Report No. 60

13.10. Function of severability clauses.-

"Severability" clauses, broadly speaking, provide that if any part of the Act is found to be invalid, the remainder of the Act should nevertheless be upheld. As has been pointed out, the authority of a court to eliminate the invalid elements and yet to sustain the valid elements, are not really derived from the Legislature, but from powers inherent in the judiciary. The utility of the severability clause lies in its replacing the presumption which would be otherwise applicable-that the statute was meant to be indivisible. This presumption is replaced by a presumption in favour of severability.1 As Justice Brandeis stated, in case often cited, such a clause provides a rule of construction, which may aid in determining the legislative intent, "but it is an aid merely; not an inexorable command".2

1. William v. Standard Oil Co., (1929) 73 Lawyers Ed. 287.

2. Dorchy v. State of Kansas, (1924) 68 Lawyers Ed. 686.