The question raised in this case is, whether the act entitled "An act for the more effectual suppression of drinking houses and tippling shops," passed at the January session, 1853, is now constitutionally in force.
The counsel for the defendant contend that it is not, and their argument is, that by the constitution, which is declared to be the supreme law of the State, all the powers of government are distributed into three departments, the legislative, executive and judicial, and by section second of Article III, the legislative power is vested in the General Assembly, composed of the Senate and House of Representatives, and the concurrence of the two houses made necessary to the enactment of laws: that by virtue of these provisions, all the legislative power which could or might, under a pure democracy, be exercised by the people, is prohibited to them as well as to the other departments of the government: that by the provisions of the 19th section of the act, a question whether the said act should be in force or not, was made to depend upon the votes of the people, *Page 35 to be given at the succeeding April election, and not upon the will of the General Assembly, as the constitutional provisions before mentioned require.
The constitution of this State has vested in the General Assembly alone, composed of the two houses, the power of enacting laws. This power is confided to them as a high trust, to be exercised with a single eye to the good and well being of the whole. It cannot be delegated. The General Assembly can not call to their aid any other body, and make the existence of a law depend, in whole or in part, upon the will of such other body.
If the act, now in question, was to depend upon the vote of the people, whether it should have been originally in force or not, either by leaving it wholly to the expressed will of the people, or by requiring their concurrence with the will of the General Assembly before it could take effect, then indeed it might be obnoxious to the objection urged, because it was thereby left dependent for its original existence upon the action of those to whom legislative power is clearly prohibited, and upon whom the General Assembly had no power to confer it.
The 19th section of the act does not, however, confer, nor does it purport to confer upon the people the power of putting this act in force, or of contributing to that effect. The provision of this section is, "The legal voters in the several towns, may, at the annual election in April next, vote upon the question of repealing this act," and, proceeding to provide for the manner of returning and counting the votes at the next May session, provides further, that "in the event of a majority of such ballots being cast in favor of the repeal of the act, the *Page 36 same shall be limited in its operation, and have no effect after the tenth day from and after the rising of the General Assembly at said May session."
The subject upon which these votes were to be given was not the enactment of a law, but the repeal of an act already put in force by the act of the General Assembly, and which, but for this vote, was to continue in force. The vote of the people was to have no effect unless it should be for repeal. Had they not voted at all upon the question, the law would have been unaffected, and equally so is it, since the vote was against the repeal of the act — against the exercise of any power over it.
Had a majority of the ballots been found to be in favor of the repeal, a question might then have been raised whether the law were not still in force, whether an act which had been constitutionally passed and put in force by the General Assembly could be repealed by the acts, or at the will of any other body.
But that question does not arise here. The contingency upon which the act was to be repealed has not arisen, and it therefore remains with all the force and effect originally given to it by the vote of the General Assembly in January, 1853, and as if the 19th section had been entirely omitted.
We suppose there can be no doubt that one portion of an act may be declared unconstitutional, and the residue of the same act constitutional and valid. In such case, the portion so declared to be unconstitutional is as if it had never been passed, even in form, and the portion declared to be constitutional must remain in full force as if that had been the whole of the act originally. *Page 37
In this case, therefore, the first eighteen sections of the act must, for any objection now made, be deemed to have been in force from the time of their enactment by the General Assembly in January, 1853, and as if the 19th section had not been added thereto.
The provisions of the 19th section might as well have been made the object of a distinct and separate act. Had they been embodied in such an act, there could be no difficulty in determining the effect.
It would be simply an act to repeal an existing act, which could be passed by the General Assembly alone. If passed in any other mode, or by any other body than that prescribed by the constitution, it would be simply void, and would not affect the act which it was designed to repeal.
We are therefore all of opinion that for any objection now made, or for anything contained in the said 19th section, the said act is constitutional and valid.
Case remanded, with an order to the inferior Court toproceed.
MEMORANDUM. — The Hon. RICHARD W. GREENE, on the 14th of June, 1854, resigned the office of Chief Justice. On the 2d of November following, Hon. WILLIAM R. STAPLES was elected Chief Justice, and Hon. ALFRED BOSWORTH, of Warren, and Hon. SYLVESTER G. SHEARMAN, of North Kingstown, were elected Associate Justices, one in place of the Chief Justice elect, the other in place of Hon. LEVI HAILE, deceased. *Page 38
DEATH OF HON. JUSTICE HAILE.
On the 14th of July, 1854, the Hon. LEVI HAILE, senior Associate Justice of the Supreme Court, died at his residence in Warren, at the age of fifty-seven years, after an illness of but a few hours.
Judge HAILE was born in Warren, R.I., in May, 1797, and of that town was during his life a resident, with the exception only of the period embraced in his collegiate and professional education. He entered Brown University in September, 1817, and at the close of his course, was the recipient of the second honor of the academical race. On leaving College he engaged in the study of law in the office of the Hon. Samuel W. Bridgham, in Providence, and in 1823 commenced its practice in his native town and county. As a practitioner it is said, he was distinguished for diligence and labor in the preparation of his cases, as while a student he had been for diligence and labor in preparing for the recitation room: and as he acquired at an early period, a merited reputation for integrity and fairness, his exertions at the Bar were eminently successful. He was from 1835 to his decease, President of the Court of Probate of Warren; was for many years a member of the School Committee of that town; was from 1826 to 1832, Adjutant General, and for two years succeeding, Major General, of the Militia of the State; and from May, 1824, to May, 1835, he was a representative of his native town in the General Assembly: and though justly esteemed a safe legislator and averse to innovation or great and radical changes, he yet, as early as 1832, zealously advocated an extension of suffrage, an equalization of representation, and the formation of a written Constitution. *Page 39
In May, 1835, while a member of the General Assembly, he was elected an Associate Justice of the Supreme Court; was afterwards annually elected to the same place until May, 1843, when the present Constitution of the State went into effect; and under the Constitution was elected to the same place, to hold office until removed by the concurrent vote of the two Houses of the General Assembly. Of his character as a Judge and as a man, an associate upon the Bench for eleven years (Justice BRAYTON) in his charge to the Grand Jury at the August term of the Court in Washington county, thus spoke:
"This place he honorably filled till the day when death removed him from the scene of his earthly labors. From the time he first took his seat in the Court, he devoted himself with a most untiring industry, to its multiplied duties, and during the whole period he held the office, over nineteen years, it was not remitted. No member of the Court was less absent from the bench during its session. He felt that his first duty was here, and, therefore it was, that no pressure of private business, no ordinary affliction or ill health was ever sufficient to detain him from it. At no term of this Court, since his first appointment, has he been absent, except to hold some other Court. His minutes, if I may so call them. for they are a transcript of the proceedings of this Court in all matters agitated here, while he sat in Court, show with what labor he applied himself. They contain the substance of all the pleadings in every cause tried before him, the whole of the evidence given, the arguments of counsel, the rulings of the Court, the charge to the jury, and the final judgment. These have accumulated year after year into ponderous manuscript volumes.
"He was of an amiable disposition, possessing great kindness of heart. These shone conspicuous in him as a judge, displaying themselves to all, and upon all occasions. They were isolated cases seldom, very seldom, occurring while on the bench, when he was betrayed into an expression inconsistent with the dignity of the place. With an earnest desire to come at the right of the cause, to do justice for the sake of justice, he listened with patient attention to every suggestion which could be urged by counsel. In the subsequent investigation of causes before the Court, he proceeded to the examination of the points, with the same earnest desire for truth, and with a like patient inquiry.
"A strong and retentive memory, enabled him readily to call into use that fund of legal knowledge, which he had gathered up *Page 40 by reading, by study, and by reflection. The natural inclination of his mind was to follow precedent, to stand by former decisions, to go on in the old beaten track, the only safe guide for a judge. The bench is not the place for brilliant genius. It may adorn the place, but it is not that which is required for the discharge of its duties. He who would faithfully administer the law, cannot indulge in any new notions of its policy or in new theories. He has to do with old things, with the history of the law, in order fully to understand its principle. He must, at times, trace the stream of decisions as they have come down through successive generations, marking their successive modifications slowly and cautiously engrafted upon them, to meet the changes and the progress of civilization, and the modified condition of society. Those who have risen to distinction as jurists, have accomplished it mainly by a long course of reading, of study, and of careful investigation; by that industry and patience of labor, which distinguished our departed associate, aided by a retentive memory, and a sound, discriminating judgment.
"His integrity of purpose was never doubted, his uprightness of intention never questioned. In the course of a long judicial life, no error of decision has ever been attributed to any want of honest intention. There may be men of stronger intellect, of greater grasp of thought, but it would not be easy to find a Judge who more earnestly, more uprightly administered justice without respect to persons, doing equal right to the poor and the rich, according to the best of his abilities.
"In 1830, Judge Haile united himself with the Baptist Church in Warren. He made the profession of religion from a conviction of the truths of Christianity, upon full and careful examination. Acknowledging these as the sole guides of his life, he desired to reduce them to practice, and exemplify them in his daily walk. There is much to admire and to imitate in the character of him who has thus gone before us. Few leave behind them so large a circle of warm and devoted friends; fewer still who do not leave behind them enemies, personal or political. — His children orphans mourn the loss of a kind, indulgent parent; his native town a faithful and efficient officer; the State a safe, prudent, learned and experienced Judge.
"As he has discharged the various duties of life conscientiously, and earned for himself the character of a just man here, we may indulge the thought that he may be found among the just made perfect, and that as he has now ceased from his labors, `his works do follow him.'" *Page 41
RESOLUTIONS OF THE BAR.
AT a meeting of the Bar of the State, held at South Kingstown, on the 15th of August, 1854, the following preamble and resolutions were adopted, which were by the Court ordered to be entered upon its minutes:
Whereas, Intelligence of the death of the Hon. Levi Haile, late presiding Justice of the Supreme Court of this State, has been communicated to the Bar of this State, and in the sad event we recognize the hand of affliction laid heavily upon those who were allied to our late friend and brother in the various social, official and domestic relations which he sustained in life:
Resolved, That, as members of the Bar of the State of Rhode Island, we desire to express our deep mourning for the loss of one who has been long connected with us by the ties of professional brotherhood; and that in the willing promptitude with which he always received every call upon his attention as a Judge; in the uniform kindness and urbanity of his deportment; in the untiring labor which he gave to the duties of his official station, and in his legal attainments, particularly in the law of his native State, and his fearless uprightness of purpose, we have ever recognized, through the whole of his judicial life, the attributes which befit the character of a good man and an upright judge.
Resolved, That we tender our sympathies to the Court from whose midst he has been taken away by death; and to his family and personal friends in their sad and sudden bereavement; and as a mark of the respect which we entertain for the memory of the deceased, it is Resolved, That a copy of these resolutions be presented to the Supreme Court at the opening of the session in the county of Washington, with the request that they may be entered on the minutes of the Court; and that the Secretary of this meeting be directed to transmit a copy thereof to the family of the deceased. *Page 42