To THE PETITION 0E COUNSEL EOR APPELLANT EOR A REHEARING, JUDGE Coper delivered the hollowing response oe the court :
We have carefully considered the elaborate, able, and earnest petition of the appellant for a rehearing, and have re-examined our opinion already rendered, deeply impressed with the importance of the question decided, and the delicacy of the task which we were called upon to perform, but we have been unable to come to any other conclusion than that already announced.
One of the principal objections taken to the line of argument by which we reached the conclusion that the act in question is unconstitutional is, that we give prominence to the construction placed by the commissioners who framed the Revised Statutes, and the General Assembly by which those statutes were adopted, upon that portion of the constitution, with which the act in question was held 'to be in conflict.
*92Counsel say this is an unusual course of reasoning; that if it proves any thing it proves too much; that if an act of one legislature can be proved to be unconstitutional by an act passed by another, the conflicting acts would destroy each other and the argument would prove nothing. This would be true if both legislatures occupied the same relation to the subject legislated upon, and had equal means of judging correctly. But such is not the case; and therefore, while we must assume that the legislature of 1851 — 2, and that of 1871 were in all respects equal both in power and in ability to interpret the constitution, we are bound by a well-settled rule of law to give greater weight to the opinion of the former than of the latter as to the correct interpretation of the constitution.
The constitution went into effect in 1850, and the revised statutes were prepared after the constitution was adopted, and were passed in 1851. So far as these statutes furnish any evidence as to how the constitution was then understood, it must be regarded as a contemporaneous construction, which is always more persuasive than a construction given at a period 'more remote. Contemporaneous construction is regarded as the best, and is entitled to great weight, because the persons who gave it are supposed to have been better able to determine the intention, not only by the ordinary rules of construction, but especially from knowing the circumstances to which it had relation; and where the words of an act are obscure or doubtful, and where the sense of the legislature can not with cer- ' tainty be collected by interpreting the language of the statute according to reason and grammatical correctness, considerable stress is laid upon the light in which it was received and held by the contemporary members of the profession. (Broom’s Maxims, p. 655-6; 3 Coke, 7; 2 Bouvier’s Law Dict. 121.)
Sir Edward Coke says great regard ought, in construing a statute, to be paid to the construction which the sages of the law who lived about the time or soon after it was made put *93upon it, because they were best able to judge of the intention of the makers at the time when the law was made. (3 Inst. 11, 136, 181.)
■ The men who framed the Revised Statutes were contemporaneous with the constitution, and a part of them. aided in making it; the legislature by which the statutes were adopted was in part made up of members of the convention; the debates in the convention, and before the people while the constitution was pending before them for adoption, were fresh in the minds of all, and it is reasonable to say that as they had peculiar opportunities to know with what intention the clause in question was inserted, that what it was intended to mean was more fully understood by them than it can be by us at this distance of time. A construction so given ought to be decisive of any doubt which might otherwise exist, and it was for the purpose of fortifying our conclusion that we referred to the construction given to this part of the constitution by the commissioners to revise the statutes and the General Assembly of 1851-2.
Another objection taken is in substance that we have undertaken to prove that the power claimed did not exist, because if it existed it might be abused.
We referred to some of the objects to which the school fund might be appropriated, if the act in question is constitutional, in order to show that the limitation imposed, limiting the appropriation of the fund to the aid of common schools, would prove of no value whatever if the construction contended for by the appellant was to prevail, and therefore that such construction was not the true one. We were bound to assume that the limitation was inserted for some beneficial purpose, and to restrict the power which the legislature would otherwise have had over the fund; and we undertook to show that if it went no further than the appellant claimed, it would not answer any such purpose, but would amount practically to nothing.
*94We did not decide, as counsel seems to suppose, that the fund could only be appropriated to pay teachers, but said more than once that its use was limited to paying the expenses of schools actually taught under the common-school laws; to what items of such expense it could be. constitutionally applied we did not undertake to say.
The fact' that the proceedings of the convention seemed to look to the establishment of a system of common schools does not prove that no such system was then in existence. The ■contrary is true. What was meant was that it should be en-grafted in the constitution and be thereby relieved from the mutations incident to uncontrolled legislative action.
Every attempt made in the convention to introduce such phrases as “a general system of education,” or “to effect the objects of general education,” was defeated, no doubt because such expressions would have made the objects to which the fund might be applied too uncertain. In the very first proposition introduced, the words “in aid of common schools” appeared, and in that proposition the common school intended was defined to be “for the equal benefit of all the children in the commonwealth whose instruction should be provided for by law,” and this clause, although omitted from the constitution, was inserted almost verbatim in the Revised Statutes, showing what sort of school was then understood to be referred to by the name of common schools, and that it was in aid of such schools, and for no other purpose, that the fund was authorized to be appropriated.
The petition must be overruled.