Page:North Dakota Reports (vol. 2).pdf/307

 lation. We would not give it our sanction, however it might be buttressed by authority,

Can the proviso be stricken out and the act sustained without it? If, in striking out the proviso, the effect is to extend the provisions of the law over counties having expensive buildings, the legislative will is disregarded. If, on the other hand, it is said that the law will reach no further after the provision is eliminated than with the proviso undisturbed, then the act is special legislation, because it is too restricted in its operation. To include such counties is to defy the will of the legislature as expressed in their statute; to exclude them is to defy the will of the people as expressed in their fundamental law. Here again the voice of reason and the voice of authority are one. Nichols v. Walter, 37 Minn. 264, 33 N. W. Rep. 800; Railroad Co. v. Markley, 45 N. J. Eg. 139, 16 Atl. Rep. 436; State v. Sauk Co., 62 Wis. 376-379, 22 N. W. Rep. 572. Said the court in the last case: "It was argued by the counsel for the appellant that although the proviso in the act of 1881 is invalid it does not vitiate the whole act, and that the residue may be upheld asa valid law. The rule is in such cases that unless the void part was the compensation for or inducement to the valid portion, so that the whole act, taken together, warrants the belief that the legislature would not have enacted the valid portions alone, such portions will be operative; otherwise not. * * * In the present case there is no room for the application of this tule, for the reason that the legislature has not enacted that the statute should extend to Grant county, but has expressed a contrary intention. By no possible construction can the statute be held to be operative in Grant county, and it is essential to its validity that it be operative in that as well as in every other county of the state.”

It was urged in the appellants’ brief that the act was repugnant to § 70 of article 2 of the state constitution, providing that “in all other cases where a general law can be made applicable, no special law shall be enacted.” The point appears to have been abandoned on the oral argument, but we will notice it. There are two conclusive answers to this position. In the first place it applies only to cases other than those previously enumerated