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on the ground of unconstitutionality is removed. And where. parties were authorized by statute to erect a dam across a river, provided they should first execute a bond to the people conditioned to pay such damages as each and every person might sustain in consequence of the erection of the dam, the damages to be assessed by a justice of the peace, and the dam was erected and damages assessed as provided by the statute, it was held, in an action on the bond to recover those damages, that the party erecting the dam and who had received the benefit of the statute, was precluded by his action from contesting its validity, and could not insist upon his

right to a common-law trial by jury. In these and the like (* 182] cases the statute must be read with * an implied proviso that

the party to be affected shall assent thereto; and such consent removes all obstacle, and lets the statute in to operate the same as if it had in terms contained the condition. In criminal cases, however, the doctrine that a constitutional privilege may be waived must be true to a very limited extent only. A party may consent to waive rights of property, but the trial and punishment for public offences are not within the province of individual consent or agreement.

Judicial Doubts on Constitutional Questions.

It has been said by an eminent jurist, that when courts are called upon to pronounce the invalidity of an act of legislation, passed with all the forms and ceremonies requisite to give it the force of law, they will approach the question with great caution, examine it in every possible aspect, and ponder upon it as long as deliberation and patient attention can throw any new light upon the subject, and never declare a statute void, unless the nullity and invalidity of the act are placed, in their judgment, beyond reasonable doubt.

Embury v. Conner, 3 N. Y. 511. And see Heyward v. Mayor, &c., of New York, 8 Barb. 489; Mobile and Ohio Railroad Co. v. State, 29 Ala. 586; Detmold v. Drake, 46 N. Y. 318.

2 People v. Murray, 5 Hill, 468. See Lee v. Tillotson, 24 Wend. 339.

3 Embury v. Conner, 3 N. Y. 518. And see Matter of Albany St., 11 Wend. 149; Chamberlain v. Lyell, 3 Mich, 448; Beecher v. Baldy, 7 Mich. 488; Mobile and Ohio Railroad Co. v. State, 29 Ala. 586; Detmold v. Drake, 46 N. Y. 318.

4 Wellington, Petitioner, 16 Pick. 95, per Shaw, Ch. J. See Brown v. Buzan, 24 Ind. 194. If an act may be valid or not according to the circum

ful case.

A reasonable doubt must be solved in favor of the legislative action, and the act be sustained.

“ The question whether a law. be void for its repugnancy to the constitution is at all times a question of much.delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubt

The court when impelled by duty to render such a judgment would be unworthy of its station could it be unmindful * of the solemn obligation which that station (* 183] imposes; but it is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other."2 Mr. Justice Washington gives a reason for this rule, which has been repeatedly recognized in other cases which we have cited. After expressing the opinion that the particular question there presented, and which regarded the constitutionality of a State law, was involved in difficulty and doubt, he says: " But if I could rest my opinion in favor of the constitutionality of the law on which the question arises, on no other ground than this doubt so felt and acknowledged, that alone would, in my

estimation, be a satisfactory vindication of it. It is but a decent respect


stances, a court would be bound to presume that such circumstances existed as would render it valid. Talbot v. Hudson, 16 Gray, 417.

Cooper v. Telfair, 4 Dall. 18; Dow v. Norris, 4 N. H. 16; Flint River Steamboat Co. v. Foster, 5 Geo. 194; Carey v. Giles, 9 Geo. 253; Macon and Western Railroad Co. v. Davis, 13 Geo. 68; Franklin Bridge Co. v. Wood, 14 Geo. 80; Kendall v. Kingston, 5 Mass. 524; Foster v. Essex Bank, 16 Mass. 245; Norwich v. County Commissioners of Hampshire, 13 Pick. 61; Hartford Bridge Co. v. Union Ferry Co., 29 Conn. 227 ; Rich v. Flanders, 39 N. H. 312; Eason v. State, 6 Eng. 481; Hedley v. Commissioners of Franklin Co., 4 Blackf. 116; Stocking v. State, 7 Ind. 327; La Fayette v. Jenners, 10 Ind. 79; Ex parte McCollum, 1 Cow. 564; Coutant v. People, 11 Wend. 511; Clark v. People, 26 Wend. 606; Morris v. People, 3 Denio, 381; Baltimore v. State, 15 Md. 376; Cotton v. Commissioners of Leon Co., 6 Fla. 610; Lane v. Dorman, 3 Scam. 238; Newland v. Marsh, 19 Ill. 381; Farmers and Mechanics Bank v. Smith, 3 S. & R. 63; Weister v. Hade, 52 Penn. St. 477 ; Sears v. Cottrell, 5 Mieh. 251; People v. Tyler, 8 Mich. 320; Allen County Commissioners v. Silvers, 22 Ind. 491; State v. Robinson, 1 Kansas, 17; Eyre v. Jacob, 14 Grat. 426 ; Gormley v. Taylor, 44 Geo. 76; State v. Cape Girardeau, &c., R.R. Co., 48 Mo. 468. • Fletcher v. Peck, 6 Cranch, 128, per Marshall, Ch. J.


due to the wisdom, the integrity, and the patriotism of the legislative body by which any law is passed, to presume in favor of its validity, until its violation of the constitution is proved beyond all reasonable doubt.” 1

The constitutionality of a law, then, is to be presumed, because the legislature, which was first required to pass upon the question, acting, as they must be deemed to have acted, with integrity, and with a just desire to keep within the restrictions laid by the constitution upon their action, have adjudged that it is so. They are a co-ordinate department of the government with the judiciary, invested with very high and responsible duties, as to some of which their acts are not subject to judicial scrutiny, and they legislate under the solemnity of an official oath, which it is not to be supposed they will disregard. It must, therefore, be supposed that their own doubts of the constitutionality of their action have been deliberately solved in its favor, so that the courts may with some confidence repose upon their conclusion as one based upon their best judgment. For although it is plain, upon the authorities, that the courts should sustain legislative action when not clearly satisfied of its invalidity, it is equally plain in reason that the legislature should abstain from adopting such action if not fully assured of their authority to do so. Respect for the

instrument under which they exercise their power should [* 184] impel the * legislature in every case to solve their doubts

in its favor, and it is only because we are to presume they do so, that courts are warranted in giving weight in any case to their decision. If it were understood that legislators refrained from exercising their judgment, or that, in cases of doubt, they allowed themselves to lean in favor of the action they desired to accomplish, the foundation for the cases we have cited would be altogether taken away.

As to what the doubt shall be upon which the court is to act, we conceive that it can make no difference whether it springs from an endeavor to arrive at the true interpretation of the constitution, or from a consideration of the law after the meaning of the constitution has been judicially determined. It has sometimes been supposed that it was the duty of the court, first, to interpret the constitution, placing upon it a construction that must remain un

1 Ogden v. Saunders, 12 Wheat. 270.

varying, and then test the law in question by it; and that any other rule would lead to differing judicial decisions, if the legislature should put one interpretation upon the constitution at one time and a different one at another. But the decided cases do not sanction this rule, and the difficulty suggested is rather imaginary than real, since it is but reasonable to expect that, where a construction has once been placed upon a constitutional provision, it will be followed afterwards, even though its original adoption may have sprung from deference to legislative action rather than from settled convictions in the judicial mind.2

The duty of the court to uphold a statute when the conflict between it and the constitution is not clear, and the implication which must always exist that no violation has been intended by the legislature, may require it in some cases, where the meaning of the constitution is not in doubt, to lean in favor of such a construction of the statute as might not at first view seem most obvious and natural. For as a conflict between the statute and the constitution is not to be implied, it would seem to follow, where the meaning of the constitution is clear, that the court, if possible, must give the statute such a construction as will enable it to have effect. This is only saying, in another form of words, that the court must construe the statute in accordance with the legislative * intent; since it is always to be presumed (* 185] the legislature designed the statute to take effect, and

) not to be a nullity.

The rule upon this subject is thus stated by the Supreme Court of Illinois: “ Whenever an act of the legislature can be so construed and applied as to avoid conflict with the constitution and give it the force of law, such construction will be adopted by the courts. Therefore, acts of the legislature, in terms retrospective, and which, literally interpreted, would invalidate and destroy vested rights, are upheld by giving them prospective operation only; for, applied to, and operating upon, future acts and transactions only, they are rules of property under and subject to which the citizen acquires property rights, and are obnoxious to no constitutional limitation; but as retroactive laws, they reach to and destroy existing rights, through force of the legislative will, with

· Sun Mutual Insurance Co. v. New York, 5 Sandf. 14; Clark v. People, 26 Wend. 606; Baltimore v. State, 15 Md. 457. · People v. Blodgett, 13 Mich. 162.


out a hearing or judgment of law. So will acts of the legislature, having elements of limitation, and capable of being so applied and administered, although the words are broad enough to, and do, literally read, strike at the right itself, be construed to limit and control the remedy; for as such they are valid, but as weapons destructive of vested rights they are void ; and such force only will be given the acts as the legislature could impart to them.” 1

The Supreme Court of New Hampshire, where a similar question is involved, recognizing their obligation "so to construe every act of the legislature as to make it consistent, if it be possible, with the provisions of the constitution,” proceed to the examination of a statute by the same rule, “ without stopping to inquire what construction might be warranted by the natural import of the language used."

And Harris, J., delivering the opinion of the majority of the Court of Appeals of New York, says: “A legislative act is not to be declared void upon a mere conflict of interpretation between the legislative and the judicial power. Before proceeding to annul, by judicial sentence, what has been enacted by the law-making power, it should clearly appear that the act cannot be supported by any reasonable intendment or allowable presumption.": And

the Supreme Court of New York consider this but (* 186] * the application of the familiar rule, that in the expo

sition of a statute it is the duty of the court to seek to ascertain and carry out the intention of the legislature in its enactment, and to give full effect to such intention, and they are bound so to construe the statute, if practicable, as to give it force and validity, rather than to avoid it, or render it nugatory.4

The rule is not different when the question is whether any portion of a statute is void, than when the whole is assailed. The excess of power, if there is any, is the same in either case, and is not to be applied in any instance.

And on this ground it has been held that where the repealing clause in an unconstitutional statute repeals all inconsistent acts, the repealing clause is to stand and have effect, notwithstanding

· Newland v. Marsh, 19 Ill. 384. See, also, Bigelow v. West Wisconsin R.R. Co., 27 Wis. 478. 2 Dow v. Norris, 4 N. H. 17.

People v. Supervisors of Orange, 17 N. Y. 241. 4 Clarke v. Rochester, 24 Barb. 471. See Marshall v. Grimes, 41 Miss. 27.


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