Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1875-10-03
MEMPHIS TENN, SUNDAY, OCTOBER 3. 1875.

constitutional aud o. no effect, thai the legiS-
lature could d.lszste no such power 10 Ju,'
tees Of the peace But whl - this Is 80 Rs tt
that pert Of the statute intiIcuug ImpTison.
meui, what effect III this have upon tha'
clause $40 posing the Hue2 The statute may be
cun~tIt tuil9nal ln y 1t and uneOnhlltatonal ~
part. save Judge Cooley IN ms h0Tk o., IgL,'
stitutt5ndl LtHatatt0H, pages l.. anu 10
Where. therefore, part OF statute Us qn'
constitutional that p1ri does no. a1thDIize th-
courts 10 declare the remainder void also an.
less al the provisions are connected in subject
matte, depending on each other, operating
together for the same purpose or otherwise 50
connected toge tler III heshIhg Lhat IL cAhno, =,
be presumed the legislature would
have passed the one without the
other. Iae constitutional and uncon-
stitutional provs sious may even be CONTAINED
in the SAM section, and yet be uerfectly dis
unct and SepaIa able, so that the nrst may
stand though the last fall. The point is not
whether they are contained in the same sec
ton FOR the distribution into section is pure
~ artificial; but whether they are essentially y
and inEeparably connected IN substance II
when the unconstitutional portion is stricken
out He continues that which remains Is
complete in Itself and CRpabe Of being eXeeu-
ted wholly independent OF that Wnich was
rejected, . must be sustained. 7 he dlmculty
Is IN determining Wh5ther the good and Dad
parts OF the ) atuJe are capable o being sep
srated, and the tact in practice must neces"
ssrily be separated since tn justice must IN
let the fine or impose the impTison nent, but
cannot do DOih.-[S l Bishop, Or. Law. sec.
72).l The bad portion may be stricken out
and perfectly caOable of being executed inde-
pendent of that which was rejected. Hen e
Inc principle is eliminated that the conrtitu-
tiona anu unconstitutional provisions may be
found in the same act, and that the latter
will ia no wise impair the Integrity Of the
former where they are entirt ly separate and
distinct IN their natures. We then
conclude that the leg stature intended
10 invest justices Of the peace with the power
TO take exclusive cognizance of these cases
that the legislature, in 50 far as IT attempted
TO empower them TO I'm pose the imprison-
ment prescribed, acted without authority and
in violation of the constitution; that the leg
islature had the power, however, to authorize
justices of the peace to infiict the nne pre-
ssnbed. This opinion necessarily involves
the conclusion that Vagraucy is not now an
inuictable misdemeanor. And holding that
II Il the duty of the judiciary TO carry into
effect the legislative will, or SO much tnereof'
as is not in conflict with the constitution, we
sustain the motion to quash in this case.
In accordance with this opinion the follow
ing, tried before magistrates for yagrancy and
committed to the criminal court for indict-
nent, etc, were discharged fTOm the custody
of the sheriff: Nelson Chapman dfGs John
Pamplan), John Bryan, Thomas Ward, Chas.
Thomas johnson, Ed Dwyer, Thomas NOonan,
Rouse Taylor, James Roberts, Norah Coyan,
Rosa Brown, Ellen Stowe, Lizzie Williams,
Mary Anderson, Yorkshire BIZ. Judge Flip
pin lectured the untOrtunates before turning
them loose, advising them to go to work and
labor indusTriOusly, otherwise they would be
sent TO the island. We understand the case
will be taken to the supreme court Tor lulI
SOAisti uINiO-A - the statute,