Page:Hawkins v. Filkins 01.pdf/3

288Rh No state convention has the power to declare the existing constitution and government void ab initio, and thereby render invalid the executive, legislative and judicial acts

The rule of construction, applicable as well to constitutions as acts of the legislature, is, that such construction, if possible, shall be given, that no clause, sentence or word shall be void, superfluous or insignificent; but if, from a view of the whole act, the intention is different from the literal import of its terms, then the intention shall prevail: construing the ordinance of the convention of 1864, by this rule, it is apparent that tbe intention was to make void the acts of the convention of 1861, only so for as some were in conflict with the constitution and laws of the United States.

Hon. L B, Circuit Judge.

 R, G & N, and G & N, for plaintiff.

We respectfully submit that the proposition, that the judgment upon which the execution was issued was rendered by a court whose acts were made void by the preamble to the present constitution of the State of Arkansas, is contrary to law.

The preamble to the constitution does not, ex vi termini, admit of such a construction; nor can the same be given to it by any fair intendment. See preamble to present constitution of Arkansas, ''page 5 of pamph. Acts, 1864.''

The constitution is not to receive a strict construction. "The constitution should receive a fair and liberal construction." State vs. Ashley, 1 Ark., 513; State vs. Scott, 4 Eng., 270.

But there is a part of this clause which must be strictly construed. So far as it would take away vested rights, it is retroactive; and retroactive construction is not favored, and retrospective clauses must be strictly construed. Baldwin vs. Cross, 5 Ark., 510; Crittenden vs. Johnson, 14 id., 464; Couch vs. McKee, 1 Eng., 424.

So far as it deprived individuals of their rights as a "legitimate consequence of the rebellion," this clause must be considered as penal. "Penal acts are to be strictly construed." 