Sidebilder
PDF
ePub

the question has frequently arisen as to what bills are two-third bills within the meaning of sec. 9 of art. 7. This question has been considered under two heads : 1st, what is a bill appropriating the public moneys or property for local or private purposes ? 2d, what, within this clause, are bills creating, continuing, altering, or renewing a body politic or corporate ? The question arising under the first head, to wit: what is a bill appropriating the public moneys or property for local or private purposes ? has seldom, if ever, been the subject of judicial determination, although the question as to what is a public use of property, has been frequently judicially determined. It has, however, frequently come under consideration in legislative committees, and by presiding legislative officers. It has also several times been discussed and passed upon by the attorney general of this state. It has elicited much conflict and contrariety of opinion. The limits of this work will not admit of our giving a detailed statement of the respective opinions which have been expressed on this point.

$ 276. On a former occasion, and in another capacity, we submitted to the public our views as to the construction which should be given to this clause in our state constitution; and we have seen no reason since that time for a change of opinion. In expounding a constitutional provision, the same rules of construction and of interpretation should obtain as are adopted and applied in the construction of a statute. One rule is, that such a construction should be put upon a statute as will prevent any clause, sentence, or word from being superfluous, void, or insignificant; and where the words used will allow of a double meaning, such a construction should be adopted as will allow some meaning to all the words used. With these rules in view, what is the true construction of this clause in our constitution ? Such a construction should be put upon this clause in

[ocr errors]

the constitution as will give full force and effect to the respective words “public," "private," and " local.The word local, as contradistinguished from the words public and private, should be held to embrace all that is intermediate-an individual person or interest on the one hand, and the aggregate body politic on the other, but exclusive of both. The word privale to relate to an individual person or interest, exclusive of what is comprehended in the words local or public; and the word public should be limited to the whole body politic in its aggregate and indivisible character.

A purpose may be purely local, I without being public or private, or private without being public or local, or public exclusively without being local or private. A purpose purely public, must be one where the unity of interest is concentrated in the whole

aggregate body politic. To give full force and effect to the word local, in the sense in which it is used in this clause of the constitution, every grant of the public property for a particular purpose, however near its beneficial effects or community of interest may approximate the unity of interest in the whole body politic, whenever it falls short of that, such purpose falls under the denomination of a local one, and is included within the circle of restraint which the framers of the constitution have, by the term “ local," prescribed. A grant to an individual, or an association of individuals, where the right, privilege, use, or profit arising from such grant, is one in which the whole body politic do not either participate or share in common with such individual or community of individuals, or do not derive any common benefit therefrom as a body politic, falls under the denomination of a grant for a private use. A grant, tributary to a fund or object, where the rights, privileges, use and

profits, arising from the use of such fund, or the prosecution of such object, are to result to and be owned, possessed, used and enjoyed by the whole body politic, in an aggre.

gate capacity, would be a grant for a public purpose in the sense in which that word is here used. By limiting the word public to the aggregate body politic, and the term loctil to the intermediate of that aggregate and an individual person or interest, and the word private to such individual interest or person, each and every the words “public,” “ local,” and “private,” have their appropriate meaning and significancy; and when collectively considered, include the whole scope of the evident intent of the framers of the constitution. This construction makes the word “public” as the outer line of this constitutional circle; the words “local,” and “private," comprehend all the lesser lines of the circle, whether the ratio of their position in the radius of such circle be as 999 to a thousand or one to a thousand. To enlarge the sense of either of these words would be dangerous in the extreme; for, by such a construction, the lines of demarcation between a purpose purely public, or local, or private, would be made so indefinite and indistinct, or would be so blended together, that it would be next to impossible to say at what point in the radius of this circle the one was to commence, or the other to terminate. If the word public should be construed as meaning any thing less than the indivisible aggregate body politic, then the word local would be rendered wholly insignificant and useless. It would be impossible to determine how near the hand of legislative munificence might approximate an individual, or private, or local interest, without passing the line of demarcation which the framers of the constitution intended to establish as a limit to legislative donations. Such a construction would authorize the majority of the legislature, at their discretion, notwithstanding the constitution, to approach the center or verge of this constitutional restriction so near, that in effect, to all practical purposes, the distinction between a purpose purely public, or purely local, or private, would be one without any essential difference. This, instead of giving full force and effect to all the words used, would render them synonymous-impair their force, destroy their significancy, make them useless, weak, and imbecile, as well as violate a fundamental rule of construction.

§ 277. The construction or sense now put upon the respective words used, is also one which is consonant with the immutable principles of natural justice. When it is considered that the grant in these cases proceeds from the body politic in its aggregate capacity, natural justice demands that the equivalent for such grant should be received by it in the same capacity. The legislature in making a grant for a particular object, before deciding that such purpose was a public one, should be able to discover that some equivalent for the grant would ultimately bc returned to the same hand from which the grant emanated, and be held by it in the same aggregate capacity, as was the thing which was the subject of the grant. Not that it must perceive that the benefit that will result to the state, as such, must in every instance be an adequate consideration for the thing granted, although such a policy would doubtless be a wise and salutary one, but it should have no reasonable doubt that the state would ultimately be beneficiaries of the grant, either by an increase of its revenue, or an enhancement of its public property, or a diminution of its necessary public expenditures. A purpose which contributes to none of these interests, ought not to be considered a public purpose. In deciding whether a purpose to which the thing granted is to be applied is public, local, or private, the inquiry should not be whether the grant itself will enable the recipients of it the better to accommodate the community at large, but it should be directed to the inquiry, who is to be the recipient of the profits or benefits to be derived from the use and enjoyment of the thing granted, and whether there will any benefit flow from it, or its use, into the common treasury; or will it tend to an incrcase of the revenue or to the enhancement of the value of the common property of the state held in its aggregate capacity, or to diminish the necessary public expenditures? If neither the common treasury of the state, nor its common property can derive any benefit, or the common expenses will not be diminished, in case the enterprise proves successful, if the thing granted is not to be used by the public indiscriminately, then the purpose should be regarded as local or private. Were the doctrine to be admitted, that the legislature might by a majority vote, grant the public property, whenever their imagination could conceive that some incidental accommodation might result to the public from the use to which the thing granted was to be appropriated, and that such circumstance should take such grant out of this clause in the constitution, this restriction instead of proving a wall of defence, would become a mere cob-web barrier, its very weakness and fragility inviting attack, and this constitutional safeguard would not only be wholly inefficacious, but the great end and aim of the framers of this instrument, the object and design of this restriction, would be entirely defeated. Such a doctrine would also be in direct hostility to another fundamental rule of construction, which should be applied with all its force to a constitutional restriction on legislative power, imposed by the people (the source of all power) in their sovereign capacity, that is, that every law should receive such a construction as not to elude its force, or render it vain and . illusive. So far, the consequences of a particular construction ought to be considered, and have due weight and influence on the construction of a constitutional limitation upon political power.

§ 278. In putting a construction upon this clause of the constitution, resort has been had to the last clause of the 7th section of article seventh of the same instru

« ForrigeFortsett »