itself is not within the constitution because there is a prior act covering the same subject and the purposes of the new act might have been accomplished by an amendment of the old, or because the new act is in effect a revision of the old. An act provided that there should be exempt from execution and attachment in favor of every householder personal property to the amount of $1,000 in addition to the property exempt under section 486 of the code. This was held to be amendatory of section 486, and, as it did not set out the section as amended, the act was held void." Section 14 of the Nebraska criminal code was as follows: "If any person shall assault another with intent to commit a murder, rape or robbery upon the person so assaulted, every person so offending shall be imprisoned in the penitentiary not more than fifteen years nor less than two years." Afterwards an act was passed, independent in form, section 1 of which covered assault with intent to do great bodily injury, and section 2 of which was as follows: "If any person shall assault another with the intent to kill the person so assaulted, every person so offending shall be imprisoned in the penitentiary not less than one nor more than ten years." Section 1 was held to create a new crime and to be valid, but section 2 was held to be amendatory

75

which are left in force... These questions are, however, to be looked at in the light of the rule that an act within the legislative power is to be sustained as constitutional if it can reasonably be done, and the reason for giving the rule its utmost force in this case is especially cogent on account of conditions which are plainly apparent to every one. Under all the circumstances the act should be sustained, if possible, as independent legislation, and not as amendatory in character. The mere fact that portions of the old law are left in force, so that the

statutes present the aspect of what has been called patch-work legislation, as they undeniably do, should not render the act void, if it can be said the act is reasonably complete and sufficient in itself upon distinct branches of the general subject." pp. 415, 416.

72 State v. Rogers, 107 Ala. 444, 19 So. 909.

73 In re Dietrick, 32 Wash. 471. 74 Copland v. Pirie, 26 Wash. 481, 67 Pac. 227, 90 Am. St. Rep. 769; In re Buelow, 98 Fed. 86.

Smith v. State, 34 Neb. 689, 52 N. W. 572.

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of section 14 of the criminal code and to be void, because not in compliance with the constitution as to amendments. An act provided that all public high schools should thereafter be open to attendance by any person of school age residing outside the district who is a resident of the state and whose education cannot profitably be carried further in the public schools of the district of his residence. This was held to be amendatory of the prior law, which provided that all schools should be free to all children between the ages of five and twenty-one whose parents or guardians resided within the limits of the district, and, as it did not set out and re-enact the prior law, to be void." An act which detached territory from one municipality and added it to another was held not to amend the charter of the former.78 An act amendatory of the act for the incorporation of metropolitan cities provided that no policeman should be allowed fees as a witness in any case tried in any court of the state. This was held to be amendatory of the general law in regard to witness fees and to be void. An act which postpones the time when another act shall take effect and makes provision for the subject-matter in the meantime was held not to be amendatory of the latter act. An act which adopts the provisions of another act is not amendatory of the latter. So of an act which extends the operation of another act.82

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§ 241. Miscellaneous cases and questions in regard to amendatory acts.- Whether an amendment to a section must be germane to the subject-matter of the section

76 Stricklett v. State, 31 Neb. 674, 48 N. W. 820. The following is a similar case with the same ruling: State v. Guiney, 55 Kan. 532, 40 Pac. 926.

80 Loomis v. Runge, 66 Fed. 856, 14 C. C. A. 148, 30 U. S. App. 133.

81 Pacific Express Co. v. Cornell, 59 Neb. 364, 81 N. W. 377; Nebraska L. & B. Ass'n v. Perkins, 61 Neb.

77 Board of Education v. Moses, 254, 85 N. W. 67; Phoenix Ass. Co. 51 Neb. 288, 70 N. W. 946. v. Fire Dept., 117 Ala. 631, 23 So.

78 Roby v. Shepard, 42 W. Va. 843, 42 L. R. A. 468. 286, 26 S. E. 278.

82 Bradley v. Loring, 54 N. J. L.

79 Douglas County v. Hayes, 52 227, 23 Atl. 685. Neb. 191, 71 N. W. 1023.

amended is a question which has been treated in a former chapter. An act may be an amendment of another, though not so expressed. An amendatory act is not void because it was introduced in the legislature before the act amended became a law.8 85 Where an act of incorporation, when considered by itself, does not confer a certain power either expressly or by implication, subsequent acts assuming or implying that such power exists cannot have the effect of amending the prior act so as to confer the power.86 An act purported to amend section 2 of chapter 112 of the acts of 1897. The amendment had no relevancy to section 2 but did to section 11. It was held to be a manifest mistake in the number of the section amended and the act was construed as an amendment of section 11.87 An act was entitled "An act to revise the code of civil procedure of the state of California, by amending certain sections, repealing others and adding certain new sections." The act amended over four hundred sections, repealed nearly a hundred sections and added many new sections. It was held to be a revision of the code and to be void because it did not set out and re-enact the entire code as amended.88 Where an act or

83 Ante, § 139; and see Underwood v. McDuffee, 15 Mich. 361, 367, 93 Am. Dec. 194; Gibson v. State, 16 Fla. 291; Ex parte Cowert, 92 Ala. 94, 9 So. 225; State v. Am. Sugar Ref. Co., 106 La. 553, 31 So. 181; Trumble v. Trumble, 37 Neb. 340, 55 N. W. 869; State v. Tibbets, 52 Neb. 228, 71 N. W. 990, 66 Am. St. Rep. 492; State v. Bowen, 54 Neb. 211, 74 N. W. 615; Armstrong v. Mayer, 60 Neb. 423, 83 N. W. 401.

84 Board of Water Com'rs V. People, 137 Ill. 660, 27 N. E. 698; English v. Danville, 150 Ill. 92, 36 N. E. 994; Cassell v. Lexington, etc. Turnpike Co., 10 Ky. L. R. 486, 9 S. W. 502, 701; State v. Rob inson, 32 Ore. 43, 48 Pac. 357.

85 Mutual Benefit Life Ins. Co. v. Winne, 20 Mont. 20, 49 Pac. 446. 86 State v. Lincoln Trust Co., 144 Mo. 562, 46 S. W. 593. The court says: "While a statute may be repealed by implication it cannot be amended otherwise than as provided by section 34, article IV, of the state constitution, and the mere recognition of such powers did not have the effect to create them."

87 State v. Cross, 44 W. Va. 315, 29 S. E. 527.

88 Lewis v. Dunne, 134 Cal. 291, 66 Pac. 478, 86 Am. St. Rep. 257, 55L. R. A. 833.

chapter is amended by adding sections thereto having certain numbers, and later the same act or chapter is amended by adding sections with the same numbers, the earlier act is not repealed or affected by the later.89

§ 242. Revival of law. The constitutional provision now under consideration usually provides that no law shall be amended or revived by reference to its title, and requires the act revived to be set out and published at length. Few cases have arisen on this branch of the provision. It has been held that a repealed act is not revived, in the constitutional sense, when its provisions are adopted by another act for the purposes of the latter act only.90

92

90

§ 243. Constitutional provisions against adopting or extending the provisions of a law. The constitution of New York provides that "no act shall be passed which shall provide that any existing law, or any part thereof, shall be made or deemed a part of said act, or which shall enact that any existing law, or part thereof, shall be applicable, except by inserting it in such act."91 There are similar constitutional provisions in other states. A New York statute for the acquisition and improvement of lands in connection with a bridge over the Harlem river provided that the procedure to acquire title to the lands in question should be the same as was provided in another specified act. The act was held valid and not in violation of the constitutional provision quoted. As the authorities on this question are few and the case is well considered, we quote from the opinion as

89 Ex parte Ruffin, 119 Cal. 487, 51 Pac. 862; Ex parte Williams, 121 Cal. 328, 53 Pac. 706; Hellman v. Shoulters, 114 Cal. 136, 45 Pac. 1068.

90 State v. Green, 36 Fla. 154, 18 So. 334. And see Stewart v. State, 100 Ala. 1, 13 So. 943; Miller v. Berry, 101 Ala. 531, 14 So. 655.

91 Art. 3, sec. 17.

92 Ala. Const. 1875, art. 4, sec. 2.

"No law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revived, amended, extended or conferred shall be re-enacted and published at length." See also the constitutions of Arkansas, Colorado and Pennsylvania. The provision in Pennsylvania is the same as in Alabama.

follows: "A constitutional provision intended to operate as a restraint upon the legislature, with respect to the language and forms of expression to be used in framing acts of legislation, is not to be so construed as to embrace cases not fairly within its general purpose or policy, or the evils it was intended to correct, though they may be within its letter. . The evil in view in adopting this provision of the constitution was the incorporating into acts of the legislature, by reference to other statutes, of clauses and provisions of which the legislators might be ignorant, and which affecting public and private interests in a manner and to an extent not disclosed upon the face of the act, a bill might become a law which would not receive the sanction of the legislature if fully understood. . This appeal cannot be sustained without holding, in effect, that every statute, general or local, must contain within itself every detail necessary for its complete execution, and that when the lawmakers desire to adopt the procedure or some other matter of detail contained in a local statute, that cannot be done by a suitable reference, but the same must be cut out of the other statute and actually inserted in the new one mutatis mutandis. Such a construction of this section of the fundamental law, besides producing all the mischief already pointed out, would lead to innumerable repetitions of laws in the statute books, and render them not only bulky and cumbersome, but confused and unintelligible, almost beyond conception. .. When a statute in itself and by its own language grants some power, confers some right, imposes. some duty, or creates some burden or obligation, it is not in conflict with this constitutional provision because it refers to some other existing statute, general or local, for the purpose of pointing out the procedure, or some administrative detail, necessary for the execution of the power, the enforcement of the right, the proper performance of the duty, or the discharge of the burden or obligation." "

93 People v. Lorillard, 135 N. Y. See also People v. Banks, 67 N. Y. 285, 288, 289, 290, 291, 31 N. E. 1011. 575; People v. Roosevelt, 24 App.