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upon it by the constitution, to which it owes its existence; and on the other hand, a State legislature cannot enact a law interfering with interstate or foreign commerce, or imposing duties on imports or exports, etc., because the constitution gives congress the exclusive jurisdiction in these matters. If congress passes any law which is not within the authority conferred upon it by the federal constitution, or if a State passes any law which is in conflict therewith, the law is absolutely void, and the courts will so hold in any case which comes before them.
§ 41. Acts of Congress. Congress, composed of the senate and house of representatives, is, as we have just seen, the legislative body of the United States, with authority also to legislate locally for the District of Columbia and for the territories of the United States. Its authority is derived from and dependent upon the constitution of the United States. It can pass any law which is expressly or impliedly authorized by that instrument. For example, it has the power to pass laws regulating interstate and foreign commerce. On the other hand, it can pass no valid law which is not within the powers conferred by the constitution. Thus it cannot pass a law regulating generally divorces, insurance, contracts, or torts in the several States. Any act of congress within the powers conferred by the constitution is binding in and on the States; but any act beyond those powers is void.
§ 42. Treaties. Treaties entered into between the United States and foreign nations by the president by and with the advice and consent of the senate, as authorized by the constitution of the United States, have the force of law. As we have seen, it is expressly declared by the constitution that they "shall be the supreme law of the land," and that "the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding." 51
43. State Constitutions. Each State of the Union has a constitution or bill of rights. This instrument consists of a number of fundamental laws adopted by the people for the government of the State, and which cannot be altered or repealed except by the people themselves.52 It is superior to the will of the legislature, and any act passed by that body in violation thereof or in conflict therewith is void. A State constitution must yield, however, in so far as it is in conflict with the constitution of the United States, or with acts of congress or treaties enacted or made in pursuance thereof. Every student of the law should read carefully the constitution of his State.
44. Acts of State and Territorial Legislatures. The States of the Union are not mere instruments of government established by 51. See supra, § 38. 52. See 8 Cyc. 695.
and under the control of the federal government, but are independent political organizations, equally as permanent and equally as supreme in matters within their jurisdiction as the federal government. All powers which are not expressly or impliedly conferred upon the federal government by the constitution of the United States are, as we have seen, reserved to the State governments. The legislative power of a State is vested by its constitution in its legislature or general assembly, composed of a senate and house of representatives. The power of a State legislature to enact laws, therefore, is inherent and unlimited, except only that it cannot pass a valid law which violates or conflicts with any provision of the federal or State constitution. The powers of the federal and State legislatures differ in this respect: The former cannot pass a law which is not either expressly or impliedly authorized by the federal constitution; the latter can pass any law that is not expressly or impliedly prohibited by the federal or State constitution. In other words, while the federal constitution is a grant to the federal government of powers which it would not otherwise possess, a State constitution is a limitation of the powers which the State would otherwise have.
The territories of the United States are not in the same position of sovereignty as the States, and they have no inherent power of legislation. All their powers are derived from congress. By act of congress the powers of the territorial legislatures extend "to all rightful subjects of legislation not inconsistent with the constitution and laws of the United States." 53
§ 45. Municipal Ordinances or By-Laws. Municipal corporations, which include cities, villages, etc., are political subdivisions of a State created into bodies corporate by charter from the legislature, and have such powers of legislation only as are conferred upon them by the legislature. They are, however, generally given the power, more or less limited, to enact ordinances or by-laws for the regulation of local affairs. These have the effect of local laws to preserve the peace, order, health, and comfort of the people, and to give the municipality remedy for their violation.64
8 46. Enactment of Statutes. A statute, to be valid, must be enacted in conformity with the provisions of the constitution, and, unless so enacted, it is void; but it is not necessary to its validity that the rules of parliamentary law, nor even the special rules of the body which enacts it, be strictly followed. Before its passage by the legislature, the proposed statute is called a "bill"; after its passage, it is often referred to as an "act." "act." The successive steps in the enactment of a statute are usually as follows:
53. U. S. Rev. St. (1878) § 1851. 54. See 28 Cyc. 347.
(1) Introduction of the bill in either house; (2) reference to a committee; (3) three readings on different days; (4) the vote; (5) signature by presiding officer; (6) presentation to the other house, where the same procedure is repeated; (7) signature of the executive in those States where it is necessary and (8) reconsideration, in case the executive veto it.
In order that its proceedings be valid, it is, of course, indispensable that the legislature itself be constituted in conformity with all constitutional provisions. If it is not so constituted, it is not a legislature. Furthermore, if there are any rules in the constitution regulating the method of creating laws, such rules must also be followed. Constitutions usually contain such general regulations, concerning the enactment of laws, as shall insure a sufficient deliberation upon the bill before its passage, and make certain that it represents the genuine intention of the legislative body before it becomes a law. In respect to all other matters which are not the subject of constitutional provision, legislatures are subject to only such rules as they may prescribe for themselves or choose to recognize. The rules of the system known as "parliamentary law" are usually followed, except as to those matters in regard to which particular legislatures adopt special rules designed to meet their own peculiar wants. Inasmuch as the legislature has full power to change these rules whenever it may see fit, if a particular statute is enacted by it in conformity with all constitutional provisions, such a law will be upheld, even though the special rules of the legislative body or the general parliamentary law were not observed in its passage.
As a rule, bills may be introduced in either house of the legislature, but it is customary for constitutions to provide that bills for raising revenue must originate in the lower house.56 The reason of this is that the lower house, being invariably the most numerous branch of the legislature, is regarded as better fitted to guard wisely the rights of the people in all matters which may result in taxation. When the bill is introduced, it is usually referred to the committee whose business it is to carefully consider bills of that particular class. By this reference to a committee, it is supposed that the bill will receive more thorough consideration than it is possible for the entire legislature to give it. After its consideration by the committee, the bill is referred back to the house, with the results of the committee's investigations. If the committee recommend that the bill be not considered by the house, it is usually dropped. If, however, the committee report favorably upon it, the bill is put to its three separate readings, and,
55. See Statutes,
56. U. S. Const. art. 1, § 7.
after such debate as may be necessary, is voted upon. If passed, it is signed by the presiding officer, and presented to the other house of the legislature. Here it passes through substantially the same procedure, and, if it receives the approval of this house, it becomes a law, provided the executive gives it his approval. If, however, it is vetoed by the executive, in order to become a law in spite of such veto it is necessary that it be again passed by a two-thirds vote of both houses.
§ 47. Constitutionality of Statutes. As has already been stated, no State statute is of any validity which lays down rules inconsistent with any provision of the constitution of the United States, or of the State by whose legislature it is enacted. All laws passed by the congress of the United States must conform to the federal constitution. Statutes which do not conform to this rule are unconstitutional and void. The power of determining whether a statute is constitutional or not is usually vested in the highest courts of last resort.57
§ 48. Affirmative and Negative Statutes. As to their form, statutes are either affirmative or negative. An affirmative statute is one which is enacted in affirmative terms. A negative statute is one which is expressed in negative terms. The effect of an affirmative statute is not necessarily to supersede the common law upon the same subject-matter, for it is so worded that it is not necessarily inconsistent with the common-law principles. Against negative statutes, however, the rules of the unwritten law are of no effect. The difference in operation between the two classes of statutes is illustrated by a learned writer as follows: "If a statute were to provide that it should be lawful for a tenant in fee simple to make a lease for twenty-one years, and that such lease should be good, an affirmative statute could not restrain him from making a lease for sixty years; but a lease for more than twentyone years would be good, because it was good by the common law; and, to restrain him, it ought to have words negative, as that it shall not be lawful for him to make a lease for above twenty-one years, or that a lease for more shall not be good.
§ 49. Declaratory and Remedial Statutes. As to their relation to the common law, statutes are either declaratory or remedial. A declaratory statute is one which merely affirms principles which already existed under the common law. A remedial statute is one which modifies the principles already existing under the common law. In legal theory, there is a rule to govern every state of facts; and, if this rule is not to be found in the written law, it will be found in the unwritten. Theoretically, therefore, the
legislature never creates a rule absolutely new. It either affirms or modifies a rule already existing. It is not to be understood that this rule is always to be found in the reports of adjudicated cases. It may never previously have been applied to a state of facts. But it is plain that, even had no statute been passed upon the subject, if a case had arisen which required its application the courts would have found it and applied it. The class of remedial statutes includes, therefore, all statutes which do not merely affirm unwritten-law principles.59
50. Public and Private Statutes. As to the persons to whom they apply, statutes are either public or private. private. A public statute is one which is applicable to the public generally. A private statute is one which relates to a single person, or a particular class of persons, and does not apply to the whole community.60 This distinction between public and private statutes is ordinarily clear. For example, a law of congress granting a pension to a particular person would be a private statute; while a law providing for the bestowal of pensions upon all who conform to certain conditions is public. But it sometimes occurs that a statute partakes of both a public and private character. The essential character of such a statute is then a matter of determination by a Its determination sometimes becomes of importance, for courts will take “ judicial notice" of a public statute; that is, they will not require it to be proven by the party who alleges its existence. A private statute, on the other hand, must be proven, as well as any other fact essential to the case in which it arises.61
51. General and Local Statutes. As to the territory to which they apply, statutes are either general or local. A general statute is one which applies to the entire territory over which the legislature has authority. A local statute is one which applies only to a limited portion of the territory over which the legislature has jurisdiction.62 The classification into general and special statutes is sometimes confused with that into public and private. The first involves a distinction of persons; the latter, a distinction of place. A local statute may be public, and it is not impossible to conceive a private statute which is at the same time general. The two classifications are distinct, for the basis of classification is different.
§ 52. Mandatory and Directory Statutes. As to the results of non-compliance with its provisions, a statute may be either mandatory or directory. A mandatory statute is one which renders the acts to which it refers void unless its provisions are complied