cannot prevail against provisions of
the permanent part of the constitu-
tion.18 Also, it must be remembered
that such ordinances are usually in-
tended to have only a temporary or
transient operation, and therefore, in
such cases, the arrangements made by
them may be changed by the legis-
lature when duly constituted, under
the new constitution.19
"The provision of a schedule that
all prior laws not inconsistent with
the constitution shall continue will
ordinarily be given effect,20 but a
statute which is directly contrary to a
provision of the constitution is not
saved by such schedule provision.21
18 Mo. — State ex rel. Aquamsi Land Co. v.
Hostetter, 336 Mo. 391, 79 S.W. 2d 463
(1934).
Tex.— Bass v. Albright, Civ. App., 59 S.W. 2d
891 (1933) (error refused).
Ordinance held valid as not conflicting.
Tex. — Bass v. Albright, supra.
19 Ala. — Duke v. Cahawba Nav. Co., 10 Ala.
82, 44 Am. D. 472 (1846).
Ohio — State v. Taylor, 15 Ohio St. 137.
Tex.— Caudle v. Welden, 32 Tex. 355.
20 Right of action.
Provision of schedule of constitution to
extend and continue in force all laws in force
in territory at time of admission of state into
union which were not repugnant to constitu-
tion and not locally inapplicable, included
statute giving right of action to recover dam-
ages for wrongful death.
Okl.— F. W. Woolworth Co. v. Todd, 204
Okl. 532, 231 P. 2d 681 (1951).
21 Mich. — Dearborn Township v. Dail, 334
Mich. 673, 55 N.W. 2d 201.
Pa. — Gallagher v. Silver Brook Coal Co., 61
Pa. Super 1 (1915).
New provision as controlling.
General provisions in schedule of new state
constitution continuing previous law in effect
must yield to constitutional provision stating
that powers of counties and municipal cor-
porations formed for local government shall
include, not only those granted in express
terms, but also those of necessary or fair im-
|
However, a suit to enforce a tax lien
may be saved from any unconstitu-
tionality by a schedule of the consti-
tution providing that all laws incon-
sistent with the constitution should
remain in full force and effect until
a specified date, and that all taxes
due and owing prior to the adoption
of the constitution should continue to
be valid as though the constitution
had not been adopted."22
HOW "THE SCHEDULE" IS USED IN
SOME STATE CONSTITUTIONS
The following is a list of those states
whose constitutions contain specific
scheduling provisions. The number in
parentheses after the state refers to the
relevant constitutional article. For all
the other states in the list "The Sched-
ule" is a separate article of the constitu-
tion but has no specific number. It is
identified merely by its title "Schedule,"
and is placed at the end of the consti-
tution.
plication, or incident to powers expressly
conferred or essential thereto.
N.J. — City of Newark v. Charles Realty Co.,
9 N.J. Super. 442, 74 A. 2d 630 (1950).
22 Mo, — Collector of Revenue v. Parcels of
Land Encumbered with Delinquent Taxes,
362 Mo. 1054, 247 S.W. 2d 83.
CASES
Starr v. Hagglund, 374 P. 2d 316 (Alaska
1962).
Aquamsi Land Co. v. Hostetter, 336 Mo. 391,
79 S.W. 2d 463 (1934).
Bass v. Albright, 59 S.W. 2d 891 (Tex. 1933).
Mann v. Osborn, 128 Okla. 32, 261 P. 146
(1927).
Willis v. Kalmback, 109 Va. 475, 64 S.E. 342
(1909).
ARTICLE
Bebout, Launching a New Constitution, in
model state constitution 51 (5th ed.
1948). Ibid., Article XIII (Commentary, pp.
112-116).
367
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