provisions to carry through his measure drawn in unusual form.

Express Prohibitions of the Use of Resolutions

Express limitations on the right to use resolutions are infrequent except so far as the requirement of legislation "by bill" or "by law" is held to be exclusive. There are a few specific prohibitions, chiefly involving money. The Illinois and Nebraska constitutions provide that, "No money shall be diverted from any appropriation made for any purpose or taken from any fund whatever either by joint or separate resolutions." In Missouri, "No resolution shall have the effect to repeal, extend, alter or amend any law." But these provisions are exceptional.1

Any review of the constitutional provisions with the object of obtaining an insight into how far resolutions may be used for lawmaking must convince the reader that on this point there is a lamentable lack of clear statement of the intent of the makers of the constitutions. Whether in any state "law," "bill" and "act" and "act of legislation" are to be held to include or exclude "resolutions" can, as a rule, not be deduced from the constitution itself, at least not without giving to the words meanings which they may not have had when originally used. They are often used in different senses in different parts of the constitutions, or long practice has justified one meaning in one part of the constitution and a different one in another. For example, the provisions regarding constitutional conventions are usually required to be made by law, but are regularly made by resolution. Bills and laws are sometimes joined as to requirement of executive approval or as to legislative procedure; constitutions speak of resolutions "having

1 See Ill. 4, 17 (1870); Mo. 5, 14 (1875); Neb. 3, 22 (1875).

the force of law," and declare that with executive approval a resolution shall "become a law."2

The worst confusion is found in the constitutions of Kansas and Nebraska. Both contain provisions that “laws” shall commence with enacting clauses and that no law shall be enacted except by bill, and yet the Kansas constitution recognizes that there are resolutions which may necessitate submission to the executive — which would occur only if they were of lawmaking character and it is definitely stated that when passed over the Governor's veto such a resolution “shall become a law.” Again, in Nebraska, resolutions must be submitted to the Governor and when one is approved by him it "shall become a law."

In the face of constitutional provisions such as these it is no wonder that the courts have not arrived at an agreement as to what rules are to be followed. The condition results from two causes: first, it is only with the greatest care that words are confined to the same sense throughout any long legal document; secondly, our constitutions are made from clauses largely borrowed from earlier constitutions. They tend to become patchwork, if not crazy-quilts, as some would have us believe, and there is not always sufficient pressure brought to bear on the convention to force it to mould all the clauses of the new instrument into a consistent whole.

The consequence for the draftsman is that under present American conditions there is only one safe rule to follow in determining the sort of measure to use in making a law. That rule is, legislate by bill. The use

1 Me. 4, 3, 2 (1819).

2 Neb. 5, 15 (1875), and Kan. 2, 14 (1859, amendment of 1894). Similar, Okla. 6, 11 (1906); S. C. 4, 23 (1895).

of resolutions is safe if the local constitution authorizes them or they are supported by accepted decisions; it may be safe if the constitution is silent and custom has made their use familiar. The use of a bill is always safe.

Many will feel that the falling into disuse of resolutions for minor purposes is unfortunate and that if everything is done by bill the statutes are unnecessarily encumbered by temporary measures which should be differentiated in a way to allow their separate publication and their easy discard when they have served their purpose. This is true, as the present practice of states which have discarded or prohibited the lawmaking resolution shows.1 But so long as our constitutions do not speak clearly as to the position of resolutions, the legislator who is anxious to devote his chief attention to the substance of legislation rather than its form will feel justified in any doubtful case in resorting to the means which is of unquestioned validity.

1 See, for example, Statutes and Amendments to the Codes, California, 1911, and Laws of Maryland, 1910.

CHAPTER XIV

CLAUSES CREATING EXCEPTIONS IN THE OPERATION OF STATUTES

A convenient way to escape exact definition of the circumstances in which a law is to operate is to draft the measure as one of general application and to insert at the end the cases exempted from the rule. The temptation to use this plan is especially strong when it is desired to amend an act already passed. The simplest means is to introduce an exception covering the modifications. The practice is indefensible. Draftsmen are agreed that no single element contributes more to confusing our laws than the use of exceptions where the subject-matter should be covered by a direct statement.

If certain persons are to be excluded from the operation of the law, this should appear in the language of the legal subject. Sometimes provisos limit the time, place, manner, or circumstance of the operation of the act. The better form would be to state the modification directly in the legal action. If particular conditions are to be dispensed with, that should be done by changing the statement of the condition. The most frequent abuse is using the proviso when the material should have been put in the "case."

Dwarris in his work on Statutes, declares:

"The casus legis, which can be described in a proviso or in a phrase interpolated into other matter by way of limitation, can be more easily expressed alone and at the beginning of the enactment. It is equally beyond

a doubt that its proper place is at the beginning, and that it is misleading the reader to commence an enactment as if it were universal and to wind it up by a parenthetical qualification or proviso which limits it to certain occasions only." 1

Clauses Creating Exceptions, Definitions

The terms exceptions, saving clauses, and provisos, are so frequently interchanged in discussion, that they have largely lost the distinctness of meaning they once had. "Proviso," in texts and decisions, is often used to include the other terms. The form in which the clauses are expressed is often that properly belonging to the proviso, with the result that the difference in subject-matter is overlooked. The rules of interpretation applying to the three classes are not uniform. This is the chief reason why their use is not favored. Since the form in which the clauses are phrased is confused, the draftsman often loses sight of the difference in the rules governing them, and in this way the intent of the statute is defeated.

A proviso properly so called is, "something engrafted on a preceding enactment for the purpose of taking special cases out of the general enactment and providing specially for them. In its abuse it contains all unconnected matters and disposes of whatever is incapable of combination with the rest of any clause." "The distinction in effect and operation of a saving clause and of a proviso in a statute will be found in the books laid down as positive and without qualification, but the reason of the distinction is certainly not very apparent." 2

1 Potter's Dwarris on Statutes, 2d ed., p. 512. 2 Ibid, p. 514-15.