Gaslight Co. (1870) 42 N. Y. 384, involving the use by the public of private wharves on the East river, in Brooklyn.

Constitutional question can be raised only by a person who has an interest in the controversy. Board of Education v. Board of Education (1902) 76 App. Div. 355, 361, 78 N. Y. Supp. 522.

When question may be raised.-Where the objection to the validity of a law is not apparent from the act itself it should be distinctly stated in the pleadings, so that the adverse party may have an opportunity to show that the act was regularly passed. People ex rel. Scott v. Chenango (1853) 8 N. Y. 317.

A commitment of a child found in an employment contrary to the act of 1876 for the protection of children (Laws 1876, chap. 122) is a final judgment within the meaning of the habeas corpus act. Upon habeas corpus the constitutionality of the statute under which the commitment was made cannot be impeached; for this would be to inquire into the legality of the judgment. Re Donohue (1876) 1 Abb. N. C. I.

The constitutionality of a statute need not be attacked by the defendant for the first time on a trial of an action, for the reason that the objection against the validity of the act cannot be obviated by the plaintiff. Brookman v. Hamill (1869) 54 Barb. 209, (1871) 43 N. Y. 554, 3 Am. Rep. 731. But a constitutional question cannot be raised for the first time in the court of appeals. Vose v. Cockcroft (1871) 44 N. Y. 415, where Hunt, C., says: "There is no proceeding known in a civil case by which questions can be presented for review in the court of appeals which have not been presented to the court below and there decided, although the facts upon which it might have been presented sufficiently appear." This principle was reaffirmed by the same court in Delaney v. Brett (1872) 51 N. Y. 78, where, after stating that the court possessed only appellate jurisdiction to review judgments of the general term, it is said that this necessarily excludes "the consideration of a matter or subject that has not been presented for adjudication to the subordinate court." See also Dodge v. Cornelius (1901) 168 N. Y. 242, 61 N. E. 244.

Constitutional questions are never considered by the court of appeals unless they are essential to the determination of the appeal. People ex rel. Wetmore v. New York County (1865) 2 Keyes, 288, citing Frees v. Ford (1852) 6 N. Y. 176; People ex rel. Simpson v. Wells (1904) 99 App. Div. 364, 91 N. Y. Supp. 219, (1905) 181 N. Y. 252.

How question raised.-The court will not consider constitutional

questions upon affidavits presented on a motion for an injunction pendente lite, "especially in a case where the public interest is gravely concerned." Knowles v. Conklin (1902) 77 App. Div. 633, 78 N. Y. Supp. 1021.

PRINCIPLES OF CONSTRUCTION.

"The first rule in interpreting and construing a constitution is to give to it the effect and meaning contemplated by its framers and by the people who adopted it. And the first rule for ascertaining what that intent and meaning was, is that it is to be gathered, if possible, from the plain and ordinary meaning of the words used." People ex rel. McClelland v. Roberts (1895) 91 Hun, 101, 34 N. Y. Supp. 641, 36 N. Y. Supp. 677, (1896) 148 N. Y. 360, 31 L. R. A. 399, 42 N. E. 1082.

A written constitution must be interpreted and effect given to it as the paramount law of the land, equally obligatory upon the legislature as upon other departments of government and individual citizens, according to its spirit and the intent of its framers, and indicated by its terms. People ex rel. Bolton v. Albertson (1873) 55 N. Y. 50, 55.

In construing a constitution the only sound principle is to declare Ita lex scripta est, to follow and to obey; arguments ab inconvenienti cannot be considered for the purpose of enlarging or contracting its import. People v. Morrell (1839) 21 Wend. 563, 583; Newell v. People (1852) 7 N. Y. 109.

The language of a constitution cannot be extended beyond the scope of its terms because the enlarged construction would be desirable or convenient. People ex rel. Williams v. Dayton (1874) 55 N. Y. 367.

In the construction of constitutional provisions, the language used, if plain and precise, should be given its full effect, and we are not concerned with the wisdom of their insertion. "As adopted by the people, the intent is to be ascertained, not from speculating upon the subject, but from the words in which the will of the people has been expressed. To hold otherwise would be dangerous to our political institutions. It must be presumed that its framers understood the force of the language used and as well the people who adopted it." People v. Rathbone (1895) 145 N. Y. 434, 438, 28 L. R. A. 384, 40 N. E. 395.

The rule that, in the construction of a law, every part of it must be viewed in connection with the whole, so as to make, if possible,

all its parts harmonious (1 Kent, Com. 462), must be applied in the construction of a constitution. Where great inconvenience will result from a particular construction, that construction is to be avoided, unless the meaning of the lawmaker is plain. People ex rel. Jackson v. Potter (1872) 47 N. Y. 375, construing the provisions of the judiciary article of 1869, relating to vacancies in the office of justice of the supreme court.

"The same general rules which govern the construction and interpretation of statutes and written instruments generally apply to and control in the interpretation of written constitutions. They are made by practical and intelligent men, for the practical administration of the government, and they are to receive that interpretation which will give effect to the intent of the framers, as deducible from the language employed, and operate most benignly in the interest of the governed, and best harmonize with and give effect to the general scope and design of the instruments. As in other written instruments, the intent and design of a particular provision being ascertained from the words used, effect will be given to it in harmony with such intent and design. . . . If words have a doubtful meaning, or are susceptible of two meanings, they should, within the rule, receive that which will effectuate the intent of the framers of the constitution, and the general intent of the instrument." People v. Fancher (1872) 50 N. Y. 288, 291.

"The language of a constitution is presumed to be selected with more care and exactness than that of a statute, and when such language has a definite meaning, there is no occasion for construction, and it is not the province of courts to speculate upon what might have been intended." People ex rel. Garling v. Van Allen (1873) 55 N. Y. 31, 35, per Church, Ch. J.

Nothing but a clear violation of the Constitution will justify a court in overruling the legislative will. Re New York Elev. R. Co. (1877) 70 N. Y. 327, 342.

If the act and the Constitution can be so construed as to enable both to stand, and each can be given a legitimate office to perform, it is the duty of the court to give them such construction. People ex rel. Killeen v. Angle (1888) 109 N. Y. 564, 17 N. E. 413.

Greater care and caution should be used in adding or striking out words from a provision in our organic law, on the ground that it is necessary in order to obtain the true meaning of such provision, than if such provision were contained in a statute, because the fundamental law of the state is presumed to be, and indeed is, prepared with the very greatest deliberation, and adopted only after

every opportunity for reflection upon the meaning of each word has been had by different legislatures and by the people at large. People ex rel. Gilbert v. Wemple (1891) 125 N. Y. 485, 489, 26 N. E. 921.

Where the terms of a written constitution are clear and unambiguous, and have a well understood meaning and application, effect must be given to the intent of its framers as indicated by the language employed. The operation and effect of the instrument will not be extended by construction beyond the fair scope of the terms employed, merely because the more restricted and literal interpretation might be inconvenient or impolitic, or because a case may be supposed to be, to some extent, within the reasons which led to the introduction of some particular provision, plain and precise in its terms. Settle v. Van Evrea (1872) 49 N. Y. 280.

A provision of the fundamental law which attempts to regulate the forms in which the legislative will is to be expressed in the enactment of laws is difficult of a just and reasonable application in all cases, and is, at best, of very doubtful utility. A constitutional provision intended to operate as a restraint upon the legislature with respect to the language and form of expression to be used in framing acts of legislation is not to be so construed as to embrace cases not fairly within its general purpose or policy, or the evils which it was intended to correct, though they may be within its letter; and this is applicable particularly to § 17 of article 3, prohibiting the enactment of statutes by reference only. People ex rel. Everson v. Lorillard (1892) 135 N. Y. 285, 31 N. E. 1011.

Where a clause of a constitution which has received a settled and judicial construction is adopted in the same words by the framers of another constitution, it will be presumed that the construction was likewise adopted. Re Smith (1895) 90 Hun, 568, 36 N. Y. Supp. 40, citing 2 Black, Const. Law, 68. In this case it is also said that “where, in framing a new or amended constitution, the framers of an article relating to the same subject-matter that is embraced in an article or provision of the former constitution, which has received a judicial construction, employ different language, or, while employing the same language, add to it words of qualification, limitation, or restriction, it must be held that they intended to avoid the effects of the construction placed upon the article or provision as it existed in the former constitution." This case involved the validity of an assembly apportionment by a board of supervisors under the Constitution of 1894. The general term declared the apportionment invalid, but this decision was reversed, and the ap

portionment sustained by the court of appeals, in (1896) 148 N. Y. 187, 42 N. E. 592.

A constitution must usually be regarded as mandatory, and not merely directory. People ex rel. Crowell v. Lawrence (1862) 36 Barb. 177, affirmed in (1869) 41 N. Y. 137.

Every positive direction contains an implication against anything contrary to it, but which would frustrate or disappoint the purpose of that provision. People ex rel. Wood v. Draper (1857) 15 N. Y. 532, 544. A construction cannot be accepted which defeats or nullifies a constitutional provision. People ex rel. Inebriates' Home v. Brooklyn (1896) 11 App. Div. 114, 42 N. Y. Supp. 657, (1897) 152 N. Y. 399, 46 N. E. 852.

Aid to construction.-It is proper to look into the proceedings of the convention by which the instrument was framed when the court is seeking to ascertain the purpose which led to the insertion of a particular provision. Goedel v. Palmer (1897) 15 App. Div. 86, 89, (1897) 152 N. Y. 412, 46 N. E. 851. The journals of the Commission of 1872 were consulted for a like purpose. People ex rel. Henderson v. Westchester County (1895) 147 N. Y. 20, 30 L. R. A. 74, 41 N. E. 563.

Doubtful construction not encouraged.-Forced and doubtful interpretations of the language of the Constitution, as contradistinguished from its more natural and popular import, are not to be encouraged or upheld. Purdy v. People (1842) 4 Hill, 384.

Existing statutes.-A constitution is to be held as prepared and adopted in reference to existing statutory laws upon the provisions of which, in detail, it must depend to be set in practical operation. People ex rel. Jackson v. Potter (1872) 47 N. Y. 375.

Legislative construction.-Upon a question of real doubt as to the meaning of a particular clause in the Constitution, a legislative construction, if deliberately given, is entitled to much weight, although it is not conclusive upon the judicial tribunals. Coutant v. People (1833) 11 Wend. 512.

In the chapter on the Convention of 1801 I have quoted the suggestion made by Governor (formerly Chief Justice) Jay that the legislature pass a declaratory act construing the section of the Constitution in relation to the Council of Appointment, and thus settle the controversy between the Governor and the senate members of the council as to their respective powers; and have also there quoted the assembly resolution in response to the Governor's suggestion, in which the opinion was expressed that the legislature had no "authority to interpose between the Executive and the memVOL. IV. CONST. HIST.-2.