* the objection of a party whose interests are not affected [* 181] by it in a manner which the constitution forbids. If there are any exceptions to this rule, they must be of cases only where it is evident, from a contemplation of the statute and of the purpose to be accomplished by it, that it would not have been passed at all, except as an entirety, and that the general purpose of the legislature will be defeated if it shall be held valid as to some cases and void as to others. Waiving a Constitutional Objection. There are cases where a law in its application to a particular case must be sustained, because the party who makes objection has, by prior action, precluded himself from being heard against it. Where a constitutional provision is designed for the protection solely of the property rights of the citizen, it is competent for him to waive the protection, and to consent to such action as would be invalid if taken against his will. On this ground it has been held that an act appropriating the private property of one person for the private purposes of another, on compensation made, was valid if he whose property was taken assented thereto; and that he did assent and waive the constitutional privilege, if he received the compensation awarded, or brought an action to recover it. So if an act providing for the appropriation of property for a public use shall authorize more to be taken than the use requires, although such act would be void without the owner's assent, yet with it all objection on the ground of unconstitutionality is removed. And where parties were authorized by statute to erect a dam across a river, provided they should first execute a bond to the people conditioned to pay such damages as each and every person might sustain in consequence of the erection of the dam, the damages to be assessed by a justice. of the peace, and the dam was erected and damages assessed as provided by the statute, it was held, in an action on the bond to recover those damages, that the party erecting the dam and who 2 1 Baker v. Braman, 6 Hill, 47. Ohio Railroad Co. v. State, 29 Ala. Embury v. Conner, 3 N. Y. 511. 586; Detmold v. Drake, 46 N. Y. And see Heyward v. Mayor, &c. of 318. New York, 8 Barb. 489; Mobile and - On the other hand, to illustrate how intimately the valid and invalid portions of a statute may be associated, a section of the criminal code of Illinois provided that "if any person shall harbor or secrete any negro, mulatto, or person of color, the same being a slave or servant, owing service or labor to any other persons, whether they reside in this State or in any other State, or Territory, or district, within the limits and under the jurisdiction of the United States, or shall in any wise hinder or prevent the lawful owner or owners of such slaves or servants from retaking them in a lawful manner, every person so offending shall be deemed guilty of a misdemeanor," &c., and it was held that, although the latter portion of the section was void within the decision in Prigg v. Pennsylvania, yet that the first portion, being a police regulation for the preservation of order in the State, and important to its well-being, and capable of being enforced without reference to the rest, was not affected by the invalidity of the rest.2 A legislative act may be entirely valid as to some classes of cases, and clearly void as to others. A general law for the punishment of offences, which should endeavor to reach, by its retroactive operation, acts before committed, as well as to prescribe a rule of conduct for the citizen in the future, would be void so far as it was retrospective, but such invalidity would not affect the operation of the law in regard to the cases which were within the legislative control. A law might be void as violating the obligation of existing contracts, but valid as to all contracts which should be entered into subsequent to its passage, and which therefore would have no legal force except such as the law itself would allow.3 In any such case the unconstitutional law must operate as far as it can, and it will not be held invalid on 1 16 Pet. 539. 2 Willard v. People, 5 Ill. 470; Eells v. People, 5 Ill. 512. See Hagerstown v. Dechert, 32 Md. 369. 3 Mundy v. Monroe, 1 Mich. 68; Cargill v. Power, 1 Mich. 369. In People v. Rochester, 50 N. Y. 525, certain commissioners were appointed to take for a city hall, either lands belonging to the city or lands of individuals. The act made no provision for compensation. The commissioners elected to take lands belonging to the city. Held, that the act was not wholly void for the omission to provide compensation in case the lands of individuals had been selected. 4 Baker v. Braman, 6 Hill, 47. The case of Sadler v. Langham, 34 Ala. 333, appears to be opposed to this principle, but it also appears to us to be based upon cases which are not applicable. * the objection of a party whose interests are not affected [* 181] by it in a manner which the constitution forbids. If there are any exceptions to this rule, they must be of cases only where it is evident, from a contemplation of the statute and of the purpose to be accomplished by it, that it would not have been passed at all, except as an entirety, and that the general purpose of the legislature will be defeated if it shall be held valid as to some cases and void as to others. Waiving a Constitutional Objection. There are cases where a law in its application to a particular case must be sustained, because the party who makes objection has, by prior action, precluded himself from being heard against it. Where a constitutional provision is designed for the protection solely of the property rights of the citizen, it is competent for him to waive the protection, and to consent to such action as would be invalid if taken against his will. On this ground it has been held that an act appropriating the private property of one person for the private purposes of another, on compensation made, was valid if he whose property was taken assented thereto; and that he did assent and waive the constitutional privilege, if he received the compensation awarded, or brought an action to recover it. So if an act providing for the appropriation of property for a public use shall authorize more to be taken than the use requires, although such act would be void without the owner's assent, yet with it all objection on the ground of unconstitutionality is removed. And where parties were authorized by statute to erect a dam across a river, provided they should first execute a bond to the people conditioned to pay such damages as each and every person might sustain in consequence of the erection of the dam, the damages to be assessed by a justice. of the peace, and the dam was erected and damages assessed as provided by the statute, it was held, in an action on the bond to recover those damages, that the party erecting the dam and who 1 Baker v. Braman, 6 Hill, 47. Ohio Railroad Co. v. State, 29 Ala. Embury v. Conner, 3 N. Y. 511. 586; Detmold v. Drake, 46 N. Y. And see Heyward v. Mayor, &c. of 318. New York, 8 Barb. 489; Mobile and had received the benefit of the statute, was precluded by his action from contesting its validity, and could right to a common-law trial by jury. not insist upon his In these and the [*182] like cases the statute must be read with an implied proviso that the party to be affected shall assent thereto; and such consent removes all obstacle, and lets the statute in to operate the same as if it had in terms contained the condition.2 In criminal cases, however, the doctrine that a constitutional privilege may be waived must be true to a very limited extent only. A party may consent to waive rights of property, but the trial and punishment for public offences are not within the province of individual consent or agreement. Judicial Doubts on Constitutional Questions. It has been said by an eminent jurist, that when courts are called upon to pronounce the invalidity of an act of legislation, passed with all the forms and ceremonies requisite to give it the force of law, they will approach the question with great caution, examine it in every possible aspect, and ponder upon it as long as deliberation and patient attention can throw any new light upon the subject, and never declare a statute void, unless the nullity and invalidity of the act are placed, in their judgment, beyond reasonable doubt.3 A reasonable doubt must be solved in favor of the legislative action, and the act be sustained.1 1 People v. Murray, 5 Hill, 468. See Lee v. Tillotson, 24 Wend. 339. 2 Embury v. Conner, 3 N. Y. 518. And see Matter of Albany St., 11 Wend. 149; Chamberlain v. Lyell, 3 Mich. 448; Beecher v. Baldy, 7 Mich. 488; Mobile and Ohio Railroad Co. v. State, 29 Ala. 586; Detmold v. Drake, 46 N. Y. 318; Haskell v. New Bedford, 108 Mass. 208. 8 Wellington, Petitioner, 16 Pick. 95, per Shaw, Ch. J. See Brown v. Buzan, 24 Ind. 194. If an act may be valid or not according to the circumstances, a court would be bound to presume that such circumstances existed as would render it valid. Talbot v. Hudson, 16 Gray, 417. Cooper v. Telfair, 4 Dall. 18; Dow v. Norris, 4 N. H. 16; Flint River Steamboat Co. v. Foster, 5 Geo. 194; Carey v. Giles, 9 Geo. 253; Macon and Western Railroad Co. v. Davis, 13 Geo. 68; Franklin Bridge Co. v. Wood, 14 Geo. 80; Kendall v. Kingston, 5 Mass. 524; Foster v. Essex Bank, 16 Mass. 245; Norwich . County Commissioners of Hampshire, 13 Pick. 61; Hartford Bridge Co. v. Union Ferry Co., 29 Conn. 227; Rich v. Flanders, 39 N. H. 312; Eason v. State, 6 Eng. 481; Hedley v. Commissioners of Franklin Co., 4 Blackf. 116; Stocking v. State, 7 Ind. 327; La Fayette v. Jenners, 10 Ind. 79; Ex parte McCollum, 1 Cow. 564; Coutant "The question whether a law be void for its repugnancy to the constitution is at all times a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubtful case. The court when impelled by duty to render such a judgment would be unworthy of its station could it be unmindful of the solemn obligation which that station [* 183] imposes; but it is not on slight implication and vague * 1 conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other." Mr. Justice Washington gives a reason for this rule, which has been repeatedly recognized in other cases which we have cited. After expressing the opinion that the particular question there presented, and which regarded the constitutionality of a State law, was involved in difficulty and doubt, he says: "But if I could rest my opinion in favor of the constitutionality of the law on which the question arises, on no other ground than this doubt so felt and acknowledged, that alone would, in my estimation, be a satisfactory vindication of it. It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body by which any law is passed, to presume in favor of its validity, until its violation of the constitution is proved beyond all reasonable doubt." 2 The constitutionality of a law, then, is to be presumed, because the legislature, which was first required to pass upon the question, acting, as they must be deemed to have acted, with integrity, and with a just desire to keep within the restrictions laid son, 1 Kan. 17; Eyre v. Jacob, 14 v. People, 11 Wend. 511; Clark v. 1 Fletcher v. Peck, 6 Cranch, 128, per Marshall, Ch. J. 2 Ogden v. Saunders, 12 Wheat. 270. See Kellogg v. State Treasurer, 44 Vt. 356, 359; Slack v. Jacob, 8 W. Va. |