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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 es 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 erpose between the Executive and

he memVOL. IV. Const. Hist.-2.

bers of the Council of Appointment touching the right of nomination, or to pass a declaratory act defining the powers of the said council, or prescribing the manner in which the same shall be exercised." The Governor also suggested that the controversy might be settled by judgment of law. It would have been easy to make a case for judicial consideration, and this course would now be adopted under similar circumstances. The legislature of 1801, however, concluded to recommend a convention; and thus the people themselves, acting through delegates chosen for that purpose, pronounced, in 1801, a judicial construction of a constitutional provision adopted in 1777. It is noteworthy that thus early in our history the assembly declined to exercise the distinctly judicial function of construing the Constitution. More than half a century after the Convention of 1801, Justice Brown, writing the opinion of the supreme court in the Toynbee Case (1855) 20 Barb. 168, 195, construing the prohibitory liquor law of 1855, reiterated the opinion expressed by the assembly, and said that while "the legislature may declare what a particular term or expression means when used in a statute, ... it cannot declare what the same term or expression means, and thus enlarge or restrain its signification, when used in the Constitution. It is of no consequence what the legislature think of it, or what import they attribute to it. The real inquiry is, What did the framers of the Constitution mean by it, and what was its known legal definition and signification when the Constitution was adopted?"

A long and uninterrupted practical construction of a Constitution by the legislature, and which has been acquiesced in and acted upon by the executive and administrative departments of the government, is entitled to great, and often even controlling, weight in its interpretation. “It has almost the force of a judicial exposition (Story, Const. $ 408); and unless such legislation and practice is manifestly in violation of the words used, the greatest weight should be given to it in construing them. (Cooley, Const. Lim. 67, and cases cited.)” People ex rel. Williams v. Dayton (1874) 55 N. Y. 367, 378; also People ex rel. Einsfeld v. Murray (1896) 149 N. Y. 367, 32 L. R. A. 344, 44 N. E. 146, which presents an interesting instance of practical construction sustaining the provision in the liquor tax law of 1896, which divides the liquor tax between the state and localities, following a legislative policy which had prevailed during the entire history of the state, and which was embodied in statutes enacted without the two-thirds vote required by § 20 of article 3, which had been a part of the Constitution since 1821.

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Provisions are generally found in state constitutions enjoining upon the legislature the passing of laws on special subjects to carry out the policy defined in the instrument. Such provisions are incapable of enforcement by judicial or other mandate; but they have generally been effective through the moral sanction which they possess to induce the legislature to discharge the duty cast upon it. People ex rel. Inebriates' Home v. Brooklyn (1897) 152 N. Y. 390, 409, 46 N. E. 852.

Meaning, when fixed.—"The meaning of the Constitution is fixed when it is adopted, and it is not different at any subsequent time, when a court has occasion to pass upon it. The object of construction, as applied to a written constitution, is to give effect to the intent of the people in adopting it." Cooley, Const. Lim. 6th ed. 69, cited in Reilly v. Gray (1894) 77 Hun, 402, 409, 28 N. Y. Supp. 811, in which the court also say that "in construing a provision of the Constitution, its history and the conditions and circumstances attending its adoption must be kept in view.”

Object.-A constitution should be so construed as best to promote the objects for which it was made. Extremes of constructionliberal or strict-should be avoided, and the purpose for which the Constitution was framed and the government established should be kept steadily in view. North River Ş. B. Co. v. Livingston (1825) 3 Cow. 713, 750, where this rule is stated by Chief Justice Savage with special reference to the Federal Constitution.

Scope of constitution.—A constitution is not to be interpreted precisely like a statute. A constitutional convention is not, like the legislature, obliged to look carefully to the preservation of vested rights. Subject to popular approval and the Federal Constitution, it may "deal with all private and social rights, and with all the existing laws and institutions of the state.” The authors of a constitution do not execute a delegated power "limited by other constitutional restraints,” but, “as the founders of a state," must be deemed "intent only upon establishing such principles as seemed best calculated to produce good government and promote the public happiness at the expense of any and all existing institutions which might stand in their way.” Article 8, § 7 of the Constitution of 1846, prescribing the liability of stockholders of banks, was held to appiy to existing banks as well as to banks afterwards organized. Re Oliver Lee & Co.'s Bank (1860) 21 N. Y. 9.

Self-executing provisions. The provision of article 8, 86, requiring the legislature to provide for the redemption of bills in specie, is not self-executing. Metropolitan Bank v. Van Dyck (1863) 27 N. Y. 400.

Article 2, § 1, defining the qualifications of voters, is self-executing. People v. Barber (1888) 48 Hun, 198.

The provision of article 6, $ 6, relating to the transfer of causes on the abolition of the court of oyer and terminer, is self-executing. People v. Hoch (1896) 150 N. Y. 293, 44 N. E. 976.

Article 5, § 9, civil service, is self-executing under existing statutes, without further legislation (People ex rel. McClelland v. Roberts (1896] 148 N. Y. 360, 31 L. R. A. 399, 42 N. E. 1082), but it is not self-executing as to minor political subdivisions which were not included in the civil service system when the amendment was adopted. Chittenden v. Wurster (1897) 152 N. Y. 345, 37 L. R. A. 809, 46 N. E. 857.

Special term.—Before the court will deem it their duty to declare a statute unconstitutional a case must be presented in which there can be no rational doubt. Especially when the question is presented for the decision of a single judge on a collateral motion. Macomber v. New York (1860) 17 Abb. Pr. N. S. 35.

It has frequently been held that the court at special term should not declare an act of the legislature unconstitutional, except in an extremely clear case. Re Lexington Ave. (1882) 63 How. Pr. 464, per Lawrence, J. (1883) 92 N. Y. 629; People ex rel. Clark v. Sing Sing Prison (1902) 39 Misc. 113, 117, 78 N. Y. Supp. 907. In Re Bayard (1881) 25 Hun, 546, the judge at special term held an act unconstitutional. This was reversed at general term. In Smith v. Keteltas (1900) 32 Misc. III, 66 N. Y. Supp. 260, (1901) 62 App. Div. 174, 70 N. Y. Supp. 1065, the court, at special term, declined to declare an act void, it not being perfectly clear that it violated the Constitution. So in Meyers v. New York (1900) 32 Misc. 522, 527, 66 N. Y. Supp. 755, (1900) 54 App. Div. 631, 66 N. Y. Supp. 755, the judge at special term thought that,

matter of judicial propriety, "he should not, except in a palpable case, assume to pronounce an act of the legislature a violation of the Constitution,” especially in this case, where the act had been before the appellate division on several occasions, when its constitutionality might have been, but was not, questioned. The constitutionality of a law of the state ought not to be called in question summarily on a motion to strike out part of a pleading as irrelevant. Brien v. Clay (1852) 1 E. D. Smith, 649. The court will not determine that a statute on which the plaintiff's right to maintain the action depends is unconstitutional, upon the hearing of a motion on affidavits. Havemeyer v. Ingersoll (1871) 12 Abb. Pr. N. S. 301.

"It has been repeatedly held hat a single judge ought not to



declare an act of the legislature unconstitutional unless a case is presented in which there can be no rational doubt." People ex rel. Klein v. McDonald (1896) 52 N. Y. Supp. 898.

Waiver.-A person may renounce a constitutional provision made for his own benefit. Baker v. Braman (1843) 6 Hill, 47; Sherman v. McKeon (1868) 38 N. Y. 266; Phyfe v. Eimer (1871) 45 N. Y. 102; Vose v. Cockcroft (1871) 44 N. Y. 415; Detmold v. Drake (1871) 46 N. Y. 318; Connors v. People (1872) 50 N. Y. 240; People v. Quigg (1874) 59 N. Y. 83; Brooklyn v. Copeland (1887) 106 N. Y. 496, 13 N. E. 451; Brooklyn Park v. Armstrong (1871) 45 N. Y. 234, 239, 6 Am. Rep. 70; Akin v. Water Comrs. (1894) 82 Hun, 265, 31 N. Y. pp. 254; New York v. Manhattan R. Co. (1894) 143 N. Y. 1, 26, 37 N. E. 494, applying the rule to a corporation; Dodge v. Cornelius (1901) 168 N. Y. 242, 61 N. E. 244; Whitaker v. Staten Island Midland R. Co. (1902) 76 App. Div. 351, 78 N. Y. Supp. 410; Sentenis v. Ladew (1893) 140 N. Y. 463, 466, 37 Am. St. Rep. 569, 35 N. E. 650; Embury v. Conner (1850) 3 N. Y. 511, 53 Am. Dec. 325; Re Cooper (1883) 93 N. Y. 507; Re Cullinan (1892) 76 App. Div. 362, 78 N. Y. Supp. 466.


In an action for divorce the court declined to consider an allegation that a judgment of divorce in Louisiana was void because the statute under which it was obtained was invalid under the Constitution of that state. There was no evidence nor Louisiana decisions cited showing that a statute authorizing a divorce for the past conduct of the defendant had been held unconstitutional in that state. "In the face of a formal and deliberate judgment of a court of the state of Louisiana decreeing a divorce, with the Constitution of the state and the laws of its general assembly before it, we may not assume that the law of that state, as settled by its judiciary, is against the validity of the statutes, and of this judgment under them; nor may we apply to that Constitution and those statutes our own interpretation and adjudication, for that would be to substitute the law of New York for the law of Louisiana.” Such a judgment is entitled to full faith and credit under the Federal Constitution if the court had jurisdiction of the parties and of the subject-matter. Hunt v. Hunt (1878) 72 N. Y. 217, 28 Am. Rep. 129

The supreme court in Dodge v. Platte County (1878) 16 Hun, 285, sustained a statute of Missouri ratifying proceedings in relation

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