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general terms of the act, as it does to exclude parts of the verbal phraseology." In Railroad Companies v. Schutte 25 the court said the striking out of the void part is not necessarily "by erasing words, but it may be by disregarding the unconstitutional provision, and reading the statute as though that provision was not there." Many cases are of the same purport.26 These views are in accordance with the general rule that a statute will be so construed, if possible, as not to violate the constitution, as well as with the rule that the words of an act will be restrained or limited by its title, so as not to apply to persons or cases not expressed in the title.28

27

A statute which had the effect of regulating both state and interstate commerce in the same provision was held valid as to the former and void as to the latter.29 But where such an act exacts a license fee of common carriers based upon the total amount of business done in each county, which was made up in part of interstate and in part of state

24 State v. Smiley, 65 Kan. 240, 69 Pac. 199.

25 103 U. S. 118, 142, 26 L. Ed. 327. 26 Grimes v. Eddy, 126 Mo. 168, 28 S. W. 756, 47 Am. St. Rep. 653, 26 L. R. A. 638; State v. McGowan, 138 Mo. 187, 39 S. W. 771; Citizens' Nat. Bank v. Graham, 147 Mo. 250, 48 S. W. 910; State v. Mines, 38 W. Va. 125, 18 S. E. 470; State v. Fackler, 91 Wis. 413, 64 N. W. 1029; United States v. Central Pac. R. R. Co., 118 U. S. 235, 6 S. C. Rep. 1038, 30 L. Ed. 173; Packet Co. v. Keokuk, 95 U. S. 80, 24 L. Ed. 377; Freight Tax Case, 15 Wall. 232; Supervisors v. Stanley, 105 U. S. 305, 313, 314, 26 L. Ed. 1044; McCullough v. Virginia, 172 U. S. 102, 19 S. C. Rep. 134, 43 L. Ed. 382. And see Austin v. The Aldermen, 7 Wall. 694, 19 L. Ed. 224; Bull v. Rowe, 13 S. C. 355; McCready v.

Sexton, 29 Iowa, 356, 4 Am. Rep. 214; Hiss v. Baltimore, etc. R. R. Co., 52 Md. 242, 36 Am. Rep. 371; Franklin v. Westfall, 27 Kan. 614; Western Union Tel. Co. v. State, 62 Tex. 630.

27 Ante, § 83; post, § 498.

28 State v. Hartford Fire Ins. Co., 99 Ala. 221, 13 So. 362; Bell v. State, 91 Ga. 227, 18 S. E. 288; Comer v. State, 103 Ga. 69, 29 S. E. 501; Pittsburg v. Reynolds, 48 Kan. 360, 29 Pac. 757; Commonwealth v. Barney, 24 Ky. L. R. 2352, 74 S. W. 181; Allen v. Bernards Tp., 57 N. J. L. 303, 31 Atl. 219; State v. State, 57 N. J. L. 348, 30 Atl. 480; Cooper v. Springer, 65 N. J. L. 594, 48 Atl. 605.

29 State v. Scott, 98 Tenn. 254, 39 S. W. 1, 36 L. R. A. 461; Austin v. State, 101 Tenn. 563, 48 S. W. 305, 70 Am. St. Rep. 703, 50 L. R. A. 478; Freight Tax Case, 15 Wall, 232.

business, it was held that there could be no separation, and the provision was held void in its entirety." Where the constitution forbade an appropriation for a longer term than two years, a statute making an appropriation for a longer term was held good for two years." A statute authorizing municipalities to become indebted beyond the constitutional limit was held effectual to authorize the creation of a debt not exceeding the limit fixed by the constitution. The constitution of Nebraska authorized the commitment to the reform school of children under sixteen years of age. A statute authorized the commitment of children under eighteen. It was held valid as to those within the constitutional age. Where the constitution limits the term of an office to a specified number of years, there is a difference of opinion as to whether an act creating an office and providing for a longer term is valid for the maximum term fixed by the constitution, or whether it is void in that respect. Some courts hold to the former alternative. Others hold

30 State v. Northern Pac. Express Co., 27 Mont. 419, 71 Pac. 404.

straint. The legislature having declared its will, and its command

31 Pickle v. Finley, 91 Tex. 484, 44 to the courts being in part valid S. W. 480.

32 Dunn v. Great Falls, 13 Mont. 58, 31 Pac. 1017; Germania Sav. Bank v. Darlington, 50 S. C. 337, 27 S. E. 846.

33 Scott v. Flowers, 61 Neb. 620, 85 N. W. 857. In this case the court says: “The legislature has here clearly expressed its will, but it has gone too far; it has transcended the limits of its authority. It has, in an unmistakable manner, signified its purpose not only to authorize the commitment to the reform school of certain children under the age of sixteen years, but, also, children beyond that age who, although guiltless of crime, have evinced a criminal tendency and are without proper parental re

and in part void, the decisive ques‐ tion is, shall section 5 be given effect so far as it is in accord and agreement with the paramount law? It seems that both good sense and judicial authority require that the question should receive an affirmative answer." p. 624.

34 Sinking Fund Com'rs v. George, 104 Ky. 260, 47 S. W. 779, 84 Am. St. Rep. 454; State v. Stuht, 52 Neb. 209, 71 N. W. 941. In the former case an act created a board of penitentiary commissioners and provided that, of the first board, one should hold for two years, one for four years and one for six years and that their successors should be elected for six years. The constitution forbade the creation of offices

that the provision fixing the term is void altogether. Of these, some, again, hold that the remainder of the act is valid, and that the officer provided for holds during the pleasure of the appointing power,35 while others hold the entire act void.36

37

A statute of Indiana regulating the liability of railroads. and other corporations and doing away with the fellowservant rule was held by the supreme court of that state to be valid as to railroads whether valid as to other corporations or not. The claim was that it was class legislation as applied to other corporations, as it would subject individuals and corporations in the same business and under the same circumstances to different rules of liability. The same statute was sustained as to railroads by the supreme

with a longer term than four years. The act was held to create a fouryear term and to be valid as so modified. The court says: "The language employed shows that the general assembly was willing that one of the commissioners should hold his office for six years-two years longer than the constitution will permit. As the general assembly expressed a willingness that one of the commissioners should hold for two years longer than the constitution permits, it is certainly reasonable to conclude that it was the will of that body that the com. missioners should hold for four years, as this term is necessarily included in the longer one which it fixed. To hold the act void in so far as it makes the term six years instead of four, still the balance of the act is complete and enforceable. The purpose and intent of the general assembly, that the commission ers should manage and control the penitentiaries, can be effectuated

by eliminating from the act that part which attempted to make terms six instead of four years." And see People v. Burch, 84 Mich. 408, 47 N. W. 765.

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35 People v. Perry, 79 Cal. 105, 21 Pac. 423; Lewis v. Lewelling, 53 Kan. 201, 36 Pac. 351, 23 L. R. A. 510. In the former case the court says: But we know of no precedent for holding that a clause of a statute, which as enacted is unconstitutional, may be changed in meaning in order to give it some operation, when admittedly it cannot operate as the legislature intended. This would, it seems to us, be making a law, and not merely correcting an excess of authority." p. 115.

36 State v. Harris, 19 Nev. 222, 8 Pac. 462; Kimbrough v. Barnett, 93 Tex. 301, 55 S. W. 120.

37 Pittsburgh, C., C. & St. L. Ry. Co. v. Montgomery, 152 Ind. 1, 49 N. E. 582, 71 Am. St. Rep. 301.

court of the United States on the ground that the effect of the Indiana decision was to hold that the statute was capable of severance.38 A similar statute was held void altogether by the supreme court of Mississippi in a very elaborate opinion in which many cases are reviewed. The statute in question originally applied only to railroads and was amended so as to apply to all corporations. It was argued that it should be construed as applicable only to corporations engaged in a hazardous business like that of railroads and as so restricted should be sustained. The court held that it could not limit the statute in this manner, and in respect to the doctrine of severance says: "The difficulty is in finding the true test as to when a statute may be severed; that test clearly is this: That whenever the court finds on the face of a statute a number of different provisions, some constitutional and some unconstitutional, there it may sever, if they are not interdependent, between these provisions, striking out the unconstitutional; and, let it be marked, that in every such case there is something to sever between on the face of the statute. That is what is meant by the severance of a statute. But whenever a court, in order to uphold the provisions of a statute as constitutional, has to interpolate in such statute provisions not put there by the legislature, in order by such interpolation to make the provision which the legislature did put there constitutional, this is no case of severance in any proper legal sense; nor is it in any legal or logical sense a proper limitation of the provisions which are in a statute by judicial construction. Such action by a court is nothing less than judicial legislation pure and simple." 39

§ 299 (172). The same question in case of criminal statutes. But the rule is more stringent in regard to criminal statutes. As said by Johnson, J., in Wynehamer v. People: "Laws in relation to civil rights are sometimes held

38 Tullis v. Lake Erie & W. R. R. Co., 175 U. S. 340, 20 S. C. Rep. 136, 44 L. Ed. 192.

39 Ballard v. Miss. Cotton Oil Co., 81 Miss. 507, 573, 574, 34 So. 533. 40 18 N. Y. 378, 425.

to be unconstitutional, in so far as they affect the rights of certain persons, and valid in respect to others. This is done mainly upon the ground that the courts will not construe them to relate to such cases as the legislature had not power to act upon. To statutes creating criminal offenses, such a rule of construction ought not to be applied, and I cannot find any trace of its ever having been applied. It is of the highest importance to the administration of criminal justice. that acts creating crimes should be certain in their terms and plain in their application; and it would be in no small degree unseemly that courts should be called upon, in administering the criminal law, to adjudge an act creating offenses at one time valid, and at another time void. It must, I think, stand as it has been enacted, or not stand at all." A law void as to certain property (intoxicating liquors) already possessed at the passage of the law, but which would be valid if confined to such property subsequently acquired, is wholly void, being general so as to include both in penal destruction of value. Where the constitution fixed the limit of punishment by fine imposed by a justice of the peace at $3, and the legislature provided for a fine not exceeding $20 in such cases, the statute was held valid to the constitutional limit of $3, and void beyond that sum.42 The excess was easily ascertained, and divisible from the amount authorized. And though the void part could not be literally stricken out without changing the letter of the statute, it could be excluded with no less certainty and precision.

41

§ 300 (173). In United States v. Reese 3 it was held that the power of congress to legislate at all upon the subject of voting at state elections rests upon the fifteenth amendment to the federal constitution, and can be exercised by providing a punishment only when the wrongful refusal to receive the vote of a qualified elector at such election is because of his race, color or previous condition of servitude. A con41 Wynehamer v. People, 13 N. Y. 42 Clark v. Ellis, 2 Blackf. 8. 378, 425. 43 92 U. S. 214, 23 L. Ed. 566.

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