On Motion for Rehearing.
*552It is not to be denied that what the court has now declared a part of the homestead has been hitherto regarded as “ gilt-edge ” security, has been habitually sold under execution, sold under deeds of trust, and sold by the husband at private sale without the joining of the wife, unquestioned and unchallenged.
In the Alabama woman’s case—-Henderson v. Ford, 46 Tex., 628,— the present learned chief justice, delivering the opinion of the court, says:
“The only remaining objection to appellee’s right to a judgment is her removal from the state after Bohannan’s death and subsequent marriage to her present husband. If the views which I heretofore entertained with reference to the homestead right as contemplated and intended to be secured by the constitution and laws of this state to the heads of families, and surviving constituents thereof, had been recognized as correct, I could well see that these objections might be entitled to much weight. But this court has taken a different view of the matter, at least in cases of insolvent estates. And a majority of the court are of the opinion, in which I acquiesce, in consideration of the general tendency, if not direct determination, in previous cases, . . . that her removal cannot be held to bar or preclude her recovery.”
The opinion of the court in the present case asserts that under the construction heretofore given to substantially the same terms as used in the constitution of 1816, defining the urban homestead, were it not for the proviso, the property in question would not be homestead.
But the court construes the proviso as operating upon the main provision or purview and its previous interpretation by the court, and as enlarging the homestead and extending the main provision.
It is confidently believed that this supposed function of *553enlargement by a proviso is without support of judicial authority.
“The office of a proviso, generally, .is either to except something from the enacting clause, to restrain its generality, or to exclude some possible ground of misinterpretation of it, as extending to cases not intended by the legislature to be brought within its purview.” Minis v. U. S., 15 Pet., 423; Sedgwick on Con. of Stat. and Const. Law, 2d ed., 49; Potter’s Dwarris on Stat. and Const., 118-120.
“The proviso is generally intended to restrain the enacting clause, and to except something which would otherwise have been within it, or in some measure to modify the enacting clause.” Wayman v. Southard, 10 Wheat., pp. 1-30; Matter of Webb, 24 How. Pr., 247; 2 Pa. St., 218; 1 Swan (Tenn.), 413.
“A proviso in deeds or laws,” says the supreme court of the United States in Voorhees v. U. S., 10 Pet., 449, “ is a limitation or exception to a grant made or authority conferred, the effect of which is to declare that the one shall not operate, or the other be exercised, unless in the case provided.”
The law-making power is presumed to know all preexisting law on the subject to which any particular new provision relates; reading the law thus between the lines of this enactment: “The homestead in a city, etc., shall consist of a lot or lots used for the purposes of a home; provided, that the same shall continue to be used for the purpose of a home, or as a place to exercise the calling or business of the head of a family; provided, also, that no temporary renting,” etc.
These provisos, viewed in the light- of legal reasoning and legal construction, declare that thenceforth the law should be otherwise with respect to abandonment than as heretofore held, just as clearly as does the succeeding *554section (53 of the same article) declare that henceforth the homestead estate should not be an estate in fee.
In Pryor v. Stone the venerated and learned first chief justice of this court, in delivering the opinion of the court, though, as a candid examination of the case will disclose, not necessary to the determination of the cause at bar, referring to sec. 22, art. 7, Const, of 1845, said: “It is not declared that the lots shall adjoin or be contiguous to each other; all that, by fair construction of the language, is required to entitle the property to exemption is, that the property should be used for the convenience or uses of the head or members of the family. The exemption should not be construed as reserving merely a residence where a family may eat, drink and sleep, but also a place where the head or members may pursue such business or avocation as may be necessary for the support and comfort of the family. The office of a lawyer or shop of a mechanic is necessary to the convenience and success of their respective professions or trade, but it would frequently be of much inconvenience and detriment that this shop or office should be a part of the same building, or even on the tame lot, with the residence of the family. The exemption is not thus to be restricted in its benefits. It allows any number of lots, not to exceed $2,000, and it cannot be material how many, or how far, or how near, or remote from each other, may be the lots occupied for the convenience of the family, and for the prosecution of the business or employment of its head or members.”
But the rule intimated here was distinctly negatived in Iken & Co. v. Olenick. The court was then constituted of five judges, Chief Justice Roberts and Associate Justices Moore, Gould, Devine and Reeves. Moore, Justice, in delivering the opinion of the court, an opinion which it is no invidious distinction to say is distinguished for *555perspicuity and the broad common sense with which it applies to the homestead provision sound rules of legal construction, said: ‘‘The exemption of urban homestead was based upon the idea of securing a home to the family adequate to its wants and superior demands over those of creditors. But as the business of a majority of those living in cities, towns and villages is not confined to the place of their residence, the limitation of the urban homestead was fixed, not by the size or number of the lots designated, or appropriated as a home or a residence, but by their value at the time they were so designated. . . . Certainly the framers of the constitution were not ignorant of the .fact that much the larger number of those who have homesteads in our cities, towns and villages depend for support upon some other source than the use and appropriation of stores, offices or shops for the particular business or vocation to which they are accustomed. There is] therefore, no reason to suppose that in exempting from the demands of. creditors the lot or lots designated and appropriated as a homestead, there was an intention to exempt also other lots used for an entirely different purpose, because in some instances such lots may have been used by the head of the family for his. ordinary and usual avocation, and in this way indirectly contributed to the support and comfort of the family. That such property so used by the owner in connection with the business which he pursues is advantageous to him, and if exempted from the demands of creditors might contribute to the support of the family, is not to be doubted. But this is also the case with any other property owned by the debtor. ... To exempt property, not in fact a part of the homestead, because it will be a source of income from which a support for the family may be drawn, would evidently be, in effect, to extend the exemption to the full value of its constitu*556tional limitation, and to secure the family, not only by the homestead and the lots connected with and appended thereto, or useful and necessary for its comfort and enjoyment as a home, but it may be also an income much beyond that of even a majority of the most affluent class of our city population. A construction of the constitutional exemption, intended to secure a home for the family, of which it could not be deprived by misfortune or improvidence, which would lead to such results, or afford the means of such fraudulent practices against honest creditors, cannot be sanctioned, unless it is demanded by the plain and unmistakable language in which it is expressed. ...
“ The visible occupation of the homestead, or mansion-house, and land adjoining, or in actual use, as appendant to and part thereof, is notice to creditors and purchasers dealing with the husband. But if any lots throughout the city, which may have been used for any business purpose by the husband, thereby become part and parcel of the homestead, which cannot be reached by creditors, or alienated by the husband without being joined by the wife, it is needless to say that the security of those dealing with the husband rests, to a very great extent, on a moral rather than any legal foundation.”
The opinion then explains that the elaborate treatment of the subject in that case is not due to its intrinsic difficulty, or any doubt as to its proper determination, but to the great respect of the court for the seemingly contrary opinion of the learned and distinguished jurist, its first chief justice. And reviewing Pryor v. Strong and other cases, it concludes with emphasis and distinctness: “ But whatever be the rule upon this subject, as held in former decisions of the court, and however much we regret to find ourselves differing in our conclusions from that recognized by the court heretofore, we think the language of *557the constitution is plain and unmistakable in its meaning, and that it is our imperative duty to follow and observe it as we understand it.”
And the question now is, whether the opposite construction so solemnly departed from by the court — a construction so emphatically reprobated by the court for its results as one that “cannot be sanctioned unless demanded by the plain and unmistakable language in which it is expressed ” — has been thus indicated by the convention of 1876, by annexing to the terms of the exemption (substantially the same as formerly) the words, “provided, the same shall be used for the purposes of a home, or as a place to exercise the calling or business of the head of a family; provided, also, that any temporary renting of the homestead shall not change the character of the same, when no other homestead has been acquired.”
First. It is a proviso; a proviso in form and in substance. It must be construed by the recognized rules of legal construction applicable to provisos. So construed, it limits, restricts and qualifies the purview. How ? Not as a mere cursory view would suggest, by requiring use, as a home or place of business, as means of original designation, but by requiring the continuance of such use as by the purview was necessary for original designation as an absolutely essential condition to the preservation of the property as homestead. If it be replied that this would be a correct exposition except for the fact that there is a character of use referred to in the proviso, viz., use for business, which under the decision in Iken v. Olenick, the purview here being substantially as the old law there, is not fit or appropriate means of original designation, and that therefore there is nothing for this limitation to limit, nothing for this qualification to qualify, we answer, we reasonably account for the erroneous belief at the time in the existence of a subject to limit a predicate to qualify. Pryor v. Strong had announced the efficacy of use for *558business as a means of designation, and all through the decisions, down to Iken v. Olenick, are to be found confirmatory expressions of members of the court. 42 Tex., containing Iken v. Olenick, was not published until 1877. But again, it may be said, this deprives the words “ or as a place to exercise the calling or business of the head of a family ” of all force or effect whatever. If "they are unintelligible, if they cannot stand under the application of legal rules of construction, let them perish; and let the law prevail. Iken v. Olenick will continue the rule of decision. The urban homestead will continue property visibly occupied as such, the mansion house and land adjoining, or in actual use, as appendant to and part thereof, giving notice to creditors and purchasers dealing with the husband, and the beneficence of the law will not become a snare affording the means of fraudulent practices against honest creditors and bona fide- purchasers.
Second. It is not necessary, however, to construe the words as without practical operation; they will still have the obvious effect of preserving a homestead once properly acquired by use as a home, though such use may have been discontinued, provided the property shall continue to be used as a place of business by the head of a family; and this construction is inconsistent with the rule stated with regard to provisos.
Third. If, however, the court should be of the opinion that the proviso indicates methods of original designation, and, by its second clause, extends the definition of homestead, then it is respectfully submitted that there is another literal construction equally admissible with that given, by court, namely, that where the true and heretofore only legal homestead — that is to say, the place of the house or home — does not in fact exist, then "the place of business of the head of the family shall constitute a constructive homestead, and thus the urban homestead will consist of lot or lots — the home of the family — *559“or,” where there is no such home, the place of business of the head of the family. And if equally admissible as a literal construction upon the side of the latter, we cast into the balance the legal reasoning, sound common sense and public policy of Iken v. Olenick, to the end that numerous titles, honestly acquired, and long acquiesced in, may remain quieted; that it may not be necessary for an astute lawyer, familiar with the history of a family for at least a generation, to determine the question of homestead vel non, but that the common man, dealing with his fellow man, looking, as he does, to the popular significance of this untechnical term, may be able to determine the facts for himself as well and as safely as the lawyer in his office or the judge on the bench.
We beg to remark that the court is mistaken in supposing that'counsel for appellant designed to be understood as arguing- that “or,” in the proviso, should be read “'and.”
Chesley & Haggerty, for appellees.From appellant’s assertion in his argument that the framers of the constitution were ignorant of the decision of the case of Iken v. Olenick, and were entertaining e ‘ the erroneous belief at the time ” (of making the constitution) that the doctrine of Pryor v. Stone was the law, while scarcely creditable to the many eminent lawyers in the convention, it follows that that body were well satisfied with the law as they believed it was, and that, their intention was to let it remain that way. That they thought the word “ homestead ” included both the home and the place of business of the head of the family. This, if true, shows that this court has exactly accomplished the intention of the framers of the constitution by the judgment and opinion already rendered, and that a rehearing is unnecessary.
The theory of the argument is, that the purview of the *560constitutional article speaks of the homestead as the place of the home, and the proviso is a limitation upon •the purview, viz.: that it shall be used for a home or as the place of business, etc.
Out of this construction and argument several matters naturally suggest themselves:
1. The office of all artificial rules of construction, even of provisos, is to make apparent what would otherwise be obscure, while here'it is appellant’s application of rules of construction that creates the obscurity.
2. The first and great rule of construction is, that words and sentences shall be used in their ordinary grammatical signification.
In the case at bar, as has already been said by this court, “the entire sentence as framed clearly and properly expresses the intention;” and we venture to suggest that no court has ever permitted an intention, when clearly expressed in a provision of a constitution, to be frittered away by technical rules of construction.
The object of construction as applied to a written constitution is to give effect to the intention of the people in adopting it. Cooley’s Const. Lim., 55. Possible or even' probable meanings, when one is plainly declared in. the instrument itself, the courts are not at liberty to search for elsewhere. Id.
True, this intent is to be found in the instrument itself; but here the rules of construction as applicable to constitutions and to statutes diverge, and those who are charged with the duty of expounding the former are not authorized to apply to the language employed any technical or abstruse meaning, but are required to give effect to its plain and ordinary signification. Hunt v. The State, 7 Tex. Ct. App., 231.
Constitutions are not designed for metaphysical or logical subtleties, for niceties of expression, for critical' propriety, for elaborate shades of meaning, or for the ex*561ercise of philosophical acuteness or judicial research. They are instruments of a practical nature, founded on the common wants, designed for common use, and fitted for common understanding. The people make them, the people adopt them, the people must be supposed to read them with the help of common sense, and cannot be presumed to admit in them any recondite meaning, or any extraordinary gloss. Story on Const., sec. 451.
A constitution is not to receive a technical construction, like a common law instrument or statute. It is to be interpreted so as to carry out the great principles of government, not to defeat them. 34 Ala., 238.
3. Appellant concedes in his construction of the constitution, that the lot or lots do riot become a homestead until they are used for the purpose of a home (page 15), and then adds (that they will remain such), tc provided they shall continue to be used for the purpose of a home or as a place to exercise the calling or business,” etc. Now this gratuitous word “ continue ” applies with equal force to each of the succeeding clauses; the word also imports an existing condition of things which is to be continued ; and both of the succeeding clauses being equally prominent, and, according to appellant, equally potent in preserving the homestead character of the lots, it is perfectly fair to transpose the clauses thus: uProvided they shall continue to be used as a place to exercise the calling or business of the head of a family, or for the purposes of a home. . . .
The logical result of appellant’s construction betrays a complete want of a consistent underlying principle or purpose to be subserved, and we submit that had- it been the intention of the convention to make the urban homestead what appellant contends that it is, it would have used apt and appropriate language for that purpose.
Stayton, Associate Justice.This cause was before this court at a former term, and an opinion was therein rendered by Chief Justice Moore, affirming the judgment of the court below, and after a careful consideration of the case upon this motion for rehearing, with all the light thrown upon the subject by brief and oral argument, evidencing a careful and patient investigation of the question involved by able counsel, we are unable to come to a conclusion different to that formerly arrived at.
We are of the opinion that the framers of the present constitution intended, by the language used in that instrument, to so far extend the meaning of the words, “the homestead of a family,” as to make them embrace not only the home or residence of the family, but in addition thereto the place where the head of the family may exercise his calling or business, even though the same be upon land in a town or city not contiguous to that upon which the home or residence of the family stands.
If that part of the constitution upon which the determination of the question involved in this cause depends had been intended only to operate upon that part of the property upon which the home or residence of the family stands which might be used by the head of the family as a place to exercise his calling or business, the first proviso in section 51, art. XVI of the constitution would have been entirely unnecessary; for under all of the decisions of this court construing the provisions of former constitutions of this state upon.this subject, which were similar to the terms found in the present constitution, if the provisos are excluded, such a place to exercise the calling or business of the head of the family would have been fully protected.
The intention by the constitution, in the language used, must have been to extend the protection which it was intended to give to something under the designation of *563“ the homestead of a family,” however incongruous that something may be to the ordinary meaning of the words “homestead ” or “home of the family,” which had not been considered protected by the terms of former constitutions, under the decisions of this court, and that that something was “ a place to exercise the calling or business of the head of the family.!’
The exemption for rural homestead gives not only the home or residence of the family, but not exceeding two hundred acres of land in one or more parcels, enough to enable the head of the family thereon to exercise his calling or business, agricultural or other, and thereby to provide a support for his family.
The letter and spirit of the constitution harmonizes the urban exemption with that before its adoption given only to the rural, and exempts to each alike a place not only for the shelter of the family, but also a place where its head may exercise his calling or business, and thereby provide subsistence for the family dependent upon him, whether the home and the place of business be upon the same lot or parcel of land or not, and whether contiguous or detached. The reasons why the protection in a town or city should extend to a place for the exercise of the calling or business of the head of the family, detached from the home or residence of the family, readily suggest themselves, and need no illustration.
We recognize, however, in the constitution, the establishment of a rule for the preservation of the full urban exemption, which does not apply to the rural exemption.
While the use to which the property is applied operates as a designation of the homestead in either case, yet the use of the rural homestead otherwise than as the home of the family is not necessary to preserve such a homestead to the full extent of the area provided by the constitution; while in reference to the urban homestead, the use of the home of the family as a residence will not be *564sufficient to protect and keep alive the exemption of a place for the head of a family to exercise his calling or business, which is detached and separate from the home.
The exemption of the place of business, when detached from the place of the home, can only be kept up by use thereof, and an abandonment thereof will withdraw the exemption therefrom, notwithstanding the lot upon which the home of the family may stand may still be used by the family as a home.
The motion for rehearing is overruled.
Motion for rehearing overruled.