CHAPTER XI. CONSTITUTIONAL LAW. A. Principles of constitutional law; partial invalidity of statute. B. Laws impairing obligation of contracts; retroactive laws. C. Due process of law; equal protection of the laws. D. Constitutional provisions, when prospective. E. That laws shall embrace but one subject, which shall be expressed in the title. F. Inhibitions against special legislation; uniform operation. ⚫G. Miscellaneous. The Constitutions of the several States contain limitations and restrictions upon the powers of the legislatures and municipalities of the States, and the Constitution of the United States contains a few such restrictions or limitations, notwithstanding that instrument, for the most part, consists of delegations of power by the States to the Federal government. Subject to the restrictive provisions of the Federal Constitution, the Constitution of a State is its fundamental law, and neither the State nor the public bodies created by it can exercise any power not in harmony with such paramount law. In some instances certain powers are recognized, but limited or regulated by constitutional provisions, and in others the exercise of certain powers is inhibited. Such provisions are mandatory, and generally any acts attempted to be done in contravention of them are nullities. Such constitutional provisions, and their effect as limitations or restrictions upon State and municipal legislation, are most important and interesting branches of municipal law. The Federal courts have had to decide many cases involving such questions arising under both the Federal and State Constitutions. In the decision of any question arising under the Federal Constitution, those courts exercise a supreme and independent judgment, but in questions involving the construction of constitutional or statutory provisions of the States, those courts will generally adopt and follow the decisions of the highest courts of the respective States, when no Federal question is involved. (See chapter XVI.) In many cases in which the validity of municipal bonds has been involved, the controlling question has been as to the constitutionality of the act relied on as authority for their issuance or of laws relied upon to authorize the levy of taxes or assessments for their payment. A statute in so far as it violates any mandatory provision of the State or Federal Constitution is a nullity, and of course can confer no power; and bonds issued, or other acts done by virtue of such statutes only, are equally void. A discussion of principles of constitutional law or of constitutional provisions is beyond the scope of this article, but a reference to some of the most important of such provisions affecting the powers that may be exercised by, or conferred upon, municipal and quasi-municipal bodies may not be inappropriate. The Federal Constitution contains provisions prohibiting the. States from passing ex post facto laws, or laws impairing the obligation of contracts; and prohibiting any State from depriving any person of life, liberty, or property without due process of law, or denying to any person within its jurisdiction the equal protection of the laws; and provisions of similar import are contained in State Constitutions. In the Constitutions of some of the States are found inhibitions against, or limitations upon, the power of the legislature to enact special laws or laws authorizing public corporate bodies to become stockholders in, or to raise money for, or loan their credit to, or in aid of, any corporation or association. Other provisions equally important, affecting the power of the lawmaking bodies, might be mentioned, but the foregoing will be sufficient to serve as illustrations. To the extent that any statute violates any such constitutional provision it is of course a nullity, but it does not necessarily follow in case of such violation that the entire act is void. In some such cases the entire act will be held to be void, and in others only the particular obnoxious provisions may be so treated, and the balance of the act sustained, but upon this particular point it will be profitable to consult the decisions of the State courts. There are some constitutional provisions which reach beyond the legislature of the State, and are directed to State or municipal officers, and are intended to control them in the exercise of their official powers and duties. A few instances will suffice as illustrations of this class. In a number of the State Constitutions there are provisions limiting the amount of indebtedness that may be incurred, or taxes levied by municipalities. In some there are provisions to the effect substantially that no debt shall be created by a municipality, unless at the same time provision. is made to assess and collect an annual tax for the payment of the interest as it accrues, and to provide for the ultimate payment of the principal sum Other provisions require that before indebtedness may be incurred, or taxes levied, by public bodies, the same shall be approved by the voters of the body. Such provisions are generally treated as jurisdictional, going to the power of the municipality to act, but the Federal cases present some exceptions. Such provisions are matters of law, of which all must take notice, but whether such requirements, intended to be conditions precedent, have been complied with in a given case, is a question of fact, the determination of which is generally referred by law to some officer or board or tribunal of the municipality; and the decision by such agency that they have been complied with, and representations that they have been so complied with, made by officials expressly or impliedly authorized to make them on behalf of the body which they represent, by recitals in the bonds, or by ordinances, resolutions, etc., or in some other approved form, have been held in some cases to be binding upon the municipality, and to estop it from showing noncompliance. The cases in which the rule of estoppel has been so applied, as well as those in which it has not, will be found cited in chapter VII, and in chapter IV, part C. The new Constitution of Indiana, which took effect November 1, 1851, contained the following provision: A. Principles of Constitutional Law; Partial Invalidity of Statute. No contract is created merely by September 10, 1852, the board of favorable vote for subscription. county commissioners subscribed for 651. (Ind. 1848.) The charter of the stock, and issued therefor the the Ohio & Mississippi Railroad Com- bonds of the county involved in this pany, passed February 14, 1848, au- suit. thorized the county commissioners of counties through which the railroad passed to subscribe for stock of the company on behalf of the county at any time within five years after opening the books of subscription, if a majority of the qualified voters of the County, at an annual election, should vote for the same. January 15, 1849, the charter was so amended as to require such election to be held on the first Monday of March, 1849. The election in Daviess county, so held, resulted in favor of such subscription. "No county shall subscribe for stock in any incorporated company, unless the same be paid for at the time of such subscription; nor shall any county loan its credit to any incorporated company, nor borrow money for the purpose of taking stock in any company." The first question presented was: "Whether, by the said act of incorporation of said railroad company, mandatory statutes; of enabling statutes. and the amendment thereto of Janu- Railroad aid; constitutionality of ary 15, 1849, any such right to county subscriptions vested in said company as would exclude the operation of the new Constitution of Indiana, which took effect on the 1st November, 1851." The second question presented was: "Whether, by virtue of said acts, and of the said election in the declaration set forth, the Ohio and Mississippi Railroad Company acquired any such right to the subscription of the defendants as would be protected by the Constitution of the United States against the new Constitution of Indiana, which took effect the 1st November, 1851." "It is insisted that the contract 653. (N. Y. 1873.) Though a mandatory statute requiring a municipal corporation to subscribe for stock in a railroad company, or to contribute to the construction of a railroad, may not be a legitimate exercise of legislative power, a mere grant of power to a municipality, upon conditions, coupled with a prescription of the mode in which the power might be exercised, is a constitutional exertion of legislative power. Town of Queensbury v. Culver, 19 Wall. 83, 22 L. Ed. 100. be clear. a of subscription became complete when, Unconstitutionality of statute must at the election, a majority of the votes was cast in its favor, and did not require the form of a subscription on the books for the stock of the railroad company to make it obligatory upon the parties; and which, if true, it is agreed the contract would be protected within the Constitution of the United States, as it would then have been complete before the constitutional prohibition of Indiana. But the court is unable to concur in this view. "It holds, that a subscription was necessary to create a contract binding upon the county, on one side, to take the stock and pay in the bonds; and, upon the other, to transfer the stock, and receive the bonds for the same. Until the subscription is made, the contract is unexecuted, and obligatory upon neither party." Aspinwall v. Daviess County Comrs., 22 How. 364, 16 L. Ed. 296. Rules of construction of federal and state constitutions. 652. (Nebr. 1872.) "It is true that, in construing the Federal Constitution, Congress must be held to have only those powers which are granted expressly or by necessary implication, but the opposite rule is the one to be applied to the construction of a State Constitution. The legislature of a State may exercise all powers which are properly legislative, unless they are forbidden by the State or National Constitution. This is a principle that has never been called in question." Railroad Co. v. County of Otoe, 16 Wall. 667, 21 L. Ed. 375. in American jurisprudence that admit of no reasonable construction Pine territorial It 655. (Dak. Ter. 1879.) "In the organic act of Dakota there was not an express reservation of power in Congress to amend the acts of the territorial legislature, nor was it necessary. Such a power is an incident of sovereignty, and continues until granted away. Congress may not only abrogate laws of the territorial legislatures, but it may itself legislate directly for the local government. may make a void act of the territorial legislature valid, and a valid act void. In other words, it has full and complete legislative authority over the people of the territories and all the departments of the territorial governments. It may do for the territories what the people, under the Constitution of the United States, may do for the States." National Bank v. County of Yankton, 101 U. S. 129, 25 L. Ed. bonds purporting to be issued under 1046. Partial invalidity of statute; when balance will stand; intent of legislature; rule stated. 66 6 656. (Mo. 1880.) "It is an elementary principle that the same statute may be in part constitutional and in part unconstitutional, and that if the parts are wholly independent of each other, that which is constitutional may stand while that which is unconstitutional will be rejected." 'But, if they are so mutually connected with and dependent on each other, as conditions, considerations, or compensations for each other as to warrant a belief that the legislature intended them as a whole, and 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.' The point to be determined in all such cases is whether the unconstitutional provisions are so connected with the general scope of the law as to make it impossible, if they are stricken out, to give effect to what appears to have been the intent of the legislature." Provision prohibiting legislative authorization of municipal aid except upon two-thirds vote; not self-executing; legislation neces sary. The Constitution of Missouri contained the following provision: "The general assembly shall not authorize any county, city, or town to become a stockholder in, or to loan its credit to, any company, association, or corporation, unless two-thirds of the qualified voters of such county, city, or town, at a regular or special election to be held therein, shall assent thereto." Held, that this provision was not self-executing; that it did not authorize a city to extend aid to a railroad company, even though at an election more than two-thirds of the voters gave their assent. Legislative authority was necessary. Allen v. Louisiana, 103 U. S. 80, 26 L. Ed. it, even in the hands of those who take them for value and in the belief that they have been lawfully issued." Post v. Supervisors; Amoskeag Bank v. Ottawa, 105 U. S. 667, 26 L. Ed. 1204. Construction of statute should be in And such is harmony with constitution, if fair meaning of words will permit. 658. (Miss. 1884.) "But if there were room for two constructions, both equally obvious and reasonable, the court must, in deference to the legis lature of the State, assume that it did not overlook the provisions of the Constitution, and designed the act of Our duty, there1871 to take effect. fore, is to adopt that construction which, without doing violence to the fair meaning of the words used, brings the statute into harmony with the provisions of the Constitution. Cooley Constitutional Law, 184-5; Newland V. Marsh, 19 Ill. 376, 384; People v. Supervisors, etc., 17 N. Y. 235, 241; Colwel v. May, 4 C. E. Green (19 N. J. Eq.), 245, 249. the rule recognized by the Supreme Court of Mississippi in Marshall v. Grimes, 41 Miss. 27, 31, in which it 'General words in the act was said: should not be so construed as to give an effect to it beyond the legislative power, and thereby render the act unconstitutional. But, if possible, a construction should be given to it that will render it free from constitutional objection, and the presumption must be that the legislature intended to grant such rights as were legitimately within its power.' Again, in Sykes v. Mayor, etc., 55 Miss. 115, 143: ought never to be assumed that the law-making department of the government intended to usurp or assume power prohibited to it.' And such construction (if the words will admit of it) ought to be put on its legislation as will make it consistent with the supreme law." Grenada County Supervisors v. Brodgen, 112 U. S. 261, 5 Sup. Ct. Rep. 125, 28 L. Ed. 704. 'It 659. (Tenn. 1886.) "An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed." Norton v. Shelby County, 118 U. S. 425, 6 Sup. Ct. 1121, 30 L. Ed. 178. |