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5. When it is possible to do so without doing too great violence to the words actually used, the language of a statute will be so re

obligated first to determine whether or not the mandamus asked for should issue, so that, if possible, it might dispose of the case without calling into question the constitutionality of the act of Congress granting the original jurisdiction under which the suit had been brought. Whether this was a sufficient excuse is doubtful. Jefferson was veheinent in criticism of the action.

In the Dred Scott case the Supreme Court after holding that the lower federal courts from which the case had come by appeal, had had no jurisdiction, went on to discuss the other points raised in the record before it. The propriety of this course was strenuously objected to by the minority justices. Taney's argument was that the plea to the jurisdiction that had been entered was not as to the jurisdiction of the Supreme Court, but as to that of the circuit court in which the suit had been begun, and that, therefore, the case being fairly before the Supreme Court, that tribunal might examine the whole record and correct any errors that might have been made by the courts below. “There can be no doubt of the jurisdiction of this court to reverse the judgment of a circuit court, and to reverse it for any error apparent in the record, whether it be the error of giving judgment in a case over which it had no jurisdiction, or any other material error; and this too, whether there is any plea in abatement or not. The objection appears to have arisen from confounding writs of error to a state court, with writs of error to a circuit court of the United States. Undoubtedly, upon a writ of error to a state court, unless the record shows a case that gives jurisdiction, the case must be dismissed for want of jursidiction in the court. And if it is dismissed on that ground, we have no right to examine and decide upon any question presented by the bill of exceptions, or any other part of the record. But writs of error to a state court and to a circuit court of the United States are regulated by different laws, and stand upon entirely different principles. And in a writ of error to a circuit court of the United States, the whole record is before this court for examination and decision; and if the sum in controversy is large enough to give jurisdiction, it is not only the right, but it is the judicial duty of the court to examine the whole case as presented by the record, and if it appears upon its face that any material error or errors have been committed by the court below, it is the duty of this court to reverse the judgment and remand the case. And certainly an error in remanding a judgment upon the merits in favor of either party, in a case in which it was not authorized to try, and over which it had no jurisdiction, is as grave an error as a court can commit.”

Justice Curtis in his dissenting opinion showed by a citation of authority that the foregoing had not in fact been the practice and declared doctrine of the Supreme Court, and properly said that, especially, the court should not have proceeded in the case to declare unconstitutional an act of Congress in violation of the principle that this will not be done when it is possible to render a judgment upon any other ground.

stricted as to render the measure constitutional. For it is always presumed that Congress did not intend to exceed its constitutional powers. Where, however, the scope of the law is plainly expressed, and as such is unconstitutional, the court will not resort to a strained or arbitrary interpretation in order to render the law valid, Thus in Iloward v. Illinois Central R. Co. the court declined to restrict the terms of a law with reference to the liability of a common carrier for injury to “any of its employees” to such employees only as should be injured while engaged in interstate commerce, and thereby to render the statute valid as applied within the States.s

6 “ It is elementary when the constitutionality of a state is assailed, if the statute be reasonably susceptible of two interpretations, by one of which it would be unconstitutional and by the otlier valid, it is our plain duty to adopt that construction which will save the statute from constitutional infirmity. Knights Templars Indemnity Co, v. Jarman (187 U. S. 197; 23 Sup. Ct. Rep. 108; 47 L. ed. 139). And unless this rule be considered as meaning that our duty is to first decide that a statute is unconstitutional and then proceed to hold that such ruling was unnecessary because the statute is susceptible of a meaning, which causes it not to be repugnant to the Constitution, the rule plainly must mean that where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter." United States v. D. & H. Ry. Co., 213 U. S. 366; 29 Sup. Ct. Rep. 527; 53 L. ed. 836.

7 207 U. S. 463; 28 Sup. Ct. Rep. 141; 52 L. ed. 297.

8“ The principles of construction invoked are undoubted, but are inapplicable. Of course, if it can be lawfully done, our duty is to construe the statute so as to render it constitutional. But this does not imply, if the text of an act is unambiguous, that it may be rewritten to accomplish that purpose. Equally clear is it, generally speaking, that where a statute contains provisions which are constitutional and others which are not, effect may be given to the legal provisions by separating them from the illegal. But this applies only to a case where the provisions are separable, and not dependent one upon the other, and does not support the contention that that which is indivisible may be divided. Moreover, even in a case where legal provisions may be severed from those which are illegal, in order to save, the rule applies only where it is plain that Congress would have enacted the legislation with the unconstitutional provisions eliminated. All these principles are so clearly settled as not to be open to controversy. They were all, after a full review of the authorities, restated and reapplied in a recent case. Illinois C. R. Co. v. McKendree (203 U. S. 514; 27 Sup. Ct. Rep. 153; 51 L. ed. 298)." The minority in this case assert that the court might properly bave so restricted the operation of the act in question as to render it constitutional.

In James v. Bowman is again illustrated the refusal of the court to limit the express terms of an act of Congress in order to render it constitutional. In this case the court declined, by judicial construction, to limit the application of a statute to federal elections which in terms provided for the punishment of bribery committed at all elections, federal and state. To do so, the court declared, would be judicial legislation. “It would be wresting the statute from the purpose with which it was enacted and making it serve another purpose. Doubtless even a criminal statute may be good in part and bad in part, provided the two can be clearly separated, and it is apparent that the legislative body would have enacted the one without the other, but there are no two parts to this statute.”

6. The court will not permit the unconstitutionality of a particular provision of a law to invalidate the entire law if it is possible to separate the invalid provision from the other provisions

In United States v. Reese (92 U. S. 214; 23 L. ed. 563) the court say: “We are, therefore, directly called upon to decide whether a penal statute, enacted by Congress, with its limited powers, which is in general language broad enough to cover wrongful acts without as well as within the constitutional jurisdiction, can be limited by judieial construction so as to make it operate only on that which Congress may rightfully prohibit and punish. For this purpose we must take these sections of the statute as they are. We are not able to reject a part which is unconstitutional and retain the remainder, because it is not possible to separate that which is unconstitutional, if there be any such, from that which is not. The proposed effect is not to be attained by striking out or disregarding words that are in the section, but by inserting those that are not now there. Each of the sections must stand as a whole, or fall altogether. The language is plain. There is no room for construction, unless it be as to the effect of the Constitution. The question, then, to be determined, is whether we can intro. duce words of limitation into a penal statute so as to make it specific, when, as expressed, it is general only."

And in the Trade-Mark Cases (100 U. S. 82; 25 L. ed. 550) the court say: If we should, in the case before us, undertake to make, by judicial con. struction, a law which Congress did not make, it is quite probable we should do what, if the matter were now before that body, it would be unwilling to do; namely, make a trade-mark law which is only partial in its operation, and which would complicate the rights which parties would hold, in some instances, under the act of Congress, and in others under state law.”

9 190 U. S. 127; 23 Sup. Ct. Rep. 678; 47 L. ed. 979.

without destroying or impairing their efficiency to attain the re atilis evidently intended by the legislation that enacted it. Even when thus separable, however, the court will not hold the remainder of the law valid if there is doubt whether, the realization of the whole of its will being rendered impossible, the legislature would have desired the execution of a part only. Thus in the case of IIoward v. Illinois C. R. Co.,1o cited in the foregoing section, the court having beld that the act by its terms related to intrastate as well as interstate commerce, declined to hold the act valid even as to employees engaged in interstate commerce. The court say: "As the act before us, by its terms, relates to every common carrier engaged in interstate commerce, and to any of the employees of every such carrier, thereby regulating every relation of a carrier engaged in interstate commerce with its servants and of such servants among themselves, we are unable to say that the statute would have been enacted had its provisions been restricted to the limited relations of that character which it was within the power of Congress to regulate.” 11

8 7. Legislative Motives.

With the motives of the legislators the courts cannot concern themselves. “The judiciary can only inquire whether the means devised in the execution of a power granted are forbidden by the Constitution. It cannot go beyond that inquiry without intrenching upon the domain of another department of government. That it may not do with safety to our institutions.” 12

10 207 U. S. 463; 28 Sup. Ct. Rep. 141; 52 L. ed. 297.

11 Citing Trade Mark Cases, 100 U. S. 82; 25 L. ed. 550; Cooley, Const. Lim. 178.

12 Interstate Commerce Commission v. Brimson, 154 U. S. 447; 14 Sup. Ct. Rep. 1125; 38 L. ed. 1047.

“So long as Congress keeps within the limits of its authority as defined by the Constitution, infringing no rights recognized or secured by that instrument, its regulations of interstate and international commerce, whether founded in wisdom or not, must be submitted to by all. ... To depart from [this rule of construction] because of the circumstances of special cases, or because the rule, in its operation, may possibly affect the interests of business is to endanger the safety and integrity of our institutions and make the Constitution mean not what it says but what interested parties wish it to mean at a particular time and under particular circumstances.

In Ex parte McCardle13 the court declined to take appellate jurisdiction because of the enactment by Congress of a law which it was well known had been passed for the express purpose of preventing the court from questioning the constitutionality of certain measures which the Federal Government had taken for the “Reconstruction" of the Southern States after the termination of the Civil War. “We are not at liberty," said the court, “ to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words.” 14

§ 8. Expediency and Reasonableness of Legislation not Subject

to Judicial Determination. The power of Congress to legislate being conceded, the wisdom or expediency of the manner in which the power is exercised is beyond judicial criticism or control.15

If the statute is beyond the constitutional power of Congress, the court would err in the perforniance of a solemn duty if it did not so declare. But if nothing more can be said than that Congress erred . . . the remedy for the error and the attendant mischief is the selection of new Senators and Representatives, who, by legislation, will make such changes in existing statutes, or adopt such new statutes, as may be demanded by their constituents and be consistent with law." Northern Securities Co. v. United States (193 U. S. 197; 24 Sup. Ct. Rep. 436; 48 L. ed. 679).

13 7 Wall. 506; 19 L. ed. 264.

14 In McCray v. United States (195 U. S. 27; 24 Sup. Ct. Rep. 769; 49 L. ed. 78) the authorities upon this point are reviewed, the court saying: “The decisions of this court from the beginning lend no support whatever to the assumption that the judiciary may restrain the exercise of lawful power on the assumption that a wrongful purpose or motive has caused the power to be exerted. ... On the contrary, the doctrine of a number of cases is inconsistent with its existence."

15 In Treat v. White (181 U. S. 264; 21 Sup. Ct. Rep. 611; 45 L. ed. 853) with reference to a stamp duty levied by Congress, the court say: The power of Congress in this direction is unlimited. It does not come within the province of this court to consider why agreements to sell shall be subject to the stamp duty, and agreements to buy not. It is enough that Congress, in this legislation, has imposed a stamp duty upon this one, and not upon the other.” In Patton v. Brady (184 U. S. 608; 22 Sup. Ct. Rep. 493 ; 46 L. ed. 713) the court say: " It is no part of the function of a court to inquire into the reasonableness of the excise, either as regards the amount or the property upon which it is imposed.”

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