bills of exchange; though it is obvious that it would have been easy to frame a title to the act which would have embraced them all, and which would have been unobjectionable. It has also been held that an act for the preservation of the Muskegon River Improvement could not lawfully provide for the levy and collection of tolls for the payment of the expense of constructing the improvement, as the operation of the act was carefully limited by its title to the future.2 So also it has been held that "an act to limit the numbers of grand jurors, and to point out the mode of their selection, defining their jurisdiction, and repealing all laws inconsistent therewith," could not constitutionally contain provisions which should authorize a defendant in a criminal case, on a trial for any offence, to be found guilty of any lesser offence necessarily included therein. These cases must suffice upon this point; though the cases before referred to will furnish many similar illustrations.

In all we have said upon this subject we have assumed the constitutional provision to be mandatory. Such has been the view of the courts almost without exception. In California, however, a different view has been taken, the court saying: "We regard this section of the constitution as merely directory; and, if we were inclined to a different opinion, would be careful how we lent ourselves to a construction which must in effect obliterate almost every law from the statute-book, unhinge the business and destroy the labor of the last three years. The first legislature that met under the constitution seems to have considered this section as directory; and almost every act of that and the subsequent sessions would be obnoxious to this objection. The contempo

1 Mewherter v. Price, 11 Ind. 199. See also State v. Young, 47 Ind. 150; Jones v. Thompson, 12 Bush, 394; Rushing v. Sebree, 12 Bush, 198; State v. Kinsella, 14 Minn. 524; Grover v. Trustees Ocean Grove, 45 N. J. L. 399.

2 Ryerson v. Utley, 16 Mich. 269. See further Weaver v. Lapsley, 43 Ala. 224; Tuscaloosa Bridge Co. v. Olmstead, 41 Ala. 9; Stuart v. Kinsella, 14 Minn. 524; Rogers v. Manuf. Imp. Co., 109 Pa. St. 109. In Cutlip v. Sheriff, 3 W. Va. 588, it was held that if an act embraces two objects, only one of which is specified in the title, the whole is void; but this is opposed to the authorities generally.

8 Foley v. State, 9 Ind. 363; Gillespie v. State, 9 Ind. 380. See also Indiana Cent. Railroad Co. v. Potts, 7 Ind. 681; State v. Squires, 26 Iowa, 340; State v.

Lafayette Co. Court, 41 Mo. 39; People v. Denahy, 20 Mich. 349.

Prohibitory enactments are not covered by a title to "regulate" liquor selling. Miller v. Jones, 80 Ala. 89; People v. Gadway, 61 Mich. 285; People v. Hauck, 38 N. W. Rep. 269 (Mich.); Cantril v. Sainer, 59 Iowa. 26, See State v. Circuit Court, 15 Atl. Rep. 273 (N. J.).

For further illustration of provisions held bad because not within the title, see Ragio v. State, 86 Tenn. 272; In re Paul, 94 N Y. 497; Anderson v. Hill, 54 Mich. 477; Northwestern Mfg. Co. v. Wayne Circ. Judge, 58 Mich. 381; Sewickley v. Sholes, 118 Pa. St. 165; Jersey City v. Elmendorf, 47 N. J. L. 283; Savannah, F. & W. Ry. Co. v. Geiger, 22 Fla. 669.

raneous exposition of the first legislature, adopted or acquiesced in by every subsequent legislature, and tacitly assented to by the courts, taken in connection with the fact that rights have grown up under it, so that it has become a rule of property, must govern our decision."1 Similar views have also been expressed in the State of Ohio.2 These cases, and especially what is said by the California court, bring forcibly before our minds a fact, which cannot be kept out of view in considering this subject, and which has a very important bearing upon the precise point which these decisions cover. The fact is this: that whatever constitutional provision can be looked upon as directory merely is very likely to be treated by the legislature as if it was devoid even of moral obligation, and to be therefore habitually disregarded. To say that a provision is directory, seems, with many persons, to be equivalent to saying that it is not law at all. That this ought not to be so must be conceded; that it is so we have abundant reason and good authority for saying. If therefore, a constitutional provision is to be enforced at all, it must be treated as mandatory. And if the legislature habitually disregard it, it seems to us that there is all the more urgent necessity that the courts should enforce it. And it also seems to us that there are few evils which can be inflicted by a strict adherence to the law, so great as that which is done by the habitual disregard, by any department of the government, of a plain requirement of that instrument from which it derives its authority, and which ought, therefore, to be scrupulously observed and obeyed. Upon this subject we need only refer here to what we have said concerning it in another place.3

Amendatory Statutes.

It has also been deemed important, in some of the States, to provide by their constitutions, that "no act shall ever be revised or amended by mere reference to its title; but the act revised or section amended shall be set forth and published at full length." 4

1 Washington v. Page, 4 Cal. 388. See Pierpont v. Crouch, 10 Cal. 315; Matter of Boston Mining, &c. Co., 51 Cal. 624; Weill v. Kenfield, 54 Cal. 111.

2 Miller v. State, 3 Ohio St. 475; Pim v. Nicholson, 6 Ohio St. 177; State v. Covington, 29 Ohio St. 102.

New Jersey, Ohio, Michigan, Louisiana, Wisconsin, Missouri, and Maryland there are provisions of similar import. In Tennessee the provision is: "All acts which revive, repeal, or amend former laws, shall recite, in their caption or otherwise, the title or substance of the law repealed,

3 Ante, p. 84 et seq. See State v. Tufly, revived, or amended.” Art. 1, § 17. See 19 Nev. 391.

4 This is the provision as it is found in the Constitutions of Indiana, Nevada, Oregon, Texas, and Virginia. In Kansas,

State v. Gaines, 1 Lea, 734; McGhee v. State, 2 Lea, 622. The provision in Nebraska (Const. of 1875) is peculiar. "No law shall be amended unless the new

Upon this provision an important query arises. Does it mean that the act or section revised or amended shall be set forth and published at full length as it stood before, or does it mean only that it shall be set forth and published at full length as amended or revised? Upon this question perhaps a consideration of the purpose of the provision may throw some light. "The mischief designed to be remedied was the enactment of amendatory statutes in terms so blind that legislators themselves were sometimes deceived in regard to their effects, and the public, from the difficulty in making the necessary examination and comparison, failed to become apprised of the changes made in the laws. An amendatory act which purported only to insert certain words, or to substitute one phrase for another in an act or section which was only referred to, but not published, was well calculated to mislead the careless as to its effect, and was, perhaps, sometimes drawn in that form for the express purpose. Endless confusion was thus introduced into the law, and the constitution wisely prohibited such legislation." If this is a correct view of the purpose of the provision, it does not seem to be at all important to its accomplishment that the old law should be republished, if the law as amended is given in full, with such reference to the old law as will show for what the new law is substituted. Nevertheless, it has been decided in Louisiana that the constitution requires the old law to be set forth and published; 2 and the courts of

act contains the section or sections so amended, and the section or sections so amended shall be repealed." Art. 3, § 11. Under a like provision that any section amended is thereby repealed, it is held in Alabama that an amendment to an amended statute is valid. State v. Warford, 84 Ala. 15. So where the amendment impliedly repealed the original act, an amendment to the amended act was held valid, as the mistake in referring to a repealed statute should not defeat the intention of the legislature. Com. v. Kenneson, 143 Mass. 418. Under provisions forbidding enactments by reference a law complete in itself may provide for carrying out its purposes by reference to procedure established by other acts. Campbell v. Board, &c., 47 N. J. L. 347; De Camp v. Hibernia R R. Co., Id. 43. But the act must be complete in all essentials. Christie v. Bayonne, 48 N. J. L. 407; Donohugh v. Roberts, 15 Phila. 144.

legislature may repeal a definite portion of a section without the re-enactment of the section with such portion omitted. Chambers v. State, 25 Tex. 307. But quære of this. Any portion of a section amended which is not contained in the amendatory section as set forth and published is repealed. State v. Ingersoll, 17 Wis. 631. Further on this subject see Blakemore v. Dolan, 50 Ind. 194; People r. Wright, 70 Ill. 388; Jones v. Davis, 6 Neb. 33; Sovereign v. State, 7 Neb. 409; Gordon v. People, 44 Mich. 485; State v. Gerger, 65 Mo. 306; Van Riper v. Parsons, 40 N. J. 123; s. c. 29 Am. Rep. 210; Fleishner v. Chadwick, 5 Oreg. 152; State v. Cain, 8 W. Va. 720; State v. Henderson, 32 La. Ann. 779; Colwell v. Chamberlin, 43 N. J. 387.

1 People v. Mahaney, 13 Mich. 497. See Mok v. Detroit, &c. Association, 30 Mich. 511; Bush v. Indianapolis, 22 N. E. Rep. 422 (Ind.).

2 Walker v. Caldwell, 4 La. Ann. 297;

In Texas it appears to be held that the Heirs of Duverge v. Salter, 5 La. Ann.

Indiana, assuming the provision in their own constitution to be taken from that of Louisiana after the decisions referred to had been made, at one time adopted and followed them as precedents.1 It is believed, however, that the general understanding of the provision in question is different, and that it is fully complied with in letter and spirit, if the act or section revised or amended is set forth and published as revised or amended, and that anything more only tends to render the statute unnecessarily cumbrous.2 It should be observed that statutes which amend others by implication are not within this provision; and it is not essential that they even refer to the acts or sections which by implication they amend. But repeals by implication are not favored; and the repugnancy between two statutes should be very clear to warrant a court in holding that the later in time repeals the other, when it does not in terms purport to do so. This rule has peculiar

74.

1 Langdon v. Applegate, 5 Ind. 327; Rogers v. State, 6 Ind. 31. These cases were overruled in Greencastle, &c. Co. v. State, 28 Ind. 382.

2 See Tuscaloosa Bridge Co. v. Olmstead, 41 Ala. 9; People v. Pritchard, 21 Mich. 236; People v. McCallum, 1 Neb. 182; State v. Draper, 47 Mo. 29; Boonville v. Trigg, 46 Mo. 288; State v. Powder Mfg. Co., 50 N. J. L. 75. A whole act need be set out only when all its sections are amended. State v. Thruston, 92 Mo. 325. Under such a constitutional provision where a statute simply repeals others it is not necessary to set them out. Falconer v. Robinson, 46 Ala. 340. Compare Bird v. Wasco County, 3 Oreg. 282.

94. Contra, Shields v. Bennett, 8 W. Va. Gridley, 10 Ohio, 173; Hirn v. State, 1 Ohio St. 20; Saul v. Creditors, 5 Mart. N. s. 569; s. c. 16 Am. Dec. 212; New Orleans v. Southern Bank, 15 La. Ann. 89; Blain v. Bailey, 25 Ind. 165; Water Works Co. v. Burkhart, 41 Ind. 364; Swann v. Buck, 40 Miss. 268; Davis v. State, 7 Md. 151; State v. The Treasurer, 41 Mo. 16; Somerset & Stoystown Road, 74 Pa. St. 61; Kilgore v. Commonwealth, 94 Pa. St. 495; McCool v. Smith, 1 Black, 459; State v. Cain, 8 W. Va. 720; Fleischner v. Chadwick, 5 Oreg. 152; Covington v. East St. Louis, 78 Ill. 548; East St. Louis v. Maxwell, 99 Ill. 439; In re Ryan, 45 Mich. 173; Connors v. Carp River Iron Co., 54 Mich. 168; Parker v. Hubbard, 64 Ala. 203; Iverson v. State, 52 Ala. 170; Gohen v. Texas Pacific R. R. Co, 2 Woods, 346; State v. Commissioners, 37 N. J. 240; Attorney-General v. Railroad Companies, 35 Wis. 425; Rounds v. Waymart, 81 Pa. St. 395; Greeley v. Jacksonville, 17 Fla. 174; State v. Smith, 44 Tex. 443; Henderson's Tobacco, 11 Wall. 652; Cape Girardeau Co. Ct. v. Hill, 118 U. S. 68. If the two are repugnant in part, the earlier is pro tanto repealed. Hearn v. Brogan, 64 Miss. 334; Jeffersonville, &c. R. R. Co. v. Dunlap, 112 Ind. 93. A law which merely re-enacts a former one does not repeal an intermediate act qualifying such former act. The new is qualified like the old. Gaston v.. Merriam, 33 Minn. 271. It is a familiar rule, however, that when a new statute is evidently intended to cover the whole

Spencer v. State, 5 Ind. 41; Branham v. Lange, 16 Ind. 497; People v. Mahaney, 13 Mich. 481; Lehman v. McBride, 15 Ohio St. 573; Shields v. Bennett, 8 W. Va 74; Baum v. Raphael, 57 Cal. 361; Home Ins. Co. v. Taxing District, 4 Lea, 644; Swartwout v. Railroad Co., 24 Mich 389; Scales v. State, 47 Ark. 476; Denver Circle R. Co. v. Nestor, 10 Col. 403; State v. Cross, 38 Kan. 696; Evernham v. Hulit, 45 N. J. L. 53; Sheridan v. Salem, 14 Oreg. 328. Compare State v. Wright, id. 365.

4 See cases cited in last note; also Towler. Marrett, 3 Me. 22; s. c. 14 Am. Dec. 206; Naylor v. Field, 29 N. J. 287; State v. Berry, 12 Iowa, 58; AttorneyGeneral v. Brown, 1 Wis. 513; Dodge v.

force in the case of laws of special and local application, which are never to be deemed repealed by general legislation except upon the most unequivocal manifestation of intent to that effect.1

It was a parliamentary rule that a statute should not be repealed at the same session of its enactment, unless a clause permitting it was inserted in the statute itself; 2 but this rule did not apply to repeals by implication, and it is possibly not recognized in this country at all, except where it is incorporated in the State constitution,4

Signing of Bills.

When a bill has passed the two houses, it is engrossed for the signatures of the presiding officers. This is a constitutional requirement in most of the States, and therefore cannot be dispensed with; though, in the absence of any such requirement,

subject to which it relates, it will by implication repeal all prior statutes on that subject. See United States v. Barr, 4 Sawyer, 254; United States v. Claflin, 97 U. S. 546; Red Rock v. Henry, 106 U. S. 596; Dowdell v. State, 58 Ind. 333; State v. Rogers, 10 Nev. 319; Tafoya v. Garcia, 1 New Mex. 480; Campbell's Case, 1 Dak. 17; Andrews v. People, 75 Ill. 605; Clay Co. v. Chickasaw Co., 64 Miss. 534; Lyddy v. Long Island City, 104 N. Y. 218; Stingle v. Nevel, 9 Oreg. 62; State v. Studt, 31 Kan. 245. But a local option law merely suspends, does not repeal a former liquor law, and after its adoption offences against the latter while in force may be prosecuted. Winterton v. State, 65 Miss. 238. A statute cannot be repealed by non-user. Homer v. Com., 106 Pa. St. 221; Pearson v. Int. Distill. Co., 72 Iowa, 348.

1 Cass v. Dillon, 2 Ohio St. 607; Fosdick v. Perrysburg, 14 Ohio St. 472; People v. Quigg, 59 N. Y. 83; McKenna v. Edmundstone, 91 N. Y. 231; Clark v. Davenport, 14 Iowa, 494; Oleson v. Green Bay, &c. R. R. Co., 36 Wis. 383; Covington v. East St. Louis, 78 Ill. 548; Chesapeake, &c. Co. v. Hoard, 16 W. Va. 270; Rounds v. Waymart, 81 Pa. St. 395; Er parte Schmidt, 24 S. C. 363; New Brunswick v. Williamson, 44 N. J. L. 165; McGruder v. State, 10 S. E. Rep. 281 (Ga).

2 Dwarris on Statutes, Vol. I. p. 209; Sedgw. on Stat. and Const. Law, 122; Smith on Stat. and Const. Construction, 908.

Spencer v. State, 5 Ind. 41; Attorney-General v. Brown, 1 Wis. 513; Smith on Stat. and Const. Construction, 908; Mobile & Ohio Railroad Co. v. State, 29 Ala. 573; Strauss v. Heiss, 48 Md. 292. The later of two acts passed at the same session controls when they are inconsistent. Thomas v. Collins, 58 Mich. 64; Watson v. Kent, 78 Ala. 602. But the fact of later publication when action is taken at the same time will not work a repeal. In re Hall, 38 Kan. 670. Where acts passed on different days are approved on the same day, the presumption is that the one passed fast was signed last. State v. Davis, 16 Atl. Rep. 529 (Md.).

5 Moody v. State, 48 Ala. 115, s. c. 17 Am. Rep. 28; State v. Mead, 71 Mo. 266.

Burritt v. Com'rs, 120 Ill. 322; State v. Kiese wetter, 45 Ohio St. 254; Hunt v. State, 22 Tex. App. 396. Signature by presiding officers and assistant secretary is enough. State v. Glenn, 18 Nev. 34. But if the journal shows the passage of an act and the governor signs it, absence of signature of the president of the Senate will not invalidate it. Taylor v. Wilson, 17 Neb. 88. After an act has been passed over a veto, it need not be again certified. State v. Denny, 21 N. E. Rep. 274 (Ind.). The bill as signed must be the same as it passed the two houses. People v. Platt, 2 S. C. N. s. 150; Legg v. Annapolis, 42 Md. 203; Brady v. West, 50 Miss. 68. But a clerical error that would not mislead is to be overlooked.

3 Ibid. And see Spencer v. State, 5 People v. Supervisor of Onondaga, 16

Ind. 41.

Mich. 254. Compare Smith v. Hoyt, 14