concurring.
At the argument of this case the writer raised the question whether he was qualified to participate in the decision as to the constitutionality of the act of 1915, on account of the fact that he is the owner of a small piece of property liable to be assessed in paving proceedings pending in another city of the same class. Both parties agreed in open court that, if his vote became necessary to a determination of the case, the writer should sit. One judge is disqualified under the statute by reason of his son being of counsel in the case. Three judges are of the opinion that the act' is valid, while two are of the contrary opinion. Since under section 2, art. YI of the Constitution, no decision can be had of the questions presented without the writer participating, it becomes necessary for him to act.
The question whether the amendment is germane to the subject-matter of the act is a very close one, and is by no means free from doubt. It is the duty of courts not to declare a law unconstitutional unless it is clearly so. Every act comes before the court with the presumption of constitutionality, and if there is any doubt it *760should be resolved in favor of the validity of the statute.
Undue strictness and literalness of construction ought not to be resorted to in order to defeat the will of the legislature; and, where there is a substantial doubt as to whether the title of an act is sufficiently broad to include an amendment, the act should not be declared invalid for that reason alone.
Since the case was first argued there has been a change in the personnel of the court. It has been considered here by seven judges other than the writer. Four of these believed the statute valid, and three were of opinion that the amendment was not germane. The district court held the sthtute to be valid. In this state of the case the doubt should be resolved in favor of the validity of the act. I therefore concur in the opinion.