The Indiana State sentinel. [volume] (Indianapolis) 1868-1895, 1874-12-01

1t is very plain and obvious TO us, that by
the supplemental act OF May 10, 1859, the leg s
latare has provided for the education OF the
white and cOlored children OF the state in SEP
arate schools. and the question presented Tor our
decision is, whether such legislation Is in con-
dict with the constitution OF TINS state or the
constitution of the United states.
1t is commended that the act in question Is re-
pugnant tos elton 3 of article !, and section l
Of article s, and they are; "See CT - the ines Cen ~
class Of citizens, priv eyes or immu lilies which,
upon the same terms, snail not equally belong
Section /, article VIII. Il q & IL 4Sl, declarss,
that knowledge anu learning, generally difused
throughout a community, being essential 70 the
the duty OF the General Assembly 10 encourage
by all suitable means, moral, INTEL actual, scien-
vide by law for a general and unifofm system
Of common schools, wherein tuition shall be
without o. c 1nnL;s and sb sduS aa s GPsh1a 70 se alli in ad.
vance, the rules by which we are TO be guided
In placing a construction upon the constitu-
In the state VS.. Gibson, So ind. $50, we held
that it was settled by very high authority tha
in placing a construc ion upon a written cOnsu-
tuition, or any clause or part Thereof, a court
should look to the history of the times and ex-
anime the state of things existing when the con-
stitution, or any part thereof, was framed and
adopted, 10 ascertain the old law. TIE mischief
the nature and objects of the particular powers,
duties and rights In question, with all the aids
and lights of contemporary history, a d give 10
and fore consistent with their Legitimate mean
Ing, as Will fairly serve the end proposed. Ken
dali VS.. The Uniied States, IL Peters, 124; Pr1gg VS..
The Commonwealth 10 Peters, $50.
In the slaughter-house cases,l6 Wallace, 80, the
same rul S were laid down and Illustrated with
great force by reference to tn history OF the
times and condition OF things which brought
about the recent amendments 10 the co-stitu-
ton of the I'm ted States.
Judge Cooley, In his great work on Constitu-
tional Limitations, o. page o. saws;
"a cardinal rule In dealing with written IN
struments Is, that they shall rec i've an unvary-
ing interpretation, and that their practical con-
not lobe made TO mean one thing az one time,
and another at some subsequent time when cir
eumstances may have so changed, as perhaps
BILE. A principal share of the benefit expected
from written constitutions would be lost If the
rules they established were so flexible as TO
benz 10 circumstances or be modified by public
opinion. It IS with special reference 10 the
varying moods OF public opinion, and with a
view 10 putting the % govern
ment beyond their control, that these instru-
ments are framed; and there can be no such
steady and imperceptible changed in their rules as
Those benihcent maxims of the common law
which guard person and property have grown
and expanded until they mean vastly more
TO us than they did TO our ancestors, and
are more minute, particular and per-
vading in their projections; aud We may con-
hdently look forward in the future to still fur
Their notifications in the direction of improve
ment. Public sentiment and action elect such
changes, and the courts recognize them, but a
court or legislature which should allow a change
in public sentiment TO influence IL in givinS
construction to a written constitution not war
ranted by the intention OF its founders. would
betustIy chargeable with reckless disregard Of
Ofiic al oath and public duty; and IL its course
could become a precedent these instruments
would be of little avail. The violence of public
passion Is quite as likely to be in the direction
OF oppression as in any Other; and the necessity
, bills OF rights in our fundamental laws lies
msinly in the danger that the legislature Will
be influenced by Temporary excitements and
passions among the people 10 al pit oppressive
to declare the laws as written, leaving 1T TO the
people themselves TO make such changes as ne
circumstance may require. The me aning of the
constitution is d xed when 1t is adopted, and 1t
Is not different at any subsequent time when a
court has occasion to pass upon IT."
Again the learned author says: 'The object
OF construction, as applied to a written c~onslitu-
ton, is to give effect to the intent of the people
ia adopting it. In the case of all written laws it
Is fsI the intent n OF thelaw-giv mat Is 70 De en-
Another cardinal rule of construction laid
down by thi au hor is, that the whole insiru-
ment is to be examined in placing a construc-
ton upon any portion or clause thereof. de
says; Nor is Sori II lightly to @r,t be inferred TaH
so ambiguous as TO require in
trinsic aid in its construction. Every such in
which, standing By itself, might seem of doubt
full import, may yet be made plain by ompari-
son with other clauses or portions OF the same
law. II is therefore a rule of construction, that
the whole is to be examined vito a view to ar
irving at the true Intention of each part, and
this Sir Edward Coke regards the most natura.
and genuine method of eXpOunding a statute.
If any sect ion (of a law be intricate, obscure, or
0ONOAA0I liz AOPCA " VI ~ OAAA 80 ~
meaning is by comparing 1T with the other sec
tions, and finding out the sense ofone clause by
the words or obvious intent OF another; land in
making this comparison it is not to he supposed
that any words have been employed without
occasion, or without intent That they should
have effect as part of the law. The rule appli-
cable here is, that effect is to be given, If posi-
sible, to the whole instrument, and TO every Sec
conflict the courts must harmonic them, if
practicable, and lean in favor ola construction
| which " ill render every word operative, rather
than one which NAV make some IDLE nuga-
tOrv."
'"This rule is especially applicable to written
viii be presumed to have EXPRESSED
themselves in care al and measured terms.
the powers delegated, leavinz as little as posi-
BILE 10 implication. 1t is scarcely conceivable
tihable in declaring any portion of a written
constitution nugatOry because of ambiguity.
One part may qualify another so as to restrain
natural construction would require If it stood
by Itself; but one part is not to be allowed to de-
feat another, by any reasonable construction
Ghe two can be made to stand together"
In support of the above propositions refer
morities: People VS.. Morrill,, q wend, 5Si; Kew
ell VS. People, IN. Y, 100; McKoan VS.. Devins, 3
BniPsd ISL States PsS 2e Ris vs.; Bal9Sd q sneb. b So! M Boslev l ys;
Mattingly, IA b. Monroe, So; Sturgis VS..
Crowninshield, 4 Wheat, 2O2; Schooner Pan
S SsSea VS. VS.. R ssySRSi fa Hemp 3, S 81 Sc? s=aait SRlsff
gals vs.. Cole, q Me-, So; Mcciusky VS.. circm-
well, IL N. Y, 593; Furman VS.. New York, 5;
SandfI6; People VS. N. Y, Central r. X. Co., N
ander VS. W~orthington, 5 Md, All; Cantrel VS.
Ovens, IL Md 2l5; Case VS.. Wildridge, 4 Ind, 81;
Putnam VS.. Flint, 10 Pick, 54; Ludlow VS.. John
son, 3 Ohio, $50; District Township VS.. Dubuque,
Z Iowa, 262; Pattison VS.. Yuba, IL Cal, us; Spen-
Ger VS.; The State, 5 Ind, "a; Dow VS.. Reed, 10 Pet,
524; Greencastle Township VS.. Black, 5 Ind,
$50; Stowell VS.. Lord Yonch. Plowd, 1855;
Broome s Maxims, 18th Am. ed0 ssh; 90. Lit.
3l A AttOrneE-IaQorQl VS.. Detroit a IL. TX. Coz
Mich, 1873: People VS.. Burns, 3 Mich, Ia;
Manly VS.. State, z Md, 1876; Parkinson VS.. State,
20; Ryegate VS.. WarGsboro, 30 Ver., 756: Brooks
VS.. Mobile School Conn.,, 81 Ala. 27; Dow VS.. Du-
D9ls, Harrls0n, 20; DOW VS.; Scnank, . HAST. 81;
2 Hill, 80; Green VS.. Weller, 81 Miss, $50: Warren
VS.. Sherman, 5 Texas, AL; Quick VS.. Whitewater
ls3: Smith on Slatutes. sections 50L. 5la: Sedg-