cattle. A statute which prohibits traffic in intoxicating liquors, provides penalties therefor, and also forfeiture of liquors kept for sale, and the vessels in which the same are kept, is not an entirety. The forfeiture clause may be held unconstitutional, and the remainder nevertheless be sustained.2

§ 171. The requisite separableness of the void part.— To prevent the void part of a statute from vitiating other portions it must be possible to separate them. This separation would generally be easy where there is inserted in an act otherwise constitutional a distinct provision which can have no operation or effect, according to its terms, but such as is in violation of the constitution. Such a provision would be absolutely void, and it is difficult to conceive how it could be so blended with other and constitutional provisions as not to be capable of literal separation and exclusion; it may, however, be so related to other provisions as to infect them by dependence, but the actual separation of the vicious part would be practicable. Such separation is practically difficult when a provision is general, and a part of its applications or effects would be violative of the constitution and a part not so, and both equally within the terms, scope and apparent intent of the lawmakers.3 Such provisions may be held valid so far as they can operate in harmony with the constitution, and by construction limited to such an effect. They will be held void for any purpose beyond that limit. Statutes of a civil nature are severable when all their terms may have effect to some extent; and upon a defined principle may be so limited and all effect. beyond constitutional barriers prevented. The legislature of Iowa gave a city power to establish and create wharves and fix the rates of landing and wharfage of all boats, etc., moored at or landing at the wharves. Under this power the city council passed an ordinance ordaining that all the grounds then lying, or which might thereafter be made, between Water street in the city and the middle channel of the Mississippi river, should be declared a wharf. The ordinance provided for a wharfage fee for use of any part of said wharf or Water

1 Rood v. McCargar, 49 Cal. 117; Wilcox v. Hemming, 58 Wis. 144, 159. 2 State v. Wheeler, 25 Conn. 290; Fisher v. McGirr, 1 Gray, 1.

3 Western Union Tel. Co. v. State, 62 Tex. 630.

street. Part of it was actual wharf made at considerable expense and a part was the unimproved bank. As to the latter the ordinance requiring wharfage was supposed to be void. Though that part was not distinguishable in the text of the ordinance, it was held severable; that it was valid so far as to authorize its enforcement for collecting wharfage for use of the actual wharves, a right and power then alone in question.'

In Railroad Companies v. Schutte the court said the striking out of the void part is not necessarily "by erasing words, but it may be by disregarding the unconstitutional provision, and reading the statute as though that provision was not there." It is a general rule of construction to give such effect, if possible, to a statute that it shall work no breach of public faith, nor violate the constitution.3

§ 172. But the rule is more stringent in regard to criminal statutes. As said by Johnson, J., in Wynehamer v. People: "Laws in relation to civil rights are sometimes held to be unconstitutional, in so far as they affect the rights of certain persons, and valid in respect to others. This is done mainly upon the ground that the courts will not construe them to relate to such cases as the legislature had not power to act upon. To statutes creating criminal offenses, such a rule of construction ought not to be applied, and I cannot find any trace of its ever having been applied. It is of the highest importance to the administration of criminal justice that acts creating crimes should be certain in their terms and plain in their application; and it would be in no small degree unseemly that

1 Packet Co. v. Keokuk, 95 U. S. 80; Freight Tax Case, 15 Wall. 232. A statute of Pennsylvania required every railroad, steamboat, canal, slackwater navigation company, and all other companies doing business within that state, and upon whose works freight might be transported, whether by the company or by individuals, to pay certain taxes. This act applied to domestic as well as interstate transportation, and as to the latter it was void, though that part was not distinguishable in the terms. It was not directly declared that the

part of the act which related to transportation wholly within the state was valid, but it is to be inferred that the court did not deem the act wholly void. Supervisors v. Stanley, 105 U. S. 305, 313, 314; Austin v. The Aldermen, 7 Wall. 694; Bull v. Rowe, 13 S. C. 355; McCready v. Sexton, 29 Iowa, 356; Hiss v. Baltimore, etc. R. R. Co. 52 Md. 242; Franklin v. Westfall, 27 Kan. 614.

2 103 U. S. 118, 142.

3 United States v. Central Pac. R. R. Co. 118 U. S. 235.

4 13 N. Y. 378, 42"

courts should be called upon, in administering the criminal law, to adjudge an act creating offenses at one time valid, and at another time void. It must, I think, stand as it has been enacted, or not stand at all." A law void as to certain property (intoxicating liquors) already possessed at the passage of the law, but which would be valid if confined to such property subsequently acquired, is wholly void, being general so as to include both in penal destruction of value. Where the constitution fixed the limit of punishment by fine imposed by a justice of the peace at $3, and the legislature provided for a fine not exceeding $20 in such cases, the statute was held valid to the constitutional limit of $3, and void beyond that sum.2 The excess was easily ascertained, and divisible from the amount authorized. And though the void part could not be literally stricken out without changing the letter of the statute, it could be excluded with no less certainty and precision. § 173. In United States v. Reese, it was held that the power of congress to legislate at all upon the subject of voting at state elections rests upon the fifteenth amendment to the federal constitution, and can be exercised by providing a punishment only when the wrongful refusal to receive the vote of a qualified elector at such election is because of his race, color or previous condition of servitude. A congressional enactment not confined in its operation to unlawful discrimination on account of race, color or previous condition of servitude transcends the constitutional limit, and is unauthorized. Waite, C. J., said: "We are therefore directly called upon to decide whether a penal statute enacted by congress, with its limited powers, which is in general language broad enough to cover wrongful acts without as well as within the constitutional jurisdiction, can be limited by judicial construction so as to make it operate only on that which congress may rightfully prohibit and punish. For this purpose we must take these sections of the statute as they are. We are not able to reject a part which is unconstitutional and retain the remainder, because it is not possible to separate that which is unconstitutional, if there be any such, from that which is not. The proposed effect is not to be attained by striking out or disregarding words that are 113 N. Y. 378, 425.

2 Clark v. Ellis, 2 Blackf. 8.

3 92 U. S. 214.

in the section, but by inserting those that are not now there. Each of the sections must stand as a whole or fall altogether. The language is plain. There is no room for construction, unless it be as to the effect of the constitution. The question, then, to be determined is, whether we can introduce words of limitation into a penal statute so as to make it specific, when, as expressed, it is general only. It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of the government. The courts enforce the legislative will when ascertained, if within the constitutional grant of power. To limit this statute in the manner now asked would be to make a new law, not to enforce an old one. That is no part of our duty." This view has been repeatedly approved in subsequent cases.1

1 United States v. Harris, 106 U. S. 629; Trade-mark Cases, 100 U. S. 82; Va. Coupon Cases, 114 id. 305. In Baldwin v. Franks, 120 U. S. 678, the plaintiff had been in custody on a charge of violating an act of congress which provided for punishment of those who "in any state or territory conspire, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws or of equal privileges or immunities under the laws." Sec. 5519, R. S. U. S. Waite, C. J., said: "In United States v. Harris, supra, it was decided that this section was unconstitutional as a provision for the punishment of conspiracies of the character therein mentioned within a state. It is now said, however, that in that case the conspiracy charged was by persons in a state against a citizen of the United States and of the state, to deprive him of the protection he was entitled to under the laws of that state, no special rights or privileges arising under

the constitution, laws or treaties of the United States being involved; and it is argued that although the section be invalid so far as such an offense is concerned, it is good for the punishment of those who conspire to deprive aliens of the right guarantied to them in a state by the treaties of the United States. In support of this argument reliance is had on the wellsettled rule that a statute may be in part constitutional and in part unconstitutional, and that under some circumstances the part which is constitutional will be enforced, and only that which is unconstitutional will be rejected. To give effect to this rule, however, the parts-that which is constitutional and that which is unconstitutional-must be capable of separation, so that each may be read by itself. This statute, considered as a statute punishing conspiracies in a state, is not of that character, for in that connection it has no parts within the meaning of the rule. Whether it is separable so that it can be enforced

To be separable for the purpose of sustaining the remainder of the act, such remainder must be complete in itself and sufficient to accomplish the legislative intent without aid from the void part.1

§ 174. The main purpose being unconstitutional the whole act void.- Where all the provisions of an act are connected as parts of a single scheme, the incidental provisions must fall with the failure of the main purpose.' That which is merely auxiliary to the main design must fall with the principal to which it is merely an incident. If only one object is aimed at, and that is unconstitutional, and all the provisions. are contributory to that object, and were enacted solely for that reason, the whole act is void. An act provided for a new police district, and police justice, with exclusive jurisdiction not only of new offenses created by the same act, but of matters previously cognizable by other courts. As the creation of the new district and court were essential to accomplish the purpose of the act, and that part of it being held unconstitutional, the whole act was void. Where the entire scheme must fail because of a want of power to enact it, there can be no possible good in upholding an isolated provision which it

in a territory, though not in a state, is quite another question, and one we are not now called on to decide. It provides in general terms for the punishment of all who conspire for the purpose of depriving any person, or any class of persons, of the equal protection of the laws or of equal privileges or immunities under the laws. A single provision, which makes up the whole section, embraces those who conspire against citizens as well as those who conspire against aliens ; those who conspire to deprive one of his rights under the laws of a state and those who conspire to deprive him of his rights under the constitution, laws or treaties of the United States. The limitation which is sought must be made, if at all, by construction, not by separation. This, it has often been decided, is not enough."

1 Allen v. Louisiana, 103 U. S. 80; People v. Porter, 90 N. Y. 68; Hinze v. People, 92 Ill. 406; Towles, Ex parte, 48 Tex. 413; Bittle v. Stuart, 34 Ark. 224; Black v. Trower, 79 Va. 123; State v. Duke, 42 Tex. 455.

2 Jones v. Jones, 104 N. Y. 234; Black v. Trower, 79 Va. 123.

3 Virginia Coupon Cases, 114 U. S. 270, 304.

4 Darby v. Wilmington, 76 N. C. 133; Eckhart v. State, 5 W. Va. 515. 5 People v. Porter, 90 N. Y. 68; Reed v. Omnibus R. R. Co. 33 Cal. 212; Kelley v. State, 6 Ohio St. 269; Sumter Co. v. Gainesville Nat. Bank, 62 Ala. 464; State v. Chamberlin, 37 N. J. L. 388; Lathrop v. Mills, 19 Cal. 513; Dells v. Kennedy, 49 Wis. 555; Slinger v. Henneman, 38 id. 504.