executive department, where its officers have been called upon, under the responsibilities of their official oaths, to inaugurate a new system, and where it is to be presumed they have carefully and conscientiously weighed all considerations, and endeavored to keep within the letter and the spirit of the Constitution. If the question involved is really one of doubt, the force of their judgment, especially in view of the injurious consequences that may result from disregarding it, is fairly entitled to turn the scale in the judicial mind.1 Where, however, no ambiguity or doubt appears in the law, we think the same rule obtains here as in other cases, that the court should confine its attention to the law, and not allow extrinsic circumstances to introduce a difficulty where the language is plain. To allow force to a practical construction in such a case would be to suffer manifest perversions to defeat the evident purpose of the lawmakers. "Contemporary construction . . . can never abrogate the text; it can never fritter away its obvious sense; it can never narrow down its true limitations; it can never enlarge its natural boundaries."2 While we conceive this to be the true and only safe rule, we shall be obliged to confess that some of the cases appear, on first reading, not to have observed these limitations. In the case of Stuart v. Laird,3 above referred to, 1 Union Insurance Co. v. Hoge, 21 How. 35, 66; Edward's Lessee v. Darby, 12 Wheat. 206; Hughes v. Hughes, 4 T. B. Monr. 42; Chambers v. Fisk, 22 Tex. 504; Britton v. Ferry, 14 Mich. 53; Bay City v. State Treasurer, 23 Mich. 499; Westbrook v. Miller, 56 Mich. 148; Plummer . Plummer, 37 Miss. 185; Burgess v. Pue, 2 Gill, 11; State v. Mayhew, 2 Gill, 487; Baltimore v. State, 15 Md. 376; Coutant v. People, 11 Wend. 511; People v. Dayton, 55 N. Y. 367; Farmers' and Mechanics' Bank v. Smith, 3 S. & R 63; Norris v. Clymer, 2 Pa. St. 277; Moers v. City of Reading, 21 Pa. St. 188; Washington v. Page, 4 Cal. 388; Surgett v. Lapice, 8 How. 48; Bissell v. Penrose, 8 How. 317; Troup v. Haight, Hopk. 239; United States v. Gilmore, 8 Wall. 330; Brown v. United States, 113 U. S. 568; Hedgecock v. Davis, 64 N. C. 650; Lafayette, &c. R. R. Co. v. Geiger, 34 Ind. 185; Bunn v. People, 45 Ill. 397; Scanlan v. Childs, 33 Wis. 663; Faribault v. Misener, 20 Minn. 396; State v. Glenn, 18 Nev. 34; State v. Kelsey, 44 N. J. L. 1. Where the constitution has been construed by the political departments of the government in its application to a political question, the courts will not only give great consideration to their action, but will generally follow the construction implicitly. People v. Supervisors of La Salle, 100 Ill. 495. The passage of an act by the first State legislature is a contemporary interpretation of a constitutional clause in pari materia of much weight. Cooper Mf'g Co. v. Ferguson, 113 U. S. 727; People v. Wright, 6 Col. 92. Where under color of authority long practical construction has sanctioned certain appointments by the legislature, it will control. Hovey v. State, 21 N. E. Rep. 890 (Ind.); Biggs v. McBride, 21 Pac. Rep. 878 (Oreg.). The executive construction of treaties is entitled to a similar respect. Castro v. De Uriarte, 16 Fed. Rep. 93. 2 Story on Const. § 407. And see Evans v. Myers, 25 Pa. St. 116; Sadler v. Langham, 34 Ala. 311; Barnes v. First Parish in Falmouth, 6 Mass. 401; Union Pacific R. R. Co. v. United States, 10 Ct. of Cl. Rep. 548; s. c. in error, 91 U. S. 72. 8 1 Cranch, 299. the practical construction was regarded as conclusive. To the objection that the judges of the Supreme Court had no right to sit as circuit judges, the court say: "It is sufficient to observe that practice and acquiescence under it for a period of several years, commencing with the organization of the judicial system, affords an irresistible answer, and has indeed fixed the construction. It is a contemporary interpretation of the most forcible nature. This practical exposition is too strong and obstinate to be shaken or controlled. Of course the question is at rest, and ought not now to be disturbed." This is certainly very strong language; but language very similar in character was used by the Supreme Court of Massachusetts in one case where large and valuable estates depended upon a particular construction of a statute, and very great mischief would follow from changing it. The court said that, "although if it were now res integra, it might be very difficult to maintain such a construction, yet at this day the argument ab inconvenienti applies with great weight. We cannot shake a principle which in practice has so long and so extensively prevailed. If the practice originated in error, yet the error is now so common that it must have the force of law. The legal ground on which this provision is now supported is, that long and continued usage furnishes a contemporaneous construction which must prevail over the mere technical import of the words." Language nearly as strong was also used by the Supreme Court of Maryland, where the point involved was the possession of a certain power by the legislature, which it had constantly exercised for nearly seventy years.2 "1 It is believed, however, that in each of these cases an examination of the Constitution left in the minds of the judges sufficient doubt upon the question of its violation to warrant their looking elsewhere for aids in interpretation, and that the cases are not in conflict with the general rule as above laid down. Acquiescence for no length of time can legalize a clear usurpation of power, where the people have plainly expressed their will in the Constitution, and appointed judicial tribunals to enforce it. A power is frequently yielded to merely because it is claimed, and it may 1 Rogers v. Goodwin, 2 Mass. 475. See also Fall v. Hazelrigg, 45 Ind. 576; Scanlan v. Childs, 33 Wis. 663. 2 State v. Mayhew, 2 Gill, 487. In Essex Co. v. Pacific Mills, 14 Allen, 389, the Supreme Court of Massachusetts expressed the opinion that the constitutionality of the acts of Congress making treasury notes a legal tender ought not to be treated by a State court as open to discussion after the notes had practically constituted the currency of the country for five years. At a still later day, however, the judges of the Supreme Court of the United States held these acts void, though they afterwards receded from this position. be exercised for a long period, in violation of the constitutional prohibition, without the mischief which the Constitution was designed to guard against appearing, or without any one being sufficiently interested in the subject to raise the question; but these circumstances cannot be allowed to sanction a clear infraction of the Constitution. We think we allow to contemporary and practical construction its full legitimate force when we suffer it, where it is clear and uniform, to solve in its own favor the doubts which arise on reading the instrument to be construed.2 1 See further, on this subject, the case of Sadler v. Langham, 34 Ala. 311, 334; People v. Allen, 42 N. Y. 378; Brown v. State, 5 Col. 525; Hahn v. United States, 14 Ct. of Cl. 305; Swift v. United States, 14 Ct. of Cl. 481. Practical acquiescence in a supposed unconstitutional law is entitled to much greater weight when the defect which is pointed out relates to mere forms of expression or enactment than when it concerns the substance of legislation; and if the objection is purely technical, long acquiescence will be conclusive against it. Continental Imp. Co. v. Phelps, 47 Mich. 299. 2 There are cases which clearly go further than any we have quoted, and which sustain legislative action which they hold to be usurpation, on the sole ground of long acquiescence. Thus in Brigham v. Miller, 17 Ohio, 446, the question was, Has the legislature power to grant divorces ? The court say: "Our legislature have assumed and exercised this power for a period of more than forty years, although a clear and palpable assumption of power, and an encroachment upon the judicial department, in violation of the Constitution. To deny this longexercised power, and declare all the consequences resulting from it void, is pregnant with fearful consequences. If it affected only the rights of property, we should not hesitate; but second marriages have been contracted and children born, and it would bastardize all these, although born under the sanction of an apparent wedlock, authorized by an act of the legislature before they were born, and in consequence of which the relation was formed which gave them birth. On account of these children, and for them only, we hesitate. And in view of this, we are constrained to content ourselves with simply declaring that the exercise of the power of granting divorces, on the part of the legislature, is unwarranted and unconstitutional, an encroachment upon the duties of the judiciary, and a striking down of the dearest rights of individuals, without authority of law. We trust we have said enough to vindicate the Constitution, and feel confident that no department of State has any disposition to violate it, and that the evil will cease." So in Johnson v. Joliet & Chicago Railroad Co., 23 Ill. 202, 207, the question was whether railroad corporations could be created by special law, without a special declaration by way of preamble that the object to be accomplished could not be attained by general law. The court say: "It is now too late to make this objection, since, by the action of the general assembly under this clause, special acts have been so long the order of the day and the ruling passion with every legislature which has convened under the Constitution, until their acts of this description fill a huge and misshapen volume, and important and valuable rights are claimed under them. The clause has been wholly disregarded, and it would now produce far-spread ruin to declare such acts unconstitutional and void. It is now safer and more just to all parties to declare that it must be understood that, in the opinion of the general assembly at the time of passing the special act, its object could not be attained under the general law, and this without any recital by way of preamble, as in the act to incorporate the Central Railroad Company. That preamble was placed there by the writer of this o inion, and a strict compliance with this clause of the Constitution would have rendered it necessary in every subsequent act. But the legislature, in their wisdom, have thought differently, and have acted differently, until now our special legislation and its mischiefs are beyond recovery or remedy." These cases certainly presented Unjust Provisions. We have elsewhere expressed the opinion that a statute cannot be declared void on the ground solely that it is repugnant to a supposed general intent or spirit which it is thought pervades or lies concealed in the Constitution, but wholly unexpressed, or because, in the opinion of the court, it violates fundamental rights or principles, if it was passed in the exercise of a power which the Constitution confers. Still less will the injustice of a constitutional provision authorize the courts to disregard it, or indirectly to annul it by construing it away. It is quite possible that the people may, under the influence of temporary prejuvery strong motives for declaring the law to be what it was not; but it would have been interesting and useful if either of these learned courts had enumerated the evils that must be placed in the opposite scale when the question is whether a constitutional rule shall be disregarded; not the least of which is, the encouragement of a disposition on the part of legislative bodies to set aside constitutional restrictions, in the belief that, if the unconstitutional law can once be put in force, and large interests enlisted under it, the courts will not venture to declare it void, but will submit to the usurpation, no matter how gross and daring. We agree with the Supreme Court of Indiana, that, in construing constitutions, courts have nothing to do with the argument ab inconvenienti, and should not "bend the Constitution to suit the law of the hour:" Greencastle Township v. Black, 5 Ind. 557, 565; and with Bronson, Ch. J., in what he says in Oakley v. Aspinwall, 3 N. Y. 547, 568: "It is highly probable that inconveniences will result from following the Constitution as it is written. But that consideration can have no force with me. It is not for us, but for those who made the instrument, to supply its defects. If the legislature or the courts may take that office upon themselves, or if, under color of construction, or upon any other specious ground, they may depart from that which is plainly declared, the people may well despair of ever being able to set any boundary to the powers of the government. Written constitutions will be more than useless. Believing as I do that the success of free institutions depends upon a rigid adherence to the fundamental law, I have never yielded to considerations of expediency in expounding it. There is al- dice, or a mistaken view of public policy, incorporate provisions in their charter of government, infringing upon the proper rights of individual citizens or upon principles which ought ever to be regarded as sacred and fundamental in republican government; and it is also possible that obnoxious classes may be unjustly disfranchised. The remedy for such injustice must be found in the action of the people themselves, through an amendment of their work when better counsels prevail. Such provisions, when free from doubt, must receive the same construction as any other. We do not say, however, that if a clause should be found in a constitution which should appear at first blush to demand a construction leading to monstrous and absurd consequences, it might not be the duty of the court to question and cross-question such clause closely, with a view to discover in it, if possible, some other meaning more consistent with the general purposes and aims of these instruments. When such a case arises, it will be time to consider it.1 Duty in Case of Doubt. But when all the legitimate lights for ascertaining the meaning of the constitution have been made use of, it may still happen that the construction remains a matter of doubt. In such a case it seems clear that every one called upon to act where, in his opinion, the proposed action would be of doubtful constitutionality, is bound upon the doubt alone to abstain from acting. Whoever derives power from the constitution to perform any public function is disloyal to that instrument, and grossly derelict in duty, if he does that which he is not reasonably satisfied the constitution permits. Whether the power be legislative, executive, or judicial, there is manifest disregard of constitutional and moral obligation by one who, having taken an oath to observe that instrument, takes part in an action which he cannot say he believes to be no violation of its provisions. A doubt of the constitutionality of any proposed legislative enactment should in any case be reason sufficient for refusing to adopt it; and, if legislators do not act upon this principle, the reasons upon which are based the judicial decisions sustaining legislation in very many cases will cease to be of force. Directory and Mandatory Provisions. The important question sometimes presents itself, whether we are authorized in any case, when the meaning of a clause of the 1 McMullen v. Hodge, 5 Tex. 34. See Cincinnati, 21 Ohio St. 14; Bailey v Clarke v. Irwin, 5 Nev. 111; Walker v. Commonwealth, 11 Bush, 688. |