CHAPTER IV.

OF THE CONSTRUCTION OF STATE CONSTITUTIONS.

THE deficiencies of human language are such that if written instruments were always carefully drawn, and by persons skilled in the use of words, we should not be surprised to find their meaning often drawn in question, or at least to meet with difficulties in their practical application. But these difficulties are greatly increased when draughtsmen are careless or incompetent, 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. So, also, the different stand-points which diverse interests occupy incline men to take different views of the instruments which affect those interests; and from all these considerations the subject of construction is always prominent in the practical administration of the law. From the earliest periods in the his1 In what we shall say in this chapter, the word construction will be employed in a sense embracing all that is covered by the two words interpretation and construction when used in their strictly accurate and technical sense. Their mean

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ing is not the same, though they are frequently used as expressing the same idea. Lieber distinguishes thus : Interpretation 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 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 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 beer foreseer by the framers of those rules, by which we are

tory of written 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 reference to reported cases, where 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 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 legislature, nevertheless obliged, for some binding reason, faithfully to regulate as well as we can our action respecting the unforeseen case." Legal and Political Hermeneutics. See Smith on Stat. and Const. Construction, 600. Bouvier defines the two terms succinctly as follows: "Interpretation, the discovery and representation of the true meaning of any signs used to convey ideas." "Construction, in practice, determining the meaning and application as to the case in question of the provisions of a constitution, statute, will, or other instrument, or of an oral agreement." Law Dic.

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 they are asked to issue bonds in order to purchase stock in some railway company which proposes to construct a road across the county; 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 constitntion? 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.1 But these 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 points involved which might

By the constitutions of Maine, New Hampshire, and Massachusetts, the judges of the Supreme Court are required when called upon by the Governor, Council, or either house of the legislature, to give their opinions "upon important questions of law, and upon solemn occasions." In Missouri they are to give their opinions "upon important questions of constitutional law, and upon solemn occasions."

be afforded by counsel learned in the law, and 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.1 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 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 legislature nor the judicial department can intervene to compel action if he decide against it, or to enjoin action if, in his opinion, the proper occasion has arisen. And again, if, by the constitution,

"It is argued that the legislature cannot give a construction to the constitution relative to private rights secured by it. It is true that the legislature, in consequence of their construction of the constitution, cannot make laws repugnant to it. But every department of government, invested with certain constitutional powers, must, in the first instance, but not exclusively, be the judge of its powers, or it could not act." Parsons, Ch. J., in Kendall v. Inhabitants of Kingston, 5 Mass. 524.

* In exercising his power to call out the militia in certain exigencies, the President is the exclusive and final judge when the exigency has arisen. Martin v. Mott, 12 Wheat. 29.

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 required to give an accused person a trial at the first term after indictment, unless good cause be shown for continuance, it is obvious that the question of good cause is one for the court alone to pass upon, and that its judgment when exercised is, and must be from the nature of the case, final. And when in any of these and similar cases the decision is once made, other departments or other officers, whatever may have been their own opinions, must assume the decision to be correct, and are not at liberty to raise any question concerning it, unless some duty is devolved upon them which raises the same question anew.

But there are cases where the question of construction is equally addressed to two or more departments of the government, and it then becomes important to know whether the decision by one is binding upon the others, or whether each is to act upon its own judgment. Let us suppose once more that the governor, being empowered by the constitution to convene the

1 In Gillinwater v. Mississippi & Atlantic Railroad Co. 13 Ill. 1, it was urged that a certain restriction imposed upon railroad corporations by the general railroad law was a violation of the provision of the constitution which enjoins it upon the legislature "to encourage internal improvements by passing liberal general laws of incorporation for that purpose." The court say of this provision: “This is a constitutional command to the legislature, as obligatory on it as any other of the provisions of that instrument; but it is one which cannot be enforced by the courts of justice. It addresses itself to the legislature alone, and it is not for us to say whether it has obeyed the behest in its true spirit. Whether the provisions of this law are liberal, and tend to encourage internal improvements, is matter of opinion, about which men may differ; and as we have no authority to revise legislative action on the subject, it would not become us to express our views in relation to it. The law makes no provision for the construction of canals and turnpike roads, and yet they are as much internal improvements as railroads, and we might as well be asked to extend what we might consider the liberal provisions of this law to them, because they are embraced in the constitutional provision, as to ask us to disregard such provisions of it as we might regard as illiberal. The argument proceeds upon the idea that we should consider that as done which ought to be done; but that principle has no application here. Like laws upon other subjects within legislative jurisdiction, it is for the courts to say what the law is, not what it should be." It is clear that courts cannot interfere with matters of legislative discretion. Maloy v. Marietta, 11 Ohio, N. S. 639.