Russell v. Howe

78 Mass. 147

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1858
• Status: Published

Opinion

Shaw, C. J.

*

The specific object of the petition is for a mandamus to the judge of probate, requiring him to take jurisdic-’ tian. We then find the act transferring the jurisdiction to the judge of probate and insolvency. St. 1858, c. 93. Is it valid in this respect ?

It is almost unnecessary to state that a law cannot be declared void, or beyond the power of the legislature, unless in a clear case; that it may be void in part, and valid in another -part; and further, that in deciding whether a specific legislative provision is constitutional, the court will look mainly at the thing done, rather than the mode of doing it; and therefore, although an act may be clumsily drawn, and in a manner not satisfactory, still, if we can see what the legislature actually intended to accomplish, and in looking at the terms of the act, the legal effect is to accomplish such purpose and no more, and if it is within the constitutional power of the legislature to effect such change of the law, the judicial conclusion will be, that it is not unconstitutional.

The effect of this act was to transfer the jurisdiction oí a probate court and an insolvent court to a new court thereby constituted. The probate court was a judiciary under the Constitution, and its jurisdiction might be modified, enlarged, diminished or transferred, in the same manner as the jurisdiction of all other' courts subordinate to the supreme judicial court.

Petition dismissed.

This is printed from the memorandum of the decision in the handwriting of the chief justice. His death prevented the writing out of a full opinion.