of substituting other provisions in its place, the implication of an intention to revive the repealed statute cannot arise, and especially if the substituted provision is repugnant to the original provision, or is not properly cumulative to it.' So the repeal of a statute which was a revision of and a substitute for a former act to the same effect which was therefore repealed cannot be deemed to revive the previous act; for this would be plainly contrary to the intention of the legislature.2 And where a statutory provision has been repealed without change in the amendatory act and the latter is afterwards repealed, the original provision is repealed also. Statutes have been very generally adopted in the states abolishing the rule of implied revival as a consequence of the repeal of the repealing statute.* In State v. Slaughter the court construed the effect of a general provision that "where any law repealing any former law, clause or provision shall itself be repealed, it shall not be considered to revive such former law, clause or provision, unless it be expressly otherwise provided." It was held that if the section of the marriage act under consideration repealed or superseded the common law on the subject of incestuous marriages, its repeal would not revive the common law. Where revival requires re-enactment, a legislative declaration that an act mentioned shall not repeal the provision will not suffice. Where a general act applicable to all the counties of the state is repealed as to a particular county, and a still later act amends a section so partially repealed, the amendment will not be deemed to affect the excluded county.? 1 Commonwealth v. Churchill, 2 Met. 118; Bouton v. Royce, 10 Phila. 559; Warren v. Windle, 3 East, 205. 2 Butler v. Russel, 3 Cliff. 251. 3 Moody v. Seaman, 46 Mich. 74; Goodno v. Oshkosh, 31 Wis. 127; Peo ple v. Supervisors, 67 N. Y. 109; Harris v. Supervisors, 33 Hun, 279. 4 See Milne v. Huber, 3 McLean, 212. 570 Mo. 484. 6 State v. Conkling, 19 Cal. 501. CHAPTER IX. STATUTES VOID IN PART. § 169. Statutes may be void in part | § 176. Where void part inducement and valid in part. 171. Requisite separableness of void part. 174. Main purpose being unconsti tutional, whole act void. to residue. 178. Valid part must be complete and accord with legislative intent. § 169. Statutes may be void in part and good in part.— In this country legislative bodies have not an unlimited power of legislation. Constitutions exist which contain the supreme law. Statutes which contravene their provisions are void. Courts have power, and they are charged with the judicial duty, to support the constitutions under which they act against legislative encroachments. They will declare void acts which conflict with paramount laws. Where a part only of a statute is unconstitutional, and therefore void, the remainder may still have effect under certain conditions. The court is not warranted in declaring the whole statute void unless all the provisions are connected in subject-matter, depend on each other, were designed to operate for the same purpose, or are otherwise so dependent in meaning that it cannot be presumed that the legislature would have passed one without the other. The constitutional and unconstitutional provisions may even be expressed in the same section, and yet be perfectly distinct and separable, so that the first may stand though the last fall. The point or test is not whether they are contained in the same section, for the distribution into sections is purely artificial, but whether they are essentially and inseparably connected in substance.2 1 Scudder v. Trenton Delaware Falls Co. 1 N. J. Eq. 694; State v. Parkhurst, 9 N. J. L. 427; Bank of Hamilton v. Dudley's Lessee, 2 Pet. 492; Ogden v. Saunders, 12 Wheat. 213; Emerick v. Harris, 1 Bin. 416; Piscataqua Bridge v. N. H. Bridge, 7 2 Commonwealth v. Hitchings, 5 If one provision of an enactment is invalid and the others valid, the latter are not affected by the void provision, unless they are plainly dependent upon each other, and so inseparably connected that they cannot be divided without defeating the object of the statute. And the converse is true. The vicious part must be distinct and separable, and, when stricken out, enough must remain to be a complete act, capable of being carried into effect, and sufficient to accomplish the object of the law as passed, in accordance with the intention of the legislature. It should be confined to the same limits and still subject to the intended qualifications.2 Gray, 482; Mobile, etc. R. R. Co. v. State, 29 Ala. 573; South & North Ala. R. R. Co. v. Morris, 65 Ala. 193; State v. Brown, 19 Fla. 563; Morrison v. State, 40 Ark. 448; State v. Wilson, 12 Lea, 246; Tillman v. Cocke, 9 Baxt. 429; Johnson v. Winslow, 63 N. C. 552; Harlan v. Sigler, Morris, 39; State v. Marsh, 37 Ark. 356; State v. Kantler, 33 Minn. 69; S. C. 6 Am. & Eng. Corp. Cas. 169; American Print Works v. Lawrence, 23 N. J. L. 590; Lea v. Bumm, 83 Pa. St. 237; Bittle v. Stuart, 34 Ark. 224; National Bank v. Barber, 24 Kan. 534; Darragh v. McKim, 2 Hun, 337; Berry v. R. R. Co. 41 Md. 446; Fleischner v. Chadwick, 5 Oregon, 152; Village of Deposit v. Vail, 5 Hun, 310; State v. Clarke, 54 Mo. 17; Turner v. Board of Commissioners, 27 Kan. 314; State v. Wheeler, 25 Conn. 290; People ex rel. v. Kenney, 96 N. Y. 294; Duryee v. Mayor, etc. id. 477; Matter of Met. Gas Light Co. 85 id. 527; Matter of Sackett, etc. Streets, 74 id. 95; Matter of Ryers, 72 id. 1; Tiernan v. Rinker, 102 U. S. 123; Powell v. State, 69 Ala. 10; State ex rel. v. Tuttle, 53 Wis. 45; State v. Newton, 59 Ind. 173; Tripp v. Overocker, 7 Colo. 72; Gunnison Co. Com. v. Owen, id. 467; People v. Jobs, id. 475; People v. Hall, 8 id. 485; Cole v. Commissioners, 78 Me. 532; Re Groff, 21 Neb. 647; Frazer, Ex parte, 54 Cal. 94. In Curtis v. Leavitt, 15 N. Y. 96, Comstock, J., said: "A doctrine which is expressed in the words 'void in part, void in toto,' has often found its way into books and judicial opinions as descriptive of the effect which a statute may have upon deeds and other instruments which have in them some forbidden vice. There is, however, no such general principle of law as the maxim would seem to indicate. On the contrary, the general rule is that if the good be mixed with the bad it shall nevertheless stand, provided a separation can be made. The exceptions are, first, where a statute by its express terms declares the whole deed or contract void on account of some provision which is unlawful; and second, where there is some allpervading vice, such as fraud, for example, which is condemned by the common law, and avoids all parts of the transaction because all are alike infected." 1 Duryee v. Mayor, etc. 96 N. Y. 477; Re Groff, 21 Neb. 647. 2 Meshmeier v. State, 11 Ind. 485; Burkholtz v. State, 16 Lea, 71; Bittle v. Stuart, 34 Ark. 224; Allen v. Louisiana, 103 U. S. 80; People v. Porter, 90 N. Y. 68. § 170. It may be laid down generally as a sound proposition that one part of a statute cannot be declared void and leave any other part in force, unless the statute is so composite, consisting of such separable parts, that, when the void part is eliminated, another living, tangible part remains, capable by its own terms of being carried into effect, consistently with the intent of the legislature which enacted it in connection with the void part. If it is obvious that the legislature did not intend that any part should have effect unless the whole, including the part held void, should operate, then holding a part void invalidates the entire statute. If a statute attempts. to accomplish two or more objects, or to deal with two or more independent subjects, and the provisions as to one are void, it may still be in every respect complete and valid as to any other. Illustrations of this proposition are furnished by numerous cases where acts are violative of the constitutional injunction that an act shall relate to but one subject, which shall be stated in the title. If the act embraces more than one subject, and one is stated in the title, it is valid as to that subject if complete in itself, but void as to any other. The elimination of the latter leaves a constitutional act, where there is no interdependence between the subjects. If the matter of the act foreign to the subject stated in the title is divisible from that which is clearly within the title, and the latter can stand and have effect without the former, then only so much of the act as is not embraced in the title is void.3 1 People v. Cooper, 83 Ill. 585; Towles, Ex parte, 48 Tex. 413; State v. Clinton, 28 La. Ann. 201; Wells, Ex parte, 21 Fla. 280; Hinze v. People, 92 Ill. 406; Lombard v. Antioch College, 60 Wis. 459; Sparrow v. Commissioner of Land Office, 56 Mich. 567; People v. Luby, id. 551. 2 People v. Hall, 8 Colo. 485; State v. Hurds, 19 Neb. 317; Whited v. Lewis, 25 La. Ann. 568; Gibson v. Belcher, 1 Bush, 145; Jones v. Thompson, 12 id. 394; Fuqua v. Mullen, 13 Bush, 467; Harris v. Supervisors, 33 Hun, 279; Mississippi, etc. Co. v. Prince, 34 Minn. 79; Municipality No. 3 v. Michoud, 6 La. Ann. 605; State v. Exnicios, 33 id. 253; State v. Crowley, 33 La. Ann. 782; State v. Dalon, 35 La. Ann. 1141; Dorsey's Appeal, 72 Pa. St. 192; Thomason, Ex parte, 16 Neb. 238; Davis v. State, 7 Md. 151. 3 Unity v. Burrage, 103 U. S. 447; Moore, Ex parte, 62 Ala. 471; Walker v. State, 49 id. 329; Lowndes County v. Hunter, 49 id. 507; Shields v. Bennett, 8 W. Va. 74; Matter of Sackett St. 74 N. Y. 95; Mewherter v. Price, 11 Ind. 199; Bucky v. Willard, 16 Fla. 330; State v. Wilson, 7 Ind. 516; Packet Co. v. Keokuk, 95 U. S. 80; Matter of De Vaucene, 31 How. Pr. 341; Harris v. Supervisors, 33 Hun, A corporate charter is not entirely vitiated because it provides unconstitutionally for the exercise of the power of eminent domain for certain purposes, or unconstitutionally restricts the right to vote for officers. Parts relating to mere detail incident to the main purpose of an act may be stricken out without prejudice to the remainder of it, which contains valid provisions amply sufficient to enable the corporation to fully perform all its functions, unless vital to the main purpose as means or as compensation. Where a new offense is created and procedure for punishment provided, if the latter is invalid, and there are general laws under which prosecutions for such an offense could be conducted, the invalidity of the part relating to the procedure will not affect the part creating the offense. An act redistricting a county for supervisors was held valid, though it unconstitutionally provided that incumbents should hold over beyond their election terms until they could be immediately succeeded by supervisors elected under the act. The powers of a judicial officer are so separable and independent that a grant of them may be void as to one part or subject and good as to others." An act providing for impounding cattle taken damage feasant, and for detention of them until costs and damages are paid, may be sustained, though it include a void provision for a summary sale of such 279; Rader v. Township of Union, 39 N. J. L. 509; Colwell v. Chamberlin, 43 id. 387; Matter of Van Antwerp, 56 N. Y. 261; People ex rel. v. Briggs, 50 id. 553; Fleischner v. Chadwick, 5 Oreg. 152; Matter of Paul, 94 N. Y. 497; Dewhurst v. City of Allegheny, 95 Pa. St. 437; Allegheny Co. Home's Case, 77 Pa. St. 77; Lea v. Bumm, 83 Pa. St. 237; Town of Fishkill v. Fishkill, etc. Plk. R. Co. 22 Barb. 634; State v. Clarke, 54 Mo. 17; Savannah, etc. R'y Co. v. Geiger, 21 Fla. 669; Callaghan v. Chipman, 59 Mich. 610; State v. Persinger, 76 Mo. 346; Stiefel v. Maryland Institute, 61 Md. 144; Wynkoop v. Cooch, 89 Pa. St. 450. 1 Morgan v. Monmouth Plank R. Co. 26 N. J. L. 99; Matter of Village of Middleton, 82 N. Y. 196. 2 State ex rel. v. Tuttle, 53 Wis. 45; People ex rel. v. Kenney, 96 N. Y. 294. Id.; Phillips v. Mayor, etc. 1 Hilt. 483; State v. Elizabeth, 40 N. J. L 278; Wakeley v. Mohr, 15 Wis. 609; State v. Rosenstock, 11 Nev. 128; Robinson v. Bidwell, 22 Cal. 379; Board of Com. v. Silvers, 22 Ind. 491; Turner v. Board of Commissioners, 27 Kan. 314; Matter, etc. of Village of Middleton, 82 N. Y. 196; Gordon v. Cornes, 47 id. 617. See post, § 171. 4 State v. Newton, 59 Ind. 173. 5 Christy v. Board of Supervisors, 39 Cal. 3. 6 Mayor, etc. v. Dechert, 32 Md. 369; Reid v. Morton, 119 Ill. 118. |