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

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 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; Broom's Maxims, 28.

1 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provided that all laws then in force, not inconsistent with the constitution, should continue in force until amended or repealed.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 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County only, and the question was, whether that act was not inconsistent with the provision above quoted, and therefore repealed by it.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court held that the provision quoted evidently had regard to future and not to past legislation, and therefore was not repealed.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. 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.

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

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, 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, ast 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 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.

1 Field v. People, 2 Scam. 83.

2 Story on Const. §§ 424-426.

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.

The Light which the Purpose to be accomplished may 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 determined 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 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 clew 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.4

1 Alexander v. Worthington, 5 Md. 471; District Township v. Dubuque, 7 Iowa, 262.

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

* Baltimore v. State, 15 Md. 376; Henry v. Tilson, 21 Vt. 485; Hamilton v. St. Louis County Court, 15 Mo. 30; Story on Const. § 428.

4

* People v. Blodgett, 13 Mich. 147.

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.1 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 words would most naturally and obviously convey.2 For as the constitution does not derive its force from the convention which framed, but from the people who ratified it, the intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instrument in the belief that that was the sense designed to be conveyed. These proceedings there

fore are less conclusive of the proper construction of the instrument than are legislative proceedings of the proper construction of a statute; since in the latter case it is the intent of the legisla

1 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.

Taylor v. Taylor, 10 Minn. 126. And see Eakin v. Racob, 12 S. & R. 352 ; Aldridge v. Williams, 3 How. 1.

3 State v. Mace, 5 Md. 348; Manly v. State, 7 Md. 147.

ture we seek, while in the former we are endeavoring to arrive at the intent of the people through the discussions and deliberations of their representatives. The history of the calling of the convention, the causes which led to it, and the discussions and issues. before the people at the time of the election of the delegates, will sometimes be quite as instructive and satisfactory as anything to be gathered from the proceedings of the convention.

Contemporaneous and Practical Construction.

An important question which now suggests itself is this: How far the contemporaneous construction, or the subsequent practical construction of any particular provision of the constitution, is to have weight with the courts when the time arrives at which a judicial decision becomes necessary. Contemporaneous construction may consist simply in the understanding with which the people received it at the time, or in the acts done in putting it in operation, and which necessarily assume that it is to be construed in a particular way. In the first case it can have very little force, because the evidences of the public understanding, when nothing has been done under the provision in question, must always necessarily be vague and indecisive. But where there has been a practical construction, which has been acquiesced in for a considerable period, considerations in favor of adhering to this construction sometimes present themselves to the courts with a plausibility and force which it is not easy to resist. Indeed, where a particular construction has been generally accepted as correct, and especially when this has occurred contemporaneously with the adoption of the constitution, and by those who had opportunity to understand the intention of the instrument, it is not to be denied that a strong presumption exists that the construction rightly interprets the intention. Especially where this has been given by officers in the discharge of their duty, and rights have accrued in reliance upon it, which would be divested by a decision that the construction was erroneous, the argument ab inconvenienti is sometimes allowed to have very great weight.

The Supreme Court of the United States has had frequent occasion to consider this question. In Stewart v. Laird,1 decided in 1803, that court sustained the authority of its members to sit as Circuit judges on the ground of a practical construction, com1 1 Cranch, 299.