statute is unconstitutional, 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 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 with and depend

monwealth v. Pomeroy, 5 Gray, 486; State v. Copeland, 3 R. I. 33; State v. Snow, 3 R. I. 64; 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; Bank of United States 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.

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.

Santo ". 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

ent 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 persons, 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 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.

1 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.

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

v. Robbins, 8 Gray, 338.

a Slauson v. Racine, 13 Wis. 398.

And see Jones

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.1

--

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,2 yet that the first portion, being a police regulation for the preservation of order in the State, and important to its well-being, and capable of being enforced without reference to the rest, was not affected by the invalidity of the rest.3 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, and it will not be held invalid on the objection

1 Campau v. Detroit, 14 Mich. 272.

216 Pet. 539.

Willard v. People, 4 Scam. 470; Eells v. People, Ibid. 512.

* Mundy v. Monroe, 1 Mich. 68; Cargill v. Power, 1 Mich. 369. Baker v. Braman, 6 Hill, 47.

of a party 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 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 on the ground of unconstitutionality is removed. And where parties were authorized by statute to erect a dam across a river, provided they should first execute a bond to the people conditioned to pay such damages as each and every person might sustain in consequence of the erection of the dam, the damages to be assessed by a justice of the peace, and the dam was erected and damages assessed as provided by the statute, it was held, in an action on the bond to recover those damages, that the party erecting the dam was precluded by acting under the statute from objecting to its validity, and insisting upon his right to a common-law trial by jury. In these and the like cases the statute must be read with

1 Baker v. Braman, 6 Hill, 47.

2 Embury v. Conner, 3 N. Y. 511. And see Heyward v. Mayor, &c. of New

York, 8 Barb. 489; Mobile and Ohio Railroad Co. v. State, 29 Ala. 586.

3

People v. Murray, 5 Hill, 468. See Lee v. Tillotson, 24 Wend. 339.

an implied proviso that the party to be affected shall assent thereto; and such consent removes all obstacle, and lets the statute in to operate the same as if it had in terms contained the condition.1 In criminal cases, however, the doctrine that a constitutional privilege may be waived, must be true to a very limited extent only.

Judicial Doubts on Constitutional Questions.

It has been said by an eminent jurist, that when courts are called upon to pronounce the invalidity of an act of legislation, passed with all the forms and ceremonies requisite to give it the force of law, they will approach the question with great caution, examine it in every possible aspect, and ponder upon it as long as deliberation and patient attention can throw any new light upon the subject, and never declare a statute void, unless the nullity and invalidity of the act are placed, in their judgment, beyond reasonable doubt.2 A reasonable doubt must be solved in favor of the legislative action, and the act be sustained.3

"The question whether a law be void for its repugnancy to the constitution is at all times a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubtful case. The court when impelled by duty to render such a judgment would be unworthy of its station could it be unmindful

1 Embury v. Conner, 3 N. Y. 518, And see Matter of Albany St., 11 Wend. 149; Chamberlain v. Lyell, 3 Mich. 448; Beecher v. Baldy, 7 Mich. 488; Mobile and Ohio Railroad Co. v. State, 29 Ala. 586.

• Wellington, Petitioner, 16 Pick. 95, per Shaw, Ch. J.

3 Cooper v. Telfair, 4 Dall. 18; Dow v. Norris, 4 N. H. 16; Flint River Steamboat Co. v. Foster, 5 Geo. 194; Carey v. Giles, 9 Geo. 253; Macon and Western Railroad Co. v. Davis, 13 Geo. 68; Franklin Bridge Co. v. Wood, 14 Geo. 80 ; Kendall v. Kingston, 5 Mass. 524; Foster v. Essex Bank, 16 Mass. 245; Norwich v. County Commissioners of Hampshire, 13 Pick. 61; Hartford Bridge Co. v. Union Ferry Co., 29 Conn. 227; Rich v. Flanders, 39 N. H. 312; Eason v. State, 6 Eng. 481; Hedley v. Commissioners of Franklin Co., 4 Blackf. 116; Stocking v. State, 7 Ind. 327; La Fayette v. Jenners, 10 Ind. 79; Ex parte McCollum, 1 Cow. 564; Coutant v. People, 11 Wend. 511; Clark v. People, 26 Wend. 606; Morris v. People, 3 Denio, 381; Baltimore v. State, 15 Md. 376; Cotton v. Commissioners of Leon Co., 6 Flor. 610; Lane v. Dorman, 3 Scam. 238; Newland v. Marsh, 19 Ill. 381; Farmers and Mechanics' Bank v. Smith, 3 S. & R. 63; Weister v. Hade, 52 Penn. St. 477; Sears v. Cottrell, 5 Mich. 251; People v. Tyler, 8 Mich. 320; Allen County Commissioners v. Silvers, 22 Ind. 491; State v. Robinson, 1 Kansas, 17.