Darby v. City of Wilmington, 76 N.C. 133 (1877)

Jan. 1877 · Supreme Court of North Carolina

76 N.C. 133

FRANK H. DARBY v. THE CITY OF WILMINGTON.

Statute — Construction of.

1. Although a statute maybe unconstitutional in part and constitutional in part, yet w.iere o.ily one object is aimed at an 1 tus same is uncon-stitu.ionai and all the provisions are contributory to it and would not have been enacted but for the main object, the w.iole statute is void.

‘2. Th’.rxfore, where the piaiu'.i.Tacted as registrar of voters preliminary to an election held under Oh. 43, Private Laws 137-U’ó, “An Act to amend the Charter of the City of Wilmingb >n,” which Act is unconstitutional, he cannot recover the value of his services in an action, again.-1 the city.

(Van Hnkkelen v. Cana lay, 78 N. 0. 193, cited and approved.)

Civil action tried at Chambers on the 18th of October, 1875, before McKoy, J.

The plaintiff was one of the Registrars of voters at the election which was authorized to be held in defendant city, under § 8, Ch. 43, Private Laws 1874-’5, and performed the duties required He brought this action in a 'Justice’s Court for ■compensation allowed by § 9, of said Act and the Justice ■dismissed the action on the ground that said Act was wholly unconstitutional. The plaintiff appealed to the Judge of the District who reversed the decision of the Justice of the ■I’eaee and gave judgment that the plaintiff recover the sum of twenty-five dollars and costs. Defendant appealed.

Mr. JE. G. Haywood, for the plaintiff.

The plaintiff has the right to be paid for his services, not-withstanding some parts of the Act of 1874 — ’5, are unconstitutional. Van Bokkelen v. Canaday, 73 N. C. iC8. Yet so much thereof as provides for the payment of such officers as •the plaintiff is valid and binding upon the city. Cooley on ■■Const. Lira., pp. 177-181-211; People v. Bradley, 64 Barb <{N. Y.) 229 ; Nelson v. Milford, 7 Pick. 18 ; Bancroft v. Lm-Jield, 18 Pick. 568, and Guilford v. Supei visors, 13 N. Y. 143.

Mr. B>. L. Russell, for the defendant.'

Reade, J.

By au Act of the. General Assembly, ratified ^February 3, 1875, entitled “An Act to amend the charter of the city of Wilmington,” it was enacted that the city should be divided into three wards, &c., and that there should be san election for Aldermen; and that preliminary thereto, there should be a registration of those who were to vote at ■said election and the plaintiff’ was one of the Registrars named in the Act and he performed all the duties of Registrar required of him by said Act and the election was held. That was the scope of the Act Its only object was to provide for and to accomplish said election.

In the case of Van Bokkelen v. Canaday. 73 N. C., 198, this Court decided that the said Act and the election held under 5t were unconstitutional and void.

The plaintiff brings this action to recover the value of his •services, not against the State which ordered him to perform them, but against the city which repudiated them and never authorized them and never had any benefit from ■them.

The position taken by the plaintiff is that all of an Act is not necessarily unconstitutional because a portion of it is; .and that while the Legislature had no power.to lay off the •city into wards and to order an election for Aldermen, yet it had the power to order a registration of voters for the ■election, and to appoint the plaintiff Registrar, and therefore he is entitled to compensation for the services which he ren-■tlered.

It is true that a statute may be unconstitutional in part and constitutional in part, where it relates to different subjects, or even where it relates to but one subject if its parts can be separated and the object accomplished without the •objectionable features ; but where only one object is aimed .at and the main object is unconstitutional and all the provisions are contributory to it and would not have been ■enacted but for the main object, then the whole is void. Cooly, in his Const. Lim , 178-9, states the distinction very •clearly, as follows: “Where a part, of a statute is unconstitutional, that part does not authorize the Courts to declare ■the remainder void also, unless all the provisions are connected in subject matter depending on each other, operating together for the same purpose ; or otherwise so connected ‘together in meaning, that it- cannot be presumed that the Legislature would have passed the one without the other.”

Row as already stated, the election was void ; the registration was connected with and only necessary to the election and would not have been ordered but for the election, therefore the registration was void Indeed, it was expressly decided, that even if'the election had been otherwise valid, yet the registration was invalid

The conclusion is, that inasmuch as the defendant never ■employed the plaintiff to render the services and never re-ceivecl any benefit from them and inasmuch as the services-wei'e in furtherance of an unlawful object, the plaintiff is not entitled to recover of the defendant.

Whether he is entitled to recover of the State, is not before us.

There is error. Judgment reversed, and judgment here-for defendant.

Per Curiam. Judgment reversed.