question is, what the people meant, and not how meaningless their words can be made by the application of arbitrary rules.1

[* 62] * As a general thing, it is to be supposed that the same word is used in the same sense wherever it occurs in a constitution. Here again, however, great caution must be observed in applying an arbitrary rule; for, as Mr. Justice Story has well observed, "It does not follow, either logically or grammatically, that because a word is found in one connection in the Constitution with a definite sense, therefore the same sense is to be adopted in every other connection in which it occurs. This would be to suppose that the framers weighed only the force of single words, as philologists or critics, and not whole clauses and objects, as statesmen and practical reasoners. And yet nothing has been more common than to subject the Constitution to this narrow and mischievous criticism.2 Men of ingenious and subtle minds, who seek for symmetry and harmony in language, having

Under a clause of the Constitution of Michigan which provided that “the real and personal estate of every female acquired before marriage, and all property to which she may afterwards become entitled, by gift, grant, inheritance, or devise, shall be and remain the estate and property of such female, and shall not be liable for the debts, obligations, or engagements of her husband, and may be devised or bequeathed by her as if she were unmarried," it was held that a married woman could not sell her personal property without the consent of her husband, inasmuch as the power to do so was not expressly conferred, and the clause, being in derogation of the common law, was not to be extended by construction. Brown v. Fifield, 4 Mich. 322. The danger of applying arbitrary rules in the construction of constitutional principles might well, as it seems to us, be illustrated by this case. For while on the one hand it might be contended that, as a provision in derogation of the common law, the one quoted should receive a strict construction, on the other hand it might be insisted with perhaps equal reason that, as a remedial provision, in furtherance of natural right and justice, it should be liberally construed, to effect the beneficial purpose had in view. Thus arbitrary rules, of directly opposite tendency and force, would be contending for the mastery in the same case. The subsequent decisions under the same provision do not appear to have followed this lead. See White v. Zane, 10 Mich. 333; McKee v. Wilcox, 11 Mich. 358; Farr v. Sherman, 11 Mich. 33; Watson v. Thurber, 11 Mich. 457; Burdeno v. Amperse, 14 Mich. 91; Tong v. Marvin, 15 Mich. 60; Tillman v. Shackleton, 15 Mich. 447. The common law is certainly to be kept in view in the interpretation of such a clause, since otherwise we do not ascertain the evil designed to be remedied, and perhaps are not able to fully understand and explain the terms employed; but it is to be looked at with a view to the real intent, rather than for the purpose of arbitrarily restraining it.

See remarks of Johnson, J., in Ogden v. Saunders, 12 Wheat. 290.

found in the Constitution a word used in some sense, which falls in with their favorite theory of interpreting it, have made that the standard by which to measure its use in every other part of the instrument. They have thus stretched it, as it were, on the bed of Procrustes, lopping off its meaning when it seemed too large for their purposes, and extending it when it seemed too short. They have thus distorted it to the most unnatural shapes, and crippled where they have sought only to adjust its proportions according to their own opinions." 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.

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." 2 Retrospective legislation, except when designed to cure formal defects, or other [*63] wise 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.3

1 Story on Const. § 454. And see Cherokee Nation v. Georgia, 5 Pet. 19. Moon v. Durden, 2 Exch. 22. See Dash v. Van Kleek, 7 Johns. 477; Sayre v. Wisner, 8 Wend. 661; State v. Atwood, 11 Wis. 422; Hastings v. Lane, 3 Shep. 134; Brown v. Wilcox, 14 S. & M. 127; Price v. Mott, 52 Penn. St. 315; Ex parte Graham, 13 Rich. 277; Merwin v. Ballard, 66 N. C. 398; Broom's Maxims, 28.

3 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 uniform operation throughout the State." Another clause provided that all laws then in force, not inconsistent with the constitution, should continue in force until amended or repealed. Allbyer was convicted and sentenced to imprisonment under a crimes

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 [* 64] be* doubted. Under every constitution implication 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 power necessary for the exercise of the one or the enjoyment of the other. The implication under this rule, however, must be a necessary,

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 Kansas, 432; Slack v. Maysville, &c., R.R. Co., 13 B. Monr. 1; State v. Macon County Court, 41 Mo. 453. 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 admonished 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.

1

1 Story on Const. § 430. See also United States v. Fisher, 2 Cranch, 358; McCulloch v. Maryland, 4 Wheat. 428.

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." 1 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 in restraining the legislature from encroaching 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.

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 defined the qualifications of an officer, it was not in the power of the legislature to change or superadd to them, unless the power to do so was expressly or by necessary implication conferred by the constitution itself.3

* 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 exami

1 Field v. People, 2 Scam. 83. 2 Story on Const. §§ 424-426.

See Fletcher v. Oliver, 25 Ark. 298.

3 Thomas v. Owens, 4 Md. 189. To the same effect see Matter of Dorsey, 7 Port. 293. So 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; Monroe v. Collins, 17 Ohio, N. s. 665; State v. Symonds, 57 Me. 148; 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.

nation 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 determined the will of the lawmakers, 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 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."2 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.1

[* 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

Alexander v. Worthington, 5 Md. 471; District Township v. Dubuque, 7 Iowa, 262. See Smith v. People, 47 N. Y. 330.

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

3 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; Story on Const. § 428.

4 People v. Blodgett, 13 Mich. 147.