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the invalidity of the rest." But other cases hold that such repealing clause is to be understood as designed to repeal all conflicting provisions, in order that those of the new statute can have effect; and that if the statute is invalid, nothing can conflict with it, and therefore nothing is repealed. Great caution is necessary in some cases, or the rule which was designed to ascertain and effectuate the legislative intent will be pressed to the extreme of giving effect to part of a statute exclusively, when the legislative intent was that it should not stand except as a component part of the whole.

Inquiry into Legislative Motives.

From what examination has been given to this subject, it appears that whether a statute is constitutional or not is always a question of power; that is, whether the legislature in the particular case, in respect to the subject matter of the act, the manner in which its object is to be accomplished, and the mode of enacting it, has kept within the constitutional limits and observed the constitutional conditions. In any case in which this question is answered in the affirmative, the courts are not at liberty to inquire into the proper exercise of the power. They must assume that legislative discretion has been properly exercised.8 * If [* 187] evidence was required, it must be supposed that it was before the legislature when the act was passed ; 4 and if any special finding was required to warrant the passage of the particular act, it would seem that the passage of the act itself might be held equivalent to such finding. And although it has sometimes been

· Meshmeier v. State, 11 Ind. 489; Ely v. Thompson, 3 A. K. Marsh. 70.

· Shepardson v. Milwaukee and Beloit Railroad Co., 6 Wis. 605; State v. Judge of County Court, 11 Wis. 50; Tims v. State, 26 Ala. 165; Sullivan v. Adams, 3 Gray, 476; Devoy v. Mayor, &c., of New York, 35 Barb. 264; Campau v. Detroit, 14 Mich. 276; Childs v. Shower, 18 Iowa, 261; Harbeck v. New York, 10 Bosw. 366.

People v. Lawrence, 36 Barb. 193; People v. New York Central Railroad Co., 34 Barb. 137; Baltimore v. State, 15 Md. 376; Goddin v. Crump, 8 Leigh. 154. • De Camp v. Eveland, 19 Barb. 81; Lusher v. Scites, 4 W. Va. 11.

Johnson v. Joliet and Chicago Railroad Co., 23 Ill. 207. The constitution of Illinois provided that “corporations not possessing banking powers or privileges may be formed under general laws, but shall not be created by special

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urged at the bar that the courts ought to inquire into the motives of the legislature where fraud and corruption were alleged, and annul their action if the allegation were established, the argument has in no case been acceded to by the judiciary, and they have never allowed the inquiry to be entered upon. The reasons are the same here as those which preclude an inquiry into the motives of the governor in the exercise of a discretion vested in



acts, except for municipal purposes, and in cases where, in the judgment of the General Assembly, the objects of the corporation cannot be attained under general laws." A special charter being passed without any legislative declaration that its object could not be attained under a general law, the Supreme Court sustained it, but placed their decision mainly on the ground that the clause had been wholly disregarded, " and it would now produce far-spread ruin to declare such acts unconstitutional and void.” It is very clearly intimated in the opinion, that the legislative practice, and this decision sustaining it, did violence to the intent of the constitution. A provision in the constitution of Indiana that act shall take effect until the same shall have been published and circulated in the several counties of this State, by authority, except in case of emergency," adds the words, “ which emergency shall be declared in the preamble, or in the body of the law;" thus clearly making the legislative declaration necessary. Carpenter v. Montgomery, 7 Blackf. 415; Mark v., State, 15 Ind. 98; Hendrickson v. Hendrickson, 7 Ind. 13.

Sunbury and Erie Railroad Co. v. Cooper, 33 Penn. St. 278; Ex parte Newman, 9 Cal. 502; Baltimore v. State, 15 Md. 376; Johnson v. Higgins, 3 Met. (Ky.) 566. “The courts cannot impute to the legislature any other but public motives for their acts.” People v. Draper, 15 N. Y. 545, per Denio, Ch. J. “ We are not made judges of the motives of the legislature, and the court will not usurp the inquisitorial office of inquiry into the bona fides of that body in discharging its duties.” Shankland, J., in the same case, p. 555. “ The powers of the three departments are not merely equal; they are exclusive in respect to the duties assigned to each. They are absolutely independent of each other. It is now proposed that one of the three powers shall institute an inquiry into the conduct of another department, and form an issue to try by what motives the legislature were governed in the enactment of a law. If this may be done, we may also inquire by what motives the executive is induced to approve a bill or withhold his approval, and in case of withholding it corruptly, by our mandate compel its approval. To institute the proposed inquiry would be a direct attack upon the independence of the legislature, and a usurpation of power subversive of the constitution.” Wright v. Defrees, 8 Ind. 302, per Gookins, J. “We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the constitution.” Per Chase, Ch. J., in Ex parte McCardle, 7 Wall. 514. And see McCulloch v. State, 11 Ind. 431 ; Bradshaw v. Omaha, 1 Neb. 16 ; Humboldt County v. Churchill County Comm’rs, 6 Nev. 30; Flint, &c., Plank Road Co. v. Woodhull, 25 Mich. 103; State v. Fagan, 22 La. An. 545; State v. Hays, 49 Mo. 607.

him exclusively. He is responsible for his acts in such a case not to the courts, but to the people.

* Consequences if a Statute is Void.

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When a statute is adjudged to be unconstitutional, it is as if it had never been. Rights cannot be built up under it; contracts which depend upon it for their consideration are void ; it consti- . tutes a protection to no one who has acted under it, and no one can be punished for having refused obedience to it before the decision was made. And what is true of an act void in toto is true also as to any part of an act which is found to be unconstitutional, and which, consequently, is to be regarded as having never, at any time, been possessed of any legal force.




Attorney-General v. Brown, 1 Wis. 522 ; Wright v. Defrees, 8 Ind. 302.

Strong v. Daniel, 5 Ind. 318; Astrom v. Hammond, 3 McLean, 107; Meagher v. Storey Co., 5 Nev. 244. But one acting as an officer under an unconstitutional law was held in Commonwealth v. McCombs, 56 Penn. St. 436, to be an officer de facto. This could hardly be so, however, if the law creating the office was unconstitutional. There can be no officer de facto when there is no office. See Carleton v. People, 10 Mich. 250. In People v. Salomon, 54 Ill. 46, a ministerial officer was severely censured for presuming to disregard a law as unconstitutional. The court found it to be valid, but if they had held the contrary, the officer certainly could not have been punished for anticipating their decision in his own action. In Texas it is reported to have been recently held, in an opinion which we have not seen, that an act held unconstitutional must be deemed to have the force of law for the protection of officers acting under it up to the time of the decision declaring it void. Sessurus v. Botts, 34 Tex. 335. And in some States a disposition has been manifested to hold that contracts made by municipal bodies under an unconstitutional law may be enforced where they have found their way into the hands of bona fide purchasers before the invalidity was judicially declared. *Steines v. Franklin County, 48 Mo. 167; State v. Saline County Court, ib. 390; Columbia County v. King, 13 Fla. 45; Same v. Davidson, ib. 482.

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[* 189]



In the examination of American constitutional law, we shall not fail to notice the care taken and the means adopted to bring the agencies by which power is to be exercised as near as possible to the subjects upon which the power is to operate.

In contradistinction to those governments where power is concentrated in one man, or one or more bodies of men, whose supervision and active control extend to all the objects of government within the territorial limits of the State, the American system is one of complete decentralization, the primary and vital idea of which is, that local affairs shall be managed by local authorities, and general affairs only by the central authority. It was under the control of this idea that a national Constitution was formed, under which the States, while yielding to the national government complete and exclusive jurisdiction over external affairs, conferred upon it such powers only, in regard to matters of internal regulation, as seemed to be essential to national union, strength, and harmony, and without which the purpose in organizing the national authority might have been defeated. It is this, also, that impels the several States, as if by common arrangement, to subdivide their territory into counties, towns, road, and school districts, and to confer upon each the powers of local legislation, and also to incorporate cities, boroughs, and villages wherever a dense population renders different rules important from those which are needful for the rural districts.

The system is one which almost seems a part of the very nature of the race to which we belong. A similar subdivision of the realm for the purposes of municipal government has existed in England from the earliest ages ; ? and in America, the first settlers, as if instinctively, adopted it in their frame of government, and

1 Crabbe's History of English Law, c. 2; 1 Bl. Com. 114; Hallam's Middle Ages, c. 8, pt. 1; 2 Kent, 278; Vaughan's Revolutions in English History, b. 2,

c. 8.

no other has ever supplanted it, or even found advocates. (* 190] In most of the colonies the central power created and provided for the organization of the towns; in one at least the towns preceded and created the central authority ;? but in all, the final result was substantially the same, that towns, villages, boroughs, cities, and counties exercised the powers of local government, and the Colony or State the powers of a more general nature.3


For an interesting history of the legislation in Connecticut on this subject, see Webster v. Harwinton, 32 Conn. 131. In New Hampshire, see Bow v. Allenstown, 34 N. H. 351. The learned note to Commonwealth v. Roxbury, 9 Gray, 503, will give similar information concerning the organization and authority of towns in the Massachusetts provinces. And see People v. Hurlbut, 24 Mich. 98. Mr. Elliott well says: “ The prime strength of New England and of the whole republic was and is in the municipal governments and in the homes." And he adds, that among the earliest things decided in Massachusetts was, “ that trivial things should be ended in towns." (1635.) Elliott's New England, Vol. I. p. 182.

• Rhode Island; see Arnold's History, c. 7. It is remarked by this author that, when the charter of Rhode Island was suspended to bring the Colony under the dominion of Andros, the American system of town governments, which necessity bad compelled Rhode Island to initiate fifty years before, became the means of preserving the individual liberty of the citizen when that of the State or Colony was crushed." Ib. Vol. I.


487. 3 " The townships," says De Tocqueville, are only subordinate to the State in those interests which I shall term social, as they are common to all of the citizens. They are independent in all that concerns themselves, and among the inhabitants of New England I believe that not a man is to be found who would acknowledge that the State has any right to interfere in their local interests. The towns of New England buy and sell, prosecute or are indicted; augment or diminish their rates, without the slightest opposition on the part of the administrative authority of the State. They are bound, however, to comply with the demands of the community. If a State is in need of money, a town can neither give nor withhold the supplies. If a State projects a road, the township cannot refuse to let it cross its territory; if a police regulation is made by the State it must be enforced by the town. An uniform system of instruction is organized all over the country, and every town is bound to establish the schools which the law ordains. . . . Strict as this obligation is, the government of the State imposes it in principle only, and in its performance the township assumes all its independent rights. Thus taxes are voted by the State, but they are assessed and collected by the township; the existence of a school is obligatory, but the township builds, pays, and superintends it. In France, the State collector receives the local imposts; in America, the town collector receives the taxes of the State. Thus the French government lends its agents to the commune; in America, the township is the agent of the government. The fact alone shows the

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