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provisions, and get 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.1 Where, therefore, a part of a * statute is unconstitutional, (* 178]
[ 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 sub
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.
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, 81; 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 altimore, 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.
? Commonwealth v. Hitchings, 5 Gray, 485. See People v. Briggs, 50 N.Y. 566.
stance. 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. And if they are so mutually connected [* 179) with and * dependent on each other, as conditions, con
siderations, or compensations for each other, as to warrant
1 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; Hagerstown v. Dechert, 32 Md. 369.
: 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 sball 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 omplete 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 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. 312; overruled in Meshmeier v. State, 11 Ind. 482. And see State v. Dombaugh, 20 Ohio, N. s. 173, where it was held competent to construe a part of an act held to be valid by another part adjudged unconstitutional, though the court considered it “ quite probable” that if the legislature had supposed they were without power to adopt the void part of the act, they would have made an essentially different provision by the other. See also People v. Bull, 46 N. Y. 68, where part of an act was sustained which probably would not have been adopted by the legislature separately. It must be obvious in any case where part of an act is set aside as unconstitutional, that it is unsafe to indulge in the same extreme
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.?
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
presumptions in support of the remainder that are allowable in support of a complete act when some cause of invalidity suggested to the whole of it. In the latter case, we know the legislature designed the whole act to have effect, and we should sustain it if possible; in the former, we do not know that the legislature would have been willing that a part of the act should be sustained if the remainder were held void, and there is generally a presumption more or less strong to the contrary. While, therefore, in the one case the act should be sustained unless the invalidity is clear, in the other the whole should fall unless it is manifest the portion not opposed to the constitution can stand by itself, and that in the legislative intent it was not to be controlled or modified in its construction and effect by the part which was void.
The Supreme Court of the Territory of Utah a few years since, in considering a statute which authorized the probate courts to grant divorces for specified causes, beld it void so far as it undertook to confer jurisdiction on the probate courts, but good so far as it authorized divorces; and as the jurisdiction to grant them could, under their conclusions, vest nowhere else, they held it might be administered by themselves as district judges. This was not exactly sustaining the half of a law by itself, but it was sustaining it by means of something substituted in the place of the other half.
| 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.
2 State v. Commissioners of Perry County, 5 Ohio, n. s. 507. And see Jones v. Robbins, 8 Gray, 338.
must fail, inasmuch as such provision was clearly intended as a compensation for the annexation.1
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.?
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 wellbeing, and capable of being enforced without reference to the rest, was not affected by the invalidity of the rest.4
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 exist
1 Slauson v. Racine, 13 Wis. 398, followed in State v Dousman, 28 Wis, 547.
Campau v. Detroit, 14 Mich. 272. 3 16 Pet. 539.
4 Willard v. People, 4 Scam. 470; Eells v. People, ib. 512. See Hagerstown v. Dechert, 32 Md. 369.
ing 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, 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 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
· 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.
? Baker v. Braman, 6 Hill, 47. The case of Sadler v. Langham, 31 Ala. 333, appears to be opposed to this principle, but it also appears to us to be based upon cases which are not applicable. ; Baker v. Braman, 6 Hill, 47.