Gambar halaman
PDF
ePub

that the state has in making and exercising the general laws of the nation ; and defines the process to which it must resort, should it have causes of complaint against other states.

Thus we see that the Constitution of the United States is an essential part of the constitution of every separate state, and that it can never be disregarded in a special book on civics. 1

Treaties.-All questions respecting relations with foreign governments and Indian tribes are under control of the National government. Hence all treaties and the acknowledged principles of international law are equally binding on a state with the provisions of the federal constitution.

Constitution of Montana.—The Constitution of Montana is the fundamental law of the commonwealth. It was adopted by the action of the people through a convention of their representatives, and afterwards ratified by a popular vote. It shows as clearly as can possibly be done what principles of government the people consider fixed, and what can be changed by the action of their representatives. At all times it is supposed to indicate the exact will of the people. All laws that the legislative assembly may pass must be in harmony with the constitution, or they are absolutely worthless. All public officers, elected or appointed, in the State of Montana, are sworn to act in accord

1

* Story's Commentaries on the Constitution; Walker's American Law; Cooley's Constitutional Limitations; Hare's Constitutional Law; The Federalist.

with the constitution and to carry out its provisions. Should they fail to do this they are liable to impeachment—the strongest political rebuke--and may also be punished for any transgression of the laws that may accompany their action. .

Changes in Constitution.- At any time when it is apparent that the constitution does not express the desires of the citizens of the state, it should be so changed as to reflect their desires. Directions how to do this are contained in the instrument itself. 1 If the disagreement with public sentiment consists only in one or two provisions of the constitution it should be amended. If many of its principles do not agree with the will of the people, the constitution should be made entirely void, as soon as a satisfactory constitution is obtained in a proper manner.

This provision for changing a constitution is not an empty theory. Not a year passes without important alterations being made in some of the states of the Union, With the exception of those states which have recently been admitted, the entire document has been abrogated and another adopted instead, at least once in every state.

Written Constitutions.- The Constitution of the United States and that of Montana are written documents. So common is this conception to the American people that we hardly conceive of the possibility of an unwritten constitution. But nations have existed and

Constitution of Montana, Art. xix, Sec. 8.

flourished without any written instrument of this nature, and yet they all have had actual constitutions. England is the most important example of such a nation in modern times.

The written constitution, nevertheless, is a device very ancient in its origin, and so common in modern times that it is generally considered natural and essential to any federal government, whether republican or monarchical.

Acts of the Legislative Assembly.— The Legislative Assembly is directed to enforce the provisions of the constitution by proper legislation. It is also empowered to pass laws, not in conflict with the constitution, in regard to all matters pertaining to the interests of the state.

The general principles of legislation have been expressed in four classified codes, known as The Civil Code, The Political Code, The Code of Civil Procedure, and The Penal Code. These codes, in connection with the constitution, cover all the rights, duties and privileges of the citizens, except where amended by the Assembly or annulled by the decisions of the courts.

Judicial Interpretations. The province of the courts, as affecting the civil government of the state, is to interpret the constitution and the laws passed by the legislature. No written document can be so accurately constructed that different opinions may not arise as to what it really means in every possible application. In our nation and its various states, it has been

1

agreed that any disputes as to meaning may be referred to the regularly established courts, and that their decision shall be final. This power given to the judiciary is the one invention of the framers of the Constitution of the United States, and may be almost said to be original with them. In any matters affecting the National Constitution, treaties or a United States statute, the federal courts must decide. In most other particulars the decision rests with the state courts. 1

This power of declaring the law, as it is called, has an additional meaning as applied to the acts of the Legislative Assembly, besides what it has when applied to the constitution. The courts may not only say what is meant by a law, but it also is frequently called upon to decide whether or not a law is in harmony with the constitution of the state. If it is not so in harmony, it is of no effect.

Indirect Action of the Courts.-It should be stated, however, that this power of interpreting the laws is never exercised directly. The legislators are always supposed to have in mind the necessity of conforming their acts to the principles laid down in the constitution. But whether they have done so or not, and whether the law is or is not constitutional can never be certainly known until a dispute arises over its enforcement. When such a condition arises, the person who considers himself wronged may bring the subject to the attention of the courts, stating that the law is not binding on him because its application to his case is not authorized by the constitution. If the court decides that his interpretation is correct, the law fails as applied to the test case, and to all cases which are like it in principle. It may still be that the law is effective when applied to other cases, but it very frequently happens that it becomes entirely void.

1 Walker's American Law, p. 116; Curtis' Jurisdiction of Courts; Desty's Federal Procedure.

In this way it happens that the functions of the courts become exceedingly important as affecting the civil government of the state, and can not be overlooked in a treatise of this sort.

Common Law. - But in spite of the greatest attempts which may be made to secure completeness, cases are continually occurring in which all of the above sources of authority fail to make clear the principle involved. In such instances recourse is had to what is termed the common law, this consisting of an innumerable number of decisions of courts of other states, of United States courts and of English courts before the establishment of our national judiciary, as well as opinions of commentators on various special branches of the law, and other material available only to thoroughly equipped lawyers.

The common law as such is not of direct authority, but is practically so considered when all of the above mentioned sources are found inadequate. It is powerful in its influence, and can never be left out of account in considering the civil and political rights of a people.

« SebelumnyaLanjutkan »