Klatt v. Wayne Probate Judge

(after stating the facts). The learned counsel for both parties concede that the enabling section 4 of the act is void. There is nothing in the title to the act to indicate any purpose on the part of the legislature to pass an enabling act to validate void sales made under an unconstitutional act. The provisions of section 4 are entirely foreign to the purpose mentioned in the title. We therefore concur in the conclusion reached by counsel that section 4 is void under the constitutional provision *206above cited. The case therefore presents two questions:

1. Can the act be sustained as a valid, complete act with section 4 eliminated ? Under the rule approved by this court in Robison v. Miner, 68 Mich. 549 (37 N. W. 21), and Mathias v. Cramer, 73 Mich. 5 (40 N. W. 926), the question must be answered in the affirmative. Without section 4 the act is complete. There is no necessary connection between that section and the other provisions of the act. The case clearly falls within the rule stated, by Mr. Justice Long:

“ An unconstitutional provision or section in a statute, will not affect the other provisions of the law unless they are essentially and inseparably connected in substance.” Mathias v. Cramer, supra.

See, also, Cooley on Constitutional Limitations (7th. Ed.), p. 246.

2. Does the act limit the authority of the probate court to private sales where the value of the real estate exceeds $500? But for Act No. 261, Pub. Acts 1905, the respondent’s contention should undoubtedly be sustained. Act No. 209, Pub. Acts 1909, requires the proceedings under it to be in accordance with the provisions of chapters 243 and 244 of the Compiled Laws of 1897, when not inconsistent therewith. By section 9166, chap. 244, the probate judge was authorized to license private sales where the value of the real estate did not exceed $500. Act No. 261, Pub. Acts 1905, amended this section and eliminated this limitation, and authorized private sales of real estate regardless of their value. When, therefore, the act of 1909 was passed there was no limitation of value as a condition to private sales. The amendment became a part of the original act, and subsequent acts will be construed as having reference to the act as amended, although the statute does not in express terms include amendatory acts. Hatch v. Calhoun Circuit Judge, 127 Mich. 174 (86 N. W. 518); People v. Railroad Co., 145 Mich. 140 (108 N. W. 772).

*207It follows that the probate court had authority to authorize this sale, and the judgment is affirmed. No costs will be allowed.