Morgenthaler v. Crites

¶1(dissenting) — I do not desire to take the time to discuss this question at all, but just to make one or two statements. It is a well settled rule of construction that if a statute will bear two constructions, one of which would sustain it and the other would invalidate it, it must receive that construction which would maintain the law. This statute will bear a construction that will sustain it, that is, that it is prospective only, and should have that construction. The alternative writ, in my judgment, could have been answered by the auditor, and I think this answer is entirely insufficient; by *490having acted upon the evidence furnished to him to make this assessment since 1886 and refused to have gone back further than that, that would have been a complete answer. Or, if the evidence had been entirely insufficient to warrant any assessment being made, he could have so answered, it would have been an answer to the alternative writ. He has neither obeyed it nor has h'e answered it in my judgment, and it should be made peremptory.