That chapter 354 of the Laws of 1883, so far as it related to the department of public works, was held by this court to be unconstitutional and void in the Killeen case (109 N.Y. 564), is manifest from the opinion, and admitted by the respondent. If this statute was unconstitutional, and consequently void when passed, so far as it applied to that department, I am unable to agree to the proposition that the constitutional amendment which went into effect January 1, 1895, revived or infused new life into it and rendered it valid. It makes no difference that it was only void in part, for so far as it was void it had no effect, and could not be rendered valid except by re-enactment. Judge COOLEY, in his work on Constitutional Limitations, at page 188, says: "When a statute is adjudged to be unconstitutional, it is as if it had never been. Rights cannot be built up under it; contracts which depend upon it for their consideration are void; it constitutes a protection to no one who has acted under it, and no one can be punished for having refused obedience to it before the decision was made. And what is true of an act void in toto is true also as to any part of an act which is found to be unconstitutional, and which, consequently, is to be regarded as having never, at any time, been possessed of *Page 371 any legal force." That language was quoted and approved by this court in Chenango Bridge Co. v. Paige (83 N.Y. 178, 191). (See Endlich on Interpretation of Statutes, § 538; Meagher v.The County of Storey, 5 Nev. 244, 250; Sumner v. Beeler,50 Ind. 341, 342; Woolsey v. Dodge, 6 McLean, 142; Astrom v.Hammond, 3 McLean, 107, 110; Strong v. Daniel, 5 Ind. 348;Clark v. Miller, 54 N.Y. 528, 532.) The statute of 1883, having been declared unconstitutional and void so far as it affected the department of public works, was invalid and had no existence so far as it related to that department. To that extent it was as if it had never been enacted. It being so far void, I think the subsequent amendment infused no life into it as to that department. It was so held in State ex rel. v. Tufly (20 Nev. 427) and in Opinions of Attorneys-General of the State of New York for 1871 (pg. 566). I am aware of no principle upon which it can be held that this statute became valid by the subsequent constitutional amendment, unless the amendment was self-executing. That it was not seems manifest, as, after providing for civil service appointments and promotions, it expressly declares that "laws shall be made to provide for the enforcement of this section." This provision is inconsistent with and negatives the idea that the amendment was self-executing, or that it was intended to re-instate a statute already declared to be unconstitutional. The logic of the position that the Constitution, before it was amended, simply obstructed or suspended the statute of 1883 as to the department of public works, and that the amendment removed the obstruction and leaves the statute in full force, is not apparent to me. That argument seems to me fallacious. If any constitutional obstruction existed which prevented the enactment of a statute including the department of public works in the provisions of the Civil Service Act, it was so complete as to render the statute to that extent unconstitutional and void. As to the department of public works, the statute was either valid or void. If valid, it could have been enforced when passed; if void, it could not, and the amendment effected no change that would render the statute valid. *Page 372
Again, if it be said that the decision in the Killeen case was based upon the theory that the legislature did not intend to include the department of public works in the statute of 1883, because it would be in conflict with the Constitution, then the statute did not affect that department. If that was the intent of the legislature, I know of no principle by which an amendment of the Constitution would breathe into that statute an intent which never existed.
If the legislature never intended to pass such a statute, its intent must govern, and the statute of 1883 should not be regarded as applicable to the department of public works. If it did intend to include that department, then it violated the Constitution and was so far null and void. Therefore, whatever view may be taken of the question, it seems to me that it cannot properly be held that the statute is applicable to the department of public works.
I think the judgment of the General and Special Terms should be reversed.
All concur, with O'BRIEN, J., for affirmance, except MARTIN, J., who reads for reversal; VANN, J., not voting.
Order affirmed.