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49 Vroom.

Attorney-General v. McGuinness.

that a given state of facts is as the jury found it, but whether it finds that such given state of facts could not be legitimately found by the jury. The error of which we are speaking is reflected in the common expression that an act of the legislature is set aside by the courts, whereas the truth is that courts never set aside acts of the legislature in the sense that they set aside municipal ordinances or public grants on direct attack. What the courts do is to declare in the course of a specific litigation that the rights of a party thereto are not affected by a certain statute for the reason of its non-conformity to the paramount law. Allison v. Corker, 38 V room 596.

The judicial function therefore with respect to the invalidation of a legislative act does not consist merely in comparing the determination evinced by such act with that reached by the court and the substitution of the latter for the former whenever they happen to differ. On the contrary, the ultimate judicial question is not whether the court construes the constitution as permitting the act, but whether the constitution permits the court to disregard the act; a question that is not to be conclusively tested by the court's judgment as to the constitutionality of the act, but by its conclusion as to what judgment was permissible to that department of the government to which the constitution has committed the duty of making such judgment. A court by force of its own reas

asoning, or by reason of the diversity of sentiment among its own members, may often conclude that, while according to what it deems the correct view, an act is void, still there is another view that is permissible that would support the act. As legislators the judges would be bound to follow their own judgment, but as a court they must accord that same right to those in whom the constitution has reposed it.

Hence, as was pointed out by Judge Cooley (Const. L. (6th ed.) 68), there is no inconsistence in a man's voting as legislator against a measure as being, in his judgment, unconstitutional, and afterwards, when placed upon the bench, declaring it constitutional, notwithstanding that his own

Attorney-General v. McGuinness.

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opinion had undergone no change; an illustration that is cited with approval by Mr. Bryce in his American Commonwealth (Vol. 1, p. 431), and by Professor Thayer (Leg. Es. 22).

If such be the established rule and policy when a permissible doubt exists as to the proper interpretation or construction of the written language of a constitution, with how much greater force must they of necessity apply to such doubts as arise when the existence of a constitutional limitation or restriction is sought to be established and defined, not by reference to any words that are written in that instrument, but by reference to the spirit that is supposed to pervade it or to underlie or to overshadow the purposes and provisions expressed in its written language. During the period when the power of the judiciary to declare an act of the legislature unconstitutional was still under discussion, one of the arguments advanced in support ci such power was that it was merely the construction of a writing which was always a court question. As an argument this was inadequate and is not the foundation of the doctrine that was subsequently established, but in its bearing upon the rule that is to control in cases of doubt it is fruitful of pertinent suggestions. When the written language of a constitution is laid before a court for construction the ultimate object of inquiry is fixed and uniform; it is the same for all and is equally available to every judge. Moreover, the rules to be applied are in the main fixed canons of construction about which, more than perhaps in any other department of the law, there is substantial unanimity. Hence both the exact language to be construed and the precise instruments to be employed in its construction are before every member of the court alike, so that all uncertainty and diversities of view from that source are practically eliminated. If, therefore, under circumstances like these, the rule has arisen that if there be a permissible doubt whether an act of the legislature transgresses the constitution the court will not declare it invalid, with what added force must such rule apply, when, with no determinate matter before them and with no established rules or uniform

49 V'room.

Attorney-General v. McGuinness.

sources of information for their guidance, judges are asked to declare an act invalid because of an inference that may be drawn from certain data gathered from sources historical, literary or political, aliunde the constitution, in support of the argument that such act is at variance with the spirit that. animated the framers of the constitution and hence must be judicially declared to pervade that instrument and to be perpetuated by it although unexpressed in its provisions. Such a proposition must inevitably present some, if not many, questions as to which permissible doubts may arise. In the collection of data, for instance, what books or documents are the judges to consult and on which are they to rely? Is their research to be uniform and along similar lines or is each judge to reach his conclusion from sources of information selected by or available to him? What credit is to be given where authors differ? And if out of this uncertainty it be determined as an historical fact that the governmental policy of "home rule," for instance, prevailed and was a conspicuous fact in the minds of the framers of the constitution, by what line of reasoning, that is beyond a permissible doubt, can it be said in the same breath that it was left out of the constitution and yet was perpetuated by it?

If a written instrument framed to declare the rights of parties omit a matter that was present to the minds of each, the fact that such matter was not put in writing is conclusive of the intention of the framers of the instrument to leave it out. Can it be said, therefore, that when the framers of an instrument that was to declare the rights of all of the people left out of its provisions an important matter of governmental policy that was conspicuously present in their minds and required but a sentence to transform it into a constitutional privilege, they thought that they were not only perpetuating such policy, but were transforming it into a privilege by which the expressed provisions of the constitution were to be limited and restricted? And if such a canon of construction could appeal persuasively to any judicial mind, can it be said that it admits of no permissible doubt?

I am not suggesting that an investigation conducted along

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these lines is so essentially unjudicial in character as to put the whole matter out of court; what I am pointing out is that, in a case like the present, where, when asked to say that the legislature has passed an act that the constitution forbids, we are directed not to something that was put in the constitution by its framers but to something that was left out of it by them, the doubt that must inevitably exist as to the conclusive correctness of any such inference drawn from extra-constitutional sources is sufficient to determine our judicial action under the rule stated by Marshall that "in no doubtful case would a court pronounce a legislative act to be contrary to the constitution."

This rule is sometimes stated by text-writers to rest upon the doctrine of contemporaneous construction, but for the reasons already given we think that its true foundation is in the judicial character of the function that is being exercised rather than in a mere rule of expediency or doctrine of repose. A host of decisions illustrating this rule will be found in the Century Digest under the head of Constitutional Law, “Presumptions and construction in favor of constitutionality," volume 10, section 46, and under the syllabus "Courts may not declare an act void merely because in their opinion it is opposed to the spirit supposed to pervade the constitution,” same volume and title, section 38.

These illustrations of the law furnish the best answer to the brilliant but unconvincing argument of Judge Cooley in his concurring opinion in People v. Hurlburt, 24 Mich. 44, which contrasts so sharply with his exegesis of the same subject when as a text-writer he says: "If the courts are not at liberty to declare statutes void because of their apparent injustice or impolicy, neither can they do so because they appear to the minds of the judges to violate fundamental principles of republican government, unless it shall be found that those principles are placed beyond legislative encroachment by the constitution.Cooley Const. Lim. (5th ed.) 202.

It has, I think, been made evident by the foregoing considerations that there are three views that may be taken with respect to the existence of a constitutional limitation by force

49 Vroom.

Attorney-General v. McGuinness,

of which the legislature is prohibited from creating and providing for the appointment of a commission to function in the regulation of municipal affairs unless the members of such commission are selected by the electors of such municipality.

The first view is that no such limitation exists, either as a provision of the constitution or as a spirit pervading that instrument.

The second is that the right to create such a commission, if not expressly enjoined, is impliedly conferred upon the legislature by the amended constitution.

The third is that if either of the former views be tenable or even permissible the contrary view is by that circumstance alone rendered doubtful within the meaning of Chief Justice Marshall's rule that "in no doubtful case will a court pronounce a legislative act to be contrary to the constitution.”

Practically, therefore, these views all converge to a common end that results in our refusal to declare that the Civil Service act of 1908 is unconstitutional in the respects urged against its validity upon this branch of the present case.

This, for the purposes of the case in hand, disposes of the constitutional question raised by the first query put to counsel by the court, and results in our sustaining the act in question in so far as this ground of attack upon its constitutionality is concerned.

II. The second question upon which the views of counsel were requested is this: Assuming that the legislature has authority to create a commission so composed, and clothed with such powers, can it delegate to the governing body of such municipality, instead of to the voters thereof, the determination of the question whether the powers conferred upon the commission shall be exercised by it in the municipality?

This question raises the constitutionality of the provision contained in the thirtieth section of the Civil Service act, by which such act is made to take effect in any municipality when adopted by the governing body thereof.

Section 30 is as follows:

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