according to their own opinions." 1 And he gives many instances. where, in the national Constitution, it is very manifest the same word is employed in different meanings. So that, while the rule may be sound as one of presumption merely, its force is but slight, and it must readily give way to a different intent appearing in the instrument.

Where a constitution is revised or amended, the new provisions come into operation at the same moment that those they take the place of cease to be of force; and if the new instrument re-enacts in the same words provisions which it supersedes, it is a reasonable presumption that the purpose was not to change the law in those particulars, but to continue it in uninterrupted operation. This is the rule in the case of statutes,2 and it sometimes becomes important, where rights had accrued before the revision or amendment took place. Its application to the case of an amended or revised constitution would seem to be unquestionable.

Operation to be Prospective.

We shall venture also to express the opinion that a constitution should operate prospectively only, unless the words employed show a clear intention that it should have a retrospective effect. This is the rule in regard to statutes, and it is "one of such obvious convenience and justice, that it must always be adhered to in the construction of statutes, unless there is something on the face of the enactment putting it beyond doubt that the legislature meant it to operate retrospectively." Retrospective legislation, [*63] except when designed to cure formal defects, or otherwise operate remedially, is commonly objectionable in principle, and apt to result in injustice; and it is a sound rule of construction which refuses lightly to imply an intent to enact it. And we are aware of no reasons applicable to ordinary legislation which do not, upon this point, apply equally well to constitutions.

*

1 Story on Const. § 454. And see Cherokee Nation v. Georgia, 5 Pet. 19.

2 Laude v. Chicago, &c. R. R. Co., 33 Wis. 640; Blackwood v. Van Vleit, 30 Mich. 118.

Broom's Maxims, 28; post, p. 370 and note.

4 In Allbyer v. State, 10 Ohio, N. s. 588, a question arose under the provision of the constitution that "all laws of a general nature shall have a 3 Moon v. Durden, 2 Exch. 22. uniform operation throughout the See Dash v. Van Kleek, 7 Johns. State." Another clause provided 477; Brown v. Wilcox, 14 S. & M. that all laws then in force, not incon127; Price v. Mott, 52 Penn. St. 315; sistent with the constitution, should

Implications.

The implications from the provisions of a constitution are sometimes exceedingly important, and have large influence upon its construction. In regard to the Constitution of the United States the rule has been laid down, that where a general power is conferred or duty enjoined, every particular power necessary for the exercise of the one, or the performance of the other, is also conferred. The same rule has been applied to the State constitution, with an important modification, by the Supreme Court of Illinois. "That other powers than those expressly granted may be, and often are, conferred by implication, is too well settled to be doubted. Under every constitution impli- [* 64] cation must be resorted to, in order to carry out the general grants of power. A constitution cannot from its very nature enter into a minute specification of all the minor powers naturally and obviously included in and flowing from the great and important ones which are expressly granted. It is therefore established as a general rule, that when a constitution gives a general power, or enjoins a duty, it also gives, by implication, every particular

continue in force until amended or repealed. Allbyer was convicted and sentenced to imprisonment under a crimes act previously in force, applicable to Hamilton County only, and the question was, whether that act was not inconsistent with the provision above quoted, and therefore repealed by it. The court held that the provision quoted evidently had regard to future and not to past legislation, and therefore was not repealed. A similar decision was made in State v. Barbee, 3 Ind. 258. See also State v. Thompson, 2 Kan. 432; Slack v. Maysville, &c. R R. Co., 13 B. Monr. 1; State v. Macon County Court, 41 Mo. 453; N. C. Coal Co. v. G. C. Coal & Iron Co., 37 Md. 557. In Matter of Oliver Lee & Co.'s Bank, 21 N. Y. 12, Denio, J., says: "The rule laid down in Dash v. Van Kleek, 7 Johns. 477, and other cases of that class, by which the courts are admon

ished to avoid, if possible, such an interpretation as would give a statute a retrospective operation, has but a limited application, if any, to the construction of a constitution. When, therefore, we read in the provision under consideration, that the stockholders of every banking corporation shall be subject to a certain liability, we are to attribute to the language its natural meaning, without inquiring whether private interests may not be prejudiced by such a sweeping mandate." The remark was obiter, as it was found that enough appeared in the constitution to show clearly that it was intended to apply to existing, as well as to subsequently created, banking institutions.

power necessary for the exercise of the one or the enjoyment of the other. The implication under this rule, however, must be a necessary, not a conjectural or argumentative one. And it is further modified by another rule, that where the means for the exercise of a granted power are given, no other or different means can be implied, as being more effective or convenient." The rule applies to the exercise of power by all departments and all officers, and will be touched upon incidentally hereafter.

Akin to this is the rule that "where a power is granted in general terms, the power is to be construed as coextensive with the terms, unless some clear restriction upon it is deducible [expressly or by implication] from the context." 2 This rule has been so frequently applied as a restraint upon legislative encroachment upon the grant of power to the judiciary, that we shall content. ourselves in this place with a reference to the cases collected upon this subject and given in another chapter.3

Another rule of construction is, that when the constitution defines the circumstances under which a right may be exercised or a penalty imposed, the specification is an implied prohibition against legislative interference, to add to the condition, or to extend the penalty to other cases. On this ground it has been held by the Supreme Court of Maryland, that where the constitution defines the qualifications of an officer, it is not in the power of the legislature to change or superadd to them, unless the power to do so is expressly or by necessary implication conferred by the constitution itself. Other cases recognizing the same principle are referred to in the note.5

1 Field v. People, 2 Scam. 83. Fletcher v. Oliver, 25 Ark. 298.

2 Story on Const. §§ 424-426. See Du Page County v. Jenks, 65 Ill. 275. 3 See post, pp. * 87-116.

4 Thomas v. Owens, 4 Md. 189. And see Barker v. People, 3 Cow. 686; Matter of Dorsey, 7 Port. 293.

See State v. Staten, 6 Cold. 243; Davies v. McKeeby, 5 Nev. 369; McCafferty v. Guyer, 59 Penn. St. 109; Quin v. State, 35 Md. 485; Clayton v. Harris, 7 Nev. 64; Randolph v. Good, 3 W. Va. 551; nor shorten the constitutional term of an office: Howard v. State, 10 Ind. 99; Cotten v. Ellis, 7 Jones, Law, 545 ; and see post, p. * 276, note; nor extend the constitutional term: People v. Bull, 46 N. Y. 57; Goodin v. Thoman, 10 Kan. 191; nor add to the constitutional grounds for removing an officer: Lowe v. Commonwealth, 3 Met. (Ky.) 237; Brown v. Grover, 6 Bush, 1; nor change the

The legislature cannot add to the constitutional qualifications of voters: Rison v. Farr, 24 Ark. 161; St. Joseph, &c. R. R. Co. v. Buchanan County Court, 39 Mo 485; State v. Williams, 5 Wis. 308; State v. Baker, 38 Wis. 71; Monroe v. Collins, 17 Ohio, N. s. 665; State v. Symonds, 57 Me. 148;

*The Light which the Purpose to be accomplished may [* 65] afford in Construction.

The considerations thus far suggested are such as have no regard to extrinsic circumstances, but are those by the aid of which we seek to arrive at the meaning of the constitution from an examination of the words employed. It is possible, however, that after we shall have made use of all the lights which the instrument itself affords, there may still be doubts to clear up and ambiguities to explain. Then, and only then, are we warranted in seeking elsewhere for aid. We are not to import difficulties into a constitution, by a consideration of extrinsic facts, when none appear upon its face. If, however, a difficulty really exists, which an examination of every part of the instrument does not enable us to remove, there are certain extrinsic aids which may be resorted to, and which are more or less satisfactory in the light they afford. Among these aids is a contemplation of the object to be accomplished or the mischief designed to be remedied or guarded against by the clause in which the ambiguity is met with.1 "When we once know the reason which alone determines the will of the law-makers, we ought to interpret and apply the words used in a manner suitable and consonant to that reason, and as will be best calculated to effectuate the intent. Great caution should always be observed in the application of this rule to particular given cases; that is, we ought always to be certain that we do know, and have actually ascertained, the true and only reason which induced the act. It is never allowable to

compensation prescribed by the constitution: King v. Hunter, 65 N. C. 603; nor provide for the choice of officers a different mode from that prescribed by the constitution: People v. Raymond, 37 N. Y. 428; Devoy v. New York, 35 Barb. 264; 22 How. Pr. 226; People v. Blake, 49 Barb. 9; People v. Albertson, 55 N. Y. 50; Opinions of Justices, 117 Mass. 603; State v. Goldspecker, 40 is. 124; nor confer the characteristic duties of an officer upon another: Warner v. People, 2 Denio, 272; People v. Albertson, supra ; post, p. 277,

note. A legislative extension of an elective office is void as applied to incumbents. People v. McKinney, 52 N. Y. 374.

It is not unconstitutional to allow the governor to supply temporary vacancies in offices which under the constitution are elective. Sprague v. Brown, 40 Wis. 612.

1 Alexander v. Worthington, 5 Md. 471; District Township v. Dubuque, 7 Iowa, 262. See Smith v. People, 47 N. Y. 330; People v. Potter, 47 N. Y. 375; Ball v. Chadwick, 46 III. 28; Sawyer. Insurance Co., 46 Vt. 697.

indulge in vague and uncertain conjecture, or in supposed reasons and views of the framers of an act, where there are none known with any degree of certainty." The prior state of the law will sometimes furnish the clue to the real meaning of the ambiguous provision, and it is especially important to look into it if the constitution is the successor to another, and in the particular in question essential changes have apparently been made.3

[* 66]

*Proceedings of the Constitutional Convention.

When the inquiry is directed to ascertaining the mischief designed to be remedied, or the purpose sought to be accomplished by a particular provision, it may be proper to examine the proceedings of the convention which framed the instrument.+ Where the proceedings clearly point out the purpose of the provision, the aid will be valuable and satisfactory; but where the question is one of abstract meaning, it will be difficult to derive from this source much reliable assistance in interpretation. Every member of such a convention acts upon such motives and reasons as influence him personally, and the motions and debates do not necessarily indicate the purpose of a majority of a convention in adopting a particular clause. It is quite possible for a clause to appear so clear and unambiguous to the members of a convention as to require neither discussion nor illustration; and the few remarks made concerning it in the convention might have a plain tendency to lead directly away from the meaning in the minds of the majority. It is equally possible for a part of the members to accept a clause in one sense and a part in another. And even if we were certain we had attained to the meaning of the convention, it is by no means to be allowed a controlling force, especially if that meaning appears not to be the one which the

1 Smith on Stat. and Const. Construction, 634. See also remarks of Bronson, J., in Purdy v. People, 2 Hill, 35-37.

2 Baltimore v. State, 15 Md. 376; Henry v. Tilson, 19 Vt. 447; Hamilton v. St. Louis County Court, 15 Mo. 30; People v. Gies, 25 Mich. 83; Servis v. Beatty, 32 Miss. 52; Bandel v. Isaac, 13 Md. 302; Story on Const. § 428.

147.

People v. Blodgett, 13 Mich. 127,

4 Per Walworth, Chancellor, Coutant v. People, 11 Wend. 518, and Clark v. People, 26 Wend. 602; per Bronson, J., Purdy v. People, 2 Hill, 37; People v. N. Y. Central Railroad Co., 24 N. Y. 496. See State v. Kennon, 7 Ohio, N. s. 563.