CHAPTER XII.

THE INTERPRETATION OF WRITTEN CONSTITUTIONS.

§ 91. Elsewhere. We have just seen that a statute will, when possible, be so interpreted as to harmonize with the written constitution.1 And in other connections the doctrine of pronouncing a statute void, in whole or in part, when in conflict with the constitution, is explained. Thus, we saw that,

Duty of courts. When a statute is void, as in conflict with a constitutional inhibition, the courts should pronounce it so. But

Duty of legislature.- The members of the legislature are, equally with the judges, sworn to support the constitution; if not so uniformly learned in the law, many of them are; and it is no more permissible for the one body to pass an unconstitutional enactment than for the other to enforce it. So that

Legislative decision.— The decision of the legislature on the meaning and effect of the constitution, necessarily involved in the making of a statute, should be respected by the courts when afterward they are required to determine whether or not it is constitutional. Practically, judges differ on this question; some manifesting little or no regard for the opinions of the law-makers. Greater numbers, with a higher respect for a co-ordinate branch of the government, refuse to annul a statute as unconstitutional until, after giving full weight to the legislative decision, they discern distinctly and affirmatively that it is wrong. And such is plainly, in reason, and overwhelmingly in weight of authority,

1 Ante, § 90.

Ante, §§ 12, 16, 33, 37. Fletcher v. Peck, 6 Cranch, 87; University v. Williams, 9 Gill & J. 365, 384, [31 Am. D. 72;] 1 Kent, Com. 448; Bailey v. Philadelphia, etc. R. R. Co., 4 Harring. (Del.) 389, [44 Am. D. 593. But no one can take advantage of an unconstitutional provision in a statute who has no inter

est in, and is not affected by, the provision. S. v. McNulty, 7 N. Dak. 169, 73 N. W. R. 87; P. v. Rensselaer, 15 Wend. 113; Stickrod v. Com., 86 Ky. 285, 5 S. W. R. 580; S. v. Snow, 3 R. L. 64; Smith v. Inge, 80 Ala. 283; Black v. Fleece, 2 Lea (Tenn.), 566; Gilbreath v. Gilliland, 95 Tenn. 383, 32 S. W. R. 250.]

the true rule. Said a learned judge: "Instances are not lacking to show that the judiciary, in essaying to shield the constitution against the presumed aggressions of the legislature, has itself become the greater aggressor." And he added: "If there exist upon the mind of the court a reasonable doubt, that doubt must be given in favor of the law." Again,

§ 91a. Particular provision.-No mere general considerations will authorize a court to nullify a statute as unconstitutional. Therefore he who asks such judgment should point out the particular provision or clause violated. "It will not do," said Wallace, J., "to talk about the 'spirit of the constitution' as imposing a limitation upon the legislative power.'

$92. Interpreted similarly to statutes.- Our constitutions, being, like statutes, written instruments and laws,' are, in the main, similarly interpreted. There are minor differences sometimes recognized; as,

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Less technical.-Partaking more of the nature of popular writings, it is not unfrequently observed that meanings less technical may be given to their words and phrases.*

State and United States, contrasted. The constitution of the United States consists chiefly in a grant of enumerated powers; hence, in interpreting it, the courts presume the existence of no power not expressly or impliedly conferred. On the other hand, a state constitution proceeds on the idea that all legislative functions are in the legislature; therefore, in its interpretation, the powers not taken away by the United States constitution are presumed, except as expressly or by implication denied." In reason, these propositions require, at least, the limitation that, where the power in controversy relates to international intercourse, to jurisdiction on the high seas, or to any other thing beyond the state territory, its existence among the functions of

Ante, $$ 4, 11a, 89.

Morrison v. Bachert, 112 Pa. St. 322, 5 Atl. R. 739; Com. v. Clark, 7 W. & S. 127; Henshaw v. Foster, 9 Pick. 312; St. Louis R. R. Co. v. Evans, 85 Mo. 307.]

'P. v. Potter, 47 N. Y. 375; Springfield v. Edwards, 84 Ill. 626, 643; P. v. Fancher, 50 N. Y. 288, 291; Daily v. Swope, 47 Miss. 367; Hess v. Pegg, 7 Nev. 23; Leavenworth v. Miller, 7 Kan. 479, [12 Am. R. 425;] Walker v. Cincinnati, 21 Ohio St. 14, [8 Am. R. 24;] Brown v. Fifield, 4 Mich. 322; P. v. Wall. 88 Ill. 75; P. v. Gardner, 45 N. Y. 812. 'Carroll v. S., 58 Ala. 396. See Wol- ette, etc. R. R. Co. v. Geiger, 34 Ind. cott v. Wigton, 7 Ind. 44.

Manly v. S., 7 Md. 135; Greencastle Township v. Black, 5 Ind. 557: S. v. Mace, 5 Md. 337; P. v. Fancher, supra; Cronise v. Cronise, 54 Pa. St. 255. [Narrow and technical reasoning is not to be applied to constitutions, inasmuch as they are instruments framed by the people for themselves, "upon which," as charts, "every man, learned or unlearned, may be able to trace the leading principles of government." Cooley, Const. Lim. 59;

P. v. Flagg, 46 N. Y. 401; Page v. Allen, 58 Pa. St. 338, [98 Am. D. 272;] Bushnell v. Beloit, 10 Wis. 195; P. v. Coleman, 4 Cal. 46, [60 Am. D. 581;] McMillen v. Lee, 6 Iowa, 391; In re Clinton Street, 2 Brews. 599; Lafay

185; Leavenworth v. Miller, 7 Kan. 479, [12 Am. R. 425;] Walker v. Cincinnati, 21 Ohio St. 14; Cotten v. Leon, 6 Fla. 610, 619; Woods' Appeal, 75 Pa. St. 59. [Unlike that of the United States, the constitution of the state is not a grant of power. The state legislature is to be regarded as possessing inherently all power, and the constitution is a limit, not a grant. Henley v. S., 98 Tenn. 681; Stratton v. Morris, 98 Tenn. 511; R. R. Co. v. Hicks, 9 Bax. 446.]

the United States, and non-existence among those of the state, should be the prima facie presumption.

§ 92a. Instances of same rules as for statutes.- Some instances of interpreting a constitution by the same rules as a statute are

Retrospective. Commonly a constitutional provision is not applied to annul what a prior statute, valid when enacted, had established, however contrary to its newly-ordained rule. Yet often doubtless more frequently than with statutes — a retrospective application will be required to carry out the evident intention of the makers, or the obvious reason for a clause, and then such application will be made. And

Intent of makers-History, etc.-The rule that the intent of the makers, as appearing on the face of the particular provision and the entire instrument, illumined by pertinent historical facts and surroundings, yet not by individual declarations, such as the debates in the convention which framed it, shall prevail over the latent meanings of words and phrases, but not to the disregard of the true import of what is plain," is applied to constitutions the same as to statutes."

§ 92b. Requiring legislation or not.-As already seen,' some constitutional provisions bind only the legislative conscience until statutes to carry them out are enacted, and others operate at once as laws. The question depends on their terms and the subject. A plain instance is a declaration that "the privilege of the debtor to enjoy the necessary comforts of life

Indiana v. Agricultural Soc., 85 Pa. St. 357; Herman v. Phalen, 14 How. (U. S.) 79; League v. De Young, 11 How. (U. S.) 185. And see Com. v. Collis, 10 Phila. 430; Doddridge v. Stout, 9 W. Va. 703.

2 In re Lee & Co.'s Bank, 21 N. Y. 9. [The rule that a law is, in the absence of clearly apparent intent to the contrary, prospective only, applies to constitutions. S. v. Greer, 78 Mo. 188; Leete v. State Bank, 115 Mo. 184, 21 S. W. R. 788.]

v. Balph, 111 Pa. St. 365, 3 Atl. R. 220;
P. v. May, 9 Colo. 80, 10 Pac. R. 641;
P. v. Chapman, 61 Cal. 262; S. v.
Closkey, 5 Sneed, 484; Luehrman v.
Taxing Dist., 3 Lea (Tenn.), 431.]

5 Hills v. Chicago, 60 Ill. 86; Springfield v. Edwards, 84 Ill. 626, 643.

6 P. v. Potter, 47 N. Y. 375; S. v. Parsons, 11 Vroom, 1; S. v. Newark, 11 Vroom, 71, 550. [The same rules of construction apply to constitutions as to statutes. P. v. Potter, 47 N. Y. 375; In re N. Y. District R. R.

P. v. Gies, 25 Mich. 83; P. v. Fan- Co., 42 Hun, 621; Oakland Co. v. Hilcher, 50 N. Y. 288. ton, 69 Cal. 479, 11 Pac. R. 3.] 7 Ante, §§ 11a, note, 14.

4 Beardstown v. Virginia, 76 Ill. 34; Taylor v. Taylor, 10 Minn. 107; [Com.

shall be recognized by wholesome laws;" the courts that enforce laws, not make them, cannot give effect to this provision without legislative aid. On the other hand, it is equally plain that no legislation is necessary to enable the supreme court of the United States to take original jurisdiction of a suit between two states, under the clause of the constitution that the judicial power shall extend "to controversies between two or more states." If some other cases are less clear, still the principle which controls these will determine how the result should be." § 92c. Other doctrines,- applicable to the interpretation alike of statutes and constitutions,-appear in the discussions in other chapters. The foregoing are sufficient here as explaining the similarities and differences.

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1 Green v. Aker, 11 Ind. 223. 2 Const. U. S., art. 3, § 2; Kentucky . Ohio, 24 How. (U. S.) 66.

'Jackson v. Collins, 16 B. Monr. 214; S. v. Weston, 6 Neb. 16; Com. v. Harding, 87 Pa. St. 343; Ex parte S., 52 Ala. 231; Com. v. Collis, 10 Phila. 430; Doddridge v. Stout, 9 W. Va. 703, 705. See, as illustrative, ante,

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§ 14; Gilbert v. U. S., 8 Wall. 358; Parish v. U. S., 8 Wall. 489. [Constitutional provisions which are prohibitive are self-executing, proprio vigore, and requiring no legislative action to execute them. Oakland Co. v. Hilton, 69 Cal. 479, 11 Pac. R. 3; Householder v. Kansas City, 83 Mo. 488.]