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the incongruous matter is generally severable from the other matter, within the principle already explained.1

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§ 626. Distinctions Depending upon the Use of the Words "Subject" and "Object.”—Most of the constitutional provisions under consideration declare that an act of the legislature shall contain but one "subject" and that that shall be expressed in its title; but some of them use the word "object." A distinction has turned on the substitution of the word "subject' instead of "object." In a case in the Supreme Court of New York it is said: "It must not be overlooked that the constitution demands that the title shall express the subject, not the object, of the act. It is the matter to which the statute relates and with which it deals, and not what it proposes to do, which is to be found in the title. It is no constitutional objection to a statute, that its title is vague or unmeaning as to its purpose, if it be sufficiently distinct as to the matter to which it refers.' In Texas, under a constitutional provision using the word object," it was said: "It could not have meant that the word 'object' should be understood in the sense of provision;' for that would render the title of the act as long as the act itself. Various and numerous provisions may be necessary to accomplish the one general object which an act of the legislature proposes. Nor could it have been intended that no act of legislation should be constitutional which had reference to the accomplishment of more than one ultimate end. For an act having one main or principal object in view, may incidentally affect or be promotive of others; and it would be impossible so to legislate as to prevent this consequence. The intention doubtless was, to prevent embracing in an act, having one ostensible object, provisions having no relevancy to that object, but really designed to effectuate other and wholly different objects, and thus to conceal and disguise the real object proposed by the provisions of an act, under a false or deceptive title." It may be doubted, however, whether any sound distinction can be

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341.

1 Mississippi &c. Boom Co. v. in Stone v. Brown, 54 Tex. 330, Prince, 34 Minn. 79; Dewhurst v. Allegheny City, 95 Pa. St. 437.

2 People v. Lawrence, 36 Barb. (N. Y.) 189, 192. Quoted with approval

3 Tadlock v. Eccles, 20 Tex. 782, 792; s. c. 73 Am. Dec. 213, opinion by Wheeler, J.

drawn upon the use of either of these words instead of the other; for it is perceived that those courts, in whose constitutions the word "subject" is used, take the same view of the meaning of the provision as that above stated by the Texas court.

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§ 627. Long Practical Construction. The maxim communis error facit jus, has been, in substance, applied in the solution of this question, and it has been held that a long practical construction of an important statute, in which it has been acquiesced in as valid, will bar any mere technical objection to its constitutionality, based on a want of precision in setting forth its purpose in its title. In so holding it was said by Graves, J.: "It is now more than ten years since the act was passed and dovetailed into our system of important statutes. The people and the government have acquiesced in it, as a piece of legislation lawfully enacted, and interests of vast magnitude have meanwhile sprung forth and flourished under it. The whole country has acted on the faith that it originated legitimately and constituted a valid statute; and if we were satisfied that the legislature stumbled and overlooked something which a nice regard for the clause referred to would have prompted, we should deem it our duty to yield to the long practical construction and acquiescence, and decline to set up a view which would reach back and overturn the statute, and uproot and destroy an array of interests it would be difficult to either measure or number."

ARTICLE IV. RESTRAINTS AS TO THE MODE OF PASSING LAWS.

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636. Whether parol evidence admissi-
ble on the question.
637. Signed by the governor or no law.
638. Constitutional provisions requir

ing amendments of charters to
be submitted to a vote of the
people.

639. That no law shall create, renew or extend the charter of more than one corporation.

application of the maxim, communis error facit jus, see Cole v. Skrainka, 37 Mo. App. 427, dissenting opinion.

§ 632. Constitutional Provision Requiring Assent of Two Thirds of each House. —A constitutional provision that "the legislature shall pass no act of incorporation, unless with the assent of at least two-thirds of each house," was held by Mr. Justice McLean at circuit not to restrict the legislature from creating more than one corporation in the same act; but in his view the legislature might establish an indefinite number of corporations in the same act, as well as a limited number. This view was denied by the Supreme Court of Michigan, and, it being a question of the interpretation of the constitution of that State, the view of the State court prevailed. Such a provision existed in the constitution of New York. It was at first held that it did not apply to public corporations, but that it applied only to private corporations, such as banking institutions, etc. But this doctrine was denied and overruled in subsequent cases. In another case two members of the Court of Errors of New York advanced the opinion that this constitutional provision

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1 Falconer v. Campbell, 2 McLean (U. S.), 195.

2 The Michigan Banking Law of 1837 was held to be unconstitutional after many banks had been organized under it and after many rights had thereby become vested, on the ground that it had been enacted in violation of a constitutional provision of that State that "the legislature shall pass no act of incorporation unless with the assent of at least twothirds of each house." Green v. Graves, 1 Dougl. (Mich.) 351; Farmers & Mechanics Bank v. Troy City Bank, Id. 457. Mr. Justice McLean at circuit twice held the same statute to be valid, once in his very elaborate judgment in Falconer v. Campbell, 2 McLean (U. S.), 195, and again in White v. How, 3 McLean (U. S.), 111. But the Supreme Court of Michigan finally declared it unconstitutional and, the Federal court being bound by the State decision in respect of the interpretation of its own constitution, Mr. Justice McLean subsequently in

Nessmith v. Sheldon,4 McLean (U. S.), 375, declared the act unconstitutional, and his decision was affirmed on error in 7 How. (U. S.) 812.

3 People v. Morris, 13 Wend. (N. Y.) 325.

• In People v. Purdy, 2 Hill (N. Y.), 31, 43, the act in question was one taking from the aldermen of the city of New York certain judicial powers exercised by them individually. Cowen, J., was of opinion that the act did not interfere with any corporate powers, and therefore did not require a twothirds vote for its passage; Nelson, C. J., adhered to his opinion in People v. Morris, supra, that the constitutional inhibition did not apply to municipal corporations; and Bronson, J., dissented. This case was reversed in the Court of Errors, sub nom. Purdy v. People, 4 Hill (N. Y.), 384, and the doctrine of People v. Morris was there finally overthrown. See also DeBow v. People, 1 Denio (N. Y.), 9, 12 (overruled in Gifford v. Livingston, 2 Denio (N. Y.), 381).

did not reach private corporations, such as banks, provided they were created under general laws which authorized everybody to form corporations. The struggle finally ended with a decision in the Court for the Correction of Errors, decided by a vote of fifteen members against seven, in which it was resolved, on the authority of the case of Warner v. Beers,2 that the statute was valid and constitutionally enacted, although it may not have received the assent of two-thirds of the members elected to each branch of the legislature, and that the decision in that case was conclusive.3

1 Warner v. Beers, 23 Wend. (N. Y.) 103. But this view was thought to be opposed to the subsequent decisions of the Court of Errors. Purdy v. People, supra. See the observations of Bronson, C. J., in DeBow v. People, 1 Denio (N. Y.), 9.

2 23 Wend. (N. Y.) 103.

3 Gifford v. Livingstone, 2 Denio (N. Y.), 380, 402. See also Thomas v. Dakin, 22 Wend. (N. Y.) 9; Hunt v. Van Alstyne, 25 Id. 605; Bank of Watertown v. Watertown, Id. 686; Curtis v. Leavitt, 17 Barb. (N. Y.) 309; Palmer v. Lawrence, 1 Seld. (N. Y.) 389. Decisions under obsolete constitutions, special statutes, etc.: Many decisions in the earlier courts, or in the less authoritative courts, or in cases under obsolete constitutional provisions, or under special and peculiar statutes, have been collected by the writer; but the limits of space allowed to him will not permit a statement of them in detail; nor is it thought that it would be useful to make such a statement. They will be referred to with the greatest brevity, -indexed, so to speak. A statute was held not unconstitutional as being a private bill granting to a corporation the right to lay down tracks, — the right already existing, - -nor as being an "exclusive privilege," in People v. Long Island R. Co., 60 How. Pr. (N. Y.) 395. The charter of the State Bank

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of Alabama was not unconstitutional, by reason of the fact that the remedy for and against the bank was not reciprocal; that all debtors must be sued in the county in which the bank was, and that the president was authorized by the charter to create a certificate to be used as evidence in its favor: Lyon v. State Bank, 1 Stew. (Ala.) 442, 467. The original charter granted to the Bank of Illinois in 1816 was constitutional, the court proceeding upon the view that the power of legislation is inherent in a State legislature, and is plenary, except in so far as the constitution is restrictive upon it: People v. Marshall, 6 Ill. 672. The Illinois act of 1835, extending the charter of the same bank, was also constitutional: Ibid.; Wilmans v. Bank of Illinois, 6 Ill. 667. The proviso to the third section of the Illinois act of 1857, amending the general banking law, was constitutional, although not submitted to a vote of the people: Smith v. Bryan, 34 Ill. 364. The proviso was "that in presenting notes or bills for payment under this section, the party presenting shall not be required to present or receive payment for each bill separately, but the whole amount presented shall be treated as though it were a single obligation of that amount." This proviso was regarded as merely declaratory of the common law: Reapers' Bank v. Wil

§ 633. Whether Provisions as to Mode of Passing Bills Directory or Mandatory.—In one or two States constitutional provisions as to the mode of passing acts of incorporation are held to be directory. Thus, the provision of a State constitution, that, when a bill is presented for an act of incorporation, it shall be continued until another election of members of the assembly shall have taken place, and public notice of the pendency thereof is given, is directory to the assembly, and, in the absence of any clause forbidding the enactment without observing the directions, does not affect the corporators, unless the State itself intervenes. But this is contrary to the general American doctrine. As already seen, constitutional provisions restraining the passage of private special or local laws creating corporations, amending corporate charters, or granting or extending corporate powers and privileges, are almost universally held to be mandatory. We have seen that the same rule prevails, except in two or three States, in respect to constitutional provisions that an act shall embrace but one subject which shall be expressed in its title. The same rule prevails generally in respect of other constitutional directions and requirements concerning the passage of laws.

§ 634. Whether Courts will go Behind the Enrollment. In considering this question the courts have had to determine, first, whether they would go behind the fact of the enrollment of the bill in the office of the Secretary of State. Some of them, proceeding with a just delicacy in regard to the faith and credit which is to be given to the acts of a co-ordinate branch of the government, have held that they would not look beyond the fact of the signing and enrollment of the bill. The meaning of this is that the presumption which springs from the fact of the

lard, 24 Ill. 433; s. c. 76 Am. Dec. 755. Compare Bank of Republic v. Hamilton, 21 Ill. 53. An act creating a private banking corporation, was not a "bill of a general character," which, under art. 2, § 21, of the former constitution, of Tennessee required the calling of the ayes and noes on its final passage: Ferguson v. Miners &c. Bank, 3 Sneed (Tenn.), 609.

1 Compare ante, § 608.

2 McClinch v. Sturgis, 72 Me. 288. 3 Ante, § 573. See a learned note on this question by W. W. Thornton, Esq., in 26 Am. L., Reg. (N. S.,) 304, n; also learned note in 85 Am. Dec. 356, discussing the subject at length, with an exhaustive list of authorities.

Ante, § 608.

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