as far as it can, and it will not be held invalid on the objection of a party whose interests are not affected by it in a manner which the constitution forbids. If there are any exceptions to this rule, they must be of cases only where it is evident, from a contemplation of the statute and of the purpose to be accomplished by it, that it would not have been passed at all, except as an entirety, and that the general purpose of the legislature will be defeated if it shall be held valid as to some cases and void as to others. Waiving a Constitutional Objection. There are cases where a law in its application to a particular case must be sustained, because the party who makes objection has, by prior action, precluded himself from being heard against it. Where a constitutional provision is designed for the protection solely of the property rights of the citizen, it is competent for him to waive the protection, and to consent to such action as would be invalid if taken against his will. On this ground it has been held that an act appropriating the private property of one person for the private purposes of another, on compensation made, was valid if he whose property was taken assented thereto; and that he did assent and waive the constitutional privilege, if he received the compensation awarded, or brought an action to recover it.3 So if an act providing for the appropriation of property for a public use shall authorize more to be taken than the use requires, although such act would be void without the owner's assent, yet with it all objection on the ground of unconstitutionality is removed. And where parties were authorized by statute to erect a dam across a river, provided they should first execute sioners were appointed to take for a city hall either lands belonging to the city or lands of individuals. The act made no provision for compensation. The commissioners elected to take lands belonging to the city. Held, that the act was not wholly void for the omission to provide compensation in case the lands of individuals had been selected. 1 Baker v. Braman, 6 Hill, 47; Regents of University v. Williams, 9 Gill & J. 365, s. c. 31 Am. Dec. 72; Re Middletown, 82 N. Y. 196. The case of Sadler v. Langham, 34 Ala. 311, appears to be opposed to this principle, but it also appears to us to be based upon cases which are not applicable under which a grand jury is made up, by pleading in bar to the indictment. United States v. Gale, 109 U. S. 65. An officer who has acted and received money under an act cannot contest its constitutionality. People v. Bunker, 70 Cal. 212. 3 Baker v. Braman, 6 Hill, 47. So, if one has started the machinery to set going a local improvement act. Dewhurst v. Allegheny, 95 Pa. St. 437. Embury v. Conner, 3 N. Y. 511. And see Heyward v. Mayor, &c. of New York, 8 Barb. 486; Mobile & Ohio Railroad Co. v. State, 29 Ala. 573; Detmold v. Drake, 46 N. Y. 318. For a waiver in tax cases resting on a similar principle, see Motz v. Detroit, 18 Mich. 495; Rick 2 One waives right to object to law etts v. Spraker, 77 Ind. 371. a bond to the people conditioned to pay such damages as each and every person might sustain in consequence of the erection of the dam, the damages to be assessed by a justice of the peace, and the dam was erected and damages assessed as provided by the statute, it was held, in an action on the bond to recover those damages, that the party erecting the dam and who had received the benefit of the statute, was precluded by his action from contesting its validity, and could not insist upon his right to a common-law trial by jury. In these and the like cases the statute must be read with an implied proviso that the party to be affected shall assent thereto; and such consent removes all obstacle, and lets the statute in to operate the same as if it had in terms contained the condition.2 Under the terms of the statutes which exempt property from forced sale on execution, to a specified amount or value, it is sometimes necessary that the debtor, or some one in his behalf, shall appear and make selection. or otherwise participate in the setting off of that to which he is entitled; and where this is the case, the exemption cannot be forced upon him if he declines or neglects to claim it.3 In Pennsylvania and Alabama it has been decided that a party may, by executory agreement entered into at the time of contracting a debt, and as a part of the contract, waive his rights under the exemption laws and preclude himself from claiming them as against judgments obtained for such debt; but in other States it is held, on what seems to be the better reason, that, as the exemption is granted on grounds of general policy, an executory agreement to waive it must be deemed contrary to the policy of the law, and for that reason void.5 In criminal cases the doctrine 1 People v. Murray, 5 Hill, 468. See 31 Am. Rep. 328; Gilman v. Williams, 7 Lee v. Tillotson, 24 Wend. 337. Wis. 329. She need not assent as to exemption of stock in trade. Charpentier v. Bresnahan, 62 Mich. 360. 2 Embury v. Conner, 3 N. Y. 511. And see Matter of Albany St., 11 Wend. 149; Chamberlain v. Lyell, 3 Mich. 448; Beecher v. Baldy, 7 Mich. 488; Mobile & Ohio Railroad Co. v. State, 29 Ala. 573; Det mold v. Drake, 46 N. Y. 318; Haskell v. New Bedford, 108 Mass. 208; Wanser v. Atkinson, 43 N. J. 571. 8 See Barton v. Brown, 68 Cal. 11; Butler v. Shiver, 79 Ga. 172. In some States the officer must make the selection when the debtor fails to do so, and in some the debtor, if a married man, is precluded from waiving the privilege except with the consent of his wife, given in writing. See Denny v. White, 2 Cold. 283; Ross v. Lister, 14 Tex. 469; Vanderhurst v. Bacon, 38 Mich. 669; s. c. 4 Case v. Dunmore, 23 Pa. St. 93; Bowman v. Smiley, 31 Pa. St. 225; Shelly's Appeal, 36 Pa. St. 373; O'Nail v. Craig, 56 Pa. St. 161; Thomas's Appeal, 69 Pa. St. 120; Bibb v. Janney, 45 Ala. 329; Brown v. Leitch, 60 Ala. 313; s. c. 31 Am. Rep. 42; Neely v. Henry, 63 Ala. 261. And see Hoisington v. Huff, 24 Kan. 379. 5 Maxwell v. Reed, 7 Wis. 582; Kneetle. Newcomb, 22 N. Y. 249; Recht v. Kelly, 82 Ill. 147; s. c. 25 Am Rep. 301; Moxley v. Ragan, 10 Bush, 156; s. c. 19 Am. Rep. 61; Denny v. White, 2 Cold. 283; Branch v. Tomlinson, 77 N. C. 388; Carter's Admr. v. Carter, 20 Fla. 558; that a constitutional privilege may be waived must be true to a very limited extent only. A party may consent to waive rights of property, but the trial and punishment for public offences are not within the province of individual consent or agreement.1 Judicial Doubts on Constitutional Questions. It has been said by an eminent jurist, that when courts are called upon to pronounce the invalidity of an act of legislation, passed with all the forms and ceremonies requisite to give it the force of law, they 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 upon the subject, and never declare a statute void, unless the nullity and invalidity of the act are placed, in their judgment, beyond reasonable doubt.2 A reasonable doubt must be solved in favor of the legislative action, and the act be sustained.3 "The question whether a law be void for its repugnancy to the constitution is at all times a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubtful case. The court, when impelled by duty to render such a judgment, would be unworthy of its station could it be unmindful Cleghorn v. Greeson, 77 Ga. 343. A 1 See post, 390. And as to the waiver of the right to jury trial in civil cases, post, pp. 505, 506. 2 Wellington, Petitioner, 16 Pick. 87, per Shaw, Ch. J. Alexander v. People, 7 Col. 155; Crowley v. State, 11 Oreg. 512. A law will be upheld unless its unconstitutionality is so clear "as to leave no doubt on the subject." Kelly v. Meeks, 87 Mo. 396; Robinson v. Schenck, 102 Ind. 307. If an act may be valid or not according to the circumstances, a court would be bound to presume that such circumstances existed as would render it valid. Talbot v. Hudson, 16 Gray, 417. 3 Cooper v. Telfair, 4 Dall. 14; Dow v. Norris, 4 N. H. 16; Flint River Steamboat Co. v. Foster, 5 Ga. 194; Carey v. Giles, 9 Ga. 253; Macon & Western Railroad Co. v. Davis, 13 Ga. 68; Franklin Bridge Co. v. Wood, 14 Ga. 80; Kendall v. Kingston, 5 Mass. 524; Foster v. Essex Bank, 16 Mass. 245; Norwich v. County Commissioners of Hampshire, 13 Pick. 60; Hartford Bridge Co. v. Union Ferry Co., 29 Conn. 210; Rich v. Flanders, 39 N. H. 304; Eason v. State, 11 Ark. 481; Hedley v. Commissioners of Franklin Co., 4 Blackf. 116; Stocking v. State, 7 Ind. 326; La Fayette v. Jenners, 10 Ind. 74; Ex parte McCollum, 1 Cow. 550; Coutant v. People, 11 Wend. 511; Clark v. People, 26 Wend. 559; Morris v. People, 3 Denio, 376; N. Y., &c. R. R. Co. v. Van Horn, 57 N. Y. 473; Baltimore v. State, 15 Md. 376; Cotton v. Commissioners of Leon Co., 6 Fla. 610; Cheney v. Jones, 14 Fla. 587; Lane v. Dorman, 4 Ill. 238; s. c. 36 Am. Dec. 543; Newland v. Marsh, 19 Ill. 376; Farmers' and Mechanics' Bank v. Smith, 3 S. & R. 63; Weister v. Hade, 52 Pa. St. 474; Sears v. Cottrell, 5 Mich. 251; Tyler v. People, 8 Mich. 320; Allen County Commissioners v. Silvers, 22 Ind. 491; State v. Robinson, 1 Kan. 17; Eyre v. Jacob, 14 Gratt. 422; Gormley v. Taylor, 44 Ga. 76; State v. Cape Girardeau, &c. R. R. Co., 48 Mo. 468; Oleson v. Railroad Co., 36 Wis. 383; Newsom v. Cocke, 44 Miss. 352; Slack v. Jacob, 8 W. Va. 612; Commonwealth v. Moore, 25 Gratt. 951. of the solemn obligation which that station imposes; but it is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other." 1 Mr. Justice Washington gives a reason for this rule, which has been repeatedly recognized in other cases which we have cited. After expressing the opinion that the particular question there presented, and which regarded the constitutionality of a State law, was involved in difficulty and doubt, he says: "But if I could rest my opinion in favor of the constitutionality of the law on which the question arises, on no other ground than this doubt so felt and acknowledged, that alone would, in my estimation, be a satisfactory vindication of it. It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body by which any law is passed, to presume in favor of its validity, until its violation of the constitution is proved beyond all reasonable doubt." 2 The constitutionality of a law, then, is to be presumed, because the legislature, which was first required to pass upon the question, acting, as they must be deemed to have acted, with integrity, and with a just desire to keep within the restrictions laid by the constitution upon their action, have adjudged that it is so. They are a co-ordinate department of the government with the judiciary, invested with very high and responsible duties, as to some of which their acts are not subject to judicial scrutiny, and they legislate under the solemnity of an official oath, which it is not to be supposed they will disregard. It must, therefore, be supposed that their own doubts of the constitutionality of their action have been deliberately solved in its favor, so that the courts may with some confidence repose upon their conclusion, as one based upon their best judgment. For although it is plain, upon the authorities, that the courts should sustain legislative action when not clearly satisfied of its invalidity, it is equally plain in reason that the legislature should abstain from adopting such action if not fully assured of their authority to do so. Respect for the instrument under which they exercise their power should impel the legislature in every case to solve their doubts in its favor, and it is only because we are to presume thev do so, that courts are 1 Fletcher v. Peck, 6 Cranch, 87, 128, 7 Am. Dec. 216; Kellogg v. State Treasper Marshall, Ch. J. urer, 44 Vt. 356, 359; Slack v. Jacob, 8 W. Va. 612. 2 Ogden v. Saunders, 12 Wheat. 213. See Adams v. Howe, 14 Mass. 340; s. c. warranted in giving weight in any case to their decision. If it were understood that legislators refrained from exercising their judgment, or that, in cases of doubt, they allowed themselves to lean in favor of the action they desired to accomplish, the foundation for the cases we have cited would be altogether taken away.1 As to what the doubt shall be upon which the court is to act, we conceive that it can make no difference whether it springs from an endeavor to arrive at the true interpretation of the constitution, or from a consideration of the law after the meaning of the constitution has been judicially determined. It has sometimes been supposed that it was the duty of the court, first, to interpret the constitution, placing upon it a construction that must remain. unvarying, and then test the law in question by it; and that any other rule would lead to differing judicial decisions, if the legislature should put one interpretation upon the constitution at one time and a different one at another. But the decided cases do not sanction this rule,2 and the difficulty suggested is rather imaginary than real, since it is but reasonable to expect that, where a construction has once been placed upon a constitutional provision, it will be followed afterwards, even though its original adoption may have sprung from deference to legislative action rather than from settled convictions in the judicial mind.3 The duty of the court to uphold a statute when the conflict between it and the constitution is not clear, and the implication which must always exist that no violation has been intended by the legislature, may require it in some cases, where the meaning of the constitution is not in doubt, to lean in favor of such a construction of the statute as might not at first view seem most obvious and natural. For as a conflict between the statute and the constitution is not to be implied, it would seem to follow, where the meaning of the constitution is clear, that the court, if possible, must give the statute such a construction as will enable it to have effect. This is only saying, in another form of words, that the court must construe the statute in accordance with the legislative intent; since it is always to be presumed the legislature designed the statute to take effect, and not to be a nullity. The rule upon this subject is thus stated by the Supreme Court of Illinois : "Whenever an act of the legislature can be so construed and applied as to avoid conflict with the constitution and 1 See upon this subject what is said in Osburn . Staley, 5 W. Va. 85; Tate v. Bell, 4 Yerg. 202; s. c. 26 Am. Dec. 221. 2 Sun Mutual Insurance Co. v. New York, 5 Sandf 10; Clark v. People, 26 Wend. 599; Baltimore v. State, 15 Md. 376. People v. Blodgett, 13 Mich. 127. |