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decision. The Supreme Court in passing finally upon this point is not, then, called upon to review the act of a co-ordinate department, but has to decide between the conflicting claims of two governments, and, quite properly, feels itself at liberty to decide the point as an original proposition; namely, upon the basis of its own judgment as to what is the most reasonable construction of the constitutional provisions involved.

If, however, the state law, whose constitutionality is questioned, is with reference to a matter admittedly within the province of the States, and the question is simply whether that power has been properly exercised, there is held to be a strong presumption that the act is constitutional. Thus, for example, if it is a question whether the States have the power to regulate interstate commerce, or to tax a national bank, or to naturalize aliens, or enact bankruptcy laws, there is no presumption in favor of the constitutionality of acts in which the state power is asserted. If, however, it is a question, for example, whether the police powers, admittedly belonging to the States, have been constitutionally exercised, the presumption is that they have been so exercised.

An excellent illustration of this last, is seen in the treatment by the Supreme Court of the oleomargarine laws of Pennsylvania in the case of Powell v. Pennsylvania,20 decided in 1887. The plaintiff in error had been indicted for selling oleomargarine, plainly marked as such, in violation of a Pennsylvania law absolutely forbidding the sale and production of that commodity within the State. Powell offered to prove that the oleomargarine was pure and as wholesome as butter, and that, in fact, it differed from butter only in that it had a slightly smaller per cent of a substance termed butterine, which gave a flavor to but had nothing to do with the wholesomeness of the product. He claimed, therefore, that a law forbidding the production and sale of this article was not a proper exercise of the police powers of the State, and operated to deprive him of that liberty and property which the Fourteenth Amendment to the federal Constitution guaranteed him. The Supreme 20 127 U. S. 678; 8 Sup. Ct. Rep. 992; 32 L. ed. 253.

Court of the United States, without questioning the facts asserted regarding the wholesomeness of oleomargarine, upheld the state law, declaring that it could not "adjudge that the defendant's rights of liberty and property have been infringed by the statute of Pennsylvania, without holding that, although it may have been enacted in good faith for the objects expressed in its title, namely, to protect the public health and prevent the adulteration of dairy products and fraud in the sale thereof, it has, in fact, no real or substantial relation to those objects." This, the Supreme Court said, it could not affirm. Whether or not the law is needed as a protection to the public, the court declared to be a question of fact belonging primarily to the state legislature to determine. "And," the court continued, "as it does not appear upon the face of the statute, or from any facts of which the court must take judicial cognizance, that it infringes rights secured by the fundamental law, the legislative determination of those questions is conclusive upon the courts."

When the federal Supreme Court is called upon to consider the constitutionality of a state law as determined by its conformity with the Constitution of the State, the state Constitution is construed as having for its general purpose the placing of limitations upon the powers of the legislature; whereas, of course, the federal Constitution is viewed as a grant of legislative power. In other words, whereas the federal legislature is construed to have only those powers granted to it expressly or impliedly by the federal Constitution, the state legislatures are considered to possess all powers not expressly or impliedly withdrawn from them by the federal or respective state Constitutions.

In those cases in which the courts of the States are called upon to consider the constitutionality of the acts of their own lawmaking bodies as tested by the federal or their own state Constitutions, they of course have to deal with the acts of a department of government co-ordinate in power with themselves; and, therefore, they hold themselves, or at least should hold themselves, bound in all cases to give to the laws that same benefit of rational doubt which the federal Supreme Court gives to acts of Congress.

In concluding this subject, it is proper to observe that this preliminary legislative or executive interpretation of constitutional powers having such an importance as we have seen attached to it, the responsibility for its proper exercise is proportionately great. Those legislators, therefore, who vote for a measure without being honestly convinced of its constitutionality, and excuse themselves upon the ground that, if their action is not valid, the courts have the opportunity to so declare, are recreant to their duty. Not only, as we have seen, may serious consequences follow from these acts before their invalidity is judicially determined, but, what is of still more importance, an unfortunate burden is thrown upon the courts. No popular government can successfully endure in which the decisions of its courts do not receive the general approval of the citizen body. But if legislatures recklessly pass measures ostensibly for the benefit of the masses, but invalid when tested by the fundamental law, the odium of defeating these measures is thrown upon the courts, and a popular objection to and distrust of these courts created. For, of course, the people generally cannot be expected to appreciate the constitutional questions involved. All that they can see and appreciate is that their legislative representatives have enacted a measure in their interests, which the courts have declined to recognize as valid.

§ 11. The Force of Contemporaneous or Long Continued Legislative Interpretation.

The presumption of constitutionality which attaches to an act of Congress is increased when the legislative interpretation has been frequently applied during a considerable number of years, or when it dates from a period practically contemporaneous with the adoption of the Constitution, or when, based upon a confidence in its correctness, many and important public and private rights have been fixed.

In United States v. State Bank21 the court, speaking through Justice Story, say: "It is not unimportant to state that the construction which we have given to the terms of the act is that 21 6 Pet. 29; 8 L. ed. 308.

which is understood to have been practically acted upon by the government, as well as by individuals, ever since its enactment. Many estates, as well of deceased persons, as of persons insolvent who have made general assignments, have been settled upon the footing of its correctness. A practice so long and so general would, of itself, furnish strong grounds for a liberal consideration, and could not now be disturbed without introducing a train of serious mischiefs. We think the practice was founded in the true exposition of the terms and intent of the act, but if it were susceptible of some doubt, so long an acquiescence in it would justify us in yielding to it as a safe and reasonable explanation." The foregoing had reference to the construction of a statute, but the same reasoning is applicable to the Constitution.

In Lithographic Company v. Sarony22 the court declare: "The construction placed upon the Constitution by the first act of 1790 and the act of 1802 by the men who were contemporary with its formation, many of whom were members of the Convention who framed it, is of itself entitled to very great weight, and when it is remembered that the rights thus established have not been disputed during a period of nearly a century, it is almost conclusive.23

§ 12. Legislative and Executive Practice Not Absolutely Binding.

The Supreme Court has, however, never held itself absolutely bound by a legislative or executive construction (political questions excepted) however long acquiesced in, or however nearly contemporaneous its first statement with the adoption of the Constitution.24

22 111 U. S. 53; 4 Sup. Ct. Rep. 279; 28 L. ed. 349.

23 See also Stuart v. Laird, 1 Cr. 299; 2 L. ed. 115.

24 In Swift v. United States (105 U. S. 691; 26 L. ed. 1108) the court say: "The rule which gives determining weight to contemporaneous construction put upon a statute by those charged with its execution applies only in cases of ambiguity and doubt."

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Contemporary construction," says Story, in his Commentaries (§ 407), "is properly resorted to, to illustrate, and confirm the text, to explain a doubtful phrase, or to expound an obscure clause; and in proportion to the uniformity and universal.ty of that construction, and the known ability and

§ 13. Extrinsic Evidence.

Generally speaking, in the construction of the Constitution the well known distinctions between latent and patent ambiguities, and between the use of extrinsic and intrinsic evidence apply. Where the language of the instrument is itself indefinite or is such that more than one meaning may, by grammatical construction, be drawn from its terms, the courts base their determinations upon the language and provisions found within the four corners of the instrument, and without resort to extrinsic evidence. The governing point is as to what is actually written. If a given power may rationally, logically, and grammatically be construed as granted by a given provision, then it is of no countervailing force to adduce the fact that such was not the intention of those by whom the instrument of government was established. Thus, six years after the adoption of our Constitution, the judicial power of the federal courts was construed to extend to a case in which a State was defendant in a suit brought by a private individual, and support for such construction was undoubtedly supplied by the written word. That such, however, was not the intention of those by whom the Constitution was framed and ratified is quite certain, as was demonstrated by the promptness and unanimity with which the Eleventh Amendment was adopted, preventing a future similar construction.

talents of those, by whom it was given, is the credit to which it is entitled. It can never abrogate the text; it can never fritter away the obvious sense; it can never narrow down its true limitations, it can never enlarge its natural boundaries."

In United States v. Alger (152 U. S. 384; 14 Sup. Ct. Rep. 635; 38 L. ed. 488) the court say: "As the meaning of the statute as applied to these cases, appears to this court to be perfectly clear, no practice inconsistent with that meaning can have any effect."

In Fairbanks v. United States (181 U. S. 283; 21 Sup. Ct. Rep. 648; 45 L. ed. 862) the constructive force to be given to legislative and executive practice is reviewed at length. With reference to the principle that the judiciary cannot be conclusively bound thereby the court say: "From this resumé of our decisions it clearly appears that practical construction is relied upon only in cases of doubt."

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