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is limited * in its operation to private and local bills, it [*148] might be held that an act was not void for embracing two or more objects which were indicated by its title, provided one of them only was of a private and local nature. It has been held in New York that a local bill was not void because embracing general provisions also;? and if they may constitutionally be embraced in the act, it is presumed they may also be constitutionally embraced in the title. But if the title to the act actually indicates, and the act itself actually embraces, two distinct objects, when the constitution says it shall embrace but one, the whole act must be treated as void, from the manifest impossibility in the court choosing between the two, and holding the act valid as to the one and void as to the other.
5. The effect where the act is broader than the title. But if the act is broader than the title, it may happen that one part of it can stand because indicated by the title, while as to the object not indicated by the title it must fail. Some of the State constitutions, it will be perceived, have declared that this shall be the rule ; but the declaration was unnecessary; as the general rule, that so much of the act as is not in conflict with the constitution must be sustained, would have required the same declaration from the courts. If by striking from the act all that relates to the object not indicated by the title, that which is left is complete in itself, sensible, capable of being executed, and wholly independent of that which is rejected, it must be sustained as constitutional. * The principal questions in each case will there- [* 149] fore be, whether the act is in truth broader than the title; and if so, then whether the other objects in the act are so intimately connected with the one indicated by the title that the portion of the
the several amendments thereto; and to appoint an election, choose directors, ' and organize a corporation anew, with the same powers as the existing company. There was then a proviso, that nothing in the act should impair or affect the subscriptions for new stock, or the obligations or liabilities of the company which had been made or incurred in the extension of the road from Lockport to Rochester, &c. The whole act was held to be constitutional. Mosier v. Hilton, 15 Barb. 657. And see Mills v. Charleton, 29 Wis. 400, a very liberal case; Erlinger v. Boneau, 51 Ill. 94; State v. Newark, 34 N. J. 236; Smith v. Commonwealth, 8 Bush, 108; State v. St. Louis Cathedral, 23 La. An. 720; Simpson v. Bailey, 3 Oreg. 515; Neifing v. Pontiac, 56 Ill. 172. · People v. McCann, 16 N. Y. 58.
act relating to them cannot be rejected, and leave a complete and sensible enactment which is capable of being executed.1
As the legislature may make the title to an act as restrictive as they please, it is obvious that they may sometimes so frame it as to preclude many matters being included in the act which might with entire propriety have been embraced in one enactment with the matters indicated by the title, but which must now be excluded, because the title has been made unnecessarily restrictive. The courts cannot enlarge the scope of the title; they are vested with no dispensing power; the constitution has made the title the conclusive index to the legislative intent as to what shall have operation; it is no answer to say that the title might have been made more comprehensive, if in fact the legislature have not seen fit to make it so. Thus, "An act concerning promissory notes and bills of exchange" provided that all promissory notes, bills of exchange, or other instruments in writing, for the payment of money, or for the delivery of specific articles, or to convey property, or to perform any other stipulation therein mentioned, should be negotiable, and assignees of the same might sue thereon in their own names. It was held that this act was void, as to all the instruments mentioned therein except promissory notes and bills of exchange;2 though it is obvious that it would have been easy to frame a title to the act which would have embraced them all, and which would have been unobjectionable. It has also been held that an act for the preservation of the Muskegon River Improvement could not lawfully provide for the levy and collection of tolls for the payment of the expense of constructing the improvement, as the operation of the act was carefully limited by its title to the future. So also it has been held that "an act to limit the number of grand jurors, and to point out the mode of
1 1 People v. Briggs, 50 N. Y. 566. "None of the provisions of a statute should be regarded as unconstitutional where they all relate, directly or indirectly, to the same subject, have a natural connection, and are not foreign to the subject expressed in the title." Phillips v. Bridge Co., 2 Met. (Ky.) 222, approved, Smith v. Commonwealth, 8 Bush, 112. See Ex parte Upshaw, 45 Ala. 234. 2 Mewherter v. Price, 11 Ind. 199. See also State v. Kinsella, 14 Minn. 524. 3 Ryerson v. Utley, 16 Mich. 269. See further Weaver v. Lapsley, 43 Ala. 229; Tuscaloosa Bridge Co. v. Olmstead, 41 Ala. 9; Stuart v. Kinsella, 14 Minn. 524. In Cutlip v. Sheriff, 3 W. Va. 588, it was held that if an act embraces two objects, only one of which is specified in the title, the whole is void; but this is opposed to the authorities generally.
their selection, defining their jurisdiction, and repealing all laws inconsistent therewith," could not constitutionally contain provisions which should authorize a defendant in a criminal case, on a trial for any offence, to be found guilty of any lesser offence necessarily included therein. These cases must [*150] suffice upon this point; though the cases before referred to will furnish many similar illustrations.
In all we have said upon this subject we have assumed the constitutional provision to be mandatory. Such has been the view of the courts almost without exception. In California, however, a different view has been taken, the court saying: "We regard this section of the constitution as merely directory; and, if we were inclined to a different opinion, would be careful how we lent ourselves to a construction which must in effect obliterate almost every law from the statute-book, unhinge the business and destroy the labor of the last three years. The first legislature that met under the constitution seems to have considered this section as directory; and almost every act of that and the subsequent sessions would be obnoxious to this objection. The contemporaneous exposition of the first legislature, adopted or acquiesced in by every subsequent legislature, and tacitly assented to by the courts, taken in connection with the fact that rights have grown up under it, so that it has become a rule of property, must govern our decision."2 Similar views have also been expressed in the State of Ohio. These cases, and especially what is said by the California court, bring forcibly before our minds a fact, which cannot be kept out of view in considering this subject, and which has a very important bearing upon the precise point which these decisions cover. The fact is this: that whatever constitutional provision can be looked upon as directory merely is very likely to be treated by the legislature as if it was devoid even of moral obligation, and to be therefore habitually disregarded. To say that a provision is directory seems, with many persons, to be equivalent to saying that it is not law at all. That this ought not to be so must be conceded; that it is so we have abundant reason and good authority
1 Foley v. State, 9 Ind. 363; Gillespie v. State, ib. 380. See also Indiana Cent. Railroad Co. v. Potts, 7 Ind. 681; State v. Squires, 26 Iowa, 340; State v. Lafeyette Co. Court, 41 Mo. 39; People v. Denahy, 20 Mich. 349.
2 Washington v. Murray, 4 Cal. 388.
* Miller v. State, 3 Ohio, N. s. 475; Pim v. Nicholson, 6 Ohio, N. s. 177.
for saying. If, therefore, a constitutional provision is to be enforced at all, it must be treated as mandatory. And if the legislature habitually disregard it, it seems to us that there is all the more urgent
necessity that the courts should enforce it. And it also [* 151] seems to us that there are few evils which * can be inflict
ed by a strict adherence to the law, so great as that which is done by the habitual disregard, by any department of the government, of a plain requirement of that instrument from which it derives its authority, and which ought, therefore, to be scrupulously observed and obeyed. Upon this subject we need only refer here to what we have said concerning it in another place.
It has also been deemed important, in some of the States, to provide by their constitutions, that “no act shall ever be revised or amended by mere reference to its title; but the act revised or section amended shall be set forth and published at full length." ? Upon this provision an important query arises.
Does it mean that the act or section revised or amended shall be set forth and published at full length as it stood before, or does it mean only that it shall be set forth and published at full length as amended or revised ? Upon this question perhaps a consideration of the purpose of the provision may throw some light. “ The mischief designed to be remedied was the enactment of amendatory statutes in terms so blind that legislators themselves were sometimes deceived in regard to their effects, and the public, from the difficulty in making the necessary examination and comparison, failed to become apprised of the changes made in the laws.
An amendatory act which purported only to insert certain words, or to
| Ante, p. 74.
? This is the provision as it is found in the Constitutions of Indiana, Nevada, Oregon, Texas, and Virginia. In Kansas, Ohio, Nebraska, Michigan, Louisiana, Wisconsin, Missouri, and Maryland there are provisions of similar import. In Tennessee the provision is : “ All acts which revive, repeal, or amend former laws, shall recite, in their caption or otherwise, the title or substance of the law repealed, revived, or amended.” Art. 1, § 17.
In Texas it appears to be held that the legislature may repeal a definite portion of a section without the re-enactment of the section with such portion omitted. Chambers v. State, 25 Texas, 307. But quære of this. Any portion of a section amended which is not contained in the amendatory section as set forth and published is repealed. State v. Ingersoll, 17 Wis. 631.
substitute one phrase for another in an act or section which was only referred to, but not published, was well calculated to mislead the careless as to its effect, and was, perhaps, sometimes drawn in that form for the express purpose. Endless confusion was thus introduced into the law, and the constitution wisely prohibited such legislation.” If this is a correct view of the purpose of the provision, it does not seem to be at all important to its accomplishment that the old law should be republished, if the law as amended is given in full, with such reference to the old law as will show for what the new law is substituted. Nevertheless, * it has been decided in Louisiana that the [* 152] constitution requires the old law to be set forth and published ; 2 and the courts of Indiana, assuming the provision in their own constitution to be taken from that of Louisiana after the decisions referred to had been made, at one time adopted and followed them as precedents. It is believed, however, that the general understanding of the provision in question is different, and that it is fully complied with in letter and spirit, if the act or section revised or amended is set forth and published as revised or amended, and that any thing more only tends to render the statute unnecessarily cumbrous. Statutes which amend others by implication, however, are not within this provision ; and it is not essential that they even refer to the acts or sections which by implication they amend.
| People v. Mahaney, 13 Mich. 497.
? Walker v. Caldwell, 4 La. An. 297 ; Heirs of Duverge v. Salter, 5 La. An. 94.
Langdon v. Applegate, 5 Ind. 327; Rogers v. State, 6 Ind. 31. These cases were overruled in Greencastle, &c., Co. v. State, 28 Ind. 382.
4 See Tuscaloosa Bridge Co. v. Olmstead, 41 Ala. 9 ; People v. Pritchard, 21 Mich. 236; People v. McCallun, 1 Neb. 182; State v. Draper, 47 Mo. 29; Booneville v. Trigg, 46 Mo. 288. Under such a constitutional provision where a statute simply repeals others, it is not necessary to set them out. Falconer v. Robinson, 46 Ala. 340. Compare Bird v. Wasco County, 3 Oreg. 282.
• People v. Mahaney, 13 Mich. 496 ; Spencer v. State, 5 Ind. 41; Branham v. Lange, 16 Ind. 497; Lehman v. McBride, 15 Ohio, n. s. 573. Repeals by implication, however, are not favored. lbid. And see Naylor v. Field, 5 Dutch. 287; State v. Berry, 12 Iowa, 58; Attorney-General v. Brown, 1 Wis. 525; Dodge v. Gridley, 10 Ohio, 177; Hirn v. State, 1 Ohio, n. s. 20; McCool o. Smith, 1 Black, 459; New Orleans v. Southern Bank, 15 La. An. 89; Blain v. Bailey, 25 Ind. 165; Swann v. Buck, 40 Miss. 268; Davis v. State, 7 Md. 151; State v. The Treasurer, 41 Mo. 16; Henderson's Tobacco, 11 Wal. 652.