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

By an 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 an election for Alderman; 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 it 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 rendered.

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."

Now 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 received any benefit from them and inasmuch as the services were 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.