of the solemn obligation which that station 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." 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 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."2

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 power to do so. Respect for the instrument under which they exercise their power should impel the

1 Fletcher v. Peck, 6 Cranch, 128, per Marshall, Ch. J. Ogden v. Saunders, 12 Wheat. 270.

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 unvarying, 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 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 legis

1 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.

lative intent; since it is always to be presumed 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, without 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." 2

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 be-' tween the legislative and the judicial power. Before proceeding to annul, by judicial sentence, what has been enacted by the lawmaking 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

the application of the familiar rule, that in the exposition 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.1

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 implied 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 the invalidity of the rest.2 But other cases hold that such repealing clause is to be understood as designed to repeal all conflicting provisions, in order that those of the new statute can have effect; and that if the statute is invalid, nothing can conflict with it, and therefore nothing is repealed. Great caution is necessary in some cases, or the rule which was designed to ascertain and effectuate the legislative intent will be pressed to the extreme of giving effect to part of a statute exclusively, when the legislative intent was that it should not stand except as a component part of the whole.

Inquiry into Legislative Motives.

From what examination has been given to this subject, it appears that whether a statute is constitutional or not is always a question of power; that is, whether the legislature in the particular case, in respect to the subject-matter of the act, the manner in which its object is to be accomplished, and the mode of enacting it, has kept within the constitutional limits and observed the 'constitutional conditions. If so, the courts are not at liberty to inquire into the proper exercise of the power in any case. They must assume that legislative discretion has been properly exer

1 Clarke. Rochester, 24 Barb. 471.

2 Meshmeier v. State, 11 Ind. 489; Ely v. Thompson, 3 A. K. Marsh. 70. Shepardson v. Milwaukee and Beloit Railroad Co., 6 Wis. 605; State v. Judge of County Court, 11 Wis. 50; Tims v. State, 26 Ala. 165; Sullivan v. AdGray, 476; Devoy v. Mayor, &c. of New York, 35 Barb. 264; Campau v. Detroit, 14 Mich. 276; Childs v. Shower, 18 Iowa, 261.

ams,

cised.1 If evidence was required, it must be supposed that it was before the legislature when the act was passed; 2 and if any special finding was required to warrant the passage of the particular act, it would seem that the passage of the act itself might be held equivalent to such finding. And although it has sometimes been urged at the bar, that the courts ought to inquire into the motives of the legislature where fraud and corruption were alleged, and annul their action if the allegation were established, the argument has in no case been acceded to by the judiciary, and they have never allowed the inquiry to be entered upon.1

1 People v. Lawrence, 36 Barb. 193; People v. New York Central Railroad Co., 34 Barb. 137; Baltimore v. State, 15 Md. 376.

2

DeCamp v. Eveland, 19 Barb. 81.

* Johnson v. Joliet and Chicago Railroad Co., 23 Ill. 207. The constitution of Illinois provided that "corporations not possessing banking powers or privileges may be formed under general laws, but shall not be created by special acts, except for municipal purposes, and in cases where, in the judgment of the General Assembly, the objects of the corporation cannot be attained under general laws." A special charter being passed without any legislative declaration that its object could not be attained under a general law, the Supreme Court sustained it, but placed their decision mainly on the ground, that the clause had been wholly disregarded," and it would now produce far-spread ruin to declare such acts unconstitutional and void." It is very clearly intimated in the opinion, that the legislative practice, and this decision sustaining it, did violence to the intent of the constitution. A provision in the constitution of Indiana that "no act shall take effect until the same shall have been published and circulated in the several counties of this State, by authority, except in case of emergency," adds the words, "which emergency shall be declared in the preamble, or in the body of the law"; thus clearly making the legislative declaration necessary. Carpenter v. Montgomery, 7 Blackf. 415; Mark v. State, 15 Ind. 98; Hendrickson v. Hendrickson, 7 Ind. 13.

* Sunbury and Erie Railroad Co. v. Cooper, 33 Penn. St. 278; Ex parte Newman, 9 Cal. 502; Baltimore v. State, 15 Md. 376; Johnson v. Higgins, 3 Met. (Ky.) 566. "The courts cannot impute to the legislature any other but public motives for their acts." People v. Draper, 15 N. Y. 545, per Denio, Ch. J. "We are not made judges of the motives of the legislature, and the court will not usurp the inquisitorial office of inquiry into the bona fides of that body in discharging its duties." Shankland, J. in same case, p. 555. "The powers of the three departments are not merely equal; they are exclusive in respect to the duties assigned to each. They are absolutely independent of each other. It is now proposed that one of the three powers shall institute an inquiry into the conduct of another department, and form an issue to try by what motives the legislature were governed in the enactment of a law. If this may be done, we may also inquire by what motives the executive is induced to approve a bill or withhold his approval, and in case of withholding it corruptly, by our mandate compel