part is entirely separable from the residue, so that other portions of the law can be enforced without reference to it, there the unconstitutional part only will be condemned. But where the legislative provision is indivisible, . . . the provision is wholly void." Wynehamer v. People (1856) 13 N. Y. 441; Duryee v. New York (1884) 96 N. Y. 477 (New York ordinance).

This rule has been applied in numerous cases, but it will not be profitable to give them in detail. In the following cases statutes were held to contain separable provisions, and parts of them were sustained: Re Ryers (1878) 72 N. Y. 1, 28 Am. Rep. 88 (drainage law of 1869); People ex rel. Angerstein v. Kenney (1884) 96 N. Y. 294 (the New York charter of 1873, as amended by the act of 1878, chap. 400, even if the inconsistent provisions are in the same sections); People ex rel. New York Electric Lines Co. v. Squire (1888) 107 N. Y. 593, 1 Am. St. Rep. 893, 14 N. E. 820 (electrical subways act of 1885); Lawton v. Steele (1890) 119 N. Y. 226, 7 L. R. A. 134, 16 Am. St. Rep. 813, 23 N. E. 878 (fish and game act of 1883, chap. 317); Re Malone Waterworks Co. (1890) 38 N. Y. S. R. 95, 15 N. Y. Supp. 649 (Malone waterworks act of 1857, chap. 156); Re New York & L. I. Bridge Co. v. Smith (1896) 148 N. Y. 540, 42 N. E. 1088 (New York and Long Island bridge company act of 1892, chap. 411); People ex rel. Rochester v. Briggs (1872) 50 N. Y. 553 (Rochester charter amendment of 1872, chap. 771); Re Van Antwerp (1874) 56 N. Y. 261 (Brooklyn assessment act of 1872, chap. 812); Re Sackett, D. & DeG. Streets (1878) 74 N. Y. 95 (Brooklyn act of 1868, chap. 631, to widen certain streets); Re Middletown (1880) 82 N. Y. 196 (Middletown water act of 1866, chap. 347); Re De Vaucene (1866) 31 How. Pr. 289 (act of 1866 to regulate the sale of intoxicating liquors in the metropolitan police district); Parfitt v. Ferguson (1899) 159 N. Y. 111, 53 N. E. 707 (the New Utrecht improvement act of 1891, chap. 59); Re Oneida Street (1899) 37 App. Div. 266, 55 N. Y. Supp. 959 (Syracuse charter of 1885, chap. 26, § 167); Bohmer v. Haffen (1900) 161 N. Y. 390, 55 N. E. 1047 (railway in West Farms and Morrisania, 1863, chap. 361); People ex rel. Lefkowitz v. Manhattan Hospital (1900) 33 Misc. 414, 68 N. Y. Supp. 647 (insanity law of 1896, chap. 545).

"A legislative act may be entirely valid as to some classes of cases and clearly void as to others. A general law for the punishment of offenses, which should endeavor to reach, by its retroactive operation, acts before committed, as well as to prescribe a rule of conduct for the citizen in future, would be void so far as it was retrospective, but such invalidity would not affect the operation of the law in regard to

the cases which were within the legislative control." Jaehne v. New York (1888) 128 U. S. 189, 32 L. ed. 398, 9 Sup. Ct. Rep. 70.

In an article on the veto power, in the second volume, I have given an account of a plan proposed in the Convention of 1867 to confer on the governor the power to veto independent portions of a bill, and have expressed my views in favor of a constitutional provision giving a governor this power as to thirty-day bills, but not as to bills which might be amended during the session of the legislature. The foregoing rule, under which the courts sustain parts and reject other parts of statutes where the provisions are separable, is an application of the principle which the Convention of 1867 sought to extend to the governor. An adverse decision on a constitutional question by the courts is, in effect, a judicial veto, and it is not easy to discover any good reason why there should not be an executive veto allowed in the same cases. governor has power to reject a bill as unconstitutional, or because some part of it is unconstitutional; the courts possess the like power. The plan suggested would give the governor an opportunity to prune the bill before it becomes a law, and thus in many cases avoid the necessity of appealing to the courts to determine its constitutionality.

SLAVES.

The

In the article on slavery in New York, in the first volume, I have cited the act of 1799 providing for the gradual abolition of slavery, and also the act of 1817, which, among other things, required the person entitled to the service of a child of a slave to make an affidavit as to his age, in default of which he was not entitled to the service of such child as authorized by the statute, but such child was entitled to his freedom after arriving at

VOL. IV. CONST. HIST.-20.

the age of eighteen years. In Griffin v. Potter (1835) 14 Wend. 209, the validity of this legislation was challenged, but sustained. The court say that "when our government was first instituted, one portion of the population was in bondage to the other. Slavery existed by virtue of the laws which were in force previous to our political existence as a state. It could be justified only by necessity. It was at war with our principles; and, as the legislature was of opinion that there was no necessity for its continuance, a law was passed to operate upon those thereafter to be born." There was no inherent right of the master to the services of a slave. The relations between the two were the result of an arbitrary arrangement of society which was subject to legislative control, and the legislature therefore had power to impose conditions on the continuance of the services, and to secure emancipation on the master's failure to comply with the conditions. The court further say "it is a fundamental principle of our government that all men are born free and equal; that is, entitled by nature to equal freedom and equal rights. The regulations of civil society have qualified the rights of different portions of society. The best interests of the whole sometimes require that some shall be put under the guardianship and control of others. It is therefore by virtue of the arbitrary institutions of society, and by those alone, that one man has an interest in the services of another; property, strictly speaking, in the person of a human being, cannot exist." The right of one man to the services of another exists "by authority of law,-by force of the positive institutions of civil society." The power of the legislature over social relations is sufficiently ample to justify any act regulating the status of masters and slaves.

The provision of the same statute requiring the master to provide slave children with elementary education was

also sustained as a legitimate exercise of legislative power. By the abolition of slavery, which was fixed by the statute to take place July 4, 1827, slave children would become members of society with the same status as white children, and the legislature had power to require masters of such slave children to prepare them in some degree for their new relation to society.

The subject of slavery was also considered in Lemmon v. People (1860) 20 N. Y. 562, where the court, construing the provision of the Revised Statutes (1 Rev. Stat. 657) making free every slave brought into this state, except on certain conditions, say that "every sovereign state has a right to determine by its laws the condition of all persons who may at any time be within its jurisdiction; to exclude therefrom those whose introduction would contravene its policy, or to declare the conditions upon which they may be received, and what subordination or restraint may lawfully be allowed by one class or description of persons over another. Each state has, moreover, the right to enact such rules as it may see fit respecting the title to property, and to declare what subjects shall, within the state, possess the attributes of property, and what shall be incapable of a proprietary right."

STATE MARITIME JURISDICTION.

The provision of the Revised Statutes (1 Rev. Stat. 62,65) which defines the boundaries of the state, and declares that its sovereignty and jurisdiction shall extend to all places within the boundaries so declared, was intended to define simply the actual territorial bounds of the state, and was not intended and could not operate as a restriction upon subsequent legislation. "It is not claimed that the sovereignty and jurisdiction of this state extend to its vessels when at sea, as they do to places within its boundaries for all purposes, such as service of process, the execution of judgments and the like, but only that when acts done at sea become the subject of adjudica

tion here, the rights and liabilities of parties may in some cases be determined with reference to our statutes." McDonald v. Mallory (1879) 77 N. Y. 546, 33 Am. Rep. 664

SUNDAY.

The legislature has power to regulate the observance of Sunday. People v. Hoym (1860) 20 How. Pr. 76; Lindenmuller v. People (1861) 33 Barb. 548; Neuendorff v. Duryea (1877) 69 N. Y. 557. This subject is also considered in notes to § 3 of article I on "Religious Toleration."

TAXATION.

We come now to one of the foundation principles of organized society; namely, the right to compel each citizen to contribute to the support of the government. Many topics considered under legislative power relate only to details of administration, but taxation is fundamental. It is scarcely conceivable that any organized government could long exist without taxation in some form, either a direct levy of taxes on property, or indirect taxation by licenses, the sale of privileges and franchises, a tax on imports, manufactures, business, or incomes, or some other method of producing revenue to defray the expenses of government. It is an attribute of sovereignty, and the power is substantially coextensive with the necessity. It is one of the powers inherited by the state from another form of government; and largely because of the difficulty of prescribing definite limits to the power, it has been omitted from the Constitution except as to some of its minor features. The Constitution is substantially silent on this subject, and, except as restrained by the application of other principles of government, the power of the legislature is unlimited. Frequent attempts have been made to include taxation in the Constitution. The Convention of 1867 proposed a section