The constitutionality of a statute is to be tested not by what has been done under it, but by what may by its authority be done. (Stuart v. Palmer, 74 N. Y. 183; Matter of South Market Street, 67 Hun, 594.)

Actual and material injury must exist to warrant a court in declaring a statute unconstitutional. (People v. Canal Board, 55 N. Y. 390.)

The question of constitutionality should be determined by the language and general scope of the statute, and not by independent inquiries as to facts outside of the provisions of the statute itself. (Waterloo Woolen Mfg. Co. v. Shanahan, 128 N. Y. 345.) And if it cannot be made to appear by argument deduced from the language of the law itself or from matters of which the court can take judicial notice that the act is unconstitutional, it must stand. (People ex rel. v. Durston, 119 N. Y. 569.)

A court should not pass upon the constitutionality of a statute unless necessary to a decision in a cause. (Frees v. Ford, 6 N. Y. 176; People v. Crissey, 91 id. 616; People v. Brooklyn, 89 id. 75; Demarest v. Mayor, 147 id. 207 [1895]; People v. Brooklyn, F. & C. I. R. Co., 89 id. 93 [1882]; People ex rel. Simpson v. Wills, 181 id. 252 [1905].)

Nor should a court declare a statute unconstitutional unless required by the most cogent reasons, or compelled by unanswerable grounds. (People v. Budd, 117 N. Y. 13.)

The language of the statute must comply with the constitution in substance and form. (People v. Allen, 42 N. Y. 404.) The general rule is that where a part of a statute is in conflict with the constitution, and that part is entirely separable from the residue, so that the other portion of it can be enforced without any reference to the former, the unconstitutional part only will be condemned. (Wynehamer v. People, 13 N. Y. 378, 441; Matter of De Vaucne, 31 How, Pr. 289.)

Before a statute can be declared unconstitutional, it must be shown to be in direct conflict with the constitution. Morris v. People, 3 Denio, 331; Grant v. Courter, 24 Barb. 232.)

The courts should not imply a conflict between a statute and the constitution. (Cochran v. Van Surlay, 20 Wend. 383; Newell v. People, 7 N. Y. 109.)

When a statute and the constitution can be so construed as to enable both to stand, it is the duty of the court to give them that construction. (Sweet v. City of Syracuse, 129 N. Y. 316; People ex rel. v. Terry, 108 id. 1.)

Every presumption is in favor of the constitutionality of a statute. (Fort v. Cummings, 90 Hun, 481.) (1895.)

A statute must be viewed with reference to what could be done under it, and not what actually was done. (Coxe v. State, 144 N. Y. 396.) (1895.)

The constitutionality of an act is not to be determined by what has been done under it in any particular instance, but, what may be done under it by virtue of its authority. (Colon v. Lisk, 153 N. Y. 188.) (1897.)

Where a portion of a statute may be carried into effect without the aid of the remainder, it may be upheld, although the remainder is unconstitutional. Oneida Street, 37 App. Div. 266.) (1899.)

(Matter of

The rule of construction that a law is not retroactive, unless clearly expressed or intended by the enacting power, applies to constitutional provisions. (O'Reilly v. Utah, Nevada, etc., Stage Co., 87 Hun, 406.) (1895.)

The proceedings of the convention in which the constitution was framed may be examined in considering the purpose of a given article or section. (Goedel v. Palmer, 15 App. Div. 86.)

(1897.)

Where in a new constitution, an article relating to the same subject-matter embraced in a provision of the former constitution which has received judicial construction, is phrased in different language or qualified, it is presumed that the effect of the construction placed upon the former provision is intended to be avoided. (Matter of Smith, 90 Hun, 568.) (1895.)

A statute will be construed to be prospective unless the intention of the legislature to give it a retroactive effect is expressed in language clear and expressed so that no reasonable doubt exists in respect thereto. (Persons v. Gardner, 42 App. Div. 490.) (1899.)

A special and local statute providing for a particular case or class of cases is not repealed by a subsequent statute general in its terms, provisions and obligation, unless by the language used the intent to repeal or alter is manifest,

although the terms of the general act are broad enough to include the cases embraced in the special law and ordinarily an express repeal by some intelligible reference to the special act is necessary to accomplish that end. (People v. Keller, 35 App. Div. 493.) (1898.)

The provision confirming contracts made by the board of improvement if unconstitutional is so independent as not to render void the provision allowing the extending of the original contract. (Parfitt v. Ferguson, 159 N. Y. 111.) (1899.)

A statute which is unconstitutional so far as it purports to operate retrospectively may be upheld as to future cases. (Purdy v. Erie R. R. Co., 162 N. Y. 42.) (1900.)

Public grants are to be construed strictly so as to 'prevent rights from being taken except those which the words of the grant by their ordinary construction convey. (Skaneateles W. W. Co. v. Skaneateles, 161 N. Y. 154.) (1900.)

Actual and material injury must exist to warrant a court in declaring a statute unconstitutional. A court should not pass upon such constitutionality unless necessary to a decision in the cause nor unless required by the most cogent reasons or compelled by unanswerable grounds. (Matter of Fuller, 62 App. Div. 428.) (1901.)

Every presumption is in favor of the constitutionality of a statute and when it and the constitution cannot be construed so as to enable it to stand it is the duty of the court to give that construction. Where the unconstitutional part of a statute can be separated from the residue so that the latter may be enforced without reference to the former the part in conflict with the constitution will alone be declared void. (Matter of Fuller, 62 App. Div. 428.) (1901.) The court of appeals will not consider the constitutionality of an act imposing a penalty when the question was not raised at the time of the trial as it must be deemed to have been waived. (Dodge v. Cornelius, 168 N. Y. 242.) (1901.) (Matter of Anderson, 178 N. Y. 416.) (1904.) The constitutional validity of a law is to be tested not by what has been done under it but what it authorizes to be done. (Williams v. Village of Port Chester, 72 App. Div. 505.) (1902.)

The meaning of words in a constitutional provision is to be reached in two ways: First, by ascertaining what the framers desired to guard against by the provision; second, by ascertaining the meaning of the words when applied to

111

a statute by writers and courts. App. Div. 316.)

(1902.)

(McGrath v. Grout, 69

Every presumption is in favor of the constitutionality of a statute and if the statute and the act can be reasonably construed so as to enable the latter to stand, it is the duty of the courts to give that construction; still it is none the less their duty to adjudge the statute void if it is in plain conflict with the real intent of the fundamental law, when considered in the light of history and in all its aspects. (People ex rel. Met. St. Ry. Co. v. Tax Com'rs, 174 N. Y. 417.) (1903.)

In determining the constitutionality of an act the court, except in extraordinary circumstances, is limited to a construction of the law itself construed in the light of the facts of which the court can take judicial notice. ment House Department v. Moeschen, 89 App. Div. 526.) (Tene(1904.)

In its inquiry as to whether an improvement authorized by statute is for a purpose which is public or one merely private or local the court is confined to matters appearing on face of the bill itself and to things that are the subject of judicial notice. (Waterloo Woolen Mfg. Co. v. Shanahan, 128 N. Y. 345.)

The constitutionality of a statute will not be considered by the court of appeals unless the question is raised below. (Matter of Anderson, 178 N. Y. 416.) (1904.)

The constitutionality of a statute will not be determined except on presentation of a case in which a determination in unavoidable. (People ex rel. Simpson v. Wills, 181 N. Y. 252.) (1905.)

The constitutionality of an act of the Legislature should be presumed except where the invalidity of the act is apparent on its face. (Matter of Thornburgh, 72 Misc. 619.) (1911.)

ARTICLE 1.

Persons not to be disfranchised.-Section 1. No member of this State shall be disfranchised, or deprived of any of the rights and privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his peers.

[Section 1 of article 1 of the amended constitution or 1846, without change.]

A law affecting any rights of an individual can only be questioned as to constitutionality by the individual affected.

(Sinclair v. Jackson, 8 Cow. 578; Waterloo Woolen Mfg. Co. v. Shanahan, 128 N. Y. 345.) "Law of the land does not mean the act of legislature which deprives the citizen of his rights, privileges or property. (Wynehamer v. People, 13 N. Y. 393 et seq., which is a leading case as to the meaning of "law of the land," and due process of law." See also Taylor v. Porter, 4 Hill, 140; White v. White, 5 Barb. 474; People v. Toynbee, 20 id. 168, 198; Green v. Shumway, 39 N. Y. 426; Bowe v. U. S. Reflector Co., 36 Hun, 410.)

Statute providing for courts-martial not in conflict with this section. (People ex rel. v. Daniell, 50 N. Y. 274, 280.) The provisions of this section do not take away the legislature's power of taxation. (Town of Guilford v. Supervisors, 13 N. Y. 143; People v. Supervisors of Ulster Co., 36 Hun, 491, 496.)

Section 383 of the Penal Code prohibiting the exclusion of colored persons from places of amusement not in conflict with this section. (People v. King, 42 Hun, 186; affd., 110 N. Y. 418.)

The sovereign power may regulate the use of one's property with reference to the public welfare. (Id.)

The right to liberty secured to the citizen by constitutional prohibition includes the right to adopt and follow such lawful individual pursuits, not injurious to the community. as he may see fit. Principle applied to statute prohibiting manufacture of oleomargarine, etc. (People v. Marx, 99 N. Y. 377.)

Section 292 of the Penal Code prohibiting employment or exhibition of child under fourteen years as a dancer, is not contrary to this section. (People v. Ewes, 47 St. Rep. 501; S. C., 141 N. Y. 129; as to § 713 of Penal Code, see People ex rel. Zeese v. Maston, 79 Hun, 580.)

The provision permitting the formation of a state commission from one political party is not in violation of the constitution. (Rogers v. Common Council of Buffalo, 123 N. Y. 173, 181.)

Rights of citizens are not abridged by law providing for eight hours labor as in Laws 1891, chapter 105, title 24, section 504. (People v. Warren, 77 Hun, 120.)

As to constitutionality of section 873 of Code of Civil Pro