19 Del. 191 | Del. Super. Ct. | 1901
Lead Opinion
Court in Banc.
This is an action of assumpsit, brought by the i Equitable Guarantee and Trust Company, the plaintiff, to recover from John P. Donahoe, Collector of Taxes for the Northern Dis- \ trict of the City of Wilmington, the defendant, certain taxes assessed for the years 1898 and 1899 against the plaintiff, under the pro- ) visions of Chapter 381, Volume 20, Laws of Delaware, passed May 29, 1897, entitled “An Act to Equalize Taxation for State and County Purposes,” and under the provisions of Chapter 24, Volume 21, Laws of Delaware, approved May 25, 1898, entitled “ An Act to Amend Chapter 381, Volume 82, of the Laws of Delaware, entitled ‘An Act to Equalize Taxation for State and County Purpose;’” which said taxes were paid by the plaintiff under protest.
The plaintiff claims that these acts, collectively known as the Adams Tax Law, are unconstitutional, null and void, for the following reasons:
First, because neither the title of the original act of 1897 (Chapter 381, Volume 20), nor of the amending act of 1898 (Chapter 24, Volume 21), discloses the subject of municipal, taxation, which is embraced in the text of the amending act, and is therefore within the inhibition of Section 15, Article 8 of the Constitution of 1897.
Second, because the title is deceptive, false and misleading; in that it claims to be an act “.to equalize,” when in fact the provisions
Third. The plaintiff further claims, that in any event it must recover the amount paid as taxes for 1898, because the tax for that year was not assessed according to law; in that no opportunity of review or of appeal from the assessment was given to the taxable; that he had no day in court.
The first inquiry is, does the title disclose the subject of municipal taxation, within the scope of Section 16, Article 8, of the Constitution of 1897.
The title of the original act of 1897 is, “An Act to Equalize Taxation for State and County Purposes.”
The text of that act relates to the assessment and collection of taxes for State and County purposes, upon all investments paying interest or yielding an income which are not taxed for either State or County purposes or exempt from taxation, and provides that one-fourth of the money so raised in each county shall be for the use of the State, and the other three-fourths for the use of the county in which the same was levied and collected.
The title of the amending act of 1898 is, “An Act to Amend Chapter 381, Volume 20, Laws of Delaware, entitled 'An Act to Equalize Taxation for State and County Purposes.’ ”
Section 7 of the latter act provides as to New Castle County as follows: “ That of the moneys which shall be levied and collected under the provisions of this act, within the limits of the City of Wilmington, one-fourth thereof shall be for the use of the State and another one-fourth thereof shall be for the use of New Castle County, and the remaining two-fourths thereof shall be for the use of'The Mayor and Council of Wilmington.’ ”
Thus introducing into the act as amended the subject of municipal taxation.
Judge Cooley in his work on Constitutional Limitations, lfS has concisely stated the reasons for the insertion of provisions like this in State Constitutions. He says: “It may be assumed as settled, that the purpose of these provisions was, first to prevent hodge-podge or log-rolling legislation:
“ Second, to prevent surprise or fraud upon the Legislature by means of provisions in bills of which the titles give no intimation, and which might therefore be overlooked and carelessly and unintentionally adopted;
“ Third, to fairly apprise the people through such publication of legislative proceedings as is usually made of the subjects of legislation that are being considered, in order that they may have an opportunity of being heqrd thereon, by petition or otherwise, if they shall so desire.”
So far as the subject of taxation for municipal purposes is concerned, is not this title open to all of the three objections stated by Judge Cooley ? First, as tending to log rolling or omnibus legislation ; second, surprise or fraud upon the Legislature, there being no intimation of this subject; third, giving no fair notice to the people of this subject of legislation. 1
In addition, does not the title negative the presence of legislation for municipal purposes, by expressly confining the scope of the act to be “ for State and County purposes; ” and to that extent deceiving and misleading the Legislature and the people ?
If the title had stopped with the words “ An Act to Equalize Taxation; ” a different question would have been presented. In that case, the general subject of taxation, without any qualification other than that of equality, would be covered. When to these words, however, are added the limitation u for State and County
In Montgomery Building and Loan Association vs. Robinson, 69 Ala. 417, this whole subject is very ably discussed, and this clear rule is laid down. “ The question must always be, whether, taking from the title the subject, we can find anything in the bill which cannot be referred to that subject. If we do, the law embraces a subject not described in the title.” The provision of the Alabama Constitution is as follows: “ Each law shall embrace but one subject, which shall be described in the title.”
In the case of Sewickley Borough vs. State, 168 Pa. St., 169, it was held that under “an act to exempt from taxation public property used for public purposes and places of religious worship,” etc. that a provision in the act taxing other property not used for such purposes was unconstitutional, under the following constitutional provision: “ No bill except general appropriation bills, shall be passed containing more than one subject, which shall be clearly expressed in the title.”
It was decided in Hymen vs. The State, 87 Tenn., 109, that “A statute prohibiting sales of liquor to drunken husbands is unconstitutional and void if enacted either as an original or amended act, under the caption (An Act to Prevent the Sale, Giving or Delivery of Liquor to Minors.’ Its purview is not germane to its caption.”
The provision of the Tennessee Constitution was that “No bill shall become a law which embraces more than one subject, that subject to be expressed in the title.”
The Court in that case uses the following language: “The precise question to be determined in this case is, whether the title of the original act, entitled; ‘ An Act to prevent the Sale or Giving or Delivery of Liquors to Minors/ is broad enough to embrace an amendment, not relating in any way to prohibiting sales or gifts of liquors to minors, but which prohibits the sale or giving liquors to drunken husbands. We are not at all disposed, to construe this
“ The title of the act in question is an exceedingly restrictive one. It clearly indicates, that the subject of the act is the sale of liquors to minors. The subject of legislation is not the sale or giving of liquors generally, but the sale to a very limited class, to wit; minors. It would never occur to legislator or layman that under such an index would be found legislation prohibiting the sale of liquors to any other class of persons than minors.” Substitute “ State and county -purposes ” for “ minors ; ” and “ Municipal purposes ” for “ drwiken husbands ; ” the reasoning in this case applies with equal force to the one we are now considering; the more emphatic wording of the provision of the Tennessee Constitution being nothing more than what would be the legal interpretation of our own Constitution where the provision is clearly mandatory.
It held a law to be unconstitutional which was entitled “ An Act to Provide more Just and Equitable Laws for the Assessment and Collection of Revenue for State and County Purposes,” etc.; because in the text of the law provision was made for the collection of municipal tax, while no reference is made in the title.
The Court says, “ That taxes for municipal purposes are not taxes levied for State or county purposes, and are not included under the terms of the title to this act, seems too clear for argument or illustration. If a State tax is not a municipal tax, or a county tax not one, then it is clear the title does not provide for, but excludes any provision for the collection of municipal taxes. The expression of these purposes necessarily excludes a different one.”
Under a liberal construction of our constitutional provision, it must be manifest that the subject of taxation for municipal purposes is not within the title of the act in question, which is confined to State and county purposes; and so much of the amending act as relates to that subject is therefore unconstitutional and void.
Our next inquiry must be to what extent the act as amended is affected by these unconstitutional provisions. It is claimed by the defendant that if so much of Section 7 of the act of 1898, which embodies the new Section 12 as relates to municipal taxation should be declared void, that Section 12 of the original act of 1897 would stand and still leave the statute effective. Upon this point he cites, Cooley on Const. Lims. (5 Ed.), 222; Shepardson vs. M. & B. R. R. Co., 6 Wis., 605; State vs. Judge of County Court, 11 Wis., 50; Sullivan vs. Adams, 6 Gray, 476; DeVoy vs. Mayor, etc., 33 Barb., 264; Coupon vs. Delroe, 14 Mich., 276; Childs vs. Shower, 68 Iowa, 261. These and many other cases have been carefully examined. They all turn upon provisions similar in effect to' section 23 of the amending act of 1898, viz.: “All acts or parts of acts inconsistent with this act are hereby repealed,” and are cases of repeal by implication.
Under section 7 of the amending act of 1898, section 12 of the original act is expressly repealed by these words: “Amend the said chapter by striking out all of section 12 thereof.” Here the Legislature has specifically and expressly repealed section 12, which it had the power to do. This left the original act without any section 12; and if the substitute therefor provided by the amended act be unconstitutional the original statute has no section 12 and the statute as amended is emasculated to that extent. This proposition would seem to require no elaboration.
In this connection we will consider cases where the amending act expressly repeals some part of the orignal statute.
Where an amending act, among other things, expressly repeals a section or a part of an original act, and substitutes an unconstitutional section or part in lieu thereof, no court, so far as the most careful investigation discloses, has ever held, that the section or part of the original act so repealed was retained or restored, unless the repealing clause itself was void.
Courts have never attempted to say what a Legislature would have done, if it had anticipated that the substitute would prove to be unconstitutional; unless the Legislature has clearly expressed its intent in such a contingency, amounting substantially to a declaration in the amending act, that in case the new section or part should prove to be void then the old should stand. Indeed to do so, would be to stipulate in umbra, and to formulate and-enact law out of the brains of the Judge, in the face of the express declaration of the Legislature that the old section is stricken out. We can conceive no more dangerous method of substituting the judicial will for legislative enactment.
In cases of express repeal, it seems to be settled, that the old section only remains valid, where the amending act is totally void including the repealing clause; and therefore the original act was
In Judson vs. City of Bessemer, 87 Alabama, 240, the amending act read as follows: “ That Section 38 of the Charter of the City of Bessemer, Alabama, be and the same is hereby amended by striking out the word fifty in the fifth line of said section, and inserting the word thirty in lieu thereof.” The repealing clause of the amending act was held to be void, not because it was connected with the unconstitutional substitute, but because the whole amending act, including the express repeal, had not been re-enacted and published at length, under the provision of the Alabama Constitutian, “ That no law shall be revised, amended, or the provisions thereof extended, or conferred, by reference to its title only; but so much thereof as is revised, amended, extended or conferred shall be re-enacted and published at length.” The case, therefore, falls within the principle of a void amendment including the repealing clause, thus leaving the old law unrepealed.
Coming within the same rule is the case of the State ex rel. vs. Blend, et al., 121 Ind., 514; where the Court held that the body of the amending act was unconstitutional, which body embraced the repealing clause. The language of the repealing clause was as follows: “ That all laws and parts of laws in conflict with it, and especially the act providing for a metropolitan police in cities ot 29,000 inhabitants, are by this act repealed.” The Court does not state the ground upon which it holds the body of the amending act to be unconstitutional, and the case is otherwise quite indeterminate and unsatisfactory; but it does hold that “ the body of the amending act was void,” which carried the repealing clause as a part of it.
To a similar effect are all the cases where an express repeal has been disregarded.
In the case at bar, the Legislature has said expressly, strike out the old section 12,and insert in lieu thereof the new section 12. The striking out was within its power and valid, and old section 12 is
Under all the rules of construction, the striking out or repeal, and the inserting of the substituted section 12, are not so inseparably connected in terms, in this case, that if one falls the othér must fall; but are separable, each being a distinct substantive and complete thing in itself when separated. Are they then made inseparable by legislative intent f
By coupling together in one section of the amending act, the express repeal of old section 12 and the substitute new section 12, the legislative intent that they are inseparable is no more manifest, than if in one section of the amending act, old section 12 had been repealed, and in some other remote section, or in an entirely independent act, a substitute for old section 12 had been provided, without saying in lieu thereof or any other express words of substitution ; yet the substitution in that case would be just as complete by implication, as if declared in express terms. In such case it would hardly be contended that the distinct repealing section would be void, because the remote section or independent act actually providing a substitute was void. The rule and reasoning would be the same in each case.
If the Legislature had said “strike out section 12, and insert in lieu thereof as follows ”—and then had not filled up the following or- intended section, but had left it blank, it could hardly be said that it did not intend to strike out, when it had expressly said so, because it had provided nothing to take its place, the blank substitute being a nullity. Yet this is in effect the case before us, where an unconstitutional substitute is nothing, just as much as a blank substitute is nothing. We consider that the Legislature did intend to strike out, for it has said so expressly. True it has no* provided a substitute; but that is an omission only as to the substitute, andjdoes not affect the validity of the striking out.
But it is urged, that the Legislature intended to amend and make effective, the law for the assessment, collection and distribution of taxes on personal property, and not to annul such a law.
Who can tell what action the Legislature would have taken in case new section 12 should prove to be unconstitutional? Does it appear that they contemplated any such contingency ? If their intention had been as contended it would have been very easy for the Legislature to have expressed such intention in appropriate language.
To say that section 7 of the amending act, is single, and not divisible; that it shows the intention of the Legislature to be, that old section 12, should remain, in case new section 12 could not be substituted, begs the question. Said section 7, naturally divides itself into two distinct purposes of legislative action; the one is to repeal, and get rid of something that the legislature expressly said it did not want; namely, old section 12; the other, to adopt something that it did want; namely, new section 12. The one purpose, of all others appearing by the express terms of said section 7 is to get rid of old section 12; inasmuch as new section 12 embraces the radical difference between the old and the new acts, and shows that the Legislature for reasons, in its judgment deemed sufficient, as we must presume, did not intend in any event that old section 12 should stand. That was manifestly the change it had determined to make. It would seem paradoxical, therefore, for the Court to hold, that the legislative intent to get rid of that section is best interpreted by retaining it. For this would be the logical result of such a conclusion.
In view of the express repeal of old section 12, and the implied intention not to have it, by enacting new section 12, which in some of its provisions is radically different from the old section; would
It is somewhat remarkable that after the most diligent search, no case has been found in the books which directly supports such a proposition.
It is claimed further, however, that as the unconstitutional part of new section 12 relates only to taxation for municipal purposes that the statute is still effective, for State and county purposes, if the unconstitutional parts are capable of separation from the remainder of the act; that is, in the language of the defendant, if “ That which is left is complete in itself, sensible and capable of being executed.” Of course if this be so, the law, under well settled rules, would still be valid.
A careful examination of the statute shows that the provision for taxation for municipal purposes, relates not alone to the payment to the city of the money so received as and for its use, but necessarily enter into the assessment, levy and collection thereof as well; indeed it pervades every material feature of the act as essential parts of its structure as a method of raising revenue by taxation and is therefore incapable of separation; inasmuch as said section 12 as amended says, “That of the moneys which shall be levied and collected under the provisions of this act, in New Castle County, within the limits of the City of Wilmington two-fourths thereof shall be for the use of the mayor and council of Wilmington.’’ The taint of unconstitutionality applies therefore to the levy and collection of the tax as well as to its distribution, and may not be separated from the residue without destroying the machinery for levying and collecting taxes for all purposes.
It may be said, moreover, that so much of new section 12
Our conclusion is, that as section 12 of the original act, was repealed by section 7 of the amending act; that as so much of said new section 12 as relates to taxation for municipal purposes in the amending act is unconstitutional and void, because it is not covered by the title, and that as the unconstitutional part cannot be separated from the residue, without emasculating the statute, that therefore the act as amended is unconstitutional and void, and the plaintiff is entitled to recover.
Entertaining this view, it becomes unnecessary for us to consider the remaining questions, which were raised and argued with so much force and ability, viz.:
First, the unconstitutionality of the act because it is claimed to be in violation of section 1, Article 8 of the Constitution of 1897 providing for uniformity in taxation.
Second, the alleged illegality of the tax for 1898, because it was not assessed according to law, in that the taxable had no day in Court, no opportunity to review the assessment or to take an appeal.
It is ordered- that the prothonotary certify this opinion to the Superior Court for New Castle County.
Concurrence Opinion
(concurring):
I would say that while I concur generally in the conclusions reached by the majority of the Court, and also in the line of reasoning and in the language generally, nevertheless there is one consideration essential to the determination of this case which, for want of time properly to incorporate it in the opinion of the majority of the Court, I will now endeavor to present as explicitly and concisely as possible.
Therefore, although the Legislature intended to amend the act of 1897 and to continue taxation of investments, yet it clearly did not intend to amend it by continuing the distribution provisions of section 12 thereof, unaltered.
In view of the express declaration of said repealing clause, and of the necessary implication of the substitutionary clause of said section 7, it is reasonable to presume that, in the judgment of the Legislature of 1898, the distribution provisions of section 12 of the act of 1897, were.unequal, unjust, or otherwise objectionable in their operation, and therefore should not longer continue in force. Accordingly they determined and provided, as the act of 1898 discloses, first for their repeal and discontinuance, and second for the continuance of taxation of investments for a radically different purpose.
Hence to contend that because they intended to amend the original act and continue the taxation of investments, but for a distinctly different purpose—as the said municipal purpose was— therefore the Legislature intended, in case such purpose failed, to continue the very provisions in question of section 12 of the original act, when by the provisions of section 7 of the amending act they both expressly and impliedly show, the contrary, is both an erroneous inference and an unwarranted assumption. From these actual circumstances it is manifestly more reasonable to presume that the Legislature of 1898 would have altered the title of their amending act so as to include taxation for municipal purposes,
In the absolute repeal clause of said section 7 of the act of 1898, the Legislature expressly repealed and actually annulled said provisions of section 12 of the original act. This part of the legislative purpose was unquestionably and unconditionally accomplished. The substitutionary clause providing for the intended remedy of the faults of the old section 12 failed, but by no intent or expectation of the Legislature. But because this one of their two purposes may have failed through the decision of this Court, that does not warrant us in holding that what the Legislature clearly intended should not continue, shall nevertheless be declared to continue. It is simply the failure of the Legislature' to effect one, but not the other of their manifest purposes, in the opinion of the majority of this Court.
Whilst we have no evidence of what the Legislature would have done if it had known that its intended substitutionary clause was unconstitutional and void, yet we have the inherent testimony of the amending act itself that the said provisions of section 12 of the original act were, in the judgment of the Legislature, presumably, so unequal, unjust or otherwise objectionable that they intended and declared that they should be discontinued, and no longer be operative or in force.
Under these circumstances it is not within the proper sphere or duty of the Court, either to conjecture or declare that which is exclusively a matter of legislative power and discretion. Hence if the General Assembly, having, as we consider, intentionally, absolutely and unconditionally repealed section 12 of the act of 1897, have failed, for any reason, to enact a valid substitute therefor, the remedy must be sought in legislative, and not judicial action.
Dissenting Opinion
(dissenting):—I fully concur in the opinion just delivered, in so far as it holds, in effect, that the title of the act to amend Chapter 381, Volume 20, Laws of Delaware, entitled, “ An Act to equalize taxation for State and County purposes,” being
The general scope and purpose of the amended act as expressed in the title thereof was “ to equalize taxation for State and County purposes,” and to this end the Legislature passed the said original act. It is obvious that the purpose of the amendatory act was to amend the original act by adding thereto certain curative features, matters of detail largely, for the more efficient enforcement thereof as well as to attempt to provide for a somewhat different distribution of the revenues to be derived from the taxes to be levied and collected under the said act within the limits of the City of Wilmington as aforesaid. There is clearly and manifestly nothing in the language of the said amendatory act which in any way signifies an intent on the part of the Legislature to defeat the main purpose of the said original act either by direct or indirect means. But on the contrary the republished act as amended clearly and unmistakably evinces the legislative intent to continue the subject of taxation provided for under the said original act, and for the purposes therein mentioned, except so far as the attempted amendment proposed a different distribution of the taxes to be levied and collected
Upon the question whether section 7 of the amendatory act repeals section 12 of the original act, the substitutionary portion of the former section being void, I cannot resist the conviction that the Legislature did not intend by attempting to amend the said original act to defeat the main purpose and design thereof, and thereby to annul the very act itself. Nor do I think that said section 7, with the unconstitutional part thereof rejected, can, within the legislative intent to be gathered from the whole of said section, be given, under any well settled rule of construction, a separate and independent positive force and operation for the purpose of enacting what the Legislature, under every reasonable intendment, never meant or intended, viz., the annulment of the very statute which at most they only sought to amend. And in the determination of this question the manifest intent on the part of the Legislature to continue the system of taxation established by the said original act has an important bearing upon the effect of the void portion of said section 7 on the remainder thereof.
It is an established rule, applicable alike to the whole or a part of a statute, though stronger in favor of the former than the latter, that all reasonable doubts and presumptions are to be solved in favor of the validity of a statute. And while it is true that a portion of section 7 is unconstitutional, yet if there be a reasonable doubt about the remaining portion of said section being separable
In the case of Wellington. et. al. petitioners, etc., 16 Pick. (Mass.), 87, Shaw, Chief Justice, said:—“ When called upon to pronounce the invalidity of an act of the Legislature passed with all the forms and solemnities requisite to give it the force of law, courts 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 on the subject, and never declare a statute void, unless the nullity and invalidity of the act are placed, in their judgment, beyond reasonable doubt. And under this safe rule, I am unable to dispose of this question, having rejected part of said section 7 as unconstitutional, by giving to the remainder thereof a distinct, positive operation for the purpose of effecting the repeal of said section 12 and the consequent annulment of said original act; for I not only entertain a reasonable doubt that the Legislature ever intended such a consequence, upon it being determined that the main, I may say the sole, purpose of said section 7, cannot be carried into effect, the essential part thereof being void, but I am constrained to believe that every reasonable intendment is against such a construction. It seems to me very evident upon an inspection of said section that the invalid portion thereof formed an inducement or consideration for the enactment of the remainder thereof; and that the pronounced repeal clause therein was not in fact, a repeal at all as an independent act but merely an incidental provision within the scope and
“ It is no doubt true * * * that the same act of legislation may be unconstitutional in some of its provisions and yet constitul tional in others * * But this must be taken with this limita- / tian, that the parts, so held respectively constitutional and unconj stitutional, must be wholly independent of each other. But if they ) are mutually connected with and dependent on each other as conJ ditions, considerations, or compensations for each other as to war- ( rant a belief that the Legislature intended them as a whole, and j that, if all could not be carried into effect, the Legislature would [not pass the residue independently, and some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected, must fall with them. (Warren and others vs. Mayor and Alderman of Charlestown, 2 Gray. (Mass.), 94). If, when the un- | constitutional 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—Cooley on Const. Lim. (6th. Ed.), 211. In the application of this principle of construction, Judge , Cooley, in a note on page 212 of the same treatise, says: “ It must : be obvious, in any case when part of an act is set aside as unconstitutional, that it is unsafe to indulge in the same extreme presumptions in support of the remainder that are allowable in support ' of a complete act when some cause of invalidity is 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
Looking at section 7 in its entirety and at the legal import and evident legislative intent of the words employed therein, I cannot see that it was the manifest intent of the Legislature to strike out said section 12 except for the purpose of the intended substitution and it does seem to me that the legislative intent in thé use of the words, “ Amend the said chapter by striking out all of section 12 thereof, and inserting in lieu thereof the following ” was to be controlled in its construction and effect by that part of said section, the substitutionary part, which we all agree is void. The insuperable difficulty which I find in the application of the well settled principle of construction with reference to statutes which are unconstitutional in part, to effect the repeal of said section 12, is, that by rejecting the unconstitutional portion of said section 7 and then maintaining that the remainder of the said last mentioned section is valid and repeals said section 12, the said section 7 is made to enact what the Legislature never intended. Such a construction confers upon the first part of said section 7 a positive operation as a distinct and separate act, beyond any legislative intent to be gathered from the language and purpose of the whole of said section, which was both to strike out and to substitute said section 12; and beyond what I am able to see and to know the Legislature would have enacted in view of the invalidity of that portion of said section 7 which is unconstitutional. And to give to the remainder of said section the positive operation necessary to effectuate the repeal of said section 12, in view of the closely connected relation and evident single purpose of the parts of said section, it should be clearly manifest from the words employed there
But it has been said in effect by maintaining that the whole of said section 7 is void because of the unconstitutional portion thereof and that by reason thereof s^id section 12 remains unimpaired, the Legislature is made to enact what they did not intend to do; for it is urged that the Legislature manifestly intended to change the provision in said section 12 in relation to the distribution of the said taxes as provided under the orginal act. This objection does not meet the question now before us, for the Legislature has failed in doing what they intended to do by said section 7. And besides the same objection may be urged against the claim that said section 12 is stricken out and repealed by virtue of said section 7, notwith
It is the effect of their failure to enact in a constitutional manner what they intended with which we have to deal, and in this connection to consider the relation which the void portion o said section 7 bears towards the remainder thereof, and to ascertain whether or not the two parts of said section are interwoven and bound together in one purpose and inseparable. It is a well settled rule of construction that the customary repealing clause has no effect and repeals nothing if the statute to which it is annexed is invalid, because there is nothing inconsistent or in conflict with it. The intent of the Legislature to change the existing law in such a case is as manifest and certain as it is in this; but that intent, whatever it may be, and however plainly expressed, fails, if the act, intended to become a law, is void, and there as here follows the effect of such failure upon the existing law which it was plainly intended to change, but to change, or modify, only as by the proposed new act, and not to abrogate. And it seems to me, viewing this case as I do, that the principle underlying this rule of con
And in addition to what I have already said, I may add that I it seems to me that the reasoning in the case of State ex. rel. Law vs. Blend, 121 Ind. 514, is sound, convincing and applicable to this case. The facts were these: An act of the Legislature was > passed on the fifth day of March, 1883, creating a board of metro- ' politan police in all cities in the State of Indiana, having a population of 29,000, or more, inhabitants, to be appointed by certain officers designated in the act. By a subsequent act, passed on the seventh day of March, 1889, the Legislature attempted to abolish the said board of police, and to create another and a fire department, to be elected and appointed differently than was provided under the first act. The latter act provided that all laws and parts of laws coming in conflict with it, and especially the act providing for a metropolitan police in cities of 29,000 inhabitants are by this
In another case, Judson vs. City of Bessemer, 87 Alabama, 240, the question was as to the effect of a void amendatory act upon the original act. The attempted amendment was as follows: “ That section 38 of the charter of the City of Bessemer, Alabama, be, and the same is hereby amended by striking out the word ‘fifty’ in the fifth line of said section, and inserting the word ‘thirty’ in lieu
Poindexter vs. Greenhow, 114 U. S., 270, 304.
I hold that said section 7 is single in its purpose of substitution ! only, and that it is not separable into two or more parts, each per- *1 taining to separate and distinct objects, independent of each other, and that, therefore, it can only be considered as an inseparable whole. The said section in its scope and purpose signifies no more than if the Legislature had sought to amend said section 12 in this form: “Be it enacted, that said chapter be and the same is hereby amended by substituting for section 12 thereof the following: ”— and then had added the said substitutionary words which are contained in said section 7. Substitution alone is the extent of the meaning and purpose of said section 7 within the legislative intent
Lastly: The question before us is not one of casus omissus— ! what the Legislature attempted to do, they expressed in clear and I explicit language, and there was nothing omitted by inadvertence ¡ or accident, such as falls within the meaning of the maxim. Nor do I conceive it to be the case of an “express repeal” as a separate >J and independent act for the reasons already stated. And it is very j evident that it is not the case of amending a statute by a simple | repeal of some provision thereof. But it is simply what said ( section 7 manifestly shows it to be, a case of an attempt to amend a section of an act by substituting another provision in lieu thereof. And the attempted substitution failing, the attempted amendment, in toto, likewise fails for the reason already assigned. I have not deemed it necessary to pass upon the other objections, presented at the argument, against the validity of the original act and the amendments thereto, the opinion of the majority of the Court having disposed of the case before us upon the two questions fully set forth in the opinions now delivered.