criminal laws of this state." The body of the act did not purport to amend any particular part or section, but did in fact accomplish such amendment. The act was held void because it did not give either the title or substance of the law amended.23

§ 233. Amendment of repealed or void act or section.— There is a conflict of authority as to whether a section which has been repealed can be amended. The question usually arises where a section of an act is amended "to read as follows" and is then again amended in the same manner and by the same description, ignoring the first amendment. Most of the older and some of the more recent cases hold that such an amendatory act, or the amendment of a repealed section, is a nullity. A repeal by implication is said to stand upon the same footing in this respect as a direct or express repeal.25 "While there is some conflict of opinion.

24

20 S. W. 310; State v. Runnels, 92 Tenn. 320, 21 S. W. 665; State v. Brown, 103 Tenn. 449, 53 S. W. 727. 23 Shelton v. State, 96 Tenn. 520, 32 S. W. 967.

24 Draper v. Falley, 33 Ind. 465; Town of Martinsville v. Frieze, id. 507; Blakemore v. Dolan, 50 id. 194; Ford v. Booker, 53 id. 395; Cowley v. Rushville, 60 id. 327; Niblack v. Goodman, 67 id. 174; Clare v. State, 68 id. 17; Brocaw v. Board, etc., 73 id. 543; Lawson v. De Bolt, 78 id. 563; McIntyre v. Marine, 93 id. 193; Hall v. Craig, 125 Ind. 523, 25 N. E. 538; Eversole v. Chase, 127 Ind. 297, 26 N. E. 835; State v. Board of Com'rs, 140 Ind. 506, 40 N. E. 113; Boring v. State, 141 Ind. 640, 41 N. E. 270; Louisville & N. R. R. Co. v. East St. Louis, 134 Ill. 656, 25 N. E. 965; State v. Burton, 33 Neb. 823, 51 N. W. 140; Howlett v. Cheetham, 17 Wash. 626, 50 Pac. 522; Burnett v. Turner, 87 Tenn. 124, 10

S. W. 194; Robertson v. State, 12 Tex. App. 541. See Jones v. Commissioner, 21 Mich. 236; Pond v. Maddox, 38 Cal. 572; State v. Brewster, 39 Ohio St. 653; In re House Resolution, 12 Colo. 359, 21 Pac. 485; Lampkin v. Pike, 115 Ga. 827, 42 S. E. 213, 90 Am. St. Rep. 153. In Basnett v. Jacksonville, 19 Fla. 664, an act purported to amend a section which had been amended, and enacted that it should "read as follows; " held to operate to repeal all of the section amended which is not embraced in the amendment. A clerical mistake in the title of the amendatory act referring to the date when the amended act was approved will not vitiate the amendatory statute. Saunders v. Provisional Municipality, 24 Fla. 226. See Wall v. Garrison, 11 Colo. 515, 19 Pac. 469.

25 "A statute which is repealed by implication has no more existence

on the subject," says the United States court of appeals, "the decided weight of authority and the better opinion is that an amendatory statute is not invalid, though it purport to amend a statute which had previously been amended or for any reason been held invalid." 26 This view, we believe, is sustained by the decisions.27

A New York act of 1883 amended section 16 of an act of 1856, relating to schools, "so as to read as follows." In 1864 the legislature passed an act to revise and consolidate the laws relating to public instruction, which repealed all inconsistent laws. It was claimed that the act of 1864 repealed the act of 1856 and that the amendment was void. The court was of a different opinion as to the repeal, but held that even if the act of 1856 was repealed, as claimed, the amendatory act of 1883 was nevertheless valid, and gave their reasons as follows: "The enactment of this law is put in the form of an amendment of a law which was

than if repealed by direct words of a subsequent act of the legislature, and hence an act purporting to amend an act repealed by implication has no more validity than if it purported to amend an act which had theretofore been repealed by a direct repealing clause in a stat ute." Eversole v. Chase, 127 Ind. 297, 300, 26 N. E. 835.

143 Mass. 418, 9 N. E. 761; Lang v. Calloway, 68 Mo. App. 393; Parlin Orendorf Co. v. Hord, 78 Mo. App. 279; Fenton v. Yule, 27 Neb. 758, 43 N. W. 1140; State v. Babcock, 23 Neb. 128, 36 N. W. 348; Baird v. Todd, 27 Neb. 782, 43 N. W. 1143; State v. Partridge, 29 Neb. 158, 45 N. W. 290; State v. Bemis, 45 Neb. 724, 64 N. W. 348; State v. Kearney,

26 Beatrice v. Masslich, 108 Fed. 49 Neb. 325, 337, 68 N. W. 533, 70 743, 746, 47 C. C. A. 657.

27 Williamson v. Ketter, 59 Ala. 306; State v. Warford, 84 Ala. 15, 3 So. 911; Ex parte Pierce, 87 Ala. 110, 6 So. 392; Harper v. State, 109 Ala. 28; Harper v. State, 109 Ala. 66, 19 So. 901; O'Rear v. Jackson, 124 Ala. 298, 26 So. 944; Fletcher v. Prather, 102 Cal. 413, 36 Pac. 658; Reynolds v. Board of Education, 66 Kan. 672, 72 Pac. 274; Lewis v. Brandenburg, 105 Ky. 14, 47 S. W. 862; Commonwealth v. Kenneson,

N. W. 255; State v. Wahoo, 62 Neb, 40, 86 N. W. 923; Van Clief v. Var Vechten, 55 Hun, 467, 8 N. Y. S 760; White v. Boody, 74 Hun, 39 26 N. Y. S. 94; People v. Canvass ers, 77 Hun, 372, 28 N. Y. S. 871, People v. Upson, 79 Hun, 87, 29 N Y. S. 615; Columbia Wire Co. v. Boyce, 104 Fed. 172, 44 C. C. A. 588, Heinze v. Butte, etc. Min. Co., 101 Fed. 165, 46 C. C. A. 219; Minnesota & Mont. L. & I. Co. v. Billings, 111 Fed. 972, 50 C. C. A. 70.

standing upon the statute books, and whether that earlier law, by force of subsequent legislation, had become inoperative is wholly immaterial. The only question is, has the legislature, in the enactment complained of, expressed its purpose intelligibly and provided fully upon the subject. If it has, then its act is valid and must be upheld. That is the case here. The act of 1883 contains all that is provided for in the particular section of the act of 1856, and gives full power to the boards of supervisors with respect to the formation of school commissioners' districts. A law thus explicit and complete may not be disregarded or invalidated because of a possible mistake of the legislature with respect to the existence of the statute in amendment of which the act is passed. It is an enactment of a law, in any view." 28

When an act is unconstitutional and void because a part is in conflict with the constitution, the invalid part may be amended so as to remove the conflict; and thereupon the whole act will be valid and of force without re-enactment.29 The supreme court of Arkansas, in one of the cases cited, uses the following language, which is pertinent also to some of the other questions considered in this section: "This amendment, it is contended, is void for the reason that, the original section being void, there was therefore nothing to amend to. Such is a rule applicable to pleadings in court, but by what authority we are compelled to apply it to the

28 People v. Canvassers, 143 N. Y. 84, 89, 37 N. E. 649.

29 Street v. Hooten, 131 Ala. 492, 32 So. 580; State v. Corbett, 61 Ark. 226, 32 S. W. 686; Rice v. Colorado Smelting Co., 28 Colo. 519, 66 Pac. 894; Jacksonville, T. & K. W. Ry. Co. v. Adams, 33 Fla. 608, 15 So. 257, 24 L. R. A. 272; Legler v. Board of Com'rs, 147 Ind. 181, 45 N. E. 604; Sudbury v. Board of Com'rs, 157 Ind. 446, 62 N. E. 45; Ferry v. Campbell, 110 Iowa, 290, 81 N. W.

604, 50 L. R. A. 92; Lynch v. Murphy, 119 Mo. 163, 24 S. W. 774; Smith v. Howell, 60 N. J. L. 384, 38 Atl. 180; Allison v. Crocker, 67 N. J. L. 596, 52 Atl. 362; State v. Cincinnati, 52 Ohio St. 419, 40 N. E. 508; Kansas City v. Stegmiller, 151 Mo. 189, 52 S. W. 725; English & Scottish Am. Mtg. Co. v. Hardy, 93 Tex. 289, 55 S. W. 169. Compare Copeland v. Sheridan, 152 Ind. 107, 51 N. E. 474.

law-making department in enacting laws, we are not advised. The rule for the guidance of courts is to ascertain the intention of the legislature, and not the mistakes of the legislature, either of law or fact. Now, the manifest intention of the legislature was to change the law as it appeared on the statute books by simply making prize fighting a misdemeanor instead of a felony, and to change the punishment for a violation of the law accordingly. The amendment, which in fact is a substitution for the original second section and not an amendment properly speaking, was properly passed, with all proper reference to the whole act as matter of identification. Any act which manifests a design that any particular provision shall be the law is a sufficient enactment. And when the legislature has power to enact a law and its intention is manifest, effect will be given to the intention rather than to a mere failure of its language to express or describe what was intended." 30

30 State v. Corbett, 61 Ark. 226, 240, 241, 32 S. W. 686. The question received very careful consideration at the hands of the New Jersey court of errors and appeals, which says: "But I am prepared to go further and hold that an unconstitutional statute is nevertheless a statute

that is, a legislative act. Such a statute is commonly spoken of as void. I should prefer to call it unenforcible because in conflict with a paramount law. If prop erly to be called void, it is only so with reference to claims based upon it. Neither of the three great departments to which the constitution has committed government by the people can encroach upon the domain of the other. The function of the judicial department, with respect to legislation deemed unconstitutional, is not exercised

in rem, but always in personam. The supreme court cannot set aside a statute as it can a municipal ordinance. It simply ignores statutes deemed unconstitutional. For many purposes an unconstitutional statute may influence judicial judgment; where, for example, under color of it, private or public action has been taken. An unconstitutional statute is not merely blank paper. The solemn act of the legislature is a fact to be reckoned with. Nowhere has power been vested to expunge it from its proper place among statutes. . . . The claim is that under the provision as to amendment, where a statute is wholly unconstitutional, an amendment of the section or sections that make it so leaves the other sections unaffected unless inserted at length in the new stat

§ 234. Effect of second amendment of section which ignores prior amendment.- Where a section was amended by adding or inserting certain words or provisions and re-enacted as amended, and the same section was again amended in another particular, not inconsistent with the first, and re-enacted, omitting the words inserted by the first amendment and entirely ignoring that amendment, it was held that the first amendment was not repealed and the words inserted remained in force as part of the section.31 So where a section was amended by striking out certain words, and was again amended in another particular by striking out and inserting words "so as to read as follows," and was re-enacted with the words stricken out by the first amendment, it was held that the inclusion of these words was an inadvertence or mistake and the words were disregarded. Section 1455 of the code of Georgia provided that elections on the fence question should be held at such time as the ordinary might appoint. In 1883 this section was amended so as to require such elections to be held on

ute, and that they should be considered as if never enacted, so that the new legislation is incomplete and ineffectual. This is a strained and unnatural construction of the provision. To me it seems very plain that the two enactments are to be read together, and if, when so read, a constitutional enactment appears, the courts must give it effect. . A view opposite to that now taken would lead to much confusion. Many statutes are of doubtful constitutionality. To require that the removal of such a doubt should, at the peril of those interested, require an entirely new enactment, involving an express or implied repeal of the doubtful legislation, would be most unreasonable.

After

careful consideration of the subject I have reached the conclusion that a statute so framed as to be wholly or in part unconstitutional, but having a title expressing a constitutional object, may, by amendatory legislation, be rendered constitutional without having recourse to an enactment independent throughout its provisions." Allison v. Crocker, 67 N. J.. L. 596, 600-603, 52 Atl. 362.

31 Lewis v. Brandenburg, 105 Ky. 14, 47 S. W. 862; Lang v. Calloway, 68 Mo. App. 393; Parlin Orendorf Co. v. Hord, 78 Mo. App. 279.

32 Svennes v. West Salem, 114 Wis. 650, 91 N. W. 121. See also Custin v. Viroqua, 67 Wis. 314, 30 N. W. 515.