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$ 91. Elsewhere.- We have just seen that a statute will, when possible, be so interpreted as to harmonize with the written constitution. And in other connections the doctrine of pro

" nouncing 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

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,


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Ante, S 90.

est in, and is not affected by, the pro: Ante, SS 12, 16, 33, 37.

vision. S. v. MoNulty, 7 N. Dak. 169, * Fletcher v. Peck, 6 Cranch, 87; 73 N. W. R. 87; P. v. Rensselaer, 15

v. Williams, 9 Gill & J. Wend. 113; Stickrod v. Com., 86 Ky. 365

, 384, (31 Am. D. 72;] 1 Kent, 285, 5 S. W. R. 580; S. v. Snow, 3 R. T. Com. 448; Bailey v. Philadelphia, etc. 64; Smith v. Inge, 80 Ala. 283; Black RR Co., 4 Harring. (Del.) 389, [44 v. Fleece, 2 Lea (Tenn.), 566; Gilbreath Am. D. 593. But no one can take ad. v. Gilliland, 95 Tenn. 383, 32 S. W. R. vantage of an unconstitutional pro- 250.] vision in a statute who has no inter

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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 ex-
ist 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 considera-
tions will authorize a court to nullify a statute as unconstitu-
tional. 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 consti-
tution' as imposing a limitation upon the legislative power."

1 Cotten v. Leon, 6 Fla. 610, 618, Then, too, the judiciary ought to ac-
opinion by Dupont, J.; Cheney v. cord to the legislature as much pu-
Jones, 14 Flan 587; Cutts v. Hardee, rity of purpose as it would claim for
38 Ga. 350; P. v. San Francisco, etc. itself; as honest a desire to obey the
R. R. Co., 35 Cal. 606; Lafayette v. constitution, and, also, a high capac-
Jenners, 10 Ind. 70; Gillespie v. S., 9 ity to judge of its meaning. Hence,
Ind. 380; S. v. Cooper, 5 Blackf. 258; its action is entitled to a respect
Santo v. S., 2 Iowa, 165, [63 Am. D. which should beget caution in at-
487;] Baltimore v. S., 15 Md. 376; tempting to set it aside.” Brown v.
Tyler v. P., 8 Mich. 320; Rich v. Flan- Buzan, 24 Ind. 194, 197; [Life Ins. Co.
ders, 39 N. H. 304; Boston v. Cum. v. Ray, 50 Tex. 519; Lawton v. Waite,
mins, 16 Ga. 102; Inkster v. Carver, 79 N. W. R 321 (Wis.); McGovern v.
16 Mich. 484; Astor v. New York, 69 Hope, 42 Atl. R. 830 (N. J.); Went-
N. Y. 567, 575; Kerrigan v. Force, 68 worth v. Racine Co., 99 Wis. 26, 74
N. Y. 381; Pennsylvania R. R. Co. v. N. W. R. 551; Cummings v Hyatt, 54
Riblet, 66 Pa. St. 164, (5 Am. R. 360;) Neb. 635, 74 N. W. R. 313; Lyman v.
Territory v. Lee, 2 Mont. 124; Chi. Gramercy Club, 50 N. Y. Sup. 1004;
cago, etc. R. R. Co. v. Smith, 62 Ill. S. v. Marion Co., 128 Mo. 427, 30 S. W.
268, (14 Am. R. 99;] Gutman v. Vir. R. 103.)
ginia Iron Co., 5 W. Va. 22; Osburn 2 Ante, SS 38–41. [A statute is not
v. Staley, 5 W. Va. 85, [13 Am. R. 640;] unconstitutional because it is unjust.
Smithee v. Garth, 33 Ark. 17; In re Praigg v. Western Co., 143 Ind. 358,
Clinton Street, 2 Brews. 599; Coyne 42 N. E. R. 750. The burden is on him
v. Weaver, 84 N. Y. 386. In a Cali- who alleges unconstitutionality to
fornia case Sanderson, J., observed: prove it beyond a doubt. 8. v. Ad-
"It is well settled that every act de dington, 77 Mo. 110.
liberately passed by the legislature 3 Davis v. S., 3 Lea, 376, 378; Stock-
must be regarded by the courts as ton, etc. R. R. Co. v. Stockton, 41 Cal.
valid, unless it is clearly and mani. 147; Beyman v. Black, 47 Tex. 558;
festly repugnant to some provision Brown v. Fifield, 4 Mich. 322.
of the constitution.” P. v. Sassovich, 4 Stockton, etc. R. R. Co. v. Stock-
29 Cal. 480, 482. Said Frazer, J., in ton, supra, p. 162; (Lommen v. Min-
Indiana: “The courts should never neapolis Co., 65 Minn. 196, 68 N. W.
strike down a statute unless its con- R. 53.]
flict with the constitution is clear.

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$ 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,

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, SS 4, 11a, 89.

Morrison v. Bachert, 112 Pa. St. 322, 3P. v. Potter, 47 N. Y. 375; Spring. 5 Atl. R. 739; Com. v. Clark, 7 W. & field v. Edwards, 84 Ill. 626, 643; P. v. S. 127; Henshaw v. Foster, 9 Pick. Fancher, 50 N. Y. 288, 291; Daily v. 312; St. Louis R. R. Co. v. Evans, 83 Swope, 47 Miss. 387; Hess v. Pegg, 7 Mo. 307.] Nev. 23; Leavenworth v. Miller, 7 • P. v. Flagg, 46 N. Y. 401; Page v. Kan. 479, [12 Am. R. 425;) Walker v. Allen, 58 Pa. St. 338, [98 Am. D. 272;} Cincinnati, 21 Ohio St. 14, [8 Am. R. Bushnell v. Beloit, 10 Wis. 195; P. v. 24;) Brown v. Fifield, 4 Mich. 322; P. Coleman, 4 Cal. 46, [60 Am. D. 581;] 0. Wall. 88 III. 75; P. r. Gardner, 45 McMillen v. Lee, 6 Iowa, 391; In re N. Y. 812.

Clinton Street, 2 Brews. 599; Lafay. * Carroll v. S., 58 Ala. 396. See Wol. ette, etc. R. R. Co. v. Geiger, 34 Ind. cott v. Wigton, 7 Ind. 44.

185; Leavenworth v. Miller, 7 Kan. 4 Manly v. S., 7 Md. 135; Greencas- 479, [12 Am. R. 425:] Walker v. Cintle Township v. Black, 5 Ind. 557: S. cinnati, 21 Ohio St. 14; Cotten v. Leon, v. Mace, 5 Md. 337; P. v. Fancher, 6 Fla. 610, 619; Woods' Appeal, 75 Pa. supra; Cronise v. Cronise, 54 Pa. St. St. 59. (Unlike that of the United 255. (Narrow and technical reasoning States, the constitution of the state is not to be applied to constitutions, is not a grant of power. The state inasmuch as they are instruments legislature is to be regarded as framed by the people for themselves, possessing inherently all power, and “ upon which," as charts, “every man, the constitution is a limit, not a learned or unlearned, may be able to grant. Henley v. S., 98 Tenn. 681; trace the leading principles of gov- Stratton v. Morris, 98 Tenn. 511; R. R. ernment." Cooley, Const. Lim. 59; 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 retro spective 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

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1 Indiana v. Agricultural Soc., 85 v. Balph, 111 Pa. St. 365, 3 Atl. R. 220; Pa. St. 357; Herman v. Phalen, 14 P. v. May, 9 Colo. 80, 10 Pac. R. 641; How. (U. S.) 79; League v. De Young, P. v. Chapman, 61 Cal. 262; S. v. 11 How. (U. S.) 185. And see Com. v. Closkey, 5 Sneed, 484; Luehrman v. Collis, 10 Phila. 430; Doddridge v. Taxing Dist., 3 Lea (Tenn.), 431.] Stout, 9 W. Va. 703.

5 Hills v. Chicago, 60 Ill. 86; Spring. 2 In re Lee & Co.'s Bank, 21 N. Y. 9. field v. Edwards, 84 IIL 626, 643. [The rule that a law is, in the ab- 6 P. v. Potter, 47 N. Y. 375; S. v. sence of clearly apparent intent to Parsons, 11 Vroom, 1; S. v. Newark, the contrary, prospective only, ap 11 Vroom, 71, 550. [The same rules plies to constitutions. 8. v. Greer, 78 of construction apply to constituMo. 188; Leete v. State Bank, 115 Mo. tions as to statutes. P. v. Potter, 47 184, 21 S. W. R. 788.]

N. Y. 375; In re N. Y. District R. R. 3 P. v. Gies, 25 Mich. 83; P. v. Fan. Co., 42 Hun, 621; Oakland Co. v. Hil. cher, 50 N. Y. 288.

ton, 69 Cal. 479, 11 Pac. R. 3.] 4 Beardstown v. Virginia, 76 Ill. 34; ? Ante, SS 11a, note, 14. 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. 1 Green 1. Aker, 11 Ind. 223. $ 14; Gilbert v. U. S., 8 Wall. 358;

2 Const. U. S., art. 3, & 2; Kentucky Parish v. U. S., 8 Wall. 489. [Constiv. Obio, 24 How. (U. S.) 66.

tutional provisions which are pro3 Jackson v. Collins, 16 B. Monr. hibitive are self-executing, proprio 214; S. v. Weston, 6 Neb. 16; Com. v. vigore, and requiring no legislative Harding, 87 Pa St. 343; Ex parte S., action to execute them. Oakland 62 Ala 231; Com. v. Collis, 10 Phila Co. v. Hilton, 69 Cal 479, 11 Pac. R. 430; Doddridge v. Stout, 9 W. Va 8; Householder v Kansas City, 83 703, 705. See, as illustrative, ante, Mo. 488.]


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