purpose of operating as a restriction upon legislative power.1 Many things, indeed, which are contained in the bills of rights to be found in the American constitutions are not, and from the very nature of the case cannot be, so certain and definite in character as to form rules for judicial decisions; and they are declared rather as guides to the legislative judgment than as marking an absolute limitation of power. The nature of the declaration will generally enable us to determine without difficulty whether it is the one thing or the other. If it is declared that all men are free, and no man can be slave to another, a definite and certain rule of action is laid down, which the courts can administer; but if it be said that "the blessings of a free government can only be maintained by a firm adherence to justice, moderation, temperance, frugality, and virtue," we should not be likely to commit the mistake of supposing that this declaration would authorize the courts to substitute their own view of justice for that which may have impelled the legislature to pass a particular law, or to inquire into the moderation, temperance, frugality, and virtue of its members, with a view to set aside their action, if it should appear to have been influenced by the opposite qualities. It is plain that * what [* 177] in the one case is a rule, in the other is an admonition addressed to the judgment and the conscience of all persons in authority, as well as of the people themselves.

So the forms prescribed for legislative action are in the nature of limitations upon its authority. The constitutional provisions which establish them are equivalent to a declaration that the legislative power shall be exercised under these forms, and shall not be exercised under any other. A statute which does not observe them will plainly be ineffectual.2

Statutes unconstitutional in Part.

It will sometimes be found that an act of the legislature is opposed in some of its provisions to the constitution, while others, standing by themselves, would be unobjectionable. So the forms. observed in passing it may be sufficient for some of the purposes

1 Beebe v. State, 6 Ind. 518. This principle is very often acted upon when not expressly declared.

See ante, p. 130 et seq.

sought to be accomplished by it, but insufficient for others. In any such case the portion which conflicts with the constitution, or in regard to which the necessary conditions have not been observed, must be treated as a nullity. Whether the other parts of the statute must also be adjudged void because of the association must depend upon a consideration of the object of the law, and in what manner and to what extent the unconstitutional portion affects the remainder. A statute, it has been said, is judicially held to be unconstitutional, because it is not within the scope of legislative authority; it may either propose to accomplish something prohibited by the constitution, or to accomplish some lawful, and even laudable object, by means repugnant to the Constitution of the United States or of the State.1 A statute may contain some such provisions, and yet the same act, having received the sanction of all branches of the legislature, and being in the form of law, may contain other useful and salutary provisions, not obnoxious to any just constitutional exception. It would be inconsistent with all just principles of constitutional law to adjudge these enactments void, because they are associated in the same act, but not connected with or dependent on others which are unconstitutional.2 [* 178] Where, therefore, a part of a statute is unconstitutional,

*

1 Commonwealth v. Clapp, 5 Gray, 100. "A law that is unconstitutional is so because it is either an assumption of power not legislative in its nature, or because it is inconsistent with some provision of the Federal or State Constitution." Woodworth, J., in Commonwealth v. Maxwell, 27 Penn. St. 456.

2 Commonwealth v. Clapp, 5 Gray, 100. See, to the same effect, Fisher v. McGirr, 1 Gray, 1; Warren v. Mayor, &c., of Charlestown, 2 Gray, 84; Wellington, Petitioner, 16 Pick. 95; Commonwealth v. Hitchings, 5 Gray, 482; Commonwealth v. Pomeroy, 5 Gray, 486; State v. Copeland, 3 R. I. 33; State v. Snow, 3 R. I. 64; Armstrong v. Jackson, 1 Blackf. 374; Clark v. Ellis, 2 Blackf. 248; McCulloch v. State, 11 Ind. 432; People v. Hill, 7 Cal. 97; Lathrop v. Mills, 19 Cal. 513; Thomson v. Grand Gulf Railroad Co. 3 How. Miss. 240; Campbell v. Union Bank, 6 How. Miss. 625; Mobile and Ohio Railroad Co. v. State, 29 Ala. 573; Santo v. State, 2 Iowa, 165; State v. Cox, 3 Eng. 436; Mayor, &c., of Savannah v. State, 4 Geo. 26; Exchange Bank v. Hines, 3 Ohio, N. s. 1; Robinson v. Bank of Darien, 18 Geo. 65; State v. Wheeler, 25 Conn. 290; People v. Lawrence, 36 Barb. 190; Williams v. Payson, 14 La. An. 7; Ely v. Thompson, 3 A. K. Marsh. 70; Davis v. State, 7 Md. 151; State v. Commissioners of Baltimore, 29 Md. 521; Bank of Hamilton v. Dudley's Lessee, 2 Pet. 526. "To the extent of the collision and repugnancy, the law of the State must yield; and to that extent, and no further, it is rendered by such repugnancy inoperative and void." Commonwealth v. Kimball, 24 Pick. 361, per Shaw, Ch. J.; Norris v. Boston, 4 Met. 288.

that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in subject-matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning, that it cannot be presumed the legislature would have passed the one without the other. The constitutional and unconstitutional provisions may even be contained in the same section, and yet be perfectly distinct and separable, so that the first may stand though the last fall. The point 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 If, when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained. The difficulty is in determining whether the good and bad parts of the statute are capable of being separated within the meaning of this rule. If a statute attempts to accomplish two or more objects, and is void as to one, it may still be in every respect complete and valid as to the other. But if its purpose is to accomplish a single object only, and some of its provisions are void, the whole must fail unless sufficient remains to effect the object without the aid of the invalid portion.3 And if they are so mutually connected

1 Commonwealth v. Hitchings, 5 Gray, 485.

2 Commonwealth v. Hitchings, 5 Gray, 485; Willard v. People, 4 Scam. 470; Eells v. People, 4 Scam. 512; Robinson v. Bidwell, 22 Cal. 379; State v. Easterbrook, 3 Nev. 173.

3 Santo v. State, 2 Iowa, 165. But perhaps the doctrine of sustaining one part of a statute when the other is void was carried to an extreme in this case. A prohibitory liquor law had been passed which was not objectionable on constitutional grounds, except that the last section provided that “ the question of prohibiting the sale and manufacture of intoxicating liquor" should be submitted to the electors of the State, and if it should appear "that a majority of the votes cast as aforesaid, upon said question of prohibition, shall be for the prohibitory liquor law, then this act shall take effect on the first day of July, 1855." The court held this to be an attempt by the legislature to shift the exercise of legislative power from themselves to the people, and therefore void; but they also held that the remainder of the act was complete without this section, and must therefore be sustained on the rule above given. The reasoning of the court by which they are brought to this conclusion is ingenious; but one cannot avoid feeling, especially after reading the dissenting opinion of Chief Justice Wright, that by the decision the court gave effect to an act which the legislature did not

[*179] with and dependent on each other, as conditions, considerations, or compensations for each other, as to warrant the belief that the legislature intended them as a whole, and if all could not be carried into effect, the legislature would not pass the residue independently, then if some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected must fall with them.1

It has accordingly been held where a statute submitted to the voters of a county the question of the removal of their county seat, and one section imposed the forfeiture of certain vested rights in case the vote was against the removal, that this portion of the act being void, the whole must fall, inasmuch as the whole was submitted to the electors collectively, and the threatened forfeiture would naturally affect the result of the vote.2

And where a statute annexed to the city of Racine certain lands previously in the township of Racine, but contained an express provision that the lands so annexed should be taxed at a different and less rate than other lands in the city; the latter provision being held unconstitutional, it was also held that the whole statute must fail, inasmuch as such provision was clearly intended as a compensation for the annexation.3

And where a statute, in order to obtain a jury of six [*180] persons, * provided for the summoning of twelve jurors, from whom six were to be chosen and sworn, and under the constitution the jury must consist of twelve, it was held that the provision for reducing the number to six could not be rejected and the statute sustained, inasmuch as this would be giving to it a construction and effect different from that the legislature designed; and would deprive the parties of the means of obtaining impartial jurors which the statute had intended to give.1

design should take effect unless the result of the unconstitutional submission to the people was in its favor. For a similar ruling, see Maize v. State, 4 Ind. 342; overruled in Meshmeier v. State, 11 Ind. 482.

Warren v. Mayor, &c., of Charlestown, 2 Gray, 99; State v. Commissioners of Perry County, 5 Ohio, N. s. 507; Slauson v. Racine, 13 Wis. 398; Allen County Commissioners v. Silvers, 22 Ind. 491; Garrard Co. Court v. Navigation Co. 10 Am. Law Reg. N. s. 160.

State v. Commissioners of Perry County, 5 Ohio, N. s. 507.

Jones v. Robbins, 8 Gray, 338.

3 Slauson v. Racine, 13 Wis. 398. Campau v. Detroit, 14 Mich. 272.

And see

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,1 yet that the first portion, being a police regulation for the preservation of order in the State, and important to its wellbeing, 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. In any such case the unconstitutional law must operate as far as it can,4 and it will not be held invalid on the objection * of a party [* 181] whose interests are not affected 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

116 Pet. 539.

2

* Willard v. People, 4 Scam. 470; Eells v. People, ib. 512. See Hagerstown v. Dechert, 32 Md. 369.

3 Mundy v. Monroe, 1 Mich. 68; Cargill v. Power, 1 Mich. 369.

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.