56 N.J.L. 126 | N.J. | 1893
The act of April 16th, 1846 (R. S., p. 409), entitled “An act to regulate elections,” by its first section enacted that on the Tuesday next after the first Monday in November in each year an election shall be held in each county to elect for such county such a number of persons to be members of the general assembly as such county shall be entitled to elect. The first act dividing counties into assembly districts was passed March 26th, 1852. Pamph. L., p. 281. This act was a supplement to the act to regulate elections. The second section of that act enacted that on' the day mentioned in the act of 1846 in each succeeding year an election should be held in each of the said assembly districts for one member of the general assembly, who “ shall be a resident in said district.” In 1861, at the session of the legislature held next after the federal census of 1860, an act was passed which was also a supplement to the act regulating elections, forming the several counties into as many assembly districts as said counties were respectively entitled to members of assembly. Pamph. L., p. 529. In 1871 a similar act was passed, with the title of “An act to reapportion the several assembly districts of the State of New Jersey.” Pamph. L., p. 45. By the General Election law of 1876 the first section of the General Election act of 1846 was amended by requiring an election to be held in the several election districts in each county to elect for such county such a number of persons to be members of the general assembly as such county shall be entitled to elect. Rev., p. 337. Supplements to the Apportionment act of 1871 were passed March 4th, 1878 [Pamph. L., pp. 40, 542); March 6th, 1878 [Id., p. 49); March 12th, 1878 [Id., p. 81); March 29th, 1878 [Id., p. 570); April 3d, 1878 [Id., p. 266); April 4th, 1878 [Id., p. 285); April 4th, 1878 [Id., p. 287); March 27th, 1889 [Id., p. 115). Of these acts all, with the exception of the act of April 3d, 1878, were alterations in several of the counties of the assembly districts established by the act of 1871; and the act of April
The question, therefore, arises directly in this proceeding whether the act of 1891 prescribes a constitutional method of electing members of the general assembly. The consideration arising in limine concerns the right and power of the judiciary to take cognizance of the subject. The contention of counsel, in resisting the allowance of this writ, is that the question is a political question and not subject to judicial review. The constitution delegates to the legislative department of the government the function of providing for the election of members of the assembly in the manner and subject to the restrictions prescribed by the constitution. A statute in the performance of that function is the exercise of a legislative and not of a
By statute, the city and township clerks are to give public notice of the time and place and purpose of holding an election (Rev., p. 338, § 9), and, by the Ballot Reform act of 1890, it is made the duty of the clerk of the county to receive nominations and provide official ballots for the election of members of the assembly. Pamph. L., p. 361. The prayer of the petitioners is for a mandamus directed to these officers, in the alternative either to give notice, receive nominations, prepare ballots for the election of the number of members of assembly apportioned to the county of Essex by the whole body of the legal voters of the county, or to receive nominations, prepare ballots and give notice of an election of such members, in accordance with the assembly districts created by the act of 1881.
The map marked Exhibit R 12 shows the territorial location and extent of the assembly districts created by the act of 1891. The following table, compiled from the testimony, exhibits the population of these districts respectively and also the number of votes polled in each district at the election of 1892 and the majority of the member elected in each district:
DISTRICT. POPULATION. VOTE—1892. DEM. REP.
First............. 18,616 3,381 521
Second........... 14,897 3,634 310
Third............. 11,349 3,209 587
Fourth........... 17,746 4,662 596
Fifth.............. 27,431 6,750 1,334
Sixth.............. 15,245 3,298 648
Seventh.......... 29,748 6,691 239
Eighth........... 25,600 5,137 ' 119
Ninth............. 24,872 6,386 2,130
Tenth............. 28,172 6,454 751
Eleventh......... 42,412 9,980 1,623
3,771 5,087
In this construction of districts, the eleventh district, with a population of forty-two thousand four hundred and twelve, and nine thousand nine hundred and eighty qualified voters, is allowed one member of assembly, and the third district, with a population of eleven thousand three hundred and forty-nine, and three thousand two hundred and nine voters, obtains an equal representation in the popular branch of the legislature. A qualified voter of the county of Essex, who <s casts his ballot in the third district, has, by this act, an effect h given to it equal to the ballots of three qualified voters of the * P county cast in the eleventh district. The inequality in the; f apportionment of the population and qualified voters of the|-j county among the districts by this act is conspicuous.
By the census of 1880, Essex county was entitled to ten members of assembly. The Apportionment act of 1881 created ten districts, having a population ranging from eighteen thousand six hundred and eighty-three to twenty-one thousand two hundred and fifty-three. The contention of the relators is that the apportionment among the several assembly districts by the act of 1881 was fair and reasonable, and that the apportionment by the act of 1891 is unjust and unreasonable, depriving the citizens of the county of the right of equal suffrage secured by the constitution. Hence, the alternative prayer of the petitioners is that a writ issue for an
We find insuperable obstacles in the way of judicial action of the scope last mentioned. If the legislature, having made an apportionment of members among the counties in conformity with the constitution, has the additional power to create districts within the county for the election of members, its power in that respect is unfettered by constitutional limitation, and consequently beyond the control of the judicial department of the government. The legislature may create new counties. The creation of a new county adds an additional member to the state senate. The power of creating new counties may be resorted to for political or other purposes inconsistent with public welfare, and may be oppressive to taxpayers on whom the burden of supporting a county government may fall, and yet no one would entertain the thought that the remedy for such an unwise or oppressive act vested in the judiciary. The eases in which the courts have intervened to set aside acts of the legislature creating election districts, have uniformly gone upon constitutional limitations which had been violated. I know of no precedent or principle that would authorize the court to overturn a law passed by the legislature within constitutional limitations, on the ground that it is unwise, impolitic, unjust or oppressive, or even that it was procured by corrupt means. The remedy for legislation that is simply pernicious in its character is with the people. I concur in the views submitted by defendants’ counsel in their brief that- “ the relators must show that the law they attack is a violation of constitutional limitations; the moment they step beyond that line of attack they are on political ground beyond the jurisdiction of the court.”
The issue, therefore, presented by the record in this case is whether, under the government established by the constitution, the members of the general assembly apportioned among the several counties may be elected otherwise than by the qualified voters of the county at large.
Paragraph 1 of section 1, article 4, provides that “the legislative power shall be vested in a senate and general assembly.” Section 2 provides that “ the senate shall be composed of one senator from each county in the state, elected by the legal voters of the counties respectively, for three years.” Section 3 provides that “ the general assembly shall be composed of members annually elected by the legal voters of the counties respectively, who.shall be apportioned among the said counties as nearly as may be according to the number of their inhabitants. The present apportionment shall continue until the next census of the United States shall have been taken, and an apportionment of members of the general assembly shall be made by the legislature at its first session after the next and every subsequent enumeration or census, and when made shall remain unaltered until another enumeration shall have been taken; provided, that each county shall at all times be entitled to one member, and the whole number of members shall never exceed sixty.” Paragraph 2 of article 4 provides that “no person shall be a member of the senate who shall not have attained the age of thirty years, and have been a citizen and inhabitant of the state for four years, and of the county for which he shall be chosen one year, next before his election; and no person shall be a member of the general assembly who shall not have attained the age of twenty-one years, and have been a citizen and inhabitant of the state for two years, and of the county for which he shall be chosen, one year next before his election.” Article 2, in providing for the right of suffrage, provides that “ every male citizen of the United States, of the age of twenty-one years, who shall have been a resident of this state one year, and of the county in which he claims his vote five months next before the election, shall be entitled to vote for all officers that now are or hereafter may be elective by the people.”
By the instructions to Lord Cornbury and his commission, the instruments which in 1702 established a colonial government, a general assembly for the enacting of laws was constituted, consisting of twenty-four representatives to be chosen in manner following: Two by the inhabitants and householders in each of the towns of Berth Amboy, Burlington and Salem, ten by the freeholders of East Jersey, and ten by the freeholders of West Jersey. The qualification for the representatives of these divisions was an estate of freehold in “ the division for which he should be chosen,” and the general assembly was composed of persons “ elected by the major part of the freeholders of the respective counties and places.” Learn. & Spi. 619, 647. By an act passed April 4th, 1709, entitled “An act regulating the qualification of representatives to serve as general assembly in this province of New Jersey,” two representatives were assigned to the towns of Perth Amboy and Burlington respectively, and two to each of the counties into which the colony was divided. This act provided that these representatives should be chosen “by the majority of voices or votes of the freeholders of each county,” and that the “representatives for the counties aforesaid” should be freeholders in that division “for which he or they should be chosen.” Allin. L., p.Q. As new counties were created from time to time each county was given two representatives, to be chosen by the county for representatives of the county.
By the first constitution of this state, adopted July 3d, 1776, the legislative department was divided into two bodies— a legislative council and a general assembly—the members of which were chosen annually, one member of the legislative council and three members of assembly being chosen by each county. The language of that constitution is that “ the counties shall severally choose one person to be a member of the
The constitution of 1776 authorized the legislature to add to or diminish the number or proportion of the members of assembly for any county or counties, as it might judge equitable and proper, on the principles of more equal representation. From time to time acts were passed increasing or diminishing the number of members of assembly in several of the counties. But no effort was made to equalize representation on the basis of population until 1838, when an act was passed, entitled “An act to provide for the equal and just representation of the several counties in this state in the general assembly,” which enacted “ that after the next and each subsequent census of this state that shall be taken in pursuance of any law or laws of the congress of the United States, each comity of this state shall be entitled to elect and send to the general assembly one member for every six thousand inhabitants which such county shall contain at the time of taking such census, as near as may be; provided always, that no county shall have a less number of representatives than such county is now by law entitled to elect and send to the general assembly.” Pamph. L., p. 57. This act was in force when the
In all the legislation on this subject during colonial times, and in the constitution of 1776 and the legislation thereafter, antecedent to the convention which framed the present constitution, members of the popular branch of the legislature were regarded as representatives of the counties, chosen by the legal voters of the counties and qualified for the office by qualifications, having relation to the counties for which they were elected.
In the convention of 1844 the inequality of representation in the legislature was made the ground of serious complaint. As the result of the deliberations of that body, the equal representation of the several counties in the senate was retained, and equality of representation in the general assembly was provided for by the apportionment of members among the counties according to population. A comparison of the language of the old constitution and the constitution framed by the convention indicates that the purpose of the members of the convention was a modification in some particulars and not a radical change in the composition and selection of members of the legislative department. The old constitution provided that “each county shall choose” the members of assembly and that each qualified voter resident within the county should be entitled to vote for representatives in the assembly. The new constitution provides that the members of the general assembly shall be elected “ by the legal voters of the counties respectively.” The old constitution provided that no person should be entitled to a seat in the assembly unless he be and have been for one whole year next before the election an inhabitant of “ the county he is to represent.” The new constitution provides that no person shall be a member of the general assembly who shall not have * * * been a citizen and inhabitant * * * of the county for which he shall be chosen one year next before his election. In providing for
The problem the members of the constitutional convention were dealing with was the equalization of representation in the popular branch of the legislature. The old constitution permitted the legislature in its discretion to add to or diminish the number or proportion of members of the assembly for the several counties. This discretionary power in the legislature was discarded in the new constitution, and the apportionment of members among the counties in proportion to population
The provisions of. the federal constitution regulating the choice of presidential electors and the election of members of congress are not apt precedents for the construction of the provisions of our constitution for the election of senators and members of assembly. Paragraph 2 of section 1 of article 2 of the federal constitution provides that “each state shall appoint, in such manner as the legislature thereof may direct, a number of electors [to vote for president and vice-president] equal to the whole number of senators and representatives in congress.” The appointment of electors is left with the several states, to be exercised in such manner as the legislature may direct. Under this constitutional provision the legislatures of the several states have exclusive power to direct the manner in which presidential electors shall be appointed, whether by the legislature directly, or by popular vote in districts, or by general ticket. McPherson v. Blacker, 146 U. S. 1. In delivering the opinion of the court in the case last cited, Chief Justice Fuller said: “ The constitution does not provide that the appointment of electors shall be by popular vote, nor that the electors shall be voted for upon a general ticket, nor that the majority of those who exercise the elective
The provisions in the federal constitution for the election of members of congress are also expressed in general terms. Section 2 of article 1 provides that " the house of representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.” And by section 4, "the times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof; but the congress may at any time by a law make or alter such regulation, except as to the places of choosing senators.” In the absence of the interposition of congress, the manner of electing representatives in congress is committed to the state legislature, with no other restriction than with respect to the qualifications of the electors. At the second session of the twenty-seventh congress an act was passed for the election of representatives in congress by districts. The debate upon the act was long and earnest. Two representatives of this state, Senator Miller, and Mr. Halsted in the house of representatives, participated in that debate. This discussion occurred in June, 1842. The constitutional convention assembled in May, 1844. The article of our constitution relating to the election of senators and members of the general assembly was reported by ex-Governor "VToom, than whom no one was more familiar with public affairs, state and national. If the convention which framed our constitution intended to adopt a mode of electing members of assembly in conformity with the election of members of congress under the federal constitution, it is reasonable to assume that, with the discussions in congress at the session of 1842 fresh in the minds of its members, the provisions of our constitution on that subject would have been cast in language of similar import with the federal constitution; and it
Grouping together the phrases in which the intent of the constitution is expressed, I think its true construction is beyond controversy. Members of the general assembly are apportioned among the counties, the qualification for member-ship consists of citizenship of the county for which they shall be chosen, and they are to be elected by the legal voters of the county. The right of suffrage is granted to residents of the county, and each qualified voter is secured by constitutional prescription the right to vote for all officers elective by the people. Members of the general assembly are, by the constitutional regulation, elective by the legal voters of the counties, and every qualified voter who has for the specified period of time been a resident of the county in which he claims his right to vote is secured the right to a voice in the election of all officers which, by the constitution or otherwise, are elective by the class of legal voters to which he belongs. The constituency by which members of the general assembly shall be elected is designated by the constitution, and the qualifications requisite for the right of suffrage are therein prescribed, and also the elective franchise which shall be enjoyed by each qualified voter. These constitutional provisions were self-executing and also self-sustaining. North Ward National Bank v. Newark, 10 Vroom 380, 387, 388 ; S. C., 11 Id. 558. Nothing was left for legislative action except the apportionment of members among the counties in a fixed ratio and such regulations as were necessary for holding elections—the canvassing of the votes and the certification of the result. When the legislature has once made an apportionment of members to any county, the constituency by which the members so
Other constitutional provisions which provide for the election of other officers, shed a light on the subject under consideration. Paragraph 7, section 2, article 7, provides that coroners shall be elected by the people of their respective counties. Paragraph 1, section 7, article 6, provides that there may be elected two, and not more than five, justices of the peace in each of the townships of the several counties, and in each of the wards in cities that vote in wards, the number of justices of the peace a township or ward may have being determined by its population. Paragraph 8, section 2, article 7, provides that justices of the peace shall be elected by ballot at the annual town meetings of the townships and of the wards, and when elected they shall be commissioned for the county. In these provisions, as in that providing for-the election of members of assembly, the constitution prescribes the constituency by which coroners and justices of the peace shall be elected; and it could not be contended with any plausibility that an act of the legislature for the election of coroners in election districts, or for the election of the number of justices of the peace a township or ward is entitled to have in a corresponding number of election precincts, would comply with the constitutional mandate. It will be observed also that throughout the constitution the constituency by which every constitutional officer shall be chosen is defined with precision.
It is contended, in the first place, that the constitutionality of legislation for the election of members of the general assembly in assembly districts is res adjudicata. To sustain this contention, Gardner v. Newark, 11 Vroom, 297, was cited. The proceeding in that case was an application for a mandamus to compel the mayor and common council of the city of Newark to divide the city into wards corresponding in number and boundaries with the assembly districts created by the act of April 5th, 1878. Tbe application was denied on the ground that acts creating legislative districts were public acts, and did not go into operation until the 4th of July succeeding the time they were passed. The case was argued at June Term, 1878, and prior to the date when the act of April 5th, 1878, became effective. It appears by the brief of the counsel of the relator in that case that the power of the legislature to divide counties into assembly districts was not put in dispute. His contention was that this power could be exercised only at the time the apportionment of members among the counties was made—that is, at the session next after the federal census—and that the districts then formed must remain unaltered until the time arrived for the next apportionment. It was to the aspect in which the question was presented by counsel that the remarks of Mr. Justice Reed with respect to the unfettered power of the legislature to direct the method in which members apportioned among the counties should be elected, were directed. The case was decided on other grounds. In June Term, 1890, the constitutionality of the assembly districting acts was mooted before the Court of Errors and Appeals in Mortland v. Christian, 23 Vroom 521. In that case the proceeding was in quo
The contention in the next place is, that the purpose and intent of these constitutional provisions have, by contemporaneous construction, long usage and practical interpretation, become established, and at this day the subject is not open for discussion.
Eor the first eight years after the new constitution was adopted—from the fall of 1844 to the fall of 1851 inclusive— the members of assembly were elected by the counties at large. This may be said to be the contemporaneous exposition of the
A new system of constructing assembly districts was introduced by the act of 1871, plainly for the furtherance of political purposes. Township, ward and city lines were disregarded, and assembly districts were carved out within the counties without regard to population, and were so devised, by massing together the qualified voters of one political party, as to secure to the minority of qualified voters of the county an unjust advantage in the choice of members of the assem
The maps and exhibits which, by the written stipulation of counsel, are evidence in these cases, exhibit the capacity that lies in the assembly district system to enable the political party that happens to control the legislature to provide means for its continuance in power. Certain it is that if the legislative usage and practice, beginning in 1871 and coming down to the present time, has established a construction of the constitution that is now a finality, then it must be conceded that the legislative power and discretion in the premises are unqualified and unrestrained; and, to adopt the language of the brief of the defendants’ counsel: “There is not any
How far contemporaneous exposition, long usage and practical interpretation shall control in the construction of constitutional provisions, is the vital question on this branch of the case.
Contemporaneous construction and long usage, and especially the practical interpretation by the various departments of the government, are entitled to great weight in the construction of constitutional provisions. But it is only when the words of the constitution are of doubtful significance, or the meaning is obscure, that resort to extraneous aid is permissible. Mr. Justice Story, in his treatise on the Constitution, says: “ When its terms are plain, clear and determinate, they require no interpretation, and it should therefore be admitted, if at all, with great caution, and only from necessity, either to escape some absurd consequence or to guard against some fatal evil.” And, again: “ Contemporary construction is properly resorted to to illustrate and confirm the text, to explain a doubtful phrase or to expound an obscure clause. * * * It can never abrogate the text; it can never narrow down its true limitations; it can never enlarge its natural boundaries.” 1 Story Const., §§ 405, 407.
The case most frequently cited to illustrate the effect of contemporaneous construction, long use and practical interpretation in the construction of constitutional provisions is Stuart v. Laird, 1 Cranch 299. Congress passed an act establishing Circuit Courts and designated the justices of the Supreme Court to hold the circuits. The question before the court was whether congress possessed the power to assign justices of the Supreme Court to hold Circuit Courts, or whether the judges of those courts should be specially appointed as such and have distinct commissions for that purpose. The only provisions of the federal constitution relating to the organizing of
Judge Cooley states the controlling principle in this language : “ Where no ambiguity or doubt appears in the law, the same rule obtains here as in other cases, that the court should confine its attention to the' law, and not allow extrinsic circumstances to introduce a difficulty where the language is plain. To allow force to a practical construction in such a case would be to suffer manifest perversions to defeat the evident purpose of the lawmakers.” And' the same learned jurist, after citing Stuart v. Laird, Rogers v. Goodwin, and other cases of similar import, which the author says appear on first reading not to have observed proper limitations, concludes his observations in these words: “It is believed, however, that in each of these eases an examination of the constitution left in the minds of the judges sufficient doubt upon the question of its violation to warrant their looking elsewhere for aids in interpretation, and that the cases are' not in conflict with the general rule as above laid down. Acquiescence for no length of time can legalize a clear usurpation of power, where the people have plainly expressed their will in the constitution, and appointed judicial tribunals to enforce it. A power is frequently yielded to merely because it is claimed, and it may be exercised for a long period, in violation of the constitutional prohibition, without the mischief which the constitution was designed to guard against appearing, or without anyone being sufficiently interested in the subject to raise the question; but these circumstances cannot be allowed to sanction a clear infraction of the constitution. We think we allow to contemporary and practical construction its full legitimate force when we suffer it, where it is clear and uniform, to solve
An examination of the cases in the Supreme Court of the United States will disclose the fact that long usage, contemporaneous construction and practical interpretation have been resorted to in construing statutes and constitutional provisions only to ascertain the meaning of technical terms, or to confirm a construction deduced from the language of the instrument, or explain a doubtful phrase, or to expound an instrument obscurely expressed and of uncertain meaning. Colder v. Bull, 3 Dall. 386; United States v. Wilson, 7 Pet. 150; Martin v. Hunter’s Lessee, 1 Wheat. 304; Cohens v. Virginia, 6 Id. 264; United States v. Dickson, 15 Pet. 141, 161; Prigg v. Commonwealth of Pennsylvania, 16 Id. 539, 621, 622; Cooley v. Board of Wardens, 12 How. 299, 314, 315; Hahn v. United States, 107 U. S. 402, 406; Lithographic Co. v. Sarony, 111 Id. 53, 56, 57; Brown v. United States, 113 Id. 568, 571; McPherson v. Blacker, 146 Id. 1, 27. In United States v. Dickson Mr. Justice Story said : “The construction given by the treasury department to any law affecting its arrangements and concerns is certainly entitled to great respect. Still, however, if it is not in conformity to the true.intendment and provisions of the law, it cannot be permitted to conclude the judgment of a court of justice. * * * It is not to be forgotten that ours is a government of laws and not of men, and that the judicial department has imposed upon it by the constitution the solemn duty to interpret the laws in the last resort; and however disagreeable that duty may be in cases where our judgment shall differ from that of other high functionaries, it is not our liberty to surrender or to waive it.” These observations were made by a learned jurist with respect, to the construction of statutes which are laws subject to alteration or repeal at any time in the discretion of the legislative department of the government. They apply with irresistible forcé to the fundamental instrument of government—the constitution—the supreme and irresistible power to make or unmake which (to quote the language of Chief Justice Mai’shall
In this state the rule of construction is stated with accuracy rand discrimination in State v. Kelsey, 15 Vroom 1. The subject is discussed by the Chief Justice in his opinion (atp. 22), -and by Mr. Justice Magie in his dissenting opinion (at _p. 47), with a citation of authorities. The conclusion reached by the court is stated in the head-note as follows: “A statute of uncertain meaning, which has been enforced in a certain sense for a long series of years by the different departments of goernment, will be judicially construed in that sense.”. The majority of the court, finding the language of the statute broad •enough to embrace the meaning contended for, permitted a practical construction of it to that effect for more than fifty years to prevail.
The subject was again brought under judicial decision in Engeman v. State, 25 Vroom 247. The question before the court in that instance was 'the constitutionality of an act of the legislature, passed in 1855, making justices of the Supreme Court ex offioio judges of the Court of Common Pleas, Orphans’ Court and Court of Quarter Sessions. State v. Kelsey was cited with approbation by Mr. Justice Van Syckel, in delivering the opinion of the court. But it will be observed that the learned judge (at p. 252) lays particular stress upon the fact that the constitution gave the legislature power to alter or abolish all these courts, as the public good might require; and that the power to alter or abolish seemed necessarily to imply and carry with it authority to change or modify the structure of the court, as well in the mode of appointment as in the number of the judges. The leárned judge therefore concluded that the power of the legislature over the controverted subject was unrestrained by the fundamental law. To such a condition of affairs, State v. Kelsey was properly applied. Neither of these precedents •can be invoked as justifying long usage or practical interpretation as controlling the construction of constitutional or statu
Nor are we without precedents directly affirming the' domination of the constitution, notwithstanding long usage and practical construction to the contrary and the most conclusive arguments ab inconvenienü. I refer to Dred Scott v. Sandford, 19 How. 393, and Hepburn v. Griswold, 8 Wall. 603. In the first of these cases the federal court, in 1856, decided that the eighth section of an act of congress passed in 1820, and known as the Missouri Compromise act, which prohibited slavery in all that part of the territory ceded by France under the name of Louisiana, lying north of the line of thirty-six degrees and thirty minutes, not included within the limits of Missouri, was unconstitutional-and void, notwithstanding the fact that the act was designed as a final settlement of the agitation of the slavery question, and a state had been admitted into the Union under its provisions, and that congress, from its first session down to the year 1848, had repeatedly exercised the power which was denied by that decision, and notwithstanding the doctrine of a practical construction continued through a long series of years, was invoked by the dissentient judges. The keynote of that decision is expressed by the Chief Justice (at p. 426) in these words : “No one, we presume, supposes that any change in public opinion or feeling should'induee the court to give to the words of the constitution a more liberal construction than they were intended to bear when the instrument was framed and adopted. Such an argument would be altogether inadmissible in any tribunal called on to interpret it. If any of its provisions are deemed unjust, there is a mode prescribed in the instrument itself by which it may be amended, but while it remains unaltered' it must be construed now as it was understood at the time of its adoption. It is not only the same in words, but the same in meaning, and delegates the same powers to the government and reserves and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same
In Hepburn v. Griswold, acts of congress passed in 1862 and 1863, making treasury notes of the United States a legal tender for debts, were in 1869. declared to be unconstitutional. This decision was subsequently overruled in the Legal Tender Cases, 12 Wall. 457. But in both of these cases the court rested its opinion on the language in which the constitutional grant of power to congress was expressed. In the decision of the latter case, Mr. Justice Strong, in delivering the opinion of the court, refers to the situation of the country at the time these acts were passed, and the “ great business derangement, widespread distress and rank injustice” that would result if these acts were held to be invalid; but he adds: “ The consequences of which we have spoken, serious as they are, must be accepted if there is a clear incompatibility between the constitution and the Legal Tender acts.” The authority of congress to pass the acts in question was, in the opinion of the court (at pp. 533, 534), deduced from the last clause of the eighth section of the first article of the constitution, granting the power to congress to make all laws which should be necessary and proper for carrying into execution the powers by the constitution conferred upon congress. “The means or instrumentalities referred to'in that clause, and authorized (it was said by the learned judge who prepared the opinion of the court), are not enumerated or defined; * * * they were left to the discretion of congress, subject only to the restrictions that they be not prohibited, and be
Precedents of the same import are numerous in the federal and state courts. I have cited Scott v. Sandford and Hepburn v. Griswold for the reason that the interests involved in these cases gave these decisions a conspicuous place in the domaifl of constitutional law.
The constitution contains the permanent will of the people. It is paramount to the power of the legislature, and can be revoked or altered only by the power which created it. Popular government can be maintained only by upholding the constitution at all times and on all occasions as it was when it came from the hands of 'the people, by whose fiat it was established as the fundamental articles of government, to abide until altered by the authority which created it. To adopt the language of Chief Justice Bronson, in Oalkey v. Aspinwall, 3 N. Y. 568 : “There is always some plausible reason for the latitudinarian constructions which are resorted to for the purpose of acquiring power—some evil to be avoided, or some good to be attained by pushing the powers of the government beyond their legitimate boundary. It is by yielding to such influences that constitutions are gradually undermined and finally overthrown. * * * One step taken by the legislature or the judiciary in enlarging the powers of the government opens the door for another, which will be sure to follow; and so the process goes on, until all respect for the fundamental law is lost, and the powers of the government are just what those in authority please to call them.”
Within the domain of construction there is room for argument and discussion—nay, even for a diversity of opinion; but when the meaning of the constitution, interpreted by its letter and in its spirit, is ascertained, extraneous considerations are of no avail. In the process of construction, long usage and practical interpretation are entitled to great weight if the language be obscure or doubtful; but such extraneous considerations cannot be allowed “to abrogate the text” or “ fritter away its obvious sense.”
The remaining question is whether these proceedings were prematurely instituted, the contention being that a previous demand and refusal to perform a duty are essential to an application for a mandamus in any case and under all circumstances.
There is a distinction between duties of a public nature and duties of a private nature affecting only the rights of
To postpone the commencement of these proceedings until the time preceding the annual elections, at which the county clerk and the clerks of the cities and townships of the county are required to perform the duties devolved upon them under the election laws, would effectually prevent proceedings then instituted being practically, of any avail. The testimony of the county clerk and of other election officers taken under: this rule makes it apparent that these officials intend to conduct elections in the county, under the act of 1891, until otherwise directed, so long as that act is unrepealed. Indeed, the presumption is not to be entertained that these officers would, on constitutional grounds, disregard an act of legislation conforming to precedents of upwards of twenty years’ standing, unless the invalidity of the act be first judicially determined. In McPherson v. Blacker, the writ was allowed '■ on the answer of the secretary of state, denying that he had' refused to give the notice of election required by the petition for the writ, but averring that he intended to give notices under the law the constitutionality of which was assailed, as will appear by the report of the case in 146 U. S. 3.
The rule to, show cause should be made absolute for a peremptory mandamus commanding that all future general elections for members of the general assembly, in the county of Essex, shall be so conducted that such members shall be voted for throughout the .county, as prayed for by the relators. To this extent the rule to show cause is made absolute, without costs.
Justices Reed and Lippincoxt concur in this opinion.