(dissenting):—I fully concur in the opinion just delivered, in so far as it holds, in effect, that the title of the act to amend Chapter 381, Volume 20, Laws of Delaware, entitled, “ An Act to equalize taxation for State and County purposes,” being *206Chapter %1¡., Volume %1 Laws of Delaware, is not sufficiently comprehensive, it being too restrictive, to embrace that part of section 7 of the said act which attempts to amend section 12 of the original act, by providing “ that of the moneys which shall be levied and collected under the provisions of this act, within the limits of the City of Wilmington * * * * two-fourths thereof shall be for the use of(The Mayor and Council of Wilmington/ ” and that, therefore, the attempted amendment is unconstitutional by reason of Section 16 Article % of the Constitution of 1897, which provides that “no bill or joint resolution except bills appropriating money for public purposes shall embrace more than one subject, which shall be expressed in the title.” But I have been compelled, with great reluctance, to differ with the opinion in maintaining that section 12 of the original act was expressly repealed by section 7 of the amendatory act; and that said original act is, by reason thereof, inoperative and void.
The general scope and purpose of the amended act as expressed in the title thereof was “ to equalize taxation for State and County purposes,” and to this end the Legislature passed the said original act. It is obvious that the purpose of the amendatory act was to amend the original act by adding thereto certain curative features, matters of detail largely, for the more efficient enforcement thereof as well as to attempt to provide for a somewhat different distribution of the revenues to be derived from the taxes to be levied and collected under the said act within the limits of the City of Wilmington as aforesaid. There is clearly and manifestly nothing in the language of the said amendatory act which in any way signifies an intent on the part of the Legislature to defeat the main purpose of the said original act either by direct or indirect means. But on the contrary the republished act as amended clearly and unmistakably evinces the legislative intent to continue the subject of taxation provided for under the said original act, and for the purposes therein mentioned, except so far as the attempted amendment proposed a different distribution of the taxes to be levied and collected *207thereunder as aforesaid. And if section 12 of the republished act, being the substitutionary words contained in section 7 of the amendatory act, be void (and the Court are unanimously of the opinion that the said attempted substitution is void), and if section 12 of the original act be repealed by virtue of said section 7, which I donot concede, then the obvious intent of the Legislature to continue the system of taxation provided for under the said original act is defeated; for the republished act as amended, in that event, becomes inoperative, because the object for which the tax is authorized is eliminated therefrom, leaving the said act without a purpose, and, therefore, rendering it a nullity.
Upon the question whether section 7 of the amendatory act repeals section 12 of the original act, the substitutionary portion of the former section being void, I cannot resist the conviction that the Legislature did not intend by attempting to amend the said original act to defeat the main purpose and design thereof, and thereby to annul the very act itself. Nor do I think that said section 7, with the unconstitutional part thereof rejected, can, within the legislative intent to be gathered from the whole of said section, be given, under any well settled rule of construction, a separate and independent positive force and operation for the purpose of enacting what the Legislature, under every reasonable intendment, never meant or intended, viz., the annulment of the very statute which at most they only sought to amend. And in the determination of this question the manifest intent on the part of the Legislature to continue the system of taxation established by the said original act has an important bearing upon the effect of the void portion of said section 7 on the remainder thereof.
It is an established rule, applicable alike to the whole or a part of a statute, though stronger in favor of the former than the latter, that all reasonable doubts and presumptions are to be solved in favor of the validity of a statute. And while it is true that a portion of section 7 is unconstitutional, yet if there be a reasonable doubt about the remaining portion of said section being separable *208from the unconstitutional portion thereof, within legislative intent, and effective for the purpose of an independent, absolute repeal of said section 12 of the original act, thereby rendering the latter act nugatory, then such doubt should be solved in favor of the latter act and the valid amendments thereto; and especially so if there be nothing in the language, scope and purpose of the said section 7 which in any manner reflects or signifies an intent or design on the part of the Legislature to abolish the said system of taxation, but rather to change or modify the mode of distribution of the taxes only.
In the case of Wellington. et. al. petitioners, etc., 16 Pick. (Mass.), 87, Shaw, Chief Justice, said:—“ When called upon to pronounce the invalidity of an act of the Legislature passed with all the forms and solemnities requisite to give it the force of law, courts 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 on the subject, and never declare a statute void, unless the nullity and invalidity of the act are placed, in their judgment, beyond reasonable doubt. And under this safe rule, I am unable to dispose of this question, having rejected part of said section 7 as unconstitutional, by giving to the remainder thereof a distinct, positive operation for the purpose of effecting the repeal of said section 12 and the consequent annulment of said original act; for I not only entertain a reasonable doubt that the Legislature ever intended such a consequence, upon it being determined that the main, I may say the sole, purpose of said section 7, cannot be carried into effect, the essential part thereof being void, but I am constrained to believe that every reasonable intendment is against such a construction. It seems to me very evident upon an inspection of said section that the invalid portion thereof formed an inducement or consideration for the enactment of the remainder thereof; and that the pronounced repeal clause therein was not in fact, a repeal at all as an independent act but merely an incidental provision within the scope and *209of said section to make room for the words of substitution intended to take the place of said section 12.
“ It is no doubt true * * * that the same act of legislation may be unconstitutional in some of its provisions and yet constitul tional in others * * But this must be taken with this limita- / tian, that the parts, so held respectively constitutional and unconj stitutional, must be wholly independent of each other. But if they ) are mutually connected with and dependent on each other as conJ ditions, considerations, or compensations for each other as to war- ( rant a belief that the Legislature intended them as a whole, and j that, if all could not be carried into effect, the Legislature would [not pass the residue independently, and some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected, must fall with them. (Warren and others vs. Mayor and Alderman of Charlestown, 2 Gray. (Mass.), 94). If, when the un- | constitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the , apparent legislative intent, wholly independent of that which was rejected, it must be sustained—Cooley on Const. Lim. (6th. Ed.), 211. In the application of this principle of construction, Judge , Cooley, in a note on page 212 of the same treatise, says: “ It must : be obvious, in any case when part of an act is set aside as unconstitutional, that it is unsafe to indulge in the same extreme presumptions in support of the remainder that are allowable in support ' of a complete act when some cause of invalidity is suggested to the ! whole of it. In the latter case, we know the Legislature designed the whole act to have effect, and we should sustain it if possible ; in the former, we do not know that the Legislature would have been willing that a part of the act should be sustained if the remainder were held void, and there is generally a presumption more or less strong to the contrary. While, therefore, in the one case the act should be sustained unless the invalidity is clear, in the other the whole should fall unless it is manifest the portion not opposed to the Constitution can stand by itself, and that in the *210legislative intent it was not to be .controlled or modified in its construction and effect by the part which was void.” And again, on page 220/ he says: “ Great caution is necessary in some cases, or the rule which was designed to ascertain and effectuate the legislative intent will be pressed to the extreme of giving effect to part of a statute exclusively when the legislative intent was that the part should not stand except as a component part of the whole.”
Looking at section 7 in its entirety and at the legal import and evident legislative intent of the words employed therein, I cannot see that it was the manifest intent of the Legislature to strike out said section 12 except for the purpose of the intended substitution and it does seem to me that the legislative intent in thé use of the words, “ Amend the said chapter by striking out all of section 12 thereof, and inserting in lieu thereof the following ” was to be controlled in its construction and effect by that part of said section, the substitutionary part, which we all agree is void. The insuperable difficulty which I find in the application of the well settled principle of construction with reference to statutes which are unconstitutional in part, to effect the repeal of said section 12, is, that by rejecting the unconstitutional portion of said section 7 and then maintaining that the remainder of the said last mentioned section is valid and repeals said section 12, the said section 7 is made to enact what the Legislature never intended. Such a construction confers upon the first part of said section 7 a positive operation as a distinct and separate act, beyond any legislative intent to be gathered from the language and purpose of the whole of said section, which was both to strike out and to substitute said section 12; and beyond what I am able to see and to know the Legislature would have enacted in view of the invalidity of that portion of said section 7 which is unconstitutional. And to give to the remainder of said section the positive operation necessary to effectuate the repeal of said section 12, in view of the closely connected relation and evident single purpose of the parts of said section, it should be clearly manifest from the words employed there*211in that it was the intent of the Legislature to repeal said section 12 and thereby to annul the original act, irrespective of the substitution intended to be effected by the unconstitutional portion of said section 7. And unless such an intent is manifest the remainder of said section 7, after rejecting the unconstitutional part, should not stand for the purpose of the repeal of said section 12 alone. It seems to me that the clear, evident intent of the Legislature in passing said section 7, was that it should operate as a whole, and for the sole purpose of substituting said section 12 as therein plainly expressed, by striking out the last mentioned section and inserting in lieu thereof that provision in said section 7 which we hold to be void. And the latter section, failing in its purpose of substitution, it is impotent for the purpose of striking out said section 12 as a distinct, independent act. And it seems to me that every reasonable intendment is in favor of this construction; for while it is true that the Legislature clearly intended to strike out said section 12 in order to provide for a new and different distribution of the taxes required to be levied and collected under the original act and the amendments thereto, than that provided under the said original act, yet it vis equally true that they intended to continue the system of taxation originally established; and certainly it is most clear that they did not intend to abolish it altogether
But it has been said in effect by maintaining that the whole of said section 7 is void because of the unconstitutional portion thereof and that by reason thereof s^id section 12 remains unimpaired, the Legislature is made to enact what they did not intend to do; for it is urged that the Legislature manifestly intended to change the provision in said section 12 in relation to the distribution of the said taxes as provided under the orginal act. This objection does not meet the question now before us, for the Legislature has failed in doing what they intended to do by said section 7. And besides the same objection may be urged against the claim that said section 12 is stricken out and repealed by virtue of said section 7, notwith*212standing the void portion of the latter section, for such a repeal as a distinct and separate act, without substituting the words attempted to be substituted therefor renders the whole act as republished nugatory; and clearly there is nothing in section 7 which discloses any such legislative intent. And it may be said that the failure of the legislative intent to change the mode of distribution of the taxes for another by the act of substitution does not create the intent to nullify the original act. If the latter is effected it must appear that the Legislature intended it quite as clearly as that they intended to change only the method of distribution under said section 12. The language of said section 7 clearly and explicitly shows that the Legislature intended both to strike out said section 12 and to substitute another provision therefor. And since, therefore, a part of said section is void, contrary to the legislative expectation, we must look beyond the intent of the Legislature to be gathered from the language of said section 7, to the consequences of their failure to enact what they intended.
It is the effect of their failure to enact in a constitutional manner what they intended with which we have to deal, and in this connection to consider the relation which the void portion o said section 7 bears towards the remainder thereof, and to ascertain whether or not the two parts of said section are interwoven and bound together in one purpose and inseparable. It is a well settled rule of construction that the customary repealing clause has no effect and repeals nothing if the statute to which it is annexed is invalid, because there is nothing inconsistent or in conflict with it. The intent of the Legislature to change the existing law in such a case is as manifest and certain as it is in this; but that intent, whatever it may be, and however plainly expressed, fails, if the act, intended to become a law, is void, and there as here follows the effect of such failure upon the existing law which it was plainly intended to change, but to change, or modify, only as by the proposed new act, and not to abrogate. And it seems to me, viewing this case as I do, that the principle underlying this rule of con*213struction is applicable to this case; for, as I view it, the sole puf!pose of said section 7 was to substitute another provision for said section 12, upon the same subject matter, and the attempted amendment failing in that purpose, for the reason stated, it is a nullity, without any effect, leaving section 12, as a consequence, and not I that it was the legislative intent, the same as if no attempt had / been made to substitute another provision for it. It is true that I the rule to which I have just referred is in relation to the effect of t a repealing clause, the body of the act to. which it is attached being void. But the principle of construction is the same if it be a void r* 1 amendment, for, in the latter case, the act attempted to be amended , is not, in fact, amended; and, therefore, it remains unchanged. So I in this case if the whole of section 7 be void, and I hold it is j because its object is not divisible into two independent parts, it matters not what the Legislature intended thereby, section 12 is ■, not affected. Therefore, as I have said, it is a question so far as ' section 7 is concerned whether, within the legislative intent, the whole of said section must stand or fall together. And I hold that because it is void in part, it is void altogether for the reason that it is inseparable within the legislative purpose and design thereof.
And in addition to what I have already said, I may add that I it seems to me that the reasoning in the case of State ex. rel. Law vs. Blend, 121 Ind. 514, is sound, convincing and applicable to this case. The facts were these: An act of the Legislature was > passed on the fifth day of March, 1883, creating a board of metro- ' politan police in all cities in the State of Indiana, having a population of 29,000, or more, inhabitants, to be appointed by certain officers designated in the act. By a subsequent act, passed on the seventh day of March, 1889, the Legislature attempted to abolish the said board of police, and to create another and a fire department, to be elected and appointed differently than was provided under the first act. The latter act provided that all laws and parts of laws coming in conflict with it, and especially the act providing for a metropolitan police in cities of 29,000 inhabitants are by this *214act repealed. (Note especially the words in italics, showing an j express attempt as well as intent on the part of the Legislature to ( repeal the first act.) The body of the last act was held to be in \ conflict with the Constitution and therefor void. And notwith- j standing this, it was contended on the one hand that the repealing £ clause was valid and that the first act was repealed; on the other, \ it was urged that the act itself being void, the repealing clause j attached thereto fell also, and that as a consequence the first act | still remained in full force. The Court in part said: “Where it is t not clear that the Legislature by a repealing clause attached to an unconstitutional act, intended to repeal the former statute upon the \ same subject, except upon the supposition that the new act would take the place of the former one, the repealing clause falls with the J act to which it is attached.” * * * “It is contended, however, ) that it is manifest from the language used that the Legislature intended to repeal the act of 1883 in any event.” And the same .• position is maintained here with reference to the alleged valid por- ' tian of said section 7. “But,” continued the Court, “we are unable to agree with counsel in this construction. We must accord to the Legislature the belief that the act of 1889 was constitutional, and the intention that the provisions of that act would take the place of the act of 1883.” This was a most reasonable and natural conclu- : sion. And it may well be assumed in this case that the Legislature ! believed that the substitutionary words of section 7 were constitutional and that they would take the place of section 12. The only safe rule of construction is to expound the intention of the Legisla- ; turc by what they did, regarding, as they must have done, the whole of said section 7 as valid.
In another case, Judson vs. City of Bessemer, 87 Alabama, 240, the question was as to the effect of a void amendatory act upon the original act. The attempted amendment was as follows: “ That section 38 of the charter of the City of Bessemer, Alabama, be, and the same is hereby amended by striking out the word ‘fifty’ in the fifth line of said section, and inserting the word ‘thirty’ in lieu *215thereof.” The amendment was declared to be unconstitutional because the amended section had not been re-enacted and published at length, as required by the Constitution, and the original section 38 was held to be unimpaired. In both of these cases there was an : express repeal within the legislative intent such as is claimed for a portion of said section 7 in this case. The attempt to repeal the act of 1883, in the Indiana case, and to strike out “fifty” and to substitute, “thirty,” in lieu thereof in said section 38, in the i Alabama case, was as plainly and unmistakably exerted by the ' respective legislatures, and with as clear an intent to modify the / former statute as was the attempt and intent to strike out and to substitute said section 12 in this case. What the legislatures i intended was plainly and explicitly set forth in the language / employed in each of those cases as it is in this. The attempted express repeal of the said act of 1883, in the first case, failed to operate because the act to which the repealing clause was attached was in conflict with the Constitution. And the express attempt to strike out “fifty” and to substitute “thirty” in lieu thereof, in the Alabama case, failed, because the amendment had not been reenacted and published at length. But the manifest intent of the respective legislatures was not absent in either of these cases; yet its presence did not control the question of the effect of the void < repeal, in the one case, and the void amendment, in the other, upon 1 the statutes intended to be affected thereby respectively. In determining this last question, the legislative intent as disclosed by each of the said void enactments did not control the courts in the construction and effect of such amendments upon the original statutes. And it should not in this case. The consideration of the question before us now that part of said section 7 is void, necessarily involves something more than the legislative intent to change the mode of the distribution of the revenues to be derived from the taxes to be levied and collected under the original act. The intent to modify the latter act has failed, and we must inquire as to the effect of the failure, and of the object of said section 7 and of the *216relation between the void portion and the remainder thereof. Did the void portion of said section 7 influence or induce the Legislature to pass the remaining part thereof? Were not the words of the repeal clause a mere means or incident to effect the proposed substitution? Are not the two parts of said section into which it has been divided for the purposes of this case so mutually connected with and dependent upon each other as conditions, considerations, or compensations for each other, as to warrant a belief that the Legislature intended them as a whole? These questions must be ! answered in the negative in order to warrant the repeal of said sec- '' tian 12. This I am unable to do, because in severing the uncon- \ stitutional portion of said last section from the remainder thereof, I must, in order to accomplish the repeal of said section 12, as a ] separate and independent act, enlarge the scope of the remainder of said section 7 beyond any apparent legislative intent to be gathered from said section; for such a construction nullifies the original act, ¡ and the valid amendments thereto altogether, and there is manifestly an absence of legislative intent to be found therein for any such purpose.. I am unable to see and to declare, as I must do to justify the repeal of said section 12, that the intention of the Legislature was that the part of said section 7, pronounced valid should be enforced though the other part thereof be void. I
Poindexter vs. Greenhow, 114 U. S., 270, 304.
I hold that said section 7 is single in its purpose of substitution ! only, and that it is not separable into two or more parts, each per- *1 taining to separate and distinct objects, independent of each other, and that, therefore, it can only be considered as an inseparable whole. The said section in its scope and purpose signifies no more than if the Legislature had sought to amend said section 12 in this form: “Be it enacted, that said chapter be and the same is hereby amended by substituting for section 12 thereof the following: ”— and then had added the said substitutionary words which are contained in said section 7. Substitution alone is the extent of the meaning and purpose of said section 7 within the legislative intent *217to be gathered therefrom. And the attempted substitution being unconstitutional the whole of said section is a nullity; and, as such does not affect the section intended to be substituted. Section 12 is, therefore, not repealed, but it remains unimpaired.
Lastly: The question before us is not one of casus omissus— ! what the Legislature attempted to do, they expressed in clear and I explicit language, and there was nothing omitted by inadvertence ¡ or accident, such as falls within the meaning of the maxim. Nor do I conceive it to be the case of an “express repeal” as a separate >J and independent act for the reasons already stated. And it is very j evident that it is not the case of amending a statute by a simple | repeal of some provision thereof. But it is simply what said ( section 7 manifestly shows it to be, a case of an attempt to amend a section of an act by substituting another provision in lieu thereof. And the attempted substitution failing, the attempted amendment, in toto, likewise fails for the reason already assigned. I have not deemed it necessary to pass upon the other objections, presented at the argument, against the validity of the original act and the amendments thereto, the opinion of the majority of the Court having disposed of the case before us upon the two questions fully set forth in the opinions now delivered.