Page images
PDF
EPUB

it. This rule of statutory construction also applies to a constitution.37 If it be a rule of interpretation to which all assent that the exception of the particular thing from general words proves that in the opinion of the lawgiver, the thing excepted would be within the general clause had the exception not been made, there is no reason why this rule should not be as applicable to the constitution as to other instruments.38 The rule, that as exceptions strengthen the force of a general law, so enumeration weakens as to things not enumerated, is applicable to constitutional as well as to statutory provisions.39

§ 214. Partially Invalid Provisions.-The authority given to a railroad commission to establish rates is not rendered invalid by other invalid but separable provisions of a constitution which make the rates so established conclusively reasonable and just in case of controversy, and, therefore, repugnant to the Fourteenth Amendment of the Federal Constitution.40

§ 215. Construction-Prospective-Retrospective.—In the absence of a contrary intention, clearly evidenced beyond reasonable question, constitutions will be construed so as to operate prospectively only.41 So in order that a constitution should be held retrospective in its operation, such intention should unmistakably appear from the words used.42 A con

37 State v. Quayle, 26 Utah, 26, 30, 71 Pac. 1060, citing Fowler v. Tuttle, 24 N. H. 9; Cushing v. Warwick, 9 Gray (75 Mass.), 382; Wolf v. Bauereis, 72 Md. 481-485, 19 Atl. 1045, 8 L. R. A. 680; Suth., Stat. Const. § 267; 23 Am. & Eng. Ency, of Law, 636.

38 Brown v. Maryland, 12 Wheat. (25 U. S.) 419, 6 L. ed. 678.

39 Western Union Teleg. Co. v. Railroad Commission (La., 1908), 45 So. 598.

40 Southern Pac. R. Co. v. Railroad Commissioners (C. C.), 78 Fed. 236.

41 United States: Shreveport v. Cole, 129 U. S. 36, 9 Sup. Ct. 210, 32 L. ed. 589.

Colorado: Strickler v. City of Colorado Springs, 16 Colo. 61, 26 Pac. 313, 25 Am. St. Rep. 245.

Maryland: New Central Coal Co. v. George's Creek Coal & Iron Co., 37 Md. 537.

Missouri: State v. Holliday, 66 Mo. 385.

Utah: Jungk v. Holbrook, 15 Utah, 198, 49 Pac. 305.

42 Jungk v. Holbrook, 15 Utah, 198, 49 Pac. 305; Mercer v. Gold Min. & Mill. Co. v. Spry, 16 Utah, 222, 52

46

stitution being prospective in operation does not affect statutes in force when the constitution was adopted.43 And a constitutional provision has no retroactive operation as to actions pending at the time of the adoption thereof, even though such provision relates to the manner of bringing such actions.44 So where an action is begun under a constitution, the rights of the parties are to be determined thereunder and not under a constitution which goes into effect thereafter.45 A constitution prohibiting special charters or special laws does not repeal charters granted when the constitution took effect," nor is past legislation affected thereby.47 So where corporations are required, under a constitutional amendment, to be formed under general statutes such requirement does not affect charters theretofore granted, even though subsequently amended.48 And although a constitution provides for the repeal of all laws inconsistent therewith, and prohibits the passage of special laws thereafter, still a special act whereby a taxing district is incorporated is not repealed thereby. But a constitution prohibiting the passing of any local or special act may operate as a repeal to a certain extent of a bank charter granted by special act prior thereto.50 Again, a law in force when a constitution is adopted, may, when not inconsistent therewith,

Pac. 382. See Lloyd v. Hamilton, 52
La. Ann. 861, 27 So. 275.

43 Adams v. Dendy, 82 Miss. 135, 33 So. 843.

"Conyers v. Commission of Roads, 116 Ga. 101, 42 S. E. 419.

45 McHugh v. Louisville Bridge Co., 23 Ky. L. Rep. 1546, 65 S. W. 456. 40 Ulbrecht v. City of Keokuk, 124 Iowa, 1, 97 N. W. 1082.

47 California: Nevada School Dist. v. Shoecraft, 88 Cal. 372, 26 Pac. 211; Meade v. Watson, 67 Cal. 591, 8 Pac. 311, 314.

Colorado: People, Dean, v. Board of County Commissioners of Grand County, 6 Colo. 202.

Illinois: Covington v. City of East St. Louis, 78 Ill. 548.

Indiana: Davidson v. Kohler, 76 Ind. 398.

Louisiana: Pecot v. Police Jury, 41 La. Ann. 707, 6 So. 677.

Missouri: Atlantic & Pacific R. Co. v. City of St. Louis, 66 Mo. 228. Ohio: Allbyer v. State, 10 Ohio St.

588.

48 State v. City of Bangor, 98 Me. 114, 56 Atl. 589; Farnsworth v. Lime Rock Rd. Co., 83 Me. 440, 22 Atl. 373. See Atlantic & Pacific R. Co. v. City of St. Louis, 66 Mo. 228.

"Covington, City of, v. District of Highlands, 24 Ky. L. Rep. 433, 68 S. W. 669.

50 Commonwealth v. Porter, 24 Ky. L. Rep. 364, 68 S. W. 621.

.

be continued in force by an express provision continuing in force all laws until repealed or altered.51 If the charter of a corporation exempts it from taxation such exemption includes assessments made before the taking effect of a constitution repealing the exemption, and also the right to exemption for taxes so assessed for the year during which the constitution took effect.52

§ 216. Contemporaneous Construction-Extrinsic Matters -History-Debates and Proceedings in Convention.—In cases of doubt as to the interpretation or construction of a provision of the constitution, its contemporaneous and practical construction may be considered in aid thereof.53 So the contemporaneous interpretation in the "Federalist" and the original judiciary act is entitled to much weight; 54 and the nature and objects of the particular powers, duties and rights should be considered, with all the lights and aids of contemporary history,55 or the history of its passage through the convention,56 or of the times when it was passed or adopted,57 and of well-known conditions then existing.58 The views or debates of the framers of the constitution cannot be con

$1 State v. O'Neil Lumber Co., 170 Mo. 7, 70 S. W. 121.

52 Newport v. Masonic Temple Assoc., 20 Ky. L. Rep. 266, 269, 45 S. W. 881, 46 S. W. 697.

53 Eastman v. Clackamas County (C. C.), 32 Fed. 24; Howell v. State, 71 Ga. 224, 51 Am. Rep. 259; Allen v. Clayton, 63 Iowa, 11, 18 N. W. 663; Chesapeake & Ohio R. Co. v. Miller, 19 W. Va. 408. See Cohen v. Virginia, 6 Wheat. (19 U. S.) 418, 420, per Marshall, C. J. Compare State ex rel. Chamberlain v. Daniel, 17 Wash. 111, 117, 49 Pac. 243.

54 Cohens v. Virginia, 6 Wheat. (19 U. S.) 264, 5 L. ed. 257.

55 Prigg v. Pennsylvania, 16 Pet. (41 U. S.) 539, 10 L. ed. 1060.

56 Minnesota & Pacific Rd. Co. v. Sibley, 2 Minn. 13, 19.

57 Toncray v. Budge (Idaho, 1908), 92 Pac. 26; Funkhouser v. Spahr, 102 Va. 306, 46 S. E. 378, quoting from United States V. Trans-Missouri Freight Assn., 166 U. S. 318, 17 Sup. Ct. 550, 41 L. ed. 1007; United States v. Union Pacif. Rd. Co., 91 U. S. 72, 23 L. ed. 224; Queen v. Hertford College, 3 Q. B. Div. 707, per Coleridge, Lord Chief Justice. See Maynard v. Board of Canvassers, 84 Mich. 228, 238, 47 N. W. 756, 43 Alb. L. J. 389, 11 L. R. A. 332; People v. Gies, 25 Mich.

83.

58 Toncray v. Budge (Idaho, 1908), 92 Pac. 26.

61

sidered; 59 nor can debates on the passage of an act be accepted as evidence of the meaning of a clause in the constitution.oo It is held, however, that debates or proceedings of a constitutional convention may be considered in a limited degree, although they are unsafe as a guide. It is also decided that such proceedings are valuable as an aid in ascertaining the intent of doubtful provisions, but that the terms of the constitution cannot be varied thereby; 62 nor can express constitutional provisions be construed away by resort to the convention proceedings.63

§ 217. Contemporaneous Construction Continued-Legislative Construction.-Although the legislature has the same right as have the courts to construe a constitutional provision,64 yet it cannot bind the courts by its interpretation; 65 nor will a legislative construction control unambiguous and clearly expressed provisions of the constitution.66 But in case of a doubtful constitutional provision a legislative interpretation will be considered or availed of as an aid to construction when contemporaneous with the adoption of the constitution,67 and such contemporaneous interpretation is a strong pre

"Funkhouser v. Spahr, 102 Va. 306, 46 S. E. 378, quoting from United States v. Union Pac. R. Co., 91 U. S. 72, 23 L. ed. 224; United States v. Trans-Missouri Freight Assn., 166 U. S. 318, 41 L. ed. 1007.

"District of Columbia v. Washington Market Co., 108 U. S. 243, Sup. Ct., 27 L. ed. 714.

#1 Rasmusser v. Baker, 7 Wyo. 117, 38 L. R. A. 773, 50 Pac. 819. "Epping v. City of Columbus, 117 Ga. 263, 43 S. E. 803. See Wisconsin Central R. Co. v. Taylor, 52 Wis. 37, 8 N. W. 833; Wulff v. Aldrich, 124 Ill 591, 16 N. E. 886. Examine Richardson v. Treasure Hill Mining Co., 23 Utah, 367, 65 Pac. 74.

63 Starne v. People, 222 Ill. 189, 78 N. E. 61.

64 Selma & Gulf Rd. Co., Ex parte, 45 Ala. 696, 6 Am. Rep. 722.

65 State, Kenner, v. Spears (Tenn. Ch. App., 1899), 53 S. W. 247. See State ex rel. Chamberlain v. Daniel, 17 Wash. 111, 117, 49 Pac. 243.

State, Hibbard, v. Cornell, 60 Neb. 276, 83 N. W. 72. See Griffin v. Rhoton (Ark., 1907), 107 S. W. 380; State, Chamberlain, v. Daniel, 17 Wash. 111, 49 Pac. 243; Fairbanks v. United States, 181 U. S. 283, 21 Sup. Ct. 648, 45 L. ed. 862.

67 Board of Railroad Commrs. v. Market St. Ry. Co., 132 Cal. 677, 64 Pac. 1065; People, Livesay, v. Wright, 6 Colo. 92, 97; State, Hib

sumption in favor of the constitution; 68 it is of great force; 69 and where the question is one in which a liberal construction may be made the legislative construction will not be condemned unless it very clearly appears that it is wrong; 70 it should also be followed so as to give effect to a constitutional provision if it can be done without violence to a fair interpretation of the words employed; 71 and an act, in execution of a constitutional power, passed by the first legislature after the adoption of the constitution, is a cotemporary interpretation of the latter entitled to much weight."

§ 218. Construction or Interpretation Long Continued and Acquiesced in by Legislative and Executive Departments. A contemporaneous construction of the constitution, practiced and acquiesced in, for a period of years, fixes the construction, and the courts will not shake or control it.73 So practical construction for a long period of time is conclusive of the meaning of a constitution in cases otherwise doubtful.74 Again, a long continued and uniform interpretation, put by the executive and legislative departments of the government, upon a clause of the constitution should be followed by the judicial department, unless such interpretation be manifestly contrary to its letter or spirit.75 And where the bard, v. Cornell, 60 Neb. 276, 83 N. W. 72. Compare State ex rel. Chamberlain, 17 Wash. 111, 117, 49 Pac. 243.

68 State, Guerguin, v. McAllister, 88 Tex. 284, 28 L. R. A. 523, 31 S. W. 187. Compare Griffin v. Rhoton (Ark., 1907), 107 S. W. 380.

6 People, Mooney, v. Hutchinson, 172 Ill. 486, 30 Chic. Leg. N. 303, 50 N. E. 599, 40 L. R. A. 770.

70 Selma & Gulf Rd. Co., Ex parte, 45 Ala. 696, 6 Am. Rep. 722.

73 Stuart v. Laird, 1 Cranch (5 U. S.), 299, 2 L. ed. 115.

74 French v. State, Harley, 141 Ind. 618, 29 L. R. A. 113, 41 N. E. 2. See also Dred Scott v. Sandford, 19 How. (60 U. S.) 393, 616, 15 L. ed. 691 (practical construction through long years and in doubtful cases determines judicial mind); State v. Gerhardt, 145 Ind. 439, 44 N. E. 469, 33 L. R. A. 313 (legislative practice continued and acquiesced in for a long period of time controls the

71 State v. Tingey, 24 Utah, 225, 67 construction of a constitution in Pac. 33.

[blocks in formation]

cases of doubt); Faribault, City of, v. Misener, 20 Minn. 396; Moers v. Reading, 21 Pa. 188.

75 Downes v. Bidwell, 182 U. S.

« ՆախորդըՇարունակել »