Meigs, Wm. M.

English

Penn Law: Legal Scholarship Repository

EXPOSITORY STATUTES ARE NOT UNCONSTI-TUTIONAL!The power exercised by American courts to hold statutesunconstitutional is a very marked feature of our jurisprudence.It furnishes to the judiciary, which has often been called theweakest of the departments of government, a weapon by whichit becomes, in some senses, more powerful than any other.For, as the judiciary usually operates in the last instance be-tween man and man, it has ordinarily the power to enforce theprevalence of its view. The Legislature may pass laws, andthe executive may execute; but in cases of dispute, thejudiciary is almost certain to be the last department to becalled upon, and it may then ignore statutes, and may releasea prisoner or undo many other acts which the executive hasdone. And, when it does so, its opinion is almost always theone to prevail. The judfciary has thus come to be in Americaa department having a vast influence on constitutional develop-ment and even in questions of a political nature.It is surely of the utmost importance that a function of suchfar-reaching power should be carefully guarded and shouldnot be abused. Doubtless, in the development of our politicalsystem, the judiciary has gained and has deserved more respectthan our legislatures, or generally our executives; but, if thispre-eminence is to remain, the judiciary must not be too muchdragged into the political struggles of the day, and it mustexercise this great function with scrupulous care. To deny alaw operation, unless it is plainly in violation of the constitu-tion, is an abuse of power, vhich cannot but tend to bring thejudiciary into disrepute. A well-known writer has examinedthis subject quite recently, and I shall do no more than referto his article,' where special emphasis is thrown upon thescrupulous care with which the power in question should beexercised.1 IThe origin and scope of the American Doctrine of ConstitutionalLaw," by Prof. James B. Thayer, Harivard Law Review, November, 1893.2526 EXPOSITORY STATUTES ARE NOT UNCONSTITUTIONAL.Very recently a decision has been rendered in the SupremeCourt of Pennsylvania in a case of this nature, which seems sopalpably an error as to call for notice. In Com'tz ex rel.Rom'y v. [ern-wick (37 Weekly Notes, 253), it is held that anAct of 1867, which construes an Act of 1854, is unconstitu-tional and invalid as to a case arising years afterward, in 1895.The Legislature has no power, says the decision, to pass anexpository, Act, which will bind the judiciary in interpretingthe prior statute. Such an expository Act is an interferencewith the judicial function of interpretation. It is to be ex-pressly observed that the decision goes to the effect of holdingthat the Legislature cannot pass a valid expository Act, evenin rega-d to entire/y fittnre transactions. The question as tothe effect of such a statute on past transactions is quite adifferent one, as then the statute may be expostfacto or mayviolate the obligation of contracts; but, the case in hand can-not and does not pretend to go on this ground, and I proposeto confine the discussion entirely to the question of the validityof expository, Acts in changing the law for future transactions.Can it be that an enactment that a past law shall be "construedto mean" so-and-so, is unconstitutional and inoperative, as tocases arising after the date of the expository Act ? It is sub-mitted, with all respect, that such an enactment is perfectlyvalid, and that the decision referred to is lamentably wrong.In the first place, it is to be observ'ed that the decisionsticks sadly in the bark, and makes a question of great con-stitutional import turn on the mere use of a phrase. For itcannot be questioned for a moment, but that the Legislaturecould repeal the words whose meaning it wants to change andthen enact in their place the new words. It could repeal thewhole statute in question, or it could repeal half of it or oneclause or one word ; and it could substitute new words orclauses in place of the portion repealed. And this is preciselywhat it did in the case in hand, the only difference being in theform of expression used to attain the end. It did enact a newlaw by the use of the usual words be it enacted, but in a laterportion of the statute, instead of using the formal word"repeal," it said, " shall be construed to mean." It is surelyEXPOSITORY STATUTES ARE NOT UNCONSTITUTIONAL. 27*a very narrow rule which makes a question of the constitu-tional validity of a law turn upon the question, whether thelegislative body has used tie words "repeal " and "re-enact,"or has used the phrase, " shall be construed to mean."Nor is the rule laid down merely narrow, but it is directlycontrary to the whole history of legislation. The phrase thata law shall be" construed to mean " is and always has beenan ordinary and usual one for modifying statutes or judicialdecisions, nor has its validity been questioned. It will befound in multitudes of statutes, ancient and modern, in slightlyvarying form. Thus, to produce a few instances from thelegislation of the State concerned, the Statute of Fraudsreads " all leases . . . shall have the force and effect ....and shall not be deemed or taken," &c. The Act of 1770,as to married women's acknowledgments, enacts that nodeed acknowledged in a certain customary way beforea justice of the peace "shall be deemed, held or adjudgedinvalid," &c. The Act of 1715 enacts that, in a deed, "thewords grant, bargain, sell, shall be adjudged an express coven-ant," &c. The Act 1 of June 25, 178 1, § 2, enacts that "themeaning of the word 'location,' in the fifth section of the Actof .... was, is, and is hereby declared to be," &c. Thesecases are not in the identical words of the Act in the principalcase, but a casual turning over of a small portion of onevolume of Purdon's Digest soon discovered a multitude inprecisely that form, some instances of which will be given."The fifteenth section of an act . . . . is hereby 2 con-strued to extend to and apply only . . . . to manoriallands in the city and county of Philadelphia." "The acts. . . . shall be taken and construed' to include" or "toenable,"' or "shall from henceforth beI construed," or "shallnot be construed 6 to apply; "...no lien created by act .I Purdon's Digest, I, p. 1175, pl. 13.2 Act of 4 May, 1852, P 7, Ibid, 1211, pl. 9.3 Act of 26 April, 1854, 1 x, Ibid, 644, pl. 89.4Act of ig April, 1864, 1 I, Ibid, 969, pl. 7.5Act of 25 April, 185o, 12, Ibid, 429, pl. 131.6 Act of 9 April, x849, 6, Ibid, 1i69, p1 . 29.28 EXPOSITORY STATUTES ARE NOT UNCONSTITUTIONAL.shall be construed' to be within; " no act heretofore passedshall be so construed " as to prevent; " the act . . . . shallnot be so 3 construed as to destrok." A very favorite form 'seems to have been about this, "the true intent and meaningof an Act passed . . . . be, and is hereby declared to be."Moreover, there are all shades of varieties from the form of anexpress repeal to that of a mere construing. "The provi'cnsof the Act . . . . shall not hereafter' extend," or "arehereby declared and enacted not to 6 apply," or shall apply tocases 7 only," or, on the other hand, "are hereby 8extended,"or "that an act . . . be so amended as to 9 allow."These illustrations are enough to show that such forms ofexpression are and have been a well-recognized and usualmode of legislation in the very State where the decision ismade. Nor is the form confined to that State. The text-bookwriters recognize it, and no one of them questions its validity.Thus, Cooley makes his whole discussion of the generalsubject turn on the question, whether the declaratory Act wasintended to have a restrospective operation or not, and saysexpressly: "It is always competent to change an existing lawby a declaratory statute; and wherc the stainte is only to oprateupon futmre cases, it is no objection to its validity that itassumes the law to have been in the past what it is nowdeclared that it shal! be in the future. But the legislativeaction cannot be made to retroact upon past controversies,"'Act of li Apri., 18,;5, 2, Ibid, 653, pl. 142.2Act of 22 March. 1850, 2, Ibid, 788, pl. 8.3 Act of 4 April, 1843, ', 7, Ibid. 1rOO, pl. 32.4 Act of 16 'March. 1871, ; r, Ibid, 429, pl. 134; Act of 17 April, 1856,I, Ibid, 6o5, pl. i8r ; Act of 3o March, 1869, i, Ibid, 605, pl. 182 ; Actof 25 April, 185o., 4, Ibid, 6io, pl. 207; Act of x6 April, 1845, l. 11, Ibid,IWO1, pl. 33; Act of 28 Iarch, 1867, I, Ibid. 1216, pl. 28; Act of ziDecember, iS66. i, Ibid, 1243, pl. 23; Act of ii February, 1873, I,Ibid, 1243, pl. 25; Act of 25 February, 1856, 1. i, Ibid, io63, pl. 7.5Act of 25 April, 185o, 7, Ibid, 1215, pl. 25.1 Act of 16 June. iS35, 3, Ibid, 590, pl. 1O5 ; Act of 15 May, 185o, 8,Ibid, 59o, pl. 1o6.7 Act of i8 March, 1852, 4, Ibid, 641, pl. 72.'Act of 13 June. IS4o, IO, Ibid. 792, pl. 27."Act of ij May, 187 4 , r , Ibid, 93o, pl. 6.I" Const. Limita's. - 94.EXPOSITORY STA.TUTES ARE 'COT UNCONSTITUf1ONAL. 29etc. So, Endlich also writes:' "A cun.;truction put upon anAct by the Legislature itself, by means of a provision em-bodied in the same, that it shall or shall not be construed in acertain designated manner, is binding upon the courts,although the latter, without such a direction, would haveunderstood the language to mean something different ...Moreover, a statute declaratory of a former one has the sameeffect upon the construction of such former Act, in the absenceof intervening rights, as if the declaratory Act had been em-bodied in the original Act at the time of its passage." Andthe same principle is fully set forth by other writers.2The distinction between Acts of this nature, which areintended to apply to fuure cases on'y, and those which areretro-active, is vital, but'was not sufficiently observed in theopinion jn Com'tli v. Mar-wick; thus, of the principal cases citedby the court in support of its view, _1orman v. Z-eist (5 W. &S., 170, turned on a law attempting to legitimate certainbastards, and thus to transfer to them property already vestedby the death of the ancestor in other actualiy legitimate chil-dren; DeChastcllux v. Fairchild (15 Penna. 18), was an attemptby statute to order a new trial in a case already judiciallydetermined; Bolton v. Johns (5 Penna. 145), held a construingstatute invalid as to past transactions, but fully recognized itsvalidity as to cases where rights had not become fixed beforeits passage; and O'Connor v. IVarn'e (4 W. & S. 223), upheldan expositing Act, and the discussion turned entirely on thequestion, whether or not.rights had become vested under theoriginal Act before its construction by the later one. More-over, cases were cited in the argument of Com'th v. Warwick,which fully recognize the validity of expositing Acts as tofuture cases. Thus, to refer to the latest one only, the trueprinciple was recognized in Tituisville hron IForks v. KeystoneOil Co., 122 Penna. 633, where the court write: " Expositorystatutes, and statutes directing the courts what constructionshould be given to previous legislation were not uncommon'Interpretation of Statutes, p. 365.2 See, e.g., Pomeroy's Sedgwick on Construction of Statutory Law,p. 214; Sutherland on Statutory Construction, 402.30 EXPOSITORY STATUTES ARE NOT UNCONSTITUTIONAL.prior to 1874, and the courts, while pronouncing all suchlegislation to be judicial in its character and void as to anyretro-active effect intended, yet sought to give effect to thelegislative vill, however expressed as to future cases. As theconstitution prescribed no form or order into which the legis-lative expression was to be cast, the court sought to give effectto the purpose, however expressed."The legislativ'e intent cannot be doubted in any of thesecases, nor in regard to the Act of 1867 construing the Act of1854. When they passed that statute in the usual form, "beit enacted," etc., that certain words shall be construed tomean thus and so, no human being can doubt what theymeant. And I submit that such a form of legislation is avery clear and distinct method of 'accomplishing their pur-pose; they want to substitute certain words by others, andhow could they better exoress their meaning? Even, there-fore, were there no precedents, the matter would be very plain;but, when it is seen that the text-books and decisions ofauthority recognize the validity of such laws, and that multi-tudes of such laws have been passed-some of them of thehighest degree of importance-during a long course of yearsand never been questioned, I submit that the decision is wrongand harmful.It should possibly be noted that the decision in Com'/Iz v.Warwick relates to a law earlier than 1874, and is, therefore,free from any question growing out of the language of theConstitution of 1874, as to the formalities required for repeal-ing or modifying a statute.WM. M. MEIGS.

Expository Statutes Are Not Unconstitutional!

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Expository Statutes Are Not Unconstitutional!

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