Year: 1879

community, such an inference does not neces'
sarily arise.


In such cases some special ground would
have to appear by inferring, in the absence OF
an express declaration to that effect, that the
constitution, in prescribing the mode in which
a power of that class should be exercised, in.
tended to exclude its exercise in any other
mode. But the the present case, where the
constitution was dealing with principle
fundamental to the policy of our jurispru-
dence, and which, by its abuse, might unset
tie the very corner stone on which that juris.
prudence rests, it is obvious that in opposing
limits to such power of exemption, regard
was had on the general question, to what
extent government should 60 in relaxing
the laws for the enforcement of obligations.
There can be no doubt that the object of the
section in question was to limit the Legisla-
ture If the constitution had been silent al.
together on the subject, the Legislature would
have, doubtless, been competent, as affecting
future contracts, to create such exemptions,
and to give them any measure of extent that
might appear desirable.


Again, sec. 20 of art. l confers express
powers on the Legislature to grant homestead
exemptions to reasonable extent, leaving
the determination of what is to be regarded as
reasonable to the Legislature, so far as unfet-
tered by subsequent clauses of that instrument.
If that section had stood alone it would leave
US in doubt as to the power of the Legisla-
ture being unrestricted. But the constitution
was not content with establishing this as
principle and in sec. 80, art. 2, assumes to
give more accurate definition Of the kind
of legislation contemplated in the 10th sec.
ton of art. 2, enumerating the subjects to
which it should extend and the limitations
that should be established as affecting these
subjects. Such definition as applied to
kind of legislation not sanctioned at the time
of the adoption of the constitution, but intro
duced by that instrument, must be regarded
as intending a limitation of the legislative
authority. True, it is not the case of pow.
er entirely new and not before capable fbeing
exercised, given upon conditions and subjected
to limitations, in which case such conditions
and limitations must be regarded as limita-
tions of the right of exercise as we'll as the
mode CT exercise; but it is case within the
same principle as calling into exercise func-
ton Of general legislation that had lain dor
mant through the conviction that it was not q
legitimate exercise of legislative power consis-
tently with the principles of our jurispru.
dence. This view leads US to the conclusion
that the exemptions allowed by the constitu-
tion cannot be extended or restricted by any
act of the Legislature. This view does not
conflict with what was said in Homestead
Building and Loan Association vs.. Enslow
Is. CO. where, speaking of the degree Of au.
thority possessed by the owner Of lands in
which homestead might be claimed to in
cumber his land, it is said, whether the Leg.
islature had not the right to extend the
measures of relief afforded to heads Of fami-
lies by the section above cited, under more
general grant of legislative authority set
forth in Sec 20, art of the constitution, need
not be considered, for no such exercise of
authority beyond the limits of sec. 80, art 2,
has been attempted" This is a question sug-
gested, with no answer to it given but it was
not directed to the question whether the Leg
islature could afford relief beyond the limits
imposed by the constitution. but mora full
relief within those limits. We must conclude
that the provisions of the act of 1873, so far
as they attempt to extend the exemption to
class of personal property not embraced in
sec 80, art. 2, are unconstitutional and void.
The discharge of the rule must be set aside,
and the cause remanded for proceedings con-
formable herewith.


McIver, A. j., and HASKELL, A.. j., concur.