, a general system of primary schools was established. The 29th and 30th sections of that act were as follows:

"Sec. 29. Be it enacted, that at the next election of delegates to the General Assembly, every voter, when he offers to vote, shall be required by the judges of election, to state whether he is for or against the estab lishment of primary schools, and the said judges shall record the number of votes for and against primary schools, and make return thereof to the

Fell v. The State.

legislature, during the first week of the session, and if a majority of the said votes in any county shall be in favor of the establishment of primary schools as is therein provided for, then and in that case the said act shall be valid for such county or counties, otherwise of no effect whatever." "Sec 30th. And be it enacted, that if a majority of the votes of any county in this State shall be against the establishment of primary schools, as established by this act, then and in that case the said act shall be voia as to that county."

This law came before the Court of Appeals in Burgess v. Pue, 2 Gill, 11 (decided in 1844). Its validity was assailed, on the same ground as is now urged against the act of 1874. That is, that its operation in any county was made to depend upon the result of a popular vote. It was urged there as here, that the effect of the 29th and 30th sections was to delegate the law-making power to the voters, which the legislature could not constitutionally do. After a most full and able argument, the court decided that the law was valid, and that there was no validity in the constitutional objection.

The same question again arose in a case between the same parties, 2 Gill, 254, and again the constitutionality of the law was maintained. It would be difficult to find a more solemn and authoritative decision upon any question than is presented by those cases; and it would be equally difficult to distinguish the principle then decided, from that involved in the present case; so far as it concerns the question of the supposed delegation of legislative power, by a submission to the popular vote to determine the contingency upon which a law is to go into operation. Again, in Hammond v. Haines, 25 Md. 541, this court by a unanimous decision held the act of 1864, ch. 348, to be valid and constitutional. That act submitted to the qualified voters of the borough of North East to decide by ballot whether any license should be granted to sell spirituous or fermented liquors within the borough.

The position of the appellant finds no support in the decided cases in Maryland. In other States there has been much conflict in the decisions. In some of them the courts have held laws to be invalid, because their operation was made to depend upon the contingency of a popular vote. Among the earliest of these cases are Parker v. Commonwealth, 6 Barr (Penn.), 507 (decided in 1847); Rice v. Foster, 4 Harr. (Del.) 479 (decided about the same time); and Barto v. Himrod, 4 Seld. (N. Y.) 483. These were followed by the courts of Indiana, Iowa, Michigan and some others. We do not consider it necessary to refer to these cases more particularly. In many of the States, decisions have been rendered by the courts of last resort, in accordance with the ruling of this court VOL. XX.-12

Brown v. The Howard Fire Insurance Company.

in Burgess v. Pue, and Hammond v. Haines. In Pennsylvania the leading case of Parker v. The Commonwealth, which furnished the basis of many of the decisions in other States, cited by the appellant, has recently been overruled and reversed by the Supreme Court of the same State in Locke's Appeal, 72 Penn. St. 491; S. C., 13 Am. Rep. 716. This last decision by that able court was made after full argument, and an examination of the course of judicial decision upon the question, and is in accordance with the conclusions we have expressed.

In the examination of the question before us, we have kept in view the cardinal principle, which must always govern the courts, when called on to pass upon the constitutionality of the acts of a co-ordinate depart ment of the government.

Every intendment ought to be made in support of the legislative, enactment, and it is not to be declared invalid, except for the plainest and most conclusive reasons. In this case, we have failed to discover any sufficient grounds to justify us in declaring the act of 1874, ch. 453, unconstitutional or inoperative. So to pronounce would in our judg ment be contrary to sound reason, as well as at variance with the previous decisions of this court.

There can be no question of the power of the legislature to fix the time when a law shall go into effect: nor can it be doubted that the legislature has power to prohibit the sale of spirituous or fermented Liquors, in any part of the State; notwithstanding a party to be affected by the law may have procured a license, under the general license laws of the State, which has not yet expired. Such a license is in no sense a contract made by the State with the party holding the license. It is a mere permit, subject to be modified or annulled at the pleasure of the legislature, who have the power to change or repeal the law under which the license was granted. Parkinson v. State, 14 Md. 185.

Being of opinion that none of the objections to the validity of the law, urged by the appellant, are valid, the judgment of the Circuit Court has been affirmed. Judgment affirmed.

BOWIE. J., delivered a dissenting opinion.

BROWN V. THE HOWARD FIRE INSURANCE COMPANY.

(42 Md. 384.)

Stock-forged assignment of — right of purchaser.

Plaintiff took in the regular course of business an assignment of stock in the defend. ant's insurance company as security for a loan; presented the certificates to the

Brown v. The Howard Fire Insurance Company.

company and received new certificates in lieu thereof The assignment turned out to be a forgery. Held, that the plaintiff and not the insurance company must sustain the loss.

BILL

ILL filed by the assignee in bankruptcy of Denson & Quincy against Brown, Lancaster & Co., and The Howard Fire Insur ance Co., to compel the former to deliver up certificates of stock deliv ered to them and the latter to issue new ones therefor. The opinion states the case.

Skipwith Wilmer and J. Douglas Hambleton, for appellants. The appellants were guilty of no negligence. The insurance company was guilty of negligence. It should have known the signature of its stockholders, and with the certificates in its possession, it should not have allowed the appellants to remain for nearly a month, during which time they could have collected their debt, under the impression that they had ample security.

The stock which Brown, Lancaster & Co. held was regular stock, and if both parties were in fault, the loss should have been allowed to remain where it had fallen, viz., upon the insurance company, as Mr. Denson had a right to demand of them new certificates in case of the loss or destruction of his old ones.

Where a company allows its stock to be transferred upon a forged power of attorney, it and not the innocent purchaser for value must bear the loss. Ashby v. Blackwell and the Million Bank Co., Ambler, 503, and 2 Eden, 299. This case is referred to approvingly in Duncan v. Lintly, 4 McN. & G. 40, and by Sir ROUNDEL PALMER, in a case reported in 6 Jurist (N. S.), 495, and by Bridgman in his Chancery Digest, Angel and Ames on Corporations, §§ 583-5. To the same effect are Davis v. Bank of England, 2 Bingham, 392; Swan v. North British Australasian Co., 7 Hurlst. & Norm. 603; In re Bahia and San Francisco Railway Co., 3 Q. B. (L. R.) 584; Horton v. The Westminster Improvement Commissioners, 14 Eng. L. & Eq. 379; Johnston v. Renton, 9 Equity Cases (L. R.), 188; Taylor v. Midland Railway, 4 Fisher's Digest, 7186; Sabin v. Bank of Woodstock, 21 Vt. 360; Bayard v. Farmers' Bank, 52 Penn. 235; Pollock v. National Bank, 3 Seld. 275; Albert v. Savings Bank, 1 Md. Ch. Dec. 407; Cohen v. Gwynn, 4 id. 357; Loney v. Commercial and Savings Bank, Taney's Decisions, 310 Chew v. Bank of Baltimore, 14 Md. 299; Hodges v. Planters' Bank, 7 G. & J. 306; National Park Bank v. Ninth National Bank, 46 N. Y 77; Hoffman & Co. v. Bank of Milwaukee, 12 Wall. 193.

It matters not that the money was paid in the presert case before this stock was transferred. If this transfer had been refused by the com

Brown v. The Howard Fire Insurance Company.

pany, the appellants would have been able to recover their money, as the firm of Denson & Quincy continued to meet their obligations for nearly a month, and the appellants had a right to this notice from the company. Bank v. Lanier, 11 Wall. 377.

If the company has no stock to issue to the appellants, then it is the duty to pay them the amount of their loss. Pollock v. National Bank, 3 Seld. 275.

An estoppel can be insisted upon by Brown, Lancaster & Co., in the case at bar, notwithstanding the loan by them was made before the signature of Denson was submitted to the Howard Fire Insurance Company. Continental N. Bank v. N. Bank of the Commonwealth, 50 N. Y. 575; Benjamin on Sales (Perkins' Am. Ed.), 675.

A person acts negligently, in advancing money when he does not know whether the borrower is the actual owner of the shares. The Queen v. Shropshire Union Co., 8 Q. B. 432, 444.

A corporation can take reasonable time in which to ascertain the genuineness of a signature, without becoming liable to the transfer of shares for the delay. Chew v. Bank of Baltimore, 14 Md. 319; Bayard v. Farmers' Bank, 52 Penn. 232.

Viewing the certificate as wholly non-negotiable, the mere fact of presenting it for transfer did not place the holder of it in the position of guarantor of the genuineness of the signature of Denson to the extent of relieving the corporation from determining that fact for itself. Lord Chancellor, 1 Macqueen, 523; Bernheimer v. Marshall & Co., 2 Minn. 78; Ang. & Ames on Corp., § 582; Bridgeport Bank v. N. Y. & N. H R. R. Co., 30 Conn. 275; Bank v. Lanier, 11 Wall. 377.

In the case at bar, the name of Brown, Lancaster & Co. nowhere ap pears on the certificates of Denson. They were assigned by him apparently in blank, to be good in the hands of the bearer. The company waived the filling up the blanks in the assignment, and virtually treated the face of the certificate and assignments on the back of it, together as making a negotiable instrument. Their own construction and treatment of an instrument prepared and sent into the commercial world by themselves, ought to be conclusive in them. Brown, Lancaster & Co. took this instrument honestly, and their negligence is no answer. Seybel's Case, 13 Am. Rep. 588.

The company will not be allowed to escape its liability to both parties for transferring on a forged power, by assuming to be mere stakeholders, and entitled to interplead. Dalton v. Midland Railway Co., 74 Eng. C. L. Rep. 458.

Eduard Our Hinckley, for the Howard Insurance Company. Brown,