that is, a doubt which a reasonable man in the performance of a solemn duty in a matter of grave concern to himself, or to the commonwealth, might have, after a calm, full and dis- passionate consideration of the entire matter. It is such a doubt as would cause such a man as a judge, to hesitate to overthrow a statute duly enacted, either by the people by direct legislation, or by their representatives, and would not declare such statute unconstitutional unless compelled so to do by the rules and canons of construction, and by his oath of fidelity and obedience to the constitution. In deciding whether an act of the legislature is unconstitutional, the court cannot so find, unless the conclusion is reached "to a reasonable and moral certainty; a certainty that convinces and directs the understanding and satisfies the reason and judgment of those who are bound to act conscientiously upon it."
Commonwealth v. Webster, 5 Cush. 295; approved in
Hopt v. Utah, 120 U. S. 430-440.
If the opinion written more than ten years ago, when no pungent criticism was made, may in some degree assist the court to a just and correct determination, I shall feel that I have performed a duty that I owe to the court, and that I have discharged in part an obligation to the public as well. For this reason I have asked leave to submit this opinion, with this note, for the consideration of the court.
WM. D. FENTON.
Dated December 18, 1909.
