I concur in the above opinion.
Stuart, J.Without approving or dissenting from the general course of discussion pursued in the above opinion, I concur in the conclusion.
Gookins, J.I cannot concur in the view taken of this case by a majority of the Court; and I will state fully the grounds of my dissent.
The question of legislative power, so largely discussed by Judge Perkins, does not, in my opinion, arise in the case. No one, so far as I am advised, denies the power of the legislature, by a law properly framed, to regulate *238the management of railroads in such manner as to protect, as far as may be, the persons, lives, and property of those liable to be injured by or upon them; and however entertaining a discussion upon the subject might be, I shall defer it until some occasion may arise which shall legitimately call it forth. Until then, I shall be content with the views expressed by me in Bebee v. The State, 6 Ind. R. p. 539, et seq.
There is, however, a question presented by this record which I deem important. It involves the true construction of certain prohibitions in the constitution on the subject of special legislation; and as the decision of this cause is put upon those prohibitions, the questipn is presented with such directness, that a discussion of it cannot be foregone. I shall, therefore, proceed to its examination with the care and caution which, I think, should ever characterize such discussions. The declaring of an act of the legislature void, involves a conflict between two departments of the government; and it should never be done lightly, nor in any case of doubt.
Properly to understand these prohibitions, it will be necessary to look at article 4, of the constitution, as a whole — which will be done, after first stating the ground upon which the decision proceeds.
The particular ground upon which a majority of the Court proceed, in declaring this law unconstitutional is, that it contains a special provision on the subject of practice. The provision supposed to have been violated is contained in art. 4, ss. 22 and 23, which are as follows:
Sec. 22. The General Assembly shall not pass local or special laws in any of the following enumerated cases, that is to say:
Regulating the jurisdiction and duties of justices of the peace and of constables;
Eor the punishment of crimes and misdemeanors;
Regulating the practice in courts of justice;
Providing for changing the venue in civil and criminal cases;
Granting divorces;
*239Changing the names of persons ;-
For laying out, opening, and working on highways,, and for the election or appointment of „supervisors;
Vacating roads, town plats, streets, alleys, and public squares;
Summoning and empanneling grand and petit juries, and providing for their compensation;
Regulating county and township business;
Regulating the election of county and township officers, and their compensation;
For the assessment and collection of taxes for State, county, township, or road purposes;
Providing for supporting common schools, and for the preservation of school funds;
In relation to fees or salaries;
In relation to interest on money;
■ Providing for opening and conducting elections of State,-county,, or township officers, and designating the places of voting;
Providing for the sale of real estate belonging to minors or other persons laboring under legal disabilities, by executors, administrators, guardians, or trustees.
Sec. 23. In all the cases enumerated in the preceding section, and in all other cases where a general law can be made applicable, all laws shall be general, and of uniform operation throughout the State.
The fourth article of the constitution is devoted to the legislative department of the government. It vests the legislative power in the G-eneral Assembly; declares the style of the laws; fixes the number and qualifications of the members of the two houses, — the sessions — quorum— journal — powers of the two houses; directs as to the origin and passage of bills — protest—publication of the laws, &e. These provisions, or those of similar character, are found in the constitutions of all the States. Besides them, there are certain sections prescribing the manner *In which bills shall be framed and passed, requiring that every bill shall be read through by sections on its final passage; that the vote be taken by yeas .and nays; that *240each, act shall embrace but one subject, and matters properly connected with it; and that acts shall not be revised or amended by mere reference to the title. Then follow the sections above quoted, containing prohibitions against special and local legislation in certain cases.
The inquiry now arises, is the act in question a special or local law, within the meaning of these prohibitions? This may not seem, at first view, of much practical importance ; but if closely scrutinized, I think it will be found not only to involve the question of the validity of a very large portion of our laws, but the further question, whether any system of laws, adapted to the wants and exigences of the people of the State, is practicable under the present constitution.
I fully concur in the opinion of Judge Perkins, supra, that contemporaneous history furnishes the best rule for interpreting the constitution; which is nothing more than a common law and cohnnon sense rule of long standing, that to find the meaning of a statute we are to look at the object sought to be attained, or the evil sought to be remedied.
What were the evils at which the convention was aiming in adopting the cheeks and prohibitions in question? Some of them are referred to in the opinion I delivered in Beebe v. The State, 6 Ind. R. pp. 553, 555. I shall not repeat them, although they would appropriately illustrate the subject now under consideration. I shall speak of the history of legislation with reference to the 22d and 23d sections only.
At the time of the adoption of the constitution, special legislation had become an enormous and a rapidly increasing evil. Until 1835, excepting at those- sessions which enacted a code, a volume of from one to three hundred pages, was found sufficient to contain the laws of a session. That of 1834 contained four hundred pages, which was a pretty large increase over the volumes of previous years; and many of the abt-s were of a private and local nature, not noticed by courts without pleading. At the se'ssion of 1835, the legislature *241determined to separate laws of this character from those of general interest and operation; and provided_ that annually thereafter four thousand copies of the general acts should he printed and bound separately, and of the local acts - seven hundred and fifty. These were denominated special acts, and were directed to be printed without marginal notes. Laws 1835, p. 76, ss. 2, 5, 6. A volume of special acts was enacted and published annually thereafter.' The code of 1843 in terms defines this volume. It directs that there shall be printed in one volume the general laws, and in another volume the special and private acts, joint resolutions of a local or private nature, and the memorials of the then present, and future. sessions of the General Assembly, to be denominated the special, acts. E. S. 1843, p. 171, s. 72. This- definition of special acts was upon the statute book, when the. Constitutional Con- ■ vention of 1851 was in session, — by which time this volume of special laws had increased to about six hundred pages. Some of these laws were of local operation, — some were private, — and all were special.
Besides these there were numerous enactments upon general subjects, but operating locally, — some in a township, — some in a county, — some in several counties,— and some in a judicial circuit.
The favorite topics of local and special legislation were those enumerated in the 22d section. In some counties, its fiscal concerns were managed by a board of justices, — in others by three' commissioners. In some, a justice’s jurisdiction extended throughout the county, and in others it was confined to his township. In some counties justices had exclusive jurisdiction of most misdemeanors, and in others they were subjects of indictment in the Circuit Court. A person going from one county to another was never sure that, the laws which governed his conduct or his rights were the same as those he had left. Even the judges were unaware of the laws they were to administex*. A judge upon his circuit having delivered his charge to the grand jury, de*242fmining the various crimes and misdemeanors, was informed at its close, that he had mistaken the law; that there was a local statute in that county which deprived the grand jury of jurisdiction of many of the subjects embraced in his charge, and conferred ^ upon justices. Attorneys were equally at fault in going from one circuit to another, or from one county to another in the same circuit. Examples of these enactments will be found in the acts regulating the practice in the county of Allen, — Laws, 1844, p. 26; in the eleventh circuit, — Laws, 1846, p. 39; in the third circuit, — id. 45; in the thirteenth circuit, — Laws of 1847, p. 139; in the county of Lagrange, — Laws, 1848, p. 20.
These were the particular laws that the prohibition in the 22d section, article 4, “regulating the practice in courts of justice,” was aimed at. It was well said by Stuart, J., in Maize v. The State, that to remedy these evils, — to restore the State from being a coterie of small independencies, with a body of. local laws, like so many counties palatine, to what she should be, a unity, governed throughout her borders, on all subjects of common interest, by the same laws, general and uniform in their operation, — the restrictions in sections 22 and 23, were embodied in the constitution. 4 Ind. R. 348. This in my judgment, was a sound and correct exposition of the constitution. The learned judge was sustained in that view of the subject by the well known fact, that this species of legislation had long been regarded as a serious evil; that the executive had often called the attention of the legislature to it, in his annual messages — notwithstanding which the evil continued to increase; that a remedy for it was a prominent object in calling a convention to revise the constitution; that it was fully -discussed before the people in the canvass for delegates, and afterwards in the convention, and finally, in the address by which the framers of the constitution submitted it to the people for their approval, —in which, upon this subject, they speak as follows:
“ The most important restriction imposed on the leg*243islative branch, is that which provides, that, in a variety of enumerated cases, (as the jurisdiction of justices of the peace, the mode of doing county and township business, the fees of county and township officers, road laws, common school laws, and so forth,) and in all other cases whei’e a general law can be made applicable, no special law shall be passed. It is an estimate much within the truth, that more than two-thirds of all the laws enacted in this State, since her admission into the Union, have been of the character here forbidden. More than two-thirds of our legislation, therefore, — and the most confusing and most mischievous portion of it, —is cut off by this single provision. Independently of the intrinsic benefits of such a change, the saving thereby effected of expense, both as regards the time of the legislature and the cost of printing our laws,, will be great.”
To show the contrast between this view of the subject and that taken by a majority of the Court, I quote the reasoning of the learned judge who pronounced the opinion.
“ The third section, so Tar as it inflicts a penalty, for appealing and failing to reduce the judgment 2.0 per cent, is, in our opinion, unconstitutional and void.
“ A law may be constitutional in part and unconstitutional in part. This third section relates to the practice of the law in these cases. The trial and rendition of judgment are a part of the practice in a cause. The section is special. Laws are general or special. This is the first great division. Special laws are again divided into local, personal, particular, &c. See Smith’s Com. p. 419. A special act concerns £ the particular interest or benefit of certain individuals, or of particular classes of men.’ See 1 Kent, 459. A law may he £ partly public and partly private.’
££ The principle of this act is entirely different from the principle of those general laws fixing the jurisdiction of the several courts. The jurisdiction of the court *2440f the justice of the peace is limited by them in respect †-0 amormt. But within that limit it operates alike upon a^- as to that of the Common Pleas and of the Supreme Court. There may, however, be unconstitutional gectiong in those acts. As to this we are not now called upon to speak.
“ The section, then, under consideration, being special and upon the practice of the law, is prohibited by that clause of section 22, article 4 of the constitution which provides that no such act shall be passed, ‘ regulating the practice in courts of justice.’
“ The first section of the act is also void so far as it gives, as to amount, unlimited jurisdiction to justices of the peace. In that particular it is special, and in conflict with that clause of the section of the constitution just cited which prohibits special laws ‘ regulating the jurisdiction and duties of justices of the peace and of constables.’ ”
This exposition, so far as it relates to the third section, makes this provision, which is supposed to be on the subject of practice, unconstitutional, either because of its particular position in the statute book, or because it applies to railroad companies only, and not to all other parties. "Was this what our statesmen were about, when making a constitution for us? If so, no one of them, in debating the subject, (Debates Const. Conv. vol. 2, p. 1768, et seq.,) suggested any thing of the kind; and, if so, then statesmanship is a different thing from what I had supposed it to be. I can well enough understand why a system of legislation should require that laws should operate throughout the State alike; but why that system should regulate the details of practice, is, I confess, a phase in government-making quite new to me.
The first of these objections I should not regard as entitled to extended notice, had not the argument been frequently pressed upon the Court, as was done with much earnestness in the case of Bebee v. The State, supra, *245and had not the Court seemed inclined to give it some consideration.
¥e have an act devoted to practice in courts of justiee, another for the election, and prescribing the jurisdiction and duties of justices, and others devoted to other subjects; and it has been insisted, that to make the act general, every pro vision, on the subject must be incorporated in one act; and that, if interspersed through the various other acts of the code, they be-come invalid. For instance, we have an act defining felonies, and .another defining misdemeanors, and fixing their penalties; while there are some felonies and many misdemeanors defined and their penalties prescribed in other acts. The 19th section of article 4 is also relied upon, to show such provisions invalid. It is as follows:
“Every act shall embrace but one subject and matters properly connected therewith; which subject shall be expressed in the title. But if any subject shall be'embraced in an act, which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title.”
I examined the question here presented, to some extent, in Bebee v. The State, 6 Ind. R. 551, 555. The history of our previous legislation was there referred to, to show the design of this constitutional provision. In confirmation of what was there said, it is proper to refer to the view which the convention took of this- section, and its object, in their address. It is as follows:
“No law is to embrace more than one subject, and matters properly connected therewith; and the subject is to be expressed in the title. The tendency of this rule is to prevent what is familiarly termed ‘log-rolling/ Two provisions having no proper connection with each other, may, under the present constitution, be embraced in the same bill, and be carried by a combination of their respective friends; though neither, in' itself, have merit or strengh enough to obtain the vote *246of a majority, and would fail, as it ought, if voted upon singly.”
The other question is kindred to this, viz., the supposed unconstitutionality of a section on the subject of practice, which applies to railroad companies, and not to other parties. If this fact renders the provision void, I do not hesitate to say that no practice act can be framed adapted to otir wants, that will be valid. The present code is replete with provisions equally special. Those in regard to the manner of conducting suits by and against infants, married women, poor persons, corporations, &c., by the same rule are void.
Let us refer to some provisions of the code, and, without stopping to distinguish which of the objections stated would invalidate them, see what havoc they will make of it. 1 R. S. p. 102, s. 10, regulates the practice on appeals from allowances by the county board; p 104, ss. 3, 4, the practice in case of the arrest of a privileged person; p. Ill, s. 25, the practice before justices in assessing property for taxation; p. 113, s. 31, same, providing for a recovery to an unlimited amount before a justice, for failing to report merchandise subject to tax; p. 115, ss. 42, 43, the practice -in recovering taxes against corporations; p. 135, ss. 128, 129, the practice against defaulting treasurers and their sureties; p. 138, s. 149, the practice before justice, and recovery to an unlimited amount, for failing to pay a bid at a sale for taxes; p. 149, ss. 9, 10, the practice in suits by Auditor of State; p. 157, s. 23, the practice in suits by banks; p. 158, s. 24, same, in suits against banks; p. 160, s. 36, defining a felony for false entries by officers and agents of banks; p. 164, s. 6, the practice on appeals, on requiring new official bonds; p. 200, s. 16, the practice in recovering penalties by and against bridge companies; p. 203, ss. 9,10, the practice before justice, and unlimited recovery, for injuries to bridges; p. 230, ss. 34, 35, same, on appeals from county boards; pp. 241, 242, ss. 12,13, 14,16,17, the practice in winding up defunct corpora*247tions; p. 243, ss. 3, 4, the practice by and against foreign'corporations; pp. 279, 280,' ss. 26, 27, 28, the practice before justice in recovering property adrift, without limit as to value; pp. 292, 293, ss. 3, 9,10, the practice in cases of trespassing animals, with unlimited recovery before a justice; p. 305, s. 3, the practice in recovering wages; p. 321, s. 7, the practice. against husband and wife; p. 336, s. 28, same, against insurance companies; p. 345, ss. 7, 8, same, in recovery of usurious interest; p. 362, ss. 8, 9, 10, 11,12, sundry penalties and misdemeanors, and civil and criminal practice in prosecutions for them, in relation to marriages; p. 376, ss. 7, 9, misdemeanors for employing negroes and mulattoes, and for their coming into this State; p. 393, s. 3, penalty for unlicensed piloting; p. 399, s. 18,' felony for embezzling by agent, &c., of plankroad company; p. 429, s. 9, penalty against recorder, and practice in recovering it, for improperly recording deed; p. 443, s. 27, against school trustee for neglect of duty; p. 448, s. 68, misdemeanor, by county officers in reference to school funds; p. 454, s. 124, the practice against school townships; p. 455, s. 134, against defaulting school commissioners; p. 470, s. 8, on appeal from surveys; p. 497, s. 20, in suits against civil townships. These are some, but not all, by far, of the instances in which unconstitutional enactments have been interspersed throughout our code, if it be unconstitutional to incorporate provisions on the subject of practice in other laws, or to discriminate in respect to -parties. When enacted, several prominent members of the constitutional convention were members of the legislature, and gave them their sanction.
In many of the instances, where jurisdiction is conferred on inferior courts, the parties aggrieved have no remedies whatever, if these provisions are invalid. Was ever constitution so violated?
What has been already said, and the examples given, apply also to the supposed unconstitutionality of the first section, — which is thought to be void because it *248.does not limit the recovery to 100 dollars before a justice, and hence is special.
There is no constitutional provision limiting a justice’s jurisdiction to any sum, but the justice’s act so limits it. Its unconstitutionality is found, therefore, not by comparing it with the constitution, but by comparing it with another law. I object to this mode of proceeding, for the simple reason, that if one act conflicts with another, the last repeals the first; and it is observable that four, at least, of the acts to which I have referred, which give unlimited jurisdiction to justices in certain cases, besides the one under consideration, are of later date than that which limits their jurisdiction to 100 dollars ; and according to the doctrine of Spencer v. The State, 5 Ind. R. 41, they repeal it pro tanto. I think that when the validity of an act is questioned,, it should be compared with the constitution. If there is a conflict, it falls; otherwise, it stands.
Aside from the history of this constitutional prohibition, I am of the opinion that the language itself justifies the construction I have put upon it, and excludes-any other. The twenty-third section shows the design of the twenty-second, and was evidently inserted to meet any omitted subject of special legislation. The words “throughout the State,” explain what is meant by general laws, and utterly exclude the idea that reference was had to the details of practice.
I conclude, then—
1. That a law unlimited in its territorial operation except by the boundaries of the State, is a general law.
2. That the constitution requires only uniformity in the operation of the law, and not uniformity in the subjects on which it operates; and,-
8. That it is immaterial in what connection a provision is found, provided it has an appropriate relation to-the general subject of the act of which it forms a part.
I have discussed the subject at some length, to avoid the necessity of doing so- again. Erequent reference is *249made to those prohibitions, and a consideration of them has often been pressed upon the Court. The design of them, I think, was good, and if obeyed in their true spirit, I think they will have a salutary effect upon our legislation; but the interpretation given to them will, I think, render them not only useless, but will make any system of legislation under them, adapted to the wants of the people, absolutely impracticable.
There is another question presented by this record, which seems to me well worthy of consideration. The act provides that if the defendant shall appeal, and shall not, in the appellate court, reduce the damages 20 per cent., the plaintiff shall recover double damages, and a docket fee of 5 dollars.
I do not doubt but that the legislature has power to charge a party with costs and damages where he has not shown substantial merits in his appeal, — as is the constant practice in appeals from justices’ judgments, and in appeals to the Supreme Court. Nor do I doubt the power to discriminate in reference to particular classes of actions, — as in 2R. S. pp. 126,127, ss. 397,398,— or, even in respect to railroads, between those fenced and those not fenced; nor the power to fix or limit the extent of a recovery in personal actions, — as in 2 R. S. p. 205, s. 784. But it is a grave question, — one that has not been discussed in the opinion delivered in this ease, — whether this provision was not intended to exclude a party from a court of justice. The twelfth section of the bill of rights is as follows:
“All courts shall be open; and every man, for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay.”
It is difficult and perhaps impracticable, to mark the precise line which bounds the legislative power in a case of this kind. The statute which charges the plaintiff with costs, if he fail to recover 5 dollars, (2 R. S. p. 127, s.. 398), is evidently designed to- prevent suits being *250brought in certain cases where the plaintiff has a right of action. It operates indirectly to produce that effect, an^ ^-is does no more; for it does not absolutely forbid the defendant the right of appeal. The Supreme Court Qf in the cases of Bronson v. Kinzie, 1. How. 311, and McCracken v. Hayward, 2 id. 608, admitted the difficulty of so marking the line between rights and remedies as to declare at what point a statute ceased to be directory of the remedy, and began to impair the obligation of a contract; and they resorted to the expedient of comparing the statute with the contract, and by a general view of the subject, determining that the former affected the .latter in such a manner as to impair its obligation.
On such a view of the subject, authorities could scarcely be found to sustain any conclusion, and each case would furnish its own rule. Is the ¿lause in this statute giving double damages, designed to discourage the bringing of unimportant suits, where justice is not the object really sought; or was it designed to keep parties out of court who have merits? I incline to believe the latter is its character; and, therefore, that it conflicts with the above quoted section of the bill of rights.
In some of the cases brought upon this law, now pending in this Court, recoveries were had in the first-instance to the amount of several hundred dollars, and on appeal these damages were doubled. Admit that the defendant had not merits in the appeal sufficient to reduce the recovery 20 per cent, — still there might be grave questions whether the company was liable at all, which, if the defendant is to have, in the language of the constitution, “justice completely and without denial,” it might be indispensable to have determined by a higher tribunal; and if the inflicting of double damages was designed to prevent the pursuit of a substantial remedy by due course of law, it would seem that the constitution was violated.
This is very different from the question of practice so folly discussed. Practice, in general, involves no princi*251pie; it merely directs the mode of asserting a light; but here an important principle is involved, intended, in this instance, to operate only upon certain corporations, — but which, if valid, may be extended to all other persons. On this ground, I am inclined to hold that the judgment of the Court pf Common Pleas is wrong, 'and ought to be reversed. ' '
F1, M. Finch and J. Slater, for the appellant. W. M. Dunn and J. A. Hendricks, for the appellee. Per Curiam.The judgment is reversed with costs. Cause remanded, &e.