Fleischner v. Chadwick

By the Court, Burnett, J.:

It is admitted that the law of 1864, authorizing the payment of the salary in this case, has been repealed by the law of 1868, unless the repealing statute is unconstitutional. If the law of 1868, or that portion of it repealing the law of 1864, is not in conflict with the Constitution, then the court committed no error in dismissing the cause. To declare a law unconstitutional, the court must be satisfied beyond a reasonable doubt that it is so.

It has been said by an eminent jurist, that when courts are called upon to pronounce the invalidity of an act of the Legislature, passed with all the forms and ceremonies *154 requisite to give the force of law, they will approach the question with great caution, examine it in every possible' aspect, and ponder on it as long as deliberation and patient attention can throw any light on the subject, and never declare a statute void unless the nullity and invalidity of the act are placed, in their judgment, beyond a reasonable doubt. ( 19 Pick. 95 .)

A reasonable doubt must be solved in favor of legislative action and the act be sustained. (4 Dale, 18; 4 N. H. 16; 13 Pick. 61 .)

The act ok 1868 is an independent act, one object of which was to place a class of lands in market that had never been offered before, to wit, the university lands, and the first five sections of the act point out the manner in which all the school and university lands belonging to the State shall be disposed of; then follows § 6, which is disconnected from all the previous sections, as well as those that follow it, and is on an entirely different subject.

Tt is claimed that this § 6 of the act of 1868 is contrary to Art. VIII, § 5 of the Constitution. If it was the intention of the Legislature by this provision to take away from the Board of Commissioners the control of the funds arising from the sale of school and university lands and give it to the county treasurers of each county where such lands might lie, it is clearly unconstitutional; but, conceding that this' § 6 of the law is unconstitutional, does the balance of the act fall with it?

The rule in such cases, as laid down in 5th Gray’s Mass. Bep., cited by appellant’s counsel, and which is no doubt correct, is “that where part of a 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 *155 fall. Applying this test to the act of 1868, we think the sixth section might be treated as unconstitutional and the balance of it valid, for the whole act may read, leaving out the sixth section, without apparent defect or want of harmony.

Another objection made to the act of 1868 is, that it is contrary to § 22 of Art. IY of the Constitution, which provides that “no act shall ever be revised or amended by mere reference to its title, but the act revised or section amended shall beset forth and published at full length." The Constitution of Maryland contains a similar provision, and in giving a construction to it, in the case of Davis v. The State ( 7 Maryland, 152 ), the court said: “This was intended to prevent incautious aad fraudulent legislation. It does not apply to an independent act, establishing a new, or revising some previous policy of the State. In such cases the enactment of one law is as much a repeal of inconsistent laws, as if the latter were repealed by express words.” (Sedgwick on Const, and Stat. Law, 572; 2 Or. 125 .)

While the law of 1868 is an independent act, and does not profess to revise or amend any prior act, it is claimed that it does amend or repeal different sections of the prior laws of 1864 and 1866 on the same subject, by implication. When two statutes are enacted that are so inconsistent that they cannot both stand, the last one repeals the first by implication, for the last enactment being the latest expression of the law-making power will prevail. Statutes which repeal or amend others by implication are not obnoxious to \ 22, Art. IY of the Constitution. (Cooley’s Const. Lim. 150; 13 Mich. 496 ; 15 Ohio (N. S.) 573; 6 Ind. 41 ; 16 Ind. 497 ; 47 Mo. 29 .)

It is claimed by the appellant that this case falls within the rule laid down in the case of the City of Portland v. Stark ( 2 Or. 69 ). We have no hesitation in affirming that decision as being entirely correct, but an examination of that case will show that the act then under consideration was entirely different from this one, as appears from the following language found on page 74 of the opinion: “In the case at bar, the act of October 15, 1862, in its title pro *156 fesses to amend an act entitled ‘ An Act to incorporate the city of Portland,’” etc., while in this case the act under consideration in entitled “An Act to regulate the sale of school lands, university lands, and to provide for the management of the funds arising therefrom, ” and contains no reference to any prior act whatever.

Judgment affirmed.