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* CHAPTER IV.

OF THE CONSTRUCTION OF STATE CONSTITUTIONS.

THE deficiencies of human language are such that if written instruments were always prepared carefully by persons skilled in the use of words, we should still expect to find their meaning often drawn in question, or at least to meet with difficulties in their practical application. But when draughtsmen are careless or incompetent, these difficulties are greatly increased, and they multiply rapidly when the instruments are to be applied, not only to the subjects directly within the contemplation of those who framed them, but also to a great variety of new circumstances which could not have been anticipated, but which must nevertheless be governed by the general rules which the instruments establish. Moreover, the different points of view from which different interests regard these instruments incline them to different views of the instruments themselves. All these circumstances tend to give to the subjects of interpretation and construction great prominence in the practical administration of the law, and to suggest questions which often are of no little difficulty.

Interpretation differs from construction in that the former “is the act of finding out the true sense of any form of words; that is, the sense which their author intended to convey ; and of enabling others to derive from them the same idea which the author intended to convey. Construction, on the other hand, is the drawing of conclusions respecting subjects that lie beyond the direct expressions of the text, from elements known from and given in the text; conclusions which are in the spirit, though not in the letter of the text. Interpretation only takes place if the text conveys some meaning or other. But construction is resorted to when, in comparing two different writings of the same individual, or two different enactments by the same legislative body, there is found contradiction where there was evidently no

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intention of such contradiction one of another, or where it happens that part of a writing or declaration contradicts the rest. When this is the case, and the nature of the document or declaration, or whatever else it may be, is such as not to allow us to consider the whole as being invalidated by a partial or other contradiction, then resort must be had to construction; so, too, if found to act in cases which have not been foreseen by the framers of those rules, by which we are nevertheless obliged, for some binding reason, faithfully to regulate as well as we can our action respecting the unforeseen case.”] In common use, however, the word construction is generally employed in the law in a sense embracing all that is properly covered by both when each is used in a sense strictly and technically correct; and we shall so employ it in the present chapter.

From the earliest periods in the history of * written [* 39] law, rules of construction, sometimes based upon sound reason, and seeking the real intent of the instrument, and at other times altogether arbitrary or fanciful, have been laid down by those who have assumed to instruct in the law, or who have been called upon to administer it, by the aid of which the meaning of the instrument was to be resolved. Some of these rules have been applied to particular classes of instruments only ; others are more general in their application, and, so far as they are sound, may be made use of in any case where the meaning of a writing is in dispute. To such of these as seem important in constitutional law we shall refer, and illustrate them by references to reported cases, in which they have been applied.

A few preliminary words may not be out of place, upon the questions, who are to apply these rules ; what person, body, or department is to enforce the construction; and how far a determination, when once made, is to be binding upon other persons, bodies, or departments.

We have already seen that we are to expect in every constitution an apportionment of the powers of government. We shall

1 Lieber, Legal and Political Her- “ Construction, in practice, determinmeneutics. See Smith on Stat. and ing the meaning and application as to Const. Construction, 600. Bouvier the case in question of the provisions defines the two terms succinctly as of a constitution, statute, will, or follows: " Interpretation, the discovery other instrument, or of an oral agreeand representation of the true mean- ment.” Law Dic. ing of any signs used to convey ideas.

also find certain duties imposed upon the several departments, as well as upon specified officers in each, and we shall likewise discover that the constitution has sought to hedge about their action in various ways, with a view to the protection of individual rights, and the proper separation of duties. And wherever any one is called upon to perform any constitutional duty, or to do any act in respect to which it can be supposed that the constitution has spoken, it is obvious that a question of construction may at once arise, upon which some one must decide before the duty is performed or the act done. From the very nature of the case, this decision must commonly be made by the person, body, or department upon whom the duty is devolved, or from whom the act is required.

Let us suppose that the constitution requires of the (* 40] legislature, *.that, in establishing municipal corporations,

it shall restrict their powers of taxation; and a city charter is proposed which confines the right of taxation to the raising of money for certain specified purposes, but in regard to those purposes leaves it unlimited; or which allows to the municipality unlimited choice of purposes, but restricts the rate ; or which permits persons to be taxed indefinitely, but limits the taxation of property: in either of these cases the question at once arises, whether the limitation in the charter is such a restriction as the constitution intends. Let us suppose, again, that a board of supervisors is, by the constitution, authorized to borrow money upon the credit of the county for any county purpose, and that they are asked to issue bonds in order to purchase stock in some railway company which

proposes

to construct a road across the county ; and the proposition is met with the query, Is this a county purpose, and can the issue of bonds be regarded as a borrowing of money, within the meaning of the people as expressed in the constitution ? And once again : let us suppose that the governor is empowered to convene the legislature on extraordinary occasions, and he is requested to do so in order to provide for a class of private claims whose holders are urgent; can this with any propriety be deemed an extraordinary occasion ?

In these and the like cases our constitutions have provided no tribunal for the specific duty of solving in advance the questions which arise. In a few of the States, indeed, the legislative department has been empowered by the constitution to call upon the courts for their opinion upon the constitutional validity of a proposed law, in order that, if it be adjudged without warrant, the legislature may abstain from enacting it. But those provisions are not often to be met with, and judicial decisions, especially upon delicate and difficult questions of constitutional law, can seldom be entirely satisfactory when made, as they commonly will be under such calls, without the benefit of argument at the bar, and of that light upon the questions involved which might * be afforded by counsel learned in the law, and [* 41] interested in giving them a thorough investigation.

It follows, therefore, that every department of the government and every official of every department may at any time, when a duty is to be performed, be required to pass upon a question of constitutional construction. Sometimes the case will be such that the decision when made must, from the nature of things, be conclusive and subject to no appeal or review, however erroneous it may be in the opinion of other departments or other officers ; but in other cases the same question may be required to be passed upon again before the duty is completely performed. The first of these classes is where, by the constitution, a particular question is plainly addressed to the discretion or judgment of some one department or officer, so that the interference of any other department or officer, with a view to the substitution of its own

* By the constitutions of Maine, as to authorize him to call on the New Hampshire, and Massachusetts, judges for their opinion, they must the judges of the Supreme Court are decide for themselves whether the required, when called upon by the occasion was such as to warrant the governor, council, or either house of governor in making the call. Opinthe legislature, to give their opinions ions of Judges, 49 Mo. 216. upon important questions of law, 3 “ It is argued that the legislature and upon solemn occasions." In cannot give a construction to the Florida the governor, and in Rhode constitution relative to private rights Island the governor or either house secured by it. It is true that the of the general assembly, may call legislature, in consequence of their for the opinions of the judges of the construction of the constitution, canSupreme Court upon any question of not make laws repugnant to it. But law. In Missouri, previous to the every department of government, constitution of 1875, the judges were invested with certain constitutional required to give their opinions “ upon powers, must, in the first instance, important questions of constitutional but not exclusively, be the judge of law, and upon solemn occasions;' its powers, or it could not act.' and the Supreme Court held that Parsons, Ch. J., in Kendall v. Inwhile the governor determined for habitants of Kingston, 5 Mass. 533. himself whether the occasion was such

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discretion or judgment in the place of that to which the constitution has confided the decision, would be impertinent and intrusive. Under every constitution cases of this description are to be met with ; and, though it will sometimes be found difficult to classify them, there can be no doubt, when the case is properly determined to be one of this character, that the rule must prevail which makes the decision final.

We will suppose, again, that the constitution empowers the executive to convene the legislature on extraordinary occasions, and does not in terms authorize the intervention of any one else in determining what is and what is not such an occasion in the constitutional sense ; it is obvious that the question is addressed exclusively to the executive judgment, and neither the legislative nor the judicial department can intervene to compel action if the executive decide against it, or to enjoin action if, in his opinion,

the proper occasion has arisen. And again, if, by the (* 42] constitution, * laws are to take effect at a specified time

after their passage, unless the legislature, for urgent reasons, shall otherwise order, we must perceive at once that the legislature alone is competent to pass upon the urgency of the alleged reasons. And to take a judicial instance: If a court is

1 In exercising his power to call lative discretion, the courts cannot out the militia in certain exigencies, interfere with its exercise. State the President is the exclusive and v. Hitchcock, 1 Kan. 178; State v. final judge when the exigency has Boone County Court, 50 Mo. 317; arisen. Martin v. Mott, 12 Wheat. Patterson v. Barlow, 60 Penn. St. 54. 29. In People v. Parker, 3 Neb. 409, The statement of legislative reasons s. c. 19 Am. Rep. 631, it appeared that in the preamble of an act will not an officer assuming to act as governor, affect its validity. Lothrop v. Steadin the absence of the governor from man, 42 Conn. 583. the State, had issued a proclamation ? See post, p. * 157. In Gillinwater convening the legislature in extraor- v. Mississippi & Atlantic Railroad dinary session. The governor Co., 13 Ill. 1, it was urged that turned previous to the time named for a certain restriction imposed upon the meeting, and issued a second proc- railroad corporations by the general lamation, revoking the first. Held, railroad law was a violation of the that the power of convening the legis- provision of the constitution which lature being a discretionary power, enjoins it upon the legislature “to it might be recalled before the meet- encourage internal improvements by ing took place.

passing liberal general laws of incorHow far the decision of the legisla- poration for that purpose.” The ture that a certain act is a local act court say of this provision: “ This is concludes the courts, see People r. a constitutional command to the leg. Allen, 1 Lans. 248. It is undoubted, islature, as obligatory on it as any that, when a case is within the legis- other of the provisions of that instru

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