KF QlnrnfU Hatu ^rlyool ffiibraty PROF. HARRY BITEER B.A, LL.B Cornell university Library KF 425.B631911 l*ooKon««asjaasar DATE DUE idtm ' CATLORS l>R(NTICOINU.«..A. Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018806863 TKe Hornbook Series of Elementary Treatises on all the Principal Sobjects of the Law Arant on Suretyship and Guaranty. Atkinson on Wills. Blacli on Banlcmptcy (2d Ed.). Blaclc on Construction and Interpretation of Laws (2d Ed.). Blade on Constitutional Law (4th Ed.). Black on Judicial Precedenta Bogert on Trasts. Bowman on Introduction to the Common Law. Burdick on Real Property. Ohapin on Torts. Clark on Code Pleading. Clark on Contracts (4th Ed.). Clark on Criminal Procedure (2d Ed.). Clephane on Equity Pleading. Cooley on Municipal Corporations. Costigan on American Mining Law. 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P7542 HANDBOOK ON THB CONSTRUCTION AND/ INTERPRETATION OF THE LAWS By henry CAIVIPBELL black, M.A. AUTHOR OF BLACK'S Li^W DICTIONARY, AND OF TREATISES ON JUDG- MENTS, TAX XI"PLES, INTOXICATING LIQUORS, BANKRUPTCY, COilSTif UtlONAL LAW^, ETC. SECOND EDITION ST. PAUL, MINN. WEST PUBLISHING CO. 1911 74999 C0FTBI3HT, 1911 BT WEST PUBLISHING COMPANT (Black Ikt.Ij.) PREFACE TO THE SECOND EDITION The following pages contain a condensed statement and ex- position of the accepted rules for the construction and inter- pretation of the written laws, whether constitutional or stat- utory. In accordance with the general plan of the Hornbool? Series, these rules have been formulated somewhat after the manner of a code, expressed in brief black-letter paragraphs numbered consecutively throughout the bbok, and explained, developed, and illustrated in the subsidiary text. The cases cited in the original edition of this work were considered sufficient in number and variety to explain and enforce the doctrines set forth, attention being given to the more important and leading authorities and to those which had furnished the most forcible or striking illustrations of the a,pplication of the rules of construction in actual practice. But in view of the great and growing body of decisions upon this highly important subject, it has been deemed advisable, in the present edition, very largely to increase the number of citations. Practically all of the reported cases dealing with the general subject or any of its subdivisions, decided within the fifteen years which have elapsed since the first publica- tion of the book, have been collected by the author and cited in their proper connections. These additions have also re- sulted in a complete and thorough revision of the entire work. Many parts of it have been greatly expanded and some'wholly rewritten. Some changes have also been made in the arrange- ment of the several parts or sections of the book, for the sake of what now appears to the writer a more logical and orderly system of classification. In the preface to the first edition the statement was made ^-and a study of the later decisions induces the author to re- peat it with emphasis — that it was impossible, in examining the course and current of the authorities, to overlook the great change which has come over the disposition of the (V) Vi PREFACE courts with reference to their office as interpreters of the law. It is no longer assumed to be the province of the judiciary either to quibble away or to evade the mandates of the leg- islature. On the contrary, the modern authorities recognize only one rule as absolutely unvarying, namely, to seek out and enforce the actual meaning and will of the law-making power. Thus, the doctrine of "equitable" interpretation has become obsolete, the difference between "strict" and "liberal" construction has been reduced to a minimum, and the sanc- tity of the common law is no longer so jealously insisted upon, and in fact some of the latest adjudications, especially in some of our newer commonwealths, exhibit an attitude towards that once venerated system which very nearly ap- proaches conteiript. It is in accordance with this modern spirit that the pres- ent work has been written; and the author's constant en- deavor, while assigning to all the various minor and related rules the degree of prominence which their relative impor- tance demanded, has been to give adequate expression to the one cardinal and fundamental principle of all true interpre- tation, that the actual intention of the legislature should in all cases be sought out and made effective. H. C. B. Washington, D. C, April 1, 1911. TABLE OF CONTENTS CHAPTER I NATURE AND OFFICE OF INTEHPRETATION Sections Pages 1-2. Definition of Terms 1-9 3. Rules of Construetlon Not Mandatory 9-11 ,4. Object of Interpretation 11-12 5-6. Interpretation the Office of the Judiciary 12-16 CHAPTER II CONSTRUCTION OF CONSTITUTIONS 7. Method of Interpretation » 17-20 8. Intent to be Sought ■ 20-22 9. Uniformity in Construction < 22 10. EfEect to be Given to the Whole 23-25 11. Common Law and Previous Legislation 25-26 12. Retrospective Operation Avoided ; 26-27 13. Mandatory and Directory Provisions 27-29 14. Implications 29-30 15. Grants of Powers 30-32 16. Popular and Technical Sense of Words 33-34 17. Preamble and Titles 34r-35 18. Injustice and Inconvenience 35-37 19. Extraneous Aids in Construetlon 37-39 20. Contemporary and Practical Construction ■ 40-42 21. Provisions from Other Constitutions 42-43 22. Schedule 43-44 23. Principle of Stare Decisis 44 CHAPTER III GENERAL PRINCIPLES OF STATUTORY CONSTRUCTION 24-27. Intention of Legislature— Literal Interpretation. . 45-56 28. Equitable Construction... 57-66 Black Int.L. (vil) Vm TABLE OF CONTENTa Sections Pages 2D-32. Spirit and Reason of the Law 66-76 33. Scope and Purpose of the Act 76-80 34. Casus Omissus 80-83 35. Implications In Statutes 84-94 36. When Government is Bound by Statutes 94-99 CHAPTER IV PRESUMPTIONS IN AID OF CONSTRUCTION, AND CONSID- ERATION OF EFFECTS AND CONSEQUENCES OF ACT 37-38. When Consideration of Effects and Consequences Permissible 100-103 39. Presumptions in Aid of Interpretation 103-105 40. Presumption Against Exceeding Limitations of Legislative Power 105-110 41. Presumption Against Unconstitutionality 110-118 42. Presumption Against Inconsistency 118-119 43. Presumption Against Impossibility 119-121 44. Presumption Against Injustice 122-125 45. Presumption Against Inconvenience... 126-128 46. Presumption Against Absurdity 129-131 47. Presumption Against Ineffectiveness 132-134 48. Presumption as to Public Policy 134-136 49. Presumption Against Irrepealable Laws 136-137 50. Presumption as to Jurisdiction of Courts 138-140 CHAPTER V LITERAL AND GRAMMATICAL CONSTRUCTION, MEANING OF LANGUAGE, AND INTERPRETATION OF WORDS AND PHRASES 51-52. Primary Rule as to Meaning of Language of Stat- ute 141-144 53-54. Use of Same Language and Change of Language. . 145-147 55. Grammatical Interpretation 148-151 56. Inapt and Inaccurate Language 151-154 57. Statute Devoid of Meaning 154-156 58. Correction of Clerical Errors and Misprints 157-162 59. Effect of Misdescriptions and Misnomers 162-165 60. Rejection of Surplusage 165-167 61. Interpolation of Words 167-171 62. Construing Terms with Reference to Subject 171-174 63. Technical and Popular Meaning of Words 175-182 TABLE OF CONTENTS IX Sections Pages 64. Technical Legal Terms 182-186 (!5. Words Judicially Defined 186-187 66. Commercial and Trade Terms 187-193 67. Associated Words 194-196 68-70. General and Special Terms 196-203 71. General Terms Following Special Terms 203-219 72. Express Mention and Implied Exclusion 219-223 73. Relative and Qualifying Terms 223-226 74. Reddendo Singula Singulis, i 226-227 75. Conjunctive and Disjunctive Particles 228-231 76. Number and Gender of Words 232-233 77-81. Computation of Time 234r-241 CHAPTER VI INTRINSIC AIDS IN STATUTORY CONSTRUCTION 82. Context , 242-244 83. Title , 244-252 84. Preamble 253-258 85. Chapter and Section Headings 258-262 86-88. Punctuation 263-269 89. Interpretation Clause 269-274 CHAPTER VII EXTRINSIC AIDS IN STATUTORY CONSTRUCTION 90. Admissibility of Extrinsic Aids i. 275-284 91. Contemporary History 285-289 92. Contemporary Construction and Usage 289-297 93. Judicial Construction 298-300 94. Executive Construction 300-306 95. liegislative Construction 306-307 96. Journals of Legislature 308-312 97. Opinions of Legislators 312-315 98. Motives of Legislature 315-316 CHAPTER VIII CONSTRUCTION OF STATUTE AS A WHOLE AND WITH REFERENCE TO EXISTING LAWS 99. Statute to be Construed as a Whole , 317-321 100. Giving Effect to Entire Statute 322-325 X TABLE OF CONTENTS Sections ^*^oqi 101-103. Conflicting Clauses and Provisions 325-331 104. Statutes in Pari Materia 331-345 105. Harmonizing the Laws 345-349 106. Presumption Against Unnecessary Change of Laws 349-351 107. Presumption Against Implied Repeal of Laws... 351-356 CHAPTER IX INTERPRETATION WITH REFERENCE TO COMMON LAW 108. Common Law in Force In the United States 357-360 109. Construction with Reference to Common Law. . . 360-362 110. Statutes Affirming Common Law 362-363 111. Statutes Supplementing Common Law 363-365 112. Statutes Superseding Common Law 365-366 113. Statutes In Derogation of Common Law 367-379 CHAPTER X RETROSPECTIVE INTERPRETATION 114. Definition 380-382 115-116. Constitutional Considerations 382-385 117. The General Rule 385-395 118. Statutes Impairing Vested Rights 395-401 119. Statutes Imposing Penalties and Liabilities 401-403 120. Remedial Statutes 403-408 121; Statutes Regulating Procedure 408-418 122-123. Curative Statutes 418-421 124-125. Repealing Acts 421-426 CHAPTER XI CONSTRUCTION OF PROVISOS, EXCEPTIONS, AND SAVING CLAUSES 126-128. Definitions 427-430 129. Office of Proviso 430-432 130. Proviso Limited to Preceding Matter 432-434 131. Construction of Provisos 434-438 132. Repugnant Provisos and Saving Clauses 439-443 TABLE OF CONTENTS XI CHAPTER XII STRICT AND LIBERAL CONSTRUCTION Sections Pages 133-134. General Principles •. '. 444-450 135-137. Penal and Criminal Statutes 451^76 ■ 138. Statutes Against Common RigUt 476-483 139. Laws. Authorizing Summary Proceedings 484r-487 140. Remedial Statutes 487-493 141. Statutes Regulating Procedure 494-496 142. Statutes Against Frauds .\ . 496-499 143. Legislative Grants. 499-513 144. Laws Authorizing Suits Against, the State 513-514 145. Revenue and Tax Laws 515-522 146. Statutes of Limitation -. 523-524 CHAPTER XIII MANDATORY AND DIRECTORY STATUTES AND PROVISIONS 147-149. Definitions ' 525-529 150-151. Permissive and Mandatory Terms 529-534 152. Means of Determining Character of Provision . . 534r-540 153. Terms of Authorization Construed as Mandatory 540-543 154. Imperative Terms Construed as Directory 543-544 155. Statutes Regulating Time of Official Action 545-549 156. Statutes Regulating Official Action in Matters of Form 549-553 157-159. Judicial Duties and Proceedings 553-561 160. Laws Authorizing Taxation 562-563 161. Audit and Payment of Public Debts 563 162. Grant of Licenses '. 564r-565 163. Laws Regulating Tax Proceedings 566-570 164. Laws Regulating Elections 571-573 CHAPTER XIV AMENDATORY AND AMENDED ACTS 165. Construction of Amendments 574-575 166. Construction of Statute as Amended 575-577^ 167. Scope of Amendatory Act 577-578 168. Amendment by Way of Revision 579-582 169. Identification of Act to be Amended 582-583 170. Retroactive Construction of Amendatory Acts. . . 584-585 Xll TABLE OF CONTENTS CHAPTER XV CONSTRUCTION OF CODES AND REVISED STATUTES Sections Pages 171. Liberal Construction 586-587 172. Code Construed as a Whole 587-590 173. Reference to Original Statutes 590-594 174. Effect of Change of Language 594^596 175. Adoption of Previous Judicial Construction 596 CHAPTER XVI ADOPTED AND RE-ENACTED STATUTES 176. Statutes Adopted from Other States 597-604 177. State Laws Extended to Territories 604r-605 178. British Statutes 605-607 179. Re-enacted Statutes 607-609 CHAPTER XVII DECLARATORY STATUTES 180. Definition 610-611 181. Declaratory Statutes Not Retrospective... 611-614 182. Construction of Declaratory Acts 614-615 CHAPTER XVIII THE RULE OF STARE DECISIS AS APPLIED TO STATU- TORY CONSTRUCTION 183. The General Principle 616-618 184. Effect of Reversing Construction 618-619 185. Federal Courts Following State Decisions 620-623 186. Construction of Statutes of Other States 623-624 TKis volume contains Key- Number Annotations That js to say, for every point of law wmcn is stated or discussed in tke text, and in su^t>ort of wnicn cases are cited, tkere is added to tlie eutkor s note a citation to tlie Key-Number section or sections m tke Decennial Digest or m the Key-Number Series, under which all cases di- rectly involving that t>oint have been digested. A similar citation to the Century Digest is given, except virhere the {trinci^le involved is one on which no case law existed trior to 1897. Black I n t. or La w s ( xiv ) T HANDBOOK ON THE CONSTRUCTION AND INTERPRETATION OF THE LAWS SECOND EDITION CHAPTER I NATURE AND OFFICE OF INTERPRETATION 1-2. Definition of Terms. 3. Rules of Construction Not Mandatory. 4. Object of Interpretation. 5-6. Interpretation the Office of the Judiciary. DEFINITION OF TERMS 1. Interpretation, as applied to written law, is the art or process of discovering and expounding the intend- ed signification of the language used, that is, the meaning which the authors of the law designed it to convey to others. 2. Construction, as applied to written law, is the art or process of discovering and expounding the mean- ing and intention of the authors of the law with respect to its application to a given case, where that intention is rendered doubtful either by rea- son of apparently conflicting provisions or direc- tions, or by reason of the fact that the given case is not explicitly provided for in the law. "In law, interpretation usually implies either that a word or phrase, read in the light of other parts of the instru- ment or of extrinsic evidence, is found to have a meaning Black Int-L. — 1 2 NATURE AND OFFICE OF INTEKPRETATION (Ch. 1 different from that first apparent upon its face, or that a word or passage, not clear in itself, is found, by transposi- tion or reconstruction of the order of words, or by differ- ent punctuation, to have a clear meaning," * or, we may add, that a technical word, or term of art, is explained in its technical signification (which may differ from the ver- nacular) or is found, upon examination, to connote numer- ous elements not shown upon its face. Interpretation, ac- cording to the more strict etymological view of it, implies a precedent obscurity in the language to be interpreted. It is the explanation, or rendering in intelligible or familiar terms, of that which before was ambiguous, hidden, or un- intelligible. But on wider considerations it is not to be re- stricted to the expounding of ambiguous or doubtful laws. For its services may become necessary when the question is raised whether the terms of a law, in themselves unam- biguous, apply to a given state of facts. If this question is solved from the text alone, by discovering and explaining the meaning of the words used, the process is properly called "interpretation." So, also, it is the office of inter- pretation to give a signification to such terms as "due pro- cess of law," "bona fides," "conveyance," and the like, which cannot be said to be ambiguous, still less unintelligi- ble, but which have acquired a very exact technical mean ing in the law. The term "construction," on the other hand, implies a combination of elements.* In grammar, it signifies the syntactical arrangement of the words in a sentence. In the mechanic arts, it denotes the building or combining to- 1 Century Diet. voc. "Interpretation." 2 "In the most general adaptation of the term, construction sig- nifies the representing of an entire whole from given elements by Just conclusions." Lieber, Hermeneutics, 49. "Interpretation" is em- ployed for the purpose of ascertaining the true sense of any form of words, while "construction" involves the drawing of conclusions regarding subjects that are not always included in the direct ex- pression. Bloomer v. Todd, 3 Wash. T. 599, 19 Pac. 135 ILEA 111. The construction of statutes is the process of discovering the intention of the legislature as to the application thereof to a given §§ 1-2) DEFINITION OF TEEMS 3 gether of the structural parts of anything. So, in law, the fundamental idea of construction is that of piitting together two or more elements (premises) and thence drawing an inference (conclusion). Hence construction, as applied to written instruments, means the putting together of two or more indicia of the writer's meaning (whether found with • in or without the text) and thence deriving a conclusion in regard to that meaning. It will thus be seen that there is a substantial difference between interpretation and construction as methods for the exegesis of written laws. In strictness, interpretation is limited to exploring the written text, while construction goes beyond and may call in the aid of extrinsic considera- tions. "Interpretation," says Dr. Lieber, "differs from con- struction in that the former is the art of finding out the true sense of any form of words, that is, the sense which their author intended to convey, and of enabling others to derive from them the sarhe idea which the author intended to convey. Construction, oil the other hand, is the draw- ing of conclusions, respecting subjectsthat lie beyond the direct expressions of the text, from elements known from and given in the text; conclusions which are in the spirit, though not within the letter, of the text. Interpretation only takes place if the text conveys some meaning or other. But construction is resorted to when, in comparing two dif- ferent writings of the same individual, or two different en- actments by the same legislative body, there is found con- tradiction where there was evidently no intention of such contradiction one of another, or where it happens that part of a writing or declaration contradicts the rest. When this is the case, and the nature of the document or declaration, or whatever else it may be, is not such as to allow us to consider the whole as being invalidated by a partial or other contradiction, then resort must be had to construc- case, when such intention is doubtful either by reason of apparently conflicting provisions, or the fact that the given case is not ex- plicitly provided for. Mercantile Trust Co. v. Adams (Ark.) 129 S. W. 1101. See "Statutes," Dec. Dig. (Key No.) §§ 259-265; Cent. Dig. § 181. 4 NATURE AND OFFICE OF INTERPKETATION (Ch. 1 tion. So, too, if required to act in cases which have not been foreseen by the framers of those rules by which we are nevertheless obliged, for some binding reason, faith- fully to regulate as well as we can our action respecting the unforeseen case." " As an illustration of construction, we may suppose the following case ; A statute provides a penalty for any person who ofifers resistance to "magis- trates, sheriffs^ constables, bailiffs, marshals, or other of- ficers," in the discharge of their official duty. The defend- ant offered resistance to a county surveyor in the discharge of the latter's official duty. Is the case within the law ? If we observe the rule that general terms following an enu- meration by specific terms are to be taken as applying only to others of the same class with those enumerated; if we notice that the officers enumerated in the statute are all of the class of officers having to do with the administration of justice or the execution of the laws; if the title of the act shows us that it was intended to be restricted to such officers ; if we find from an examination of the condition of affairs which induced the passage of the statute, and the evil which it was designed to remedy, that only judicial officers were intended to be thus protected ; if we discover that the language of the act was copied from that of a sim- ilar statute existing in another state, and the law,, in that state, had already received a judicial construction whereby its operation was limited to that class of officers; and if from these several premises (all of which are indicia of the meaning of the legislator) we deduce the conclusion that a county surveyor is not within the terms of the statute, then the process whici has led to this result is properly called "construction." On the other hand, it has been settled, by sLieber, Hermeneuties, 11, 43, 44.. And see Deane y. State, 159 Ind. 313, 64 N. E. ffl6; Jolinson v. Des Moines Life Ins. Co., 105 Iowa, 273, 75 N. W. 101 ; Stratton v. Stratton, 68 N. H. 582, 44 Atl. 699; People v. New York City Tax Com'rs, 95 N. Y. 554; Terre Haute & L. K. Co. v. Erdel, 158 Ind. 344, 62 N. E. 706; Jones v. Proprietors of Morris Aqueduct, 36 N. J. Law, 206; State ex rel. Attorney General v. Smith, 35 Neb. 13, 52 N. W. 700, 16 L. R. A. 791 ; Bloomer v. Todd, 3 Wash. T. 5G9, 19 Pac. 135, 1 L. R. A. 111. Bee "Statutes," Dec. Dig. (Key No.) § 174; Cent. Dig. § S54. §§ 1-2) DEFINITION or TEEMS 6 the decisions of the courts, that the term "ex post facto laws," as used in the constitutions, applies only to penal and criminal proceedings and not to civil actions. This ex- plication of the meaning of this term was the result of "interpretation." Again, "the Constitution of the "United States says that Congress shall have the pbwer of regulat- ing commerce, but it does not say how far this regulatory power shall extend. This sentence, then, must be inter- preted, if we are desirous to ascertain what precise mean- ing the framers of our Constitution attached to it, and con- strued, if we are desirous of knowing -how they would have understood it respecting new relations, which they could not have known, at the time, and which nevertheless fall decidedly within the province of this provision." * In practice, however, both courts and text-writers are in the habit of using the two terms "interpretation" and "con- struction" as synonymous or interchangeable." This is be- cause either or both of these methods may be resorted to freely, whenever the necessity of elucidating the meaning of a statute becomes apparent; and niceties of language are not much observed when they do not correspond with an imperative necessity of maintaining a distinction heir tween the things themselves. The technical distinction be- tween the two terms will not be scrupulously observed in the following pages. It should also be observed that the two terms in question may be applied either to the art, the process, or the result of the elucidation. It is in the latter sense that we employ them when we say that a court has put a ''narrow inter- pretation" upon a statute, or that a case has been brought within the terms of a statute "by construction." Different Methods of Interpretation The methods of interpretation have been variously class- ified by different writers. According to one of the most 4 Lieber, Hermeneutics, 169. B See United States v. Keitel, 211 U. S. 370, 29 Sup. Ct. 123, 53 L. Ed. 230, where the court remarks that, conceding that there may be an abstract distinction between "construction" and "inter- pretation," yet in common usage the words have the same signifi- cance. See "Statutes," Dec. Dig. (Key No.) § n^; Cent. Dig. § 25k. Q NATURE AND OFFICE OF INTEEPRETATION (Ch. 1 eminent, interpretation is sai4 to be eittjer , "legal," which rests on the same authority as the law itself, or "doctrinal,' which rests upon its intrinsic reasonableness. Legal inter- pretation may be either "authentic," when it is expressly provided by the legislator, or "usual," when it is derived frpm unwritten ■ practice. Doctrinal interpretation may turp on the meaning of words and sentences, when it is called, "grammatical," or on the intention of the legislator, when.it is described as "logical." When logical interpre- tation stretches the words of a statute to cover its obvious nieaning, it. is called "extensive";* when,, on the other hand, , it avoids giving full meaning to the words, in order not to go beyond the intention of the legislator, it is called : "restrictive."^ . In, the Roman and m,odern civil law, some of the forego- ing terms are used in a slightly different sense. "Authen- tic" interpretation is that given by the legislature itself, which alone, under that system, has the authority to re- solve doubts and fix the sense of words, and whose deci- sion is obligatory on citizens and tribunals , and must be obeyed, both within and without courts of justice.* "Cus- tomary" interpretation is that given by the judges, con- sulting the spirit of the law, jurisprudence, usages, and "The so-called 'extensive' interpretation of statute law ex ra- tione legis, is the extension of the provisions of the law to a case which they do not comprise because the case falls within the scope of' the law, although the provisions of the law do not Include it. There is truly an extension of the law." Austin, Jurisprudence, § 913. '•Holland, Jurisprudence, 344; Lieber, Hermeneuties, 62, 63. 8 Under the Spanish law as formerly in force in Texas and now in Mexico, the function of interpreting laws was legislative and not judicial; and there was a provision in the Constitution of the Republic of Texas that "the tribunals and courts, being authorized solely to apply the laws, shall never interpret the same nor sus- pend their execution." See Houston v, Robertson's Adm'r, 2 Tex. 1, 26. And this is in accordance with the general principles and con-ceptions of the Roman law, which — diametrically opposed to the common law in this respect— regarded the office of interpreta- tion as a prerogative of the law-giver, not of the judge. This no- tion was expressed in the maxim, "Ejus est interpretari cujus est condere." See Taylor, Civil Law, 96. See "Statutes," Dec. Dig (key No.) §§ ne, n9, 2IS-22O; cent. Dig. §§ 255, S58, 2H-298. §§ 1-2) DEFINITION OF TERMS 7 equity, and has a certain force and authority, especially when two or more decisions made by a superior tribunal on a similar subject-matter are in conformity with each other. "Doctrinal" interpretation consists in the opinions /given by jurisconsults and other persons versed in the law.° The term "authentic" interpretation may also be applied to the interpretation put upon the laws of a given state by its own government, including the judicial department thereof, when the same are required to be interpreted and applied by the tribunals of another state. The courts of one of the states of the American Union will follow the construction put upon the statutes of another state by the courts of the latter state. So the courts of the United States are the "authentic" interpreters of the Constitution and laws of the United States, and the courts of the states are bound to follow and adopt their interpretation of those laws. And conversely, the federal courts adopt the con- struction put upon state statutes by the courts of the state which enacted them.^° Lieber, in his work on Hermeneutics, gives the follow- ing classification of the different kinds of interpretation : "Close" interpretation is adopted if just reasons con- nected with the character and formation of the text induce us to take the words in their narrowest meaning. This species of interpretation is also generally called "literal." "Extensive" interpretation, called also "liberal" interpre- tation, adopts a more comprehensive signification of the words. "Extravagant" interpretation is that which substitutes a meaning evidently beyond the true one. It is therefore not genuine interpretation. 9 Houston V. Robertson's Adm'r, 2 Tex. 1, 26. See "Statutes," Deo. Dig. (Key No.) §§ X^6, S19, S20; Cent. Dip. §§ 255, 296-298. 10 Gatewood v. North Carolina, 203 U. S. 531, 27 Sup. Ct. 167, 51 L. Ed. 305 ; Bauserman v. Blunt, 147 U. S. 647, 13 Sup. Ct. 466, 37 L. Ed. 316; Leffingwell v. Warren, 2 Black, 599, 17 L. Ed. 261; Shelby v. Ouy, 11 Wheat. 361, 6 L. Ed. 495; Black, Const. Law (3d Ed.) 186. Bee "Courts," Dec. Dig. (Key No.) §§ 97, S66; Cent. Dig. §§ 329-S3Jf, 95/f-968. 8 NATURE AND OFFICE OP INTERPRETATION (Ch. 1 "Free," or unrestricted, interpretation proceeds simply on the general principles of interpretation in good faith, not bound by any specific or superior principle: "Limited," or restricted, interpretation is when we are influenced by other principles than the strictly herm€neutia ones. "Predestined" interpretation takes place if the interpre- ter, laboring under a strong bias of mind, makes the text subservient to his preconceived views or desires. This in- cludes "artful" interpretation, by which the interpreter seeks to give a meaning to the text other than the one he knows to have been intehded.^^ According to the sariie author, construction is either close, comprehensive, transcendent, or extravagant, the varieties corresponding to the similar species of interpreta- tion. "Close" construction is that which inclines to the direc- test possible application of the text, or the principles it in- volves, to new or unprovided cases, or to contradictory parts. "Comprehensive" construction is that which inclines to an extensive application of the text, or the principles it in- volves, to new, unprovided, or not sufficiently specified cases or contradictions., "Transcendent" construction is that which is derived from or founded upon a principle superior to the text, and nevertheless aims at deciding on subjects belonging to the province of that text. "Extravagant" construction is that which carries the ef- fect of the text beyond its true limits, and therefore is no longer genuine construction, as the last-named species be- comes of a more and more doubtful character the more it approaches to this.^" There are some other distinguishing terms applied to the interpretation or construction of laws which require a brief mention. Thus, "strict" construction is the construction of a statute according to its letter, which recognizes nothing that is not expressed, takes the language used in its exact 11 Lleber, Hermeneutlcs, .^4-60. 12 id. 65-69. § 3) RULES OP CONSTRUCTION NOT MANDATORT 9 and technical meaning, and admits no equitable considera- tions or implications. It is the same as the "close" or "re- strictive" construction of the writers quoted above. Its antithesis is "liberal" construction. Again, interpretation or construction is said to be either prospective or retro- spective, according as it makes -the provisions of the text apply only to future cases or transactions, or makes them include also cases or transactions which occurred before the passage of the law. Finally, whcH the words of a law are wrested from their plain and obvious meaning, and made to bear an entirely different meaning (for the sake of avoiding an absurd or unjust consequence), this is called "artificial," "forced," or "strained" construction. It cor- responds to the "extravagant" construction or interpreta- tion of Dr. Lieber. RULES OF CONSTRUCTION NOT MANDATORY 3. The rules of construction are not rules of positive law, unless expressly provided by statute. They rest on the authority of the courts, which have gradu- ally evolved them, and they are not imperatively binding in the same sense as are the enactments of the legislature. "Rules of interpretation are not imperative like the man- datory provisions of law; they are rather in the nature of suggestions leading up to the probable meaning where it has been carelessly or inartificially expressed; and where the words are susceptible of more than one interpretation, they (the rules) may possibly guide us to the one in- tended." ^^ At the same time, it should be noted that these rules of interpretation have now grown into a very com- plete and detailed system, and that the courts do not feel themselves at liberty to disregard the rules which may be applicable to the given case, unless fpr very special rea- sons. And indeed, it has been suggested, and with much 18 Cooley, Taxation, 265. 1,0 NATURE AND OFFICE OF INTERPKETATION (Ch. 1 plausibility, that the legal rules for the interpretation of statutes form a part of the "jus" or ordinary law of the country, which every person is bound to be conversant with at his peril, in accordance with the maxim, "Ignor- antia juris neminem excusat." ^* It is also proper for the courts to assume, when called upon to construe a statute, that the legislature, in settling its phraseology, has done so with reference to the estab- lished canons of statutory interpretation.^ ° And it should be remarked that these rules or canons are the same in equity as in law.^° Statutory Construction Acts The function of establishing rules for the construction and interpretation of- statutes, though properly judicial, has often been assumed by the legislatures. Aside from spe- cial declaratory or expository statutes, to be noticed in a subsequent chapter, and the "interpretation clauses" ordi- narily found in elaborate and complex pieces of legislation, separate statutory construction statutes have been enacted in some of the states. In some cases, these do not go be- yond a general provision that all general terms and expres- sions used in statutes shall be liberally construed, to the end that the true intention of the legislature may be fully carried out.^' In other cases, as in New York, such a stat- ute may amount to a code of rules for the interpretation of words and phrases commonly employed in legislation, for the application of grammatical rules, the computation of time, and other such matters.^* But laws of this kind have not the force of constitutional provisions. They can- not be allowed to defeat the manifest intention of the leg- islature as shown in a subsequent statute, nor do they bind 1* Hardcastle, Stat. Law, 3. 15 A. L. & E. F. Goss Co. v. Greeuleaf, 98 Me. 436, 57 Atl. 581. See "Statutes," Dec. Dig. {Key No.) § 17^; Cent. Dig. § 25i. 18 A. L. & E. F. Goss Co. V. Greenleaf, 98 Me. 436, 57 Atl. 581. See "Statutes," Dec. Dig. (Key No.) § J74; Cent. Dig. § 25^. 17 See, for example, Kirby's Dig. Ark. § 7792; Brown v. Nelms, 86 Ark. 368, 112 S. W. 373. See "Statutes," Dec. Dig. (Key No ) §5 178. 179; Cent. Dig. §§ 257, Z5S. 18 Laws N. Y. 1892, c. 677. 8 4| . OBJECT OF INTERPRETATION 11 the courts to construe it in a manner repugnant to' its plain purpose and obvious meaning. Such statutes cease tO te effective when necessarily in conflict with a later manifes- tation "of the legislative will.^* OBJECT OF INTERPRETATION 4. The true object of all interpretation is to ascertain the meaning and will of the law-making body, to the end that it may be enforced. It is not permissible, under the pretence of interpretation,, to make a law, different from that which the law-making body intended to enact. "Statute law is the will of the legislature; and the ob- ject of all judicial interpretation of it. is to determine what intention is conveyed, either expressly or by implication, by the language used,, so far as it is necessary for deter- mining whether "the particular case or state of facts pre- sented to the interpreter falls within it." "" The' wisdom, policy, or expediency of legislation is a matter with which the courts have nothing whatever to do. Whether or not a given law, is the best that could have been enacted on the subject; whether or not it is calculated to accomplish its avowed object; whether or not it accords with what is un- derstood to be the general policy of legislation in the par- ticular jurisdiction — these are questions which do not fall within the province of the courts. And hence a court ex- ceeds its proper office and authority if it attempts, under the guise of construction, to mould the expression of the legislative will into the shape which the court thinks it ought to bear. The sole function of the judiciary is to ex- 19 People ex rel." City of Buffalo v. New York Cent. & H. R. R. Co., 156 N. Y. 570, 51 N. E. 312; Davidson v. Witthaus, 106 App. Div. 182, 94 N. T. Supp. 428; People v. ZIto, 237 111. 434, 86 N. E. 1041; Great Northern Ry. Co. Vi United States, 155 Fed. 945, 84 C. C. A. 93 ; Malone v. WUliams, 118 Term. 390, 103 S. W. 798, 121 Am. St. Rep. 1002. See "Statutes," Deo. Dig. {Key No.) §§ 176, 178, 179; Cent. Dig. §§ 253, 257, 258. 20 Maxwell, Interp. 1. 12 NATURE AND OFFICE OF INTEEPKETATION ( Ch. 1 pound and apply the law. To enact the law is the preroga- tive of the legislative department of government. Nor can the courts correct what they may deem excesses or omis- sions in legislation, or relieve against the occasionally harsh operation of statutory provisions, without danger of doing more mischief than good.** INTERPRETATION THE OFFICE OF THE JUDI- CIARY 5. As between the three departments of government, the office of construing and interpreting, the written laws belongs to the judiciary ultimately, although the executive and legislative departments may be required, by necessity, to put their own construc- tion upon the laws in advance of their exposition by the courts. 6. As between the court and the jury, on the trial of a cause, the construdtibn and interpretation of all written instruments, including statutes and con- stitutions, is for the court. When there arises a necessity for construing or inter- preting the written laws, in order to discover their applic- ability to a given case or state of facts, the question of the meaning and intention of the legislature in this regard is a question of law, and as such it must be solved by the court; it is not for the determination of the jury.** When 21 Sutherland, Stat. Constr. § 235, citing Waller v. Harris, 20 Wend. (N. Y.) 562, 32 Am. Dec. 590; State, to Use of Rosenblatt, V. Heman, 70 Mo. 441. And see United States v. Colorado & N. W R. Co., 157 Fed. 321, 85 C. C. A. 27, 15 L. R. A. (N. g.) 167- St Louis & S. F. R. Co. v. Delk, 158 Fed. 931, 86 G. C. A. 95- Ellis v. Boer, ,150 Mich. 452, 114 N. W. 239 ; Von Diest v. San Antonio Trac^ tion Co., 33 Tex. Civ. App. 577, 77 S. W. 632 ; Flowing Wells Co v CulUi, 11 Ariz. 425, 95 Pac. 111. Compare, also, the remark of Lord Coke: "Viperina est expositio quse corrodlt viscera textus." 11 Coke, 34. See "Statutes," Dec. Dig. (Key 2fo.) SS nA 17R if>i ■ Cent. Dig. §§ 254, U5, Z59, 263. *' ' ' 22 Dodsworth v. Anderson, T. Jones, 141 ; Byrne v. Byrne, 3 Tex. §§ 5-6) INTERPRETATION THE OFFICE OF THE JDDICIART 13 the question depends upon the meaning of particular words or phrases, it may sometimes be necessary to call in the aid of the jury, but only to ascertain the correct signification of the language used, not to construe or interpret it in its application to the pending case. If the words in question are not technical terms, either as having a special sense by commercial usage, or as having a scientific meaning differ- ent' from their popular meaning, but are words of common speech, then their interpretation is a matter within the ju- dicial knowledge, and belongs to the court as a question of law.^' But when technical terms (other than legal terms) or scientific terms, or the words and phrases of trade and commerce, or mercantile signs or abbreviations, or simi- larly obscure or specialized expressions, are found in a stat- ute, and their explanation becomes relevant to the case on trial, the testimony of experts is admissible as to their meaning. And thereupon two questions arise, between which it is very necessary to preserve a clear distinction. 336; Belt v. Marriott, 9 Gill (Md.) 331; Large v. Orvis, 20 Wis. 696; Fairbanks v. Woodhouse, 6 Cal. 433; Inge v. Murphy, 10 Ala. 885; Barnes v. Mayor, etc., of Mobile, 19 Ala. 707; Thorp v. Craig, 10 Iowa, 461; City of Peoria t. Calhoun, 29 111. 317; Sierra County v. Nevada County, 155 Cal. 1, 99 Pac. 371; State v. Patterson, 134 N. C. 612, 47 S. E. 808; Winchell v. Town of Camillus, 109 App. Div. 341, 95 N. Y. Supp. 688; Rice v. State, 7 Ind. 332; People v. Peden, 109 111. App. 560; Ay res v. United States, 44 Ct. CI. 110. But see Katzman v. Commonwealth, 140 Ky. 124, 130 S. W. 990. See "Statutes," Dee. Dig. {Key No.) § 176; Cent. Dig. § 255. 23 Marvel v. Merritt, 116 U. S. 11, 6 Sup. Ct. 207, 29 L. Ed. 550; Nix V. Hedden (C. C.) 39 F0d. 109 ; State v. Baldwin, 36 Kan. 1, 22, 12 Pac. 318; Moran v. Prather, 23 Wall. 492, 23 L. Ed. 121. The question whether a statute requiring railroad trains to "slow; down to a speed of not more than four miles an hour before running on, or crossing, any drawbridge over a stream which is regularly navi- gated by vessels," applies toi the trestles and approaches leading up to a drawbridge proper, is a question for the court and not for the jury.- Savannah, F. & W. By. Co. v. Daniels, 90 Ga. 608, 17 S. E. 647, 20 L. R. A. 416. See State v. Stevens, 69 Vt. 411, 38 Atl. 80, holding that the determination of the meaning of a word in a statute is for the trial judge, who may take any means to inform himself; and the exclusion of evidence offered to establish such meaning is not error. See "Statutes," Dec. Dig. (Key No.) i 176; Cent. Dig. § 255. 14 NATURE AND OFFICE OF INTERPKETATION (Ch. 1 The first question is, what is the specific meaning of the term as used in the law? This is a question of fact. It, is to be determined by the jury, in view of the evidence ad- duced with regard to it. But the second question is this: What effect has the term, used with this meaning, upon the construction of the statute ? And this is a question of law, and is to be determined by the court."* "The construction of all written instruments belongs to the court alone, whose duty it is to construe all such instruments, as soon as the true meaning of the words in which they are couched, and the surrounding circumstances, if any, have been ascer- tained as facts by the jury; and it is th& duty of the jury to take the construction from the court, either absolutely, if there be no words to be construed as words of art or phrases used in commerce, and no surrounding circum- stances to be ascertained, or conditionally, when those words or circumstances are necessarily referred to them." "^ For example, in a case in Texas, the construction of the word "family," as used in a statute, became necessary to the decision of the case. The court refused to instruct the jury as to what constitutes a "family," but declared that question to be a matter of proof, and authorized the jury to interpret the meaning of the term for themselves. This was held to be error. For the term, when applied to a par- ticular state of facts, presents a mixed question of law and fact; and it is the province of the court to declare the law, so far as the fact is governed by the law; and so far as the 24 See Eaton v. Smith, 20 Pick. (Mass.) 150; Hutchison t. Bowker, 5 Mees. & W. 535; McNichol v. Pacific Exp. Co., 12 Mo. App. 401; Brown v. Brown, 8 Mete. (Mass.) 573 ; Pitney v. Glens Falls Ins. Co., 65 N. Y. 6. See "Statutes," Dec. Dig. {Key No.) § 176; Cent. Dig. § 255. 215 Neilson v. Harford, 8 Mees. & W. 806. In Moran v. Prather, 23 Wall. 492, 23 L. Ed. 121, it was said: "Terms of art, in the absence of parol testimony, must "be understood in their primary sense, unless the context evidently shows that they were used in the particular case in some other and peculiar sense, in which case the testimony of persons skilled in the art or science may be ad- mitted to aid the court in ascertaining the true intent and meaning of that part of the instrument." See "Statutes," Dec. Dig. (Key No.) § 176; Cent. Dig. § S55. §§ 5-6) INTERPRETATION THE OFFICE OF THE JUDICIARY 15 fact is a question of proof, it is to be deduced by the jury, from the evidence, and not from their personal knowl- edge. =« It may here be remarked that the oifice of interpreting statutes is regarded as a high and important judicial func- tion, and it will not be exercised upon moot cases or hypo- thetical questions, nor in respect to legislation not yet en- acted or not yet in force. In one of the recent cases the court refused to declare itself upon the operation and effect of an amendment to the criminal laws, applicable in capital cases, which, though duly enacted, had not yet gone into effect, maintaining that its duty was confined to the con- struction of existing laws.''^ Construction of, foreign Laws Similar questions arise as to the construction of foreign laws. It is well settled that' foreign laws must be proved as facts, that is, they cannot be judicially noticed. As be- tween the several states of the American Union, the stat-_ utes now generally provide that the official publications of the acts of the legislatures or the codes shall be compe- tent original evidence of the existence and terms of those laws. But the rule remains, as always, that foreign laws are to be proved as facts. But, this being established, it is evident that two questions may be presented to the court trying a case in which such foreign laws become relevant. One question is this: What interpretation or construction is put upon the law in question by the courts of the state which enacted it? The other is, what construction shoifld be put upon the statute by the court which is called upon to apply it to a given state of facts? In other words, the 26 Goode V. State, 16 Tex. App. 411. Whether or not a given act is a work of necessity, within the meaning of an exception to a statute prohibiting labor on Sunday, is a questipn of fact to be found -by the jury. Smith v. Boston & M. R., 120 Mass. 490, 21 Am Rep. 538 ; Ungerlcht v. State, 119 Ind. 379, 21 N. E. 1082, 12 Am. St. Rep. 419 ; State v. Knight, 29 W. Va. 340, 1 S. E. 569. See "Statutes," Dec. Dig. {Key No.) § 116; Cent. Dig. § 255. 2 7 State ex rel. Campbell v. Superior Court of Pierce County, 25 Wash. 271, 65 Pac. 183. See "Statutes," Dec. Dig. (Key No.) § 176; Cent. Dig. % 255. 16 NATURE AND OFFICE OF INTERPRETATION (Ch. 1 tribunal may be called upon either to ascertain, and then apply, the construction which the foreign law bears at home, or else to put its own construction upon it. Now the former of these questions is a question of fact ; the lat- ter is a question of law. The construction given to a stat- ute of another state, whether by usage or by judicial de- cisions, is a part of the unwritten law of that state, and as such it may be proved by parol testimony, and must be found by the jury."^ But when the existence and terms of the foreign law have been proved as facts, and there is no evidence as to the construction put upon it at home, or when for any reason that construction is not to be followed, but the trial court must construe the law, then there is presented a question with which the jury are not con- cerned, but it belongs exclusively to the courf * 28 Dyer v. Smith, 12 Conn. 384; Kline v. Baker, 99 Mass. 253. But some of the cases appear to 'hold that if the evidence of the home interpretation of a foreign law consists of judicial decisions, such evidence is properly addressed to the court and not the jury. See Geoghegan v. Atlas Steam-Ship Co. (Com. PI.) 10 N. T. Supp. 121 ; Kline v. Baker, 99 Mass: 253. And see Christiansen v. William Graver Tank Works, 223 111. 142, 79 N. E. 97, affirming 126 111. App. 86. See "Statutes," Dec. Dig. (Key No.) § 226; Cent. Dig. S§ 256, sot; "Courts," Dec. Dig. (Key No.) § 95; Cent. Dig. i§ S2S, S23. 2» State v. Jackson, 13 N. C. 563; Cobb v. Griffith & Adams Sand, Gravel & Transportation Co., 87 Mo. 90. And see Kline v. Baker, 99 Mass. 253; Bremer v. Freeman, 10 Moore, P. C. 306; Di Sora V. Phillips, 10 H. L. Cas. 624; Molson's Bank v. Boardman, 47 Hun (N. T.) 135 ; Ames v. McCamber, 124 Mass. 85 ; Shoe & Leather Nat Bank v. Wood, 142 Mass. 563, 8 N. E. 753. Compare Holman v. King, 7 Mete. (Mass.) 384. See "Statutes," Dec. Dig. (Key No.) S 176; Cent. Dig. § 255. § T, CONSTEUCTION OF CONSTITUTIONS 17 CHAPTER II CONS'TEUCTION OF CX3NSTITDTI0NS t. Method of Interpretation. 8. Intent to be Sought. 9. Uniformity in Construction. 10. Effect to be Given to the Whole. 11. Common Law and Previous Legislation. 12. Retrospective Operation Avoided. 13. Mandatory and Directory Provisions. 14. Implications. 15. Grants of Powers. 16. Popular and Technical Sense of Words. 17. Preamble and Titles. 18. Injustice and Inconvenience. 19. Extraneous Aids in Construction. 20. Contemporary and Practical Construction. 21. Provisions from Other Constitutions. 22. Schedule. 23. Principle of Stare Decisis. METHOD OF INTERPRETATION 7. A constitution is not to be interpreted on narrow or technical principles, but liberEilly and on broad general lines, in, order that it may accomplish the objects of its establishment and carry out the great principles of government. "Narrow and technical reasoning," says Judge Cooley, "is misplaced when it is brought to bear upon an instru- ment framed by the people themselves, for themselves, and designed as a chart upon which every man, learned or un- learned, may be able to trace the leading principles of government." * The constitution "was intended for the benefit of the people, and must receive a liberal construc- tion. A constitution is not to receive a technical construc- tion, }ike a common-law instrument or a statute. It is to be interpreted so as to carry out the great principles of 1 Cooley, Const. Lim. 59. ■ Black Int.L. — 2 18 CONSTKUCTION OP CONSTITUTIONS (Ch. 2 government, not to defeat them." ' Constitutions, it is said in another case, "declare the organic law of a state; they deal with larger topics and are couched in broader phrase than legislative acts or private muniments. They do not undertake to define with minute precision in the manner of the latter, and hence their just interpretation is not always to be reached by the application of similar methods." ^ "A constitution of government does not, and cannot, from its nature, depend in any great degree upon mere verbal criticism, or upon the import of single words. Such criticism may not be wholly without use; it may sometimes illustrate or unfold the appropriate sense; but unless it stands well with the context and the subject-mat- ter, it must yield to the latter. While, then, we may well resort to the meaning of single words to assist our in- quiries, we should never forget that it is an instrument of government we. are to construe, and that must be the truest exposition which best harmonizes with its design, its ob- jects, and its general structure." * It has sometimes been 2 Morrison v. Bachert, 112 Pa. 322, 5 Atl. Y39 ; C!ommpnweaIth v. Clark, 7 Watts & S. (Pa.) 127; State ex rel. Moodie v. Bryan, 50 Fla. 293, 39 South. 929 ; Cumberland Telephone & Telegraph Co. v. Hickman, 129 Ky. 220, 111 S. W. 311, 33 Ky. Law Rep. 730 ; Spratt V. Helena Power Transmission Co., 37 Mont. 60, 94 Pac. 631; State ex rel. Edwards v. Millar, 21 Okl. 448, 96 Pac. 747; Brummitt v. Ogden Waterworks Co., 33 Utah, 289, 93 Pac. 828; Nona Mills Co. V. Wingate, 51 Tex. Civ. App. 609, 113 S. W. 182. See "Constitu- tional Law," Dec. Dig. {Key No.) §§ 11-Sl; Cent. Dig. §§ 9-17. 3 Houseman v. Commonwealth ex rel. Tener, 100 Pa. 222. See, also, Greencastle Tp. in Putnam County v. Black, 5 Ind. 557. But compare State ex rel. Jury Com'rs v. City of New Orleans, 2 Mc- Gloin (La.) 46, where it is said that constitutions are to be inter- preted according to the general rules of the law of interpretation, being in this respect upon the same footing as ordinary statutes, contracts, judgments, etc. See "Constitutional Law," Dec Dig. (Key No.) §§ 11-21; Gent. Dig. §§ 9-11. 4 1 Story, Const. § '455. And see Western Union Tel. Co. v. Rail- road Conamission of I.iOuisiana, 120 La. 758, 45 South. 598, where the court observes tliat, although statutes are sometimes hastily drawn, and construction is necessary to give them effect, the lan- guage of a constitution is presumably selected with the utmost dis- crimination. (See "Constitutional Law," Deo. Dig. (Key No) §S U- 21; Gent. Dig. §§ 9-11. § 7) " METHOD OP INTERPRETATION 19 contended that the construction of a constitution should be strict, because it is a grant of powers, and is, to that ex- tent, in derogation of the inherent and natural powers of the people. But on this point it has been very justly ob- served: "All governments are founded upon a surrender of some natural rights, and they impose some restrictions. Therefore, in construing a constitution of government framed by the people for their own benefit and protection, for the preservation of their rights and property and lib- erty, where the delegated powers are not and cannot be used for the benefit of their rulers, who are but their tem- porary servants and agents, but are intended solely for the benefit of the people, no presumption arises of an intention to use the words of the constitution in the most restricted sense. The strict or the most extended sense, being equally within the letter, may be fairly held to be within their intention, as either shall best promote the very ob- jects of the people in the grant, and as either shall best promote or secure their rights, property, or liberty. The words are not, indeed, to be stretched beyond their fair sense; but within that range, the rule of interpretation must be taken which best follows out the apparent inten- tion. This is the mode, it is believed, universally adopted in construing the state constitutions. It has its origin in common sense. And it can never be an object of just jeal- ousy, because the rulers can have no permanent interest in a free government distinct from that of the people, of whom they are a part, and to whom they are responsible." ^ But it is here necessary to remark that a distinction must be taken, as regards the strictness or liberality of construc- tion, between the constitution of a state and the Constitu- tion of the United States, when either is considered as a grant of governmental powers. Under that aspect, it is only the former which is entitled to be liberally construed, in the fullest sense of the term. The federal constitu- tion, in respect to its clauses which delegate powers to th,e general government, is to receive a reasonable and fair con- struction, but is not to be stretched beyond the plain mean- B 1 Story, Const. § 413. 20 CONSTRUCTION OF CONSTITUTIONS (Ch. 2 ing of its terms and the necessary implications arising therefrom. It should also be observed that it is not within the lawful powers of the courts, in any event, "to amend the constitution, under the color of construction, by inter- polating provisions not suggested by any part of it. We cannot supply all omissions which we may believe have arisen from inadvertence on the part of the constitutional convention." * INTENT TO BE SOUGHT 8. It is a cardinal rule in the interpretation of constitu- tions that the instrument must be so construed as to give effect to the intention of the people, who adopted it. This intention is to be sought in the constitution itself, and the apparent meaning of the words employed is to be taken as expressing it, except in cases where that assumption would lead to absurdity, ambiguity, or contradiction. Where the meaning shown on the face of the words is definite and intelligible, the courts are not at liberty to look for another meaning, even though it should seem more probable or natural, but they must assume that the con- stitution means just what it says. "Whether we are con- sidering an agreement between parties, a statute, or a con- stitution, with a view to its interpretation, the thing we are to seek is the thought which it expresses. To ascer- tain this, the first resort in all cases is to the natural signifi- cation of the words employed, in the order and grammat- ical arrangement in which the framers of the instrument have placed them. If, thus regarded, the words embody a definite meaning, which involves no absurdity and no con- tradiction between different parts of the same writing, then that meaning apparent upon the face of the instrument is the one which alone we are at liberty to say was intended « Walker v. Cits' of Cincinnati, 21 Ohio St. 14, 53, 8 Am. Rep. 24. See "Constitutional Law," Dec. Dig. (Key No.) §§ 11-21; Cent. Dig. §§ 9-n. § 8) INTENT TO BE SOUGHT 21 to be conveyed. In such a case, there is no room for con- struction. That which the words declare is the meaning of the instrument, and neither courts nor legislatures have the right to add to, or take away from, that meaning." ' But if the words of the constitution, thus taken, are devoid of meaning, or lead to an absurd conclusion, or are contra- dictory of other parts of the constitution, then it cannot be presumed tha;t their prima facie import expresses the real intention. And in that case, the courts are to employ the process of construction to arrive at the real intention, by taking the words in such a sense as will give them a defi- nite and sensible meaning, or reconcile them with the rest of the instrument. And this sense is to be determined by comparing the particular clause with other parts of the constitution, by considering the various meanings, vernac- ular or technical, which the words are capable of bearing, and by studying the facts of contemporary history and the purpose sought to be accomplished, and the benefit to be secured, or the evil to be remedied, by the provision in question.' But deviating from the literal sense of the words em- ployed in a constitution is a very dangerous proceeding, and one upon which the courts may embark only under the r Newell V. People, 7 N. Y. 9, 97 ; City of Beardstown v. City of Virginia, 76 111. 34; City of SpringHeld v. Edwards, 84 111. 636; HUls v. City of Chicago, 60 111. 86; People v. May, 9 Colo. 80, 10 Pae. 641; Jackson v. State, 87 Md. 191, 39 Atl. 504; Donaldson v. Harvey, 3 Har. & McH. (Md.) 12; Western Union Tel. Go. v. Rail- road Commission of Louisiana, 120 La. 758, 45 South. 598; Manthey V. Vincent, 145 Mich. 327, 108 N. W. 667; Attorney General v. State Board of Assessors, 143 Mich. 73, 106 N. W. 698 ; State v. Eldredge, 27 Utah, 477, 76 Pac. 337; Rasmussen v. Baker, 7 Wyo. 117, 50 Pac. 819, 38 L. R. A. 773: Keller v. State (Tex. Cr. App.) 87 S. W. 669, 1 L. R. A. (N. S.) 489 ; Powell v. Spackman, 7 Idaho, 692, 65 Pac. 503, 54 L. R. A. .378 ; Boca MUl Co. v. Curry, 154 Cal. 326, 97 Pac. 1117. See "Constitutional Law," Dec. Djig. (Key No.) |§ 13, U; Cent. Dig. §§ 10, 11. s People V. Potter, 47 N. Y. 375 ; Taylor v. Taylor. 10 Minn. 107 (Gil. 81) ; State ex rel. Norvell-Shapleigh Hardware Co. v. Cook, 178 Mo. 189, 77 S. W. 559 ; Smith v. Grayson County, 18 Tex. Civ. App. 153, 44 S. W. 921. See "Constitutional Law," Deo. Dig. {Key No.) §§ 11-21; Cent. Dig. SI 9-17. 22 CONSTRUCTION OF CONSTITUTIONS (Ch. 2 pressure of necessity, to avoid a plain absurdity or contra- diction, and their power in this respect must be exercised with very great caution.* And the fear of disastrous con- sequences gives them no reason for declining to give ef- fect to the constitution according to its apparent meaning when that meaning is obvious and involved in no obscurity ; if such fears are justified, and unintended hardships or dis- asters follow, the remedy is with the ptople, who always have the power to amend the constitution.^" UNIFORMITY IN CONSTRUCTION 9. The construction of a constitutional provision is to be uniform. The constitution cannot be made to mean different things at different tiines. Its interpretation should not fluctuate according to the changes in public sentiment or the supposed desirability of adjusting the fundamental rules to varying conditions or exigencies. The meaning of the constitution is fixed when it is adopted, and after- wards, when the courts are called upon to interpret it, they cannot assume that it bears any different meaning.^^ "The policy of one age may ill suit the wishes or the policy of another. The constitution is not to be subject to such fluctuations. It is to have a fixed, uniform, permanent con- struction. It should be, so far at least as human infirmity will allow, not dependent upon the passions or parties of particular times, but the same yesterday, to-day, and for- 9 Taylor v. Taylor, 10 Minn. 107 (Gil. 81). Sec •'Constitutional Law," Dec. Dig. (Key No.) § IJ,; Cent. Dig. § 11. loMantliey v. Vincent, 145 Mich. 327, 108 N. W. 667. See "Con- stitutional Law," Dec. Dig. (Key No.) §§ 5-9, U; Cent. Dig. §§ Z~ 8, 11. 11 People ex rel. Twitchell v. Blodgett, 13 Mich. 127. See "Con- stitutional Law," Deo. Dig. {Key No.) §§ 11-21; Cent. Dig. §§ 9-n. 12 1 Story, Const. § 427. § 10) KFFECT TO BE GIVEN TO THE WHOLE 23 EFFECT TO BE GIVEN TO THE WHOLE *0. In case of ambiguity, the whole constitution is to be examined in order to determine the meaning of any part; and the construction is to be such as to give effect to the entire instrument, and not to raise any conflict between its parts which can be avoided.^' An examination of other parts of the constitution will -)ften enable the court to ascertain the sense in which the words in particular clauses were used. And this method of investigation must be resorted to before aid can be sought from extraneous sources. Moreover, a construc- tion which raises a conflict between different parts of the constitution is not permissible when, by any reasonable construction, the parts may be made to harmonize.^* Hence, where a word or phrase is used in the constitution in a plain and manifest sense, it is to receive the same in- terpretation when used in any" other part, unless it clearly appears from the context that a different meaning should be applied to it.^' But when the constitution speaks in plain language in reference to a particular matter, the 13 Manly v. State, 7 Md. 135 ; State ex rel. Moodie v. Bryan, 50 Fla. 293, 39 South. 929; State ex rel. Crow v. Hostetter, 137 Mo. 636, 39 S. W. 270, 38 L. R. A. 208, 59. Am. St. Rep. 515; Funk- houser v. Spahi:, 102 Va. 306, 46 S. B. 378; Tazewell v. Herman, 108 Va. 416, 60 S. E. 767 ; State v. Harden, 62 W. Va. 313, 58 S. B. 715 ; State v. Kyle, 8 W. Va. 711 ; State ex rel. Wolfe v. Parmenter, 50 Wash. 164, 96 Pac. 1047, 19 L. R. A. (N. S.) 707; People ex rel. Mattison v. Nye, 9 Cal. App. 148, 98 Pac. 241; People ex rel. Wil- liams Engineering & Contracting Co. v. Metz, 198 N. Y. 148, 85 N. E. 1070, 24 L. R. A. (N. S.) 201; Blackrock Copper Min. & Mill. Co. V. Tingey, 34 Utah, 369, 98 Pac. 180, 28 L. R. A. (N. S.) 255, 131 Am. St. Rep. 850. See "Constitutional Late," Dec. Dig. (Key No.) § 15; Cent. Dig. § 9. 1* Cooley, Const. Lim. 58 ; Manly v. State, 7 Md. 135. See "Con- stitutional Law," Dee. Dig. {Key No.) § 15; Cent. Dig. § 9. isEpping V. Columbus, 117 Ga. 263, 43 S. B. 803; State ex rel. Woodward v. Skeggs, 154 Ala. 249, 46 South. 268. See "Constitu- tional Law," Dec. Dig. (Key No.) §§ U, 15; Cent. Dig. §§ 9, 11. 24: CONSTRUCTION OF CONSTITUTIONS (Ch. 2 courts have no right to place a different meaning on the words employed because the literal interpretation may hap- pen to be inconsistent with other parts of the instrumtnt in relation to other subjects.^" And "it is by no means a correct rule of interpretation to construe the same word in the same sense wherever it occurs in the same instrument. It does not follow, either logically or grammatically, that because a word is found in one connection in the constitu- tion with a definite sense, therefore the same sense is to be adopted in every other connection iti which it occurs. This would be to suppose that the framers weighed only the force of single words, as philologists or critics, and not whole clauses and objects, as statesmen and practical rea- soners." ^' And it must be remembered that a state con- stitution does not stand alone in regulating the frame of government, or defining the limitations of governmental powers. Just as a statute must be construed with refer- ence to constitutional and statutory provisions on the same subject-matter, so the provisions of a state constitution must be construed with reference to the corresponding or related provisions of the federal constitution, treaties formed by the national authorities, and the acts of Con- gress, and must, if possible, be so interpreted as not to con- flict with the same.^' Where the constitution makes pro- vision for contingencies apprehended, or for occasional or temporary needs, such provisions should not be so inter- preted as to clash with the general design, but should be in harmonious subservience thereto, and if their terms con- flict with those provisions which are made part of the es- sential framework of the general plan, and are of usual continuous and necessary operation, the former must yield and adapt themselves to the latter.^" The bill of rights, commonly incorporated in state constitutions, is not to be interpreted by itself alone, according to its literal meaning. i« Cantwell v. Owens, 14 Md. 215. See "Constitutional Law," Deo. Dig. {Key No.) §§ IJ,, 15; Cent. Dig. §§ 9, 11. 17 1 Story, Const. § 454. 18 Endllch, Interp. § 523. 10 People V. Potter, 47 N. T. 375. See "Constitutional Law," Dec. Dig. (Key No.) §§ IS, 18; Cent. Dig. §§ 9, 13, J7. § 11) COMMON LAW AND PREVIOUS LEGISLATION 25 The bill of rights and the constitution together compose the form pi government, and they must be interpreted as one instrument. The former announces principles on which the government about to be established will be based. If they differ, the constitution must be taken as a limitation or qualification of the general principles previ- ously declared, according to the subject and the language employed.'" COMMON LAW AND PREVIOUS LEGISLATION 11. A constitution should be construed with reference to, but not overruled by, the doctrines of the common law and the legislation pireviously existing in the state. Except in so far as it is superseded by the constitutions, the common law is generally in force in the United States. Hence the importance of comparing constitutional provi- sions, in order to arrive at the true meaning and effect, with the great body of the common law, both for the pur- pose of understanding the language employed and of meas- uring the changes and innovations designed to be intro- duced. But the .constitution is superior to the common law, and is not to be understood as in any way controlled or limited by it. It is a familiar rule that a statute in con- travention or derogation of the common law ought not to be extended by construction. And there is always a pre- sumption against an unnecessary change of laws. Accord- ingly it has been held that when a new constitution makes a change in the pre-existing law, whether common law or statutory, the change is not to be extended by construc- tion beyond the very terms of the constitution."^ But this 20 Mayor, etc., of Baltimore v. State ex rel. Board of Police of City of Baltimore, 15 Md. 376, 459, 74 Am. Dec. 572. Compare lu re Dorsey, 7 Port. (Ala.) 293. See "ConstilMtional Law," Dec. Dig. {Key No.) §§ 12, 18; Vent. Dig. §§ 9, IS, 17. 21 Costigin V. Bond, 65 Md. 122, 3 Atl. 285. See, also, Mayor, etc., of Baltimore v. State ex rel. Board of Police of City of Baltimore, 26 CONSTRUCTION OF CONSTITUTIONS (Ch. 2 is a rule which must be applied with great care. It should never be allowed to detract, in the slightest degree, from the actual meaning and intention of the constitution. RETROSPECTIVE OPERATION AVOIDED 12. A constitutional provision should not be construed vidth a retrospective operation, unless that is the unmistakable intention of the words used or the obvious design of the authors. It is the invariable rule that a statute will be so con- strued as to operate prospectively only, unless the words used, or the plain design of the framers of the law, being too clear to admit of any doubt, require that it should have a retrospective effect. This rule, with the very substantial reasons upon which it rests, will be considered in a later chapter. The same reasons apply equally to the interpre- tation of constitutional provisions. Hence, if the language employed admits of a substantial doubt on this point, the courts should not construe the provision retrospectiv^ely.'"' But if such an effect is manifestly intended, they are not at liberty to narrow the meaning of the constitution from any considerations of justice or expediency. The former part of this rule has not, indeed, been always accepted. In one of the cases it was said (though the remark was only obiter) that the rule against a retrospective interpretation has but little application, if any, to the interpretation of a 15 Md. 376, 74 Am. Dec. 572 ; Brown v. Fifield, 4 Mich. 322 ; Cooley, Const. Lim. 61. See "Constitutional Law," Dec. Dig. {Key Jfo) §§ J7, 18; Cent. Dig. §§ 13, 17. 22 Conyers v. Commissioners of Roads & Revenues of Bartow County, 116 Ga. 101, 42 S. E. 419 ; Town of Clierry Creek v. Becker, 123 N. Y. 161, 25 N. B. 369; Bronk v. Barckley, 13 App. Div. 72, 43 'N. T. Supp. 400; Famsworth v. Lime Rock E. Co., 83 Me. 440, 22 Atl. 373 ; State ex rel. Scott v. Dirckx, 211 Mo. 568, 111 S. w! 1 ; Swift & Co. V. City of Newport News, 105 Va. 108, 52 S. E. 82l] 3 L. R. A. (N. S.) 404; Arey v. Lindsey, 103 Va. 250, 48 S. E. 889; State V. Cox, 79 Kan. 530, 99 Pac. 1128. 'See "Constitutional Law" Dec. Dig. (Key No.) § 23; Cent. Dig. § 20. § 13) , MANDATORY AND DIRECTORY PROVISpNS 27 constitution. "We are not/' said the learned judge, "to iii- terpret the constitution precisely as we would an act of, the legislature. The convention was not obliged, like the legislative bodies to look carefully to the preservation of vested rights. It was competent to deal, subject to ratifi- cation by the people, and to the constitution of the federal gqvernment, with all private and social rights, and with all the, existing laws and institutions of the state. If the con- vention Jiad so willed, and the people had concurred, all the former charters and grants might have been annihi- lated. When, therefore, we are seeking for the true con- struction of a constitutional provision, we are constantly tOibear in mind that its authors were not executing a dele-, gated authority, limited by other constitutional restraints,, but are to look upon them as the founders of a state, in- tent only upon establishing such principles as seemed best calculated to produce good government and promote the public happiness, at the expense of any and all existing in- stitutions which might stand in their way." *' MANDATORY AND DIRECTORY PROVISIONS 13. The provisions of a constitution ar^ almost invariably mandatory; it is only in extremely plain cases, or under the pressure of necessity, that they can be construed as merely directory. It is not lightly to be presumed that any provision deemed essential to be incorporated in an instrument so solemn and enduring as a constitution, was designed to be merely in the nature of a direction, without imperative •force. "It would, in a general sense, be a dangerous doc- trine to announce that any of the provisions of the consti- tution may be obeyed or disregarded at the mere will or pleasure of the legislature, unless it is clear beyond all question that such was the intention of the framers of that 23 In re Oliver Lee & Co.'s Bank, 21 N. Y. 9. See "Constitutional Law," Dec. Dig. (Key. A'o.) §§ 11-21, 23; Cent. Dig. §§ 9-11, 20. 28 CONSTRUCTION OF CONSTITUTIONS (Ch. 2 instrument. It would seem to be a lowering of the proper dignity of the fundamental law to say that it descends to prescribing rules of order in unessential matters which may be followed or disregarded at pleasure." "* As a rule, therefore, whenever the language used in a constitution is prohibitory, it is to be understood as intended to be a positive and unequivocal negation; and whenever the lan- guage contains a grant of power, it is intended as a man- date, not a mere direction."" Nevertheless^ there may be cases in which a constitutional provision should be held to be merely directory. Thus, where, the contrary con- struction would lead to absurd, impossible, or mischie- vous consequences, it should not be followed. In Ohio, for example, where a clause of the Constitution required that every bill, on its passage through the Legislature, should "be fully and distinctly read on three different days," the court held that this provision might be taken as merely directory, and that its observance by the Legislature was to be taken as secured by their sense of duty and official oaths, and not by any supervisory power of the courts. "Any other construction, we incline to think, would lead to very- absurd and alarming consequences. If it is in the power of every court (and if one has the power,' every one has it) to inquire whether a bill that passed the assembly was 'fully,' and 'distinctly' read three times in each house, and to hold it invalid if, upon any reading, a word was ac- cidentally omitted, or the reading was indistinct, it would obviously be impossible to know what is the statute law 24 Sutherland, Stat. Constr. § 79. And see Parker v. State ex rel. Powell, 133 Ind. 178, 33 N. E. 119, 18 L. R. A. 567; Varney v. Jus- tice, 86 Ky. 596, 6 S. W. 457 ; People v. Lawrence, .36 Barb. (N. X.) 177 ; Carolina Grocery Co. v. Burnet, 61 S. C. 205, 39 S. E. 381, 58 L. R. A. 687 ; State v. Burrow. 119 Tenn. 376, 104 S. W. 526 ; Capito V. Topping, 65 W. Va. 587, 64 S. E. 845, 22 L. R. A. (N. S.) 1089. See "Constitutional Law," Dec. Dig. (Key No.) S S5: Gent Dig § 3J,%. 2 5 Varney v. Justice, 86 Ky. 596, 6 S. W. 457; Hunt v. State, 22 Tex. App. 396, 3 S. W. 233; People v. Lawrence, 36 Barb. (N. Y.) 177. See "Constitutional Laic," Dec. Dig. (Key No.) S S5- Cent Dig. § Si^. § 14) IMPLICATIONS 29 of the state."*' And again, it must be remembered that a constitution is to receive a reasonable construction, and such as to carry out the great principles of government, and not to defeat them. Consequently, the principle of strict construction should not be allowed to nullify or frus- trate the main objects of the constitution, especially in a newly constructed frame of government. For instance, "it was provided by the first article and third section of the federal constitution that the Senate should be composed of two members from each state, chosen for six years, and that 'immediately' after they should be assembled, they should be divided into three classes, in order that one-third of the body might be chosen every second year. Yet, on the principle of strict construction, a postponement of the division for a month or a day would have presented an in- superable obstacle to the organization of the government. Necessarily, the paramount rule of interpretation demands that such provisions be deemed only directory." *' IMPLICATIONS 14, Whatever is necessary to render effective any provi- sion of a constitution, whether the same be a pro- hibition, or a restriction, or the grant Of a power, must be deemed implied and intended in the pro- vision itself.*' 28 Miller v. State, 3 Ohio St. 475 ; Pirn v. Nicholson, 6 Ohio St. 176. And see Hill v. Boyland, 40 Miss. 618; McPherson v. Leonard, 29 Md. 377. See "Constitutional Law," Dec. Dig. (Key No.) § 35; Cent. Dig. § 3^%. 2 7 Commonwealth v. Clark, 7 Watts & S.'(Pa.) 127. See "Consti- tutional Law," Dec. Dig. (Key No.) § S5; Cent. riig. § SWz- 28 Endlich, Interp. § 535 ; 1 Story, Const. § 480 ; Cooley, Const. Lim. 77. But see Cumberland Telephone & Telegraph Co. v. City of Hickman, 129 Ky. 220, 111 S. W. 311, 33 Ky. Law Rep. 730, holding that Interpretations of the constitution by rules of implica- tion are most hazardous, and should be resorted to only in those instances where the subject-matter and the^ language leave no ddubt that the intended meaning of the clause under investigation may he reached in that way only and with approximate certainty. See "Constitutional Law," Dec. Dig. (Key No.) § 12; Cent. Dig. § 9, 30 CONSTRUCTION OF CONSTITUTIONS (Chi 2 The principal .application of this rule is in respect to the grants of powers contained in the constitutions, which, will be considered in the succeeding section. But it is also a rule of construction that "when the constitution defines the circumstances under which a right may be exercised or a penalty imposed, the specification is an implied prohibition against legislative interference to add to the condition or to extend the penalty to other cases. Qn this ground it has been held that where the constitution defines the qualifi- cations of an officer, it is not in the power of the legislature to change or superadd to them, unless the power to do so is expressly or by necessary implication conferred by the' con- stitution itself." "* Moreover, the language of a constitu- tion, which cannot enter into minute and detailed specifi- cations to meet possible cases, is subject often to implied exceptions and qualifications, which depend upon the prin- ciples of reason, justice, or public policy. Thus, for in- stance, a constitutional provision giving to county auditors the exclusive right to fix the compensation for all services rendered to the county, should not be held to invest them with the power to fix the compensation for their own serv- GRANTS OF POWERS 15. Where the constitution grants a power in general terms, the grant includes all such particular and auxiliary powers as may be necessary to make it effectual. Where the means for the exercise of a ■ granted power are specified, all other means are understood to be excluded. Where the means are not specified, any means may be resorted to which are fairly and properly adapted to accompUsh the object of the grant of power, if they do not un- necessarily interfere with existing interests or vested rights. 2 9 Cooley, Const. Lim. 64, citing Thomas v. Owens, 4 Md. 189. See "Constitutional Law," Dec. Dig. (Key No.) § 12; Cent. Dig. § 9. 3D People ex rel. Kennedy v. Gies, 25 Mich. S3. See "Constitu- tional Laio," Deo. Dig. (Key No.) § 12; Cent. Dig. § 9. § 15) GRANTS OF POWERS 31 "A constitution cannot, from its very nature, enter into a minute specification of all the minor powers naturally and obviously included in it and flowing from the great and im- portant- ones which are expressly granted. It is therefore established as a general rule that when a constitution gives a general power, or enjoins a duty, it also gives, by implica^ tion, every particular power necessary for the exercise of the one or the performance of the other. The implication under this rule, however, must be a necessary, not a con- jectural or argumentative one." ^^ And when a power is granted in general terms, the power is to be construed as coextensive with the terms, unless some clear restriction upon -it is deducible, expressly or by implication, from the context.^' A power, given in general terms, is not to be re- stricted to particular cases merely because it may be sus- ceptible of abuse, and, if abused, may lead to mischievous consequences.'^ And on the other hand, a rule of equal im- portance is not to enlarge the construction of a given power beyond the fair scope of its terms merely because the re- striction is inconvenient, impolitic, or even mischievous. Arguments drawn from impolicy or inconvenience ought to have no weight in this connection.'* But "no construction of a given power is to be allowed which plainly defeats or impairs its avowed objects. If, therefore, the words are fairly susceptible of two interpretations, according to their common sense and use, the one of .which would defeat one Or all of the objects for which it was obviously given, and the other of which would preserve and promote all, the former interpretation ought to be rejected, and the latter be held the true interpretation. This rule results from the SI Field V. People ex rel. McClernand, 3 111. 79, 83; Parks t. West, 102 Tex. 11, 111 S. W. 726. But where the constitution con- fers upon a given court certain powers which it specially enumer- ates, they are all that the court will possess; and it will not be competent for the legislature either to add to or subtract from those powers. State v. Mace, 5 Md. 337. See "Constitutional Law," Dec. Dig. (Key No.) §§ 26, 27; Cent. Dig. §§ 30, 31. s2Cooley, Const. Lim. 64; 1 Story, Const. § 424. 88 1 Story, Const. § 425. 8« Id. § 426. 32 CONSTRnCTION OF CONSTITUTIONS (Ch. 2 dictates of mere common sense ; for every instrument ought to be so construed 'ut magis valeat quam pereat.' " " Where, in a constitution, a power is granted, and the means for its exercise are also specifically granted, no other or different means or powers can be implied on the ground of greater convenience or eificiency.'* If the means for the execution of the granted power are not specified, it should not fail for the want of such enumeration ; but in that case it is evident that the depositary of the power will be in- vested with a discretion as to the choice of the means to be employed, the only restriction being that the means selected shall be fairly and properly adapted and appropriate to the exercise of the power, and shall involve no injustice or hard- ship which can reasonably be avoided. "When the means for carrying into effect any particular constitutional power are not specified, those means which interfere with estab- lished relations, and violate existing rights and obligations, as fixed by law, will not be presumed to be mtended, unless they are strictly necessary." " It should also be observed, in this connection, that while the foregoing, rules are equally applicable to the Constitu- tion of the United States and to those of the states,, yet, con- sidered as a grant of powers, the former is to be strictly construed, while the latter are to receive a liberal construc- tion. For instance, the Congress of the United States can pass no laws but those which the Constitution authorizes, either expressly or by clear implication, while the legisla- ture of a state has jurisdiction of all subjects on which its legislation is not prohibited."' 8 6 Id. § 428. 88 Field V. People ex rel. McClernand, 3 111. 79. See "Constitu- tional Law," Dec. Dig. (Key No.) §§ 26, 27; Cent. Dig. §§ 30, 31. 8 7 Commonwealth v. Downes, 24 Pick. (Mass.) 227. See "Consti- tutional Law," Dec. Dig. {Key No.) §§ 26, Z7 ; Cent. Dig. §§ 30, 31. 8 8 Commonwealth v. Hartman, 17 PA. 118; Weister v. Hade, 52 Pa. 474; Black, Const. Law (3d Ed.) 351. On the subject of the con- struction of the Constitiition of the United States with reference to its grants of legislative power, see Black, Const. Law (3d Ed.) 202, 284, 287. Bee "Constitutional Law," Deo. Dig. (Key No ) SS 26 27; Cent. Dig. §§ SO, 31. » « v «J/ «o., sg ao, § 16) POPULAR AND TECHNICAL SENSE OF WOKDS^ 33 POPULAR AND TECHNICAL SENSE OF WORDS 16. The words employed in a constitution are to be taken in thdr natural and popular sense, unless they are technical legal terms, in which case they are to be taken in their technical signification. It is a general rule that the words of a constitution are to be understood in the sense in which they are popularly employed, unless the context or the very nature of the sub- ject indicates otherwise.*' "Every word employed in the constitution is to be expounded in its plain, obvious, and common sense, unless the context furnishes some ground to contrQl, qualify, or enlarge it. Constitutions are not de- signed for metaphysical or logical subtilties, for niceties of expression, for critical propriety, for elaborate shades of meaning, or for the exercise of philosophical acuteness or judicial research. They are instruments of a practical na- ture, founded on the common business of human life, adapted to common wants, designed for common use, and fitted for common understandings. 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 pre- sumed to admit in them any recondite meaning or any ex- traordinary gloss." *° Where a word having a technical (nonlegal) meaning, as well as a popular meaning, is used in a constitution, the courts will accord to it its popular signification, unless it is apparent, from the nature of the subject or the connection in which it appears, that it^was S9 Greencastle Tp. in Putnam County v. Black, 5 Ind. 557; People V. Fancher, 50 N. Y. 288 ; Epping v. Columbus, 117 6a. 263, 43 S. E. 803 ; Hamilton Nat. Bank v. American Loan & Trust Co., 06 Neb. 67, 92 N. W. 189; Swift & Co. v. City of Neiwport News, 105 Va. 108, 52 S. E. 821, 3 L. R. A. (N. S.) 404; The Huntress, Da v. 82, Fed. Cas. No. 6,914 ; State v. Mace, 5 Md. 337 ; Manly v. State, 7 Md. 135. See "Constitutional Law," Deo. Dig. (Key No.) § Hj Cent. Dig. § 11. *o 1 Story, Const. § 451. Black Int.L. — 3 Zi CONSTRUCTION OF CONSTITUTIONS (Ch. 2 intended to be used in its technical sense.*^ But there are many technical legal terms employed in the constitutions. And if the technical signification of these words differs from the vernacular, the former is to be preferred in construc- tion. This is because a constitution is a law, and is to be interpreted as such. "No one would doubt," says Story, "when the constitution has declared that 'the privilege of the writ of habeas corpus shall not be suspended,' unless under peculiar circumstances, that it referred, not to every sort of writ which has acquired that name, but to that which has been emphatically so called, on account of its remedial power to free a party from arbitrary imprisonment. So again, when it declares that in suits at 'common law' the right of trial by jury shall be preserved, though the phrase 'common law' admits of different meanings, no one can doubt that it is used in a technical sense." *^ And this rule is particularly true of the terms derived from Magna Charta and the other great English charters, which are to be in- terpreted in the light of history, and have acquired a fixed and exact technical meaning from the expositions of the courts and the understanding of the people. But where the constitution uses technical terms of law and jurisprudence, which are common to our law and the law of England, if there is a difference of signification in the two countries, the meaning which they bear in this country is to be pre- ferred.** PREAMBLE AND TITLES 17. The preamble to a constitution and the titles of its sev- eral articles or sections may furnish some evidence of its meaning and intention; but arguments drawn therefrom are entitled to very little weight. " Weill V. Kenfield, 54 Cal. 111. See "Constitutional Law," Deo. Dig. (Key No.) § U; Cent. Dig. § 11. *2 1 Styty, Const. § 453. 4sTlie Huntress, Da v. 82, Fed. Cas. No. 6,914. See "Constitu- tional Law," Dec. Dig. (Key No.) §§ IJ,, IT; Cent. Dig. §§ II, 13. I 18) INJUSTICE AND INCONVENIENCE 35 "It is evident that only in the most general way can the preamble of a constitution influence the construction of its provisions. As affecting the general character of the in- strument, it has, indeed, been resorted to. The weight at- tached to the phrase 'We, the people,' in the preamble of the federal constitution, and the arguments based upon it, are a familiar instance of this species of construction." ** And "scarcely any significance can be attached to the wording of the captions or titles of the several articles of the constitution. At most, they do not profess to indi- cate more than the general character of the article to which they are prefixed. That they are intended as critical and precise definitions of the subject-matter of the articles, or as exercising restraining limitations upon the clear expres- sion,s therein contained, cannot be pretended " *" INJUSTICE AND INCONVENIENCE 18. It is not permissible to disobey, or to construe into nothingness, a provision of the constitution merely because it may appear to work injustice, or to lead to harsh or obnoxious consequences or invidious and unmerited discriminations, and still less weight should be attached to the argument from mere inconvenience. In the construction or interpretation of a constitution, the courts have nothing to do with the argument from in- convenience. It is their duty to declare what the constitu- tion has said. And while it will not be presumed that the framers of the constitution intended to produce unjust, op- pressive, or invidious results, yet if the meaning of the in- strument is clear and unambiguous, or is plainly indicated by internal evidence, the courts are not at liberty to disre- gard this obvious meaning or to depart from it, on any con- *4 Endlich, Interp. § 511. _ *5 Houseman v. Oommonwealtli ex rel. Tener, 100 Pa. 222. See "Constitutional Law," Dec. Dig. (Key No.) §§ 12, 15; Cent. Dig. § 9. 36 CONSTRUCTION OF CONSTITUTIONS (Ch. 2 sideration of the consequences which may follow.'" "The hardships and inconveniences resulting from this construc- tion are urged upon our attention," said the court in Colo- rado in a recent case. But "to such appeals the language of the courts is uniform. The province of the judiciary is not to make the law, but to construe it. The meaning of a constitutional provision being plain,, it must stand, be rec- ognized, and obeyed, as the supreme law of the land." " At the same time, "we. do not say that if a clause should be found in a constitution which should appear at first blush to demand a construction leading to monstrous and absurd consequences, it might not be the duty .of the court to ques- tion and cross-question such clause closely, with a view to discover in it, if possible, some other meaning more consis- tent with the general purposes and aims of these instru- ments." *' But where the purpose and intent of the framers of the constitution are clearly expressed, they should be followed by the courts, without regard to any changes in public opin- ion' on questions of policy or of the inconvenience resulting from following the constitution.*" It is impossible to in- sist too strongly on this principle. A constitution may be- come antiquated. Its somewhat primitive provisions and arrangements may be regarded as no longer adequate to the efficient administration of government. New political the- ories may have come into existence and may have been gen- erally accepted. The increasing complexity of modern life, on its industrial, commercial, and social sides, may appear to require a new order of fundamental rules and principles. The distribution of powers and functions, as between the *8 Greencastle Tp. in Putnam County v. Black, 5 Ind. 557; Weill V. Kenfield, 54 Cal. Ill; Wayne County v. City of Detroit, 17 Mich. 390; Oakley v. Aspinwall, 3 N. Y. 547, 568. See "Constitutional LoM/," Dec, Dig. (Key Tflo.) §§ 11-U; Cent. Dig. §§ 9-11. 47 People V. May, 9 Colo. 80, 10 Pac. 641. See "Constitutional Law," Deo. Dig. (Key 'No.) §§ Xl-21, 45; Cent. Dig. §§ 9-17, 4S. 48 Cooley, Const. Lim. 73. 4» Keller v, State (Tex. Cr. App.) 87 S. W. 6<59, 1 L. E. A. (N. S.) 489. See "Constitutional Law," Dec Dig. (Key No.) §§ 11-21 • Cent Dig. §§ 9-17. § 19) EXTRANEOUS AIDS IN CONSTEUOTIOW 37 several depaitments of the government, or as be.tween the constituent members of the state or nation, may seem to be no longer adapted to the successful realization either of the idedls of the people themselves or the policies or plans of their executive magistrates or their legislative assemblies. From any or all of these causes real hardships may result, to say nothing of hindrances and, obstructions, if the courts persist in interpreting the constitution according to its plain and literal import. But that is their imperative duty. A constitution is not pliable. The people that made it may always revise and amend it. But courts would be flagrantly unfaithful to their high trust if they allowed their views of the meaning of the constitution to fluctuate with changes in popular sentiment, or bend to the wishes of either the executive or the legislative branch of the government. EXTRANEOUS AIDS IN CONSTRUCTION 19. If an ambiguity exists which cannot be cleared up by a consideration of the Constitution itself, then, in order to determine its meaning and purpose, resort may be had to extraneous facts, such as the prior state of the law, the evil to be remedied, the cir- cumstances of contemporary history, or the discus- sions of the constitutional convention. When the text of a constitiitional provision is not ambig- uous, the courts, in construing it, are not at liberty to search for its meaning beyond the instrument itself. If the text is ambiguous, the endeavor must first be made to ar- rive at its meaning from other parts of the same instrument. It is not until the means of solution afforded by the whole constitution have been exhausted without success that the courts are justified in calling outside facts or considerations to their aid. But when this becomes necessary, it is per^ missible to inquire into the prior state of the law, the previ- ous and contemporary history of the people, the circum- stances attending the foundation of the constitution, the evil intended to be remedied or the benefit sought to be se- 38 CONSTRUCTION OF CONSTITUTIONS (Ch. 2 cured by the provision in question, as well as broad consid- erations of expediency. The object herein is to ascertain the reason which induced the framers of the constitution to enact the particular provision and the purpose sought to be accomplished thereby, in order so to construe the whole as to make the words consonant to that reason and calcu- lated to effect that purpose."" "It is regarded as appropri- ate for the courts, and as a matter entitled to their most careful consideration, in giving a construction to the Con- stitution [of the United States] to look back at the situa- tion of the country at the time and antecedent to the time of its adoption, to look at its then existing institutions, at the existence and operation of the then state governments, at the powers and workings of the old Confederation, and at all other circumstances which had a tendency, to produce or obstruct its formation and ratification ; and it is also held that contemporary history and contemporary interpretation may be called in to aid in arriving at just conclusions." °^ Yet it is very necessary to remember that the plain and ob- vious meaning of the constitution is not to be overridden by considerations such as these; nor should the purpose and significance of constitutional provisions be sought alone in the facts of antecedent history. "It will not do to say that an actual, existing, antecedent mischief is essential to support a constitutional limitation or an intent to limit; or that the absence of such an actual mischief excludes an intention to limit. On the other hand, it is safe to say that 50 Maxwell v. Dow, 176 U. S. 581, 20 Sup. Ct 448, 44 L. Ed. 597; State ex rel. Robertson v. McGough, 118 Ala. 159, 24 South. 395; ■State ex rel. Moodie v. Bryan, 50 Fla. 293, 39 South. 929 ; Toncray v. Budge, 14 Idaho, 621, 95 Pac. 26; Halsey v. City of Belle Plaine, 128 Iowa, 467, 104 N. W. 494 ; Thompson v. Kidder, 74 N. H. 89, 65 Atl. 392; Punkhouser v. Spahr, 102 Va. 306, 46 S. E. 378; Smith v. St. taul, M. & M. Ry. Co., 39 Wash. 355, 81 Pac. 840, 70 L. R. A. 1018, 109 Am. St. Rep. 889; Mayor, etc., of Baltimore v. State ex rel. Board of Police of City of Baltimore, 15 Md. 376, 74 Am. Dec. 572; Cronise v. Cronise, 54 Pa. 255; Cooper v. Utah Light & R. Co., 35 Utah, 570, 102 Pac. 202. See "Oonstitutional Law," Dec Dig. (Key No.) § JS; Cent. -Dig. §§ 12, 16. 51 Potter's Dwarris on Statutes, 657, citing Stuart v. Laird 1 Oranch, 309, 2 L. Ed. 115. ' § 19} EXTRANEOUS AIDS IN CONSTRUCTION 39 wherever there is a power liable to be abused, there is to be found a legislative motive for restraint. The multitudinous restraints of all constitutions proceed largely against pos- sible mischiefs. To leave powers unlimited where there is great temptation to abuse is to invite abuse." ^^ In order to arrive at the reason and purpose of the con- stitution, it is also permissible to consult the debates and proceedings of the constitutional convention which framed the constitution. But it must be remembered that these are never of binding force, or of anything more than per- suasive value. They may throw a useful light upon the purpose sought to be accomplished or upon the meaning at- tached to the words employed, or they may not. The courts are at liberty to avail themselves of any light deriv- able from such sources, but are not bound to adopt it as the sole ground of their decision."^ 52 People v.- May, 9 Colo. 80, 10 Pac. 641. See "GonstituUonal Law," Dec. Dig. {Key 7^o.) §§ ll-21; Cent. Dig. §§ 9-J7. 53 See City of Springfield v. Edwards, 84 111. 643 ; Coutant v. People, 11 Wend. (N. Y.) 511; People v. May, 9 Colo. 80, 10 Pac. 641 ; People ex rel. Kennedy v. Gies, 25 Mich. 83 ; Taylor v. Taylor, 10 Minn. 107 (Gil. 81) ; State v. Fountain, 6 Pennewlll (Del.) 520, 69 Atl. 926; Epping v. Columbus, 117 Ga. 263, 43 S. E. 803; Sanl- poli V. Pleasant Valley Coal Co., 31 Utah, 114, 86 Pac. 865; State V. Norman, 16 Utah, 457, 52 Pac. 986. In the case of Common- wealth V. Balph, 111 Pa. 365, 3 Atl. 220, the court said that the de- bates in the constitutional convention "are of value as showing the views of the individual members, and as indicating the reasons for their votes, but they give us no light as to the views of the large majority who did not talk, much less of the mass of our fellow citizens whose votes at the polls gave that instrument the force of fundamental law. We think it safer to construe the constitution from what appears upon its face." On the other hand, in People V. May, 9 Colo. 80, 10 Pac. 641, the court took judicial notice of an address to the people which had been issued by the constitutional convention upon its adjournment, wherein that body called public attention to the changes made by the new constitution, and ex- plained the reasons for them, and their meaning. And this address was allowed to have some weight in inclining the court to a certain construction of one of the clauses of the constitution " therein re- ferred to. See "Constitutional Law," Deo. Dig. (Key No.) § 16j Cent. Dig. §§ 12, 16. 40 CONSTRUCTION OK CONSTITUTIONS '^Ch. 2 CONTEMPORARY AND PRACTICAL CONSTRUC- TION 20. The contemporary construction of the constitution, es- pecially if universally adopted, and also its prac- tical construction, especially if acquiesced in for a long period of time, are valuable aids in determin- ing its meaning and intention in cases of doubt; but these aids must be resorted to with caution and reserve, and they can never be allowed to ab- rogate, contradiot, enlarge, or restrict the plain and obvious meaning of the text."* By contemporary construction is meant the construction put upon the language or meaning of a constitution, at the time of its adoption, or shortly thereafter, by members of the convention which f^ramed it or by other learned men who expressed their opinions in that regard publicly, though not judicially. It is properly resorted to to illus-' trate and confirm the text, to explain a doubtful phrase, or to expound an obscure clause. And the credit to which it ■eiFalrbank v. United States, 181 U. S. 283, 21 Sup. Ct 648, 45 L. Ed. 862 ; McPhee & McGinnlty Co. v. Union Pac. R. Co., 158 Fed. 5, 87 C. 0. A. 619 ; Knight v. Shelton (C. C.) 134 Fed. 423 ; Levin v. United States, 128 Fed. 826, 63 C. C. A. 476; Griffin v. Rhoton, 85 Ark. 89, 107 S. W. 380 ; Board of Railroad Com'rs v. Market St R. Co., 133 Cal. 677, 64 Pac. 1065 ; City Council of City and County of Denver v. Board of Com'rs of Adams County, 33 Colo, 1, 77 Pac. 858; People v. May, 9 Colo. 80, 10 Pac. 641; Cook County v. Healy, 222 111. 310, 78 N. E. 623; City of Terre Haute v. Evansville & T. H. R. Co., 149 Ind. 174, 46 N. E. 77, 37 L. R. A. 189 ; Collins v. Henderson, 11 Bush (Ky.) 74 ; Victoria Lumber Co. v. Rives, 115 La. 996, 40 South. 382; State v. Sheldon, 78 Neb. 552, HI N. W. 372; State ex rel. Polk v. Galusha, 74 Neb. 188, 104 N. W. 197 ; Kenney V. Hudspeth, 59 N. J. Law, 504, 37 Atl. 67; Wallace v. Board of Equalization, 47 Or. 584, 86 Pac. 3G5 ; State ex rel. Barber v. Parler, 52 S. C. 207, 29 S. E. 651 ; State ex rel. Wells v. Tingey, 24 Utah, 225, 67 Pac. 33; State v. Harden, 62 W. Va. 313, 58. S. E. 715; Boca Mill Co. V. Curry, 154 Cal. 326, 97 Pac. 1117 ; People ex rel. Matti- son V. Nye, 9 Cal. App. 148, 98 Pac. 241 ; City of New York v. New York City Ry. Co., 193 N. Y. 543,. 86 N. E. 565. See "OOnatUutional Law," Dec. Dig. {Key No.) §§ 19, 20; Cent. Dig. §§ 14, 15. § 20) CONTEMPOBAHT AND PRACTICAL CONSTRUCTION 41 is entitled is in proportion to the uniformity and universal- ity of that construction, and the known ability and talents of those by whom it was given. But it is to be resorted to with much qualification and reserve. "It can never abro- gate the text; it can never fritter away its obvious' mean- ing ; it can never narrow down its true limitations ; it- can never enlarge its natural boundaries." "Nothing but the text itself was adopted by the people. And it would cer- tainly be a most extravagant doctrine to give to any com- mentary then made, and, a fortiori, to any commentary since made, under a very different- posture of opinion and feeling, ah authority which should operate as an absolute limit upon the text, or should supersede its natural and just interpretation." °° By the practical construction of the constitution is meant the construction put upon it by the legislative body, which is charged with the making of laws in accordance with the constitution, or by the officers of the executive department, whose function is to put into execution the-constitution and the laws. "Where there has been a practical construction, which has been acquiesced in for a considerable period, con- siderations in favor of adhering to this construction some- times present themselves to the courts with a plausibility and force which it is not easy to resist. Indeed, where a particular construction has been generally accepted as cor-r rect, and especially when this has occurred contemporane- ously with the adoption of the constitution, and by thos.fe who had opportunity to understand the intention of the in- strument, it is not to be denied that a strong presumption, exists that the construction rightly interprets the intention. And where this has been given by officers in the discharge of their Official duty, and fights have accrued in reliance upon it, which would be divested by a decision that the con- struction was erroneous, the argument ab inconvenienti is sometimes allowed to have very great weight." "* And sim- 60 1 Story, Const. §§ 406, 407; People v. May, 9 Colo. K), 10 Pac. 641. See "Constitutional Law," Dec. Dig. (Key No.) §§ 19, SO; Cent. Dig. §§ U, 15. osCooley, Const. Lim. 67, citing Stuart v. Laird, 1 Cranch, 299, 2 L. Ed. 115 ; Martin v. Hunter, 1 Wheat. 304, 4 L. Ed. 97 ; Cohens T. 42 CONSTEDCTION OP COlSrSTITUTIONS (Ch. 2 ilar respect will be paid to a long, constant, and uniform practical construction of the constitution by the legislature, more especially in relation to those provisions of it which deal with the legislative rights, powers, amd duties.'' PROVISIONS FROM OTHER CONSTITUTIONS 21. Where a clause or provision in a constitution, which has received a settled judicial construction, is adopted in the same words by the framers of an- other constitution, it will be presumed that the construction thereof was likewise adopted. This rule applies to the case where the constitution of one state copies a clause or provision from the constitution of another state, and also to the case where a new or re- vised constitution retains a clause or provision from the su- perseded constitution. In either such case, the courts will presume that the clause or provision was adopted with a knowledge of its settled judicial construction and with the intention that it should be understood in accordance with that construction.^' And the same principle applies, where it can naturally be applied, to the case of a single term or Virginia, 6 Wheat. 264, 5 L. Ed. 257 ; Banlc of United States v. Hal- stead, 10 Wheat. 51, 6 L. Ed. 264 ; Ogden v. Saunders, 12 Wheat. 290, 6 li. Ed. 606 ; Minor v. Happersett, 21 Wall. 162, 22 L. Ed. 627. And see McPherson v. Blacker, 146 U. S. 1, 13 Sup. Ct 3, 36 L. Ed. 869. See "Constitutional Law," Dec. Dig. {Key No.) §§ 19, SO; Cent. Dig. §§ U, 15. 67 Mayor, etc., of Baltimore v. State ex rel. Board of Police of City of Baltimore, 15 Md. 376, 458, 74 Am. Dec. 572. See "Constitutional Law," Deo. Dig. (Key No.) §§ 19, 20; Cent. Dig. §§ U, 15. 08 Alabama Girls' Industrial School v. Reynolds, 143 Ala. 579, 42 South. 114; Alford v. Hicks, 142 Ala. 355, 3S South. 752; Ex parte Roundtree, 51 Ala. 42; Lace v. People, 43 Colo. 199, 95 Pac. 302; Mclntyre v. State, 170 Ind. 163, 83 N. E. 1005 ; Jenkins v. Ewin,, 8 Heisk. (Tenn.) 456 ; Norfolk & Portsmouth Traction Co. v. Ellington's Adm'r, 108 Va. 245, 61 S. B. 779, 17 L. R. A. (N. S.) 117 ; Norfolk & W. R. Co. V. Cheatwood's Adm'x, 103 Va. 356, 49 S. E. 4St) ; West- ern Union Tel. Co. v. Julian (C. C.) 109 Fed. 166. See "Constitu- tional Law," Deo. Dig. {Key No.) §§ 18, 21; Cent. Dig. §§ IS, 17. § 22) SCHEDULE 43 phrase thus transcribed from one constitution to another. °'° Moreover, "clauses that have been eliminated from a con- stitution by amendment may be referred to in aid of the in- terpretation of others originally associated with them and remaining, in force. And with equal propriety, the differ- ences between the provisions of a new constitution and those of a previous one, and the construction placed upon the latter when in force, may be regarded by the courts in ascertaining the purpose and real meaning of the new pro- visions. Conversely, identity of language in the old and new constitutions may determine the construction of the latter in accordance with the construction placed upon the former." «» SCHEDULE 22. The office of a schedule to a constitution is tempor^y only, and its provisions will be undei;stood as merely transitory, wherever that construction is logically possible. The schedule should not be al- lowed to abrogate or contradict the provisions of the permanent part of the constitution. A schedule is a statement annexed to a constitution, newly adopted by a state, in which are described at length the particulars in which it differs from the former constitu- tion, and which contains provisions for the adjustment of matters affected by the change from the old to the new, constitution. "The schedule of a constitution is a tempo- rary provision for the preparatory machinery necessary to put the principles of the same in motion without disorder or collision. It forms, indeed,, a part of the constitution, so far as its temporary purposes go, and to that extent is of equal authority with the provisions in the body of the in- strument upon the various departments of the state. But its uses are temporary' and auxiliary, and its purpose is not 59 Ex parte Roundtree, 51 Ala. 42; Jenkins v. Ewin, 8 Heisk. (Tenn.) 456; Commissioners of Leavenworth County v. Miller, 7 Kan. 479, 12 Am. Rep. 425 ; Daily v. Swope, 47 Miss. 367. See "Con- stitutional. Law," Dec. Dig. (Key No.) §§ 18, 21; Gent. Dig. §§ 13, J7. 80 Endlich, Interp. S 517. . , 44 CONSTRUCTION OF CONSTITUTIONS (Ch. 2 to control the principles enunciated in the constitution It- self, but to carry the whole into effect without break or in- terval." *^ If the schedule contains a provision on a certain subject, while the body of the constitution makes no ref- erence thereto, it cannot be understood that the clause in the schedule was designed to supply permanently the omis- sion in the constitution. Rather it will be presumed that the omission in the constitution was intentional and not a mere oversight, and that the provision in the schedule was meant to apply only to the state of affairs existing under the old constitution, and only until the same should be ad- justed to the working of the new constitution.** PRINCIPLE OF STARE DECISIS 23. The principle of stare decisis applies with special force to the construction of constitutions, and an inter- pretation once deliberately put upon the provisions of such an instrument should not be departed from without grave reasons. The stability of many of the most important institutions of society depends upon the permanence, as well as the cer- tainty, of the construction placed by the judiciary upon the fundamental law. Hence, when the meaning of the consti- tution upon a doubtful question has been once carefully considered and judicially decided, every reason is in favor of a steady adherence to the authoritative interpretation, and especially is this so when the question is not simply as to the constitutionality of a law, but involves the validity of contracts, the protection of vested interests, the rights of innocent parties, or the permanence of a rule of property.'^ siEndllch. Interp. § 513; Commonwealth v. Clark, 7 Watts & S. (Pa.) 127; State ex rel. Attorney General v. Taylor, 15 Ohio St. 137; State ex rel. Polk v. Galusha, 74 Neb. 188, 104 N. W. 197; Arie V. State, 23 Okl. 166, 100 Pac 23. See "Constitutional Law," Dec. Dig. (Key No.) § Si; Cent. Dig. §§ 21-29. 62 State ex rel. A'ttorney General v. Taylor, 15 Ohio St 137. See "Constitutional Low," Deo. Dig. (Key No.) § 2/,; Cent. Dig. §§ 21-20. es Maddox v. Graham, 2 Mete. (Ky.) 56. See "Courts," Deo Dig (Key No.) §§ 90, 95; Cent. Dig. §§ 317, SS3, SS3. §§ 24r-27) PEINCIPLES OF STATUTORY CONSTRUCTION 45 CHAPTER III GENERAL PRINCIPLES OF STATUTORY CONSTRUCTION 24r-27. Intention of Legislature — Literal Interpretation. 28. Equitable Construction. 29-32. Spirit and Reason of the Law. 33. Scope and Purpose of the Act. 34. Casus Omissus. 85. Implications in Statutes. 36. When Governinent is Bound by Statutes. INTENTION OF LEGISLATURE— LITERAL IN- TERPRETATION 24. The object of all interpretation and construction of stat- utes is to ascertain the meaning and intention of the legislature, to the end that the same may be enforced. 25. This meaning and intention must be sought first of all in the language of the statute itself. For it must be presumed that the means employed by the leg- islature to express its will are adequate to the pur- pose and do express that will correctly, 26. If the language of the statute is plain and free from ambiguity, and expresses a single, definite, and sehsible meaning, that meaning is conclusively presumed to be the meaning which the legisla- ture intended to convey. In other words, the stat- ute must be interpreted literally. Even though the court should be convinced that some other meaning was really intended by the law-making power, and even though the literal interpretation should defeat the very purposes of the enactment, still the explicit declaration of the legislature is the law, and the coiurts must not depart from it. 27. If the language of the statute is ambiguous, or lacks precision, or is fairly susceptible of two or more 46 PRINCIPLES OF STATDTORy CONSTRUCTION (Ch. 3 interpretations, the intended meaning of it must be sought by the aid of all pertinent and admis- sible considerations. But here, as before, the ob- ject of the search is the meaning and intention of the legislature, and the court is not at liberty, merely because it has a choice between two con- structions, to substitute for the will of the legisla- ture its own ideas as to the justice, expediency, or policy of the law. The Cardinal Rule The foregoing paragraphs are intended to express in categorical form the one fundamental and unalterable rule of statutory construction — a rule which at once defines the office of the judiciary and marks the boundary of their le- gitimate authority — that the whole object of all interpreta- tion is to seek out and enforce the actual meaning and inten- tion of the law-making body. We are not to regard the can- ons of construction as a set of arbitrary rules which are to be applied to all statutes indifferently, and which may or may not result in giving to the statute a meaning and effect consonant to the purpose of those who framed it. On the contrary, all these rules are auxiliary and subsid- iary to the cardinal principle of true and legitimate inter- pretation, to be resorted to only in cases of doubt and am- biguity, and all admissible and valuable only in so far as they aid the courts in discerning and making clear the leg- islative intention. The first endeavor must be to ascertain this intention from the language employed in the act ; and if this language is plain and free from obscurity, it must be taken as meaning exactly what it says, whatever may be the consequences. In this case there is neither room nor occasion for applying any rules of construction. But if the, legislature has clothed its will in obscure and doubtful terms, the courts may use any and all proper means of dis- covering the intended sense. But this does not free them from tl?e obligation of giving effect to what the legislature meant to enact, nor permit them, by construction, to frame a statute expressive of their own notions of justice, wis- dom, or expediency. The endeavor must still be to search §§ 24-27) INTENTION OF LEGISLATDBE 47 out the true purpose and intention of the legislature, and that only. This basic rule has sometimes been prescribed by state legislatures in the form of a statute. But it orig- inated with the courts themselves, is universally recog- nized, is constantly stated by them as the basis for their action in matters of this kind, and is supported by the unan- imous voice of the authorities.^ 1 Sunflower Lumber Co. v. Turner Supply Co., 158 Ala. 191, 48 SoTittL. 510, 132 Am. St. Rep. 20; Bartlett v. Morris, 9 Port. (Ala.) 266; St. Louis, I. M. & S. Ey. Co. v. Batesville & W. Tel. Co., 86 Ark. 300, 110 S. W. 1047 ; Dekelt v. People, 44 Colo. 525, 99 Pac. 330 ; Troy Laundry & Mach. Co. v. City of Denver, 11 Colo. App. 3G8, 53 Pac. 256 ; Farrel Foundry t. Dart, 26 Conn. 376 ; Tynan v. Walker, 35 Cal. 634, 95 Am. Dec. 152 ; Ezekiel v. Di.xon, 3 Ga. 146 ; Empire Copper Co. v. Henderson, 15 Idaho, 635, 99 Pac. 127; Idaho Mut. Co-Operative Ins. Co. v. Myer, 10 Idaho, 294, 77 Pac. 628; People v. Willison, 237 111. 584, 86 N. E. 1094; Struthers v. People, 116 111. App. 481; Andel v. People, 106 111. App. 558; Cleveland, C, C. & St L. Ry. Co. V. Baker, 106 111. App. 500; State v. Barrett, 172 Ind. 169, 87 N. B. 7 ; State v. Weller, 171 Ind. 53, 85 N. B. 761 ; Allison V. Hubbell, 17 Ind. 559; Barber Asphalt Pav. Co. v. Edger- ton, 125 Ind. 455, 55 N. B. 436 ; Parvin v. Wimberg, 130 Ind. 561, 30 N. B. 790, 15 L. R. A. 775, 30 Am. St. Rep. 254; State Board of Tax Com'rs v. HoUlday, 150 Ind. 216, 49 N. B. 14, 42 L. R. A. 826; Simington v. State, 5 Ind. 479; Jones v. Leeds, 41 Ind. App. 164, 83 N. E. 526; Noble v. State, 1 G. Greene (Iowa) 325; Howard v. Emmet County, 140 Iowa, 527, 118 N. W. 882; State V. Bancroft, 22 Kan. 170; Grinstead v. Kirby, 110 S. W. 247, 33 Ky. Law Rep. 287; State ex rel. Porman v. City of New Orleans, McGloin (La.) 47 ; Pearce v. Atwood; 13 Mass. 324 ; Doane v. Phil- lips, 12 Pick. (Mass,) 223; People ex rel. Parsons v. Wayne County Circuit Judge, 37 Mich. 287; Albert v. Gibson, 141 Mich. 698, 105 N. W. 19; Koch v. Bridges, 45 Miss. 247; Armstrong v. Modem Brotherhood of Amedca, 132 Mo. App. 171, 112 S. W. 24; Grimes v. Reynolds, 94 Mo. App. 576, 68 S. W. 588; State ex inf. Major ex rel. Sikes v. Williams, 222 Mo. 268, 121 S. W. 64; State ex rel. Baton V. Gmelich, 208 Mo. 152, 106 S. W. 618 ; State ex rel. Walker V. Corkins, 123 Mo. 56, 27 S. W. 363; Bowerman v. Lackawanna Min. Co., 98 Mo. App. 308, 71 S. W. 1062; Little v. 'State, 60 Neb. 749, 84 N. W. 248, 51 L. R. A. 717; State ex rel. Harris v. Hanson, 80 Neb. 738, 117 N. W. 412; Ex parte Pittman, 31 Nev. 43, 99 Pac. 700, 22 L. R. A. (N. S.) 266 ; State ex rel. Board of Water Com'rs of City of Rahway v. Brewster, 42 N. J. Law, 125; Douglass v. Board of Chosen Freeholders of Essex County, 38 N. J. Law, 214; Hyatt V. Taylor, 42 N. Y. 258; Benton v. Wickwire, 54 N. Y. 226; Johnson V. Hudson River R. Co., 49 N. Y. 455; Board of Sup'rs of Niagara 48 PRINCIPLES OF STATDTOET CONSTRUCTION (Ch. 3 Language of Statute as Expressive of Legislative Intent The process of interpreting and applying a statute must begin with the assumption that the purpose and meaning of the legislature are correctly and definitely expressed by the language employed in the act ; and the intention of the law-making body is first of all to be sought in the words of the statute, taking them in their natural and ordinary sense— words of common use in their commonly accepted signification and technical terms in their proper technical sense— and if, as thus read, they convey a clear and definite meaning, there is neither necessity nor justification for re- County V. People, 7 Hill (N. Y.) 504; People ex rel. McNeile v. Glynn, 128 App. Div. 257, 112 N. X. Supp. 695 ; State v. Scarborough, 110 N, C. 232, 14 S. B. 737 ; Mcl^eod v. Board of Com'rs of Town of Carthage, 148 N. O. 77, 61 S. E. 605; Blair v. Coakley, 186 N. C. 405, 48 S. E. 804 ; State v. Barco, 150 N. C. 792, 63 S. E. 673 ; State V. Burr, 16 N. D. 581, 113 N. W. 705 ; Territory ex rel. Sampson v. Clark, 2 Okl. 82, 35 Pac. 882 ; Ruhland v. Waterman, 29 R. I. 365, 71 Atl. 450 ; State v. Stephenson, 2 Bailey (S. C.) 334 ; Fremont, B. & M. V. R. Co. V. Pennington County, 22 S. D. 202, 116 N. W. 75 ; State V. Third Judicial Dist. Court for Salt Lake County (Utah) 104 Pac. 750; State ex rel. Great Northern R. Co. v. Washington Rail- road Commission, 52 Wash. 33, 100 Pac. 184; Tsutakawa v. Kuma- ipoto, 53 Wash. 231, 101 Pac. 869; United States v. Hartwell, 6 Wall. 385, 18 L. Ed. 830; Gardner v. Collins, 2 Pet. 58, 7 L. Ed. 347 ; United States v. Warner, 4 McLean, 463, Fed. Cas. No. 16,643 ; United- States v. Ragsdale, Hempst. 479, Fed. Cas. No. 16,113; Ogden V. Strong, 2 Paine, 584, Fed. Cas. No. 10,460; United States v. Colo- rado & N. W. R. Co., 157 Fed. 321, 85 C. C. A. 27, 15 L. R. A. (N. S.) 167; Stevens v. Nave-McCord Mercantile Co., 150 Fed. 71, 80 C. C. A. 25; King v. Inhabitants of Stoke Damerel, 7 Barn. & C. 563; Inhabitants of Orono v. Bangor Ry. & Electric Co., 105 Me. 429, 74 Atl. 1022 ; Burke v. State, 64 Misc. Rep. 558, 119 N. Y. Supp. 1089 ; City of Birmingham v. Southern Express Co., 164 Ala. 529, 51 South. 159; Rudolph Kleyboltte & Co. v. Black Mountain Timber Co., 151 N. C. 635, 66 S. E. 663; People ex rel. Hunt v. Lane, 196 N. T. 520, 89 N. E. 1108 ; Burton v. Union Pac. Coal Co. (Wye.) 107 Pac. 391; People v. Fornaro, 65 Misc. Rep. 457, 119 N. Y. Supp. 746; Stiers v. Mundy (Ind. App.) 89 N. B. 959; Board of Com'rs of City and County of Denver v. Lunney, 46 Colo. 403, 104 Pac. 945 ; Hicks V. Krigbaum (Ariz.) 108 Pac. 482; People ex rel. ScharfE v. Frost, 198 N. Y. 110, 91 N. B. 376; State v. Myette, 30 R. I. 556, 76 Atl. 664. See "Statutes," Dec Dig. (Key No.) S§ 180-186; Cent. Dig. §§ 259-265. g§ 24-27) INTENTION OP LEGISLATUKB 49 sorting to any extraneous considerations nor for suppos- ing that the legislature may have intended something dif- ferent from what it has thus expressed.^ "It is beyond question the duty of courts, in construing statutes, to give effect to the intent of the law-making power, and to seek for that intent in every legitimate way. But in the construction, both of statutes and contracts, the intent of the framers and parties is to be sought, first of all, in the words employed, and if the words are free from ambiguity and doubt, and express plainly, clearly, and dis- tinctly the sense of the framers of the instrument, there is no occasion to resort to other means of interpretation. It is not allowable to interpret what has no need of interpre- tation, and, when the words have a definite and precise meaning, to go elsewhere in search of conjecture in order to restrict or extend the meaning. Statutes and contracts should be read and understood according to the natural and most obvious import of the language, without resort- ing to subtle and forced construction for the purpose of ei- ther limiting or extending their operation. Courts cannot correct supposed errors, Omissions, or defects in legisla- tion, or vary, by construction, the contracts of parties. The object of interpretation is to bring sense out of the 2 Denn ex dem. Scott v. Reid, 10 Pet. 524, 9 L. Ed. 519 ; Rosen- plaenter v. Roessle, 54 N. Y. 262; People v. Schoonmaker, 63 Barb. (N. Y.) 44 ; Rothschild v. New York Life Ins. Co., 97 111. App. 547 ; State V. Bareo, 150 N. C. 792, 63 S. B. 673; State ex rel. Gray v. Wilder, 206 Mo. 541, 105 S. W. 272; Prindle v. United States, 41 Ct. CI. 8; Ohio Nat. Bank v. Berlin, 26 App. D. C. 218; Common- wealth V. International Harvester Co., 131 Ky. 551, 115 S. W. 703, X3S Am. St. Rep. 256; Barstow v. Smith, Walk. Ch. (Mich.) 394; Bzekiel v. Dixon, 3 Ga. 146 ; Noble v. State, 1 G. Greene (Iowa) 325 ; Sherwood v. Atlantic & D. R. Co., 94 Va. 291, 26 S. E. 943; State V. Montello Salt Co., 34 Utah, 458, 98 Pac. 549 ; State es rel. Town of Garland v. Maughan, 35 Utah, 426, 100 Pac. 934 ; St. Louis, I. M. & S. Ry. Co. V. Waldrop (Ark.) 123 S. W. 778; City of Birming- ham V. Southern Express Co., 164 Ala. 529, 51 South. 159; United States V. Shing Shun & Co. (C. C.) 173 Fed. 844; Brown v. Wil- mington & Brandywine Leather Co. (Del. Ch.) 74 Atl. 1105 ; Wabash R. Co. V. United States, 178 Fed. 5, 101 C. C. A. 133. See "Stat- utes,'.' Dec. Dig. (Key No.) §§ 187-203; Cent. Dig. §§ 266-281. Black Int.L. — i 50 PRINCIPLES OF STATUTORY CONSTRUCTION (Oh. 3 words used, and not to bring a sense into them." ' When an act is expressed in clear and concise terms, and the sense is manifest and leads to nothing absurd, there can be no reason not to adopt the sense which it naturally pre- sents. To go elsewhere in search of conjectures, in order to find a different meaning, is not so much to interpret the statute as to elude it.* "When the words of an act are doubtful and uncertain, it was proper to inquire what was the intent of the legislature; but it is very dangerous for judges to launch out too far in searching into the intent of the legislature when they have expressed themselves in clear and plain words." " So, in Edrich's Cas'e," "the judges said that they ought not to make any construction against the express letter of the statute; for nothing can so ex- press the meaning of the makers of the act as their own di- rect words, for 'index animi sermo.' And it would be dan- gerous to give scope to make a construction in any case against the express words, when the meaning of the mak- ers doth not appear to the contrary, and when no inconven- ience will thereupon follow; and therefore in such cases 'a verbis legis non est recedendum.' " "Although the spirit of an instrument, especially of the Constitution," says the Supreme Court of the United States, "is to be respected not less than its letter, yet the spirit is to be collected chiefly from its words. It would be dangerous in the extreme to 3 McCluskey v. Cromwell, 11 N. Y. 593, 601. See "Statutes," Dec. Dig. (Key No.) §§ Iti-SOS; Cent. Dig. §§ 25J,-2S1. 4 Vattel, Law of Nat, bk. 2. c. 17, § 203 ; Jackson ex dem. Boyd V. Lewis, 17 Johns. (N. Y.) 475; People v. New York Cent. R. Co., 13 N. Y. 78. See, also. Daily v. Robinson, 86 Ind. 382, where it is said that the object of the judicial interpretation of statutes is to ascertain the meaning which the citizen is authorized to consider as intended by the legislature. And see Shulthis v. MacDougal (C. C.) 162 Fed. 331, where the court remarked that it is generally safe to reject an interpretation which does not naturally suggest itself to the mind of a casual reader, but is rather the result of a laborious effort to extract from the statute a meaning which it does not at first seem to convey. See "Statutes," Dec. Dig. {Key No.) §§ 187-203; Cent. Dig. §§ 266-S81. 6 Colehan v. Cooke, VVilles, 393. See "Statutes," Dec. Dig. (Key Jfo.) §§ 180-203; Cent. Dig. §§ 259-281. 8 5 Coke, 118a. §§ 24^27) INTENTION OF LEGISLATURE 51 infer from extrinsic circumstances that a case for which the words of the instrument expressly provided shall be ex- empted from its operation. Where words conflict with each other, where the different clauses of the instrument bear upon each other, and would be inconsistent unless the natural and common import of words be varied, construc- tion becomes necessary, and a departure from the obvious meaning of words is justifiable. But if, in any case, the plain meaning of a provision, not contradicted by any other provision in the same instrument, is to be disregarded, be- cause we believe the framers of the instrument could not intend what they say, it must be one in which the absurdity and injustice of applying the provision to the case would be so monstrous that all mankind would, without hesitation, unite in rejecting the application." ^ Literal Interpretation Where the language of a statute is plain and unambigu- ous, and conveys a definite and sensible meaning, it is the duty of the court to enforce it according to the obvious meaning, of the words employed, without attempting to change it by adopting i. different construction, based upon some supposed policy of the legislature with reference to the subject-matter, or upon considerations of injustice or inconvenience resulting from the literal interpretation of the statute, or even to give the law that efficiency and due effect which it will lack when taken literally as it stands.* 7 Sturges T. Crowlnshieia, 4 Wheat. 122, 202, 4 L. Ed. 529. See "Statutes," Dec. Dig. (Key No.) §§ 180-S03; Cent. Dig. §§ 259-281. 8 Bate Refrigerating Co. v. Sulzberger, 157 U. S. 1, 15 Sup. Cl. 508, 39 Jj. Ed. 601; United States v. Fisher, 2 Cranch, 358, 2 L. Ed. 304 ; Doe ex dem. Poor v. Considlne, 6 Wall. 458, 18 L. Ed. 869 ; United States v. Ninety-Nine Diamonds, 139 Fed. 961, 72 C. C. A. 9, 2 L. R. A. (N. S.) 185 ; Swarts V. Siegel, 117 Fed. 13, 54 C. C. A. 399; Franklin Sugar Refining Co. v. United States (C. C.) 153 Fed. 653; United States v. Colorado & N. W. R. Co., 157 Fed. 321, 85 C. C. A. 27, 15 L. R. A. (N. S.) 167; Union Cent. Life Ins. Co. v. Champlin, 116 Fed. 858, 54 C. C. A. 208; Rodgers v. United States, 36 Ct. Cl. 266; Kiug v. Armstrong, 9 Cal. App. 368, 99 Pac. 527; Litch v. People ex rel. Town of Sterling, 19 Colo. App. 421, 75 Pac. 1079 ; Empire Copper Co. v. Henderson, 15 Idaho, 635, 99 Pac. 127 ; Eastman v. State, 109 Ind. 278, 10 N. E. 97, 58 Am. Rep. 400; 52 PEINCIPLHS OF STATUTORY CONSTRUCTION (Ch. 3 In the case supposed, where the language of the statute is free from ambiguity and conveys a definite and sensible meaning, the courts should not hesitate to give it a literal interpretation merely because they have doubts as to the wisdom or expediency of the enactment. In such a case, these are not pertinent inquiries for the judicial tribunals. If there be any unwisdom in the law, it is for the legisla- ' ture to remedy it. For the courts the only rule is "ita lex scripta est." " Neither have the judges any authority, in Ayers v. Trego County Com'rs, 37 Kan. 240, 15 Pac. 229 ; James v. United States Fidelity & Guarantee Co., 133 Ky. 299, 117 S. W. 406; Commonwealth v. Glover, 132 Ky. 588, 116 S. W. 769; State V. Scheffield, 123 La. 271. 48 South. 932; Walker v. Vicksburg, S. & P. Ry. Co., 110 La. 718, 34 South. 749 ; Davis v. Randall, 97 Me. 36, 53 Atl. 835; Cearfoss v. State, 42 Md. 403; Allen v. Mutual Fire Ins. Co., 2 Md. Ill; Yerger v. State, 91 Miss. 802, 45 'South. 849; Clark V. Kanfeas City, St. L. & C. R. Co., 219 Mo. 524, 118 S. W. 40; Ex parte Rickey, 31 Nev. 82, 100 Pac. 134, 135 Am. St. Rep. 651 ; State v. Woodruff, 68 N. J. Law, 89, 52 Atl. 294 ; Newell Uni- versal Mill Co. V. Muxlow, 115 N. Y. 170, 21 N. B. 1048; People v. Long Island R. Co., 194 N. Y. 130, 87 N. B. 79 ; Slingluff v. Weaver, 66 Ohio St. 621, 64 N. E. 574 ; Woodbury v. Berry, 18 Ohio St. 456 ; Choctaw, O. & G. R. Co. v. Alexander, 7 Okl. 591, 54 Pac. 421; Dutro v. Ladd, 50 Or. 120, 91 Pac. 459; Bradbury v. Wagenhorst, 54 Pa. 180 ; Cowanshannock Poor Dist. v. Armstrong County, 31 Pa. Super. Ct. 386; Atlantic Coast Line R. Co. v. Richardson, 121 Tenn. 448, 117 S. W. 496; Fire Ass'n of Philadelphia v. Love, 101 Tex. 376, 108 S. W. 158; Bradshaw v. Lyles (Tex. Civ. App.) 119 S. W. 918; State v. Second Dist. Court (Utah) 104 Pac. 282; Miles V. Wells, 22 Utah, 55, 61 Pac. 534; State v. Franklin County Sav. Bank & Trust Co., 74 Vt. 246, 52 Atl. 1069; Johnson v. Mann, 77 Va. 265; Postal Tel. Cable Co. v. Norfolk & W. R. Co., 88 Va. 920, 14 S. E. 803; Burdick v. Kimball, 53 Wash. 198, 101 Pac. 845; Green Bay & M. Canal Co. v. Telulah Paper Co., 140 Wis. 417, 122 N. W. 1062; Green v. Wood, 7 Adol. & El. (N. S.) 178; Queen v. Armitage, 51 Law J. M. C. 15; Notley v. Buck, 8 Barn. & G. 160; Coe V. Lawrance, 1 El. & Bl. 516. In construing a statute, the court will not allow judicial interpretation to usurp the place of legislative enactment. State ex rel. Hughes v. Reusswig, 110 Minn. 473, 126 N. W. 279. See •'Statutes," Dec. Dig. (Key No.) § 189; Cent. Dig. § Z68. » State ex rel. McLean v. Liedtke, 9 Neb. 468, 4 N. W. 61 ; Horton v. Mobile School Com'rs, 43 Ala. 598. Compare Opinion of the Jus- tices, 7 Mass. 523. See "Statutes," Dec. Dig. (Key No.) § 189: Cent Dig. § 268. §§ 24r-27) INTENTION OP LEGISLATURE 53 such a case, to put upon the statute a construction different from its natural and obvious meaning in consideration of the consequences which may result from it. Any evil con- sequences to the public which may flow from the statute may be considered when its meaning is doubtful, in order to give it a more beneficial construction, but when the leg- islative intent is clearly expressed, such consequences can- not be at all considered.^" And it has been said: "If the precise words used are plain and unambiguous, we are bound to construe them in their ordinary sense, even though it does lead to an absurdity or manifest injustice. Words may be modified or varied where their import is doubtful or obscure, but we assume the functions of iegis^ lators when we depart from the ordinary meaning of the precise words used, merely because we see, or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning." ^^ Even if the court is fully persuaded that the legislature really meant and intended something entirely different from what it actually enacted, and that the failure to convey the real meaning was due to inadvertence or mistake in the use of language, yet, if the words chosen by the legisla- ture are not obscure or ambiguous, but convey a precise and sensible meaning (excluding the case of obvious cleri- cal errors or elliptical forms of expression), then the court must take the law as it finds it, and give it its literal inter- pretation, without being influenced by the probable legis- lative meaning lying back of the words. In that event, the presumption that the legislature meant what it said, though it be contrary to the evident fact, is conclusive.^^ 10 Hines v. Wilmington & W. R. Co., 95 N. C. 434, 59 Am. Rep. 250; Coffin v. Rich, 45 Me. 507, 71 Am. Dec. 559; Bosley v. Mat- tingly, 14 B. Mon. (Ky.) 89 ; Curry v. Lehman, 55 Fla. 847, 47 South. 18; Tierney v. Ledden, 143 Iowa, 286, 121 N. W. 1050. See "Stat- utes," Dec. Dig. (Key No.) § 181; Cent. Dig. §§ 239, 263. 11 Abley V. Dale, 11 C. B. 378, 391. See "Statutes," Deo. Dig. {Key No.) § 189; Cent. Dig. § 268. 12 Smith V. State, 66 Md. 125, 7 Atl. 49 ; Maxwell v. State, 89 Ala. 150, 7 South. 824; St. Louis & I. M. R. Co. v. Clark, 53 Mo. 214; Maxwell v. State ex rel. Baldwin, 40 Md. 273. And see Diederich 54 PRINCIPLES OF STATUTORY CONSTRUCTION (Ch. 3 A good illustration of this rule is found in the case of "V\"oodbury v. Berry." It appeared that a section of the code of Ohio provided that when a motion was made to amerce a sheriff or other officer for neglect of duty, he should have two days' written notice thereof. A subse- quent section, which was copied from an earlier statute, provided that "in all cases of a motion to amerce a sheriff or other officer of any county from which the execution is- sued," he should have a much longer notice. The court said: "It certainly is difficult, if not impossible, to find any reason why an officer sought to be amerced by motion in the court of his own county should be thus favored in the matter of notice, while, on the other hand, the circum- stances of the case to be provided for seem to require that the nonresident officer ought to be thus favored. These considerations, and a comparison of the provisions of these sections of the statute, as they stand, with those of the statute which was superseded and repealed by the Code of Civil Procedure, not only suggest the conjecture, but con- vince us of the fact, that the words 'other than the county,' or some equivalent phrase, must have been, by accident or oversight of the draftsman of the bill to establish a Code of Civil Procedure, or of the clerk who engrossed it, omitted before the words 'from which the execution issued' in sec- tion 455. But notwithstainding all this, ita lex scripta est. The language as it stands is clear, explicit, and unequivo- cal. It leaves no room for interpretation, for nothing in the language employed is doubtful. We are satisfied, by considerations outside the language, that the legislature intended to enact something very different from what it did enact. But it did not carry out its intention, and we cannot take the will for the deed. It is our legitimate func- tion to interpret legislation, but not to supply its omis- sions." V. Rose, 228 111. 610, 81 N. E. 1140. See "Statutes," Dec. Dig. (Key No.) §§ ISO-203; Cent. Dig. §§ 259-281. >3 18 Ohio St. 456. See "Stat^fci." Dec. Dig. (Key No.) SS 189 203; Cent. Dig. §§ 268, 281. §§ 24r-27) INTENTION OF LEGISLATDRB 55 On the same principle, the literal interpretation cannot be refused, where there is no ambiguity or want of sense, even though the result should be to defeat the very .object and purpose of the enactment. Lord Tenterden once said : "Our decision may perhaps, in this particular case, operate to defeat the object of the statute; but it is better to abide by this consequence than to put upon it a construction not warranted by the words of the act, in order to give effect to what we may suppose to hiave been the intention of the legislature." ^* And though the literal interpretation should permit evasions of the statute, yet, if there is no am- biguity in the law, this consideration cannot be allowed to niodify the construction to be put upon it. For example, in an English case,^° it appeared that a bill of sale had been given by one Price to the plaintiff, but, instead of its be- ing registered before the expiration of the twenty-one days allowed for that purpose by the statute of 17 & 18 Vict. c. 36, another bill of sale was given by Price to the plaintiff in exchange for the first. This was done many successive times, and ultimately the bill of sale last given was regis- tered before the expiration of twenty-one days from the day on which that bill (the last) had been given. Defend- ant took Price's goods in execution, and plaintiff brought suit. In defense, it was charged that the transactions and course of dealing between Price and the, plaintiff were fraudulent. This was unquestionably true. Yet the court was constrained to hold that the plain terms of the law had been literally complied with, and the bill of sale must be held valid. Although the spirit and purpose of the act had thus been successfully evaded, yet its language being free from ambiguity, it could not be construed to cover the case in hand. Language of Statute Ambiguous But if the statute is ambiguous, so as to be fairly suscep- tible of more than one interpretation, then the courts maiy 14 King V. Inhabitants of Barham, 8 Barn. & C. 99. And see Frye v. Chicago, B. & Q. R. Go', 73 111. 399. See "Statutes," Dec. Dig. (Key No.) §§ 180-203; Cent. Dig. §§ 259-281. 15 Smale t. Burr, L. R. 8 C. P. 64. See "Statutes," Deo. Dig. (Key No.) § 189; Cent. Dig. § 288. 56 PRINCIPLES OF STATUTOEX CONSTRUCTION (Ch. 3 rightfully exercise the power of controlling its language, so as to give effect to the intention of the legislature, as the same shall be ascertained and determined from perti- nent and admissible considerations.^" But it is necessary to remember that the intention of the law-making power is to be ascertained by a reasonable construction to be given to the provisions of the act, and not one founded on mere arbitrary conjecture.^^ And it is always the actual meaning of the legislature which must be sought out and followed, and not the judge's own ideas as to what the law should be. "It must be borne in mind that it is not com- petent to a judge to modify the language of an act of par- liament in order to bring it into accordance with his own views as to what is right or reasonable."** Finally, al- though every law must be construed according to the in- tention of the makers, that intention is never resorted to for any other purpose than to ascertain what they in fact intended to do, and not for the purpose of ascertaining what they have done; that is, the object is to ascertain what the legislature intended to enact, but not to ascer- tain what is the legal consequence and effect of what they did enact.*' 18 Koch V. Bridges, 45 Miss. 247; Bidwell v. Whitaker, 1 Mich. 469 ; State ex rel. Missouri Mut. Life Ins. Co. v. King, 44 Mo. 283 ; George v. Board of Education, 33 Ga. 344; People v. Schoonmaker, 63 Barb. (N. X.) 44 ; Nohle v. State, 1 G. Greene (Iowa) 325 ; Ogden V. Strong, 2 Paine, 584, Fed. Gas. No. 10,460; Darlington Liumber Co. V. Missouri Pac. Ry. Co., 216 Mo. 65S, 116 S. W. 530; State ex rel. Minneapolis, St. P. & S. S. M. R. Co. v. Railroad Commission, 137 Wis. 80, 117 N. W. 846. See "Statutes," Deo. Dig. {Key No.) § 190; Cent. Dig. §§ 266, S69. 17 Cearfoss v. State, 42 Md. 403. See " Statutes," Dec. Dig. (Key No.) § 190; Cent. Dig. §§ 266, 269. 18 Hardcastle, Stat. Law, 31. 18 Leavitt v. Blatchford, 5 Barb. (N. Y.) 9. See "Statutes," Dec. Dig. {Key No.) §§ 180-186; Cent. Dig. §§ 259-265. S 28) EQUITABLE CONSTRUCTION 57 EQUITABLE CONSTRUCTION 28. Equitable construction was a principle by which the judges, disregarding the letter of a statute, ex- tended its provisions to cases which, in their judg- ment, were within the same mischief which the law was designed to remedy, though they were not expressly provided for, or by which, on con- siderations of justice and right reason, they ex- cepted from the operation of the statute cases which were covered by its terms, but which, in their opinion, were not fairly to be included in it. The power to make such constructions is now dis- avowed by the courts- It must not be supposed that "equitable construction" was a method or principle applied by the court of chancery, as distinguished from the courts of law. On the contrary, the idea of it was familiar long before the Hse of the ex- traordinary jurisdiction of the chancellor, and in later times it was in use in the law courts no less than in that of equity. It was based on the historical and fundamental conception of equity. According to this conception, there was a power, existing side by side with the law, yfet not in dero- gation of it, based upon reason, and drawing its inspiration and its guidance from the principles of natural justice, the common sense of fairness, and the dictates of conscience, which power could be appealed to for relief, in particular and Individual cases, when it was necessary, in accordance with those principles and precepts, to modify the rigor of the law to suit the case in hand, or to apply its rules to cases which it had not provided for, or to avert the hard- ship and injustice which the generality of its application would work in the specific instance. This power was called "equity" by the Roman lawye'rs, and both the name and the idea were adopted in the English jurisprudence. Hence the so-called equitable construction was nothing but 58 PEINCIPLBS OF STATUTORY CONSTRUCTION (Ch. 3 the principle of putting such a construction upon the writ- ten law as "equity," in this sense, would commend.'"' Equitable construction was principally of two sorts, ex- pansive and contractive. The former is thus described by Lord Coke : "Equity is a construction made by the judges that cases out of the letter of the statute, yet being within the same mischief, or cause of the making of the same, shall be within the same remedy that the statute provid- eth ; and the reason thereof is, for that the lawmakers could not possibly set down all cases in express terms." ^^ And conversely, in reference to cases which the judges thought should be excepted out of the statute, though cov- ered by its express terms, because they were not within the mischief which it was intended to remedy, it was said that the law might be construed "contrary to the words," or "contrary to the text." The extent to which this equi- table power of the courts was claimed to prevail over the words of the law is shown by the broad statement, made chiefly in reference to the construction of the more ancient statutes, which laid down general rules in the fewest words, that "judges have power over statute laws, to mould them to the truest and best use, according to reason and best convenience," which, of course, would be nothing less than a direct usurpation by the courts of the powers as well as the discretion of the legislature."" In the cele- brated case of the Postnati of Scotland,"' Lord Ellesmere 2» See Hammond's note to Lieber, Hermeneutics, 283; 1 Bl. Comm. 61 ; Maine, Ancient Law, 27. 21 1 Co. Inst. 24b. 2 2 Sheffield v. Ratellffe, Hob. 346. "The Idea that the judges, in administering the written law, can mould it and warp it according to their nations, not of what the legislator said, nor even of what he meant, but of what, in their judgment, he ought to. have meant — in other words, according to their own ideas of policy, wisdom, or expediency — is so obviously untenable that It is quite apparent that it never could have taken rise except at a time when the division lines between the great powers of government were but feebly drawn, and their importance very imperfectly understood." Sedg- wick, Stat. Constr. 265. iSee "Statutes," Dec. Dig. {Key No.) § 1S2; Cent. Dig. § S60. 2 3 Calvin's Case, 2 How. St. Tr. 559, 675. See "Statutes," Dec. Dig. {Key No.) § 182; Cent. Dig. § 260. § 28) EQUITABLE CONSTRUCTION 59 laid down the following rule : "Words are to be taken and construed sometimes by extension; sometimes by restric- tion; sometimes by implication; sometimes a disjunctive for a copulative, or a copulative for a disjunctive ; the pres- ent tense for the future, or the future for the present; sometimes, by equity, out of the reach of the words ; some- times words taken in a contrary sense; sometimes figur- atively, and many other like constructions. And of all these examples be indefinite, as well in the civil as common law." Upon this it has been remarked: "Any one that reads this will easily judge what the scope and conse- quences of the chancellor's rule may be. And he may as easily discern how far it is capable of being improved, to baffle and elude any law whatsoever, and wrest it from its genuine and native sense to what you please." "* The origin and reasons of this extraordinary claim of power have been variously explained. "Equitable con- struction was said to have been given to ancient statutes in consequence of the conciseness with which they were drawn, though the specific expressions used can hardly be considered more concise than the more abstract terms for which they were, possibly, substituted. It has been ex- plained, also, on the ground that language was used with no great precision in early times, and that acts were framed in harmony with the lax method of interpretation contempo- raneously prevalent. It has also been accounted for by the fact that in those times the dividing line between the legis- lative and judicial functions was feebly drawn, and the im- portance of the separation imperfectly understood. The ancient practice of having the statutes drawn by the judges from the petitions of the commons and the answers of the king may also contribute to account for the wide latitude of their interpretation. The judges would naturally be dis- posed to construe the language in which they framed them as their own, and therefore with freedom and indul- gence." " 24 Potter's Dwarris on Stat. 237. 25 Maxwell, Interp. (2d Ed.) 310. 60 PRINCIPLES OP STATUTORY CONSTRUCTION (Ch. 3 The difiference between the two kinds of equitable con- struction, as well as the application of them to specific cases, are learnedly explained by Plowden, in a note to Ey- ston V. Studd, 2 Plowd. 465. This ancient writer observes T "From this judgment and the cause of it the reader may observe that it is not the words of the law, but the inter- nal sense of it, that makes the law, and bur law, like all others, consists of two parts, viz., of body and soul; the letter of the law is the body of the law, and the sense and reason of the law are the soul of the layv. * * * And it often happens that when you know the letter you know not the sense; for sometimes the sense is more confined and contracted than the letter, and sometimes it is more large and extensive. And equity enlarges or diminishes the letter according to its discretion, which equity is in two ways. The one Aristotle defines thus: 'Equity is the cor- rection of the law in those particulars wherein, by reason of its generality, it is deficient.' * * * And this correc- tion of the general words is much used in the law of Eng- land. As when an act of Parliament ordains that whoso- ever does such an act shall be a felon and shall suffer death, yet if a man. of unsound mind, or an infant of tender age who has no discretion, does the act, they shall not be felons, nor shall they be put to death. And if a statute be made that all persons who shall receive or give meat or drink or other aid to him that shall do such an act (knowing the same to be done) shall be accessaries to the offense and shall be put to death, yet, if a man commits the act, and comes to his own wife, who, knowing the same, receives him and gives him meat and drink,. she shall not be acces- sary to his offense, nor a felon. For one that is of unsound mind, an infant, or a wife, were not intended to be included in the general words of the law. So that, in those cases, the general words of the law are corrected and abridged by equity. * * * The other kind of equity differs much from the former, and is in a manner of quite a contrary ef- fect, and may well be thus defined: Equity is giving a more efficacious direction to the words of the law; as if one thing is specifically provided for by the words 'of the law, then every other thing belonging to the same category § 28) EQUITABLE CONSTRUCTION 61 is to be taken as provided for by the, same words. So that when the words of a statute enact one thing, they enact all other things which are in the like degree. As, the statute which ordains that in an action of debt against executors, he who comes first by distress shall answer, is extended by equity to administrators, and such of them as come first by distress shall answer by the equity of the said statute, * * * And so there are an infinite number of cases in our law which are in equal degree with others provided for by statutes, and are taken by equity within the meaning of those statutes. And from hence it appears that there is a great diversity between these two equities, for the one abridges the letter, the other enlarges it ; the one diminishes it, the other amplifies it; the one takes from the letter, the other adds to it. So that a man ought not to rest upon the leUer only,, for 'qui hseret in litera hseret in cortice;' but he ought to rely upon the sense, which is tempered and guided by equity." The contractive species of equitable construction has been sufficiently explained in the extract given above, but as to the other variety it is proper to add a few words. It was a maxim laid down by Lord Coke that "statutum gen- eraliter est intelligendum quando verba statuti sunt spe- cialia, ratio autem generalis;" '* And "it is not unusual in acts of Parliament, especially in the more ancient ones, to comprehend by construction a generality where express mention is made only of a particular; the particular in- stances being taken only as examples of all that want re- dress in the kind whereof the mention is made." " In such cases, that which lies outside the letter of the law is said to be within the "equity of the statute." This phrase de- notes the construction which admits within the operation of the statute a class of cases which are neither expressly named nor excluded, but which, from their analogy to the cases which are named, are clearly and justly withii^ the Spirit and general meaning of the law. For example, the 28 10 Coke, 101b. 27 Piatt's Case, Plowd. 36. See "Statutes," Dec. Dig. (Key No.) § 18B; Cent. Dig. § 2G0. 62 PEINCIPLES OP STATUTOBY CONSTRUCTION (Ch. 3 Statute, or writ, called "Circumspecte Agatis," in the 13th year of Edward I, was designed to regulate the boundaries between the ecclesiastical and the temporal jurisdiction. It directed the judges not to interfere with the Bishop of Norwich or his clergy in suits in the spiritual courts ; but it was so construed as to protect all other prelates in the exercise of their proper jurisdiction, for it was held that the Bishop of Norwich was merely put for an example. So again, uses were not strictly within the statute "De Don- is," but they were "taken within the equity," and in Chud- leigh's Case,^^ Coke furnishes numerous instances of acts made "against the fraud of uses" having been construed liberally and by equity beyond the letter. And so, in an American case, where a statute gave to a judgment credi- tor, who had taken his debtor on a ca. sa., and then re- leased him, the right to proceed against him "by a new ex- ecution or such other process as the nature of the case may require," it was held that, "within the equity of the stat- ute," he might pursue him into another state, to which he had departed, and there maintain an action of debt on the judgment.^* There were, however, always limitations upon this principle. Thus, "if the words of a statute do not reach to an inconvenience rarely happening, they shall not be extended to it by an equitable construction ; for the objects of statutes are mischiefs 'quae frequentius accidunt.' It is good reason in such case, and therefore sound con- struction, not to strain the words further than they reach, but the case is to be considered as a caSus omissus." *" The right to apply an equitable construction to the writ- ten, laws was often adverted to as one to be exercised with caution, on account of the dangef of turning the courts into legislatures, and in modern times it has been disavowed by them, and its principle distinctly repudiated.*^ It is 28 1 Coke, 131. 2 8 Simouton v. Barrell, 21 Wend. (N. Y.) 362. See "Statutes," Dee. Dig. {Key No.) § 182; Cent. Dig. § 260. 3« Potter's Dwarris on Stat. 240. SI In Brandling v. Harrington, 6 Barn. & C. 467, 475, Lord Ten- terden observed : "I think there is always danger in giving effect to vi'hat is called the equity of a statute, and that it is much better § 28) EQUITABL-E CONSTRUCTION 63 said that the rules for the interpretation of statutes are now the same in courts of equity as in courts of law,*^ and that the dangerous and misleading ancient rule has given way to the more conservative maxim that equity follows the law. And in point of fact, so far as the principle of equitable construction involved the claim of an authority to correct the enacted law, or to mould it to the judge's notions of justice and propriety, or to disregard its positive mandates on any considerations of hardship or inconven- ience, it was originally an usurpation and finds no place in modern law. In one of the American cases we find it very clearly stated that the view that the courts may, against the plain language of a statute and in opposition to the in- tent clearly expressed by the words, mitigate the "violence of the letter" by introducing exceptions where- the statute itself makes none, so as to relieve in cases of hardship or particular inconvenience, is not now of force.^^ And in to rely on and abide by the plain words, although the legislature might possibly have provided for other cases had their attention been directed to them." And in Guthrie v. Fisk, 3 Barn. & C. 178, 183, it was said: "It is a dangerous rule of construction to in- troduce words not expressed because they may be supposed to be within the mischief contemplated." So, in Inhabitants of Monson V. Inhabitants of Chester, 22 Pick. (Mass.) 385 : "Equitable construc- tions, though they may be tolerated in remedial and perhaps some other statutes, should always be resorted to with great caution, and never extended to penal statutes or mere arbitrary regulations of matters of public policy. The power of extending the meaning of a statute beyond its words, and deciding by the equity and not the language, approaches so near the power of legislation that a wise judiciary will exercise it with reluctance and only in extraordinary cases." And see Melody v. Reab, 4 Mass. 471; State v. Woodside, 112 Mo. App. 451, 87 S. W. 8. Bee "Statutes," Deo. Dig. (Key No.) § 182; Cent. Dig. § Z60. 32 Talbot's Lessee v. Simpson, Pet. C. C. 188, Fed. Gas. No. 13,730; Ex parte Walton, L. E. 17 Gh. Div. 746. See "Statutes," Dec. Dig. (Key No.) § 182; Gent. Dig. § S60. 33Encking v. Simmons, 28 Wis. 272. In this case it was said: "When, therefore, the statute says that every mortgage containing a power of sale may be foreclosed by advertisement, and makes no exception of a mortgage upon lands belonging to an insane person, such mortgage cannot be excluded from the operation of the stat- ute, because that would be repugnant to the intent as clearly ex- pressed by the words. The words cannot be taken to a repugnant 64 PEINCIPLKS OF STATUTORY CONSTEUCTION (Oh. 3 another case, it is declared that a court has no authorit)!- to extend a law beyond the fair and reasonable meaning of its terms because of some supposed policy of the law, or because the legislature did not use proper words to ex- intent. In such case, the language of the statute being general, and the particular mortgage not being excepted, the established rule of interpretation is that general words must receive a general con- struction." In Riggs V. Palmer, 115 N. Y. 506, 22 N. E. 188, 5 L. R. A. 340, 12 Am. St. Rep. 819, the doctrine of "rational interpreU- tion" was applied, oh an extraordinary state of facts, to the stat- utes relating to devolution of property by will. The residuary de- visee named in a will having murdered the testator, who was his grandfather, to prevent revocation of the will and to obtain imme- diate enjoyment of the property, the provisions of the will were declared inefCective to pass title to the murderer, although the stat- utes, literally construed, would have given him the property. In the opinion of the majority of the court (two justices dissenting), it was said: "It was the intention of the law-makers that the donees in a will should have the property given to them. But it never could have been their intention that a donee who murdered the testator to make the will operative should have any benefit under it If such a case had been present to their minds, and it had been supposed necessary to make some provision of law to meet it, it cannot be doubted that they would have provided for it. It is a familiar canon of construction that a thing which is within the Intention of the makers of a statute is as much within the statute as if it were within the letter; and a thing which is within the letter of the statute is not within the statute unless it be within the inten- tion of the makers. The writers of laws do not always express their intention perfectly, but either exceed it or fall short of it, so that judges are to collect it from probable or rational conjectures only, and this is called 'rational interpretation.'" So, in Shellenberger v. Ransom, 31 Neb. 61, 47 N. W. 700, 10 L. R. A. 810, 28 Am. St. Rep. 500; Id., 4,1 Neb. 631, 59 N. W. 935, 25 L. R. A. 564, a similar question was presented as to the operation of the statutes of de- scent on the estate of an infant daughter, dying intestate and with- out issue, who had been murdered by her father that he might ob- tain the title to and possession of her property. The court, on the first hearing, quoting and following the opinion in Riggs v. Palmer, held that the father took no estate from the daughter; but, on a rehearing, decided that the murder was not ground for an excep- tion to the statutory rules of inheritance. In the latter opinion, it was said: "In our statute of descent there is neither ambiguity nor room for construction. The intention of the Legislature is free from doubt. The question is not what the framers of our statute of descent would have done, had It been in their minds that a case § 28) EQUITABLE CONSTRTTCTIOW 65 press its meaning.** But nevertheless, many of the cases which were decided on what was called the "equity of- the statute" would now be decided in precisely the same way, though not avowedly on that principle.^ ° This is. because there was a just and reasonable idea at the base of the prin- ciple in question, and this, so far as it is applicable to mod- ern conditions, has survived. This idea was that a given case should not be taken to be within a statute, though ap- parently covered by its comprehensive terms, unless it is within the spirit and reason of the law. In the next sec- tion we shall show the application of this rule in modern practice. Moreover, the courts now claim (and the claim is well recognized) that it is their duty to construe a stat- ute "strictly" when it imposes a burden or penalty or dero- gates from common right, and "liberally" when it grants a like this would arise, but -what in fact 'they did, without perhaps anticipating the possibility of its existence. This Is determined, not by hypothetical resort to conjecture as to their meaning, but by a construction of the language used. The majority opinion in Riggs v. Palmer, as well as the opinion already filed in this case, seems to have been prompted largely by the horror and repulsion with which it may justly be supposed the framers of our statute would have viewed the crime and its consequences. This is no justification to this court for assuming to supply legislation, the necessity for which has been suggested by subsequent events, but which did not occur to the minds of those legislators by whom our statute of descent was framed." See "Statutes," Dec. Dig. (Key No.) §§ 180-203; Cent. Dig. §§ Z59-281. 3* Tompkins v. First Nat. Bank of Penn Yan (Sup.) 18 N. T. Supp. 234. See "Statutes," Dec. Dig. (Key No.) § 1S2; Cent. Dig. § 260. 3 5 See Perry v. Strawbrldge, 209 Mo. 621, 108 S. W. 641, 46 h. R. A. (N. S.) 244, 123 Am. St. Rep. 510; State v. Baltimore & O. R. Co., 61 W. Va. 367, 56 S. E. 518. In Smiley v. Sampson, 1 Neb. 56, 91, it was observed that "a true equitable construction consists in showing, by principles Of natural good sense, that a particular case is not comprehended in the meaning of a law because, if it were so comprehended, some absurdity would naturally follow." And see State V. Comptoir National lyEscompte de Paris, 51 La. Ann. 1272, 26 South. 91, where we read that the construction which equity would favor may be adopted by a court of law in construing a statute, if two constructions are fairly possible. See "Statutes," Deo. Dig. (Key No.) § 182; Cent. Dig. § 260. Black Int.L. — 5 - 66 PKINCIPLES OF STATUTORY CONSTRUCTION (Oh. 3 remedy or confers an advantage. This will appear more fully in a later chapter. SPIRIT AND REASON OF THE LAW 29. When the interpretation of a statute according to the exact and literal import of its words would lead to absurd or mischievous consequences, or would thwart or contravene the manifest purpose of the legislature in its enactment, it should be construed according to its spirit and reason, disregarding or modifying, so far as may be necessary, the strict letter of the law.'° 30. In accordance with this principle, the courts have power to declare that a case which falls within the letter of a statute is not governed by the statute, because it is not within the spirit and reason of the law and the plain intention of the legislature. »« United States v. Hogg, 112 Fed. 909, 50 O. 0. A. 608; In re Matthews (D. C.) 109 Fed. 603 ; Clare v. State, 68 Ind. 17 ; Ross v. State, 9 Ind. App. 35, 36 N. E. 167; Sexton v. Sexton, 129 Iowa, 487, 105 N. W. 314, 2 L. R. A. (N. S.) 708 ; Old Dominion Building & Loan Ass'n v. Sohn, 54 W. Va. 101, 46 S. B. 222; State v. Chi- cago & N. W. R. Co., 128 Wis. 449, 108 N. W. 594; Gilbert v. Mor- gan, 98 111. App. 281; Commonwealth v. Reynolds, 89 Ky. 147, 12 S. W. 132; Carrigan v. Stillwell, 99 Me. 434, 59 Atl. 683, 68 L. R. A. 386; Winters v. City of Duluth, 82 Minn. 127, 84 N. W. 788; State ex inf. Folk v. Talty, 166 Mo. 529, 66 S. W. 361; Parker v. Nothomb, 65 Neb. 308, 93 N. W. 851, 60 L. R. A. 699 ; State ex rel. Douglas County v. Drexel, 75 Neb. 614, 106 N. W. 791 ; Edwards v. Morton, 92 Tex. 152, 46 S. W. 792; Chalmers v. Funk, 76 Va. 717; Orange & A. R, Co. v. City Council of Alexandria, 17 Grat. (Va.) 176; Wisconsin Industrial School for Girls v. Clark County, 103 Wis. 651, 79 N. W. 422 ; Brookings County v. Murphy, 23 S. D. 311, 121 N. W. 793 ; State v. People's Nat. Bank, 75 N. H. 27, 70 Atl. 542 ; Davis & Go. v. Thomas, 154 Ala. 279, 45 South. 897 ; Curry v. Leh- man, 55 Fla. 847, 47 South. 18; Roberts v. State, 4 Ga. App. 207, 60 S. B. 1082; Stambaugh Tp. v. Treasurer of Iron County, 153 Mich. 104, 116 N. W. 569; Postal Telegraph Cable Co. v. Norfolk & W. R. Co., 88 Va. 920, 14 S. E. 803. See "Statutes," Dec. Dig. {Key No.) § 18S; Cent. Dig. § 261. §§ 29-32) SPIRIT AND EEASON OF THE LAW 67 31. Conversely, statutes may be extended to cases not within the literal import of their terms, if plainly meant to be included; for that which is within the intention of the legislature, in the framing of a statute, is as much within the statute as if it were within its letter.''' 32. But where the statute is free from ambiguity and plainly shows what the legislature meant, the let- ter of it is not to be disregarded under the pretext of pursuing its spirit, and exceptions not made by the legislature cannat be read into it.*' These rules affirm and apply the principle that the inten- tion of the legislature in enacting a law is the law itself, and that the intention, when plainly manifest on the face of the statute, or when clearly ascertained, must be enforced, although it may not be consistent with the exact and lit- eral import of the language employed. For the letter of a statute should not be slavishly ■ followed when it leads away from the true intention and purpose of the legisla- ture or leads to conclusions inconsistent with the general purpose of the act or to consequences irreconcilable with its spirit and reason." Thfese principles were very clearly and positively laid down by the Supreme Court of the United States in an im- portant case which involved a construction of the so-called 37 Plaster v. Kigney, 97 Fed. 12, 38 C. C. A. 25 ; In re Board of Rapid Transit R. Com'rs, 128 App. Dlv. 103, 112 N. Y. Supp. 619; State ex rel. Hammer v. Wiggins Ferry Co., 208 Mo. 622, 106 S. W. 1005; Brown v. Gates, 15 W. Va. 131; Riddick v. Walsh, 15 Mo. 519; Brown v. Pendergast, 7 Allen (Mass.) 427; Whitney v. Whit- ney, 14 Mass. 88; Kirk v. Morley Bros. (Tex. Civ. App.) 127 S. W. 1109; Cummins v. Pence (Ind.) 91 N. E. 529; Hasson v. City of Chester (W. Va.) 67 S. B. 731. See "Statutes," Dec. Dig. (Key No.) § 183; Cent. Dig. S S61. 3s Gooden v. Police Jury of Lincoln Parish, 122 La. 755, 48 South. 196 ; Siren v. State, 78 Neb. 778, 111 N. W. 798. See "Statutes," Dee. Dig. {Key No.) § 183; Cent. Dig. § 261. s» In re Cahn, 27 App. D. C. 173 ; Mendles v. Danish, 74 N. J. Law, 333, 65 Atl. 888; Clare v. State, 68 Ind. 17. See "Statutes," Dec Dig. (Key No.) § 183; Cent. Dig. i 861. 68 PRINCIPLES OF STATUTORY CONSTRUCTION (Ch. 3 "Alien Contract. Labor Law." This act of Congress pro- hibits the importation into this country pf "any" foreigners under contract to perform "labor or service of any kind." The question, arose as to its applicability to a clergyman who came to this country under contract to enter the serv- ice of a church as its rector. The court conceded that the case came within the letter of the law, but because it was not within the spirit and intent of the law, it was held that the act had no application to the case at bar. "It is a fa- miliar rule," said the court, "that a thing may be within the letter of the statute, and yet not within the statute, because not within its spirit nor within the intention of its mak- ers. This has been often asserted, and the reports are full of cases illustrating its application. This is not the substi- tution of the will of the judge for that of the legislator; for frequently words of general meaning are used in a stat- ute, words broad enough to include the act in question, and yet a consideration of the whole legislation, or of the cir- cumstances surrounding its enactment, or of the absurd re- sults which follow from giving such broad meaning to the words, makes it unreasonable to believe that the legislator intended to include the particular act." And speaking to the case at bar: "The construction invoked cannot be ac- cepted as correct. It is a case where there was presented a definite evil, in view of which the legislature used gen- eral terms with the purpose of reaching all phases of that evil ; and thereafter, unexpectedly, it is developed that the general language thus employed is broad enough to reach cases and acts which the whole history and life of the coun- try affirm could not have been intentionally legislated against. It is the duty of the courts, under those circum- stances, to say that, however broad the language of the statute may be, the act, although within the letter, is not within the intention of the legislature, and therefore can- not be within the statute." *"• *i) Rector, etc., of Holy Trinity Church v. United States, 143 U. S. 457, 12 Sup. Ct. 511, 36 L. Ed. 226. And see, further. Ex parte Walton, L. R. 17 Ch. Div. 746 ; United States v. Freeman, 3 How. 556, 11 L. Ed. 724; Associates of Jersey Co. v. Davison, 29 N. J. Law, 415; Chase v. Dwinal, 7 Me. 134, 20 Am. Dec. 352; §§ 29-32) SPIRIT AND REASON OF THE LAW 69 It would be easy to. multiply examples of the application of this rule, both from ancient and modern times. PuflEeni- dorf, for example, mentions a law of Bologna which, en- acted that "whoever drew blood in the streets should be punished with the utmost severity." After long debate this was held not to extend to the case of a surgeon wh.p opened the veins of a person who fell down in the street in a fit.*^ So Blackstone says: "The most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it, or the cause which moved the legislator to enact it. An instance of this is given in a case put by Cicero. There was a law that those who, in a storm, for- sook the ship, should forfeit all property therein, and that the ship and lading should belong entirely to those who staid in it. In a dangerous tempest, all the mariners for- sook the ship, except only one sick passenger, who, by rea- son of his disease, was unable to get out and escape. By chance the ship came safe to port. The sick man kept posr session, and claimed the benefit of the law. Now here a>l.l the learned agree that the sick man is not within the rea- son of the law; for the reason of making it was to give encouragement to such as should venture their lives to save the vessel; but this is a: merit which he could never pretend to who neither staid in the ship upon that account nor contributed anything to its preservation." " So, in the case of United States v. Kirby,** the defendants were in- dicted for the violation of an act of Congress providing that People V. Rector, etc., of Church of Atonement, 48 Barb. (N. X.) 603; Allen v. Mayor, etc., of City of Savannah, 9 Ga. 286; Castner V. Walrod, 83 111. 171, 25 Am. Rep. 369; Kennedy's Heirs v. Ken- nedy's Heirs, 2 Ala. 571 ; Moss v. United States, .29 App. D. C. 188; People ex rel. Hunt v. Lane, 132 App. Div. 406, 116 N. Y. Supp. 990; Kelley v. Killourey, 81 Conn. 320, 70 Atl. 1031, 129 Am. St. Rep. 220. See "Statutes," Dec. Dig. (Key No.) § 183; Cent. Dig. § 261. *i PufEendorf, De Jure Nat., 1. 5, c. 12, § 8. It was a maxim of the Roman law that "benignius leges interpretandae sunt, quo vol- untas earum conservetur." Dig. 1, 3, 18. 42 1 Bl. Comm. 61. *8 7 "Wall. 482, 19 h. Ed. 278. 70 PBINCIPLBS OP STATUTORY CONSTRUCTION (Oh. 3 "if any person shall knowingly and willfully obstruct or re- tard the passage of the mail, or of any driver or carrier, or of any horse or carriage carrying the same," he shall suf- fer a penalty. The charge was that the defendants retarded the passage of one Parris, a carrier of the mail, while he was engaged in the performance of his duty, and also in like manner retarded the steamboat Buell, at that time en- gaged in carrying the mail. They pleaded that Farris had been indicted for murder by a court of competent jurisdic- tion, that a bench warrant had been issued and placed in the hands of the defendant Kirby,. the sheriff of the county, commanding him to arrest Farris, and that, in obedience to this warrant, he and the other defendants, as his posse, en- tered upon the steamboat and arrested Farris, and used only such force as was necessary to accomplish the arrest. It was held by the Supreme Court that the seizure of Farris was not an obstruction of the mail, or a retarding of the passage of a carrier of the mail, within the meaning of the act. Again, a statute of New York prohibited any sheriff or deputy sheriff, or any one for them, from purchasing any property at any execution sale, and declared void all pur- chases so made. In an action of ejectment, it appeared that certain premises had been sold by one deputy sheriff, on an execution issued under a judgment owned by another deputy of the same sheriff, and were bid off by the deputy who owned the judgment. It was contended that, under the statute, the sale was void. Plainly the case came within the letter of the law. But it was held that the statute should not apply, because the manifest object of the law was to prevent abuse, and to prohibit sheriffs and their dep- uties in their official capacity from being purchasers at their own sales, and thus being induced to act corruptly in rela- tion to them, but it could never have been intended to place those persons in a worse situation than others as to the col- lection of their own demands.** Again, it is ruled that the statute of frauds, which requires certain contracts to be in writing, and the consideration expressed therein, applies to *i Jackson ex dem. Scofleld v. Collins, 3 Cow. (N. Y.) 89. See "Statutes," Deo. Dig. (Key No.) § 18S; Cent. Dig. § Z61. §§ 29-32) SPIRIT AND REASON OF THE LAW 71 executory contracts only, and not to instruments which of themselves pass the estate by words of grant, assignment, surrender, or declaration of trust.*" And the words "be- yond seas," in a state statute -of limitations, copied from an English act without due attention to the consequences of incorporating these terms without qualification, have been construed to mean "out of the state." *° So although a law exempts from execution only such tools of a mechanic as are "necessary to his use and used by him in his trade," a temporary stoppage of his work will not forfeit the exemp- tion ; for the object of the law is to prevent those who have become unfortunate from being deprived of the means of making a living, and it must be presumed to contemplate that the loss of all that is not exempt may cause at least a temporary suspension of business.*' So again, where a statute authorized the conveyance, by a certain county to the state, of certain lands in such distinct lots or parcels "as the said county shall now hold by virtue of tax deeds issued upon sales for delinquent taxes heretofore made," it was held that the act should be construed not to apply to lands of which the tax deeds held by the county were void on their face, although there were in fact no lands to which the act, thus construed, could apply.** In pursuance of the principle of construing a statute ac- cording to its spirit (and also with the help of the presump- *B Cruger v. Cruger, 5 Barb. (N. T.) 225. See "Statutes," Dec. Dig. (Key No.) § 183; Cent. Dig. § 261. 4« Murray v. Baker, 3 Wheat. 541, 4 L. Ed. 454 ; Davie v. Briggs, 97 U. S. 628, 24 L. Ed. 1086; Mason v. Jobnson, 24 111. 159, 76 Am. Dec. 740; Earle v. Dickson, 12 N. C. 16; Smith v. Bartram, 11 Ohio St. €90; Galusha v. Cobleigh, 13 N. H. 79; Hulburt v. Merriam, 3 Mich. 144; Shreve v. Whittlesey, 7 Mo. 473; Mason V. Union Mills Paper Mfg. Co., 81 Md. 446, 32 Atl. 311, 29 L. R. A. 273, 48 Am. St. Rep. 524 ; Fortes' Adm'r v. Foot's Adm'r, 2 McCord (S. C.) 331, 13 Am. Dec. 732; Wakefield v. Smart, 8 Ark. 488; Bedford v. Bradford, 8 Mo. 233; Bank of Alexandria v. Dyer, 14 Pet. 141. 10 L. Ed. 391. See "Statutes," Deo. Dig. {Key No.) § 183; Cent. Din. § 261. 47 Harris v. Haynes, 30 Mich. 140. See "Statutes," Dec. Dig. (Key No.) § 183; Cent. Dig. § 261. 48 Haseltine v. Hewitt, 61 Wis. 121, 20 N. W. 676. See "Statutes," Deo. Dig. (Key No.) § 183; Cent. Dig. § 261. 72 PRINCIPLES OF STATUTORY CONSTRUCTION (Ch. 3 tion that the legislature never intends to make an unneces- sary change in the law), it is held that a penal or criminal statute will not be extended to cases not plainly within its intention. If the law declares in general and unqualified terms that the doing of a given act shall be a felony or mis- demeanor, or shall be attended with other penal conse- quences, still it will not be understood as applying to a case where the act was justifiable or excusable on grounds gen- erally recognized by law. This is illustrated' by the case supposed by some of the older writers, where a statute should make it a felony to "break from prison." Yet if the prison should be on fire, and a prisoner should break out, not to regain his liberty, but to save his life, he would not be guilty under the statute. As they put it, "he shall not be hanged becajise he would not stay to be burned." An iiriportant branch of this rule, or corollary from it, may be stated as follows : As the criminal law generally requires an evil intent, or guilty mind, to make any act a criminal of- fense, and as it is not to be supposed that the legislature intended to abrogate this rule unless by the most explicit language, if an act provides, generally, that the commission of a given act shall be a crime, or that "any person" who does the act shall be guilty of a crime, still the courts will understand that it could not have been intended to apply to the case of a person incapable of a criminal intention, such as a. young child, a madman, or an idiot, and therefore, al- though such persons may be. within the letter of the statute, an exception will be made in their favor, in accordance with the reason of the case and the spirit of the law.*' So, with- out reference to the capacity of the person, it may be suffi- 49 1 Hale, P. C. 706; Regina v. Moore, 3 Car. & K. 319; Regina V. Tolson, L. R. 23 Q. B. Dlv. 168. It slioiild be observed that modem statutes generally provide against the possibility of this question arising in specific cases, by declaring that the act de- nounced shall be a crime when done "willfully," "maliciously," or "knowingly." But it should also be noticed that the words of the act may be so clear and specific as to negative the Idea that any exception whatever was intended. And in such cases, the courts have no discretion. They must enforce the law as they find it See "Statutes," Deo. Dig. (Key No.) § I8S; Cent. Dig. § S61, §§ 29-32) SPIRIT AND REASON OF THE LAW 73 cient to take a case out of the statute that the element of willfulness or malice was wanting. Thus, in Connecticut, where a statute provided that if "the owner of any ram shall suffer him to go at large," he should be subject to a penalty, it was said that to "suffer" a ram to go at large, or out of the owner's enclosure, implied consent or willingness of the mind, and that although the statute intended to en- force strict care on the part of the owner in restraining his ram, it did not require such a degree of care as would amount to an obligation on him to restrain the animal, at all events, unless prevented by some uncontrollable cause, nor any greater care than is usually taken by careful and prudent farmers in like cases. °° On a similai- principle, it is held that where a statute gives punitive damages, or double or treble damages, against one who cuts timber growing on the land of another, without the latter's consent, and converts it to his own use, the law should be confined to cases where some element of willful- ness, wantonness, carelessness, or evil design enters into the act. And therefore it does not include the case of a corporation which enters upon the.lands of another and cuts trees, under a claim of the right of eminent doftiain, al- though, in consequence of the failure of the corporation to give bond or make compensation, as required by law, the taking. of the land was a trespass."^ And where a statute imposes liability without qualification (as, where it riequires railroad companies to fence their tracks^ and makes them .liable for injuries caused by the want of a fence or its de- fective condition), it may be construed as intended to im- 50 Selleck v. Selleck, 19 Ccnn. 501. Compare Hall v. Adams. 1 Aik. (Vt.) 166. "No man," says the court in Maryland, "incurs a penalty unless the act which subjects him to it is clearly both within the spirit and letter of the statute; Things which do not come within the words are not to be brought within them by con- struction; the law does not allow of constructive offenses or of arbitrary punishment." Cearfoss v. State, 42 Md. 403. See "Stat- utes," Dec. Dig. (Key No.) § 183; Cent. Dig. § 261. oiEndlich, Interp. § 129; Gohn v. Neeves, 40 Wis. 393; Kramer V. Goodlander, 98 Pa. 353; Bethlehem South Gas & Water Co. y. Yoder, 112 Pa.. 136, 4 Atl. 42. See "Statutes," Dec. Dig. {Key No.) § 183; Cent. Dig. § 261. 74 PRINCIPLES OF STATUTORY CONSTRUCTION (Oh. 3 pose liability in case of negligence only." As another de- duction from the same principle, it is said that an act done in the honest assertion of a right, which would be good in law if well founded in fact, but which proves unfounded in fact, would not fall within a statute which prohibited it under a penalty, unless, indeed, the penalty was in the na- ture simply of compensation for a civil injury. So, if a man cut down a tree or demolished a house standing on land of which he was in undisturbed possession and believed him- self to be the owner, he would not be punishable under stat- utes which prohibited such acts in general terms, although it turned out that his title was, bad and the property was not his." There may also be cases in which ignorance or a mistaken belief in regard to a matter of fact will so far negative the existence of a guilty intent as to take the case out of the comprehensive terms of the statute. In a certain English case, it appeared that a statute "for the better prevention of accidents or injury on railways from the unsafe and im- proper carriage of certain goods," enacted that every person who should send gunpowder or similarly dangerous articles by the railway should mark or declare their nature, under a penalty. It was held that a guilty knowledge was essen- tial to constitute the crime. And accordingly, an agent, who had sent some cases of dangerous goods by a railway, without mark or declaration, not only in ignorance of their nature, but being misinformed of it by his principal in an- swer to his inquiries, was not liable to the penalty, on the ground that his ignorance, under such circumstances, prov- ed the absence of a guilty intention. And yet he was un- der no legal duty to send the goods, and he might have refused to do so without satisfying hifnself by inspection as to their nature."* But it should be carefully remarked 2 Murray v. New York Cent. R. Co., 3 Abb. Dec. (N. Y.) 339. See "Statutes," Dec. Dig. {Key No.) § 183; Cent. Dig. § Z61. 5 3 Maxwell, Interp. (2d Ed.) 116; Regina v. Burnaby, 2 Ld. Raym. 900. See "Statutes," Dec. Dig. {Key No.) § 183; Cent. Dig. § 261. n v. Howe, 27 Grat. (Va.) 676. See "Statutes," Dec, Dig. (Key No.) § 186; Cent. Dig. § B65. 83McCleary v. Babcock, 169 Ind. 228, 82 N. E. 453. See "Stat- utes," Dee. Dig. (Key No.) § 186; Cent. Dig. § 265. 84 PEINCIPLBS OF STATUTOEY 'CONSTRUCTION (Oh. 3 IMPLICATIONS IN STATUTES 35. Every statute is understood to contain, by implication, if not by its express terms, all such provisions as may be necessary to effectuate its object and pur- pose, or to make effective the rights, powers, priv- ileges, or jurisdiction which it grants, and also all such collateral and subsidiary consequences as may be fairly and logically inferred from its terms.** Doctrine of Implications Statutes are seldom framed with such minute particular- ity as to give directions for every detail which may be in- volved in their practical application. Herein they are aided by the doctrine of implications. This doctrine does not empower the courts to go to the length of supplying things which were intentionally omitted from the act. But it au- thorizes them to draw inferences, from: the general meaning and purpose of the legislature, and from the necessity of making the act operative and effectual, as to those minor or more specific things which are included in the more broad or general terms of the law, or as to those consequences of the enactment which the legislature must be understood to have foreseen and intended. This is not the making of law by the judges. It is educing the will of the legislature by the logical process of inference. "It is a rule of con- struction that that which is implied in a statute is as much a part of it as what is expressed." '" And as a statute must 84 Great Northern Ry. Co. v. United States, 155 Fed. 945, 84 C. 0. A. 93 (affirmed 208 U. S. 452, 28 Sup. Ct. 313, 52 L. Ed. 567); Bailey v. State, 163 Ind. 165, 71 N. E. 655; State ex rel. Utick v. Board of Com'rs of Polk County, 87 Minn. 325, 92 N. W. 216, 60 L. R. A. 161; Board of Com'rs of Logan County v. Harvey, 6 Okl. 629, 52 Pac. 402 ; Hogan v. Piggott, 60 W. Va. 541, 56 S. E. 189 ; Wakefield v. Eropby, 67 Misc. Rep. 298, 122 N. Y. Supp. 632 ; City of Chicago v. Pittsburgh, C, C. & St. L. R. Co., 146 111. App. 403 (affirmed 242 ni. 30, 89 N. E. 648); United States v. Mien, 179 Fed. 13, 103 C. C. A. 1. See "Statutes," Dec Dig. (Key No.) § 185; Cent. Dig. §§ 17, 27, 264. 8 5 Hanchett v. Weber, 17 111. App. 114; Coonce v. Munday, 3 § 35) IMPLICATIONS IN STATUTES 85 always be construed with reference to the pre-existing law, it wiir often happen that many details are to be inferred from the general language of the act, which are understood as necessarily involved in it though not enumerated. For example, if a statute creates a new felony, or makes an act a felony which was before innocent, the new crime will necessarily possess all the incidents which appertain to felony by the rules and principles of the common law. Thus, by necessary implication, all persons who procure or abet the commission of the crime will be principals or ac- cessaries under the same circumstances which would make them such in a felony by the common law.'" What are "Necessary" Implications It, will be noticed as an essential part of this rule that the only implications which can be read into a statute are those which are "necessary," not such as may be merely plausible, nor such as may appear to the court to be" desirable or ben^ eficial. A necessary implication is one which, under all the circumstances, is compelled by a reasonable view of the statute, and the contrary of which would lead to such im- probable results as to constitute a legal absurdity. The "necessity" intended is not, of course, physical nor neces- sarily natural ; but it is so strong a probability of intention that a contrary intention cannot reasonably be supposed." Remedies Implied from Statute As a general principle, whenever a statute creates a new duty or obligation, or prohibits an act which was previously lawful, it also gives, by implication, a corresponding rem- edy to secure its observance, which remedy may appertain either to the public, when a breach of public duty results Mo. 373 ; State v. Harden, 62 W. Va. 313, 58 S. E. 715. See "Stat- utes," Dec. Dig. (Key A'o.) § ISo; Cent. Dig. §§ llf, 27, 264. 88 Coalheavers' Case, 1 Leach, C. L. 64. See "Statutes," Dec. Dig. (Key No.) § 185; Cent. Dig. §§ 17, 27, 264; "Criminal Law," Dec. Dig. (Key No.) § 11; Cent. Dig. §§ 10-12. 87 Gilbert v. Craddock, 67 Kan. 346, 72 Pac. 869; Commonwealth V. Kimball, 24 Pick. (Mass.) 366. And see, as to the analogous case of wills, Wilkinson v. Adam, 1 Ves. & B. 466; Whitfield v. Garris, 134 N. C. 24, 45 S. B. 904. See "Statutes," Dec. Dig. (Key No.) § 185; Cent. Dig. §§ 17, 37, 264. 86 PRINCIPLES OF STATUTORY CONSTRUCTION (Ch. 3 from the violation of the act, or to a private person, when he sustains injury by the same violation, and sometimes to both the public and the individual. Thus, it is a general rule of the common law that where a statute prohibits a matter of public grievance, or commands a matter of public convenience, and no special mode of prosecution for a vio- lation of the statute is prescribed, it maiy be prosecuted by indictment.'* So, when a remedial statute does not point out the manner in which it shall be enforced, in respect to private rights, an action lies in favor of the party aggrieved, by implication.*" But when a statute gives a new right or a new power, if it provides a specific, full, and adequate mode of executing the power or enforcing the right given, the fact that a particular mode is prescribed will be re- garded as excluding, by implication, the fight to resort to any other mode of executing the power or of enforcing the right. Thus, if the charter of a municipal corporation gives it the power to enforce payment of its taxes by a sale of the land on which they are assessed, in accordance with the usual method of tax sales, it will not be permissible for the municipality to bring suit at law against the owner for the amount of the taxes.*" But "where the design is to give additional protection to a subsisting right, and a remedy is provided for its invasion, which is not necessarily exclusive of all others, it is considered as merely cumulative, and the party injured may resort to it, or to the means previously allowed, for redress." °^ Apd if the remedy given by the statute is not adequate, there will be no implication that it ssColburn v. Swett, 1 Mete. (Mass.) 232; People v. Stevens, 13 Wend. (N. T.) 341. See "Statutes," Dec. Dig. {Key No.) § 1S5; Cent. Dig. §§ 17, 27, 2ffi; "Indictment and Information,"/ Dec. Dig. (Key No.) §§ 1-J,; Cent. Dig. §§ i-27. 8 8 Com. Dig. "Action upon Statute," A. 1; Van Hook v. Whit- lock, 2 Edw. Ch. CN. ■£■.) 304; Bullard v. Bell, 1 Mason, 243, 290, Fed. Cas. No. 2,121. See "Statutes," Dec. Dig. {Key No.) § 185j Gent. Dig. §§ 17, 27, 264. 00 Johnston v. City of Louisville, 11 Bush (Ivy.) 527. See "Stat- utes," Dec. Dig. (Key No.) § 185; Cent. Dig. §§ 17, 27, 264. 01 Smith V. Lockwood, 13 Barb. (N. Y.) 209; Van Sickle v. Bel- knap, 129 Ind. 558, 28 N. E. 305. See "Statutes," Dec. Dig. {Key No.) § 185; Cent. Dig. §§ 17, 27, 264. § 35) IMPLICATIONS IN STATUTES 87 was intended to be exclusive, and resort may be had, for the execution of the power or the enforcement of the right, to the ordinary process of the law.°^ Where a statute cre- ates a duty with the object of preventing a mischief of a particular kind, a person who, by reason of another's neg- lect of the statutory duty, suffers loss or injury of the kind contemplated by the statute, may have redress; but if he suffers a loss of a different kind, though it resulted from a breach of statutory duty, he is not entitled to maintain an action in respect of such loss.'' And the fact that a statute gives half a penalty to the complainant does not import au- thority to bring an action for the penalty in his own name.'* Illegality of Contract Implied from Statutory Prohibition Where a statute prohibits anything to be done, an act done in contravention of the prohibition must be adjudged void and inoperative; and this is necessary because the statute must be made effectual to accomplish the object in- tended by its enactment.'" Hence it follows thkt if a law imposes a penalty upon any person who shall do a given act, this implies a prohibition of the act in question; and any contract or agreement which involves the doing of the prohibited act is tainted, in respect to its consideration, by the statutory illegality, and will not be enforced by the courts.'* "Every contract made for or about any matter or thing which is prohibited and made unlawful by any 92 Johnston v. City of Louisville, 11 Bush (Ky.) 527. See "Stat- utes," Dec. Dig. (Key no.) § 185; Gent. Dig. §§ IT, 27, 264- osGorris v. Scott, L. R. 9 Ex. 125. Sec "Statutes," Dec. Dig. (Key No.) § 185; Cent. Dig. §§ 17, 27, 264. 94 Smith V. Look, 108 Mass. 139. See "Statutes," Dec. Dig. (Key No.) § 185; Cent. Dig. §§ 17, 27, 264- 05 Nelson v. Denison, 17 Vt. 73. See "Statutes," Deo. Dig. (Key No.) § 185; Cent. Dig. §§ 17, 27, 264- 98 Stevens v. Gourley, 7 C. B. (N. S.) 99; O'Brien v. Dillon, 9 Ir. 0. L. (N. S.) 318 ; Cope v. Rovirlands, 2 Mees. & \V. 149 ; Clark V. Protection Ins. Co., 1 Story, 109, Fed. Cas. No. 2,832; Skelton V. Bliss, 7 Ind. 77; Bacon v. Lee, 4 Iowa, 490; Lewis v. Welch, ,14 N. H. 294 ; Hallett v. Novlon, 14 Johns. (N. Y.) 273 ; Mitchell v. Smith, 1 Bin. (Pa.) 110, 2 Am. Dec. 417. See "Statutes," Dec. Dig. (Key No.) § 185; Gent. Dig. §§ 17, 27, 264; "Contracts," Deo. Dig. (Key No.) §§ 1S5-140; Cent. Dig. §S 681-721. 88 PEINCIPLES OF STATUTORY CONSTRUCTION (Oh. 3 statute is a void contract, although the statute itself doth not mention that it shall be so, but only inflicts a penalty on the offender; because a penalty implies a prohibition, though there are no prohibitory words in the statute." "' The fundamental principle of public policy on which this rule rests is expressed in the maxim "ex dolo malo non oritur actio." For example, where a statute imposes a pen- alty on any "person who practices the profession of surgery without being duly admitted, this is a prohibition against such practicing by an unlicensed person, and it disables him from recovering for work and labor done as such.** And especially where the statute is made with a view to the protection of the public health or morals, or to the preven- tion of frauds by the seller of a given article, though there be nothing but a penalty prescribed, a contract which in- fringes the statute cannot be supported. Thus, when the statute prohibits the sale of intoxicating liquors except by a person holding a license or permit, or prohibits the sale altogether, a sale: made by a person not so protected, or made under any other circumstances amounting to a viola- tion of law, is void, and the seller cannot maintain an action against the purchaser for the price or value."" And on the same principle, no action can be maintained on a promis- sory note given for the price of liquors sold by the payee in violation of law.^"" But here it is necessary for the reader to remember that if a contract, thus tainted with illegality, has been executed, the law will leave the parties where it finds them, and will not allow the person who has 0' Bartlett v. VInor, Garth. 251. See "Statutes," Dec. Dig. (Key No.) § 185; Cent. Dla. §§ n, 27, 264. osB'Allex V. Jones, 2 Jur. (N. S.) 979. See "Physicians and Surgeons," Dec. Dig. (Key No.) § 22; Cent. Dig. § 51. 9 Griffith V. Wells, 3 Denio (N. Y.) 226; Cobb v. Billings, 23 Me. 470 ; Bancroft v. Dumas, 21 Vt. 456 ; Jones v. Surprise, 64 N. H. 243, 9 Atl. 384; Loranger v. Jardine, 50 Mich. 518, 23 N. W. 203. See "IntosDioating Liquors," Dec. Dig. (Key No.y § S29; Cent. Dig. §§ m-m. looTurck V. Richmond, 13 Barb. (N. T.) 533; Glass v. Alt, 17 Kan. 444. See "Intoxicating Liquors," Dec. Dig. (Key No) 5 S27 ' Cent. Dig. §§ 467-473. g 35) IMPLICATIONS IN STATUTES 89 parted with a consideration for the illegal act to recover it back, unless it be- by the help of a statute.^"^ Statutory Grant of Powers or Privileges ■yV^henever powers, privileges, or property are granted by a statute, everything indispensable to their enjoyment or exercise is impliedly granted also, as it would be in a grant between private persons. ^°^ This rule finds an important application in relation to the powers of corporations. It has been said: "In this country, all corporations, whether public or private, derive their powers from legislative grant, and can do no act for which authority is not expressly given or may not be reasonably inferred. But if we were to say that they can do nothing for which a warrant could not be found in the language of their charters, we should deny them, in some-cases, the power of self-preservation as well as many of the means necessary to effect the essential ob- jects of their incorporation. And therefore it has been an established principle in the law of corporations that they may exercise all the powers within the fair intent and pur- pose of their creation which are reasonably proper to effect the powers expressly granted." ^"^ It 'has even been held, in England, that a corporation may be created by implica- tion. Thus, where trustees were appointed by statute, to perform duties which would necessarily continue without limit of time, it was held that, from the nature of the pow- 101 Ellsworth V. Mitchell, 31 Me. 247; Holman v. Johnson, Cowp. 341. See "Contracts," Dec. Dig. (Key Wo.) § 138; Gent. Dig. §§ 681-700. loaStief v. Hart, 1 N. X. 20, 30; Sahm v. State, 172 Ind. 237, 88 N. E. 257; Newcomb v. City of Indianapolis, 141 Ind. 451, 40 N. E. 919, 28 L. R. A. 732; State v. Barr, 173 Ind. 446, 88 N. E. 604; He^rd v. Pierce, 8 Gush. (Mass.) 338, 54 Am. Dec. 757; State ex rel. Watts v. Cain, 78 S. 0. 348, 58 S. E. 937 ; Brown v. Clark, 102 Tex. 323, 116 S. W. 360, 24 L. R. A. (N. S.) 670; Oal- laghan v. McGown (Tex. Civ. App.) 90 S. W. 319. &ec "Statutes," Dec. Dig. (Key No.) § 185; Cent. Dig. §§ 17, 27, 26Jt. 103 city of Bridgeport v. Housatonic R. Co., 15 Conn. 475, 501. And see 1 Cook, Corp. § 3 ; Clark, Corp. pp. 122-125. See "Cor- porations," Dec. Dig. (Key No.) §§ 370-374/ Cent. Dig. §§ 1511- 1524. 90 PRINCIPLES OF STATUTORY CONSTRUCTION (Ch. 3 ers given to them, they were impliedly made a corpora- tion."* Whenever the statute grants power to do an act, with an unrestricted discretion as to the manner of execut- ing the power, all reasonable and necessary incidents in the manner of executing the power are also granted.^ °° For instance, where a municipal corporation has lawfully cre- ated a debt, it has the implied power, unless restrained by its charter or a statute, to evidence the same by bill, bond, note, or other instrument. The power to contract the debt implies the right to issue the proper acknowledgment there- for.^"" So, when a statute directs a thing to be done, it authorizes the performance of whatever is necessary to ex- ecute its commands. Thus, an act increasing the salaries of municipal officers imposes upon the municipality the increased burden consequent thereon, though in terms no provision to meet it is made.^"^ And again, the concession of privileges or powers often carries with it implied obli- gations. For instance, an act which gives a power to dig up the soil of streets for a particular purpose, such as mak- ing a drain or sewer, impliedly casts on those thus empow- ered the duty of filling up the ground again and of restor- ing the street to its original condition."* So also, author- ity given by statute to build and maintain a bridge virtually implies an obligation to keep the bridge in good traveling and business condition, so long as the proprietors are in the use and enjoyment of the privileges of the grant.^"" 104 Ex parte Newport Marsh Trustees, 16 Sim. 346. See "Cor- porations," Dec. Dig. (Key No.) §§ 1, 31; Cent. Dig. §§ 1, 3-6, 101, 102. 106 People V. Eddy, 57 Barb. (N. T.) 593. See "Statutes," Dec. Dig. {Key No.) § 185; Cent. Dig. §§ 17, 27, S64. 106 City of Willlamsport v. Commonwealth ex rel. Bair, 84 Pa. 487, 24 Am. Rep. 208. See "Municipal Corporations," Dec. Dig. {Key No.) §§ 897, OOB, 908; Cent. Dig. §§ 1881, 1882. 1894, 1896. 107 Green v. Mayor, etc., of New York, 2 Hilt. (N. Y.) 203. See "Statutes," Dec. Dig. {Key No.) § 185; Cent. Dig. §§ 17, 27, 264. 108 Gray t. Pullen, 5 Best & S. 970. See "Statutes," Deo. Dig. {Key No.) § 185; Cent. Dig. §§ 17, 27, 264. 100 People V. Cooper, 6 Hill (N. Y.) 516. See "Bridges," Dec. Dig, {Key No.) § 21; Cent. Dig. § ^S. § 35) IMPLICATIONS IN 8TATDTES 91 Statutory Grant of Jurisdiction Jurisdiction may be created or conferred by implication. "While an unfounded assumption by the legislature that a particular jurisdiction existed might not alone be suffi- cient to create it, yet where the jurisdiction is assumed to exist, and explicit provisions made as to the form and mode of its exercise, the authority to proceed in that form and mode carries with it, by necessary implication, jurisdiction of the proceedings." ^^° And where an a,ct confers a juris- diction, it impliedly grants also the power of doing all such acts, or employing such means, as are essentially necessary to its execution. "Cui jurisdictio data est, ea quoque con- cessa esse videntur sine quibus jurisdictio explicari non potuit." ^^^ Thus, the authority to punish for contempt is granted as a necessary incident in establishing a tribunal as a court.*^" And where a statute gives to an inferior court the power to issue the writ of injunction, it must be understood as impliedly carrying with it the power to pun- ish disobedience to the writ by commitment.^^' So also, the power to grant temporary alimony belongs to the courts as an incident to their jurisdiction over divorces. ^^* And a grand jury, in execution of their general powers, and without special authority therefor, have the power, when a witness who was duly summoned appears before them, but refuses to be sworn and behaves in a disrespectful manner towards the jury, to require the. officer in attendance upon them to take the witness before the court, in order to ob- tain its aid and direction in the matter.^ ^^ But in giving 110 State V. Miller, 23 Wis. 634. See "Courts," Deo. Dig. (Key Wo.) §§ 1, 2; Cent. Dig. §§ 1-9, 91-106. 111 Dig. 2, 1, 2; People v. Hicks, 15 Barb. (N. Y.) 153. See "Statutes," Dec. Dig. (Key No.) § 185; Cent. Dig. §§ i7, 27, S64. 112 United States v. New Bedford Bridge, 1 Woodb. & M. 401, 440, Fed. Cas. No. 15,867. See "Contempt," Deo. Dig. (Key. No.) §§ S0-S6; Cent. Dig. §§ 91-109. 113 Ex parte Martin, L. R. 4 Q. B. Div. 212. See "Injunction." Dec. Dig. (Key No.) § Z29; Cent. Dig. §§ .1,96-501. 11* Goss V. Goss, 29 Ga. 109. See "Divorce," Dec. Dig. (Key No.) § 200; Cent. Dig. §§ 5S1-590. 115 Heard v. Pierce, 8 Cnsh. (Mass.) 338, 54 Am. Dec. 757. See "Chrwna Jury," Dec. Dig. (Key No.) 1.36; Cent. Dig. §§ 75-7^. 92 PKINCIPLES OF STATUTORY CONSTRUCTION (Ch. 3 judicial powers to affect prejudicially the rights of persons or property, a statute is* understood as silently implying, when it does not expressly provide, the condition or quali- fication that the power is to be exercised in accordance with the fundamental rules of judicial procedure, such, for in- stance, as that which requires that, before its exercise, the person sought to be prejudicially affected shall have an op- portunity of defending himself.^" And so, where the leg- islature prescribes the mode by which private property may be taken for public use, the court will presume that it in- tends that notice of the appropriation shall be given to the parties to be affected, although the statute may not have said so in express terms. This requirement will be read in by implication. For it will not be supposed that the leg- islature designed to violate the principles of right and jus- tice.^*' Subsidiary and Collateral Implications All those minor directions and details which are not specified in the statute, but are involved in its general terms, will be filled in, by implication, whenever it is nec- essary in order to give the law an effective operation. This is not adding to the act provisions which the legis- lature did not contemplate, but evolving from its broad terms those particular provisions which are necessarily in- cluded within its general purpose and tenor. Thus, for example, when a statute requires a notice to be given, or any other similar thing to be done, but does not specify the period of time within which it must be done, itvwill be construed to mean a reasonable time, depending upon the situation of the parties and the nature of the thing to be performed.^" So, again, when the statute directs notice' of facts to be published in a newspaper, the courts will pre- 118 Maxwell, Interp. (2d Ed.) 443; Bagg's Case, 11 Coke, 93b. See "Statutes," Dec. Dig. (Key No.) § 185; Cent. Dig. §§ n, 27, 185. 117 City of Boonville v. Ormrod's Adm'r, 26 Mo. 193. See "Em- inent Domain," Dec. Dig. (Key No.) §§ 179-184; Cent. Dig. §§ iSS- m- 118 Burden v. Stein, 25 Ala. 455; Moore v. Fields, 1 Or. 317. See "Process," Dec. Dig. {Key No.) § 21; Cent. Dig. § le. § 35) IMPLICATIONS IN STATnTES 93 sume, in the absence of any legislative intimation to the contrary, that the notice is to'be given in English, that being the ordinary language of the state, and in a newspa- per published in the same tongue.^^* Limitations of Doctrine of Implications •The extension, or evolution, of a statute by implication is to be confined to its strictly necessary incidents or log- ical consequences. When, for instance, an act requires the performance of a public service, it implies no provision that the person performing it shall be remunerated.^''"' So, where the legislature specifies, as compensation ior acts to be done by a public officer of a certain county, less than the usual amount, this raises no presumption that the claim for that compensation is to have precedence of others. ^^^ Again, a statute which empowers married women to con- tract debts for necessaries does not validate a bond and warrant of attorney to confess judgment made .by a mar- ried woman for such a debt.^^^ And where a statute ex- empts a husband from liability for his wife's antenuptial debts, and provides that she may be sued therefor and that her separate property shall be liable for such debts, this gives no jurisdiction or authority to adjudicate her a bank- rupt."' And a statute which merely authorizes a judge to refer matters to arbitration does not confer upon the arbitrators power to administer oaths. ^^* In these cases, it will be observed, none of the provisions sought to be added "» City Publishing Co. v. Mayor, etc., of Jersey City, 54 N. J. Law, 437, 24 Atl. 571 ; Wilson v. Inhabitants of City of Trenton, 56 N. J. Law, 469, 29 Atl. 183; Road in Upper Hanover, 44 Pa. 277. See "Newspapers," Dec. Dig. (Key No.) § S; Cent. Dig. §§ 16-19. 120 Jones V. Carmarthen, 8 Mees. & W. 605. See "Statutes," Dec. Dig. (Key No.) § 185; Gent. Dig. §§ 17, 27, 264. 121 People ex rel. Benham v. Williams, 8 Cal. 97. See "Officers," Dec. Dig. (Key No.) § 101; Cent. Dig. §§ 158-162. 122 Glyde v. Keister, 32 Pa. 85. See "Husband and Wife," Dec. Dig. (Key No.) § 61; Cent. Dig. § 281. 123 Ex parte Holland, L. R. 9 Ch. App. 307. See "Bankruptcy," Dec. Dig. {Key ffo.) § 67; Cent. Dig. §§ 17-87. i2*Regina v. Hallett, 2 Den. & P. C. C. 237. See "Oath," Dec. Dig. (Key No.) § 2; Cent. Dig. §§ 2-10. f 4 PRINCIPLES OF STATUTORY CONSTRUCTION (Ch. 3 by implication were necessary to make the statute effective or to accomplish the objects which it was designed to sub- serve; nor were they necessarily involved in the general terms of the statute, in any such sense as to make it logi- cally necessary to suppose that the legislature foresaw and intended them. But it is also a rule that no limitation is -to be inferred or implied which would have the effect to defeat the object of the law. For instance, if a certain sum of money is appropriated for the erection of public buildings which must necessarily cost several times that amount, this is not to be construed into a limitation as to the expendi- ture.^^" And again, every legislative grant is understood to be made with the implied reservation that it shall not work injury to the property or rights of other persons. ^^* WHEN GOVERNMENT IS BOUND BY STATUTES 36. General words in a statute do not include nor bind the government by whose authority the statute was enacted, where its sovereignty, rights, preroga- tives, or interests are involved. It is bound only by being expressly named or by necessary impli- cation from the terms and purpose of the act. This is a very ancient rule of the English law, and is equally appHcable to the national and state governments in this country. It is said that laws are supposed to be made for the subjects or citizens of the state, not for the sovereign power. Hence, if the government is not ex- pressly referred to in a given statute, it is presumed that it was not intended to be affected thereby, and this pre- sumption, in any case where the rights or interests of the state would be involved, can be overcome only by clear 125 Cook V. Com'rs of Hamilton Co., 6 McLean, 112, Fed. Cas. No. 3,157. See "Statutes," Dec. Dig. (Key No.) § 185; Cent. Dig. §§ n, 27, 264; "Counties," Dec. Dig. (Key No.) § 150; Cent. Dig. % 215. 128 Pittsburg & 0. R. Co. v. South West Pennsylvania R. Co., 77 Pa. 173. See "Statutes," Dec. Dig. {Key No.) § 185; Cent. Dig §§ n, 27, 264. § 36) WHEN GOVERNMENT IS BOUND BY STATUTES 95, and irresistible implications from the statute itself.^"^ Generally speaking, therefore, the state is not bound by the provisions of any statute, however generally it may be ex- pressed, by which its sovereignty would be derogated from, or any of its prerogatives, rights, titles, or interests would be divested, save where the act is specifically made to extend to the state, or where the legislative intention in that regard is too plain to be mistaken.^''* For example, where a statute enacts that "costs shall follow the event of every action or petition, unless otherwise directed by Jaw or by the court," no costs can be recovered against the state by a party prevailing against it in any civil ac- tion.^^* So also, a claim of the government against a pri- vate person is not affected by his discharge in bankruptcy, although the bankrupt law provides in general terms that the discharge shall release the bankrupt "from all debts, claims, liabilities, and demands," and that it may be pleaded "as a full and complete bar of ariy such debts," etc.^^" For the same reason, it is well settled that the pro- visions of a statute of limitations do not run against the IS' Crooke's Case, 1 Shower, 208; Attorney General v. Donaldson, 10 Mees. & W. 117; United States v. Hewes, Crabbe,' 307, Fed. Cas. No. 15,359; Slate v. Milburn, 9 Gill (Md.) 105; Cole v. White County, 32 Ark. 45. Bee "Statutes," Dec. Dig. (Key No.) § 233; Cent. Dig. § Sli. 12 8 Magdalen College Case, 11 Coke, 66b; Perry v. Eames (1891) 1 Chanc. 658; Lambert v. Taylor, 4 Barn. & C. 138; State v. Kinne, 41 N. H. 238; Union Trust Co. of San Francisco v. State, 154 Cal. 716, 99 Pac. 183, 24 L. K. A.'(N. S.) 1111; De Kalb County V. City of Atlanta, 132 Ga. 727, 65 S. E. 72; Title Guaranty & Surety Co. v. Guarantee Title & Trust Co., 174 Fed. 385, 98 C. C. A. 603 ; Banton v. Griswold, 95 Me. 445, 50 Atl. 89 ; A. L. & B. F. Goss Co. V. Greenleaf, 98 Me. 436, 57 Atl. 581. See "Statutes," Deo. Dig. (Key No.) § 233; Gent. Dig. § SI4. 12 8 State V. Kinne, 41 N. H. 238; Sandberg v. State, 113 Wis. 578, 89 N. W. 504; Commonwealth v. Lyon, 72 S. W. 323, 24 Ky. Law Rep. 1747; State v. Buckman, 95 Minn. 272, 104 N. W. 289; State V. Williams, 101 Md. 529, 61 Atl. 297, 1 L. R. A. (N. S.) 254, , 109 Am. St. Rep. 579 ; Haley v. Sheridan, 190 N. X. 331, 83 N. E. 296; State v. Bradford Sav. Bank & Trust Co., 71 Vt. 234, 44 Atl. 349. See "States," Dec. Dig. (Key No.) § 111; Cent. Dig. § 110. 130 United States v. Herron, 20 Wall. 251, 22 L. Ed. 275. See "Bankruptcy," Deo. Dig. {Key No.) § i21; Cent. Dig. §§ 772-807. 96 PRINCIPLES OP STATUTORY CONSTRUCTIOIf (Oh. 3 State, as they do against a private suitor, unless the state is expressly named in the statute and its rights waived.^" Neither is the state affected by tax laws unless expressly named ; that is to say, statutes imposing taxation in gen- eral terms are not understood as authorizing the assess- ment of taxes upon the property of the state, real or per- sonal, or of its municipal subdivisions.^^' On the same principle, a grant of power to a private corporation to take isi Glover v. Wilson, 6 Pa. 290 ; Alexander v. State, 56 Ga. 478 ; City of Jefferson v. Whipple, 71 Mo. 519; Josselyn v. Stone, 28 Miss. 753. This specific rule Is expressed In the maxim "nullum tempus occurrit regl." The statute of limitations of a state does not rim against the United States. United States v. Hoar, 2 Mason, 311, Fed. Gas. No. 13,373. See, also, Wasteney v. Schott, 58 Ohio St. 410, 51 N. B. 34; State ex rel. Goodman v. Halter, 149 Ind. 292, 47 N. B. 665; Louisville & N. R. Co. v. Smith, 125 Ky. 336, 101 S. W. 317, 128 Am. St. Rep. 254; Commonwealth v. Haly, 106 Ky. 716, 51 S. W. 430. See "Limitation of Actions," Dec. Dig. {Key No.) § XI; Cent. Dig. §§ S5-S9. 132 People V. Doe G. 1034, 36 Cal. 220; Trustees of Richmond County Academy v. City Council of Augusta, 90 Ga. 634, 17 S. E. 61, 20 L. R. A. 151 ; People v. Chicago, 216 111. 537, 75 N. B. 239; McCaslln V. State ex reh Auditor of State, 99 Ind. 428 ; Bradford v. I/afargue, 30 La. Ann. 432; Stetson v. Grant, 102 Me. 222, 66 Atl. 480; San- born V. City of Minneapolis, 35 Minn. 314, 29 N. W. 126 ; Franklhi Street Society v. Manchester, 60 N. H. 342; State v. Grlftner, 61 Ohio St. 201, 55 N. E. 612 ; Troutman v. May, 33 Pa. 455 ; People ex rel. Smith v. Miller, 94 App. Div. 567, 88 N. Y. Supp. 253; Hornsey Urban Council v. Hennell, [1902] 2 K. B. 73; Quirt v. Queen, 19 Can. Sup. Ct. 510. "The immunity of the property of a state, and of its political subdivisions, from taxation, does not result from a want of power In the legislature to subject such property to taxation. The state may, if it sees fit, subject its property and the property of its municipal divisions to taxation, in common with other property within its territory. But inasmuch as taxation of public property would necessarily Involve other taxation, for the payment of the taxes so laid, and thus the public would be taxing itself in order to raise money to pay over to itself, the Inference of law is that the general language of statutes prescrib- ing the property which shall be taxable is not applicable to the ' property of the state or its municipalities. Such property is there- fore, by implication, excluded from the operation of laws imposing taxation, unless there is a clear expression of intent to include It." Trustees for Support of Public Schools v. Inhabitants of City of Trenton, 30 N. J. Eq. 667. See "Taxation," Dec. Dig. (Key No.) §§ 173-190; Cent. Dig. §§ S95-S06. § 36) WHEN GOVERNMENT 18 BOUND BT STATUTES 97 lands for its uses under the power of eminent domain will not be construed as authorizing it to appropriate property belonging to the state or a municipality, or such as is al- ready held and used for another public purpose, unless such a construction is required by the very words of the grant or by necessary implication. ^^^ For similar rea;sons it is held that public buildings, constructed by the state Or a municipality for public purposes and not for pecuniary profit, are not within a statute giving a mechanic'? lien on buildings generally, unless expressly named as included.^'* But there are also some cases in which the sovereign will be bound by a statute without express words. In the early and leading case called the "Magdalen College Case," ^'° Lord Coke specified three kinds of statutes which would bind the crown although not specially named in them. These were: First, "general statutes which pro- vide necessary and profitable remedy for the maintenance of religion, the advancement of good learning, and, the re- lief of the poor." " Second, statutes for the suppression of wrong. "The king shall not be exempted by construction of law out of the general words of acts made to suppress wrong, because he is the fountain of justice and common right." Third, statutes of such a nature that their general words must be held to include the king, in order to perform the will of a founder or donor. These rules have never been authoritatively disavowed by the courts.^^' But the 133 Commonwealth v. Erie & N. E. E. Co., 27 Pa. 339, 67 Am. Dec. 471; Little Miami & C. & X. R. Co. v. City of Dayton, 23 Ohio St 510; Mayor, etc., of Jersey City v. Montclair R. Co., 35 N. J. Law, 328. Bee "Eminent Domain," Deo. Dig. (Key No.) § i6; Cent, Dig. §§ 91-93. 134 A. L. & E. F. Goss Co. V. Greenleaf, 98 Me. 436, 57 Atl. 581. See "Mechanics' lAens," Deo. Dig. (Key No.) § 13; Cent. Dig. §§ I4, 15. 130 11 Cofee, 66b. 130 A recent Writer, after reviewing several cases, observes: "These are the principal cases in which it has been held that the crown is bound by statutes without being named in them. These cases are scarcely sufficient in number or variety to justify the very general adoption of the propositions propounded by Lord Coke In the Magdalen College Case, with regard to the kinds of statutes by which the crown is bound without being named; at the same time Black Int.L. — 1 98 PMINCIPLBS OP STAT0TOHT CONSTRUCTION (Ch. 3 modern tendency is to draw the line of distinction at the point where the sovereign powers or the legal rights of the government begin to be affected. "It is said," observes Maxwell, "that the rule does not apply when the act is made for the public good, the advancement of religion and justice, the prevention of fraud, or the suppression of in- jury and wrong. But it is probably more accurate to say that the crown is not excluded from the operation of a statute where neither its prerogative, rights, nor property are in question." ^*' Thus, in general, the rule does not apply to acts of legislation which lay down general rules of procedure in civil actions. ^°* And the government is bound by statutes which are designed to prevent tortious usurpations and to regulate and preserve the right of elec- tions.^'' And in Georgia it has been held that the state is bound by acts of the legislature exempting certain ar- ticles of property from levy and sale on execution, for the benefit of the family of the debtor ; and such property can- not be seized and sold under execution to pay the taxes due by the debtor.^*" It must also be observed that although, the state is not to be bound without express words or necessary implica- tion, the same reasons do not apply when the question is as to the right of the state to take the benefit of a new law not expressly made for its advantage. Here the presump- tion is rather the other way ; and the courts incline to give there does not seem to be any case in which Lord Coke's propositions are either denied or overruled." Hardcastle, Stat. Law (2d Ed.) 419. 13 7 Maxwell, Interp. (2d Ed.) 166. And see City of Milwaukee v. McGregor, ■ 140 Wis. 35, 121 N. W. 642. See "Statutes," Dec. Dig. (Key No.) § 2SS; Cent. Dig. § SU. 188 Green v. United States, 9 Wall. 655, 19 L. Ed. 806. But in Schuyler County v. Hercer County, 9 111. 20, it is said that ordi- narily a statute which, in general terms, speaks of plaintiffs or de- fendants, applies to persons only, and not to states, counties, br municipal corporations. See "Statutes," Dec. Dig. (Key No.) § 233; Cent. Dig. § SVf. 18 Commonwealth ex rel. Attorney-General v. Garrigues, 28 Pa^ 9, 70 Am. Dec. 103. See "Statutes," Dec. Dig. (Key No.) § 233; Cent. Dig. § SI4. 1*0 Doe ex dem. Gladney v. Deavors, 11 Ga. 79. See "Taxation," Deo. Dig. (Key No.) § 576; Cent. Dig. § 116S. S 3*5) WHEN GOVERNMENT IS BOUND BT STATUTES (i9(? the government the benefit of new rights and remedies wherever applicable. When general rights are declared or remedies given by statute, the government is generally to be included, though not named. "If a new mode were pro-' vided by law for securing or Recovering a debt, for getting possession of real estate, or the like, the commonwealth would have the benefit of such new remedy, when appli- cable, though expressed in general terms." ^*^ So, also, the state is within a statute which makes it a criminal of- fense to make or alter a public record, falsely or fraudu- lently, with the intent that any "person" may be de- frauded; that is, if it is done with intent to defraud the state, it is punishable under the act.^*^ Municipal Corporations In the absence of express statutory provisions to the contrary, the statute of limitations will run against the municipal corporations of a state, the same as against a natural person, at least so far as regards all matters which are not of a purely public nature or connected with the public trusts which the municipality is to administer; as to the latter, there is some doubt.'*^ 1" Qpmmonwealth v. Boston & Maine R. Co., 3 Gush. (Mass.) 25. See "Statutes," Deo. Dig. (Key No.) § 233; Cent. Dig. % SI4. 142 Martin v. State, 24 Tex. 61. See "Forgery," Deo. Dig. (Key Ifo.) § 15;^Cent. Dig. % 50. 1*3 See City of Wheeling v. Campbell, 12 W. Va. 36; Evans v. Erie County, 66 Pa. 222; County of St. Charles v. Powell^ 22 Mo. 525, 66 Am. Dec. 637; City of Pella v. Scholte, 24 Iowa, 283, 95 Am. Dec. 729; Houston & T. C. Ry. Co. v. Travis County, 62 Tex. 16 ; City of JeflCerson v. Whipple, 71 Mo. 519 ; 2 Dillon, Munic. Corp. (4th Ed.) § 675. See "Limitation of Actions," Deo. Dig. (Key No.) g 11; Cent. Dig. §§ S5-S9. 100 PEESUMPTI0N8 IN AID »F CONSTRUCTION (Oh, 4 CHAPTER IV PRESUMPTIONS IN AID OF CONSTRUCTION, AND CONSID- ERATION OF EFFECTS AND CONSEQUENCES OF ACT 37-38. When Consideration of EfCects and Consequences Permis- sible. 39. Presumptions in Aid of Interpretation. 40. Presumption Against Exceeding Limitations of Legislative Power. 41. Presumption Against Unconstitutionality. 42. Presumption Against Inconsistency, 43. Presumption Against Impossibility. 44. Presumption Against Injustice. 45. Presumption Against Inconvenience. 46. Presuiription Against Absurdity. 47. Presumption Against Ineffectiveness. 48. Presumption as to Public Policy. 49. Presumption Against Irrepealable Laws. 50. Presumption as to Jurisdiction of Courts. WHEN CONSIDERATION OF EFFECTS AND CON- SEQUENCES PERMISSIBLE 37. If the language of a statute is ambiguous, or if it is fairly open to either of two constructions, the court may and should consider the effects and con- sequences which will follow from construing it in the one way or in the other, and adopt that con- struction which will best tend to make the statute effectual and produce the most beneficial results. 38. But if the statute plainly expresses the legislative pur- pose and meaning on its face, it must be enforced exactly as it stands and without any regard what- ever to the results which will flow from it. When a court is confronted with two or more possible interpretations of a statute, or of a clause in it, and each appears to be quite as consistent with the language of the statute as any other, it is necessary to determine which was really intended by the legislature. And here it is §§ 37-38) CONSIDERATION OF EFFECTS 101 permissible and proper to consider the effects and conse- quences which, practically and actually, will flow from one of the proposed constructions, and compare them with the results likely to follow from adopting the other construc- tion. If such an inquiry discloses the fact that one of the' proposed constructions would tend rather to defeat the. purpose of the statute than to sustain it, or would make it difficult or impossible of enforcement, or would disturb vested rightsj upset established rules of property, be pro- ductive of general public hardship or inconvenience, or lead to consequences so unreasonable or astonishing as to be legally absurd, or would do actual mischief in the state, or controvert the principles which had come to be regarded as the settled public policy of the state, while no such re- sults would follow from the other construction, the legis- lature must be supposed to have intended that the reason- able, effective,' and beneficial interpretation should be ap- plied to its act, and the court should decide accordingly.* Further, in a case of this kind, the court may consider the past and present effects of intetpreting the statute in a particular way, as well as those which may be anticipated in the future. That is to say, if the statute is, and perhaps for a long time has been, applied in practice according to * iColliBS Y. New Hampshire, 171 U. S. 30, 18 Sup.Ct. 768, 43 L. Ed. 60 ; In re King's Estate, 105 Iowa, 320, 75 N. W. 187 ; State v. Canadian Pac. K. Co., 100 Me. 202, 60 Atl. 901; Phillips v. City of Baltimore, 110 Md. 431, 72 Atl. 902, 25 L. R. A. (N. S.) 711 ; Chou- teau V. Missouri Pac. Ry. Co., 122 Mo. 375, 22 S. W. 458 ; Bowers v. Smith, 111 Mo. 45, 20 S. W. 101, 16 Ii. R. A. 754, 33 Am. St. Rep. 491; Glaser v. Rothschild, 221 Mo. 180, 120 S. W. 1, 22 L. R. A. CN. S.) 1045; Hicks v. McCown, 144 Mo. App. 544, 129 S. W. 76; Mowry & Payson v. Hanover Fire Ins. Co. (Me.) 76 Atl. 875 ; In re Halsey Electric Generator Co. (D. C.) 175 Fed. 825; State ex rel. v. Johnson, 138 Mo. App. 306, 121 S. W. 780; Nance v. Southern Ry. Co., 149 N. C. 366, 63 S. B. 116 ; Turbett Tp. Overseers of Poor v. Port Royal Borough Overseers of Poor, 33 Pa. Super. Ct. 520; State V. Audette, 81 Vt. 400, 70 Atl. 833, 18 L. R. A. (N. S.) 527, 130 Am. St. Rep. 1061. The maxims of interpretation of the Roman law were also in accordance with this principle. See Dig. 50, 17, 114, where we read: "In obscuris inspici solere quod verisimilius est, aut quod plerumque fieri solet." See "Statutes," Dec. Dig. (Key No.) § 181; Cent. Dig. §§ 259, 263. 102 PRESUMPTIONS IIJ AID OF CONSTKUCTION :(Cb- 4 an interpretation put upon it by executive and administra- tive oificers, or by the earlier decisions of the court or of inferior courts, an examination of its actual working and of the effects; it has already produced may throw light on the, meaning of the: legislature in an obscure or doubtful case.^" But of course the fact that no case has yet arisen in which a, proposed construction of the statute would have worked hardship or injustice, or any other of the mischie", vous consequences above adverted to, is no reason why a court should feel bound to adopt that construction, in the face of another deemed likely to be more reasonable, and beneficial. For, in the solution of a problem of this kind, the court must not limit its outlook to the facts of the case at. bar, nor merely to past history, but must consider what may be done under the law in the future, as well as what has been done in , the past, and how it may in the future affect the community generally, and not only the litigants, before it. , But when the language of the statute is plain and free from ambiguity, pointing to only one possible construction consistent with its evident meaning, that construction must be adopted, without any regard to the probable effects and consequences, and even although the court can see that great mischief will ensue.' For the courts have nothing to do, constructively, vvith the policy or the results of a piece of legislation. If the law-making body plainly meant it to bear a certain interpretatioii, and plainly said so, the courts are absolutely without concern with the consequences. To eTrade apprehended evils by putting a forced or strained construction on the statute would be to assume legislative 2 See Hathorn v. Natural Carbonic Gas Co., 194 N. X. 326, 87 N. E. 504) 23 L. R. A. (N. S.) 436, 128 Am. St. Rep. 555. See "Stat- utes," Dec. Dig. (Key No.) §§ 181, 218-320; Cent. Dig. §§ 259, S6S, 2H-S98. 3 Martin v. Martin & Bowne Co., 27 App. D. C. 59 ; Smith v. City of Madison, 7 Ind. 86; Lahart v, Thompson, 140 Iowa, 298, 118 N. W. 398 ; State v. Franklin County Sav. Bank, 74 Vt. 246, 52 Atl. 1069 ; Appleton Waterworks Co. v. Appleton, 116 Wis. 363, 93 N. W., 262. See "Statutes," Dec. Dig. (Key No.) § 181; Cent. Dig. §§ Z59, tes. § 39) PRESUMPTIONS IN AID OF INTKEPRKTATION 103 functions. In such a case the only rule is "ita lex scripta est," the law must be enforced and obeyed as it stands, no- matter what the judges may think of its wholesomeness or propriety, and without inquiring into its reasons or its re- sults. This is the rule both of the civil and the common law.* PRESUMPTIONS IN AID OF INTERPRETATION 39. In constrxiing a doubtful or ambiguous statute, the courts will presume that it was the intention of the legislature to enact a valid, sensible, and just law, and one which should change the prior law no fur- ther than may be necessary to effectuate the spe- cific purpose of the act in question. The construc- tion should be in harmony with this sissumption whenever possible. But presumptions of this kind Cemnot prevail against the clear and explicit terms of the law. It would not be consistent with the respect which one department of the government owes to another, nor with the good of the state, for the: courts to impute to the leg- islatiire any intention to exceed the rightful limits of their power, to violate the restraints which the Constitution im- poses upon them, to disregard the principles of sound pub- lic policy, or to make a law leading to absurd, unjust, in- convenient, or impossible results, or calculated to defeat its own object. On the contrary, it is the bounden duty of the judicial tribunals to assume that the law-making power has kept within the proper sphere of its authority, and has acted with integrity, good faith, and wisdom. Consequently, if the words of the law are doubtful or am- biguous, or if the statute is susceptible of more than one construction, the courts will lean in favor of that interpre- tation which will reconcile the enactment with the limita- * Dig. 40, 9, 12 ; 3 Bl. Comm. 430. 104 PRESUMPTIONS IN AID OP CONSTRUCTION (Ch. 4 tions of legislative power and with the' dictates of justice and expediency." Nor will a court inquire into' the motives of the legisla- ture, or listen to allegations of fraud or corruption against its members, nor presume that the legislature acted un- advisedly or mistakenly, or that it failed to investigate the subject-matter of the proposed statute and to inform itself and exercise its judgment and discretion, or that it was induced to enact the statute by deception, fraud, or trickery practiced upon it." At the same time, as we have ali-eady remarked, the ob- ject of all construction and interpretation is to ascertain the meaning and intention of the legislature. If the mean- ing is obscure, or the intention doubtful, the courts should seek it out. And in this search they will be aided by the presumptions which we have mentioned. " But if the mean- ing and intention are clear upon the face of the enactment, there is no room for construction. In that event, the literal sense of the statute is to be taken as its intended sense, and the judiciary have nothing to do with considerations of justice, reason, or convenience.' And here it is necessary to call the attention of the reader to an important distinction between the office of the judiciary in detefmining the constitutional validity of a statute, and their duty in construing a statute ascertained or assumed to be constitutional; In order to adjudge that 5 Dekelt v. People, 44 Colo. 525, 99 Pac. 330 ; Lake Shore & M. S. Ry. Co. V. Cincinnati, W. & M. Ry. Co., 116 Ind. 578, 19 N. E. 440 ; Stafe ex rel. Pearson v. Louisiana & M. R. R. Co., 215 Mo. 479, 114 S. "W. 956; Carter v. Whitconib, 74 N. H. 482, 69 Atl. 779, 17 L. R. A. (N. S.) 7S3; Hough t. Porter, 51 Or. 318, 98 Pac. 1083. See "Statutes," Dec. Dig. {Key No.) % 190; Gent. Dig. § 269. 3 State V. Harden, 62 W. Va. 313;, 58 S. B. 715. And see Black, Const. Law (3d Ed.) pp. 69, 70, and many cases there cited. See "Constitutional Laic," Deo. Dig. (Key No.) § 70; Cent. Dig. § ISl; "Statutes," Deo. Dig. {Key No.) §§ 61, 212, S16; Cent. Dig. §§ 56, 196, S89, S9S. 7 Kossmlller v. State, 114 Wis. 169, 89 N. W. 839, 58 L. R. A. 93, 91 Am. St. Rep. 910 ; United States v. Kirby, 7 Wall. 482, 19 L. Ed. 278. See "Statutes," Dec. Dig. (Key No.) §§ 183, 184; Cent. Dig. §§ Z61, S6S. § 40) AGAINST EXCEEDING LEGISLATIVE POWER 105 an act of the legislature is in violation of the constitution, it is necessary to be able to show, clearly, how and in what particular it is inconsistent with the organic law; it is not enough to show that it is impolitic, unwise, or even absurd. In passing upon the question of its constitutional validity, the courts have nothing to do with considerations of ex- pediency, wisdom, or justice.' But if the law is ascertained to be constitutionally valid (or if the question of its con- stitutionality is not raised), and the only doubt is as to its proper construction, the courts may listen to arguments drawn from considerations of public policy, or reason, jus- tice, and pi^opriety, and be guided thereby in deciding in favor of one or the other of two permissible interpretations. PRESUMPTION AGAINST EXCEEDING LIMITA- TIONS OF LEGISLATIVE POWER 40. It is presumed that the legislature does not design any attempt to transcend the rightful limits of its authority, to violate the principles of international law, or to give exterritorial effect to its statutes. In case of doubt or ambiguity, the construction will be such as to avoid these consequences. It must be assumed that the legislature has intended to keep within the prescribed limits of its authority, and to enact a valid law. Hence, if a statute is, fairly susceptible of two interpretations, one of which would make it trans- cend the boundaries of legislative competence, and the other would make it valid, the latter interpretation is to be adopted.® And a construction involving the exercise of a doubtful power will not readily be adopted in the ab- sence of direct words, when the words used admit of an- other construction which steers clear of all, questions in re- 8 Black, Const. Law (3d Ed.) 70. » Ferguson v. Borough of Stamford, 60 Conn. 432, 22 Atl. 782. See "Constitutional Law," Dec. Dig. {Key No.) § 48; Cent. Dig. § i6; ••Statutes," Dec. Dig. (Key No.) § 61, '..Cent. Dig. §§ 56, 196. 106 PEESUMPTIONS IN AID OF CONSTKUCTION (Oh. i gafd to powef.^" The principle of the separation of the powers of government into three co-ordinate departments requires that each of these should be independent of the others, and that neither should usurp the functions nor en- croach upon the lawful powers of the others. Hence any act of legislation which should amount to an unlawful as- sumption of either executive or judicial powers, or which should arrogate to the legislative department duties or pre- rogatives which the fundamental law confides to the other branches of the government, would be, for that reason, invalid and of no effect. But an intention thus to exceed the limits of its rightful power is never to be imputed to the legislature; On the contrary, the presumption is that it has kept within those limits. And in case of a doubtful or ambiguous law, the construction should be such as will reconcile the expressed will of the legislature with the limits fixed for the sphere of its action and with the proper jurisdiction of the other departments. Another conse- quence of the presumption against any abuse of power by the legislature is that any facts, the existence of which is necessary to the validity of an act of the legislature, are to be taken for true, as an inference from the statute itself.^ ^ And the correctness or incorrectness of a legis- lative opinion whereon an act is founded, is not a question within the province of the courts to determine ; they must assume the fact to be as the legislature states or assumes it." Violation of International Law In case of doubt, a statute should be so construed as to harmonize and agree with the rules and principles of in- ternational law, and to respect rights and obligations se- 10 Mardre v. Felton, 61 N. 0. 279. See "Statutes," Deo. Dig. (Key No.) §§ 61, 185; Cent. Dig. §§ 56, 264. 11 Erie & N. B. R. Co. v. Casey, 26 Pa. 287; State v. Noyes, 47 Me. 189. See "Statutes," Deo. Dig. (Key No.) §§ 61, 185; Cent. Dig. §§ 56, Z6l 12 People V. Lawrence, 36 Barb. (N. Y.) 177; Tyson v. Washington County, 78 Neb. 211, 110 N. W. 634, 12 L. R. A. (N. S.) 350; Kad- derly v. City of Portland, 44 Or. 118, 74 Pac. 710. See "Constitu- tional Law," Deo. Dig. (Key No.) ^^ 50-75; Cent. Dig. §§ 48-138. § 40) AGAINST EXCEEMNG LEGlSLATIViE POWliR 107 cured by treaties, rather than to violate them.;'' But this presumption is admissible only when there is opportunity to choose between two or more possible interpretations. "If the legislature of England in express terms applies its legislation to matters beyond its legislatorial capacity, an English court must obey the English legislature, however contrary to international comity such legislation may be. But unless there be definite express terms to the contrary, a statute is to be interpreted as applicable and as intended to apply only to matters within the jurisdiction of the leg- islature by which it is enacted." ^* "If the language of an act of Parliament, unambiguously and without reasonably admitting of any other meaning, applies to foreigners abroad', or is otherwise in conflict with any principle of in- ternational law, the courts must obey and administer it as it stands, whatever may be. the responsibility incurred by the nation to foreign powers in executing such a law." ^' And these principles are equally applicable in our own ' country, with this limitation, in respect to the acts of the legislatures of the states, that if they encroach upon the powers confided to Congress in relation to our interna- tional concerns, or if they violate the terms of a treaty (which is the "supreme law of the land"), they, are uncon- stitutional and void, and hence no question can arise as to their interpretation. Exterritorial Operation of Statutes Prima facie, every statute is confined in its operation to the persons, property, rights, or contracts, which are within the territorial jurisdiction of the legislature which enacted it. The presumption is always against any inten- 18 Queen v. Anderson, L. R. 1 C. C. R. 161; Bloxam v. Fayre, L. R. 8 P. D. ioi ; Lau Ow Bew v. United States, 144 U. S. 47, 12 Sup. Ct. 517, 36 L. Ed. 340. See "Treaties," Dec. Dig. {Key No.) § 11; Cent. Dig. § II. i*TNfiboyet v. Niboyet, L. R. 4 P. D. 1, 20; Call y. Papayanni (The Amalia), 1 Moore P. C. (N. S.) 471. See "International Law," Dec. Dig. (Key No.) § Jf; Gent. Dig. § JT. IB Maxwell, Interp. (2d Ed.) 179; The Marianna Flora, 11 Wheat. 40, 6 li. Ed. 405. See "International Law," Dec. Dig. (Key No.) i 1; Cent. Dig. § J. 108 PRESUMPTIONS IN AID OF CONSTRUCTION (Ch. 4 tion to attempt giving to the act an exterritorial operation and effect." Said Chief Justice Marshall: "It is so un- usual for a legislature to employ itself in framing rules which are to operate only on contracts made without their jurisdiction, between persons residing without their juris- diction, that courts can never be justified in putting such a construction on their words if they admit of any other interpretation which is rational and not too much strained." ^' Thus, although a legislature may provide remedies within the state for the collection of claims or en- forcement of personal' liabilities arising out of the state, it is not within thef competency of the legislative power, upon grounds of public policy, to create personal liabilities and impose them on persons and property out of the jurisdic^ tion of thp state and on account of transactions occurring beyond its territorial limits.' ' Again, it is a maxim of gen- eral law, recognized by all nations, that the criminal and penal laws of a country do not reach, in their effects, be- yond the jurisdiction where they are established.'* Con- sequently, it was early decided in this country that the crime of robbery committed by a person who is not a citi- zen of the United States, on the high seas, on board of a ship belonging exclusively to subjects of a foreign state, is not piracy under the act of Congress defining and punish- ing that crime, although such an offense might be brought 18 Noble V. The St. Anthony, 12 Mo. 261; Ex parte Blain, L. E. 12 Ch. Div. 522; Jefferys v. Boosey, 4 H. L. Gas. 815; Hendrickson V. Fries, 45 N. J. Law, 555; State v. Lancashire F. Ins. Co., 66 Ark. 466, 51 S. W. 633, 45 L. R. A. 348 ; Mutual Life Ins. Co. of New York V. Prewitt, 127 Ky. 399, 105 S. W. 463, 31 Ky. Law Rep. 1319; Woodworth v. Spring, 4 Allen (Mass.) 324; Stanley v. Wabash, St. L. & P. Ry. Co., 100 Mo. 435, 13 S. W. 709, 8 L. R. A. 549; Lan- ham V. Lanham, 136 Wis. 360, 117 N. W. 787, 17 L. R. A. (N. S.) 804, 128 Am. St. Rep. 1085. See "Courts," Dec. Dig. (Key No.) § 8; Cent. Dig. |§ 18, 19. 17 Bond V. Jay, 7 Cranch, 350, 3 L. Ed. 367. See "Courts," Dec. Dig. {Key No.) § 8; Gent. Dig. §§ 18, 19. 18 The Ohio v. Stunt, 10 Ohio St. 582. See "Courts," Dec Dig {Key No.) § 8; Cent. Dig. §§ 18, 19. i» Commonwealth v. Green, 17 Mass. 515. See "Statutes," Dec Dig. {Key No.) § 8; Cent. Dig. §§ 18, 19. § 40) AGAINST EXCEEDING LEGISLATIVE POWER 109 within the broad general terms of the statute.'" On a sim- ilar principle it is held that the civil damage laws — giving a right of action against liquor sellers to innocent parties who sustain injury by the intoxication of persons supplied with liquor by the defendants, or by the consequences of such intoxication or the acts of intoxicated persons, or by the furnishing of liquor to minors or drunkards after warn- ing given not to do so — have no exterritorial operation or effect.'^ And in regard to the statutes, now quite common in the United States, which give a right of action for dam- ages to the surviving family, or the personal representa- tives, of a person who has been killed by the wrongful' act, omission, or default of another, it is generally held that they have no exterritorial force. On the general principle of the limits of political jurisdiction and of the forte of mu- nicipal law, it is considered that such a'cts are intended to regulate the conduct of persons and corporations only within the state enacting the law. If a citizen of the state leaves it and goes into another state, he is left to the pro- tection pf the laws of the latter state. Hence an action will not lie in thie courts of one state, under such a statute En- acted by that state, for death caused by a wrongful act or negligence occurring within the liniits of another state. '^ It should be observed that this is not a question of legis- lative power so much as of interpretation. Again, in view of the well-settled general rule that real property is sub- ject exclusively to the laws of the state within whose ter- ritorial limits it is situated, any statute dealing in general terms with the real property of a bankrupt would not be construed as applying to or affecting his lands in foreign jurisdictions."* Neither can the revenue laws of a state 20 United States v. Palmer, 3 Wheat. 610, 4 L. Ed. 471; United States V. Howard, 3 Wash. C. C. 340, Fed. Cas. No. 15,404. See "Piracy," DeoJ Dig. (Key No.) §§ 3, 3; Cent. Dig. §§ 2, 3. 21 Goodwin v. Young, 34 Hun (N. T.) 25i2; Black, Intox. Liq. § 280. See "Courts," Dec. Dig. (Key No.) § 8; Cent. Dig. §i 18, 19. 2 2 Tiffany, Death by Wr. Act, § 195; Beach v. Bay State Steam- boat Co., 30 Barb. (N. Y.) 433 ; Whitford v. Panama B. Co., 23 N.~ Y. 465. See "Death," Dec. Dig. (Key No.) § 35; Cent. Dig. § 50. 2 2 Selkrig v. Davis, 2 Eose, 291, Sec "Courts," Deo. Dig. (Key No.) § S; Cent. Dig. §'§ 18, 19. lid PEBSUMPTIONS IN AID OP CONSTRUCTION (Cb. 4 have any exterritorial operation.''-' And as it is not com- petent for the legislature of a state to impose taxation on lands situated in another state, the presumption is against any attempt on their part to bring about this result, and tax laws will not be construed as authorizing such taxation, if it is possible to avoid that consequence."" PRESUMPTION AGAINST UNCONSTITUTION- ALITY 41. Every act of the legislature is presumed to be valid and constitutional until the contrary is shown. All doubts are resolved in favor of the validity of the act. If it is fairly and reasonably open to more than one construction, that construction will be adopted which will reconcile the statute with the constitution and avoid the consequence of un- constitutionality. Legislators, as well as judges, are bound to obey and support the constitution, and it is to be understood that they have weighed the constitutional validity of every act they pass. Hence the presumption is always in favor of the constitutionality of a statute; every reasonable doubt must be resolved in favor of the statute, not against it ; and the courts will not adjudge it invalid unless its violation of the constitution is, in their judgment, clear, complete, and unmistakable."* And, further, a state statute can be de- 2* State Tax on Foreign-Held Bonds, 15 Wall. 300, 21 L. Ed. 179. See "Courts," Dec. Dig. (Key No.) § 8; Cent. Dig. §§ 18, 19. 26 Drayton's Appeal, 61 Pa. 172. See "Courts,"' Dec. Dig. {Key No.) i 8; Cent. Dig. |'§ 18, 19. 2 Ex parte Young, 209 U. S. 123, 28 Sup. Ct. 441, 52 L. Ed. 714, 13 L. R. A. (N. S.) 932; Cantwell v. Missouri, 199 U. S. 602, 26 Sup. Ct. 740, 50 L. Ed. 329 ; Smith v. St. Louis & S. W. Ry. Co., 181 U. S. 248, 21 Sup. Ct. 603, 45 L. Ed. 847 ; United States ex rel. Bernardin v. Duell, 172 U. S. 576, 19 Sup. Ct. 286, 43 L. Ed. 559 ; Logan & Bryan v. Postal Telegraph & Cable Co. (C. C.) 157 Fed. 570; Spain v. St. Louis & S. F. R. Co. (C. C.) 151 Fed. 522; Grain- ger V. Douglas Park Jockey Club, 148 Fed. 513, 78 C. 0. A. 199: § 41) PRESUMPTION AaAINST UNCONSTITUTIONALITY 111 dared unconstitutional only where specific restrictions upon the power of the legislature can be pointed out, and the case shown to come within them, and not upon any general theory that the statute is unjust, oppressive, or impolitic, or that it' conflicts with a spirit supposed to per- State ex rel.. Woodward v. Skeggs, 154 Ala. 249, 46 South., 268; Mobile Dry-Docks Co. v. City of Mobile, 146 Ala. 198, 40 South. 205, 3 L. R. A. (N. S.) 822; Williams v. State, 85 Ark. 464, 108 S. W. 838, 26 li. R. A. (N. S.) 482, 122 Am. St. Rep. 47; Arkansas, L. & G. R. Co. V. Kennedy, 84 Ark. 364, 105 S. W. 885 ; StiUwell V. Jackson,, 77 Ark. 250, 93 S. W. 71; In re Goodrich's Estate, 6 Cal. App. 730, 93 Pae. 121; Thomas v. Williamson, 51 Fla. 332, 40 South, 831; Wellmaker v. Terrell, 3 Ga. App. 791, 60 S. E. 464; In re Gale, 14 Idaho, 761, 95 Pac. 679 ; Noble v. Bragaw, 12 Idaho, 265, 85 Pac. 903 ; People v. McBride, 234 111. 146, 84 N. B. 865, 123 Am, St. Rep. 82; People ex rel. v. Rose, 203 111. 46, 67 N. E. 746; People ex rel. Henderson v. Onahan, 170,111. 449, 48 N. B. 1003; Kraus v. Lehman, 170 Ind. 408, 83 N. B. 714; Smith t. Indianapolis St. R. Co., 158 Ind. 425, 63 N. B. 849 ; Eckerson V; City of Des Moines, 137 Iowa, 452, 115 N. W. 177; McGuire v. Chicago, B. & Q. R. Co., 131 Iowa, 340, 108 N. W. 902; Chesapeake Stone Co. v. Moreland, 126 Ky. 656, 104 S. W. 762, 31 Ky. Law Rep. 1075, 16 L. I^. A. (N. S.) 479; House of Reform v. Lexington, 112 Ky. 171, 65 S. W. 350, 23 Ky. Law Rep. 1470 ; State ex rel. La- bauve v. Michel, 121 La. 374, 46 South. 430 ; Attorney General v. State Board of Assessors, 143 Mich. 73, 106 N.W. 698; Sears v. Cottrell, 5 Mich. 251; State ex rel. Judah v. Fort, 210 Mo. 512, 109 S. W. 737; Ex parte Loving, 178 Mo. 194, 77 S. W. 508; State v. Thomp- son, 144 Mo. 314, 46 S. W. 191; Rosenbloom v. State, 64 Neb. 342, 89 N. W. 1053, 57 L. R. A. 922 ; State v. Standard Oil Co., 61 Neb. 28, 84 N. W. 413, 87 Am. St. Rep. 449; In re Boyce, 27 Nev. 299, 75 Pac. 1, 65 L. R. A. 47; Seeley v. Stevens, 190 N. T. 158, 82 N. B. 1095; Sugden v. Partridge, 174 N. Y. 87, 66 N. B. 655; Kerrigan V. Force, 68 N. X. 381; Tonnage Tax Cases, 62 Pa. 286; State v. McCoomer, 79 S. C. 63, 60 S. B. 237 ; Bon Homme County v. Berndt, 15 S. D. 494, 90 N. W. 147 ; Fremont, B. & M. V. R. Co. v. Penningr ton County* 22 S. D. 202, 116 N. W. 75; Bdler v. Edwards, 34 Utah, 13, 95 Pac. 367; Young v. Salt Lake City, 24 Utah, 321, 67 Pac. 1066; Young v. Commonwealth, 101 Va. 853, 45 S. B. 327; South Morgantown v. City of Morgantown, 49 W. Va. 729, 40 S. B. 15; State v. Peel Splint Coal Co., 36 W. Va. 802, 15 S. B. 1000, 17 L. R. A. 385; State ex rel. Gubbins v. Anson, 132 Wis. 461, 112 N. W. 475; Hartford Bridge Co. v. Union Ferry Co., 29 Conn. 210; Flint River Steamboat Co. v. Foster, 5 Ga. 194, 48 Am. Dec. 248; Mayor, etc., of Baltimore v. State ex rel. JBoard of Police of City of Baltimore, 15 Md. 376, 74 Am. Dec. 572; Stewart v. Board of 112 PRESUMPTIONS IN AID OF CONSTKUCTION (Ch. 4 vade the constitution, but not expressed in words." Nei- ther will any court, in determining the constitutional va- lidity of a statute, take into consideration or pass upon the motives of the legislature in its enactment.^* From these well-known principles of constitutional law Sup'rs of Polk County, 30 Iowa, 9, 1 Am. Rep. 238 ; Lindsley v. Natural Carbonic Gas Co. (O. 0.) 162 Fed. 954; People ex rel. Mattison v. Nye, 9 Cal. App. 148, 98 Pac. 241; Economic Power & Construction Co. v. City of Buffalo, 128 App. Div. 883, 112 N. Y. Supp. 1127; State v. Webber, 214 Mo. 272, 113 S. W. 1054; Ha- thorn V. Natural Carbonic Gas Co., 60 Misc. Rep. 341, 113 N. Y. Supp. 458; People v. Smith, 108 Mich. 527, 66 N. W. 382, 32 L. R. A. 853, 62 Am. St. Rep. 715; Rathbone v. Wirth, 6 App. Div. 277, 40 N. Y. Supp. 535; Webb v. Ritter, 60 W. Va. 193, 54 S. E. 484 ; City of Austin v. Cahill, 99 Tex. 172, 88 S. W. 542. See "Con- stitutional Law," Deo. Dig. (Key No.) § 48; Cent. Dig. § 46; "Stat- utes," Dec. Dig. (Key No.) § 61; Cent. Dig. § 56. arjacobson v. Massachusetts, 197 U. S. 11, 25 Sup. Ct 358, 49 li. Ed. 643; Reeves v. Corning (C. C.) 51 Fed. 774; Forsythe v. City of Hammond (C. C.) 68 Fed. 774; People v. Draper, 15 N. Y. 532; Bertholf v. O'Reilly, 74 N. Y. 509, 30 Am. Rep. 323; State V. Wheeler, 25 Conn. ^90 ; Praigg v. Western Paving & Supply Co., 143 Ind. 358, 42 N. B. 750; People v. Richmond, 16 Colo. 274, 26 Pac. 929; Sawyer v. Dooley, 21 Nev. 390, 32 Pac. 437; Wadsworth V. Union Pac. Ry. Co., 18 Colo. 600. 33 Pac. 515, 23 L. R. A. 812, 35 Am. St. Rep. 309; Black, Const. Law (3d Ed.) 72. See "Con- stitutional Law," Dec. Dig. (Key No.) § 48; Cent. Dig. § 46. 28 Fletcher v. Peck, 6 Cranch, 87, 3 L. Ed. 162; Grainger v. Douglas Park Jockey Club, 148 Fed. 513, 78 C. C. A. 199; Hawkins V. Roberts, 122 Ala. 130, 27 South. 327; De Merritt v. Weldon, 154 Cal. 545, 98 Pac. 537 ; In re Smith, 143 Cal. 368, 77 Pac. 180 ; Odd Fellows' Cemetery Ass'n v. City and County of San Francisco, 140 Cal. 226, 73 Pac. 987 ; Ex parte Newman, 9 Cal. 502 ; State ex rel. Ketcham V; Terre Haute & I. R. Co., 166 Ind. 580, 77 N. E. 1077; State V. Kolsem, 130 Ind. 434, 29 N..E. 595, 14 L. R. A. 566; Parker V. State ex rel. Powell, 132 Ind. 419, 31 N. E. 1114; State ex rel. Belden v. Fagan, 22 La. Ann. 545; People v. Gardner, 143 Mich. 104, 106 N. W. 541; Jewell v. Weed, 18 Minn. 272 (Gil. 247); Fen- wick V. Gill, 38 Mo. 510; McCarter v. City of Lexington, 80 Neb. 714, 115 N. W. 308; Moore v. West Jersey Traction Co., 62 N. J. Law, 386, 41 Atl. 946 ; Kittinger v. Buffalo Traction Co., 160 N. Y. 377, 54 N. B. 1081; State v. Lindsay, 103 Tenn. 625, 53 S. W. 950; Williams v. Nashville, 89 Tenn. 487, 15 S. W. 364; Lynn v. Polk, 8 Lea (Tenn.) 121; State v. Peel Splint Coal Co., 36 W. Va. 802, 15 S. B. 1000, 17 L. R. A. 385. See "Constitutional Law," Dec. Dig. (Key No.) § 70; Cent. Dig. g ISl. § 41) PRESUMPTION AGAINST DNCONSTITUTIONALITT 113 it follows that the courts will not so construe the law as to make it conflict with the constitution, but will rather put such an interpretation upon it as will avoid conflict with the constitution and give it full force and effect, if this can be done without extravagance. If there is doubt or uncertainty as to the meaning of the legislature, if the words or provisions of the statute are obscure, or if the enactment is fairly susceptible of two or more construc- tions, that interpretation will be adopted which will avoid the effect of unconstitutionality, even though it may be necessary, for this purpose, to disregard the more usual or apparent import of the language employed.^" "It is the duty of the court to uphold a statute when the conflict be- tween it and the constitution is not clear ; and the implica- tion which must always exist, that no violation has been in- 28 Grenada County v. Brogden, 112 U. S. 261, 5 Sup. Ct. 125, 28 L. Ed. 704 ; Parsons t. Bedford, 3 Pet. 433, 7 L. Ed. 732 ; Road Imp. Dist. No. 1 V. Glover, 86 Ark. 231, 110 S. W. 1031; Chesebrough V. City and County of San Francisco, 153 Cal. 559, 96 Pae. 288; State V. Fountain, 6 Pennewill (Del.) 520, 69 Atl. 926; Park v. Candler, 113 Ga. 647, 39 S. B. 89; Ivey v. State, 112 Ga. 175, 37 S. E. 308; Robsoh v. Doyle, 191 111. 566, 61 N. B. 435; Newland v. Marsh, 19 111. 376; McCleary v. Babcock, 169 Ind. 228, 82 N. E. 453; Smith V. Indianapolis St. R. Co., 158 Ind. 425, 63 N. E. 849 ; Clare v. State, 68 Ind. 17; In re Burnette, 73 Kan. 609, 85 Pae. 575; Stand- ard Oil Co. V. Commonwealth, 119 Ky. 75, 82 S. W. 1020; Rogers V. Jacob, 88 Ky. 502, U S. W. 513 ; Grinage v. Times-Democrat Pub. Co., 107 La. 121, 31 South. 682; Albert v. Gibson, 141 Mich. 698, 105 N. W. 19 ; Inkster v. Carver, 16 Mich. 484 ; Kenefick v. City of St. Louis, 127 Mo. 1, 29 S. W. 838; Cass County v. Sarpy County, 66 Neb. 473, 92 N. W. 635; State Water Supply Commission of New York v. Curtis, 192 N. Y. 319, 85 N. E. 148; Roosevelt v. Godard, 52 Barb. (N., Y.) 533; Lowery v. Board of Graded School Trustees ia Town of Kernersville, 140 N. C. 33, 52 S. E. 267 ; Brown v. Galveston, 97 Tex. 1, 75 S. W. 488; Harrison v. Thomas, 103 Va. 333, 49 S. E. 485 ; State v. Peel Splint Coal Co., 36 W. Va. 802, 15 S. E. 1000, 17 L. R. A. 385; Slack v. Jacob, 8 W. Va, 612; Townsend Gas & Electric Light Co. v. Hill, 24 Wash. 469, 64 Pae. 778; United States v. Delaware & H. Co., 213 U. S. 366, 29 Sup. Ct. 527, 53 L. Ed. 836; Road Commission v. Haring, 55 i, construction will" not be adopted which would disfranchise a considerable number of voters, or deprive a county of representation in the leg- islature, unless such construction is rendered necessary by the express and unequivocal language of the law."" And "on the general principle of avoiding injustice and absurd- ity, any construction should be rejected, if escape from it were possible, which enabled a person to defeat or impair 57, City of Boonville v. Ormrod's Adm'r, 26 Mo. 193. See "Stat- utes," Dec. Dig. (Key No.) §§ lUi, 181, 187-203; Cent. Dig. §§ S54, 259, 263, 266-281. 58 Bennett v. Ward, 3 ■Gaines (N. T.) 259. See "Statutes," Deo. Dig. (Key No.) §§ 174, 181, 187-203; Cent. Dig. §§ 254, 259, 263, 266- 281. 5 9 Banks v. Speers, 97 Ala. 560, 11 South. 841. See "Statutes." ' Dec. Dig. (Key No.) §i 174, 181, 187-203; Cent. Dig. §§ 254, 25.9, 263, 266-281. 6» State ex rel. Norton v. Van Camp, 36 Neb. 9, 91, 54 N. W. 113. See "Statutes," Dec. Dig. (Key No.) §§ 174, 181, 187-203; Cent. Dig. §§ 254, 259, 263, 266-281. 124 PRESUMPTIONS IN AID OF CONSTRUCTION (Gh. 4 the obligation of his contract by his own act, or otherwise to profit by his own wrong." "■ For example, a statute re- lating to corporations required an annual report to be made by every company organized under its provisions, and pro-, vided that, in case of failure to make such report, the trus- tees should be jointly and severally liable "for all the debts of the company then existing and for all that shall be con- tracted before such report shall be made." This language was broad enough to include debts due from the corpora- tion to individual trustees. But it was held that "the fun- damental rule, which lies at the very foundation of all law, that no person, by his own transgression, can create a cause of action in his own favor against another, must be applied to trustees of these corporations," and that debts of that nature were not within the provisions of the statute.*^ But it is a recognized maxim of the common law that "ad ea quae frequentius accidunt jura adaptantur" ; that is, the laws are understood to be adapted to (or made with reference to) those cases which most frequently occur."' Hence the injustice and hardship which are to be avoided by construction, and which the legislature is presumed not to have intended, are not merely such as may occur in in- dividual and exceptional cases only, but such as would fall upon the public generally or be of frequent occurrence ; for, as it has been well said, "individual hardship not inf re- el Maxwell, Interp. (2d Ed.) 249. «2Briggs V. Easterly, 62 Barb. (N. T.) 51. See "Statutes," Dec Dig. (Key No.) §§ nJ,, 181, 187-20S; Cent. Dig. §§ 254, 259, 263, S66- 281; "Action," Dec. Dig. (Key No.) §§ 1, 2; Cent. Dig. §§ 1-ie. 83 2 Co. Inst. 137 ; Broom, Maxims, 43. Similar rules or maxims were recognized In the Roman law. Thus, "Quod seme! aut bis existit prsetereunt legislatores ;" that is, legislators pass over what happens only once or twice. Dig. 1, 3, 6; Broom, Maxims, 46. Again, "Jus constitui oportet In his quae ut plurimum accidunt non quse ex inopinato ;" that is, laws ought to be made with a view to those cases which happen most frequently, and not to those which are of. rare or accidental occurrence. Dig. 1, 3, 3. But see Federal St. & P. V. Passenger Ry. Co. v. Pittsburg, 226 Pa. 419, 75 Atl. 662, where it is held that the argument from inconvenience cannot prevail, in the construction of a statute, when the legal rights of parties are involved. See "Statutes," Dec. Dig (Key No) §§ m, 181, m-211, 2Ii; Cent. Dig. §§ 25i, 259, 263, 266-281. § 44) PKESUMFTION AGAINST INJUSTICE 125 quently results from enactments of general advantage." °* And again, a statute which, construed according to the plain meaning of its words, is, in all cases of ordinary occurrence, in no degree inconsistent or unreasonable, should not be varied by construction in every case merely because there is one possible but highly improbable case in which the law would operate with great severity and against our no- tions of justice. The utmost that can be contended is that the construction of the statute should be varied in that par- ticular case, so as to avoid the injustice.'" Moreover, it is only when the construction is doubtful that the argument from injustice or failure of justice is of force. The presumption that the legislature intends to deal justly is, in a sense, rebuttable ; and it is of no value whatever when the language .of the act is 6lear and explicit. In that case, it is the duty of the court to take the statute as it finds it,, and if injustice results, it is the legislature which must give a remedy, not the judicial tribunals. °° Of course, if the injustice took the form of a violation of any rights secured by constitutional guaranties, the question of the validity of the statute would arise; but that is not a question of interpretation. 6* Maxwell, Interp. (2(1 Ed.) ^247. 85 Miller v. Salomons, 7 Bxch. 475, 549 ; Salomons v. Miller, 8 Exch. 778. This litigation concerned the oath required to be taken by members of Parliament at that date (1852), which concluded with the words "upon the true faith of a Christian," and the "pos- sible but highly improbable case" referred to by the court was that of a Jew being elected to Parliament. See "Statutes," Dec. Dig. (Key No.) §§ X74, 181, 187-203; Cent. Dig. §§ 254, 259, 263, 266- 281. e« Pitman v. Flint, 10 Pick. (Mass.) 504; Goble v. Simeral, 67 Neb. 276, 93 N. W. 235. Such was also the rule of the Roman law. See the remark : "Hoc quidem perquam durum est, sed ita lex scripta est;" this is exceedingly hard, but so the law is written — an observation quoted by Blackstone as used by Ulpian in the civil law, and applied to cases where courts of equity have no power to abate the rigor of the law; that is, In cases where the written law is explicit and positive. Dig. 40, 9, 12, 1; 3 Bl. Comm. 430. And see Ladew v. Tennessee Copper Co. (C. C.) 179 Fed. 245, holding that no considerations of apparent hardship can justify a forced or strained construction of the law as written. See "Statutes," Dec. Dig. (Key No.) §§ 174, 175, 181; Cent. Dig. §§ 254, 259, 263. 126 PRESUMPTIONS IN AID, OF CONSTEUGT'ION (Ch, 4 PRESUMPTION AGAINST INCONVENIENCE 45. It is presumed that the legislature never intends its en- actments to work public inconvenience or private hardship; and if a statute is doubtful or anibigu-: ous, or fairly open to more than one construction, that construction should be adopted which will avoid such results. It is always to be presumed that the legislature intends the most reasonable and beneficial construction of its en- actments, when their design is obscure or not explicitly ex- pressed, and such as will avoid inconvenience, hardship, or public injuries."^ Hence if a law is couched in doubtful or ambiguous phrases, or if its terms are such as to be fairly susceptible of two or more constructions, the courts, haying this presumption in mind, will attach weight to arguments drawn from the inconvenient results which would follow from putting one of such constructions upon the statute, and will therefore adopt the othen** "While it is quite true 87 Richards v. Dagget, 4 Mass. 534; Inhabitants of Somerset v Inhabitants of Dighton, 12 Mass. 383; Gibson v. Jenney, 15 Mass 205. Within the meaning of the rule that statutes should be so construed as to avoid "inconvenience," this term means, as appliied to the public, the sacrifice or jeopardizing of important public Ih- terests or hampering the legitimate activities of the government or the transaction of public business, and, as applied to individuals, it means serious hardship or injustice. Betts v. United States, 132 Fed. 237, Co C. C. A. 452. Thus it is not to be presumed that the legislature intended that such a construction should be put upon the charter of a city as would create serious and useless em- barrassment in the orderly administration of the city's affairs. Kelly v. City of Waterbury, 83 Conn. 270, 76 Atl. 467. See "Stat- utes," Dec. Dig. (Key No.) §§ 174, 181; Cent. Dig. §§ 254, S59, 26S. 68 Knowlton v. Moore, 178 U. S. 41, 20 Sup. Ct. 747. 44 L. Ed. 969 ; United States v. Fisher, 2 €ranch, 358, 2 L. Ed. 304 ; In re Mitchell, 120 Cal. 384, 52 Pac. 799; Village of luka v. Schlosser, 97 111. App. 222; Ayers v. Knox, 7 Mass. 306; Thaxter v.. Jones, 4 Mass. 570 ; Langdon v. Potter; 3 Mass. 215 ; Gore v. Brazier, 3 Mass. 523, 3 Am. Dec. 182; Rogers v. Goodwin, 2 Mass. 475; Phil- lips V. Baltimore, 110 Md. 431, 72 Atl. 902. 25 L. R. A. (N.' S.) 711 ; State V. Rat Portage Lumber Co., 106 Minn. 1, 115 N. W. 162; § 45) 'presumption against inconvenience 127 that where the language of a statute is plain and admits of but one construction, the courts have no power to supply any real or supposed defects in such statute, in order to avoid inconvenience or injustice, inasmuch as that is exclu- sively within the domain of the legislative department, yet, ■v/here the terms of the statute are not plain, but admit of more than one construction, one of which leads to great in- convenience and injustice, and possibly to the defeat or ob- struction of the legislative intent, then the court may, with a view to avoid such results, adopt some other construc- tion more in accordance with the legislative intent." '" "If words are ambiguous, and one construction leads to enor- rnous inconvenience, and another construction does not, the one which leads to the least inconvenience is to be prefer- red." '" Thus, if it is apparent that, by a particular con- struction of a statute in a doubtful case, great public inter- ests would be endangered or sacrificed, it ought not to be presumed that such construction was intended by the leg- islature.'^ This would be the case, for instance, where one proposed interpretation would prevent the state from exer- cising the power of eminent domain over lands pending the adriiinistration of the estate of their deceased owner.'* But if there is no doubt, obscurity, or ambiguity on the face of the law, but its meaning is plain and explicit, the ar- gument from inconvenience has no place.'* "It may be Lamar Water & Electric Light Co. v. City of Lamar, 140 Mo. 145, 39 S. W. 768; Associates of Jersey Co. v. Davison, 29 N. J. Law, 415; Smith v. People, 47 N. T. 330; King v. Beeston, 3 Durn. & E. 592. See "Statutes," Dec. Dig. (Key No.) §§ n4, 181; Cent. Dig. 1125^, 259, 263. e» Carolina Sav. Bank v. Evans, 28 S. C. 521, 6 S. E. 321. See "Statutes," Deo. Dig. {Key A"o.) §§ i7^, 181; Cent. Dig. §§ 254, 259, 263. 10 Reid V. Reid, L. R. 31 Ch. Div. 402. See "Statutes," Dec. Dig. {Key No.) §§ m, 181; Cent. Dig. §§ 254, 259, 263. Ti People ex rel. Hamilton v. Board of Com'rs of Illinois & M. Canal, 4 111. 153. See "Statutes," Dec. Dig. (Key No.) §§ m, 181; Cent. Dig. §§ 254. 259, 263. 72 Kane v. Kansas City, Ft S. & M. By. Co., 112 Mo. 34, 20 S. W. 532. See "Statutes," Deo. Dig. (Key No.) §§ 11 Jh 181; Cent. Dig. §§ 254, 259, 263. 78 In re Alma Spinning Co., L. R. 16 Ch. Div. 681 ; Queen v. 128 PRESUMPTIONS IN AID OF CONSTRUCTION (Ch. 4 proper, in giving a construction to a statute, to look to the effects and consequences when its provisions are ambigu- ous, or the legislative intent is doubtful. But when the law is clear and explicit, and its provisions are susceptible of but one interpretation, its consequences, if evil, can be avoided only by a phange of the law itself, to be effected by legislative and not judicial action." '* To give a single il- lustration of this branch of the rule — ^where a statute gives to a husband the power, by his last will, to extinguish the common-law rights of his widow, unless she thinks proper to renounce the will, and if she desires to defeat the testa- tor's provisions it is required of her to do so by an express dissent, and where the language of the act is not ambigu- ous, and is sufficiently comprehensive to include every wid- ow, whether sane or insane, and the act makes no exception in favor of the latter, the courts cannot make any such ex- ception, from considerations of the hardship and inconven- ience which may result." Further, a proposed construction of a statute cannot be supported by the argument from inconvenience, where the particular hardship or difficulty alleged has been foreseen and provided against by the legislature in other parts or clauses of the same statute.'" Overseers of Tonbridge Parish, li. R. 13 Q. B. Div. 339; United States V. Fislier, 2 Cranch, 358, 2 L. Ed. 304. And see Buggeln v. Cameron, 11 Ariz. 200, 90 Pac. 324; Grieb v. Zemansky, 157 Cal. 316, 107 Pac. 605. See "StaUtea," Deo. Big. (Key No.) §§ 174, iSl; Gent. Dig. §§ S54, 259, Z63. 74 Bosley v. Mattingly, 14 B.' Mon. (Ky.) 89. See "Statutes," Dec. Dig,. {Key No.) §§ 174, ISl; Cent. Dig. §§ 254, 359, 263. 7 5 Collins V. Carman, 5 Md. 503. iSfee "Statutes," Dec. Dig. (Key No.) §§ 174, ISl; Cent. Dig: §§ 254, 259, 263. 78 Steppacher v. McClure, 75 Mo. App; 135. See "Statutes," Dec. ' Dig. (Key No.) §§ 174, ISl; Cent. Dig. §§ 254, S59, 263. 46) PRESUMPTION AGAINST AB8URDITT vl29 PRESUMPTION AGAINST ABSURDITY 46. It is presumed that the legislature does not intend an absurdity, or that absurd consequences shall flov? from its enactments. Such a result will therefore be avoided, if the terms of the act admit of it, by a reasonable construction of the statute." The word "absurdity" has not quite the same meaning in law as in logic or mathematics. In the exact sciences it designates a proposition which is contrary to an axiom or "Gates V. First Nat. Bank, 100 U. S. 239, 25 L. Ed. 580; In- terstate Drainage & Investment Co. v. Board of Com'rs of Free- born County, Minn., 158 Fed. 270, 85 C C. A. 532 ; Fields v. United States, 27 App. D. C. 433 ; Curry v. Lehman, 55 Fla. 847, 47 South. 18; Mayor of City of Jeffersonville v. Weems, 5 Ind. 547; Advisory Board of Coal Creek Tp., Montgomery County, v. Levandowski (Ind. App.) 84 N. E. 346; Bird v. Board of Com'rs of Kenton County, 95 Ky. 195, 24 S. W. 118; Foley v. Bourg, 10 La. Ann. 129; Commonwealth v. Kimball, 24 Pick. (Mass.) 366; In re Lam- brecht, 137 Mich. 450, 100 N. W. 606; Bowers v. Smith, 111 Mo. 45, 20 S. W. 101, 16 L. R. A. 754, 33 Am. St. Rep. 491; Logan County V. Carnahan, 66 Neb. 685, 95 N. W. 812 ; In re Opinion of Justices (N. H.) 72 Atl. 754; State v. People's I^fat. Bank, 75 N. H. 27, 70 Atl. 542; State v. Clark, 29 N. J. Law, 96; People ex rel. Burhans v. City of New York, 198 N. Y. 439, 92 N. E. 18 ; East V. Brooklyn Heights R. Co., 195 N. T. 409, 88 N. E. 751^ 23 L. R. A. (N. S.) 513; Nance v. Southern Ry. Co., 149 N. C. 366, 63 S. E. 116; Stackhouse v. Board of Com'rs of Dillon County, 86 S. C. 419, 68 S. B. 561; People ex rel. v. De Quelle,- 47 Colo. i3, 105 Pac. 1110 ; State v. Williams, 173 Ind. 414, 90 N. H. 754 ; Gist v. Rackliffe-Gibson Const. Co., 224 Mo. 369, 123 S. W; 921; Scott V. Royston, 223 Mo. 568, 123 S. W. 454; Pruin v. Meredith, 145 Mo. App. 586, 122 S. W. 1107; State ex rel. Ousley v. Turner, 141 Mo. App. 323, ;125 S. W. 531; Hicks v. Krigbaum (Ariz.) 108 Pa:c. 482; Ex parte Prosole (Nev.) 108 Pac. 630; Texas & P. Ry. Co. v. Taylor (Tex. Civ. App.) 118 S. W. 1097; In re Howard's Estate, 80 Vt. 489, 68 Atl. 513; Henry v. Tilson, 17 Vt. 479; Gilkey v. Cook, 160 Wis. 133, 18 N. W. 639; Hicks v. Krigbaum (Ariz.) 108 Paft 482. The same rule prevailed also in the Roman law, where it was a maxim that "verba nihil operari melius est quam absurde ;" that is, it is better tffat words should have no operation' at all than that they should operate absurdly. See "Statutes," Deo. Dig. (Key No.) §i 174, 181, 188; Gent. Dig. §§ 254, 259, 263, 266. Black Int.L. — 9 130 PRESUMPTIONS IN AID OF CONSTRUCTION (Ch. 4 self-evident truth. But, as applied to a statute, it means not only that which is physically impossible, but also that which is morally so ; and that is to be regarded as morally impossible which is contrary to reason and common sense, or, in other words, which could not be attributed to a man in his right senses and gifted with ordinary judgment. ''' Hence, by an "absurdity," as the term is used in the rule above stated, we mean anything which is so irrational, un- natural, or inconvenient that it cannot be supposed to have been within the intention of men of ordinary intelligence and discretion. The presumption against absurd conse- quences of legislation is therefore no more than the pre- sumption that the legislators are gifted with ordinary good sense. It is applicable, like all the other presumptions which we are considering, only where there is room for construction by reason of the obscurity or ambiguity of the law. For example, where the act relates to the boundary between counties, and its terms, if taken literally, would have the effect of attaching to one county a tract of land which is entirely separated from that county by an interven- ing space of several miles, it cannot be supposed that this was intended by the legislature, and a more reasonable con- struction will be put upon the act if its terms will warrant if^ Again, a statute of Massachusetts forbade any per- son to disinter a human body, "not being authorized by the selectmen of any town in this commonwealth." In a pros- ecution under this act, it was held sufficient for the indict- ment to aver that the defendant was not authorized by the selectmen of the town where the body had been buried. The statute was thus construed to avoid an absurd and in- convenient result. For, said the court, as oral testimony can alone be admitted on criminal trials, where the facts are provable by witnesses, the consequence of a different con- 78 state V. Hayes, 81 Mo. 574. This also accords with the maxim of Lord Coke: "Lex semper intendit quod convenlt ratloni." Co. Litt. 78b. See "Statutes," Dec. Dig. {Key 2Vo.) §§ 174, 181, 188; Cent. Dig. §§ 25J,, S59, 263. S66. 7 Perry County v. Jefferson County, 94 III. 214. See "Statutes," Deo. Dig. (Key A^o.) §§ 174, 181, 188; Cent. Dig. §§ 185^, S59, 263, 266. § 46) PRESUMPTION AGAINST ABSFRDITT 131 struction would be "that the officers of every town, to the number of 300 or 400, must be summoned and give their personal attendance in the court where the prosecution is pending. We hazard nothing in saying that the legislatoe never intended such an absurdity." *" So again, a require- ment in an act relating to a turnpike road that the "width" of the macadam shall not be less than 8 inches, nor more than 15 inches, will be construed as a requirement that the "depth" of the macadam Shall be as specified, as a literal interpretation would lead to an absurdity.*^ But it must be observed that if the legislature will enact an absurdity in clear and specific terms, the courts are not at liberty to divert the statute from its intended object by any process of construction. If the absurdity is an impos- sibility, the act will be inoperative; otherwise, it must be executed exactly as it stands. It has been said by Jervis, C. J. : "If the precise words used are plain and unambigu- ous, in our judgment we are bound to construe them iii their ordinary sense, even though it should lead, in our view of the case, to an absurdity or manifest injustice. Words may be modified or varied when their import is doubtful or obscure ; but we assume the functions of legis- lators when we depart from the ordinary meaning of the precise words used, merely because we see, or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning." ** 80 Commonwealtli v. Loring, 8 Pick. 370. See "Statutes," Dec. Dig. (Key No.) §§ 174, 181, 18H; Cent. Dig. §§ 25h, 259, 263, 266. SI Bird V. Board of Com'rs of Kenton County, 95 Ky. 195, 24 S. W. lis. See "Statutes," Dec. Dig. (Key No.) §§ 174, 181, 188; Cent. Dig. §§ 25i, 259, 263, 266. 82 Abley v. Dale, 20 L. J. C. P. (N. S.) 233. And see Woodward V. Watts, 2 El. & Bl. 452. See "Statutes," Dec. Dig. (Key No.) §i 17i, 181, 188, 189; Cent. Dig. §§ 254, 259, 263, 266, 268. 132 PRESUMPTIONS IN AID OF CONSTRUCTION (Oh. 4 PRESUMPTION AGAINST INEFFECTIVENESS 47. It is presumed that the legislature intends to impart to its enactments such a meaning as will render them operative and effective, and to prevent per- sons from eluding or defeating them. Accordingly, in case of any doubt or obscurity, the construction ■will be such as to carry out these objects. In construing a statute, of whatever class it may be, an interpretation must never be adopted which will render the act ineffectual or defeat its purpose, if it will admit of any other reasonable construction; but, on the contrary, the legislative intention to make an efficient and enforceable law must be presumed, and the construction must be such as to give it force and effect and accomplish the purposes for which it was designed.** Thus, for instance, if a pro- posed construction of a statute would involve interference by state law with proceedings in the federal courts, it will be rejected, if another and sensible interpretation can be found; for it must be presumed that the legislature knew it had no power to authorize such interference and that it could not have intended to enact a law which would be il- legal and ineffectual.'* 83 The Emily and The Caroline, 9 Wheat. 381, 6 L. Ed. 116; Kaiser Land & Fruit Co. v. Curry, 155 Cal. 638, 103 Pac. 341;- Slmmons v. California Powder Works, 7 Colo. 285, 3 Pac. 420; United States v. Day, 27 App. D. C. 458; Commonwealth v. In- ternational Harvester Co., 131 Ky. 551, 115 S. W. 703, 133 Am. St. Rep. 256; State ex rel. Norvell-Shaplelgh Hardware Co. v. Cook, 178 Mo. 189, 77 S. W. 559; State ex rel. Kaufman v. Martin, 31 Nev. 493, 103 Pac. 840; Hettel v. First Judicial District Court, 30 Nev. 382, 96 Pac. 1062, 133 Am. St. Rep". 730; State v. Duls, 17 N. D. 319, 116 N. W. 751; Dagger v. Mechanics' & Traders' Ins. Co., 95 Tenn. 245, 32 S. W. 5, 28 L. R. A. 796; State v. Pollman, 51 Wash. 110, 98 Pac. S8. It was an ancient maxim of the common law that "Interpretatlo fienda est ut res magls valeat quam pereat." Black, Law Diet. See "Statutes," Dec. Dig. (Key No.) S ISA- Cent Dig. § 262. 8* Reynolds v. Enterprise Transp. Co., 198 Mass. 590, 85 N. B. 110. See "Statutes," Dec. Dig. (Key No.) § 184; Ocnt. Dig. § 262. " § 47) PRESUMPTION AGAINST INEFFECTIVENESS 133 On the same principle, the construction should not be such as will enable persons to elude the provisions of the law, or escape its consequences, or defeat the objects for which it was ordained, if this can be avoided."* For exam- ple, where a literal construction of certain words in an act imposing a tax on dividends of a corporation would place it in the power of the directors of the corporation to declare dividends in such a manner as to escape all taxation, such construction will not be adopted, if the act is -reasonably susceptible of another construction whereby a revenue is secured.** But yet, if the act is expressed in plain terms without ambiguity, the construction indicated by the face of it is not to' be rejected merely because it may render it possible for persons to practice frauds upon the act; such conse- quences are never to be presumed; and no presumption against the existence or grant of a power can be drawn from the fact that if may possibly be abused."' As re- marked by the court in New YorJc, in a case where this prin^ ciple. was involved : "It is said that this renders the statute inoperative, and that tliis result must be avoided. This is" a plausible but not a valid or sound position. There . is nothing in the constitution, or in any legal principle^ to prevent the legislature from passing an act with provisions which render it inoperative. When different constructions may be put upon an act, one of which will accomplish the purpose of the legislature, and the other render the act nugatory, the former should be adopted ; but when the pro- visions of the act are such that to make it operative would violate the declared meaning of the legislature, courts should be astute in construing it inoperative." '* To the same effect is a saying of Lord Tenterden, in a case often 85 Thompson v. State, 20 Ala. 54. Bee "Statutes," Deo. Dig. {Eev No.) § 184; Gent. Dig. § 262. 88 City of Philadelphia v. Ridge Ave. Pass. Ry. Co., 102 Pa. 190, See "Statutes," Deo. Dig. (Key No.) § 18.',; Cent. Dig. § 262. 87 Opinion of Justices, 22 Pick. (Mass.) 571. See "Statutes," Deo. Dig. (Key No.) § 184; Cent. Dig. § 262. 88 Farmers' Bank of Fayetteville v. Hale, 59 N. Y. 53. See "Stat- utes," Dec Dig. (Key No.) § 184; Cent. Dig. § 262. 13i PRESUMPTIONS IN AID OF CONSTRUCTION (Ch. 4 referred to in this connection. "Our decision," said this learned judge, "may in this particular case operate to de- feat the object of the act, but it is better to abide by this consequence than to put upon it a construction not war- ranted by the words of the act, in order to give effect to what we may suppose to have been the intention of the legislature." *" PRESUMPTION AS TO PUBLIC POLICY 48. It is presumed that the legislature intends its enact- ments to accord with the principles of sound pub- lic policy and the interests of public morality, not to violate them; and due weight should be given to this presumption in the construction of a doubt- ful or ambiguous statute. It must always be supposed that the legislative body de- signs to favor and foster, rather than to contravene, that public policy which is based upon the principles of natural justice, good morals, and the settled wisdom of the law as applied to, the ordinary affairs of life. Consequently, if the statute is so worded as to admit of more than one interpre- tation, that construction should be put upon it which will carry out this presumed intent.'" For example, a statute 88 King V. Barham, 8 Barn. & C. 99. See "Statutes," Dec. Dig. (Key No.) § 184; Cent. Dig. § 262. , ooAicardi v. State, 19 Wall. 635, 22 L. Ed. 215. Where either of two constructions may with propriety be adopted, it is the duty of the court to adopt that one best calculated to protect the public against fraud and imposition, though it may work hardship in individual instances. Stern v. Fargo (N. D.) 122 N. W. 403, 26 L. R. A. (N. S.) 665. So, also, in general, the courts must assume that legislation was not intended to beget anomalies, and they must exhaust the limits of legitimate construction before affixing to it any such consequences. People v. Ahearn, 196 N. Y. 221, 89 N. B. 930, 26 L. R. A. (N. S.) 1153. But the fact that a certain con- struction of a statute is a departure from the former policy of the state does not affect the duty of the court to construe it in that manner when the intention of the legislature is clearly ap- parent. Skelton v. State, 173 Ind. 462, 90 N. E. 897. See "Stat- § 4:8) PRESUMPTION AS TO PUBLIC POLICY 13S should not be so construed, if it can reasonably be avoided, as to authorize or permit a man to be a judge in his own, cause, or to determine his right to an office of profit or trust."^ As it has been said by the Supreme Courtof Mas^ sachusetts, the language of a statute is to be taken in its natural import, "unless the intention resulting from the or- dinary import of the words be repugnant to sound, ac* knowledged principles of national policy."'' And if that in*- tention be repugnant to such principles of national policy,' then the import of the words ought to be enlarged or re- strained so that it may comport with those principles, un- less the intention of the legislature be clearly and mani- festly repugnant to them. For although it is not to be pre- sumed that the legislature will violate principles of public policy, yet an intention of the legislature repugnant to those principles, clearly, manifestly, and constitutionally ex- pressed, must have the force of law." '"' In an important case before the Supreme Court of the United States, that tribunal declared that it was historically true that the American people are a religious people, as shown by the religious objects expressed by the original grants and char- ters of the colonies, and the recognition of religion in the most solemn acts of their history, as well as in the consti- tutions of the states and of the nation; and therefore the courts, in construing statutes, should not impute to any utes," Deo. Dig. (Key No.) §§ 174, 181, m, 18S; Cent. Dig. §§ 254, 259, 262, 263, 266. »i Commonwealth v. MeCloskey, 2 Eawle (Pa.) 369 ; Day v. Sa- vadge, Hob. 85; Queen v. Owens, 2 El. & El. 86. But although it is contrary to the general rules of law to make a person a judge in his own cause, it has been iiitimated that the legislature. In a proper casej might depart from this rule, and in that event it would be the duty of the courts to sustain the enactment. But an Intention of 'the legislature to bring about such a result should not be inferred except from very clear and explicit provisions. Mersey Docks Trustees v. Gibbs, L. R. 1 H. L. 93, 110. See "Statutes," Deo. Dig. (Key No.) §§ 174, ISl, 184, 188; Gent. Dig. §§ 254, ^39, 262, 263, 266. 92 The context shows tliat the "public policy" of the state is here meant, and not that of the nation in the wider sense. 93 Opinion of Justices, 7 Mass. 523. See "Statutes," Dec. Dig. (Key No.) §§ 174, 181, 184, 188; Cent. Dig. §§ 234, ^59, 262, 263', 266. 136 PRESUMPTIONS IN AID OF CONSTUUCTION ' (Ch. 4 legislature a purpose of action against or in derogation of religion.** But it should be remembered that considerations of pub- lic policy are not to be taken into account in determining the validity of a statute, but only in its construction. If it does not violate any provision of the constitution, it cannot be declared void merely because it contravenes some rule or principle of public policy. But if the statute is ascer- tained or admitted to be constitutionally valid, then the question of interpretation may arise, and in the solution of this question it is permissible to consider its effect with reference to the settled principles of public policy."' piRESUMPTION AGAINST IRREPEALABLE LAWS 49. It is always to be presumed, in case of doubt or ambi- guity, that the legislature does not intend to dero- gate from the authority of its successors, to make irrepealable laws, or to divest the state of any por- tion of its sovereign powers. "Acts of Parliament derogatory from the power of subse- quent Parliaments bind not." »» This maxim is not capable in all cases of being applied to the acts of Congress or of the state legislatures; but there is, in this country, a pre- sumption that no legislative body intends to fetter the hands of its successors by the enactment of laws which ca;hnot be repealed or modified by them. In a case in Wis- consin, It appeared that a. charter of a city declared that hone of its provisions should be considered as repealed by siOhurdi of Holy Trinity v. United States, 143 U. S. 457, 12 Sup. Ct. 511, 36 L. Ed. 226. See "Statutes," Dec. Dig. (Key No) §§ nJt, 181, m, 188; Cent. Dig. §§ 85^, 259, 262, 263, 266. 9B Baxter v. Tripp, 12 R. I. 310. And see State ex rel. Wolfe v. Parmenter, 50 Wash. 164, 96 Pac. 1047, 19 L. R. A. (N. S.) 707, holding that the courts have nothing to do with the policy of a statute, except' in so far as it may explain the intention of the legislature. See "Statutes," Dec. Dig. (Key No.) §§ I7i 181 18i 188; Cent. Dig. §§ 251 ^59, 262, 263, 266. ' »9l Bl. Comm. 90. § 49) PRESUMPTION AGArNST IRREPEALABLE LAWS 137 any-general law contravening them, unless the purpose to repeal them should be expressly set forth in such law. ti was held, nevertheless, that the charter might be repealed by implication by a general law; for, it was said, one leg- islature cannot, by such a provision, bind a future legisla- ture to a particular mode of repeal."' This rule finds its most important application in those cases where it is claimed that a statute or charter involves the surrender, to an individual or corporation, of some por- tion of the sovereign power of the state, in such a manner as to be irrevocable by any future legislature; as, for in- stance, where it is alleged that there has been a grant of exemption from taxation, made in such a shape as to con- stitute a contract, and therefore to be beyond the rea,clj of subsequent legislation, or a grant, similarly made, of a mp- nopoly or exclusive franchise. In these cases the legal doc- trine is clear and well settled. It will never be presumed that the legislature intends to make such an irrevocable contract. On the contrary, the presumption is always against such an intention. All doubts will be resolved in favor of the state. No such irrepealable grant can be sus- tained except upon the clearest and plainest terms, linequivr ocally manifesting the legislative intention claimed."' f KeUogg V. City pf Oshkosh, 14 Wis. 623. See "Statutes," Dec, Dig. (Key No.) § U9; Cent. Dig. § 2i8. osGilman v. Sheboygan, 2 Black, 510, 17 L. Ed. 305; Providence Bank v. Billings, 4 Pet. 514, 7 L. Ed. 939 ; Delaware Railroad Tax, 18 Wall. 206, 21 L. EH. 888; Pennsylvania R. Co. v. Canal Co^m'rs, 21 Pa. 9; Detroit v. Detroit & H. P. R. Co., 43 Mich. 140, 5' Ni, W. 275 ; Probasco v. Town of Moundsville, 11 W. Va. 501 ; Bennett v; MeWhorter, 2 W. Va. 441; Mayor, etc., of City of Mobile v. Stein, 54 Ala. 23; Brummitt v. Ogden Waterworks Co., 33 Utah, 289, 9^ Pac. 828 ; Capitol City Light & Fuel Co. v. City of Tallahasseej 42 Fla. 462, 28 South. 8IQ ; Charles River Bridge v. Warren Bridge, 11 Pet. 420, 9 L. Ed. 773; Boston Beer Co. v. Massachusetts, 97 TJ. S. 25, 24 L. Ed. 989; Shreveport Traction Co. v. City of Shreve^ port, 122 La. 1, 47 South. 40, 129 Am. St. Rep. 345; City of St. Louis V. United Rys. Co., 210 U. S. 266, 28 Sup. Ct. 630, 52 L; Ed. 1054; Village of Hyde Park v. Oakwoods Cemetery 'Ass'n, 119 111. 141, 7 N. E. 627; Commonwealth v. Broad St. Rapid Transit Sfc R. Co., 219 Pa. 11, 67 Atl. 958 ; HoUister v. State, 9 Idaho, 8, 71 Pac. 541. See "Statutes," Dee. Dig. (Key No.) § 149; Cent. Dig: I 218. J38 PKESUMPTIONS IN AID OF CONSTRUCTION Ch. ,4) PRESUMPTION AS TO JURISDICTION OF COURTS 50. A statute will not be construed as ousting or restrict- ing the jurisdiction of the superior courts, or as vesting a new jurisdiction in them, unless there be express words or a necessary implication to that effect. Statutes which merely give affirmatively jurisdiction to one court do not oust that previously existing in another court; and the jurisdiction of courts of equity, or of the higher courts proceeding according to the course of the common law, is never taken away except by plain words or by an equally plain intendment."" "It is, perhaps, on the general presumption against an intention to disturb the established state of the law, or to interfere with the vested rights of the subject, that the strong leaning now rests against construing a statute as ousting or restricting the jurisdiction of the superior courts ; although it may owe its origin to the pecuniary interests of the judges in former times, when their emoluments depended mainly on fees, it is supposed that the legislatvire would not make so im- portant an innovation without a very explicit expression of its intention." ^'"' Hence a statute which merely enlarges the powers of courts of law in respect to usury does not take away the jurisdiction of the chancery courts.^"^ And a statute which authorizes an action at law on a lost note does not deprive the court of equity of its jurisdiction in such cases.^"^ But while this rule is well established, yet o» Barnawell v. Threadgill, 40 N. C. 86 ; Gates v. Knight, 3 Durn. & E. 442 ; Earl of Shaftesbury v. Russell, 1 Barn. & C. 666 ; Overseers of Poor V. Smith, 2 Serg. & R. (Pa.) 363 ; Lyman v. Gramercy Club, 28 App. Div. 30, 50 N. Y. Supp. 1004 ; Kansas City, to Use of Drake, V. Summerwell, 58 Mo. App. 246. See "Statutes," Dec. Dig. (Key No.) § 212; Cent. Dig. § ZS9. 100 Maxwell, Interp. (2d Ed.) 152. 101 McKoin v. Gooley, 3 Humph. (Tenn.) 559. See "Osury," Dec. Dig. (Key No.) § 93; Gent. Dig. § WX. 102 Crawford v. Childress' Ex'rs, 1 Ala. 4S2 ; Tindall v. Childress, 2 Stew. & P. (Ala.) 250. See "Lost Instruments," Deo. Dig. (Key No.) § H; Cent. Dig. §§ S8, 29. § 50) PKESUMPTION AS TO JURISDICTION OF COBRT8 1^9 it is equally true that when the object and intent of the statute manifestly require it, words that appear to be per- missive only may be construed as obligatory, and will then have the effect of ousting the courts of their jurisdiction.^"" As a general rule, statutes which confer jurisdiction in cer- tain cases upon inferior tribunals are not understood as ailecting the power of control and supervision which the su- perior courts may ejj^ercise over the proceedings of such tribunals. This matter is more fully explained by . Lord Mansfield in an opinion from which we quote as follows : "If a new offense is created by statute, and a special juris- diction out of the course of the common law is prescribed, it must be followed. If not strictly pursued, all is a nullity and coram non judice. In such case, there is no occasion to oust the common-law courts, because, not being an of- fense at common law, but punishable only sub modo, in the particular manner prescribed, they never could have juris- diction. But where a new offense is created and directed to be tried in an inferior court established according to the course of the common law, such inferior court tries the of- fense as a common-law court, subject to be removed by writs of error, habeas corpus, certiorari, and to all the con- sequences of common-law proceedings. In that case, this court [the King's Bench] cannot be ousted of its jurisdic- tion without express negative words." ^"^ And "as it is presumed the legislature would not effect a measure of so much importance as the ouster or restric- tion of the jurisdiction of the superior courts without an explicit expression of its intention, so it is equally improb- able that it would create a new, especially a new and exclu- sive, jurisdiction with less explicitness, and therefore a con- struction which would impliedly have this effect is to be avoided." ^"^ Thus, where one statute expressly excludes certain cases from the jurisdiction of a particular court, a 108 Crisp V. Bunbury, 8 Blng. 394. See "Statutes," Dec. Dig. (Key No.) § 212. 101 Hartley v. Hooker, 2 Cowp. 523. See "Statutes," Dec. Dig. {Key No.) § 212. 106 Endlich, Interp. § 155. 14Q PRESUMPTIONS IN AID OF CONSTRUCTION (Ch. 4 subsequent statute which indicates that the court is then supposed to have jurisdiction of them is insufficient to con- fer it."° But "although an unfounded assumption by the legislature that a particular jurisdiction existed might not alone be sufficient to create it, yet when the jurisdiction is assumed to exist, and explicit provision is made as to the form and mode of its exercise, the authority to proceed in that form and mode carries with it, by necessary implica- tion, jurisdiction of the proceedings." ^^ 106 Ludington v. United States, 15 Ct. CI. 453. And see In re CoritMted Election of McNeill, 111 Pa. 235, 2 Atl. 341. See "Stat- utesi" Dec. Dig. (Key No.) | 212. 107 State V. Miller, 28 Wis. 634; Oullen v. Trimble, L. R. 7 Q. B. 416. See "Statutes," Dec. Dig. (Key No.) § 212. §§ 51-62) CONSTRUCTION OF LANGUAGB) 141 CHAPTER V LITERAL AND GRAMMATICAL CONSTRUCTION, MEANING OF LANGUAGE, AND INTERPRETATION OP WORDS AND PHRASES 51-52. Primary Rule as to Meaning of Language of Statute. 53-54. Use of Same Language and Change of Language. ,. 55. Grammatical Interpretation. 56. Inapt and Inaccurate Language. 57. Statute Devoid of Meaningi 58. Correction of Clerical Errors and Misprints. 59. Effect of Misdescriptions and Misnomers. 60. Rejection of Surplusage. 61. Interpolation of Words. 62. Construing Terms with Reference to Subject. 63. Technical and Popular Meaning of Words. 64. Technical Legal Terms. 65. Words Judicially Defined. 66. Commercial and Trade Terms. 67. Associated Words. 68-70. General and Special Terms. 71. General Terms Following Special Terms. 72. Express Mention and Implied Exclusion, 73. Relative and Qualifying Terms. 74. Reddendo Singula Singulis. 75. Conjunctive and Disjunctive Particles. 76. Number and Gender of Wards. 77-81. Computation of Time. PRIMARY RULE AS TO MEANING OF LANGUAGE OF STATUTE 51. If the words and phrases of a statute are not obscure or ambiguous, its meaning and "the intention of the legislature must be determined from the language employed, and, where there is no ambiguity in the words, there is no room for construction. 52. Words used in a statute are to be read in the natural and ordinary sense given to them customarily by those who use the Ijmguage with propriety; the approved popular meaning being given to words of 142 ' CONSTEUCTION OP LANGUAGE (Ch. 5 common speech and the approved special meaning to technical terms or words of art, unless there is reason to believe, from the face of the statute, that the words were intended to bear some other mean- ing. In determining the legislative intent and purpose of an enactment, its language is first of all to be considered, in its natural and ordinary signification, and if there is no obscurity or ambiguity on the face of it, there is neither occasion nor justification for any process of construction, but the statute must be applied and enforced exactly as it stands.^ In such a case the court is not at liberty to dis- tort the words of the law from their apparent meaning, nor to substitute one word for another, and thereby change or reverse the express language of the act." But if the reading of the language of the act according to its prima facie im- port leads to a manifest contradiction of the apparent pur- pose of the statute, or if it is evident, from a view of the whole statute, or of other laws on the same subject, that the meaning which the legislature had in mind and meant to express is different from the literal import of the lan- guage used, it is the intention, and not the words, which 1 Chudnovskl v. Eckles, 232 111. 312, 83 N. B. 846 ; First Nat. Bank of Peoria v. Farmers' & Merchants' Nat. Bank of Wabash, 171 Ind. 823, 86 N. E. 417; Id. (Ind. App.) 82 N. E. 1013; Barron V. Kaufman, 131 Ky. 642, 115 S. W. 787; Leoni Tp. v. Taylor, 20 Mich. 148; Ex parte Brown, 21 S. D. 515, 114 N. W. 303; Gross V. Colonial Assur. Co. (Tex. Civ. App.) 121 S. W. 517; Waldron v. Taylor, 52 W. Va. 284, 45 S. E. 336. The natural and obvious meaning of the language of a law must be preferred, save in rare cases, to a signification evolved only by diligent search. United States V. Colorado & N. W. R. Co., 157 Fed. 321, 85 G. C. A. 27, 15 L. K. A. (N. S.) 167. See "Statutes," Deo. Dig. (Key No.) §§ 188, 190; Cent. Dig. §§ S66, 267, 269, 276. 2 State V. Scott, 36 W. Va. 704, 15 S. E. 405. Ordinarily the words of a statute should not be so loosely construed as to divert the law from its prescribed statutory channel, nor construed so strictly as to take the life out of the law. Murphy v. Wabash R. Co., 228 Mo. 56, 128 S. W. 481. See "Statutes," Dec. Dig. (Key No.) §§ 188, 190; Cent. Dig. §§ 260, 267, 269, 276. §§ 51-52) PRIMARY RULE AS TO MEANING 143 must govern.' Also, if the words used are of doubtful or ambiguous meaning, their signification may be enlarged or restricted as rrlay be necessary to make them conform to the intention of the legislature,, when that intention is clearly and certainly ascertained by the process of con- struction.* It is also a part of this rule that the words and phrases employed in a statute are to be read in their natural and or- dinary sense, according to good and approved usage, unless it is apparent, on the face of the enactment, that they were meant to bear some other signification." As to technical 3 Curry v. Lehman, 55 Fla. 847, 47 South. 18; Glaser v. Roths- child, 221 Mo. 180, 120 S. W. 1, 22 L. R. A. (N. S.) 1045 ; James v. United States Fidelity & Guaranty Co., 133 Ky. 299, 117 S. W. 406; Emerson v. Boston & M. R. R., 75 N. H. 427, 75 Atl. 529, 27 L. R. A. (N. S.) 331. It Is the duty of a court to restrain the operation of a statute within narrower limits than its words import, if it is satisfied that their literal meaning would extend to cases which the legislature never designed to include. Coal & Coke Ry. Co. v. Conley (W. Va.) 6T S. E. 613. See "Statutes," Deo. Dig. (Key No.) §§ 181-188, 190; Cent. Dig. §§ 259-267, 369, 276. i State ex rel. Aull v. Field, 112 Mo. 554, 20 S. W. 672 ; Glaser V. Rothschild, 221 Mo. 180, 120 S. W. 1, 22 L. R. A. (N. S.) 1045; Northern Indiana Ry. Co. v. Lincoln Nat. Bank (Ind. App.) 92 N. B. 384. See "Statutes," Dec. Dig. {Key No.) §§ 181-188, 190; Cent. Dig. §i 259-267, 269, 276. 5 Wadsworth v. Boysen, 148 Fed. 771, 78 C. C. A. 437 ; SchaefCer V. Burnett, 120 111. App. 70; Huber v. Robinson, 23 Ind. 137; Mc- Farland v. Missouri, K. & T. Ry. Co., 94 Mo. App. 336, 68 S. W. 105 ; People ex rel. McNeile v. Glynn, 128 App. Dlv. 257, 112 N. T. Supp. 695 ; Town of Ft. Edward v. Hudson Valley Ry. Co., . 127 App. Div. 438, 111 N. T. Supp. 753; Law v. Smith, 34 Utah, 394, 98 Pac. 300; Norfolk & Portsmouth Traction Co. v. Ellington's Adm'r, 108 Va. 245, 61 S. E. 779; Daniel v. Slmms, 49 W. Va. 554, 39 ,S. E. 690; Osterholm v. Boston & Montana Consol. Copper & SUver Min. Co., 40 Mont. 508, 107 Pac. 499; State v. Cronin, 41 Mont. 293, 109 Pac. 144; Joplin Supply Co. v. West (Mo. App.) 130 S. W. 156; Doyle v. City of Troy, 138 App. Div. 650, 122 N. T. Supp. 704; People ex rel. Lichtenstein v. Langan, 196 N. Y. 260, 89 N. E. 921, 25 L. R. A. (N. S.) 479 ; State ex rel. Applegate v. Taylor, 224 Mo. 393, 123 S. W. 892. See, also, the maxim, "est ipsorum legislatorum tanquam viva vox," the voice of the legislators them' selves is like the living voice ; that is, the language of a statute is to he understood and interpreted like ordinary spoken language. 144 CONSTRUCTION OF LANGUAGE (Ch. 5 terms and the words and phrases peculiar to Some particu- lar science or art, they are to be understood in their tech- nical sense ; that is, according to the meaning given to them by persons conversant with the particular science or art, and who use its terminology with exactness and propriety.' But words of common speech are to be understood in their correct popular sense. On the one hand, it must be as- sumed that the legislature expresses itself in a manner ap- propriate to the dignity and solemnity of a statute; and hence its words must be taken in the sense accorded to them by those who use the English language with correct- ness and perspicuity, not in any secondary^ colloquial, or slang sense, though the particular expression may be so used in the speech of the vulgar. On the other hand, the courts are not at liberty to apply subtle and forced inter- pretations to the words of a law, and read them in a re- condite or unfamiliar sense, unless compelled by the ob- scurity of the act, but must take them in their primary and natural sense, and assume that, if some other meaning had been intended, some other appropriate expressions would have been employed.' But where words having more than one meaning in common usage are employed in a statute, they shquld be given that meaning which will best serve the purposes of the statute, if it is not repugnant to the con- text.« 10 Coke, lOlb. See "Statutes," Dee. Vig. (Key Vo.) §§ 188, 189; Cent. Dig. §§ 266-B68, 2116. 8 See Infra, p. 175. ' Town of Southlngton v. Southington Water Co., 80 Conn. 646, 69 Atl. 1023; Rothschild v. New York Life Ins. Co., 97.111. App. 547. See "Statutes," Dec. Dig. {Key No.) §§ 188, 189; Cent. Dig. §§ S66- 268, 276. 8 People V. Ballhorn, 100 111. App. 571 ; City of Chicago v. Green, 238 111. 258, 87 N. B. 417. See "Statutes," Deo. Dig. {Key No.) |§ 188, 189, 208; Cent. Dig. §§ 266-268, 276, 285. g§ 53-54) CSB OF SAME LANOUAQE 145 USE OF SAME LANGUAGE AND CHANGE OF LANGUAGE 53. Where the same language is used repeatedly in a stat- ute in the same connection, it is presumed to bear the same meaning throughout the act; but this presvunption will be disregarded where it is neces- sary to assign different meanings to the same terms in order to make the statute sensible, consistent, and operative. 54. Conversely, where different language is used in the same connection, in different parts of the statute, it is presumed that the legislature intended it to have a different meaning and effect. Where the same word or phrase is used more than once in the same act in relation to the same subject-matter, and looking to. the same general purpose, if in one con- nection its meaning is clear, and in another it is other- wise doubtful or obscure, it is, in the latter case, to re- ceive the same construction as in the former, unless there is something in the connection in which it is employed plainly calling for a different construction.' But the pre- sumption that the same meaning is intended for the same expression in every part of the act is not controlling; and where it appears that, by giving it effect, an unreason- able result will follow, and the manifest object of the statute be defeated, the courts will disregard the presump- tion, and will attach a meaning which will make the act 8 Rhodes v. Weldy,' 46 Ohio St. 234, 20 N. E. 461, 15 Am. St. Rep. 584 ; Raymond v. Cleveland, 42 Ohio St. 529 ; James v. DuBois, 16 N. J. Law, 293; Pitte v. Shipley, 46 Cal. 161; in re County Seat of tiinn County, 15 Kan. 500; Queen v. Poor Law Comm'rs, 6 Ad, & El. 56; In re National Savings Bank Ass'n, L. R. 1 Ch. App. 547; Courtauld v. Legh, 4 Exeh. 126; Gunning v. People, 86 111. App. 174; Darby v. McCarrol, 5 Hayvv. (Tenn.) 286; Postal Tel. Cable Co. V. Farmville & P. R. Co., 96 Va. 601, 32 S. E. 468; Gernert v. Limbach, 163 Ala. 413, 50 South. 903; Ryan v. State (Ind.) 92 N. B. 340. See "Statutes," Dec. Dig. (Key No.) § 209; Cent. Dig. § $86. Black Ini.L. — 10 146 CONSTRUCTION OF LAIfGUAGB {Gh. 5 consistent with itself, and carry out the true purpose and intent of the legislature." Hence, when the general mean- ing and intention of the act are perfectly plain, it may be necessary to assign different meanings to the same word as used in different sections of the statut-e, or even in dif- ferent sentences in the same section. Thus, in an English case, the act repeatedly used the word "rent" ; but in order to carry out its meaning and purpose, and make it sensible and intelligible, it was considered necessary to take the word as meaning sometimes "rent charge" and sometimes "rent reserved." '■'■ Again, an act of Parliament provided that "whosoever, being married, shall marry any other per- son during the life of the former husband or wife, shall be guilty of felony." A case arose in which the second mar- riage, aside from its bigamous character, would have been void by reason of a legal disability of the parties. It was argued that, in construing this statute, the same effect must be given to the word "marry" in both parts of the sentence, and that, consequently, as the first marriage must neces- sarily be a perfect and binding one, the second must be of equal efficacy in order to constitute bigamy, or, at least, that the words "shall marry" must be read as meaning "shall marry under such circumstances as that the second marriage would be good but for the existence of the first." But the court refused to accept this reasoning. Looking at the general purpose. and meaning of the statute, and the evil which it was intended to prevent or punish, it was ad- judged that the word "marry" could not have been intended to be used in the same sense in both parts of the sentence, but that "shall marry" should be taken to mean "shall go through the form and ceremony of marriage with another person," and consequently that a second marriage, the first remaining undissolved, would come within the statute, even though it might otherwise have been void or voidable for 10 Henry v. Trustees of Perry Tp., 48 Ohio St. 671, 30 N. E. 1122; State V. Knowles, 90 Md. 640, 45 Atl. 877, 49 L. R. A. 695. See "Statutes," Dec. Dig. (Key No.) § 209; Cent. Dig. § 286. 11 Angell v. Angell, 9 Q. B. 328. See "Statutes," Dec. Dig. (Key No.) § 209; Cent. Dig. 8 286. §§ 53-54) USE OF SAME LAKGUAGE 147 diriment impediments or lack of compliance with formal requisites.^ ^ The general rule (with its exception) as above stated, is confined to the case of the same language being used in different places in the same statute. "The intention of one legislative body in the use and application of a term, in an act passed by it, is not conclusive as to the intention of another and different legislative body in the use of the term in the passage of another and different act. True, it is proper to look at such a circumstance, in arriving at a cor- rect interpretation of the subsequient law, but still that in- terpretation must be such as is demanded by the terms of the act itself, if they are clear and unambiguous. "^° And there is no rule of construction requiring the same meaning to be given to the same word used in different connections in different statutes.** If, in a subsequent statute on the same subject as a for- mer one, the legislature uses different language in the same connection, the courts must presume that a change of the law was intended.*^ If a provision in one statute, which has received a judicial construction, is inserted in an- other, the same construction will be given to it ; but if the clause varies, it shows a different intention in the legisla- ture.*" 12 Queen v. Allen, L. R. 1 C. C. R. 367. Bee "Statutes," Deo. Dig. (Key Wo.) § 209; Gent. Dig. § 286. i3Feagin v. Comptroller, 42 Ala. 516. See "Statutes," Dec. Dig. (Key No.) § 209; Cent. Dig. % 2S6. 1* Rupp V. Swlneford, 40 Wis. 28. See "Statutes," Dec. Dig. (Key No.) § 209; Cent. Dig. § 2S6. 15 Lehman, Durr & Co. v. Robinson, 59 Ala. 219; Rich v. Keyser, 54 Pa. 86; Hasely v. Ensley, 40 Ind. App. 598, 82 N. B. 809. See "Statutes," Dec. Dig. {Key No.) §§ 305, 225; Gent. Dig. §§ 282, 302, SOS. i« Inhabitants of Rutland v. Inhabitants of Mendon, 1 Pick. (Mass.) 154. See "Statutes," Dec. Dig. (Key No.) § 225%; Cent. Dig. § SOS. 148 CONSTEUCTION OF LANGUAGH (Oh. 5 GRAMMATICAL INTERPRETATION 65. Primarily, a statute is to be interpreted according to the ordinary meaning of its words and the proper grammatical effect of their arrangement in the act. But if there is any ambiguity, or if there is room for more than one interpretation, the rules of gram- mar will be disregarded where a too strict adher- ence to them would raise a repugnance or absurd- ity or would defeat the purpose of the legisla- ture.i' It is to be presumed, in the first instance, that the leg- islature understood the rules of grammar and the use of language, and that they have expressed their will in apt and well-chosen terms. But this presumption will be aban- doned whenever it becomes apparent that th6 result of ad- hering to it would be to make the act absurd, extravagant, or repugnant to other provisions of law. No such intention can be charged to the legislature, if it can be escaped- by construction. Hence, in such cases, grammatical rules and the propriety of language must yield to the intention of the law-making body, to be ascertained by a rational interpre- tation of the enactment. "It is a rule in the construction of statutes that, in the first instance, the grammatical sense of jthe words is to be adhered to. If that is contrary to or inconsistent with any expressed intention, or any declared IT Ohio Nat. Bank v. Berlin, 26 App. D. C. 218: George v. Board of Education, 33 Ga. 344; Boyer v. Onion, 108 111. App. 612; State V. Myers, 146 Ind. 36, 44 N. E. 801 ; United States v. Cohn, 2 Ind. T. 474, 52 S. W. 38 ; State v. Brandt, 41 Iowa, 593 ; State v. Scatter, 95 Minn. 311, 104 N. W. 139; State ex rel. Pearson v. Louisiana & M. R. R. Co., 215 Mo. 479, 114 S. W. 956 ; State, to Use of Rosenblatt, v. Heman, 70 Mo. 441; Jay v. School Dist. No. 1 of Cascade Comity, 24 Mont. 219, 61 Pac. 250; Fremont, E. & M. V. By. Co. V. Pennington County, 20 S. D. 270, 105 N. W. 929; Wa- ters-Pierce Oil Co. V. State, 48 Tex. Civ. App. 162, 106 'S. W. 918; Garby v. Harris, 7 Exch. 591; Metropolitan Board of Works v. Steed, L. R. 8 Q. B. Div. 445 ; Blais v. Franklin (R. I.) 77 Atl. 172. See "Statutes," Deo. Dig. (Key No.) § 189; Cent. Dig. § 268. § 55) GRAMMATICAL INTERPRETATION 149 purpose of the statute, or if it would involve any absurdity, repugnance, or inconsistency in its different provisions, the grammatical sense must then be modified, extended, or abridged, so far as to avoid such inconvenience, but no fur- ther." ^* "The grammatical construction of a statute is one mode of interpretation. But it is not the only mode, and it is not always the true mode. We may assume that the draftsman of an act understood the rules of grammar, but it is not always safe to do so." ^' It was an old and well- recognized rule of the common law, applicable to all writ- ten instruments, that "verba intentioni, non e contra, debent inservire ;" that is to say, words ought to be made subserv- ient to the intent, not the intent to the words.^° Hence, in the construction of statutes, when the intention of the leg- islature can be gathered from the statute, words may be modified, altered, or supplied to give to the enactment the force and effect which the legislature intended.''^ As an example of departing from the strict grammatical sense, we may cite cases in which the future tense has been read as including the present and the past, where that was nec- essary to carry out the meaning of the legislature. Thus, an enabling act relating to married women who "shall come into the state" may apply to one who came into the state 18 Warburton v. Loyeland, 1 Huds. & B. 623, 648. Considerations of grammatical and rhetorical usage are not always controlling in construing a statute, where an intent in conflict therewith is dis- closed, 'but are not unimportant and may influence a doubtful case, and where there is nothing out of accord therewith, either in the particular language or the general intent, they are of controlling force. First Nat. Bank of Peoria v. Farmers' & Merchants' Nat. Bank of Wabash, 171 Ind. 323, 86 N. E. 417 ; Id. (Ind. App.) 82 N. E. 1013. See "Statutes," Dee. Dig. {Key No.) § 1S9; Cent. Dig. § ^68. 10 Fisher v. Corinard, 100 Pa. 63, 69. See "Statutes," Dee. Dig. (Key No.) § 189; Gent. Dig. § 268. 20 Fox's Case, 8 Coke, 93b. See, also. Singer Mfg. Co. v. McCol- iock (C. C.) 24 Fed. 667. See "Statutes," Dec. Dig. (Key No.) § 189; Cent., Dig. § S68. 21 Quin V. O'Keeffe, 10 Ir. C. L. (N. S.) 393; Lyde v. Barnard, 1 Mees. & W. 101 ; Territory ex rel. Sampson v. Clark, 2 Okl. 82, 35 Pac. 882. See "Statutes," Deo. Dig. (Key No.) § 189; Cent. Dig. § 268. 150 CONSTRUCTION OF LANGUAGE (Ch. 5 before the passage of the law.'"' So, where an act provided that certain land "shall be allotted for, and given to," an individual named, it was held that the words were words of absolute donation and passed an immediate interest."^ In another case, the phrase "current expenses of the year" was made to read "expenses of the current year," it being evi- dent that the latter form of words more correctly expressed the legislative intent.^* But it is very necessary to remember that all construction and interpretation has for its sole object to ascertain the meaning and intention of the legislature; that it is never allowable thus to defeat that meaning and intention; and that the meaning of the legislature is primarily to be sought in the words of the law. Hence, the rule which we are now considering is to be taken in connection with that fundamental rule stated in the beginning of this chapter, that if the words of the enactment are free from all doubt and ambiguity, and express a single, definite, and sensible meaning, that meaning is conclusively presumed to be the one which the legislature intended to convey. . Following out the radical idea that the intention of the law-makers is the thing to be sought for and applied, we easily deduce a corollary to the rule immediately under consideration, which may be thus stated: Neither bad grammar nor bad English will vitiate a statute, if the mean- ing of the legislature can be clearly discovered. Awk- ward, slovenly, or ungrammatical phrases and sentences may yet convey a definite meaning; and if they do, the courts must accept it as the meaning of the law-makers.*" 2 2 Maysville & L. R. Co. v. Herrick, 13 Bush (Ky.) 122. And see Malloy V. Chicago & N. W. Ry. Co., 109 Wis. 29, 85 N. W. 130; See "Statutes," Dec. Dig. (Key No.) § 189; Cent. Dig. § Z68. 23 Rutherford v. Greene, 2 Wheat. 196, 4 Tj. Ed. 218. See "Stat- utes," Dec. Dig. (Key No.) § 189; Cent. Dig. § 268. 24 Babcock v. Goodrich, 47 Cal. 488. See "Statutes," Dec. Dig. (Key No.) § 189; Cent. Dig. § 268. 2 6 Kelly's Heirs v. McGuire, 15 Ark. 555; Murray v. State, 21 Tex. App. 620, 2 S. W. 757, 57 Am. Rep. 623 ; State v. Harden, 62 W. Va. 318, 58 S. B. 715. Ambiguity in a statute consists in sus- ceptibility of two or more meanings and uncertainty as to -which was Intended, and mere informality in phraseology, or clumsiness ot § 56) INAPT AND INACCURATE LANGUAGE 151 ' For example, an act provided that townships might -issue bonds when "the consent of a majority of the taxpayers appearing upon the last assessment roll as shall represent a majority of the landed property of the township" should be obtained. Hereupon the court observed: "The only diffi- culty that is or can be suggested is from the awkward and ungrammatical construction of the sentence in using the word 'as' without any proper antecedent. The draftsman was evidently a bad grammarian, or lacked clearness of con- ception sufficient to enable him to carry out the idea with which he began a sentence until he got to the end of it. In the next preceding sentence, the phrase 'such sum of money' is used without anything to which 'such' refers ; but the sentence is intelligible and explicit, and its meaning can- not be changed by interlarding at conjecture some words to amend the grammar or construction." "* INAPT AND INACCURATE LANGUAGE 56. The use of inaptj inaccurate, or improper terms or phrases in a statute will not defeat- the act, pro- vided the real meaning of the legislature can be gathered from the context or from the general pur- pose and tenor of the enactment In such cases, the words in 'question will be interpreted according to that meaning which the legislature actually in- tended to express, although this may involve a de- parture from their literal signification. Where the intent of the legislature, and the object and purpose of a law, are plainly apparent, and such manifest expression, does not make the statute ambiguous, if tlie language Imports one intent with reasonable certainty. State v. Harden, Bupra. But an unscientific and bungling statute cannot be construed by the same strict scientiiic rules as would be applied to one scien- tifically drawn and consistently expressed. Town of Pelham v. Shinn, 194 N. T. 548, 87 N. E. 1128 ; Reynolds v. Bingham, 193 N. T. 601, 86 N. E. 1131. See "Statutes," Dec. Dig. {Key No.) § 189; Cent. Dig. § 268. 2« Lane "v. Schomp, 20 N. J. Eq. 82. See "Statutes," Deo. Dig. {Key No.) § 189; Cent. Dig. § S68. 152 CONSTRUCTION OF LANGUAGE (Ch. 5 intent and purpose are not inconsistent with, or outside the terms of, the law, it is not allowable to permit the intent and purpose to be defeated merely because not defined and declared in the most complete and accurate language.*' "It is generally true that where words used in a statute are clear and unambiguous there is no room left for construc- tion; but when it is plainly perceivable that a particular intention, though not precisely expressed, must have been in the mind of the legislator, that intention will be enforced and carried out, and made to control the strict letter." =" For example, a statute provided that "no execution shall issue against the body of the defendant * * * unless he shall have been held to bail upon a writ of capias ad satisfaciendum." Now there is no such thing known in the 2 7 state ex rel. Van Nice v. Whealey, 5 S. D. 427, 59 N. W. 211; Crocker v. Crane, 21 Wend. (N. T.) 211, 34 Am. Dec. 228 ; McLorinan V. Bridgewater Tp., 49 N. J. Law, 614, 10 Atl. 187 ; St. Louis, I. M. & S. Ry. Co. V. State, 86 Ark. 518, 112 S. W. 150; McKee Land & Improvement Co. v. Williams, 63 App. Dlv. 553, 71 N. T. Supp. 11,41, affirmed 173 N. Y. 630, 66 N. B. 1112; Commonwealth v, Grinstead, 108 Ky. 59, 55 S. W. 720; Fortune v. Board of Cbm'rs of Buncombe County, 140 N. C. 322, 52 S. E. 950 ; Pullen v. Cor- poration Commission, 152 N. C. 548, 68 S. B. 155. See "Statutes," Dec. Dig. {Key No.) §§ 187-203; Cent. Dig. §§ 266-281. 28 state ex rel. Missouri Mut. Life Ins. Co. v. King, 44 Mo. 283. "It has indeed been asserted that no modiacation of the language of a statute is ever allowable in construction, except to avoid an ab- surdity which appears to be so, not tw the mind of the expositor merely, but to that of the legislature; that is, when it takes the form of a repugnancy. In such cases, the legislature shows in one passage that it did not mean what its words signify in another; and a modification is therefore called for and Sanctioned beforehand, as it were, by the author. But the authorities do not appear to support this restricted view. They would seem rather to establish that the judicial interpreter may deal with careless and inaccurate words and phrases in the same spirit as a critic deals with an ob- scure or corrupt text, when satisfied, on solid grounds, from the context or history of the enactment, or from the injustice, incon- venience, or absurdity of the consequences to which it would lead, that the language thus treated does not really express the intention, and that his amendment probably does." Maxwell, Interp. (2d Ed.) 305. See •'Statutes," Deo. Dig. {Key No.) §§ 187-203; Cent. Dig. §§ 266-281. § 56) INAPT AND INACCURATE LANGUAGE 153 law as a defendant being held to bail under a capias of this character. But on the other hand, if a capias ad respond- endum had been specified, the statute would have been in- telligible and consistent. The court therefore held that it was evidently a legislative mistake, consisting in the use of an improper term; that the real intention of the legis- lature would be carried into effect by the substitution of the proper term; and consequently that the statute should be read as thus amended."" In another case, the statute spoke of "preferred stockholders" in a corporation, and of the payment to them of "dividends." To take these words literally would have led to absurd consequences, as shown by the context and the whole purpose of the act, and would have made the statute unconstitutional. The court there- fore held that "preferred stockholders" must be read "mort- gage creditors," and "dividends" must be read "interest." It was said: "A mortgage creditor, although denominated a 'preferred stockholder,' is a mortgage creditor neverthe- less, and interest is not changed into a dividend by calling it a 'dividend.' Nothing is more common in the construc- tion of statutes and contracts than for the court to cor- rect such self-evident misnomers by supplying the proper words/' ^'' Again, an act was entitled "An act to authorize the Governor to appoint a district attorney for the Third district." But the body of the statute provided that the Governor should "appoint some person learned in the law as Attorney General for the Third judicial district." As a- literal construction would render the act nugatory, it was held that it should be read as if "district attorney" were substituted for "Attorney General." '^ In an English case, where the word "rent" occurred many times' in a statute, without further specification, the court read it as sometimes meaning "rent charge" and sometimes "rent reserved," ac- 20 People V. Hoffman, 97 111. 234. See "Statutes," Deo. Dig. (Key Wo.) §§ 187-203; Cent. Dig. §§ Z66-281. 30 Burt V. Rattle, 31 Ohio St. 116. See "Statutes," Dec. Dig. {Key No.) §§ 1811-203; Cent. Dig. §§ 266-281. ' 31 Territory t. Ashenfelter, 4 N. M. (Johns.) 85, 12 Pac. 879. See . "Statutes," Dec. Dig. {Key No.) §§ 187-203; Gent. Dig. §§ 286-281. 154 CONSTEDCTION OF LANGUAGE (Cb. 5 cording to the intent of the legislature as shown by the context, and the propriety of language.^^ On the same principle, the word "paragraph" in a statute may be construed to mean "section," when stich a reading makes it accord with the intention of the legislature." And a statute creating a local court, which inappropriately describes the municipality in which it is to have jurisdiction as a "city," when it is in fact a "town" at the date of the passage of the law, will be corrected accordingly.'* STATUTE DEVOID OF MEANING 57. li a statute is devoid of meaning — if the language em- ployed, though clceir cind precise, directs an impos- sibility or is incapable of bearing any reasonable signification, or if an ambiguity exists which can- not be cleared up — so that it is not possible to as- certain the object to which the legislature in- tended the act to apply or the result which it was expected to accomplish, the act is inoperative. In such a case, the courts cannot revise and amend it, on mere conjecture as to the intention of the legis- lature, but it is their duty to pronounce it incapa- ble of effectual operation. "A statute must be capable of construction and interpre- tation, otherwise it will be inoperative and void. The court must use every authorized means to ascertain and give it an intelligible meaning; but if, after such effort, it is found to be impossible to solve the doubt and dispel the obscurity, if no judicial certainty can be settled upon as to the mean- ing, the court is not at liberty to supply or make one. The court may not allow conjectural interpretation to usurp 82 Angell v. Angell, 9 Ad. & El. (N. S.) 328. See "Statutes," Dec. Dig. (Key No.) §§ 187-203; Cent. Dig. §§ 2G6-2S1. esAlfrey v. Colbert, 168 Fed. 231, 93 C. C. A. 517. See "Stat- utes," Deo. Dig. {Key No.) §§ 187-203; Cent. Dig. §§ 266-281. 84 White V. State, 121 Ga. 592, 49 S. E. 715. See "Statutes," Dec. Dig. (Key No.) §§ 181-203; Cent. Dig. §§ 266-281. § 57) STATUTE DEVOID OF MEANING 155 the place of judicial exposition. There must be a compe- tent and efficient expression of the legislative will." *' "Whether a statute be a public or private one, if the terms in which it is couched be so vague as to convey no definite meaning to those whose duty it is to execute it, either min- isterially or judicially, it is necessarily inoperative. The law must remain as it was, unless that which professes to change it be itself intelligible." '" "We are bound," says Lord Denman, "to give to the words of the legislature all possible meaning which is consistent with the clear lan- guage used. But if we find language used which is incapa- ble of a meaning, we cannot supply one. To give an effect- ual meaning [in the present case] we must alter, not only 'or' into 'and,' but 'issued' into 'levied.' It is extremely probable that this would express what the legislature meant. But we cannot supply it. Those who used the words thought that they had effected the purpose intended. But we, looking at the wOrds as judges, are no more justi- fied in introducing that meaning than we should be if we added any other provision." '^ To illustrate further, in a case in Texas, it appeared that a statute authorized appeals from interlocutory judgments thereafter rendered in the district courts, and required that such appeals "be regulated by the law regulating appeals from final judgments in the district courts, so far as the same may be applicable thereto." The statutes regulating appeals from final judg- ments were entirely inapplicable to appeals from interloc- utory judgments, and for this reason it was held that the act was nugatory and void.'* Again, a statute prohibited the sale of liquor "within three miles of Mt. Zion Church in 35 State V. Partlow, 91 N. C. 550, 49 Am. Rep. 652 ; State v. Boon, 1 N. C. 191; Commonwealth v. Bank of Pennsylvania, 3 Watts & S. (Pa.) 173. See '^Statutes," Deo. Dig. {Key No.) §§ 47, 188; Cent. Dig. §§ 47, S66, 2S7, ST6. 30 Drake v. Drake, 15 N. C. 110. See "Statutes," Dec. Dig. (Key No.) §§ 47, 188; Gent. Dig. §§ 47. ^B6, 367, 276. 37 Green v. Wood, 7 Ad. & El. (N. S.) 178. See "Statutes," Deo. Dig. (Key No.) %% J!7, 188; Cent. Dig. §§ 4?. 266, 267, 276. 38 Ward V. Ward. 37 Tex. 389. See "Statutes," Dec. Dig. (Key No.) §§ 47, 188; Cent. Dig. §§ 4?. ^66, 261, 276. 156 CONSTRUCTION OF LANGUAGE (Gh. B Gaston county." There were two churches of that name in that county, several miles apart. It was held that no effect or operation could be given to the statute.^" And so, where a statute divided a county into two judicial districts, and provided for the holding of terms of court therein, but enacted that the same court should be held by the same judge in the two different districts on the same day, it was held that the law remained the same as before this enact- ment, for it was incapable of operation.*" But no court would be justified in holding a statute void for want of meaning without an earnest effort to discover a construction which will bring out the intention of the legislature and give it effect. Neither bad grammar nor awkward, untechnical, or slovenly expressions will vitiate a statute, nor clerical errors or misnomers, nor inadvertent omissions or surplusage, nor the use of inapt, inaccurate, or indefinite language, provided that the real meaning and in- tention of the legislature can be made out and a valid and sensible enactment framed by any method of interpreta- tion.*^ Hence a statute cannot be declared void for uncer- tainty, if it will admit of any reasonable construction that will support it.*" Even if the statute, in respect to one of the subjects with which it deals, is so indefinite or contra- dictory that it cannot be enforced, yet it will be held valid as to any other subject on which there is a clear and unam- biguous expression.** 38 State V. Partlow, 91 N. C. 650, 49 Am. Rep. 652. See "Statutes," Dec. Dig. (Key No.) §§ Jf7, 1S8; Cent. Dig. |§ 47, ZS6, 267, 276. 40 Ex parte Jones, 49 Ark. 110, 4 S. W. €39. See •'Statutes," Dec. Dig. {Key No.) S§ p, 188; Cent. Dig. §§ 47, 266, 267, 276. 41 Fortune v. Board of Com'rs of Buncombe County, 140 N. C. 322, 52 S. E. 950; State v. Livingston Concrete Bldg. & Mfg. Co., 34 Mont. 570, 87 Pac. 980 ; State v. Harden, 62 W. Va. 313, 58 S. E. 715; Kelly-'s Heirs v. McGuire, 15 Ark. 555; Murray v. State, 21 Tex. App. 620, 2 S. W. 757, 57 Am. Rep. 623 ; Palms v. Shawano County, 61 Wis. 211, 21 N. W. 77 ; In re Frey, 128 Pa. 593, 18 Atl. 178. See "Statutes," Dec. Dig. {Key No.) §§ /,r, 18S: Cent. Dig. §§ 47, 266, 267, 276. *2 Wentworth v. Racine County, 99 Wis. 26, 74 N. W. 551. See "Statutes," Dec. Dig. {Ke)j No.) §§ ^7, 188; Cent. Dig. §S 47, 266, 267, 276. *3 Ex parte Hewlett, 22 Ney. 333, 40 Pac. 96. This case concerned § 58) CLEIilCAL EKKORS AND MISPRINTS 157 CORRECTION OF CLERICAL ERRORS AND MISPRINTS 58. Clerical errors or misprints, which, if uncorrected, would render the statute unmeaning or nonsensi- cal, or would defeat or impair its intended opera- tion, will not vitiate the act ; they will be corrected by the court and the statute read as amended, pro- vided the true reading is obvious and the real meaning of the legislature is apparent on the face of the whole enactment.** A good illustration of this rule is found in the case of In re Frey.*° A statute of Pennsylvania, relating to the' apportionment of the expense of certain local improvements between a city and the county in which it was situated, pro- vided that when the balance of expenditures should be against the city, any further expenditures should "be pay- able out of the treasury of said county, and be reimbursable out of the county treasury only when the balance shall be in favor of said city, and to the extent of such balance." It was held that the word "county," in the clause "be pay- able out of the treasury of said county," must be read as the effect of a statute prohibiting the catching of trout in the rivers and lakes of the state ; and it was held enforceable as to the rivers, though the provision as to the lakes was so contradictory that it could not be enforced. See "Statutes," Dec. Dig. (Key No.) §§ 47, 188; Cent. Dig. %% IfT, 266, 287, 276. ** Murphy V. Dobben, 137 Mich. 565, 100 N. W. 891 ; Mechanics' & Fanners' Sav. Bank v. Commonwealth, 128 Ky. 190, 108 S. W. 263, 32 Ky. Law Rep. 1022 ; State v. Cross, 44 W. Va. 315, 29 S. E. 527; Hutchings v. Commercial Bank of Danville, 91 Va. 68, 20 S. E. 950 ; Harper v. State, 109 Ala. 28, 19 South. 857 ; Thorn v. Silver (Ind.) 89 N. E. 943 ; State v. Radford, 82 Kan. 853, 109 Pac. 284; Garland Power & Development Co. v. State Board of Railroad Incorporation (Ark.) 127 S. W. 454. See "Statutes," Dec. Dig. (Key No.) §§ 200, 201; Cent. Dig. §§ 278, 279. *B 128 Pa. 593, 18 Atl. 478 ; Lancaster County v. Lancaster City, 160 Pa. 411, 28 Atl. 854 ; Id., 170 Pa. 108, 32 Atl. 567. And see In re Clearfield County License Bonds, 10 Pa. Co. Ct. R. 593. See "Statutes," Dec. Dig. (Key No.) §§ 200, 201; Cent. Dig. §§ 278, 279. 158 CONSTRUCTION OF LANGUAGE (Ch. 5 "city," for there was plainly a clerical error, by which "county" was substituted for "city." It was said by the court: "The obvious meaning and purpose of the act is plain from the context. It needs no argument to show that the word 'county' was mistakenly written for 'city.' It is a mistake apparent on the face of the act, which may be rec- tified by the context. In making this correction we are not to be understood as correcting the act of the legislature. We are enabled to carry out the intention of the legislature from the plain and obvious meaning of the context,^ in which the real purpose or intention of the legislature is mani- fest. It falls within the province of the courts, to correct a merely clerical error, even in an act of assembly, when, as it is written, it involves a manifest absurdity, and the error is plain and obvious. The power is undoubted, but it can only be exercised when the error is so manifest, upon an inspection of the act, as to preclude all manner of doubt, and when the correction will relieve the sense of the statute from an actual absurdity, and carry out the clear purpose of the legislature." So again, a statute provided that "the district court shall have and exercise all the civil and crim- inal jurisdiction heretofore vested in the county court and not divested by this act." The intention of the statute was perfectly plain, but it would be entirely defeated by the retention of the word "not" in this clause. It was accord- ingly held that, as the word must have been inserted by mistake, it might be disregarded and the statute construed as if it were not present.*^ In another case, the words of the statute were: "All persons performing labor, or fur- nishing machinery or boilers, or castings, or other materials for the construction, or repairing, or carrying on of any mill or manufactory, shall have a lien on such mill or manufac- tory for such work or labor done on such machinery, or boilers, or castings, or other material furnished by each re- spectively." It was held that the word "on" in the last clause was a clerical error for "or," and the act should be 48 Chapman t. State, 16 Tex. App. 76. See "Statutes," Dec. Dig. (Key No.) §§ 200, 201; Cent. Dig. §§ 278, 279. § 58) CLERICAL ERRORS AND MISPRINTS 159 read as corrected.*' Another statute, as printed, provided that "any person who alters and publishes as true, and with intent to defraud, any falsely altered, forged, or counter- feited bank bill * * * jg guilty of forgery." The court held that the fourth word of this section, "alters," was a misprint or clerical error for "utters," as shown by the con- text, and accordingly read the statute as thus corrected.** Again, a statute enacted a penalty against all persons gam- bling or betting in a public place with any "card, token, or other article used as an instrument or means of such wager- ing on gaming." It was held that the word "on" was evi- dently, by a clerical error, substituted for "or" and the stat- ute should be read as if the word were "or." *° A statute which declares that "the officers of the board of health in cities to which this act is applicable, and also all officers created by the council or under legislative act," etc., "are hereby abolished," should be construed as abolishing the of- fices held by the officers mentioned.^" The word "acts," in a statute, may be read "act," in the singular, when that is necessary to make the statute sensible and effective.^^ And when it is enacted that the "venire" in actions against rail- roads shall be laid in some county wherein the track of the company is situated, this may be held to mean the "venue," as otherwise the law would be unmeaning." So, where the statute declared that "all penal judgments in the dis- trict court may be examined, and affirmed, reversed, or modified by the Supreme Court," it was held that it should " Gould V. Wise, 18 Nev. 253, ^ Pac. 30. See "Statutes," Dec. Dig. (Key No.) §§ 200, 201; Cent. Dig. §§ 218, 219. ^s Bostick V. State, 34 Ala. 266. See "Statutes," Dec. Dig. (Key No.) §§ 200, 201; Cent. Dig. §§ 278, 219. 40 Tollett V. Thomas, L. R. 6 Q. B. 514. See "Statutes," Dec. Dig. (Key No.) §§ 200, 201; Cent. Dig. §§ 218, 219. 5 ".State ex rel. Attorney General v. Covington, 29 Ohio St. 102, 117. See "Statutes," bed. Dig. (Key No.) §§ 200, 201; Cent. Dig. IS 278, 279. 61 Joeelyn v. Barrett, 18 Ind. 128. See "Statutes," Dec. Dig. (Key No.) §§ 200, 201; Cent. Dig. |§ 216-219. ■ 62 Graham v. Charlotte & S. C. R. Co., 64 N. C. 681. See "Stat- utes," Dec. Dig. (Key No.) §§ 200, 201; Cent. Dig. §§ 278, 279. 160 CONSTRUCTION OF LANGUAGE (Ch. 5 be read "final judgments," instead of "penal judgments." " In a statute of Tennessee, creating a new county, instead of a decimal point between figures describing the boundary, the sign of a degree was used. The calls would have been meaningless unless the sign were taken as a decimal point. And it was held that it should be so taken." And generally speaking, this rule is applicable to all typographical errors which are plainly seen to be such, and for the correction of which the statute itself furnishes a sure giiide."' A case in which the principle of correcting clerical errors was carried almost to its extreme limits is found in Mis- souri, where a statute provided that an obligor or maker of a note should be allowed every just set-oflf.and discount against the assignee or assignor "before judgment" ; and it was held that the word "judgment" should be read "assign- ment," as it was evidently inserted by mistake."' But it must be remembered that the courts are not at liberty to indulge in corrections and emendations of the written laws, unless it is perfectly plain that there is a cler- ical error or misprint, and unless the text, as it stands, with the error uncorrected, would be devoid of sensible meaning or contrary to the evident legislative intent.'*^ This was the position taken by the court in Maryland with regard to a revenue law which provided that all property within OS Moody V. Stephenson, 1 Minn. 401 (Gil. 289). See "Statutes," Deo. Dig. (Key No.) §§ 200, 201; Cent Dig. §§ 278, 279. »* Brown v. Hamlett, 8 Lea (Tenn.) 732. See "Statutes," Dec. Dig. (Key No.) §§ 200, 201; Cent. Dig. §§ 278, 279. 00 State V. Mulkey, 6 Idaho, 617, 59 Pac. 17. See "Statutes," Dec. Dig. (Key No.) §§ 200, 201; Cent. Dig. §§ 278, 279. 6 Frazier v. Gibson, 7 Mo. 271. See "Statutes," Deo. Dig. (Key No.) §§ 200, 201; Gent. Dig. §§ 278, 279. 07 The rule of statutory construction that, where it is manifest on the face of the act that an error has been made in the use of words, the court may correct it and read the statute as corrected, to make it accord with the obvious intent 'of the legislature, does not justify the court in reading such a change into the statute as that the effect would be to abrogate a specific provision made therein. Hilbum v. St. Paul, M. & M. Ry. Co., 23 Mont. 229, 58 Pac. 811. So in City of Ashland v. Maclejewskl, 140 Wis. 642, 123 N. W. 130, a clause in the charter of a city provided that no city § 58) CLERICAL EEROR8 AND MISPRINTS 161 the state, of every description, except certain property therein particularly named, should be "exempt" from taxa- tion for state or local purposes. It was almost incredible that the legislature meant what the words imported. The obvious intention was to say that all- property except that mentioned should be subject to taxation.. Yet the court re- fused to correct the mistake, saying that the language used 'was perfectly plain and unanjbiguous, and must be taken in its natural import ; and this, although they were obliged, taking the act as it read on its face, to pronounce it uncon- stitutional."' In another case, it appeared that a statute provided that "whenever ah answer has been filed in a suit in which the defendant has had personal service made upon him to appear and file his answer, or when a judgment has been rendered in a case after answer filed by the defendant or his counsel, the party cast in the suit shall be considered duly notified of the judgment by the fact of its being signed by the judge." It was insisted that the act contained a manifest misprint, and that it should read "whenever no answer has been filed," etc. For as it stood it provided for two cases, in the alternative, which were in fact identical, viz., judgment signed after answer filed. And the court admitted that the first clause of the statute, as it stood, was surplusage, but held that this would not justify them in changing a word, by way , of correction, as that would give an exactly opposite meaning to the clause."" And so again, under a statute providing that a demand against an estate in the probate coiirt, if exhibited within two years, might be proved within three years, it was held that, though officer should be accepted as a surety on any bond or other obliga- tion made "by" the city, and it was contended that the word "by" should be read as "to" on the ground of a palpable mistake ; but the court refused to adopt this construction, saying that a statute plain in its meaning and not unconstitutional or absurd on its face must be enforced as it xeads. See "Statutes," Dec. Dig. (Key No.) %mO, HOI; Cent. Dig. §§ 27S, 279. 58 Maxwell v. State ex rel. Baldwin, 40 Md. 273. See "Statutes," Dec. Dig. (Key No.) §§ 200, 201;- Cent. Dig. §§ 27S, 279. 5 8 De Sentmanat v. Soul6, 33 La. Ann. 609. See "Statutes," Deo. Dig. (Key No.) §§ 200, 201; Cent. Dig. §§ 27S, 279. Black Int.Li. — 11 162 CONSTRUCTION OF LANGUAGE (Ch. 5 "three" was substituted by mistake for "two," yet- the court could not construe away the plain words of the law.*" EFFECT OF MISDESCRIPTIONS AND MISNOMERS 59. A misdescription or misnomer in a statute will not viti- ate the enactment or render it inoperative, pro- vided the means of identifying the person or thing intended, apart from the erroneous description, are clear, certain, and convincing. It is an ancient maxim of the law, applicable to all writ- ten instruments alike, that "falsa demonstratio non nocet cum de corpore constat." *^ Accordingly, in the case of a statute, "the court will inspect the whole act, and if the true intention of the legislature can be reached, the false description, will be rejected as surplusage, or words substi- tuted, in the place of those wrongly used, which will give effect to the law." "^ For example, a word in a statute de- fining the boundaries of a county may be read "north" in- stead of "south," if it is clear that "north" was really in- tended."' So a misdescription of a municipal corporation, as by caUing it a "city" when it is legally a "town," or by naming it a "county" when a "city" is intended, may be corrected by construction when the mistake clearly appears from the face of the statute."* And the use of the word 80 Hicks V. Jamison, 10 Mo. App. 35. See "Statutes," Deo. Dig, (Key No.) §§ 200, 201; Cent. Dig. §§ 27S, 279. 01 Broom, Max. 629 ; Woodruff v. Mayor, etc., of Town of Orange, 32 N. J. Law, 49, See "Statutes," Dec. Dig. (Key No.) § 201; Cent. Dig. § 279. 8 2 Palms V. Shawano County, 61 Wis. 211, 21 N. W. 77; In re Bulger, 45 Cal. 553; HcKee Land & Improvement Co. v. Williams, 63 App. DiT. 553, 71 N. Y. Supp. 1141, affirmed 173 N. T. 630, 66 N. B. 1112; Fortune v. Board of Com'rs of Buncombe County, 140 N. C. 322, 52 S. E. 950; Lancaster County v. Lancaster City, 170 Pa. 108, 32 Atl. 5B7. See "Statutes," Dec. Dig. (Key No.) § 201; Cent. Dig. § 279. 08 Palms V. Shawano County, 61 Wis. 211, 21 N. W. 77. See "Statutes," Dec. Dig. (Key No.) § 201; Cent. Dig. § 279. 04 White V. State, 121 Ga. 592, 40 S. E. 715 ; Lee v. Tucker, 130 I 59) EFFECT OF MISDESCRIPTIONS AND MISNOMERS 163 "contestant" in a statute, when it clearly appea'rs that "con- testee" was intended, will not render the act void for uncer- tainty.' ° On the same principle, a mistake in the date of passage, or the title, of an act of the legislature referred to by a subsequent amendatory act will not prevent the operative effect of the amendatory act, provided the latter so partic- ularly refers to the subject-matter of the former as clearly to indicate the act intended to be amended."" And if a later statute expressly refers to a designated section of an earlier act, to which it can have no application, but there is an- other section of the prior statute to which, and to which alone, in view of the subject-matter, the later act can prop- erly refer, it will be read according to the manifest purpose of the legislature, and the misdescription will not vitiate.'^ Moreover, a case of erroneous description rriay sometimes be helped out by extraneous evidence, provided it is ade- quate and convincing. Thus, in a case in New Jersey, an act of the legislature authorized the managers of a mead^ ow draining scheme to purchase a property known as the "Dennis Mill" property, consisting of a designated quantity of land, with the water power, and the mills and other buildings thereon. In a private action, growing out of the operations of the managers under this statute, it was shown that there was no "Dennis Mill" property in the vicinity, but that "Dunn's Mill" property ariswered the description in the act and was the one intended by it. Hereupon, an injunction granted on filing a bill to restrain the purchase Ga. 43, 60 S. E. 164; In re Frey, 128 Pa. 593, 18 Atl. 478. See "Statutes," Dec. Dig.. (Key No.) § 201; Cent. Dig. § 279. ' 65 Speer v. Stephenson, 16 Idaho, 707, 102 Pac. 365. See "Statutes," Dec. Dig. (Key No.) § 201; Cent. Dig. § 279. «e Madison, W. & M. Plank Road Co. v. Reynolds, 3 Wis. 287; School Directors of Dlst. Ko. 5 v. School Directors of Dlst. No. 10, 73 111. 249 ; In re Clearfield County License Bonds, 10 Pa. Co. Ct. R. 593; Harper t. State, 109 Ala. 28, 19 South. 857. See "Statutes," Bee. Dig. (Key No.) i§ 126, 201; Cent. Dig. §§ 1!)S, 219. " People V. King, 28 Cal. 266; Stoneman v. Whaley, 9 Iowa, 390; People V. Hill, 3 Utah, 334, 3 Pac. 75; Commonwealth, to Use of Allegheny City, v. Marshall, 69 Pa. 328. See "Statutes," Deo. Dig. (Key No.) § 201; Cent. Dig. § 279. 164 CONSTRUCTION OF LANGUAGE (Ch. 5 of the Dunn's Mill property, was dissolved." But it is im- portant to observe that there is a very material difference between a misdescription and an ambiguous or inadequate description. In the case of the former, the descriptive words are not applicable to the object which the legisla- ture had in mind, but that object is capable of being other- wise identified. In the case of the latter, the descriptive words may be applicable to the legislative object, but that object cannot be identified. This distinction is well illus- trated by a comparison of the case last adverted to with the case of State v. Partlow,*' wherein the act in question for- bade the sale of liquor "within three miles of Mt. Zion Church in Gaston county," and it was held inoperative and void because there were two churches of that name in that county, several miles apart. In the former case, there was a misdescription, but when the object was identified, the statute was held to apply to it. In the latter case, there was no misdescription, but the descriptive words were equally applicable to two different objects, and on account of the latent ambiguity, the act was held inoperative. It is also said that when the descriptive words constitute the very essence bi the act, unless the description is so clear and accurate as to refer to the particular subject intended, and to be incapable of being applied to any other, the mis- take is fatal.''" The same general rule covers the case of misnomers in a statute. In a legislative act, as in any private writing, a misnomer, whether it be of a person, a corporation, or a locality, will not be allowed to defeat the operation of the act, if it is quite evident that it is a misnomer, and the ac- tual meaning of the legislature is clear. '^ For instance, «8 Lindsley v. Williams, 20 N. J. Eq. 93. See "Statutes," Dec. Dig. (Key No.) § 201; Cent. Dig. § 279. 8 91 N. C. 550, 49 Am. Rep. 652. See "Statutes," Dec. Dig. (Key No.) § 201; Cent. Dig. § 279. TO Blanchard v. Sprague, 3 Sumn. 279, Fed. Cas. No. 1,517. Bee "Statutes," Dec. Dig. (Key No.) § 201; Cent. Dig. § 279. 71 Chancellor of Oxford's Case, 10 Cqke, 53a; State ex rel. State Agr. Soc. V. Timme, 56 Wis. 423, 14 N. W. 604 ; Nazro v. Merchants' Mut. Ins. Co. of Mflwaukee, 14 Wis. 295; Attorney General v. § 60) REJECTION OF 8UKPLDSAGE 1C5 where an act names "Lewis Mankel" as entitled to a sum of money, theffact that the claimant's name is "Louis Man- kel" should not deprive him of the right to receive it.'* REJECTION OF SURPLUSAGE 60. It is the duty of the courts to give effect, if possible, to every word of the vrritten law. But if a word or clause be found in a statute which appears to have been inserted through inadvertence or mis- take, and which is incapable of any sensible mean- ing, or which is repugnant to the rest of the act and tends to nullify it, and if the statute is com- plete and sensible without it, such word or clause may be rejected as surplusage. In giving construction to a statute, the courts are bound, if it be possible, to give effect to all its several parts. No sentence, clause, or word should be construed as unmean- ing and surplusage, if a construction can be legitimately found which will give force to and preserve all the words of the statute.'' "It is a canon of construction that, if it be possible, effect must be given to every word of an act of. Parliament, but that, if there be a word or phrase therein to which no sensible meaning can be given, it must be elim- inated." '* But while the endeavor of the courts should be in the direction of harmonizing and making operative the whole statute, in all its words and parts, yet, in proper cases, the construction of a statute, as of any private writ- ing, is governed by the maxims "utile per inutile non vitia- tur" and "surplusagium non nocet." And if it clearly ap- CWcago & N. W. Ky. Co., 35 Wis. 425, 557. See "Statutes," Dec. Dig. {Key No.) § ZOl;, Cent. Dig. § 279. "Mankel v. United States, 19 Ct. CI. 295. See "Statutes," Dec. Dig. (Key No.) § $01; Cent. Dig. § 279. 73 Hagenbuck v. Reed, 3 Neb. 37 ; Leversee v. Reynolds, 13 Iowa, 310. See "Statutes," Dec. Dig. {Key No.) § 202; Cent. Dig. § 280. ^* Stone V. Mayor, . etc., of Yeovil, L. R. 1 C. P. Div. 691, 701. See "Statutes," Deo. Dig. {Key No.) § 202; Cent. Dig. § 280. 166 CONST,EUCTION OF LANGUAGE (Qh. 5 piears, from all the proper sources of interpretation, that a clause or provision of a statute was inserted" through in- advertence, especially if it conflicts with the rest of the act and would tend to limit or impair its application, it will be disregarded." For example, an act of Congress provided that if any person should attempt to bribe a revenue ofi&cer of the United States to commit or connive at a fraud upon the revenue "and be thereof convicted," such person should "be liable to indictment," etc. It was held that the wOrds "and be thereof convicted" must be rejected as surplusage, because their retention in the statute would render it en- tirely meaningless and inoperative, whereas, this phrase be- ing exscinded, the statute remained complete, sensible, and operative.''® So again a statute of New Hampshire pro- vided that whenever an assignment should be made under its terms, "all attachments shall be void except' such as have been made three months previous to such assignment, apd all payments, pledges,* rnortgages, conveyances, sales, and transfers made within three months next before such assignment, and after the passage of this act,_ and before the 1st of September next, and also all payments, etc., whenever made, if fraudulent as to creditors, shall be void." It was considered that no effect consistent with the plain mtent of the statute could possibly be given to the words "before the 1st of September next," and consequently they must be rejected as without meaning.^^ So, also, the word "such," frequently used in statutes, when it is apparent that it has no reference to anything preceding it, may be re- 7B Pond V. Madflox, 38 Cal. 572 ; United Staites v. Jackson, 143 Fed. 783, 75 C. C. A. 41 ; In re Vanderberg, 28 Kan. 243 ; Settlers' Irr. Dlst. V. Settlers' Canal Co., 14 Idaho, 504, 94 Pac. 829 ; County Board of Election Com'rs of Gibson County v. State ex rel. Sides, 148 Ind. 675, 48 N. E. 226; Paxton & Hershey Irrigating Canal & Land Co. v. Farmers' & Merchants' Irrigation & Land Co., 45 Neb. 884, 64 N. W. 343, 29 L. R. A. 853, 50 Am. St. Rep. 585. See "Stat- %tes;' Dec. Dig. (Key No.) § 2C2; Gent. Dig. § 280. 78 United States v. Stern, 5 Blatchf. 512, Fed. Cas. No. 16,389. Bee "Statutes," Deo. Dig. (Key No.) § 202; Cent. Dig. § 280. It Leavitt v. Lovering, 64 N. H. 607, 15 Atl. 414, 1 L. R. A. 5& See "Statutes," Deo. Dig. (Key No.) § 202; Cent, Dig. § 280. I 61) INTEKPOLATION OF WORDS 167 jeeted.'" In an act of Missouri, it was provided that "if any guardian of any white female under the age of eighteen!' years, or of any other person to whose care or protection- any such female shall have been confided, shall defile her by carnally knowing her," he should be liable to' a punish- ' ment. It was held that the word "of" before "any other' person" must be rejected, as it limited the applicability of the statute contrary to the obvious purpose of the legisla-. ture." But where an enactment is plain and sensible and cannot apply to the case in hand according to any meaning which may properly be ascribed to the words, whether broad or narrow, popular or technical, it is not permissible for the courts to strike out (nor to interpolate) any words in order to make it so apply, even though it may be clear to them that the case before them is as fully within the mischief to be remedied as the cases provided for; for this would be amending the law under pretense of construing it, which is beyond the province of the judiciary.^" INTERPOLATION OF WORDS 61. Words may be interpolated in a statute, or silently un- •derstood as incorporated in it, where the meaning of the legislature is plain and unmistakable, and such supplying of words is necessary to carry out that meaning and make the statute sensible and effective. The langauge used in a statute must, if possible, be so construed as to give it some force and effect, ut res magis valeat quam pereat; and consequently, when the language is elliptical, the words which are obviously necessary to »8 State V. Beasley, 5 Mo. 91. See "Statutes," Dec. Dig. {Key No.) I 202; Cent. Dig. § 2S0.- 78 State V. AcufC, 6 Mo. 54. See "Statutes," Dec. Dig. (Key No.). § SOS; Cent. Dig. § 2S0. so Commonwealtli v. Gouger, 21 Pa. Super. Ct. 217. See "Statutes," Dec. Dig. (Key No.) § 202; Cent. Dig. § 2S0. 168 CONSTEUCTION OF LANGUAGE (Ch. 5 complete the sense will be supplied." But words should never be supplied or changed in a statute, unless to effect a meaning clearly shown by the other parts of the statute, and to carry out an intent somewhere expressed.'' Where a word is evidently omitted by mistake in one section of a statute, which omission is explained in another part of the same statute by a reference to such section, the defective section may be enforced according to such explanation.'' Where a law fixed the penalty for a certain act at "not less than one nor more than three hundred dollars," it was held that the minimum penalty was one hundred dollars. In ef- fect, this was interpolating the word "hundred" after "one" in accordance with the evident meaning of the lej^islature, though contrary to the literal sense of the law.'* Again, if the law prescribes that a person convicted of crime shall be imprisoned not less than two nor more than five years, and a statute adds the words "or by fine and imprisonment, one or both, at the discretion of the jury," it is the duty of the court to supply the words "be punished" after the word "or" where it first appears in the ■amendment.'" So, when 81 Nichols V. Halliday, 27 Wis. 406; City of Philadelphia v. Ridge Ave. Pass. Ry. Co., 102 Pa. 190; In re Wainewright, 1 Phillips, Ch. 258; James v. United States Fidelity & Guar. Co., 133 Ky. 299, 117 S. W. 406; Freeman v. Collier Racket Co., 44 Tex. Civ. App. 177, 105 S. W. 1129; In re Howard's Estate, 80 Vt. 489, 68 Atl. 513; State ex rel. Minneapolis, St. P. & S. S. M. R. Co. v. Railroad Com- mission, 137 Wis. 80, 117 N. W. 846. See "Statutes," Deo Dig. (Key yo.) § 203; Cent. Dig. § 281. 8 2 Lane v. Schomp, 20 JST. J. JEq. 82; Barron v. Kaufman, 131 Ky. 642, 115 S. W. 787; Inhabitants of Orvil Tp. v. Borough of Wood- cliff, 61 N. J. Law, 107, 38 Atl. 685 ; KunkaUnan v. Gibson, 171 Ind. 503, 84 N. E. 985. See "Statutes," Dec. Dig. [Key No.) § SOS; Cent. Dig. § 281. 8 3 Brinsfield v. Carter, 2 Ga. 143. Where a statute applying to specified persons omits a word in a second enumeration which ap- pears in the first, it may be supplied ; the omission being treated as inadvertent. State v. Radford, 82 Kan. 853, 109 Pac. 284. See "Statutes," Dec. Dig. (Key No.) § 203; Cent. Dig. § 281. 8 4 Worth V. Peck, 7 Pa. 268. See "Statutes," Dec. Dig. (Key No.) § 20S; Cent. Dig. § 281. 8 6 Turner v. State, 40 Ala. 21. See "Statutes," Dec. Dig. (Key No.) ? 203; Cent. Dig. § 281. g 61) INTERPOLATION OP WOKDS 169 an enrolled act limits taxation to "one half of percentum," and the act, as published by authority, expresses the limi- tation to be "one half of one per centum," the two expres- sions will be held to mean the same thing.** Again, where a statute denounced a penalty against "every person who shall buy, sell, or receive from any slave any commodity," etc., it was held that it must be read as if the word "to" were inserted after "sell." " A statute of Minnesota pro- vided for an action by any person in possession of land against any person claiming "an estate, interest, or lien therein adverse," and by any person out of possession against one claiming "an estate or interest therein adverse," etc. It was considered that the word "lien" having been added to the first clause by amendment, its omission from the second was an oversight, and not intentional, and that a "lien" was an estate or interest litigable by a person out of possession.'* In an English case, a statute' made it penal "to be in possession" of game after a certain day. If con- strued literally, this would apply to the case of one who had lawfully come into possession of game before that day and continued to have it in possession after that day. To avoid this injustice, it was construed as applying only where the possession did not begin until after the close of the season. This, in effect, amounted to interpolating the words "to begin" before "to be in possession." *° In Ohio, an act passed May 3, 1852, provided that it should take ef- fect "from and after the fifteenth day of May next." It was contended that this meant May 15, 1853. But the court found, from an examination of the legislative journals, that the bill was passed by the concurrent vote of the two houses on April 28, though it was not signed until six days later. And it was considered to be evident that the act, in 8« Goldsmith v. Augusta & S. R. Co., 62 Ga. 468. See "Statutes," Deo. Dig. (Key No.) § 20S; Cent. Dig. § 281. 87 Worrell v. State, 12 Ala. 732. See "Statutes," Dec. Dig. (Key No.) § 203; Oent. Dig. § 281. 88 Donohue v. Lada, 31 Minn. 244, 17 N. W. 381. See "Statutes," Deo. Dig. (Key No.) § 203; Cent. Dig. § 281. 8 9 Simpson v. Unwin, 3 Barn. & Ad. 134. See "Statutes," Dee. Dig. (Key No.) § 20S; Gent. Dig. § 281. 170 CONSTRUCTION OF LANGUAGE (Ch. 5 the mind of the legislature, spoke from the 28th of April, .and consequently it should be read as if it declared that it ^should take effect on the "fifteenth of May next hereafter." "This last word was in effect supplied by the court."" But the interpolation of words is permissible only for the purpose of bringing out and giving effect to the evident in- tention of the legislature, not to make the statute embrace or include matters or cases which the legislature did not expressly include, however plausible may be the conjecture that those matters or cases were within the legislative pur- view."^ Thus, the statutory enumeration of persons of the same class by specific terms has the effect of restricting the statute to that class of individuals, and no consideration of the mischief to be remedied by the act is sufficient to jus- tify the interpolation of other words to bring within the op- eration of the statute another class of persons whose busi- ness, or whose relation to the general subject-matter of the act, is distinctly different."" This rule is specially and pe- culiarly applicable to penal and criminal statutes. A pub- lic or penal offense cannot be created by implication, nor can any person or class of persons, or any act or class of acts, be brought within the penal provisions of a law by the process of interpolating or supplying words."' This prin- ciple is well illustrated by a recent case involving the con- struction of a statute which was intended to prohibit and punish the sale of adulterated or misbranded food or drugs. Both the terms "food" and "drug" were defined in the act, and the essentials constituting adulteration or misbranding were set forth. But the clause of the statute which enu- »» State ex rel. Fosdick v. Mayor, etc., of Incorporated Village of Perrysburg, 14 Ohio St. 472. See "Statutes," Deo. Dig. (Key No.) § 203; Cent. Dig. § 281. »i Johnson v. Barham, 99 Va. 305, 38 S. E. 136. And c-ee what is said concerning "casus omissus," supra, p. 80. See "StaPutes," Dec. Dig. (Key No.) § 203; Cent. Dig. § 281. B2 Ex parte Brown, 21 S. D. 515, 114 N. W. 303. See "Statutes," Deo. Dig. (Key No.) | 203; Cent. Dig. § 281. n3 Western Union Tel. Co. v. Axtell, '69 Ind. 199; State v. Jaeger, 63 Mo. 403; Howell v. State, 54 Mo. 400; Ex parte Brown, 21 S. D. 515, 114 N. W. 303. See "Statutes," Dee. Dig. (Key No.) § 203; Cent. Dig. § 281 § 62) CONSTRUING WITH REFERENCE TO SUBJECT 171 merated the persons who should be liable to its penalties, although this clause referred to "any food or drug which is adulterated," etc., only named "innkefepers, hotel keepers, restaurant keepers, and boarding house keepers." It was held that a , druggist selling medicinal preparations not branded or marked according to the law was not liable to punishment, for the court did not feel warranted in supply- ing the word "druggist" in the phrase quoted."^ But, on the other hand, the court in Kentucky has lately declared that a statute relating to certain acts contrary to public morality, which was technically defective because it merely mentioned acts of that character without prohibiting them or providing any penalty, should not be allowed to fail, as it was the evident intention of the legislature to make it unlawful to commit the acts in question and to prohibit ^11 persons from doing them. Hence, the court felt justified in supplying the words "it shall be unlawful for any person" at the beginning of the section, or the words "shall be guilty of an offense" at the end of it.*" CONSTRUING TERMS WITH REFERENCE TO SUBJECT 62. The words of a statute are to be construed with refer- ence to its subject-matter. If they are susceptible of several meanings, that one is to be adopted which best accords with the subject to which the statute relates. There is no rule of construction which requires the same meaning always to be given to the same word, when used in different connections in the same statute or in different statutes.'' Oh the contrary, such is the flexibility of lan- 0* Ex parte Brown, 21 S. D. 515, 114 N. W. 303. Bee "Statutes," Deo. Dig. (Key No.) § 203; Cent. Dig. § 281. 85 Commonwealtli v. Herald Pub. Co., 128 Ky. 424, 108 S. W. 892, 32 Ky. Law Rep. 1293. Bee "Statutes," Dec. Dig. (Key No.) § 203; Cent. Dig. § 281. »6 Rupp V. Swineford, 40 Wis. 28. See , "Statutes," Dec, Dig. (Key No.) §§ 191, 209; Cent. Dig. §§ 286, 302, 303. 172 CONSTEDCTION OF LANGUAGE (Oh. 5 guage and the want of fixity in many of our commonest ex- pressions, that a word or phrase may bear very dififerent meanings according to the connection in which it is found. Hence the rule that the terms of a statute are always to be interpreted with reference to the subject-matter of the en- actment."^ For example, the word "piracy" may have at least two meanings. But if this word were found in a statute relating to copyright on literary productions, no one could suppose that it meant robbery committed on the high seas. Conversely, in an act defining and punishing offenses against the law of nations, it could not be understood as meaning the unlawful appropriation of the literary property of another. So again, "stock" might mean a very different thing, when used in relation to husbandry, or to the allow- ance to a widow of a year's maintenance out of her hus- band's "stock, crop, and provisions," from what it would mean if used in a statute relating to corporations."' So it is also with the common phrase "legal representatives." This term frequently means "executors or administrators." But when found in an act for the relief of landholders, it may mean representatives in the land itself, as, by a purr chase Under a sheriff's sale on a judgment against the land- holder."" The word "misdemeanor," as used in a statute providing that if a sheriff shall have been guilty of "any »7 See Smith v. Helmer, 7 Barb. (N. Y.) 416; Commonwealtli ex rel. Bridgewater School Directors v. Council of Montrose Borough, 52 Pa. 391 ; Wyman v. Fabens, 111 Mass. 77 ; Hubbard v. Wood, 15 N. H. 74; Hartnett v. State, 42 Ohio St. 568; Smiley v. Kansas, 196 U. S. 447, 25 Sup. Ct. 289, 49 L. Ed. 546 ; People ex rel. Whipple V. Judge of Saginaw Circuit Court, 26 Mich. 342; State v. Smiley, 65 Kan. 240, 69 Pac. 199, 67 L. R. A. 903 ; City of Houston v. Pot- ter, 41 Tex. Civ. App. 381, 91 S. W. 389. See "Statutes," Deo. Dig. (Key No.) § 191. »8 Van Norden v. Primm, 3 N. C. 149. See "Statutes," Dec. Dig. (Key No.) § 191. 99 Thayer v. Pressey, 175 Mass. 225, 56 N. E. 5; Merchants' Nat. Bank v. Abernathy, 32 Mo. App. 211; Hogan v. Page, 2 Wall. 605, 17 I/. Ed. 854 ; Mutual Life Ins. Co. v. Armstrong, 117 U. S. 591, 6 Sup. Ct. 877, 29 L. Ed. 997; Commonwealth ex rel. Kreber v. Bryan, 6 Serg. & E. (Pa.) 81 ; Barbour v. National Exch. Bank, 45 Ohio St. 133, 12 N. E. 5 ; Lasater v. First Nat. Bank of Jacksboro (Tex. Civ. App.) 72 S. W. 1054. See "Statutes," Dec. Dig. (Key No.) § 191. § 62) CONSTRUING WITH EEFEEENCE TO SUBJECT 173 default or misdemeanor in his office" the party aggrieved may apply for leave to prosecute on his official bond, does not denote a criminal offense, but refers to a trespass done by a sheriff in his official capacity.^"" Again, an English statute imposing an inheritance tax made mention of "a successor who shall have been competent to dispose by will of a continuing interest in such property." It was held that the words "competent to dispose by will" referred to the interest in the property and not to the personal ' capacity ; and hence one having a sufficient estate or interest was af- fected by the act, although a lunatic or a married woman, and therefore not "competent" in the other sense. ^"^ So also, in some instances, by judicial construction, the extent and force of the term "void," when used in statutes, have been limited so as to make it mean "voidable," or to be made void by some plea or act of the party in whose favor the statutes are set up.^'"' Again, it is held that the legal meaning of the term "destroy," as used in the act of Con- gress providing for the punishment of a party destroying a vessel, is to unfit the vessel for service, with intent to de- fraud the underwriters, beyond the hope of recovery by or- dinary means. ^?* On the same principle, under a statute which imposes a fine upon any person who, in the night- time, shall willfully disturb "any neighborhood or family," 100 State V. Mann, 21 Wis. 684. And see In re Bowman, 7 Mo. App. 569 ; State v. Hastings, 38 Neb. 584, 55 N. W. 774 ; Holman v. Trustees of School Dist No. 5, 77 Mich. 605, 43 N. W. 996, 6 L. E. A. 534 ; State v. Borowsky, H Nev. 119. See "Statutes," Deo. Dig. (Key No.) § 191. 101 Attorney General v. Hallett, 2 Hurl. & N. 368. See "Statutes," Deo. Dig. {Key No.) § 191. 102 Green v. Kemp, 13 Mass. 515, 7 Am. Dee. 169; Smith v. Saxton, 6 Pick. (Mass.) 483. And see United States v. Winona & St. P. R. Co., 67 Fed. 948, 15 C. C. A. 96 ; Larkln v. Saffarans (C. C.) 15 Fed. 147 ; Van Sbaack v. Robbins, 36 Iowa, 201 ; Frazier v. Jeakins, 64 Kan. 615, 68 Pac. 24, 57 L. R. A. 575 ; State v. Richmond, 26 N. H. 232. See "Statutes," Dec. Dig. (Key No.) § 191. 103 United States v. Johns, 1 Wash. C. C. 363, Fed. Cas. No. 15,481. And see Edmundson v. Pittsburgh, M. & Y. R. Co., Ill Pa. 316, 2 Atl. 404; Monongahela Nav. Co. v. Coon, 6 Pa. 379, 47 Am. Dec. 474; In re McCabe's License, 11 Pk. Super. Ct. 560. See "Statutes," Deo. Dig. (Key No.) § 191. 174 CONSTRUCTION OF LANGUAGE (Ch. S an indictment will lie for disturbing a woman who occupies a dwelling house alone.^"* A statute authorizing the courts, in certain cases, to render such judgment as sub- stantial justice shall require, means that they shall render substantial legal justice, ascertained and determined by fixed rules and positive statutes, and not the abstract vary- ing notions of equity entertained by each individual.^"" These illustrations will suffice to show the application of the rule under consideration. It is based (as all valid rules of interpretation are based) upon the efifort to ascer- tain the real meaning and intention of the legislature, cor- relating with the well-known rule of language that words invariably take their color from the terms with which they are associated and the subject in reference to which they are used. It should be mentioned, as a corollary from this rule, that where a statute is divided into separate subjects or articles, having appropriate headings, it must be pre- sumed that the provisions of each article are controlling upon the subject thereof, and operate as a general rule for settling such questions as are embraced therein.^"' More- over, when a statute has been enacted with special refer- ence to a particular subject, and by another statute its pro- visions are directed in general terms to be applied to an- other subject of an essentially different nature, the adopt- ing statute must be taken to mean that the provisions of fhe original statute shall be restrained and limited to such only as are applicable and appropriate to the new subject.^"'' 104 Noe V. People, 39 111. 96. And see Hesnard v. Plunkett, 6 g. D. 73, 60 N. W. 159 ; Berry v. Hanks, 28 11 J. App. 51. See "Stat- utes," Deo. Dig. (Key No.) § 191; "Breach of ' the Peace," Cent. Dig, § i. ■ i»5 Stevens, v. Ross, 1 Cal. 94. See "Statutes," Deo. Dig. (Key No.) % 191. : 100 Griffith v. Carter, 8 Kan. 565. See "Statutes," Deo. Dig. (Key No.) § 191. 107 Jones V. Dexter, SFla. 276. See "Statutes," Dec. Dig. (Key No.) § 191. § 63) TECHNICAL AND POPULAR MEANJNQ 175 TECHNICAL AND POPULAR MEANING OF WORDS 63. The words of a statute are to be taken in their ordi- nary and popular meaning, unless they are techni- cal terms or words of art, in which case they eire to be understood in their technical sense. But pop- ular words may bear a technical meaning, and tech- nical words may have a popular signification, and they should be so construed when that is the evi- dent intention of the legislature, or when it is nec- essary in order to make the statute operative. "It is a familiar rule in the construction of legal instru- ments," says the court in South Carolina, "alike dictated by authority and common sense, that common words in the in- strument are to be extended to all the objects which, in their usual acceptation, they describe or denote, and that the technical terms are to be allowed their technical mean- ing and erfect ; unless, in either case, the context indicates that such a construction would frustrate the real intention of the draughtsman." ^°* As the first part of this rule, 108 De veaux v. De Veaux, 1 Strob. Eq. 283. "Words are geB- erally to be understood in their usual and most known signification, not so much regarding the propriety of grammar as their general and popular use." But "terms of art, or technical terms, must be taken according to the acceptation of the learned in each art, trade, and science." 1 Bl. Comm. 59. A statute of Kentucky pro^ vides tha^ "all words and phrases shall be construed and understood according to the common and approved usage of language; but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning In law, shall be construed and understood according to such meaning." In relation to this statute; the Supreme Court of that state says that it is "only declaratory of a part of the common law on that subject. Words in a statute are always to be imderstood according to the approved use of language. But there are other rules of construction, of equal dignity and importance, which must not be overlooked, and which, although not incorporated in our statute, are as binding upon the courts as if embodied In it. One of these rules Is that every statute ought to 1 76 CONSTRUCTION OF LANGUAGE (Ch. 5 therefore, we may state that, in the interpretation of stat- utes, words of common use are generally to be taken in their natural, plain, and ordinary signification, as they are farpiliarly employed in the everyday speech, of the peo- plcj^"' or rather, perhaps, as they are employed by those be expounded, not according to the letter, but according to the meaning'; and another, that every interpretation that leads to an absurdity ought to be rejected; and still another, that a law ought to be interpreted in such manner as that it may have efitect and not be found vain and illusive." Bailey v. Commonwealth, 11 Bush. (Ky.) 688. It was also a maxim of the Roman law that "verba mere sequivoca, si per comnjunem usum loquendi in intellectu certo su- muntur; talis intellectus prseferendus est" ; that is to say, In the case of words which are of equivocal or double meaning, If they are taken by the common usage of speech in a certain sense, such sense is to be preferred in interpretation. See "Statutes," Deo. Dig. (Key No.) § 192; Cent. Dig. §§ 26&, 370. 109 Proprietors of Bridges v. Hoboken Land & Improvement Co., 1 Wall. 116, 17 L. Ed. 571 ; Neilson v. Lagow, 12 How. 98, 13 L. Ed. 909; Schriefer v. Wood, 5 Blatchf. 215, Fed. Cas. No. 12,481; Corning V. Board of Oom'rs of Meade County, 102 Fed. 57, 42 C. C. A. 154; Brun V. Mann, 151 Fed. 145, 80 C. O. A. 513, 12 L. R. A. (N. S.) 154 ; United States v. Chesbrough (D. C.) 176 Fed. 778 ; Mayor, etc., of City of Wetumpka v. Winter, 29 Ala. 651; Favers v. isiass, 22 Ala. 621, 58 Am. Dec. 272; Quigley v. Gorham, 5 Cal. 418, 63 Am. Dec. 139; Gross v. Fowler, 21 Cal. 392; Ex parte McCoy, 10 Cal. App. 116, 101 Pac. 419; Duehay v. District of Columbia, 25 App. D. C. 434; In re Mark Cross Co., 26 App. D. C. 101; Logsdon v. togsdon, 109 in. App. 194; Boyer v. State. 169 Ind. 691, 83 N. E. 350; Indianapolis Northern Traction Co. v. Brennan (Ind.) 87 N. B. 215 ; Massey v. Dunlap, 146 Ind. 350, 44 N. E. 641 ; City of Maysville v. Maysville St. R. & Transfer Co., 128 Ky. 673, 108 S. W. 960, 32 Ky. Law Rep. 1366; New Orleans Canal & Banking Co. v. Schroeder, 7 La. Ann. 615; Parkinson v. State, 14 Md. 184, 74 Am. Dec. 522; Green v. Weller, 32 Miss. 650; Smith v. Missouri Pac. R. Co., 143 Mo. 33, 44 S. W. 718 ; Henry & Coatsworth Co. v. Evans, 97 Mo. 47, 10 S. W. 868, 3 L. R. A. 332 ; State v. Byrum, 60 Neb. 384, 83 N. W. 207 ; In re Opinion of Justices, 74 N. H. 606, 68 Atl. 873 ; City of New York v. Manhattan Ry. Co., 192 N. Y. 90, 84 N. E. 745; People ex rel. McEachron v. Bashford, 128 App. Div. 351, 112 N. Y. Supp. 1143 ; State v. Cody (Tex. Civ. App.) 120 .S. W. 267 ; Bngelking v. Von Wamel, 26 Tex. 469; Willis v. Kalmbach, 109 Va. 475, 64 S. E. 342, 21 L. R. A. (N. S.) 1009; Harrison v. Wissler, 98 Va. 597, 36 S. E. 982; Slack v. Jacob, 8 W. Va. 612; Chartered Mercantile Bank v. Wilson, L. R. 3 Ex. Div. 108. See "Statutes," Dee. Dig. (Key 'No.) § 192; Cent. Dig. §§ 266, 270: § 63) TECHNICAL AND POPULAR MEANING 177 who are accustomed to use words correctly and who are conversant with the subject to which the statute relates. ^^" To take for an example a very common and familiar word, the term "child," as used in statutes, wills, and other legal documents, may have many different meanings, ac- cording to the context and the intention of the writer. But in common speech it always denotes a person of immature years, who has not yet reached the stature of manhood or the judgment, discretion, and experience of an adult; and it is to be understood in this sense in statutes, unless there is a plain indication of its having been meant in some other signification. Hence in a statute defining and punishing aggravated assaults, the word "child" is not necessarily synonymous with "minor," but means one under the age of puberty, or at least one who has not attained the size, knowledge, and discretion of an adult.^^^ Again, unless the context plainly requires it, this term will not be under- stood as including grandchildren, since that is not its com- mon use ; ^^^ nor will it include a descendant who has at- tained the age of majority, although, when used with spe- cial reference to the parental relation, it is equivalent to "son" or "daughter," irrespective of age.^^° Neither will the word "child," as used in a statute or a will, include il- legitimate offspring, unless such a construction is necessary 110 Snpra, p. 143. And see Grenfell v. Com'rs of Revenue, L. R. 1 Ex. Div. 248 ; Ramsey's Estate v. Whitbeck, 81 111. App. 210. See "Statutes," Deo. Dig. {Key No.) § 192;. Cent. Dig. §§ 266, 270. 111 McGregor v. State, 4 Tex. App. 599 ; Allen v. State, 7 Tex. App. 298; Bell v. State, IS Tex. App. 53, 51 Am. Rep. 293; Col- lins V. State, 97 Ga. 433, 25 S. E. 325, 35 L. R. A. 501. See "Stat- utes," Dec. Dig. {Key No.) § 192; Cent. Dig. §§ 266, 270. 112 Shanks v. Mills, 25 S. C. 358; Waldron v. Taylor, 52 W. Va. 284, 45 S. E. 336; Winsor v. Odd Fellows' Ben. Ass'n, 13 R. I. 149; In re Curry's Estate, 39 Cal. 529; Burgess v. Hargrove, 64 Tex. 110; Starrett v. McKim, 90 Ark. 520, 119 S. W. 824. See "Statutes," Deo. Dig. {Key No.) § 192; Cent. Dig. §§ 266, 270. iiSMott V. Central R. R., 70 Ga. 680, 48 Am. Rep. 595; Putnam V. Southern Pac. Co., 21 Or. 230, 27 Pac. 1033 ; Murray v. Gulf, C. & S. F. Ry. Co., 73 Tex. 2, 11 S. W. 125; Rex v. Inhabitants of gt. John Bedwardine, 5 Barn. & Adol. 169; Markover v. Krauss, 132 ' Ind. 294, 31 N. JB. 1047, 17 L, R. A,. 806. See "Statutes," Deo. Dig. {Key No.) § 192; Cent. Dig. §§ 266, 270. Black Int.D. — 12 178 ; CONSTRUCTION OF LANGUAGE (Ch. 5 to. carry into effect the manifest intention of the writer.*^* And it is rarely applied to stepchildren, and should not be so understood unless plainly intended. ^^"^ So again, in their ordinary and familiar signification, the words "sell" and "give" have not the same meaning, but are commonly used to express different modes of transfer- ring the right to property from one person to another. A sale means a transfer for a valuable consideration, while a gift signifies a gratuitous transfer. And these terms should be so construed in a statute, unless there is something in the act to indicate that the legislature meant to use them otherwise. ^^° Again, a vessel lying at a wharf in process of construction, being yet unfinished, and for that reason not yet fit for navigation, cannot be deemed within a stat- ute provision or exception relating to vessels "engaged in navigation." ^" And particularly, it is said, "when particu- lar terms are used to describe the objects of taxation, they should be construed according to their popular acceptation, not by any refined or strained analogies, and especially when that acceptation corresponds with the use of those terms in recent legislative enactments." ^^* But "verba artis ex arte" — terms of art should be ex- 114 Bell V. Bumstead, 60 Hun, 580, 14 N. T. Supp. 697; Gates v. Seibert, 157 Mo. 254, 57 .S. W. 1085, 80 Am. St. Rep. 625 ; Overseers of Poor of Forest City v. Overseers of Poor of Damascus, 176 Pa. 116, 34 Atl. 351; McDonald v. PlttsbTirgh, C. C. & St. L. Ry. Co., 144 Ind. 459, 43 N. E. 447, 32 L. R. A. 309, 55 Am. St. Rep. 185; Floyd V. Floyd, 97 Ga. 124, 24 S. E. 451; Johnstone v. Taliaferro, 107 Ga. 6, 32 S. B. 931, 45 L. R. A. 95. See Marshall v. Wabash R. Co., 120 Mo. 275, 25 S. W. 179 ; Landry v. American Creosote Works, 119 La. 231, 43 South. 1016, 11 L. R. A. (N. S.) 387. See "Statutes," Deo. Dig. (Key No.) § 19S; Cent. Dig. §§ Md, 210. iisTepper v. Supreme Council Royal Arcanum, 59 N. J. Eq. 321, 45 Atl. Ill; Cutter v. Doughty, 23 Wend. (N. Y.) 513. See "Stat- utes," Dec. Dig. (Key No.) § 192; Cent. Dig. §§ 266, 270. 116 Parkinson v. State, 14 Md. 184, 74 Am. Dec. 522; Siegel v. People, 106 111. 89. See "Statutes," Dec. Dig. (Key No.) § 192; Cent. Dig. §§ 266, 270. 117 The Vermont, 6 Ben. 115, Fed. Cas. No. 16,917. See "Stat- utes," Dec. Dig. (Key No.) § 192; Gent. Dig. §§ 266, 270. iisDeitz V. Beard, 2 Watts (Pa.) 170; Nix v. Hedden (C. C.) 39 Fed. 109. See "Statutes," Dec. Dig. (Key No.) § 192; Cent. Dig. §§ 266, 270. §63) ' TECHNICAL And POPULAR MEANING 179 plained from their usage in the art to which they belong.^^* Where a word used in a statute has a fixed technical mean-* ing, the legislature must be understood as employing it in that sense, unless there is something in the context which shows that it was intended to be used in a different sense.^"" Where, however, a word which has both a tech- nical and a common or popular meaning is used in a consti- tution or a statute, the courts will accord to it its popular signification, unless the very nature of the subject indicates, or the context suggests, that it is used in its technical sense."' For instance, although the strictest legal pro- priety may perhaps require us to speak of "actions at law" and "suits in equity," yet in common use, these two terms are indifferently applied to any proceeding in either forum ; .and. hence the word "action" in a statute will be held to include suits in chancery.^'" So again, where a statute de- ns, 2 Kent, Comm. 556, note. The word "telephone," as used in a statute, is a term of art, and evidence is admissible to explain its proper meaning. Hockett v. State, 105 Ind. 250, 5 N. E. 178, 55 Airi. Rep. 201. See "Statutes," Dee. Dig. (Key No.) § 192; Cent. Dig. §§ 266, 270. 120 State y. Smith, 5 Humph. (Tenn.) 394; Katzman v. Common- wealth, 140 Ky. 124, 130 S. W. 990; People ex rel. Grant v. Lane, 196 N. Y. 520, 89 N. B. 1108. "Where technical words are used in reference to a technical subject, they are primarily interpreted in the sense in which they are understood in the science, art, or busir ness in which they have acquired it." Maxwell, Interp. (2d Ed.) 69. See "Statutes," Dec. Dig. (Key No.) § 192; Cent. Dig. §§ 266, 270. 121 Weill V. Kenfield, 54 Oal. Ill ; Southern Bell Telephone & Telegraph Co. v. D'Alemberte, 39 Fla. 25, 21 South. 570; Maiss v. MetropolitajQ Amusement Ass'n, 241 111. 177, 89 N. E. 268; Weirich y. State, 140 Wis. 98, 121 N. W. 652, 22 L. R. A. (N. S.) 1221. Where a technical meaning of a word is relied on to sustain plain- tiff's cause of action, and such meaning is not commonly under- stood nor given in dictionaries or legal works, but the word has a meaning commonly known and understood, the burden is on plaintiff to show the technical meaning of such term, and, in the absence of such evidence, it will be presumed to have been used in the sense in which it is commonly used and understood by people in general. Continental Hose Co. No. 1 v. City of Fargo, 17 N. D. 5, 114 N. W. 834. See "Statutes," Dec. Dig. (Key No.) § 192; Cent. Dig, §§ 266, 270. i22Lamson v. Hutchings, 118 Fed. 321, 55 C. C. A. 245; Coats- worth V. Barr, 11 Mich. 199; Dullard v. Phelan, 83 Iowa, 471, 50 180 CONSTRUCTION OF LANGUAGE (Ch. 5 dares that an unrecorded deed shall not be valid "at law," it does not mean simply that it shall be held invalid in a court of law only, but in all courts. "At law" is not an ex- pression which, in a statute, signifies merely a legal tri- bunal as distinguished from an equitable jurisdiction, but it means the system of jurisprudence generally, whether legal or equitable.^^' And so, again, what is the meaning of the word "residence," as used in any particular statute, must be determined upon its particular circumstances, as this term is often used to express a different meaning according to the subject-matter.^"* Limitations of the Rule Although common words are primarily to be taken in their popular sense, and technical words in, their technical sense, yet this rule is subordinate to the great fundamental rule that the real intention of the legislature must in all cases prevail. Hence a popular word may have the force and effect of a technical word, if the legisliature so de- signed. For example, an act provided that half of the rights of a husband or wife to property held in common, upon the death of either "shall go" to the survivor; and it was held that this meant that such property "shall vest" in the survivor.^'' ° And per contra, a technical word, cap- able of bearing a popular meaning also, shall be taken in the latter sense, if the obvious design of the act requires it. Thus, the term "purchaser" may be understood, when the N. "W. 204 ; Maglll v. Parsons. 4 Conn. 317 ; Webb v. Allen, 15 Tex. Civ. App. 605, 40 S. W. 342 ; Miller v. Rapp, 7 Ind. App. SO, 34 N. E. 125 ; Hall v. Bartlett, 9 Barb. (N. Y.) 297 ; Branyan v. Kay, 33 S. C. 283, 11 S. 13. 970 ; Niantlc Mills Co. v. Riverside & Oswego Mills, 19 R. I. 34, 31 Atl. 432. See "Statutes," Dec. Dig. {Key No.) § 192; Cent. Dig. §§ 266, 270. 123 Fleming v. Burgin, 37 N. C. 584; Hooker v. Nicliols, 116 N. C. 157, 21 S. B. 207. See "Statutes," Dec. Dig. {Key No.) § 192; Gent Dig. §§ 266, 2110. 124 Long V. Ryan, 30 Grat. (Va.) 718. See "Statutes," Dec. Dig. {Key No.) § 192; Cent. Dig. §§ 266, 210. 12 6 Broad v. Broad, 40 Cal. 493; Plass v. Plass, 121 Cal. 131, 53 Pac. 448. And see Jackson County v. Derrick, 117 Ala. 348, 23 South. 193. See "Statutes," Dec Dig. (Key No.) § 192- Cent Dig §§ 266, 210. §63) TECHNICAL AND POPULAR MEANING 181 intention disclpsed by the context requires it, in its ordi- nary commercial sense as equivalent to "buyer." ^^' In de- termining the construction of a statute, even of one which authorizes the confiscation of property for an offense by its owner, technical words are not to be confined to a strict technical sense, when so doing will defeat the evident in- tent of the statute. Hence the federal statute declaring private property used in promoting insurrection to be "law- ful subject of prize and capture" is not to be restricted to property taken at sea (though that is the technical mean- ing of the words), when it was the evident design of Con- gress to make it apply equally to such property seized on land."' To take another illustration, St. 15 & 16 Vict. c. 86, § 40, provides for the cross-examination of "any party having filed an affidavit to be used or which shall be used" in a proceeding in chancery. In order to make the act op- erative and intelligible, it was found necessary to construe the word "party," not in its proper legal sense, but in the decidedly colloquial usage in- which it is made the equiva- lent of "person."^^^ Again, if the effect of construing the words of a statute according to their technical signification would be to render it inoperative, but it would have a rea- sonable operation by construing them according to their common meaning, the latter mode of construction should be adopted.^^* For example, a statute of Alabama provided that when any person should be assassinated or murdered "by any outlaw, or person in disguise, or mob," his next of kin should have an action for damages against the county. Now the word "outlaw" has a well-defined meaning at com- mon law and in English statutes. But the court cqnsid- 128 Ex parte Hillman, L. R. 10 Ch. Div. 622; Cummlngs v. Cole- man, 7 Rich. Eq. (S. C.) 509, 62 Am. Dec. 402. See "Statutes," Dec. Dig. {Key No.) § 192; Cent. Dig. §§ 266, 210. lai Union Ins. Co. v. United States, 6 Wall. 759, 18 L. Ed. 879; United States v. Athens Armory, 2 Abb. U. S. 129, Fed. Cas. No. 14,473. See "Statutes," Dec. Dig. (Key No.) § 192; Cent. Dig. §§ 266, 270. 128 In re Quartz Hill Co., L. R. 21 Ch. Div. 642. See "Statutes," Deo. Dig. (Key No.) § 192; Cent. Dig. §§ 266, 270. 129 Robinson v. Varnell, 16 Tex. 382. See "Statutes," Dec. Dig. {Key No.) § 192; Cent. Dig. S§ 266, 270. 182 CONSTRUCTION 0*- LANGUAGE (Ch. ^. ered it 'impossible that the legislature could have meant to use it in this sense, as common-law outlawry was unknown in the state and could not be pronounced by an act of the! legislature. But looking at the condition of the country at the time the act was passed, and considering another statute designed to remedy the same evil, they concluded that the word should be taken in a more popular sense, and as denoting a desperado or lawless person accustomed to go about in disguise working violence and outrage.^*" TECHNICAL LEGAL TERMS 64. Words and phrases which are used only in the law and have a precise legal meaning, and also terms used more or less in common speech but which have ac- quired a peculiar and appropriate meaning in the law, or which bear a definite signification at com- mon law, are to be understood in their proper tech- nical sense, imless it plainly appears that they were not so used by the legislature. The technical terms and phrases of the law, when found in a statute, must be taken in their proper technical signifi- cation, unless there is something in the context to sho-yy; that they were intended to bear a different meaning.^^^ Es- pecially on subjects relating to courts and legal process, the legislatures are to be considered as speaking technicallyj 180 Dale County v. Gunter, 46 Ala. 118. See "Statutes," Dec. Dig. {key No.) § 192; Cent. Dig. §§ 266, 270. 181 Laird v. Briggs, L. R. 19 Ch. Div. 22; Lisbon School Dist. No. 1 V. LandafC Town School Dist, 75 N. H. 324, 74 Atl. 18G; Loe*y V. GoMon, 129 App. Div. 459, 114 N. Y. Supp. 211 ; Wyatt v. State Board of Equalization, 74 N. H. 552, 70 Atl. 387 ; Sharpe v. Hasey, 134 Wis. 618, 114 N. W. 1118; Vann v. Edwards, 135 N. C. 661, 47 S. E. 784, 67 L. R. A. 461; Clarkson v. Hatton, 143 Mo. 47, 44 S. W. 761, 39 L. R. A. 748, 65 Am. St. Rep. 635. No particular words are necessary in a statute to create a condition precedent ot a, condition subsequent; but aS conditions are not favored, they will not be presumed, where there is any doubt. Arnold v. Village of North Tarrytowu, 137 App. Div. GS, 122 N. Y. Supp. 92. See "Statutes," Dec. Dig. {Key No.) § X92; Cent. Dig. |§ 266, 270. § 64) . TECHNICAL LEGAL TERMS 183 . unless, from the statute itself, it appears that they used the terms in a more popular sense.^** Where a word or phrase has a clear, definite, and settled meaning at common law, it is to have the same meaning in the construction of a stat- ute in which it is found, unless it is plainly apparent that such was not the legislative intention. ^^° And when an act of Congress uses a technical, term, which is known, and its meaning clearly ascertained, by the common or the civil law, from one or the other of which it is obviously bor- rowed, it is proper to refer to the source from which it is taken, for its meaning. '^^^ A few illustrations will help to make plain the application of these principles. "Land," for instance, is a technical term of the law, and when it is used in a statute, it is to be given its accepted legal meaning, unless restrained by the context. Hence, when a statute grants to a railroad com- pany the right to appropriate "land" for its uses, this in- cludes the right to remove a dwelling house. ^^° The term "property," as applied to lands, includes every species of title, inchoate and complete, and it embraces those rights 132 President, etp., of Merchants' Bank v. Cook, 4 Pick. (Mass.) 405. Bee "Statutes," Dec. Dig. (Key No.) § 192; Cent. Dig. §§ 266, 270. 133 Fort V. City of Brinkley, 87 Ark. 400, 112 S. W. 1084; Mayo V. Wilson, 1 N. H. 53 ; Walton v. State, 62 Ala. 197 ; Apple v. Apple, 1 Head (Tenn.) 34'8; State ex rel. Williams v. Purl, 228 Mo. 1, 128 S. W. 196; Adams v. Turrentine, 30 N. C. 147; McCool v. Smith, 1 Black, 459, 17 L. Ed. 218; Buckner v. Real Estate Bank, 5 Ark. 536, 41 Am. Dec. 105; State v. Engle, 21 N. J. Law; 347. Some of the terms to which this rule was applied, in the cases cited, were "negligent escape," "next of kin," and "heir." See "Statutes," Dec. Dig. [Key No.) §§ 192, 222; Cent. Dig. §§ 266, 2~I0, 301. 134 United States v. Jones, 3 Wash. C. C. 209, Fed. Cas. No. 15,494. See "Statutes," Dec. Dig. (Key No.) §§ 192, 222, 225%-; Cent. Dig. §§ 266, 210, 301, 306. 135 Brocket v. Ohio & Pa. R. Co., 14 Pa. 241, 53 Am. Dec. 534. And see Chicago, I. & K. R. Co. v. Knuffke, 36 Kan. 367, 13 Pac. 582; Bulkley v. Wilford, 8 Dowl. & R. 549; People ex rel. Inter- national Nav. Co. V. Barker, 153 N. T. 98, 47 N. E. 46 ; Union Cent. L. Ins. Co. V. Tillery, 152 Mo. 421, 54 S. W. 220, 75 Am. St. Rep. 480; Crawford v. Hathaway, 67 Neb. 325, 93 N. W. 781, 60 L. R. A. 889, 108 Am. St. Rep. 647. See "Statutes," Deo. Dig. (Key No.) § 192; Cent. Dig. §§ 266', 270. 184 CONSTRUCTION OP LANGUAGE (Oh. 5 which lie in contract, executory as well as executed.^*" Again, the word "murder" connotes the idea of premedita- tion or malice aforethought.'-" And the word "willful," when used in a statute creating a criminal offense, implies the doing of the act purposely and deliberately, in violation of law.^°* "Purchaser" has a well-defined technical signifi- cation, and embraces every holder of the legal title to real or personal property, where such title has been acquired by deed, including a mortgagee.^ °° So again, "due process of law" requires that a party shall be properly brought into court, and when there, shall have the right to set up any lawful defense to any proceeding against him.'*" Where criminal prosecutions, under a statute, are to be instituted "on complaint," a complaint under oath or affirniation is implied, as a part of the technical meaning of the term.^*' In a statute of distribution, the words, "the ancestor from laeFlgg V. Snook, 9 Ind. 202. And see Lawrence v. Hennessey, 165 Mo. 659, 65 S. W. 717 ; People v. Common Council, 70 Mich. 534, 38 N. W. 470; iEtna Fire Ins. Co. v, Tyler, 16 Wend. (N. Y.) 385, 30 Am. Dec. 90; Cooney v. Lincoln, 20 R. I. 183, 37 Atl. 1031. See "Statutes," Dec. Dig. (Key No.) § 192; Cent. Dig. §§ 2CS, 270; "Prop- erty," Cent. Dig. § 1. 13 T State V. Phelps, 24 La. Ann. 493. And see State v. Miller, 9 Houst. (Del.) 564, 32 Atl. 137; McMillan v. State, 35 Ga. 54. See "Statutes," Dec. Dig. {Key No.) § 192; Cent. Dig. §§ 266, 270. 138 State V. Whitener, 93 N. C. 590. iSee "Statutes," Dec. Dig. (Key No.) i 192; Cent. Dig. §§ 266, 270. 139 Halbert t. McCulloch, 3 Mete. (Ky.) 456, 79 Am. Dee. 556. "In the construction of registry acts, the term 'purchaser' is usually taken in its technical legal sense. It means a complete purchaser, or, in other words, a purchaser clothed with the legal title." Steele V. ,Spencer, 1 Pet. 552, 7 L. Ed. 259. See Riddle v. Hall, 99 Pa. 116 ; Larned v. Donovan, 84 Hun, 533, 32 N. Y. Supp. 731 ; Jones v. Light, 86 Me. 437, 30 Atl. 71 ; In re Gill's Estate, 79 Iowa, 296, 44 N. W. 553, 9 L. R. A. 126. See "Statutes," Dec. Dig. (Key No.) § 192; Cent. Dig. §§ 266, 270. 140 Wright V. Cradlebaugh, 3 Nev. 341; Stuart v. Palmer, 74 N. Y. J83, 30 Aim. Rep. 289 ; Bank of Columbia v. Okely, 4 Wheat. 235, 4 L. Ed. 559; Leeper v. Texas, 139 U. S. 462, 11 Sup. Ct. 577, 35 L. Ed. 225; Barber Asphalt Pav. Co. v. Ridge, 169 Mo. 376, 68 S. W. 1043 ; Taylor v. Porter, 4 Hill (N. Y.) 140, 40 Am. Dec. 274. See "Statutes," Deo. Dig. (Key No.) § 192; Cent. Dig. §§ 266, 270. 1*1 Campbell v. Thompson, 16 Me. 117. See "Statutes," Dec. Dig. (Key No.) § 192; Cent. Dig. §§ 266, 270. § 64) TECHNICAL LEGAL TEEMS 185 whom the estate came," designate the last ancestor from whom it cattle."'' Again, the word "crime," in its popular sense, means a criminal offense of a deeper or more heinous description, while smaller faults are designated as "misde- meanors." But "crime," as a legal term, includes both fel- onies and misdemeanors. Hence, where a statute provided that any person brought before a justice of the peace on a charge of having "committed a crime" should not be re- quired to pay the costs where the charge should appear to be unfounded, it was held that the word, in this connection, included any felony or misdemeanor within the jurisdiction of a justice.^*' But it is said that the word "grast" is not a technical term like "enfeoff" ; it may import a grant of a naked power, as well as of an interest or title.^*^ Some other legal, terms which are held to have a definite technical meaning, and hence must be understood in that meaning unless the contrary plainly appears, are "con- vey," "" "false" or "falsely," "« and "knowing" or "know- ingly." ^'" But the word "void," as used in statutes, is an extremely ambiguous word,, and its meaning may range from absolute nullity to that which is merely liable to be avoided under certain conditions. Hence there is no abso- lute rule for determining its signification, but its intended - meaning must be gathered from the context, the subject- matter, and the object and purpose of the act in which it 1" Clayton v. Drake, 17 Ohio St. 367. See "Statutes," Dec. Dig. {Key No.) § 192; Cent. Dig. §§ S68, 270. "3 County of Lehigh v. Schock, 113 Pa. 373, 7 Atl. .12; Kentucky V. Dennison, 24 How. 66, 16 L. Ed. 717 ; State v. Blitz, 171 Mo. 580, 71 S. W. 1027; Ex parte Reggel, 114 U. S. 642, 5 Sup. Ct. 1148, 29 L. Ed. 250 ; State v. Sauer, 42 Minn. 258, 44 N. W. 115. See "Stat- utes," Dec. Dig. (Key No.) % 192; Cent. Dig. §§ 266, 270. 144 Rice V. Minnesota & N. W. R. Co., 1 Black, 358, 17 L. Ed. 147, And see Seale v. Ford, 29 Cal. 104; Lambert v. Smith, 9 Or. 185. See "Statutes," Dec. Dig. (Key No.) § 192; Cent. big. §§ $66, 270. 145 :Booker v. Castillo, 154 Cal. 672, 98 Pac. 1067. See "Statutes," Dec. Dig. (Key No.) § 192; Cent. Dig. §§ 266, 270. "« United States v. Ninety-Nine Diamonds, 139 Fed. 961, 72 O. C. A. 9, 2 L. R. A. (N. S.) 185. See "Statutes," Dec. Dig. (Key No.) § 192; Cent. Dig. §§ 266, 270. 147 state V. McBarron, 66 N. J. Law, 680, 51 Atl. 146. See "Stat- utes," Dec. Dig. (Key No.) § 192; Cent. Dig. §§ 266, 270. 186 CONSTRUCTION OF LANGUAGE (Oh. 5 occurs.^*' Again, there are some terms which have a pre^ cise, but limited, significance in law when used with strict propriety, but which are often extended to a much wider, scope. Such, for instance, is the word "descent," which is properly applied only to the devolution of real estate, but is sometimes used so as to include personal property also, or personal property alone.^*" Finally, there are numerous terms often used in the courts and in legal documents and proceedings which have no such peculiar technical meaning as to bring them within this rule, but which are to be interpreted according to the ordinary fules of construction like ordinary phrases. Such, . it is said, is the word "agent," ^'" and so, also, is the term "appeal." ^°^ And it has been ruled that the phrase "pas- senger train" has no technical meaning in law, and is to be construed in its ordinary sense.^°^ WORDS JUDICIALLY DEFINED 65. Words and phrases in a statute which have received a settled judicial construction before its enactment are to be understood according to that construc- tion, unless the statute clearly requires them to bear a different meaning. This rule may be supposed to grow out of the fact that the courts are the authoritative interpreters of statutes, and lisHogan v. Akin, 181 111. 448, 55 N. E. 137; Arnold v. Rich- mond Iron Works, 1 Gray (Mass.) 434; Green v. Kemp, 13 Mass. 515, 7 Am. Dec. 169; Smith v. Saxton, 6 Pick. (Mass.) 487; Com-, monwealth v. Weiher, 3 Mete. (Mass.) . 448. See "Statutes," Dec. Dig. (Key No.) § 7 02; Cent. Dig. §§ 2GG, 270. 149 Rountree v. Pursell, 11 Ind. App. 522, 39 N. E. 747; Horner v. Webster, 33 N. J. Law, 387; Adams v. Akerlund, 168 111. 632, 48 N. E. 454. Bee "Statutes," Deo. Dig. (Key No.) >§ 192; Cent. Dig. §§ 266, 270. 160 Lamb v. State, 49 Tex. Cr. R. 442, 93 S. W. 734. See "Stat- utes," Deo. Dig. (Key No.) § 192; Cent. Dig. §§ 266, 210. 161 Nash V. City of Glen Elder, 74 Kan. 756, 88 Pac. 62. See "Statutes," Dec. Dig. (Key No.) § 192; Cent. Dig. §§ 266, 270. 162 State V. Missouri Pac. Ry. Co., 219 Mo. 15&, 117 S. W. 1173. See "Statutes," Dec. Dig. (Key No.) § 192; Cent. Dig. §§ 266, 270. § 66) COMMERCIAL AND TRADE TERMS 187 :that it is a- settled principle with the courts to adhere to their own former decisions, unless very thoroughly satisfied of their incorrectness, and this in matters of construction and interpretation as well as in matters of general law. Therefore, when particular words or phrases have, received a fixed and consistent judicial interpretation, it must be pre- sumed that a legislative body, using such terms in its en- actment, is aware of the construction already placed upon them and expects that that construction will be adhered to. Hence they are to be understood in the sense thus previ- ously given to them, unless an intention of the legislature to have them understood in a different sense is unmistaka- bly indicated,^^' notwithstanding the fact that the popular conception of their meaning may be something entirely dif- ferent.^°* Thus, where Congress adopts or creates a com- mon-law offense, 'and, in so doing, uses terms which have acquired a well-undergtood meaning by judicial interpreta- tion, the presumption is that the terms were used in that sense, and courts may properly look to prior decisions, in- terpreting them, for the meaning of the terms and the defi- nition of the offeiise, when there is no other definition in the act."" COMMMERCIAL AND TRADE TERMS s 66. Words of commerce or trade, in a tariff law or other statute relating to those subjects, are to be taken in their accepted commercial or trade signification ; and if it is shown that they bore a definite, xmi- "3 State V. Jones, 91 Ark. 5, 120 iS. W. 154; Board of School Com'rs of Indianapolis v. Wasson, 74 Ind. 133; McJunkins v. State. 10 Ind. 140 ; McKee v. McKee's Adm'rs, 17 Md. 352. See "Statutes,'.' Deo. Dig. (Key No.) §§ 188, 192; Cent. Dig. §§ 266, 267, 270, 276. iB4Nephi Plaster & Mfg. Co. v. Juab County, 33 Utah, 114, 93 Pac. 53, 14 L. R. A. (N. S.) 1043. See "Statutes," Dec. Dig. (Key No.) §§ 188, 192; Cent. Dig. §§ 266-2S0. 15 5 United States v. Trans-Missouri Freight Ass'n, 58 Fed. 58, 7 C. C. A. 15, 24 L. R. A. 73. And see United States v. De Groat (D. C.) 30 Fed. 764; Smith v. Alabama, 124 U. S. 465, 8 Sup. Ct. 564, 31 L. Ed. 508. See "Statutes," Dec. Dig. (Key No.) §§ 188, 192; Cent. Dig. §§ 286-280. 188 CONSTEUCTION OF LANGUAGE} (Gh. 5 form, and generally accepted meaning in the trade and commerce of the country, at the date of the passage of the act, different from their meaning in common speech, it will be presumed that they were used by the legislature in that special sense, and they will be so interpreted, without regard to the scientific accuracy of such use of them and without regard to the extent of its divergence from the ordinary or popular meaning. It is said in a few of the reported decisions that if words used in a tariff act to designate particular kinds or classes of goods have a well-known signification in trade and com- merce, different from their ordinary meaning, the special meaning is to prevail, unless Congress has clearly mani- fested a contrary intention, and it is only when no com- mercial meaning is called for or proved that the common meaning of the words is to be adopted.'^'" But these cases are contrary to the general and now prevalent current of decisions. The accepted rule is that the language of such statutes will primarily be understood to have the same meaning in commerce that it has in the community at large, unless the contrary is shown, and consequently, before the common and ordinary meaning of the words of the act can be departed from, it must be clearly shown that they bear a special trade meaning which is not coextensive with that given to them in the speech of the people.' °' And the party in interest, who claims that the particular word or term has a special and peculiar trade meaning, must present evidence to that effect and establish his claim by a fair preponder- 166 Cadw^lader v. Zeh, 151 U. S. 171, 14 Sup. Ct. 288, 38 L. Ed. 115; Hedden v. Richard, 149 U. S. 346, 13 Sup. Ct. 891, 37 L. Ed. 763. See "Statutes," Dec. Dig. (Key No.) § 192; Cent. Dig. § 270; "Customs Duties," Deo. Dig. {Key No.) §§ 16-20; Cent. Dig. §§ 13-16. iBTiSchmeider v. Barney, lis U. S. 645, 5 Sup. Ct. 624, 28 L. Ed. 1130; Swan v. Arthur, 103 U. S. 597, 26 L. Ed. 525; Saltonstall v. Wiebusch & Hilger, 156 U. S. 601, 15 Sup. Ct. 476, 39 L. Ed. 549; Weilbacher v. Merritt (G. 0.) 37 Fed. 85 ; Kennedy v. Hartranft (C C.) 9 Fed. 18. See "Statutes," Dec. Dig. {Key No.) § 192; Cent. Dig. § 270; "Customs Duties," Dec. Dig. (Key No.) §§ 16-20: Cent. Dig. §§ 13-16. § 66) COMMERCIAIi AND TRADE TERMS 189 ance of proof.^"* But when it appears that terms or phrases in the statute belong exclusively to the vocabulary of mer- chants and traders, or that, as used in the commerce and trade of the country, they bore, at the time of the passage of the law, a special signification, different from their mean- ing in ordinary speech, and well settled and understood in the home markets, it will be presumed that Congress used them in that special meaning and no other, and they will be interpreted accordingly.^" In these circumstances, the propriety, accuracy, or scien- tific correctness of the name by which the particular article is known^in commerce is of no importance and is not a proper subject of inquiry. The determining element is the fact that it is known by such or such a name among mer- "8 Weilbacher v. Merritt (C. C.) 37 Fed. 85 ; Kennedy v. Hartranft (C. C.) 9 Fed. 18 ; Zeh v. Cadwalader (C. C.) 42 Fed. 525 ; Claflin v. Robertson (C. C.) 38 Fed. 92. See '"Statutes," Dec. Dig. (Key No.) § 19Z; Cent. Dig. § 270; "Customs Duties," Dec. Dig. (Key No.) §§ 16-20; Cent. Dig. §§ 13-16. IBS Two Hundred Chests of Tea, 9 Wheat. 430, 6 L. Ed. 128; Bar- low 7. United States, 7 Pet. 404, 8 L. Ed. 728 ; Elliott v. Swartwout, 10 Pet. 137, 9 L. Ed. 373 ; Stuart v. Maxwell, 16 How. 150, 14 L. Ed. 883; Arthur v. Cumming, 91 U. S. 362; 23 L. Ed. 438; Arthur v. Morrison, 96 U. S. 108, 24 L. Ed. 764; Arthur v. Lahey, 96 U. S. 112, 24 L. Ed. 766; Greenleaf v. Goodrich; 101 U. S. 278, 25 L. Ed. 845; Recknagel v. Murphy, 102 U. S. 197, 26 L. Ed. 130; Barber v. Schell, 107 U. S. 617, 2 Sup. Ct. 301, 27 L. Ed. 490 ; Arthur v. But- terfield, 125 U. S. 70, 8 Sup. Ct. 714, 31 L. Ed. 643; Robertson v. Salomon, 130 U. S. 412, 9 Sup. Ct. 559, 32 L. Ed. 995 ; Pickhardt v. Merritt, 132 U. S. 252, 10 Sup. Ct. 80, 33 L. Ed. 353; Toplitz v. Hed- den, 146 U. S. 252, 13 Sup. Ct. 70, 36 L. Ed. 961 ; Patton v. United States, 159 U. S. 500, 16 Sup. Ct. 89, 40 L. Ed. 233 ; Brhardt v. UU- man, 51 Fed. 414, 2 C. C. A. 319 ; Junge v. Hedden (C. C.) 37 Fed. 197; McCoy v. Hedden (C. C.) 38 Fed. 89; In re Kursheedt Mfg. Co., 54 Fed. 159, 4 C. C. A. 262 ; Lamb v. Robertson (C. C.) 38 Fed. 716; United States v. Semmer (C. C.) 41 Fed. 324; Fox v. Cad- walader (C. C.) 42 Fed. 209; Dodge v. Hedden (C. C.) 42 Fed. 446; In re Irwin (C. C.) 62 Fed. 150; Bacon v. Bancroft, 1 Story, 341, Fed. Cas. No. 714; Lee v. Lincoln, 1 Story, 610, Fed. Cas. No. 8,195; United States v. Breed, 1 Sumn. 159, Fed. Cas. No. 14,638; United States V. Eighty-Five Hogsheads of Sugar, 2 Paine, 54 Fed. Cas. No. 15,037 ; Morrison v. Arthur, 13 Blatchf . 194, Fed. Cas. No. 9,842. See "Statutes," Dec. Dig. (Key No.) § 192; Gent. Dig. § 270; "Cus- toms Duties," Dec. Dig. (Key No.) §§ 16-20; Cent. Dig. §§ 13-16. 190 CONSTKUGTION OF LANGUAGE (Ch. 5 chants and traders, the law being made for practical: appli- cation to commercial transactions. Congress "did not sup- pose our merchants to be naturalists or geologists or bot- anists," and articles which they would describe and name as belonging to a particular class will be held included in it, although scientific men, speaking with scientific accu- racy, would reject such a classification.^'" Further, in the construction of these laws, the vocabulary of merchants is to be adopted in preference to that of mechanics.^"^ A"4 in fixing the classification of goods for the payment of du- ties, their denomination in the market .when the law was passed will control, without regard to the material of. which they may be composed or the use to which they may be destined or applied. ^'^ Thus, where an article-has been ad- vanced through one or more processes into a completed commercial article, known and, recognized in trade by a spe- cific and distinctiv-e name, other than the name of the ma- teriai of which it is composed, and is put into a completed shape, designed and adapted for a particular use, it is deemed to be a "manufacture." ^"^ A word used in a tariff 160 Kwong Yuen Shing v. United States {0. G.) 175 Fed. 317; Two Hundred . Chests of Tea, 9 Wheat. 430, 6 L. Ed. 128 ; United States V. One Hundred and Twelve Casks of Sugar, 8 Pet. 277, 8 L. Ed. 944. The popular. meaning of a word must control when it is diametrically opposed to the scientific designation. Thus, "saccha- rine," which is very much sweeter than sugar, is not to be classed as an "acid," although it may have an acid reaction and is classed uy scientists as an "acid anhydrid." Lutz v. Magone, 153 U. S. 105, 14 Sup. Ct. 777, 38 L. Ed. 651. See "Statutes," Dec. Dig. (Key No^ § 192; Cent. Dig. § 270; "Customs Duties," Dec. Dig. (Key No.) §§ 16-20; Cent. Dig. §§ 13-16. 181 United States v. Sarchet, Gilp. 273, Fed. Gas. No. 16,224. See "Statutes," Dec, Dig. (^ey No.) § 192; Cent. Dig. § 270; "Customs Duties," Dec. Dig. (Key No.) §§ 16-20; Cent. Dig. §§ 13-16. 10 2 American Net & Twine Co. v. Worthington, 141 U. S. 468, 12 Sup. Ct. 55, 35 L. Ed. 821. And see May v. Simmons (G. G.) 4 Fed. 499; Schmeider v. Barney (C. C.) 6 Fed. 150; Weilbaeher v. Merritt (C. C.) 37 Fed. 85. See "Statutes," Dec. Dig. (Key No.) § 192; Cent. Dig. § 270; "Customs Duties," Dec. Dig. (Key No.) §§ 16-20; Cent. Dig. §§ 13-16. 183 Hartranft v. Wiegmann, 121 U. S. 609, 7 Sup. Ct. 1240, 30 L. Ed. 1012 ; Erhardt v. Hahn, 55 Fed. 273, 5 C. C. A. 99 ; Schrlefer v. Wood, 5 Blatchf. 215, Fed. Gas. No. 12,481; Stockwell v. United I 66) COMMERCIAL AND TEADK TERMS 191 act may be susceptible of a trade meaning as designating a special group of articles, although each article in the group is always bought and sold by its specific name, whereby it happens that no articles are bought and sold by the group designation.^** And it is to be observed that the phrase "of similar description," frequently found in tariff acts fol- lowing a specific enumeration of several articles of the same kind or class, is not a commercial term in any such sense that its meaning or application in the particular case must be determined by the understanding of merchants. '°° A commercial designation of. an article, such as will con- trol the meaning of a term used in a revenue law, must be definite and precise, uniform, and of general acceptance, not partial, local, or personal. Such a law is made with ref- erence to the trade and commerce of the whole country, and its terms cannot be supposed to have been employed in a sense which is only locally known, or known and used only by some individuals or by a particular branch of a general trade.^" The special use of the term must be shown to be known to and accepted by those who regularly follow the particular business, and cannot ordinarily be made out by the testimony of a single merchant, , speaking only of his own usage.^"^ Further the special use must be that which prevails in the trade in this country; the name or States, 3 Cliff. 284, Fed. Oas. No. 13,466. See "Statutes," Dec. Dig. {Key No.) § 192; Cent. Dig, § 270; "Customs Duties," Dec. Dig. (Key No.) §§ 16-20;. Cent. Dig. §§ 13-16. 161 In re Herrman (G. C.) 52 Fed. 941. See "Statutes," Dec. Dig. (Key No.) § 192; Cent. Dig. § 370; "Customs Duties," Dec. Dig. (Key No.) §§ 16-20; Cent. Dig. §§ 13-16. 166 Greenleaf v. Goodrich, 101 U. S. 278, 25 L. Ed. 845. See "Stat- utes," Dec. Dig. (Key No.) § 192; Cent. Dig. § 270; "Customs Duties," Deo. Dig. (Key No.) §§ 16-20; Gent. Dig. §§ 13-16. lesMaddock v. Magone, 152 U. S. 368, 14 Sup. Ct. 588, 38 L. Ed, 482; Sonn v. Magone, 159 U. S. 417, 16 Sup. Ct. 67, 40 L. Ed. 203. See "Statutes," Dec. Dig.- (Key No.) § 192; Cent. Dig. § 270; "Cus- toms Duties," Dee. Dig. (Key No.) §§ 16-20; Cent. Dig. §§ I3-1G. 167 Dodge V. Hedden (C. C.) 42 Fed. 446; Lamb v. Robertson (C. C.) 38 Fed. 716 ; Berbecker v. Robertson, 152 U. S. 373, 14 Sup. Ct. 590, 38 L. Ed. 484. But see Erhardt v. Ballu), 55 Fed. 968, 5 C. C. A. 363. See "Statutes," Dec. Dig. (Key No.) § 192; Cent. Dig. § 270; "Customs Duties," Deo. Dig. (Key No.) §§ Z6-20; Gent. Dig. %% 13-16. 192 CONSTRUCTION OF LANGUAGE (Ch. 5 designation which the article may bear in foreign markets is of no importance.*" ° It is also considered an essential part of the rule, as set- tled by the courts, that the classification of goods under the tariff laws is to be determined by the names or designa- tions which they bore at the date of the passage of the act, and evidence of their description or use since that time, or of the purpose for which they are now imported, is not admissible.**' At the'same time it is held that the mere fact that, at the time of the enactment of the law, articles of a particular kind were not known in commerce or goods of a particular kind had not begun to be manufactured, can- not withdraw them from the class to which they belong, as described in the statute, when its language fairly and clearly includes them.*^" Although ordinarily interpretation is the office of the court, and not of the jury, yet when there is evidence in a case that the term in question has a special or peculiar meaning according to the usage of trade and commerce, it is for the jury to determine as a matter of fact what that meaning is, and whether -the imported article is or is not known in commerce by the word or term used in the tariff act.*^* The commercial designation of an article is not a matter of which a court can take judicial notice.*"' 188 Lamb v. Robertson (C. C.) 38 Fed. 716; Barlow v. United States, 7 Pet. 404, 8 L. Ed. 728. See "Statutes," Dec. Dig. [Key No.) § 19S; Cent. Dig. § 270; "Customs Duties," Dec. Dig. (Key No.) §§ 16-20; Cent. Dig. §§ 13-16. 108 Lawrence Johnson & Co. v. United States, 166 Fed. 728, 92 C. C. A. 418 ; Dennison Mfg. Co. v. United States, 72 Fed. 2.58, 18 C. C. A. 643; Rossman v. Hedden, 145 U. S. 561, 12 Sup. Ct. 925, 86 L. Ed. 817 ; Curtis v. Martin, 3 How. 106, 11 L. Ed. 516. See "Stat- utes," Dec. Dig. (Key No.) § 192; Cent. Dig. § 270; "Customs Duties," Dec. Dig. (Key No.) §§ 16-20; Gent. Dig. §§ 13-16. 17 Pickhardt v. Merrltt, 132 U. S. 252, 10 Sup. Ct. 80. 33 L. Ed. 353 ; Newman v. Arthur, 109 U. S. 132, 3 Sup. Ct. 88, 27 L. Ed. 883 ; In re Van Blankensteyn, 56 Fed. 474, 5 C. C. A. 579. See "Stat- utes," Dec. Dig. (Key No.) § 192; Cent. Dig. § 270; "Customs Duties," Deo. Dig. (Key No.) §S 16~S0; Cent. Dig. §§ 13-16. 171 Marvel v. Merritt, 116 U. S. 11, 6 Sup. Ct. 207, 29 h. Ed. 550; Wellbacher v. Merritt (0. C.) 37 Fed. 85 ; Nix v. Hedden (0. C.) 39 17 2 See note 172 on following page. § 66) COMMERCIAL AND TRADE TERMS 193 But the application of this rule cannot override the plain and evident meaning of Congress. Although it may appear that the word in question has a special and. peculiar trg.de meaning, yet if the context shows that such technical mean- ing could not have been the one which Congress placed upon the word, such technical trade meaning cannot be adopted by the court in construing the statute.^''* So, also, when Congress has so described an article in a tariff act as to identify it by a given designation for revenue purposes, and this has been so long continued as to impress on it a particular designation as an article of import, it must be treated as a distinct article, whether, or not it is so known in commerce.^'* And again, it has been held that the com- mercial name of an article should not settle its classifica- tion when that name does not truly describe it, while there is another term used in the same statute under which it properly falls.^^° Fed. 109 ; State v. Baldwin, 36 Kan. 1, 12 Pac. ,318 ; Moran v. Prather, 23 Wall. 492, 23 L. Ed. 121 ; Nix t. Hedden, 149 U. S. 304, 13 Sup. Ct. 881, 37 L. Ed. 745 ; Sonn v. Magone, 159 U. S. 417, 16 Sup. Ct. 67, 40 L. Ed. 203 ; Saltonstall v. Wiebusch & Hilger, 156 U. S. 601, 15 Sup. Ct. 476, 39 L. Ed. 549; Tyng v. Grinnell, 92 U. S. 467, 23 L. Ed. 733 ; Baumgarten v. Magone (C. 0.) 50 Fed. 69 ; Robertson v. Salomon, 144 U. S. 603, 12 Sup. Ct. 752, 36 L. Ed. 560; Bogle v. Magone, 152 U. S. 623, 14 Sup. Ct. 718, 38 L, Ed. 574. See "Stat- utes,"^ Deo. Dig. (Key No.) § 132; Gent. Dig. § 270; "Customs Duties," Dec. Dig. (Key No.) §§ 16-20; Cent. Dig. §§ lS-16. "2 Seeberger v. Schleslnger, 152 U. S. 581, 14 Sup. Ct. 729, 38 L. Ed. 560. See "Statutes," Dec. Dig. (Key No.) § 192; Cent. Dig. § 270; "Customs Duties," Dec. Dig. (Key No.) §§ 16-20; Cent. Dig. §§ 13-16. 173 In re Salomon (C. C.) 48 Fed. 287; Roosevelt v. Maxwell, 3 Blatchf. 391, Fed. Cas. No. 12,034. See "Statutes," Dec. Dig. (Key No.) § 192; Cent. Dig. § 270; "Customs Duties," Dec. Dig. (Key No.) i§ 16-20; Cent. Dig. §§ 13-16. 17 4 De Forest v. I/awrence, 13 How. 274, 14 L. Ed. 143. See "Stat- utes," Deo. Dig. (Key No.) § 192; Cent. Dig. § 270; "Customs Duties," Dec. Dig. (Key No.) §§ 16-W; Cent. Dig. §§ 13-16. 175 Goldberg v. United States, 61 Fed. 91, 9 C. C. A. 380. See "Statutes," Dec. Dig. (Key No.) § 192; Cent. Dig. § 270; "Customs Duties,"^ Dec. Dig. (Key No.) §§ 16-20; Cent. Dig. §§ 13-16. BiACK Int.Ia — ^13 194 CONSTRUCTION OF LANGUAGE (Oh. 5 ASSOCIATED WORDS 67. Associated words explain and limit each other. When a word used in a statute is ambiguous or vague, its meaning may be made clear and specific by con- sidering the company in which it is foupd and the meaning of the terms which are associated with it. It is an ancient and fundamental rule in the construction of statutes that the meaning of a doubful word or phrase may be ascertained by reference to the meaning of other words or phrases with which it is associated, and that, where several things are referred to, they are presumed to be of the same class, when connected by a copulative con- junction, unless a contrary intent plainly appears. ^^° This rule is analogous to that which requires the words of a statute to be construed with reference to the subject- matter of the act, but is not identical with it. That rule directs us to seek the exact meaning of a doubtful word or phrase by a consideration of the tenor of the whole law and the object and purpose of the legislature in enacting it; but the present rule is rather one of verbal criticism, and applies to the case of several terms grouped together and mutually qualifying each other. It is expressed in the maxim "noscitur a sociis." "'' To illustrate, an English act required licenses for "houses, rooms, shops, or buildings, kept open for public refreshment, resort, and entertain- ment." It was adjudged that the word "entertainment," in this connection, did not necessarily mean a concert, dramat- ic performance, or other divertisement, nor did it neces- sarily imply the furnishing of food or drink, but that, judged from its associations, it meant the reception and ac- 1 76 Gates & Son Co. v. City of Richmond, 103 Va. 702, 49 S. E. 965; Brown v. Chicago & N. W. Ry. Co., 102 Wis. 137, 78 N. W. 771, 44 L. R. A. 579; Carson & Co. v. Sheltou, 128 Ky. 329, 107 S. W. 793, 32 Ky. Law Rep. 1083, 15 L. R. A. (N. S.) 509. See "Stat- utes," Dec. Dig. (Key No.) § 193; Cent. Dig. § 271. 17 7 Broom, Max. 588; Bear v. Mar.'c, 03 Tex. 298. See "Statutes," Dec. Dig. (Key No.) § 193; Cent. Dig. § S71. § 67) ASSOCIATED WORDS 195 commodation of the public.^^' So where a policy of marine insurance is specified to protect the assured against "ar- rests, restraints, and detainments of all kings, princes, and people," the word "people" means the ruling or governing power of the country, this signification being impressed upon it by its association with the words "kings" and "princes." "' Again, in a statute relating to imprisonment for debt, which speaks of debtors who shall be charged with "fraud, or undue preference to one creditor to the prejudice of another," the word "undue" means fraudulent.^*" A statute of bankruptcy, declaring that any fraudulent "gift, transfer or delivery" of property shall constitute an act of bankruptcy, applies only to such deliveries as are in the nature of a gift — such as change the ownership of the prop- erty, to the prejudice of creditors ; it does not include a de- livery to a bailee for safe-keeping.^*^ ' So also, the term "proceeding," in a statute which declares that "no action or proceeding," commenced before its adoption, shall be af- fected by its provisions, does not include a judgment, for that is an entire act and cannot, in any proper sense, be said to be "commenced" before a certain day.^*^ On the same principle, the language of an act conferring equity ju- risdiction in "all cases of trust arising under deeds, wills, or in the settlement of estates," applies only to express trusts arising from the written contracts of the deceased, not to those implied by law, or growing out of the official situation of an executor or administrator.^** "8 Muir V. Keay, L. R. 10 Q. B. 594. See "Statutes," Deo. Dig. {Key No.) § I9S; Cent. Dig. § S7i. "0 Nesbitt v. Lushington, 4 Durn. & E. 783. And see The Itata, 56 Fed. 505, 5 C. 'C. A. 608 ; United States v. Qulncy, 6 Pet. 445, 8 L. Ed. 458 ; United States v. Trumbull (D. C.) 48 Fed. 99. See "Stat- utes," Deo. Dig. (Key No.) § 193; Gent. Dig. § 27i. 180 Bulwinkle t. Grube, 5 Ricli. Law (S. C.) 286. See "Statutes," Dec. Dig. (Key No.) § 193; Cent. Dig. § 271. 181 Cotton V, James, Mood. & M. 273. See "Statutes," Dec. Dig. (Key No.) § 193; Cent. Dig. § 271. 182 Daily v. Burke, 28 Ala. 328. See "Statutes," Deo. Dig. (Key No.) § 193; Cent. Dig. § 271. 183 Given v. Simpson, 5 Greenl. (Me.) 303. The court said: "It is certainly very vague and Indefinite language, but v^e must fjive it a 196 CONSTRUCTION OF LANGUAGE (Ch. 5 But this, like other rules of interpretation, is not to be applied arbitrarily. It does not mean that the plain and obvious meaning of a word, phrase, or designation is to be abandoned, and another signification assigned to it, in order to harmonize it with the associated words ; but it is to be resorted to only in cases of doubt and used as an aid in dis- cerning the intention of the legislature in cases where the particular word or phrase is ambiguous iii itself or is equal- ly susceptible of various meanings.^** GENERAL AND SPECIAL TERMS 68. General terms in a statute are to receive a general con- struction, unless restrained by the context or by plain inferences from the scope and purpose of the act. 69. General terms or provisions in a statute may be re- strained and limited by specific terms or provisions with which they are associated. 70. Special terms in a statute may sometimes be expanded to a general signification by the consideration that the reason of the law is general. General Terms Construed Generally It is a well-recognized principle of statutory construction that general terms and expressions are primarily to be ac- corded their natural, full, and general significance. It is reasonable construction. In cases somewhat similar, the rule of construction 'noscitur a soeiis' is found useful and is consequently adopted. Now it is clear that the legislature begins by speaking of trusts created by those having the ownership' or legal control of the property. Such is the case of trusts created by deeds or wills, and according to the before mentioned rule, .it is reasonable to suppose that they Intended, by the words 'or in the settlement of estates,' trusts created by the same authority." See "Statutes," Deo. Dig. (Key No.) § 193; Cent. Dig. § S71. 184 Brown v. Chicago & N. W. Ry. Co;, 102 Wis. 137, 78 N. W. 771, 44 L. R. A. 579 ; Strohmeyer & Arpe Co. v. United States, 178 Fed. 268, 101 C. C. A. 400. See "Statutes," Deo. Dig: (Key No.) S 19S: Cent. Dig. § 27i. §§ 68-70) GENERAL AND SPECIAL TERMS 197 only when the context, or some other admissible considera- tion, shows that the legislature intended to use them in a more limited sense, that their meaning can be restrained within narrower limits.^*" It is mentioned as an illustra- tion of the force of the rule that general terms are to be understood in their full extent, unless thus restrained, that the statute of wills (St. 33 Hen. VIII, c. 1) having author- ized "all and every person or persons" to devise their lands, it was feared that it might enable infants and insane per- sons to do so, and consequently the St. 34 Hen. VIII, c. 5, § 14, was passed to introduce these exceptions.^*' Power given by the legislature to purchase "ciny property" for a designated purpose will, on this principle, include real' as- well as personal property.^*^ * ^ But general terms are to receive such a reasonable inter- pretation as will leave the other provisions of the statute in- practical operation and effect.^*' And they are often to be restrained by considerations drawn from the subject-mat- ter of the enactment and its general scope and design, the rule being to construe general provisions together in the light of the general objects and purposes of the enactment, and so as to give effect to the main intent.^'* And in this way, to arrive at the legislative intent, general words must often be restrained and limited to the fitness of the sub^ ject-matter.^»° Thus, it is said that the word "all'* is fre- 186 Torrance v. McDougald, 12 Ga. 526; Skeen v. Craig, 31 Utah, 20, 86 Pac. 487. See "Statutes," Dec. Dig. (Key No.) § i9^; Cent. Dig. § 272. 186 Beckford v. Wade, 17 Ves. 88. See "Statutes," flee. Dig. (Key No.) § m; Cent. Dig. § 272. 187 De Witt V. City of San Francisco, 2 Cal. 289. See "Statutes," Dec. Dig. (Key No.) § 194; Cent. Dig. § 272. 18 8 Electro-Magnetic Mining & Development Co. v. Van Auken, 9 Colo. 204, 11 Pac. 80. See "Statutes," Dec. Dig. (Key No.) § 194j Cent. Dig. § 272. i8» People V. Harrison, 191 111. 257, 61 N. E. 99 ; Board of Com'rs of City and County of Denver v. Lunney, 46 Colo. 403, 104 Pac. 945.' Bee "Statutes," Dec. Dig. (Key No.) § 19i; Cent. Dig. § 272. i»» Board of Com'rs of City and County of Denver v. Lunney, 46' Colo. 403, 104 Pac. 945 ; State ex rel. Balch v. Fry, 186 Mo. 198, 85 S. V. 328. See "Statutes," Dec. Dig. (Key No.) § 194; Cent. Dig. § 272. 198 CONSTRUCTION OF LANGUAGE , (Ch. 5 quently and carelessly used in all writings, lay as well as legal, and the generality of. the term is often to be re-' strained in an act, not only by the context, but also by the. general form and scheme of the statute, as indicative of the intention of the legislature.^'^ So, again, a statute provid- ing that any person who has been convicted of certain of- fenses shall be entitled "for any of the following causes" to a new trial or arrest of judgment should be construed as though the provision read "for any one of the following causes." ^" In particular, general terms or provisions 191 Phillips V. State, 15 Ga. 518. And, see. People v. Hoffman, 37 N, T. 9; Frazler v. Warfield, 13 Md. 279; State Bank of Missouri V. Tutt, 44 Mo. 366; Stone v. Elliott, 11 Ohio St. 252; State v. To^vnley, 18 N. J. Law, 311; Hare v. Mclntire, 82 Me. 240, 19 Atl. 453; 8 L. R. A. 450, 17 Am. St. Rep. 476. A statute providing for the taxation of "all" property of a certain kind means only such as is within the jurisdiction of the state. Commonwealth v. Stand- ard Oil Co., 101 I'a. 119. A law for the taxing of "all banks" may' not include private banks and exchange brokers. Exchange Bank of Columbus V. Hines, 3 Ohio St. 1. "All bridges" may mean only such as are owned by bridge companies, not railroad bridges. An- derson V. Chicago, B. & Q. R. Co., 117 111. 26, 7 N. E. 129. A statute granting mechanics' liens on "all buildings" will not include public buildings unless expressly within the terms of the act. Atascosa County V. Angus, 83 Tex. 202; 18 S. W. 563, 29 Am. St. Rep. 637. The term "all cases" may be so restricted by the context as to mean criminal cases only. Jackson v. Reeves, 53 Ind. 231; State ex rel. Murphy v. Rising, 10 Nev. 97; Bennett v. ,State, 57 Wis. 69, 14 N. W, 912, 46 Am. Rep. 26. A statute imposing pecuniary liability in certain cases on "all the directors" of corporations may be so con- strued as to apply only to those chargeable with neglect of duty. Austin V. Berlin, 13 Colo. 198, 22 Pac. 433. The prohibition of "all labor or business" on Sunday does not include the making of a contract, the intention being to prohibit such work as disturbs re- ligious observances. Holden v. O'Brien, 86 Minn. 297, 90 N. W. 531. A condition to observe "all ordinances" of a municipality does not in- clude such as are ultra vires or void for any other reason. Gilham V. Wells, 64 6a. 192. A constitutional provision for the admission to bail of "all persons" may not include prisoners already tried and convicted. Ex parte VoU, 41 Cal. 29; Ex parte Erwin, 7 Tex. App.. 288; Ex parte Ezell, 40 Tex. 451, 19 Am. Rep. 32; State v. Ward, 9 N. C. 443 ; Ford v. State, 42 Neb. 418, 60 N. W- 960. See "Stat- utes," Dec. Dig. (Key No.) § lOJ,; Cent. Dig. § 272. 182 Thurston v. State, 3 Cold. (Tenn.) 115. See "Statutes," Deo. Dig. (Key No.) § 194; Cent. Dig. § 272. § I 68-70) GENERAL AND SPECIAL TEEMS 199 should be read in a limited and restricted sense when the construction of them according to their widest import would lead to injustice, oppression, injury to innocent per- sons, or absurd consequences.^*' "Person" Including "Corporation" The word "person" is a general or generic term. Hence, when used in a statute, it embraces, not only natural per- sons but also artificial persons, such as private corpora- tions, unless the context indicates that it was used in a more limited sense, or the subject-matter of the act leads to a dif- ferent conclusion ; that is to say, it applies to corporations in all circumstances where it can reasonably and logically so apply.^'* For example, .a statute providing that "if any person shall convey any real estate, * * * ^^^^ shall not at the time have the legal estate in such lands, but shall afterwards acquire the same, the legal or equitable title aft- 193 Tsol Sim V. United States, 116 Fed. 920, 54 C. C. A. 154; State ex rel. McPherson v. St. Louis & S. F. R. Co., 105 Mo. App. 207, 79 S. W. 714; South v. Solomon, 6 Hunt (Va.) 12. See "Statutes," Dee. Dig. (Key No.) § 194; Cent. Dig. 272. i»* Home Ins. Co. v. New York, 134 U. S. 594, 10 Sup. Ct. 593, 83 L. Ed. 1025; Missouri Pac. Ry. Co. v. Mackey, 127 U. S. 205, 8 Sup. Ct. 1161, 32 L. Ed. 107 ; People v. Dederick, 181 N. Y. 195, 55 N. E. 927 ; City of Los Angeles v. Leavis, 119 Cal. 164, 51 Pac. 34 ; First Nat. Bank of Ceredo v. Huntington IMstilling Co., 41 W. Va. 530, 23 S. E. 792, 56 Am. St. Rep. 878; Greenwich Ins. Co. v. Car- roll (C. C.) 125 Fed. 121; McGarry v. Nicklin, 110 Ala. 559, 17 South. 726, 55 Am. St. Rep. 40; Enterprise Brewing Co. v. Grime, 173 Mass. 252, 53 N. E. 855; Segnitz v. Garden City Banking & Trust Co., 107 Wis. 171, 83 N.W. 327, 50 L. R. A. 327, 81 Am. St. Rep. 830; Union Pao. Ry. Co. v. De Busk, 12 Colo. 294, 20 Pac. 752, 3 L. R. A. 350, 13 Am. St. Rep. 221 ; Fleming v. Texas Loan Agency, 87 Tex. 238, 27 S. W. 126, 26 L. R. A. 250; Crafford v. Warwick County Sup'rs, 87 Va. 110, 12 S. B. 147, 10 L. R. A. 129; Planters' & Merchants' Bank of Mobile v. Andrews, 8 Port. (Ala.) 404 ; Trenton Banking Co. v. Haverstick, 11 N. J. Law, 171 ; United States v. Amedy, 11 Wheat. 392, 6 L. Ed. 502 ; Gary v. Mars- ton, 56 Barb. (N. Y.) 27 ; In re Fox, 52 N. Y. 530, 1] Am. Rep. 751 ; Miller's Ex'r v. Commonwealth, 27 Grat. (Va.) 110 ; People v. Utica Ins. Co., 15 Johns. (N. Y.) 35S, 8 Am. Dec. 243 ; Douglass v. Pacific Mail Steamship Co., 4 Cal. 304; Louisville _& N. R. Co. v. Common- wealth, 1 Bush (Ky.) 250. Per contra, see School Directors v. Carlisle ^ank, 8 Watts (Pa.) 289. See "Statutes," Deo. Dig. (Key No.) § 19i; Cent. Dig. § 272. 200 CONSTRUCTION OF LANGUAGE (Gh. 5 erwards acquired shall immediately pass to the grantee," applies as well to corporations as to individuals.^ °° So also, a statute giving a right of action for damages against any "person" whose wrongful act, neglect, or default shall cause the death of a human being, applies equally to corpo- rations as to private persons.^"* But still there are many cases in which the legisfature does not mean that the word ■'person" shall include corporations. This is always a ques- tion of intention ; and the intention must be sought for and determined, in each case, by the aid of the context, the gen- eral scope and purpose of the act, and other pertinent con- siderations.^*' Very often the legislature, to preclude any uncertainty on this point, will incorporate in the statute an explicit declaration that it shall or shall not apply to bodies politic. Moreover, in some cases, the word "persons" could not be construed in this extensive sense without doing vio- lence to language or defeating the purpose or intended ef- fect of the act. For instance, where a statute provides that a certain number of persons may organize themselves into a corporation, it cannot be understood as including corpo- rations ; that is, it does not authorize corporations, to the 195 Jones V. Green, 41 Ark. 363. See "Statutes," Deo. Dig. (Key No.) § 19Jf; Cent. Dig. § 272. 108 Chase v. American Steamboat Co., 10 R. I. 79. See "Statutes," Dec. Dig. (Key No.) § 19i; Cent. Dig. § 272. 197 In the case of Pharmaceutical Society v. London & P. S. Ass'n, L. E. ,5 App. Cas. 8.57, Lord Selborne said : "There can be no ques- tion that the' word 'person' may, and I should be disposed myself prima facie to say, does, in a public statute, include a person in law, that is, a corporation, as well as a natural person. But al- though that is a sense which the word will bear in law, and which, as I said, perhaps ought to be attributed to it in the construction of a statute, unless there should be any reason for a contrary construc- tion, it is never to be forgotten that in its popular sense and ordi- nary use it does not extend so far.. Statutes, like other documents, are constantly conceived according to the popular use of language, and it is certain that this word Is often used in statutes In a sense in which it cannot be intended to extend to a corporation. That accounts for the frequent occurence in some statutes, in Interpreta- tion clauses, of an express declaration tlJat it shall extend to a body politic or corporate." See "Statutes," Dec. Dig. (Key No) S 19i- Cent. Dig. § 272. §§ 68-70) GENERAL AND SPECIAL TEEMS 201 prescribed number, to organize thernselves into a new cor- ' poration distinct from tbemselves. The word "persons" here obviously means only natural persoris— individuals capable of contract and association.^*' General Terms Associated with SpeciHc Terms When the particular provisions of a statute indicate its object and purpose, general language will be confined to those alone, unless a more extended application is clearly intended.^*" Thus, where a statute includes both a par- ticular and also a general enactment,--which in its most com- prehensive sense would include what is embraced in the particular one, the particular enactment must be given ef- fect, and the general enactment must be taken to embrace only such cases within its general language as are not within the provisions of the particular enactment.^"" And if additional words of qualification are needed to harmonize a general and a prior special provision in the same statute, they should be added to the general provision rather than to the special one.''"^ Again, where a general intention is expressed in a statute and also a particular intention which is incompatible therewith, the particular intention is to be given effect by construing it as creating an exception. ^"^ 198 Factors' & Traders' Ins. Ck). v. New Harbor Protection Co., 37 La. Ann. 233 ; Denny. Hotel Co. v. Schram, 6 Wasb. 134, 32 Pac. 1002, 36 Am. St. Rep. 130. See "Statutes," Dee. Dig. (Key No.) i m; Cent. Dig. § 272. i»» United States v. Crawford, 6 Mackey (D. C.) 319; In re Rouse, Hazard & Co., 91 Fed. 96, 33 C. C. A. 356; Nance v. Southern Ry. Co., 149 N. C. 866, 63 S. E. 116; Dawson County v. Clark, 58 Neb. 756, 79 N. W. 822; Ex parte Tyler", 2 Okl. Cr. 455, 102 Pac. 716; King V. Armstrong, 9 Cal. App. 368, 99 Pac. 527. See "Statutes," Dec. Dig. (Key 2fo.) § IH; Cent. Dig. §'272. 200 Sanford v. King, 19 S. D. 334, 103 N. W. 28 ; State ex rel. Donnelly v. Kobe, 106 Wis. 411, 82 N. W. 336. See "Statutes," Dec. Dig. (Key No.) § 194; Gent. Dig. § 272. 201 Hodgers v. United States, 185 U. S. 83, 22 Sup. Ct. 582, 46 L. Ed. 816. iSfee "Statutes," - Dec. Dig. (Key No.) § 194; Oent. Dig. § 272. 202 State V. Moore, 108 Md. 636, 71 Atl. 461 ; Brookings County V. Murphy, 23 S. D. 311, 121 N. W. 793 ; Nance v. Southern Ry. Co;, 149 N. C. 366, 63 iS. E. 116. See "Statutes," Deo. Dig. (Key No.) § 194; Cent. Dig. § 272. 202 CONSTRUCTION OF LANGUAGE (Ch. 5 So again, "when two words or expressions are coupled to- gether, one of which generally, includes the other, it is ob- vious that the more general term is used in a meaning ex- cluding the specific one. Though the words 'cows,' 'sheep/ and 'horses,' for example, standing alone, comprehend heif- ers, lambs,, and ponies, respectively, they would be under- stood as excluding them if the latter words were coupled with them. The word 'land/ which, in its ordinary legal acceptation, includes buildings standing upon it, is evidently used as excluding them, when it is coupled with the word 'buildings.' " ^°' And again, when a legislative act contains two sets of provisions, one giving specific and precise direc- tions to do a particular thing, and the other in general terms prohibiting certain acts which would, in the general sense of the words used, include the particular act before authorized, the general clause does not control or afifect the specific enactment.''''* And when general terms are used, and the statute enumerates the particulars under a videlicet, this shows the intention of the legislature to limit the com- prehensiveness of the general phraseology to the particulars enumerated and those of the same class or kind. Thus, an act of a state legislature laying a tax on all real estate, to wit, on various sorts of real estate specified by the act, and as such shown to be private property, does not include property of any sort of the United States within its terri- tory.^"'' General words in one clause of a statute may also be restrained, according to these principles, by the particu- lar words in a subsequent clause of the same statute.^"' 203 Maxwell, Interp. (2d Ed.) 396. See Stevenson v. Bachrach, 170 111. 253, 48 N. E. 327; Cincinnati College v. Yeatman, 30 Ohio St. 276; People ex rel. International Nav. Co. v. Barker, 153 N. T. 98, 47 N. E. 46; Isham v. Morgan, 9 Conn. 374, 23 Am. Dee. 361. See "Statutes," Dec. Dig. (Key No.) § W'l; Cent. Dig. § 272. 204 Bartlett v. Inhabitants of City of Trenton, 38 N. J. Law, 64. See "Statutes," Dec. Dig. (Key No.) § 194; Gent. Dig. § 272. 200 United States v. Weise, 2 Wall. Jr. 72, Fed. Cas. No. 16,659. See "Statutes," Dec. Dig. {Key No.) § 194; Cent. Dig. § 272. 2 06 City of Covington v. McNickle's Heirs, 18 B. Mon. (Ky.) 262; Felt V. Felt, 19 Wis. 193 ; State v. Goetze, 22 Wis. 363. See "Stat- utes," Dec. Dig. {Key No.) § 194; Cent. Dig. § 272. § 71) GENERAL TERMS FOLLOWING SPECIAL TERMS 203 Special Terms Expanded by Construction "Quando verba statuti sunt specialia, ratio autem gen- eralis, statutum generaliter est intelligendum ;" '^°'' that is to say, when the words or expression's used in a statute are special, but the reason, or spirit, or purpose, of the law is general, it should be read as if- correspondingly general ex- pressions had been used. And accordingly, in order to give effect to the true intent of the legislature, words of narrow or special import may be expanded by construction so as to embrace the general purpose and effectflate it.""^ On this principle, the word "child," as used in statutes relating to the distribution of estates, and in remedial and beneficial statutes generally, may be taken to include grandchil- dren."" GENERAL TERMS FOLLOWING SPECIAL TERMS 71. It is a general rule of statutory construction that where general words follow an enumeration of persons or things, by words of a particular and specific mean- ing, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same general kind or class as those specificially mentioned. But this rule must be discarded where the legislative inten- tion is plain to the contrary. This rule is commonly called the "ejusdem generis" rule, because it teaches us that broad and comprehensive expres- 207 Beawf age's Case, 10 Coke, 99b, 101b. See "Statutes," Dec. Dig. (Key No.) § 194; Cent. Dig. § 272. 208 Lewis V. Northern Pac. Ry. Co., 36 Mont. 207, 92 Pac. 469; Board of Com'rs of City and County of Denver v. Lunney, 46 Colo. 403, 104 Pac. 945. See "Statutes," Dec. Dig. (Key No.) § 19i; Cent. Dig. § 272. 209 Appeal of Eshleman, 74 Pa. 42; American Ins. Co. v. Canter, 1 Pet. 511, 7 L.. Ed. 242 ; Walton v. Cotton, 19 How. 355, 15 L. Ed. 658 ; Cutting v. Cutting (C. C.) 6 Fed. 259 ; Storey's Appeal, 83 Pa. 89 ; Succession of Vives, 35 La. Ann. 371 ; Beebe v. Estabrook, 79 N. Y. 246. See "Statutes," Dec. Dig. (Key No.) § m; Cent. Dig. § 272. 204 CONSTRUCTION OF LANGtJAGH (Oh. 5 sions in an act, such as "and all others," or "any others," are usually to be restricted to persons or things "of the same kind" or class with those specially named in the pre- ceding words.^'° It is of very frequent use and applica- tion in the interpretation of statutes. Illustrations and Applications The rule of "ejusdem generis" is properly applied to a statute exempting from taxation certain enumerated kinds of property and "other articles," the general term being strictly \ confined to the similitude of those specially named.''" So, also, the application of statutes relating to the licensing or taxing of certain occupations or pursuits, 210 Albert v. Order of Chosen Friends (C. C.) 34 Fed. 721; Mer- chants' Nat. Bank of Baltimore v. United States, 42 Ct CI. 6; State ex rel. Means v. Chicago, R. I. & P. Ry. Co. (Ark.\ 128 S. W. 555; Cutshaw v. City of Denver, 19 Colo. App. 341. 75' Pac. 22; Roberts v. Savannah, F. & W. R. Co., 75 Ga. 225; In re Swigert, 119 111. 83, 6 N. E. 469; Spalding v. People, 172 111. 40, 49 N. E, 993; Philips v. Christian County, 87 111. App. 481; Nichols v. State, 127 Ind. 406, 26 N. E. 839 ; Wiggins v. State, 172 Ind. 78, 87 N. B.' 718 ; Pein v. Mizne'rr, 41 Ind. App. 255, 83 N. B. 784 ; Rohlf v. Kase- meier, 140 Iowa, 182, 118 N. W. 276, 23 L. R. A. (N. S.) 1284, 132 Am. St. Rep. 261; State v. Fontenot, 112 La. 628, 36 South. 630; Commonwealth v. De Jardin, 126 Mass. 46, 30 Am. Rep. 652 ; Brooks V. Cook, 44 Mich. 617, 7 N. W. 216, 38 Am. Rep.' 282; M;clntyre v. Ingraham, 35 Miss. 25 ; City of St. Louis v. Laughlin, 49 Mo. 559 ; State V. Dinnisse, 109 Mo. 434, 19 S. W. 92; Benton v. Benton, 63 N. H. 289, 56 Am. Rep. 512; Chegaray v. Mayor of New York, 13 N. Y. 220 ; Lantry v. Mede, 194 N. Y. 544, 87 N. E. 1121 ; Michel v. American Cent. Ins. Co., 17 App. Div. 87, 44 N. Y. Supp. 832 ; Lasche v. Bearing', 23 'Misc. Rep. 722, 53 N. Y. Supp. 58; In re Tilden's Bx'rs, 98 N. Y. 434; Stemmer v. Scottish Union & Nat. Ins. Co., 33 Or. 65, 53 Pac. 498 ; Stone v. Stone, 1 R. I. 425 ; Ex parte Le- land, 1 Nott & McC. (S. C.) 460; City of Lynchburg v. Norfolk & W. R. : Co., 80 Va. 237, 56 Am. Rep. 592 ; Commonwealth v. Israel, 4 Leigh (Va.) 675; Townsend Gas & Electric Co. v. Hill, 24 Wash. 469, 64 PaC. 778 ; In re Hoss' Estate (Wash.) 109 Pac. 1071 ; Bevitt V. iCrandall, 19 Wis. 581; King v. Manchester & S. Waterworks, 1 Barn. & C. 630; King v. Wallis, 5 Darn. & E. 375; Countess of Rothes V. Kirkcaldy Waterworks Com'rs, L. R. 7 App. Cas. 694. See "Statutes," iDec. Dig. (Key No.) § 194; Cent. Dig. § 272. 211 Greenville Ice & Coal Co. v. City of Greenville, 69 Miss. 86, 10 South. 574. See "Statutes," Dec. Dig. (Key No.) § 194; Cent. Dig. § 272; "Taxation;" Cent. Dig. § S83. § Yl) GENERAL TEEMS TOLLOWING SPECIAL TEKM3 205 or to the relations of employers and employes therein, or regulating the payment of wages or the liens of servants or operatives, should generally be restricted to trades and call- ings similar to those specially named, though the enumera- tion of specific kinds of business is followed by the general term "or other business."."^" A statute authorizing school officers to employ and pay "teachers, janitors, and other employes of the schools," does not etapower them to retain and compensate an attorney at law.^^' A law relating to the levying of execution on the franchises of /'turnpike or other corporations authorized to receive toll" does not in- clude a telephone company, though its charges may in some sense be denominated "toll," since it is not of the same kind or class as turnpike companies.''^* A statute making pro- vision for the transaction of judicial business in case of the "death, sickness, or other disability" of the proper judge, does not include a case where he is merely absent from the district or circuit, for the disability arising therefrom is not of like character with those enumerated.''^^ A law prohib- iting the exclusion of any persons on account of their color from "barber shops, eating houses, or other places of public resort" will be restricted to places of the same general char- acter.^^* So where a statute gave certain property and 212 Crowther v. Fidelity Ins. Trust & Safe Deposit Co., 85 Fed. 41, 29 C. C. A. 1 ; Appeal of Pardee, 100 Pa. 408 ; City of St. Joseph V. Porter, 29 Mo. App. 605; City of St. Louis v. Laughlin, 49 Mo. 559; Merriam v. MuUett, 2 Pa. Co. Ct. R. 360. But see Sproul v. Murray, 156 Pa. 293, 27 Atl. 302. See "Statutes," l/ec. Dig. (Key No.) §§ lU, 194; Cent. Dig. § 272. 213 Denman v. Webster (Cal.) 70 Pac. 1063. See "Statutes," Dec. Dig. (Key No.) § 194; Gent. Dig. § 272/ "Schools and School Dis- tricts," Dec. Dig. (Key No.) § 79. 214 Ripley V. Evans, 87 Mich. 217, 49 N. W. 504. See "Statutes," Deo. Dig. (Key No.) § 194; Gent. Dig. § 272; "Corporations," Cent. Dig. § 2i30. 210 Western Dredging & Improvement Co. v. Heldmaier, 111 Fed. 123, 49 C. O. A. 264. And see Turnipseed v. Hudson, 50 Miss. 429, 9 Am. Rep. 15. See "Statutes," Dec. Dig. (Key No.) § 194; Cent. Dig. § 273; "Exceptions, Bill of," Dec. Dig. (Key No.) § 32. 216 Rhone V. Loomis, 74 Minn. 200, 77 N. W. 31. See "Statutes," Dec. Dig. (Key No.) § 194; Cent. Dig. § 273; "Givil Bights." Deo. Dig. (Key No.) § 6. 206 CONSTRUCTION OP LANGUAGE (Ch. 5 business rights to "any married woman whose husband, ei- ther from drunkenness, profligacy, or any other cause, shall neglect. or refuse to provide for her," it was held that the words "any other cause" must be understood of causes ejus- dem generis with those enumerated, and hence would not include mere poverty, sickness, intellectual inferiority, or physical inability of the husband, not caused by vice.''^' So a statute which gives to county supervisors the author- ity to remove superintendents of houses of correction from office "for incompetency, improper conduct, or other cause satisfactory to the board," must be construed as meaning "other cause" of the same general natu5e with those causes specified, that is, such cause as shows that it is improper that the incumbent should be retained in the office.^'* Again, this rule has been applied to a statute authorizing the correction of "clerical or other errors" in tax assess- ments; the words "clerical or other" refer to some error of form in the assessment roll, and not to an error of the assessors in making the assessment, nor any substantial er- ror of judgment or of law.^^° And so, where a statute pro- hibited all persons from hauling on turnpike roads "any timber, stone, or other thing," unless upon wheeled car- riages, it was held that the other things prohibited were of the same nature with timber and stone, that is, heavy and likely to injure the road if hauled otherwise than upon wheels, and that the act did not apply to the transportation of a quantity of straw."" In a statute exempting from the operation of a bankruptcy or insolvency law the household and kitchen furniture and "other articles and necessaries" of the bankrupt or insolvent, the general term does not in- 2" Edson V. Hayden, 20 Wis. 682. See "Statutes," Dec. Dig. {Key No.) § 194; Gent. Dig. § 272; "Husband and Wife," Cent. Dig. § 368. 218 State ex rel. Kennedy v. McGarry, 21 Wis. 496. See "Statutes," Deo. Dig. (Key No.) § 10 J,; Cent. Dig. § 27g; "Counties," Cent. Dig. § 102. 2i»Hermance v. Supervisors of Ulster County, 71 N. Y, 481. See "Statutes," Dec. Dig. {Key No.) § 19^; Cent. Dig. § 272. 220 Radnorshire County Roads Board v. Evans, 3 Best & S. 400. See "Statutes," Dec. Dig. {Key No.) § 194; Cent. Dig. § 272. § 71) GENERAL TEKM8 FOLLOWING SPECIAL TERMS 207 elude things which are merely ornamental or merely con- tribute to his pleasure, amusement, or convenience.^^^ Again, a statute relating to the navigation of the river Thames with "any wherry, lighter, or other craft," was held not to apply to a steam tug of 87 tons burden, employed in moving another vessel, because it was not ejusdem generis with wherries and lighters. ^^^ The laws of the United States provide that shares of stock in national banks may be taxed to the owner by the state at a rate not exceeding that assessed upon "other moneyed capital" in the hands of individual citizens of the state. It is held that the phrase quoted means such capital as, in its use, comes into compe- tition with the business of national banks; that is, money employed in banking.^^* Superior Not Classed with Inferior There is an important branch of the foregoing rule which may be stated in the following terms : A statute which enu- merates persons or things of an inferior rank, dignity, or importance, is not to be extended, by the addition of gen- eral words, to persons or things of a higher rank, digjiity, or importance than the highest enumerated, if there are any of a lower species to which the general words can apply.^^* For example, a statute avoiding Conveyances by masters and fellows of colleges, deans and chapters of cathedrals, parsons, vicars, and "others having any spiritual or ecclesi- astical living," would not include bishops, because they are 221 In re Thiell, 4 Biss. 241, Fed. Gas. No. 13,882; In re Ludlow, 1 N. Y. Leg. Obs. 322, Fed. Gas. No. 8,599. See "Statutes" Dec. Dig. (Key No.) § 194; Cent. Dig. | 272; "Bankruptcy," Cent. Dig. §. 660. 222 Reed V. Ingham, 3 El. & Bl. 889. See "Statutes," Dec. Dig. {Key No.) § Wi; Cent. Dig. § 272. 223 First Nat. Bank v. Ghehalis Gounty, 166 U. S. 440, 17 Sup. Ct. 629, 41 L. Ed. 1069 ; Mercantile Nat. Bank v. New York, 121 U. S. 138, 7 Sup. Ct. 826, 30 L. Ed. 895; Mechanics' Nat. Bank v. Baker, 65 N. J. Law, 549, 48 Atl. 582. See "Statutes," Deo. Dig. (Key No.) § 194j Cent. Dig. § 272; "Taxation," Dec. Dig. (Key No.) § 12. 224Woodworth v. Paine's Adm'rs, 1 111. 374; Bishop, Wr. Laws, § 246b; 1 Bl. Comm. 88. See "Statutes," Dec Dig. (Key No.) § 194; Cent. Dig. § 272. 208 CONSTRUCTION OF LANGUAGE (Ch. 5 of a higher rank than any of those mentioned.''" So again, St. 31 Hen. VIII, c. 43, discharged from the payment of tithes all lands which should come to the crown by the dis- solution of monasteries or colleges, or by renouncing, re- linquishing, forfeiture, giving up, or "by any other means." But it was held (in the same case) that the general words closing the enumeration could not be understood to include the vesting of lands in the crown by act of Parliament, "which is the highest manner of conveyance that can be"; they referred only to other inferior means of a nature simi- lar to those specified. Again, a statute imposed certain du- ties on articles exported and imported at a certain harbor. Under the head of "metals," certain specified duties were imposed on copper, brass, pewter, tin, and "all other metals not enumerated." It was held that the latter words did not include gold and silver, the decision being based partly on the ground that, taking the words in their ordinary sense, these would not be included, beca,use they are always spoken of either by name or as the "precious metals," and partly on the rule' that general words following a particular enumeration should not be held to include things superior to those enumerated.^^* But while this rule will generally hold good, yet there are certain cases in which it cannot be followed, without violating the great fundamental principle that the intention of the legislature is always to be sought out and followed. If, for instance, all those things which are of an inferior degree or rank are specifically mentioned and enumerated, and there are still general words added, the latter must be applied to things of a higher degree or rank than those named, because, if this were not done, there would be nothing for the general words to operate upon, and this result must always be avoided, for it is not to be presumed that the legislature would add to the terms of its enactment words which could have no value or signifi- 2 211 Archbishop of Canterbury's Case, 2 Coke, 46a. See "Statutes," Deo. Dig. {Key No,) § 19h- Cent. Dig. § S78. 220 Casher v. Holmes, 2 B. & Ad. 592. See "Statutes," Dec. Dig. (Key No.) § 194; Cent. Dig. § 272. §71) GENERAL TEEMS FOLLOWING SPECIAL TERMS 209 cance.*^' Thus, it is a general rule that -yvhere, in a statute relating to the courts, one or more courts are named, and the words "and other courts" follow, those words must be taken as applying only to courts inferior to those named, But if the specific enumeration exhausts all the inferior courts, or if there are none lower than those named, the superior courts must necessarily be included in the general words, for otherwise those words would be entirely with- out effect."' "Other Persons" Where a statute grants a right, imposes a duty, or lays a prohibition on certain enumerated classes of persons — as, for instance, those following certain kinds of avocations, those filling certain described offices, or those acting in cer- tain enumerated capacities — with the addition of the words "or other persons," the general rule it to restrict the scope of the general phrase to persons similarly situated or sim- ilarly occupied to those enumerated, and not to make it applicable to the whole world.^^° Thus, where a city is authorized by its charter to tax persons engaged in cer- tain employments "and any other persons or employments which it may deem proper," these general words must be interpreted as applicable only to persons and employments similar to the enumerated classes, and consequently the city will have no power, under this clause, to tax a railroad corporation.^^" A statute regulating the business of issu- ing vouchers for goods by "any warehouseman, wharfinger, or other person," means only those who are engaged in a 227 Ellis V. Murray, 28 Miss. 129. See "Statutes," Deo. Dig. (Key No.) § 194; Cent. Dig. § 272. 228 Chapman v. Woodruff, 34 Ga. 91. See Barbour v. City of Louisville, 83 Ky. 95. See "Statutes," Dec. Dig. {Key No.) § 194; Gent. Dig. § 272. 229 Sandiman v. Beach, 7 Barn. & C. 96; United States v. 1,150%^ Pounds of Celluloid, 82 Fed. 627, 27 C. C. A. 231 ; State v. Krueger, 134 Mo. 262, 35 S. W. 604; City of St. Louis v. Laughlin, 49 Mo. 559. 'See "Statutes,"' Dec. Dig. {Key No.) § 194; Cent. Dig. § 272. 230 City of Lynchburg v. Norfolk & W. R. Co., 80 Va. 237, 56 Am. Eep. 592. See "Statutes," Deo. Dig. (Key No.) § 194; Cent. Dig. | 272. BI.A.CK INT.L. — 14 210 CONSTRUCTION OF LANGUAGE (Oh. 5 similar business or who combine the occupation of a ware- houseman or wharfinger with some other pursuit, such as shipping, milling, or manufacturing."'^ So the mechanic's lien laws, applying to mechanics, laborers, "and other per- sons," do not include an architect, but only persons who have performed work similar to that of mechanics or la- borers. ^'^ A law forbidding "any tavern keeper or other person" to sell liquor on Sunday does not include the gen- eral public, but only persons whose business consists, wholly or partly, in the sale of such articles.^'' And a stat- ute prohibiting "any tradesman, artificer, or other person" from engaging in his usual occupation on Sunday does not include a coachman or a farmer."'* An ordinance relating to public buildings and regulating the appointment of "jan- itors, engineers, and other persons," will not include an inspector of buildings, since it will not reach officials of a higher class than those enumerated.^'" Again, statutes ex- empting from execution the tools, implements, and stock in trade of "any mechanic, miner, or other person" should not be restricted to artificers or craftsmen, but may embrace merchants and tradesmen.^'" On the same principle, the laws giving a right of action against liquor sellers to the wife, child, parent, husband, etc., "or any other person" who may be injured in person, property, or means of sup- port by the consequent intoxication of him to whom the sale is made, are generally construed liberally, and held to give a right of action to a widow as well as a wife, and even 281 Bucher v. Commonwealth, 103 Pa. 528. See "Statutes," Deo. Dig. (Key No.) § 194; Cent. Dig. § 272. 232 Raeder v. Bensberg, 6 Mo. App. 445. See "Statutes," Dec. Dig. (Key No.) § 19/,; Cent. Dig. § 272. 233 Jensen v. State, 60 Wis. 577, 19 N. W. 374. See "Statutes," Dec. Dig. (Key No.) § 19.',; Cent. Dig. § 272. 234 Cavan v. City of Brooklyn (City Ct. Brook.) 5 N. Y. Supp. 758. See "Statutes," Dec. Dig. (Key No.) § 194; Cent. Dig. § 272. 235 State ex rel. Bartraw v. Longfellow, 95 Mo. App. 660, 69 S. W. 59C. See "Statutes," Dec. Dig. (Key No.) § 194; Cent. Dig. § 272. 288 Wicker v. Comstock, 52 Wis. 315, 9 N. W. 25 ; Martin v. Bond, 14 Colo. 466, 24 Pac. 326. But see Grimes y. Bryne, 2 Minn. 89 (Gil. 72); Guptil v. McFee, 9 Kan. 30. See "Statutes," Deo. Dig. (Key No.) § 194; Cent. Dig. § 272. § 71) GENERAL TERMS FOLLOWING SPECIAL TERMS 211 ^ to an entire stranger (not -a relative) who is so injured,''^'' though a statute of this kind cannot be stretched by con- struction so far as to give to the intoxicated person himself a right of action against the seller for money stolen from him while drunk.^'* But the restrictive interpretation, limiting the law to per- sons, offices, or trades like those enumerated, will not be used where the result would be contrary to the manifest purpose of the legislature. Thus, an old statute of Mis- souri made it a criminal offense for "any ferryman or other person" to convey a slave across the Mississippi river un- less the slave had a permit. It was held that this applied to the captain of a steamboat, for "all persons whatever who do the act are guilty of the offense. Ferrymen are mentioned because they generally have the means in con- stant readiness to do the act. They were therefore more prominent in the eyes of the legislature thati all other per- sons." =='' "Other Property" This phrase almost always means property of a kind or class similar to those species before enumerated."" If those varieties of property specially mentioned are all per- sonalty, the general words will n&t make the statute ap- plicable to real estate or chattels real."^ Thus a statute 23- Schneider v. Hosier, 2J Ohio St. 98; Hackett v. Smelsley, 77 111. 109; Roose v. Perkins, 9 Neb. 304, 2 N. W. 715, 31 Am. Rep. 409; Jackson v. Brookins, 5 Him (N. Y.) 530; English v. Beard, 51 Ind. 489 ; Bodge v. Hughes, 53 N. H. 614 ; Flower v. Witkovsky, 69 Mich. 371, 37 N. W. 364 ; Aldrieh v. Sager, 9 Hun. (N. Y.) 537 ; Brockway v. Patterson, 72 Mich. 122, 40 N. W. 192, 1 L. R. A. 708. See "Statutes," Dec. Dig. (Key No.) § 19i; Cent. Dig. § 272. 238 Brooks V. Cook, 44 Mich. 617, 7 N. W. 216, 38 Am. Rep. 282. See "Statutes," Deo. Dig. (Key No.) § IH; Cent. Dig. § 272. 239 Russell V. Taylor, 4 Mo. 550. See "Statutes," Dec. Dig. (Key No.) § m; Cent. Dig. § 272. 240 Wall V. Piatt, 169 Mass. 398, 48 N. E. 270 ; State v. Black, 75 Wis. 490, 44 N. W. 635 ; People v. Oummlngs, 114 Cal. 437, 46 Pac. 284. See "Statutes," Dec. Dig. (Key No.) § m; Cent. Dig. § 372. 2*1 Livermore v. Board of Chosen Freeholders of Camden County, 29 N. J. Law, 245 ; .Brailey v. Inhabitants of Southborough, 6 Cush. (Mass!) 141; First Nat. Bank of Joliet v. Adam, 138 111. 483, 28 N. E. 955. See "Statutes," Dec. Dig. (Key No.) § 194; Cent. Dig. § 372. 212 CONSTRUCTION OF LANGDAGB (Ch. 5 I authorized actions to be brought in the name of the state , to recover "money, funds, credits, and property" held by public corporations for public purposes and wrongfully con- verted or disposed of. It was held that an action to recover real property was not within the purview of the act; for the word "property," associated with the preceding words of specific description in the act, is to be construed as refer- ring to property of the same general character.^*'' So a statute giving treble damages for the carrying away or destruction of "wood, timber, lumber, hay, grass, or other personal property" is limited to such things as are produced by or grown upon the land.^*' And under a law providing that "whenever the exigencies of any army in the field are such as to make impressments of forage, articles of subsist- ence, or other property absolutely necessary, then such impressment -may be made," it was held that this did not authorize the impressment of a hotel or a drug store for hospital purposes.''** The laws giving a lien to mechanics and materialmen on buildings "and other improvements on land," or "other structures," are subject to the application of the rule under consideration, and will not be held to ap- ply to the construction of a bridge,^*^ or a railroad.^*" A statute relating to actions of replevin for "timber, lumber, coal, or other property severed from the realty," and giving a right of recovery notwithstanding the title to the land may be in dispute, applies only to articles which before the severance constituted a part of the freehold and the sever- ance, of which depreciates its value, and not growing 2*2 People v.- New York & M. B. Ry. Co., 84 N. Y. 565. See "Stat- utes," Dec. Dig. (Key No.) § 194; Cent. Dig. § 272. 243 Berg V. Baldwin, 31 Minn. 541, 18 N. W. 821. See "Statutes," Deo. Dig. (Key No.) § 194; Cent. Dig. § 272. 244 White V. Ivey, 34 Ga. 186. See "Statutes," Dec. Dig. (Key No.) § 194; Cent. Dig. § 272. 246 Eastern Arkansas Hedge Fence Co. v. Tanner, 67 Ark. 156, 53 S. W. 886. See "Statutes," Deo. Dig. (Key No.) § 194; Cent. Dig. § 272. . 246 Pennsylvania Steel Co. v. J. E. Potts Salt & Lumber Co., 63 Fed. 11, 11 C. C. A. 11. See "Statutes," Deo. Dig. (Key No.) § 194: Cent. Dig. § 273. " y y i :> t. § 71) GENERAL TERMS FOLLOWING SPECIAL TERMS 213 crops."*^ So a statute relating to malicious mischief in the injury or destruction of "any other public or private prop- erty" relates only to inanimate property, and does not ap- ply to the injury or killing of animals."*' But it is generally held, under the statutes giving a right of action against railroad companies for damages by fire communicated from their locomotives to "buildings or other property," that the scope of the law should not be limited to structures upon the land, similar to buildings, but should also include personal property, such as trees, crops, . aiid fences;"** Penal and Criminal Statutes The rule under consideration has a special and more stringent application in the interpretation of statutes impos- ing penalties or defining crimes 4nd prescribing their pun- ishment,""' in view of the well-known principles that crim- inal offenses cannot be created by implication or inference, and that no one can be brought under the denunciation of such a law unless his case comes within its explicit terms, or within the absolutely clear intention of the act, as well as within the spirit of the law and the mischief intended to be remedied. "°^ As an example of the application of the rule in the construction of penal statutes, we may cite the cases holding that a provision against the maintenance of faro banks, roulette tables, "and other gambling devices" must be limited to machines or contrivances of like nature, 2*T Renick V. Boyd, 99 Pa. 555, 44 Am. Rep. 124. See "Statutes," Dec. Dig. {Key No.) § Wt; Cent. Dig. § 272. 2*8 Patton V. State, 93 Ga. Ill, 19 S. B. 734, 24 L. R. A. 732. See "Statutes," Deo. Dig. (Key No.) § IHf Cent. Dig. § 272. 2*» Grlssell v. Housatonic R. Co., 54 Conn. 447, 9 Atl. 137, 1 Am. St. Rep. 138 ; Martin v. New York & N. E. R. Co., 62 Conn. 331, 25 Atl. 239. See "Statutes," Dec. Dig. {Key No.) § IH; Cent. Dig. § 272. 25" Ex parte Muckenfuss, 52 Tex. Cr. R. 467, 107 S. W. 1131. See "Statutes," Deo. Dig. (Key No.) § 194; Cent. Dig. § 272. 251 Withers v. Commonwealth, 109 Va. 837, 65 S. B. 16; Brown v. State, 137 Wis. 543, 119 N. W. 338 ; Mayor, etc., of City of Atlanta V. White, 33 Ga. 229; Verona Cent. Cheese Co. v. Murtaugh, 50 N. T. 314 ; Shaw v. Clark, 49 Mich. 384, 13 N. W. 786, 43 Am; Rep. 474. See "Statutes," Dec. Dig. {Key No.) § 194; Cent. Dig. § 272. 214 CONSTRUCTION OF LANGUAGE (Ch. 5 and will not include ordinary dice, lotteries, policy shops, or shooting at a mark for a prize. ^°^ So, where the stat- utory definition of the crime of burglary includes breaking into a shop, store, booth, tent, warehouse, "or other build- ing," the application of the rule of ejusdem generis teaches' that the offense is not committed by breaking into a chicken coop,''^° nor a stone vault in a cemetery,'''^* though it is held that the general term may include a courthouse.^ ^° A statute punishing fraudulent cheating by means of "any note, check, or other instrument" has no application to the perpetration of a fraud by means of a deed.^'" Another statute provided that "every person who shall set fire to any building, or to any other material, with intent to cause any such building to be burned, or shall by any other means attempt to cause any building to be burned," should be pun- ished. It was held that this would not support an indict- ment for an attempt based on solicitation alone, for, under the rule in question, the statute must be held to contemplate the employment of means similar to those enumerated ; that is, physical means.""' Still, even in the case of laws affecting the life or liberty of the citizen, the courts would not be justified in making a fetich of this rule of interpretation, so as to annul or dero- gate from the manifest purpose of the legislature. Thus, for example, the provision of the federal constitution for 20 2 Marquis v. City of Chicago, 27 111. App. 251; Moore v. City of Chicago, 69 111. App. 571; Commonwealth v. Kammerer, 13 S. W. 108, 11 Ky. Law Rep. 777; Remmington v. State, 1 Or. 281; State V. Bryant, 90 Mo. 534, 2 S. W. 836. See "Statutes," Dec. Dig. (Key No.) § IH; Cent. Dig. § 272. 268 state V. Schuchmann, 133 Mo. Ill, 33 S. W. 35. See "Stat- utes," Dec. Dig. {Key 'No.) § 194; Cent. Dig. § 272. 254 People V. Richards, 108 N..Y. 137, 15 N. E. 371, 2 Am. St. Rep. 373. See "Statutes," Dec. Dig. (Key No.) § 19Jt; Cent. Dig. § 272. ssBGillock V. People. 171 111. 307, 49 N. E. 712; State v. Rogers, 54 Kan. 683, 39 Pac. 219. See "Statutes," Dec. Dig. (Key No.) § 194; Cent. Dig. § 272. 2 68 People V. Chretien, 137 Cal. 450, 70 Pac. 305. And see Shirk V. People, 121 111. 61, 11 N. E. 888. See "Statutes," Dec. Dig. (Key No.) § 194; Cent. Dig. § 272. 267 McDade v. People, 29 Mich. 50. gee "Statutes," Dec. Dig. (Key 2Vo.) § 194; Cent. Dig. % 272. § 71) GENERAL TERMS FOLLOWING SPECIAL TERMS 215 the interstate extradition of persons charged with "treason, felony, or other crime" is not to be narrowed by a strict construction, but it applies to every offense, whether a fel- ony or not, which is forbidden and made punishable by the laws of the state where the crime is committed. ^°^ So a statute prohibiting the sale in certain places of intoxicating liquors, provisions, "or other articles of traffic," is not to be restricted to articles of like nature with those enumer- ated, but the prohibition applies to all kinds of merchan- dise; the enumeration being merely of such articles as would be most likely to be exposed and most obnoxious to the prohibition.^^" Limitations and Exceptions The rule of construction, that general and unlimited terms are restrained and limited by particular recitals, when used in connection with them, does not require the rejec- tion of general terms entirely, and it is to be taken in con- nection with other rules of construction, not less important, such as that an act should be so construed as to carry out the declared intention of the legislature. "The doctrine of ejusdem generis is but a rule of construction to aid in ascertainmg the meaning of the legislature, and does not warrant a court in confining the operation of a statute within narrower limits than was intended by the lawmak- ers. The general object of an act sometimes requires that the final general term shall not be restricted in meaning by its more specific predecessors." ^°'' For example, where a 25 8 Kentucky v. Dennison, 24 How. 66, 16 L. Ed. 717; Morton v. Skinner, 48 Ind. 123 ; In re Brown, 112 Mass. 409, 17 Am. Rep. 114 ; State ex rel. Brown v. Stewart, 60 Wis. 5S7. 19 N. W. 529, 50 Am. Rep. 388; Commonwealth v. Hare, 36 Pa. Super. Ct. 125. Compare In re Greenough, 31 Vt. 279. See "Statutes," Dec. Dig. (Key No.) I m; Cent. Dig. § S72. 259 Riggs V. State, 7 Lea (Tenn.) 475. See "Statutes," Deo. Dig. {Key No.) § 19Jf; Cent. Dig. § 272. 260 Willis V. Mabon, 48 Minn. 140, 50 N. W. 1110, 16 L. R. A. 281, 31 Am. St. Rep. 626 ; State v. Williams, 2 Strob. (S. C.) 474 ; Kaiser V. Idleman (Or.) 108 Pae. 193, 28 L. R. A. (N. S.) 169; Wonner v. City of Carterville, 142 Mo. App. 120, 125 S. W. 861; Prindle v. United States, 41 Ct. CI. 8; Vassey t. Spake, 83 S. C. 566, 65 S. B. 825 ; Gibson v. People, 44 Colo. 600, 99 Pac. 333 ; Mertens v. South- 216 CONSTRUCTION OF LANGUAGE (Ch. 5 statute prohibited judicial officers from exacting fees, ex- cept as expressly allowed in the act, from "any guardian, executor, administrator, or other person," and there was nothing in the context to show an intention to restrict the operation of the statute to probate business, the court thought it plainly evident that the legislature designed to put a stop to the taking of excessive fees in all cases before the courts, and hence the law was applied where an illegal fee had been taken in a criminal case, though that was not at all ejusdem generis with those enumerated. ^*^ In an- other case, where a statute imposed a punishment for resist- ing a "sheriff, constable, or other officer," it was held that, as a supervisor of roads is completely within the term "offi- cer," he must be deemed within the protection of the stat- ute, unless the context indicated that the legislature in- tended to include only that particular class of officers who are ministerially connected with the courts.^*" On similar principles, the court in South Carolina ruled that the act imposing a penalty on any person who willfully put into any bale of cotton any "stone, wood," or "any matter or thing whatsoever," embraced the putting in of an undue quantity of water. This decision was rested on the ground that the plain and evident purpose of the legislature was to punish frauds in packing cotton, without regard to the character of the material used.^"' In a municipal ordi- nance respecting the "hawking and peddling of market prod- uce and other articles," the general term includes every- thing which may be disposed of by the method known as "hawking or peddling," and cannot be restricted to articles ern Coal & Mining Co., 235 111. 540, 85 N. B. 743 ; Pein v. Miznerr, 41 Ind. App. 255, 83 N. E. 784; Misch v. Russell, 136 111. 22, 26 N. E. 528, 12 L. R. A. 125 ; State v. Broderick, 7 Mo. App. 19 ; Williams V. Williams, 10 Terg. (Tenn.) 20. See "Statutes," Dec. Dig. (Key 2fo.) I, X9Jt; Cent. Dig. § 272. 261 Foster v. Blount, 18 Ala. 687. See "Statutes," Deo. Dig. (Key No.) I 194; Cent. Dig. § 272. 282 Woodworth v. State, 26 Ohio St. 196. See "Statutes," Deo. Dig. (Key Wo.) § 194; Cent. Dig. § 272. 208 State V. Holman, 3 MeCord (S. C.) 306. And see State v. Solo- mon, 33 Ind. 450. See "Statutes," Dec. Dig. (Key No.) § 194; Cent. Dig. § 272. §'71) GENERAL TERMS FOLLOWING SPECIAL TERMS 217 of food; hence it may include going from house to house and soliciting the sale of books. ^°* A statute providing that a street railroad may be operated by "steam, horse, or other power" does not limit the road to the employment of ani- mal power (the use of steam being els.ewhere forbidden), but it may employ electricity."*" It may also be stated generally that the courts are more disposed to relix the severity of this rule (which is really a rule of strict construction) in the case of statutes, obvi- ously remedial in their nature or designed to effect a be- neficent purpose. For example, the term "other final pro- cess," in a constitutional provision exempting certain per- sonal property from sale on execution or other final process, has been held to grant an exemption from garnishment; the court saying that "to hold otherwise would be a too narrow interpretation of the constitutional provision found- ed in humanity and benevolence, and intended to secure an unfortunate debtor the means of livelihood free from the claims of creditors." "'^ Another very important limitation upon the application of this rule is that when the particular and specific words embrace all the objects in their class, or exhaust the whole genus, the general words following cannot be regarded as mere surplusage or as devoid of meaning. On the contrary, attention must be paid to the rule (said to be more imper- ative than the "ejusdem generis" rule) that a statute must be so construed, if possible, that effect shall be given to every word of it. Here, therefore, the general words can- not be restricted to the similitude of the specific terms, but must be int-erpreted as applicable to a larger class, or as embracing objects definitely within their own meaning, but 284 Borough of Warren v. Geer, 117 Pa. 207, 11 Atl. 415. See "Statutes," Dec. Dig. (Key No.) § iS-j; Cent. Dig. § 272. 265Taggart v. Newport St. Ry. Co., 16 R. I. 668, 19 Atl. 326, 7 L. R. A. 205 ; Hudson River Tel. Co. v. Watervllet Turnpike & R. Co., 56 Hun, 67, 9 N. Y. Supp. 177. See "Statutes," Dec. Dig. (Key No.) § 194; Cent. Dig. § 272. 266 Williamson v. Harris, 57 Ala. 40, 29 Am. Rep. 707. See "Stat- utes," Dec. Dig. (Key No.) § 194; Cent. Dig. § 273. 218 CONSTRUCTION OF LANGUAGE (Ch. 5 not of the likeness of those before enumerated.^"'' On this principle, a statutory provision exempting from taxation property given in support of religious, charitable, or edu- cational institutions, and applicable to "lands, tenements, hereditaments, and. other estate" so given, may be con- strued to include money.^"' Care must also be taken, in applying the rule under con- sideration, to see that the words supposed to be particular or specific, and which precede the general term or terms, really are an enumeration of individual things; for if the preceding term is general, as well as that which follows, there is no place for this rule to apply. An example of this is found in a statute relating to cheating by means of "any false token or writing, or by any other false pretense." Here the last clause is not to be limited by that which pre- cedes, because "false token" and "false writing" are generic terms, not specific, and the statute does not attempt to enu- merate the pretenses which shall be held criminal. ^°° It is further to be remarked that this principle or rule applies only where the specific words preceding the general expression are all of the same nature. "Where they are of different genera, the meaning of the general word remains unaffected by its connection with them. Thus, where an act made it penal to convey to a prisoner, in order to facili- 28 7 Hyde's Ex'rs v. Hyde, 64 N. J. Eq. 6, 53 Atl. 593; United States Cement Co. v. Cooper, 172 Ind. 599, 88 N. E. 69; Weiss v. Swift & Co., 36 Pa. Super. Ct. 376; Ellis v. Murray, 28 Miss. 129; Strange v. Board of Com'rs of Grant County, 173 Ind. 640, 91 N. E. 242; 506. And see Hurley v. Inhabitants of South Thomaston, 105 Me. 301, 74 Atl. 734, holding that where a statute deals with a genus, anl something afterwards comes into existence which is a species of it, the language of the statute will be extended to the new matter, though it was not known and could not have been contemplated by the legislature at the time the act was passed. See "Statutes," Deo. Dig. {Key No.) § 194; Cent. Dig. § S72. 268 Atwater v. Inhabitants of Town of Woodbridge, 6 Conn. 223, 16 Am. Dec. 46. See "Statutes," Dec. Dig. {Key No.) § 194; Cent. Dig. § 272. 20 8 Higler v. People, 44 Mich. 299, 6 N. W. 664, 38 Am. Rep. 267. And see Martin v. State, 156 Ala. 89, 47 South. 104. See "Statutes,'^ Dec. Dig. {Key No.) § 194; Cent. Dig. § 272. §72) EXPRESS MENTION AND IMPLIED EXCLUSION 219 tate his escape, any 'mask, dress, or disguise, or any letter, or any other article or thing,' it was held that the^ last general terms were to be understood in their primary and wide meaning, and as including any article or thing what- soever which could in any manner facilitate the escape of a prisoner, such as a crowbar." "" Finally, when it can be seen that the particular word or term by which the general term is followed was inserted, not to give a coloring to the. general term, bull for a distinct object, then, to carry out the object of the statute, the gen- eral term should govern; it would be a mistake to allow the rule to pervert the construction.?"^ EXPRESS MENTION AND IMPLIED EXCLUSION 72.' It is a general rxUe of statutory construction (to be ap- plied under proper conditions and with important limitations) that the express mention of one per- son, thing, or consequence is tantamount to an ex- press exclusion of all others."''' The maxim "expressio unius est exclusio alterius" is of very important, though limited, application in the interpre- tation of statutes. It is based upon the rules of logic and the natural workings of the human mind. But it is not to be taken as establishing a Procrustean standard to which all statutory language must be made to conform. On the contrary, it is useful only as a guide in determining the 270 Maxwell, Interp. (2d Ed.) 413, citing Queen v. Payne, L. R. 1 C. C. 27. And see McReynoIds v. People, 230 111. 623, 82 N. E. 945. See "Statutes," Dec. Dig. (Key No.) § Wi; Cent. Dig. § 272. 271 State T. Broderick, 7 Mo. App. 19; Wonner v. City of Carter- ville, 142 Mo. App. 120, 125 S. W. 861. See "Statutes," Dec. Dig. (Key No.) § IH; Gent. Dig. § 272. 2" Consolidated Coal Co. of St. Louis v. Miller, 236 111. 149, 86 N. B. 205; Goodrich v. State, 133 Wis. 242, 113 N. W. 888; In re Bailey's Estate, 31 Nev. 377, 103 Pac. 232 ; McFadden v. Blockei.-, 2 Ind. T. 260, 48 S. W. 1043, 58 L. R. A. 878 ; Wabash R. Co. v. United States, 178 Fed., 5, 101 G. C. A. 133. See "Statutes," Deo. Dig. (Key No.) § 135; Cent. Dig. § 273. 220 CONSTRUCTION OF LANGUAGE (Ch. 5 probable intention of the legislature, and if it should be clearly apparent, in any particular case, that the legislature did not in fact intend that its express mention of one thing should operate as an exclusion of all others, then the maxim must give way.^^' It has indeed been said that, at least in the construction of criminal statutes, this rule is too gen- eral and subject to too many exceptions in its application, to be allowed to govern.^'* But though it must be applied with great caution, there are still many cases in which it undoubtedly helps the interpreter to a clear understanding of the legislative design. It is particularly applicable in the construction of such statutes as create new rights or rem- edies, derogate from the common law, impose penalties or punishments, or otherwise come under the rule of strict construction. For instance, where a statute enlarging the powers of married women specifically enumerates the cases in which they may sue in their own names, this maxim applies, and they cannot maintain an action in any other cases."'" So, where a statute defining an offense designates one class of persons as subject to its penalties, it is to be understood that all other persons are not made liable."'" Again, when a statute assumes to specify the effects of a certain provision, it is to be presumed that no others' are intended than those described."'' And so, if there is an enumeration of the cases in which creditors shall be allowed to recover interest on their demands, it may safely be as- 2»8 City of Portland v. New England Telephone & Telegraph Co., 103 Me. 240, 68 Atl. 1040; Swlck v. Coleman, 218 111. 33, 75 N. B. 807 ; McFarland v. Missouri, K. & T. Ry. Co., 94 Mo. App. 336, 68 S. W. 105 ; Kemp v. City of Monett, 95- Mo. App. 452, 69 S. W. 31 ; City of Lexington v. Commercial Bank, 130 Mo. App. 687, 108 S. W. 1095 ; Kinney v. Heurlng, 44 Ind. App. 590, 87 N. E. 1053. See "Statutes," Deo. Dig. (Key No.) § 195; Cent. Dig. § 273. 27* State V. Connor, 7 La. Ann. 379. See "Statutes," Dec. Dig. (Key No.) § 195; Cent. Dig. § 273. 276 Miller v. Miller, 44 Pa. 170. See "Statutes," Deo. Dig. (Key No.) § 195; Cent. Dig. § 273. 2 78 Howell V. Stewart, 54 Mo. 400. Johnson y. Southern Pac. Co.. 117 Fed. 462, 54 C. C. A. 508. See "Statutes," Dec. Dig. (Key No.) § 195; Cent. Dig. § 273. 277 Perkins v. Thornburgh, 10 Cal. 189. See "Statutes," Deo. Dig. (Key No.) § 195; Cent. Dig. § 273. § 72) EXPRESS MENTION AND IMPLIED EXCLUSION 221 sumed that it was not the legislative intention to allow it in any other cases. "^^ In an act forming a new county out of portions of old ones, a provision for the transfer of suits pending against defendants from the courts of the old coun- ties into those of the new, without referring to administra- tions pending in the former, is to be construed as an expres- sion of legislative intent that such administrations should not be removable.'" Again, a law of Texas, enacted in 1846, provided that collectors of taxes should receive in payment thereof "all coins made current by the laws of the United States and the exchequer bills of the republic." By previous laws they had been authorized to receive certain certificates issued by the republic. It was held that they were not bound to receive these certificates after the pas- sage of the act mentioned.'"" Particularly when a statute gives a new right or a new power, and provides a specific, full, and adequate mode of executing the power or enforcing the right given, the fact that a special mode is prescribed will be regarded as excluding, by implication, the right to resort, to any other mode of executing the power or of en- forcing the right."'^ A statute granting pieces of land. to 278Watkms v. Wassell, 20 Ark. 410. See "Statutes," Dec. Dig. (Key No.) § 195; Cent. Dig. § 273. 279 Page V. Bartlett, 101 Ala. 193, 13 South. 768. See "Statutes," Dec. Dig. (Key No.) § X95; Cent. Dig. § 273. 280 Bryan v. Sundberg, 5 Tex. 418. See "Statutes," Dee. Dig. (Key No.) § 195; Cent. Dig. § 273. « 281 Scott V. Ford, 52 Or. 288, 97 Pac. 99; Johnston v. City of liouisville, 11 Bush (Ky.) 527. Where a statute, which confers spe= cial privileges, also imposes specified duties, and provides a remedy for the neglect of them, that remedy alone must be pursued by per- sons who would seek redress for such neglect. Bassett v. Carleton, 32 Me. 553, 54 Am. Dec. 605; Calking v. Baldwin, 4 Wend. (N. Y.) 667, 21 Am. Dec. 168. A statute incorporating the proprietors of a canal having prescribed a particular remedy for all damages occa- sioned by the opening of the canal, all other modes of remedy are excluded by necessary implication. Spring v. Russell, 7 Me. 273. A statute which enumerates the particular things which shall be necessary to create a lien on real estate excludes the Idea of the doing of any other things as essential to the completeness of the lien. Hughes v. Wallace (Ky.) 118 S. W. 324. And see Taylor v. Taylor, 66 W. Va. 238, 66 S. B. 690. See "Statutes," Dec. Dig. (Key No.) § 195; Cent. Dig. § 273. 222 CONSTKUCTION OF LANGUAGE (Ch, 5 Indians, and prescribing a specific mode in which they may- sell the same, impliedly forbids a sale in any other mode.^'^ So, an act of Congress conferring on the secretary of war the power to discharge enlisted minors on certain condi- tions, must be construed as having provided a rnode by which persons improperly enlisted can be discharged, and as having forbidden other modes of obtaining their dis- charge.^*' Another case in which this maxim may almost invariably be followed is that of a statute which makes cer- tain specific exceptions to its general provisions. Here we may safely assume that all other exceptions were intended to be excluded."'* For instance, where a law imposing taxes generally makes an express exception in favor of a certain class of persons, this exception excludes all others, and negatives the idea that any other exception was in- tended.2*= But there are many cases in which it would obviously be inappropriate to judge the statute solely by the maxim in question. For one thing, "the maxim does not apply to a statute the language of which may fairly comprehend many different cases, in which some only are expressly mentioned by way of example merely, and not as excluding others of a similar nature." ^'° Again, where the statute is plainly directed to one particular thing, and there is no reason why its terms should in any manner affect other related or sim- ilar things lying outside its specific purpose, the rule of "expressio unius" would»be an unsafe guide. Thus, a law prescribing what shall be an appearance for a certain pur- 28 2 Smith v. Stephens, 10 Wall. 321, 19 L. Ed. 933. See "Statutes," Dec. Dig. (Key No.) § 195; Cent. Dig. § 273. 283 Matter of O'Connor, 48 Barb. (N. Y.) 258. See "Statutes," Dec. Dig. (Key No.) § 195; Cent. Dig. § 273. 284 Wabash R. Co. v. United States, 178 Fed. 5, 101 C. 0. A. 133; Cella Commission Co. v. Bohlinger, 147 Fed. 419, 78 0. C. A. 467; Kunkalman v. Gibson, 171 Ind. 503, 84 N. E. 985 ; Herlng v. Clement, 133 App. Div. 293, 117 N. Y. Supp. 747. See "Statutes," Deo. Dig. (Key No.) 1195; Cent. Dig. § 273. 286 Miller v. Kirkpa trick, 29 Pa. 226; Montgomery v. Inhabitants of City of Trenton, 40 N. J. Law, 89. See "Statutes," Dec. Dig. (Key No.) § 195; Cent. Dig. § 273. 286 Sutherland, Stat. Constr. § 329. See "Statutes," Dec. Dig. (Key No.) § 195; Cent. Dig. § 273. § 73) EELATIVE AND QUALIFYING TERMS 223 pose does not preclude an appearance in a different man- ner for other purposes."*' And although a statute provides that a certain thing shall prove a certain fact, this does not render other proof of the fact incompetent, unless it is ex- plicitly so provided.'** It is sometimes said that the converse of this rule is equally available in statutory construction; that is, that the express exclusion of one thing will operate as the inclu- sion of all others. Thus, if a statute explicitly provides that a court, in certain cases, shall not impose a fine of less than $100, this implies the power to impose a line of $100 or more.''*" But this inversion of the rule is to be applied with even greater caution than the rule itself. We should not infer the inclusion of one thing from the exclusion of another, unless such an inference is very clearly in accord- ance with the intention of the legislature, or unless it is necessary to give the statute effect and operation. Partic- ular care should be observed in resisting the conclusion that the express shutting out of one thing will necessarily let in its opposite. For example, if a statute declares that husband and wife shall not be competent or coinpellable to give evidence for or against each other in any criminal proceeding, this does not make them competent in civil cases."'" RELATIVE AND QUALIFYING TERMS 73. As a general rule, relative, qualifying, or limiting words or clauses in a statute are to be referred to the next preceding antecedent, unless the context, or the evident meaning of the enactment, requires a different construction. 28T State ex rel. Curtis v. McCullough, n Nev. 202. See "Statutes," Deo. Dig. {Key No.) § 195; Cent. Dig. § 273. 288 Town of Bethlehem v. Town of Watertown, 51 Conn. 490. See "Statutes," Dec. Dig. (Key No.) § 195; Cent. Dig. § 21S. 288 Hanklns v. People, 106 111. 628. See "Statutes," Dec. Dig. (Key No.) § 195; Cent. Dig. § 273. 280 Barbat v. Allen, 7 Exch. 609. See "Statutes," Deo. Dig. (Key No.) § 195; Cent. Dig. § 273. 224 CONSTRUCTION OF LANGUAGE (Oil. 5 This grammatical rule is of use only in cases where there is ambiguity or doubt on the face of the statute. If there is difificulty in interpreting the qualifying words of a sen- tence, the rule is to apply the relatives "which," "such," "said," and other relative or limiting words or phrases, to such terms or clauses as shall immediately precede them, rather than to such as are more remote."'^ But the rule that a relative or qualifying word refers to its last anteced- ent is. not invariable: It will yield to the evident sense and meaning of the statute. It is a rule of grammar, and a statute is presumed to be grammatically expressed. But this will not be held in the face of the apparent and rational interpretation of the act.^°^ "It is true that in strict gram- matical construction, the relative ought to apply to the last antecedent; but there are numerous examples in the best writers to show that the context may often re- quire a deviation from this rule, and that the relative may be connected with nouns which go before the last antecedent, and either take from it or give to it some quali- fication." ="^ Particularly where a relative or qualifying phrase cannot be applied to its immediate antecedent with- out producing absurd results, or violating the evident pur- pose of the legislature, the rule requiring such reference 2 81 Gaither v. Green, 40 La. Ann. 362, 4 .South. 210; Gushing v. Worrick, 9 Gr^y (^ass.) 382 ; Fowler v. Tuttle, 24 N. H. 9 ; Ohesnut Hill & Spring House Turnpike. Road Co. v. Montgomery County, 228 Pa. 1, 76 Atl. 726 ; Piper v. Boston & M. R. R. (N. H.) 75 Atl. 1041 ; Old Dominion Building & Loan Ass'n v. Sohn, 54 W. Va. 101, 46 S. E. 222 ; Ellis v. Horine's Devisees, 1 A. K. Marsh. (Ky.) 417 ; Hln- richsen v. Hinrichsen, 172 111. 462, 50 N. B. 135; Summerman v. Knowles, 33 N. J. Law, 202 ; Steinlein v. Halstead, 52 Wis. 289, 8 N. W. 881 ; Pub. St. N. H. 1901, c. 2, § 14 ; V. S. 15. See "Statutes," Dec. Dig. (Key No.) § 196; Cent. Dig. § 27.J. 2 92 Fisher v. Connard, 100 Pa. 63; Gyger's Estate, 65 Pa. 311; State V. Stoller, 38 Iowa, 321 ; Greenough y, Phoenix Assur. Co. of London, 206 Mass. 247, 92 N. E. 447 ; Kemp v. Holland, 10 Mo. 255 ; Ricketts v. Lewis, 1 Barn. & Aid. 197. iSfee "Statutes," Deo. Dig. (Key No.) § 196; Cent. Dig. § 27/,. aoSiStaniland v. Hopkins, 9 Mees. & W. 178, per Lord Abinger. See, also, Great Western R. Co. v. Swindon & C. E. R. Co., L. R. 9 App. Cas. 787. See "Statutes," Deo. Dig. (Key No.) g 196: Cent. Dig. § 27^. §73) RELATIVE AND QUALIFYING TERMS 225 must be rejected; and in such a case, the phrase may be made to qualify any other part of the statute to which the intention of the legislature, so far as it can be discovered, would seem to make it applicable.''"* For instance, a stat- ute provided that certain officers should not be "liable to military or jury duty, nor to arrest on civil process, or to service of subpoenas from civil courts, whilst actually on duty." According to the usual rules of English composi- tion, the qualifying phrase "whilst actually on duty" would apply only to the last antecedent, "service of subpoenas," etc. But it was held that this would not carry out the plain and evident intention of the legislature, and consequently, the act should be read as exempting these persons, whilst actually on duty, both from arrest and from the service of process.^'" Again, a statute authorized exterritorial service of process on nonresident defendants in suits in equity "concerning goods, chattels, lands, tenements, or heredita- ments, or for the perpetuating of testimony concerning any lands, tenements, and so forth, situate or being within the jurisdiction of such court." It was held that the qualifying phrase "situate or being within the jurisdiction" referred not merely to the last antecedent, "perpetuating of testi- mony," etc., but also to the first clause of the sentence quoted.'"" So again, a statutory authority to levy a tax to defray the "current expenses of the year" has been held equivalent to "the expenses of the current year," because the adjective could properly be made to quaHfy only the 2 9* State ex rel. Board of Com'rs of Ross County v. Zanesville & Maysville Turnpike Road Co., 16 Ohio St. 308. See "Statutes," Dec. Dig. (Key No.) § 196; Cent. Dig. § 274. 2 85 Hart V. Kennedy, 14 Abb. Prac. (N. Y.) 432. And see United States V. Santistevan, 1 N. M. 583, holding that, where several conditions are set out disjunctively in a statute, a qualifying phrase attached to the last applies equally to each of the others which has not a qualifying phrase attached to itself, and where the qualifica- tion will not render the condition inoperative. See "Statutes," Deo. Dig. (Key No.) § 196; Cent. Dig. § 271 2 80 Eby's Appeal, 70 Pa. 311. See "Statutes," Dec. Dig. (Key No.) § 196; Gent. Dig. § 274. Black Int.L. — 15 226 CONSTKUCTION OF LANGUAGE (Ch. 5 last word."^ Also it is said that general words occurring at the end of a sentence are presumed to refer to and qual- ify the whole, but if they occur in the middle of a sentence, and obviously apply to a particular portion of it, they are not to be extended to what follows them.''''* REDDENDO SINGULA SINGULIS 74. Where a sentence in a statute contains several anteced- ents and several consequents, they are to be read , distributively ; that is to say, each phrase or ex- pression is to be referred to its appropriate object. "The different portions of a sentence, or different sen- tences, are to be referred respectively to the other portions or sentences to which we can see they respectively relate, even if strict grammatical construction should demand otherwise. The maxim of construction, 'reddendo singula singulis,' is well established." ^"^ "It is one of the best set- tled rules of construction that words in different parts of a statute must be referred to their appropriate connection, giving to each in its place its proper force, reddendo singula singulis, and, if possible, rendering none of them useless or superfluous." ^'"' To illustrate, a question having arisen as to the construction of the words "for money or other good consideration paid or given," in an English statute, it was decided that the consequent "paid" should be referred to the antecedent "money" and the consequent "given" to the antecedent "consideration" ; that is, the sentence should be ist Babcock v. Goodrich, 47 Cal. 488. See "Statutes," Dec. Dig. (Key No.) § 196; Cent. Dig. § 27^. 2 98 Coxson V. Doland, 2 Daly (N. Y.) 66. See "Statutes," Dec. Dig. (Key No.) § 196; Vent. Dig. | 274. 2 09 Commonwealth v. Barber, 143 Mass. 560, 10 N. E. 330. See "Statutes," Deo. Dig. (Key No.) § 196; Cent. Dig. § Z74. sooMcIntyre v. Ingraham, 35 Miss. 25; Old Dominion Building & Loan Ass'n v. Sohn, 54 W. Va. 101, 46 S. E. 222. See "Statutes," Dec. Dig. (Key No.) § 196; Cent. Dig. § 274. § 74) REDDENDO SINGULA SINGULIS 227 read as if it spoke of "money paid or other good considera- tion given." '"^ Again, a statute provided for its adoption by cities and towns "at a legal meeting of the city council or the inhabitants of the town called for that purpose." It was held, on this principle, that only in the case of a town need a meeting be called for the specific ptirpose.'"^ An act of Congress declared that all fines, penalties, and for- feitures accruing under the laws of Maryland and Virginia, in the District, of Columbia, should be recovered by indict- ment or information in the name of the United States, or by action of debt in the name of the United States and of the informer. It was held that a proceeding for a penalty under the law of one of those states, which, by such law, could not have been taken by indictment, but by a private action, should be, not by indictment in the name of the United States, but by an action of debt.^"' Again, "where several words importing power, authority, and obligation, are found at the commencement of a clause containing sev- eral branches, it is not necessary for each of those words to be applied to each of the different branches of the clause; it may be construed reddendo singula singulis; the words giving power and authority may be applicable to some branches,' and those of obligation to others." ThuSj in the case from which this quotation is made, it appeared that an act of Parliament provided "it shall and may be lawful for the said directors, and they are hereby authorized and required to form a new common sewer" in a certain direc- tion, "and also to alter or reconstruct all or any of the sew- ers of the city at the mouths." It was held, taking the lan- guage distributively, that the directors were "required" to construct a new common sewer, and "authorized" to alter or reconstruct the existing ones.^°* 301 Potter's Dwarris on Stat. 230. See "Statutes," Deo. Dig. {Key No.) § 196 J Gent. Dig. §_ 274. 302 Qulnn V. Lowell Electric Light Corp., 140 Mass. 106, 3 N. E. 200. See "Statutes," Dec. Dig. (Key No.) § 196; Cent. Dig. § 27^. . 3 03 United States t. Simms, 1 Cranch, 252, 2 L. Ed. 98. See "Stat- utes," Dec. Dig. (Key No.) § 196; Cent. Dig. § 27^. 304 King V. Bristol Dock Co., 6 Barn. & C. 181. See "Statutes," Dec. Dig. (Key No.) § 196; Cent Dig. § 27^. CONSTRUCTION OF LANGDAGffl (Oh. 5 CONJUNCTIVE AND DISJUNCTIVE PARTICLES i. The word "and," in a statute, may be read "or," and vice versa, whenever the change is necessary to give the statute sense and effect, or to harmonize its different parts, or to carry out the evident in- tention of the legislature,*"' This rule is based upon the assumption that the legisla- re could not have intended to produce an absurd or un- asonable result, or to express itself in terms which would feat the very objects of the enactment ; and consequently, tien such effects would follow a literal construction of e statute, the conjunctive particle may be read as dis- nctive, or vice versa, on the theory that the word to be rrected was inserted by inadvertence or clerical error. 3r instance, a constitutional provision that no person shall deprived of his life, liberty, or property "without due ocess of law and the judgment of his peers" does not re- tire a trial by jury in every case where one's liberty or operty is to be affected; but in view of the whole his- ry of this constitutional guaranty, from Magna Charta iwn, it is apparent that the word "and" should be read r." °'" So a statute authorizing a city to provide for the 106 Metropolitan Board of Works v. Steed, L. R. 8 Q. B. Div. 445 ; mmon wealth v. Harris, 13 Allen (Mass.) 534 ; Commonwealth v. Grif- , 105 Mass. 185 ; State v. Brandt, 41 Iowa, 593 ; McConky v. Superior art of Alameda County, 56 Cal. 83 ; O'Connell v. Gillespie, 17 Ind. ); Ayers v. Chicago Title & Trust Co., 187 111. 42, 58 N. E. 318; omas V. City of Grand Junction, 13 Colo. App. 80, 56 Pac. 665; ite V. Myers, 146 Ind. 36, 44 N. E. 801 ; Douglass v. State, 18 Ind. p. 289, 48 N. E. 9 ; James v. United States Fidelity & Guaranty ., 133 Ky. 299, 117 S. W. 406 ; People ex rel. Cohen v. Butler, 125 p. Div. 384, 109 N. Y. Supp. 900; People ex rel. Municipal Gas , of Albany v. Rice, 138 N. Y. 151, 33 N. E. 846 ; Eisf eld v. Ken- rth, 50 Iow», 389; Collins Granite Co. v. Devereux, 72 Me. 422; lliams V. Poor, 65 Iowa, 410, 21 N. W. 753 ; Price v. Forrest, 54 J. Eq. 669, 35 Atl. 1075. See "Statutes," Dec. Dig. (Key No.) § '/ Cent. Dig. § SIB. 100 Jelly v. Dils, 27 W. Va. 267. See "Statutes," Dec. Dig. (Key .) § 197; Cent. Dig. § 275. § 75) CONJDSCTIVE AND DItJUNCTIVE PAKTICLE8 229 "health, comfort, and convenience" of the inhabitants 'does not require that its ordinances should have relation to all three of these objects at once.°°^ A law exempting from execution the tools of a mechanic, used to carry on his trade for the support of "himself and family," should not be so restricted as to deny its benefits to a mechanic who has no family, but "and" should be read as equivalent to "or." ^"* The same change should be made in the reading of a statute which authorizes the probate of a script, as a holographic will, when found among the "valuable papers and effects" of the decedent. To limit it to cases where he happened to keep his papers and his valuable effects all together in the same place would virtually repeal the statute or greatly diminish its benefits."" And a similar construction has been applied to a law requiring certain resolutions of a city council to be "published and posted," the court holding that the purpose of the law would be satisfied by either publication or posting.'*" And so, where a statute provided that a person libeled, in certain cases, might proceed against the author of the libel by indictment "or" bring an action at law for his damages, it was held that it' could not possibly have been the intention of the legislature to giv6' the plaintiff merely his choice between these two remedies, and consequently the word "or" must be read "and." *** In Criminal and Penal Statutes It has sometimes been broadly stated that the word "and" can never be read "or," or vice versa, iii criminal and penal statutes, where the rule of strict construction prevails.*** 3»7 City of Red Wing v. Guptil, 72 Minn. 259, 75 N. W. 234, 41 L. R. A. 321, 71 Am. St. Rep. 485. See "Statutes," Dec. Dig. {Key No.) ! 197; Cent. Dig. § 275. 308 Geiger v. Kobilka, 26 Wasli. 171, 66 Pac. 423, 90 Am. St. Rep. 733. See "Statutes," Dec. Dig. (Key No.) § 197; Cent. Dig. § 275. 308 Hughes V. Smith, 64 N. C. 493. See "Statutes," Dec. Dig. (Key No.) § 197; Cent. Dig. § 275. 310 Washburn v. Lyons, 97 Cal. 314, 32 Pac. 310. See "Statutes," Deo. Dig. (Key No.) § 197; Cent. Dig. § 275. 311 Foster v. Commonwealth, 8 Watts & S. (Pa.) 77. See "Stat- utes," Dec. Dig. (Key No.) § 197; Cent. Dig. § 275. 312 Buck V. Danzenbacker, 37 N. J. Law, 359; Fagan v. State, 47 N. J. Law, 175; United States v. Ten Cases Shawls, 2 Paine, 162, 28 230 CONSTEUCTION OP LANGUAGE (Ch. 5 But it is believed that this statement is altogether too gen- eral. It is opposed to the greater weight of authority, most of the cases holding that such a conversion of these two words, one into the other, is permissible even in statutes of that character, and even where it may operate to the dis- advantage of the accused, when the spirit and reason of the law plainly require and justify it.'^' At any rate, if there is to be a special rule on this point applicable only to penal laws, it is best to adopt that set forth in certain de- cisions of the Supreme Court of North Carolina, namely, that the conjunctive particle should not be read as a dis- junctive, or vice versa, when the effect would be to aggra- vate the offense or increase the punishment.'^* On this principle, a statute punishing the offense of ex- posing an infant with intent to abandon it, when done by "the father and mother," will be so construed that the of- fense therein denounced may be committed by either par- ent alone, "or" being substituted for "and." *^° So a stat- ute providing that any person violating "the first and second sections of this act" shall be liable to a penalty renders a person liable for a violation of either section.*^' On the other hand, where a statute defined the common-law offense of burglary, and made it a felony to "break or enter" a dwelling house in the nighttime, it was held that it should Fed. Cas. 16,448. See "Statutes." Deo. Dig. (.Key No.) § 197; Cent. Dig. § 375. 313 State V. Myers, 10 Iowa, 448; People v. Lytle, 7 App. Div. 553, 40 N. T. Supp. 153 ; Williams v. Poor, 65 Iowa, 410, 21 N. W. 753; City of Indianapolis v. Huegele, 115 Ind. 581, 18 N. E. 172; People V. Sweetser, 1 Dak. 308, 46 N. W. 452; Ex parte Chin Tan, 60 Cal. 78 ; RoUand v. Commonwealth, 82 Pa. 306, 22 Am. Rep. 758 ; United States v. Moore (D. C.) 104 Fed. 78. See "Statutes," Dec. Dig. (Key No.) § 197; Cent. Dig. § 275. 814 State V. Walters, 97 N. C. 489, 2 S. E. 539, 2 Am. St. Rep. 310; State V. Kearney, 8 N. C. 53. See "Statutes," Dec. Dig. (Key No.) § 197; Cent. Dig. § ns. 315 State V. Smith, 46 Iowa, 670. See "Statutes," Dec. Dig. (Key No.) § 197; Cent. Dig. § 275. 310 People V. Sweetser, 1 Dak. 308, 46 N. W. 452; Streeter v. People, 69 111. 595 ; State v. Cain, 9 W. Va. 559 ; Miller v. State, 3 Ohio St. 475. See "Statutes," Dec. Dig. (Key No.) § 197; Cent. Dig. § 275. § 75) CONJUNCTIVE AND DISJUNCTIVE PARTICLES 231 be read "break and enter." '" And so, wher§ a statute im- posed a punishment upon any person who should place obstructions in a water course, whereby the flow of water should be lessened "or" navigation should be impeded, it was held that the word "or" should be read "and." "' But where a statute directs a fine "and" imprisonment, as pun- ishment for an offense, the court is bound to inflict both if the defendant is found guilty.'^* And where it provides for the punishment of persons who shall commit certain acts 'willfully or maliciously," the word "or" cannot be changed into "and." ^"^ Limitations of Rule It must be remembered that the words "and" and "or" are in no sense interchangeable terms, but, on the contrary, they are used in the structure of language for purposes en- tirely different. It must be assumed that the language of a statute is chosen with due regard to grammatical, pro- priety. And therefore the courts are not at liberty to treat these words as interchangeable on mere conjecture or ac- cording to their own notions of expediency or policy. On the contrary, they should be taken in their strict and proper meaning when such a reading does not render the sense of the law dubious, and the substitution Of one for the other is permissible only when the context or other provisions of the statute require it, or when that is necessary to avoid an absurd or impossible consequence and to carry out the evident intention of the legislature.'''^ S17 Holland v. Commonwealth, 82 Pa. 306, 22 Am. Rep. 758. See "Statutes," Dec. Dig. (Key No.) § 197; Cent. Dig. § 275. 818 State V. Pool, 74 (N. C. 402. See "Statutes," Dec. Dig. (Key- ■ No.) § 197; Cent. Dig. § 275. 318 United States v. Vickery, 1 Har. & J. (Md.) 427, Fed. Cas. No. 16,619. See "Statutes," Dec. Dig. {Key No.) § 197; Cent. Dig. § 275. 32C State V. Tiffany, 44 Wash. 602, 87 Pac. 932. See "Statutes," Deo. Dig. {Key No.) § 197; Cent. Dig. § 275. 321 Koch V. Fox, 71 App. Div. 288, 75 N. Y. Supp. 918 ; Oxsheer V. Watt, 91 Tex. 402, 44 S. W. 67 ; Witherspoon v. Jernigan, 97 Tex. 98, 76 S. W. 445; City of Philadelphia v. Arrott, 8 PhUa. (Pa.) 41; Merchants' & Farmers' Bank v. McKellar, 44 La. Ann. 940, 11 South. 592 ; Robinson v. Southern Pac. Co., 105 Oal. 526, 38 Pac. 94, 28 L. R. A. 773; Collins Granite Co. v. Devereux, 72 Me. 422; Common- 2ii2 CONSTRUCTION OP LANGUAGE (Ch. 5 NUMBER AND GENDER OF WORDS 76. Words in a statute importing the plural number may be made applicable to single persons or things, and vice versa, and words importing the masculine gen- der may include females, whenever, in either case, such a construction is in accord with the evident meaning and purpose of the legislature. It is a general rule, as above stated, that words or phrases in a statute expressed in the plural may be taken as includ- ing the singular, and words in the singular may be extended to several. But it is held that this rule is to be applied only when the plain and evident seiise and meaning of the words, derived from the context, render such a construction nec- essary to effect the intention of the legislature.^*^ A stat- ute, for example, enacted that it should be a felony to steal any "bank notes," and it was adjudged that it was a felony to steal one single note.'^^ So, where an act provided for the prosecution of any person who should keep "houses of bawdry and ill fame," it was held that a person might be convicted who kept but one such house.'** And the word "persons," in the plural, may sometimes be construed as applicable to a single person and vice versa.**" Where a wealth ex rel. Attorney General v. KUgore, 82 Pa. 396; Rice v. United States, 53 Fed. 910, 4 C. C. A. 104; In re Steinruck's In- solvency, 225 Pa. 461, 74 Atl. 360. See "Statutes," Dec. Dig. (Key No.) § 197; Cent. Dig. § 275. 822Garrigus v. Board of Com'rs of Parke County, 39 Ind. 66; Jocelyn v. Barrett, 18 Ind. 128. See "Statutes," Dec. Dig. (Key Tfo.) I 188; Cent. Dig. § 276. 3 23 King V. Hassel, 1 Leach Cr. L. 1. See "Statutes," Dec. Dig. (Key No.) § 188; Cent. Dig. § 276. 82 4 State V. Main, 31 Conn. 572. See "Statutes," Dec^ Dig. (Key No.) § 188; Cent. Dig. § 276. 3 26 Hill V. Williams, 14 Serg. & R. (Pa.) 287; People v. Croton Aqueduct Board, 5 AbT). Prac. (N. Y.) 31G; Commonwealth ex rel. Mercer County Court v. Gabbert's Adm'r, 5 Bush (Ky.) 438; Brown V. Delafi?ld, 1 Denio (N. T.) 445 ; Stewart v. Brown, 37 N. Y. 350, 93 Am. Dec. 678. See "Statutes," Dec. Dig. (Key No.) § 188; Cent. Dig. § 276. § 76) NUMBER AND GENDER OF WORDS 233 Statute imposed penalties for a failure "to comply with the conditions of" the section, it was considered that a disobe- dience of any one of the provisions subjected the delinquent to the penalty.'^" Conversely, the word "party," in a stat- ute regulating applications. for a change of venue, was held to signify all of the defendants or all of the plaintiffs in an action.'^' For similar reasons, and under the same conditions, and for the same fjurposes, words importing the masculine gen- der, such as "he," "his," or "man," may be held applicable to a woman. In some states, tl^js rule of construction is enacted, in the code.'"* Such is the case, for example, in Arkansas ; and in that state, where a statute of distribution provided for the case where, "any man shall die, leaving minor children and no widow," the provision was held to be applicable to the case of a woman dying and leaving minor children and no husband.''" But the Supreme Court of Wisconsin refused to admit a woman to practice as an attorney at its bar, on the ground that the statute applicable to such cases provided that, to entitle an applicant to prac- tice in that court, "he" should be licensed by the court. The judges refused to apply the well-known rule of statu- tory construction that words of the masculine gender may be applied to females, unless such construction is inconsist- ent with the manifest intention of the legislature, "in view of the universal exclusion of females from the bar, and in the absence of any other evidence of a legislative intent to require their admission." '"* 828 State V. Kansas City, Ft. S. & G. R. Co. (C. C.) 32 Fed. 722. See "Statutes," Dec. Dig. {Key No.) § 188; Cent^ Dig. § 276. 327 Rupp V. Swineford, 40 Wis. 28. See "Statutes," Dec. Dig. {Key No.) § 188; Cent. Dig. § 276. 32 8 Turner's Adm'r v. Whitten, 40 AI4. 530; Berniaud v. Beecher, 71 Cal. 38, 11 Pac. S02; Pen. Code Tex. 1895, arts. 21, 22; Hurd's Rev. St. 111. 1901, e. 120, § 292 ; Balllnger's Ann. Codes & St. Wash. I 2462. See "Statutes," Dec. Dig. (Key No.) § 188; Cent. Dig. § 276. 32» Smith V. Allen, 31 Ark. 268. See "Statutes," Dec. Dig. {Key No.) § 188; Gent. Dig. § 276. 330 In re Goodell, 39 Wis. 232, 20 Am. Rep. 42. See "Statutes," Dec. Dig. (Key No.) ,§ 188; Cent. Dig. § 276. 234 CONSTRUCTION OF LANGUAGE (Ch. 5 COMPUTATION OF TIME 77. Where a statute requires an act to be performed a cer- tain number of days prior to a day named, or within a definite period after a day or event speci- fied, or where time is to be computed either prior or subsequent to a day named, the usual rule is to exclude one day of the designated period and to include the other.''' 78. The word "year," as employed in statutes, means a pe- riod of twelve calendar months or three hundred and sixty-five days, and always is understood as designating a calendar year, beginning on the first day of January, imless a contrary intent is discov- erable from the context and the subject-matter of the enactment. 79. The word "month," in a statute, means a calendar month. 80. A "vi^eek" is a period of seven consecutive days, and when the term is used in statutes merely as a measure of time, the week may begin and end on any day ; but when it designates a portion of time as marked off by the calendar, it must be under- stood as beginning on Sunday and ending on Sat- urday. 81. A "day," as this term is used in statutes, means a pe- riod of twenty-four hours, beginning and ending (usually but not invariably) at midnight. »8i Stebbins v. Anthony, 5 Colo. 348; Odlorne v. Quimby, 11 N. H. 224; Spencer v. Haug, 45 Minn. 231, 47 N. W. 794; Weeks v. Hull, 19 Conn. 876, 50 Am. Dec. 249; Bonney v. Cocke, 61 Iowa, 303, 16 N. W. 139; State v. Jackson, 4 N. J. Law, 323; Magnusson v. Wil- liams, 111 111. 450 ; Noble v. Murphy, 27 Ind. 502 ; Hahn v. Dierkes, 37 Mo. 574 ; Blake v. Growninshield, 9 N. H. 304 ; Branch v. Wilming- ton & W. R. Co., 88 N. 0. 570. See "Time," Deo. Dig. {Key No.) § 9; Cent. Dig. §§ 11-S2. §§ 77-81) COMPUTATION OP TIMB 235 Computing Number of Days The rule stated above for the computation of a prescribed number of days, or a designated period, by which One day is excluded (generally the first) and the other included, is of very general application, and the courts are nearly all agreed in adopting it. But expressions in regard to time are sometimes found in statutes which require a different interpretation, by reason of the peculiarity of the language used. Thus, where a statute provides that it shall take ef- fect "from and after" its passage, in computing the time when it takes effect, the day. of its passage is to be ex- cluded.*'" So, where notice of an official meeting is re- quired to be given "three weeks before the time of meet^ ing," three successive publications of the notice, made within less than three weeks before the meeting, are not a sufficient compliance.'*' Where a statute requires a no- tice to be given "ten clear days" before a certain time, this means ten perfect intervening days, both days being ex- cluded; and hence a notice given on the 9th, to expire on the 19th, is not in time."* A statute requiring an inspec- tion for public security to be made "once in six months" should be construed as meaning that not more than six months should elapse between two inspections. It is not satisfied by dividing time into periods of six months, and making one inspection early in one period and another late in the next.'" "Year" This word may be so employed in contracts and even in statutes as to show plainly that a shorter period of time than twelve months is intended, and it must then be inter- preted in the sense in which it appears to be used. Thus, 882 Parkinson v. Brandenburg, 35 Minn. 294, 2S N. W. 919, 59 Am. Rep. 326. See "Time," Dec. Dig. (Key No.) § 9; Cent. Dig. §§ 11-32. . 333 In re North Whitehall Tp., 47 Pa. 156. See "Time," Dee. Dig. (Key No.) § 9; Gent. Dig. §§ 11-32. 33* King T. Justices of Herfordshire, 3 Barn. & Aid. 581 ; Zouch v. Empsey, ,4 Barn. & Aid. 522. See "Tim^," Dec. Dig. (Key No.) § 9; Cent. Dig. §§ 11-3S. 335 Virginia & M. Steam Nav.' Co. v. U. S., Taney, 418, Fed. Oas. No. 16,973. See "Time," Dec. Dig. (Key No.) § 9; Cent. Dig. §§ 11-32. 236 CONSTKUCTION OF LANGUAGE (Ch.'S it may denote that season or portion of a year during which agricultural operations are ordinarily carried on, or in which other business of the kind spoken of is conducted.'** But in the absence of a controlling indication of this kind a "year" means a period of twelve months or three hundred and sixty-five days, the added day of a leap year being com- puted as one with the dky immediately preceding.*'' So "half a year" means six months, and a "quarter of a year" is three months.*'* The year, thus defined as to length, is always understood to be a calendar year— that is, one be- ginning on the 1st day of January and ending on the 31st of December — unless a contrary intention is expressed.*** But this is not invariably its meaning. It may be merely a measure of time, commencing on the day of any particular act or transaction, or a period of twelve months beginning on a fixed annual date or anniversary other than the 1st of January. This depends on the subject-matter of the enact- ment and the connection in which the term is used, and these should always be studied to give effect to the true in- tention of the legislature.**" On this principle, the word- 336 Brown v. Anderson, 77 Cal. 236, 19 Pac. 487; Grant v. Maddox, 15 Mees. & W. 737. See "Time," Dec. Dig. {Key No.) § 4; Cent. Dig. § 4. ■ 337 Aultman & Taylor Co. v. Syme, 163 N. Y. 54, 57 N. E. 168, 79 Am. St. Rep. 565; Muse v. London Assur.' Corp., 108 N. C 240, 13 S. B. 94 ; Pol. Code Cal. § 3257 ; Law? N. Y. 1S92, c. 677, § 25 ; Rex V. Addersly, 4 Dougl. 463. See "Time," Deo. Dig. (Key No.) § i; Cent. Dig. § 4. 33 8 Laws N. T. 1892, c. 677, § 25; Rev. Codes N. D. 1899, § 5132; Civ. Code S. D. § 2466. See "Time," Dec. Dig. {Key No.) § 4; Cent. Dig. § 4- 33 9Fretwell v. McLemore, 52 Ala. 124; Garfield Township, Finney County, V. Dodswortli Book Co., 9 Kan. App. 7.52, 58 Pac. 565 ; United States V. Dickson, 15 Pet. 141, 10 L. Ed. 689 ; Engleman v. State, 2 Ind. 91, 52 Am. Dec 494 ; David v. Hardin County, 104 Iowa, 204, 73 N. W. 576 ; Atlanta & C. Air Line Ry. v. Ray, 70 Ga. 674 ; Dickson v. Prisbee, 52 Ala. 165, 23 Am. Rep. 565. This rule is also enacted by statute in many of the states, as will appear by reference to the various codes and revisions. See "Time," Deo. Dig. (Key. No.) § 4; Cent. Dig. § 4. 840 Thornton v. Boyd, 25 Miss. 598; Williams v. Bagnelle, 138 Cal. 699, 72 Pac. 408 ; Brown v. Anderson, 77 Cal. 236, 19 Pac. 487 ; Knode v. Baldridge, 73 Ind. 54; In re Providence Voters, 13 R. I. §§ 77-81) COMPUTATION OF TIME 237 has sometiines been interpreted as meaning a fiscal year, which need not and ordinarily does not coincide with the calendar year; and it is said that when it occurs in a rev- enue or tax law, the presumption is that it means a fiscal year.'*^ So, also, it may mean a license year, or the period of time, not necessarily commencing with the 1st of Jan- uary, for which licenses for various occupations are grant- ed; '*'' or it may denote a "political" year, or the space -of time intervening between elections or during which elective officers hold their offices/*' "Month" It was the rule of the English common law that the term "month," as used in a statute, meant a lunar rtionth, that is, a period of twenty-eight days or four weeks.'** This Tule was applied in the common law courts, but was not recognized by the ecclesiastical courts. According to the usage of the latter, and also in the custom of merchants and by the mercantile law, a month was a calendar month ; thait is, a month reckoned according to the calendar, and contain- ing a greater or less number of days according to the par- ticular month intended. This latter doctrine was estab- lished as the law of England, so far as concerned the inter^ pretation oi this word in future acts of parliament, by St. 13 & 14 Vict. c. 21. In this country, either by statutory en-_ actment, or by judicial interpretation without the aid of statutes, it has come to be the settled rule that a month, in 737 ; Inhabitants of Paris v. Inhabitants of Hiram, 12 Mass. 262. See "Time," Dec. Dig. (Key No.) § ij Cent. Dig. 8 4- s*ijGrlasgow V. ;&owse, 43 Mo. 479. See "Time," Deo. Dig. (Key No.) %4;. Cent. Dig. § 4. 3*2 Disbrow v. Saunders, 1 Denlo (N. Y.) 149. See "Time," Dec. Dig. (Key No.) § 4; Cent. Dig. § 4- 3*3 Thornton v. Boyd, 25 Miss. 598; Inhabitants of Paris v. In- habitants of Hiram, 12 Mass. 262; King y. Sawyer, 10 Barn. & C. 486; United States v. Dickson, 15 Pet. 141, 10 L. Ed. 689. See "Time," Deo. Dig. (Key No.) § 4; Cent. Dig. § i- 8** Rives V. Guthrie, 46 N. C. 84 ; Castle v. Burdett, 3 Term R. 623 ; Oatesby's Case, 6 Coke, 62 ; Lacon v. Hooper, 6 Term fe. 224 ; Webb V. Fairmaner, 3 Mees. & W. 473 ; Warburton v. Sandys, 14 Sim. 622. See "Statutes," Cent. Dig. § 277; "Time," Dec. Dig. (Key No.) § 5; Cent. Dig. §§ 5-8. 238 CONSTRUCTION OF LANGUAGE (Ch. 5 an act of Congress or of a state legislature, always means a calendar month, unless there is something clearly show- ing a contrary intention."" The theory is that the word "month" is not a technical term, but a word in popular and common use, and it should therefore be taken in its usual, common, and accepted meaning, and according to that mean- ing, it always denotes a calendar month, not a lunar month.'" "Week" In its ordinary legal signification, a week is a period of seven consecutive days, commencing on Sunday morning and ending on Saturday night, and this is always its mean- ing when used in statutes as designating a space of time computed according to the calendar ; ^" as, for example, where a statute provides that the judge shall designate the s*B Sheets v. Seldon's Lessee, 2 Wall. 177, 17 L. Ed. 822; Guar- anty Trust & S. D. Co. v. Green Cove Springs & M. R. Co., 139 U. S. 137, 11 Sup. Ct. 512, 35 U Ed. 116 ; Brown v. Williams, 34 Neb. 376, 51 N. W. 851; Strong v. Birchard, 5 Conn. 357; Churchill v. Presi- dent, etc., of Merchants' Bank, 19 Pick. (Mass.) 532; Bartol v. Cal- vert, 21 Ala. 42; Brudenell v. VaUx, 2 Dall. 302, Fed. Cas. No. 2,049; McGinn v. State, 46 Neb. 427, 65 N. W. 46, 30 L. R. A. 450, 50 Am. St. Rep. 617 ; Gasquet v. Crescent City Brewing Co. (C. C.) 49 Fed. 496 ; Riddle v. Hill's Adm'r, 51 Ala. 224 ; Scoville v. Ander- son, 131 Cal. 590, 63 Pac. 1013 ; Daly v. Concordia Fire Ins. Co., 16 'Colo. App. 349, 65 Pac. 416; Guaranty Trust & Safe-Deposit Co. v. Buddington, 27 Fla. 215, 9 South. 246, 12 L. R. A. 770 ; City of Hol- ton V. Bimro(i 8 Kan. App. 265, 55 Pac. 505 ; Baltimore & D. P. R. Co. V. Pumphrey, 74 Md. 86, 21 Atl. 559; Mitchell v. Woodson, 37 Miss. 567; Hosley v. Black, 28 N. Y. 438; Muse v. London Assur. Corp., 108 N. C. 240, 13 S. E. 94 ; McMurchey v. Robinson, 10 Ohio, 496 ; Shapley v. Garey, 6 Serg. & R. (Pa.) 539 ; Bank of Tennessee V. Officer, 3 Baxt. (Tenn.) 173; Kimball v. Lamson, 2 Vt. 138; Brewer v. Harris, 5 Grat. (Va.) 285. See "Statutes," Cent. Dig. I 277; "Time," Dec. Dig. (Key No.) § 5; Cent. Dig. §§ 5-8. 3*8 Gross V. Fowler, 21 Cal. 392. See "Statutes," Cent. Dig. § 277; "Time," Dec. Dig. (Key No.) ■§ 5; Cent. Dig. §§ S-8. 3*7 Leach v. Burr, 188 U. S. 510, 23 Sup. Ct. 393, 47 L. Ed. 567; In re Tyson, 13 Colo. 482, 22 Pac. 810, 6 L. R. A. 472; Steinle v. Bell, 12 Abb. Prac. N. S. (N. Y.) 171 ; Ronkendorff v. Taylor, 4 Pet 349, 7 L. Ed. 882; Raunn v. Leach, 53 Minn. 84, 54 N. W. 1058; Russell V. Croy, 164 Mo. 69, 63 S. W. 849 ; Medland v. Linton, 60 Neb. 249, 82 N. W. 8G6. See "Time," Dec. Dig. [Key No.) § 6; Cent. Dig. i 9. §§ 77-81) COMPUTATION OF TIME 239 "week of time" within which a sentence of death shall be executed,'** or that a notice shall be published "once in each week," '** or that certa;in action shall be taken in "the first week of October." *^'' But where the term is used in law merely as a measure of duration, and without reference to the calendar, it denotes a period of seven consecutive days, irrespective of the "day of the week" on which that period may begin. '"^ "Day" In statutory language a "day" means twenty-four hours. But whether it begins at midnight, or at sunrise, or at some other time, depends upon the intention of the legislature in each, particular case, to be gathered from the context and from the general purpose and subject of the act.''" An "as- tronomical" day extends from noon to noon ; but the "nat- ural" or "civil" day begins at midnight and extends for the space of twenty-four hours to the succeeding midnight; and it is in this latter sense that the word is to be under- stood in statutory enactments, unless a contrary meaning is expressed or necessarily implied.'^' But the term, may 3*8 In re Tyson, 13 Colo. 482, 22 Pac. 810, 6 L. R. A. 472. See "Time," Dec. Dig. (Key No.) § 6; Cent. Dig. § 9. 349 in re City of New Orleans, 52 La. Ann. 1073, 27 South. 592., See "Time," Deo. Dig. (Key No.) % 6; Cent. Dig. § 9. asoMedland v. Linton, 60 Neb. 249, 82 N. W. 866. See "Time," Dee. Dig. (Key No.) § 6; Cent. Dig. § 9. 351 Evans v. Job, 8 Nev. 322 ; Derby & Co. v. City of Moaesto, 104 Cal. 515, 38 Pac. 901 ; Bird v. Burgsteiner, 100 Ga. 486, 28 S. E. 219 ; Raunn v. Leach, 53 Minn. 84, 54 N. W. 1058. See "Time," Dec. Dig. (Key No.) § 6; Cent. Dig. § 9. 35 2 Commonwealth v. Wentworth, 15 Mass. 188; Zimmerman t. , Cowan, 107 111. 631, 47 Am. Rep. 476. See "Time," Dec. Dig. (Key No.) §§ 7-11; Cent. Dig. §§ 10-53. 353 State ex rel. Baxter v. Brown, 22 Minn. 482; Shaw v. Dodge, 5 N. H. 462; Pulling v. People, 8 Barb. ^N. Y.) 384; Corwin v. Comptroller General, 6 S. C. 390; People ex rel. Harless v. Hatch, 33 111. 9, 137 ; City of Eureka v. Diaz, 89 Cal. 467, 26 Pac. 961 ; State ex rel. State Pharmaceutical Ass'n v. Michel, 52 La. Ann. 936, 27 South. 565, 49 L. R. A. 218, 78 Am. St. Rep. 364 ; Benson v. Adams, 69 Ind. 353, 35 Am. Rep. 220 ; Rose v. State, 107 Ga. 697, 33 S. E. 439 ; Kane v. Commonwealth, 89 Pa. 522, 33 Am. Rep. 787 ; Zimmer- man V. Cowan, 107 111. 631, 47 Am. Rep. 476 ; Henderson v. Reynolds, 240 CONSTRUCTION OF LANGUAGE (Ch. 5 include portions of two natural days, making up a space of time not exceeding twenty-four hours/" or it may mean a working day or business day, including only that portion of the twenty-four hours commonly devoted to labor or business, or a day of eight hours or such other period as may be fixed by law as constituting a day for the labor of mechanics and artisans,"** or the space of time from sunrise to sunset, or from dawn to the end of twilight in the even- ing, as in the law of burglary.'"* It is also a general rule that the law does not regard frac- tions of a day. Hence when something is required to be done within a certain number of days from a given event or action, the day upon which the event occurs or the act is done must either be excluded entirely or 6lse counted in as a whole day.'"' Where a statute gives to the owner of lands sold for nonpayment of taxes the privilege of redeem- ing them within two years from the sale, an offer of re- de.mption is. in time if made on the second anniversary of the day of the sale ; i that is, in computing the time, the day of the sale must be excluded, and the owner must be al- lowed the whole of the last day in which to redeem. "A day is always an indivisible point of time," says the court in Pennsylvania, "except where it must be cut up' to pre- vent injustice. In the sense of these statutes, it has neither length nor breadth, but simply position without magnitude. 84 Ga. 159, 10 S. E. 734, 7 L. R. A. 327. See "rime," Dee. Dig. (Key No.) §§ 7-11; Cent. Dig. §§ 10-5,1. a»* Fuller v. Schroeder, 20 Neb. 631, 31 N. W. 109; State v. Padgett, 18 S. C. 317; City of Eureka v. Diaz, 89 Cal. 467, 26 Pac. 961. See "Time," Dec. Dig. (Key No.) §§ 7-Jl; Cent. Dig. §§ 10-53. sot Fay & Egan Co. v. Brown, 96 Wis. 434, 71 N. W. 895; Robin- son V. Dunn, 77 Cal. 473, 19 Pac. 878, 11 Am. St. Rep. 297 ; Mc- Culsky V. Klosterman. 20 Or. 10S. 25 Pac. Hm. 10 "L. R. A. 785: Hlnton V. Locke, 5 Hill (N. Y.) 437 ; White v. Dallas County, 87 Iowa, 563, 54 N. W. 368; Smitli v. Board of Com'rs of Jefferson County, 10 Colo. 17, 13 Pac. 917 ; Rev. St. Wyo. 1899, § 2587. See "Time," Dec. Dig. (Key No.) §§ 7-11; Cent. Dig. §§ 10-53. BOO NicboUs V. State, 68 Wis. 416, 32 N. W. 543, 60 Am. Rep. 870; State V. McKnight, 111 N. C. 690, 16 S. E. 319; 4 Bl. Comm. 224. See "Time," Dec. Dig. (Key No.) §§ 7-11; Cent. Dig. §§ 10-53. SB 7 Brown v. Buzan, 24 Ind. 194. See "Tim^," Dec. Dig. (Key No.) % 11; Cent. Dig. % 5S. §§ 77-81) COMPUTATION OF TIME 241 If the time for redemption were fixed at one day after the sale, that day could not be the day of the sale ; for it might be made at the last moment of the day, and the owner, be- ing thus prevented from tendering on that day, would lose his right. The time mentioned must therefore be the fol- lowing day. So of one year, and of two years." ^°^ 86 8 Cromelian v. Brink, 29 Pa. 522; Edmundson v. Wragg, 104 Pa. 500, 49 Am. Rep. 590 ; Hare v. Carnall, 39 Ark. 196 ; Maxwell v. Jacksonville Loan & Imp. Co., 45 Fla. 425, 34 South. 255; Brainard V. Bushnell, ' 11 Conn. 16 ; Cummins v. Holmes, 11 111. App. 158 ; Towell V. HoUweg, 81 Ind. 154; Fox t. Abel, 2 Conn. 541; Brown V. Buzan,' 24 Ind. 194 ; Haden v. Buddensick, 49 How. Prac. (N. T.) 241; Pressley v. Board of Com'rs of Marion County, 80 Ind. 45; FoUett V. Hall, 16 Ohio, 111, 47 Am. Dec. 365 ; Lester v. Garland, 15 Tes. 257. See "Time," Deo. Dig. (Key A^o.) § 11; Cent. Dig. § 5S. Black INT.L. — 16 .,,,, 242 INTEINSIC AIDS IN STATUTORY CONSTKUCTION (Ch. 6 CHAPTER VI INTRINSIC AIDS IN STATUTORY CONSTRUCTION 82. Context. 83. Title. 84. Preamble. 85. Chapter and Section Headings, -88. Punctuation. 89. Interpretation Claus& CONTEXT 82. Sections, clauses, and provisions of a statute, as well as the particular words and phrases employed, are not to be considered in themselves alone and con- strued as if isolated from the rest, but they are to be interpreted with reference to the language sur- rounding and accompanying them — the context; and if there is any ambiguity or doubt as to their intended meaning, the context must be consulted as a means of removing the obscurity.* When we speak of the "context," it is not meant merely that different words or clauses in the same sentence must be compared with each other, or successive sentences be read together. But in a wider sense, one section of a stat- ute may stand as context to another, whether it immedi- ately precedes or follows it or is more widely separated 1 Blackwood v. Queen, L. R. 8 App. Cas. 82 ; United States v. Pirates, 5 Wheat. 184, 5 L. Ed. 64 ; Cooper v. Shaver, 101 Pa. 547 ; Ruggles V. Washington County, 3 Mo. 496; State ex rel. Harper v. Judge of Ninth Judicial District, 12 La. Ann. 777; Mclntyre v. In- graham, 35 Miss. 25; Crone v. State, 49 ind. 588. In re Corby's Estate, 154 Mich. 353, 117 N. W. 906; State v. Missouri Pac. Ry. . Co., 219 Mo. 156, 117 S. W. 1173 ; Mason v. Cranbury Tp., 68 N. J. Law, 149, 52 Atl. 568; Hidalgo County Drainage Dist. v. Davidson, 102 Tex 639, 120 S. W. 849; Ex parte Prosole (Nev.) 108 Pac. 630. "Ex antecedentibus et consequentibus fit optima interpretatio." 2 Co. Inst. 317. See "Statutes," Dec. Dig. (Key No.) § SOS; Cent. Dig. § 285. § 82) CONTEXT ■ 243 from it, provided it bears upon the same general subject- matter. Thus, for example, where one section of an act provides that a certain notice shall be published for ten days in succession, and another section provides that all notices under the act shall be published daily, Sundays ex- cepted, these two sections must be read together, and they mean that the Sundays shall be included for enumeration, but not for publication.^ If a statute, in one part of it, makes use of a word which is susceptible of two meanings, and in another place the same word is used in a single and definite sense, it is to be understood throughout in the lat- ter sense, unless the object to which it applies, or the con- nection in which it stands, requires it to be dififerently un- derstood in the two places.' It also follows that particular words ought not to be permitted to control the evident meaning of the context. Thus, in a case in Wisconsin, the word "jury" was construed, not according to its common- law signification, but as meaning a board of assessors, be- cause the context made it evident that the latter was the meaning intended by the legislature.* Further, in construing a statute, if there is a mistake ap- parent upon the face pf the act, which may be corrected by referring to other language in the act itself; — that is, the context — the mistake, is not fatal, but may be corrected by the court." Thus, where one word has been erroneously used in a statute for another, and the context affords the means for correction, the proper word will be deemed sub- stituted.' So again, in order to give eiifect to the statute, courts will sometimes transpose sentences, so as to place them in their just connection with the context to which 2 Taylor v. Palmer, 31 Cal. 240. See "Statutes," Deo. Dig. (Key No.) § 208; Cent. Dig. § 285. 3 James v. Dubois, 16 N. J. Law, 285. See "Statutes," Dec. Dig. (Key No.) § 208; Cent. Dig. § '285. 4 Williams v. McDonal, 4 Chand. 65. See "Statutes," Dec. Dig. (Key No.) § 208; Cent. Dig. § 285. 6 Blanchard v. Sprague, 3 Sumn. 279, Fed. Cas. No. 1,517. See "Statutes," Dec. Dig: {Key No.) § 208; Cent. Dig. § 285. e White v. Rio Grande Western Ry. Co., 25 Utah, 346, 71 Pac. 593. See "Statutes," Dec. Dig. {Key No.) § 208; Cent. Dig. § 285. 244 INTRINSIC AIDS IN STATUTORY CONSTRUCTION (Oh, 6 they relate.^ And reference to the context is often neces- sary to avoid inconsistency or contradiction. Where the question concerns the interpretation of a particular clause, regard must first be had to the language of the clause it- self, and then to other clauses in the same act', and that construction should be adopted which permits the whole act to stand consistently together, or which reduces the in- consistency to the smallest possible limits.* Bi-Lingual Texts The early laws of Louisiana were promulgated in both French and English ; and it is held that, in construing those portions of the code of that state which re-enact provi- sions originally enacted in both languages, both texts may be taken into consideration to aid in ascertaining their meaning as parts of one law, and obscurities or ambiguities in the English text may be cleared up by referring to the greater precision of the French text. But if the two texts cannot be reconciled, it is the English which must pre- vail." TITLE 83. The title of a statute Cemnot control or vary the mean- ing of the enacting part, if the latter is plain and unambiguous. But if there is doubt or obscurity in the body of the act, the title may be consulted, as a guide to the probable meaning of the legislature, and should be accorded some weight in the inter- pretation. Especially is this the case in those states whose constitutions require the subject of the act to be expressed in the title. . "t City of Detroit v. Chaffee, 70 Mich. 80, 37 N. W. 882. See "Stat- utes," Dec. Dig. (Key No.) § 208; Cent. Dig. § SS5. 8 United States v. Baltimore & O. S. W. E. Co., 159 Fed. 33, 86 C. C. A. 223. See "Statutes," Dec: Dig. (Key No.) § 208: Gent. Dig. § 285. 8 Viterbo v. Friedlander, 120 U. S. 707, 7 Sup. Ct. 962, 30 L. Ed. 776; Hudson v. Grieve, 1 Mart. O. S. (La.) 143; State v. Dupuy, 2 Mart. O. S. (La.) 177 ; Parish of Lafourche v. Parish of Terrebonne, 34 La. Ann. 1230; State v. Ellis, 12 La. Ann. 390. See "Statutes," Dec. Dig. (Key No.) §§ t8S, 208; Cent. Dig. §S 267, 285. § 83) TITLE 245 In the civil law and the systems derived from it, such as the Scotch, the title of a statute was considered as an im- portant aid in its interpretation, as showing directly the object of the legislative body. The title was called the "rubric" of the statute, because anciently printed in red let- ters, as distinguished from the ordinary black letters of the body of the act. Hence the phrase, in speaking of an ar- gument, "a rubro ad nigrum." And it was a maxim that "nigrum nunquam excedere debet rubrum," the black should never go beyond the red; that is, the text of a-stat- ute should never be read in a sense more comprehensive than the rubric or title.^° The English judges, in most of the earlier cases, refused to take the titles of the statutes into consideration in aid of their interpretation. They held that reference to the ti- tle was not permissible, because it was not a part of the statute. "The title of an act of Parliament," said Chief Jus- tice Holt, "is no part of the law or enacting part, no more than the title of a book is part of the book ; for the title is not the law, but the name or description given to it by the makers." ^^ So, also. Lord Hardwicke observed : "The ti- tle is no part of the act, and has often been determined not to be so, nor ought it to be taken into consideration in' the construction. of this act; for originally there were no titles to the acts, but only a petition and the king's answer ; and the judges thereupon drew up the act into fojm and then added the title ; and the title does not pass the same forms as the rest of the act, only the speaker, after the act is passed, mentions the title and puts the question upon it. Therefore the meaning of this act is not to be inferred from the title, but we must consider the act itself." ^^ But this 10 See Trayner, Lat. Max. 373 ; Wharton, Law Lex. voc. "Rubric." Bee "Statutes," Dec. Dig. (Key No.) § 211; Cent. Dig. § S88. . 11 Mills V. Wilkins, 6 Mod. 62. And see Chance v. Adams, 1 Ld. Raym. 77. See "Statutes," Deo. Dig. (Key 7fo.) § 211; Gent. Dig. § 288. 12 Attorney General t. Lord Weymouth, 1 Ambl. 20. See, also, Hunter v. Nockolds, 1 Macn. & G. 640 ; King v. Williams, 1 W. Bl. 93 ; Jefferys v. Boosey, 4 H. L. Cas. 815, 982 ; Morant v. Taylor, L. E. 1 Ex. Div. 188. This doctrine was followed in a few American cases. 246 INTRINSIC AIDS IN STATUTORY CONSTRUCTION (Ch. 6 doctrine has been of late years silently abandoned. In the later volumes of reports we find many cases in which the title of a Statute has been consulted as an aid in determin- ing the meaning of the statute, and that, as a matter of course and without discussion.^" And Huddleston, B., now says : "I think there is ample authority for saying that the title of an act may be looked at in order to remove any am- biguity in the words of the act." ^* The earlier English doctrine on this point never gained any considerable recognition in this country. On the con- trary, with us, it has been almost universally held that if the provisions contained in the body of the statute are ex- pressed in ambiguous or doubtful language, or so as to be fairly susceptible of more than, one interpretation, then it is permissible aild proper to consider the title of the act, as a clue or guide to the intention and meaning of the legisla- ture, and in this manner and to this extent it may be al^ lowed to aid in the construction of the law.^" But while See State v. Welsh, 10 N. C. 404; Bradford v. Jones, 1 Md. 351; Cohen v. Barrett, 5 Cal. 195. See "Statutes," Dec. Dig. (Key No.) § 21X; Cent. Dig. § 288. 13-Rawley v. Rawley, L. R. 1 Q. B. Div. 460; King v. Inhabitants of Gwenop, 3 Durn. & B. 183 ; King v. Cartwright, 4 Durn. & E. 490 ; King V. Wright, 1 Ad. & El. 434 ; Taylor v. Newman, 4 Best & S. 89. See "Statutes," Dec. Dig. (Key No.) § 211; Cent. Dig. § 2SS. 1* Coomber v. Justices of Berks, L. R. 9 Q. B. Div. 17, 33. And see Bentley v. Rotherham Board of fiealth, L. R. 4 Ch. Div. 588; Brett V. Brett, 3 Add. Ecel. 210. See "Statutes," Dec. Dig. (Key No.) § Sll; Gent. Dig. § 288. 16 Knowlton v. Moore, 178 U. S. 41, 20 Sup. Ct. 747, 44 L. Ed. 969; United States v. Palmer, 3 Wheat. 610, 631, 4 L. Ed. 471; Hadden v. The Collector, 5 Wall. 107, 18 L. Ed. 518 ; Meyer v. West- ern Car Co., 102 U. S. 1, 26 L. Ed. 59; Coosaw Min. Co. v. South Carolina ex rel. Tillman, 144 U. S. 550, 12 Sup. Ct. 689, 36 I* Ed. 537; United States v. Nakashima, 160 Fed. 842, 87 C. C. A. 646; United Shoe Machinery Co. v. Duplessis Shoe Machinery Co., 155 Fed. 842, 84 C. C. A. 76; Robinson v. United States, 42 Ct. CI. 52', Dnited States v. Union Pac. Ry. Co. (C. C.) 37 Fed. 551 ; Wilson v. Spaulding (0. C.) 19 Fed. 304; United States v. McArdle, 2 Sawy. 367, Fed. Cas. No. 15,653; Ogden v. Strong, 2 Paine, 584, Fed. Cas. No. 10,460; People ex rel. Flynn v. Abbott, 16 Cal. 358; Cohen v. Barrett, 5 Cal. 195; Wimberly v. Georgia Southern & F. Ry. Co., 5 Ga. App. 263, 63 S. E. 29 ; Van Walters v. Board of Children's Guard- § 83) TITLE 247 this much is admitted, it is also firmly held that the mean- ing apparent upon the face of the act, if clear, sensible, and free from ambiguity, cannot be modified or varied by any considerations drawn from the title. The court in Georgia, in an early case, remarked : "The great difficulty which has been felt in the minds of some in the construction of this statute, it is believed, has been in giving too much attention to the title and preamble, without carefully examining the enacting clause. The title of the act and the preamble are, strictly speaking, no parts of it. It is true they may assist in removing ambiguities ■wchere the intent is not plain, but where the words of the enacting clause are clear and posi- tive, recourse must not be had to either of them." ^° It fol- lows, therefore, that the title of a statute cannot be used to extend or to restrain any of the provisions contained in the body of the act ; that is, cases which are clearly not within the contemplation of the enacting clause cannot be brought ians of Marion .County, 132 Ind. 567, 32 N. E. 568, 18 L. R. A. 431; aty of Rushville v. Rushvllle Natural Gas Co., 132 Ind. 575, 28 N. E. 853, 15 L. R. A. 321 ; Klnnalrd v. Conmioiiwealth, 134 Ky. 575, 121 S. W. 489 ; State v. Bolden, 107 La. 116, 31 South. 393, 90 Am. St. Rep. 280 ; State v. Archer, 73 Md. 44, 20 Atl. 172 ; Bradford v. Jones, 1 Md. 351 ; Field v. Goodjng, 106 Mass. 310 ; Nickerson v. Bowly, 8 Mete. (Mass.) 429; Commonwealth v. Bank of Mutual Re- demption, 4 Allen (Mass.) 13; Allor v. Wayne Co., 43 Mich. 76, 4 N. W. 492; Torreyson v. Board of State Examiners, 7 Nev. 19; Bell V. Mayor, etc., of New York, 105 N. Y. 139, 11 N. E. 495 ; People v. O'Brien, 111 N. Y. 1, 18 N. B. 692, 2 L. R. A. 255, 7 Am. St. Rep. 684 ; Rosin v. Lidgerwood Mfg. Co., 89 App. Dlv. 245, 86 N. Y. Supp. 49 ; Burgett's Lessee v. Burgett, 1 Ohio, 469, 13 Am. Dec. 634 ; Hines V. Wilmington & W. R. Co., 95 N. C. 434, 59 Am. Rep. 250 ; Common- wealth ex rel. Alliance Petroleum & Coal Co. v. Slifer, 53 Pa. 71; Deddrick v. Wood, 15 Pa. 9; Moore v. Chartiers Valley Water Co., 216 Pa. 457, 65 Atl. "936 ; Kaufman v. Carter, 67 S. C. 312, 45 S. E. 211; State v. Stephenson, 2 Bailey (S. C.) 334; Commonwealth v. Gaines, 2 Va. Cas. 172 ;- Blais v. Franklin (R. I.) 77 Atl. 172. See "Statutes," Dee. Dig. (Key No.) § 211; Cent. Dig. § 2S8. i« Eastman v. McAlpin, 1 Ga. 157. And see In re Boston Mining & Milling Co., 51 Cal. 624; Cornell v. Coyne, 192 U. S. 418, 24 Sup. Ct 383, 48 L. Ed. 504; United States t. McCrory, 119 Fed. 861, 50 C. C. A. 373 ; Porman v. Sewerage & Water Board of New Orleans, 119 La. 49, 43 South. 908; Territory ex rel. Jones v. Hopkins, 9 Oki. 133, 59 Pac. 976. See "Statutes," Dec. Dig. (Key No.) § 211; Cent. Dig. § 288. 248 INTRINSIC AIDS IN STATUTORY CONSTRUCTION {Ch. 6 within it merely because the title appears to include them, nor can cases which are plainly covered by the provisions of the statute be excluded from its operation on the mere ground that the title does not embrace them, unless, in the latter case, the statute fails to conform to the constitutional requirement of correspondence between the title and sub- ject-matter." Thus, where the words of the enkcting clause of a statute, even a penal statute, are more general than the title, it is the enacting clause which must govern.^* And, in particular, the title of a statute cannot be so read into the body of it as to supply the absence of a substantive provision essential to the conferring of power and author- ity.'" In further elucidation of the proper influence of the title in statutory construction, we shall now cite a few of the most conspicuous illustrations found in the reports. A re- cent case before the Supreme Court of the United States involved the interpretation of the "alien contract labor law." The title of this act is "An act to prohibit the importation and migration of foreigners and aliens under .contract or agreement to perform labor in the United States, its ter- ritories, and the District of Columbia." The enacting clause prohibits the importation of "any" foreigners under contract to perform "labor or service of any kind." The question was whether the statute applied to the case of a 17 United States v. Fisher, 2 Cranch, 358, 386, 2 L. Ed. 304; Had- den V. The Collector, 5 Wall. 107, 18 L. Ed. 518; People ex rel. Flynn V. Abbott, 16 Cal. 358; State v. Cazeau, 8 La. Ann. 109; Auditor Gen- eral V. Lake George & H. R. R. Co., 82 Mich. 426, 46 N. W. 730; Union S. B. Co. V. Brie & W. Transp. Co., 189 U. S. 363, 23 Sup. Ct. 504, 47 L. Ed. 854 ; The New York, 108 Fed. 102, 47 C. C. A. 232 ; Pick- ering V. Arrick, 9 Mackey (D. C.) 169 ; South Park Coin'rs v. First Nat. Bank of Chicago, 177 111. 234, 52 N. E. 3G5; State v. Brugh, 5 Ind. App. 592, 32 N. B. 869; Field v. Gooding, 106 Mass. 313; Lo- rain Steel Co. V. Norfolk & B. St. R. Co., 187 Mass. 500, 73 N. E. 646 ; State v. Boasberg, 124 La. 289, 50 South. 162 ; Neumann v. City of New York, 137 App. Div. 55, 122 N. Y. Supp. -62. See "Statutes," Dec. Dig. {Key No.) § Sll; Gent. Dig. § 288. 18 United States v. Briggs, 9 How. 351, 13 L. Ed. 170. See "Stat- vtes," Dec. Dig. (Key No.) § 211; Cent. Dig. § 288. 10 Rider y. United States, 149 Fed. 164, 79 C. O. A. 112. See "Stat- utes," Dec. Dig. {Key No.) § 211; Cent. Dig. § 288. § 83) TITLE 2^9 foreign clergyman imported by an ecclesiastical society to serve as the rector of its church. The court said: "Obvi- ously, the thought expressed in this [title] reaches only to the work of the manual laborer, as distinguished from that of the professional man. No one reading such a title would suppose that Congress had in its mind any purpose of stay- ing the coming into this country of ministers of the gospel, or, indeed, of any class whose toil is that of the brain. The common understanding of the terms 'labor' and 'laborers' does not include preaching and preachers, and it is to be assumed that words and phrases are used in their ordinary meaning. So, whatever of light is thrown upon the statute by the language of the title indicates an exclusion from its penal provisions of all contracts for the employment of min- isters, rectors, and pastors." On this and other grounds it was therefore held that the statute did' not apply to the case at bar.^" A leading English case involved the con- struction of "Lord Campbell's Act." The important ques- tion in the case was whether the jury, in giving damages apportioned to the injury resulting from the death of the decedent to the parties for whose benefit the action was brought, were confined to injuries capable of pecuniary es- timation, or might add a solatium to the plaintiffs in respect to the mental sufferings occasioned by such death. On this question, the title of the act was consulted and was allowed some weight. It was "An act for compensating the fami- lies of persons killed by accidents," and from this Coleridge, J., inferred that it was not the design of Parliament to al- low for solacing^their wounded feelings, but only for com- pensating their pecuniary losses." So again, where a stat- ute "relative to the revenue of the state," the principal ob- ject of which is taxation, authorizes the treasurer to collect sums to be paid by curators of vacant successions, it will be construed to apply to sums which go into the treasury as a 20 Church of Holy Trinity v. United States; 143 U. S. 457, 12 Sup. Ct 511, 36 L. Ed. 226. See ''Statutes," Dec. Dig. (Key No.) § 211; Cent. Dig. § 288. 21 Blake v. MidlandRy. Co., 18 Q. B. 93. Sec "Statutes," Dec. Dig. {Key No.) § 211; Cent. Dig. S 288. 250 INTRINSIC AIDS IN STATUTORY CONSTRUCTION (Ch. 6 revenue, and not those which, being deposited there for ab- sent heirs, constitute no part of the revenue.'"' But the reader should bear in mind that the argument drawn from the title is not entitled to the greatest weight in solving questions of statutory construction. It is a clue, rather than a criterion. It may aid in ascertaining the leg- islative intention, but does not fix it absolutely. It is not a rule that the construction of an ambiguous statute must be determined by the title; but the title may be called in aid. In point of fact, courts very seldom decide a question of statutory interpretation upon- one consideration alone. They are wont to consider many things bearing upon the probable intention of the legislature, such as the relation of the statute to other existing legislation, the collocation and arrangement of the words, their character, as being technical or otherwise, the spirit. and reason of the law and the scope and purpose of the act, the circumstances which led to its enactment or the evil which it was designed to remedy, the presumptions against unconstitutionality, in- justice, and absurdity, executive and legislative construc- tions put upon the act, contemporary history and usage, and so on. If considerations drawn from all or many of these sources conduce to the support of one theory as to the meaning of the law, the fact that the consideration of the title leads to the same conclusion will have some persua- sive force and will strengthen the argument. But if the in- ference drawn from the title contradicts the inference drawn from a consensus of other arguments (entitled to greater weight), it should not be allowed to prevail against them. Effect of Title under Constitutional Provisions Where the constitution of the state provides that each act of the legislature shall relate to but one subject, which shall be expressed in the title, the effect is to make the ti- tle a part of the enactment, so that any provisions of the act which lie outside the title will be rejected by the courts as unconstitutional, if that can be done 'without destroying 2 2 Succession of D'Aquln, 9 La. Ann. 400. See "Statutes," Dec. Dig. {Key No.) § Sll; Cent. Dig. § ZSS. § 83) TITLE 251 the entire law. In this case, it is very clear that the title may be resorted to as an aid in the interpretation of the statute, and that it will be entitled to greater weight than belongs to it in the absence of this constitutional provision ; since it must be presumed that the mind of the legislature was directed to the title no less than to the provisions of the enacting clause.'" As already indicated, the real reason why the title is not ordinarily entitled to very great weight is that it is not always or necessarily subject to the scru- tiny and thought of the members of the legislature with the same care as the enacting clause, and hence may not truly disclose the meaning of the legislature and the pur- pose of the statute. But if the constitution requires it to express the subject of the act, this objection is removed. "The constitutional mandate that the object of every law shall be expressed in its title has given the title of an act a two-fold effect. It has added additional force to the title as an indication of legislative intent in aid of the construc- tion of a statute couched in language of doubtful import, and it also operates as a constitutional limitation upon the enacting part of the law. The enacting part of a statute, however clearly expressed, can have no effect beyond the object expressed in the title. To maintain any part of such a statute, those portions not embraced within the purview of the title must be exscinded, and if the superaddition to the declared object cannot be separated and rejected, the 23 People V. Wood, 71 N. Y. 371; Garrigus v. Board of Com'rs of Parke County, 39 Ind. 66; Nazro v. Merchants' Mut. Ins. Go. of Milwaukee, 14 Wis. 295; Stockton v. Gentral R. Co., 50 N. J. Eq. 52, 24 Atl. 964, 17 L. R. A. 97; Pennsylvania R. Co. v. Riblet, 66 Pa. 164, 5 Am. Rep. 360 ; Coosaw Min. Co. v. South Carolina ex rel. Tillman, 144 U. S. 550, 12 Sup. Ct. 689, 36 h. Ed. 537 ; Halderman's Appeal, 104 Pa. 251 ; Orvls v. Board of Park Com'rs of City of Des Moines, 88 Iowa, 674, 56 N. W. 294, 45 Am. St. Rep. 252 ; Reithmiller V. People, 44 Mich. 280, 6 N. W. 667 ; Dart v. Bagley, 110 Mo. 42, 19 S. W. 311 ; Glaser v. Rothschild, 221 Md. 180, 120 S. W. 1, 22 L. R. A. (N. S.) 1045. See Hough v. Porter, 51 Or. 318, 98 Pae. 1083, where It is remarked that the title to an act of Congress is not required to embrace all its provisions, and therefore it is necessary to look to the body of the act to ascertain its intent. See "Statutes," Dec. Dig. (Key JVo.) §§ 105-126, 211; Cent. Dig. §§ IIH-IH, 288. 252 INTRINSIC AIDS IN STATUTORY CONSTRUCTION (Ch. 6 entire act must fail." " But it must not be supposed that, even under such a constitutional provision, the title of the statute may be considered, as an aid to its construction, unless there is need of interpretation by reason of obscurity or doubt in the body of the act. Says the Supreme Court of Indiana : "It is not said, by any writer that we know of, that the constitutional provisions in reference to the title of an act have so changed the rules of construction that the title may be looked to when the words of the statute are plain and unambiguous, and we do not think that such rules have been so changed. The only eiifect of such provisions in reference to titles of acts is to give greater weight and consideration to the title, in ascertaining the mind of the legislature, than Was formerly given to titles, when the language of the act is ambiguous and doubtful." "^ Joint Resolutions A joint resolution of a legislative body may sometimes come before the courts for construction, and in this case the same rule applies with reference to consulting the title. Even if the constitution of the state does not require that a joint resolution shall have a title, yet it may imply that it shall, as, where it provides that the presiding officer of each house of the legislature shall sign all bills and joint resolutions "after the titles have been publicly read." And if a joint resolution has a title, which appears to have been adopted after due consideration, it may be referred to and considered by the court for the purpose of ascertaining the intention of the two houses in adopting the resolution, if there is doubt as to what that intention was.''" 2* Dobbins v. Northampton Tp., 50 N. J. Law, 496, 14 Atl. 587. See "Statutes," Deo. Dig. (Key No.) §§ 103-126, 211; Cent. Dig. §§ in-19J,, 28S. 2 6 Garrlgus v. Board of Com'rs of Parke County, 39 Ind. 66. See "Statutes," Dec. Dig. (Key No.) § 211; Cent. Dig. § 288. 20 LoTett V. Ferguson, 10 S. D. 44, 71 N. W. 765. See "Statutes," Deo. Dig. (Key No.) §§ 211, 229; Cent. Dig. § 288. § 84) FREAMBLB 2S3 PREAMBLE 84. The preamble to a statute can neither expand nor con- trol the scope and application of the enacting clause, when the latter is clear and explicit. But if the langv^ge of the body of the act is obscure or ambiguous, the preamble may be consulted, as an aid in determining the reason of the law and the object of the legislature, and thus arriving at the true construction of the terms employed. The preamble to a statute is an introductory clause which sets forth the reasons which have led to the enactment, by reciting the state of affairs intended to be changed, the evils designed to be remedied, the advantages sought to be secured or promoted by the new law, or the doubts as to the prior state of the law which it is meant to remove. It is thus an exposition of the motives of the legislature, and in some sense a key to the meaning of the terms which they have employed to express their avowed intention. But it is not an essential part of the statute, and is by no means universally found in modern laws. It is in the form of a statement of facts, and is usually prefaced by the word "whereas." " In an' ancient case, it was said by Dyer, J., that, the better to understand the purview, the prearnble of the act is to be considered ; that the preamble is a key to open the minds of the makers of the act and the mischiefs which they intend to remedy, the which the preamble re- cites."' And it is now settled by the authorities, without any important dissent, that when any doubt or ambiguity is found to exist in the enacting clause, it is permissible and *' "It is to the preamble, more especially, that we are to look for the reason or spirit of every statute, rehearsing, as it ordinarily does, the evils sought to be remedied, or the doubts purported to be re- moved, by the statute, and so evidencing, in the best and most sat- isfactory manner, the object or intention of the legislature in mak- ing and passing the statute itself." Brett v. Brett, 3 Add. Eccl. 210. See "Statutes," Dec. Big. (Key No.) § 210; Cent. Dig. § 2ST. 28 Stowell V. Lord Zouch, Plow^d. 369. See "Statutes," Dec. Dii. (BTej/ No.) § 210; Cent. Dig. § 287. 254 INTRINSIC AIDS IN STATUTORY CONSTRUCTION (Ch. 6 proper to resort to the preamble, as a clue or guide to the true interpretation."' "In construing an act of Parliament," says Lord Blackburn, "where the intention of the legisla- ture is declared by the preamble, we are to give effect to that preamble to this extent, namely, that it shows us what the legislature are intending; and if the words of enact- ment have a meaning which' does not go beyond that pre- amble, or which may come up to the preamble, in either case we prefer that meaning to one showing an intention of the legislature which would not answer the purposes of the preamble or which would go beyond them." "" It is sometimes said that the preamble is not a part of the stat- ute. This is true in a measure. The preamble is no part of the enactment ; it does not proprio vigore make the law ; in itself it has no constraining force upon the citizen or sub- ject. But nevertheless it is for some purposes, and to a limited extent, a part of the statute. More especially, if it be referred to in the enacting clause to identify the subject- matter of the law, or to explain the motive or the meaning of the legislature,, it can be used for this purpose.'^ But while the uses of the preamble in cases of doubt or ambiguity are admitted, it is equally well settled that if the enacting clause is clear, sensible, and explicit, it cannot be controlled in its operation, nor extended or abridged, by any considerations drawn from the preamble; for, in such cases, there is no room for construction and no need to re- sort to the preamble."'' And an act which is clear and spe- 2 9 Beard v. Rowan, 9 Pet. 301, 317, 9 L. Ed. 135; Mayor, etc., of City of Baltimore v. Moore, 6 Har. & J. (Md.) 375 ; Edwards r. Pope, 4 111. 465; Sussex Peerage Case, 11 CI. & Fin. 85, 143; Price v. Forrest, 173 U. S. 410, 19 Sup. Ct. 434, 43 L. Ed. 749 ; Memphis St. Ry. Co. V. Byrne, 119 Tenn. 278, 104 S. W. 460. See "Statutes," Dec. Dig. (Key No.) § 210; Cent. Dig. § 2S7. so Overseers of West Ham v. lies, L. R. 8 App. Cas. 386. See "Statutes," Dec. Dig. (Key No.) § 210; Cent. Dig. % 287. 81 Commonwealth, to Use of Allegheny City, v. Marshall, 69 Pa. S28. See "Statutes," Dec. Dig. (Key No.) § 210; Cent. Dig. § 287. 82 Yazoo & M. V. R. Co. v. Thomas, 132 U. S. 174, 10 Sup. Ct. 68, 33 L. Ed. 302; Emanuel v. Constable, 3 Russ. 436; Mason v. Armltage, 13 Ves. 25; United States y. Webster, Dav. 38, Fed. Cas. No. 16,658 ; James v. Dubois, 16 N. J. Law, 285 ; Laidler v. Young's § 84) PREAMBLE 255 cific in its enacting part will not be rendered inoperative or void by a defective or repugnant preamble. °* Moreover, it should be remembered that the preamble to a statute does not invariably recite the real reason for its enactment. Its statements of facts are neither infallible nor conclusive.'* This should operate as a restraint upon the disposition to attach too great weight to the preamble as evidencing the purpose and intention of the lawmakers. Harrington, in his Observations on the Statutes, remarks that "it is fre- quently said that the preamble to a statute is the best key to its construction; it often, however, dwells upon a pre- tense, which was not the real occasion of the law, when, perhaps, the proposer had very different views in contem- plation. The most common recital for the introduction of any new regulation is to set forth that 'doubts have arisen at common law,' which frequently never existed ; and such preambles have therefore much weakened the force of the common law in several instances." '° There are two classes of cases in which a conflict may arise between the preamble of a statute and its enacting clause, and in which, therefore, it is necessary to determine the force of the preamble in fixing the construction of the Lessee, 2 Har. & J. (Md.) 69 ; Blue v. McDuffie, 44 N. C. 131 ; Bynum V. Clark, 3 McCord (S. C) 298, 15 Am. Dec. 633 ; Jackson ex dem. Woodruff V. Gilchrist, 15 Johns. (N. T.) 89; Lucas v. McBlair, 12 GUI & J. (Md.) 1 ; Tripp v. Goff, 15 R. I. 299, 3 Atl. 591 ; Eastman v. McAlpin, 1 Ga. 157. And see Neumann v. City of New York, 137 App. Div. 55, 122 N. Y. Supp. 62. See "Statutes," Dec. Dig. (Key 3Vo.) § 210; Cent. Dig. § 287. 83 Erie & N. E. E. Co. v. Casey, 26 Pa. 287, 323 ; Salters' Co. v. Jay, 3 Q. B. 109. See "Statutes," Dec. Dig. (Key No.) § 210; Cent. Dig. § 287. 3* Thus, in determining the constitutional validity of an act pur- porting to be enacted in the exercise of the police power of the state, a recital in the preamble that it is intended for the preserva- tion of the public health is not conclusive on the courts. Priewe v. Wisconsin State Land & Improvement Co., 103 Wis. 537, 79 N. W. 780, 74 Am. St. Rep. 904. But see Ex parte Fedderwitz, 130 Cal. xviii, 62 Pae. 935, as to a recital in the preamble of a mere matter of fact, such as the population of a city. See "Statutes," Deo. Dig. {Key No.) § 210; Cent. Dig. § 28T. 85 Barrlngt. Obs. Stat. (4th Ed.) 394. 256 INTRINSIC AIDS IN STATUTORY CONSTRUCTION (Oh. 6 law. The first case is where the words of the enacting clause are more brpai and comprehensive than the words of the preamble. The second case is where the words of the preamble are more broad and comprehensive than the words of the enacting clause. In the first place, it is well settled, by the decided preponderance of authority, that gen- eral words in the body of the statute, if free from ambigu- ity, are not to be restrained or narrowed down by particu- lar, or less comprehensive, recitals in the preamble." This is the general rule. It is, perhaps, subject to exceptions; but such exceptions always arise out of the language of the particular act or the consequence? which would attend its construction in a particular manner. Thus, it was said by Lord Ellenborough : "It cannot by any means be regarded as a universal rule that large and comprehensive words in the enacting clause of a statute are to be restrained by the preamble. In a vast number of acts ol Parliament, although a particular mischief is recited in the preamble, )-et the leg- islative provisions extend far beyond the mischief recited; and whether the words shall be restrained or not must de- pend on a fair exposition of the particular statute in each particular case, not upon any universal rule of construc- tion." ^^ Arid in another case, Lord Chancellor Cowper declared: "I can by no means allow of the notion that the 3 8 Fellowes v. Clay, 4 Q. B. 313; Mace v. Cammel, Lofft, 782; Cole- han V. Cooke, Willes, 393 ; Holbrook v. Holbrook, 1 Pick. (Mass.) 248; Treasurers of State v. Lang, 2 Bailey (S. C.) 430; Bywater v. Brandling, 7 Barn. & C. 643 ; Salkeld v. Johnson, 2' Exch. 256. It is not infrequent for the legislature, in the preamble to a statute, to recite a particular mischief, while the legislative provisions ex- tend far beyond the mischief recited. The evil recited Is but the motive for the legislature, and if, on a revlevr of the whole act a wider Intention than that expressed in the preamble appears to be the real one, effect Is to be given to It, notwithstanding the less ex- tensive Import of the preamble. Ohio Oil Co. v. State, 150 Ind.|694, 49 N. B. 1107 (affirmed 177 U. S. 212, 20 Sup. Ct. 585, 44 L. Ed. 740) ; State V. Ohio Oil Co., 150 Ind. 21, 49 N. B. 809, 47 L. B. A. 627; LIppincott Glass Co. v. Ohio Oil Co., 150 Ind. 695, 49 N. E. 1106. Bee "Statutes," Dec. Dig. {Key No.) § ZIO; Cent. Dig. § 2S7. 8 7 King V. Pelrce, 3 Maule & S. 62. See, also. King v. Athop, 8 Mod. 136; Trueman v. Lambert, 4 Maule & S. 234. See "Statutes," Dec. Dig. (Key No.) § 2i0; Cent. Dig. § 887. § 84) FBEAMBLE 257 preamble shall restrain the operation of the enacting, claus6» and that, because the preamble is toO narrow or defective, therefore the enacting clause, which has general wordSj shall be restrained from its full latitude and from doing that good which the words would otherwise, and of themse'lvesi import." °' It appears, however, that if the refusal to nar^ row down the general words of the enacting part of the law to a scope commensurate with the particular recitals of the preamble would lead to absurd or inconvenient conse- quences, or would result in harm or mischief in particular cases, then the generality of the enacting clause' should be restrained by the preamble.^' In the second place, detailed and specific provisions in the body of the statute cannot be expanded beyond their proper scope by the use of more general expressions in the preamble. Thus, where the preamble refers to several mat- ters or things, and only some of these, not all, are expressly mentioned in the enacting part of the statute, its terms can- not be extended to those things not provided for, merely in virtue of the larger i-ecital in the preamble.*" For instance, in a case in Virginia, it was said: "The enacting clauses of the statute making provision only with regard to coupons S8 Copeman v. Gallant, 1 P. Wins. 314. "The true meaning of the statute is generally and properly to be sought from the pur- view, providing part, or body of the act. The preamble of a statute is no more than a recital of some inconveniences, which by no means excludes any others, for which a remedy is given by the enacting part of the statute. Great doubts have existed how far the preamble should control the enacting i)art of the statute; but abundant cases have established that where the words in the enacting part are strong enough to take in the mischief intended to be prevented, they shall be extended for that purpose, though the preamble does not warrant it; in other words, the enacting part of the statute may extend the act beyond the preamble." Potter's Dwarris on Stat. 109. See "Statutes," Dec Dig. (Key No.) § 210; Cent. Dig. § 287. 3 9Sfiidenbender v. Charles' Adm'rs, 4 Sierg. & R. (Pa.) 151, 166, 8 Am. Dee. 682; Ryall v. EoUe, 1 Atk. 165. See, also, Halton v. Cave, 1 B. & Ad. 538. See "Statutes," Dec. Dig. (Kev No.) § 2X0; Cent. Dig. § 287. "Lackland v. Walker, 151 Mo. 210, 52 S. W. 414; Common- wealth V. Smith, 76 Va. 477; Slack v. Jacob, 8 W. Va. 612. See "Statutes," Dec. Dig. (:Kev No.) § 210; Cent. Dig. § 287. Black Int.L. — 17 258 INTEIXSIC AIDS IN STATUTORY CONSTEDCTION (Ch. 6 detached from bonds of the commonwealth issued under the act of 1871, and making no provision with regard to coupons detached from bonds issued under the act of 1879, the circumstance that the latter are mentioned in the pre- amble, and though the representation, by way of recital, of a state of things as inducements to the a:ct which follows might be applied to the latter as well as the former, the lat- ter not being within the enacting clauses, to bring them within the purview of the act would be to go beyond what the legislature did, and to give to the preamble the prov- ince of enlarging and extending the act of legislation be- yond the purview of the statute, and of conferring powers per se, which is warranted by no decision that has ever been made, but is contrary to the settled doctrine on the subject, as declared in judicial decisions and maintained by the most eminent sages of the law in their published works. It would be to assume legislative power by the court." *^ CHAPTER AND SECTION HEADINGS 85. Headings prefixed to the titles, chapters, and sections of a statute or code may be consulted in aid of the interpretation, in case of doubt or ambiguity; but inferences drawn from such headings are entitled to very little weight, and they can never control the plain terms of the enacting clauses. The reason commonly given for this rule is that such headings and subtitles are not a part of the law, and not ' the subject of deliberation and enactment on the part of the legislative body, but are inserted by a compiler or editor for mere purposes of reference or classification, and hence cannot be taken as furnishing any indication of the mean- ing and intent of the legislature in enacting particular, clauses of the statute, nor anything more than the personal opinion of their unknown author. This is probably true *i Commonwealth v. Smith, 76 Va. 477; Wilson v. Knubley, 7 East, 128. See "Statutes," Dec. Dig. (Key No.) § StO; Cent. Dig. § 287. § 85) CHAPTER AND 8ECTIQN HEADINGS 259 for the most part in regard to codes and compilations or revisions of statutes. But in relation to most modern stat- utes, when they are of such length or complexity as to re- quire division into titles, chapters, and sections, it is com- monly the case that appropriate headings are inserted by the author of the bill, that they may or may not undergo change in committees or on the floor of the house, and that, the statute being enacted as a whole, such headings 'are en* acted with and as a part of it. In such cases, therefore, it would appear that such indications of the legislative meanr ing are entitled to at least as much consideration as the genr eral title of a statute, when the endeavor is made to interr pret an obscure or ambiguous provision. In a case in Kan- sas, it is "said that where a statute is divided into separate subjects or articles, having appropriate headings, it must be presumed and held that the provisions of each article are controlling upon the subject thereof and operate as a gen- eral rule for settling such questions as are embraced there- in.*^ But the rule accepted by the most of the authorities is that if the chapter or section heading has been inserted merely for convenience of reference, and not as an integral part of the statute, it should not be allowed to control th^ interpretation.*' And while it is not improper to refer to such headings, when it becomes necessary to ascertain the true meaning of ambiguous or doubtful expressions found in the body of the act,** yet s.uch a resort is neither neces- sary nor permissible when the language of the enacting part is plain and clear. 'Thus, in an English case, where the section of the statute which was in qviestion was prefaced by a short sentence which might be taken as a kind of pre- amble or section heading, it was said by Kelly, C. B.: "Al- " Griffith V. Carter, 8 Kan. 565. See "Statutes," Deo. Dig. (Key 2fo.) § 211; Cent. Dig. § 288. *3 Union Steamship Co. v. Melbourne Harbor Com'rs, L. R. 9 App. Cas. 365. And see Chesapeake & O. Ry. Co. v. Pew, 109 Va. 288, 64 S. E. 35 ; People v. Flshman, 64 Misc. Rep. 256, 119 N. Y. Supp. 89 ; State ex rel. Bellingham Bay Imp. Co. v. Bridges, 19 Wash. 431, 53 Pac. 545; State v. Johnson (S. D.) 124 N. W. 847. See "Statutes," Deo. Dig. (Key ilo.) § Sll; Gent. Dig. § 288. *i Hammersmith & C. Ry. Co. v. Brand, L. R. 4 H. L. 171, 203. See "Statutes," Deo. Dig. (Key No.) § 211; Cent. Dig. § 288. 260 INTRINSIC AIDS IN STATUTOET CONSTRUCTION (Ch. 6 though we may refer to the introductory words of. the sec- tion to put a construction upon a doubtful part of the stat-r ute, yet if the language of the enactment is clear, and in- cludes in express terms such an instrument as this [the deed in controversy], we should not be justified in limiting that sense by the introductory words." *° In some few of the states it is held that when a code or revision of the statutes is passed or adopted by the legis- lature at one time and as one statute, the headings to the parts, titles, chapters, and sections are also enacted as and for a part of the law, and hence they are not to be consid- ered, in construction, as the titles of ordinary statutes, but as parts of the act, defining and limiting its provisions.*' But in others of the states which have adopted codes, very 4B Latham v. Lafone, L. R. 2 Ex. 115. But there are some Eng- lish cases in which considerable weight has been given to the sec- tion headings, as an indication of the legislative intent. Thus, in Shiel V. Mayor, etc., of Sunderland, 6 Hurl. & N. 796, it appeared that an ordinance of a local board of health was headed "width and level of new streets." It provided for the vrldth of new streets, dividing them into front streets, cross streets, and back streets. In a subsequent paragraph it provided that "no dwelling house shall be built immediately adjoining any back street without the special per- mission of the board." It was held that this provision applied only to new back streets, and not to a new building in an old back street. Again, the British statute called the "Lands Clauses Consolidation Act" is divided into different subjects by headings, which are ac- companied by corresponding words in the margin. One of these di- visions is marked by the words "intersected lands" in the margin. In the body of the statute is a line containing these words as a heading, "And with respect to small portions of intersected land, be it enacted as follows." Then follow two sections, the first of which (section 93 of the act) begins thus : "If any lands not being situated in a town," etc. The other section (section 94 of the act) begins: "If any such land shall be so cut through and divided," etc. It was contended. In the case of the Eastern Counties, etc., R. Co. v. Mar- riage, 9 H. L. Cas. 32, that the rule that a relative term refers to the next preceding antecedent should here be applied. But it was held, principally in view of the headings, that the word "such" was not confined to "lands not being situate in a town" as described in sec- tion 93, but applied to the words in the general heading "small por- tions of intersected land." See "Statutes," Dec. Dig. (Key No.) § 211; Cent. Dig. § 288. ' *8 People V. Molyneux, 40 N. Y. 113 ; Id., 63 Barb. (N. Y.) 9 ; Barnes §85) CHAPTER AND SECTION- -HEADINGS 261 much less reliance is placed upon these headings. The deci- sions in these states pfddeed upon the reasonable ground! that the actual worth of chapter and section headings as, guides to the meaning of the. law depends entirely upon their accuracy and the precision with which they are .emr, ployed; if they are found, in numerous instances, to be mis- placed or inaccurate, their value throughout the whole code or revision is depreciated. Thus, in Georgia, it is held thafe an act providing that judgments shall become dormant, in., certain circumstances, is not to be read and construed . as; a "statute of limitations" merely because it appears in a chapter of the code bearing that heading. The court said that the classifications of the code were not law, nor were they at all accurate, and the only inference that could he drawn from the position of the act in question was that it was the opinion of the codifiers that it might fairly be classed as a statute of limitations.*' So also in Maryland; "in arriving at the true construction of any particular secT. tion of the code, very little reliance can be placed upon the heading under which it may be found. There are many in-^ stances in which sections relating to different subjects are placed under the same head, and in sonie cases such sec-r. tions are found in the same article. * * * j^ short, we: have found that the only satisfactory and safe rule of con- struction to be adopted is to read and construe together all sections of the code relating to the same subject-matter, without reference to the particular article or heading under which they may be placed." ** In the Revised Statutes of the United States, it is provided that "the arrangement and" classification of the several sections of the revision have been made for the purpose of more convenient and ordei;ly arrangement of the same, and therefore no inference or pre-r sumption of a legislative construction is to be drawn by. V. Jones, 51 Cal. 303. See "Statutes," Dec. Dig. {Key No.) § 211; Cent. Dig. § S88. *' Battle V. Shivers, 39 Ga. 405. See "Statutes," Dec. Dig. (Key No.) § 211; Cent. Dig. § 288. *8 State V. Popp, 45 Md. 432. And see HufE v. Alsup, 64 Mo. 51. Bee "Statutes," Dec. Dig. (Key No.) § 211; Cent. Dig. § 288. 262. INTRINSIC AIDS IN STATUTORY GONSTBU^TION (Oh; 6 reason of the title under which any particular section is placed." " Marginal Notes In the English statutes, the marginal notes are brief ab- stracts of the matter to which the section relates, or a word or phrase descriptive of the subject-matter, much re- sembling section headings. In American statutes, marginal liotes, when used at all, are of the same character, or, in codes and revisions, they are used for the purpose of re- ferring to the statute compiled, the place where it may be found in full, and the date of its enactment. The rule is settled, both in England and in this country, that such notes are not available as a means of determining the inter- pretation to be put upon the body of the statute. The mar- ginal note is no part of the statute, n'ot being considered or passed upon by the legislature. It is nothing more than ah abstract of the clause intended to catch the eye, and in- serted merely to facilitate reference to the statute and pro- mote the convenience of the reader in examining it. Nor are such notes always accurate or reliable. Hence they should never be allowed to control the construction of the statute, and it is doubtful whether they may be at all con- sidered for that purpose.^" *»Rev. St. § 5600 (U. S. Comp. St. 1901, p. 3751). See United States V. Fehrenback, 2 Woods, 175, Fed. Cas. No. 15,083. See "Stat- utes," Dec. Dig. (Key No.) § 211; Cent. Dig. § 2SS. 60 Attorney General v. Great Eastern Ry. Co., L. R. 11 Ch. DIv. 449; Sutton v. Sutton, L. R. 22 Oh. Div. 511; Birtwhistle v. VardUl, 7 01. & Fin. 895, 929 ; Claydon y. Green, L. R. 3 C. P. 511 ; Cook v. Federal Life Ass'n, 74 Iowa, 746, 35 N. W. 500 ; Nicholson v. Mobile & M. R. Co., 49 Ala. 205 ; Mackey v. Miller, 126 Fed. 161, €2 C. C. A. 139; Commonwealtl} Mut. Fire Ins. Co. v. Place, 21 R. I. 248, 43 Atl. 68. But compare Bettencourt v Sheehy, 157 Cal. 698, 109 Pac. 89; King v. Inhabitants of Milverton, 5 Ad. & El. 841, 854. See "'statutes," Dec. Dig. {Key No.) § 2/J; Cent. DiQ. § S88. §§ 86-88) PUNCTUATION 263 PUNCTUATION 86. The punctuation marks in the published copies of an act are not allowed to control, enlarge, or restrict the plain and evident meaning of the legislature as disclosed by the language employed. ,/ 87. If there is no doubt as to the meaning of the legislcH ture, other than such as is created by the defective or erroneous punctuation of the statute, the courts will disregard the punctuation marks and read the statute as if correctly punctuated. 88. If the statute is equally open to two constructions, and there is nothing to show which of them was in- tended by the legislature, except the punctuation, and if the punctuation would support one of such constructions but would be inconsistent with the other, the pxmctuation will govern. The British statutes, on the original rolls of Parliament,; are not punctuated at all, and although more or less marks of punctuation appear in the printed transcripts of the acts of Parliament, they are not inserted by authority and are not regarded as an essential part of the law. In the legisla- tive bodies of this country, the punctuation marks are, usually inserted, with a greater or less approach to correct-; ness, by the member who drafts and introduces the bill,' are sometimes changed by the engrossing clerks, and are frequently reformed by the printer. They very seldom re- ceive the attentive consideration of the legislature, and no great importance is ever attached to them during the prog^, ress of the bill through the house. For this reason it has come to be recognized as a settled legal doctrine that the punctuation marks are no part of the statute.''^ Hence, in' the matter of interpretation, they are never allowed a con- trolling force as against the obvious meaning of the act. 51 But In New York the punctuation is a part of the statute as' passed. Tyrrell v. City of New York, 159 N. T. 239, 53 N. E. llli; See "Statutes," Dec. Dig. (Key No.) § 200; Cent. Dig. § 278. 36.4; ■ INTRINSIC AIDS INjSTATUTORy CONSTRUCTION (Ch. 6 The words used by the legislature to express its meaning are first to be considered, and, if theseconvey a clear, defi- nite, and sensible meaning, without any doubt or ambigu- ity, their significance cannot be enlarged, restricted, or per-' verted by any considerations flowing merely from the char- acter and position of the stops.*" "In the interpiretation of written instruments, very little consideration is given by the courts to the punctuation, and it is never allowed to interfere with or control the sense and meaning of the lan- guage used. The words employed must be given their com- mon and natural effect, regardless of the punctuation or grammatical construction." And considerations based on the punctuation alone must never be allowed to "violate the well-settled rule that, where it is possible, effect must be giyeh to every sentence, phrase, and word, and the parts niiist be compared and considered with reference to each otiien" "' "]^unctuation," says Baldwin, J., "is a most falli- ble standard by which to interpret a writing ; it may be re- sorted to when- all other means fail ; but the court will ^rst take the instrument by its four corners, in order to ascer- tain its true meaning; if that is apparent on judicially in- specting the whole, the punctuation will not be suffered to charjge it." ^* 02 Hammock r. Farmers' Loan & T. Co., 105 TJ. S. 77, 26 L. Ed. llll ; Stephenson v. Taylor, 1 Best & S. 101 ; Queen v. Oldham, 21 L. J. M. 0. 134; State v. McNally, 34 Me. 210, 56 Am. Dec. 650; In i;e Olmsted, 17 Abb. N. C. (N. X-),320; Murray v. State, 21 Tex. App. 620, 2 S. W. 757, 57 Am< Rep. 623; Morrill v. State, 38 Wis. 428, 20 Am. Rep. 12 ; Baker v., Payne, 22 Or. 335, 29 Pae. 787 ; Gush- ing y. Worrick, 9 Gray (Mass.) 382; Martin v. Gleason, 139 Mass. 183, 29 N. E. 664 ; Archer v. Ellison, 28 S. C. 238, 5 S. E. 713 ; United States V. York (& C.) 131 Fed. 323 ; Taylor v. Inhabitants of Town of Caribou, 102 Me. 401, 67 Atl.,2; State ex rel. v. Banfield, 43 Or. 287, 72 Pac. 1093 ; Black v. Scott, 2 Brock. 325, Fed. Cas. No. 1,464. See "Statutes," Dec. Dig. {Key No.) % ZOO; Gent. Dig. § 278. 5 3 O'Brien v. Brice, 21 W. Va. 704; Commonwealth v. Taylor, 159 Pa. 451, 28 Atl. 348. See "Statutes," Dec. Dig. {Key No.) § 200; Cent. Dig. § SIS. 6* Ewing V. Burnet, 11 Pet. 41, 9 L. Ed. 624 ; Albright v. Payne, 43 Ohio St. 8, 1 N. E. 16. See "Statutes," Deo. Dig. {Key No.) § ZOO. Cent. Dig. § 278. §§86-88) : PUNCTUATION 265 if, therefore, the words of the act, taken in themselves alone, or compared with the context and read in the light of the spirit and reason of the whole act, convey a precise and single meaning, they are not to be affected by the want of proper punctuation or by the insertion of incorrect or misplaced marks. In that event, the court will disregard the existing punctuation, supply such stops as may be miss- ing, transpose those which are erroneously placed, eliminate those which are superfluous, reform such as are incorrectly used, and read the act as if correctly punctuated. '"' For in- stance, where effect may be given to all the words of a stat- ute by transposing a comma, the alternative being the dis- regard of a material or significant word, or grossly strain- ing and perverting it, the former course is to be adopted. °* So, to take another illustration, an act of Congress required a stamp to be placed upon every "memorandum, check, re- ceipt, or other written or printed evidence of an amount of money to be paid." The court, considering the act as a whole, and finding a change of punctuation necessary to make the statute harmonious and sensible and to avoid use- less repetitions, decided that the comma after "memoran- B» United States v. Lacher, 134 U. S. 624, 10 Sup. Ct. 625, 33 L. Ed. 1080 ; Doe v. Martin, 4 Burn. & E. 89, 65 ; Gyger's Estate, 65 Pa. 311 ; Hamilton v. The R. B. Hamilton, 16 Ohio St. 429; Allen v. Russell, 39 Oiio St. 336; Shriedley v. State, 23 Ohio St. 130; Chicago, M. & St. P. Ry. C!o. V. Voelker, 129 Fed. 522, 65 C. C. A. 226, 70 L. R. A'. 264 ; Lorenz v. United States, 24 App. D. 0. 337 ; Union Refrigerator Transit Co. v. Lynch, 18 Utah, 378, 55 Pac. 639, 48 L. R, A. 790; State T. Deuel, 63 Kan. 811, 66 Pac. 1037; Manger v. Board of State Medical Examiners, SO Md. 659, 45 Atl. 891; Browne v. Turner, '174 ' Mass. 150, 54 N. B. 510 ; Stiles v. City of Guthrie, 3 Okl. 26, 41 Pac. 383 ; State v. Pilgrim, 17 Mont. 311, 42 Pac. 8.56 ; Hammock v. Farmers' Loan & Trust Co., 105 U. S. 77, 26 L. Ed' llil ; United States V. Oregon & C. R. Co., 164 U. S. 526, 17 Sup. Ct. 165, 41 L. Ed. 541; Ford' v. Delta & P. Land Co., 164' U. S. 6^2, 17 Sup! Ct. 230, 41 L. Ed. 590; Stephens v. Cherokee Nation, 174 U. S.' 445, 19 Sup. Ct. 722,. 43 L. Ed. 1041; United States v. Voorhees (C. C.) 9 Fed. 143; Cushing v. Worrick, 9 Gray (Mass.) 382; Martin v. Glea- son, 139 Mass.' 183, 29 N. Ei 664; McPhail v. Gerry, 55 Vt. 174. ' See "Statutes," Dec. Dig. (Key No.) § 200; Cent. Dig. § 278. 6 6 Commonwealth v. Shopp, 1 Woodw. Dec. (Pa.) 123; Albright v. Payne, 43 Ohio St. 8, 1 N. E. 16. See "Statutes," Dec. Dig. {Key No.) § 200; Cent. Dig. § 278. '■ 266 INTRINSIC AIDS ,IN, STATUTORY CONSTRUCTION (Ch. 6 dutn" must have been erroinebusly printed there instead of a hyphen, so that the section should be construed as if it read "memorandum-check, receipt," etc.'' In an English case, a question arose upon the interpretation of an act of Parliament which provided that it should not repeal any statute then in force "concerning aliens duties customs and impositions." The question was whether this act should he read as if the word "aliens" were followed by a comma or by an apostrophe. It is apparent that this would make an important difference in its meaning. The Master of the Rolls compared two printed editions of the act, and found that they differed in the punctuation at this point. The original roll of Parliament had no punctuation at all. He therefore considered the general spirit and object of the act, and found that its intention was to leave undisturbed the laws relating to taxes. Hence he concluded that it should be; read "aliens' duties, customs, and impositions."'' Es- pecially is the existing punctuation to be disregarded or re- formed where the marks, as they stand, would make the statute absurd or unmeaning, but a change of the punctua- tion would render it clear and intelligible.'" Nevertheless, punctuation often determines the meaning of a sentence. "' It is entirely possible to select words which are clear and specific in themselves, and place them in such an order and arrangement in a sentence that it shall be equally open to two constructions, each of which is per- fectly consistent with the rules of grammar and the ordi- nary use of language. In such a case, the choice between the two constructions cannot be determined in any other way than by the marks of punctuation which may be in- serted. And if the punctuation, as it stands in the statute, ; .5' United States v. Isham, 17 Wall. 496, 21 h. Ed. 728. See "Stat- utes," Dec. Dig. (Key No.) § 200; Cent. Dig. § S78. , 5 8 Barrow v. Wadkin, 24 Beav. 327. iSfee "Statutes," Dec. Dig. (Key ■No.)imO; Cent. Dig. % 218. 5» Bradstreet Co. v. Gill, 72 Tex. 115, 9 S. W. 753, 2 L. R. A. 405, 13 Am. St. Rep. 768; Randolph v. Bayue, 44 Cal. 366. See "Stat- nte,s;' Deo. Dig. (Key No.) § 200; Cent. Dig. § 878. : "may always be referred to in interpreting and giving efr feet to it. The court should place itself in the situation of the legislature and ascertain the necessity and probable object of the statute, and then give such construction to the language used as to car'ry the intention of the legisla- ture into effect, so far as it can be ascertained from the terms of the statute itself." ^^ "Courts, in construing a V. Hall, 4 N. Y. 140; Falrchlld v. Gwynne, 16 Abb. Prac. (N. T.) 23; Keith V. Quinney, 1 Or. 364 ; Big Black Creek Imp. Co. v. Commoiv wealth, 94 Pa. 450; Riley v. Pennsylvania Co., 32 Pa. Super. Ct. 579; Williams v. State, 52 Tex. Cr. R. 371, 107 S. W. 1121; State v. Stewart, 52 Wash. 61, 100 Pac. 153; Scouten v. City of Whatcom, 33 Wash. 273, 74 Pac. 389 ; Clark v. City of Janesville, 10 Wis. 136 ; King V. Inhabitants of Hodnett, 1 Durn. & E. 96 ; Baring v. Erdman, Fed. Cas. No. 981; Richard v. Lazard, 108 La. 540, 32 South. 559; Eeyport & M. P. Steamboat do. v. Farmers' Transp. Co., 18 N. J. Eq. 13 ; Story v. New Tork El. R. Co., 3 Abb. N. C. (N. X.) 478 ; Daniel V. Simms, 49 W. Va. 554, 39 S. E. 690 ; State v. Boston & M. R. R., 75 N. H. 327, 74 Atl. 542; Cram v. Chicago, B. & Q. Ry. Co., 85 Neb. 586, 123 *f. W. 1045. See "Statutes," Deo. Dig. {Key No.) §§ 215-W1 ; Cent. Dig. §§ 291-293. 2* Heydon's Case, 3 Coke, 7a. See, also, 1 Bl. Comm. 87. See "Statutes," Dec. Dig. (Key No.) §§ 215-217; Cent. Dig. §§ 291-29S. 2 People V. Board of Sup'rs of Columbia County, 43 N. Y. 130. § 91) CONTEMPOliARY HISTORY 287 Statute, may with propriety recur to the history of the times when it was passed ; arid this is frequently necessary, in order to ascertain the reason as well as the meaning of particular provisions in it." '" Hence, whenever light can be derived from such sources, the courts will take judicial notice of the facts of contemporary history, the prior state of the law, the particular abuse or defect which the act was meant to remedy, and the application to such state of affairs of the language which it employs. They will also, for this purpose, inform themselves as to such facts and circum- stances by any and ail available means."' Thus, while the courts cannot recur to the views of individual members of the legislative body expressed in debate on the act, yet they may advise themselves as to the history of the times and the general state of public, judicial, and legislative opinion at that period."' For instance, in the interpreta- tion of the "alien contract labor law," the Supreme Court of the United States held that it was justified in looking into contemporaneous events, including the situation as it existed, and as it was pressed upon the attention of Con- gress, while the act was under consideration ; and to this end, it considered not only the general historical condition of the times, as showing the abuse against which the statute was directed, but also the petitions presented to Congress asking for the enactment of such a law, the testimony given before the congressional committees, and the reports of those committees to their respective houses."" In regard to the scope of the facts and circumstances which may thus be inquired into and taken into account in See "Statutes," Dec. Dig. (Key No.) §§ 215-217; Cent. Dig. §§ 291- 293. 26 United States v. Union Pac. R. Co., 91 U. S. 72, 23 L. Ed. 229. (See "Statutes," Dec. Dig. {Key No.) §§ 215-217; Cent. Dig. §§ 291- 293. " Lake V. Parish of Caddo, 37 La. Ann. 788. See "Statutes," Dec. Dig. {Key No.) §§ 215-217; Cent. Dig. §§ 291-293. 28 United States v. Oregon & C. R. Co. (C. C.) 57 Fed. 426. See "Statutes," Dec. Dig. (Key No.) §§ 215-217; Cent. Dig. §§ 291-293. 2 8 Church of Holy Trinity v. United States, 143 U. S. 457, 12 Sup. Ct 511, 36 L. Ed. 226. See "Statutes," Dec. Dig. (Key No.) §§ 215-217; Cent. Dig. §§ 291-293. 288 EXTRINSIC AIDS IN STATDTOET CONSTRUCTION (Ch. 7 interpreting the statute, it is said that they must be such as were known to the legislature and which it may be as- sumed the legislature intended to meet.'" But it is a rule of constitutional law — ^believed to be equally applicable to the construction of statutes, because equally proper and pertinent — that it can never be presumed that the legisla- ture has acted unadvisedly or mistakenly, nor can it be shown that the legislature failed to investigate the sub- ject-matter of the statute and to inform itself and to exer- cise its judgment and discretion, nor that it was induced to enact the statute by deception ' or false representations.'' Therefore a court, in seeking to discover the legislative, intention from a study of contemporary facts and circum- stances, need not feel limited to a consideration of such facts as are shown to have been actually within the con- templation of the legislature, but may take into account every pertinent circumstance which; if present in the leg- islative mind, rnay or might have influenced its determina- tion or colored the meaning of the words it chose to em- ploy. Thus, it is said that a statute may be construed with reference to the habits of the business prevalent among the people to whom it applies.'^ But this rule has its necessary restrictions. Such evi- dence of the meaning of the legislature is not to be re- sorted to unless there is substantial need of it ; that is, un- less there is a real doubt or ambiguity on the face of the enactment. "As has been truly observed, we have nothing 80 state V. Harden, 62 W. Va. 313, 58 S. E. 715; Bull v. New York: City Ry. Co., 192 N. Y. 361, 85 N. E. 385, 19 L. R. A. (N. S.) 606. See "Statutes." Deo. Dig. (Key No.) §§ 215-217; Cent. Dig. §§ 291- 293. 81 Cantwell v. Missouri, 199 U. S. 602, 26 Sup. Ct. 749, 50 U Ed. 329; Stevenson v. Colgan, 91 Cal. 651, 27 Pac. 1089, U L. R. A. 459, 25 Am. St. Rep. 230 ; Eekerson v. City of Des Moines, 137 Iowa, 452, 115 N. W. 177 ; People ex rel. Ellis v. Calder, 153 Mich. 724, 117 N. W. 314, 126 Am. St. Rep. 550 ; Flint & F. Plank Road Co. v. Wood- hull, 25 Mich. 99, 12 Am. Rep. 233 ; St Louis & S. P. R. Co. v. Had-" ley (C. C.) 168 Fed. 317. See "Statutes," Deo. Dig. (Key No.) §§ 215- 211; Cent. Dip. §§ 291-29S. 8 2 Higgins V. Rlnker, 47 Tex. 393. See "Statutes," Deo. Dig. (Key No.) §1 215-211; Cent. Dig. §§ 291-293. § 92) CONTEMPOKART CONSTRUCTION AND USAGE 289 to do with the, history of the words unless the words in the statute are doubtful and require historical investigation to explain them. If the words are really and fairly doubtful, then, according to well-known legal principles and princi- ples of common sense, historical investigation may be used for the purpose of clearing away the doubts which, the phraseology of the statute creates." ^' It is also said that the intention of the legislature in enacting a statute can- not be determined by reference tq any traditional history of the occasion of its passage, unless that results from some known state of embarrassment under the former law.** And what is terrned the policy of the government with ref- erence to any particular legislation is declared to be too un- stable a ground upon which to rest the judgment of the court in the interpretation of statutes.^' CONTEMPORARY CONSTRUCTION AND USAGE 92. When the meaning of a statute is doubtful, a practical construction put upon it at the time of its passage, or soon afterwards, and universally acquiesced in for a long period of time, as shown by a general usage, will be entitled to great weight and will be accepted as the true construction, unless there are cogent reasons to the contrary. Contemporary Construction "Contemporanea expositio," says Coke, "est fortissima in lege." ^' The contemporary construction of an old statute, 8s Queen v. Most, L. R. 7 Q. B. Div. 244. See "Statutes," Dec. Dig. {Key No.) §§ US-Ul ; Cent. Dig. §§ 291-293. Si Barker v. Esty, 19 Vt. 131. See "Statutes," Deo. Dig. (Key No.) §§ 215-211; Cent. Dig. §§ 291-293. ssHadden v. The Collector, 5 Wall. 107, 18 L. Ed. 518. But com- pare Jewell V. City of Ithaca, 36 Misc. Rep. 499, 78 N. Y. Supp. 953 ; Gilbert v. Craddock, 67 Kan. 346, 72 Pac. 869 ; Texas & P. Ry. Co. V. Interstate Commerce Commission, 162 U. S. 197, 16 Sup. Ct. 666, 40 L. Ed. 940. See "Statutes," Deo. Dig. {Key No.) §§ S15-217; Cent. ■Dig. §§ 291-293. 3 2 Co. Inst. 11. Note also the maxim, "Custom Is the best inter- preter of the law." 4 Co. Inst. 75; McKeen v. Delancy, 5 Cranch, Black Int^L/. — 19 290 EXTRINSIC AIDS IN STATUTORY CONSTRUCTION (Oh. 7 even though not official or per se authoritative, is entitled to great consideration, more especially if such construction was universally acquiesced in and acted upon ; and in view of the inconveniences which would result from overruling it, it will not be reversed or changed by the courts unless it is very manifest that it was altogether erroneous.'' It is fair to presume in such cases that if the construction put upon the statute, by those who were charged with its ad- ministration, or by those whose rights or interests were af- fected by it, had been contrary to the real meaning of the legislature in its enactment, the error would have been corrected, either by the enactment of a new law explain- ing the purpose of the earlier one or changing the practice which had grown up under it, or else by the judgments of the courts rendered in cases brought by parties interested in testing the validity and scope of the act. Hence if the 32, 3 L. Ed. 25 ; McFerran v. Powers, 1 Serg. & R. (Pa.) 106. So, also, In the Roman law. "Si de interpretatlone legls quaeratur. In primis Inspiciendum est quo jure clvitas retro in ejusmodi casibus usa fuisset, optima enim est legum interpres consuetude." Dig. 1, 3, 37. See "Statutes," Dec. Dig. {Key No.) § 218; Cent. Dig. |§ 294,' 295. s'Gorham v. Bishop of Exeter, 15 Q. B. 52; Blankley v. Wln- Btanley, 3 Durn. & E. 279; Earl of Buckinghamshire v. Drury, 2 Eden, 60 ; Bank of United States v. Halstead, 10 Wheat 51, 6 L. Ed. 264 ; Stuart v. Laird, 1 Cranch, 299, 2 L. Ed. 115 ; McKeen v. Delan- cy, 5 Cranch, 22, 3 L. Ed. 25 ; Barksdale v. Morrison, 1 Harp. (S. C.) 101 ; Rogers v. Goodwin, 2 Mass. 475 ; Packard v. Richardson, 17 Mass. 122, 9 Am. Dec. 123 ; Opinion of Justices, 3 Pick. (Mass.) 517 ; Board of Com'rs of Franklin Co. v. Bunting, 111 Ind. 143, 12 N. E. 151 ; Fall v. Hazelrigg, 45 Ind. 576, 15 Am. Rep. 278 ; In re War- field's Will, 22 Cal. 51, 83 Am. Dec. 49; People ex rel. Badger v. Loewenthal, 93 111. 191 ; Brown v. State, 5 Colo. 496 ; Houghton v. Payne, 194 U. S. 88, 24 Sup. Ct. 590, 48 L. Ed. 888; Eddy v. Mor- gan, 216 111. 437, 75 N. E. 174 ; City of Louisville v. Louisville School Board, 119 Ky. 574, 84 S. W. 729; Clark v. Moody, 17 Mass. 145; Barber Asphalt Pay. Co. v. Meservey, 103 Mo. App. 186, 77 S. W. 13T ; Commonwealth v. Paine, 207 Pa. 45, 56 Atl. 317 ; State v. Rut- land R. Co., 81 Vt. 508, 71 Atl. 197 ; Smith v. Bryan, 100 Va. 199, 40 S. E. 652 ; Commonwealth v. Posey, 4 Call (Va.) 109, 2 Am. Dec. 560; State v. Davis, 62 W. Va. 500, 60 S. E. 584, 14 L. R. A. (N. S.) 1142; Bernard v. Benson, 58 Wash. 191, 108 Pac. 439. See "Stat- vites," Dec. Dig. (Key No.) § 218;. Cent. Dig. §§ 294, 295. § 92) CONTEMPORARY CONSTRUCTION AND USAGE 291 contemporary interpretation has been silently acquiesced in by the legislature and never challenged in the courts, this is very strong evidence that it was right. But if the mean- ing of the statute is too plain to admit of any reasonable doubt, it cannot be thus overruled. Thus, the contempo- rary construction given to a statute by an officer intrusted with its execution cannot be adopted by the judiciary if contrary to the judicial construction.^' Usage . , The best evidence of a contemporary construction of a statute, and of its universal acceptance, is a general usage, pursuant to such construction. Where the statute is of doubtful import on its face, great weight is due to such a usage, and it will not be disregarded by the courts, unless there are very satisfactory reasons to induce them to such a course of action." A very good illustration of the effect of usage, in this behalf, is found, in an early case in Massa- chusetts. On the interpretation of certain colonial laws of that state, giving to freemen the power to "dispose of" their lands, the court said : "Of these statutes a practical con- struction early and generally obtained that in the power to dispose of lands was included a power to sell and convey the common lands. Large and valuable estates are held in various parts of the commonwealth, the titles to which de- pend on this construction. Were the court now to decide that this construction is not to be supported, very great mischief would follow. And although, if it were now res integra, it might be very difficult to maintain su'ch a con- struction, yet at this day the argumentum ab inconvenienti applies with great weight. We cannot shake a principle 3 8 Union Pac. R. R. v. United States, 10 Ct. 01. 548. And see Com- monwealth, for Use of City of Louisville, v. Ross, 135 Ky. 315, 122 S. W. 161. See "Statutes," Dee. Dig. (Key No.) § giS; Cent. Dig. §§ m, 295. 39 Attorney General t. Bank of Cape Fear, 40 N. C. 71; Bailey v. Rolfe, 16 N. H. 247; Chesnut v. Shane's Lessee, 16 Ohio, 599, 47 Am. Dec. 387; Cameron v. Merchants' & Manufacturers' Bank, 37 Mich. 239 ; Appeal of Reeves, 33 Pa. Super. Ct. 196 ; McCurtain v. Grady, 1 Ind. T. 107, 38 S. W. 65. See "Statutes," Dec. Dig. (Key Ho.) § 2i8; Cent. Dig. §§ 294, 295. 292 EXTRINSIC AIDS IN STATUTORY CONSTBUCTION (Ch. 7 which in practice has so long and so extensivi..y prevailed. If the practice originated in error, yet the error is now so common that it must have the force of law. The legal ground on which this provision is now supported is that long and continued usage furnishes a contemporaneous con- struction which must prevail over the mere technical im- port of the words." *" In particular, it is said that a contemporary exposition of statutory provisions, and a practice and usage under them followed for years, should preclude a construction which would impose a penalty for conduct which was consistent with that practice.*^ Thus, property which was regarded as exempt from taxation under a former statute will not be taxed, after such law is changed, for the years when the previous law was in force, in the absence of a strong show- ing, that the property was not rightly exempt, silence and acquiescence during a course of years being regarded as. a contemporaneous construction of the statute and the best evidence of the legislative intent in enacting it.*" The "usage" which is entitled to be considered in the construction of a statute is such as is practical, general, and public. It may be the usage of the courts, in regulating matters of practice and procedure without formal decisions ; of the executive and administrative officers of the govern- ment, in the discharge of their duties ; of the legal profes- sion generally, in. advising their clients and conducting their business ; " of the practical men of the community, in con- forming their conduct and their contracts to the generally understood meaning of the law ; ** or of some or all of these combined. But it must not be merely theoretical or *o Rogers v. Goodwin, 2 Mass. 475. See "Statutes," Deo. Dig. (Key No.) § 2jf8; Cent. Dig. §§ 294, S95. *i State V. Northern Pac. Ry. Co., 95 Minn. 43, 103 N. W. 731. See "Btatutes," Dec. Dig.^ {Key No.) § 218; Gent. Dig. §§ 29^, 295. *2 State ex rel. Cunningham v. Board of Assessors of Parish of Orleans, 52 La. Ann. 223, 26 South. 872. See "Statutes," Dec. Dig. (Key No.) § 218; Cent. Dig. §§ 294, 235. is Matz V. Chicago & A. R. Co. (C. C.) 85 Fed. 180; Fears v. Ri- ley, 148 Mo. 49, 49 S. W. 830. See "Statutes," Deo. Dig. (Key No.) § 218; Cent. Dig. §| 294, 295. " Himrod Coal Co. v. Stevenn, 104 111. App. 639 ; People v. Borda, § 92) CONTEMPORARY CONSTRUCTION AND USAGE 293 speculative. Nor, it is further said, should the courts be influenced by a usage or practice which is one-sided, or which appears to have been established by the influence of those parties who now oppose a reversal of it by a new con- struction, or which results in some peculiar benefit or ad- vantage to those who insist upon it as a contemporary con- struction.*" Yet there are decisions to the effect that the practical construction placed upon its own charter by a public service corporation or other corporate body should be adopted by the court, if it is not plainly unreasonable or contrary to the evident meaning of the law, especially if it has been acquiesced in for a term of years by those who might be interested in establishing a. different interpre- tation.*" As to the length of time during which a usage must have prevailed, in order to entitle it to be considered in the con- struction of a statute, there is some difference of opinion in the authorities, and in the nature of things it cannot be very definitely settled. Some of the English cases speak of a period of two hundred or three hundred years. In this country, where no such statutory age is as yet possible, a very much shorter period of time would probably suffice to justify the courts in considering the usage.*' But it must 105 Cal. 636, 38 Pac. 1110. Bee '•Statutes,'^ Dec. Dig. {Key No.) § SIS; Cent. Dig. §§ 294, 295. 4 6 Wear v. Bryant, 5 Mo. 147; Tindall v. Johnson, 5 Mo. 179; State V. Southern Ry. Co., 122 N. C. 1052, 30 S. B. 133, 41 L. R. A. 246. See "Statutes," Dec. Dig. {Key No.) § 218; Cent. Dig. §§ 294 295. 4« City of Louisville v. Louisville Water Co., 105 Ky. 754, 49 S. W. 766 ; Clark's Bun & S. R. Turnpike Road Co. v. Commonwealth, 96 Ky. 525, 29 S. W. 360. See "Statutes," Dec. Dig. [Key No.) § 218; Cent. Dig. §§ 294, 293. " In Green v. Bancroft, 75 N. H. 204, 72 Atl. 373, the court re- filsed to disturb a practice (or general understanding) in regard to the descent of Intestate property which had been acquiesced in for 120 years. In State ex rel. Bashford v. Frear, 138 Wis. 536, 120 N. W. 216, controlling weight was given to a practical construction of an ambiguous law which had been "persistent for fifty years. Similar deference was paid to a usage or practical construction of a statute which had been acquiesced in for thirty-seven years, in Bates v. Hacking, 29 R. I. 1, 68 Atl. 622, 14 L. R. A. (N. S.) 937, and for twen- 294 EXTRINSIC AIDS IN STATUTORY CONSTRUCTION (Ch. 7 be remarked that the principle of "contemporanea ex- positio" is not applicable to laws recently passed. And the degree of force which should attach to the argument from usage will increase with the age of the usage. "Where there are ambiguous expressions in an act passed one or two centuries ago, it may be legitimate to refer to the con- struction put upon these expressions throughout a long course of years by the unanirrious consent of aU parties in- terested, as evidencing what must presumably have been the intention of the legislature at that remote period. But 1 feel bound to construe a recent statute according to its , own terms, when these are brought into controversy, and not according to the views which interested parties may have hitherto taken." *' The existence and nature of such a usage is a matter of law. The court will take judicial notice thereof, or will in- form itself by any proper and available means. Interested parties are neither required nor permitted to prove it as a fact. Thus, in a case in Connecticut, upon a question as to the validity of the execution of a will, a counselor, of long experience in the state, was offered as a witness, to show what had been the practice as to requiring the witnesses to a will to subscribe their names in the presence of each other, for the purpose of showing what was the general under- standing of the legal profession as to the meaning of the statute of wills on this point. The testimony was rejected, and the appellate court held that this was proper. It was said that the judge, who alone is to decide as to the law, may, if he so desires, ask the advice of those who are learned in the law, but a party has no right to introduce such persons as witnesses.*" It is further to be remarked that a general law is not to be interpreted by a special or local usage; for, being of ty years, In Commonwealtti v. Mann, 168 Pa. 290, 31 Atl. 1003, and People V. Hurst, 41 Mich. 328, 1 N. W. 1027. See "Statutes," Dec. Diff. {Key No.) § 218; Cent. Dig. §§ 29^, S95. 4 8 Trustees of Clyde Navigation v. Laird, L. R. 8 App. Cas. 658. See "Statutes," Dec. Dig. (Key No.) § 218; Cent. Dig. §§ 294, ^95. 40 Appeal of Gaylor, 43 Conn. 82. See "Statutes," Dec. Dig. (Key No.) § 218; Cent. Dig. §§ 294, ^95. § 92) CONTEMPORARY CONSTRUCTION AND USAGE 295 general application, it cannot receive different construc- tions in different places, according to their varying local usages."" But if a statute is applicable only to a particular locality, doubtful words in it may be construed by usage prevailing at that place. °^ Again, it must not be forgotten that usage, like all other extraneous aids in statutory construction, may be resorted to only when the meaning of the statute is involved in doubt or obscurity. If the act is so plain and clear in its terms as not to admit of any substantial doubt, the courts are bound to put upon it that construction which its terms demand, and to disregard any and all contrariant usages or popular opinions.''^ "As to usage," says Buller, J., "I am clearly of opinion that it ought not to be attended to in construing an act of Parliament which cannot admit of dif- ferent interpretation^ ; where the words of the act are doubtful, usage may be called in to explain them." °^ To the same effect is the following language of Lord Broug- ham : "Usage can be binding and operative upon the par- ties only as it is the interpreter of a doubtful law, as af- 00 King V. Hogg, 1 Durn. & B. 721 ; City of Clilcago v. Becker, 233 III. 189, 84 N. B. 242; "Currie v. Page, 2 Leigh (Va.) 617. And see United States v. Pine River Logging & Improvement Co., 89 Fed. 907, 32 'C. C. A. 406, where it was said that, "while it may be that proof of a custom or usage Is sometimes admissible to aid in the construction of a statute as well as a private contract, yet when It Is offered for that purpose, and with a view of altering the ordinary meaning of ordinary words or phrases, the evidence concerning the usage ought to show that it was prevalent in all sections where the law was to become operative, and was so far universal In the sec- tions where it prevailed, as to leave no room for doubt that the usage was known to the law-malier, and that the statute which it serves to modify was enacted with reference thereto." See "Stat- utes," Deo. Dig. (Key No.) § 218; Cent. Dig. §§ 29^, 295. 51 Love v. Hinckley, 1 Abb. Adm. 436, Fed. Cas. No. 8,548; Frazier V. Warfield, 13 Md. 279. See "Statutes," Dec. Dig. (Key No.) § 2iS/ Cent. Dig. §§ 294, ^95. 62 Houghton V. Payne, 194 V. S. 88, 24 Sup. Ct. 590, 48 L. Ed. 888 ; Eddy V. Morgan, 216 111. 437, 75 N. E. 174 ; J. Burton Co. v. City of Chicago, 236 111. 383, 86 N. B. 93. S6e "Statutes," Dec. Dig. (Key No.) § 218; Cent. Dig. §§ 2H, 295. 63 King V. Hogg, 1 Durn..& B. 721. See "Statutes," Dec. Dig. (Key No.) § 218; Cent. Dig. §§ 29.i, 295. 296 EXTRINSIC AIDS IN STATUTORY CONSTRUCTION (Ch. 7 fording a contemporary interpretation ; but it is quite plain that as against a plain statutory law n6 usage, is of any avail. But this undeniable proposition supposes the statute to speak a language plainly and indubitably differing from the purport of the usage. Where the statute, speaking on some point, is silent as to others, usage may well supply the defect, especially if it is not. inconsistent with the statutory directions, where any are given ; or where the statute uses a language of doubtful import, the acting under it for a long course of years may well give an interpretation to that ob- scure meaning, and reduce that uncertainty to a fixed rule." °* A custom, however venerable, must yield to a positive and explicit statute. Thus, for example, where the compensation of a public ofificer is fixed by statute, the of- ficer cannot recover additional compensation for expenses incurred by him incident to the performance of his official duties ; and it is immaterial that, by usage long antedating the statute, such incidental expenses have been paid hereto- fore without objection."" It is not permissible to show that the members of the legislature knew of a custom existing at the time the law was remodeled, in order to argue from their silence that they intended to sanction such custom."" Communis Error Facit Jus This maxim, though always regarded with distrust and accepted with great caution, has a certain validity as ap- plied to matters of practice, and indicates the eventual le- galization, by inveterate repetition, of that which was at first erroneous or even illegal. But it has no applicability to the interpretation of the written laws. It is sometimes 0* Magistrates of Diinbar v. Duchess of Roxburghe, 3 CI. & Fin. 335. But in Pease v. Peck, 18 How. 595, 15 L. Ed. 518, It is said tliat where a law, as published, has been acknowledged by the people, and has received a harmonious interpretation for a long series of years, the propriety may well be doubted of referring to an ancient manu- script to show that the law as published was not an exact copy of the original manuscript. See "Statutes," Deo. Dig. (Key No.) § 218; Cent. Dig. §§ Z9J,, Z9S. 6 Albright v. County of Bedford, 108 Pa. 582. See "Statutes," Deo. Dig. {Key No.) § 218; Cent. Dig. §§ 294, 295. " Delaplaue v. Crenshaw, 15 Grat. (Va.) 457. See "Statutes," Deo. Dig. (Key No.) § 218; Cent. Dig. §§ 294, 2S5. § 92) CONTEMPORARY CONSTRUCTION AND USAGE 297 appealed to as if it meant that an erroneous understanding of the law, being universally accepted, will prevail over the true and proper understanding of the law. But this is not correct. The construction of a statute may be influenced, in case of doubt, by the course of practice under it (not the mere abstract understanding of it), especially if general and long continued. But if it is clear that the common under- standing of a law is really and unmistakably "error," it can- not be at all regarded."' For example, in England, "a gen- eral understanding had prevailed, founded on the practice of a long series of years, that if patented inventions were used in any of the departments of the public service, the patentees would be remunerated by the officers or ministers of the crown administering such departments, as though the use had been by private individuals. In numerous in- stances, payments had been made to patentees for the use of patented inventions in the public service, and even the legal advisers of the crown appeared also to have consid- ered the right as well settled. There was, further, little doubt that on the faith of the understanding and practice, many inventors had, at great expense of time and money, perfected and matured inventions, in the expectation of de- riving a portion of their reward from the adoption of their inventions in the public service. It was nevertheless held that the language of the patent should be interpreted ac- cording to the legal effect of its terms, irrespective of the practice." °* It must be admitted, however, that there are some decisions in which a practical construction has been allowed to override the obvious meaning of the law."' "'"It has been sometimes said, communis error facit jus ; but I say communis opinio is evidence of what the law is ; not where it is an opinion merely speculative and theoretical, floating in the minds of persons, but where it has been made the groundwork and substratum of practice." Per Lord EUenborough, C. J., in Isherwood v. Old- know, 3 Manle & S. 382, 396. See "Statutes," Dec. Dig. (Key 'So.) % %18; Cent. Dig. §§ 29^, ^95. 68 Broom, Leg. Max. 141, citing Feather v. Queen, 6 Best & S. 257, 289. See "Statutes," Dec Dig. {Key Wo.) § 218; Cent. Dig. §§ 294, 295. S9 See, for instance, Clay v. Sudgrave, 1 Salk. 33. See "Statutes," Deo. Dig. (Key No.) | 218; Cent. Dig. §§ 294, 295. 298 EXTRINSIC AIDS IN STATUTORY CONSTRUCTION (Ch. 7 JUDICIAL CONSTRUCTION 93. Judicial decisions previously made upon the interpreta- tion of particular terms and phrases used in a stat- ute, and decisions subsequently rendered upon its effect, purpose, or scope, are strong evidence of its meaning, and are generally of controlling force in establishing its correct construction. In interpreting the particular words and phrases used in a statute, it is to be presumed that the legislature was cog- nizant of a construction previously put upon them by the decisions of the courts and intended to employ them in the same signification.®" And after the enactment of a statute, when a construction has been placed upon it by the high- est court of the state, it will be steadily adhered to in sub- sequent cases, unless very plainly shown to have been wrong, and more especially where the construction so given is supported by a line of uniform decisions, and where it has been acquiesced in by the legislature for a succession of years. In that case, the construction becomes as much a part of the statute as if it had been written into it orig- inally.'^ As applied to the highest or appellate court itself, this rule rests upon the well-known principle of stare de- cisis. As applied to the inferior courts of the state, it has a sufficient foundation in the rule that the decisions of the »o Daniel v. Slmms, 49 W. Va. 554, 39 S. B. 690; Shehan v Louis- ville & N. R. Co., 125 Ky. 478, 101 S. W. 380. 31 Ky. Law Rep. 113 ; Oominonwealth v. Greenwood, 205 Mass: 124, 91 N. E. 141; Cohen T. State, 53 Tex. Cr. App. 422, 110 S. W. 66 ; In re Moffltt's Estate, 153 Cal. 359, 95 Pac. 653, 20 L. R. A. (N. S.) 207. And see supra, p. 186 A statute enacted to relieve from the effect of a judicial deci- sion construing another statute should be read in connection with such decision. People ex rel. American Exch. Nat. Bank v. Purdy, 196 N. Y. 270, 89 N. E. 838. See "Statutes," Dec. Dig. {Key No.) § 215; Cent. Dig. § 291. oiMcChesney v. Hager, 31 Ky. Law Rep. 1038, 104 S. W. 714; Loeb V. Mathis, 37 Ind. 306; Eau Claire Nat. Bank v. Benson, 106 Wis. 624, 82 N. W. 604. And see Infra, chapter XVIII. See "Courts," Dec. Dig. (Key No.) §§ 90, 93, 97; Cent. Dig. §§ 318, 329-333, 338. § 93) JUDICIAL CONSTRUCTION 299 court of last resort furnish imperative and binding prece- dents for all the lower courts."^ But the rule also has a much wider scope. Thus, when a construction has been given to a clause or provision of the Constitution of the United States or of an act of Congress by the Supreme Court of the United States, it is the best and only evidence of its meaning, and the courts of the various states not only may, but absolutely must, follow and adopt it in cases be- fore them where the same question of interpretation comes into controversy." Conversely, where a statute of a state has received a settled judicial construction by the decisions of its own courts, those decisions will be accepted as au- thoritative by the courts of the United States, and the con- struction will be regarded as authentic, and will be adopted and followed without inquiry into its soundness."* It is also settled that the readoption or re-enactment of a statute, after it has received a judicial construction, in effect enacts the construction as a part of the statute, as it amounts to a legislative declaration that the original con- structio'n was correct and in accordance with its meaning. It is presumed that 'the law-making body was aware of the fact of such construction, and would have changed the ■wording of the law if it had desired to alter the interpreta- tion.'" «* Attorney General ex rel. Gushing v. Lum, 2 Wis. 507. See "Covets," Dec. Dig. {Key No.) g§ 90, 93, 97; Cent. Dig. §§ 318, 3S9- SSS, 338. »3 Black V. Lusk, 69 111. 70; Towle v. Forney, 14 N. Y. 423. See "Courts," Deo. Dig. (Key jfo.) §§ 90, 93, 97, 366; Cent. Dig. §§ 318, 329-333, 338, 954-968. 6* McKeen v. Delancy, 5 Cranch, 22, 3 L. Ed. 25 ; Leffingwell v. Warren, 2 Black, 599, 17 L. Ed. 261 ; Bueher v. Cheshire R. Co., 125 D. S. 555, 8 Sup. Ct. 974, 31 L. Ed. 795 ; Cornell University v. Flske, 136 U. S. 152, 10 Sup. Ct. 775, 34 L. Ed. 427 ; Dundee Mortg. T. I. Co. V. Parrish (C. C.) 24 Fed. 197 ; Gatewood v. North Carolina, 203 U. S. 531, 27 Sup. Ct. 167, 51 L. Ed. 305. See "Courts," Deo. Dig. {Key 2fo.) §§ 90, 93, 97, 366; Gent. Dig. §§ 318, 329-333, 338, 954-968. 6 B Tennessee Coal, Iron, & R. Co. v. Roussell, 155 Ala. 435, 46 South. 866, 130 Am. St. Rep. 56 ; Hart v. Hart, 31 Colo. 333, 73 Pae. 35. And see infra, chapter XVI. Where a section of a Code has been codified from a decision of the Supreme Court, it will be con- strued in the light of such decision, unless its language imperatively 300 EXTEINSIC AIDS IN STATUTORY . CONSTRUCTION (Oil. 7 Again, if the question at issue in a given case is to be governed by the statutory law of a foreign state, and its terms or phraseology are at all doubtful or ambiguous, the court will examine the judicial decisions of the highest court of that state, and if it appears that they have placed an interpretation upon the doubtful clauses or parts of the statute, that interpretation will be accepted as authoritative and will be adopted and followed without further ques- tion.*' EXECUTIVE CONSTRUCTION 94. A practical construction put upon a doubtful or ambig- uous statute by the officers of the executive de- partrnent, who are charged with its execution^ if long acted upon and generally acquiesced in, is re- garded as strong evidence of the true meaning of the law; and though it is not binding upon the courts, they will not interpret the law differently, unless there are weighty reasons for so doing. The executive and administrative officers of the govern- ment are bound to give effect to the laws which regulate their duties and define the sphere of their activities, and in so doing, they myist necessarily put their own construction demands a different construction. Calhoun v. Little, 106 Ga. 336, 52 S. E. 86, 43 L. R. A. 630, 71 Am. St. Rep. 254. See "Statutes," Deo. Dig. (Key No.) § 225%; Gent. Dig. § 306. 66 McManus v. Lynch, 28 App. D. C. 381; Blaine v. Curtis, 59 Vt 120, 7 Atl. 708, 59 Am. Rep. 702 ; Jessup v. Carnegie, 80 N. Y. 441 ; Lane & Co. v. Watson, 51 N. J. Law, 186, 17 Atl. 117 ; Van Matre v. Sankey, 148 111. 536, S6 N. B. 628, 23 L. R. A. 665, 39 Am. St Rep. 196; Blumle v. Kramer, 14 Okl. 366, 79 Pac. 215. And see infra, chapter XVI. Though the ecclesiastical law of England Is no part of the common law adopted in New York, the courts of that state, In determining the effect of a state of facts arising under a statute relating to actions for separation, may consider the effect given to such facts by the ecclesiastical court, which had jurisdiction of the same subject. Hawkins v. Hawkins, 193 N. Y. 409, 86 N. E. 468, 19 L. R. A. (N. S.) 468, 127 Am. St. Rep. 979. See "Courts," Doc. Dig. (Key No.) § 95; Cent. Dig. §§ 322, 323; "Statutes," Cent. Dig. % 256. § 94) EXECUTIVE CONSTRUCTION 301 upon such acts. When the courts shall have interpreted, the laws, these officers are of course bound to accept and abide by their decisions. But in advance of such judicial construction, they must interpret the statutes for them- selves and to the best of their own abilities. °' Hence it frequently happens that the judicial tribunals, when called, upon to construe the acts of the legislature, will have their attention directed to a uniform practical construction put upon such acts by the executive department for its own guidance, und.er which official action has been regulated and rights fixed. Now such practical constructions are never binding upon the courts. The courts cannot be con- trolled by them| for the reason that the courts alone are in- vested with the power and charged with the duty of putting a final and authoritative interpretation upon the laws.*' And if the statute to be construed is a recent one — so that official action cannot be seriously deranged, nor private rights be very much affected, by a change in its interpre- tation — the mere fact that subordinate officers have already begun to read it in a certain way and to regulate their ac- tions accordingly will have no weight or influence with the courts in their search for the true meaning of the law.'* But it is a rule, announced by the Supreme Court of the United States at an early day, and which has since been followed in numerous cases both in the federal and state courts, that the contemporaneous construction put upon a statute by the officers who have been called upon to carry it into effect, made the basis of their constant and uniform practice for a long period of time, and generally acquiesced «7 United States v. Lytle, 5 McLean, 9, Fed. Cas. No. 15,652. See "Statutes," Deo. Dig. (Key No.) § 219; Cent. Dig. §§ 296, 297. 68 Smoot V. Bankers' Life Ass'n, 138 Mo. App. 438, 120 S. W. 719-; State ex rel. Pindall v. Ross, 55 Wash. 242, 104 Pac. 216; Bloxham V. Consumers' Electric Light, etc., Co., 36 Fla. 519, 18 South. 444, 29 L. R. A. 507, 51 Am. St. Rep. 44 ; Gray v. Foster (Ind. App.) 92 N. E. 7. See "Statutes," Dec. Dig. (Key No.) § 219; Cent. Dig. §§ 296, 297. esEwing v. Ainger, 97 Mich. 381, 56 N. W. 767; Employers' Lia- bility Assur. Co. V. Commissioner of Insurance, 64 Mich. 614, 31 N. W. 542. See "Statutes," Deo. Dig. (Key No.) § 219j Cent. Dig. §| 296, 297. 302 EXTRINSIC AIDS IN STATUTORY CONSTRUCTION (Ch. 7 in, and not questioned by any suit brought, or any public or private action instituted, to test and settle the construc- tion in the courts, is entitled to great respect, and if the statute is doubtful or ambiguous; such practical construc- tion ought to be accepted as in accordance with the true meaning of the law, unless there are very cogent and per- suasive reasons for departing from it.''" 10 Stuart V. Laird, 1 Cranch, 299, 2 L. Ed. 115 ; United States v. Gllmore, 8 Wall. 330, 19 L. Ed. 396 ; United States v. HUl, 120 U. S. 169, 7 Sup. Ct. 510, 30 L. Ed. 627; Merritt v. Cameron, 137 U. S. 542, 11 Sup. Ct. 174, 34 L. Ed. 772 ; Hahn v. United States, 107 U. S. 402, 2 Sup. Ct. 494, 27 L. Ed. 527 ; Robertson v. Downing„ 127 U. S. 607, 8 Sup. Ct. 1328, 32 L. Ed. 269 ; United States' v. Philbrick, 120 U. S. 52, 7 Sup. Ct. 413, 30 L. Ed. 559; United States v. Cerecedo Hermanos Y. Compania, 209 U. S. 337, 28 Sup. Ct. 532, 52 L. Ed. 821 ; Sells V. United States, 36 Ot. CI. 94 ; Wetmore v. State, 55 Ala. 198; Copper Queen Consol. Min. Co. v. Territorial Board of Equali- zation, 9 Ariz. 383, 84 Pae. 511; United States ex rel. Wedderburn V. Bliss, 12 App. p. C. 485 ; Payne v. Houghton, 22 App. D. C. 234 ; United States v. Day, 27 App. D. C. 458; State ex rel. Mpodle v. Bryan, 50 Fla. 293, 39 South. 929 ; People ex rel. Badger v. Loewen- thal, 93 111. 191 ; Harrison v. People, 97 111. App. 421 ; Louisville & E. Mail Co. T. Barbour, 8 Ky. Law Rep. 436; Auditor of Public Accounts V. Cain, 61 S. W. 1016, 22 Ky. Law Rep. 1888; Attorney General v. Glaser, 102 Mich. 405, 61 N. W. 648 ; Prey v. Michie, 68 Mich. 323, 36 N. W. 1S4; Westbrook v. Miller, 56 Mich. 148, 22 N. W. 256; O'Connor v. Gertgens, 85 Minn. 481, 89 N. W. 866; Ross v. Kansas City, St. J. & C. B. R. Co., Ill Mo. 18, 19 S. W. 541 ; Ewing V. Vernon County, 216 Mo. 681, 116 S. W. 518 ; State v. Sheldon, 79 Neb. 455, 113 N. W. 208; Rohrer v. Hastings Brewing Co., 83 Neb. Ill, 119 N. W. 27 ; Douglas County v. Vinsonhaler, 82 Neb. 810, 118 N. W. 1058 ; Wyatt v. State Board of Equalization, 74 N. H. 552, 70 Atl. 387; Bank of Utica v. Mersereau, 3 Barb. Ch. (N. Y.) 528, 49 Am. Dec. 189; People v. City of Buffalo (Sup.) 84 N. Y. Supp. 434 In re Board of Street Opening, 12 Misc. Rep. 526, S3 N. Y. Supp. 594 Hoffman v. County Com'rs of Pawnee County, 3 Okl. 325, 41 Pac. 566; Smith v. Bryan, 100 Va. 199, 40 S. E. 652; Atlantic & D. Ry Co. V. Lyons, 101 Va. 1, 42 S. E. 932; Virginia Coal & Iron Co. v, Keystone Coal & Iron Co., 101 Va. 723, 45 S. E. 291 ; Regan v. School Dist. No. 25 of Snohomish County, 44 'Wash. 523, 87 Pac. 828 ; State ex rel. Bashford v. Frear, 138 Wis. 536, 120 N. W. 216; Daniel v. Simms, 49 W. Va. 554, 39 S. E. 690; Commonwealth, for Use of City of Louisville, v. Ross, 135 Ky. 315, 122 S. W. 161 ; Musgrove v. Baltimore & O. R. Co., Ill Sid. 629, 75 Atl. 245 ; Van Veen v. Graham County (Ariz.) 108 Pac. 252; Ballinger v. United States ex rel. Ness, 33 App. D. C. 302 ; State ex rel. Reardon v. Hooker, 26 Okl. 460, 109 ^ 94) EXECUTIVE CONSTRUCTION 303 For example, a question arose in the federal Supreme Court as to the construction of an act of Congress provid- ing for the retirement of "officers of the navy." It was con- tended that this applied only to commissioned officers, and not to warrant officers. The court said: "It must be con- ceded that, were the question a new one, the true construc- tion of the section would be open to doubt. But the find- ings of the Court of Claims show that soon after the enact- ment of the act the President and the Navy Department construed the section to include warrant as well as commis- sioned officers, and that they have since that time uniformly adhered to that construction, and th^-t under its provisions large numbers of warrant officers have been retired. This contemporaneous and uniform interpreta4;ion is entitled to weight in the construction of the law, and, in a case oi doubt, ought to turn the scale." '^ So again, where the Sec- retary of the Treasury gives a certain construction to a stat- ute concerning the distribution of fines, penalties, and for- feitures, and officers interested adversely apparently ac- quiesce in the decision through a long period of time, a,nd large sums are accordingly distributed and paid put of tl^ treasury, the courts will not interfere by giving a 4iffeTent construction to the statute, at least where that adopted by the Secretary is not unreasonable.''^ So, where the lg,n- guage of the tariff acts has been substantially the san^e in respect to certain goods, a construction uniformly followed by the Treasury Department for nearly fifty years will not be disregarded except for very strong reasons.'^ A uni- form construction put upon a land grant act by the Land Office and the Department of the Interior for a period of eighteen years, and under which lands have been put upon Pac. 527. See "Statutes," Dec. Dig. (Key No.) § 219; Cent. Dig. §§ 296, 297. f 1 Brown v. United States, 113 U. S. 568, 5 Sup. Ct. 648, 28 L. Ed. 1079. See "Statutes," Dec. Dig. (Key No.) § 219; Cent. Dig. §§ 296, 297. " Hahn v. tjnited States, 14 Ct. 01. 305. See "Statutes," Deo. Dig. {Key No.) § 21^; Cent. Dig. §§ 296, 291. . . " United States v. Wotten (C. C.) 50 Fed. 693. See "Statutes," Dec. Dig. {Key No.) § 219; Cent. Dig. §§ 296, 297. 304 EXTRINSIC AIDS IN STATUTORY CONSTRUCTION (Ch. 7 the market and sold, "should have considerable weight in determining the meaning of doubtful language in the stat- ute.''* And generally, while the decisions of the Land Of- fice are not binding on the federal courts, yet, when the construction of a doubtful or obscure statute by that office has been uniform, the court will accept such interpretation as the proper one.'" Similar respect is paid and similar ef- fect accorded to constructions of statutes, made in the prac- tical conduct of business by the Commissioner of Patents/' the Interstate Commerce Commission," the Attorney Gen- eral of the state or of the United States,'* the Commis- sioner or Superintendent of Insurance,'" the State Comp- troller, and other accounting and auditing officers of the state government.'" For the same reasons, the practical construction given to a state statute by the public officers of the state, although it cannot be admitted as cohtrolling, when the federal courts are called upon to construe the statute, is not to be over- looked, arid should perhaps be regarded as decisive in a case of doubt, or where the error of such practical construction is not apparent.'^ 74 United States v. Union Pae. Ey. Co., 148 U. S. 562, 13 Sup'. Ct 724, 37 L. Ed. 5G0. See "Statutes," Dec. Dig. {Key No.) § 219; Cent. Dig. §§ 29G, 297. 7 6 United States v. Burkett (D. C.) 150 Fed. 208. See "Statutes," Dec. Dig. (Key No.) §■ 219; Cent. Dig. §§ 296, 297.. 7 8 Bate Refrigerating Co. v. Sulzberger, 157 U. S. 1, 15 Sup. Ct. 508, 39 L. Ed. 601. See "Statutes," D^c. Dig. {Key No.) § 219; Cent. Dig. §§ 296, 297. 7 7 Green wald v. Weir, 130 App. Div. 696, 115 N. Y.i Supp. 311; Schuyler v. Southern Pac. Co. (Utah) 109 Pae. 458. See "Statutes," Dec. Dig. {Key No.) § 219; Gent. Dig. §§ 296, 297. 7 8 Johnson v. Ballou, 28 Mich. 379; State v. Brady (Tex. Civ. App.) 114 S. W. 895 ; State v. Gunter, 36 Tex. Civ. App. 381, 81 S. W. 1028. See "Statutes," Dec. Dig. {Key No.) § 219; Cent. Dig. §§ 296, 297. 7 8 Commonwealth v. Gregory, 121 Ky. 256, 89 S. W. 168. See "Statutes," Deo. Dig. {Key No.) § 219; Cent. Dig. §§ 2,96, 297. 80 Bloxham v. Consumers' Electric Light & Street R. Co., 36 Fla. 519, 18 South. 444, 29 L. R. A. 507, 51 Am. St. Rep. 44. See "Stat- utes," Deo. Dig. {Key Nq.) § 219; Cent. Dig. §§ 296, 297. 81 Union Ins. Co. v. Hoge, 21 How. 35, 16 L. Ed. 61. See ''Stat- utes," Dec. Dig. {Key No.) § 219; Cent. Dig. §§ 296, 297. § 94J EXECUTIVE CONSTKCCTION, 305 It is only in cases of doubt or ambiguity that the courts may allow themselves to be guided or influenced by an ex- ecutive construction of a statute. If the words of the law are clear and precise, and the true meaning evident on the face of the enactment, there is no room for construction. In such case, no executive or administrative interpretation of the act should be allowed to defeat the plain meaning and purpose of the statute as the courts understand them. If such an interpretation is plainly erroneous, it is the duty of the courts to disregard it, no matter how long it may have prevailed, or how universally it may have been accepted, or what interests may be affected, and to construe the law ac- cording to its real ahd true meaning.*'' And it is even said that, to justify a court in being guided by the practical ex- ecutive construction of a statute, the ambiguity on the face of it must not be merely captious, but should be so serious as to raise a reasonable doubt in a fair mind reflecting hon- estly upon the subject.*' This rule, however, will be some- what relaxed where great mischief would result from adopt- er Studebaker v. Perry, 184 U. S. 258, 22 Sup. Ct 463, 46 L. Ed. 528; United States v. Tanner, 147 U. S. 661, 13 Sup. Ct. 436, 37 L. Ed. 321 ; United States v. Graham, 110 U. S. 219, 3 Sup. Ct. 582, 28 L. Ed. 126; Greely v. Thompson, 10 How. 225, 13 L. Ed. 397; Dem- ing V. MeClaughry, 113 Fed. 639, 51 C. 0. A. 349 ; United States ex rel. Daly v. MacFarland, 28 App. D. C. 552; Allen v. United States ex rel. Lowery, 26 App. D. C. 8 ; People ex rel. v. Shedd, 241 111. 155, 89 N. E. 332; Whittemore v. People, 227 111. 453, 81 N. E. 427; Eddy V. Morgan, 216 111. 437, 75 N. E. 174 ; Hord v. State, 167 Ind. 622, 79 N. E. 916; Commonwealth v. Owensboro, Falls of Bough & G. E. R. Co., 95 Ky. 60, 23 S. W. 868; State ex rel. v. Heury, 87 Miss. 125, 40 South. 152, 5 Z,. R. A. (N. S.) 340; In re Manhattan Sav. Inst, 82 N. Y. 142; Moriarty v. City of New York, 59 Misc. Rep. 204, 110 N. Y. Supp. 842; People ex rel. West Side Electric Co. T. Consolidated Telegraph & BJlectrical Subway Co., 187 N. Y. 58, 79 N. E. '892 ; Fire Ass'n of Philadelphia v. Love, 101 Tex. 376, 108 S. W. 810 ; State ex rel. Fidelity & Casualty Co. v. Fricke, 102 Wis. 107, 78 N. W. 455 ; Travelers' Ins. Co. v. Fricke, 94 Wis. 258, 68 N. W. 958. See "Statutes," Dec. Dig. (Key No.) § 219; Cent. Dig. i| 296, 297. 83 City of New York v. New York City Ry. Co., 193 N. Y. 543, 86 N. E. 565. See "Statutes," Deo. Dig. (Key No.) § 219; Cent. Dig. §§ 236, 297. Black Int^L.: — 20 306 EXTRINSIC AIDS IN STATUTORY CONSTRUCTION (Ch. 7 ing a new construction,'* or where the changed construc- tion would operate retrospectively and impose on citizens or corporations taxes or charges for doing btfsiness to which they were not subjected under the construction which obtained when such business was entered into and while it was being conducted.'" LEGISLATIVE CONSTRUCTION 95. A construction put upon a statute by the legislature itself, by a subsequent act or resolution, cannot control the judgment of the courts ; but it is enti- tled to weight and consideration in case of doubt or obscurity. The opinion of the legislative body concerning the true meaning and intention of a doubtful or ambiguous statute, as manifested by the passage of subsequent acts or resolu- tions relating to the same subject, is persuasive evidence and entitled to the respectful consideration of the courts; '° and if such a legislative construction was contemporaneous, or nearly so, and has been long continued and acquiesced in, it should be considered as of great weight.'' But the 8* Rogers v. Goodwin, 2 Mass. 475; Clark v. Moody, 17 -Mass. 145; Holmes v. Hunt, 122 Mass. 505, 23 Am. Rep. 381 ; Opinion of the Justices, 126 Mass. 557. See "Statutes," Dec. Dig. (Key No.) § 219; Cent. Dig. §§ S96, 2S7. 8 5 State V. Comptoir National D'Escompte de Paris, 51 La. Ann. 1272, 26 South. 91. See "Statutes," Dec. Dig. {Key No.) § 219; Cent. Dig. §§ 296, 297. 80 Spencer v. United States, 169 Fed. 562, 95 C. C. A. 60 ; City Council of City and County of Denver v. Board of Com'rs of Adams County, 33 Colo. 1, 77 Pac. 858; Mlddleton v. Greeson, 106 Ind. 18, 5 N. B. 755 ; Village of Morgan Park v. Knopf, 210 111. 453, 71 N. B. 340; Crohn v. Kansas City Home Tel. Co., 131 Mo. App. .313, 109 S. W. 1068 ; Commonwealth v. Miller, 5 Dana (Ky.) 320 ; Philadelphia 6 E. R. Co. V. Catawissa R. Co., 53 Pa. 60; Robertson v. Baxter, 57 Mich. 127, 23 N. W. 711 ; State ex rel. Schenck v. Board of Com'rs of Shawnee County, 83 Kan. 199, 110 Pac. 92. See "Statutes," Dec. Dig. (Key No.) i 220; Cent. Dig. § 298. 87 State ex inf. Hadley ex rel. Way land v. Herring, 208 Mo. 708, § 95) LEGISLATIVE CONSTRUCTION 307 function of interpreting the laws does not belong to the legislature, but to the courts, and therefore, while due con- sideration must be given to the legislative construction of a statute, it has no judicial force, and is not binding or con- clusive on a court of last resort,'* except in the case where it is incorporated in the statute itself, in the form of a defi- nition or an interpretation clause, in which event it is, of course, a part of the law and must be so considered.*® Thus, while the legislature cannot, by resolution, change the obligation of a contract made under a previous act, yet if they instruct a public officer as to his duties under the contract, such legislative expression of opinion as to what has been done, and the resulting duties of the officer, may be resorted to in determining the intention of the legisla- ture in passing the act."" But the enactment of a specific provision on a given subject does not, of itself, prove that the law on that subject was different before; for such en- actment may have been made in affirmance of the exist- ing law, and to remove doubts."^ 106 S. W. 984. See "Statutes," Dec. Dig. (Key No.) § 220; Cent. Dig. S 298. 88 Gibson V. People, 44 Colo. 600, 99 Pac. 333; Village of Morgan Park V. Knopf, 210 111. 453, 71 N. B. 340; Deutschman v. Town of Caiarlestown, 40 Ind. 449; Frey v. Michie, 68 Mich. 323, 36 N. W. 184; Smith v. Town of Westerly, 19 R. I. 437, 35 Atl. 526; State v. Lancashire Fire Ins. Co., 66 Ark. 466, 51 S. W. 633, 45 L. R. A. 348 ; Roche V. Jordan (C. C.) 175 Fed. 234 ; State v. Dana, 138 Iowa, 244, 115 N. W. 1115. See "Statutes," Dec. Dig. {Key No.) § 220; Cent. Dig. i298. 8 9 Commonwealth v. Curry, 4 Pa. Super. Ct. 356; Rossmiller v. State, 114 Wis. 169, 89 N. W. 839, 58 L. R. A. 93, 91 Am. St. Rep. 910. And see supra, p. 269. See "Statutes," Dec. Dig. (Key No.) § 220; Cent. Dig. § SffS. »o Georgia Penitentiary Co. v. Nelms, 65 Ga. 67. See "Statutes," Deo. Dig. (Key No.) § 220; Cent. Dig. § 298. 81 Inhabitants of Montville v. Haughton, 7 Conn. 543. See "Stat- utes," Dec, Dig. (Key No.) § 220; Cent. Dig. § 298. 308 EXTRINSIC AIDS IN STATUTORY CONSTRUCTION (Ch. 7 JOURNALS OF LEGISLATURE 96. In aid of the interpretation of an ambiguous statute, or one which is susceptible of several different con- structions, it is proper for the courts to study the history of the bill in its progress through the leg- islature, by examining the legislative journals. An obscure or ambiguous law is often rendered clear and intelligible by a consideration of the various steps whicli led to its final passage, as shown by the journals of the leg- islative body, and a resort to these sources of information by the courts, in the endeavor to ascertain the intention of the legislature and interpret the statute accordingly, is sanctioned by the great majority of the decisions."^ Thus the court in Indiana remarks that "it has never been held by this court that, for the purpose of construction or interpretation, and with the view of ascertaining the legis- lative will and intention in the enactment of a law, the courts may not properly resort to the journals of the two legislative bodies to learn therefrom the history of the law in question, from its first introduction as a bill until its final passage and approval. Where, as in this case, a statute has been enacted which is susceptible of several widely differ- ing constructions, we know of no better means for ascer- taining the will and intention of the legislature than that which is afforded, in this case, by the history of the statute, 02 Stout v. Grant County Com'rs, lOT Ind. 343, 8 N. E. 222; Klemm V. Fread (Ind. App.) 91 N. E. 256; State v. Kelly, 71 Kan. 811, 81 Pac. 450, 40 L. R. A. 450 ; Ellis v. Boer, 150 Mich. 452, 114 N. W. 239 ; State v. Balch, 17S Mo. 392, 77 S. W. 547 ; Ex parte Helton, 117 Mo. App. 609, 93 S. W. 913 ; State ex rel. Hay v. Hindson, 40 Mont. 354, 106 Pac. 362 ; Wyatt v. State Board of Equalization, 74 N. H. 552, 70 Atl. 387; State v. Burr, 16 N. Dak. 581, 113 N. W. 705; SUng- luff V. Weaver, 66 Ohio St. 621, 64 N. B. 574; Malone v. Williams, 118 Tenn. 390, 103 S. W. 798, 121 Am. St. Rep. 1002 ; Ex parte Keith. 47 Tex. Cr. R. 283, 83 S. W. 683 ; State v. Rutland R. Co., 81 Vt. 508, • 71 Atl. 197 ; Burdlck v. Kimball, 53 Wash. 198, 101 Pac. 845 ; Scouten V. City of Whatcom, 33 Wash. 273, 74 Pac. 389. See "Statutes," Deo. Dig. (Key No.) § S85; Gent. Dig. §§ n, 27, WO, S99, S8i, S85. § 96) JOURNALS OF LEGISLATDRE 309 as found in the journals of the two legislative bodies." "'' So also, in Kansas, it is said that the courts will take ju- dicial notice, without proof, of all the laws of the state; and in so doing, they will take judicial notice of what the books of published laws contain, of what the enrolled bills contain, of what the legislative journals contain, and indeed of everything that is allowed to affect the validity, or af- fect or modify the meaning, of any law in any respect what- ever.'* And a learned judge in Ohio says: "In cases of doubt as to the proper interpretation of wills and contracts, it is a familiar rule that evidence is admissible to show the circumstances surrounding the party or parties at the time of the making of the instrument to be interpreted, and thus to place the court upon the standpoint of the party or par- ties whose intentions are to be ascertained, and to enable the court to see things in the light in which he or they saw them. And on principle, I know of no good reason why, on a question like this, we may not, in analogy to the rule re- ferred to, look into the history and progress of the bill which finally ripened into this act, during its pendency in, and passage by, the general assembly, as shown by the journals of the two houses of that body." '° In the case of Blake v. National City Bank,"' we find an act of Con- gress, apparently contradictory in terms, interpreted by a reference to the journals of Congress, whereby it appeared that the peculiar phraseology was the result of an amend- ment introduced without due reference to the language used in the original bill. In another case, a statute purported to »3 Edger v. Board of Com'rs of Randolph County, 70 Ind. 331. See, also, Walter A. Wood Mowing & Reaping Mach. Co. v. Caldwell, 54 Ind. 270, 23 Am. Rep. 641 ; Hill's Adm'rs v. Mitchell, 5 Ark. 608. See "Statutes," Deo. Diff. {Key No.) § 285; Cent. Dig. §§ n, 27, 290, 299, 38i, 385. 8* In re Division of Howard County, 15 Kan. 194. See "Statutes," Dec. Dig. {Key No.) § 285; Cent. Dig. §§ 17, 27, 290, 299, 384, 385. »B Fosdick V. Mayor, etc., of Incorporated Village of Perrysburg, 14 Ohio St. 472. See "Statutes," Dec. Dig. {Key No.) § 285; Gent. Dig. §1 n, 27, 290, 299, 384, 385. »»23 Wall. 307, 23 L. Ed. 119. And see Gardner v. Collector, 6 Wall. 499, 18 L. Ed. 890. See "Statutes," Deo. Dig. {Key No.) § 285; Cent. Dig. §§ 17, 27, 290, 299, 384, 385. 310 EXTRINSIC AIDS IN STATUTORY CONSTRUCTION (Ch. 7 relate to the affairs of counties having a population of "ninety thousand (60,000) and over." It appeared from the journals of the legislature that the bill as passed by the House contained figures in the parenthesis corresponding with the written number, ninety thousand, and that an amendment was passed by the Senate to strike out the figures "90,000" and substitute "50,000," but this amend- ment was rejected by the House and withdrawn by the Sen- ate. Thus the court was enabled to decide that the written words "ninety thousand," as appearing in the statute, must prevail over the contrariant figures, that being in accord- ance with the ultimate intention of the legislature." The doctrine above stated does not pass entirely without contradiction. There are some cases in the reports which deny that the courts may properly consult the legislative journals in the search for the true meaning of a statute."' But these decisions are opposed to the weight of authority. It will be observed that this question is an entirely dif- ferent matter from resorting to the legislative journals to ascertain whether an act was constitutionally passed ; that is, passed with the requisite majority, or after the required number of readings, or with a call of the house on its final passage, or otherwise in conformity with the requirements of the constitution. On this point, the rule settled by a ma- jority of the courts is that it is competent to go behind the enrolled bill and consult the journals, but that the act will not be declared void for lack of compliance with the Con- or Weaver v. Davidson County, 104 Tenn. 315, 59 S. W. 1105. See "Statutes," Deo. Dig. {Key No.) § 285; Cent. Dig. §§ 11, 27, 290, 299, S84, S85. 88 Bank of Pennsylvania v. Commonwealth, 19 Pa. 144; State v. Under-Gtround Cable Co. (N. J. Ch.) 18 Atl. 581 ; Tennant v. Kuhle- meier, 142 Iowa, 241, 120 N. W. 689. In Southwark Bank v. Com- monwealth, 26 Pa. 446, it Is said: "The journals are not evidence of the meaning of a statute, because this must be ascertained from the language of the act itself and the facts connected with the sub- ject on which It is to operate." " But the remark was obiter. And in the same case it was held that the legislative journals are evidence for the purpose of identifying a bill to which another act of the legislature referred. See "Statutes," Deo. Dig. (Key No.) § 285; Cent. Dig. §§ n, 27, 290, 299, SS4, S85. § 96) JOURNALS OF LEGISLATURE 311 stitutional forms, unless their nonobservance is affirma- tively shown by the journals. If the journals are silent as to these matters, it will be presumed that the legislature complied with all the constitutional requisites. In any event, no evidence can be received to contradict the jour- nals."' Reports and Papers of Committees It is held in England, and was at one time generally agreed to by those of the American courts which had been called on to decide the question, that reports or recommend- ations made to the legislative bodies by their respective committees in relation to a pending measure could not be accepted as pertinent evidence of the meaning which the legislature intended to attach to the statute.^"" But the prevalent judicial opinion is now the other way ; the courts inclining to the brpader v^ew that, if there is real doubt about the meaning of the law, they are not debarred from consulting any proper sources of information, including es- pecially those which are of a quasi official or authoritative nature.. This more liberal view appears to be agreed on by the courts of the United States ; ^"^ and mention should be made of a case in Louisiana, where it was held that a report of a committee, presented and adopted with an ordi- nance of a municipal corporation, might be regarded as a preamble showing its reasons, and might therefore be con- sidered in aid of its construction.'"'' So, also, in a case in Wisconsin, it was held that a report of the judiciary com- mittee of the Senate, to which a question of law arising un- »o Black, Const. Law (3d Ed.) 69, 348. 100 Steele v. Midland Ry. Co., L. R. 1 Ch. 275 ; Donegall v. Lay- ard, 8 H. li. Cas. 460; Bank of Pennsylvania v. Commonwealth, 19 Pa. 144. See "Statutes," Dec. Dig. {Key No.) § 285; Cent. Dig. §§ n, 87, 290, 299, 38^, 385. 101 Mosle V. Bidwell, 130 Fed. 334, 65 C. C. A. 533 ; United States V. Chicago & N. W. R. Co. (D. C.) 157 Fed. 616; Smith v. United States, 19 Ct. CI. 690. See "Statutes," Dec. Dig. {Key No.) § 285; Cent. Dig. §§ 17, 27, 290, 299, 38i, 385. 102 Second Municipality of New Orleans v. Morgan, 1 La. Ann. 111. See "Statutes," Dec. Dig. (Key No.) § 285; Cent. Dig. §§ 17, 27, 290, 299, 384, S85. 312 EXTRINSIC AIDS IN STATUTORY CONSTRUCTION (Ch. 7 der a statute was referred by resolution of that body, was proper to be considered as part of the practical exposition which the statute had received, and as showing the mean- ing of the law as understood by the legislature itself.^"' But the effect of a statute actually passed by Congress can- not be narrowed by reference to a bill which was never voted on, but was merely proposed in committee.^"* And while the reports of committees possess a semiofficial char- acter, it is not so with the papers which a committee may have had before them, such as reports of administrative of- ficers or commissions, or letters and petitions addressed to the committee, and these have no weight and should not be considered in seeking the proper construction of a stat- ute."" OPINIONS OF LEGISLATORS 97. Opinions of individual members of the legislature which passed a statute, expressed by them in de- bate or otherwise, as to the meaning, scope, or ef- fect of the act, cannot be accepted by the courts as authority on the question of its interpretation, and, if received at all, are entitled to but little weight This doctrine has oftten been asserted by the courts, and in the most unequivocal terms.^"' Thus, the Supreme loa Harrington v. Smith, 28 Wis. 43. See "Statutes," Dec. Dig. (Key No.) § 285; Cent. Dig. §§ 17, 27, 290, 299, SS-i, 385. 104 United States v. Allen, 179 Fed. 13, 108 C. C. A. 1. See "Stat- utes," Dec. Dig. (Key No.) § 285; Cent. Dig. §§ 11, 27, 290, 299, 381 385. 105 Brovpne v. Turner, 174 Mass. 150, 54 N. E. 510 ; Thomas v. F. B. Vandegrlft & Co., 162 Fed. 645, 89 C. C. A. 437. See "Statutes," Deo. Dig. {Key No.) § 285; Cent. Dig. §§ 17, 27; 290, 299, 384, 385. 108 District of Columbia v. Washington Market Co., 108 U. S. 243, 2 g-up. Ct. 543, 27 L. Ed. 714; United States ■^. Union Pac. R. Co., 91 U. S. 72, 23 li. Ed. 224; United States v. Trans-Missouri Freight Ass'n, 166 U. S. 290, 17 Sup. Ct. 540, 41 L. Ed. 1007; Red C. Oil Mfg. Co. T. Board of Agriculture (C. C.) 172 Fed. 695 ; Pacific Coast S. S. Co. V. United States, 33 Ct. Cl. 36 ; Leese v. Clark, 20 Cal. 387, 425; McGarrahan v. Maxwell, 28 Cal. 75, 95; Cortelyou v. United States ex rel. Thorpe, 32 App. D. C. 20; Stnwart v. Atlanta Beef § 97) OPINIONS OF LEGISLATORS . 313 Court of the United States declares: "In expounding this" law, the judgment of the court cannot in any degree be in- fluenced by the construction placed upon it by individual members of Congress in the debate which took place on its passage, nor by the motives or reasons assigned by them for supporting or opposing amendments that were qflfered. The law as it passed is the will of the majority of both houses, and the only mode in which that will is spoken is in the act itself; and we must gather their intention from the language there used, comparing it, when any ambiguity exists, with the laws upon the same subject, and looking, if necessary, to the public history of the times in which it was passed." ^"^ Soy also, the Supreme Court of Pennsyl- vania observes: "In giving construction to a statute, we cannot be controlled by the views expressed by a few mem- bers of the legislature who expressed verbal opinions on its passage. Those opinions may or may not have been en- tertained by the more than hundred members who gave no such expressions. The declarations of some, and the as- sumed acquiescence of others therein, cannot be adopted as a true interpretation of the statute. Keeping in mind the previous law, the supposed evil, and the remedy desired, we must consider the language of the statute, and the fa,ir and reasonable import thereof." ^"^ So again : "It has been in- sisted in the argument that the court, with a view to a clearer understanding of the lahguage used in the section, is at liberty to consult the record of the debates in the Co., 93 Ga. 12, 18 S. E. 981, 44 Am. St. Rep. 119 ; Eddy v. Morgan, 216 111. 437, 75 N. B. 174; Tennant v. Kuhlemeier, 142 Iowa, 241, 120 N. W. 689 ; State v. Biirk, 88 Iowa, 661, 56 N. W. 180 ; Bernier V. Bernier, 72 Mich. 43, 40 N. W. 50; Taylor v. Taylor, 10 Minn. 107 (Gil. 81) ; Forrest v. Forrest, 10 Barb. (N. Y.) 46 ; Lenliart v. Cambria County, 29 Pa. Super. Ct. 350 ; City of Richmond v. Supervisors of Henrico County, 83 Va. 204, 2 S. B. 26 ; Northern Trust Co. v. Snyder, 113 Wis. 516, 89 N. W. 460, 90 Am. St. Rep. 867 ; Queen v. Whlttaker, 2 Car. & K. 636 ; Attorney General v. Sfllem, 2 Hurl. & C. 431, 521. See "Statutes," Dec. Dig. (Key No.) § 216; Gent. Dig. § 292. 107 Aldridge v. Williams, 3 How. 9, 24, 11 L. Ed. 469. See "Stat- utes," Deo. Dig. (Key No.) § 216; Cent. Dig. § 292. 108 County of Cumberland v. Boyd, 113 Pa. 52, 4 Atl. 346. See "Statutes," Dec. Dig. (Key No.) § 216; Cent. Dig. § 292. 314 EXTRINSIC AIDS IN STATUTORY CONSTRUCTION (Ch. 7, houses of Congress while this section was under discus- sion. * * * But -yve have seen no authority that would justify us in appealing to so uncertain a source for guidance as the remarks of members in debate. It is well known that a measure is sornetimes advocated by a person upon grounds which another may assign as the cause of his op- position; and in this case there can be no more striking proof of the fallacious character of such evidence than the fact that both sides refer to different portions of the same debate in support of their respective views." ^°® Nevertheless, the courts should not close their eyes to any light which may fall upon the pages of an obscure stat- ute. The opinion of a member of the legislature, if he be a man of learning and of acute and discriminating intelli- gence, may be of quite as much persuasive force as the opin- ion of a judge delivered in a court of co-ordinate jurisdic- tion. But the latter is authority, while the former is not. Hence, if we carefully distinguish between those sources of information as to the meaning of a statute which are in their nature authoritative and those which are entitled only to the force of an argument, such as may combine with other arguments and considerations and tend to lead the mind to a certain conclusion, it may be that place will be found for the opinions of individual legislators in the list of extraneous aids which are available to the courts on questions of statutory construction. And cases are not wanting which have recognized the admissibility of such opinions, with this restriction and limitation.^^" Thus, in a case in a federal circuit court, where the question was as to the power of the United States court in the Indian Ter- ritory to impanel a grand jury, under the act of Congress creating the court, the judge allowed himself to be consid- loo District of Columbia v. Washington Marltet Co., 3 MacArthur (D. C.) 559. See "Statutes," Dec. Dig. {Key No.) § S16; Cent. Dig. § 292. 110 Shallus V. United States, 162 Fed. 653, 89 C. C. A. 445; Wads- worth V. Boysen, 148 Fed. 771, 78 C. G. A. 437 ; Carter t. Hobbs (D. C.) 92 Fed. 594; Truelove v. City of Washington, 169 Ind. 291, 82 N. E. 530 ; Maynard v. Johnson, 2 Nev. 25. See "Statutes," Dec. Dig. {Key No.) § Z16; Cent. Dig. § 2S2. § 98) MOTIVES OF LEGISLATURE 315 erably influenced in his decision by the opinion expressed by the chairman of the judiciary committee of the House of Representatives in presenting to the House the'final con- ference report.^^^ And in England, during the argument of a case before the Court of Appeal, counsel proposed to cite as an authority on the interpretation of a statute the opin- ion of the Lord Chancellor as to its construction, contained in a speech delivered by him during a debate in the House of Lords upon the third reading of another act. It was held by two of the judges (the third doubting) that the speech might be read for that purpose.^*^ So, in a case in Pennsylvania, Chief Justice Gibson stated that he was a member of the legislature at the time the act under con- •sideration was passed, and that he knew that it was in- tended to operate in a certain manner. ^'^ Moreover, it is said that the courts may advert to statements made by in- dividual members of the legislature, as part of the history of the times, and for the purpose of meeting an objection that a word used could have no operation at all, if it were not given a certain meaning contended for.^^* MOTIVES OF LEGISLATURE 98. In the interpretation of statutes, it is not proper or per- missible to inquire into the motives which influ- enced the legislative body, except in so far as such motives are disclosed by the statute itself.^ ^° 111 Ex parte Farley (C. C.) 40 Fed. 66. See "Statutes," Deo. Dig. (Key No.) § 216; Gent. Dig. § 292. 112 Queen v. Bishop of Oxford, L. R. 4 Q. B. Div. 525. See "Stat- utes," Dec. Dig. (Key No.) § 216; Cent. Dig. § 292. 113 Moyer v. Gross, 2 Pen. & W. 171. And see (a somewhat similar case) In re Mew, 31 L. J. (N. S.) Bankruptcy, 89. See "Statutes," Dec. Dig. (Key No.) § 216; Cent. Dig. § 292. 114 United States v. Wilson (D. O.) 58 Fed. 768. And see Ho Ah Kow V. Nunan, 5 Sawy. 552, Fed. Gas. No. 6,546, holding that the statements of the members of a legislative body in debate on the passage of a law may be resorted to for the purpose of ascertaining its general object, though not for the purpose of explaining the meaning of the terms used. See "Statutes," Dec. Dig. (Key No.) § 216; Cent. Dig. § 292. 116 Holme V. Guy, L. R. 5 Ch. Div. 901; Keyport & M. P. Steam- 316 EXTRINSIC AIDS IN STATUTORY CONSTRUCTION (Ch. 7 "The rule is general, with reference to the enactments of all legislative bodies, that the courts cannot inquire into the motives of the legislators in passing them, except as they may be disclosed on the face of the acts, or inferable from their operation, considered with reference to the con- dition of the country and existing legislation. The motives of the legislators, considered as the purposes they had in view, will always be presumed to be to accomplish that which follows as the natural and reasonable effect of their enactments. Their motives, considered as the moral in- ducements for their votes, will vary with the different mem- bers of the legislative body. The diverse character of such motives; and the impossibility of penetrating into the hearts of men and ascertaining the truth, precludes all such in- quiries as impracticable and futile." *^° Hence, for exam- ple, it cannot be shown, for the purpose of avoiding an act of the legislature, that the act was passed for insufficient or improper reasons. ^^' Nor, it is said, can the magnitude of the consideration, political or financial, which may op- erate upon the legislative mind as an inducement for grants and franchises conferred by statute, change the character of the legislation, or vary the rule of construction by which the rights of the grantees must be measured.^^* But it is said that this rule is somewhat relaxed in its application to the by-laws or ordinances of municipal corporations.^^" boat Co. V. Farmers' Transp. Co., 18 N. J. Eq. 13; Kountze v. Omaha, 5 Dill. 443, Fed. Cas. No. 7,928; City of Ricbmond v. Supervisors of Henrico County, 83 Va. 204, 2 S. E. 26 ; People v. Shepard, 36 N. Y. 285 ; Fletcher v. Peek, 6 Cranch, 87, 3 L. Ed. 162 ; Williams v. Nash- ville, 89 Tenn. 487, 15 S. W. 364 ; Pacific Coast S. S. Co. v. United States, 33 Ct. 01. 36; City of Lebanon v. Creel, 109 Ky. 363, 59 S. W. 16. But the evil or mischief which a statute is designed to cure may be considered in construing it. State v. Hall, 141 Wis. 30, 123 N. W. 251. See "Statutes," Dec. Dig. {Key No.) § 216; Cent. Dig. § 292. 118 Soon Hing v. Crowley, 113 U. S. 703, 5 Sup. Ct. 730, 28 L. Ed. 1145. See "Statutes," Deo. Dig. {Key No.) | 216; Cent. Dig. § 292. "'•City of Wichita v. Burleigh, 36 Kan. 34, 12 Pac. 332. See "Statutes," Deo. Dig. (Key No.) § 2/6; Cent. Dig. § 292. lis Union Pac. ft. Co. v. United States, 10 Ct. CI. 548. See "Stat- utes," Dec. Dig. (Key No.) § 216; Cent. Dig. § 292. 110 Glasgow v. St. Louis, 107 Mo. 198, 17 S. W. 743. See "Stat- utes," Deo. Dig. (Key No.) § 216; Cent. Dig. § 232. § 99) STATUTE AS A WHOLE AND EXISTING LAWS 317 CHAPTER VIII CONSTRUCTION OF STATUTE AS A WHOLE AND WITH EEFERBNCB TO EXISTING LAWS 99. Statute to be Construed- as a Whole. 100. Giving Eflfect to Entire Statute. 101-103. Conflicting Clauses and Provisions. 104. Statutes In Pari Materia. 105. Harmonizing the Laws. 106. Presumption Against Unnecessary Change of .Laws. 107. Presumption Against Implied Repeal of Laws. STATUTE TO BE CONSTRUED AS A WHOLE 99. In the construction of a statute, in order to determine the true intention of the legislature, the particu- lar clauses and phrases should not be studied as de- tached and isolated expressions, but the whole and every part of the statute must be considered in fix- ing the meaning of any of its parts. The foregoing rule embodies the principle of what is sometimes x;alled "comparative interpretation" ; . that is, that method of interpretation which seeks to arrive at the meaning of a statute, or, indeed, of any other writing, by comparing its several parts with each other, and also by comparing it as a whole with other like documents proceed- ing from the same source and referring to the same general subject.^ It is a familiar and fundamental doctrine, and is expressed in several maxirps, both of the common and the civil law, of great antiquity.^ 1 Glenn v. York County Com'rs, 6 S. C. 412. See "Statutes," Deo. Dig. (Key No.) §§ Wf-Ul; Gent. Dig. §§ 282-ZS8. 2 Co. Litt. 381a ; 1 Bl. Comm. 89. "Ex tota materia emergat reso- lutio,'" that is, the explanation should arise out of the whole subject- matter; the exposition of a statute should be made from all its parts together. Wtngate, Maxims, 238. "Injustum est, nisi tota lege inspecta, de una aliqua ejus particula proposita judicare vel re- spondere," It is unjust to decide or to respond as to any particular part of a law without examining the whole of the law. 8 Coke, 117b. "Ex antecedentibus et consequentibus fit optima interpreta- 318 STATUTE AS A- WHOLE AND EXISTING LAWS (Ch. 8 There are two principa,! reasons for this rule. In the first place, the force and significance of particular expressions will largely depend upon the connection in which they are found and their relation to the general subject-matter of the law. The legislature must be understood to have ex- pressed its whole mind on the special object to which the legislative act is directed ; but the vehicle for the expres- sion of that meaning is the statute, considered as one entire and continuous act, and not as an agglomeration of unre- lated clauses. Each clause or provision will be illuminated by those which are cognate to it and by the general tenor of the whole statute, and thus obscurities and ambiguities may often be cleared iip by the most direct and natural means. In the second place, effect must be given, if it is possible, to every word and clause of the statute, so that nothing shall be left devoid of meaning or destitute of force. It must be so construed "ut res magis valeat quam pereat." To this end, each provision of the statute should be read in the light of the whole. For the general meaning of the legislature, as gathered from the entire act, may often pre- vail over that construction which would appear to be the most natural and obvious op the face of a particular clause. It is by this means that contradictions and repugnancies be- tween the different parts of the statute may be avoided. The rule stated is therefore one of primary importance, and it is well established upon the authorities.* "The office of a tio," that is to say, the best interpretation (of part of an instrument) is made from the antecedents and the consequents, or from the pre- ceding and following parts. 2 Co. Inst. 317. The law will judge of a deed or other instrument, consisting of divers clauses or parts, by looking at the whole, and will give to each part its proper ofiBce, so as to ascertain and carry out the Intention of the parties. Broom, Maxims, 577. The whole instrument is to be viewed and compared in all its parts, so that every part of it may be made consistent and effectual. 2 Kent, Comm. 555. This was also the rule of the exposi- tors of the Roman law. • Thus, it is said by Oelsus, in the Digest: "Incivile est, nisi tota lege perspecta, una aliqua partlcula ejus pro- posita judicare vel respondere." Dig. 1, 3, 24. See "Statutes," Dec. Dig. (Key No.) §§ S0J,-211; Cent. Dig. §§ 2S2-28S. 8 City of Birmingham v. Southern Express Co., 164 Ala. 529, 51 South. 159 ; Matthews v. Town of Livermore, 156 Cal. 294, 104 Pac. §,99) STATUTE TO BE CONSTKUED AS A WHOLE 319 good expositor of an act of Parliament," says Lord Coke in the Lincoln College Case,* "is to make construction on all the parts together, and not of one part only by itself ; nemo enim aliquam partem recte intelligere possit antequam to- tvim iterum atque iterum perlegerit.'' "The key to the opening of every law is the reason and spirit of the law — it is the 'animus imponentis,' the intention of the law-maker expressed in the law itself taken as a whole. Hence, to ar- rive at the true meaning of any particular phrase in a stat- ute, that particular expression is not to be viewed detached 303; International Trust Co. v. Anthony, 45 Colo. 474, 101 Pac. 781, 22 L. E. A. (N. S.) 1002; Dekelt v. People, 44 Colo. 525, 99 Pac. 330 ; Garfield v. United States, 30 App. D. C. 177 ; State v. Atkins, 35 Ga. 315, Fed. Cas. No. 5,350; Thompson v. Bulson, 78 111. 277; Village of luka v. Schlosser, 97 111. App. 222 ; Gilbert >v. Morgan, 98 111. App. 281; Standard Radiator Co. v. Fox, 85 111. App. 389; Cooper V. Metzger, 74 Ind. 544 ; Crawf ordsville & S. W. Turnpike Co. V. Fletcher, 104 Ind. 97, 2 N. E. 243; Boyer v. State, 169 Ind. 691, 83 N. B. 350;- State v. Indiana & I. S. R. Co., 133 Ind. 69, 32 N. E. 817, 18 L. R. A. 502; Hasely v. Ensley, 40 Ind. App. 598, 82 N. E. 809; Rohlf v. Kasemeier, 140 Iowa, 182, 118 N. "W. 276, 23 L. E. A. (N. S.) 1284; Cleaveland v. Norton, 6 Cush. (Mass.) 380; Common- wealth V. Alger, 7 Cush. (Mass.) 53 ; Mayor, etc., of City of Balti- more V. Howard, 6 Har. & J. (Md.) 383 ; McGinnis v. Missouri Car & Foundry Co., 174 Mo. 225, 73 S. W. 586, 97 Am. St. Rep. 553; City of St. Louis v. Lane, 110 Mo. 254, 19 S. W. 533 ; City of Lincoln V. Janesch, 63 Neb. 707, 89 N. W. 280, 56 L. R. A. 762, 93 Am. St. Rep. 478; State ex rel. Mason v. Mayor, etc., of City of Paterson, 35 N. J. Law, 196 ; In re Trustees of New York & Brooklyn Bridge, 72 N. T. 527 ; Peters Grocery Co. v. Collins Bag Co., 142 N. C. 174, 55 S. E. 90 ; State v. Hanson, 16 N. D. 347, 113 N. W. 371 ; Terri- tory ex rel. Sampson v. Clark, 2 Okl. 82, 35 Pac. 882 ; Riggs t. Polk County, 51 Or. 509, 95 Pac. 5 ; Commonwealth v. Duane, 1 Bin. (Pa.) 601, 2 Am. Dec. 497 ; City of Philadelphia v. Barber, 160 Pa. 123, 28 Atl. 644; Lederer Realty Corp. v. Hopkins (E. I.) 71 Atl. 456; State V. Carlisle, 22 S. D. 529, 118 N. W. 1033 ; Kirk v. Morley Bros. (Tex. Civ. App.) 127 S. W. 1109 ; Pool v. Utah County Light & Power Co. (Utah) 105, Pac. 289; State v. Central Vermont E. Co., 81 Vt. 463, 71 Atl. 194, ISO Am. St. Eep. 1065 ; Fox's Adm'rs v. Common- wealth, 16 Grat. (Va.O 1 ; Bradley Engineering & Mfg. Co. v. Hey- burn, 56 Wash. 628, 106 Pac. 170, 134 Am. St. Rep. 1127; Wheeling Gas Co. V. City of Wheeling, 8 W. Va. 320. See "Statutes," Deo. Dig. {Key No.) §§ mSH; Cent. Dig. §§ 2S2-288. * 3 Coke, 39b. 320 STATUTE AS A WHOLE AND EXISTING LAWS (Ch. 8 from its context in the statute; it is to be viewed in con- nection with its whole context — meaning by this as well the title and preamble as the purview or enacting part of the statute." ^ "One clause of a statute, apparently conclusive as to some particular thing, may be enlarged or limited by other provisions of the instrument upon the same subject; and in such a case, the intent must be gathered from all the provisions considered together, the interpreter having his eye on the subject-matter of the instrument, and giving ef- fect to each clause of the latter, when it can be done." ° "In construing acts of Parliament," says Lord Tenterden,' "we are to look not only at the language of the preamble, or of any particular clause, but at the language of the whole act. And if we find in the preamble, oi" in any particular clause, an expression not so large and extensive in its im- port as those used in other parts of the act, and upon a view of the whole act we can collect, from the more large and extensive expressions used in other parts, the real intention of the legislature, it is our duty to give effect to the larger expressions, notwithstanding the phrases of less extensive import in the preamble or in any particular clause." ^ A statute should therefore be read with reference to its leading idea, and its general purpose and intention should be gathered from the whole act, and this predominant pur- pose will prevail over the literal import of particular terms or clauses, if plainly apparent, operating as a limitation upon some and as a reason for expanding the signification of others, so that the interpretation may accord with the spirit of the entire act,* and so that the policy and object Brett V. Brett, 3 Add. Eccl. 210. See "Statutes," Dec. Dig. (Key No.) §§ 210, 211; Cent. Dig. §§ 287, 288. 8 City of San Diego v. Graimiss, 77 Cal. 511, 19 Pac. 875. See "Statutes," Dec. Dig. (Key No.) §§ 204-211; Cent. Dig. §§ 282-288. 1 Bywater v. Brandling, 7 Barn. & C. 643 ; Burke v. Monroe Coun- ty, 77 111. 610 ; Torrance v. McDougald, 12 Ga. 526. And see Hagen- buck V. Reed, 3 Neb. 17 ; People ex rel. Frank v. Board of Sup'rs of city and county of San Francisco, 21 Cal. 668; People v. Burns, 5 Mich. 114. See "Statutes," Dec. Dig. {Key No.) §§ 20i-211: Cent Dig. §§ hl,2-S88. 8 State ex rel. Minneapolis, St. P. & S. S. M. E. Co. v. Railroad Commission, 137 Wis. 80, 117 N. W. 846 ; People v. Long Island E. § 99) STATUTE TO BE CONSTRUED AS A WHOLE 321 of the statute as a whale may be made effectual and opera- tive to the widest possible extent.' .. Moreover, the reading of the statute as a whole will often afford the means of cor- recting apparent mistakes in the wording of particular parts'.^" 5ince the object of reading the statute as an entirety is not to determine the validity of any particular part, but to search out the general legislative meaning, it makes no dif- ference that parts or sections of the act may. be unconsti- tutional and therefore invalid; they may be considered in construing the other provisions of the law, in fact, they should not be disregarded.^^ So, also, where part of an act has been repealed, it must, although of no operative force, be considered in construing the rest.^" Co., 194 N. Y. 130, 87 N. B. 79 ; Lime City Bldg., Loan & Sav. Ass'n T. Black, 136 Ind. 544, 35 N. B. 829; Holbrook v. Holbrook, 1 Pick. (Mass.) 248; Inhabitants of Mendon v. Worcester County, 10 Pick. (Mass.) 235 ; Commonwealth v. Inhabitants of Cambridge, 20 Pick. (Mass.) 267. See "Statutes," Dec. Dig. {Key No.) §§ 204-Sll; Cent. Dig. §§ 282-S88. ■» Nance v. Southern Ry. Co., 149 N. C. 366, 63 S. E. 116 ; Chicago, R. I. & P. B. Co. V. State, 84 Ark. 409, 106 S. W. 199. See "Statutes," Dec. Dig. (Key No.) §§ 20Jf-~211; Cent. Dig. §§ 282-S88. 10 State ex rel. Leslie v. Bracken, 154 Ala. 151, 45 South. 841. The numbering. of sections in statutes is a purely artificial and un- essential arrangement, resorted to for convenience only, and does not prevent the construction of the act as a whole. In re Bull's Estate, 153 Gal. 715, 96 Pac. 366. See "Statutes," Dec. Dig. (Key No.) §§ 20i-211; Cent. Dig. §§ 282-288. • 11 Swift V. Calnan, 102 Iowa, 206, 71 N. W. 233, 37 L. R. A. 462, 63 Am. St. Rep. 443 ; Ruhland v. Waterman, 29 R. I. 365, 71 Atl. 450. See "Statutes," Dec. Dig. {Key No.) §§ 204-21X; Cent. Dig. §§ i2 0gden City v. Boreman, 20 Utah, 98, 57 Pac. 843; Bank for Savings v. The Collector, 3 Wall. 495, 18 L. Ed. 207. See "Statutes," Dee. Dig. (Key No.) §§ SOi-211; Cent. Dig. §§ 282-288. BlACK iNT.Lu — 21 322 STATUTE AS A WHOLE AND EXISTING LAWS (Ch. 8 GIVING EFFECT TO ENTIRE STATUTE 100. That construction of a statute is to be favored, and must be adopted if reasonably possible, which will give meaning to every word, clause, and sentence of the statute and operation and effect to every part and provision of it. This rule is of universal application, and has been re- peatedly recognized and stated by the courts.^* It rests la United States v. Ninety Wine Diamonds, 139 Fed. 961, 72 C. C. A. 9, 2 L. R. A. (N. S.) 185 ; Hawkins v. Louisville & N. R. Co., 145 Ala. 385, 40 South. 293 ; Chambers v. Solner, 1 Alaska, 271 ; City of Escondido v. Escondido Lumber, Hay & Grain Co., 8 Gal. App. 435, 97 Pac. 197; City of Denver v. Campbell, 33 Colo. 162, 80 Pac. 142; Goode v. State, 50 Fla. 45, 39 South. 461 ; People v. Busse, 240 111. 338, 88 N. E. 831 ; Jones v. Grieser, 238 111. 183, 87 N. E. 295 ; Mo- Reynolds V. People, 230 111. 623, 82 N. E. 945; Peterson v. People, 129 111. App. 55 ; Crozer v. People, 206 111. 464, 69 N. E. 489 ; Andel V. People, 106 111. App. 558 ; Stayton v. Hulings, 7 Ind. 144 ; Sutton V. Parker, 65 Ind. 536 ; Cleveland, C, C. & St. L. Ry. Co. v. Backus, 133 Ind. 513, 33 N. E. 421, 18 L. R. A. 729 ; State v. Weller, 171 Ind. 53, 85 N. E. 761 ; Coggeshall v. City of Des Moines, 138 Iowa, 730, 117 N. W. 309, 128 Am. St. Rep. 221 ; Noecker v. Noecker, 66 Kan. 347, 71 Pac. 815; Wenger v. Taylor, 39 Kan. 754, 18 Pac. 911; Johnson v. Equitable Life Assur. Soc. of United States, 137 Ky. 437, 125 S. W. 1074; State v. Callahan, 47 La. Ann. 444, 17 South. 50; State ex rel. Jury Com'rs v. City of New Orleans, 2 McGloin (La.) 46; Commonwealth v. McCaughey, 9 Gray (Mass.) 296; Browne v. Turner, 174 Mass. 150, 54 N. E. 510; Ryan v. City of Boston, 204 Mass. 456, 90 N. E. 581; Potter v. Safltord, 50 Mich. 46, 14 N. W. 694; Detroit & M. Ry. Co. v. Alpena Circuit Judge, 152 Mich. 201, 115 N. W. 724 ; Robinson v. Harmon, 157 Mich. 266, 117 N. W. 661 ; Strottman v. St. Louis, I. M. & S. R. Co., 211 Mo. 227, 109 S. W. 769; Scott v. Royston, 223 Mo. 568, 123 S. W. 454; Riddick v. Walsh, 15 Mo. 519 ; State ex rel. and to Use of School Dist. of Se- dalia v. Harter, 188 Mo. 516, 87 S. W. 941 ; State ex rel. Knight v. Cave, 20 Mont. 468, 52 Pac. 200 ; Daniels v. Andes Ins. Co.; 2 Mont. 78; State ex rel. Saunders v. Pink, 74 Neb. 641, 104 N. W. 1059; Western Travelers' Ace. Ass'n v. Taylor, 62 Neb. 783, 87 N. W. 950; Freeman v. Freeman, 126 App. Div. 601, 110 N. Y. Supp. 686; Baxter v. York Realty Co., 128 App. Div. 79, 112 N. Y. Supp. 455; Wehrenberg v. New York, N. H. & H. R. Co., 124 App. Div. 205, 108 N. Y. Supp. 704 ; Nance v. Southern Ry. Co., 149 N. C. 366, 63 S. B § 100) GIVING EFFECT TO ENTIRE STATCTB 323 upon the presumption that the legislature cannot have in- tended to use words in vain or to leave part of its enactment without sense or meaning, or to introduce into the same statute clauses or provisions which would annul or mutu- ally destroy each other; but, on the contrary, it must be presumed, as the purpose of the legislature, that the whole of the statute and every part of it should be significant and effective.^* We must therefore endeavor to avoid such a construction as, while giving effect to part of the law, would lead to absurd consequences in respect to the rest.^" If there are apparent conflicts or repugnancies between dif- ferent parts or provisions of the statute, it must be con^ sidered as a whole, in the light of its general purpose and intention, and the court- must endeavor to avoid such con- flicts and reconcile such repugnancies, by adopting an inter- pretation which will harmonize all the provisions of the law, if this can be done reasonably and without too great 116; Fortune v. Board of Com'rs of Buncombe County, 140 N. C. 322, 52 S. E. 950; Trapp v. Wells Fargo Exp. Co., 22 Okl. 377, 97 Pac. 1003; Lee v. Roberts, 3 Okl. 106, 41 Pac. 595; Territory ex rel. Sampson v. Clark, 2 Okl. 82, 35 Pac. 882 ; State v. Johnson, 23 S. D. 293, 121 N. W. 785, 22 L. R. A. (N. S.) 1007 ; Hoffman v. Lewis, 31 Utah, 179, 87 Pac. 167 ; State v. Rutland R. Co., 81 Vt. 508, 71 Atl. 197; Willis v. Kalmbach, 109 Va. 475, 64 S. E. 342; Postal Tel. Cable Co. v. Farmville & P. R. Co., 96 Va. 661, 32 S. E. 468; Smith y. Bryan, 100 Va. 199, 40 S. E. 652; Hoover v. Saunders, 104 Va. 783, 52 S. E. 657; Baxter v. Wade, 39 W. Va. 281, 19 S. E. 404; Bank of Bramwell v. Mercer County Court, 36 W. Va. 341, 15 S. E. 78 ; Wellsburg & S. L. R. Co. v. Panhandle Traction Co., 56 W. Va. 18, 48 S. E. 746 ; State v. Columbian Nat. Life Ins. Co., 141 Wis. 557, 124 N. W. 502 ; Mutual Life Ins. Co. of New York v. Allen (Ala.) 51 South. 877 ; United States ex rel. Gribble v. Ballinger, 33 App. D. C. 211 ; Axtell v. Smedley & Rodgers Hardware Co., 59 -Pla. 430, 52 South. 710; Gage County v. Wright, 86 Neb. 347, 125 N. W. 626; Ex parte Prosole (Nev.) 108 Pac. 630. See "Statutes," Deo. Dig. (Key No.) § 206; Cent. Dig. § 283. 1* Hannon v. Southern Pac. R. Co., 12 Cal. App. 350, 107 Pac. 335; Postal Tel. Cable Co. v. Norfolk & W. R. Co., 88 Va. 920, 14 S. E. 803. See "Statutes," Dec. Dig. {Key No.) § 206; Cent. Dig. § 283. 15 People v, Sholem, 238 111. 203, 87 N. E. 390 ; Bingham v. Birm- ingham, 103 Mo. 345, 15 S. W. 533 ; J. I. Case Threshing Mach. Co. V. Watson, 122 Tenn. 156, 122 S. W. 974. See "Statutes," Dec. Dig. (.Key No.) § 206; Gent. Dig. § 283. 324 STATUTE AS A WHOLE AND EXISTING LAWS (Oh. 8 violence to the language of the act." It is also bad inter- pretation (if it can be avoided in any fair and sensible way) >to fead a statute in such a manner that one of its provi- sions will neutralize another or render it nugatory or abor- tive; " and a construction which gives to a clause or part of a statute no function to perform, or makes it a mere un- meaning repetition of another claixse, must be rejected as unsound, if any other fair or even plausible construction can be found, for it would impute folly or want of intelli- gence to the legislature.^' For the same reason, no word, clause, or sentence should be construed as unmeaning or mere surplusage, if a construction can legitimately be found which will give force to and preserve all the words of the statute." In case of conflict, therefore, between two clauses of the statute, if one of them is plainly susceptible of but a single meaniUg, it will control the interpretation of the other, that being fairly susceptible of two meanings."" And if full ef- fect cannot be given to every word of the statute, still it i« Ingle V. Batesville Grocery Co., 89 Ark. 378, 117 S. W. 241; Lehman v. State (Ind. App.) 88 N. E. 365 ; Burke v Burke, 34 Mich. 451; School Board of Borough of Brooklyn v. Board of Education of City of New York, 157 N. Y. 566, 52 N. E. 583 ; Trapp v. Wells- Fargo Express Co., 22 Okl. 377, 97 Pac. 1003 ; Hill v. State, 54 Tex. Cr. R. 646, 114 S. W. 117: Wellsburg & S. K E. Co. v. Panhandle Traction Co., 56 W. Va. 18, 48 S. E. 746. See "Btatutes," Deo. Dig. {Key No.) § 206; Cent. Dig. § 283. 17 State V. Corning Sav. Bank, 139 Iowa, 338, 115 N. W. 937; At- torney General ex rel. Zacharias v. Board of Education of City of Detroit, 154 Mich. 584, 118 N. W. 606 ; People v. Ahearn, 196 N. Y. 221, 89 N. E. 930, 26 L. R. A. (N. S.) 1153; State v. Burr, 16 N. D. 581, 113 N. W. 705 ; Bohart v. Anderson, 24 Okl. 82, 103 Pac. 742 ; Dutro V. Ladd, 50 Or. 120, 91 Pac. 459 ; Lawson v. Tripp, 34 Utah, 28, 95 Pac. 520 ; Miles v. Wells, 22 Ut^h, 55, 61 Pac. 534. See "Stat- utes," Deo. Dig. {Key No.) § Z06; Cent. Dig. § 2SS. 18 State V. Harden, 62 W. Va. 313, 58 S. E. 715. See "Statutes," Deo. Dig. (Key No.) § 206; Cent. Dig. § 283. 18 State V. Fontenot, 112 La. 628, 36 South. 630; Ford v. State, 79 Neb. 309, 112 N. W. 606. See "Statutes," Dec. Dig. {Key No.) § 206; Cent. Dig. § 283. 20 Dennis v. Moses, 18 Wash. 537, 52 Pac. 333, 40 L. R. A. 302. See "Statutes," Deo. Dig. (Key No.) § 206; Cent. Dig. § 2S3. §§ 101-103) CONFLICTING CLAUSES AND PROVISIONS 325 must be made effective as far as may be possible.^* But a clearly expressed intention in one part of the statute will not yield to a doubtful construction of another portion of it." ' CONFLICTING CLAUSES AND PROVISIONS 101. If two statutes, or two parts or sections of the same statute, cover the same matter in whole or in part, and are not absolutely irreconcilable, it is the duty of the court, if possible, to give effect to both. 102. But if there is a conflict between two statutes relating to the same subject which cannpt be reconciled by any fair and reasonable method of construction, the last in point of time will control ; and if there is a similar conflict between two clauses or sections of the same statute, effect must be given to the last in order of position, overriding the earlier. 103. In case of a similar conflict between specific provisions relating to a particular subject and general provi- sions for the class to which that subject belongs, the special provisions control and the general must give way, or, in a proper case, the specific provi- sion will be taken as creating an exception to the general rule. Avoiding Conflict An irreconcilable conflict between two statutes appli- cable to the same matter, or between different parts of the same statute, can only arise out of the use of language too plain and clear to be mistaken and definitely expressive of a positive intention of the legislature. If the language used in either or both places is fairly susceptible of morft^ 21 Old Dominion B. & h. Ass'n v. Sohn, 54 "W. Va. 101, 46 S. B. 222. See "Statutes," Dec. Dig. (Key No.) § 206; Cent. Dig. § 283. 22 Wellsburg & S. L. R. Co. v. Panhandle Traction Co., 56 W. Va. 18, 48 S. E. 746. See "Statutes," Deo. Dig. (Key No.) § 206; Cent. Dig. § 2S3. 326 STATUTE AS A WHOLE AND EXISTING LAWS (Oh. 8 than one meaning, or is shrouded in any ambiguity or un- certainty, so that interpretation may properly perform its function, it is the duty of the court, in the absence of any clearly expressed or indicated purpose to repeal, to seek for such a construction as will leave both statutes or parts of the statute operative and weave them into an harmonious and intelligent whole."' Later Provision Annulling Earlier On the general principle of irAplied repeal, if there is an inconsistency or repugnance between two "statutes, both relating to the same subject-matter, which cannot be re- riioved by any fair and reasonable method of interpretation, it is the latest expression of the legislative will which must prevail' and override the earlier."* So, "also, it is a general fule that where different parts or sections of the same stat- ute arfc found to be in irreconcilable conflict, the latest in otder of position or arrangement will prevail."" But this is not to be taken as an absolutely invariable and inflexible rule. It is subject to exceptions, founded on 2 » Frost V. Wenle, 157 U. S. 46, 15 Sup. Ct. 532, 39 L. Ed. 614; Commonwealth v. Ward, 136 Ky. 146, 123 S. W. 673 ; State v. Court- ney, 27 Mont. 378, 71 Pac. 308 ; Reusch v. City of Lincoln, 78 Neb. 828, 112 N. W. 377; Lingonner v. Ambler, 44 Neb. 316, 62 N. W. 486; State v. Burr, 16 N. D. 581, 113 N. W. 705; State ex rel. At- torney General v. Mulhern, 74 Ohio St. 363, 78 N. E. 507; State v. Stanley, 82 Vt. 37, 71 Atl. 817. See "Statutes," Deo. Dig. (Key No.) §§ 207, 2S3~225%; Cent. Dig. §§ 28Jf, 300-^06. J!* Pease v. Whitney, 5 Mass. 380;- City of Cincinnati v. Holmes, 56 Ohio St. 104, 46 N. E. 514 ; Jones v. Broadway Roller Rink Co., 136 Wis. 595, 118 N. W. 170, 19 L. R. A. (N. S.) 907; State v. Mis- kimmong; 2 Ind. 440; Commissioners of Highways v. Deboe, 43 111. App. 25 ; Branagan v. Dulaney, 8 Colo. 408, 8 Pac. 669 ; Branham v. Long, 78 Va. 352. See "Statutes," Dec. Dig. {Key No.) §§ 207 SS3- 225%; Cent. Dig. §§ 284, 300-306. 25 United States v. Jackson, 143 Fed. 783, 75 C. C. A. 41; Joseph Speidel Grocery Co. v. Warder, 56 W.. Va. 602, 49 S. B. 534 ; Ex parte Hewlett, 22 Nev. 333, 40 Pac. 96; Peterson v. People, 129 111. App. 55 ; Albertson v. State, 9 Neb. 429, 2 N. W. 742 ; Ryan v State ex rel. Eller, 5 Neb. 276 ; Quick v. White Water Tp., 7 Ind. 570. See "Statutes," Deo. Dig. (Key No.) §§ 207. 223-223%,; Cent. Dig. §S 28i, SOO-306. §§ 101-103) CONFLICTING CLAUSES AND PROVISIONS 327 good sense and the recognized rules of construction.*" Thus, if the first of two conflicting clauses is clear and ex- plicit and the latter incoherent, the former, notwithstand*- ing its position, will prevail over the latter; or, as other- wise stated, it is only when the subsequent clause combines equal clearness with the advantage of position that it will control the former.*' And again, where the later clause or section is plainly inconsistent with the earlier clause or section, but such earlier clause or section conforms to the obvious policy and intent of the legislature, the last clause, if operative at all, must be so construed as to give it an ef- fect consistent with the first portion of the statute and the policy indicated thereby.** So, also, it is ruled that a spe- cial provision in one section of a statute will not be treated as having been altered or annulled by a subsequent sec- tion.*' And the rule under consideration does not apply to a proviso or saving clause which is inconsistent with or re- pugnant to the purview of the act; irrespective of its po- sition, it must give way to the body of the statute.*" 2« State ex rel. Attorney General v. Mulhern, 74 Ohio St. 363, 78 n; E. 507. See "Statutes," Dec. Dig. (Key No.) §§ 207, 223-225%; Gent.sDig. §§ 28i, 300-306. 27 State ex rel. Wilson v. Williams, 8" Ind. 191. In California it Is provided (Pol. Code Cal. § 4484) that if conflicting provisions are found in different sections of the same chapter or article of the Code, the provisions of the sections last in numerical order must prevail ; but it is held that this has no application where the sec- tions were passed at different times. People v. Dobbins, 73 Cal. 257, 14 Pac. 860. See "Statutes," Deo. Dig. (Key No.) §§ 207, 223-225%; Cent. Dig. §§ 284, 300-306. 28 Sams V. King, 18 Fla. 557; Hall v. State, 39 Fla. 637, 23 South. 119; State ex rel. Patterson v. Bates, 96 Minn. 110, 104 N. W. 709, 113 Am. St. Rep. 612. 8e^ "Statutes," Dec. Dig. (Key No.) §§ 207, 223-225%; Cent. Dig. §§ 28i, 300-306. 28 Rodgers v. United States, 36 Ct. CI. 266, affirmed 185 U. S. 83, 22 Sup. Ct. 582, 46 L. Ed. 816. See "Statutes," Dec. Dig. (Key No.) §§ 207, 223-225%; Cent. Dig. §§ 284, 300-306. 30 Shutt V. State, 173 Ind. 689, 89 N. E. 6; Gist v. Rackliffe-Gib- son Const. Co., 224 Mo. 369, 123 S. W. 921 ; Penick v. High Shoals Mfg. Co., 113 Ga. 592, 38 S. B. 973. And see infra, p. 439. See "Statutes," Deo. Dig. (Key No.) § 207; Cent. Dig. § 284. 328 STATUTE AS A WHOLE AND EXISTING LAWS (Oh. 8 Conflicting General and Special Provisions Where a statute contains both a general enactment and also specific or particular provisions, the effort must bCj in the first instance, to harmonize all the provisions of ■ the statute by construing all the parts together ; and it is only when, on such a construction, the repugnancy of the specific provisions to the general language is plainly manifested, that the intent of the legislature as declared in the gen- eral enacting part is made to give way.°^ But if such a comparison of the various parts of the act discloses an ir- reconcilable conflict, it is the special and specific provisions which must control and the general provisions which must yield,'" and this is irrespective of their relative dates or rel- ative position in the statute.'' This principle is expressed in the maxim "generalia specialibus non derogant." A substantially similar rule prevails in cases where the two conflicting provisions are found in different statutes re- lating to the same subject. It is an established rule in the construction of statutes that a subsequent act, treating a subject in general terms, and not expressly contradicting the provisions of a prior special statute, is not to be consid- ered as intended to affect the more particular and specific provisions of the earlier act, unless it is absolutely neces- sary so to construe it in-order to give its words any mean- ing at all.'* Hence, where there are two acts or provisions, 81 State V. Com'rs of Railroad Taxation, 37 N. J. Law, 228; State ex rel. Jones v. Burte, 140 Wis. 524, 123 N. W. 110. See "Statutes," Dec. Dig. {Key No.) § 207; Cent. Dig. § 284. 8 2 United States v. Jackson, 143 Fed. 783, 75 C. C. A. 41; Martin V. Board of Election Com'rs, 126 Cal. 404, 58 Pac. 932; Miller v. Bngle, 3 Cal. App. 325, 85 Pac. 159; McKean v. Gauthier, 132 111. App. 376; State ex rel. Prout v. Nolan, 71 Neb. 136, 98 N. W. 657; Carpenter v. Russell, 13 Okl. 277, 73 Pac. 930; City of Austin v. Cahill, 99 Tex. 172, 88 S. W. 542; Callaghan v. McGown (Tex. Civ. App.) 90 S. W. 319 ; Shock v. Colorado County (Tex. Civ. App.) 115 S. W. 61 ; Jones v. Broadway Roller Rink Co., 136 Wis. 595, 118 N. W. 170, 19 L. R. A. (N. S.) 907. See "Statutes," Dec. Dig. (Key No.) i 207; Cent. Dig. § 2S//. SB Lawyer v. Carpenter, 80 Ark. 411, 97 S. W. 662. See "Statutes," Dec. Dig. (Key No.) § S07; Cent. Dig. § Z84. aiFosdick v. Perry sburg, 14 Ohio St. 472; Gage v. Currier, 4 §§ 101-103) CONFLICTING CLAUSES AND PROVISIONS 329 one of which, is special and particular, and certainly in- cludes the matter in question, and the other general, which, if standing alone, would include the same matter, and thus conflict with the special act or provision, the special act must be taken as intended to constitute an exception to the general act, as the legislatute is not presumed to have inr tended a conflict.'" Thus, when the provisions of a general law, applicable to the entire state, are repugnant to the pro- visions of a previously enacted special law, applicable in a particular locality only, the passage of such general law does not operate to modify or repeal the special law, either wholly or in part, unless such modification or repeal is pro- vided for in express words, or arises by necessary implica- tion." "A local statute, enacted for a particular munici- pality, for reasons satisfactory to the legislature, is in- tended to be exceptional and for the benefit of such mu- nicipality. It has been said that it is against reason to sup-r pose that the legislature, in framing a general system for the state, intended to repeal a special act which the local circumstances made necessary." '^ So, again, a special act Pick. (Mass.) 399; Maysville Turnpike Co. v. How, 14 B. Men. (Ky.) 426 ; Waldo v. Bell, 13 La. Ann. 329 ; State ex rel. Kellogg v. Bishop, 41 Mo. 16; Brown v. County Com'rs, 21 Pa. 37; Gregory's Case, 6 Coke, 19b. See "Statutes," Dec. Dig. (Key No.) •§§ 223-225%; Cent. Dig. §§ 300-306. 35 Rodgers v. United States., 36 Ct. 01. 266; City of Birmingham V. Southern Express Co., 164 Ala. 529, 51 South. 159 ; State ex rel. Loftin V. McMillan, 55 Fla. 254, 45 South. 882 ; Crane v. Reeder, 22 Mich. 322 ; Gilkeson v. Missouri Pac. R. Co., 222 Mo. 173, 121 S. W. 138, 24 L. R. A. (N. S.) 844; Kountze v. Omaha, 63 Neb. 52, 88 N. W. 117; Gabel v. Williams, 39 Misc. Rep. 489, 80 N. X. Supp. 489; Atchison, T. & S. F. Ry. Co. v. Haynes, 8 Okl. 576, 58 Pac. 738; Kolb V. Reformed Episcopal Church of the Reconciliation, 18 Pa. Super. Ct. 477 ; State v. Mudie, 22 S." D. 41, 115 N. W. 107 ; Hawkins V. Bare & Carter, 63 W. Va. 431, 60 S. E. 391 ; Jackson y. Chicago, R. I. & P. R. Co., 178 Fed. 432, 102 C. C. A. 159 ; Jersey City v. Hall (N. J.) 76 Atl. 1058. See "Statutes," Dec. Dig. (Key No.) §§ 223-225%; Gent. Dig. §§ 301-306. s« State V. Mills, 34 N. J. Law, 177. See "Statutes," Dec. Dig. (Key No.) §§ 162, 225%; Cent. Dig. §§ 235-237, 305. " Malloy V. Commonwealth, 115 Pa. 25, 7 Atl. 790, citing Brown V. County Com'rs, 21 Pa. 37; • And see Wood t. Board of Election 330 STATUTE AS A WHOLE AND EXISTING LAWS (Ch. 8 exempting certain property from taxation is not to be con- sidered as impliedly repealed by a subsequent general stat- ute imposing taxes generally, although the language of the later act is broad enough to cover the property exempted by the previous law.'* Where an act incorporating a turn- pike company required the rates of tolls to be written on signboards in "large or capital letters," and a general act was afterwards passed, requiring the rates of toll on turn- pike roads to be written in capital letters, it was held that the private act was not suspended or repealed by the gen- eral act.^' Even where two statutes are passed upon the same day, one of which relates to a particular class of cases, and the other is of a more -general character, their provi- sions being repugnant, it is the former which must prevail as to the particular class of cases therein referred to.*" But "there is no rule of law which prohibits the repeal of a special act by a general one, nor is there any principle forbidding such repeal without the use of express words declarative of the legislative intent to repeal the earlier statute. The question is always one of intention, and the purpose to abrogate the particular enactment by a later general enactment is sufficiently manifested when the pro^- visions of both cannot stand together, and it is a cardinal doctrine in the construction of statutes that, if possible, full effect shall be given to all their parts." *^ Hence a general statute will repeal prior special or local acts, without ex- pressly naming them, where they are inconsistent with it, and where it can be seen from th6 whole enactment that Com'rs, 58 Cal. 561 ; Burke v. Jeffries, 20 Iowa, 145. See "Statutes," Dec. Dig. {Key No.) §§ 162, 225%; Cent. Dig. §§ 235-237, 305. 8 8 Williams v. Pritchard, 4 Durn. & B. 2; Blain v. Bailey, 25 Ind. 105. See "Statutes," Dec. Dig. -(Key No.) §§ 162, 225%; Cent. Dig. §§ 235-237, 305. so Nichols V. Bertram, 3 Pick. (Mass.) 342. See "Statutes," Dec. Dig. (Key No.) §§ 162, 225%; Cent. Dig. §§ 235-237, 305. loMead v. Bagnall, 15 Wis. 156; St. Martin v. City of New Or- leans, 14 La. Ann. 113. See "Statutes," Dec. Dig. (Key No.) §§ 161, 225Vi; Cent. Dig. §§ 230-23^, 304. *i State T. Williamson, 44 N. J. Law, 165. See "Statutes," Deo. Dig. (Key No.) §§ 162, 225%; Cent. Dig. §§ 235-237, 305. § 104) STATUTES IN PARI MATERIA 33l it was the intention of the legislature to sweep away all local peculiarities, though sanctioned by special acts, and to establish one uniform system.*^ For instance, where a clause in the charter of a private corporation is entirely in- consistent with a clause in a subsequent general statute relating to the same matter, it is repealed thereby.*' STATUTES IN PARI MATERIA 104. Statutes in pari materia are to be construed together; each legislative act is to be interpreted with refer- ence to other acts relating to the same matter of subject** *2 Bramston v. Mayor of Colchester, 6 El. & Bl. 246. And see State V. Omaha Elevator Co., 75 Neb. 637, 106 N. W. 979. See "Statutes," Dec. Dig. (Key. No.) §§ 162, 225^^; Cent. Dig. §§ 235-237, 305. *3 Great Central Gas Consumers' Co. v. Clarke, 13 C. B. (N. S.) 888; Board of Water Com'rs v. Conkling, 113 III. 340. See "Stat- utes," Dec. Dig. (Key No.) §§ 162, 225%; Cent. Dig. §§ 235-237, 305. ** United States v. Freeman, 3 How. 556, 11 L. Ed. 724 ; Vane v. Newcombe, 132 U. S. 220, 10 Sup. Ct. 60, 33 L. Ed. 310 ; Austin v. United States, 155 U. S. 417, 15 Sup. Ct. 167, 39 L. Ed. 206; Board of Com'rs of Seward County, Kan., v. iBtna Life Ins. Co., 90 Fed. 222, 32 C. C. A. 585 ; United States v. Trans-Missouri Freight Ass'n, 58 Fed. 58, 7 0. C. A. 15, 24 L,. R. A. 73 ; Le Roy v. Chabolla, 2 Abb. U. S. 448, Fed. Cas. No. 8,267 ; The Harriet, 1 Story, 251, Fed. Gas. No. 6,090; City of Birmingham v. Southern Express Co., 164 Ala. 529, 31 South. 159 ; Brace v. Solner, 1 Alaska, 361 ; Benton v. Willis, 76 Ark. 433, 88 S. W. 1000 ; KoUenberger v. People, 9 Colo. 233, 11 Pae. 101 ; United Society v. President, etc., of Eagle Bank of New Haven, 7 Conn. 457 ; Grant v. Cooke, 7 D. C. 165 ; Curry v. Lehman, 55 Fla. 847, 47 South. 18 ; Struthers v. People, 116 111. App. 481 ; People ex re^l. Conlbn v. Mount, 87 111. App. 194 ; State v. Ger- hardt, 145 Ind. 439, 44 N. E. 469, 33 L. R. A. 313 ; Snyder v. Thieme & Wagner Brewing Co., 173 Ind. 659, 90 N. E. 314 ; Hester v. Town of Greenwood, 172 Ind. 279, 88 N. E. 498 ; Gorley v. Sewell, 77 Ind. 316; Elliott v.- Brazil Block Coal Co., 25 Ind. App. 592, 58 N. E. 736 ; Hutchens v. Covert, 39 Ind. App. 382, 78 N. E. 1061 ; Eckerson V. City of Des Moines, 137 Iowa, 452, 115 N. W. 177 ; In re Hall, 38 Kan. 670, 17 Pac. 649; City of Marion Center v. Toomy, 21 Kan. 439 ; State v. Young, 17 Kan. 414 ; Blood v. Northrup, 1 Kan. 28 ; Commonwealth v. Herald Pub. Co., 32 Ky. Law Rep. 1293, 108 S. W. 892; Board of Council of Danville v. Fiscal Board of Boyle 332 STATUTE AS A WHOLE AND EXISTING LAWS (Ch. 8 The reasons which support this rule are twofold. In the ifirst place, all the enactments of the same legislature on the same general subject-matter are to be regarded as parts of one uniform system. Later .statutes are considered as supplementary or complementary to the earlier enactments. County, 106 Ky. 608, 51 S. W. 157; Hurley v. Inhabitants of South Thomaston, 105 Me. 301, 74 Atl. 734; Stuart v. Chapman, 104 Me. 17, 70 Atl. 1069 ; Taylor v. Inhabitants of Town of Caribou, 102 Me. 401, 67 Atl. 2 ; BilJingslea v. BaWwiu, 23 Md. 85 ; Church v. Crocker, 3 Mass. 17; Green v. Commonwealth, 12 Allen (Mass.) 155; Brooks V. Fitchburg & L. St. Ry. Co., 200 Mass. 8, 86 N. E. 289; Simpkins v. Ward, 45 Mich. 559. 8 N. W. .507 ; Relthmiller v. People, 44 Mich. 280, 6 N. W. 667; Sales v. Barber Asphalt Pav. Co.. 166 Mo. 671, 66 S. W. 979; Butter v. Carotbers. 223 Mo. 631, 122 S. W. 1056; Glaser v. Rothschild, 221 Mo. 180, 120 S. W. 1, 22 L. B. A. (N. S.) 1045 ; E. B. Darlington Lumber Co. v. Missouri Pac. Ry. Co., 216 Mo. 658, 116 S. W. 530 ; Grimes v. Reynolds, 184 Mo. 679, 83 S. W. 1132; City of Springfield v. Starke, 93 Mo. App. 70; Dawson County V. Clark, 58 Neb. 756, 79 N. W. 822 ; Chicago, R. I. & P. Ry. Co. T. Zernecke, 59 Neb. 689, 82 N. W. 26, 55 L. R. A. 610; State ex rel. Bishop v. Dunn, 76 Neb. 155, 107 N. W. 236; State ex rel. Love V. Cosgrave, 85 Neb. 187, 122 N. W. 885, 26 L. R. A. (N. S.) 207; State V. Babcock, 21 Neb. 599, 33 N. W. 247 ; Hendrix v. Rieman, 6 Neb. 516; Cocheu v. Methodist Protestant Church, 32 App! Div. 239, 52 N. T. Supp. 1019; People v. New York Cent. Ry. Co., 25 Barb. (N. T.) 201; People ex rel. Duncan v. Clement, 134 App. Div. 462, li9 N. Y. Supp. 374 ; Ebllng Brewing Co. v. Nimphius, 58 Misc. Rep. 545, 109 N. Y. Supp. 808; Bull v. New York aty R. Co., 192 N. Y. 361, 85 N. E. 385, 19 L. R. A. (N. S.) 778 ; Nance v. Southern Ry. Co.. 149 N. C. 366, 63 S. E. 116 ; Wishek v. Becker, 10 N. D. 63, 84 N. W. 590; Manuel v. Manuel, 13 Ohio St. 458; Whitmire v. Muncy Creek Tp., 17 Pa. Super. Ct; 399 ; State v. Central Vermont Ry. Co., 81 Vt. 403, 71 Atl. 194, 130 Am. St. Rep. 1005; Mitchell v. Witt. 98 Va. 459, 36 S. E. 528; Wellsburg & S. L. R. Oo. v. PiOihandle Traction Co., 56 W, Va. 18, 48 S. E. 746; Burton v. Union Pac. Coal Oo. (Wyo.) 107 Pac. 391; Earl of AUesbury v. Pattison, 1 Dongl. 28; City of Martinsville v. Washington Civil Tp., Morgan County (Ind. App.) 92 N. E. 191 ; Robert v. Chicago & A. B. Co., 148 Mo. App. 96, 127 S. W. 925 ; Home Telephone Co. v. Granby & Neosho Telephone Co., 147 Mo. App. 216, 126 S. W. 773; State ex rel. Hughes v. Reus- swig, 110 Minn. 475, 126 N. W. 279; State ex rel. BuUard v. Searle, 86 Neb. 259, 125 N. W. 590; People ex rel. Fifth Ave. Bldg. Co. v. Williams, 198 N. Y. 238, 91 N. E. 638 ; Bernard v. Benson, 58 Wash. 191, 108 Pac. 439 ; Board of Com'rs of Big Horn County v. Woods (Wyo.) 107 Pac. 753. See "Statutes," Deo. Dig. (Key No.) § 225; Gent. Dig. §§ 302, SOS. § 104) STATUTES IN PARI MATEKIA 833 In the course of the entire legislative dealing with the sub- ject we are to discover the progressive development of a uniform and consistent design, or else the continued mod- ification and adaptation of the original, design to apply it to changing conditions or circumstances. In the passage of each, act, the legislative body must be supposed to have had in mind and in contemplation the existing legislation on the same subject, and to have shaped its new enactment with reference thereto. Hence the same principle which requires us to study the context for the meaning of a pairticular phrase or provision, and which directs us to compare all the several parts of the same statute, only takes on a broad- er scope when it bids us read together, and with reference to each other, all statutes in pari materia. Whatever is ambiguous or obscure in a given statute will be best ex- plained by a consideration of analogous provisipns in other acts relating to the same subject, or by a study of the gen- eral policy which pervades the whole system of legisla- tion.*' Secondly, the rule derives SiUpport from the prin- ciple which requires that the interpretation of a statute shall be such, if possible, as to avoid any repugnancy or in- consistency between different enactments of the same leg- islature. To achieve this result, it is necessary to consider all previous acts relating to the same matters, and to con- strue the act in hand so as to avoid, as far as it may be possible, any conflict between them. Hence, for example, when the legislature has used a word in a statute in one 45 As a general rulOj it is not to be expected that a statute which has a place in a general system of laws will be so perfect as to need no support from the rules and provisions of the system of which it forms a part ; and hence, when a new statute is intended to become a part of such a general system, its construction or interpretation will generally receive support from a consideration of the other enactments constituting a part of the system. Conn v. Board of Com'rs of Cass County, 151 Ind. 517, 51 N. E. 1062. The public , policy of a state in regard to particular matters is to be deduced from the general course of its l^gislation relating thereto, and for this reason prior enactments on the same general subject are to be studied in connection with each new law. People v. Howard, 50 Mich. 239, 15 N. W. 101. See "Statutes," Dee. Dig. (Key No.) § S25; Cent. Dig. §§ 302, 303. 334 STATUTE AS A WHOLE AND EXISTING LAWS (Ch. 8 sense and with one meaning, and subsequently uses the same word in legislating on the same subj^ect-matter, it will be understood as using the word in the same sense, unless there is something in the context or in the nature of things to indicate that it intended a different meaning thereby.** We are next to inquire when different statutes are to be considered as in pari materia, within the meaning of this rule. According to the Supreme Court of Connecticut, stat- utes are in pari materia which relate to the same person or thing, or to the same class of persons or things.*^ "The word 'par' must not be confounded with the term 'similis.' It is used in opposition to it, as in the expression 'magis pares sunt quam similes,' intimating not likeness merely but identity. It is a phrase applicable to public statutes or general laws, made at different times, and in reference to the same subject. Thus, the English laws concerning pau- pers and their bankrupt acts are construed together, as if they were one statute and as forming a united system, oth- 46 In re CJounty Seat of Linn County, 15 Kan. 500. See, also, Rob- bins V. Omnibus R. Co., 32 Cal. 472; Oneida County v. Tlbblts, 125 Wis. 9, 102 N. W. 897; Daniel v. Simms, 49 W. Va. 554, 39 S. E. 690 ; Sheehan t. Louisville & N. R. Co., 31 Ky. Law Rep. 113, 101 S. W. 380. Where it is conceded that a word used In a statute renders the provision in which it occurs entirely without meaning, and therefore must be a misprint or a clerical error, the court, in search- ing for the word which was intended to be used and which should be substituted for It, will have recourse to statutes in pari materia, and the fact that a certain other word was used eight separate times by five different legislatures in kindred acts, and acts of which the one in question is amendatory, must be accorded material Influence on the question of substituting it for the word misprinted. Smith V. Board of Com'rs of Hamilton County, 173 Ind. 364, 90 N. E. 881. See "Statutes," Dec. Dig. (.Key No.) § 225; Cent. Dig. §§ S02, 303. 47 United Society v. President, etc., of Eagle Bank of New Haven, 7 Conn. 456. And see Mullally v. Mayor, etc.. City of New York, 3 Hun (N. T.) 661; De GrafCenreid v. Iowa Land & Trust Co., 20 Okl. 687, 95 Pac. 624 ; People v. Alchinson, 7 How. Prac. (N. Y.) 241 ; Waterford & Whitehall Turnpike v. People, 9 Barb. (N. Y.) 161; Town of I-Iighgate v. State, 59 Vt. 39, 7 Atl. 898 ; State v. Gerhardt, 145 Ind. 439i 44 N. E. 469, 33 L. R. A. 313. See "Statutes," Deo. Dig. {Key No.) § 225; Cent. Dig. §§ 302, 303. § 104) STATUTES IN PARI MATERIA 335 erwise the system might, and probably would, be unharmo- nious and inconsistent. Such laws are in pari materia." *' To illustrate further, all the statutes of the same state re- lating to the property rights and contracts of married wo- men, removing their common-law disabilities, authorizing them to manage their separate estates, to engage in busi- ness, etc., are to be read and construed together as consti- tuting one system. Though they may have been passed at different times, successively advancing to a standard the opposite of that of the common law, they are all strictly in pari materia, and any doubt or ambiguity in one should be cleared up by reference to the terms, the purpose, and the policy of the rest.*" Again, an act authorizing married women to dispose of their property by will is in pari rria- teria with the general statute relating to the execution and proof of wills."* A statute in relation to attachments against steamboats for debt is in pari materia with the gen- eral attachment law of the state, and hence, in so far as the special -law is silent as to the modes of proceeding in the executibn and return of writs issued under it, they must be regulated by the general rules prescribed by the general law."^ Again, it is said that the rule of construction by the aid of statutes in pari materia is especially applicable iii the case of revenue laws, which though made up of independent enactments, are regarded as one system, in which the con- struction of any separate act may be aided by the examina- tion of other provisions which compose the system."^ And the same rule is applicable to the provisions in appropria- *8 United Society v. President, etc., of Eagle Bank of New Haven, 7 Conn. 456. See "Statutes," Dec. Dig. (Key No.) § 225 j Gent. Diy. §§ S02, SOS. 49 Perkins v. Perkins, 62 Barb. (N. Y.) 531. See "Statutes," Dec. Dig. (Key No.) § 225; Cent. Dig. §§ 302, 303. 50 Linton's Appeal, 104 Pa. 228. See "Statutes," Dec. Dig. (Key No.) § 225; Cent. Dig. i§ 302, 303. 51 Wallace r. Seales, 36 Miss. 53. See "Statutes," Dec. Dig. {Key No.) § 225; Cent. Dig. §§ 302, 303. 52 United States v. Collier, 3 Blatchf. 325, Fed. Cas. No. 14,833. See "Statutes," Dec. Dig. (Key No.) § 225; Cent. Dig. §§ 302, 303. 336 STATUTE AS A WHOLE AND EXISTING LAWS (Ch. 8 tion acts." An act providing for a homestead and exemp- tion for families of minor children is in pari materia with the laws allowing dower to the widow and minor children of a decedent, and is to be construed in harmony there- with." So also, all the laws of the state, whenever passed, relating to the subject of the regulation of the liquor trafhc, are in pari materia."*" In a case in Massachusetts, it ap- peared that a statute prohibited discrimination against ne- groes in any licensed inn or in any public place of amuse- ment. A later act prohibited the exclusion of such persons from any public place of amusement "licensed under the laws" of the state. It was considered that the two acts were in pari materia, and should be read together, and that the second act showed that the public places of amusement referred to in the first were such as were licensed."" Again, two statutes requiring certain sums to be paid into the state treasury by a city gave a certain court jurisdiction to en- force the payment. A third act required an additional pay- ment, and thereby increased the aggregate, but was silent as to the mode of enforcement. It was held that the three acts should be construed together, and that the remedy given by the two former was applicable under the last."' So, also, an act providing for convict labor on the state capitol grounds and one for leasing the. penitentiary are in pari materia."* And a statute relating to the segregation and confinement of dipsomaniacs is in pari materia with other laws providing for the detention, care, and discharge 03 Converse v. United States, 21 How. 463, 16 L. Ed. 192. See "Statutes," Dec. Dig. (Key No.) § S25; Cent. Dig. §§ S02, SOS. 04 Roff V. Johnson, 40 Ga. 555. See "Statutes," Dec. Dig. (Key No.) § 2Z5j Gent. Dig. §§ SOS, SOS. B5 Ferguson v. Board of Sup'rs of Monroe County, 71 Miss. 524, 14 South. 81 ; in re Hastings Brewing Co., 83 Neb. Ill, 119 N. W. 27. See "Statutes," Dec. Dig. (Key No.) § 225/ Cent. Dig. §§ S02, SOS. S8 Commonwealth v. Sylvester, 13 Allen, 247. iSee "Statutes," Dec. Dig. (Key No.) § 225; Cent. Dig. §§ 302, SOS. 6 7 City of Louisville v. Commonwealth, 9 Dana (Ky.), 70. See "Statutes," Dec. Dig. (Key No.) § 225; Cent. Dig. §§ S02, SOS. »8 State ex rel. Perry v. Clark, 54 Mo. 216. See "Statutes," Dec. Dig. (Key No.) § S25; Cent. Dig. §§ SOS, SOS. § 104) STATUTES IN PARI MATERIA 337 of insane patients."' Again, a law giving a right of action to the personal representatives of one killed by the wrong- ful act of another is in pari materia with a statute which regulates the liability of private corporations for personal injuries to their employes.*" So, also, laws regulating the issue and registry of warrants, and laws providing for the issue and sale of bonds for the purpose of creating a fund out of which such warrants may be paid, are in pari ma- teria."^ And to aid in the construction of a statute as to when a bond recorder in a city should account, the court may look to all other statutes relating to public officers receiving public revenue for which they are required to ac- count."^ But laws which relate to entirely diflferent subjects are not in pari materia; °* and an act is no^ in pari materia with another, although it may incidentally refer to the same subject, if its scope and aim are distinct and not connected with the former statute.'* Thus a statute designed to pre- vent accidents and injury from the reckless driving of ve- hicles of all sorts is not in pari materia with an act regulat- ing the rates of toll on a local turnpike ; and hence the fact that the former statute was held applicable to a bicycle is no reason why the latter act should be held so applicable."'' And, again, a' statute relating to the confinement of cattle, so as to prevent their straying on the premises of others, is «8 Ex parte Schwarting, 76 Neb. 773, 108 N. W. 125. Bee "Btat- utes," Dec. Dig. (Key No.) § 225; Cent. Dig. §§ 302, 303. 8P Wabash B. Co. v. Fox, 64 Ohio St. 133, 59 N. E. 888, 83 Am. St. Kep. 739. See "Statutes," Dee. Dig. (Key No.) § 225; Gent. Dig. §§ 302, 303. 61 Diggs V. Lobsitz, 4 Old. 232, 43 Pao. 1069. See "Statutes," Dec. Dig. (Key No.) § 225; Cent. Dig. §§ 302, 303. 62 Commonwealtli for Use of City of Louisville v. Ross, 135 Ky. 315, 122 S. W. 161. See "Statutes," Deo. Dig. (Key No.) § 225; Cent. Dig. §§ 302, 303. 63 state V. Wirt County Court, 63 W. Va. 230, 59 S. B. 884, 981. See "Statutes," Dec. Dig. (Key No.) § 225; Cent. Dig. §§ 302, SOS. 64Wheelock v. Myers, 64 Kan. 47, 67 Pac. 632. See "Statutes," Dec. Dig. (Key No.) § 225; Cent. Dig. §§ 302, 303. 65 Williams v. Ellis, L. R. 5 Q. B. Div. 175. See '^Statutes," Deo. Dig. (Key No.) % 225; Gent. Dig. §§ 302, SOS. Black Int.L.— 22 338 STATUTE AS A WHOLE AND EXISTING LAWS (Oh. 8 not in pari materia with a statute which prescribes the rule of diligence to be observed by railway companies in the running of their trains and defines their liabilities in cases where stock is killed; such acts relate to distinct subjects, and the one should not be interpreted by the other."" It has been frequently stated that this rule of construc- tion has a special and peculiar applicability to different leg- islative enactments 'passed at the same session and relating to the same general subject. Such acts are to be considered and construed together, as if they were different sections of the same act and as if enacted at the same time, the pre- sumption being that laws so enacted are all imbued with the same spirit and actuated by the same policy."' But, of course, this does not mean that the courts are to be re- stricted to the consideration of other legislation enacted at the same session." On the contrary, they are at liberty, and it is their duty, to settle the interpretation of an am- biguous statute by referring to all laws which relate to the same subject-matter, without regard tp their relative dates, and no matter whether they were enacted by the same leg- islature or at widely different times." ° Nor is the search ee Central R. R. v. Hamilton, 71 Ga. 461. See "Statutes," DeO. Dig. (Key No.) § 225; Cent. Dig. §§ 302, 303. OT People ex rel. Frick v. Jackson, 30 Cal. 427; Curry v. Lehman, 55 Fla. 847, 47 South. 18 ; Devous v. Gallatin County, 244 111. 40, 91 N. B. 102; Chandler v. Lee, 1 Idaho, 349; Blackwell v. First Nat. Bank, 10 N. M. 555, 63 Pac. 43 ; Trapp v. Wells Fargo Express Co., 22 Okl. 377, 97 Pac. 1003; Hess v. Trigg, 8 Okl. 286, 57 Pac. 159; McGrady v. Terrell, 98 Tex. 427, 84 S. W. 641 ; Garrison v. Richards (T€x. Civ. App.) 107 S. W. 861. See "Statutes," Deo. Dig. (Key No.) §§ 225, 225%; Cent. Dig. §§ 3(12-30^. 8 8 Indianapolis Northern Traction Co. v. Ramer, 37 Ind. App. 264, 76 N. B. 808. See "Statutes," Dec. Dig. (Key No.) §§ 223-225%; Cent. Dig. §§ 300-306. soCahill V. State, 36 Ind.- App. 507, 76 N. E. 182; State v. Ger- hardt, 145 Ind. 439, 44 N. E. 469, 33 L. R. A. 313; State ex rel. Wagner v. Patterson, 207 Mo. 129, 105 S. W. 1048; In re Hastings Brewing Co., 83 Neb. Ill, 119 N. W. 27 ; Commonwealth v. Interna- tional Harvester Co., 131 Ky. 551, 115 S. W. 703; In re Kreiner, 156 Mich. 296, 120 N. W. 785 ; Cunningham v. Klamath Lake R. Co., 54 Or. 13, 101 Pac. 1099. See "Statutes," Deo. Dig. {Key No.) §§ 223- 225%; Cent. Dig. §§ 301-306. § 104) STATUTES IN PARI MATERIA 339 limited to kindred statutes prior in time to the act under consideration; subsequent enactments in pari materia may also be studied for this purpose.'" Neither is it necessary, in order that one statute should be considered as in pari materia with another, so as to lend its aid on a question of interpretation, that the latter act should refer to the former ; it is enough if they both relate to the same subject, as the legislature must be presumed to have had the earlier statute in mind, without expressly referring to it." But where one statute refers to another for the power given by the former, the statute referred to is to be considered as incorporated in the one making the reference.'"' Nor is it necessary that the earlier act should still con- tinue in force. Although it may have expired by its own limitation, or though it may have been expressly or im- pliedly repealed, still it is to be considered and read as ex- planatory of the later enactment.'^^ Thus, for example, one 70 Chase v. Lord, 77 N. Y. 1; Smith v. People, 47 N. Y. 330; United States v. Freeman, 3 How. 556, 11 L. Ed. 724; Board of Com'rs of Jackson County v. Branaman, 169 Ind. 80, 82 N. E. 65; Campbell v. Toungson, 80 Neb. 322, 114 N. W. 415. See "Statutes," Deo. Dig. (Key No.) §§ 223-225%; Cent. Dig. §§ 301-306. 71 State ex rel. Loftin v. McMillan, 55 Fla. 246, 254, 45 South. 882; Indianapolis Northern Traction Co. v. Ramer, 37 Ind. App. 264, 76 N. E. 808; Mitchell v. Witt, 98 Va. 459, 36 S. E. 528; De Graffenreid v. Iowa Land & Trust Co., 20 Okl. 687, 95 Pac. 624. See "Statutes," Deo. Dig. {Key No.) §§ 223-225%; Cent. Dig. §§ 301-306. 72Nunes v. Wellisch, 12 Bush (Ky.), 363; Turney v. Wilton, 36 111. 385. See "Statutes," Dec. Dig. {Key No.) §§ 223-225%; Cent. Dig. §§ 301-306. 73 King V. Loxdale, 1 Burr. 445; Medbury v. Watson, 6 Mete. (Mass.) 246, 39 Am. Dec. 726 ; Church v. Crocker, 3 Mass. 17 ; Dan- iels V. Commonwealth, 7 Pa. 371; Forqueran v. Donnally, 7 W. Va. 114; Southern Ey. Co. v. McNeill (C. C.) 155 Fed. 756; Steck t. Prentice, 43 Colo. 17, 95 Pac. 552; Daniel v. Simms, 49 W. Va. 554, 39 S. E. 690; Wellsbnrg & S. L. R. Co. v. Panhandle Traction Co., 56 W. Va. 18, 48 S. E. 746 ; Commonwealth v. Bralley, 3 Gray (Mass.) 456. But see Lockwood v. District of Columbia, 24 App. D. C. 569, holding that, where a personal tax law Imposes a tax on a certain occupation, without defining it, it is doubtful whether the court, in construing It, can look to old and repealed tax laws, which define 340 STATUTE AS A WHOLE AND EXISTING LAWS (Oh. 8 section of an act of Congress defined the term "Indian coun- try." It was not re-enacted in the Revised Statutes of the United States, and therefore, by section 5596 thereof, was repealed. Yet it was held, that it may be referred to for the purpose of ascertaining the meaning of the phrase as found in other sections of the Revised Statutes, which were re- enactments of other parts of the original act.'* Although a proviso to a statute is unconstitutional, and must therefore be rejected and denied any effectual operation, yet it cannot be disregarded in putting an interpretation upon the remain- ing portion of the act." It is also held that legislation which is of a similar nature to the statute under consideration, although not precisely in pari materia, is within the reason of the rule, and may be referred to for the same purpose, especially if contempo- raneous, or nearly so.'' Thus, in construing a revised penal code, the court may look to the provisions of a revised civil code, adopted by the same legislature and relating to the same subject." So it will be presumed that a state statute was intended to have the same meaning as an act of Con- gress which it was enacted to effectuate.'' But amend- ments to a bill, offered during its passage, but which were such occupation, to ascertain the legislative meaning. See "Stat- utes," Dec. Dig. {Key No.) § 2S5; Cent. Dig. §§ SOB, SOS. 7* Ex parte Crow Dog, 109 U. S. 556, 3 Sup. Ct. 396, 27 L. Ed. 1030 ; United States v. Le Bris, 121 U. S. 278, 7 Sup. Ct. 894, 30 L. Ed. 946. See, also. Attorney General v. Lamplongh L. R. 3 Ex. DIv. 214. See "Statutes," Dec. Dig. (Key No.) § 225; Cent. Dig. §§ SOS, SOS. "s Commonwealth ex rel. Attorney General v. Potts, 79 Pa. 164. See "Statutes,"' Dec. Dig. (Key No.) §§ 20i, 211, 228; Gent. Dig. §§ 282-288, SIO. 78 Chase v. Lord, 77 N. T. 1 ; State v. Summers, 142 Mo. 586, 44 S. W. 797; Moss v. United States, 29 App. D. C. 188. See "Statutes," Deo. Dig. (Key No.) §§ 223-225%; Cent. Dig. §§ S00S06. 7 7 Braun v. State, 40 Tex. Cr. R. 236, 49 S. W. 620. See "Stat- utes," Dec. Dig. (Key No.) §§ 225, 225V4,; Cent. Dig. §§ S02S0i. 78 Wilson V. Bradley, 105 Ky. 52, 48 S. W. 1088. See "Statutes," Deo. Dig. (Key No.) §§ 22i, 225; Cent. Dig. §§ 300, SOS, 304, 306. § 104) STATUTES IN PARI MATERIA 341 not finally incorporated in the statute as passed, cannot be considered in interpreting the statute.''" But, although the statute under consideration may be one of a series or group, it may still be that the legislature designs to depart from the general, purpose or policy of its previous enactments on the general subject; and if such a design is unmistakably apparent on the face of the act, it must be given effect. It would be entirely erroneous, in such a case, to defeat the will of the Iegislatui;e by under- taking to reconcile the act with prior statutes or to control its terms by theirs. Hence this rule of construction is to be resorted to only in cases of doubt or ambiguity, or where the words, in their ordinary and prima facie signification, would raise an undesigned conflict with previous laws. It , is not applicable when the statute is plain and unambigu- ous and needs no such aid to reconcile it with the existing body of laws. In such cases, there is no occasion to resort to any extrinsic circumstances to determine the meaning of the statute, nor is it justifiable to do so. .The legislature must be understood to have expressed its meaning in the words employed. It would be a perversion of the rule to apply it for the purpose of defeating the plainly expressed will of the legislative body.*" And although statutes relat- ing to the same subject are to be construed together, this rule does not go to the extent of controlling the language of subsequent statutes by any supposed policy of previous ones.'^ 10 Lane v. Kolb, 92 Ala. 636, 9 South. 873. See "Statutes," Dec. Dig. (Key No.) §§ 224, ^30; Cent. Dig. §§ SOO, 306, 311. 80 state ex rel. Haswell v. Cram, 16 Wis. 343 ; Chase v. Lord, 77 N. X. 1 ; Ex parte Blaiberg, L. R. 23 Ch. Div. 254 ; Ingalls v. Cole, 47 Me. 530 ; Hamilton v. Bathbone, 175 U. S. 414, 20- Sup. Ct. 155, 44 L. Ed. 219 ; Rosencrans v. United States, 165 U. S. 257, 17 Sup. Ct 302, 41 L. Ed. 708; United States t. Colorado & N. W. R. Co., 157 Fed. 321, 85 O. C. A. 27, 15 L. R. A. (N. S.) 167; Holden v. United States, 24 App. D. 0. 318 ; Schaeffer v. Burnett, 120 111. App. 79; Ackerman v. Green, 201 Mo. 231, 100 S. W. 30. See "Statutes," Dec. Dig. (Key No.) § 225; Cent. Dig. §§ 302, 303. 81 Goodrich v. Russell, 42 S. Y. 177. See "Statutes," Dec. Dig. (Key No.) §§ 223-225%; Cent. Dig. §§ 301-306. 342 STATUTE AS A WHOLE AND EXISTING LAWS (Oh. 8 Private Acts in Pari Materia The rule which requires the comparison of statutes in pari materia, for the purpose of construction, does not apply to private acts. A statute conferring special privileges or imposing particular obligations is not to be construed by- reference to any other private act, unless, indeed, the two relate to the very same parties and the identical subject- matter. Such private statutes stand upon the same basis with contracts by deed, which, generally, are not to be af- fected by evidence aliunde. "It is unquestionably a correct principle," says Mellen, C. J., "that public statutes made in pari materia should be construed as though their several provisions were embraced in one act, or that one act may be explained and -construed by comparison with another, all having a general relation to the same subject-matter. It is at least doubtful, even in the construction of public stat- utes, whether the principle before stated can in any case be admitted where they relate and extend to subjects dis- tinct and independent of each other, which have been the occasion of legislation at successive periods. Be this as it may, there is a manifest distinction between a public stat- ute, which is of universal concernment and obligation and prescribes a rule of action to all, and a grant by the legis- lature, or a private act granting certain chartered privileges to individuals, or to be executed by persons appointed for the purpose and under bond for their fidelity. The former is the declaration of the sovereign will, and when constitu- tionally proclaimed it becomes binding on all citizens, with- out any subsequent assent on their part, express or implied. But such is not the effect of a grant or charter of privileges to individuals, or of any private act to be executed in the manner before mentioned. Such an act, though passing with all constitutional sanctions, possesses no binding force, even on the grantees of such chartered privileges, unless expressly or by implication accepted by them, or on those appointed to carry its provisions into execution, until they have accepted the appointment and subjected themselves to a legal obligation to perform the duties it imposes. Then, and not otherwise, it is in effectual operation. And § 104) STATUTES IN PARI MATERIA 343 why is it not? Simply because such an act is in the nature of a contract, to the perfection of which the assent of two or more minds' is always necessary. Can an individual, when he receives a grant from the legislature, or when a private act is passed for his benefit, be bound to look into and carefully examine the language of other grants and private acts, in order to ascertain the true meaning of the grant or act made for his own benefit? This question seems to be of easy solution. If, in the present instance, the condition of the bond had contained a distinct recital of the several- duties to be performed by the defendants, with- out any reference to the act, it would then present the com- mon case of a contract by deed , between two parties, in which evidence aliunde could not be admitted to limit or extend the condition, or in any manner be brought in aid of its construction. The same principle must exclude proof aliunde in both cases ; for both are cases of contract. In the case at bar, the act itself, being a private act or grant, must be construed by a careful examination of its language, and by no other mode." "'' In pursuance of this principle, it is held that where separate statutes are passed, each chartering a boom company and authorizing the erection of a boom, they must be interpreted separately, though both become the property of one company; and an act consoli- dating the two companies will ndt change the liability of either under its act of incorporation.'^ But a charter of a municipal corporation is not a private act within the mean- ing of this rule. Thus, where a statute, in granting to the 82 Thomas v. Mahan, 4 Me. 513. "Private acts of the legislature, conferring distinct rights on different individuals, which never can be 'considered as being one statute or the parts of a general system, are not to be interpreted by a mutual reference to each other. As well might a contract between two persons be construed by the terms of another contract between different persons. The obligation of a contract cannot be impaired by this indirect proceeding." United Society v. President, etc., of Eagle Bank of New Haven, 7 Conn. 456. See "Statutes," Dec. Dig. (Key No.) §§ 223-225%, 2^6; Cent. Dig. §§ 301-S06, 327. 88 Gould V. Langdon, 43 Pa. 365. See "Statutes," Dec. Dig. (Key No.) §§ 223-225%; Cent. Dig. §§ 301-306'. 344 STATUTE AS A WHOLE AND EXISTING LAWS (Ch. 8 mayor and aldermen of a city certain powers with reference to the removal of other municipal officers, uses the same language found in an existing statute in conferring a sim- ilar power upon another city, it is presumed that the words were intended to bear the same meaning in both acts.'* Constitutional and Statutory Provisions in Pari Materia It has sometimes been said that statutory enactments and constitutional provisions, when in pari materia, are to be read and construed, together as forming one system.*' It is true, as already explained, that every statute should be so construed, if possible, as to make it harmonize with the pro- visions of the constitution and so as to avoid any conflict between them, so that the act, if it can be done, shall be saved from the charge of unconstitutionality. But the ques- tion here presented is different. The object of comparing one statute with another statute in pari materia is not solely to reconcile any apparent differences between them, but also to find the explanation of obscure or ambiguous provisions in the one by the aid of the other. In respect to this latter purpose, it is at least doubtful whether a statute may be compared with the constitution, as it might be compared with another statute. The objections to Buch a course are well stated by the Supreme Court of South Carolina, in the following terms : "Where enactments separately made are read in pari materia, they are treated as having formed, in the mind of the enacting body, parts of a connected whole, though considered by such body at different moments of time and under distinct and separate aspects of the common subject. Such a principle is in harmony with the actual practice of legislative bodies, and it is essential to give unity to the laws and a consistent embodiment in a con- nected system. It is difficult to see how this principle can become the means of connecting, for the purpose of con- 8* Hagerty v. Shedd, 75 N. H. 393. 74 Atl. 1055. See "Statutes. Dec. Dig. (Ke)/ No.) § 225; Cent. Dig. §§ 302, SOS. 86 Blllingsley v. State, 14 Md. 3G9. And see St. George v. Hardie, 147 N. C. 88, 60 S. E. 920; Commonwealth v. International Har- vester Co., 131 Ky. 551, 115 S. W. 703, 133 Am. St. Rep. 256. See "Statutes," Deo. Dig. (Key No.) §§ 2U, 225; Cent. Dig. §§ 302, 503 § 105) HARMONIZING THE LAWS 345 struction, clauses and provisions of a constitution estab- lished by an authority distinct from and independent of such legislative body, and proceeding by different methods, with the enactment of a strictly legislative body. As the two bodies cannot in their nature unite to carry out a com- mon purpose, it is difficult to see how their independent enactments can be treated as if they had such capacity and intention." *' HARMONIZING THE LAWS 105. Bvery statute should receive such a construction as will make it harmonize with the pre-existing body of law. Antagonism between the act to be inter- preted and the previous laws, whether statutory or unwritten, is to be avoided, unless it was clearly the intention of the legislature that such antago- nism should arise. A legislative act is always to be considered with refer- ence to the pre-existing body of law, to which it is added and of which it is thenceforth to form a part. No law can be viewed in a condition of isolation or as the beginning of a legal system.*' Further, it is always to be presumed that the legislature, in drafting and enacting any particular statute, had full knowledge and took full cognizance of all existing laws on the same subject or relating thereto.'* And it is a presumption of equal force and applicability that the legislative body did not intend to be inconsistent with 88 State V. Williams, 13 S. C. 548. See "Statutes," Dec. Dig. (Key No.) §§ 224, 225; Cent. Dig. §§ S02, SOS. 87 Glaser v. Kothscliild, 221 Mo. 180, 120 S. W. 1, 22 L. R. A. (N. g.) 1045 ; Minnich v. Packard, 42 Ind. App. 371, 85 N. B. 787. See "Statutes," Deo. Dig. (Key No.) §§ 223-225%; Cent. Dig. §§ 301-306. 8 8JohES V. Town of Sheridan, 44 Ind. App. 620, 89 N. E. 899; Reed v. Goldneek, 112 Mo. App. 310, 86 S. W. 1104; In re Simmons, 195 N. Y. 573,. 88 N. E. 1132; State v. Southern Ry. Co., 145 N. C. 495, 59 S. E. 570, 13 L. R. A. (N. S.) 966; State v. Rutland R. Co., 81 Vt 508, 71 Atl. 197 ; State t. Harden, 62 W. Va. 313, 58 S. E. 715. See "Statutes," Dec. Dig. (Key So.) §§ 223-225%; Gent. Dig. §§ SOi- 306. 346 STATUTE AS A. WHOLE AND EXISTING LAWS (Ch. 8 itself, to keep contradictory enactments on the statute book, to make unnecessary changes in the existing laws, or to repeal statutes by mere implication.'" Hence arises the rule that, in case of any doubt or ambiguity, a statute is to be so construed as not only to be consistent with itself throughout its whole extent, but also to harmonize with the other laws relating to the same or kindred matters, form- ing a complete, consistent, and intelligible system,"" and also so as not to conflict further than necessary with, the general and established principles of the law, whether stat- utory or unwritten."^ 89 State ex rel. Atty. Gen. v. Girenis. 48 Fla. IGo, 37 South. 308. And see infra, pp. 349, 351. See "Statutes," Dec. Dig. {Key No.) §§ S2S-Z25%; Cent. Dig. §§ S01-S06. 80 United States v. Babbit, 1 Black, 55, 17 L. Ed. 94; Riggs v. Pflster, 21 Ala. 469 ; State ex rel. Ward v. Martin, 160 Ala. 190, 48 South. 847 ; Curry v. Lehman, 55 Fla. 847, 47 South. 18 ; Boyer v. Onion, 108 111. App. 612; Board of Commissioners of La Grange County V. Cutler, 6 Ind. 354 ; Bnsley v. State, 172 Ind. 198, 88 N. B. 62 ; Cahill v. State, 36 Ind. App. 507, 76 N. B. 182 ; Lincoln School Tp. V. American School Furniture Co., 31 Ind. App. 405, 68 N. B. 301 ; Willson v. Hahn, 131 Ky. 439, 115 S. W. 231 ; Commonwealth V. International Harvester Co., 131 Ky. 551, 115 S. W. 703, 133 Am. St. Rep. 256; Commonwealth v. King, 202 Mass. 379, 88 N. B. 454; Brooks V. Fitchburg & L. St. R. Co., 200 Mass. 8, 86 N. B. 289; Sheldon v. Boston & A. R. Co., 172 Mass. 180, 51 N. B. 1078 ; State ex rel. Kellogg v. Bishop, 41 Mo. 16; Macke V. Byrd, 131 Mo. 682, 33 S. W. 448, 52 Am. St Rep. 649; State ex rel. Brooks v. Fran- sham, 19 Mont. 273, 48 Pac. 1; State v. Babcock, 21 Neb. 599, 33 N. W. 247; State v. Omaha Elevator Co., 75 Neb. 637, 106 N. W. 979; Chappell v. Lancaster County, 84 Neb. 301, 120 N. W. 1116; Smith V. People, 47 N. Y. 330; In re New York, W. & B. Ry. Co., 193 N. Y. 72, 85 N. E 1014; Propst v. Southern R. Co., 139 N. a 397, 51 S. E. 920; Fortune v. Buncombe County Com'rs, 140 N. C. 322, 52 S. E. 950; Carpenter v. Russell, 13 Okl. 277, 73 Pac. 930; Masterson v. Whipple, 27 R. I. 192, 61 Atl. 44G; Twiggs v. State Board of Land Com'rs, 27 Utah, 241, 75 Pac. 729; Bowe v. City of Richmond, 109 Va. 254, 64 S. E. 51; Williams v. Keith (Tex. Civ. App.) Ill S. W. 1056; Reeves v. Ross, 62 W. Va. 7. 57 S. E. 284; State V. Snyder, 64 W. Va. 659, 63 S. E. 385; Abingdon Mills v. Grogan (Ala.) 52 South. 596; State ex rel. Halsey v. Clayton, 226 Mo. 292, 126 S. W. 506. See "Statutes," Dec. Dig. (Key No.) §§ 223- 225%; Cent. Dig. §§ S01-S06. ei Old Dominion B. & L. Ass'n v. Sohn, 54 W. Va. 101, 46 S. B. 222; § 105) HARMONIZING THE LAWS 347 . It was an ancient maxim of the law that "interpretare et concordare leges legibus est optimus interpretandi modus ;" that is, to interpret, and (to do it in such a way as) to har- monize laws with laws, is the best method of interpreta- tion.*" It is not permissible, if it can be reasonably avoided, to- put such a construction upon a law as will raise a conflict between different parts of it, but effect should be given to each and every clause and provision. But when there is no way of reconciling conflicting clauses of a statute, and noth- ing to indicate which the legislature regarded as of para- mount importance, force should be given to those clauses which would make the statute in harmony with the other legislation on the same subject, and which would tend most completely to secure the rights of all persons affected by . such legislation."* And so, where an action is brought un- der a particular section of a statute, which, considered alone, is in conflict with the constitution, and it appears that such statute, as a whole, is in harmony with the constitution, such construction shoul4 be given to the particular section as will harmonize with the statute, when considered in the light of the whole enactment."* Again, where two statutes on the same subject, or on related subjects, are apparently in conflict with each other, they are to be reconciled, by construction, so far as may be, on any fair hypothesis, and validity and effect given to both, if this can be done without destroying the evident intent and meaning of the later act." Lowe V. Yolo County Consol. Water Co., 8 Cal. App. 167, 96 Pae. 379 ; Coal & Coke R. Co. v. Conley (W. Va.) 67 S. E. 613. See "Statutes," Dec. Dig. (Key No.) §§ Z23-225%; Cent. Dig. §§ SOl-306. 92 Stoughter's Case, 8 Coke, 169a. See "Statutes," Dec. Dig. {Key No.) §§ 223-225%; Cent. Dig. §§ 301-306. »3 Kansas Pac. Ry. Co. v. Wyandotte County Com'rs, 16 Kan. 587. See "Statutes," Dec. Dig. (Key No.) §§ 223-225%; Cent. Dig. §§ 301^ 306. ' »•* Stump V. Hornback, 94 Mo. 26, 6 S. W. 356. See "Statutes," Dec. Dig. (Key No.) §§ 223-225%; Cent. Dig. §§ SOl-306. 95 Reals T. Hale, 4 How. 37, 11 L. Ed. 865 ; Merrill v. Gorham, 6 Cal. 41; Commercial Bank of Natchez v. Chambers, 8 Smedes & M. (Miss.) 9 ; Attorney General ex rel. Taylor v. Brown, 1 Wis. 513 ; Pearce v. Atwood, 13 Mass. 324. See "Statutes," Dec. Dig. (Key No.) § 225; Cent. Dig. §§ 302, SOS. 348 STATUTE AS A WHOLE AND EXISTING LAWS (Ch. 8 Thus, a statutory rule must be construed consistently with . the whole system of pleading and practice of which it forms a part."' When the power to hear and determine statutory misdemeanors is given to a municipal corporation, but no words of exclusion or restriction are used, the remedies be- tween the state and the corporation will be construed' to be concurrent; but where the manifest intention is that the prosecution shall be limited exclusively to one jurisdiction, that intention must prevail."' Again, of tw.o constructions, either of which is warranted by the words of an amendment to a public act, that is to be preferred which best harmo- nizes the amendment with the general tenor and spirit of the act amended."* And it has been said that while laws must be construed so as to harmonize, if possible, yet, if two statutes interfere, that should be followed which is rec- ommended by the most beneficial reasons."' Even where later statutes do plainly abrogate settled practice or repeal former statutes, they are to be expounded as near to the use and reason of the prior law as can be, without violation of their intent."" But statutes of a later date should be given a controlling preponderance where there is any in- consistency or uncertainty, so as to enforce the intent of the legislature.^"^ State Statutes and Acts of Congress Since a valid act of Congress is a part of the "supreme law of the land," and any state statute which is in conflict 88 McDougald v. Dougherty, 14 Ga. 674. See "Statutes," Dec. Dig. (Key No.) § 225; Cent. Dig. §§ 302, SOS. »7 State V. Gordon, 60 Mo. 383. See "Statutes," Deo. Dig. (Key No.) §§ 22S-225%, 230; Cent. Dig. §§ 301-306, 311. «8 Caesar Griffin's Case, Chase, Dec. 364, Fed. Cas. No. 5,815. See "Statutes," Dec. Dig. {Key No.) §§ 223-225%, 230: Cent. Dig. S§ 301- 306, 311. 8 Kane v. Kansas City, Ft. S. & M. Ry. Co., 112 Mo. 34, 20 S. W. 532. See "Statutes," Deo. Dig. (Key No.) §§ 223-225%; Cent. Dig. §§ 301—308. 100 People's Trust, Savings & Deposit Co. v. Ehrhart, 34 Pa Super Ct. 16. See "Statutes," Dec. Dig. (Key No.) §§ 223-225%; Cent Dig §§ 301-306. 101 state V. KUey, 36 Ind. App. 513, 76 N. E. 184. See "Statutes." Dec. Dig. (Key No.) §§ 283-225%; Cent. Dig. §§ 301-306. § 106) PRESUMPTION AGAINST UNNECESSARY CHANGE 349 with it is to that extent void and inoperative,^"'' it follows that the state courts, when construing a law of the. state which covers the same ground as an act of Congress or applies to the same subject-matter, should always endeavor to interpret the statute in such a manner as will avoid con- flict or repugnancy, or the usurpation of authority vested in the federal government, and leave the state law operative and effective.^"' PRESUMPTION AGAINST UNNECESSARY CHANGE OF LAWS 106. It is presumed that the legislature does not intend to make unnecessary changes in the pre-existing body of law. The construction of a statute will there- fore be such as to avoid any change in the prior laws beyond what is necessary to effect the specific purpose of the act in question.^"* 102 Gulf, C. & S. F. R. Co. V. Hefley, 158_U. S. 98, 15 Sup. Ct. 802, 39 L. Ed. 910. And see Black, Const. Law (3d Ed.) page 37. See "Statutes," Dec. Dig. (Key No.) §§ 223-225%; Cent. Div. §§ 301-S06. losCodlin v. Kohlhousen, 9 N. M. 565, 58 Pac. 499; WUson v. Bradley, 105 Ky. 52, 48 S. W. 1088. Compare Turner v. Neosho County Com'rs, 27 Kan. 639. See "Statutes," Deo. Dig. (Key No.) §§ 223-2^5%; Cent. Dig. §§ 30X-306. 10* Manuel v. Manuel, 13 Ohio St. 458; Sikes v. St. Louis & S. F. K. Co., 127 Mo. -App. 326, 105 S. W. 700 ; State v. Hooker, 22 Okl. 712, 98 Pac. 964; Bear's Adm'r v. Bear, 33 Pa. 525; Thompson v. Mylne, 4 La. Ann. 206 ; Childers v. Johnson, 6 La. Ann. 634. "One of these presumptions is that the legislature does not intend to make any change in the law beyond what it explicitly declares, either in express terms or by unmistakable implication, or, in other words, beyond the immediate scope and object of the statute. In all gen- eral matters beyond, the law remains undisturbed. It is In the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such efEect to general words, simply because, in their widest and perhaps natural sense, they have that meaning, would be to give them a meaning in, which they are not really used." Maxwell, In- terp. (2d Ed.) 96. See "Statutes," Deo. Dig. (Key No.) § 225; Cent. Dig. §§ 302, SOS. 350 STATUTE AS A WHOLE AND EXISTING LAWS (Ch. 8 "The intention of the legislature in enacting a particular statute is not to be ascertained by interpreting the statute by itself alone, and according to the mere literal meaning of its words. Every statute must be construed in connec- tion with the whole system of which it forms a part, and in the Hght of the common law and of previous statutes upon the same subject. And the legislature is not to be lightly presumed to have intended to reverse the policy of its predecessors or to introduce a fundamental change in long-established principles of law." ^'"' Thus, for example, a statute authorizing married women to hold, convey, and devise real property the same as if sole, will not empower a married woman to convey to her husband, by deed, her dower rights in his real estate. The Supreme Court of New York, in making this decision, said that the legisla- ture could not have intended "so violent an innovation upon the existing law" ; the safer and more reasonable construc- tion would restrict the right of a married woman to convey to persons other than her husband.^"" So it is held that an act containing no negative words, and providing that all former deeds shall have a certain effect if such and such requisites are observed, does not prevent the deeds from being used as evidence in the same manner as they might have been used before the act was passed.^"' And where a corporation, incorporated as a road and bridge company, was permitted, by a subsequent act of the legislature, to form itself into two distinct companies, one designated a turnpike company, and the other a bridge company, it was held that it did riot exonerate the officers of the road com- pany from the penalties imposed by the original act, it being manifest that the legislature did not intend to reheve them from their liabilities."' So, again, a California act in lOB Robinson's Case, 131 Mass. 376, 41 Am. Rep. 239. See "Stat- utes," Dec. Dig. (Key No.) § 225; Cent. Dig. §§ 302, SOS. i»8 Graham t. Van Wyck, 14 Barb. 531. See "Statutes," Dec. Dig. {Key No.) § 225; Cent. Dig. §§ 302, 303. 107 Jackson ex dem. Van Denberg v. Bradt, 2 Games, 169. See "Statutes," Dec. Dig. (Key No.) § 225; Cent. Dig. §§ SOS, SOS. 108 Kane v. People, 8 Wend. 203. See "Statutes," Deo. Dig. (Key No.) § 225; Cent. Ifig. §§ 302, SOS. § 107) PRESUMPTION AGAINST IMPLIED REPEAL 351 relation to the taking of lands by water companies provided that the proceedings should be conducted as prescribed for railroad companies under the act of 1853. The railroad act was repealed by a subsequent law passed in 1861. It was held that proceedings for the taking of land by water com- panies were not affected by the change.^"" But, on the other hand, where a statute regulating procedure is chang- ed, it must be presumed that the legislature intended to establish a different rule.^^" PRESUMPTION AGAINST IMPLIED REPEAL OF LAWS 107. Repeals by implication are not favored. A statute will not be construed as repealing prior acts on the same subject (in the absence of express words to that effect) unless there is an irreconcilable repug- nancy between them, or unless the new law is evi- dently intended to supersede all prior acts on the matter in hand and to comprise in itself the sole and complete system of legislation on that subject The presumption being, as just stated, against any in- tention to make unnecessary changes in the laws, it follows that there is also a presumption against repeals by implica- tion. Every new statute should be construed in connection with those already existing in relation to.the same subject- matter, and all should be made to harmonize and stand to- gether, if that can be done by any fair and reasonable in- terpretation, and if the new act does not- expressly declare the repeal of an earlier statute, it will not be construed as effecting such repeal unless there is such a repugnancy or conflict between the provisions of the two acts as to show that they could not have been designed to remain equally 109 Spring Valley Water Works v. City of San Pranclseo, -22 Oal. 434. See "Statutes," Dec. Dig. (Key No.) § 225; Cent. Dig. §§ SOS, SOS. 110 McLean v. Moran, 38 Mont. 298, 99 Pac. 836. See "Statutes," Deo. Dig. (Key No.) § 225; Cent. Dig. §§ S02, 303. ^52 STATUTE AS A WHOLE AND EXISTING LAWS (Ch. 8 in force.^^* "Repeals by implicatron," says the court in Maryland, "are things disfavored by law, and never allowed but when the inconsistency and repugnancy are plain and unavoidable; and if laws and statutes seem contrary to one another, y^t if, by interpretation, they may stand to- gether, they shall stand; and when two laws only so far disagree or differ as that by any other construction they may both stand together, the rule that 'leges posteriores priores contrarias abrogant' does not apply, and the latter is no repeal of the former." ^^^ "Where a new act is couched in general affirmative language, and the previous law can well stand with it, and if the language used in the later act is all in the affirmative, there is nothing to say that the previous law shall be repealed, and therefore the old and the new laws may stand together. There the general af- firmative words of the new law would not of themselves repeal the old." *^^ For instance, it is a well-settled rule of construction, applicable to all remedial laws, that where a new remedy or mode of proceeding is authorized, without an express repeal of a former one relating to the same mat- ter, it is to be regarded as merely cumulative, creating a concurrent remedy, and not as abrogating the former mode of procedure.^^* Thus, if a statute provides that appeals from the judgments of the county courts in certain cases "may" be taken to the supreme court, it is not to be con- iiiLowman t. BlUington, 65 Misc. Rep. Ill, 119 N. T. Supp. 825; Haggett V. Hurley, 91 Me. 542, 40 Atl. 561, 41 L. R. A. 362 ; Reeves V. Ross, 62 W. Va. 7, 57 S. E. 284 ; Robbins v. State, 8 Ohio St 131, 191; Casey v. HarBed, 5 Iowa, 1; Selman v. Wolfe, 27 Tex. 68; Morris v. Delaware -& S. Canal, 4 Watts & S. (Pa.) 461 ; Crouch v. Hayes, 98 N. Y. 183; Peyton v, Moseley, 3 T. B. Mon. (Ky.) 77; Barringer v. City Council of Florence, 41 S. C. 501, 19 S. E. 745. See "Statutes," Dec. Dig. (Key No.) §§ 158-1G7; Cent. Dig. §§ 228- 243. 112 Mayor, etc., of City of Cumberland v. Magruder, 34 Md. 381. And see McAfee v. Southern U. Co.. 36 Miss. 669. See "Statutes," Dec. Dig. (Key No.) §§ 158-167; Cent. Dig. §§ 228-24S. 118 Hardcastle, Stat. Law (2d Ed.) 346. See "Statutes," Dec. Dig. (Key No.) §§ 158-167, 225; Cent. Dig. §§ 2:88-2;;*, SOS, SOS. 114 Raudebaugh v. Shelley, 6 Ohio St. 307. See "Statutes," Deo. Dig. (Key No.) §§ 158-167; Gent. Dig. §§228-243. § 107) PRESUMPTION AGAINST IMPLIED KEPEAIi. 353 strued as imperative, and therefore ; it does not repeal by implication, the provisions of an earlier statute which gave an appeal in such cases to the circuit, courts.^^" And "even if a subsequent statute, taken strictly and grammatically, is contrariant to a previous statute, yet if, at the same time, the intention of the legislature is apparent that the, pre- vious statute should not be repealed, it has been in seiveral cases held that the previous statute is to remain unaffected by the subsequent one." ^^° But if the two acts are positively repugnant, and to such an extent that they cannot be reconciled and made to stand together by any fair and reasonable construction, then the one last passed will control and will repeal the earlier Jaw.'^^' In this case, the rule is, "Leges posteriqres priores contrarias abrogant." '^* "If two inconsistent acts be pass- ed at different times, the last is to be obeyed, and if obe- dience cannot be observed without derogating from the first, it is the first which must give way. Every act of Par- liament must be considered with reference- to the , sta,te: of the law subsisting when it came into operation and when it is to be applied; it cannot otherwise be rationally con- strued. Every act is made either for the purpose of making a change in the law, or for the purpose of better declaring the law, and its operation is not to be impeded by the mere fact that it is inconsistent with some previous enact- ment." ^^° Thus, if the legislature grants the same power over a particular matter to two public bodies (as, to the trustees of a public canal and also to a city) and the grants are repugnant, so that the concurrent exercise of the power iiB Fowler v. Pirkins, 77 111. 271. See "Statutesj" Dec. Dig. (Key No.) §i 158-161; Gent. Dig. §§ 2S8-US. 116 Hardcastle, Stat. Law (2d Ed.) 356. 117 State V. Misklnunons, 2 Ind. 440; Swinney v. Ft. Wayne, M. & C. R. Co., 59 Ind. 205; Commissioners of Highways v. Deboe, 43 111. App. 25 ; Branagan v. Dulaney, 8 Colo. 408, 8 Pac. 669 ; Brau- ham V. Long, 78 Va. 352; Pease t. Wiltney, 5 Mass. 380. See "Stat- utes," Dee. Dig. {Key No.) § 159; Cent. Dig. § 229. lis Broom, Max. 27. ^ 119 Dean and Chapter of Ely v. Bliss, 5 Beav. 574. See "Statutes," Dec. Dig. {Key No.) § 159; Cent. Dig. § 229. Black Int.L. — 23 354 STATUTE AS A WHOLE AND EXISTING LAWS (Ch. 8 by the two bodies is impossible, the last expressed will of the legislature must control.*"" Again, acts which, al- though in pari materia, grant a right conditioned on differ- ent things, are inconsistent, and by reason of this inconsist- ency the later will repeal the earlier.*"* So, where there are two statutes imposing a penalty for the same offense, and the penalty imposed by the one is not the same as that imposed by the other, the later statute repeals the earlier ; for the intention to inflict two punishments for the same offense is not to be imputed to the legislature.*"" And again, if a subsequent statute requires the same and more than a former statute prescribed, this is a repeal of the earlier law, so far as the subsequent statute renders more necessary than the first required.*"' If one statute enacts something in general terms, and afterwards another statute is passed on the same subject, which, although expressed in affirmative language, intro- duces special conditions or restrictions, the subsequent stat- ute will usually be considered as repealing by implication the former; for "affirmative statutes introductive of a new law do imply a negative." *"* More especially when the later act is expressed in negative terms, as where, for ex- ample, it prohibits a certain thing from being done, or where it declares that a given act shall be performed in a certain manner "and not otherwise," it is usually impossible to escape the conclusion that earlier acts are repealed by it. And if the coexistence of the two sets of provisions would be destructive of the object for which the later act was passed, it is clear that there must be an implied repeal. A i20Korah v. City of Ottawa, 32 111. 121, 83 Am. Dec. 255. See "Statutes," Dec. Dig. (Key No.) § 159; Cent. Dig. % 229. 121 G winner v. Lehigh & D. G. R. Co., 55 Pa. 126. See "Statutes," Deo. Dig. {Key No.) §§ 159, 225; Cent. Dig. §§ 229, S02, SOS. 122 Gorman v. Hammond, 28 Ga. 85. See "Statittcs," Dec. Dig. (Key No.) §§ 159, 225; Gent. Dig. §§ 229, S02, SOS. 123 Gorham v. Luckett, 6 B. Men. (Ky.) 146. See "Statutes," Dec. Dig. {Key No.) §§ IS^, 225; Cent. Dig. §§ 229, S02, SOS. 12* Hardcastle, Stat. Law (2d Ed.) 353. And see Isham v. Ben- nington Iron Co., 19 Vt. 230. See "Statutes," Deo. Dig. {Key No.) §§ 159-167; Cent. Dig. §§ 229-24S. § 107) pbestJmption against implied repeal 355 provision in a general law may be repealed, pro tanto, by a provision in a charter of a municipal corporation, granted after the enactment 6i the law; and such repeal will be held to have been intended wKere the two provisions are in direct conflict, or where the intention of the legislature to that effect is plainly expressed.^^' "Not only statutes passed at different sessions of the legislature may thus affect each other, but a repeal by implication has been ef- fected where two inconsistent enactments have been passed at the same session, even while the earlier act was in its progress to become a law, but before it had become so by the executive approval; it being said that the parliament- ary rule that an act shall not be repealed at the session at which it was passed has.no reference to repeal by implica- tion." ^"^ Where it is necessary to hold an earlier statute impliedly repealed by a later one, on account of the reptignancy be- tween them, the extent of the repeal- will be measured by the extent of the necessary conflict or inconsistency be- tween them ; and if there are any parts or provisions of the earlier law which may stand as unaffected by the later act, they will not be held repealed thereby.^^^ Even where tjiere is no direct repugnancy or inconsist- ency between the earlier and the later law, there may in some cases be an implied repeal. This result follows where the later act revises, amends, and sums up the whole law on the particular subject to which it relates, covering all the ground treated of in the earlier statute, and adding new or different provisions, and thus plainly shows that it was intended to supersede any and all prior enactments on that '125 Tlemey v. Dodge, 9 Minn. 166 (GU. 153). See "Statutes," Dec. Dig. (Key No.) §§ 159-1B7; Cent. Dig. §§ 229-243. 128 Endlleh, Interp. § 188, citing Southwark Bank v. Common- wealth, 26 Pa. 446; Spencer v. State, 5 Ind. 41. And see Hellig v. City Council of Puyallup, 7 Wash. 29, 34 Pac. 164; Planters' Bank of Tennessee v. Black, 11 Smedes & M. (Miss.) 43. See "Statutes," Dec. Dig. (Key No.) § 159; Cent. Dig. § 229. 127 State V. Grady, 34 Conn. 118; Wood v. United States, 16 Pet. 342, 10 L. Ed. 987 ; Putnam v. Ruch (O. C.) 54 Fed. 216. See "Stat- utes," Dec. Dig. (Key No.) § 159; Cent. Dig. § 229. 356 STATUTE AS A WHOLE' AND EXISTING tAWiS (Ch. 8 subject-iTiatter, and to furnish, for the future, in itself alone, the whole and only system of statute law applicable to that subject.^^' "Every statute," says the court in New Jersey, "itiust be considered according to what appears to have been the intention of the legislature, and even though two statutes relating to the same subject be not, in terms, re- pugnant or inconsistent, if the later statute is clearly in- tended to prescribe the only rule which should govern the case provided for, it will be construed as repealing the orig- inal act. The rule does not rest strictly upon the ground of repeal by implication, but upon the principle that when the legislature makes a revision of a particular statute, and frames a new statute upon the subject-matter, and from the framework of the act it is apparent that the legislature designed a complete scheme for this matter, it is a legis- lative declaration that whatever is embraced in thfc new law shiall; prevail, and whatever is excluded is discarded. It is decisive evidence of an intention to prescribe the provisions contained in the later act as the only ones on that subject which shall be obligatory." ^"' Where a statute is revised, or one act framed from another, some parts being omitted, the parts omitted are not to be revived by construction, but are to be considered as annulled.^^" 128 United States v. Tynen, 11 Wall. 88, 20 L,. Ed. 153; Oleson v. Green Bay & I,, P. Ry. Co., 36 Wis. 383; Fox's Adm'rs v. Common- wealth, 16 Grat. (Va.) 1. The common law. is constructively repealed by a statute which revises the whole subject and is inconsistent with its continued operation. State v. Wilson, 43 N. H. 415, 82 Am. Dec. 163. See "Statutes," Deo. Dig. {Key No.) § 159; Cent. Dig. § 229. 128 Roche V. Mayor, etc., of Jersey City, 40 N. J. Law, 257. See "Statutes," Dec. Dig. (Key No.) § 159; Cent. Dig. § 229. ISO Ellis V. Paige, 1 Pick. (Mass.) 43. See "Statutes," Deo. Dig. (Key No.) § iBt; Cent. Dig. §§ 2^2, S^S. § 108) INTEHPEETATION AFFECTED BY COMMON LAW 357 CHAPTER IX ' INTERPRETATION WITH REFERENCE TO COMMON LAW 108. Common Law in Force in the United States. 109. Construction with Reference to Common Law. 110. Statutes Affirming Common Law. 111. Statutes Supplementing Common Law. ,112. Statutes Superseding Common. Law. 113. Statutes in Derogation of Common Law. COMMON LAW IN FORCE IN THE UNITED STATES 108. The English common la^v, in so far as it is applicable in this country, and where it has not been abro- gated or changed by constitutional or statutory enactments, is in force in the several American states. Generally speaking, the common law of England, excepib in so far as it has been repealed or mOdifieci by constitutions or statutes, is, in force in the several states of the Amer-; ican Union.* Not only do its principles permeate our sys>-; .1 Marburg v. Cole, 49 Md. 402, 33 Am. Kep. 266 ; HoUman v. Ben.- nett, 44 Miss. 322; Van Ness, v. Pacard, 2 Pet. 137, 7 L. Ed. 374 ;. Stewart v. Stearns & Culver Lumber Co., 56 Fla. 570, 48 South. 19, 24 L. R. A. (N: S.) 649; State v. Mays, 57 Wash. 540, 107 Pac. 363V In the thirteen original states, the English common law was already in force at the time of the American Revolution. It was not abrO" gated or abolished by that event ; it simply has ever since continued to be the law of the state except in so far as it has been changed by the constitutions or stEitutes. But all the immense territory which was acquired by the United States in 1804 by the "Louisiana Pur- chase" had never been under the British dominion, and consequent^ ly was never governed by the common law. All the states which have been carved out of that territory were without the inheritfinc^ of the common law, and that system did not, and does not now, pre- vail in any of thgse states tp any extent, except in so far as it has been introdnced or adopted by legislative enactment. Many of the states in question, however, have adopted the common law so far as it Is applicable to their local conditions and needs and not Inconsist- 358 INTERPRETATION AFFECTED BY COMMON LAW (Ch. 9 tem of jurisprudence, but its specific rules and doctrines are looked to by the courts as furnishing the grounds for their decisions in cases not otherwise explicitly provided for.° In many of the states, either a clause of the constitution or a statutory provision adopts and continues in force the body of the common law, save as it may have been rejected or changed by positive law.' The American colonists brought this law with them from the home of their race, and adopted it and lived under its precepts as naturally and inevitably as they continued to use their mother tongue. But it would be error to suppose that they adopted, or that the legisla- tive and constitutional provisions of which we have spoken continued in force, the entire body of the common law, with every one of its rules, doctrines, and principles. It has al- ways been the understanding that that law was accepted and put in force by the founders of the American states, and continued in force by those provisions, only in so far as it was applicable to the conditions and circumstances of this country. There are many particulars in which the common law would be entirely unsuited to the conditions and needs of our country and our life. Where it is inapplicable to the spirit, the genius, or the objects of our political or social institutions ; where it does not accord with or suit the hab- its of our people ; where it is rendered inapplicable by the ent with their constitutions and statutes. See Herr v. Johnson, 11 Colo. 395, 18 Pac. 342 ; MathiesoD v. St. Louis & S. F. R. Co., 219 Mo. 542, 118 S. W. 9. See "Common Law," Dec. Dig. {Key No.) §§ 1, 10- 13; Gent. Dig. §§ 1, 2, 9-12. 2 See, for example, State ex rel. O'Malley v. Musick, 145 Mo. App. 33, 130 S. W. 398, where recourse was had to the common law to determine when an action on a notary's bond should be consider- ed as accruing, since no provision of the general statute of limita- tions or of any other statute expressly covered the point. See •'Common Law," Dec. Dig. {Key No.) §§ 1, 12, H; Cent. Dig. §§ 1- S, 10. 3 Marmaduke v. People, 45 Colo. 357, 101 Pac. 337 ; Mills' Ann. St Colo. § 4184. But a statute adopting the common law of England as a basis of criminal jurisprudence does not adopt subsequent English eaactments. State v. Davis, 22 La. Ann. 77. See "Common Law," Deo. Dig. {Key No.) §§ 1, 10-1/,; Cent. Dig. §§ IS, 9-12. § 108) COMMON LAW IN FORCE IN THE UNITED STATES 359 physical conformation or the natural characteristics of the land, in these and similar cases it is not in force.* All those features which depend upon the existence of a monarchical form of government have thus been eliminated. The com- mon-law test of the navigability of rivers has been reject- ed. ° The common-law doctrine of riparian rights is not in force in those states where mining is the paramount interest and where the arid nature of the land renders such doc- trines inapplicable." The rule of the common law requir- ing the owner of cattle to keep them within fences and pre- vent their straying on the lands of others has no place in the new and sparsely settled states of the West. These illustrations (which might be indefinitely multiplied) will suffice to show the meaning of the rule that the common law is to be considered as having been adopted and con- tinued in force only so far as it is applicable to the circum- stances of the particular state.' The courts are never pre- cluded from considering this question of applicability, even * See 1 Kent, Comm. 473 ; 1 Washburn, Real Prop. (4tli Ed.) 36 ; Van Ness v. Pacard, 2 Pet. 137, 144, 7 L. Ed. 374; Reno Smelting, Milling & Reduction Works v. Stevenson, 20 Nev. 269, 21 Pac. 317, 4 L. R. A. 60, 19 Am. St. Rep. 364 ; Bogardus v. Trinity Church, 4 Paige (N. Y.) 198 ; Seeley v. Peters, 5 Oilman (III.) 130 ; People v. Canal Appraisers, 33 N. Y. 461; Scheuermann v. Scharfenberg, 163 Ala. 337, 50 South. 335, 24 L. R. A. (N. S.) 369 ; Cooper v. Seaverns, 81 Kan. 267, 105 Pac. 509, 25 L. R. A. (N. S.) 517. See "Common Law," Dec. Dig. {Key ^'o.) §§ 1, 10-lJ,; Cent. Dig. §§ IS, 9-12. 5 The Genesee Chief v. Fitzhugh, 12 How. 443, 13 L. Ed. 1058. See "NcmgaUe Waters," Dec. Dig. (Key 7fo.) § J; Cent. Dig. §§ 5-16. ssternberger v. Seaton Mining Co., 45 Colo. 401, 102 Pac. 168; Oppenlander v. Left Hand Ditch Co., 18 Colo. 142, 31 Pac. 854; Wheeler v. Northern Colo. Irr. Co., 10 Colo. 587, 17 Pac. 487, 3 Am. St. Rep. 603; Hutchinson v. Watson Slough Ditch Co., 16 Idaho, 484, 101 Pac. 1059, 133 Am. St. Rep. 125; Kirk v. Bartholomew, 3 Idaho, 367, 29 Pac. 40; Bigelow v. Draper, 6 N. D. 152, 69 N. W. 570- Reno Smelting, etc., Works v. Stevenson, 20 Nev. 269, 21 Pac. 317 4 L. R. A. 60, 19 Am. St. Rep. 364 ; Stowell v. Johnson, 7 Utah, 215! 26 Pac. 290 ; Moyer v. Preston, 6 Wyo. 308, 44 Pac. 845, 71 Am. St. Rep. 914. See "VavigaMe Waters," Dec. Dig. (Key No.) §§ S9-46; Cent. Dig. §§ 239-293; "Waters and Water Courses," Dec. Dig. (Key No.) §§ 34-50; Cent. Dig. §§ 21-41.- 360; INTERPRETATION AFFECTED BY COMMON LAW (Gh. & where the constitution or a statute specifically adopts the common law, as the rule of decision in the courts of the state.'' . , CONSTRUCTION WITH REFERENCE TO COMMON LAW 109. Statutes are to be read in the light of the common law and construed with reference thereto. When any 'question arises as to the meaning or the scope of a statutory enactment, it is a good rule to compare it with the common law on the same subject, and to construe the statute with reference to that law.' This is but an ex- tension of the rule, already noticed in tljese pages, that a doubtfulor ambiguous statute is to be construed with all acts in pari materia, and adjusted and harmonized, as far as possible, with the existing laws applicable to the same subject-matter. No statute enters a field which was before entirely unoccupied. It either affirms, modifies, or repeals some portion of the previously existing law. In order, therefore, to form a correct estimate of its scope and effect, it is necessary to have a thorough understanding of the laws, both common and statutory, which heretofore were applicable to the same subject. Whether the statute affirms the rule of the common law on the same point, or whether it supplements it, supersedes it or displaces it, the legisla- tive enactment rnust be construed with reference to the common law; for in this way alone is it possible to reach 1 Reno Smelting, etc., Works v. Stevenson, 20 Nev. 269, 21 Pac. 317, 4 L. R. A. 60, 19 Anoi. St. Rep. 364. See "Common Law," Deo. Dig. (Key No.) §§ 1, 10-14; Gent. Dig. §§ IS, 9-13. 8 Scaife v. Stovall, 67 Ala. 237 ; Howe v. Peckham, 6 How. Prac. (N. T.) 229; Johnson v. Fluetscb, 176 Mo. 452, 75 S. W. 1005; Chi- chester V. Vass, 1 Cair(Va.) 83; 1 Am. Dec. 509; State v. Centra! Vermont R. Co., 81 Vt. 459, 71 Atl. 193, 21 L. R. A. (N. S.) 949; Perry v. Strawbridge, 209 Mo. 621, 108 S. W. 641, 16 L. R. A. (N. S.l 244, 123 Am. St. Rep. 510 ; State ex rel. Morris v. Sullivftn, 81 Ohio St. 79, 90 N. E. 146, 26 L. R. A. (N. S.) 514. See 'matutes," Deo. Dig. (Key No.) § 222; Cent. Dig. § SOI. §109) ' REFERENCE TO' COMMON LAW S61 a just appreciation of its purpose and effect. Again, the common law must be allowed to stand unaltered as far as is consistent with a reasonable interpretation of the new law. "The general rule in the exposition of all acts of Par- liament is this, that in -all doubtful matters, and where the expriession is in general terms, they are to receive such a construction as may be agreeable to the rules of the com- mon law in cases of that nature; for statutes are not pre- sumed to make any alteration in the common law furthei* or otherwise than the act does expressly declare ; and there- fore in all general matters the law presumes the act did not intend to make any alteration, for^f the Parliament had had that design, they would have expressed it in the act." ° And again, if a statute makes use of a word, the meaning of which is well known at common law, the word should be understood in the statute in the same sense in which it was understood at common law.^" For example, though the descent and distribution of prop- erty is entirely governed by the statute, yet the common law may be considered in construing the act." Again, where there is doubt about the meaning of a provision in a statute covering the whole subject of negotiable instru- » Arthur v. Bokenham, 11 Mod. 148. See, also, Greenwood v. Greenwood, 28 Md. 369 ; Edwards v. Gaulding, 38 Miss. 118 ; State ex rel. Morris v. Sullivan, 81 Ohio St. 79, 90 N. E. 146, 26 L. E. A. (N. S.) 514 ; Rosin v. Lidgerwood Mfg. Co., 89 App. Div. 245, 86 N. Y. Supp. 49; Langlois v. Dunn Worsted Mills, 25 R. I. 645, 57 Atl. 910; Millhiser Mfg. Co. v. Gallego Mills Co., 101 Va. 579, 44 S. B. 760; Carley v. Liberty Hat Mfg. Co. (N. J. Sup.) 75 Atl. 543 ; Day is v. Abstract Const. Co., 121 111. App. 121 ; Keim v. City of Reading, 32 Pa. Super. Ct. 613 ; McCarthy v. McCarthy, 20 App. D. 0. 195. See 'f Statutes," Dec. Dig. {Key No.) § 222; Cent. Dig. § SOI. 10 Mayo V. Wilson, 1 N. H. 53; Walton v. State, 62 Ala. 197; Apple V. Apple, 1 Head (Tenn.) 348 ; Adams v. Turrentine, 30 N. C. 147 ; McCool v. Smith, 1 Black, 459, 17 li. Ed. 218 ; Buckner t. Real Estate Bank, 5 Ark. 536, 41 Am. Dec. 105 ; State v. Engle, 21 N. J. Law, 347; Tnielove v. Truelove, 172 Ind. 441, 86 N. B. 1018, 27 L. R. A. (N. S.) 220 ; Welty v. United States, 14 Okl. 7, 76 Pac. 121. See "Statutes," Dec. Dig. (Key No.) § 222; Cent. Dig. § SOI. 11 Truelove v. Truelove, 172 Ind. 441, 86 N. E. 1018, 27 L. R. A. (N. S.) 220. See "Statutes," Dec. Dig. {Key No.) § 222; Gent. Dig. § 801. 362 INTERPRETATION AFFECTED BY COMMON LAW (Ch. 9 ments, which can be solved by reference to the law mer- chant, it should be consulted for that purpose, and if it is practicable to do sOj the statute should be given such a con- struction as will make it harmonize with the general prin- ciples of commercial law in force before its enactment.^^ So where a statute provided for the punishment of "public indecency," but without defining it, it was held that the common law should be consulted for the meaning of that terrn, and that the statute could be given no wider scope than was consistent with the common-law significance of that term.^' Although the federal courts have no common-law juris- diction, all their jurisdiction being conferred' by the con- stitution and the acts of Congress, and although their rules of decision are derived from the laws of the states, yet, in construing the statutes of Congress, the rules of interpretation furnished by the common law are the true guides and have been uniformly followed.^* STATUTES AFFIRMING COMMON LAW 110. A statute which is in affirmance of a rule of the com- mon law is to be construed, as to its incidents and its consequences, in accordance with the common law. Where a new statute does not undertake to change the common law relating to its particular subject, or to intro- duce new rules or new rights or remedies, but only affirms what before existed as a part of that system, it should be construed as near as may be to the rule and reason of the 12 Wettlaufer v. Baxter, 137 Ky. 362, 125 S. W. 741, 26 L. R. A. (N. S.) 804. See "Statutes," Deo. Dig. {Key No.) § 222; Cent. Dig. § SOI. IS McJunkins v. State, 10 Ind. 140. See "Statutes," Deo. Dig. (Key No.) § 222; Cent. Dig. § 301; "Criminal Law," Dec. Dig. (Key No) § 11; Cent. Dig. §§ jTO-iS. i< Eice V. Railroad Co., 1 Black, 358, 17 L. Ed. 147. iSee "Stat- utes," Deo. Dig. (Key No.) § 222; Cent. Dig. § SOI. § 111) STATUTES SUPPLEMENTING COMMON LAW 363 common law, and by the course which the common law observes in other cases.^" And as to its details (not cov- ered by the general language of the statute) and incidental or consequential matters arising out of its application, its interpretation should be in accordance with what was set- tled at the common law.^' STATUTES SUPPLEMENTING COMMON LAW 111. A statute which is supplementary to the common law does not displace that law any further than is clearly necessary. The statute is in general con- sidered as merely ctimulative, unless the rights or remedies which it creates are expressly made ex- clusive. If a statute recognizes a right already existing at com- mon law and merely gives a new remedy for its infringe- ment, without declaring or implying that such remedy shall be exclusive, it is cumtilative, and the party injured is at liberty to pursue either the statutory remedy or that pre- viously existing by the common law. If the statute gives the same remedy which the common law gave, it is merely affirmative, and the party has his election whether to pro- ceed at common law or upon the statute. But if the statute denies or withholds the remedy which before existed at common law, the common-law right ceases to exist, and the statute alone is available to the party.^' Where the statute does not vest a right in a person, but only prohibits IB C?umberland Telephone & Telegraph Co. v. Kelly, 160 Fed. 316, 87 C. C. A. 268. See "Common Law," Dec. Dig. (Key No.) § 11; Cent. Dig. § 10; "Statutes," Dec. Dig. (Key No.) § 222; Cent. Dig. § SOI. i« Baker v. Baker, 13 Cal. 87 ; Hewey v. Nourse, 54 Me. 256. See "Common Law," Dec. Dig. (Key No.) § 11; Cent. Dig. § 10; "Stat- utes," Dec. Dig. (Key No.) § 222; Cent. Dig. § SOI. 17 Gooch r. Stephenson, 33 Me. 371; Crittenden v. Wilson. 5 Cow. (N. T.) 165, 15 Am. Dec. 462 ; Proprietors of Fr^eburg Canal y. Frye, 5 Me. 38. See "Common Law," Deo. Dig. (Key No.) § II; Gent. Dig. § 10; "Statutes," Dec. Dig. (Key No.) § 222; Cent. Dig. § SOI. 1364: INTEEPRETAqCIONAPFECTBI) BY COMMON LAW (Ch. 9 the doing of some jact under a penalty, the;party violating .tlie statute is liable only to the penalty; but wtiere a right :of property is vested in consequence of the statute, it may be vindicated at common law, unless the statute confines the remedy to the penalty.^' So, alsec. Dig. (Key No.) § Z39; Cent. Dig. § 320. 28 Barker v. Bell, 46 Ala. 216. See "Common Law," Dec. Dig. (Key No.) § 11; Cent. Dig. § 12'; "Statutes,'* Dec. Dig. (Key No.) § 239; Gent. Dig. § S20. § 113) STATUTES IN DEROGATION OF COMMON LAW 367 STATUTES IN DEROGATION OF COMMON LAW 113. It is a rule generally observed (except where prohib- ited by statute) that acts of the legislature made in derogation of the common law will not be ex- tended by construction; that is, the legislature will not be presumed to intend innovations upon the conunon law, and its enactments will not be ex- tended, in directions contrary to the common law, further than is indicated by the express terms of the law or by fair and reasonable implications from its nature or purpose or the language employed. It was formerly accepted, by all the courts, as a rule of universal applicability, that all statutes made in derogation of the common law were to be strictly construed.''^ And this doctrine is still frequently enunciated, and is more or less rigorously adhered to in even some of the most recent decisions.''* 27 Melody v. Reab, 4 Mass. 471 ; Esterley's Appeal, 54 Pa. 192 ; Bailey v. Bryan, 48 N. C. 357, 67 Am. Dec. 246; Hcllman v. Ben- nett, 44 Miss. 322 ; Arthur's Appeal, 1 Grant, Cas. (Pa.) 55 ; Gavin V. Shuman, 23 Ind. 32; Wright v. Millard, 3 G. Greene (Iowa) 86; Gibbons v. The Fanny Barker, 40 Mo. 253 ; Dwelly v. Dwelly, 46 Me. 377. But as early as 1818 the court in Massachusetts declared that, while statutes made in derogation of the common law were to be construed strictly, yet they were also to be construed sensibly, and with a view to the object aimed at by the legislature. Gibson v. Jenney, 15 Mass. 205. See "Common Law," Deo. Dig. (Key No.) § 11; Gent. Dig. § 12j "Statutes," Deo. Dig. {Key No.) § S39; Gent. Dig. § S20. 28McNemar v. Cohn, 115 111. App. 31; Thornburg v. American Strawboard -Co., 141 Ind. 443, 40 N. E. 1062, 50 Am. St. Rep. 334 ; Hamilton v. Jones, 125 Ind. 176, 25 N. B. 192 ; Hare v. Mclntire, 82 Me. 240, 19 Atl. 453, 8 L. R. A. 450, 17 Am. St. Rep. 476 ; Maryland & P. :e. Co. V. Silver, 110 Md. 510, 73 Atl. 297; Howes v. Newcomb, 146 Mass. 76,. 15 N. E. 123 ; Sarazin v. Union R. Co., 153 Mo. 479, 55 S. W. 92; State v. Dalton & Fay, 134 Mo. App. 517, 114 S. W. 1132 ; Perry v. Strawbridge, 209 Mo. 621, 108 S. W. 641, 16 L. R. A. (N. S.) 244, 123 Am. St. Rep. 510 ; Carley v. Liberty Hat Mfg. Co, (N. J. Sup.) 75 Atl. 543 ; Dean v. Metropolitan El. Ry. Co., 119 N. Y. 540, 23 N. E. 1054 ; Kellar v. James, 63 W. Va. 139, 59 S. E. 939, 14 368 " INTERPRETATION AFFECTED BT COMMON LAW (Ch. 9 This rule often led to hardship and injustice in individual cases, and by means of it the beneficent and progressive purposes of the legislative bodies were frequently balked. But for ages no one thought of questioning its propriety or validity. The rule owes its being to the great regard which was formerly entertained for the system of the common law. "To understand the meaning and present value of the rule that statutes in derogation of the common law are to be strictly construed, we must keep in mind the feelings of our ancestors in regard to that system of jurisprudence. They invariably spoke of it with a reverential awe, blended with a tender attachment." ^' "This has been the language of the courts," says Kent, "in every age ; and when we con- sider the constant, vehement, and exalted eulogy which the ancient sages bestowed upon, the common law as the per- fection of reason, and the best birthright and noblest in- heritance of the subject, we cannot be surprised at the great sanction given to this rule of construction." ^" The judges, in particular, manifested an enthusiastic devotion to the common law, which, it must be remembered, was very largely their own creation, and were prone to regard the interference of Parlialment, by way of abrogating or modi- fying its rules, with jealousy and distrust. It was therefore quite natural that they should set up for themselves a rule that all statutes which derogated from the force or appli- cability of their idolized system should be subjected to a strict interpretation. We shall presently endeavor to show that this rule no longer has any foundation in reason, and that it should be very considerably modified before it is justly applicable to the enactments of our legislative bodies. But before doing so it will be useful to adduce, some illus- trations to show the meaning of the rule and its application Xj. R. a. (N. S.) 1003 ; Northern Cent. Ey. Co. v. Green, 112 Md. 487, 76 Atl. 90; Thomas v. Maloney, 142 Mo. App. 193, 126 S. W. 522. See "Common Law," Dec. Diff. (Key No.) § 11; Cent. Dig. § IS; "Stat- utes," Deo. Dig. (Key No:) § 239; Cent. Dig. § S20. 2 9 Sedgwick, Stat. Constr. (2d Ed.) 273. See "Common Law," Dec. Dig. (Edy No.) § 11; Cent. Dig. § 12; "Statutes," Dec. Dig. (Key No) i 239; cent. Dig. § 320. ■ ''SO 1 Kent. Comm. 464. § 113) STATUTES IN DEROGATION OF COMMON LAW 369 in practice. It has been said, for example, that where a Statute abrogates a common-law right or confers a right not vested by the common law, it should not be so con- strued as to go beyond the letter, nor even to that extent, unless it appears to accord with the spirit and intent of the act.*^ Again, an act conferring summary jurisdiction or authorizing summary proceedings is very much out of the course of the common law, and ought to be strictly con- strued.'^ Thus, an act which gives a remedy by motion against public officers on their official bonds is in deroga- tion of the common law.'' Sd, also, statutes exempting por- tions of a debtor's property from liability for his debts are in derogation of the common law, and are not to be ex- tended by an equitaole construction.'* Again, the power to take lands of private owners for public purposes is con- sidered in derogation of that system of law, and hence to be strictly construed.'" A statute which grants to a city rights and powers unknown to the common law, as the 31 Dewey v. Goodenough, 56 Barb. (N. T.) 54. But see Loewy v. Gordon, 129 App. Div. 459, 114 N. Y. Supp. 211, holding that, when a statute giving a privilege unUno,wn to the common law, or en- larging a privilege, authorizes something to pe done as therein pro- tided, it impliedly forbids it to be done in any other way, even though that other way should be better. See "Common Law," Dec. Dig. (Key No.) § 11; Cent. Dig. § 12; "Statutes," Dec. Dig. (Key No.) § 239; Cent. Dig. § 320. 32McMullijQ V. McCreary, 54 Pa. 2.30; Smith v. Moffat, 1 Barb. (N. T.) 65; Loolier v. Halcomb, 4 Bing. 183. See "Common Law," Dec. Dig. {Key No.) § 11; Cent. Dig. § 12; "Statutes," Dec. Dig. (Key No.) f 2S9;Cent. Dig. § 320. 33 Hearn v. Bwin, 3 Cold. (Tenn.) 399. See "Common Law," Dec. Dig. (Key No.) § 11; Cent. Dig. § 12; "Statutes," Dec. Dig. (Key No.) § 239; Cent. Dig. § 320. 34 Rue V. Alter, 5 Denio (N. Y.) 119; Charless v. Lamberson, 1 Iowa, 435, 63 Am. Dec. 457. But see Howard v. Williams, 2 Pick. (Mass.) 80. See "Common Law," Dec. Dig. (Key No.) § 11; Cent. Dig. § 12; "Statutes," Dec. Dig. (Key No.) § 239; Cent. Dig. § 320. 35 Sharpe v. Spelr, 4 Hill (N. Y.) 76. And see Harvey v. Aurora & G. R. Co., 174 111. 295, 51 N. B. 163; Chesapeake & O. R. Co. v. Walker, 100 Va. 69, 40 S. E. 633 ; People ex rel. Washburn v. Com- mdn Council, etc., of City of Gloversville, 128 App. Div. 44, 112 N. Y. Siipp. 387;Johnsori City . Southern R. Co. v. South & W. R. Co., 148 N. O. 59, 61 S. B. 683; Puyallnp v. Lacey, 43 Wash. 110, 86 Black Int.L. — 24 370 INTEEPRETATION AFFECTED BY COMMON LAW (Oh. 9 power to donate the corporate funds in aid of a railroad, should be strictly construed." And a statute allowing per- sons to testify in their own cases, being in derogation of the common law, should be subjected to a strict interpre- tation.'^ So, also, "although it is competent to the legisla- ture to alter the rules of evidence so as to compel a party to give testimony against himself, it is nevertheless a power of such transcendent and overwhelming importance that a just regard for the liberties of the citizen should at all times induce the most cautious -and jealous exercise of it by the legislature; and especially should courts of justice anx- iously and narrowly watch it, and never, under any pre- tense whatever, extend it beyond the limits to which the strictest interpretation of the language of the legislature confines it in a particular case." '' So the West Virginia statute known as the "suitors' test-oath" act — providing that if a plaintiff would not take and file an oath of expurga- tion (an oath asserting his loyalty to the rightful govern- ment and his freedom from any participation in the rebel- lion) in the cases where such oath was required by the act, his suit should be dismissed — was held to be in derogation of the common law, and for that reason not to be extended beyond its express terms.'" Undoubtedly, many of the foregoing cases were correctly decided ; that is, it was right that the statutes severally before the courts in those cases should be subjected to a strict interpretation. But there was ample reason, in each case, for adopting such a con- Pac. 215. See "Common Law," Deo. Dig. (Key No.) § 11; Cent. Dig. § 12; "Statutes," Dec. Dig. (Key No.) § 239; Cent. Dig. § 320. 38 Indiana N. & S. Ry. Co. v. City of Attica, 56 Ind. 476. See "Common Law," Dec. Din- (Key No.) § 11; Cent. Dig. § 12; "Stat- utes," Dec. Dig. (Key No.) § 239; Cent. Dig. § 320. sTHotaling v. Cronise, 2 Cal. 60; Warner v. Fowler, 8 Md. 25. See "Common Law," Dec. Dig. (Key No.) § 11; Cent. Dig. § 12; "Statutes," Dec. Dig. (Key No.) § 239; Cent. Dig. § 320. 3 8 Broadbent v. State, 7 Md. 416. See "Common Law," Dec. Dig. (Key No.) § 11; Cent. Dig. § 12; "Statutes," Dec. Dig. (Key No.) S 239 • Cent. Dig. § 320. 3 Harrison v. Leach, 4 W. Va. 383. See "Common Law," Dec. Dig. (Key No.) § 11; Cent. Dig. § 12; "Statutes," Dec. Dig. (Key No) ; 239; Cent. Dig. § 320. § 113) STATUTES IN DEROGATION OF COMMON LAW 371 struction, without any reference to the effect of the statute upon the common law. In fact, as we have already stated, this rule is no longer supported by reason. "It is difficult," says Sedgwick, "if not impossible, now to understand this enthusiastic loyalty to a body of law, the most peculiar features of which the ac- tivity of the present generation has been largely occupied in uprooting and "destroying." *" American courts have no reason to attach any peculiar sanctity to the common law. Nor is there any reason why a statute abrogating the com- mon law should be any more strictly construed than a stat- ute abrogating another act of the same legislature. On this point we quote from an eminent authority as follows: "It would seem that modern courts and judges have re- peated the rule without any knowledge of its origin and without any thought of the enormous changes in the rela- tions between the courts and the legislature which have taken place since the rule was promulgated. In fact, the reason of the rule, or rather the occasion of it, for there never was any reason for it, has entirely passed away. It is a demonstrable proposition that there is hardly a rule or doctrine of positive practical jurisprudence in England or in the United States to-day which is not the result, in part at least, of legislation; hardly a rule or doctrine of the original common law which has not been abrogated, or changed, or modified by statute. Furthermore, it is con- ceded that the ancient conception as to the perfection of the common law was absurdly untrue. The great mass of its practical rules as to property, as to persons, as to ob- ligations, and as to remedies, were arbitrary, unjust, cum- bersome, and barbarous. For the last generation, the Eng- lish Parliament and our state legislatures have been busy in abolishing these common-law rules and in substituting new ones by means of statutes. That all this remedial work, all this benign and necessary legislative endeavor to create a jurisprudence scientific in form and adapted to the *o Sedgwick, Stat. Constr. (2d Ed.) 273. See "Common Law," Dec. Dig. (Key No.) § 11; Cent. Dig. § 12; "Statutes," Deo. Dig. (Key No.) i 239; Cent. Dig. § 320. 372 INTERPEETATION AFFECTED BY COMMON L^W (Oh. 9 wants of the . age,, should be hampered, and .sometimes thwarted, by a parrot-like repetition and unreflecting ap- plication of the old judicial maxim that statutes in deroga- tion of the common law are to be strictly construed is, to say the least, absurd." *^ , It has been said that a reason for this rule, may still be found in the fact that the common law found its most worthy expression in the safeguards which it threw around the rights of the individual, both in respect to its immediate protection to life, liberty, and property, and in respect to the rules and principles of procedure which it devised with a view to the protection of thosfe rights. But all the rights of persons which it is the duty of a free government to pre- serve and protect have been adequately guaranteed in our constitution^, national and state. Any legislative enact- ment encroaching upon them to an extent deemed incom- patible with the fullest measure of liberty which a republic- an government can secure will be annulled by the decisions of the courts, not with any reference to the common law, but because it is unconstitutional. And even where the 41 From Prof. PomerdJ''s note in Sedgwick, Stat. Constr. {2d Ed.) 270, 271. And see Caspar v. Lewin, 82 Kan. 604, 109 Pac. 657, in which it was held that, under the Kansas "Factory Act," the defense of contributory negligence could not be set up in an action for dam- ages by an injured employe. The court pointed out that, while the environment of the factory operative, and all the conditions sur- rounding him, had been completely changed by the introduction of modern machinery, his common-law rights and remedies remained unchanged, except in so far as altered by modern statutes regulating the relations of employer and employ^. The court further remarked that even the most radical factory acts were sometimes construed in such a manner as to effect no beneficent change in the law, or were subjected to a strict interpretation because in derogation of the com- mon law, but the court refused to take such a view of the statute before it. It was said : "The court cannot abolish the old rules and adopt others which shall' suit existing facts and remedy existing '3vils. That must be done by the legislature. But when tardy statutes are promulgated the courts should interpret them as fav- orably as their terms will allow, and not proceed to shackle them with the discredited common-law manacles." See "Oonumon Law," Dec. Dig. (Key No.) § 11; Cent. Dig. § IZj "Statutes," Dec. Dig. {Key No.) § 239; Cent. Dig. § 320. §113) STATUTES IN DEROGATION, OF COMMON law; 373 ■express prOsyisiorts of the constitution may not:, eft ter into 'the question, a statute infringing upon the just ;rights of the citizen, either in substance or in matters of procedures, would be subjected to a strict construction, in virtue of cer- tain other tules of interpretation, which will be noticed in a subsequent ^chapter, and which, unlUce the rule now under consideration, rest upon a solid and -substantial b^sis of reason. - In many of the states, this rule has been abolished by statute. Thus, the Civil Code of California provides that "the rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this Code. The Code establishes the law of this state re- specting the subjects to which it f elates, and, its provisions are to be liberally construed, with a view to effect its ob- jects and to promote justice." *^ And in other states, a ten- dency is observable to restrict and modify the rule very greatly before it is considered. applicable to modern statu- tory enactments. As adopted, and approved by the best authorities, it may now be stated as follows : Statutes in modification or derogation of the common law will not be presumed to alter it further than is expressly declared, or further than may be fairly arid reasonably inferred from the purpose and nature of the statute or from the language em- ployed in it. Such'acts will be liberally construed, if their nature is remedial, but their operation will not be extended by a forced construction. The presumption is that the *2Civ. C!oae, § 4. And see Code Civ. Proc. N. Y. § 3345; Rev. St. Ohio, 1908, § 4948; Code Civ. Proc. Mont. 1895, § 3453; McClain's Code Iowa, § 3733 ; Gen. St. Kan. 1§89, par. 7281 ; Code Civ. Proc. Neb. § 1; Bullitt's Civ. Code Ky. §733; Civ. Code Prac. Ark. 1894, § 7222; Civ. Code Colo. § 443; Code Civ. Proe. S. C. ,1902, § 448; 2 Hill's Ann. St. & Codes Wash. § 1707 ; Code Civ. Proc, Idaho, § 3; Rev. St. Wyo. 1887, § 2338; Darby v. Heagerty, 2 Idaho (Hash.) 282, 13 Pac. 85; In re Garr's Estate, 31 Utah, 57, 86 Pac. 757; Sutton V. Sutton, 87 Ky. 216, 8 S. W. 337, 10 Ky. Law Rep. 136, 12 Am. St. Rep. 476; Dillehay v. HIckey, 71 S. W. 1, 24 Ky. Law Rep. 1220 ; Berry v. Powell, 47 Tex. Civ. App. 599, 105 S. W. 345 ; Galves- ton, H. & S. A. Ry. Co. v. Walker, 48 Tex. Civ. App. 52, 106 S. W. 705. See "Common Law," Dec. Dig. (Key No.) § 11; Gent. Dig. § 12; "Statutes," Deo. Dig. (Kev No.) § 239; Gent. Dig. § 320. 374 INTERPRETATION AFFECTED BY COMMON LAW (Ch. 9 terms of the statute disclose the extent of the alteration or change it was designed to effect." The whole tendency of modern statutory construction, it should be observed, is to escape from the domination of fixed and unalterable rules, which often are arbitrary and tend only to becloud justice, and to seek,first and always, the actual intention and mean- ing of the legislature. "It is said," observes the court in Massachusetts, "that statutes made in derogation of the common law are to be strictly construed. This is true ; but they are also to be construed sensibly, and with a view to the object aimed at by the legislature."** Statutes dero- gating from the common law cannot, therefore, be properly extended by construction so as to embrace cases not fairly within the scope of the language used.*° Thus, a charge * 3 Shaw V. Railroad Co., 101 U. S. 557, 25 L. Ed. 892; Cook v. Meyer, 73 Ala. 580; McCarthy v. McCarthy, 20 App. D. C. 195; Davis V. Abstract Const. Co., 121 111. App. 121 ; Brown v. Rouse, 116 111. App. 513 ; Chicago, W. & V. Coal Co. v. People, 114 111. App. 75 ; Kalfus V. Kalfus, 12 Ky. Law Rep. 739 ; Wilbur v. Crane, 13 Pick. (Mass.) 284; Commonwealth v. Rumford Chemical Works, 16 Gray (Mass.) 231; Bandfleld v. Bandfield, 117 Mich. 80, 75 N. W. 287, 40 L. R. A. 757, 72 Am. St. Rep. 550 ; Sullivan v. La Crosse & M. Steam Packet Co., 10 Minn. 386 (Gil. 308) ; State v. Dalton & Fay, 134 Mo. App. 517, 114 S. W. 1132; Rozelle v. Harmon, 103 Mo. 339, 15 S. W. 432, 12 L. R. A. 187 ; Rosin v. Lidgerwood Mfg. Co., 89 App. Div. 245, 86 N. Y. Supp. 49; Keim v. City of Reading, 32 Pa. Super. Ct. 613; State V. Shapiro, 29 R. I. 133, 69 Atl. 340 ; Langlois v. Dunn Worsted Mills, 25 R. I. 645, 57 Atl. 910 ; State v. Cooper, 120 Tenn. 549, 113 S. W. 1048; State v. Hildreth, 82 Vt. 382, 74 Atl. 71, 24 L. R. A. (N. S.) 551; Northern Cent. Ry. Co. v. Green, 112 Md. 487, 76 Atl. 90; Coal & Coke Ry. Co. v. Conley (W. Va.) 67 S. E. 613; State v. Central Vermont R. Co., 81 Vt. 459, 71 Atl. 193, 21 L. R. A. (N. S.) 949; Norfolk & W. Ry. Co. v. Virginian Ry. Co., 110 Va. 631, 66 S. E. 863; Millhiser Mfg. Co. v. Gallego Mills Co., 101 Va. 579, 44 S. E. 760. But see In re Lord & Polk Chemical Co., 7 Del. Ch. 248, 44 Atl. 775, holding that, where a statute undertakes to regulate the conduct of a matter covered by the common law, and omits parts of it, the omission will be taken as an intention to repeal or abro- gate it. See "Common Law," Dec. Dig. {Key No.) § II; Gent. Dig. § 12; "Statuten," Dec. Dig. {Key No.) § 2S9; Cent. Dig. § 820. ** Gibson v. Jenney, 15 Mass. 205. See "Common Law," Dec. Dig. {Key No.) § 11; Cent. Dig. § 12; "Statutes," Dec. Dig. (Key No.) § 239; Cent. Dig. § 320. 45Dwelly V. Dwelly, 46 Me. 377. See "Common Law," Deo. Dig. § 113) STATUTES IN DEROGATION OF COMMON LAW 375 created by statute on property, as, a landlord's lien on the tenant's crops, will not, unless it is clearly expressed oir justly implied, be construed to have a superiority which the common law does not attach to similar charges.** There are also numerous cases of statutes: which might come un- der the influence of this rule, but which are also within the equally well settled rule that remedial statutes are to be liberally construed. For instance, an act of the legis- lature dispensing with the necessity of a seal and giving effect to instruments in writing according to the intention of the grantor, is remedial in its character, and hence should be liberally construed, in order to suppress the mischief in- tended to be remedied and to effectuate the purpose and intent of the law-makers ; but the courts also liold that such a law, being in derogation of the common law, should not be extended by construction in respect to its operation.*' Where a statute is equally susceptible of two constructions, one of which is in harmony with a settled principle of the common law, and the other in derogation of it, the courts will adopt the former.*' But some of the courts, breaking away from the artificial control of this rule, have established a principle which is much more in accordance with modern conditions and modern needs. They hold that a statute which is penal in its nature and in derogation of some right existing at common law should not be extended by con- struction beyond its natural meaning ; *° but that, if these (Key No.) § 11; Cent. Dig. § 12; "Statutes," Deo. Dig. (Key No.) § 239; Cent. Dig. § S20. *o Scaife v. Stovall, 67 Ala. 237. See "Common Law," Dec. Dig. {Key No.) § 11; Cent. Dig. § 12; "Statutes," Deo. Dig. (Key No.) § 239; Cent. Dig. § 820. *T Webb V. Mullins, 78 Ala. 111. See "Common Law," Dec. Dig. (Key No.) § 11; Cent. Dig. § 12; "Statutes," Dec. Dig. (Key No.) § 239; Cent. Dig. § S20. is Ryan V. Couch, 66 Ala. 244. See "Common Law," Dec. Dig. (Key No.) § 11; Cent. Dig. § 12; "Statutes," Dec. Dig. (Key No.) § 239; Gent. Dig. § 320. . o. ^ />*• n 49 Gunter v. Leckey, 30 Ala. 591. And see Mclnms v. State (Miss.) 52 South. 634, holding that a criminal statute in derogation of the common law must be strictly construed in favor of the accused. See 376 INtEEPRETATION AFFECTED BY COMMON LAW (Ch. 9 Conditions do not exist, they are not bound to put' a strict construction upon any law merely because it conflicts with the previously existing common law. For example, an act of Congress passed in 1851, entitled "An act to limit the liability of shipowners," declares that such owners shall not be liable for loss or damage "which may happen to any goods or merchandise which shall be shipped, taken in, or put on board any such ship or vessel, by reason or by means of any fire happening to or on board the said ship or vessel, unless such fire is caused by the design or neglect of such owner." It is held that although this statute changes the rule of the common law, it is not a penal statute, nor in derogation of natural right, so as to require a strict inter- pretation. It was enacted to rnodify the extreme rigor of the common law, and is therefore a remedial act. Hence it should be construed, if not liberally, at least fairly, to carry out the policy which it was enacted to promote ; and for this reason, the broad terms "any goods or merchandise" must be held to include the ordinary baggage of passen- gers. "'' This modification of the ancient rule simply places the common law on a level with the pre-existing statutory law of the state. As we have explained in an earlier chapter of this work, there is always a presumption against an in- tent to change the existing law; and this presumption ap- plies as well to the common law as to earlier statutes. To this extent, and only to this extent, the rule we are consid- ering may be. allowed a place and a value. And an atten- tive examination of the cases in which the stricter form of the rule has been appealed to as justifying the courts, in putting a restrictive interpretation upon the statutes be- fore them will generally show that the real reason for such an interpretation lay in the nature of the act itself, and not •Vomrrwn Law," Deo. Dig. (Key No.) § 11; Crvt. Dig. § 12; "Stat- utes," Dec. Dig. (Key No.) § SS9; Cent. Dig. § S20. 6 Chamberlain v. Western Transp. Co., 44 N. T. 305, 4 Am. Rep. 681. And see The Warkworth, L. R. 9 P. Div. 20. See •'Common Law," Dec. Dig. (Key No.) § 11; Cent. Dig. § IS; "Statutes," Dee. Did. (Key No.) § 230; Cent. Dig.% SBO. § 113) STATUTES IN DEROGATION OF COMMON LAW; 377 in any necessity of observing respect for. the. common law. For example, the statutes authorizing the seizure and sale of land for the nonpayment of taxes are usually subjected to a strict construction. That they are in derogation of the common law has nothing to do with the case, although that cpnsideration is often put forward as the reason for giving them such an interpretation."^ The true reason is. that such laws put the citizen to the danger of being deprived of his property without a judicial investigation, and invest administrative officers with a power to sell and dispose of what they do not own. Married Women's Property Acts A good illustration of the mistaken application of the rule requiring the strict construction of statutes in deroga- tion of the common law, and of the way in which the prog- ress of the law has been hampered by the rule,,is found in the case of the statutes enabling married women to deal freely with their separate property and to make contracts respecting the same. In this regard the common law was harsh and unjust. Moreover, it had become utterly un- suited to the modern conditions of life and the modern prog- ress of ideas. Yet when the legislatures began to take steps for the enfranchisement of the feme covert, the courts quite generally held that these remedial and beneficent stat- utes, because they were in derogation of the comrnon law, must be subjected to a strict construction, and the same rule is laid down in some quite recent cases. °^ In some instances, these decisions were afterwards overruled." In 51 See, for example, Sibley v. Smith, 2 Mich. 486; Newell v. Wheeler, 48 N. T. 486; Dequasie v. Harris, 16 W. Ya. 345. See "eommon Law," Dec. Dig. (Key No.) § 11; Gent. Dig. § 12; "Statutes," Deo. Dig. (Key No.) § 2S9; Cent. Dig. § S20. 6 2 Brown v. Fifield, 4 Mich. 322; Graham v. Van Wyck, 14 Barb. ' (N. T.) 531 ; Perkins v. Perkins, 62 Barb. (N. Y.) 531 ; Fitzgerald v. Quann, 109 N. Y. 441, 17 N. E. 354 ; Bertles v. Nunan, 92 N. Y. 152, 44 Ain. Eep. 361 ; Compton v. Pierson, 28 N. J. Eq. 229 ; Thompson V. Weller, 85 111. 197. -See "Common Law," Dec. Dig. (Key No.) § 11; Gent. Dig. i 12; "Statutes," Deo. Dig. (Key No.) § 239; Cent. Dig. § 63 For instance, De Vries v. Conklin, 22 Mich. 255, holds that a 378 INTERPRETATION AFFECTED BY COMMON LAW (Ch. 9 many more, it was necessary for the legislature to coun- teract their effects by additional legislation, extending still further the liberal features of this class of laws. In some cases the courts have applied to such statutes the modified form of the rule of which we have spoken above. Thus, the Supreme Court of Indiana, speaking of such an act, says: "While the provisions of the act must be liberally construed, according to their true intent and meaning, yet, as they are in derogation of the common-law rule, they are not to be enlarged by construction beyond the plain mean- ing of the language used by the law-making power in their enactment." "* Mechanics' Lien Laws A similar conflict of authority has attended the construc- tion of the statutes creating mechanics' liens and provid- ing for their enforcement. Many of the courts have held that these laws are to be construed strictly, because they are in derogation of the common law.'' "This court has repeatedly declared in substance that these acts are innova- tions upon the common law over rights of property, by per- mitting the institution of private charges on property with- out or against the owner's assent, and without any judicial or other official sanction, and by authorizing an enforcement of such charges by unusual and summary methods, and that the provisions of these enactments cannot be extended in their operation and effect beyond the plain and fair sense statute empowering a married woman to deal freely with her sep- arate property, as if she were sole, and to make contracts respecting It, Is a remedial act, and is to be construed liberally to effectuate its purpose, thus OTerruling Brown v. Fifield, 4 Mich. 322. See "Com- mon Law," Deo. Dig. [Key No.) § 11; Cent. Dig. § IS; "Statutes," Deo. Dig. {Key No.) § 239; Cent. Dig. § 320. 0* Haas V. Shaw, 91 Ind. 384, 46 Am. Rep. 607. And see Cook v. Meyer, 73 Ala. 580; Moore v. Cornell, 68 Pa. 320. See "Common Law," Dec. Dig. (Key No.) § 11; Cent. Dig. § 12; "Statutes," Deo. Dig. (Key No.) § 239; Cent. Dig. § 320. BO Lynch v. Oronan, 6 Gray (Mass.) 531; Wade v. Reitz, 18 Ind. 307 ; Rothgerber v. Dupuy, 64 111. 452. See "Common Law," Dec. Dig. (Key No.) § 11; Cent. Dig. § 12; "Statutes," Dec. Dig. (Key No.) § 239; Gent. Dig. § 320. § 113) STATUTES IN DERO0ATIQN OF COMMOI? LAW 379 of the terms, and that parties asserting liens or titles rest- ing upon them must '. bring themselves and their titles plainly and distinctly within these terms, and affirmatively make out that a lien was originally effected regularly and thereafter kept up, and that every essential statutory step either in the creation, continuance, or enforcement of the lien has been duly taken." °' But on the other hand, the courts in several of the other states have taken an exactly opposite view of these statutes. Thus, for example, the Su- preme Court of Ohio says: "Looking thus at the object of the statute, and perceiving it to be one of an equitable character and beneficent tendency, section 7 being directory as to the mode of securing the object of the statute, the same ought to be liberally construed, for the furtherance and attainment of such object." " B« Wagar v. Briscoe, 38 Mich. 587. And see Chapin v. Persse & Brooks Paper WorEs, 3Q Conn. 461, 79 Am. Dec. 263. See "Common Law," Dee. Big. (Key No.) § il; Cent. Dig. § 12; "Statutes," Deo. Dig. {Key No.) § 239; Cent. Dig. § 320. »T Thomas v. Hnesman, 10 Ohio St. 152. See, also, Oster v. Rabenau, 46 Mo. 595 ; Collins Granite Co. v. Devereus, 72 Me. 422 ; Barnes v. Thompson, 2 Swan (Tenn.) 313; Buchanan v. Smith, 43 Miss. 90; Minor v. Marshall, 6 N. M. 194, 27 Pac. 481. See "Com- mon Law," Dec. Dig. (Key No.) § 11; Cent. Dig. § X2; "Statutes," Deo. Dig. (Key No.) § S39; Cent. Dig. § 320. 380 EBTEOSPBCTIVE INTERPRETATION ' (Oh. 10 CHAPTER X KETROSPECTIVE INTERPBBTATION 114. Definition. 115-116. Ctonstltutional Considerations. 117. The General Rule. 118. Statutes Impairing Vested Rights. ^ 119. Statutes Imposing Penalties and Liabilities. 120. Remedial Statutes. 121. Statutes Regulating Procedure. 122-123. Curative Statutes. 124-125. Repealing Acts. DEFINITION 114. A retrospective law is one which looks backward or contemplates the past ; one which is made to affect acts or transactions occurring before it came into effect, or rights already accrued, and which imparts to them characteristics, or ascribes to them effects, which were not inherent in their nature in the con- templation of the law as it stood at the time of their occurrence. The foregoing definition is the one generally accepted by the courts as descriptive of a retrospective (or retroactive) law, in the wide and general sense of the term.^ In dis- cussions concerning the constitutional validity of particu- lar statutes, however, and in relation to constitutional pro- hibitions against the enactment of retrospective laws gen- erally, the term is taken in a somewhat narrower sense, and is applied to laws which take away or impair vested rights acquired under existing laws, or which impair the 1 Keith V. Guedry (Tex. Civ. App.) 114 S. W. 392; State ex rel American Savings Union v. Whittlesey, 17 Wtish. 447, 50 Pac. 119 Merrill v. Sherburne, 1 N. H. 199, 8 Am. Dec. 52 ; Chicago, B. & Q. R Co. V. State, 47 Neb. 549, 66 N. W. 624, 41 L. R. A. 481, 53 Am. St, Rep. 557; De Cordova v. City of Galveston, 4 Tex. 470. See "Stat utes," Dec. Dig. (Key No.) § S61; Cent. Dig. § SJ,2; "Oonstituiionat Law," Dec Dig. (Key No.) §§ 186-SOS; Cent. Dig. §§ 526-590 I 114) DEFINITION 381 obligation of contracts, or which create a new Gbligationv impose a new duty, or attach a new disability in respect to traiisiactions or considerations already past." Under either definition, retrospective interpretation of a statute is sUch as holds it to be applicable to, and determinative of, a trang^' action or a state of facts wholly completed before the date of its enactment; while prospective interpretation denies to the statute any applicability to such facts or transactions, and restricts its operation to such facts and causes as shall arise after its passage. But a statute cannot properly be called retrospective merely because a part of the requisites for its operation may be drawn from a time antecedent to its passage,^, nor be- cause its operation may in a given case depend on an oc- currence anterior to that date.* Thus,, for example, an act is not retrospective which establishes the death of a hus-; band or wife as the future event on which it is to operate, although, in the particular case, the relation of husband 2 Sturges V. Carter, 114 U. S. 511, 5 Sup. Ct. 1014, 29 L. Ed. 240; Society for Propagation of the Gospel v. Wheeler, 2 Gall. 105, Fed. Gas. No. 13,156 ; Perry v. City of Denver, 27 Colo. 93, 59 Pac. 747 ; Deland v. Platte County (C. C.) 54 Fed. 823; Dodin v. Dodin, 17, Misc. Rep. 35, 40 N. T. Supp. 748; Gaston v. Merriam, 33 Minn. 271, 22 N. W. 614; Bell v. Perkins, Peck (Tenn.) 261, 14 Am. Dec. 745; Ralrden v. Holden, 15 Ohio St. 207 ; Commissioners of -Hamilton County V. Rosche, 50 Ohio St. 103, 33 N. B. 408, 19 L. R. A. 584, 40 Ain. St. Rep. 653 ; Leete v. State Bank of St. Louis, 115 Mo. 184, 21 S. W. 788; Simpson v. City Sav. Bank, 56 N. H. 466, 22 Am. Rep. 491. See "Statutes," Dec. Dig. (Key No.) §§ 261-278; Cent. Dig. §§ 342-377; "Constitutional Law," Deb: Dig. (Key No.) §§ 186-203; Cent. Dig. §§ 526-590. 3 Queen v. Inhabitants of St. Mary, 12 Q; B. 120 ; McDougald v. New, York Life Ins. Co., 146 Fed. 674, 77 C. C. A. 100; Chicago, 5- & Q. R. Co. V. State, 47 Neb. 549, 66 N. W. 624, 41 L. R. A. 481, 53 Am. St. Rep. 557. See "Statutes," Dee. Dig. (Key No.) §§ 261-278; Cent, Dig. §§ 342-377; "Constitutional Law," Dec. Dig. (Key No.) §§ 186-203; Cent. Dig. §§ 526-590. 4 In re Scott (D. C.) 126 Fed. 981; United States v. Trans-Mis- souri Freight Ass'n, 166 U. S. 290, 17 Sup. Ct. 540, '41 L. Ed. 1007; Tremont & Suffolk Mills v. City of L6well, 165 Mass. 265, 42 N. E. 1134; Wade t. Drexel, 60 Minn. 164, 62 N. W. 261. Bee "Statutes," Deo. Dig. (Key No.) §§ 261-278; Cent. Dig. §§ 3-'f2-377; "GoMtitu- tional Law," Dec. Dig. (Key No.) §§ 186-203; Cent: Dig. %%'526-590. 382 RETROSPECTIVE INTERPRETATION (Ch. 10 and wife existed before the taking effect of the act." Nor can this term be applied to a statute, though it acts on past transactions, or an existing state of facts, if it gives to per- sons concerned an opportunity to comply with its direc- tions before its penalties attach.' CONSTITUTIONAL CONSIDERATIONS 115. If a retrospective statute is in the naturd of an ex post facto law or a bill of attainder, or if it impairs the obligation of contracts or divests vested rights, or if all retrospective laws are specifically forbid- den by the constitution of the particular state, such an act vail be unconstitutional and void, but not otherwise. 116. If giving to a statute a retrospective operation would make it conflict vwth the constitution, in one or other of the ways above mentioned, such a result will be avoided, if possible, by construction. Bills of attainder and ex post facto laws are both specifi- cally prohibited by the federal constitution? They are both included in the category of retrospective laws. A bill of at- tainder or an ex post facto law is always retrospective; but not all retrospective laws are bills of attainder or ex post facto laws. The latter terms, according to the famil- iar doctrine of constitutional law, relate only to the impo- sition of pains or penalties or the conduct of criminal trials.'' Noel V. Ewing, 9 Ind. 37. See "Statutes," Dec. Dig. (Key No.) §§ 261-278; Cent. Dig. §§ 343-377; "Constitutional Law," Dec. Dig. {Key No.) §§ 186-203; Gent. Dig. §§ 528-590. 8 State ex rel. Hickman v. Preferred Tontine Mercantile Co., 184 Mo. 160, 82 S. W. 1075. See "Statutes," Dec. Dig. {Key No.) %% 261- 278; Cent. Dig. §§ 342-377; "Constitutional Law," Dec. Dig. {Key No.) §§ 186-203; Cent. Dig. §§ 526-590. 7 An ex post facto law is one which makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action ; or which aggravates a crime, or makes it greater than it was when committed; or which changes the punish- ment and inflicts a greater punishment than the law annexed to the §§ 115-116) CONSTITUTIONAL CONSIDERATIONS 383 Again, all laws which impair the obligation of contracts are retroactive. For if they related only to future contracts, they could not be said, to have this effect, because contracts are made with reference to existing laws. Laws which have the effect of divesting vested rights are also of this charac- ter; for the phrase "vested right" implies something set- tled or accrued in the past, on which the new statute is to operate.' There are also numerous classes of retrospective laws which are constitutionally objectionable for the rea- son that they exceed the powers of the legislature or in- vade the province of one of the other departments of the government. But unless the law iti question belongs to one of the classes mentioned above, or is open to some one of the objections described, the mere fact that it is retroac- tive in its operation will not suffice to justify the courts in declaring it unconstitutional, unless all laws of that charac- crime when it was committed ; or wliich alters the legal rules of evidence, and receives less or different testimony than the law re- quired at the time of the commission of the offense, in order to con- vict the offender. An ex post facto law is necessarily, as the words Imply, a retroactive law. If any law is intended to operate only upon future actions or future trials, it cannot be called ex post facto. And again, the term is restricted to penal and criminal pro- ceedings which affect life or liberty or may impose punishments or forfeitures. It has no applicability to purely civil proceedings which affect private rights only, although such proceedings, for their re- troactive effect, may be ilnlawful. See, generally, Calder v. Bull, 3 Dall. 390, 1 L. Ed. 648 ; Kring v. Missouri, 107 U. S. 221, 2 Sup. Ct. 443, 27 L. Ed. 506; Cummings v. Missouri, 4 Wall. 277, 18 L. Ed. 356; Ex parte Garland, 4 Wall. 333, 18 L. Ed. 366; Boston v. Cum- mins, 16 Ga. 102, 60 Am. Dec. 717; Watson v. Mercer, 8 Pet. 88, 8 L. Ed. 876; Baltimore & S. R. Co. v. Nesbit, 10 How. 395, 13 L. Ed. 469; Caldwell v. State, 55 Ala. 133; Hart v. State, 40 Ala. 32, 88 Am. Dec. 7.52. See "Statutes," Dec. Dig. (Key No.) §§ 261-278; Cent. Dig. §§ 342-377; "Constitutional Law," Dee. Dig. (Key No.) §§ 186- 203; Cent. Dig. §§ 526-590. 8 Bailes v. Daly, 146 Ala. 628, 40 South. 420 ; Martin v. Oskaloosa (Iowa) 99 N. W. 557 ; Porter v. Glenn, 87 111. App. 106 ; Gladney v. Sydnor, 172 Mo. 318, 72 S. W. 854, 60 L. R. A. 880, 95 Am. St. Rep. 517 ; Butte & B. Consol. Min. Co. v. Montana Ore Purchasing Co., 25 Mont 41, 63 Pac. 825; Merchants' Bank of Danville v. Ballou, 98 Va. 112, 32 S. E. 481, 44 ly. R. A. 306, 81 Am. St. Rep. 715. See "Stat- ute's;' Dec. Dig. (Key No.) § 265; Cent. Dig. §§ J^S, 347. 384 EETEOSPECTIVB INTEEPRETA.TION (Ch. 10 ter are prohibited by the constitution of the particular state." No such prohibition is found in the federal con- stitution. If a state statute does not impair the obligation of contracts or partake of the nature of a bill of attaindei or an ex post facto law, its retrospective character does not make it inconsistent with the national constitution.^* . It will therefore be seen that the question of a retrospec- tive interpretation and the question of constitutionality are not coincident. The primary question is as to the meaning and intention of the legislature. When the court is called upon to decide whether it was intended that a given statute should have a retroactive operation or not, the further ques- tion of its constitutional validity, conceding to it such op- eration, may or may not be involved. But when it is seen that the statute, if allowed to retroact, will impair the ob- ligation of contracts, or violate the rule against ex post facto laws, or otherwise conflict with the constitution, then the alternative is between construing it as prospective only and adjudging it to be void. In that event, the courts will struggle hard against the necessity of putting a retrospec- tive interpretation upon the law. We have already seen^* that the courts are bound to presume all legislative enact^ ments to be valid ; that it is never to be presumed that the lawmaking authority has exceeded its rightful powers; » Cahen v. Brewster, 203 U. S. 543, 27 Sup. Ct. 174, 51 L. Ed. 310 ; Orient Ins. Co. v. Daggs, 172 U. S. 557, 19 Sup. Ct. 281, 43 L. Ed. 552; Plummer v. Northern. Pac. Ry. Co. (C. C.) 152 Fed., 206; At- wood V. Buckingham, 78 Conn. 428, 62 Atl. 616 ; Kiskaddon v. DoddS,-- 21 Pa. Super. Ct. 351 ; Whitlock v. Hawkins, 105 Va. 242, 53 S. b; 401; State ex rel. American Savings Union v. Whittlesey, 17 Wash. 447, 50 Pae. 119. See "Statutes," Deo. Dig. (Key 2^0.) '§§ S6I-278; Cent. Dig. §§ S//2-S77; "Constitutional Law," Dec. Dig. (Key No.) §§ 186-20S; Cent. Dig. §§ 326-590. 10 Satterlee v. Matthewson, 2 Pet. 380, 7 L. Ed. 458; Reed v. Beall, 42 Miss. 472 ; Burwell v. Tullis, 12 Minn. 572 (Gil. 486) ; Smith v. Van Gilder, 26 Ark. 527; Weister v.. Hade, 52 Pa. 474; Bay v. Gage, 36 Barb. (N. X.) 447; People v. Board of Sup'rs of Ulster County, 63 Barb. (N. Y.) 83. See "Statutes," Dec. Dig. (Key No.) §§ Z61-S78; Cent. Dig. §§ 342-S77; "Constitutional Law," Deo. Dig (Key No.) §§ 186-203; Cent. Dig. §§ 526-590. 11 Ante, p. 110. § 117} ' THE GBNKBAL EULE 385 and that any conflict between the statute and the constitu- tion is to be avoided by construction, if that is possible. Hence if a retrospective interpretation would make the stat- ute unconstitutional, the judges will not so interpret it un- less the intention of the legislature in that regard has been expressed in terms so plain and unmistakable that there is no possibility of any choice of meanings. "Courts will not give to a law a retrospective operation", even where they might do so without violation of the constitution, unless the intention of the legislature is clearly expressed in favor of such retrospective operation. This rule applies with the greater force when, by giving the law such effect, a serious question would be raised as to the constitutionality of the act. Where a statute can, consistent with the rules of in- terpretation, be so construed as to harmonize with the con- stitution, such construction will be adopted by the courts, rather than one which will raise an apparent conflict be; tween the law and the constitution." ^^ THE GENERAL RULE 117. Except in the case of remedial statutes and those which relate to procedure in the courts, it is a gen- eral rule that acts of the legislature will not be so construed as to make them operate retrospec- tively, unless the legislature has explicity de- clared its intetition that they should so operate, or unless such intention appears by necessary impli- cations from the nature and words of the act so clearly as to leave no room for a reasonable doubt on, the subject.^* 12 Town of La Salle v. Blanchard, 1 111. App. 635; Stein v. Han- son, 99 Minn. 387, 109 N. W. 821; Supreme Council of Royal Ar- canum V. Heitzman, 140 Mo. App. 105, 120 S. W. 628 ; In re Rich- mond's Estate, 9 Cal. App. 402, 99 Pac. 554; Anheuser-Busch Brew- ing Ass'n V. Bond, 66 Fed. 653, 13 0. C. A. 665 ; Walker v. State, 46 Neb. 25, 64 N. "W. 357. See "Statutes," Deo. Dig. (Key No.) §§ 261- 218; Cent. Dig. §§ 3^42-377. 13 Vnited States. Wrightman v. Boone County, 88 Fed. 435, 31 O. O. A. 570 ; United States v. Jackson, 143 Fed. 783, 75 0. O. Black Int.L. — 25 386 KBTROSPBCTIVE INTERPRETATION (Ch. 10 The reason for this rule is the general tendency to regard . retrospective laws as dangerous to liberty and private rights, on account of their liability to unsettle vested rights A. 41; United States v. Atchison, T. & S. F. R. Co. (C. C.) 142 Fed. 176; Jasper v. United States, 43 Ot. CI. 368; Rich v. United States, 33 Ct. CI. 191; Warren Mfg., Co. v. Etna Ins. Co., 2 Paine, 601, Fed. Cas. No. 17,206; United States v. Starr, Hempst. 469, Fed. Cas. No. 16,379 ; Costln v. Corporation of Washington, 2 Cranch, a C. 254, Fed. Cas. No. 3,266. Alabama. Leahart v. Deedmeyer, 158 Ala. 295, 48 South. 371 ; Bnglehardt v. State, 88 Ala. 100, 7 South. 154 ; Barnes v. Mayor, etc., of Aloblle, 19 Ala. 707. Arizona. Cum- mlngs V. Rosenberg, 100 Pac. 810. Arkansas. State v. Wallls, 57 Ark. 64, 20 S. W. 811. Colorado. City of Colorado Springs v. Ne- ville, 42 Colo. 219, 93 Pac. 1096; Edelstein v. Carllle, 33 Colo. 54, 78 Pac. 680. District of Columbia. De Ferrantl v. Lyndmark, 30 App. T>. C. 417; Brown v. Grand Fountain of the United Order of True Reformers, 28 App. D. C. 200; Ohio Nat. Bank v. Berlin, 26 App. D. C. 218. Illinois. Bauer Grocery Co. v. Zelle, 172 111. 407, 50 N. E. 238 ; Cleary v. Hoobler, 207 111. 97, 69 N. E. 967 ; Porter v. Glenn, 87 111. App. 106 ; Halpin v. Prosperity Loan & Building Ass'n, 108 111. App. 316; People v. Lower, 236 111. 608, 86 N. E. 577; People V. Gage, 233 111. 447, 84 N. E. 616; O'Donnell v. Healy, 134 111. App. 187; Brennan v. Electrical Installation Co., 120 111. App. 461; Aultman & Taylor Machinery Co. v. Fish, 120 111. App. 314; Guard ex dem. Robinson v. Rowan, 3 111. 499 ; Jimison v. Adams County, 130 111. 558, 22 N. E. 829 ; Bruce v. Schuyler, 9 111. 221, 46 Am. Dec. 447. Indiana. Board of Com'rs of Morgan County v. Pritchett, 85 Ind. 68; City of Connersville v. Connersville Hydraulic Co., 86 Ind. 184; Maxwell v. Board of Com'rs of Fulton County, 119 Ind. 20, 19 N. E. 617 ; Aurora & L. Turnpike Co. v. Holthouse, 7 Ind. 59 ; Hopkins v. Jones, 22 Ind. 310 ; Pritchard v. Spencer, 2 Ind. 486. Kansas. , Board of Com'rs of Douglass County v. Woodward, 73 Kan. 238, 84 Pac. 1028. Kentucky. Lawrence v. City of Louisville, 96 Ky. 595, 29 S. W. 450, 27 L. R. A. 560, 49 Am. St. Rep. 309 ; Louisville & N. R. Co. v. Mottley, 133 Ky. 652, 118 S. W. 982;. Long v City of Louisville, 97 Ky. 364, 30 S. W. 987. Louisiana. Cassard v. Tracy, 52 La. Ann. 835, 27 South. 368, 49 L. R. A. 272 ; McGeehan v. Burke, 37 La. Ann. 156; Saunders v. Carroll, 12 La. Ann. 793. Maine. In re Pope's Estate, 103 Me. 382, 69 Atl. 616; Carr v. Jud- klns, 102 Me. 506, 67 Atl. 569 ; Dyer v. City of Belfast, 88 Me. 140, 33 Atl. 790 ; Hastings v. Lane, 15 Me. 134 ; Torrey v. Corliss, 33 Me. 333 ; Appeal of Deake, 80 Me. 50, 12 Atl. 790. Massachusetts. City of Haverhill v. City of Marlborough, 187 Mass. 150, 72 N. E. 943; Commonwealth v. Inhabitants of Sudbury, 106 Mass. 268; Whitman V. Hapgood, 10 Mass. 437; Inhabitants of Somerset v. Inhabitants of Dighton, 12 Mass. 383; Inhabitants of Medford v. Learned, 16 § 117) THE GENERAL RULE 387 or disturb the legal effect of prior transactions. "Retro- spective laws being in their nature odious, it ought never to be presumed the legislature intended to pass them, Mass. 215; Garfield v. Bemis, 2 Allen, 445. Midhigan. In re Lam- breeht, 137 Mich. 450, 100 N. W. 606 ; Phillips v. Township of New Buffalo, 68 Mich. 217, 35 N. W. 918 ; Maxwell v. Bay City Bridge Co., 46 Mich. 278, 9 N. W. 410; Board of Sup'rs of Arenac County v. Board of Sup'rs of Iosco County, 158 Mich. 344, 122 N. W. 629; Smith V. Humphrey, 20 Mich. 398. Minnesota^. State v. Hill, 32 Minn. 275, 20 N. W. 196 ; Brown v. Hughes, 89 Minn. 150, 94 N. W. 438. Mississippi. Brown v. Wilcox, 14 Sniedes & M. 127 ; Hooker v. Hooker, 10 Smedes & M. 599; Garrett v. Beaumont, 24 Miss. 377. Missouri. State ex rel. Martin v. WofCord, 121 Mo. 61, 25 S. W. 851 ; Jamison v. Zausch, 227 Mo. 406, 126 S. W. 1023 ; State ex rel. Scott V. Dirckx, 211 Mo. 568, 111 S. W. 1 ; State ex rel. City of Mo- berly v. Ferguson, 62 Mo. 77; State ex rel. Blakeman v. Hays, 52 Mo. 578 ; State ex rel. Parker v. Thompson, 41 Mo. 25. New Hamp- shire. McMillan v. Noyes, 75 N. H. 258, 72 Atl. 759. New Jersey. Williams v. Brokaw, 74 N. J. Bq. 561, 70 A!tl. 665 ; Allen v. Com'rs of Taxation for Bernards Tp., 57 N. J. Law, 303, 31 Atl. 219; Fre- linghuysen v. Town of Morristown, 77 N. J. Law, 493, 72 Atl. 2; Citizens' Gaslight Co. v. Alden, 44 N. J. Law, 648; Warshung v. Hunt, 47 N. J. Law, 256; State ex rel. Baker v. Scudder, 32 N. J. Law, 203. New York. People v. Board of Sup'rs of Columbia County, 43 N. Y. 130 ; Wade 7. Straok, 1 Hun, 96 ; Wood y. Oakley, 11 Paige, 400; Rhodes v. Sperry c& Hutchinson Co., 193 N. Y. -223, 85 N. E. 1097, 127 Am. St Eep. 945. North Carolina. State v. Prid- gen, 151 N. C. 651, 65 S. B. 617. North Dakota. Adams & Freese Co. V. Kenoyer, 17 N. D. 302, 116 N. W. 98. 16 L. R. A. (N. S.) 681. Oklalwma. Anderson v. Ritterbusch, 22 Okl. 761, 98 Pac. 1002. Pennsylvania. Taylor v. Mitchell, 57 Pa. 209 ; Dewart v. Purdy, 29 Pa. 113; Becker's Appeal, 27 Pa. 52; Horn & Brannen Mfg. Co. t. Steelman, 215 Pa. 187, 64 Atl. 409; Martin, v. Greenwood, 27 Pa. Super. Ct. 245; Barnesboro Borough v. Speice, 40 Pa. Super. Ct. 609; Smith v. Illinois Cent. R. Co., 36 Pa. Super. Ct. 584. South Carolina. BX parte Graham, 13 Rich. Law, 277 ; Mutual Aid, Loan & Investment Co. v. Logan, 55 S. C. 295, 33 S. E. 372. South Dakota. American Inv. Co. of Bmmetsburg v'. Thayer, 7 S. D. 72, 63 N. W. 233. Tennessee. Diigger v. Mechanics' & Traders' Ins. Co., 95 Tenn. 245 32 S W. 5, 28 L. R. A. 796. rcmas. Texas & N. O. R. Co. v. Wells-^Pargo Express Co., 101 Tex. 564, 110 S. W. 38. Virginia. Bur- ton V. Frank A. Seifert Plastic Relief Co., 108 Va. 338, 61 S. E. 933; Campbell v. Nonpareil Fire Brick & Kaolin Co., 75 Va. 291 ; Crigler's Committee v. Alexander's Bx'r, 33 Grat. 674; Brown's Committee v. Western State Hospital, 110 Va. 321, 66 S. B. 48; Swift & Co. v. City of Newport News, 105 Va. 108, 52 S. E. 821, 3 L. R. A. (N. S.) 388 EETROSPECTIVE INTERPRETATION (Ch. 10 " 14 where the words will admit of any other meaning. "Legislation of this character is exceedingly liable to abuse, and it is a sound rule of construction that a statute should have a prospective operation only, unless its terms show clearly a legislative intention that it should operate retrospectively." ^° While it is true, as stated in the pre- ceding section, that many statutes would be unconstitu- tional if given a retrospective application, and . that the en- deavor will be made to avoid this effect by consti-uction, yet the general rule now under consideration does not de- pend upon the question of constitutionality or unconstitu- tionality in the particular case. Independently of the or- ganic law — that is, even in cases where a retrospective con- struction would not make the statute obnoxious to any con- stitutional provision — it will not be so construed, except in the case of a purely remedial law, unless the legislative in- tention in that regard is perfectly plain.^' 404; Merchants' Bank of Danville v. Ballou, 98 Va. 112, 32 S. E. 481, 44 L. R. A., 306, 81 Am. St. Rep. 715; Duval v. Malone, 14 Grat. 24. West Virgima. Burns v. Hays, 44 W. Va. 503, 30 S. E. 101; Rogers v. Lynch, 44 W. Va. 94, 29 S. E. 507 ; Mnrdock v. Franklin Ins. Co., 33 W. Va. 407, 10 S. E. 777, 7 L. R. A. 572 ; Barker v. Hin- ton, 62 W. Va. 639, .59 S. E. 614. Wisconsin. Quinn v. Chicago, M. & St. P. Ry. Co., 141 Wis. 497, 124 N. W. 653 ; Finney v. Ackei-man, 21 Wis. 268 ; Seamans v. Carter, 15 Wis. 548, 82 Am. Dec. 696. Eng- land. Moon V. Dnrden, 2 Bxch. 22; Pardo v. Bingham, L. R. 4 Gh. App. 735 ; Queen v. Guardians of Ipswich Union, L. R. 2 Q. B. Div. 269; Gardner v. Lucas, L. R. 3 App. Cas. 582. See "Statutes," Dec. Dig. (Key No.) §§ 261-278; Cent. Dig. §§ 8^2-311; "Constitutional Law," Dec. Dig. (Key No.) §§ 186-203; Cent. Dig. §§ 526-.590. 1* Underwood v. Lilly, 10 Serg. & R. (Pa.) 97, 101. See "Statutes," Dec. Dig. {Key No.) §§ 261-218; Cent. Dig. §1 S42-S77; "Constitu- tional Law," Dec. Dig. {Key No.) §§ 1S6-203; Cent. Dig. §§ 526-590. 15 Cooley, Const. Lim. 370. This rule against retroactive laws is not only of great antiquity and dignity in the English law, but is also recognized in various foreign systems. It was a part pf the imperial Roman law. "Leges et constitutiones futuris certum est dare formam negotiis, non ad facta prjeterita revocarl, nisi nomina- tim et de praeterito tempore et adhuc pendentibus negotiis cautum sit." CodeX, lib. I, tit. 14, § 7. So, also, the Civil Code of France, art. 2, provides "La loi ne dispose que pour I'avenir ; elle ii'a point d'effet retroactif." 10 McFadden v. Blocker, 2 Ind. T. 260, 48 S. W. 1043, 58 L. R. A. § 117) ^ THE GENERAL RULE 389' Generally, when the legislature designs that a statute shall operate upon past or present facts or transactions, as well as upon future transactions, ■ its intention in that re^ gard will be expressed by apt words; For example, a stat-; ute making certain provisions in relation to "all contracts; which have been heretofore made or which shall be here- after made" would be explicitly retroactive. So also would' a law regulating the rights and duties of "all persons now or hereafter engaging in the business of common carriers." In a statute relating to judgments "rendered or to be reur dered," the use of the word "rendered" demonstrates the legislative intention to make it operative upon judgments already entered when the statute was enacted.^' On the other hand, the word "shall," as used in a statute, ordina- rily applies only to something to be done or to take place in the future.'^'* And a law forbidding cei-tain action to be "hereafter" taken does not apply to any past transaction .of that character. ^° ; But the problem of interpretation is presented to the courts, and the rule we have cited is put into operation, jn those cases where the language of the statute is so ambigu- pus or lacking in precision that it is doubtful whether it was designed to apply to future cases only or to include the past; as well. It is said that, in the absence of any express dec- laration in the act, the question whether it is meant to; be prospective or retrospective is one of construction upon, the statute, considered per se and in connection with the sub- ject-matter.^" And the occasion of the enacting of the law 878 ; Knighton v. Burns, 10 Or. 549. See "Statutex," Dec. Dig. (Key yd.)-§§ 261-278; Cent. Dig. i§ Si2-Sn. 17 Pauley Jail Bldg. & Mfg. Co. v. Crawford County, 84 Fed. 942, 28 C. C. A. 579. See "Statutes," Dec. Dig. (Key No.) §§ 261-278; aent. Dig. §§ S42-S77. ' 18 Minter v. Bradstreet Co., 174 Mo. 444, 73 S. W. 668. See "Stat- utes," flfc. Dig. (Key No.) §§ 261-278; Cent. Dig. §§ 3^2-377. 19 Northwestern Mut. Life Ins. Co. v. Seaman (C. C.) 80 Fed. 357. See "Statutes," Dec. Dig. (Key No.) §§ 261-278; Cent. Dig. §§ S42- S77. 20 Bay V. Gage, 36 Barb. (N. T.) 447. See "Statutes," Dec. Dig. (Key No.) §§ 261-278; Cent. Dig. §§ 3i2S77. 390 RETROSPECTIVE INTERPRETATION (Ch. 10 may be looked to, to assist in determining its character as retroactive or prospective."^ It has also been laid down that when the legislature fixes a future day for the statute to go into effect, it thereby plainly shows that it is intended to be prospective only. Thus, for instance, in a case in Pennsylvania, the act made certain provisions for "cases of partition of real estate in any court wherein a valuation shall have been made of the whole or parts thereof." It was held that the words "shall have been made" referred only to valuations made after the date when the act was to take effect.''" And so where the act provides for the giving of notice of injuries caused by defective highways, except in the case of injuries "already sustained," but the statute is not to take effect until a future day, the words quoted must be referred to the time when the act takes effect, and not to the date of its passage; in legal contemplation, the words are spoken when it becomes the law."' In New Jersey, an act provided that all judgments "shall be" assign- able, and that the assignee might sue thereon in his own name. This might mean either that all judgments recov- ered before the date of the act, as well as those recovered after, should be thereafter capable of assignment, or that assignments of judgments, whether made before or after the act, should enable the assignee to sue in his own name. But the court, in accordance with the general rule, held that the statute was prospective only, and that it did not apply to a judgment assigned before its passage."* In another case, the expression in a statute "when any judgment is ob- tained," was construed as meaning "when any judgment is hereafter obtained." It was argued that the statute should be so interpreted as to embrace pre-existing judgments. But the court said : "The most that can be said in favor of 21 People V. Board of Sup'rs of Essex County, 70 N. Y. 228. See "Statutes," Deo. Dig. (Key No.) §§ 261-278; Cent. Dig. §§3^2-377. 22Dewart v. Purdy, 29 Pa. 113. See "Statutes," Dec. Dig (Key No.) §§ S61-S78; Cent. Dig. §§ 342-377. 2 3 Jackman v. Inhabitants of Garland, 64 Me. 133. See "Stat- utes," Dec. Dig. (Key No.) §§ Z6X-278; Cent. Dig. §§ S/,8-377. 2 4Lydecker v. Babcook, 55 N. J. Law, 394, 26 Atl. 925. See "Stat- utes," Deo. Dig. (Key No.) §§ 261~S78; Cent. Dig. §§ 3^2^77. § 117) THE GENERAL RULE 391 this construction is that the language used is indefinite as to time. If it may mean 'when any judgment has been ob- tained,' it may, at least as plainly, be understood to mean 'when any judgment shall be obtained.' For such language in a statute there is a long-established rule of interpreta- tion." ="* Again, a compilation of the statutes of a state, amending and re-enacting a particular law, providing that every conveyance not recorded should be void as against creditors, omitted the words "hereafter made" which were in the re-enacted statute. It was nevertheless held that it did not apply to conveyances executed prior to the date of the original act.^° And again, a statute attempting to vali- date a void assessment on a lot in a city, for a street im- provement, if it has that effect, does not, by relation, make the assessment valid as of the date when it was levied, but only validates it at the date of the passage of the act.^' There is a corollary to the main rule stated above,, which is based upon the same reason and is supported by the same considerations. It is thus stated: "Where the retroactive character of a statute is clearly indicated on its face, and although it is free from constitutional objections, yet it will always be subjected to the most circumscribing construc- tion that can possibly be made consistent with the avowed intention of the legislature. Hence, to a statute explicitly retroactive to a certain extent and for a certain purpose, the courts will not, by construction, give a retroactive op- eration to any greater extent or for any other purpose." "' It was said by a learned English judge : "It seems to me that even in construing an act which is to a certain extent retrospective, and in construing a section which is to a cer- tain extent retrospective, we ought nevertheless to bear in 25 McGovern v. Connell, 43 N. J. Law, 106. See "Statutes," Dec. Dig. (Key No.) §§ 261-2118; Cent. Dig. §§ 3J,2-STr. 28 Gaston v. Merriam, 33 Jlinn. 271, 22 N. W. 614. See "Statutes," Dec. Dig. (Key No.) §§ Z61-f18; Cent. Dig. §§ 3//2-377. 27 Reis V. Graff, 51 Cal. 86. See "Statutes," Deo. Dig. (Key NoA ■ §§ 261-278; Cent. Dig. §§ 342-377. 2 8 Black, Const. Prohib. § 180; Thames Mfg. Co. v. Lathrop, 7 Conn. 550. See "Statutes," Dec. Dig. (Key No.) §§ 261-278; Cent. Dig. §§ 342-377. 392 EETROSPBCTIVB INTBRPEETATION (Ch. 10 ijjind that maxim as applicable whenever we reach the line at which the words of the section cease to be plain. That ia a- necessary and logical corollary of the general proposi- tion that you ought not jto give a larger retrospective power to a section, even in an act which is to some exteht intended to be retrospective, than you can plainly see the legislature meant." "' But there is no reason for the strict applica- tion of this rule in cases where the statute is remedial in its nature, and designed to work beneficent results. In that case, as we shall presently see, it is to be construed accord- ing to the true intent of the legislature, and liberally if need be.^° If the istatute is free from all ambiguity, there is no more room for interpretation in this respect than in any other. If the legislature has declared, in terms too plain to be mis- taken, that the statute shall be applicable to past facts and transactions, the courts are not at liberty to evade this re- sult by construction. It. is then their duty to take the law as they find it, and to give to it that meaning which, alone, on its face, it was intended to bear, even though the con- sequence should be that they are obliged to pronounce the act void for conflict with the constitution.^^ And the in- tention of the legislature that the statute should operate retrospectively may be .discovered (and may be so plain that the courts cannot allow themselves to disregard it) not only in the use of explicit terms, but in necessary im- plications from the language used.''' Such, for instance, would be the case where a retrospective interpretation would make the statute sensible and effective, but any other 29 Eeid V. Reld, L. R. 31 Ch, Div. 402. See "Statutes," Deo. Dig. (Key No.) §§ 261-278; Vent. Dig. §§ 342-377. 80 See Journeay v. Gibson, 56 Pa. 57. See "Statutes," Deo. Dig. (Key No.) §§ 261-278; Cent. Dig. §§ 342-377. 31 Lamb v. Powder River Live Stock Co., 132 Fed. 434, 65 0. C. A. 570, 67 L. R. A. 558 ;' Jeffries v. Rowe, 63 Ind. 592; Denny v. Bean, 51 Or. 180, 93 Pac. 693 ; Baldwin v. City of Newark, 38 N. J. Law, 158. See "Statutes," Dec. Dig. {Key No.) §§ 261-278; Cent. Dig. §§ 342-377. s2Halpin v. Prosperity Loan & Building Ass'n, 108 111. App. 316. See "Statutes," Dec. Dig. {Key No.) §§ 261-278; Cent. Dig. §§ 342-377. § 117) THE GENERAL RULE 393 would render it unmeaning. When such implications show, indubitably and unambiguously, what was the real inten- tion of the legislature, the interpreter is constrained to fol- low it." Retrospective Acts, When Construed as Prospective Also , Another question of statutory construction, which is dj* rectly converse to that which we have been considering, but which arises much less frequently, is whether an act, ex- plicitly made retrospective, is to be confined to past cases, or is to be construed as prospective also. This is, of course, always a question of legislative intention. If the design of the legislature is expressed in plain words, the courts have no choice but to carry it into effect. For example, a stat- ute of Indiana, designed to legalize the acts of certain boards of municipal officers, made provision for cases in which "the inspectors of elections have failed" to take cer- tain action. It was held that this was, on its face, retror spective and curative only, and that it could have no pro- spective force.'* But in the absence of express language, the question must be determined by reference to the na- ture of the statute and the objects' which it is designed to accomplish.. Thus, it is a rule that where a statute impairs or abridges the rights of a certain class' of people, ov de- prives the citizens of one part of the state of privileges en- joyed by citizens of other parts of the state, it should be construed strictly. Hence, if it is explicitly made retfoac- tive, but not explicitly made prospective, it will be con- strued as retrospective only, that thereby its discriminating or penal provisions may be restricted as much as possible. Thus, a statute of Pennsylvania, in reference to tax sales in certain specified counties, to the effect that the oath' of the tax collector shall be deemed conclusive evidence that 88 Young T. Hughes, 4 Hurl. & N. 76; Stewart v. Vandervort, 34 W. Va. 524, 12 S. E. TSC, 12 I>. K. A. 50. See "Statutes," Dec. Dig. (Key No.) §§ 26]--gl8; Cent. Dig. §§ 3^2-377. 8* Lucas V. State ex rel. SchoolTown of Waynetown, 86.1nd. 180. And see Doe ex dem. Forbes v. Smith, 1 Tyler (Vt.) 38. See "Stat- vtes," Deo. Dig. (Key No.) §§ 261-218; Gent. Dip. §1 34^3^7. 394 KBTEOSPECTIVB INTERPRETATION (Ch. 10 the taxes are unpaid, was held to be retrospective only.'" But, on the other hand, if the statute is beneficial and reme- dial, it should be liberally construed, and if there is a sub- stantial doubt whether it was meant to be retroactive only or to extend also to future cases, it should be interpreted in the largest sense which the words will properly bear.^' Thus, a statute provision that an alien "who shall have re- sided within the state two years" shall be capable of hold- ing and transmitting real estate the same as a citizen, may apply as 'W^ell to future as to past residence.*^ So, also, the operation of a law for regulating "all existing railroad cor- porations," in respect to requiring them to exercise certain care and take certain precautions for the protection of the public, will extend to and control railroads incorporated after, as well as before, its passage, unless exception is made in their charters.^' There may also be special and peculiar reasons which will sufiSce to determine this question in par- ticular cases. For example, in New Jersey, it is held that a statute authorizing cities "already divided into wards" to subdivide the wards when they reach a certain size, is not confined to cities which had been divided into wards before the passage of the statute. It will be observed that there was here a fair choice of constructions. But if the act were construed as retrospective only, it would make it "spe- 85 Marsh v. Nelson, 101 Pa. 51. See "Statutes," Dec. Dig. {Key No.) §§ 261-278; Cent. Dig. §§ 3^2^77. »8 It was so held in regard to an act of Congress to quiet titles in favor of persons in actual possession of lands in the District of Columbia. Williams v. Paine, 169 tJ. S. 55, 18 Sup. Ct. 279, 42 L. Ed. 658. So of a statute providing for the collection of public moneys which "have" been deposited in banks, etc. Mcintosh v. Johnson, 51 Neb. 33, 70 N. W. 522. So of an act providing general rules for the construction of statutes. People v. Zito, 237 111. 434, 86 N. E. 1041. See "Statutes," Dec. Dig. {E^ey No.) §§ 261-21/8; Cent. Dig. §§ 3^2-377. 87 Beard v. Rowan, 1 McLean, 135 Fed. Gas. No. 1,181 ; s. c, 9 Pet. 301, 9 L. Ed. 135. See "Statutes," Dec. Dig. {Key No.) §§ 261-278 • Cent. Dig. §§ 3//2-S77. 88 Indianapolis & St. L. R. Co. v. Blackman, 63 111. 117. See "Stat- utes," Deo. Dig. (Key No.) §§ 261-278; Gent. Dig. §§ 3^2-377. § 118) STATUTES IMPAIKING VESTED RIGHTS 395 cial legislation," which is forbidden by the constitution of that state. For this reason, the court held it to be pro- spective also.'* STATUTES IMPAIRING VESTED RIGHTS 118. When the effect of giving to a statute a retrospective construction would be to make it destroy or impair vested rights, such construction will be avoided, and the statute will be held to apply to future acts and cases only, provided that this can be done by any reasonable interpretation of the language used by the legislature.*" "The courts uniformly refuse to give to statutes a retro- spective operation, whereby rights previously vested are injuriously affected unless compelled to do so by language so clear and positive as to leave no room to doubt that such was the intention of the legislature." *'■ "The rule is that a statute affecting rights and liabilities should not be so 39 Wood V. Atlantic City, 56 N. J. Law, 232, 28 Atl. 427. See "Stat- utes," Deo. Dig. (Key Ifo.) §§ 261-278; Cent. Dig. §§ 3^2-377. 40 Southwestern Coal & Imp. Co. v. McBride, 185 U. S. 499, 22 Sup. Ct. 763, 46 L. Ed. 1010; People ex rel. Thome v. Hays, 4 Cal. 127; Cook v. Walling, 117 Ind. 9, 19 N. E. 532, 2 L. R. A. 769, 10 Am. St. Rep. 17; Niklaus v. Conkling, 118 Ind. 289, 20 N. E. 797; Van Fleet v. Van Fleet, 49 Mich. 610, 14 N. W. 566 ; Todd v. Board of Election Com'rs of Kalamazoo, Calhoun, Branch, Eaton, and Hills- dale Counties, 104 Mich. 474, 62 N. W. 564, 29 L. R. A. 330 ; Cranor V. School Dist. No. 2, 151 Mo. 119, 52 S. W. 232; Berley v. Ram- pacher, 5 Duer (N. T.) 183; Quackenljush v. Danks, 1 Denio (N. Y.) 128 ; Jefferson County Nat. Bank v. J>ewey, 181 N. Y. 98, 73 N. B. 569 ; Kelley v. Kelso, 5 Ohio St. 198 ; Walcutt v. City of Columbus, 27 Ohio Cir. Ct. R. 238; Rader v. Kriebel, 32 Pa. Super. Ct. 548; Dillon V. Dougherty, 2 Grant (Pa.) 99 ; Hannum v. Bank of Tennes- see, 1 Cold. (Tenn.) 398; Rogers v. Lynch, 44 W. Va. 94, 29 S. E. 507; State v. Atwood, 11 Wis. 422; Couch v. JefCries, 4 Burr. 2460; Moore v. Phillips, 7 Mees. & W. 536. See "Statutes," Deo. Dig. (Key No.) § 265; Cent. Dig. §§ 346, SJfl. 41 Chew Heong v. United States, 112 U. S. 536,.5 Sup. Ct. 255, 28 L. Ed. 770. See "Statutes," Dec. Dig. {Key No.) § 265; Cent. Dig. §i 346, 347. 896 EETEOSPBCTlVB! mfERiPllHfTATION (Ch. 10 construed as to act updn those already existiilg, and it is the result of the decisions that although the words of a stat- ute are so general and broad in their literal extent as to comprehend existing cases, they must yet be so construed as to be applicable only to such as may thereafter arise, un- less the intention to embrace all is clearly expressed." *^ We shall not in this place enter upon a discussion of the nature of vested rights,, as that subject more properly, be- longs to the domain of constitutional law.*' But the ap- plication of the well-settled rule of construction above stated may be explained by various illustrationp from the reported cases. The nature and' tenure of estates and their incidents and the rules of inheritance are under the control of the legislature, and may be modified or changed as the pj;|blic interests or policy may require, but not as to rights already vested; and statutes dealing with these subjects wrill not be so construed as to make them impair or destroy ^uch existing rights.** Thus a statute passed for the pur- pose of abolishing the rule of community property cannot have a retroactive effect to disestablish rights already at- tached to such property.*' So, also, the statutes which h^ve been passed in most of the states, securing to married women the more free and perfect control of their individual jproperty, authorizing them to deal with the same as if sole, and otherwise enlarging their powers over it, and at the same time abridging the husband's rights and interests in such property and his authority to control the- disposition of the same, are not construed, unless it is clearly neces- sary, as having a retroactive effect ; that is, in their applica- tion to estc^tes of married women already vested, they will , ,42 In re Protestant Episcopal Public School, 58 Barb. (N. Y.) 161; Goillotel V. Mayor, etc., of City of New York, 87 N. X. 441. See "Statutes," Dec. Dig. (Key No.) § 265; Cent. Dig. §§ 346, 347. *3 See Black, Const, taw (3d Ed.) 596-606. , 4* Crane v. Reeder, 21 Mich. 24, 4 Am. Rep. 430 ; In re Pell's Es- tate, 171 N. Y. 48, 63 N. E. 789, 57 L. R. A. 540, 89 Am. St. Rep. 791 ; Shell V. Matteson, 81 Minn. 38, 83 N. W. 491. See "Statutes," Dec. Dig. (Key No.) § 265; Gmt. Dig. §§ 346, 3^7. , 45 In re Chayez, 149 Fed. 73, 80 C. G. A. 451. See "Statutes," Dec. Dig. (Key No.) § 265; Cent. Dig. §§ 346, 347. § 118) STATUTES IMPAIRING VESTED EIGHTS 397 not be taken as destroying any rights or estates held by husbands in such property, jure uxoris, if such a construc- tion can be fairly avoided/* Again, where a mortgage is made prior to the passage of the statute which provides for the vesting, upon foreclosure, of the inchoate interest of the mortgagor's wife, her rights are fixed, upon foreclosure, by the law in force when the mortgage was made. "When a mortgage is executed upon a tract of land, the mortgagee acquires, by contract, a specific lien. * * * 'j'^g jjen thus acquired by the mortgagee becomes by the terms of the contract a vested right, which the legislature can nei- ther abridge, nor diminish by subsequent legislation. Any subsequent enlargement of the inchoate interest of the wife in the mortgaged land would necessarily operate as a dim- inution of the security afforded by the mortgage, and be an invasion of the vested right which the mortgagee had acquired under it." *' And, generally, any statute regulat- ing the enforcement or foreclosure of mortgages, and which would either diminish the value of the security or embarrass the mortgagee in his endeavors to realize the debt, or imr pose more onerous conditions i.tjpon him, or give greater advantages or benefits to the mortgagor, cannot be held to *8 Hershizer v. Florence, 38 Ohio St. 516 ; Quigley v. Graham, 18 Ohio St. 42 ; Leete v. State Bank of St. Louis, 115 Mo. 184, 21 S. W. 788 ; , Arnold v. WiUis, 128 Mo. 145, 30 S. W. 517. Though a married woman comes into possession of real estate after the passage of an act conferring certain rights on married women, yet if her title is derived through a will which took eftect before the passage of such act, her rights in the property are determined by the law as it exist- ed prior to the passage of the act;^ and the husband's freehold, jure uxoris, cannot be thus divested. White v, Hilton, 2 Mackey (I>. C.) 339. But the cons'titutionality of the law allowing a wife to convey her realty without the joinder of her husband in the deed cannot be questioned on the ground that it operates to take away the estate of the husband by marital right, in an action where the property in- volved was acquired since the estate of the husband by marital right was abolished. Taft v. Cannon (E. I.) 34 Atl. 148. See "Statutes," Dec. Dig. (Key No.) § S65; Cent. Dig. §§ 346, 3^7. *7 Lease v. Owen Lodge.No. 146, I. O. O. F.^ 83 Ind. 498; McGloth- lin V. Pollard, 81 Ind. 228. See, also, Baldwin v. CuHen, 61 Mich. 33, 16 N. W. 191. iSfee "Statutes," Dec. Dig. (Key No.) § 265; Cent. Dig. §§ 346, Sil. 398 EBTROSPECTIVE INTERPRETATION (Ch. 10 apply to mortgages in force at the time of its enactment. For such securities constitute or embody a contract, the obligation of which must not be impaired by subsequent legislation; and hence this result will be avoided by con- struing such laws as intended to have a prospective opera- tion only. This rule is applied, for instance, in cases where the statute gives a right to redeem from foreclosure sale, where no such right before existed or where such right had been expressly waived, or where it extends the time allowed for such redemption.** And the same principle applies to laws regulating judicial sales and tax sales, with reference to such matters as the right or time for redemption, the pur- chaser's right to receive a deed, and the like.*' But where the substance of the right is not impaired, the procedure for the enforcement of a statutory lien, such as a mechan- ic's lien, may be governed by the law in force at the institu- tion of suit.^" Again, a statute providing for the forfeiture of that part of an estate whereon waste is committed by the tenant for life cannot be construed to affect life estates existing at the time of its enactment."^ And so a statute authorizing ad- 4 8 Barnitz v. Beverly, 163 U. S. 118, 16 Sup. Ct. 1042, 41 L. Ed. 93; State ex rel. Stleffi v. Bradshaw, 39 Fla, 137, 22 South. 296 ; Hull v. State, 29 Pla. 79, 11 South. 97, 16 L. R. A. 308, 30 Am. St. Rep. 95 ; Watkins v. Glenn, 55 Kan. 417, 40 Pac. 316; Paris v. Nordburg, 6 Kan. App. 260, 51 Pac. 799 ; State v. Sears, 29 Or. 580, 46 Pac. 785, 54 Am. St. Rep. 808; State ex rel. Waldo v. Fylpaa, 3 S. D. 586, 54 N. W. 599 ; Wilder v. Campbell, 4 Idaho, 695, 43 Pac. 677 ; Finlay- son V. Peterson, 5 N. D. 587, 67 N. W. 953, 33 L. R. A. 532, 57 Am. St. Rep. 584 ; Walton v. Fudge, 63 Mo. App. 52 ; Reed v. Swan, 133 Mo. 100, 34 S. W. 483. See "Statutes," Dec. Dig. (Key No.) § 265; Cent. Dig. §§ 31,6, 3^7. *8 Welsh V. Cross, 146 Cal. 621, 81 Pac. 229, 106 Am. St. Rep. 63 ; Teralta Land & Water Co. v. Shaffer, 116 Cal. 518, 48 Pac. 613, 58 Am. St. Rep. 194; State ex rel. Lewis v. Bradshaw, 35 Fla. 313, 17 South. 642 ; American Inv. Co. of Emmetsburg v. Thayer, 7 S. D. 72, 63 N. W. 233. See "Statutes," Dec. Dig. (Key No.) § Z65; Cent. Dig. §§ Si6, Sil. 50 Berndt v. Armknecht, 50 111. App. 467. See "Statutes," Dec. Dig. {Key No.) § 265; Cent. Dig. §§ 3^6, 3/,7. 61 Kent T. Bentley, 3 Ohio Dec. 173. See "Statutes," Dec. Dig. {Key No.) § 265; Cent. Dig. §§ Si6, 347. § 118) STATUTES IMPAIRING VESTED RIGHTS 399 ministrators to take possession of the real estate of their decedents, not being explicitly retroactive, will not operate to give that right as against the heirs of a person whose es- tate was in process of administration before the passage of the statute, and whose heirs and devisees had already be- come vested with the interests to which they were enti- tled." Where, at the time of the death of a testator, a be- quest to a cemetery was void under the rule against perpe- tuities, and the property bequeathed vested in the testator's next of kin, and a statute was afterwards passed abolishing the rule against perpetuities so far as it affects gifts made to cemetery corporations for designated purposes, before the day for the payment of the legacy, it was held that this did not divest the rights of the next of kin in favor of the cemetery company."' So again, the vendor of real estate has a lien upon the property sold for the unpaid purchase money, independent of the existence of a lien evidenced by a title bond or mortgage; and hence a statute which pro- vides that no vendor's lien shall be enforced after a con- veyance by the vendee, unless the lien is recorded, cannot apply to sales made before the enactment of the statute."* So, likewise, the statutes which give to occupying claim- ants, life tenants, and others, in certain cases, the benefit of improvements placed by them upon the land before evic- tion or before the termination of their estate, are not con- strued retroactively unless the plain language of the law requires it." Moreover, a right of action, completely ac- crued under the existing law, may be a vested right which the courts are bound to protect. Thus, a statute passed 52 Van Fleet v. Van Fleet, 49 Mich. 610, 14 N. W. 566. See "Stat- utes," Deo. Dig. (Key No.) § 265; Cent. Dig. §§ 3^6, 3^7. , 53 Hartson v. Blden, 50 N. J. Eq. 522, 26 Atl. 561, And see Butler V Trustees of Parochial Fund of Protestant Episcopal Church, 92 Hun, 96, 36 N. X. Supp. 562. See "Statutes," Dec. Dig. (Key No.) § 265; Cent. Dig. §§ 3^6, 3i7. 54 Jordan v. Wimer, 45 Iowa, 65. See "Statutes," Dec. Dig. {Key No.) § 265; Cent. Dig. §§ 346, 31ft. 5 5 Shay's Appeal, 51 Conn. 162; Wilson t. Red Wing School Dist., 22 Minn. 488; Folsom v. Clark, 72 Me. 44. See "Statutes," Deo. Dig. (Key No.) j 265; Cent. Dig. §§ 348, 347. 4^00 BBTBOSPHCTIVB INTBKPEBTATION (Oh. 10 after the accruing of a cause of action based upon an injury- caused by defendant's negligence, limiting the amount of recovery in such cases, will be construed, if possible, as prospective only, and will consequently have no bearing upon plaintiff's right to recover full damages."' A statute of limitations is not to be construed retrospectively unless such is the plain and manifest intention of the legislature. More especially is this the rule wherp the effect of giving it a retrospective operation would be to cut off altogether the remedy on existing causes of action, or to reduce un- reasonably the time within which that remedy may be sought." A statute giving exclusive jurisdiction where concurrent jurisdiction has been exercised should not be construed retroactively, unless no other construction can fairly be given."* No person can have a vested right in a penalty or forfeiture until it has been judicially ascertained and declared. Hence, if it has not been reduced to judg- ment before a repeal of the statute which created the right of action, the penalty or forfeiture falls with the law, and cannot afterwards be enforced. But a right to a penalty, forfeiture, or bounty, when once it has become fully vested, should not be held to be divested by a subsequent statute, if the statute can be so construed as to avoid this retroactive 66 Osborne v. City of Detroit (G. C.) 32 Fed. 36; Gorman v. Mc- Ardle, 67 Hun, 484, 22 N. Y. Supp. 479. So a statute providing tliat the state engineer and his assistants shall be liable only for the pay- ment of actual damages caused by their entry on private lands, such entry being made for the purpose of establishing the boundary be- tween certain counties, as authorized and directed by a previous stat- ute, will not take away the right of action for previous trespasses committed by such officers. Litchfield v. Pond, 186 N. Y. 66, 78 N. E. 719. See "Statutes," Dec. Dig. {Key No.) § Z65; Cent. Dig. §§ 346, 341.- : " state v. Pinclmey, 22 S. C. 484 ; Smith v. Packard, 12 Wis. 371 ; Chapman v. Douglas County, 107 U. S. 348, 2 Sup. Ct. 62, 27 L. Ed. 378; Moody v. Hoskins, 64 Miss. 468, 1 South. 622; Bramlett v. Wetiin, 71 Miss. 902, 15 South. 934. See "Statutes," Dec. Dig. (Key No.) § 265; Gent. Dig. §§ 31,6, S47. =8 State V. Wttlefiel^, fl3 N. C. 614. iSee "Statutes," Dec Dig. (Key No.) § Z65; Cent. Dig. §§ 3i6,. 3^7. , ■ § lift) STATDTE8 IMPOSING PENALTIES AND LIABILITIES 401 effect.*' And, on the same principle, an act of Congress relating to the readjusting of the salaries of certain public officers in certain cases will not be construed i-etrospec- tively, so as to make it affect salaries for terms already ex- pired." STATUTES IMPOSING PENALTIES AND LIABILITIES 119. A statute imposing a new penalty or forfeiture, or a new liability or disability, or creating a new right of action, will not be construed as having a retro- active operation, if such consequences can fairly be avoided by interpretation.'^ .This is the rule, for example, in regard to the statutes which give a right of action in damages for injuries result- ing from negligence or wrongful act and causing the death of a human being,' ^ and also in regard to the civil damage acts." So also, a revenue act imposing penalties upon de- linquent taxpayers should not be so construed as to affect persons who became delinquent before the statute took ef- fect."* And a statute authorizing a forfeiture of dower or "0 State ex rel. Thomas v. Youmans, 5 Ind. 280; People ex rel. East Saginaw Salt Mfg. Co. v. Board of State Auditors, 9 Mich. 327 : Breitung v.' Lindauer, 37 Mich. 217. See "Statutes," Deo. Dig. (Key No.) § 265; Cent. Dig. §§ S46, Si7. so United States v. WanamaKer,. 10 Mackey (D. C.) 119. See "Stat- utes," Dec. Dig. (Key No.) § 265; Cent. Dig. §§ 346, Slfl. 81 Wright V. Southern Ry. Co. (C. C.) 80 Fed. 260; Read v. Boston & A. R. Co., 140 Miass. 199, 4 N. E. 227; Huff v. Sovereign. Camp of Woodmen of the World, 85 Mo. App. 96 ; City of Rutland v. Town of Chittenden, 74 Vt. 219, 52 Atl. 426 ; Keeley v. Great Northern Ry. Co., 139 Wis. 448, 121 N. W. 167. See "Statutes," Dec. Dig. (Key No.) § 266; Cent. Dig. § 348. ,82 Kelley v. Boston & M. R. R., 135 Mass. 448; Chicago, St. L. & N. O. R. Co. V. Pounds, 11 Lea (Tenn.) 1'27. See "Statutes," Dec. Dig. (Key No.) § 266; Cent. Dig. § 348. 83Relnhardt v. Pritzsche, 69 Hun, 565, ?3 N. Y. Supp. 958. " See "Statutes," Dec. Dig. (Key No.) § 266; Cent. Dig. § 348. 8* Bartrufe v. Remey, 15 Iowa, 257. See "Statutes," Dec. Dig. (Key No.) § 266; Cent. Dig. § 348. Black Int.IJ. — 26 402 EBTROSPBCTIVB INTERPRETATION (Ch. 10 curtesy "whenever a married man shall be deserted by his wife, or a married woman by her husband, for the space of one year," should be construed as prospective only, and as applying only to cases of desertion beginning after the law takes effect."" On the same principle, a statute providing that no person shall recover any fees or charges for medical or surgical services, unless he shall prove at the trial that he is duly registered under the act, does not apply to an action commenced before the passage of the statute.'* And an act prohibiting the intermarriage of a white person with an Indian, enacted after such a marriage, has no bearing upon the validity of the marriage ; that is, it should not be construed retroactively so as to invalidate a marriage which was good when contracted."^ Again, an act providing that married women shall be bound, like other persons, by es- toppels in pais, is not retroactive, and has no application to a mortgage made by a married woman before the enact- ment."' After an administration bond had been executed, an act was passed providing that ten per cent, damages should be awarded against administrators and their sureties on the bonds. But it was held that the ten per cent, could not be awarded on the bond mentioned." It is also said that a statute increasing the rate of interest operates only on future rights.'"' The same principle has been applied to the employer's liability laws recently enacted by Congress and by some of the state legislatures. These statutes generally take away the right to plead contributory negligence as a defense, at 86 Giles V. Giles, 22 Minn. 348. See "Statutes," Deo. Dig. (Key No.) § 266; Cent. Dig. § 348. «8 Thistleton v. Frewer, 31 L. J. Exch. 230. See "Statutes," Dec. Dig. (Key No.) § S66; Vent. Dig. § 348. «7 Illinois Land & Loan Co. v. Bonner, 75 III. 315. See "Statutes," Deo. Dig. {Key No.) § 266; Cent. Dig. § 348. 8 8 Levering v. Shiockey, 100 Ind. 558. See "Statutes," Dec. Dig. (Key No.) § 266; Gent. Dig. § 348. 8 9 Steen v. Finley, 25 Miss. 535. See "Statutes," Dec. Dig. (Key No.) § 266; Cent. Dig. § 348. 7 Oummings v. Howard, 63 Cal. 503. See "Statutes," Deo. Dig. (Key No.) § 266; Cent. Dig. § 3^8. § 120) REMEDIAL STATUTES 403 least in cases where the negligence of the injured party was slight in comparison with that of the employer, and some- times they also abrogate the common-law rule in respect to the acts or negligence of a fellow servant. It has been attempted to invoke the benefit of these statutes in cases where the injury occurred before their enactment, the argu- ment being that such statutes merely deprived the employer of an arbitrary defense previously existing under the rules of law. But the courts have refused to give them a retro- active effect, holding that, on the contrary, they created a new right and imposed a new liability.''^ For similar rea- sons, a statute giving to creditors of corporations a remedy not previously possessed against the individual stockhold- ers will not be so construed as to make it available against those who became stockholders before its enactment." And a law authorizing insolvency proceedings against non- residents does not affect contracts made before its pas- sage.'' And the same applies to a statute authorizing an action against both the municipality and an adjoining land- owner for injuries caused by defective sidewalks.''* REMEDIAL STATUTES 120. Remedial statutes are to be liberally construed; and if a retrospective interpretation will promote the ends of justice and further the design of the legis- lature in enacting them, or make them applicable to cases which are within the reason and spirit of the enactment, though not within its direct words, ri Plummer v. Northern Pac. Ry. Co. (C. C.) 152 Fed. 206 ; Wright V. Southern Ry. Co. (C. C.) 80 Fed. 260. See "Statutes," Dec. Dig. (Key No.) § 266; Cent. Dig. § 348. 72 Grand Rapids Sav. Bank v. Warren, 52 Mich. 557, 18 N. W. 356; Ball V. Anderson, 196 Pa. 86, 46 Atl. 366, 79 Am. St. Rep. 693. See "Statutes," Dec. Dig. {Key No.) § 266; Cent. Dig. § 348. 78 Stetson V. Hall, 86 Me. 110, 29 Atl. 952. See "Statutes," Dec. Dig. (Key No.) § 266; Cent. Dig. § 348. 74 Fife V. City of Oshkosh, 89 Wis. 540, 62 N. W. 541. See "Stat- utes," Dec. Dig. (Key No.) § 266; Cent. Dig. § 348. 404 " EBTEOSPECTIVB INTERPRETATION (Oh. t© they should receive such a construction, provided it is not inconsistent with the language em- ployed." "It is undoubtedly the general rule," says the court in Indiana, "that statutes are to be construed and applied pros- pectively, unless a contrary intent is manifested in clear and unambiguous terms, and it is sometimes held that, to work an exception, the intent favoring retrospective application must affirmatively appear in the words of the statute. The better rule of construction, and the rule peculiarly applica- ble to remedial statutes, is that a statute must be so con^ strued as to make it effect the evi4ent purpose for which it was enacted; and if the reason of the statute extends to past transactions, as well as to those in the future, then it will be so applied, although the statute does not, in terms, so direct, unless to do so would impair some vested right or violate some constitutional guaranty." '* To the same general eflEect is the following language employed by the Supreme Court of Alabama: "The statutes excluded from judicial favor and subjected to the strictness of judicial con- struction — statutes which may be properly denominated 're- trospective' — are such as take away or imfjair vested rights acquired under existing laws, or create a new obligation, impose a new duty, or attach a new disability, in respect to transactions or considerations' already past. Such stat- utes are ofifensive to the principles of sound and just leg- islation, and it is of these that the authorities use the term 'odious' and other epithets expressive of judicial oppro- 75 Sturgls V. Hull, 48 Vt. 302; Dobbins v. First Nat. Bank of Peoria, 112 111. 553 ; Broaddus' Devisees v. Broaddus' Heirs, 10 Bush (Ky.) 299 ; People v. Board of Sup'rs of Ulster County, 63 Barb. 83 ; City of Indianapolis v. Imberry, 17- Ind. 175 ; Augusta Bank v. City of Augusta, 49 Me. 507; Edelstein v. Carlile, 33 Colo. 54, 78 Pac. 680 ; MdFarland v. Benton, 10 Ky. Law Rep. 873 ;^ Fowler v. Lewis' Adm'r, 36 W. Va. 112, 14 S. E. 447. See "Statutes," Deo. Dig. {Key Wo.) §§ 26 J,, 267; Cent. Dig. §§ 345, 350-352. '0 Connecticut Mut. Life Ins. Co. v. Talbot, 113 Ind. 373, 14 N. E. 586, 3 Am. St. Rep. 655. See "Statutes," Dec. Dig. (Key No.) §§ 264, 267; Cent. Dig. §§ 345, 350-352. §120) EEMEDtAL STATUTES 405 brium. There are other statutes which, when operating re- trospectively, have not incurred judicial condemnation, and to which a liberal construction, for the consummation of the just and beneficent purposes in viewy has been freely- accorded. Such statutes are intended to rernedy a mischief, promote public justice, correct innocent mistakes into which parties may have fallen, cure irregularities, or give effect to the acts or contracts of individuals fairly done and made. These are remedial statutes, conducive alike to individual and, public good." '''' For example, where it clearly appears that the object of the statute is to obviate controversies between innocent parties arising out of defective legislation or the improper conduct of public officers, and to accomplish this object it is necessary to give it a retroactive operation, although there may be no express words in the act giving to it such an effect, it is the duty of the courts so to construe it.''* For this reason, an act providing that a general devise or bequest shall operate as an execution of a power of appoint- ment, unless a contrary intention appears by the'will, is not confined to wills executed after the date of the act, but ex- tends to cases where the testator dies after its enactment.'* On the same principle, a statute declaring that no words of inheritance shall be necessary to convey a fee by devise may operate retrospectively.*" And a statute providing that "ac- tions at law may be sustained against any married woman upon any contract made by her upon her personal credit, for the benefit of herself, her family, or her estate," applies to such contracts made before the passage of the act as T7 Ex parte Buckley, 53 Ala. 42. See, also, Tllton v. Swift & Co., 40 Iowa, 78. See "Statutes," Deo. Dig. (Key No.) §§ 264, S6T; Cent. Dig. §§ 345, 350-3^2. 7 8 People v. Spicer, 99 N. Y. 225, 1 N. B. 680. See "Statutes," Deo. Dig. (Key No.) §§ 264, 287; Cent. Dig. §§ 34^, 350-3^2. 7 9Aubert's Appeal, 109 Pa. 447, 1 Atl. 336. See "Statutes," Deo. Dig. (Key No.) §1 264, ^61; Cent. Dig. §§ 345, 350-352. 80 Adams v. ChapJin, 1 Hill, Eq. (S. C.) 265. See "Statutes," Dec. Dig. (Key No.) §§ 264, 267; Cent. Dig. §§ 345, 350-352. 406 RETROSPECTIVE INTERPRETATION (Oh. 10 well as to those made after." A statutory provision that, when mortgaged land is taken for public use under the power of eminent domain, the mortgagor and mortgagee may join in a petition for damages, is remedial in its char- acter, and it will apply to proceedings begun after it took effect, although the land was previously taken.*'' An act authorizing justices of the peace to issue garnishee process may be so construed as to permit the issue of such process upon a judgment rendered before the enactment of the statute, the law being remedial, and no constitutional rule being affected by such construction.*' An act giving to the plaintiff suing for the purchase money of land a lien thereon while in the vendee's hands, and authorizing a writ of sei- zure on the filing of the declaration, and a special execution for the sale of the property in addition to a personal judg- ment, is remedial in its nature, and may constitutionally be made applicable to causes of action existing at the time of its passage.'* Again, a statute which extends the time and releases the conditions prescribed in a former statute in re- gard to the isstaing of executions, may apply to judgments recovered before the passage of the act, without being liable to the objection of affecting vested rights.*" And a statu- tory provision that a "judgment against the principal on an injunction bond shall conclude the surety also may be held to apply to a bond executed before the enactment of the statute; the remedy only, not the right, is affected.** 81 BuckiDgham v. Moss, 40 Conn. 461. See "Statutes," Dec. Dig. (Key No.) §§ 264, 267; Cent. Dig. §§ 3J,5, S50-35Z. 82 Wood V. Inhabitants of Westborough, 140 Mass. 403, 5 N. E. 613. See "Statutes," Deo. Dig. (Key No.) §§ 264, 267; Gent. Dig. §§ 345, 350-352. 88 Fisher v. Hervey, 6 Colo. 16. See "Statutes," Deo. Dig. {Key No.) §§ 264, 267; Cent. Dig. §§ 345, 350-352. 8 4 Excelsior Mfg. Co. v. Keyser, 62 Miss. 155. See "Statutes," Deo. Dig. (Key No.) §§ 264, ^67; Cent. Dig. §§ 345, 350-352. 8 5 Henschall v. Schmidtz, 50 Mo. 454. See "Statutes," Deo. Dig. (Key No.) §§ 264, 267; Cent. Dig. §§ 345, 350-352. 88 Pickett V. Boyd, 11 Lea (Tenn.) 498. See "Statutes," Dec. Dig. (Key No.) §§ 264, 267; Cent. Dig. §§ 345, 350-352. § 120) KEMEDIAL STATUTES 407 Again, an act declaring that marriage between persons within the prohibited degrees of consanguinity shall not be pronounced void after the death of either, if the marriage was followed by cohabitation and the birth of issue, applies to such marriages contracted before the enactment of the statute, as well as to those contracted afterwards. "^ For similar reasons it is held that a statute which confers upon cities, not previously possessing it, the power to sell real and personal property for delinquent taxes, may apply as well to taxes delinquent before the act was passed as to those becoming delinquent thereafter.*' An English stat- ute enacted that "every person convicted of felony shall forever be disqualified from selling spirits by retail, and no license shall be granted to any person who shall have been so convicted." It was held that this applied to the case of a person who had been convicted of felony before the pas- sage of the act. The judges considered that the act in ques- tion was not so much designed for the punishment of the offender as to protect the public against the dangers which might arise from the keeping of pviblic houses by convicted felons; and hence the case at bar was within the reason and spirit of the act.** Again, where an act of Congress enlarges the jurisdiction of the Circuit Courts, it will be construed to apply to cases pending and undetermined at the passage of the act, unless excluded by its terms or by necessary implication from the language of the act.'" A statujte providing that, if any tax is prevented from being collected, the amount thereof shall be added to the tax for the current year, being purely remedial, applies to taxes levied and prevented from being collected prior, as 8 7 Baity v. Cranfill, 91 N. C. 293, 49 Am. Rep. 641. See, also, Brower v. Bowers, 1 Abb. Dec. (N. Y.) 214. See "Statutes," Deo. Dig. (Key No.) §§ 26 Jf, 207; Cent. Dig. §§ 3^5, 350-352. S8 Haskel v. City of Burlington, 30 Iowa, 232. See "Statutes," Dec. Dig. (Key No.) §§ S64, 267; Cent. Dig. §§ 3^5, 350-352. 8 8 Queen v. Vine, L. R. 10 Q. B. 195. See "Statutes," Dec. Dig. (Key No.) §§ 264, 267; Cent. Dig. §§ 345, 350-352. ooLarkin v. Saffarans (C. C.) 15 Fed. 147. See "Statutes," Dec. Dig. (Key No.) §§ 26i, 261; Cent. Dig. §§ 345, 350-352. 408 RETEOSPECTIVB INTERPRETATION (CJl. 10. well as subsequent, to its passage."* So, also, under a stat- ute giving a right of action agaiiist the state to all persons who may have claims against the state on contract, which have not been allowed by the state examiners, a suit may be maintained on a contract on which the right of action accrued before the passage of the statute."" And a statute under which counts at common law for conscious suffering may be joined with a count under the statute for conscious suffering followed by death is remedial, and is therefore applicable where the cause of action arose before its pas- sage."^ But, as a general rule, in an action for injuries by negligence, statutes passed after the accident cannot be con- sidered."* STATUTES REGULATING PROCEDURE 121. Statutes regulating the procedure of the courts will be construed as applicable to causes of action accrued, and actions pending and undetermined, at the time of their passage, unless such actions are expressly excepted, or unless vested rights would be dis- turbed by giving them a retrospective operation,"'* »i State V. Baldwin, 62 Minn. 518, 65 N. W. 80. See "Statutes," Deo. Dig. (Key No.) §§ S64, 26.7; Cent. Dig. §§ 3^5, S50S52. 82 Chapman v. State, 104 Cal. 690, 38 Pac. 457, 43 Am. St. Rep. 158. See "Statutes," Dec. Dig. (Key No.) §§ 264, 267; Cent. Dig. §§ BiS, 350-332. S3 Hartley v. Boston & N. St. R. Co., 198 Mass. 163, 83 N. E. 1093. See "Statutes," Deo. Dig. (Key No.) §§ 264, S67j Cent. Dig. §§ SM, 350-352. 8 4 Gallowshaw v. Lonsdale Co., 25 R. I. 383, 55 Atl. 932. See "Statutes," Dec. Dig. (Key No.) §§ 264, 267; Gent. Dig. §§ 345, 350- 352. 00 Sampeyrpae v. United States, 7 Pet. 222, 8 L. Ed. 665; Ault- man & Taylor Machinery Co. v. Fish, 120 111. App. 314; Steele t. Empsom, 142 Ind. 397, 41 N. E. 822; Davidson v. Wheeler, Morris (Iowa) 238 ; Beebe v. Birkett, 108 Mich. 234, 65 N. W. 970 ; Converse V. Burrows, 2 Minn. 229 (Gil. 191) ; Clark v. Kansas City, St. L. & C. R. Co., 219 Mo. 524, 118 S. W. 40 ; Laird v. Carton, 196 N. T 169 89 N. B. 822, 25 L. R. A. (N. S.) 189 ; People v. City of Syracuse . 128 App. Div. 702, 113 N. Y. Supp. 707 ; Dieterich v. Fargo 194 N T §121) STATUTES REGULATING PROCKDURE 409 "The presumption against retrospective construction," says the court in Oregon, "has no application to enactments which affect only the tnode of procedure and practice of the courts. No person has a vested right in any form of proce- dure. He has only the right of prosecution or defense in the manner prescribed for the time being, and if this mode of procedure is altered by statute, he has no other right than to proceed according to the altered mode. Indeed, the rule seems to be that statutes pertaining to the remedy or course and form of procedure, but which do not. destroy all remedy for the enforcement of the right, are retrospec- tive, so as to apply to causes of action subsisting at the date of their passage. Statutes which relate to the mode of pro- cedure, and affect only the remedy, and do not impair the obligations of contracts or vested rights, are valid; and it is no objection to them that they are retroactive in their operation. It is competent for the legislature at any time to change the remedy or mode of procedure for enforcing or protecting rights, provided such enactments do not im- pair the obligations of contracts, or disturb vested rights, and such remedial statutes take up proceedings in pending causes where they find them-; arid when the statute under which such proceedings were commenced is amended, the Subsequent proceedings must be regulated by the amenda- tory act." " 359, 87 N. E. 518, 22 L. K. A. (N. S.) 696 ; People v. Herkimer Court of Common Pleas, 4 Wend. (N. Y.) 211 ; Kille v. Beading Iron Works, 134 Pa. 225, 19 Atl. 547; Lane v. White, 140 Pa. 99, 21 Atl. 437; In re Borough of Washington, 26 Pa. Super. Ot. 296 ; Lee v. Buck- heit, 49 Wis.^ 54, 4 N. W. 1077 ; Blair v. Gary, 9 Wis. 543. But this rule is not universally accepted. See, for example, Boston & M. R. R. V. Cilley, 44 N. H. 578; Auditor General v. Chandler, 108 Mich. 569, 66 N. W. 482 ; Merwin v. Ballard, 66 N. C. 398. In New Hamp- shire, where all retrospective laws are specifically prohibited by the Constitution of the state, it is held that statutes which prescribe new rules for the decision of existing causes of action are retrospect- tive, and therefore unconstitutional and inoperative in such cases. Kennett's Petition, 24 N. H. 139; Smith v. Haines, 58 N. H. 157. See "Statutes," Dec. Dig. {Key No.) § 267; Cent. Dig. §i 350-359. osjudkins v. TafCe, 21 Or. 89, 27 Pac. 221. See "Statutes," Deo. Dig. (Key No.) § 267; Cent. Dig. §§ S50-S59. 410 RETROSPECTIVE INTERPRETATION (Oh. 10 Laws Giving New Remedies In the class of statutes which may be construed retro- spectively are those which create a new remedy, or enlarge the existing remedy, for existing causes of action."' . For example, a statute providing a new remedy against persons who place obstructions in public highways may apply as well to the case of obstructions existing at the time of its passage as to those subsequently placed therein.'^ So a statute extending the right of attachment to actions for personal injuries may apply to actions for injuries occurring before it took effect."" The same mightbe true of a statute giving a lien to judgments, where no such lien before ex- isted; but this will not be held to be the case where the statute is so worded as to show a clear legislative intention that it should operate prospectively only.^"" But a statute with a proviso that nothing theirein contained shall be con- strued to prevent an action on a judgment after twenty years from its date, and a recovery thereon, in case it shall be established by competent evidence that the judgment, 87 Barnett v. Vanmeter, 7 Ind. App. 45, 33 N. E. 666; Myers v. Moran, 113 App. Div. 427, 99 N. Y. Supp. 2C9. But this rule does not apply where the law Is plainly expressed as applicable only to future transactions. For instance, an act of Congress, passed in 1894, provides that any person contracting with the United States for the prosecution of a public work shall give a bond to pay all persons supplying him with labor or material, and that a person supplying labor or material shall have a right of action on such bond in the name of the United States. But it was held that this statute would not sustain a suit on such a bond given before .the passage of the act, for the reason that the statute begins with the words : "Hereafter any person entering into a formal contract with the United States," etc. Sears v. Mahoney (C. C.) 66 Fed. 860. iSee "Statutes,'" Dec. Dig. (Key No.) § 267; Cent. Dig. §§ 350-359. »s Lawrence R. Co. v. Mahoning County Com'rs, 35 Ohio St 1. See "Statutes," Dec. Dig. (Key No.) § 267; Cent. Dig. §§ 850-359. »o Rouge V. Rouge, 15 Misc. Rep. 36, 36 N. Y. Supp. 436. See "Statutes," Dec. Dig. (Key No.) § 267; Cent. Dig. §§ 350-359. 100 See Ohio Nat. Bank v. Berlin, 26 App. D. C. 218; Denny v. Bean, 51 Or. 180, 93 Pac. 693. See "Statutes," Deo. Dig. (Key No.) § 267; Cent. Dig. §§ 350-359. §121) STATUTES EEGUIiATING PROCEDUKE 411 or some part thereof, remains unpaid, may be construed to apply to judgments obtained before its enactment.^"^ Rules of Pleading The rules of pleading are always under the control of the legislature, and may be changed from time to time; and a statute changing such rules will apply to causes of action accrued, and even to actions commenced, before its enact- ment.^"* Thus a statute authorizing releases pleaded in bar to be avoided for fraud by the reply, and requiring the issues thus raised to be submitted to the jury, deals only with remedies, not with rights, and applies to actions pend- ing at the time of its passage.^"^ ' So an act extending the time within which, a garnishee may answer in a justice's court will be held to apply to one who was summoned as a garnishee before the passage of the act.^°* Parties to Actions Statutes which change the rule as to the parties necessary to the determination of controversies will take effect on prior as well as subsequent contracts and transactions, and the actions arising therefrom.^"" Rules of Evidence The rules of evidence are not property in which any per- son can have a vested right. They are a part of the sub- stantive law of the state, and the legislature has the power to make, modify, and repeal such rules, even retroactively, subject only to such specific restrictions as may be found 101 Lawton v. Perry, 40 S. C. 255, 18 S. E. 861. See "Statutes," Dec. Dig. (Key No.) § 267; Cent. Dig. §§ 350-359. 102 Howard v. Fall River Iron Works Co., 203 Mass. 273, 89 N. B. 615; Gibson v. Miller, 28 Ohio Cir. Ct. R. 421. See Hubbard v. New York, N. H. & H. R. Co., 70 Conn. 563, 40 Atl. 533. See "Statutes," Dec. Dig. {Key No.) § 267; Cent. Dig. §§ 350-359. 103 State ex rel. Cardwell v. Stuart, 111 Mo. App. 478, 86 S. W. 471. See "Statutes," Deo. Dig. (Key No.) § 267; Cent. Dig. §§ 350- 359. 104 Willis V. Fincher, 68 Ga. 444. See. "Statutes," Dec. Dig. (Key No.) § 267; Cent. Dig. §§ 350-359. 106 Tompkins v. Forrestal, 54 Minn. 119, 55 N. W. 813. See "Stat- utes," Deo. Dig. (Key No.) § 267; Cent. Dig. §§ 350-359. 412 RETKOSPECTIVE INTBEFEETATION (Ch. 10 in the constitutions."" There is consequently no reason why new or modified rules of evidence should not be made applicable to pending controversies, and they will generally be so construed, unless a contrary intention plainly ap- pears."^ This applies to statutes relating to the admissi- bility of evidence,"* to the question of what shall constitute prima facie evidence,"" and to the burden of proof."" In a case in Maryland, it appeared that a bond to the state was executed at a time when such bonds were required by the revenue laws of the state to be on stamped paper. A suit was brought on this bond, and the court refused to admit it in evidence for want of the stamp. An appeal was taken, and, pending, the appeal, the stamp law was repealed, and validity given to all contracts previously made on un- stamped paper. It was held that the statute had a retroac' tive effect, and the judgment was reversed. It might have been supposed that the obligor in the bond had a vested right to object to its admission in evidence, oA account of the want of a stamp. But the court observed that the loe Southern Ry. Co. v. Tift, 148 Fed. 1021, 79 C. C. A. 536 ; Mal- lery Y. Frye, 21 App. D. C. 105; Campbell v. Skinner Mfg. Co., 53 Fla. 632, 43 South. 874 ; Wheelock v. Myers, 64 Kan. 47, 67 Pac. 632 ; State V. Kline, 50 Or. 426, 93 Pac. 237 ; State v. Weston, 3 Ohio S. & C. P. Dec. 15 ; Haney v. Gartin, 51 Tex. Civ. App. 577, 113 S. W. 166 ; Ariola v. Newman, 51 Tex. Civ. App. 617, 113 S. W. 157 ; Mc- Kinstry v. Collins, 76 Vt. 221, 56 At). 985 ; In re McNaughton's Will, 138 Wis. 179, 118 N. W. 997 ; Sandberg v. State, 113 Wis. 578, 89 N. W. 504 ; Downs v. Blount, 170 Fed. 15, 95 C. C. A. 289. See "Stat- utes," Dec. Dig. (Key No.) § 267; Cent. Dig. §§ 350-359. 107 First Methodist Episcopal Church v. Fadden, 8 N. D. 1^2, 77 N. W. 615; Jessee v. De Shong (Tex. Civ. App.) 105 S. W. 1011; Howard v. Moot, 64 N. T. 262 ; Holmes v. Hunt, 122 Mass. 505, 23 Am. Rep. 381. See "Statutes," Dec. Dig. (Key No.) § 267; Cent. Dig. §§ S50-S59. 108 Stocker v. Foster, 178 Mass. 591, 60 N. E. 407. See "Statutes," Dec. Dig. (Key No.) § 267; Cent. Dig. §§ 350-359. 100 Woodvine v. Dean, 194 Mass. 40, 79 N. E. 882; Fish v. Chicago, St. P. & K. O. Ry. Co., 82 Minn. 9, 84 N. W. 458, 83 Am. St. Rep. 398. See "Statutes," Deo. Dig. (Key No.) § 267; Cent. Dig. §§ 350- 359. 110 Cincinnati, H. & D. R. Co. v. Hedges, 15 Ohio Cir. Ct. R. 254. See "Statutei," Dec. Dig. {Key No.) § 267; Cent. Dig. §§ 350-359. § 121) 8TAT0TE8 REGULATING PKOCEDURB 413 Stamp act was passed for the purpose of raising revenue for the state, and did not design or profess to confer upon the citizens of the state, or others, any private benefit or rights, but operated to impose burdens upon them for state pur- poses. Hence the legislature had full authority to remove such burdens at any time.^*^ The case is somewhat differ- ent, however, with regard to statutes affecting the rules of evidence in criminal prosecutions. In view of the rights of persons charged with crime, so ciarefully and jealously guarded by the constitutions, the rules of evidence in force at the time of the commission of the alleged offense must govern the trial, or at least such a person rnust be exempted from the retroactive operation pf any statute which would change those rules to his disadvantage.^^* Jurisdiction of Courts In , pursuance of the same general principles, statutes granting or transferring jurisdiction of causes may be so construed as to operate upon , existing causes of action.^^' But as a general rule a legislative enactment will not be construed to oust a jurisdiction once regularly and fully vested, unless such an intention is clearly expressed. ^^* Procedure Statutes which, without affecting the substantial rights of the parties, make changes in matters relating merely to the practice and procedure of the courts may, and generally will, be given a retrospective operation.^^"* Thus an act "1 State, to Use of Mayor, etc., of Baltimore v. Norwood, 12 Md. 195. See "Statutes," Deo. Dig. (Key No.) § 267; Cent. Dig. §§ 350- S59. 112 Black, Const. Law (3d Ed.) pp. 604, 678, 709. And see Kittrell V. State, 89 Miss. 666, 42 South. 609. See "Statutes," Dec. Dig. {Key No., § 267; Cent. Dig. §§ 350-359. lis Grand Trunk Ry. of Canada v. Board of Com'rs of Cumberland County, 88 Me. 225, 33 Atl. 988 ; Ball v. Presidio County (Tex. Civ. App.) 27 S. W. 702. See "Statutes," Dec. Dig. (Key No.) § 267; Cent; Dig. §§ 350-359. 11* Crane v. Reeder, 28 Mich. 527, 15 Am. Rep. 223. See "Stat- utes," Dec. Dig. (Key No.) § 267; Cent. Dig. §§ 350-359. iiB Phoenix Ins. Co. v. Shearman (Tex. Civ. App.) 43 S. W. 1063 ; Gibson v. Miller, 28 Ohio Cir. Ct. R. 28 ; Wallace v. Baker, 2 Munf. 414 RBTEOSPBCTIVB INTBKPKETATION (Ch. 10 of the legislature prescribing the order of time in which causes are to be tried is merely remedial, and must apply- to all cases not determined at the date of its promulga- tion.^^' So a statute giving to a defendant, in certain classes of cases, a right to require the plaintifif to furnish security for costs, may be applied to an action commenced before the passage of the statute and pending at that time."' And so of a statute changing the procedure for the enforcement of a mechanic's lien.^^* Vested Rights — Obligation of Contracts But, as has been already stated, statutes which would im- pair or destroy vested rights will not. be allowed to operate retrospectively, if that result can be avoided by any reason- able construction. And this rule is applicable to laws relat- ing to remedies and the course of procedure and practice in the courts, in respect to their applicability to pending suits. ^^' Thus, in a case in Alabama, the defendant pleaded a set-off, and the plaintifif, in reply, pleaded the statute of limitations. After these pleadings were interposed, an act was passed excepting cases of set-off from the operation of the statute of limitations, where the set-off was a legal sub- sisting claim at the time the right of action on the claim in suit accrued to the plaintiff. It was held that this act did not operate retrospectively, so as to deprive the plaintiff of the benefit of his replication.^^" And it must be remarked in (Va.) 334. This rule may be applied even to criminal prosecutions. Jones V. Commonwealth, 86 Va. 661, 10 S. B. 1005. But see Secor v. State, 118 Wis. 621, 95 N. W. 942. See "Statutes," Deo. Dig. (Key No.) § S67; Gent. Dig. §§ S50-359. 116 Hoa V. Lefranc, 18 La. Ann. 393. See "Statutes," Dee. Dig. (Key No.) § 267; Cent. Dig. §§ 330-359. 117 Klmbray v. Draper, L. R. 3 Q. B. 160. See "Statutes," Dec. Dig. (Key No.) § 267; Cent. Dig. §§ 350-359. lis Orman v. Crystal River Ry. Co., 5 Colo. App. 493, 39 Pac. 434. See "Statutes," Deo. Dig. (Key No.) § 267; Cent. Dig. §§ 350-359. 110 Files V. Fuller, 44 Arlj. 273. See "Statutes," Deo. Dig. (Key No.) § 267; Cent. Dig. §§ 350-359. 120 Bradford v. Barclay, 42 Ala. 375. But see Campbell v. Holt, 115 U. S. 620, 6 Sup. Ct. 209, 29 L. Ed. 483. See "Statutes," Dec. Dig. (Key No.) § 267; Cent. Dig. §§ 350-359. § 121) STATUTES KEGDLATING PROCEDURE 415 general that the right to plead the statute of limitations as a defense, when its bar has fully attached, becomes a vested right, which cannot be interfered with or destroyed by re- viving the cause of action, at least in cases where the title to property has vested under the statute,^ ^^ though it may be otherwise where the demand is for a personal debt or on a contract, or in other cases where the statute merely gives a defense.^^'' So, again, a judgment, final or not ap- pealed from, is a vested right of property in such a sense that the legislature cannot destroy or diminish its value or deprive the owner of the fruits of it.^"' Thus a statute of Vermont provided that "the judgment to account in the common-law action of account shall not debar the defend- ant from making any defense before the auditor which he might have mac^e by special plea in bar of the action if said judgment to account had not been rendered." But it was held that this statute was not retrospective, and did not apply to a case in which judgment to account was rendered, and an auditor appointed, before the passage of the act, but wherein the account was not taken until after that date. The ground of the decision was that, if the statute were allowed to afiEect the pending case, it would deprive the plaintiff of a substantial right, namely, the right to rely i2iEdelstein v. Carlile, 33 Colo. 54, 78 Pac. 680; Lawrence v. City of Louisville, 96 Ky. 595, 29 S. W. 450, 27 L. B. A. 560, 49 Am. St. Bep. 300; Ireland v. Mackintosh, 22 Utah, 296, 61 Pac. 901; Bingartner v. Illinois Steel Co., 103 Wis. 373, 79 N. W. 483, 74 Am. St Rep. 871; Power v. Telford, 60 Miss. 195; McEldowney v. Wyatt, 44 W. Va. 711, 30 S. E. 239, 45 L. R. A. 609 ; Dyer v. City of Belfast, 88 Me. 140, 33 Atl. 790 ; Denny v. Bean, 51 Or. 180, 93 Pac. 693. See "Statutes," Dee. Dig. (Key No.) § 267; Cent. Dig. §§ S50- S59. 1*22 Campbell v. Holt, 115 U. S. 620, 6 Sup. Ct. 209, 29 L. Ed. 483 ; McEldowney v. Wyatt, 44 W, Va. 711, 30 S. E. 239, 45 L. R. A. 609. See "Statutes," Dee. Dig. (Key No.) § 267; Cent. Dig. §§ 350-S59. 123 Village of New Holland v. Holland, 99 111. App. '251; Chiles v.' School Dist. of Buckner, 103 Mo. App. 240, 77 S. W. 82 ; Merchants- Bank of Danville v. Ballou, 98 Va. 112, 32 S. E. 481, 44 L. R. A. 306, 81 Am. St. Rep. 715. See "Statutes," Dec. Dig. (Key No.) § 267; Cent. Dig. §§ S50-359. 416 EBTKOSPBCTIVB INTERPRETATION (Ch. 10 upon the judgment rendered."* To take another illustra- tion : A statute of Iowa provided that pension money- should not be liable to be, taken for the pensioner's debts. Before this act, a creditor of a pensioner had begun an ac- tion to subject the pension money to the satisfaction of his claim. It was held that the statute did not aflfect the credr itor's rights; for he had a vested right of action, and by the institution of his suit he had acquired an equitable lien which the legislature could not divest.^ ^' So again, under a statute limiting parties to two actions for the recovery of land, and providing that nothing contained therein shall prevent persons from b^ing entitled to two actions after the passage of the act, an action pending at the time the act was passed cannot be considered as one of the actions al- lowed. ^^° It is a general rule that the law in force at the time of the making of a contract governs the rights of the parties, but the law in force at the time of the proceedings to enforce the contract controls the remedy and the proce- dure with respect thereto,^^'.or, in other words, that the remedy provided for the enforcement of a contract is no part of its obligation.^^* Yet, if the application of a new or modified remedy to an existing state of facts would ac- tually impair the obligation of a contract, the statute pro- viding if will not be construed with a retroactive opera- tion.^*" So, again, where a law imposing a new condition on a common-law right of action does not provide for exist- ing rights of action, and yet uses general language applica- la^Sturgls V. Hull. 48 Vt. 302. See "Statutes," Dec. Dig. {Key No.) § 267; Gent. Dig. §§ S50-S59. 12S Goble V. Stephenson, 68 Iowa, 270, 26 N. W. 433. See "Stat- utes," Dec. Dig. {Key No.) § 267; Cent. Dig. §§ S50-S59. 128 Duren v. Kee, 41 S. C. 171, 19 S. B. 492. See "Statutes," Deo. Dig. {Key No.) § 267; Cent. Dig. §§ 850-359. 127 Peterson v. Mayer, 142 111. App. 257. See "Statutes," Dec. Dig. {Key No.) § 267; Cent Dig. §§ 350-S59. 128 Black, Const. Law (3d Ed.) 746. See "Statutes," Dec. Dig. {Key No.) § 267; Cent. Dig. §§ 350-359. 129 state ex rel. McNeal v. Bennett, 24 Ind. 383; Adams v. Green, 100 Ala. 218, 14 South. 54 ; McCracken v. Hayward, 2 How. 608, 11 L. Ed. 397. See "Statutes," Dec. Dig. {Key No.) § 267; Cent. Dig. §§ 350-359. - § 121) STATUTES REGULATING PROCEDURE 417 ble to such rights, the court must apply it, or not, to pre- existing rights, according as it shall judicially appear that a reasonable time was left after it took efifect for the par- ticular person affected to perform the condition.^^" For similar reasons, a law requiring persons suing to set aside tax deeds to tender. the amount for which the property was sold, together with taxes subsequently paid, will be held prospective only in its operation.^^^ Cases Pending on Appeal A more difficult question, and one on which the author- ities are somewhat divided, is as to the efifect of statutes of this kind on cases where a judgment has already been rendered and the case is pending on appeal. Let it be sup- posed that a judgment has beien correctly given in the lower court, for or against one of the parties, on a ground of claim or defense which is afterwards annulled, obviated, or made immaterial by a retrospective statute. In the mean time, the case has been appealed. The question then is whether the appellate court should reverse the judgment (which was correct and in accordance With the law at the time it was rendered) or refuse to give effect to the retrospective statute in this particular case. In some jurisdictions it is maintained that the judgment of the lower court must be tested by the law as it stood at the time the judgment was rendered, and that the question of its affirmance or reversal must be decided solely with reference to the then existing state of the law. Thus, for example, a judgment was ren- dered declaring a tax levy invalid because the several items of the tax were illegally blended in one assessment roll. An appeal was taken, and, pending the appeal, a statute was passed legalizing the assessment and assessment roll. But it was held that this act could not be deemed to operate retrospectively upon the case in which the said judgment had been rendered, and that the judgment must be affirmed 130 Eelyea v. Tomahawk Paper & Pulp Co., 102 Wis. 301, T8 N. W. 412, 72 Am. St. Rep. 878. See "Statutes," Deo. Dig. (Key No.) § 367; Gent. Dig. §§ 350-359. 131 Haarstick v. Gabriel, 200 Mo. 237, 98 S. W. 760. See "Stat- utes," Deo. Dig. (Key No.) § 267; Cent. Dig. §§ 350-359. Black Int.L.— 27 418 RETROSPECTIVE INTERPRETATION (Ch. 10 on appeal, notwithstanding the act."'' But on the other hand, there are respectable authorities to the effect that a curative or legalizing act, or one removing a disability or waiving an objection, if sipplicable to the state of facts on which a judgment was rendered, will go behind the judg- ment and thereby render it erroneous, so as to require its reversal on appeal.^"* CURATIVE STATUTES. 122. Curative statutes, whether relating to judicial or ad- ministrative action, or to the transactions of pri- vate parties, are intended to operate upon past facts or acts, and are therefore necessarily retro- spective. 123. Such statutes can be applied only in cases where the particular defect, omission, or irregularity to be cured is of such a nature that the legislature might competently have dispensed vdth it or rendered it immaterial in advance; and they must be so re- stricted as not to transgress any positive provisions of the constitution or interfere with vested rights of third persons. Curative statutes are those which undertake to cure er- rors and irregularities in judicial or administrative proceed- ings, and which are designed to give effect to contracts and other transactions between private parties which otherwise would fail of producing their intended consequences by reason of some statutory disability or the failure to comply 182 People V. Moore, 1 Idaho, 662. And see Wright v. Graham, 42 Ark. 140; Kingsbery v. Ryan, 29 Ga. 108, 17 S. E. 689; Bedier v. Fuller, 116 Mich. 126, 74 N. W. 506 ; Wallace v. Oregon Short Line R. Co., 16 Idaho, 103, 100 Pac. 904. See "Statutes," Dec. Dig. (Key no.) § 267; Cent. Dig. §§ 350-359. 183 King V. Course, 25 Ind. 202; State, to Use of Mayor, etc., of Baltimore, v. Norwood, 12 Md. 195. And see Gibson v. Miller, 28 Ohio Cir. Ct. R. 28 ; In re Commissioner of Public Works in City of New York, 111 App. Div. 285, 97 N. Y. Supp. 503. See "Statutes," Dee. Dig. (Key No.) § 267; Gent. Dig. §§ 350-859. §§ 122-123) CURATIVE STATUTES 419 with some technical requirement. They are therefore nec- essarily retroactive in their character."* The same power of the legislature to amend what has previously been donci and done amiss or ineffectually, may be applied to its own enactments, and it is competent for the legislature to cure defects in a prior statute, which, when so cured, will be- come valid prospectively."" And an act of this kind may apply to and govern a suit pending at the time of its pas- sage, as where the action is founded on the invalidity of certain proceedings which are retrospectively validated by the curative act,^'* unless this kind of interference with pending suits is forbidden by the constitution.^^' But, when a claim or demand has passed into judgment, it is beyond the control of the legislature, and cannot be af- fected by such a statute. ^^' Aside from the question of their retroactive operation, curative statutes, like all others, are subject to interpreta- tion by the courts. Thus, in a case in Iowa, where, a cura- tive statute relating to mutual powers of attorney executed by husband and wife was enacted shortly after the rendition of a judicial decision on the same subject, it was held that it might reasonably be presumed that the statute was framed with reference to that decision, and that it should be accordingly limited in its application.^^" 13* MeSurely v. McGrew, 140 Iowa, 163, 118 N. W. 415, 132 Am. St. Rep. 248. And see McFaddin v. Evans-'Snider-Buel Co., 185 U. S. 505, 22 Sup. Ct. 758, 46 L. Ed. 1012. See "Statutes," Deo. Dig. (Key No.) § 268; Cent. Dig. §§ SGO, 361. 13 5 pelo v. Stevens, 66 Misc. Rep. 35, 120 N. T. Supp. 227. See "Statutes," Deo. Dig. (Key No.) § 268; Cent. Dig. §§ 360, 381. 136 Windsor v. City of Des Moines, 110 Iowa, 175, 81 N. W. 476, 80 Am. St. Rep. 280. See Weitz v. Walter A. Wood Reaping & Mow- ing Mach. Co., 49 Neb. 434, 68 N. W. 613. Bee "Statutes," Dec. Dig. (Key No.) § 268; Cent. Dig. §§ 360, 361. 137 Fuller T. City of Montpelier. 73 Vt. 44, 50 Atl. 544. See "Stat- utes," Dec. Dig. (Key No.) § 268; Cent. Dig. §§ 360, 361. 138 Kearney County v. Taylor, 54 Neb. 542, 74 N. W. 965; Martin V. South Salem Land Co., 94 Va. 28, 26 S. E. 591. But see Steele County V. Erskine, 98 Fed. 215, 39 C. C. A. 173. See "Statutes," Dec. Dig.. (Key No.) § 268; Gent. Dig. §§ 360, 361. 13 8 Swartz V. Andrews, 137 Iowa, 261, 114 N. W. 888, 126 Am. St. 420 RETROSPECTIVE INTERPRETATION (Oh. 10 Statutes of this character are limited in their application. They are valid only where the fault to be cured arose from some irregularity, informality, or statutory disability which the legislature might have rendered immaterial or harpir less by legislation in adviance of the particular transaction, or from the want of some formality or ceremony which it might have dispensed with in advance."" Nor can a trans- action be thus validated which was expressly forbidden by the constitution at the time of its occurrence.^*^ And, fur- ther, it is well settled that retrospective curative acts can- not be allowed to interfere with rights of third persons vested at the time of their passage.^*" And even curative statutes will not be construed as retroactive if they are so expressed as to show that such was not the intention of the legislature. For instance, an act providing that "any act done by a notary public subsequently to the expiration of his term of office shall be as valid as if done during his term of office," will not retroact so as to make good an unauthorized acknowledgment of a deed taken before the statute was passed."* And it is held that a statute provid- ing that "the contracts of any married woman made for Rep. 285. See "Statutes," Dec. Dig. (Key No.) § 268; Cent. Dig. §§ 560, 361. 140 Wright V. Johnson, 108 Va. 855, 62 S. E. 948; Single v. Mara- thon County Sup'rs, 38 Wis. 363; City of Eedlands v. Brook, ISl Cal. 474, 91 Pac. 150 ; Board of Com'rs of Wells County v. Fahloi;, 132 Ind. 426, 31 N. E. 1112; Cranor v. Volusia County ComTs, 54 Fla. 526, 45 South. 455. Bee "Statutes," Dec. Dig. (Key No ) S 268 • Cent. Dig. §§ 360, SBi. ' 1*1 Town of Walton v. Adair, 111 App. Div. 817, 97 N. X. Supp. 868. See "Statutes," Deo. Dig. (Key No.) § 268; Gent. Dig. §§ 360 561. * 142 McGehee y. McKenzie, 43 Ark. 156 ; Finders v. Bodle, 58 Neb 57, 78 N. W. 480; Simmons v. Inhabitants of Hanover 23 Pick (Mass.) 188; McDowell v. Rockwood, 182 Mass. 150 65 N E 65- Merchants' Bank of Danville v. Ballou, 98 Va. 112 32 S b' 481 44 ^92?^it'i^?' ^lf"i,l*\^^^- J^^= ^^°"P"°° ^- Morgan, 6 mIuh. ^360 m statutes," Dec. Dig. (Key No.) § 268; Cent. Dig. /^'"^Tl^LI- ^^'"'^''' ^^ ^'^^° ^^- ^^- -See "Statutes," Deo. Dig (Key No.) § 268; Cent. Dig. §§ 360, 361. ^ §§ 124-125) BEPEALING ACTS 421 any lawful purpose shall be valid and binding" should be construed as prospective only, and not as applying to prom- issory notes made before its enactment.^** REPEALING ACTS 124. A repealing statute is generally to be construed retro- spectively, in so much that any right or liability, right of action, penalty, or forfeiture which de- pended wholly on the repealed statute and did not exist at common law, and which had not passed into judgment at the time of the repeal, will be cut off and destroyed by the repeal, tinless saved by a clause in the repealing act applicable thereto, or by a general statute having the same effect. 125. But many states now have general statutes abrogating this rule, and providing that the repeal of a statute shall not affect or impair any act done, right vested, duty imposed, penalty accrued, or proceeding com- menced before the taking effect of the repealing act. These statutes are valid, and create a new rule of construction which is binding on the courts, and which must be applied in all cases except where it is evident that the effect would be to de- feat the plain and manifest purpose of the legiS' latiure in the repealing statute. In a number of cases the courts have been so much im- pressed with the harshness of the common-law rule above stated that they have restricted it within the narrowest pos- sible bounds, or have even denied it utterly, holding that a repealing statute should have a prospective operation only, unless a contrary intention on the part of the legis- lature very plainly appears,^*" especially in instances where 144 Bryant v. Merrill, 55 Me. 515. See "Statutes," Dec. Dig. (Key No.) § 268; Cent. Dig. §§ 360, 361. 145 Morgan v. Chappie, 10 Kan. 216; Blakemore v. Cooper, 15 N. D. 5, 106 N. W. 566, 4 L. R. A. (N. S.) 1074, 125 Am. St. Rep. 574. And see Culpepper v. International & 6. N. Ry. Co., 90 Tex. 627, 40 422 EBTEOSPECTIVB INTERPRETATION (Ch. 10 great injury and injustice would result from the application of. the generally accepted rule.'" Still it remains the set- tled riile, according to the preponderance of authority, that any right or privilege or right of action which did not exist at common law, but was dependent entirely upon a statute giving or creating it, will be lost or abrogated by the repeal Qf.that statute, unless saved by a special provision in the repealing act."' And on the same principle, where the former statute gave a right of action for a penalty or for- feiture, it will be destroyed by the repeal of the statute (without a saving clause) unless prdsecuted to final judg- ment before the repeal."' This applies not only to rights which yet rest in posse, but also to such as have actually been brought into suit. If the statute on which an action is based, or which gives the special remedy in process of S. W. 386; Town of Wrentham v. Fales, 185 Mass. 539, 70 N. E. 936: See "Statutes," Dec. Dig. (Key No.) §§ 372-277; Gent. Dig. §§ 365- Si5. i46Tliacher v. Board of Sup'rs of Steuben County, 21 Misc. Rep. 271, 47 N. T. Supp. 124. But this decision was reversed in 31 App. Div. 634, 53 N. Y. Supp. 1116. See "Statutes," Dec. Dig. {Key No.) §§ 272-277; Cent. Dig. §§ 365-375. 1*7 McNabb v. President, etc., of Village of Tonlca, 103 111. App. 156 ; Taylor v. Strayer, 167 Ind. 23, 78 N. E. 236, 119 Am. St Rep. 469; Moor v. Seaton, 31 Ind. 11; Crawford v. Halsted, 20 Grat. (Va.) 211. And see, generally, the other cases cited in this section. See "Statutes," Dec. Dig. (Key No.) §§ 272-277; Cent. Dig. ii 365- 375. 1*8 Commercial Union Assur. Co., Limited, of London v. Wolf, 8 Cal. App. 413, 97 Pac. 79; Westchester County v. Dressner, 23 App. IMv. 215, 48 N. X. Supp. 953 ; Pensacola & A. R. Co. v. State, 45 Fla. 86, 33 South. 985, 110 Am. St. Rep. 67. Within the meaning of this rule, a statute giving a right to recover of a person by civil action, either for the benefit of the public or in its name for the benefit of a private person, or in the name of the latter for his own use, a sum of money by way of punishment, is a penal statute, and rights under it do not survive a repeal thereof without a saving clause. Miller v. Chicago & N. W. R. Co., 133 Wis. 183, 113 N. W. 384. The same is true of a statute requiring railroads operating over inclosed lands to construct and maintain suitable and convenient farm crossings for the use of the occupants thereof, and providing a penalty for failure to comply, payable to the owner or occupant. Id. See "Statutes," Dec Dig. {Key No.) §§ 272-277; Gent. Dig. §§ 365-375. §§ 124^125) KEPEALING A0T8 423 enforcement, is repealed after the suit is brought, the suit is abated, and all proceedings must stop where they are.^*' But if a judgment has been rendered before the taking ef- fect of the repealing act, it cannot be affected thereby,^"" and it seems that this is also the case where a verdict has been rendered, and questions of law reserved, before the repeal, and judgment is thereafter entered in accordance with the verdict.^"* Also, where a right of action exists independent of statute, and a statute is enacted prescribing a condition constituting an additional element of the matter out of which the right of action arises, the repeal of the statute after the right of action accrued and prior to the trial will not affect its application to such action ; and this rule is applicable to actions sounding in tort, as well as to those arising out of contract.^"'' If the section or part of the old statute which gave the right, right of action, or penalty is verbally or substantially re-enacted in the repealing act, there is technically no mo- ment of time when the repealed section was not the law, and hence that portion of the repealing act is to be con- strued as a continuation of the provisions previously in force and not as a new enactment; from which it results that, even in the absence of a saving clause, the repeal does not destroy or affect existing rights of action or pending suits.^"' i*»Curran v. Owens, 15 W. Va. 208; Stewart v. Lattner (Tex. GSv. App.) 116 S. W. 86a; Jesses v. De Shong (Tex. Civ. App.) 105 S. W. 1011. But If the repeal of the statute does not destroy rights of action created by it, It will not affect pending suits. Burns t. Hays, 44 W. Va. 503, 30 S. E. 101. Bee "Statutes," Deo. Dig. (Key No') §§ 272-277; Cent. Dig. §§ 365-375. 150 Curran v. Owens, 15 W. Va. 208. See "Statutes" Dec. Dig. (Key No.) §§ 272-277; Cent. Dig. §§ 365-375. 151 Inhabitants of Springfield v. Inhabitants of Worcester, 2 Gush. (Mass.) 52. See "Statutes," Dec. Dig. (Key No.) §§ 272-277; Cent, Dig. i§ S65-S75. 152 James v. Oakland Traction Co., 10 Cal. App. 785, 103 Pac. 1082. See "Statutes," Dec. Dig. (Key No.) §§ 272-277; Cent. Dig. §§ 365- 375. 153 Curran v. Owens, 15 W. Va. 208; Jockers v. Borgman, 29 Kan. 109, 44 Am. Rep. 625; Merkle v. Bennington Tp., 68 Mich. 133, 35 424 RETROSPECTIVE INTERPRETATION (Ch. 10 An express saving clause in a repealing statute is not required in order to prevent the destrucsiori of rights exist- ing under the former statute, if the intention to preserve and continue such rights is otherwise clearly apparent.^ ^* Thus, if it can be gathered from any act on the same sub- ject passed by the legislature at the same session that it was the legislative intent that pending proceedings should he saved, it will be sufficient to effect that purpose.^ ^'^ Even the general public policy of the state, as manifested and coptinued in operation for a long term of years and by vari- ous statutes, may be appealed to in this behalf, and while it will not prevail over a clear and distinct enactment, nor perhaps be sufficient absolutely to supply the place of a saving clause, yet it may go far to explain any ambiguous language in such a clause.^'' Impressed with the harsh and injurious operation of this rule of the commori law, many states have now abrogated it by statute. This has frequently been done on the adop- tion of a code of laws or revision of the statutes, for the purpose of saving rights accrued and actions pending un- der the separate statutes so codified or compiled and tech- nically repealed by the adoption of the new body of laws."^ But there are also, in several states, general laws on this subject, applicable to all statutes thereafter to be passed, and saving from the effect of any future repealing act rights or causes of action, and pending suits, accrued or begun N, W. 846 ; Alexander v. City of Big Eaplds, 70 Mich. 224, 38 N. W. 227 ; Moore v. Kenockee Tp., 75 Mich. 332, 42 N. W. 944, 4 L. R. A. 555. See "Statutes," Dec. Dig. (Key No.) §§ 272-277; Cent. Dig. §§ S65S75. loiGorley v. Sewell, 77 Ind. 316; Commonwealth v. Mortgage Trust Co. of Pennsylvania, 227 Pa. 163, 76 Atl. 5. See "Statutes " Deo. Dig. [Key No.) §§ 272-277; Cent. Dig. §§ SSSSTS. 15!! Baltimore & O. R. Co. v. Pittsburg, w. & K. R. Co., 17 W. Va. 812. See "Statutes," Dec. Dig. (Key No.) §§ 272-277; Cent. Dig. §§ S6S—375. 166 Blackwood V. Van Vleit, 30 Mleh. 118. See "Statutes." Dec. Dig. (Key No.) §§ 272-077; Cent. Dig. §§ 365-375. 167 See, for example, Code of Laws D. C. 1901, § 1638, and Gwin V, Brown, 21 App. D. C. 205. See "Statutes," Dec. Dig (Key No) §§ 272-277; Cent. Dig. S§ 365-375. §§ 124-125) KEPEALING ACTS 425 under the repealed act, and also, generally, penalties a:nd forfeitures, and rights of action therefor, previously accrued or vested.^"* These statutes are not invalid as an attempt to limit or restrict the power of succeeding legislatures, but they prescribe a new rule of construction, binding upon the courts, as a substitute for the common-law rule with respect to the effect of repealing statutes.^^" But as they rest generally upon the authority of the legislature, arid not upon the constitution, they are, of course, subject to repeal, either in general or pro re nata. Hence a general saving act of this character will not be held to apply where, either from an express declaration in a particular repealing statute, or from a consideration of its terms as a whole, it is evident that the purposfe and intention of the legislature would be frustrated by allowing the general saving act to 158 See Eev. St. U. S. § 13 (U. S. Comp. St. 1901, p. 6); Great Northern Ry. Co. v. United States, 208 U. S. 452, 28 Sup. Ct. 313, 52 L. Ed. 567; United States v. Chicago, St. P., M. & O. E; Co. (D. C.) 151 Fed. 84 ; United States v. Standard Oil Co. (D. C.)' 148 Fed. 719 ; Murphy v. Utter, 186 U. S. 95, 22 Sup. Ct 776, 46 L. Ed. 1070 (Con- struing Rev. St. Ariz. 1887, par. 2934, § 7) ; Code Civ. Proc. Cal. § 18 ; Kelly v. Larkin, 47 Cal. 58 ; Laws Colo. 1891, p. 366, § 1 ; Cav- anaugh v. Patterson, 41 Colo. 158, 91 Pac. 1117 ; Pensacola & A. R. qp. V. State, 45 B^la. 86, 33 South. 985, 110 Am. St. Rep. 67 (constru- ing Const. Fla. 1885, art. 3, § 32); Rev. St. 111. 1874, c. 131, § .4; Chicago, P. & St. L. Ry. Co. v. People, 136 111. App. 2; Bums' Ann. St Ind. 1894, § 248; Starr v. State ex rel. Ketcham, 149 Ind. 592, 49 N. B. 591; City of Indianapolis v. Morris, 25 Ind. App. 409, 58 N. E. 510; Gen St. Kan. 1901, § 7342; Denning v. Yount, 9 Kan. App. 708, 59 Pac. 1092; Rev. St Mo. 1889, §§ 6596, 6598; Bell v. McCoy, 136 Mo. 552, 38 S. W. 329 ; 1 Gen. St. N. J. 1895, p. 3194, § 3 ; Laws N. T. 1892, c. 677, § 31 ; City of New York v. Herdje, 68 App. Div. 370, 74 N. Y. Supp. 104 ; Code N. C. § 3764 ; City of Wil- mington V. Cronly, 122 N. C. 383, 30 S. B. 9; Rev. St Wis. 1878, § 4974 ; H. W. Wright Lumber Co. v. Hixon, 105 Wis. 153, 80 N. W. 1110. See "Statutes," Dec. Dig. (Key No.) §§ 272-277; Cent Dig. §§ .S65S75. IBS United States v. Chicago, St. P., M. & O. Ry. Co. (D. C.) 151 Fed. 84; United States v. Standard Oil Co. (D. C.) 148 Fed. 719 ; Gilleland v. Schuyler, 9 Kan. 569 ; Thacher v. Board of Sup'rs of Steuben County, 21 Misc. Rep. 271, 47 N. Y. Supp. 124. See , "Statutes," Deo. Dig. (Key No.) §§ 272-277; Gent. Dig. §§ 365-S75. 426 KETEOSPECTIVE INTERPRETATION (Oh. 10 govern.*"* This is also the case where a particular repeal- ing statute contains its own saving clause. The insertion of such a clause will be taken as a legislative declaration that rights, actions, penalties, etc., not mentioned in it, are not to be saved from the effect of the repealing act, and it will be immaterial that such rights or actions may be in- cluded in the general statute.*"* As to the construction of such general laws, it is held that one which provides that the repeal of any statute shall not release any "penalty, for- feiture, or liability" incurred thereunder includes fines and imprisonment for violations of penal statutes.**^ But a constitutional provision that the repeal of a statute shall not affect the prosecution of any crime committed before such repeal does not apply to a civil suit for the recovery by the state of a penalty imposed by a statute for an act which is not denounced or punishable as a crime.*"' So, where the saving act extends to "any right already existing or any action or proceeding already taken," a motion for a new trial is not saved, not being a "right." *'* Nor does such a statute save the right to try a pending cause under a rule of evidence established by a repealed statute.*'" I 160 Great Northern Ry. Co. v. United States, 208 tJ. S. 452, 28 Sup. Ct. 313, 52 L. Ed. 567; Cortelyou v. Anderson, 73 N. J. Law, 427, 63 Atl. 1095. See "Statutes," Dec. Dig. (Key No.) §§ 272-277; Gent. Dig. §§ S65-375. 101 Palmer v. Hickory Grove Cemetery, 84 App. Div. 600, 82 N. Y. Supp. 973. See "Statutes," Dec. Dig. (Key No.) §§ 272-277; Cent. Dig. §§ 365-375. 102 State V. Hardman, 16 Ind. App. 357, 45 N. E. 345. See "Stat- utes," Dec. Dig. (Key No.) §§ 272-277; Cent. Dig. §§ 365-375. 103 Pensacola & A. R. Co. v. State, 45 Fla. 86, 33 South. 985, 110 Am. St. Rep. 67. See "Statutes," Dec. Dig. (Key No.) §§ 272-277; Cent. Dig. §§ 385-375. 10* Kelly V. Larkin, 47 Cal. 58. See "Statutes," Dec. Dig. (Key No.) §§ 272-277; Cent. Dig. §§ 365-375. 186 Wheelock v. Myers, 64 Kan. 47, 67 Pac. 632. And see Bnsley V. State (Okl. Cr. App. 1910) 109 Pac. 250, to the effect that a con- stitutional provision that the repeal of a statute shall not affect any accrued right or proceeding begun by virtue of such repealed stat- ute, does not apply to mere changes In the law of procedure. See "Statutes," Dec. Dig. (Key No.) §§ 272-277; Cent. Dig. §§ 365-^75. §§ 126-128) PROVISOS, EXCEPTIONS, AND SAVING CLAUSES 427 CHAPTER XI CONSTRUCTION OF PROVISOS, EXCEPTIONS, AND SAVING CLAUSES. 126-128. Definitions. 129. Office of Proviso. 130. Proviso Limited to Preceding Matter, 131. Construction of Provisos. 132. Repugnant Provisos and Saving Clauses. DEFINITIONS 126. A proviso is a clause added to a statute, or to a section or part thereof, which introduces a condition or limitation upon the operation of the enactment, or make^ special provision for cases excepted from the general provisions of the law, or qualifies or restrains its generality, or excludes some possible ground of misinterpretation of its extent.^ 127. An exception in a statute is a clause similar to a pro- viso. Specifically, it excepts from the operation of the statute persons, things, or cases which would otherwise have been included in it. 128. A saving clause in a statute is an exemption of a spe- cial thing out of the general things mentioned in the enactment. More particularly, it exempts ex- isting rights or causes of action or pending pro- ceedings from the operation of a statute which otherwise would change or destroy them. Provisos A proviso is commonly found at the end of the act or section to which it applies, and it is usually introduced by the word "provided." This, however, is not necessary to 1 Minis V. United States, 15 Pet. 445, 10 L. Ed. 791 ; In re Mat- thews (D. C.) 109 Fed. 614; Carroll v. State, 58 Ala. 896; Waffle V. GoWe, 53 Barb. (N. X.) 522. See "Statutes," Dec. Dig. {Key No.) § 228; Cent. -Dig. $ SIO. 4?8 PROVISOS, I5XCEPTI0NS, AND SAVING CLAUSES (Ch. 11 determine its character. "It does not necessarily follow that because the term 'provided' is used, that which may succeed it is a proviso, though that is the form in which an exception is generally made to, or a restraint or qualifica- tion imposed on, the enacting clause. It is the matter of the succeeding words, and not the form, which determines whether it is or not a technical proviso." ^ So, also, the position of a limiting or restra.ining clause is not an invari- able test of its character as a proviso. Though a proviso is ordinarily placed immediately after the clause or section which it is to restrain, yet words of an appropriate char- acter to fulfill the office of a proviso may apply to the whole of a section, or to an entire enactment, no matter where they appear.* The proviso is a subsidiary and dependent part of the statute, or of the section to which it is appended. Hence, when a statute with a proviso is repealed, the pro- viso will, fall with the statute; it will not continue in force as- an independent enactment.* But in interpreting a sec- tion of a statute which remains in force, resort may be had to a proviso to it, although the proviso has been repealed.^ Birceptions An exception is commonly incorporated in the body of the act or section which it modifies. It is frequently (but not necessarily) introduced by the word "except." For example, in the Constitution of the United States it is pro- vided: "Every order, resolution, or vote to which the con- currence of the Senate and House of Representatives shall be necessary, except on a question of adjournment, shall be presented to the President." Again, if an excise law provides that it shall be a misdemeanor for "any person not 2 Carroll v. State, 58 Ala. 396. See "Statutes," Deo. Dig. (Key No.) § 228; Omt. Dig. § 310. 3 King's Lake Drainage & Levee Dist. v. Jamison, 176 Mo. 557, 75 S. W. 679; United States v. R. P. Downing & Co., 146 Fed. 57, 76- 0. C. A. 376. See "Statutes," Dec. Dig. {Key No.) § 228; Gent Dig. I 310. * Church v. Stadler, 16 Ind. 463. See "Statutes," Deo. Dig (Key No.) § 228; Cent. Dig. § 310. , B Bank for Savings v. The- Collector, 3 Wall. 495, 18 L. Ed. 207. See "Statutes," Deo. Dig. (K&y No.) § 228; Cent. Dig. 9 SIO. §§ 126-128) DEFIN1TION8 429 being a licensed retailer" to sell liquor, the exemption of persons holding licenses is properly an exception. When the terms are used with technical precision, the distinction between a proviso and an exception is this: an exception exempts absolutely from the operation of an enactment, while a proviso defeats its operation conditionally. An exr ception takes out of an enactment something which would otherwise be part of the subject-matter of it;; a proviso avoids it by way of defeasance or excuse.' There is also a well-known distinction between an exception in the pur- view of the act and a proviso, in this respect: If there be an exception in the enacting clause of a statute, it must be negatived in pleading,, but a separate proviso need not be, and that, although it is found in the same section of. the act, if it be not referred to and engrafted on the enacting clause.'' This is a rule of pleading and is not properly ger- mane to the subject of construction, but is mentioned here as illustrating some of the differences between provisos and exceptions. Saving Clauses A saving clause is usually placed at or near the end of the act, and is most corniponly introduced, by the words "nothing in this act shall be held," etc. Such clauses are often found in repealing statutes, where their specific use is to exempt from the effect of the repeal proceedings in- 6 Waffle V. Goble, 53 Barb. (N. Y.) 517, 522. And see Campbell V. Jackman Bros., 140 Iowa, 475, 118 N. W. 755, 27 L. R. A. (N. S.) 288. An exception of a particular thing from the general wards of a statiite tends to show that it was the opinion of the legisla-: ture that the thing excepted would have been. within the general words if the exception had not been made. Scfliuyler v. SoutHefri Pac. Co. (Utah) 109 Pac. 458. But the technical distinction between exceptions and provisos is now but little regarded; they serve a similar and practically identical purpose. State v. Barrett, 172 Ind. 169, 87 N. E. 7. See "Statutes," Dec. Dig. (Key No.) § 228; Cent. Dig. § SIO. 7 Sedgwick, Stat. Constr. (2d Ed.) 50;. Trustees of First Baptist Church in City of Schenectady v. Utica & S. R. Co., 6 Barb. (N. Y.) .313; Vavasour v. Ormrod, 6 Barn. & C. 430; Commonwealth v. Louisville & N. R. Co., 140 Ky. 21, 130 S. W. 798. See "Statutes,' Dec. Dig. {Key No.) § 228; Cent. Dig. § SIO. 430 PEOVISOS, EXCEPTIONS, AND SAVING CLAUSES (Ch. 11 augurated or rights vested under the law to be repealed.' For example, ordinarily, a right to a statutory penalty or forfeiture may be destroyed at any time before a recovery has been had, by the repeal of the law which gave it. But if it is desired to make an exception in favor of those who had already begun their actions when the repealing act is passed, this may be done by a saving clause. So also, when a new act makes changes in the jurisdiction of the courts, or in the rules of practice or evidence, a saving clause is often introduced in order to except from the' operation of the act proceedings which may be pending and undeter- mined at the time of its passage. When a new statute on the same subject as a prior one repeals the former law, with a saving clause in the repealing section as to existing suits or litigation, the saving in such case is in legal effect a limitation on the repealing clause, and operates to con- tinue in force the old law as to existing suits or proceed- ings.* OFFICE OF PROVISO 129. The proper office of a proviso is to limit or restrict the preceding section or part of the statute, not to expand or enlarge it or to introduce new provisions. But it must be held to enlarge the scope of the act, or even to take on the character of a separate and independent enactment, if that is in accordance with the evident purpose of the legislature. The primary and usual ofHce of a proviso is to put a lim- itation or restraint upon the general language employed in the statute, or to except or reserve out of the effect of 8 State ex rel. Crow v. St. Louis, 174 Mo. 125, 73 S. W. 623, 61 U R. A. 593; Clark Thread Co. v. Inhabitants of Kearny Tp., 55 N. J. Law, 50, 25 Atl. 327; Baxter v. Hamilton, 20 Mont. 327, 51 Pac. 265; In re Schneck, 78 Kan. 207, 96 Pac. 43-,. Brookman v. State Ins. Co., 15 Wash. 29, 45 Pac. 655. On the office and con- struction of saving clauses in repealing acts, see supra, p. 424. See "Statutes," Dec. Dig. {Key No.) § 228; Gent. Dig. § SIO. » Dobbins v. First Nat. Bank of Peoria, 112 111. 553. See "Stat- utes," Dec. Dig. (Key No.) § 22S; Cent. Dig. § 310. § 129) orFiCE OF PROVISO 431 the statute something which otherwise would he within it; it cannot, ^when properly and strictly used, enlarge or ex- tend the section or act of which it is a part, nor a;dd any- thing to the body of the law, nor operate as a substantive enactment.^" It is said that a proviso in a statute cannot confer a power.^i Rather it operates as a limitation upon a power granted in the body of the act, or as a denial of power or authority beyond the restricted limits which it iPrescribes.^'' Or, according to another proper use of a proviso, it may be introduced from excessive caution, and designed to prevent a possible misinterpretation of, the stat- ute by including therein something which was not meant to be included.^' But, as legislatures seldom use provisos with strict pro- priety, the technical rule above stated can seldom be ap- plied in all its severity. The modern doctrine is that, while it is proper to keep in mind the appropriate function of a proviso, yet its actual purpose and effect are to be deter- mined by the language employed, by the context, and by the intention of the legislature as discerned' from a study of the act as a whole and all its parts. ^* To fulfill this in- tention, when plainly manifest, a proviso may and should be so construed as to extend or enlarge the scope of the act, to introduce new substantive provisions,, or even to as- sume the character and office of a separate and independent loDeitch V. Staub, 115 Fed. 309, 53' C. C. A. 137; Tsutakawa V. Kumamoto, 53 Wash. 231, 101 Pac. 869; In re Day, 181 111. 73, 54 N. B. 646, 50 L. R. A. 519 ; Brown v. Patterson, 224 Mo. 639, 124 S. W. 1; Stiers v. Mundy (Ind. App.) 89 N. E. 959; State v. Twin City Telephone Co., 104 Minn. 270, 116 N. W. 835 ; Matter of Webb, 24 How. Prac. (N. T.) 247; In re Hoss' Estate (Wash.) 109 Pac. 1071. See "Statutes," Dec. Dig. (Key No.) § 22^; Cent. Dig. § SIO. 11 Commonwealth ex rel. Wallace v. Hough, 22 Pa. Co. Ct. E. 440. See "Statutes," Deo. Dig. (Key No.) § 228; Cent. Dig. § 310. 12 Kensington Dist. Com'rs v. Keith, 2 Pa. 218. See "Statutes," Dec. Dig. (Key No.) § 228; Cent. Dig. § 310. 13 Baggaley v. Pittsburg & Lake Superior Iron Co., 90 Fed. 636, 33 C. C. A. 202. See "Statutes," Dee. Dig. (Key No.) § Z28; Cent. Dig. i 310. 1* Traders' Nat. Bank v. Lawrence Mfg. Co., 96 N. O. 298, 3 S3. E. 363. See "Statutes," Dec. Dig. (Key No.) § 228; Cent. Dig. § SIO. 432 PEOVISOS, EXCEPTIONS, AND SAVING CLAUSES (Ch. 11 X enactixient.^" It is said that this larger and wider rule is especially appropriate to be applied to such complex struc- tures as tariff laws and appropriation acts.^" PROVISO LIMITED TO PRECEDING MATTER 130. The natural and appropriate office of a proviso to a statute, or to a section thereof, is to restrain or qualify the provisions immediately preceding it. Hence it is a rule of construction that it will be confined to that which directly precedes it, or to the section to which it is appended, unless it clearly appears that the legislature intended it to have a wider scope.^' Although, as just stated, the appropriate function of a proviso in a statute is to restrain or modify the enacting clause, and it should be confined to what precedes it, yet IB National Bank of Commerce v. Cleveland (D. C.) 156 Fed. 251: Prindle v. United States, 41 Ct. CI. 8; Hall's Safe Co. v. Herring- Hall-Marvin Safe Co., 31 App. D. C. 498; Stephen v. Illinois Cent. R. Co., 128 111. App. 99 ; Propst v. Southern R. Co., 139 N. C. 397, 51 S. E. 920. See "Statutes," Dec. Dig. (Key No.) § SS8; Cent. Dig. § 310. 16 United States v. R. F. Downing & Co., 146 Fed. 56, 76 O. C. A. 376 ; National Bank of Commerce v. Cleveland (D. C.) 156 Fed. 251. See "Statutes," Dec. Dig. {Key No.) § 22S; Cent. Dig. § 310. ' 17 United States v. Bernays, 158 Fed. 792, 86 C. C. A. 52; Rawls v. Doe ex dem. Kennedy, 23 Ala. 240, 48 Am. Dec. 289; Pearce v. Bank of Mobile, 33 Ala. 693; Carroll v. State, 58 Ala. 396; Spring V. Collector of City of Olney, 78 111. 101; Hackett v. Chicago City R. Co., 235 111, 116, 85 N. E. 320 ; Advisory Board of Coal Creek Tp;, Montgomery County, v. Levandowskl (Ind. App.) 84 N. E. 346; Cast V. Board of Assessors, 43 La. Ann. 1104, 10 South. 184 ; Cush- ing V. Worrick, 9 Gray (Mass.) 382; Sullivan v. Bailey, 125 Mich. 104, 83 N. W. 996; State ex rel. Phillips v. Webber, 96 Minn. 348, 105 N. W. 68; State ex rel. Crow v. St. Louis, 174 Mo. 125, 73 S. W. 623, 61 L. R. A. 593 ; Propst v. Southern R. Co., 139 N. C. 397, 51 S. E. 920; Leader Printing Co! v. Nicholas, 6 Okl. 302, 50 Pae. 1001; Lehigh County v. Meyer, 102 Pa. 479; Callaway v. Hard- ing, 23 Grat. (Va.) 542; Stiers v. Mundy (Ind.) 92 N. E. 374; People V. McMurray, 147 111. App. 248. See "Statutes," Dec. Dig. (Key No.) § gSS; Cent. Dig. § 310. § 130) PROVISO LIMITED TO PRECEDING MATTER 433 when, from the context, and from a comparison of all the provisions relating to the same subject-matter, it is mani- fest that the object and intent were to give the proviso a scope extending beyond the section, and an effect beyond the phrase immediately preceding, it will be construed as restraining and qualifying preceding sections relating to the subject-matter of the proviso, or as tantamount to an enactment in a separate section, without regard to its posi- tion and connection.^* Hence the proviso may qualify the whole or any part of the act, or it may stand as an inde- pendent proposition or rule, if such is clearly seen to be the meaning of the legislature as disclosed by an examination of the entire enactment.^* From the character or purpose of a proviso, it may even be evident that it was intended to qualify statutes which might thereafter be passed, being designed as a substantive rule of law or a continuing lim- itation in a class of cases. Thus, in a case in Maryland, the charter of a city granted certain powers to the mayor and council, with the following proviso: "That they shall not have power to pledge the credit or faith of the city for any sum exceeding $10,000, without first submitting the question to the -voters of said city." A subsequent statute authorized them to issue bonds of the city for the purpose of building a public bridge, and to levy and collect extraor- dinary taxes to pay the bonds and the interest thereon. It was held that the power thus given was subject to the proviso in the charter. It was said that the proviso, being engrafted upon the effective part of the charter, was a com- 18 Wartensleben v. Haithcock, 80 Ala. 565, 1 South: 38; Appeal of 'Mechanics' & Farmers' Bank, 31 Conn. 63; Friedman v. Sullivan, 48 Ark. 213, 2 S. W. 785 ; King v. Inhabitants of Threlkeld, 4 Barn. & Ad. 229; King v. Inhabitants of Newark-upon-Trent, 3 Barn. & C. 59; United States v. R. F. Downing, 146 Fed: 56, 76 C. C. A. 376; United States v. Scruggs, Vandervoort & Barney Dry Goods Co., 156'' Fed. 940, 84 C. C. A. 440 ;, People v. McMurray, 147 111. App. 248 ; Stiers v. Mundy find.) 92 N. E. 374; State ex rel. Bullard v. Searle, 86 Neb. 259, 125 N. W. 590. See "Statutes," Deo. Dig. (Key No.) § 228; Cent. Dig. § SlO. 19 United States v. Babbit, 1 Black, 55, 17 L. Bd. 94; Carter, Web- stes & Co. v.- United States, 143 Fed. 256, 74 C. C. A. 394. See "Stat- utes," Dec. Dig. (Key No.) § 2S8; Cent. Dig. § SlO. Black Int.L.— 28 434 PROVISOS, EXCEPTIONS, AND SAVING CLAUSES (Oh. 11 prehensive and definite restriction upon the exercise of any power to pledge the faith or credit of the city beyond the limited sum, and that the effect of the later statute was merely to place the powers thereby granted among those previously granted, subject to all the conditions and lim- itations imposed by the original law. To preserve a re- strictive proviso of this character, the court said, liberal application would be made of the settled rules of construc- tion that repeals by implication are disfavored, that appar- ently contradictory statutes shall stand together if by inter- pretation they may, and that when two laws only so far differ or disagree as that by any other construction they may both stand together, the latter is no repeal of the former.^" As a rule, however, and unless the contrary in- tent is clearly apparent, the proviso is to be strictly limited. Thus, in another case, it appeared that the charter of a bank was to continue in force until 1859, and allowed it to take seven per cent, discount. In 1852, the legislature passed an act to extend the privileges of the bank for twenty years beyond the expiration of its charter, with a proviso that it should not take more than six per cent. It was held that this proviso applied only to the privileges granted by the extension, and did not affect loans made while the original charter was in force.''* CONSTRUCTION OF PROVISOS 131. A proviso in a statute, where the enacting clause is general in its terms and objects, must ordinarily be construed strictly. On the principle of interpreting a statute in such a man- ner as to give effect to each and every part of it, a proviso must be so construed as to give to the statute an effect dif- 20 Mayor, etc., of City of Cumberland v. Magruder, 34 Md. 381. See "Statutes," Dec. Dig. (Key No.) § 228; Cent. Dig. § SlO. 21 Pearce v. Bank of Mobile, 33 Ala. 693. See "Statutes," Dec Dig. (Key No.) § 22S; Cent. Dig. S SXO. § 131) CONSTRUCTION OF PROVISOS 435 ferent from that which jt would have without the proviso.'"' And the general rule is that: "Where the enacting clause is general in its language and objects, and a proviso is after- wards introduced, that proviso is construed strictly, and takes no case out of the enacting clause which does not fall fairly within its terms. In short, a proviso carves spe- cial exceptions only out of the enacting clause; and those who set up any such exception must establish it as being within the words as well as within the reason thereof." "' For example, an act of Congress limited the liability of shipowners for loss or damage to merchandise carried by them caused by fires. One of the sections (being in the nature of an exception or proviso) provided that the act should not apply to the owners of vessels "used in rivers or inland navigation." A question arose as to whether the act was applicable to a case where the vessel was employed in navigating the Great Lakes. The court held that the owner could claim the benefit of the act. This was, in ef- fect, . construing the statute liberally (as it was remedial) and giving a strict construction to the exception, which re- moved certain cases from its operation.** Again, an act regulating actions against sheriffs for not returning execu- tions declared that "all rights of action secured by existing laws may be prosecuted in the manner provided in this act," and repealed inconsistent provisions. It was held that the damages were to be regulated by this act, although the right 22 Quackenbush v. Unitert States, 33 Ct. CI. 355 ; Markee v. People, 103 111. App. 347. See. "Statutes," Deo. Dig. {K6y No.) § 228; Cent. Dig. § SIO. 23 United States v. Dicteon, 15 Pet. 141, 10 L. Ed 689; Roberts V. Tarboro, 41 Tex. 449; Bragg v. Clark, 50 Ala. 363; McRae v. Holcomb, 46 Ark. 306; Looker v. Davis, 47 Mo. 140; Bpps v. Bpps, 17 III. App. 196 ; Appeal of Clark,' 58 Conn. 207, 20 Atl. 456 ; State V. Twin City Telephone Co., 104 Minn. 270, 116 N. W. 835 ; Towson V. Denson, 74 Ark. 302, 86 S. W. 661; Futch v. Adams Bros., 47 Fla. 257, 36 South. 575; State v. Brady, 102 Tex. 40S, 118 S. W. 128; Ditto V. Geoghegan, 1 Mete. (Ky.) 169. See "Statutes," Dec. Dig. (Key No.) § 228; Cent. Dig. § 310. . 2* Moore v. American Transportation (Jo., 24 How. 1, 16 L. Ed. 674. See "Statutes," Dec. Dig. (Key No.) § 228; Cent. Dig. § 310. 436 PROVISOS, EXCEPTIONS, AND SAVING CLAUSES (Oh. 11 of action accrued before.^" So, where a municipal ordi- nance forbidding the sale of fresh meat within certain lim- its, except by licensed persons, contains a proviso in favor of farmers, authorizing them to sell meats which are the produce of their own farms, one who follows the business of a butcher and sells meats without a license, is ..not. within the proviso, although his meats come from his farm, if the farm is only an appendage to his business as a butcher.^' A proviso to a statute declaring that the act shall not be held to afifect any "contracts" theretofore made does not apply to a proposal for a loan, though the negotiations therefor had been pending for some time, and the papers had been drawn and the draft signed, where the papers were not executed nor the draft delivered, nor the proceed- ings approved, until after the act went into effect.'" So an exception to an authority granted by one section of a statute cannot be held to qualify another and different au- thority granted by another section in unqualified terms."' But this rule is not invariably applicable. There are cases in which a proviso to a statute should be liberally con- strued. This is the case when it is necessary to extend the proviso to persons or cases which come within its equity, though not its strict letter, in order to effectuate justice 6r secure the benefits or remedies which the proviso had in contemplation, and especially when the statute is penal in its nature.^=° For example, a statute of Pennsylvania de- clared that any money or thing bet on the result of an elec- tion should be forfeited to the directors of the poor, "pro- vided that suit is brought within two years from the time 20 Collier v. State ex rel. Lewis, 10 Ind. 58. See "Statutes;' Dec Dig. (Key No.) § 228; Cent. Dig. § SIO. 2 8 Trustees of Rochester v. Pettinger, 17 Wend. (N. Y.) 265 See "Statutes," Dec. Dig. {Key. No.) § 228; Cent. Dig. § SIO. 2 7 United States' Saving & Loan Co. v. Miller (Tenn. Ch. App.) 47 S. W. 17. See "Statutes," Dec. Dig. (Key No.) § 228; Cent. Dig. § SIO. 2 8 Fleming V. Potter, 14 Ind. 486. See "Statutes," Deo. Dig (Key No.) § 228; Cent. Dig. § 310. 2 9 Bank of United States v. McKenzle, 2 Brock. 303, Fed Gas No 927. fi-ee "Statutes," Dec. Dig. (Key No.) § 228; Cent. Dig. § SIO. § 131) CONSTRUCTION OF PROVISOS 437 of making such bet." It was held that the proviso operated as a condition and not as a statute of limitations which must be pleaded against a suit by the directors. It will be ob- served that the forfeitiire here was in the nature of a pen- alty and the statute was therefore a penal act. It followed that the statute must be construed strictly and the proviso liberally. The construction given to the proviso in this case was liberal, because if it had been held a statute of lim- itations, the right of the directors to recover would not be cut off in two years unless the lapse of time were fjleaded and proven.'" Again, an act of the legislature which dis- poses of state property, excepting that portion "known as the government reservation," will except all lands known, by that name, whether the reservation had any legal -exist- ence or not.'^ So, where a statute changing school districts saved rights in favor of parties holding contracts, obliga- tion rights, or liens, it was held that a right of action for trespass in taking a building for a schoolhouse was saved. '^ Where a city ordinance appropriated money for the ensuing year but before the issue of warrants, an act of the legisla- ' ture amended the city charter, restricting its right to make appropriations, but providing that nothing in the act should in any measure affect or impair any proceeding had under previous existing acts, or any rights or privileges acquired thereunder, it was held that the city auditor was bound to issue the warrants according to the terms of the ordi- nance.'^ Where a criminal statute is changed between the time of the commission of an offense and a conviction there- for, but the later act contains a saving clause, to the effect that it shall not apply to the trial of offenses committed prior to the amending act, the punishment of the prisoner 8» ForScht V. Green, 53 Pa. 138. See "Statutes," Dec. Dig. (Key No.) § 238; Cent. Dig. § 310. 31 People ex rel. Burr v. Dana, 22 Oal. 11. See "Statutes," Dee. Dig. {Key No.) § 228; Cent. Dig. § 310. 82 Gould V. Subdistrict No. 3 of Eagle Creek School Dist., 7 Minn. 203 (Gil. 145). See "Statutes," Deo. Dig. {Key No.) § 228; Cent. Dig. § 310. 33 Beatty v. People ex rel. Republican Pub. Co., 6 Colo. 538. See "Statutes," Dec. Dig. {Key No.) § 228; Cent. Dig. § 310 438 PROVISOS, EXCEPTIONS, AND SAVING CLAUSES (Ch, 11 must be regulated by the old law." Where a repealing statute contains a special saving clause, the general saving clause of the general statutes has no application, and no rights or remedies will be saved except such as are saved by the special saving clause.'" The introduction of an exception or saving clause may have an important bearing on the construction of the enact- ing part of the statute, for it may show it to be more com- prehensive than would appear merely from the words used, on the principle that when certain exceptions are specified, no others are intended. This rule is alike applicable to grants inter partes and to public laws. Thus, it is said : "When first there are general words, and after, an exception of some particular, all that is not within the particular shall be within the general; what is not excepted is within the grant; and this rule holds where the general words by themselves will not pass a thing; there by intendment of the exception they shall pass. As if a man grant all trees, yet fruit trees do not pass ; but a grant of all trees except apple trees will pass all other kinds of fruit trees." '" When, by a declaratory provision, the legislature enacts that a thing may be done, which before that time was law- ful, and adds a proviso that nothing therein contained shall be so construed as to permit some other matter embraced in the general provision to be done, this is an implied pro- hibition of such act, though before that time it was lawful.*' 8* People V. Gill, 7 Gal. 356. See "Statutes," Dec. Dig. {Key No.) § 228; Cent. Dig. § 310. 3 5 State V. Showers, 34 Kan. 269, 8 Pac. 474. See "Statutes," Dec. Dig. {Key No.) § 228; Cent. Dig. § SIO. ?6 viner's Abr. "Grants," H. 13, 61. See "Statutes," Dec. Dig. (Key No.) § 228; Cent. Dig. § SIO. SI State V. Eskrldge, 1 Swan (Tenn.) 413. See "Statutes," Deo. Dig. (Key No.) § 228; Cent. Dig. § 310. 132) REPUGNANT PROVISOS AND SAVING CLAUSES 439 REPUGNANT PROVISOS AND SAVING CLAUSES 132. A saving clause which is repugnant to the enacting part of the statute is void ; but a proviso which is repugnant to the purview of the act will override and control the latter. It is well settled that a saving clause in a statute which is inconsistent with the body of the act is to be rejected and disregarded as void and of no effect.^* As an example of this rule Blackstone cites the following: "If an act of Par- liament vests lands in the king and his heirs, saving the rights of all persons whatsoever, or vests the land of A. in the king, saving the right of A., in either of these cases the saving is totally repugnant to the body of the statute, and, if good, would render the statute of no effect or operation ; and therefore the saving is void, and the land vests abso- lutely in the king." '* And a saving clause in a general act has no operation if it is inconsistent with the express pro- visions of a subsequent special act.*" On the other hand, if a proviso in a statute is directly contrary to the purview of the statute, the proviso is good and not the purview; the proviso must stand as the last expression of the legis- lative will.*^ In one of the earliest cases applying this rule, it was said: "Where the proviso of an act of Parliament is 88 Case of Alton Woods, 1 Coke, 40b, 47a; Walsingham's Case, 2 Plowd. 547, 565 ; Jackson v. Moye, 33 Ga. 296. See "Statutes," Dec. Dig. (Key No.) §§ 207, 228; Cent. Dig. §§ ^8^, 310. 3»1 Bl. Comm. 89. See "Statutes," Dec. Dig. (Key No.) §§ 207, 228; Cent. Dig. §§ 284, 310. lv. 603; People ex rel. Fennell v. Common Council of Bay City, 36 Mich. 186; Wayne County V. City of Detroit, 17 Mich. 390; State v. Atlantic Coast Line R. Co., 56 Fla. 617, 47 South. 969. See "Statutes," Deo. Dig. (Key No.) § ZH; Cent. Dig. §§ S22, S2S. 464 STRICT and; liberal construction (Ch. 12 included tinder that denomination also; all acts which im- pose by way of punishment any pecuniary mulct or dam- ages beyond compensation for the benefit of the injured party, or recoverable by an informer, or which, for like pur- poses, impose any special burden or take away or impair any privilege or right." "^ And to determine whether a liability to which a person is subjected is by way of penalty, it is not liecessary that the statute, in the language impos- ing it, should so denominate it. When, for instance, the statute subjects an officer of A corporation, as such officer, to a liability to pay money, either for omitting to perform a duty enjoined or for dping an act prohibited, and does this in a case where, but for such omission of duty or wrongful act, he would be under no liability, he is thereby subjected to a forfeiture of the sum which he is made liable to pay, .and so far as he is concerned, the imposition of lia- bility is by way of punishment.''^ But if a statute in the nature of a police regulation gives a remedy for private in- juries resulting from the violation thereof, and also imposes fines and penalties at the suit of thq public for such viola- tion, the former will not be regarded in the nature of a pen- alty, unless so declared."' Examples of Penal Statutes and Their Construction Any statute which may involve, as a consequence of its violation, the depriving a citizen of his life or his liberty, is to be construed with strictness."* So, also, if there is any doubt in the ease, penal statutes are not to be so con- si Sutherland, Stat. Constr. § 358.^ And see Lagler v. Bye, 42 Ind. App. 592, 85 N. E. 36 ; People v. Dada, 141 111. App. 557 ; Hall V. Jforfolli & W. R. Co., 44 W. Va. 36, 28 S. E. 754, 41 L. R. A. 669, 67 Am. St. Rep. 757. See "Statutes," Dec. Dig. (Key No.) | Ul; Oent. Dig. §§ 322, S23. 6 2 Merctiants' Bank of New Haven v. Bliss, 13 Abb. Prac. (N. T.) 225; Brown V. Kildea, 58 Wash. 184, 108 Pac. 452. See "Statutes," Dec. Dig. (Key No.) § 241; Cent. Dig. §§ S22, S2S. 6 3 Pittsburgh, Ft. W. & C. R. Co. v. Methven, 21 Ohio St. 586. See "Statutes," Dec. Dig. {Key No.) § 241; Cent. Dig. §§ 322, 323. 6* Pierce's Case, 16 Me. 265 ; Ramsey v, Foy, 10 Ind. 493. See "Statutes," Dec. Dig. (Key No.) §§ 235, 241; Cent. Dig. §§ S16, 322, 123. §.§ ISSjlST) PENAL AND CRIMINAL STATUTES 465 sttued as tp multiply felonies." A statute declaring that "any person convicted of the offense of insurrection or an attempt at insurrection shall be punished with death," will not include the case of an attempt to incite insurrection."' A statute which prohibits, under penalties, the laying of a bet or wager on the result of "any election within this com- monwealth," is penal and must be strictly ccRistrued, and therefore it does not apply to a primary election for the choice of party candidates.."' Again, an act providing for testing the accuracy of .the weights and measures used in selling commodities, and affixing a penalty for "selling" by unmarked weights and, rneasures, cannot be extended be- yond its terms, although there may appear no other good reason for not applying it to buyers' weights and measures also."' An act which imposes a penalty on any telegraph company which shall fail to "transmit over its wires" a message delivered to it for transmission, will be strictly construed ; and .hence sych a company will not be liable to a penalty for refusal to deliver a message after it has been transmitted."" The same is true of a statute which prohib- its attorneys at law from buying "any bond, bill, promis- sory note, bill of exchange, book debt, or other thing in ac- tion, with the intent and for the purpose of bringing any suit thereon." .guch an act will not apply to a purchase of corporate stock by an attorney, though it be for the pur- pose of enabling him to sue, as such stock does not come , 00 Commonwealtli v. Macomber, 3 Mass. 254 ; Commomwealtli v. Barlow, 4 Mass. 439. See "Statutes," Deo. Dig. (Key No.) § 24X; Cent. Dig. §§ 322, 323. 06 Gibson v. State, 38 Ga. 571. See "Statutes," Dec. Dig. (Key No.) § 2U; Cent. Dig. §§ 322, 323; "Insurrection," Gent. Dig. § 2. 07 Commonwealth v. Wells, 110 Pa. 463, 1 Atl. 310. See '-'Stat- utes," Deo. Dig. (Key No.) § 24i; Gent. Dig. §§ 322, 323; "Elections," Cent. Dig. § 342. 8 Southwestern E. Co. v. Cohen, 49 Ga. 627. See "Statutes," Dec. Dig. (Key No.) § 2.'il; Cent. Dig. §§ 322, 323; "Weights Archer v. Jones, 26 Miss. 583. See "Statutes," Dec. Dig. {Eev No.) § SU; Cent. Dig. §§ 322, 323; "Remainders," Cent. Dig. § 7. 60 Maxwell v. Rives, 11 Nev. 213. See "Statutes," Dec. Dig. (Kev No.) § Ul; Cent. Dig. §§ 322, 323; "Contempt," Cent. Dig. § 92. . 6' Hines v. Wilmington & W. R. Co., 95 N. C. 434, 59 Am. Rep. 250. See "Statutes," Dec. Dig. (Key No.) § Zlfl; Cent. Dig. §§ 322, 323; "Carriers," Cent. Dig. § 33. «8 Grooms v. Hannon, 59 Ala. 510; Marston v. Tryon, 108 Pa. 270 See "Statutes," Dec. Dig. (Key No.) § 241; Cent. Dig. §§ 322, 323; "Mortgages," Cent. Dig. | 932. 69 People ex rel. Johnson v. Peacock, 98 111. 172; Commonwealth v. Standard Oil Co., 101 Pa. 119. See "Statutes," Dec. Dig. (Kev No.) § 2il: Cent. Dig. §§ 322, 323; "Taxation," Cent. Dig. § 1656. ■"> State T. Gaunt, 13 Or. 115, 9 Pac. 55. See "Statutes," Dec. Dig. (Key No.) § 275; Cent. Dig. § 369. Ti Schultzman v. McCarthy, 16 Pa. Co. Ct. R. 600. See "Stat-^ utes," Dec. Dig. (Key No.) § 2il; Cent. Dig. §§ 322, 323; "Extortion," Cent. Dig. §§ 2, 11. 7 2 Toledo & A. A. R. Co. v. Johnson, 49 Mich. 148, 13 N. W. 492. See "Statutes," Dec. Dig, (Key No.) § 241; Cent. Dig. §§ 322, 323. 468 STRICT AND LIBERAL CONSTRUCTION (Ch. 12 prohibiting, under heavy penalties the sale or removal of property subject to a chattel mortgage within five days after the giving of the mortgage ; '* to one requiring col- liery corporations to keep always on hand near the mine medical and surgical supplies for aiding injured work- men;'* to one imposing damages for the failure of a tax collector to pay over taxes collected ; '" to one imposing a penalty on foreign corporations for doing business within the state without filing their articles of incorporation ; '* and to one imposing a penalty on railroad companies for failure to furnish cars on application.''^ Statutes Giving Costs- It is generally held that statutes allowing the recovery of costs are to be construed with reasonable strictness, as be- ing in the nature of penal statutes.'^ But a law which pro- vides that a plaintiff who becomes nonsuit shall pay the costs of the first action before he shall be allowed to pro- ceed in a subsequent action "should be interpreted liberally in behalf of defendants. It imposes no unreasonable burden on a plaintiff to require him to pay costs, which he has put upon a defendant without cause, before he can proceed again." '» T3 Minnea'polis Threshing Mach. Co. v. Haug, 136 Wis. 350, 117 N. W. 811. See "Statutes," Dec. Dig. (Key No.) § 24I; Cent. Dig. §§ 322, 323. 1* Sourwine v. McRoy Clay Works, 42 Ind. App. 358, 85 N. E. 782. See "Statutes," Deo. Dig. {Key No.) §§ 239, S4I; Cent. Dig. §§ 320, 322, 323. 7 5 Adams v. Saunders, 93 Miss. 520, 46 South. 960. See "Stat- utes," Dec. Dig. (Key No.) § 2^1; Cent. Dig. §§ 322, 323. 78 People V. Crucible Steel Co. of America, 151 Mich. 618, 115 N. W. 705. See "Statutes," Dec. Dig. (Key No.) § 24t; Gent. Dig. |§ 322, 323. "Texas & P. Ry. Co. v. Blocker, 48 Tex. Civ. App. 100, 106 S. W. 718. See "Statutes," Dec. Dig. {Key No.) § 241; Cent. Dig. §§ 323, 323. r 8 Cone v. Bowles, 1 Salk. 205; Aechternacht v. Watmough, 8 Watts & S. (Pa.) 162; Dent v. State, 42 Ala. 514; Morrow v. Rosen- stlhl, 106 Ala. 198, 17 South. 608; Compare King v. Justices of York, 1 Ad. & El. 828. See "Statutes," Deo. Dig. {Key No.) § 2il: Gent Dig. §§ 322, 323; "Costs," Cent. Dig. § 3. 7 Smith V. Allen, 79 Me. 536, 12 Atl. 542. See "Statutes," Dec Dig. {Key No.) § S4I; Cent. Dig. §§ 322, 323. §§ 135-137) PENAL AND CRIMINAL STATUTES 469 Usury Laws It has been held that usury laws, when they prescribe the forfeiture of all interest upon contracts affected, by unlaw- ful charges of interest, are penal laws and to be strictly con- strued.*" But on the other hand, it is said that a statutory provision that when a bank shall demand or receive more than the legal rate of interest, there shall be a forfeiture of the entire interest which the note or bill carries with it, or which has been agreed upon, is remedial as well as penal, and is to be liberally construed to effect the object which the legislature had in view in enacting it.*^ Civil Damage Laws Civil damage laws are statutes which give a right of ac- tion against liquor dealers in favor of innocent parties who sustain injury by the intoxication of persons supplied with- liquor by' the defendants, or by the consequences of such intoxication, or by the acts of intoxicated persons, or by the furnishing of liquor to minors or habitual drunkards after warning given not to do so. These laws, being highly penal in their character, and introducing remedies unknown to the common law, and, as the statutes are framed in some jurisdictions, giving to the party prosecuting a decided ad- vantage over the party defending, should receive a strict construction.*'' Hence, for example, no person can main- tain an action under their provisions to whom a right of action is not given by their terms.** But on the other hand, 80 Coble V. Shoffner, 75 N. O. 42. See "Statutes," Deo. Dig. (Key THo.) § 2U; Cent. Diff. §§322, 323; "Usury," Cent. Dig. § .^37. 81 Farmers' & M. Nat. Bank v. Bearing, 91 U. S. 29, 23 L. Ed. 196 ; Ordway v. Central Nat. Bank of Baltimore, 47 Md. 217, 28 Am. Eep. 45.5. See "Statutes," Dec. Dig. (Key No.) §§ 236, SJfl; Cent. Dig. §§ Sn, 322-325. 82Meidel v. Anthis, 71 111. 241; Preese v. Tripp, 70 111. 496; Fentz V. Meadows, 72 111. 540; Kennedy v. Garrigan, 23 S. D. 2G5, 121 N. W. 783. See "Statutes," Deo. Dig. {Key No.) § 241; Cent. Dig. §§ 322, 323; "Intoxicating Liquors," Dec. Dig. {Key No.) § 283; Cent. Dig. § 418. 83 Schneider y. Hosier, 21 Ohio St. 98. See "Statutes," Dec. Dig. {Key No.) § 241; Cent. Dig. §§ 322, 323; "Intoxicating Liquors," Dec. Dig. {Key No.) § 283; Cent. Dig. § 418. 470 STRICT AND LIBBEAL CONSTRUCTION (Ch. 12 while a statute of this character should not be enlarged, it should be interpreted, where the language is clear and ex- plicit, according to its true intent and meaning, having in view the evil to be remedied and the object to be attained. It would be a gross failure of justice to put/ so narrow a construction upon these acts as to impair the effects which they were intended to produce. Their beneficent purpose is not to be defeated by technical or verbal niceties.** Statutes Giving Double and Treble Damages The rule that penal statutes are to be construed strictly does not apply to a case where the party has a remedy at conjmon law and the statute merely gives an increase of damages.*" But where the law, by way of punishing given acts or omissions, authorizes a judgment to be entered for double or treble the amount of damages found by the jury, it is in the nature of a penal statute and is to be construed accordingly.*" Thus, a statute providing for the recovery of treble damages for the cutting of timber on the lands of another, in certain cases, is penal in its character, and must be held to apply, not to every case of a technical tres- pass or conversion, but only to cases in which some element of willfulness, wantonness, or evil design enters into the acts complained of.*^ So, where a statute provided that any person who had lost money at gambling might recover the same in an action to be brought within three months, but that if he neglected to sue, any third person who might thereafter choose to sue should be entitled to recover three 84 Mead v. Stratton, 87 N. Y. 493, 41 Am. Rep. 386. See "Stat- utes," Dec. Dig. {Key No.) § 2^1; Gent. Dig. §§ 322, S2S; "Intoxicat- ing Liquors," Dec. Dig. (Key No,) § 283; Gent. Dig. § JflS. 85 Ellis V. Whitlock, 10 Mo. 781 ; Phillips v. Smith, 1 Strange, 137; Lagler v. Bye, 42 Ind. App. 592, 85 N. B. 36. See "Statutes," Dec. Dig. (Key No.) § 241; Cent. Dig. §§ 322, 323; "Damages," Deo. Dig. {Key No.) § 227; Cent. Dig. §§ 57i, 575. 80 Bay City & E. S. R. C5o. v. Austin, 21 Mich. 390. See "Stat- utes," Dec. Dig. (Key No.) § 2^1; Gent. Dig. §§ 322, 323; "Dam- ages," Deo. Dig. {Key No.) § 227; Cent. Dig. §§ 574, 575. 87 Cohn V. Neeves, 40 Wis. 393. See "Statutes," Dec. Dig. {Key. No.) § 241; Cent. Dig. §§ S22, 323; "Damages," Dec. Dig. {Key No.} § 227; Cent. Dig. §§ 57^, 575. §§ 135-137) PENAL AND CRIMINAL STATUTES 471 times the amount lost, it was held that the statute was penal and should be construed with strictness.'* Laws Imposing Liability on Stockholders Although there is considerable diversity of opinion as to the proper construction of statutes imposing on stockhold- ers in private corporations an individual liability for the debts of the corporation, into the details of which we cannot now enter, the better opinion appears to be that if such li- ability is to be regarded as at all in the nature of a penalty, such laws should receive a strict construction.'" But in a case in New York, it ig said : "A personal liability of stock- holders for the debts of a corporation, in virtue of the charter, is, not in the nature of a penalty or forfeiture, and does not exist solely as a liability imposed by statute. It is not enforced simply as a statutory obligation, but is re- garded as voluntarily assumed, by the act of becoming a stockholder." But, at the same time, "the operation and effect of the statute, or the liability of the stockholder, which is measured by it, cannot be extended by implica- tion. There is no implied undertaking of the defendant as a stockholder of -the bank, and there is no obligation result- ing from that relation other than such as is expressed, in terms or by necessary implication, in the act of incorpora- tion." "o Statutes Both Remedial and Penal While penal statutes are to be construed strictly, and remedial statutes liberally, it does not follow that any given statute must belong irrevocably to one or the other of these two classes. The two terms are not in exact an- tithesis. Moreover, an act of the legislature may be penal 88 Cole V. Groves, 134 Mass. 471. See "Statutes," Deo. Dig. {Key No.) § 2il; Gent. Dig. §§ 322, 323; "Damages," Deo. Dig. (Key No.) I 227; eent. Dig. §§ 57/,, 575. 88 O'Reilly v. Bard, 105 Pa. 569. Bee "Statutes," Dec. Dig. (Key No.) § 2il; Cent. Dig. §§ 322, 323. 00 Lowry v. Inman, 46 N. Y. 119. And see Gray v. Coffin, 9 Cush. (Mass.) 192. See "Statutes," Dec. Dig. (Key No.) § 241; Cent. Dig. 472 STRICT AND LIBERAL CONSTRUCTION (Ch. 12 in part and remedial'in part, with a corresponding difference in the construction. That penal provisions are found in it does not necessarily make it penal in its whole extent or for all purposes."^ A statute may well be penal in some of its parts, provisions, aspects, applications, or conse- quences, and ifemedial in others; or it may be penal as to some of the persons to be affected by it, and remedial as to others. For instance, a law making void assignments for the benefit of creditors, when made with the view of giving preferences, might contain penal provisions to be ap- plied to the insolvent debtor, and yet be remedial in its re- lation to the creditors whom it enabled to share in the dis- tribution of the estate. In general it is said that when a prohibitory act gives the right to enforce the penalty for its violation to the party aggrieved, it will be construed as remedial in its nature ; but it is a penal act when such right is given to the public or the government.*'' In the inter- pretation of a statute of this character, a greater or less latitude of construction should be indulged according to whether the question is as to the party's being able to take advantage of the beneficial and remedial features of the act, or as to the applicability of the penalty to the particular case before the court."' But as a general rule (and espe- cially where these two questions cannot be separated) the courts are disposed to lay the greater stress upon the penal 91 Hyde v. Cogan, 2 Dougl. 699 ; Short v. Hubbard, 2 Bing. 349. For instance, that part of a statute relating to juvenile ofEenders which provides for preferring charges against delinquent children and bringing them before the court is remedial in its nature, its purpose being to place the state in the position of guardian to such children, and therefore it should be liberally construed. State V. Dunn, 53 Or. 304, 99 Pac. 278. See "Statutes," Dec. Dig. (Kev yo.) §§ 236, Ul; Gent. Dig. §§ SIT, 322-325. 92 Ordvi^ay v. Central Nat. Bank of Baltimore, 47 Md. 217, 28 Am. Rep. 455. See "Statutes," Dec. Dig. {Key No.) §§ SSff, 2^1; Cent. Dig. §§ 311, 322-325.^ »3 Commonwealth v. Shaleen, 215 Pa. 595, 64 Atl. 797 ; Lagler v. Bye, 42 Ind. App. 592, 85 N. E. 36 ; Robinson v. Harmon, 157 'Mich. 276, 122 N. W. 106. See "Statutes," Dec. Dig. {Key No.) §§ S3G 2U - Cent. Dig. §§ Si 7, 322-325. §§ 135-137) PENAL AND CRIMINAL STATUTES 473 features of the act and to construe it accordingly.** Thiis,' it is said that, so far as statutes for the regulation of trade imt)oSe fines or create forfeitures, they are to be construed strictly as penal laws, and not liberally as remedial laws."' So also, statutes authorizing arrest and imprisonment for debt, although remedial to the extent that they are designed to coerce payment, are also regarded as penal, and they are not to be extended by construction so as to embrace cases not clearly within them. Thus, when the statute author- izes an arrest "when the defendant has been guilty of a fraud' in contracting the debt or incurring the obligation upon which the action 'is brought," it applies only to cases of actual personal fraud on the part of the defendant, and: does not include merely legal or constructive fraud. '^ Again, an act conferring on creditors of an attachment de- fendant the right to intervene and defend in case of his fail- ure to do so, and providing that if judgment be in favor of the intervener, it shall be for any damage found by the jury, whether actual or exemplary, and shall abate the suit and writ, while remedial as to the intervener, is penal as to the plaintiff, and is therefore not applicable to suits pending at the time of its passage, unless expressly made so."' A pro- viso or exception in a penal statute which is favorable -to the defendant is to be construed liberally in his behalf."* »* Abbott V. Wood, 22 Me. 541. But on the other hand, In Sickles V. Sharp, 13 Johns. (N. Y.) 497, it Is said that a statute, penal as to some persons, if it is generally beneficial, may be equitably con- strued. See "Statutes," Dec. Dig. (Key No.) §§ 335, S^l; Cent. Dig. §§ Sn, S22-325. »5 Mayor, etc., of City of Philadelphia v. Davis, 6 Watts & S. (Pa.) 269. See "Statutes," Dec. Dig. (.Kevjfo.) §§ Z36, HI; Gent. big. §§ sn, 322SZ5. 90 Hathaway v. Johnson, 55 N. T. 93, 14 Am. Rep. 186. See "Statutes," Dec. Dig. (Key No.) §§ 236, 2^1; Cent. Dig. 317, 322-325. 97 Powers V. Wright, 62 Miss. 35. See "Statute-^," Deo. Dig. (Key No.) §§ 236, 2U; Cent. Dig. §§ 311, 322-325. » 8 Philadelphia v. Oostello, 17 Pa. Super. Ct. 339; Dawson v. Shaw, 28 Pa. Super. Ct. 563; State v. Howard, 137 Mb. 289, 38 S. W. 908; State v. Bryant, 90 Mo. 534, 2 S. W., 836. See "Statutes," Deo. Dig. (Key No.) §§ 228, 236, Z^i; Cent. Dig. §§ 310, 317, 322-325. 474 STRICT AND LIBERAL CONSTRUCTION (Ch. 12 Modern Modifications of and Exceptions to Rule of Strict ■ Construction The rule requiring an invariable strict construction to be applied to penal and criminal statutes was always regarded as somewhat arbitrary; and it has been very greatly mod- ified by the modern recognition of the doctrine that the only cardinal rule of statutory construction is to -seek out and enforce the intention of the legislature. Moreover, the courts of late have often resolved that there was no reason for applying a strict construction to certain kinds of laws, although they were penal in character. Thus we find it stated that statutes which deprive men of liberty or prop- erty and bring them into disgrace may well be interpreted strictly, though at the same time in a reasonable manner and so as to arrive at and carry out the intent of the law- makers,"" and that a law, penal in nature, should not be construed as applicable to an act, otherv/ise innocent and natural and of common occurrence, unless such a legislative intention is clear and unmistakable.^"" But, on the other hand, statutes imposing penalties for the invasion of the rights of the citizen, in order to protect him in his liberty and happiness, are not subjects of disfavor in law, and are not to be construed with the same strictness as those which restrain the exercise of a natural right or forbid the doing of things not intrinsically wrong.^"^ Indeed, it has been broadly declared that a statute which is made for the good of the public, although it is penal, ought to receive an equi- table construction."'' Without going to that extent, the courts now generally hold that even a criminal statute should not necessarily be subjected to the narrowest possi- ble interpretation, but the court should adopt that sense of »o Schilling V. State, 116 Ind. 200, 18 N. B. 682. See "Statutes," Dec. Dig. (Key No.) § 24I; Cent. Dig. §§ 322, SSS. 100 East V. Brooklyn Heights R. Co., 195 N. T. 409, 88 N. E. 751, 23 li. R. A. (N. S.) 513 ; In re T. H. Bunch Co. (D. C.) 180 Fed. 519. See "Statutes," Dec. Dig. (Key No.) § 2U} Cent. Dig. §§ 322, 323. 101 Peonage Cases (D. O.) 123 Fed. 671. See "Statutes," Dec Dig (Key No.) § 2^1; Cent. Dig. §§ 322, 323. lozTyner v. United States, 23 App. D. C. 324. See "Statutes," Dec. Dig. (Key No.) § 241; Cent. Dig. §§ 322, 323. §§ 135-137) PENAL AND CRIMINAL STATUTKS 475 the words which harmonizes best with the context and pro- motes in the fullest manner the apparent policy and objects of the legislature.^"* The courts will not indulge in undue refinements, nor will they imagine ambiguities merely in order that a lenient construction may be adopted,^"* nor .strain the language or place upon it an unreasonable and incongruous interpretation, so as to discharge persons fairly within its scope.^°° It is said that they should carefully consider and guard against so construing a law that a proper rule of evidence would be perverted into a means of escape from punishment by an oiifender.^"" And while it is true that, if a penal statute contains a patent ambiguity, nothing should be regarded as included that is not within its letter as well as its spirit, yet, if the meaning of such a statute is simply obscure, the only permissible guide to its interpretation is the intention which the legislature had in enacting it, which must be determined from the statute as a whole and the language of the context."' Statutes Abolishing the Rule In several of the states, the common-law rule requiring the strict construction of penal statutes has been displaced losMcInerney v. United States, 143 Fed. 729, 74 C. C. A. 655; Deloria v. Atkins, 158 Mich. 232, 122 N. W. 559; People v. Ahearn. 196 N. Y. 221, 89 N. E. 980, 26 L. R. A. (N. S.) 1153 ; United States v. Illinois Cent. K. Co., 177 Fed. 801, 101 C. C. A. 15; Wade v. United States, 33 App. D. C. 29, 20 L. R. A. (N. S.) 347 ; People, for Use of State Board of Health, v. Koehler, 146 111. App. 541 ; Ex parte Prosole (Nev.) 108 Pac. 630; People v. Abramson, 137 App. Div. 549, 122 N. Y. Supp. 115 ; State v. Shuford, 152 N. C. 809^ 67 S. B. 923. Bee "Statutes," Dec. Dig. (Key No.) § 2^1; Gent. Dig. §1 322, 323. 104 Commonwealtli v. Martin, 17 Mass. 359; Commonwealth v. Keniston, 5 Pick. (Mass.) 420. See "Statutes," Deo. Dig. (Key No.) § 241; Gent. Dig. §§ 322, 323. 106 State V. Goodwin, 169 Ind. 265, 82 N. B. 459. See "Statutes," Deo. Dig. {Key No.) § 2U; Gent. Dig. §§ 322, 323. 108 Atchison v. State, 3 Okl. Cr. 295, 105 Pac. 387. See "Statutes," Deo. Dig. (Key No.) § 241; Gent. Dig. §§ 322, S23. lOT State V. Fargo Bottling Works Co. (N. D.) 124 N. W. 387, 26 L. R. A. (N. S.) 872. See "Statutes," Dee. Dig. {Key No.) § 2^1; Cent. Dig. §§ 322, 323. 476 STRICT AND LIBERAL CONSTRUCTION (Gh. l2 or abrogated by legislative authority. Thus, in California, the Penal Code provides that "the rule of the common law, that penal statutes are to be construed strictly, has no ap- plication to this Code. All its provisions are to be con- strued according to the fair import of their terms, with a view to effect its objects and to promote justice." ^"^ So, also, in Kentucky, the common-law rule has been abrogated by statute, and penal laws, like all others, are to be con- strued with a view to carry out the intention of the legis- lature.^"' And statutes of substantially similar import and effect have been enacted in several of the other states,^^" STATUTES AGAINST COMMON RIGHT 138. Statutes which are in derogation of common right are to be construed strictly. It is a well-settled rule that statutes which are in deroga- tion of common right, and which confer special privileges, or impose special burdens or restrictions, upon individuals or upon one class of the community, not shared by others, should receive a strict construction ; and the courts will require that cases coming before them shall be brought clearly within the terms of such statutes before they will 108 Pen. Code, § 4; People v. Soto, 49 Cal. 67; In re Mitchell, 1 Cal. App. S96, 82 Pac. 347. iSee "Statutes," Dec. Dig. (Key No.) § 24i; Cent. Dig. §§ S22, S2S. 10 9 Commonwealth v. Davis, 12 Bush, 240; Commonwealth v. Trent, 117 Ky. 34, 77 S. W. 390; Lyons v. Hodgen & Miller, 10 Ky. haw Rep. 271. See "Statutes," Dec. Dig. {Key No.) § 241: Cent Dig. §§ Sgg, 323. 110 See People v. Teal, 196 N. Y. 872, 89 N. B. 1086, 25 L. R. A. (N. S.) 120 ; Rev. Codes, N. D. 1905, § 8538 ; State v. Fargo Bottling Works Co. (N. D.) 124 N. W. 387, 26 L. R. A. (N. S.) 872 ; Wilson's Rev. & Ann. St. Okl. 1903, § 5144; Morris v. Territory. 1 Okl Cr 617, 99 Pac. 760; B. & C. Oomp., Or. § 2192; State v. JDunn, 63 Or. 304, 99 Pac. 278; Kurd's Rev. St. 1909, 111., c. 131, § 1; Peterson v. Currier, 62 111. App. 163 ; Williams v. Territory (Ariz.) 108 Pac 243 27 L. R. A. (N. S.) 1032. See ''Statutes," Dec. Dig. (Key No ^ S 2A1 '• Cent. Dig. |§ 322, 323. . J' » •; 8 «M, § 138) STATUTES AGAINST COMMON RIGHT 477 be held applicable thereto."* But a statute cannot be said to be in derogation of common right unless it is confined in its operation to a particular individual or set of men, sep- arate and apart from the rest of the community.^" More- over, the rights infringed upon by the statute must be such as would be enjoyed by the persons afifected at common law, or as a part of the general liberty which belongs to them under our system of governnient. Thus, laws for the protection of married women, infants, and persons of un- sound mind are not regarded as being in derogation of their common rights. But if a statute, for any cause; disables any persons of full age and sound mind (such as "spend- thrifts") from making contracts and otherwise dealing freely with their own property, it is to be construed strictly ; for although it may be founded in wise policy and a just regard for the public welfare, it is in derogation of private rights.^^* So, also, statutes requiring gratuitous services from any class of citizens are against common right and to be construed strictly. For this reason, a law requiring at- torneys at law to act as counsel for indigent persons in civil cases, without compensation, when assigned to that duty by the court, cannot be extended by construction so as to include criminal cases.^^* Again, the exclusion of any citizen or class of citizens from the privilege of giving evi- dence in the courts is opposed to natural right, and ought not to be extended beyond the letter of the statute.^ ^^ And an act imposing upon suitors in the courts an "oath of 111 Rothgerber v. Dupuy, 64 111. 452; Richardson v. AInsa, 11 Ariz. 359, 95 Pac. 103; Fox's Adm'rs v. Commonwealth, 16 Grat. (Va.) 1; Peet v. City of East Grand Forks, 101 Minn. 523, lia N. W. 1005 ; State v. Grymes, 65 W. Va. 451, 64 S. E. 728. See "Statutes," Dec. Dig. (Key No.) § Z39j Cent. Dig. § 320. 112 Flint River Steamboat Co. v. Poster, 5 Ga. 194, 48 Am. Dec. 248. See "Statutes," Deo. Dig. {Key No.) § 239; Cent. Dig.- § S20. lis Smith V. Spooner, 3 Pick. (Mass.) 229 ; Jones v. Semple, 91 Ala. 182, 8 South. 55T ; Strong v. Birchard, 5 Conn. 357. See "Statutes," Deo. Dig. {Key No.) § Z39; Cent. Dig. § 320. 11* Webb V. Baird, 6 Ind. 13. See "Statutes," Dec. Dig. (Key No.) ! S39; Cent. Dig. § 320. 110 Pelham v. a?he Messenger, 16 La. Ann. 99. See "Statutes," Dee. Dig. {Key No.) § 2S9; Cent. Dig. § 320. 478 STRICT AND LIBERAL CONSTRUCTION (Oh. 12 expurgation," that is, an oath bf past loyalty to the govern- . ment, and providing that if any person shall refuse to take such oath his suit shall be disittissed, must be subjected to a restrictive interpretation.^^* For the same reason, laws which impose restrictions upon trade or common occupa- tions, or upon the alienation of property, are to be strictly construed, and are never extended to cases not within the expressed will of the legislature.^'^ It is also said that an act authorizing an assessment for a street improvement is in derogation of individual rights, and must be strictly con- strued and rigorously observed. If there is a failure to com- ply with any material requirement of the statute, a sale of property for nonpayment of the assessment, or a lease based upon such a sale, will be invalid to convey either the title or the right of possession. ''' The same is true of estray laws. These, it is said, "like all others prescribing modes by which a party may be divested of his property without his consent, must be strictly construed, and a party claiming to have acquired a right and title to property by virtue of their provisions as against the original owner must affirmatively allege and prove that the mode prescribed by the statute for the acquisition of such title has, in every particular, been strictly followed." '^* Again, the policy of the law favors an equal distribution of the effects of a fail- ing debtor among his creditors, and a statute which, by giving a lien to certain creditors, gives them a preference, should be construed with reasonable strictness.'-" In the 118 Harrison v. Leach, 4 W. Va. 383. See "Statutes," Dec. Dig. (Key No.) § 2S9; Oent. Dig. § 320. iiT Richardson v. Emswiler, 14 La. Ann. 658; Sewall v. Jones, 9' Pick. (Mass.) 412 ; Mayor, etc., of City of Savannah v. Hartridge; 8 Ga. 23. See "Statutes," Dec. Dig. {Key No.) § 239; Cent. Dig. § 320. 118 Hopkins v. Mason, 61 Barb. (N. T.) 469. See "Statutes," Deo. Dig. (Key No.) § 239; Oent. Dig. § 320. iioTrumpler v. Bemerly, 39 Cal. 490. See "Statutes," Deo. Dig. (Key No.) § 239; Oent. Dig. § 320. 120 Chapin v. Persse & Brooks Paper Works, 30 Conn. 461, 79 Am. Dec. 263. But see ante, p. 378, as to construction of me- chanics' lien laws. See "Statutes," Deo. Dig. (Key No.) § 239; Oent , Dig. § 32^ § 138) ■ STATUTES AGAINST COMMON EIGHT 479 opinion of some of the courts, bankruptcy and insolvency laws are also in derogation of common right and should be strictly construed. Such statutes, it is said, are intended to deprive creditors of all remedy for the recovery of their debts, and therefore cannot be extended by implication be- yond the fair and legitimate meaning of the terms used by the legislature."^ But this opinion has been disputed, and there are respectable authorities holding that such statutes ought to be construed with liberality, as being remedial in their nature and beneficial in their effects."^ It is true that laws relating to bankruptcy and insolvency operate with severity upon the debtor, since they deprive him of the control and disposition of all his property and subject him to heavy penalties for any fraud, concealment, or false dealing. It is true also that they restrict the creditors to one particular mode of obtaining payment of their claims, and often compel them to accept less than the full amount in discharge and satisfaction of their debts. And in these respects such statutes ought not to be enlarged by intend- ment or implication beyond the clear expression of the leg- islative meaning. But yet such laws are founded in a sound and wise public policy and are designed to accomplish be- neficent results, and it would be an abuse of the power of interpretation if they were subjected to so narrow and severe a construction as to defeat the very objects which they are intended to promote. The construction should be strict as to the imposition of penalties, liberal as to the pow- ers of the assignee and as to the rights of the creditors, and liberal also as to the discharge of an honest debtor. In Louisiana, it is held that laws in derogation of the com; mercial law, as, for instance, statutes changing the rules of the law merchant with respect to the negotiability of notes or the validity of a verbal promise to accept a bill 121 Salters v. Tobias, 3 Paige (N. Y.) 338; Calladay v. Pilkington, 12 Mod. 513. See "Statutes," Dec. Dig. (Key No.) § 239; Cent. Dig. § 320. 122 Campbell v. Perkins, 8 N. Y. 430 ; Mims v. Lockett, 20 Ga. 474 ; In re MuUer, Deady, 513, Fed. Cas. No. 9,912. See "Statutes," Dec. Dig. (Key Vo.) § 239; Cent. Dig. § 320. 4i80 STRICT AND LIBERAL CONSTRUCTION (Ch. 12 to be thereafter drawn, must be strictly construed."' It is also a corpllary from the rule we are considering that where the intention of the legislature is to confei; a priv- ilege upon persons whose rights are to be affected by a statutory proceeding (such proceeding being in derogation of their rights of- property), and the language is doubtful as to the extent of the privilege, it is the duty of the courts to give to it the largest construction, in favor of the priv- ilege, which the language employed will fairly permit.^''* Eminent Domain Since the ekercise of the power of eminent domain is in derogation of common right, and is a high exertion of the paramount rights of the sovereign, it must be hedged about with all needful precautions for the protection and security of the citizen. And for this reason it is held that statutes authorizing the appropriation of private property for pub- lic/use must be strictly construed.^"' An intention to au- thorize such taking will never be presumed, nor deduced from anything but clear and unambiguous terms. Espe- 123 Crowell V. Van Bibber, 18 La. Ann. 637. See "Statutes," Deo. Dig. (Key No.) § 239; Cent. Dig. § 3S0. 12* Walker v. City of Cliicago, 56 111. 277. See "Statutes," Dec. Dig. (Key No.) § Z39; Cent. Dig. § SSO. 125 Harvey v. Aurora & G. R. Ck)., 174 111. 295, 51 N. B. 163; Gillette V. Aurora Rys. Co., 228 111. 261, 81 N. E. 1005 ; Gdddard v. Chicago & N. W. R. Co., 104 111. App. 526; Painter v. St. Clair, 98 Va. 85, 34 S. E. 989 ; Norfolk & W. R. Coi v. Lynchburg Cotton Mills Co., 106 Va. 376, 56 S. B. 146; Chesapeake & O. R. Co. v. Walker, 100 Va. 69, 40 S. E. 633 ; Edgerton v. Huff, 26 Ind. 35 ; People ex rel. Washburn v. Common Council, etc., of City of Gloversville, 128 App. Div. 44, 112 N. Y. Supp. 387; Johnson City Southern R. Co. V. South & W. R. Co., 148 N. a 59, 61 S. B. 683; Central Union Tel. Co. V. Columbus Grove, 28 Ohio Clr. Ct. R. 131; Puyallup v. Lacey, 43 Wash. 110, 86 Pac. 215; Fay v. Macfarland, 32 App. D. C. 295 ; Macfarland v. Moore, 32 App. D. C. 213 ; Campbell v. Young- son, 80 Neb. 322, 114 N. W. 415; Culver v. Hayden, 1 Vt 359; Hy- land V. President, etc., of Village of Ossining, 57 Misc. Rep. 212, 107 N. Y. Supp. 225 ; Bogart v. Castor, 87 Ind. 244 ; Ellis v. Kenyon, 25 Ind. 134. See "Statutes," Deo. Dig. (Key No.) § 239; Cent. Dig. § 320; "Eminent Domain," Deo, Dig. (Key No.) § 8: Cent. Dig SS 25 30, Si, iS, U. § 138) STATUTES AGAINST COMMON EIGHT 481 cially is this the case with regard to the delegation of this power to private corporations. Such a corporation will never be presumed to be invested with the power.. If it claims the right to condemn property for its uses, it must show a grant of such power.^^* Nor will a grant of the power be enlarged by mere implication. Thus, if the char- ter of a corporation gives it the right to appropriate private property for certain enumerated purposes, it will possess no authority to take property for any other purposes, and no. such extension of its powers can be deduced by mere inference from the terms of the grant.^^^ At the same time, laws delegating this power to corporations are not to be construed so strictly or literally as to defeat the evident purposes of the legislature. They are to receive a reason- ably strict and guarded interpretation, and the powers granted will extend no further than expressly stated or than is necessary to accomplish the general scope and pur- pose of the grant. If there remains a doubt as to the extent of the power, after all reasonable intendments in its favor, the doubt should be solved adversely to the claim of pow^ 128 Phillips V. Dunkirk, W. & P. R. Co., 78 Pa. 177; Allen v. Jones, 47 Ind. 438; In re Water Oom'rs of Amsterdam, 96 N. Y. 351; Adams v. Saratoga & W. R. Co., 10 N. X. 328; Fork Ridge Baptist Cemetery Ass'n v. Redd, 33 W. Va. 262, 10 S. E. 405; Gil- mer V. Lime Point, 19 Cal. 47 ; In re Opening of Roffignac Street, 7 La. Ann. 76; Martin v. Rushton, 42 Ala. 289; Southern Illinois & M. Bridge Co. v. Stone, 174 Mo. 1, 73 S. W. 453, 63 L. R. A. 301 ; Claremont R. & Lighting Co. v. Putney, 73 N. H. 431, 62 Atl. 727 ; Minnesota Canal & Power Co. v. Koochiching Co., 97 Minn. 429, 107 N. W. 405, 5 L. R. A. (N. S.) 638; Mull v. Indianapolis & C. Trac- tion Co., 169 Ind. 214, 81 N. B. 657. See "Statutes," Deo. Dig. (Key No.) § 239; Gent. Dig. § 330; "Eminent Domain," Dec. Dig. (Key No.) I 8; Cent. Dig. §§ 25, SO, 34, 43, U- 127 Currier v. Marietta & C. R. Co., 11 Ohio St. 228. And see South & N. A. R. Co. V. Highland Ave. & B. R. Co., 119 Ala. 105, 24 South. 114; Waterbury v. Piatt Bros. & Co., 75 Conn. 387, 53 Atl. 958, 60 L. R.- A. 211, 96 Am. St. Rep. 229 ; Minnesota Canal & Power Co. v. Pratt, 101 Minn. 197, 112 N. W. 395, 11 L. R. A. (N. S.) 105. See "Statutes," Dec. Dig. (Key No.) § 239; Cent. Dig. § 320; "Eminent Domain," Dec. Dig. (Key No.) § 8; Cent. Dig. §§ 25, SO, S4, 4S, U. BlACK iNT.Ii. 31 482 STRICT AND LIBERAL CONSTRUCTION (Ch. 12 er.i" It is held that a statute giving to railroad companies the right of eminent domain will not be so construed as to allow such a company to appropriate a portion of the right of way of another railroad for the purposes of a parallel line, if such a result can be avoided by any reasonable con- struction of the act.^^" On the same general principle, it is held that a statute authorizing the impressment of pri- vate property, to serve the military necessities of the gov- ernment in time of war, or for the use of health officers in times of dangerous epidemic sickness, must be strictly con- strued, and exactly followed by those acting under it.^'° Police Regulations Statutes enacted by the legislature in the exercise of the police power, for the promotion (5r preservation of the pub- lic safety, health, or morals, may sometimes impinge upon the liberty of individuals, by restricting their use of their property, or abridging their freedom in the conduct of their business. When this is the case, such statutes ought al- ways to receive such a construction as will carry out the purpose and intention of the legislature with the least pos- sible interference with the rights and liberties of private persons. ^'^ For example, a law regulating the practice of 12 8 New York & H. R. Co. y. Kip, 46 N. Y. 546, 7 Am. Rep. 385. See, also, Tide Water Canal Co. v. Archer, 9 Gill' & J. (Md.) 479 ; Macfarland v. Elverson, 32 App. D. C. 81. See "Statutes," Dec. .Dig. (Key No.) § 239; Cent. Dig. §§ 320; "Eminent Domain," Dec. Dig. (Key No.) § 8; Cent. Dig. §§ 25, SO, 34, 43, U- 129 Illinois Cent. R. Co. v. Chicago, B. & N. R. Co., 122 111. 478, 13 N. E. 140. See "Statutes," Dec. Dig. {Key No.) § 239; Gent. Dig. $ 320; "Eminent Domain," Dec. Dig. (Key No.) § 8; Gent. Dig. §§ 25, SO, 34, 43, 44- 13 White V. Ivey, 34 Ga. 186; Pinkham v. Dorothy, 55 Me. 135. See "Statutes," Dec. Dig. (Key No.) § 239; Cent. Dig. § 320; "War," Deo. Dig. (Key No.) § 14; Cent. Dig. § 57; "Health," Dec. Dig. (Key No.) § 23; Cent. Dig. § 26. 1 SI See In re Jacobs, 98 N. Y. 98, 50 Am. Rep. 636; Stewart v. Commonwealth, 10 Watts (Pa.) 306; Carberry v. People, 39 111. App. 506;" Shiel t. Mayor, etc., of Sunderland, 6 Hurl. & N. 796; Brady v. Northwestern Ins. Co., 11 Mich. 425; People v. Sommer, 55 Misc. Rep. 55, 106 N. Y. Supp. 190 ; Chicago, M. & St. P. Ry. Co. V. Voelker, 12& Fed. 522, 65 C. C. A. 226, 70 L. R. A. 264; Lagler §138) STATUTES AGAINST COMMON EIGHT 483 medicine, and imposing penalties upon persons who engage in the practice of that profession without complying with its provisions, though a valid and wholesome police regu- lation, is penal in its character and should be strictly con- strued.^ ^^ The same is true of statutes or ordinances es- tablishing fire limits in populous cities, and prohibiting the erection of wooden buildings within such limits.^" And similar principles will be, found to ^e applicable to laws regulating the operation of railways in the interests of the public safety, to those which concern the purity of food products, to those which restrict the right to engage in the sale of intoxicants and other articles deemed noxious or dangerous, to those which place restrictions upon the free- dom of contract,^'* and to many other classes of enactments designed to further the general welfare by derogating from the liberty of a few. V. Bye, 42 IncL App. 592, 85 N. K 36; Nance v. Southern Ry. Co., 149 N. O. 366, 63 S. E. 116; Young v. Madison County, 137 Iowa, 515. 115 N. W. 23 ; Willis v. Bayles, 105 Ind. 363, 5 -N. E. 8 ; Gray v. Stewart, 70 Kan. 429,, 78 Pac. 852, 109 Am. St. Rep. 461; Com- monwealth V. Beck, 187 Mass. 15, 72 N. E. 357; Wheelwright V. Commonwealth, 103 Va. 512, 49 S. B. 647. See "Statutes," Deo. Dig. {Key No.) § 239; Cent. Dig. § 3W. 132 Brooks V. State, 88 Ala; 122, 6 South. 902; State v. Biggs, 133 N. C. 729, 46 S. B. 401, 64 h. R. A. 139,-98 Am. St. Rep. 731. See "Statutes," Dec. Dig. (Key No.) § 239; Cent. Dig. § 320; "Plvysicians and Surgeons," Dec. Dig. (Key No.) § 5; Cent. Dig. § 5. 133 Brown v. Hunn, 27 Conn. 332, 71 Am. Dec. 71. See "Statutes,V Deo. Dig. (Key No.) § 239; Cent. Dig. § 320. isiQeveland, C, C. & St. L. Ry. Co. t. Henry, 170 Ind. 94, 83 N. B. 710; Smith v. Spooner, 3 Pick. (Mass.) 229. Although an act to regulate the sale of intoxicants contains penal clauses, It is re- garded as a general revenue and remedial statute, and given a liberal, and at the same time reasonable, construction In aid of the remedy, rather than a strict and narrow one, in the interest only of those who violate its provisions, and in construing it the court will consider its objects and purposes so as to effectuate them. United States ex rel. Stevens v. Richards, 33 App. D. C. 410. See "Statutes," Deo. Dig. (Key No.) § 239; Cent. Dig. § 320. 484 STEIGT AND LIBERAL CONSTRUCTIOIJ (Ch. 12 LAWS AUTHORIZING SUMMARY PROCEEDINGS 139. Statutes authorizing summary proceedings must be construed with strictness, and must be exactly fol- lowed by those who act under or in pursuance of them. When the object of a statute is remedial, it is to be con- strued liberally so that it may accomplish the purposes for which it was designed. But when a remedy is sought to be .obtained by a summary proceeding, under a statute which is in derogation of the common law, the statute is to be strictly construed. Hence the courts, when looking at the remedy, will take care that it shall be made effectual, if possible, in the manner intended. But when scanning the proceedings to obtain that remedy, the courts will be strict and rigid in exacting a compliance with all the requirements of the statute."" "An act of Parliament," says Best, C. J., "which takes away the right of trial by jury, and abridges the liberty of the subject, ought to receive the strictest con- struction; nothing should be holden to come within its operation that is not expressly within the letter and spirit of the act." ^*° For example, statutes authorizing proceed- ings by attachment must be construed strictly, and hence cannot be held applicable to cases which are not plainly within their terms."' "The proceeding in attachment, as 185 Smith V. Moffat, 1 Barb. (N. X.) 65; Logwood v. President, etc., of Planters' & Merchants' Bank of Huntsyille, Minor (Ala.) 23 ; Jud- Bon V. Smith, 104 Mo. 61, 15 S. W. 956 ; Omaha Sav. Bank v. Rose- water, 1 Neb. (Unof .) 723, 96 N. W. 68 ; Erkman v. Carnes, 101 Tenn. 136, 45 S. W. 1067. And see In re Roberts, 4 Kan. App. 292, 45 Pac. 942 ; Board of Com'rs of Petite Ansfr Drainage Dist. v. Iberia & V. R. Ck)., 117 La. 940, 42 South. 433 ; in re Robinson's Estate, 59 Misc. Rep. 323, 112 N. Y. Supp. 280 ; Mill v. Brown, 31 Utah, 473, 88 Pae. 609, 120 Am. St. Rep. 935. See "Statutes," Dec. Dig. (Key No.) § 2U; Cent. Dig. § 325. 1S6 Looker v. Halcomb, 4 Bing. 183. See "Statutes," Dec. Dig. (Key yo.) § SU; Cent. Dig. § SS5. 187 Van Norman v. Jackson Circuit Judge, 45 Mich. 204, 7 N. W. 796 ; Mathews v. Densmore, 43 Mich. 461, 5 N. W. 669 ; Whitney v. § 139) ' LAWS ATJTHOEIZINQ SUMMARt PROCEEDINGS 485 authorized by the statutes of the several states, is always viewed as a violent, proceeding, a proceeding wherein the plaintiff, at the incfeptioil of his suit, seizes upon the prop- erty of the defendant without waititig to establish his claim ' before the judicial tribunals of the land, and the statute authorizing it has invariably received a strict construc- tion." ^^' But it must be remarlced that this rule has beeh changed by statute in some of the states, the legisla,turt directing that the attachment laws shall be liberally con- strued. "The property of one person," says the Court ill Ohio, "cannot be subjected to the payment of the debt of another without invading the right of private property ; and whatever may be the coiiipetency of the legislative power to create such a liability by way of forfeiture, penalty, or confiscation, upon the ground of public policy, it cannot be done by mere iniplicatiori ; and in the absence of any.pfbvi-' sion expressly declaring the public duty exacted and 'p1;6-' viding for such liability, a statute providing for th6 collec- tion of claims by a surhmary proceeding against propetty by its seizure or attachment must be construed as simply providing a femedy for the enforcement of liabilities, arid not as creating new liabilities upon the owners of the prop- erty, not arising at common law.'* ^^^ So, also, any statute Which authorizes an arrest without a direct charge of guilt should be construed with gl^eat strictness. Thus, where a statute authorizes the issuance of a warrant, in certain cases, upon the oath of the prosecutor that he "has good reason to believe" that an offense has been committed, it must be exactly followed ; and if he merely swears that he "has been credibly informed," etc., this will not be enough to justify the issuing of a warrant."" So again, the terms Brunette, 15 Wis. 61; Blake v. Sherman, 12 Minn. 420 (Gil. 305); Wllkie V. Jones, Morris (Iowa) 97 ; Musgrave v. Brady, Morris (Iowa) 456 ; Burch v. Watts, 37 Tex. 135. Bee "Statutes," Dec. Dtg. {Key Jfo.) § 2U; Cent. Dig. § 325. las wilki€ v. Jones, Morris (Iowa) 97. See "Statutes, ' Dee. Dtg. (KeyNo)%2U;Oent.Dig.%3t5. ' „. . isscphe Ohio v. Stunt, 10 Ohio St. 582. See "Statutes," Dec. Dtg. (Key No.) § 2U; Gent. Dig. § 325. 1*0 State V. Dale, 3 Wis. 795. See "Statutes," Dec. Dig. (Key No.) § m; Cent. Dig. § 325. 486 STRICT AND LIBBEAL CONSTRUCTION (Ch. 12 and conditions prescribed by a statute, , providing for con- structive service of process, must be. . strictly complied, with."* And a statute requiring a defendant in civil ac- tions to file an affidavit of defense to the action, and author- izing the. plaintiff, on^failure of such affidavit, to have judg- ment entered up, is in derogation of the defendant's right. to a trial by jury, and must be strictly construed.**^ A statute giving a remedy by motion agairist public officers on their official bonds, being , summary and in derogation of common law, should be construed with strictness.**' Thus, a statute which authorizes a summary proceeding against a sheriff, and his amercement in damages, for a fail- ure to return a writ of execution at the proper. time, is highly penal in its character, and any person who claims, that, this process should be put into effect against the offi- cer must bring his case within both the letter and the spirit of the law.*** So a statute authorizing the courts to render judgment, without a separate action, against sureties on bonds giveri, in the course of legal proceedings, must be construed strictly and not extended by implication.**" Again, a party who claims goods under a constable's sale upon a distress for rent must prove affirmatively that all the statutory requirements of such a sale have been com- 1*1 Guaranty Trust & Safe-Deposit Co. v. Green Cove Springs & M. R. Co., 139 U. S. 137, 11 Sup. Ct. 512, 35 .L. Ed. 116 ; Meyer v. Kuhn, 65 Fed. 705, 13 C. C. A. 298 ; Stewart v. Stringer, 41 Mo. 400, 97 Aril. Dec. 278 ; People v. Huber, 20 Cal. 81 ; Pinkney Y. Pinkney, 4 G. Greene (Iowa) 324 ; Edrington v. Allsbrooks, 21 Tex. 186 ; Is- rael T. Arthur, 7 Colo. 5, 1 Pac. 438; City of Detroit v. Detroit City R. Co. (0. C.) 54 Fed. 1. See "Statutes," Dec. Dig. (Key No.) § 2U; Cent. Dig. § 325. 142 Wall V. Dovey, 60 Pa. 212. See "Statutes," Deo. Dig. {Key No.) § 2U; Gent. Dig. § 325. i*3Hearn v. Ewin, 3 Cold. (Tenn.) 399; Rice v. Kirkman, 3 Humph. (Tenn.) 415 ; Scogins v. Perry, 46 Tex. Ill ; Robinson v. Schmidt, 48 Tex. 13. See "Statutes," Dec. Dig. (Key No.) § ZU; Gent. Dig. § 325. 144 Moore v. McClief, 16 Ohio St. 51. See "Statutes," Deo. Dig. (Key No.) § 2U; Gent. Dig. § 325. i4iiwmard V. Fralick, 31 Mich. 431. See "Statutes," Dec. Dig^ (Key No.) § 2U; Cent. Dig. § 325. §140) REMEDIAL STATUTES 487' plied with.^*' So if, by a private act, the property of a per-^ son is directed to be sold by the surveyor general without any warranty, and the money to be paid to certain cred-' itors, it does not take away the rights of third persons, but' amounts only to a quitclaim of any right or interest of the' state."' REMEDIAL STATUTES 140. Remfdial statutes are to be liberally construed with a view to effectuate the purposes of the legisla- ture ; and if there be any doubt or ambiguity, that construction should be adopted which will best ad- vance the remedy provided and help to suppress the mischief against which it was aimed.^*' It is "an old and unshaken rule in the construction of statutes that the intention of a remedial statute will always prevail over the literal sense of its terms, and therefore when the expression is special or particular, but the reason J i<« Murphy v. Chase, 103 Pa. 260. See "Statutes," Dec. Dig. (Key No.) § 2U; Gent. Dig. § 325. 1*7 Jackson ex flem. Gratz v. Catlin, 2 Johns. (N. Y.) 248, 3 Am. Dec. 415. See "Statutes," Dec. Dig. (Key No.) § 2U; Cent. Dig. § SS5. 148 Smith v. Moffat, 1 Barb. (N. Y.) 65; Hudler v. Golden, 36 N. Y. 446 ; White v. The Mary Ann, 6 Cal. 462, 65 Am. Dec. 523 ; Cullerton v. Mead, 22 Cal. 95 ; Jackson v. Warren, 32 111. 331 ; Wilber v. Paine, 1 Ohio, 251 ; Litch v. Brotherson, 16 Abb. Prac. (N. Y.) 384 ; Hoguet V. Wallace, 28 N. J. Law, 523 ; State ex rel. Griswold v. Blair, 32 Ind. 313 ; Fox v. Sloo, 10 La. Ann. 11 ; Sprowl v. Lawrence, 33 Ala. 674; State v. Canton, 43 Mo. 48; Mason v. Rogers, 4 Litt. (Ky.) 375; State V. Lynch, 28 E. I. 463, 68 Atl. 315 ; Wall v. Piatt, 169 Mass. 398, 48 N. E. 270; Traudt v. Hagerman, 27 Ind. App. 150, 60 N. E. 1011 ; Ketcham v. New Albany & S. R. Co., 7 Ind. 391 ; Harrison y. National Bank of Monmouth, 108 111. App. 493 ; Tousey v. Bell, 23 Ind. 423; Becker & Degen v. Brown, 65 Neb. 264, 91 N. W. 178; Union Brewing Co. v. Ehlhardt, 139 Mo. App. 129, 120 S. W. 1193; Robinson v. Harmon, 157 Mich. 276, 122 N. W. 106 ; Everson v. Gen- eral Accident Fire & Life Assur. Corp., Limited, of Perth, Scotland, 202 Mass. 169, 88 N. E. 658 ; State v. Central Vermont R. Co., 81 Vt. 459, 71 Atl. 193, 21 L. R. A. (N. S.) 949 ; Asheville Land Co. v. Lange, 150 N. C. 26, 63 S. E. 164; Northern Indiana Ry. Co. v. Lincoln 488 STRICT AND LIBERAL CONSTRUCTION (Ch. 12 is general, the expression shall be deemed general."^** "The rtile in construing reniedial statutes, though it may- be in derogation of the common law, is that everything is to be done in advancement of the remedy that can be done consistently with any fair construction that can be put upon it." ^"* Especially in the construction of a remedial statute which has for its end the promotion of important and beneficial public objects, a large construction is to be given where it can be done without doing actual violence to its terms.^" But still it is to be remembered that the rule of construction whereby the operation of a statute may sometimes be judicially extended beyond its words does not apply, even in the case of a remedial statute, where the words are too explicit to admit of the belief that such an extension of its operation was intended by the legisla- ture."" What are Remedial Statutes "Remedial statutes are those which are made to supply such defects, and abridge such superfluities, in the common law, as arise either from the general imperfection of all human laws, from change of time and circumstances, from the mistakes and unadvised determinations of unlearned (or even learned) judges, or from any other cause whatso- ever. And this being done, either by enlarging the common law where it was too narrow and circumscribed, or by re- straining it where it was too lax and luxuriant, hath occa- sioned another subordinate division of remedial acts of Par* Nat. Bank (Ind. App.) 92 N. E. 384. See "Statutes," Dec Dig. {Key No.) § 236; Cent. Dig. |§ 317, SU, SS5. 1*0 Brown v. Pendergast, 7 Allen (Mass.) 427. See "Statutes," Dec. Dig. (Key No.) § 236; Cent. Dig. §§ 317, 324, 325. 160 Chicago, B. & Q. R. Co. v. Dunn, 52 111. 260, 4 Am. Rep. 606. See "Statutes," Dec. Dig. (Key No.) § 236; Cent. Dig. §§ 317, 324, 325. 151 Town of Wolcott V. Pond, 19 Conn. 597. See "Statutes," Dec. Dig. {Key No.) § 236; Cent. Dig. §§ 317, 324, 325. i52Farrel Foundry v. Dart, 26 Conn. 376; Learned v. Corley, 43 Miss. 687 ; City of Detroit v. Detroit United Ry., 156 Mich. 106, 120 N. W. 600. See "Statutes," Dec. Dig. (Key No.) § 236; Cent. Dig. §§ 317, 324, 325. § 140) REMEDIAL STATUTES 489 liament into enlarging arid rfestraining statutes." ^°* To this it should be added, that a law is equally entitled to be considered a remedial statute whether it remedies a defect of the common law or of the pre-existing body of statute law. Atid it may be remarked that the lines of distinction between penal and remedial statutes are no longer very clearly drawn, since many modern statutes are penal when regarded in one aspect, but remedial when considered in another light. They may give a valuable and much needed remedy against an existing injustice, hardship, or oppres- sion, and therefore are to be liberally and beneficially inter- preted, notwithstanding the fact that a violation of their provisions may be followed by consequences which are very distinctly penal in their character. Thus a statute of Mich- igan pi-ovided that every raikoad company should, on due payment of the freight legally chargeable, transport prop- erty to and from regular stopping places, under penalty of $100 for each violation, to be recovered by the party ag-i grieved; It was held that this was not a penal statute, strictly speaking, but remedial in its effect.^" And the same Ruling has been made on a law designed to furnish a complete statutory. scheme to secure and maintain the fenc- ing of railroads.^"* Hxamples of Remedial Statutes and Their Construction It may be 'sta;ted in general terms that any statute which gives a remedy or means of redress where none existed be- fore, or which creates a right of action in an individual, or a particular class of individuals, is remedial, within the meaning of this rule.^'?? Thus, a statute giving to a person "3 1 Bl. Coinm. 86. . See "Statutes," Dec. Dig. {Key No.) § 236; Cent. Dig. §§ Si7, 3S4, 325. IB 4 Koblnson v. Harmon, 157 Mich. 272, 117 N. W. 664. See "Stat- utes," Dec. Dig. (Key No.) § 236; Cent. Dig. §§ 317, 3U, »S5. 1B5 Vandalia R. C!o. v. Miller (Ind. App.) 90 N. E. 907. See "Stat- utes," Dee. Dig. (Key No.) § 236; Cent. Dig. §§ 311, 32J,, 325. ^ 158 Neal V. Moultrie, 12 Ga. 104 ; Kennealy v. Leary, 67 Ni J. Law, 435, 51 Atl. 475 ; Western Union Tel. Co. v.- McDaniel, 103 Ind. 294, 2 N. E. 709. But see Chicago & N. B. R. Co. v. Sturgis, 44 Mich. 538, 7 N. W. 213, holding that a statute, even when it is remedial, must be followed with strictness where it gives a remedy against a 490 STRICT AND LIBERAL CONSTRUCTION (Ch. 12 ,yijured by reason of a defect in a highway a right of action in damages against the municipal corporation which was pharged with the duty of keeping the highway in repair, is remedial, even though it authorizes the recovery of dou- ble damages.^" So, also, a statute for the collection of claims against steamboats and other water craft, which au- thorizes proceedings against the same by name, is remedial in its nature, being designed to afford a convenient, and speedy remedy against the property of the persons liable, and to provide some means of safety in the collection of the claims by fixing the liability of the property.^"' Again, where an act authorized suits to be brought against insur- ance companies in the county where the "property insured'* might be located, and a supplementary act provided that all the provisions of the former statute should be applicable to life insurance companies, it was held that, under said acts, suit might be brought against a life insurance com- pany in the county where the person insured resided.^'" On this principle, it is generally held (although there are some decisions to the contrary) that statutes giving a right of action in damages to the surviving relatives or next of kin of a person whose death is caused by the wrongful act, party who would not otherwise be liable. Note, also, Commonwealth V. Glover, 132 Ky. 588, 116 S. W. 769, where it is stated that, when a statute gives a right or provides a remedy, the manner provided in the statute whereby the right may be acquired must be strictly fol- lowed. And see, to the same general effect, City of Boston v. Shaw, 1 Mete. (Mass.) 130; Commonwealth v. Howes, 15 Pick. (Mass.) 231. It is perhaps on the ground stated in the text that we can approve a recent decision of the court in New Mexico, to the effect that statutes providing for the recovery of money lost at gaming are remedial in their nature, designed to discourage gambling by mak- ing the gamester's winnings insecure, and should not be too narrowly construed. Mann v. Gordon, 110 Pac. 1043. See "Statutes," Deo. Dig. {Key No.) § 236; Gent. Dig. §§ 317, 324, 325. 107 Reed V. Inhabitants of Northfleld, 13 Pick. (Mass.) 94, 23 Am . Dec. 662. See "Statutes," Deo. Dig. {Key No.) § 236; Cent. Dig. §§ 317, 324, 325. 108 The Ohio v. Stunt, 10 Ohio St. 582. See "Statutes," Dec Dig. (Key No.) § 236; Cent. Dig. §§ 317, S2i, 325. ISO Quinn v. Fidelity Beneficial Ass'n, 100 Pa. 382. See "Statutes," Dec. Dig. (Key No.) § 236; Cent. Dig. §| 317, 324, 325. § 140) REMEDIAL STATUTES 491 neglect, or default of another are remedial and should be liberally construed.^"" The court in New Jersey, speaking of such a statute, says: "It is entirely and in the highest sense rernedial in its nature. Its object was to abolish the harsh and technical rule of the common law, actio person- alis moritur cum persona. The rule had nothing but pre- scriptive authority to support it ; it was a defect in the law, and this statute was designed to remove that defect. It is therefore entitled to receive the liberal construction which appertains to remedial statutes. The mischief to be re- dressed was the nonexistence of a remedy for an admitted wrong. It is clearly therefore the duty of the court to ad- vance the remedy." ^'^ So again, statute provisions for indemnity for loss accruing to "one citizen, by means of a privilege given to another by the legislature, ought to re- ceive a liberal construction in favor of the citizen damni- fied.^'* And a statute providing for the determination of claims to real estate and to quiet title to the same is reme- dial and should be liberally construed.^"^ A statute intended to legitimate the issue of marriages otherwise void is remedial in its nature and to be liberally construed ; and hence, in such an act, the words "inherit," 160 Haggerty v. Central R. Co., 31 N. J. Law, 349; Merkle v. Ben- nington Tp., 58 Mich. 156, 24 N. W. 776, 55 Am. Rep. 666; Bolinger V. St. Paul & D. R. Co., 36 Minn. 418, 31 N. W. 856, 1 Am. St. Rep. 680; Wabash, St. L. & P. Ry. Co. v. Shacklett, 10 111. App. 404; Hayes v. WiUiams, 17 Colo. 465, 30 Pac. 352; Beach v. Bay State Steamboat Co., 16 How. Ffac. (N. Y.) 1. See, per contra, Pittsburg. a & St I/. Ry. Co. V. Hino, 25 Ohio St. 629 ; Hamilton v. Jones, 125 Ind. 176, 25 N. E. 192. The case last cited holds such a statute to be subject to the rule of strict construction, not, however, on the ground that it is not a remedial statute, but solely on the ground of its being in derogation of the common law, as to which, see ante, pp. 367-370. oil the subject of the proper construction of these statutes, see Tiffany, Death by Wr. Act, § 32. See "Statutes," Dec. Dig. (Key No.) § 236; Cent. Dig. §§ 317, SH, S25. 181 Haggerty v. Central R. Co., 31 N. J. Law, 349. See "Statutes,'', Deo. Dig. (Key No.) § 236; Gent. Dig. §§ 317, 321 325. 162 Boston & R. Mill Corp. v. Gardner, 2 Pick. (Mass.) 33. See "Statutes," Dec. Dig. (Key No.) § 236; Cent. Dig. §§ 317, S2J,, 323. 163 Holmes V. Chester, 26 N. J. Eq. 79. See "Statutes," Dec. Dig., (Key No:) § 236; Cent. Dig. §§ 317, S2Jf, 325. 492 STRICT AND LIBBRAIi CONSTEUCTION (Ch. 12 "heir," and "joint heir" will be construed to give to le- gitimated children all the rights of inheritance and succes- sion which would attach to . them had they been born in lawful wedlock."* Acts providing for the recording of conveyances, making such records constructive notice,, and relieving subsequent purchasers and incumbrancers in good faith from the efifect of unrecorded conveyances, are reme- dial and to be construed liberally."" The same rule was applied, in a case in Illinois, to a statute designed to remedy the evils consequent upon the destruction of public records by a. fire, which provided for the recording of certified copies oi conveyances and extracts from court records, provided a form of action to establish a destroyed record, and gave the courts jurisdiction to inquire into and settle titles. It was said to be emphatically a remedial act and entitled to a liberal construction,^"" Ag^^i^, statutes; exempting home- steads from forced ^ale on judicial process should receive such a construction as to carry out the liberal and benefi- cent policy of the legislature. But parties must bring themselves within their provisions, at least in spirit, before they can claim exemption uijder them; for, without some special statute making the exemption, all the property of a debtor will be subject to levy and sale.^°^ A statute ex- enipting from attachment and execution "the tools of any debtor necessary for his trade or occupation" is a beneficent and remedial statute and should not be narrowly construed ; and hence it will be- held to include not merely the tools used by the tradesman with his own hands, but also such, i8*Brower v. Bowers, 1 Abb. Dec. (N. Y.) 214; Beall v. Beall, 8 6a. 210; Swanson v. Swanson, 2 Swan. (Tenn.) 446. See "Statutes," Deo. Dig. (Key No.) § 236; Cent. Dig. §§ 317, 32i, SS5. 165 Connecticut Mut. Life Ins. Co. v. Talbot, 113 Ind. 373, 14 N. E. 586, 3 Am. St. Rep. 655 ; Tate v. Rose, 35 Utah, 229, 99 Pac. 1003. See "Statutes," Deo. Dig. (Key No.) § 236; Cent. Dig. |§ SIT, S2J,, 325. 168 Smith V. Stevens, 82 111. 554. And see In re Patterson's Estate, 155 Cal. 626, 102 Pac. 941, 26 L. R. A. (N. S.) 654, 132 Am. St. Rep. 116. See "Statutes," Deo. Dig. (Key No.) § 236; Cent. Dig. §§ 317, 324, 325. 167 Charless v. Lamberson, 1 Iowa, 435, 63 Am. Dec. 457. See "Statutes," Deo. Dig. (Key No.) § 236; Cent. Dig. §§ 317, 32i, 325. §14:0) REMEDIAL STATUTES 493 in character and amount, as are necessary to enable him to prosecute his appropriate business in a convenient and usual manner, including also, in a proper case, the tools ^ used by journeymen or apprentices and constituting the necessary means of their employment.^"' A law validating irregularities in proceedings for the formation of school dis- tricts is to be liberally construed in furtherance of its ob- j«ct.^*° And a statute authorizing a court to open, re-ex- amine, and correct the accounts of a public officer is highly remedial.^'" So also, an act relating to the official bonds of public officers concerns the public rights a,nd interests, and should be liberally construed with a view to making it effective against the evil which it was intended to abate, where that can be done without depriving any individual of his just rights. ^^^ On- the same principle, a statute au- thorizing and requiring an officer of a city to take proper steps to procure the opening and reversal of all judgments against the city which he may have reason to believe were founded in fraud or obtained by collusion, is for the benefit of the public and designed to prevent fraud, and should , therefore be liberally construed.^'* 188 Howard v. Williams, 2 Pick. (Mass.) 80. See, also, Alvord v. Lent, 23 Mich. 369. See "Statutes," Dec, Dig. {Key No.) § 236; Cent. Dig. §§ 317, 324, 325. 189 First School Dist. of Stratford v. Ufford, 52 CAnn. 44. See "Statutes," Dec. Dig. (Key No.) § 23S; Gent. Dig. §§ 3J7, 324, 325. 170 wiiite County v. ICey, 30 Ark. 603. See "Statutes," Dep. Dig. {Key No.) § 236; Cent. Dig. §§ 317, 324, 325. 171 Ex parte Plowman, 53 Ala. 440. See "Statutes," Dec. Dig. {Key No.) § 236; Gent. Dig. §i 317, 324, 325. 1T2 Sharp V. Mayor, etc., of City of New York, 31 Barb. (N. Y.) 672. See "Statutes," Dec. Dig. {Key No.) § 236; Gent. Dig. §§ 317^ 324, 325. 494 STRICT AND LIBERAL CONSTRUCTION (Ch. 12 STATUTES REGULATING PROCEDURE 141, Statutes relating to the administration of justice in th« courts, and designed to render the same more sim« pie, speedy, or efficacious, are remedial in charac- ter, and should be liberally construed to promote their objects. This rule applies generally to all statutes which are in- tended to simplify procedure in the courts, to abolish tech- nical requirements and obviate the effect of technical ob- jections, to prevent delays, or to give to suitors a more effective method of presenting and enforcing their rights and claims. ^^^ Thus an act which tends to simplify proce- dure in the courts, by abolishing all the forms of action ex contractu except that of assumpsit, should receive a liberal construction.^^* The same is true of statutes providing for amendments in pleadings or legal process. They are to be liberally construed in furtherance of the object of securing trials upon the merits. ^^° And a law altering the mode of procedure in point of form, in a suit pending when the act was passed, so as to prevent a delay and hasten the time of trial, is remedial in its nature and should be liberally con- strued. ^^° Again, statutes authorizing a change of venue in cases where it is alleged that a fair and impartial trial cannot be had in the court where suit is originally brought, are very important to the due administration of justice, and ought to be so construed as to secure the right and make i'3 Heman v. MeNamara, 77 Mo. App. 1 ; Thrift v. Thrift, 30 R. I. 357, 75 Atl. 484 ; McGill v. Leduc, 3 Mo. 398 ; Mitchell v. Mitchell, 1 Gill (Md.) 66 ; Sawyer v. Childs, 83 Vt. 329, 75 Atl. 886 ; Cornman V. Hagginbotham, 227 Pa. 549, 76 Atl. 721. iSee "Statutes," Dec. Dig. (Key No.) § 2^3; Cent. Dig. § 824. 174 Jones V. Gordon, 124 Pa. 2G3, 16 Atl. 862. See "Statutes," Dec. Dig. (Key No.) § 2^3, ■ Cent. Dig. § 324. 176 Bolton V. King, 105 Pa. 78; Fidler v. Hershey, 90 Pa. 363; Bulkley v. Andrews, 39 Conn. 523. See "Statutes," Dec. Dig. (Key No.) § 2/i3; Cent. Dig. § 324- 1" People V. Tibbets, 4 Cow. (N. Y.) 384. See "Statutes," Deo. Dig. (Key No.) § Z43; Cent. Dig. § 324. § 141) STATUTES REGULATING PROCEDURE 495 it effective.^^' So, also, statutory provisions in relation to the submission of controversies to arbitration are beneficial in their nature and founded in good public policy, and should be construed with liberality."' On the same gen- eral principle, statutes -giving or extending a right of appeal are always liberally construed in furtherance of justice, and the courts will endeavor to avoid putting upon them such a construction as would work a forfeiture of the right in the particular case.^'* The principle of liberal construction will also be applied to a statute providing for the continu- ance of all process, pleadings, and proceedings during a vacancy in the office of the judge of the court,^*° and to one authorizing the amendment of defective bonds or re- cognizances.^*^ Again, where a statute provides that evi- dence of a certain kind shall be admitted to prove a fact, it is not to be construed as excluding all other evidence of the fact.^=' But where a statute gives a new and extraordinary rem- edy, and directs how the right to the remedy is to be ac- quired or enjoyed, the act should be strictly construed, and the steps pointed out for the enjoyment of the remedy pro- vided should be construed as mandatory, rather than di- rectory. This rule was applied in a case where the statute ITT Griffin v. Leslie, 20 Mi 15. See "Statutes," Dec. Dig. (Key -Vo.) § 243; Cent. Dig. § 324. 178 Tuskaloosa Brlflge Co. v. Jemlson, 33 Ala. 476; Bingham's Trustees v. Guthrie, 19 Pa. 418. See "Statutes," Dec. Dig. {Key No.) § 243; Cent. Dig. § SS4. 178 Pearson v. Lovejoy, 53 Barb. (N. Y.) 407; Houk v, Barthold, 73 Ind. 21; Womelsdorf v. Heifner, 104 Pa. 1; Arceneaux v. De Benoit, 21 La. Ann. 673 ; Converse v. Burrows, 2 Minn. 229 (Gil. 191). See, also, Vigo's Case, 21 "Wall. 648, 22 L. Ed. 690; People v. Sholem, 238 111. 203, 87 N. B. 390; Mitchell v. California & O. S. S. Co., 154 Cal. 731, 99 Pac. 202 ; Williams v. Miles, 62 Neb. 566, 87 N. W. 315. Compare Cain v. State, 36 Ind. App. 51, 74 N. E. 1102. See "Stat- utes," Dec. Dig. {Key Wo.) § 243; Cent. Dig. § 324- 180 United States v. Murphy (D. C.) .82 Fed. 893. See "Statutes," Dec. Dig. {Key No.) § 243; Cent. Dig. § 324. i8iLewellyn v. Ellis, 50 Tex. Civ. App. 453, 115 S. W. 84. See "Statutes," Dec. Dig. {Key No.) § 243; Cent. Dig. § 324. 182 Green v. Gill, 8 Mass. 111;. Commonwealth v. Cutter, 8 Mass. 279. See "Statutes," Deo. Dig. {Key No.) § 243; Gent. Dig. § 324. 496 STRICT AND LIBERAL CONSTRUCTION (Oh. 12 gave to the court in which judgments against a certain county should be rendered, on its bonds, authority to levy and assess a tax to pay the judgment.^'* And it should be observed that special statutory jurisdiction is not to be ex- tended by construction, though doubts may be resolved in favor of jurisdiction where no established law is violat- ed."* If a statute deals with the courts of their process or procedure, the words employed by the legislature are to be construed in their proper technical sense, unless it plainly appears from the statute as a whole that they were meant to b" understood in a popular sense.^** STATUTES AGAINST FRAUDS 142. Statutes against frauds, in so far as they operate upon the fraud or offense, are to be liberally construed, in order that justice may be promoted by counter- acting the fraud or annulling the fraudulent trans- action. "Statutes against frauds are to be liberally and benefi- cially expounded. This may seem a contradiction to the last riile (that penal statutes are to be construed strictly), most statutes against frauds being in their consequences penal. But this difference is to be here taken : where the statute act? upon the offender, and inflicts a penalty, as the pillory or a fine, it is then to be taken strictly; but when the statute acts upon the offense, by setting aside the fraud- ulent transaction, here it is to be construed liberally. Upon issCampbellsvllle Lumber Co. v. Hubbert, 112 Fed. 718, 50 O. C. A. 435. But see Shields v. Johnson, 10 Idaho, 454, 79. Pac. 394, hold- ing that th6 statute authorizing the issue of injunctions is to be liberally construed. See "Statutes," Dec. Dig. (Key No.) | SJ,S; Cent. Dig. § 32i. ■ 184 Butler v. United States, 43 Ct. CI. 497; Propriietors of Charles RiTer Bridge v. Proprietors of Warren Bridge, 6 Pick. (Mass.) 376 ; Jones V. Nefwhall, 115 Mass. 244, 15 Am. Rep. 97. iSee "Statutes," Dec. Dig. (Key. No.) § 2/,S; Cent. Dig. § SH^. 18 President, etc., of Merchants; Bank v. Cook, 4 Pick. (Mass.) 405. See "Statutes," Dec. Dig. {Key No.) § 2^3; Cent. Dig. | 324. § 142) STATUTES AGAINST FRAUDS 497 this footing, the statute of 13 Elizabeth, c. 5, which avoids all gifts of goods, etc., made to defraud creditors and others, was held to extend by the general words to a gift made to defraud the queen of a forfeiture." ^'' So in this country, also, statutes intended to prevent frauds upon creditors by secret and pretended transfers of property, as those which provide that the title to goods and chattels shall not pass by a sale without delivery, the vendor remaining in posses- sion, unless the same is evidenced by a writing duly ac- knowledged, etc., are held to be salutary and beneficial and entitled to a liberal construction.^*' And a statute author- izing general assignments for the benefit of creditors, so framed as to prevent an insolvent debtor from giving pref- erences to some among his creditors at the expense of oth- ers, and thus tending to prevent fraud and injustice, should be liberally construed to, the furtherance of that end.^** The same rule and principle apply to the case of a statute which provides that "every sale, mortgage, pr assignment which shall be made by debtors in contemplation of insol- vency, and with the design to pirefer one or more creditors to the exclusion in whole or in part of others, shall operate as an assignment and transfer of all the property and effects of such debtor, and shall inure to the benefit of all his cred- itors." An act of this character should be hoerally con- strued to effectuate the intention of -the legislature.^*" In New York, a statute provided that no member of the com- mon council of a city, or any other officer of the municipal- ise! Bl. Comm. 88. See, also, Gorton v. Champneys, 1 Bing. 287; Cmnming v. Fryer, Dud. (Ga.) 182; Carey v. Giles, 9 Ga. 253. See "Fraudulent Conveyances," Dec. Dig. (Key No.} § 5; Cent. Dig, §§ 4-6. isTBank of United States v. Lee, 13 Pet. lOt, 10 L. Ed. 81; Cado- gan V. Kennett, 2 Cowp. 432. This rule is also applied to the "bulk sales laws" now in force in several states. See Hanna v. Hurley, 162 Mich. 601, 127 N. W. 710. See "Fraudulent OotweyoMces," Dec. Dig. (Key No.) § 5; Cent. Dig. §§ i-6. 188 Hahn v. Salmon (C. C.) 20 Fed. 801. See "Assignments for Benefit of .Creditors," Dec. Dig. (Key No.) % 105; Gent. Dig. § S^l. 189 Terrill v. Jennings, 1 Mete. (Ky.) 450. See "Insolvency," Dec, Dig. (Key No.) § 3; Cent. Dig. § 2. Black Int.L. — 32 498 STRICT AND LIBERAL CONSTRUCTION (Cb- 12 ity, should be directly or indirectly interested in any con- tract, work, or business, the price or consideration of which was to be paid out of the city treasury. It was held that this law should not be narrowed by construction, but should be interpreted broadly and liberally to promote the end which the legislature had in view.'"" On the other hand, it is said that a statute providing penalties for loaning money on chattel mortgage notes in which the amount loaned is overstated, or in which a higher rate of interest is charged than the law allows, and making such mortgages and notes void, is distinctly penal, and should receive a strict construction. *°^ And even where a law for the pre- vention or undoing of fraud is considered as salutary and beneficial, and therefore to be beneficially interpreted, the rule of liberal construction has its proper limits. It is not permissible, in the endeavor to hunt out and extirpate frauds, to subject the words of the legislature to a fantas- tic or extravagant interpretation, nor to put upon them a meaning which they could not reasonably be made to bear. For example, a statute annulling any "willfully false claim" should not be construed as applying to a case of mere dis- crepancy in the amount of a claim as filed, such as may not be inconsistent with good faith. ^°'' Again, a statute of New York was designed to prevent persons from transact- ing business under fictitious names. One W. brought an action against a railroad company for damages for an in- jury to a carriage belonging to him, but which was marked with the name of "W. Brothers." The railroad company attempted to defend on the ground that W. was amenable to the statute, since he was carrying on the business alone. 190 Mullaly v. Mayor of New York, 6 Thomp. & O. 168. See "3f«- nioipal Corporations," Dec. Dig. (Key No.) § 231; Cent. Dig. §§ 557- €64. i»i Morln V. Newbury, 79 Conn. 338, 65 Atl. 156. And see State V. Chicago & N. W. R. Co., 128 Wis. 449, 108 N. W. 594. See "Stat- utes," Deo. Dig. (Key No.) § S^i; Gent. Dig. §§ 322, 323. 1" Barber v. Reynolds, 44 Cal. 519, 533. See "Statutes," Deo. Dig. (Key No.) S 2it: Cent. Dig. §§ 322, 323. § 143) LEGISLATIVE GRANTS 499 after his brother's retirement, in the former firm name. But it was held that the statute was jiot applicable to such a case as this, and the defense should not prevail.^" LEGISLATIVE GRANTS 143. Statutory grants by the legislature, when they dele- gate sovereign power, derogate from sovereign au- thority, or confer special benefits or exemptions, in derogation of common and equal rights, are to be construed strictly against the grantee. Statutory grants, made by Congress or the legislature of a state, are not to be constl-ued by the same rules which are applicable to grants or contracts between private per- sons. The words of a private grant are to be taken most strongly against the grantor. In the interpretation of a private contract, the courts are to adopt the construction which the parties mutually put upon it at the time of its making. But in the case of a legislative grant or contract, the fact that the instrument is a law, as well as a grant or contract, changes the aspect of the case and renders these rules inapplicable. Thus, in a case in Michigan, where the principles recognized as applicable to transactions between private parties were urged upon the court in connection with the interpretation of a legislative grant, it was said: "The fault of this reasoning is that it seeks to apply the principles which relate to common-law grants between pri- vate persons to an act of the legislature, which differs from a grant of a private person in that it is both a grant and a law, and; as such, the intent of the law is to be kept in view, and its purpose effectuated, whenever the subject- matter of the grant comes in controversy; and that con- struction must be placed upon it which will preserve and cairyout the object of the legislature, however such con- struction may conflict with the principles of the common 188 Wood V. Erie Ry. Co., 72 N. Y. 196, 28 Am. Rep. 125. See "Partnership," Dec. Dig. (Key No.) § 64; Cent. Dig. § 88. 500 STRICT AND LIBEEAL CONSTRUCTION (Ch. 12 law, oi- preyen.t the attaching of equities which would spring from transactions between private parties." ^** Again,, al- though a statute may contain the elements of a compact between the government and an individual, nevertheless it. should be construed according to the rules for construing statutes, and not accordiiig to those which are applicable in the case of contracts. In cases of contract, the court is to give effect to the real intention of the parties, and there- fore adopts their own interpretation, as shown by the con- temporary construction which they have mutually put upon it. But in cases resting upon a statute, there is no mu- tuality of agreement to be sought out. The only will is that of the legislative power. Hence the contemporary construction of a statute given to it by an officer intrusted with its execution cannot be allowed to prevail against the true construction of the statute, on the ground of its em- bodying a contract.^*° This difference, however, between private and legislative grants, does not exclude the opera- tion of all the subsidiary rules of interpretation. For in- stance, the familiar rule that a party cannot be allowed to claim under, and at the same time repudiate, any instru- ment, is applicable not only to contracts and conveyances but also to that class of statutes which grant new rights or privileges subject to certain conditions.^"' In general, how- ever, the rule is well settled that statutory grants of prop- erty, franchises, or privileges in which the government has an interest are to be construed strictly in favor of the public and against the grantee, and nothing will pass except what is granted in clear and explicit terms.^"' And when there i»4 Jackson, L. & S. R. Co. v. Davison, 65 Mich. 416, 32 N. "W. 726. See "Statutes," Dec. Dig. (Key No.) § S38; Cent. Dig. § S19. 105 Union Pae. R. Co. v. United States, 10 Ct. CI. 548. See "Stat- utes," Dec. Dig. (Key No.) § 238; Cent. Dig. § S19. 193 Burrows v. Bashford, 22 Wis. 103. See "Statutes," Dec. Dig. (Key No.) § 238; Cent. Dig. § 319. 187 Coosaw Min. Co. v. South Carolina ex rel. Tillman, 144 U. S. 550, 12 Sup. Ct 689, 36 L. Ed. 537 ; Water Com'rs of Jersey City v. Mayor, etc., of City of Hudson, 13 N. J. Eq. 420; Bennett v. Mc- Whorter, 2 W. Va. 441 ; People ex rel. State Board of Harbor Com'rs V. Kerber, 152 Cal. 731, 93 Pac. 878, 125 Am. St. Rep. 93 ; Crowder § 143) LEGISLATIVE GEAl^JTS 501 is any doubt as tq the proper construction of a statute granting a privilege, that construction should be adopted which is most a4vantageous to the interests of the govern- ment.^°' But yet, where the grant admits of two interpre- tations, one of which is more extended and the other more restricted, so that a choice is fairly open, and either may be adopted without a violation of the apparent objects of the grant, if, in such a case, one interpretation would render the grant, inoperative, and the other would give it force aipid effect, the latter should be adopted.^'" And the maxim- or rule that that without which a grant would not be effective is deemed to pass with the grant, though generally applied to grants of realty, is also proper to be observed in the con- struction of statutes of this kind.""" Delegation of Powers to Municipal Corporations Municipal corporations "possess and may exercise those powers which are granted in express terms, also those nec- essarily implied or necessarily incident to the powers ex- pressly granted, and lastly, those which are absolutely in- dispensable to the declared objects and purposes of the corporation. In this connection it may also be stated that it is regarded as a settled principle of law that where there is a fair and reasonable doubt as to the existence of a power V. Fletcher, 80 Ala. 219 ; Town of Windfall City v. State ex rel., 172 Ind. 302, 88 N. E. 505; Conroy v. Perry, 26 Kan. 472; Cleaveland v. Norton, 6 Cush. (Mass.) 380; Jayne v. Imperial Irr. Co. (Tex. Civ. App.) ,127 S. W. 1137. The rule that a grant by the United States is strictly construed against the grantee applies as well to grants to a state to aid in building railroads as to an act granting special privileges to a private corporation. Leavenworth, L. & 6. R. Co. v. United States, 92 U. S. 733, 23 L. Ed. 634. See "Statutes," Dec. Dig. (Key No.) § 238; Cent. Dig. § S19. 188 Hannibal & St. J. R. Co. v. Missouri lliver Packet Co., 125 U. S. 260, 8 Sup. Ct. 874, 31 L. Ed. 731. See "Statutes," Dec. Dig. (Key No.) § S38; Cent. Dig. § 319. 189 Black, Const.- Prohib. § 52; Mills v. St. Clair County, 8 How. 569, 12 L. Ed. 1201. See "Statutes," Dec. Dig. (Key No.) § 238; Cent. Dig. § 319. 200 Portland Ry., Light & Power Co. v. Railroad Commission of Oregon (Or.) 105 Pac. 709, 109 Pac. 273. See "Statutes," Dec, Dig. (Key No.) § 238; Cent. Dig. § 319. 502 STRICT AND LIBERAL CONSTRUCTION (Oh. 12 in such corporation, the courts will not uphold or enforce its execution." "^ For example, statutes or charters dele- gating the power of taxation to municipal corporations will be strictly construed, and such delegation should be made in clear and unambiguous terms, and the grant will not be extended by implication or inference."^ The reason is that the power of taxation, being a sovereign power, can be ex- ercised by the legislature only when and as conferred by the constitution, and by municipal corporations only when unequivocally delegated to them by the legislative body. The charter of a municipality, in respect to the powers of taxation which it grants, will not therefore receive a liberal or expansive interpretation, and the municipality will not have authority to lay any other taxes, or to tax any other- property, or to impose taxes for any other purpose, than as. its charter or the general laws of the state relating to munic- ipal corporations expressly or by necessary implication al- low.'"' The grant to a municipal corporation of the power . to provide for the levy and collection of special taxes for the 201 Paine v. Spratley, 5 Kan. 525. See, also, Ottawa v. Carey, 108 U. S. 110, 2 Sup. Ct 361, 27 L. Ed. 669; Cooley, Const. Lim. 192- 194; Black, Const. Law (3d Ed.) 514. See "Statutes," Bee. Dig. (Key No.) § 238; Cent. Dig. § 319; "Municipal Corporations," Dec. Dig. (Key No.) §§ 52-62; Cent. Dig. §§ Ul-155. 2 02 City of St. Louis v. LaugMln, 49 Mo. 559; Moseley v. Tift, 4 Fla. 402 ; City of Alton v. Mtaa Ins. Co., 82 111. 45 ; Wisconsin Tel. Co. V. City of Oshkosh, 62 Wis. 32, 21 N. W. 828; Mason v. Police Jury of Parish of Tensas, 9 La. Ann. 368, per Buchanan, J. See "Statutes," Dec. Dig. (Key No.) § 238; Cent. Dig. § 319; "Municipal Corporations," Dec. Dig. (Key No.) §§ 52-62; Cent. Dig. §§ 141-155. 208 Mays V. City of Cincinnati, 1 Ohio St. 268; Lima v. Lima Cemetery Ass'n, 42 Ohio St. 128, 51 Am. Rep. 809. "When the power (of municipal taxation) is found to have been conferred, if any ques- tion arises upon its extent or application, the rule is that the power must be strictly construed. It is a reasonable presumption that the state, which is the depositary and source of all authority on the subject, has granted in unmistakable terms all it has intended to ■grant at all. Municipal authorities, therefore, when they assume to tax, must be able to show warrant therefor in the- words of the grant, which alone can justify their action." Cooley, Tax'n, 276. Sre "Statutes," Dec. Dig. (Key No.) § 238; Cent. Dig. § 319; "Mu- nicipal Corporations," Deo. Dig. (Key No.) §§ 52-62; Cent. Dig. §| lJtl-155. § 143) LEGISLATIVE GRANTS 503 improvement of streets and alleys upon real estate adjacent to such improvements, does not include the power to pro- vide for the sale and conveyance of such real estate in case of nonpayment.^"* So, also, in the absence of an express grant of power, a municipal corporation can neither borrow money, nor issue negotiable paper, nor become a party to such paper, nor become a stockholder in a private corpora- tion, nor incur debts in aid of such private corporation.^"^ To take another illustration, authority given to a municipal corporation by general statute to "cause the streets of the city to be lighted," and to make "reasonable regulations" with reference thereto, does not empower the city govern- ment to grant to one company the exclusive right to fur- nish gas for a long period of years. ^°" A board of commis- sioners of a county is a quasi corporation, a local organiza- tion which, for purposes of civil administration, is invested with a few of the functions characteristic of a corporate ex- istence. A grant of powers to such a corporation must be strictly construed. When acting under a special power, it must act strictly on the conditions under which it is given. ^"^ Grants of Power to Officers Where statutes confer special ministerial authority, the exercise of which may affect rights of property, or incur a municipal liability, it must be strictly observed, and any 204 Paine v. Spratley, 5 Kan. 525. See "Statutes," Dec. Dig. (Key Hfo.) § SS8; Cent. Dig. § 319; "Municipal Corporations," Dec. Dig. (Key No.) §§ 52-62; Cent. Dig. §§ U1-X55. 205 Mayor, etc., of Wetumpka v. Wetumpka Wharf Co., 63 Ala. 611 ; City of Aurora v. West, 22 Ind. 88, 85 Am. Dec. 413. See "Statutes," Dec. Dig. (Key No.) § 238; Cent. Dig. § 319; "Municival Corporations," Dec. Dig. (Key No.) §§ 52-62; Cent. Dig. §§ Ul-155. 206 Saginaw Gaslight Co. v. City of Saginaw (C. C.) 28 Fed. 529. See "Statutes," Dec. Dig. (Key No.) § 238.; Cent. Dig. § 319; "Mu- nicipal Corporations," Deo. Dig. (Key No.) §§ 52-62; Cent. Dig. §§ Ul-155. 207 State ex rel. Treadwell v. Commissioners of Hancock County, 11 Ohio St. 183, 190. See "Statutes," Dec. Dig. (Key No.) § 238; Cent. Dig. § 319; "Municipal Corporations," Dec. Dig. (Key No.) §§ 52-62; Cent. Dig. §§ 141-155. 504 STRICT AND LIBERAL CONSTRUCTION (Ch. 12 material departure will vitiate the proceedings.''" And the principle that every grant of power carries with it the usual and necessary means for the exercise of that power, and that the power to convey is implied in the power to sell, cannot be admitted in the construction of statutes which are in derogation of common law and the effect of which is to divest a citizen of his real estate, as in the case of sales of land for the nonpayment of taxes. Such statutes, al- though" enacted for the public good, must be strictly con- strued.'' °° Grants of Charters and Franchises to Corporations Acts of incorporation, and statutes granting other fran- chises or special benefits or privileges to corporations, are to be construed strictly against the corporators ; and what- ever is not given in unequivocal terms is understood to be withhdd.^^" As already explained, the common-law rule that words are to be taken in the strongest sense against the party using them is not applicable to a statute of this character. Or if it be supposed that this rule should never- 208 Board of Com'rs of Shawnee Ctounty v. Carter, 2 Kan. 115. See "Statutes," Deo. Dig. (Key No.) § 238; Cent. Dig. § 319. 208 Sibley v. Smith, 2 Mich. 486; taiicfey v. Hopkins, 1 Munf. (Va.) 419. And see Black, Tax Titles, § 155. • See "Statutes," Dec. Dig. {Key No.) § 238; Cent. Dig. § 319. aioMoran v. Miami County, 2 Black, 722, 17 L. Ed. 342; Parker V. Great Western 'Ry. Co., 7 Man. & G. 253; Proprietors of Stour- bridge Canal v. Wheeley, 2 Barn. & Ad. 792 ; Young v. McKenzle, 3 Ga. 31; Coolidge v. Williams, 4 Mass. 140; Betroit v. Detroit & H. P. R. Co., 43 Mich. 140, 5 N. W. 275 ; StE^te ex rel. City of Minne- apolis V. St. Paul, M. & M. Ry. Co., 98 Minn. 380, 108 N. W. 261, 28 L. R. A. (N. S.) 298, 120 Am. St. Rep. 581 ; In re Leach, 134 Ind. 665, 34 N. B. 641, 21 L. R. A. 701 ; Board of Com'rs of Vigo County y. Davis, 136 Ind. 503, 36 N. E. 141, 22 L. R. A. 515; Alexandria & F. Ry. Co. V. Alexandria & W. R. Co., 75 Va. 780, 40 Am. Rep. 743 ; Perrine v. Chesapeake & D. Canal Co., 9 How. 172, 13 L. Ed. 92; Georgia R. & Banking Co. v. Smith, 128 U. S. 174, 9 Sup. Ct. 47, 32 L. Ed. 377. But compare In re Polsson (C. C.) 159 Fed. 283, holding that, in construing a statute granting a right or privilege in the na- ture of a franchise, that construction must be indulged which is most favorable to the persons or class for whose benefit the grant is made. See "Statutes," Dec. Dig. (Key No.) § S38; Cent. Dig. § 319; "Corporations," Dec. Dig. (Key No.) §§ 7-2^; Cent. Dig. §§ .16-69. § 143) LEGISLATIVE GRANTS 505 theless be applied, the true view is that the organizers or "promoters" of the corporation are to be regarded as fram- ing the instrument of incorporation and so using the words in which it is expressed.''" The principle which should govern the interpretation in this class of cases was ex- plained in an important and leading case before the United States Supreme Court, as follows: "A great deal of the argument at the bar was devoted to the consideration of the proper rules of construction to be adopted in the inter- pretation of legislative contracts. In this there is no dif- ficulty. All contracts are to be construed to accomplish the intention of the parties; and m determining their, different provisions, a liberal and fair construction will be given to the words, either singly or in connection with the subject- matter. It is not the duty of a court, by legal subtlety, to overthrow a contract, but rather to uphold it and give it effect; and no strained or artificial rule of construction is to be applied to any part of it. If there is no ambiguity, and the meaning of the parties can be clearly ascertained, effect is to be given to the instrument used whether it is a legislative grant or not. In the Case of the Charles River •Bridge [11 Pet. 544, 9 L. Ed. 773] the rules of construction known to the English common law were adopted and ap- plied in the interpretation of legislative grants, and the prin- ciple was recognized that charters are to be construed most favorably to the state, and that in grants by the public nothing passes by implication. This court has repeatedly since reasserted the same doctrine, and the decisions in the several states are nearly all the same way. The prin- ciple is this : That all rights which are asserted against the state must be clearly defined, not raised by inference or presumption, and if the charter is silent about a power, it does not exist. If, on a fair reading of the instrument, rea- sonable doubts arise as to the proper interpretation to be given to it, those doubts are to be solved in favor of the state; and where it is susceptible of two meanings, the 211 Raleigh & G. R. Co. v. Reid, 64 N. C. 155. Bee "Statutes," Dec. Dig. {Key No.) § 238; Cent. Dig. § S19; "Corporations," Deo. Dig. (Key No.) §§ 7-2^; Cent. Dig. §§ 16-69. 506 STRICT AND LIBERAL CONSTRUCTION (Cb. 12 one restricting and the other exteiiding the powers of the corporation, that construction is to be adopted which works the least harm to the state. But if there is no ambiguity in the charter, and the powers conferred are plainly marked, and their limits can be readily aiscertained, then it is the duty of the court to sustain and uphold it, and to carry out the true meaning and intention of the parties to it. Any other rule of construction would defeat all legislative grants and overthrow all other contracts." "^^ No strained or ex- travagant interpretation should be resorted to, to defeat the grant or render it inoperative. For instance, if a stattite grants to a turnpike company a power to erect a tollgate "near" a particular spot, they may place it on the spot where an old road intersects, provided only that the gate be near the place designated, for in such a case, "near" is not to be construed as meaning "nearest." ^^^ So, again, where a statute gives to a corporation power to mortgage its land for the erection of buildings, this will be construed as extending to a mortgage for the cost of painting the same.^^* Grants of Bounties and Pensions Where the object of an act of Congress, or of a state leg- islature, is to confer a bounty or reward, in consideration of meritorious services rendered to the state, or in aid of a deserving charity, or for the compensation of public of- ficers, it should not be subjected to a restrictive interpreta- tion. On the contrary, such a statute ought to be liberally construed, in furtherance of its beneficent purpose and policy, arid any doubts or ambiguities arising upon its terms should be resolved in favor of the intended beneficiaries.^^° , 212 The Binghamton Bridge, 3 Wall. 51, 74, 18 L. Ed. 137. See "Statutes," Deo. Dig. (Key No.) § 238; Cent. Dig. § S19; "Corpora^ tions," Dec. Dig. (Key No.) §§ 7-g^; Cent. Dig. §§ 16-69. 213 People Vi Denslow, 1 Caines (N. X.) 177. See "Statutes." Dec. Dig. (Key No.) § 238; Cent. Dig. § 319; "Corporations," Dee. Dig. (Key No.) §§ 7-2^; Gent. Dig. §§ 16-69. 21* Miller v. Chance, 3 Edw. Ch. (N. T.) 399. See "Statutes," Deo. Dig. (Key No.) § 238; Cent. Dig. § 319; "Corporations," Dec. Dig. (Key No.) §§ 7-24; Cent. Dig. §§ 16-69. 215 Logue V. Fenning, 29 App. D. C. 519. See "Statutes," Deo. Dig. § 143) LEGISLATIVE GEANTS 507 Thus, a statute which grants pensions or half pay to, retired, disabled, or superannuated military officers should be in- terpreted in the manner most beneficial, to the officers, even though it may be susceptible of anotfier construction.^^' So also, in a grant of public lands by statute, by way of do- nation, any language which expresses the legislative inten- tion to invest the par.ty with the title is sufficient.^^'' So, where an act of Congress made donations of land to the first settlers upon an exposed part of the frontier, it was considered that, as the statute was intended to confer a bounty upon a numerous class of individuals, but was ex- pressed in somewhat ambiguous terms, it was the duty of the court to. adopt the construction which would best effect the liberal intentions of the legislature.''^' So, again, where a statute fixes the compensation of a public officer in loose and obscure terms, admitting of two meanings, it should be given that construction which is rriost favorable to the officer.^^' Grants of Monopolies The legislature of a state, if the public interests may seem to make it desirable, may grant to a person or corpo- ration a rnonopoly or exclusive franchise or privilege (un- less forbidden by the constitution), and the grant may as- sume the form of a contract, the obhgation of which must not thereafter be impaired. But monopolies are not favored , (Key No.) § 238; Cent. Dig. § S19; "Bounties," Dec. Dig. (Key No.) §§ 1-8; Cent. Dig. §§ 1-42; "Pensions," Dec. Dig. (Key No.) % 1; Cent. Dig. § 1. 218 Eoane v. Innes, Wythe (Va.) 243 ; Walton v. Cotton, 19 How. 355, 15 L. Ed. 658. See "Statutes," Dec. Dig. (Key. No.) § 238; Cent. Dig. § 319; "Bounties," Dec. Dig. (Key No.) §§ 1-8; Cent. Dig. §§ 1-42. 217 Trustees of Kentucky Seminary v. Payne, 3 T. B. Mon. (Ky.) 161. See "Statutes," Dec. Dig. (Key No.) § 238; Cent. Dig. § 319; "Bounties," Dec. Dig. (Key No.) §§ 1-8; Cent. Dig. §§ 1-42. 21S Ross V. Doe ex dem. Barland, 1 Pet. 655, 7 L. Ed. 302. See "Statutes," Deo. Dig. (Key No.) § 238; Cent. Dig. § 319; "Bounties," Dec. Dig. (Key No.) §1 1-8; Cent. Dig. §§ 1-42. 219 Butler V. United States, 23 Ct. CI. 162; United States v. Morse, 3 Story, 87, Fed. Cas. No. 15,820. See "Statutes," Dec. Dig. (Key No.) § 238; Cent. Dig. § 319; "Officers," Dec. Dig. (Key No.) § 94; Cent. Dig. § 133. 508 STRICT AND LIBERAL CONSTRUCTION (Ch. 12 in law, and grants of this kind are subject to the following limitations : (1) The grant is to be construed strictly against the grantee and in favor of the public. Nothing will pass by implication, and the extent of the privileges granted will not be enlarged by inference or construction. Thus, the grant will not be understood to prevent the legislature from according rival or competing franchises to other per- sons, unless its plain terms convey that meaning."''* (3) The intention to grant a monopoly will never be pre- sumed, but on the contrary it will be presumed that the legislature did not intend thus to limit its own power or that of its successors. And this presumption can be over- come only by clear and satisfactory inferences from the terms of the grant. Thus, the privileges granted in an act of incorporation will not be deemed exclusive, unless it ap- pears from the charter, in terms too clear and explicit :o be mistaken, that it was the actual and deliberate intention of the legislature to preclude the state from granting sim- ilar franchises to any subsequent corporation."^^ But here it should be mentioned that patents for inven- tions and copyrights upon literary property are not mo- nopolies, in the sense of being in derogation of the rights 220 Knoxville Water C!o. v. Knoxville, 200 U. S. 22, 26 Sup. Ct. 224, 50 L. Ed. 353 ; Charles River Bridge v. Warren Bridge, 11 Pet. 420, 9 L. Ed. 773 ; Washington & B. Tnrnp. Co. v. Maryland, 3 Wall. 210, 18 L. Ed. 180 ; The Binghamton Bridge, 3 Wall. 51, 18 L. Ed. 137; North Springs Water Co. v. City of Tacoma, 21 Wash. 517, 58 Paa 773, 47 L. R. A. 214. See "Statutes," Dec. Dig. (Key No.) § 238; Cent. Dig. § S19; "Monopolies," Dec. Dig. {Key No.) §§ 1-6; Cent. Dig. §§ 1-5. 221 Black, Const. Law (3d Ed.) 731; Stein v. Bienville Water Supply Co. (C. C.) 34 Fed. 145 ; Pennsylvania R. Co. v. Canal Com'rs, 21 Pa. 9 ; Detroit v. Detroit & H. P. R. Co., 43 Mich. 140, 5 N. W. 275 ; Proprietors of Bridges v. Hoboken Land & Improv. Co., 1 Wall. 116, 17 L. Ed. 571 ; Parrot v. Lawrence, 2 Dill. 332, Fed. Cas. No. 10,772 ; Lehigh Water Co.'s Appeal, 102 Pa. 515 ; Ruggles v. Illinois, 108 U. S. 526, 2 Sup. Ct. 832, 27 L. Ed. 812 ; State ex rel. Haydon v. Curry, 1 Nev. 251. See "Statutes," Dec Dig. {Key No.) § ZS8; Cent. Dig. § 319; "Monopolies," Dec. Dig. (Key No.) §§ 1-6; Cent. Dig. §§ 1—5, § 143) LEGISLATIVE GRANTS 509 of the community, nor are they granted as restrictions upon those rights, but to promote the progress of science and the useful arts ; and hence they are entitled to be liberally construed."" "Patents for inventions are not to be treated as mere monopolies, and therefore odious in the eyes of the law, but they are to receive a liberal construction, and un- der the fair application of th6 i-ule 'ut res magis valeat quart pereat' are, if practicable, to be so interpreted as to uphold, and not destroy, the right of the inventor." '^^^ Grants of Exemptions — Exemption from Taxation Statutes which strip a government of any portion of its prerogative, or give exemption from a general burden, should receive a strict interpretation.'"'* Hence, statutes exempting a particular class of men (as,, officers of the militia) from general burdens borne by all other citizens of the state, such as jury duty or poll taxes, ought to be sub- jected to a strict construction.^^" S22 Wilson r. Kottsseatl, 4 How. 646, 704, 11 L. Ed. 1141; Hogg v. Emerson, 6 How. 437, 12 L. Ed. 505 ; Brooks v. Flske, 15 How. 212, 14 L. Ed. 665; Blanchard v. Sprague, 3 Sumn. 535, Fed. Cas. No. 1,518; Davoll v. Brown, 1 Woodb. & M. 53, Fed. Cas. No. 3,662; Hamilton v. Ives, 6 Fish. Pat. Cas. 244, Fed. Cas. No. 5,982; 2 Rob. Pat. § 735. "The law has always regarded monopolies as hostile to the rights and interests of the public. One method of obtaining them in early times was by a grant from the sovereign to a particu- lar individual of the sole right to exercise a particular trade. The mischief arising from these monopolies became so intolerable that the practice was suppressed by a clause in Magna Charta. This clause does not, however, apply to grants for the sole use of a new inven- tion for a limited period. These grants, it is said, are indulged for the encouragement of ingenuity. Patent right and copyright laws rest on this ground." Taylor v. Blanchard, 13 Allen (Mass.) 370, 90 Am. Dec. 203. See "Statutes," Deo. Dig. (Key No.) § 238; Cent. Dig. § 319; "Patents," Dec. Dig. (Key No.) §§ 1, 3; Cent. Dig. §§ 1, 3; "Copyrights," Dec. Dig. (Key No.) §§ 1, 2; Cent. Dig. § J(. 223Turrill v. Michigan, S. & N. I. R. Co., 1 Wall. 491, 17 L. Ed. 668. See "Statutes," Dec. Dig. (Key No.) § S38; Cent. Dig. § 319; "Patents," Dec. Dig. (Key No.) §§ 1, 3; Cent. Dig. §§ 1, 3. 224 Academy of Fine Arts v. Philadelphia County, 22 Pa. 496. See "Statutes," Dec. Dig. (Key No.) §§ 237, 238; Cent. Dig. §§ 318, 319. 221 Gorum v. Mills, 34 N. J. Law, 177. A law exempting those persons from the payment of a poll tax who have lost a hand or a foot will not be held to apply to one who has lost part of his 510 STRICT; AND LIBJEEAL CONSTRUCTION (Oh. 12 It is well settled that the legislature of a state may- agree, by an explicit grant founded upon a consideration, to exempt specified property ,from taxation, either for ^ limited period or indefinitely, or that taxation of the prop- erty in question shall be had only on a certain basis, and not otherwise, or shall not exceed a certain rate; and this will constitute a contract with the grantee which succeed- ing legislatures may not impair by imposing taxes con- trary to the grant,=^° But the exemption of property from the burden of taxation is against public policy and in deror gatioh of the sovereign rights of the state. Hence the rule of construction is strictly against' the person or corporation claiming such exemption and in favor of the public. The right of taxation, like any other power of sovereignty, will not be held to have been surrendered, unless such surren- der has been expressed in terrns too plain to be mistaken and admitting of no reasonable construction consistent with the reservation of the power. And it is never to be pre- sumed that.tbe legislature has in this respect fettered its fingers or whose foot is crippled and useless. Bigham v. Clubb, 42 Tex. Civ. App. 312, 95 S. W. 675. See "Statutes," Dec. Dig. {Key No.) §§ 237, 238; Cent. Dig. §§ 318, 319 j "Taxation," Dec. Dig. {Key No:) §§ 197, 204; Cent. Dig. §§ 315, 316, 322, 325, 332-334, 346. 2 26 New Jersey v. Wilson, 7 Cranch,' 164, 3 L. Ed. 303; Pacific R. Co. V. Maguire, 20 Wall. 36, 22 L. Ed. 282 ; Northwestern University V. Illinois ex rel. Miller, 99 U. S. 309, 25 L. Ed. 387 ; New. Jersey v. Yard, 95 U. S. 104, 24 L. Ed. 352 ; Gordon v. Appeal Tax Court, 3 How. 133, 11 L. Ed. 529 ; Farrington v. Tennessee, 95 U. S. 679, 24 L. Ed. 558 ; Piqua Branch of State Bank v. Knoop, 16 How. 369, 14 L. Ed. 977 ; Wilmington & W. R. Co. v. Reid, 13 Wall. 264, 20 L. Ed. 568 ; New Orleans v. Houston, 119 U. S. 265, 7 Sup. Ct. 198, 30 L. Ed. 411 ; Yazoo & M. V. R. Co. v. Thomas, 132 U. S. 174, 10 Sup. Ct. 68, 33 L. Ed. 302; Powers v. Detroit, G. H. & M. R. Co., 201 U. S. 543, 26 Sup. Ct. 556, 50 L. Ed. 860; Henderson Bridge Co. v. Hen- derson, 173 U. S. 592, 19 Sup. Ct. 553, 43 L. Ed. 823; State v. Ala- bama Bible Soc, 134 Ma. 632, 32 South. 1011 ; Gulf & S. I. R. Co. V. Adams, 90 Miss. 559, 45 South. 91 ; State ex rel. Morris v. Board of Trustees of Westminster College, 175 Mo. 52, 74 S. W. 990 ; I-ake Drummond Canal & Water Co. v. Commonwealth, 103 Va. 337, 49 S. E. 506, 68 L. R. A. 92. See "Statutes," Dec. Dig. (Key No.) §§ 237, 238; Gent. Dig. §§ 318, 319; "Taxation," Dec. Dig. (Key No.) §§ i97, 204; Cent. Dig. §§ 315, 316, 322, 325, 332-334, S46. § 143) LEGISLATIVE GRANTS 511 power for the future, except upon clear and irresistible evi- dence that such, in the particular instance, was the actual and deliberate intention.''" For example, where a statute granting exemption from taxation to educational institu- tions employs the terni "academies," it means only thosd designed for purposes of education of a general character; and it is not properly applicable to an institution for the study and exhibition of works of art, although called an "academy of fine arts." "'' And it is well settled that a statutory grant of exemption from taxation will not be ex- tended by judicial construction to embrace property other 227 Providence Bank v. Billings, 4 Pet. 514, 7 L. Ed. 939; Charles River Bridge v. Warren Bridge, 11 Pet. 420, , 9 L. Ed. 773 ; Oilman V. Sheboygan, 2 Black, 510, 17 L. Ed. 305 ; Delaware Railroad Tax, 18 Wall. 206, 21 L. Ed. 888 ; Vicksburg, S. & P. R. Co. v. Dennis, 116 U. S. 665, 6 Sup. Ct. 625, 29 L. Ed. 770; Tazoo & M. V. R. Co. v. Thomas, 132 U. S. 174, 10 Sup. Ct. 68, 33 L. Ed. 302; City of St. Louis v. United Rys. Co., 210 U. S. 266, 28 Sup. Ct. 630, 52 L. Ed. 1054; Mobile & O. R. Co. v. Tennessee, 153 TJ. S. 486, 14 Sup. Ct. 968, 38 L. Ed. 793 ; New Orleans City & L, R. Co. v. New Orleans, 143 IT. S. 192, 12 Sup. Ct. 406, 36 L. Ed. 121 ; Dauphin & L. F. Sts. R. Co. V. Kennerly, 74 Ala. 583; Hart v. Plum, 14 Cal. 148; State V. President, etc., of Bank of Smyrna, 2 Houst. (Del.) 99, 73 Am. Dec. 699; Presbyterian. Theological Semina!ry v. People ex rel. Johnson, 101 111. 580 ; German Bank v. Louisville, 108 Ky. 377, 56 S. W. 504 ; Penrose v. Chaffraix, 106 La. 250, 30 South. 718; William Wilkens Co. V. City of Baltimore, 103 Md. 293, 63 Atl. 562; President, etc., of Portland Bank v. Apthorp, 12 Mass: 252; Attorney General v. Common Council of City of Detroit, 113 Mich. 388, 71 N. W. 632; North Missouri R. Co. v. Maguire, 49 Mo. 490, 8 Am. Rep. 141; Brewster v. Hough, 10 N. H. 138; Little v. Bowers, 48 N. J. Law, 370, 5 Atl. 178 ; City of Rochester v. Rochester R. Co., 182 N. T. i99, 74 N. E. 953, 70 L. R. A. 773 ; In re Prime, 136 N. X. 347, 32 N. B. 1091, 18 L. R. A. 713 ; People v. Roper, 35 N. Y. 629 ; Cincinnati Col- lege V. State, 19 Ohio, 110; Jones & Nimick Mfg. Co. v. Common- wealth, 69 Pa. 137 ; Herrick v. Town of Randolph, 13 Vt. 531 ; Doug- las County Agricultural Soc. v. Douglas County, 104 Wis. 429, 80 N. W. 740. See "Statutes," Dec. Dig. {Key No.) §§ 237, 238; Cent. Dig. §§ 318, 319; "Taxation," Dec. Dig. (Key No.) §§ 197, 204; Cent. Dig. §§ 315, 316, 322, 325, SS2-33i, 3^6. .228 Academy of Fine Arts v. Philadelphia County, 22 Pa. 496. See "Statutes," Dec. Dig. (Key No.) §§237, 238; Cent. Dig. §§ 318, 319;. "Tawation," Dec. Dig. (Key No.) §§ 191, 20J,;,Cent. Dig. §§ 315, 316, 322, 325, 332-334, 346. 512 STRICT AND LIBERAL CONSTRUCTION (Cb. 12 than that expressly designated."" So, also, it is a gener- ally admitted rule that when the property of a railroad or business corporation, or of a church, school, hospital, or other charitable corporation, is by constitution or statute exempted from "all taxation" or , from "taxation of every kind," such property is nevertheless liable for its propor- tionate share of assessments levied for the cost of local im- provements.^"* "Yet, while an exemption from taxation cannot be implied from the apparent spirit or general pur-: pose of a statute, this rule does not call for a strained con- struction, adverse to the real intention of the legislature; and to ascertain that intention the courts will look to the context, as well as to the particular words used, taking into consideration the contemporaneous surroundings and the purposes which the legislature had in view." ^'^ More- over, a statute granting exemption from taxation to a cor- poration, which does not receive such exemption as a bonus, but is required to pay into the state treasury an equivalent 22 9 Thurston County v. Sisters of Charity of House of Providence, 14 Wash. 264, 44 Pac. 252. See "Statutes," Dec. Dig. (Key No.) §§ 237, 288; Cent. Dig. §§ S18, 319; "Taxation," Dec. Dig. (Key Wo.) §§ 197, 204; Cent. Dig. §§ 315, 316, 322, 32^, 382-33.',, 346. 230 Black, Tax Titles, § 81; Lima v. Lima Cemetery Ass'n, 42 Ohio St. 128, 51 Am. Rep. 809; Boston Seamen's Friend Soc. v. Mayor, etc., of City of Boston, 116 Mass. 181, 17 Am. Rep. 153; Roosevelt Hospital v. Mayor, etc., of City of New York, 84 N. Y. 108 ; First Presbyterian Church of Ft. Wayne v. City of Ft. Wayne, 36 Ind. 338, 10 Am. Rep. 35 ; In re Mayor, etc., of City of New York, 11 Johps. (N. Y.) 77 ; Gilmour v. Pelton, 5 Ohio Dec. 447 ; City of Phila- delphia V. Franklin Cemetery, 2 Pa. Super. Ct. 569. But compare Philadelphia v. Church of St. James, 134 Pa. 207, 19 Atl. 497 ; Yazoo & M. V. R. Co., V. Board of Levee Com'rs (C. C.) 37 Fed. 24. See "Statutes," Dec. Dig. (Key No.) §§ 237, 238; Cent. Dig. §§ 318, 319; "Taxation," Dec. Dig. (Key No.) §§ 197, 20/,; Cent. Dig. §§ 315, 316, 322, 325, 332-334, 346. 23iLouisvme & N. R. Co. v. Gaines (O. C.) 3 Fed. 266; Yale Uni- versity V. Town of New Haven, 71 Conn. 316, 42 Atl. 87, 43 U R. A. 490 ; In re Delinquent Taxes, 81 Minn. 422, 84 N. W. 302 ; North Jer- sey St. R. Co. V. Jersey City, 74 N. J. Law, 761, 67 Atl. 33. See "Statutes," Dec. Dig. (Key No.) §§ 237, 23S; Cent. Dig. §§ 318 319- "Taxation," Deo. Dig. (Key No.) §§ 197, Z04; Cent. Dig. SS 315. 316. 322, 325, 332-334, S46. § 144) LAWS AUTHORIZING SUITS AGAINST THE STATE 513 for taxes in the shape of a license, should be construed fairly, and even liberally, in favor of the company.^"* It should also be remarked that the rule of strict con- struction in these cases may be, and sometimes is, abro- gated by the express language of the statute granting the exemption, as where it prescribes the rules for its own in- terpretation and directs that the construction shall be lib- eral in favor of the beneficiary.^^' And strict construction is not applicable to a law providing for the commutation of taxes, as this is not properly a grant of exemption, but a statutory change in the method of taxation.^'* LAWS AUTHORIZING SUITS AGAINST THE STATE 144. Statutes allowing private persons to maintain suits against the state are in derogation of sovereign rights and must be strictly construed. No private individual has a right to institute and main- tain an action against a state, unless the state has consented thereto. If such consent 'is given, whether for the particu- lar case only or by a general law, the right of action ac- corded is a matter of favor, conferred by the state in dero- gation of that immunity which every sovereign enjoys. For 232 Milwaukee & St. P. R. Co. v. City of Milwaukee, 34 Wis. 271. See "Statutes," Dec. Dig. (Key No.) §§ 237, 238; Cent. Dig. %% 318, 319; "Taxation," Deo. Dig. (Key No.) §§ 197, 304; Gent. Dig. §§ 315, 316, S2S, 325, 332-~S3i, 346. 233 People ex rel. Kochersperger v. Board of Directors of Chicago Theological Seminary, 174 111. 177, 51 N. E. 198; Brown University V. Granger, 19 R. I. 704, 36 Atl. 720, 36 L. R. A. 847. See "Statutes," Dec. Dig. (Key No.) §§ 237, 238; Cent. Dig. §§ 318, 319; "Taxation," Dec. Dig. [Key No.) §§ 197, 204; Cent. Dig. §| 315, 316, 822, 325, 332- 334, 346. 2 34 Binghamton Trust Co. v. City of Binghamton, 72 App. Div. 341, 76 N. Y. Supp. 517; New York & E. B. Co. v. Sabin, 26 Pa. 242. See "Statutes," Deo. Dig. (Key No.) §§ 237, 238; Cent. Dig. §§ 318, 319; "Taxation," Dec. Dig. (Key No.) §§ 191, 200; Cent. Dig. §§ 315, 316, 319. Black Int.L. — 33 514 STRICT AND LIBERAL CONSTRUCTION (Ch. 12 this reason it is to be strictly construed.''" Hence such suts can be brought only upon such claims and demands as are mentioned in the statute, and only in those courts which the statute specifies for the purpose.'" Thus, if the act provides that suits against the state may be brought in the circuit court of the district where the plaintiff resides, it cannot be brought in the chancery court.'"^ And again, if the law provides that claims must first be presented to the auditor of public, accounts for audit, and that the juris- diction of the courts shall attach only by way of appeal from a decision of such auditor rejecting the claim in whole or in part, these requirements are imperative and must be obeyed, or else the judicial tribunals can have no rightful authority to proceed with the case.'*' 235 Rose V. Governor, 24 Tex. 496; Raymond v. State, 54 Miss. 562, 28 Am. Rep. 382; State v. Stout, 7 Neb. 89. It appears that only in tUe state of Arkansas does a contrary doctrine prevail. It is there held that laws authorizing actions against the state should be lib- erally construed, and hence that the state may be sued as well in chancery as at law. It is said that the right of a citizen to sue a state is not derogatory of common right or subversive of the true principles of the common law, but is in harmony with both. It can- not be supposed that the people, as represented in the constitutional convention, in directing that the legislature should provide in what courts, and in what manner, suits might be commenced against the state, intended that these provisions should be any other than such as would advance this right in the citizen to apply to the courts of justice for the redress of grievances. State v. Curran, 12 Ark. 321. See "Statutes," Dec. Dig. {Key No.) § 257/ Cent. Dig. § 318; "States," Dec. Dig. (Key No.) § 191; Cent. Dig. §§ 179-184. 236 Chicago, M. & St. P. Ry. Co. v. State, 53 Wis. 509, 10 N. W. 560 ; Thomas & Faris v. State, 16 Idaho, 81, 100 Pac. 761. See "Stat- utes," Dec. Dig. {Key No.) § 237; Cent. Dig. § S18; "States," Deo. Dig. {Key No.) § 191; Cent. Dig. §§ 179-184. 237 Ex parte Greene, 29 Ala. 52. See "Statutes," Dee. Dig. {Key No.) § 237; Cent. Dig. § 318; "States," Dec. Dig. {Key No.) § 191; Cent. Dig. §§ 179-184. 238 state V. Stout, 7 Neb. 89. See "Statutes," Dec. Dig. {Key No.) § 237; Cent. Dig. § 318; "States," Dec. Dig. {Key No.) § 191; Cent. Dig. §§ 179-184. §145) BEVENUE. AND TAX LAWa 515 REVENUE AND TAX LAWS 145. Statutes imposing taxes and providing means for the collection of the same should be construed strictly in so far as they may operate to deprive the citi- zen of his property by summary proceedings or to impose penalties or forfeitures upon him ; but oth- erwise tax laws ought to bei construed with fair- ness, if not liberality, in order to carry out the in- tention of the legislature and further the impor- tant public interests which such statutes subserve. In regard to the general rule to be applied in the con- struction of revenue and tax laws, at least three contrariant opinions have received support from the adjudications of the courts. In England it is well settled (and many au- thorities in this country have adopted the same view) that any law which imposes a tax or charge upon the subject must be strictly construed; that the intention to impose such a burden cannot be made out by inference or intend- ■ ment, but must in all cases be shown by clear and unambig- uous language; and that all doubts are to be resolved against the government and in favor of the taxpayer."^' In 239 Lynch v. Union Trust Co. of San Francisco, 164 Fed. 161, 90 C. C. A. 147; McNally v. Field (C. C.) 119 Fed. 445; Commercial Bank v. Sandford (C. C.) 103 Fed. 98 ; Powers v. Barney, 5 Blatchf. 202, Fed. Cas. No. 11,361 ; United States v. Watts, 1 Bond, 580, Fed. Cas. No. 16,653; New England Mortgage Security Co. v. Board of Revenue, 81 Ala. 110, 1 South. 30; Ahern v. Board of Directors of High Line Irr. Dist, 39 Colo. 409, 89 Pac. 963; Moseley v. Tift, 4 Fla. 402 ; Mayor of City of Savannah v. Hartridge, 8 6a. 23 ; City of Alton V. .SBtna Ins. Co., 82 111. 45; Smith v. Waters, 25 Ind. 897; Barnes v. Doe ex rel. Pelton, 4 Ind. 132; National Loan & Inv. Co. V. Board of Sup'rs of Linn County, 138 Iowa, 11, 115 N. W. 480; City of Maysville v. Maysville St. R. & Transfer Co., 108 S. W. 960, 32 Ky. Law Rep. 1366; Norman v. Boaz, 85 Ky. 557, 4 S. W.,316; Inhabitants of Williamsburg v. Lord, 51 Me. 599; Green v. Holway, 101 Mass. 243, 3 Am. Rep. 339 ; Sewall v. Jones, 9 Pick. (Mass.) 412 ; State V. Wheeler, 23 Nev. 143, 44 Pac. 430 ; Vicksburg & M. R. Co. v. State, 62 Miss. 105 ; Cahoon v. Coe, 57 N. H. 556 ; Boyd v. Hood, 57 Pa. 98; Combined Saw & Planer Co. v. Flournoy, 88 Va. 1029, 14 516 STRICT AND LIBERAL CONSTRDCTION (Ch. 12 some few of our states, a diametrically opposite doctrine has been maintained. Thus, the court iff New Jersey says : "In laying the burden of taxation upon the citizens of the state, while it must be the object of every just system to equalize this charge by a fair apportionment and levy upon the property of all, it is equally the duty of the courts to see that no one, by mere technicalities which do not affect his substantial rights, shall escape his fair proportion of the public expenses, and thus impose them upon others. A lib- eral construction must therefore be given to all tax laws for public purposes, not only that the offices of government may not be hindered, but also that the rights of all taxpay- ers may be equally preserved." "*" Between these two extreme views lies the truth. "There must surely be a just and safe medium," says Judge Cooley, S. E. 976; Wisconsin Tel. Co. v. City of Oshkosh, 62 Wis. 32, 21 N. W. 828; Oriental Bank Corp. v. Wright, L. R. 5 App. Cas. 842; Warrington v. Furbor, 8 East, 242 ; Deiin v. Diamond, 4 Barn. & C. 243; Gurr v. Seudds, 11 Exch. 190; Wroughton v. Turtle, 11 Mees. & W. 561. To the same effect see People ex rel. New York Mail & Newspaper Transp. Co. v. Gaus, 198 N. X. 250, 91 N. E. 634, holding that a statute levying a tax should be construed most favorably to the taxpayer, the government being entitled to no rights thereunder except those clearly given by Its language. And see People ex rel. Fifth Ave. BIdg. Co. v. WiUiams, 198 N. Y. 238, 91 N. B. 638, holding that, if there is inconsistency between two sections of a law imposing a tax, the taxpayer must be given the benefit of that section which is most favorable to him. See "Statutes," Dec. Dig. (Key No.) § 245; Cent. Dig. § 326. 2*0 state V. Taylor, 35 N. J. Law, 184. And see Reynolds v. Bowen, 138 Ind. 434, 36 N. E. 756; Inhabitants of Eliot v. Prime, 98- Me. 48, 56 Atl. 207 ; Day v. Baker, 36 Mo. 125 ; Commonwealth v. Nunan, 104 S. W. 731, 31 Ky. Law Rep. 1090; State v. Several Parcels of Land, 83 Neb. 13, 119 N. W. 21 ; State v. Omaha Country Club, 78 Neb. 178, 110 N. W. 693 ; Borough of South Chester v. Broomall, 1 Del. Co. R. (Pa.) 58 ; United States v. Hodson, 10 Wall. 395, 19 L. Ed. 937 ; Kelly V. Herrall (C. C.) 20 Fed. 364. Statutes enacted to raise revenue by impQsition of license taxes are to be liberally construed to effectuate the legislative intent, notwithstanding a penal clause, usual In all such enactments, in respect of licenses, for the purpose of securing prompt and effectual enforcement. District of Columbia v. Fickling, 33 App. D. C. 371. iSfee "Statutes," Dec. Dig. (Key No.) § Si5: Cent. Dig. § 326. § 145) KEVtNtJK AND TAX LAWS 517 "between a view of the revenue laws which treats them as harsh enactments to be circumvented and defeated if pos+ sible, and a view under which they acquire an expansive quality in the hands of the court, and may be made to reach out and bring within their grasp, and under the dis- cipline of their severe provisions, subjects and cases which it is only conjectured may have been within their intent. Revenue laws are not to be construed from the standpoint of the taxpayer alone, nor of the government alone. Con- struction is not to assume either that the taxpayer, who raises the question of his legal liability under the laws, is necessarily seeking to avoid a duty to the state which pro- tects him, nor, on the other hand, that the government, in demanding its dues, is a tyrarit which, while too powerful to be resisted, may justifiably be obstructed and defeated by any subtle device or ingenious sophism whatsoever. There is no legal presumption either that the citizen will, if possible, evade his duties, or, on the other hand, that the government will exact unjustly or beyond its needs. All construction, therefore, which assumes either the one or the other, is likely to be mischievous and to take one-sided views, not only of the laws, but of personal and official con- duct." ^*^ To much the same effect is the following lan- guage from an opinion of the Supreme Court of Connecti- cut: "A law imposing a tax is not to be construed strictly because it takes money or property in invitum (although its provisions are for that reason to be strictly executed), for it is taken as a share of a necessary public burden; nor liberally, like laws intended to effect directly some great public object; but fairly for the government and justly for the citizen, and so as to carry out the intention of the leg- islature, gathered from the language used, read in connec- tion with the general purposes of the law, and the nature of the property on which the tax is imposed and of the legal relation of the taxpayer to it." ^*^ "There may and doubt- 2*1 Cooley, Tax'n, 272. See "Statutes," Dec. Dig. {Key No.) § 2i5; Cent. Dig. § S26. 242 Hubbard v. Brainard, 35 Coim. 563. See, also, Cornwall v Todd, 38 Conn. 443 ; Rein v. Lane, L. R. 2 Q. B. 144. See "Statutes," Deo. Dig. {Key No.) § 245; Cent. Dig. § 326. 518 STRICT AND LIBERAL CONSTRUCTION (Clh. 12 less should be a distinction taken in the construction of- those provisions of revenue laws which point out the Sub- jects to be taxed, and indicate the time, circurnstances, and manner of assessment and collection, and those which im- pose penalties for obstructions and evasions. There is no reason for peculiar strictness in construing the former ; nei- ther is there reason for liberality." "» But there may be some forms of tax laws which should, in all circumstances, receive a strict interpretation. Thus, it is said that a law imposing a privilege tax must be construed favorably to the citizen, and no occupation is to be, taxed unless clearly within the provisions of the law."** Statutes which provide that, if the taxes upon land are not duly paid, the land shall thereupon become forfeited to the state, and the title thereto shall vest in the state, are to be strictly construed. "It is certain that the legisla- ture will not be understood as intending to declare a for- feiture of private lands to the state for nonpayment of taxes, if construction can put any less severe meaning on the language of the statute." "*" Again, those provisions of, the revenue laws which authorize the officers of the revenue to make public sale of lands on which the taxes remain de- linquent are to be construed with strictness, so far as to re- quire an exact compliance with all those provisions which are designed for the security and protection of the taxpayer, though less stress may_be laid upon such provisions as are merely directions to the officers. The reason is that laws 24S Cooley, Tax'n, 271. See "Statutes," Deo. Dig. (Key No.) § Zi5; Cent. Dig. | 326. 244Vicksburg & M. R. Co. v. State, 62 Miss. 105; Wilby v. State, 93 Miss. 767, 47 South. 465, 23 L. R. A. (N. S.) 677. See "Statutes," Dec. Dig. {Key No.) § 2^5 j Cent. Dig. § 326. 2*5 Bennett v. Hunter, 9 Wall. 326, 19 L. Ed. 672 ; Fairfax v, Hun- ter, 7 Cranch, 625, 3 L. Ed. 453; Schenck v. Peay, 1 Dill. 267, Fed. Cas. No. 12,451; Dickerson v. Acosta, 15 Fla. 614; In re Baton Rouge Oil Works, 34 La. Ann. 255 ; Millett v. Mullen, 95 Me. 400, 49 Atl. 871; Tolman v. Hobbs, 68 Me. 316; Mount v. State, 6 Blackf. (Ind.) 25 ; Nesbitt v. Liggitt, 10 Bush (Ky.) 137 ; Magruder v. Esmay, 35 Ohio St. 222 ; Thevenin v. Sloeum's Lessee, 16 Ohio, 519 ; Hale v, Marshall, 14 Grat. (Va.) 489 ; State v. Swann, 46 W. Va. 128, 33 S. E. 89. See "Statutes," Dec. Dig. (Key No.) § 245,- Cent. Dig. § S26. i 145) REVENUE AND TAX LAWS 519 of this character operate to deprive the citizen of his estate, not, indeed, without due process of law, but by. the agency of ministerial officers and in a summary manner, which may result in injustice or even oppression if his rights are not carefully guarded.^*' "When the statute under which land is sold for taxes directs an act to be done, or prescribes the form, time, and manner of doing any act, such act must be done, and in the form, time, and manner prescribed, or the titld is invalid, and in this respect the statute must be strictly, if not literally, complied with. But in determining what is required to be done, the statute must receive a rea- sonable construction, and when no particular form or man- ner of dbing an act is prescribed, any mode which effects the object with reasonable certainty is sufficient. But spe- cial stress should always be laid upon those provisions which are designed for the protection of the taxpayer." "" On the other hand, but for a similar reason, it is held that statutes allowing the owner of land sold for taxes to redeem the same, on prescribed conditions, are to be construed lib- erally and generously in favor of the redemptioner, and not to be applied with any greater severity or narrowness than the terms of the law absolutely require.^** And again. 2*6 Smith V. Ryan, 88 Ky. 636, 11 S. W. 647 ; Young's Lessee v. Martin, 2 Yeates (Pa.) 312; Wills v. Aueh, 8 La. Ann. 19; Powell V. Tuttle, 3 N. Y. 396. See "Statutes," Dec. Dig. (Key No.) § 2^5; Cent. Dig. § 326. 2<7 Black, Tax Titles, § 155 ; Chandler v. Spear, 22 Vt. 388. See "Statutes," Dec. Dig. (Key No.) § U5; Gent. Dig. § 326. 248 Dubois V. Hepburn, 10 Pet. 1, 22, 9 L. Ed. 325; Corbett v. Nutt, 10 Wall. 464, 19 L. Ed. 976; Gault's Appeal, 33 Pa. 94; Karr v. Washburn, 56 Wis. 303, 14 N. W. 189 ; Nelson v. Central Land Co., 35 Minn. 408, 29 N. W. 121 ; Jones v. Collins, 16 Wis. 594 ; Alter v. Shepherd, 27 La. Ann. 207 ; Boyd v. Holt, 62 Ala. 296 ; Corning Town Co. V. Davis, 44 Iowa, 622; Pike v. Richardson, 136 Mich. 414, 99 N. W. 398; Monaghan v. Auditor General, 136 Mich. 247, 98 N. W. 1021 ; Bonds v. Greer, 56 Miss. 710 ; Gafcel v. Williams, 39 Misc. Rep. 489, 80 N. Y. Supp. 489; Hale v. Penn's Heirs, 25 Grat. (Va.) 261; Corbett v. Nutt, 18 Grat. (Va.) 624; Poling v. Parsons, 38 W. Va. 80, 18 S. B. 379." A construction of a tax law which makes the amount payable on redemption uncertain should not be adopted, un- less that is the clear intention of the statute. Fitzsimmons r. Bona- 520 STRICT AND LIBERAL CONSTRUCTION (Ch. 12 Statutes intended to cure defects and irregularities in tax proceedings should receive an effective construction at the hands of the courts, and should be so interpreted, if possi- ble, as to carry into operation all the designs which the leg- islature may reasonably be supposed to have had in mind ^t the time of the enactment."*" United States Internal Revenue and Tariff Acts In some of the earlier cases involving the interpretation of the internal revenue and customs laws of the United States, the courts adopted and applied the English rule, that statutes levying duties or taxes upon the citizen are to ' be construed most strongly against the government and in favor of the citizen, and their provisions are not to be extended by implication beyond the clear import of the lan- guage used.""" But afterwards, without going so far in the opposite direction as to hold that these laws should be construed with liberality, the federal tribunals reached the conclusion that there was no adequate reason for subjecting them to a restrictive interpretation, but that they should be vita (N. J. Ch.) 76 Atl. 313. See "Statutes," Dec. Dig. {Key No.) § 2iS; Cent. Dig. § 326. 240 Belcher v. Mhoon, 47 Miss. 613; Clementi v. Jackson, 92 N. X. 59J ; Clark v. Hall, 19 Mich. 357 ; McCallister v. Cottrille, 24 W. Va. 173 ; Paxton v. Valley Land Co., 67 Miss. 96, 6 South. 628 ; Beers V. People ex rel. Miller, 83 111. 488 ; Mowry v. Blandln, 64 N. H. 3, 4 Atl. 882; Peters v. Heasely, 30 Watts (Pa.) 208; State v. .McEl- downey, 54 W. Va. 695, 47 S. E. 650. But in Dean v. Charlton, 27 Wis. 522, it is said that acts of the legislature authorizing munic- ipal corporations to reassess and relevy special taxes which were void for irregularities in the proceedings are in derogation of in- dividual rights and likely to work great injustice, and therefore should be strictly construed. See "Statutes," Dec. Dig. (Key No.) § 245; Cent. Dig. § 326. 250 United States v. WIgglesworth, 2 Story, 369, Fed. Cas. No. 16,690. Also in a late case In the Circuit Court of Appeals, it Is said that revenue statutes, including those fixing duties on Imports, are neither remedial laws nor laws founded on any permanent public policy, and should be construed most strongly against the govern- ment; for burdens should not be Imposed on the taxpayer beyond what such statutes expressly and clearly import. Rice v. United States, 53 Fed. 910, 4 C. C. A. 104. See "Statutes," Deo. Dig. (Key No.) I US; Cent. Dig. § 320. § 145) BEVBNDE AND TAX LAWS 521 construed with fairness and justice and in a manner such as to make them accomplish the purpose designed. In one of the impoftant decisions of the Supreme Court it was said, in substance, that while there was one sense in which every law imposing a penalty or forfeiture might be deemed a penal law, yet in another sense such laws were often deemed, and truly deserved to be called, remedial ; that it must not be understood that every law which imposes a penalty is legally speaking a "penal" law, in such sense that it must be construed with great strictness in favor of the citizen. Laws enacted for the prevention of fraud, for the suppression of a public wrong, or to effect a public good, are not, in the strict sense, penal acts, although they may inflict a penalty upon those persons who violate them. It was in this light, the court considered, that revenue laws should be viewed. They should be construed in such a manner as most effectually to accomplish the intention of the legislature in enacting them.^°^ In another case it was said: "Penalties annexed to violations of general revenue laws do not make such laws penal in the sense which re- quires them to be construed strictly. Nor, on the other hand, are they to be construed with an excess of liberality. But it is the duty of the court to study the whole statute, its policy, its spirit, its purpose, its language, and, giving to the words used their obvious and natural import, to read the act with these aids in such a way as will best effectuate the intention of the legislature. Legislative intention is the guide to true judicial interpretation." ^^^ And in a late 261 Taylor v. United States, 3 How. 197, 210, 11 L. Ed. 559. See, also, Qliquot's Champagne, 3 Walll. 114, 18 L. Ed. 116. See "Stat- utes," beo. Dig. (Key No.) § 2^5; Cent. Dig. § 3S6. 252 United States v. One Hundred Barrels of Spirits, 2 Abb. {V. S.) 305, Fed. Cas. No. 15,948; United States v. Thirty-Six Barrels of High Wines, 7 Blatchf. 459, Fed. Cas. No. 16,468; Twenty-Bight Oases of Wine, 2 Ben. 63, Fed. Cas. No. 14,281; United States v. Olney, 1 Abb. (U. S.) 275, Fed. Cas. No. 15,918; United States v: Three Tons of Coal, 6 Biss. 379, Fed. Cas. No. 16,515 ; United States V. Twenty-Five Cases of Cloths, Crabbe, 356, Fed. Cas. No. 16,563 : United States v. WlUetts, 5 Ben. 220, Fed. Cas. No. 16,699. See "Statutes," Dec. Dig. (Key No.) § 245; Gent. Dig. § 326. 522 STRICT AND LIBERAL CONSTRUCTION (Ch. 12 case, which involved the question of the infliction of penal- ties for illicit distilling and forfeiture of the liquors and ap- paratus, it was declared to be "the now settled doctrine" of the Supreme Court that "statutes to prevent frauds upon the revenue are considered as enacted for the public good, and to suppress a public wrong, and therefore, although they impose penalties or forfeitures, not to be construed, like penal laws generally, strictly in favor of the defend- ant ; but they are to be fairly and reasonably construed, so as to carry out the intention of the legislature." ""* At the same time, the courts have no rightful authority to tax, by construction, subjects not taxed by the terms of the law, nor to create penalties or forfeitures by an expansive system of interpretation. "It is the duty of the courts of the Union, undoubtedly, so far as they are invested with arty agency in carrying out the financial purposes of the government, fairly to enforce the revenue laws of the country, and see that they are not fraudulently evaded. But they are not at liberty, by construction or legal fiction, to enlarge their scope to include subjects of taxation not within the terms of the law." ""* Hence, in cases of serious ambiguity jn the language of a tariff act, or in case of a doubtful classifica- tion of articles, where the real meaning of Congress cannot be ascertained by a careful and rational study of the act, nor by comparison with provisions of prior statutes relat- ing to the same subject, that construction must be adopted which is more favorable to the importer.^"'* 253 United States v. Stowell, 133 U. S. 1, 10 Sup. Ct 244, 83 L. Ed. 555, citing Taylor v. United States, 3 How. 197, 210, 11 L. Ed. 559 ; CliQUOt's Champagne, 3 Wall. 114, 145, 18 L. Ed. 116 ; United States V. Hodson, 10 Wall. 395, 406, 19 L. Ed. 937; Smythe v. Fiske, 23 Wall. 374, 380, 23 L. Ed. 47. See "Statutes," Dec. Dig. {Key No.) § 243; Cent. Dig. § SZ6. 254 United States v. Watts, 1 Bond, 580, Fed. Cas. No. 16,653, See "Statutes," Dec. Dig. {Key No.) § 2^5; Cent. Dig. § S26. 266 Powers V. Barney, 5 Blatchf. 202, Fed. Cas. No. 11,361; McCoy V. Hedden (O. C.) 38 Fed. 89 ; American Net & Twine Co. v. Worth- Ington, 141 U. S. 468, 12 Sup. Ct. 55, 35 L. Ed. 821. See "Statutes," Deo. Dig. (Key No.) § 245; Cent. Dig. § SS6. § 146) STATUTES OF LIMITATION gZS STATUTES OF LIMITATION 146. Statutes of limitation are statutes of repose and re^ medial in their nature. Their purposes should not be defeated by xmdue strictness of construction. A statute of limitations is a statute of repose, enacted as a matter of public policy to fix a limit of time within which an action must be brought, or the obligation be pre- sumed to have been paid, and it is intended to run against those who are neglectful of their rights, and who fail to use reasonable and proper diligence in the enforcement thereof. Such a statute is therefore remedial in its nature, and should be construed fairly, and even liberally.^ °* "Of late years the courts in England and in this country have considered statute's of limitation more, favorably than formerly. They rest upon sound policy and tend to the peace and welfare of society. The courts do not now, unless compelled by the force of former decisions, give a strained construction to evade the effect of these statutes. By requiring those who complain of injuries to seek redress by actions at law within a reasonable time, a salutary vigilance is imposed and an end is put to litigation." "" But if the statute itself is to be construed liberally, necessarily it follows that the excep- tions which it makes in favor of particular persons or classes are to be construed with strictnessi Accordingly, the doctrine is now very fully established that implied and equitable exceptions are not to be ingrafted upon the stat- ute of limitations where the legislature has not made the exception in express words in the statute; the courts can- not allow them on the ground that they are within the rea- 266 Burleigh County v. Kidder Ctounty (N. D.) 125 N. W. 1063 ; Rutter V. Carothers, 223 Mo. 631, 122 S. W,. 1056 ; Toll v. Wright, 37 Mich. 93 ; Coffin v. Cottle, 16 Pick. (Mass.) 383. See "Limitation of Actions," Dec. Dig. (Key No.) i 5; Cent. Dig. §§ 1S-J5. 267 McOluny v. Silliman, 3 Pet. 270, 7 L. Ed. 676. And see Rod- dam V. Morley, 1 De G. & J. 1 ; United States v. Wilder, 13 Wall. 254, 20 L. Ed. 681. See "Limitation of Actions," Deo. Dig. (Key No.) § 5; Cent. Dig. §§ lS-15. 524 STRICT AND LIBERAL GONSTKUCTION (Ch. 12 son or equity of the statute.^" "The general rule in re- gard .to the application of statutes of limitation is that all persons, whether under disability or not, are barred by them, unless excepted from their operation by a saving clause. General words of a statute are to receive a general construction, and unless there is found in the statute itself some ground for restraining it, it cannot be restrained." ^°' "Whenever the situation of the party was such as, in the opinion of the legislature, to furnish a motive for excepting him from the operation of the law, the legislature has made the exception. It would be going far for this court to add to those exceptions. * * * jf the difficulty oe produced by the legislative power, the same power might provide a remedy; but courts cannot on that account insert in the statute of limitations an exception which the statute does not contain." ^°° Thus, a statute of limitations; general in its nature, binds minors and married women, although they are not specially named, if they are not specially ex- cepted.''"^ And so, where it was urged that the case at bar ought to be excepted out of the statute of limitations, be- cause the complainant had been prevented, for a time, from asserting his claims, by reason of an injunction against him, but the statute made no express exception in favor of per- sons so circumstanced, the court held that it could make no exception.^"^ aosDozler v. Ellis, 28 Miss. 730; Bedell v. Janney, 9 111. 193; Sacia v. De Graaf , 1 Cow. (N. Y.) 356 ; Allen v. MUle, 17 Wend. (N. T.) 202. See "Limitation of Actions," Deo. Dig. (Key No.) § 5j Cent. Dig. §§ 13-15. 268 Favorite v. Boolier's Adm'r, 17 Ohio St. 548. See "Limitation of Actions," Dec. Dig. (Key No.) § 5; Cent. Dig. §§ lS-15. 260 Mclver v. Eagan, 2 Wheat. 25, 4 L. Ed. 175. See "Limitation of Actions," Dec. Dig. (Key No.) § 5; Cent. Dig. §§ 13-15. 281 Warfield v. Fox, 53 Pa. 382. See "Limitation of Actions," Dec. Dig. (Key No.) § 5; Cent. Dig. §§ 13-15. 282 Kilpatrick v. Byrne, 25 Miss. 571. A statute providing that where an action, commenced within the time limited by law, is de- feated "for any matter of form," the plaintiff may commence a new action for the same cause of action within one year, is a beneficial statute and is to be construed very liberally. Johnston v. Sikes, 56 Conn. 589. See "Limitation of Actions," Deo. Dig. (Key No) S 5- Cent. Dig. §§ 13-15. v » •/ » . §§ 147-149) MANDATORY AND DIEBCTOEY PEOVISIONS 525 CHAPTER XIII MANDATORY AND DIREOTOEY STATUTES AND PROVISIONS 147-149. Definitions. 150-151. Permissive and Mandatory Terms. 152. Means of Determining Character of Provision. 153. Terms of Authorization CJonstrued as Mandatory. 154. Imperative Terms Construed as Directory. 155. Statutes Regulating Time of Official Action. 156. Statutes Regulating Official Action in Matters of Form. 157-159. Judicial Duties and Proceedings. 160. Laws Authorizing Taxation" 161. Audit and Payment of Public Debts. 162. Grant of Licenses. 163. Laws Regulating Tax Proceedings, 164. Laws Regulating Elections. DEFINITIONS 147. A statute or statutory provision is said to be manda- tory when it commands and requires that certain action shall be taken by'those to whom the statute is addressed, without leaving them any choice or discretion in the matter, or when, in respect to ac- tion taken under the statute, there must be exact and literal compliance with its terms, or else the act done will be absolutely void. 148. A statute which authorizes or permits certain action to be taken by those to whom it is addressed or whom it concerns, at their option or in their dis- cretion, but does not imperatively require it, is said to be enabling or permissive. 149. A statutory provision which directs the manner in which certain action shall be taken or certain of- ficial duties performed is said to be directory when its nature and terms are such that disregard of it, or want of literal compliance with it, though con- stituting an irregularity, will not absolutely vitiate the proceedings taken under it. 526 ; MANDATORY AND DIRBCTOEX PROVISIONS (Gh. 13 The terms "mandatory" and "directory" are naturally not applicable to prohibitive statutes or those which simply for- bid or denounce the doing of certain acts. They are used with reference tor affirmative statutes, or those which con- template that action shall or may be taken under them. And, first, the question may arise as to whether the contem- plated action must be taken or may be omitted. If the in- tention of the legislature is that the person, officer, board, court, or municipality to which the statute is addressed must at all events, and whenever the prescribed conditions occur, take the action which it enjoins, without option or discretion as to doing or not doing the thing in question, the statute is called "mandatory." But if the legislature means that the act which it authorizes may or may not be performed, according as the person concerned shall choose to take the benefit of the statute or to forego it, or accord- ing as the exercise of judgment and discretion shall show it to be proper and expedient or the reverse, it is sometimes called a "directory" statute, but more properly "permissive" or "enabling."'^ Second, the question may arise as to the form, time, or manner of doing the thing enjoined by the statute. In this case, the act is described as "mandatory" when its terms must be precisely and literally complied with in order to impart validity to proceedings taken under it, but "directory" if a substantial compliance with its direc- tions will be enough to validate the proceedings, or if the doing of the thing enjoined in some other mode or form or at some other time will satisfy the requirements of justice and not impair any public or private rights.'' Generally 1 Statutes may be directory or imperative. The former prescribe privileges, and the latter impose duties. The former leave room for the exercise of a choice or discretion, while the latter are absolute and peremptory. Payne v. Fresco, 4 Kulp (Pa.) 25. See "Statutes," Deo: Dig. (Ken ^o.) § 227; Cent. Dig. §§ SOS, S09. 2 See Webster v. French, 12 111. 302 ; Woodward v. Sarsons, L. R. 10 C. P. T33. Those requirements of a statute which are mandatory must be strictly construed, while those requirements which are directory should receive a liberal construction to accomplish the purpose of the act. People ex rel. Johnson v. Earl, 42 Colo. 238, 94 §§ 147-14:9) DEFINITIONS 527 speaking, if no substantial rights depend on the exact ob- servance of the provisions of the statute, and no injury can result from ignoring them, and if the purpose of the leg- islature can be accomplished in some other manner than that prescribed and substantially the same results obtained, then the statute will be regarded as directory.^ And so where the statute relates to matters of convenience rather than of substance, or its provisions are only for the purpose of securing orderly procedure in the conduct of public busi- ness.* These general . considerations may serve to explain the difference between directory and mandatory provisions, so far as concerns their effect on the rights of private persons and on the conduct of public business. But with the officer, whose official action is regulated by the statute, the case is somewhat different. To say that the statute is directory does not mean that he is at liberty to disobey it at his mere pleasure or caprice. To him it is a command. His omis- sion to discharge a duty prescribed by a directory statute may not vitiate the proceedings as to third persons, but it will certainly render him liable to any person injured by his failure to act." It does not necessarily follow that because a statute is directory in some of its parts or provisions, or in some of its aspects, or as to some of the persons who are to act un- der it, it must be held directory throughout its whole extent. It is most frequently the case that some particular clause or provision of the act is construed as directory only, while the remainder is held to be imperative. The two classes of Pae. 294. See "Statutes," Deo. Dig. (Key So.) § 227; Cent. Dig. §§ 308, 309. 3 Granite Bitmninous Pav. Co. v. McManus, 144 Mo. App. 593, 129 S. W. 448. See "Statutes," Dec. Dig. {Key No.) § 227; Cent. Dig. §§ 308, 309. * Reid V. Southern Development Co., 52 Fla. 595, 42 South. 206 ; Ferris Press Brick Co. v. Hawkins (Tex. Civ. App.) 116 S. "W. 80. See "Statutes," Deo. Dig. (Key No.) i 227; Cent. Dig. §§ 308, 309. 5 Brown v. Lester, 13 Smedes & M. (Miss.) 392 ; Bvers v. Hudson, 36 Mont. 135, 92 Pac. 462. See "Statutes," Dec. Dig. (Key No.) i 227; Cent. Dig. §§ 308, 309. 528 MANDATOKT AND DIRBCTOKY PROVISIONS (Ch. X3 provisions may even coexist in the same section or other division of the enactment. For example, where an act di- rects a certain officer to take certain action and within a certain time, it may be directory as to the time of perform- ance, but mandatory as to the doing of the act itself.* It may be that the statute itself will point out which of its provisions are to be considered as mandatory and which as directory. But this is not usually the case. In the ab- sence of such authoritative guidance, the courts must de- termine the question for themselves; and the fact that a statute is peremptory in form is by no means decisive as to the construction to be adopted.'' Th* proper object of the courts in construing any statutory provision as merely di- rectory is not to defeat the legislative will, but to avoid the delay, confusion, and overturning of rights and titles which would result from ascribing an invalidating effect to every trifling irregularity in official action. But it must be admitted that this power to .declare statutes directory, in- stead of imperative, is sometimes employed by the courts as a means of modifying the rigor of the law or escaping the harsh and severe consequences which would follow its strict enforcement, and sometimes as a convenient method of avoiding the necessity of putting into active operation laws which are obsolete and ill-adapted to contemporary conditions, but still unrepealed. This is well illustrated by a decision in Pennsylvania, where the question arose upon ^ very ancient statute of thit state which provided that "all marriages shall be solemnized by taking each other for hus- band and wife before twelve sufficient witnesses." The court said: "To escape from a conclusion imputative of guilt to the parties, and destructive of the civil rights of their offspring, it is necessary to hold, not only this clause, but those which require a certificate of the marriage under the hands of the parties and the twelve witnesses to be reg- 6 See Hardcastle, Stat. Constr. (2d Ed.) 281. t Kutter V. White, 204 Mass. 59, 90 N. E. 401. See "Statutes " Deo. Dig. {Key No.) § 2S2; Cent. Dig. §§ SOS, 309. §§ 150-151) PERMISSIVE AND MANDATORY TERMS 529 istered in t}ie proper office, as well as publication of banns by posting on the church or courthouse doors, with other matters fallen into disuse, to be but directory." ' PERMISSIVE AND MANDATORY TERMS 150. Such terms and phrases as are susceptible of being read in either a mandatory or a directory sense are presumed to have been used in their natural and primary signification, and should not be interpreted otherwise, unless it is necessary to carry out the purpose of the legislature, effect justice, secure public or private rights, or avoid alwurdity. 151. But words in a statute importing permission or au- thorization may be read as mandatory, and words importing a command may be read as permissive or enabling, whenever, in either case, such a con- struction is rendered necessary by the evident in- tention of the legislature or the rights of the pub- lic or of private persons under the statute. The words "may," "authorized," "shall," "must," and the like, as employed in statutes, are first of all to be presumed to have been used in their natural and ordinary sense, and they will be so understood unless such a construction would be obviously repugnant to the intention of the legislature, or would lead to some inconvenience or absurdity.' It has sometimes been loosely said that "may" and "shall," as 8 Rodebaugh v. Sanks, 2 Watts (Pa.) 9. See "Marriage," Deo. Dig. (Key No.) § U; Cent. Dig. § S. 1 Medbury v. Swan, 46 N. Y. 200 ; People ex rel. Comstock v. City of Syracuse, 59 Hun, 258, 12 N. Y. Supp. 890 ; Morse v. Press Pub. Co., 71 App. Div. 351, 75 N. Y. Supp. 976 ; Downing v. City of Oska- loosa, 86 Iowa, 352, 53 N. W. 256 ; Blair v. Murphree, 81 Ala. 454, 2 South. 18 ; Kelly v. Morse, 3 Neb. 224 ; Lewis v. State, 3 Head (Tenn.) 127; Kemble v. McPhaill, 128 Cal. 444, 60 Pac. 1092; Talmage v. Third Nat. Bank, 91 N. Y. 531; Town of Hempstead v. Lawrence, 138 App. Div. 473, 122 N. T. Supp. 1037. See "Statutes," Dec. Dig. (Key No.) § 237; Cent. Dig. §§ SOS, 309. Black Int.L. — 34 530 MANDATORY AND DIKBCTOEY PROVISIONS (Oh. 13 used in statutes, are interchangeable terms. But this is not correct. To convert such terras, the one into the other, at the mere will of the court, would be little short of sub- stantive legislation. It is true that this may be done where it is imperatively necessary to prevent an irreparable mis- chief or an invasion of vested rights, and where the public interests or the fixed rights of individuals are concerned.^" But otherwise it is not permissible to put a forced or strained construction upon words of this character, to ele- vate merely permissive words into the force of a command, or to soften imperative expressions into a mere grant of li- cense or authority.^^ Taken in its natural and ordinary sense, the word "may" does not import a command, but merely signifies permis- sion, ability, or possibility, and generally it denotes that the action spoken of is optional with the person concerned, or rests in the discretion of the court or body to which license or permission is given.^^ And the word always retains this primary meaning unless a different construction is neces- sary to give effect to the clear purpose and intention of the legislature, to make the statute accord with settled public policy, or to save the rights of parties in interest.^* For 10 City Sewage Utilization Co. v. Davis, 8 Phila. (Pa.) 625 ; Rock Island County v. United States ex rel. State Bank, 4 Wall. 435, 18 L. Ed. 419 ; Village of Kent v. United States, 113 Fed. 232, 51 C. C. A. 189 ; Kohn v. Hinshaw, 17 Or. 308, 20 Pac. 629 ; Winsor Coal Co. V. Chicago & A. R. Co. (C. C.) 52 Fed. 716; Chicago & A. R. Co. v. Howard, 38 111. 414. See "Statutes," Dec. Dig. (Key No.) § 227; Cent. Dig. §§ 308, 309. 11 Santa Cruz Rock Pavement Co. v. Heaton, 105 Cal. 162, 38 Pac. 693; Ball v. Flagg, 67 Mo. 481; Koch v. Bridges, 45 Miss. 247. See "Statutes," Dec. Dig. {Key No.) § 227/ Cent. Dig. §§ 308, 309. 12 Santa Cruz Rock Pavement Co. v. Heaton, 105 Cal. 162, 38 Pac. 693. See "Statutes," Dec. Dig. (Key No.) § 227; Cent. Dig. §§ 308, 309. 13 Chicago, W. & V. Coal Co. v. People, 114 111. App. 75 ; Board of Oom'rs of Vigo County v. Davis, 136 Ind. 503, 36 N. E. 141, 22 U R. A. 515; Harrison v. Wissler, 98 Va. 597, 36 S. E. 982; State v. School District No. 1, Edwards County, 80 Kan. 667, 103 Pac. 136; Town of Hempstead v. Lawrence, 138 App. Div. 473, 122 N. Y. Supp. 1037. See "Statutes," Dec. Dig. (Key No.) § 237; Cent. Dig. §§ 308, 309. §§ 150^151) PERMISSIVE AND MANDATORY TERMS 531' example, in a statute providing that whoever is found in a state of intoxication in a public place may be arrested" with- out a warrant by a police officer, the language is permissive. It gives authority to the officers named to use their discre- tion in regard to making the arrest, considering all the cir- cumstances of the particular case, but does not require them at all hazards to arrest such a person.^* But the word "may" should be taken as equivalent to "must" in all cases where it is evident that the legislature means to impose a positive and absolute duty, and not merely to give a dis- cretionary power.^° Atid it is well settled that "may," in any statute, is to be construed as equivalent to "shall" or "must" when' the public interests or rights are concerned, and when the public or third persons have a right de jure to claim that the power granted should be exercised.^" On the other hand, "shall" and "must" are words of com- mand. Taken in their usual and proper meaning, they leave no room for choice or discretion, but are imperative ; " and they will be presumed to have been used in this sense, un- less something in the character of the statute or the sub- ject to which it relates, or in the context, shows that this could not have been the intention of the legislature.^^ 14 Commonwealth v. Caieney, 141 Mass. 102, 6 N. B. 724, 55 Am. Rep. 448. See "Assault and Battery," Cent. Dig. § 91. 15 Minor v. Mechanics' Bank, 1 Pet. 46, 64, 7 L. Ed. 47; Mayor, etc., of City of New York v. Furze, 3 Hill (N. Y.) 612. See "Stat- utes," Deo. Dig. {Key No.) § 227; Cent. Dig. l^S08, 309. 16 Alderman Backwell's Case, 1 Vern. 152; Blake v. Portsmouth & C. B, Co., 39 N. H./435 ; Nave v. Nave, 7 Ind. 122 ; Bansemer v. Mace, 18 Ind. 27, 81 Am. Dec. 344 ; Ex parte Banks, 28 Ala. 28 ; Schuyler County v. Mercer County, 9 111. 20 ; Rock Island Comity v. United States ex rel. State Bank, 4 Wall. 435, 18 L. Ed. 419; Tarver V. Commissioners' Court of Tallapoosa County, 17 Ala. 527; New- Burgh & C. Turnpike Road v. Miller, 5 Johns. Ch. (N. Y.) 101, 9 Am. Dec. 274; Minor v. Mechanics' Bank of Alexandria, 1 Pet. 46, 7 L. Ed. 47; Cutler v. Howard, 9 Wis. 309. See "Statutes," Dec. Dig. (Key No.) § 227; Cent. Dig. §§ SOS, SOB. "In re City of Rochester (Sup.) 10 N. Y. Supp. 436; People v. Thomas, 32 Misc. Rep. 170, 66 N. Y. Supp. 191; Eaton v. Alger, 57 Barb. (N.Y.) 179. See "Statutes," Dec. Dig. (Key No.) § 227; Cent: Dig. §§ SOS, S09. „ , , twt 4. 18 Board of Finance of School City of Aurora v. Peoples Nat. 532 MANDATORY AND DIKECTORT PROVISIONS (Ch. 13 The word "ought," though generally directory only, will be taken as mandatory if the context requires it," as, for example, in a constitutional provision that all property sub- ject to taxation "ought" to be taxed in proportion to its value.^" The phrase "it shall be lawful" is generally considered as equivalent to the word "may" ; that is, primarily it does not amount to a command or positive direction, but grants per- mission or license. It authorizes, but does not require. It leaves action or nonaction to the choice or discretion of the person concerned."^ But where the phrase is used with reference to a public officer or a municipal corporation, and grants an authority to be executed for the benefit of a third person, who has a right to claim its exercise, the words will be construed as imperative and as imposing a positive and absolute duty.''^ ,Thus an act of Congress "provided that "it shall be lawful" for the Commissioner of Patents to issue a new patent in place of one which proved to be invalid or inoperative and which was surrendered to him ; and it was held that this made it the imperative duty of the Commis- sioner to issue the new patent in a proper case.^^ So, where a statute provides that, in changing the grade of streets, it Bank of Lawrenceburg, 44 Ind. App. 578, 89 N. E. 904 ; Haythorn v. Van Keuren (N. J.) 74 Atl. 502. See "Statutes," Dec. Dig. (Kev No.) § S27; Cent. Dig. §§ 308. 309. 19 Life Ass'n of America v. St. Louis County Board of Assessors, 49 Mo. 518 ; Jackson v. State, 32 Tex. Cr. R. 192, 22 S. W. 831. See "Statutes," Dec. Dig. (Key No.) § 2S7; Cent. Dig. §§ 308, 309. 20 Life Ass'n of America v. St. Louis County Board of Assessors, 49 Mo. 518. See "Statutes," Dec. Dig. (Key No.) § 227; Cent. Dig. §§ SOS, 309. 21 Verplanck v. Mercantile Ins. Co., 1 Edw. Ch. (N. Y.) 83; E)x parte Whittington, 34 Ark. 394; Great Western Ry. Co. v. Regina, 1 El. & Bl. 874; Williamson v. Williamson, 1 Johns. Ch. (N. Y.) 488. See "Statutes," Dec. Dig. (Key No.) § 227; Cent. Dig. §§ 308, 309. 2 2 Mason y. Fearson, 9 How. 248, 13 L. Ed. 125; Mayor of City of New York v. Furze, 3 Hill (N. Y.) 612 ; Hutson v. City of New York, 9 N. Y. 163, 59 Am. Dec. 526 ; Davison v. Davison's Adm'rs, 17 N. J. Law, 169; Julius v. Bishop of Oxford, L. R. 5 App. Cas. 214. See "Statutes," Dec. Dig. (Key No.) § 227; Cent. Dig. §§ 308, 309. 2 3 Ex parte Dyson, 8 Fed. Cas. 215. See "Patents," Dec. Dig. (Kev No.) § 134; Cent. Dig. § 197. §§ 150-151) PERMISSIVE AND MANDATORY TERMS 533 shall be lawful for the municipal authorities to make proper awards for damages, this does not leave the matter to their discretion, but the duty to make such awards is impera- tive.''* It is also ruled that where a statute makes it "law- ful" for a court to take certain action or pursue a certain course of procedure, this term will be construed as manda- tory where the thing to be done is permitted only in the mode pointed out by the statute, but as directory where the same thing might have been accomplished in another way before the passage of the act or under distinct provisions of the same law.^'' But the English doctrine is that in all cases where these words, "it shall be lawful," are used in a statute with reference to a court of justice, and are not oth- erwise controlled, they confer a jurisdiction, leaving it to the court to exercise its discretion according to the require- ments of justice in each particular case.^' Authority of the Courts and Its Proper Limitations Although the power of the courts to construe mandatory words as directory, and vice versa, can be vindicated, not only upon authority, but also by the necessities of the case, yet it is a power dangerously liable to abuse, and one which should be most carefully guarded in its exercise. "This mode of getting rid of a statutory provision by calling it directory is not only unsatisfactory on account of the vagfueness of the rule itself, but it is the exercise of a dis- pensing power by the courts which approaches so near to legislative discretion that it ought to be resorted to with reluctance, only in extraordinary cases, where great pub- lic mischief would otherwise ensue,' or important private in- terests demand the application of the rule. There is no more propriety in dispensing with one positive requirement than another ; a whole statute may be thus dispensed with when in the way of the caprice or will of a judge. And be- 2* aark V. City of Elizabeth, 61 N. J. Law, 565, 40 Atl. 616. See "Muwioipal Corporations," Deo. Dig. (Key No.) § S85. 25 Caulker v. Banks, 3 Mart. N. S. (La.) 532. See "Statutes," Deo. Dig. (Key No.) § 227; Cent. Dig. §§ 308, 309. 28 In re Bridgman, 1 Drew. & Sm. 164. See "Statutes," Dec. Dig. (Key No.) § 227; Cent. Dig. §§ 308, 309. 534 MANDATORY AND DIRECTORY PROVISIONS (Ch. 13^^ sides, it vests a discretionary power in the ministerial of- ficers of the law which is dangerous to private rights, and the public inconvenience occasioned by a want of uniform- ity in the mode of exercising a power is a strong reason for bridling this discretion. It is dangerous to attempt to be wiser than the law; and when its requirements are plain and positive, the courts are not called' upon to give reasons why it was enacted. A judge should rarely take upon him- self to say that vvhat the legislature have required is un- necessary. He may not see the necessity of it; still it is not safe to assume that the legislature did not have a rea- son for it ; perhaps it only aimed at certainty and uniform- ity. In that case, the judge cannot interfere to defeat that object, however puerile it may appear. It is admitted that there are cases where the requirements may be deemed di- rectory. But it may safely be affirmed that it can never be where the act, or the omission of it, can by any possibility work advantage of injury, however slight, to any one af- fected by it. In such case, the requirement of the statute can never be dispensed with." " MEANS OF DETERMINING CHARACTER OF PRO- VISION 152. There is no absolute formal test for determining whether a statutory provision is to be considered mandatory or directory. The meaning and inten- tion of the legislature must govern; and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would fol- low from construing it in the one way or the other. Many different tests have been proposed for determining , whether a statutory provision is to be regarded as manda- tory or merely, directory. But none of them is entirely sat- isfactory as a fixed rule, or adequate to the solution of all 2T Koch V. Bridges, 45 Miss. 247. See "Statutes," Dec Dig. iKev No.) § 227; Cent. Dig. §§ 808, 309. § 152) DETERMINATION OF CHAKACTEK OF PROVISION 535 possible cases. The object here, as in all other cases of con- struction, is to ascertain the meaning and intention of the legislature, and when that is clearly discoverable, it will control the literal import of the words used, and justify the interpretation of mandatory words in a merely permissive sense or vice versa.^' In seeking the legislative intent, re- course must, of course, first be had to the language of the statute; but this is not always conclusive. The mere fact that a statute is mandatory in form does not necessarily make it so in its effect.^ » But the court should not stop with a consideration of the primary meaning of such words as "may," "shall," or "must." For the particular intention of the legislature in using words of this kind may often be determined from the context. Thus, where a merely per- missive term is coupled with words importing a choice or option, it is clearly to be taken in its natural and primary sense, as where it is enacted that a court or officer "may in his discretion" take certain action.'" But where a word of authorizatic^n is coupled with a mandatory term, the for- mer takes color from the latter. Thus, the expression "may and shall" means "mtist." The imperative word is not soft- ened by its conjunction with the permissive word, but vice versa. In such a phrase, "may" grants authority, and "shall" requires its exercise.'^ If these two words are con- trasted with each other by their employment in different 28 Fields V.' United States, 27 App. D. C. 433; Leigton v. Maury, 76 Va. 865 ; State v. Barry, 14 N. D. 316, 103 N. W. 637 ; Boyer v. Onion, 108 111. App. 612; Rothschild v. New York Life Ins. Co., 97 111. App. 547. Bee "Statutes," Dec. Dig. (Key No.) § 227; Cent. Dig. §§ 308, 309. 29 Eceles Lumber Co. v. Martin, 31 Utah, 241, 87 Pae. 713 ; Rutter V. White, 204 Mass. 59, 90 N. E. 401. See "Statutes," Dec. Dig. (Key No.) § 227; Cent. Dig. §§ 308, 309. 30 Darby v. Condit, 1 Duer (N. Y.) 599 ; In re Carter, 3 Or. 293 ; State V. Knowles, 90 Md. 646, 45 Atl. 877, 49 L. R. A. 695 ; King Real Estate Ass'n v. City of Portland, 23 Or. 199, 31 Pac. 482. See "Stat- utes," Dec. Dig. [Key No.) § 227; Cent. Dig. §§ SOS, 30.9. 31 Quinn v. Wallace, 6 Whart. (Pa.) 452 ; Central New Jersey Land & Imp. Co. V. City of Bayonne, 56 N. J. Law, 297, 28 Atl. 713; At- torney General v. Lock, 3 Atk. 164. See "Statutes," Deo. Dig. (Key No.) § 227; Cent. Dig. §§ 308, 309. 536 MANDATORY AND DIRECTORY PROVISIONS (Oh. 13 clauses or sentences of the same section or paragraph, it shows the legislative intention that each should be taken in its primary and natural sense. This rule is applicable, for example, to a statute relating to compulsory attendance at the public schools and providing that the proper author- ities "shall" appoint attendance officers, and "may" make rules and regulations ; " to a law providing that, m actions to enforce a mechanic's lien, certain- persons "shall" be made parties, and others "may" ; " and to one providing that the revenues of a city for each year shall be devoted to the expenses of that year, and that any surplus "may" be applied to the payment of indebtedness of former years.^* Where a statute authorizing certain action to be taken by public officers expressly leaves it to their judgment and discretion, but is afterwards amended so as to read simply that they "may" take such action, it will be understood as imposing a duty upon them, especially if the public interests are in any way involved.'" ' Again, it is often said that the use of negative terms will make a statute imperative. Thus, if the law directs that a particular proceeding sh^ll be taken at a particular time or in a particular manner "and not otherwise," or if it makes the act void if not done as directed, or if it gives it effect only on condition that it be so done, or if it declares that if the proceeding is not taken subsequent proceedings shall not be had, or if it .prohibits the doing of the act except at the time or in the manner prescribed, in these and similar cases, the wording of the statute is generally to be taken as indicating the intention of the legislature to exact a 32 Reynolds v. Board of Education of Union Free School Dist. of City of Little Falls, 33 App. Div. 88, 53 N. Y. Supp. 75. See "Schools and School Districts," Dec. Dig. {Key No.) § 161. 33 Schaeffer v. Lohman, 34 Mo. 68. See "Mechanics' Liens," Cent. Dig. §47i. 34 United States ex rel. Siegel v. Thoman, 156 U. S. 353, 15 Sup. Ct. 378, 37 L. Ed. 450. See "Statutes," Dec. pig. {Key No.) § 237; Cent. Dig. §§ 308, 309. 35 State ex rel. Stoutmeyer v. Duffy, 7 Nev. 342, 8 Am. Rep. 713. See "Statutes,", Dec. Dig. {Key No.) § 227; Cent. Dig. §§ 308, 309. § 152) DETERMINATION OF CHARACTER OF PROVISION 537 strict compliance with its terms." But this rule is not in- variable. There are cases which have been ruled in direct opposition to its purport. And still less reliance can be placed upon the converse of this rule, namely, that the ab- sence of negative words shows that the provision was de- signed to be only directory.' ' Where the words of a stat- ute are affirmative, and relate to the manner in which power or jurisdiction vested in a public officer or body is to be ex- ercised, and not to the limits of the power or jurisdiction itself, they may be, and often are, construed to be direct- ory.*' But affirmative words may make the statute impera- tive, if they are absolute, explicit, and peremptory, and show that no discretion is intended to be given.'" Another line of cases suggests, as the proper test of the imperative or directory character of a statute, the question whether the thing directed to be done is of the essence of the thing required or relates to matters of form.*" "When a particular provision of a statute relates to some immate- rial matter, where compliance is a matter of convenience S8 Hurford v. City of Omaha, 4 Neb. 336 ; Connecticut Mut.' Life Ins. Co. V. Wood, 115 Mich, 444, 74 N. W. 656 ; Appeal of Spencer, 78 Conn. 301, 61 Atl. 1010. So a statute directing judges of elections to write the voter's poll list number on the 'ballot, and forbidding the counting of an unnumbered ballot, is mandatory. State v. Con'- ner, 86 Tex. 133, 23 S. W. 1103. See "Statutes," Dec. Dig. (Key No.) § 227; Cent. Dig. §§ 308, 309. sTCooley; Const. Lim. 74. See Gomez v. Timon (Tex. Civ. App.) 128 S. W. 656. See "Statutes," Dec. Dig. (Key No.) § 227; Gent. Dig. §§ 308, 309. 38 Bladen y. City of Philadelphia, 60 Pa. 464. See "Statutes," Dec. Dig. (Key No.) § 227; Cent. Dig. §§ 308, 309. 39 Potter's Dwarris on Stat. 228. If an affirmative statute, intro- dnctive of a new law, directs a thing to be done in a certain manner, that thing cannot, even although there are no negative words, be done in any other manner. Cook v. Kelley, 12 Abb. Prac. (N. Y.) 35. And see Com'rs of the Poor of Laurens District v. Gains, 3 Brev. (S. C.) 396. See "Statutes," Dec. Dig. (Key No.) § 227; Cent. Dig. §§ SOS, 309. *o In re Norwegian Street, 81 Pa. 349 ; Hqpe v. Flentge, 140 Mo. 390, 41. S. "W. 1002, 47 L. R. A. 806; Custer County v. Yellowstone County, 6 Mont. 39, 9 Pac. 586. See "Statutes," Dec. Dig. (Key No.) § 227; Gent. Dig. §§ 308, 309. 538 MANDATORT AND DIRECTORY PROVISIONS (Ch. 13 rather than substance, or where the directions of a statute are given with a view to the proper, orderly, and prompt conduct of public business merely, the provision may gen- erally be regarded as directory." *^ But "when a fair inter- pretation of the statute, which directs acts or proceedings to be done in a certain way, shows that the legislature in- tended a compliance with such provisions to be essential to the validity of the act or proceeding, or when some an- tecedent and prerequisite conditions must exist prior to the exercise of the power, or must be performed before cer- tain other powers can be exercised, then the statute must be regarded as mandatory." ^'^ Various other recognized rules of construction may also be brought to bear upon the problem, such as that which requires an interpretation which will make the statute sen- sible, intelligent, and effective throughout its entire ex- tent,*' and that which directs the court, if possible, to give such a construction to a statute as will give reasonable and effective operation to each of its various clauses and pro- visions.** Again, the words "may," "shall," and the like, may be interpreted contrary to their natural and primary meaning, when such a construction is necessary to prevent injustice, great public inconvenience, or absurd results.*" Thus, in a statute providing that civil actions can only be commenced within the periods prescribed in the act, but that where, in special cases, a different limitation is pre- scribed by statute, the action may be commenced accord- ingly, the word "may" is to be construed as "must," since *i Hurford v. City of Omaha, 4 Neb. 336; Ouster County v. Yellow- stone County, 6 Mont. 39, 9 Pac. 5S6; Appeal of Spencer, 78 Conn. 301, 61 Atl. 1010. See "Statutes," Dec. Dig. (Key No.) § 227; Cent. Dig. §§ 308, 309. *2 Hurford v. City of Omaha, 4 Neb. 336. See "Statutes," Dec. Dig. (Key No.) § 227; Cent. Dig. §§ 308, 309. *3Carbaugh v. Sanders, 13 Pa. Super. Ct. 361. See "Statutes," Dec. Dig. (Key No.) § 227; Cent.- Dig. §§ SOS, 309. *i Offield V. Davis, 100 Va. 250, 40 S. E. 910. See "Statutes," Dec. Dig. (Key No.) § 227; Cent. Dig. §§ 308, 309. 40 North Bloomfleld Gravel Min. Co. v. United States, 88 Fed. 664, 673, 32 C. C. A. 84. See "Statutes," Dec. Dig. (Key No.) § 227 • Cent Dig. §§ SOS, S09. § 152) DETERMINATION OF CHARACTER OF PROVISION 539 it could not have been the intention of the legislature that a party might have an election either to be governed by the general statute of limitations or by that laid down in rela- tion to special cases; such a construction, said the court, would lead to "absurd consequences."*" Still a different aspect of the question is developed by the. United States Supreme Court in a case where it was said : "There are updoubtedly many statutory requisitions intended for the guidance of officers in the conduct of busi- ness devolved upon them, which do not' limit their power or render its exercise in disregard oi the requisitions inef- fectual. Such geriefally are regulations desigiied to secure order, system, and dispatch in proceedings, and by a disre- gard of which the rights of parties interested cannot be, in- juriously affected. Provisions of this character are not usu- ally regarded as mandatory, unless accompanied by negative words, importing that the acts required shall not be done in any other manner or time than that designated. But when the requisitions prescribed are intended for the pro- tection of the citizen and to prevent a sacrifice of his prop- erty, and by a disregard of which his rights might be and generally would be injuriously affected, they are not direct- ory but mandatory. They must be followed, or the act done will be invalid. The power of the officer in all such cases is limited by the manner and conditions prescribed for its exercise." " Again, it has been said that if it is clear that the legislature did not intend to impose any penalty for a noncompliance with the directions of the statute, it is but carrying out the legislative will to declare the statute in that respect to be simply directory.*' But in regard to all these rules and criteria, it must be remarked. that while each of them contains some valuable and helpful truth, no one of them should be set up as a fixed and invariable standard,. *« Columbus, S. & C. R. Oo. v. Mowatt, 35 Ohio St. 284. See "Lim- itation of Actions," Dec. Dig. {Key No.) § 5; Cent. Dig. §§ 13-15. " French v. Edwards, 13 Wall. 506, 511, 20 L. Ed. 702. See "Stat- utes," Dec. Dig. {Key No.) § 227; Cent. Dig. §§ 308, 309. *8 Corbett v. Bradley, 7 Nev. 106. See "Statutes," Dec. Dig. (Key No.) § 227; Cent. Dig. §§ 308, 309. 540 MANDATORY AND DIRECTORY PROVISIONS (Ch. 13 Much will depend upon the circumstances of the individual case. Each of these rules may furnish a clue or indication of the meaning of the legislature, but none of them can take the place of that meaning when it is discoverable. If the language of the enactment does not certainly disclose it, the legislative design is to be determined mainly from a consideration of the antecedent probability or improbability of a particular construction having been intended. TERMS OF AUTHORIZATION CONSTRUED AS MANDATORY 153. Where a statute provides for the doing of some act which is required by justice or public duty, or where it invests a public body, m,unicipality, or ofEcer with power and authority to take some ac- tion which concerns the public interests or the rights of individuals, though the language of tl.j statute be merely permissive in form, yet it will be construed as mandatory, and the execution of the power may be insisted upon as a duty.** «» Rex V. Barlow, 2 Salt. 609 ; King v. Inhabitants of Derby, Skin. 370 ; Rock Island County v. United States ex rel. State Bank, 4 Wall. 435, 18 L. Ed. 419; City of Galena v. Amy, 5 Wall. 705, 18 L. Ed. 560 ; Ralston v. Crittenden (C. C.) 13 Fed. 508 ; People v. Supervisors of Otsego County, 51 N. Y. 401; Phelps v. Hawley, 52 N. Y. 23; Mayor of City of New York v. Furze, 3 Hill (N. Y.) 612; People v. Supervisors of New York, 11 Abb. Prac. (N. Y.) 114; Inhabitants of Veazle v. Inhabitants of China, 50 Me. 518 ; Inhabitants of Milf ord v. Inhabitants of Orono, 50 Me. 529; Wendel v. Durbin, 26 Wis. 390; Kellogg V. Page, 44 Vt. 356, 8 Am. Rep. 383 ; Jones v. State ex rel. Board of Public Instruction, 17 Fla. 411 ; People ex rel. Brokaw v. Commissioners of Highways, 130 111. 482, 22 N. E. 596, 6 L. R. A. 161; State ex rel. Jones v. Laughlin, 73 Mo. 443; Columbus, S. & O. R. Co. V. Mowatt, 35 Ohio St. 284 ; Hayes v. L,os Angeles County, 99 Cal. 74, 33 Pac. 766; Havemeyer v. Superior Court of San Fran- cisco, 84 Cal. 327, 24 Pac. 121, 10 L. R. A. 627, 18 Am. St. Rep. 192; McLeod V. Scott, 21 Or. 94, 26 Pac. 1061 ; Bansemer v. Mace, 18 Ind. 27, 81 Am. Dec. 344; Provisional Municipality of Pensacola v. Leh- man, 57 Fed. 324, 6 C. G. A. 349 ; Blair v. Murphree, 81 Ala. 454, 2 § 153) TERMS CONSTRUED AS MANDATORT 541 The foregoing rule is applicable to all sorts of public of' ficers, boards, and commissions, and generally also to the courts of justice. The extent and variety of the cases in which it has been invoked may be judged from the deci- sions cited. Among its most important applications are those which concern the chartered or special statutory pow- ers and duties of municipalities. It is a well-settled prin- ciple that when a statute confers a power on a municipal corporation which is to be exercised for the public good, the exercise of the power is not merely discretionary, but must be understood as commanded and required; and in such case the words "power and authority" will be con- strued as meaning "duty and obligation." °° Thus a pro- vision in the charter of a city that the mayor 'and council "shall have full power and authority" to enact ordinances necessary to preserve the health of the city means that it shall be the duty and obligation of the city to enact such laws, and confers a power to be exercised for the public good; and the exercise of it is not merely discretionary. South. 18; In re McCort, 52 Kan. 18, 34 Pac. 456; Furbish v: Ken- nebec Ctounty Ckjm'rs, 93 Me. 117, 44 Atl. 364 ; Blate v. Portsmouth & C. E. Co., 39 N. H. 435; Bean, v. Simmons, 9 Grat. (Va.) 389; Stoeckle v. Lewis (Del.) 38 Atl. 1059 ; Johnston v. Pate, 95 N. C. 68 ; Kemble v. MePhaill, 128 Cal. 444, 60 Pac. 1092 ; Winsor Coal Co. v. Chicago & A. E. Co. (C. C.) 52 Fed. 716 ; Traders' Milt. Life Ins. Co. V. Humphrey, 109 111. App. 246; Gray v. State ex rel, Coghlen, 72 Ind. 567; State ex rel. Vernon County v. King, 136 Mo. 309, 36 S. W. 681; State v. Barry, 14 N. D. 316, 103 N. W. 637; Jordan v. Davis, 10 Okl. 32^, 61 Pac. 1063 ; Whitley v. State, 134 Ga. 758, 68 S. E. 716; Queeny v. Higgins, 136 Iowa, 573, 114 N. W. 51; Binder V. Langhorst, 234 111. 583, 85 N. E. 400 ; State ex rel. Nicomen Boom Co. V. North Shore Boom & Driving Co., 55 Wash. 1, 103 Pac. 426 ; McConnell v. Allen, 120 App. Div. 548, 105 N. Y. Supp. 16 ; State ex rel. Oliver v. Grubb, 85 Ind. 213 ; Hagadorn v. Eaux, 72 N. Y. 583 ; Vason V. City of Augusta, 38 Ga. 542 ; North Bloomfleld Gravel Min. Co. V. United States, 88 Fed. 664, 32 C. C. A. 84 ; Davenport v. Cald- well, 10 S. C. 317. See "Statutes," Deo. Dig. {Key No.) § 227; Cent. Dig. §§ 308, 309. B» Mayor, etc., of Baltimore v. Marriott, 9 Md. 160, 66 Am. Dec. 326 ; Magaha v. Hagerstown, 95 Md. 62, 51 Atl. 832, 93 Am. St. Kep. 317; Eankin v. BucUman, 9 Or. 253. See "Municipal Corporations," Dec. Dig. (Key No.) §§ 56-63; Cent. Dig. §§ X48-154. 542 MANDATpllY AND DJRECTPEy PEOVISipNS (Oil. 13 but imperative."* A statute by which municipal corpora'- tions are "authorized and empowered" to provide fpr th« support of indigent persons within their limits is manda- tory, and does not leave it in their discretion to neglect making provision for such relief."^ Statutes which author- ize the authorities of municipal corporations to make pub- lic improvements, as to open and repair streets, remove ob- structions from highways, build or maintain public bridges, construct sewers, and the like, are to be construed as . man- datory, although they only purport to grant permissioii or authority, since the public have an interest in such mat- ters, and the grant of authority is therefore equivalent to the imposition of a duty.°^ But this rule must not be pushed so iir as to deprive municipal officers of a discretion which the legislature plainly meant to intrust to them; and where th"e matter is not so much a public duty as a question of expediency, which can best be determined by the municipal officers for themselves, words of mere per- mission will not be taken in an imperative sense.'* Where a statute directs the officers of municipal corporations to invite bids for the construction of public works or improve- ments, and directs that they "may" contract with the lowest responsible bidder, it is not permissive, but mandatory, be- 51 Flyan v. Canton Co. of Baltimore, 40 Md. 312, 17 Am. Rep. 60S. See "Health," Dec. Dig. {Key No.) § 20; Gent. Dig. § 24; "Municipal Corporations" Dec. Dig. {Key No.) §§ 589, 597; Cent. Dig. §§ 1S08, 1319, 1325, 1354. 6 2 Inhabitants of Veazie v. Inhabitants of China, 50 Me. 518. See "Paupers," Dec. Dig. {Key No.) §§ 2, 3; Cent. Dig.^%% 9, 10. 6 3 Phelps V. Hawley, 52 N. Y. 23 ; Peotone & Manteno Union Drain- age Dist. No. 1 V. Adams, 163 111. 428, 45 N. E. 266; Hlnes v. City of Lockport, 6Q Barb. (N. T.) 378 ; Brokaw v. Commissioners of High- ways of Bloomington Tp., 130 111. 482, 22 N. E. 596, 6 L. R. A. 161; Mayor, etc., of City of New York v. Furze, 3 Hill (N. Y.) 612 ; Central Vermont R. Co. v. Royalton, 58 Vt. 234, 4 Atl. 868 ; People v. Com- mon Council of City of Brooklyn, 22 Barb. (N. Y.) 404; Doane v. City of Omaha, 58 Neb. 815, 80 N. W. 54. See "Municipal Corpora- tions," Deo. Dig. {Key No.) §§ 265, 266; Cent. Dig. §§ ni-715. 64 El Paso Gas, Electric Light & Power Co. v. City of El Paso, 22 Tex. Civ. App. 309, 54 S. W. 798 ; People ex rel. Chiperfield v. Sani- tary Dist. of Chicago, 184 111. 597, 56 N. B. 953. ;See "Municipal Cor- porations," Dec. Dig. {Key No.) §§ 265, 266; Cent. Dig. §§ 711-715. § 154) TERMS CONSTRDED AS DIEHCTORT 543 cause what they are required to do is for the benefit of the public, the object being to invite competition and prevent favoritism and fraud in awarding such contracts. "^ On the same principle, where a statute provides that a certain court "may" appoint three commissioners to settle a disputed boundary line between towns, the word "may" is equivalent to "shall," because the public interest is in- volved; and hence, in such a case, the towns in question cannot agree that only two commissioners may be ap- pointed."* IMPERATIVE TERMS CONSTRUED AS DIREC- TORY 154. The words "shall" and "must," as used in statutes, are generally imperative or mandatory ; but they may be construed as merely directory, in order to carry out the legislative intention, effect justice, or save the validity of proceedings, where no right or bene- fit to any one depends on their being taken in the imperative sense, and where no public or private right is impaired by their interpretation in the other sense. The occasions when it is proper for the courts to, soften the imperative force of such words as "shall" and "must," arid read them as merely directory, are chiefly of three sorts : First, where a consideration of the entire statute and of its objects and purposes shows that the legislature can- not reasonably be supposed to have intended a strict and positive command ; second, where the precept is addressed to the courts, and purports to control and command them 66 McBrlan v. City of Grand Rapids, 56 Mich. 95, 22 N. W. 206 ; People ex rel. Putnam t. Buffalo County Com'rs, 4 Neb; 150 ; Follmer V. Nuckolls County Com'rs, 6 Neb. 204. See "Municipal Corpora- tions," Dec. Dig. (Key No.) §§ 327, 336; Cent. Dig. §§ 850, 862. 6 B Inhabitants of Monmouth v. Inhabitants of Leeds, 76 Me. 28. See "Boundaries," Dec. Dig. (Key No.) §§ 51, 52; Cent. Dig. §§ 252- S6S. 544 MANDATORY AND DIRECTORY PROyiSIONS (Oh. 13 in respect to some matter which is properly the subject of judicial discretion ; " and, third, where action taken, rights acquired, or proceedings had under the statute must be adjudged void for want of compliance with its terms if these words ^.re to be read in their strict sense, but may be sustained if they are construed as directory only. In all of these cases, if no public or private advantage is lost, right destroyed, or benefit sacrificed by the interpretation of these words in a merely permissive or directory sense, but, on the contrary, the cause of justice is promoted there- by, it is propei- for the courts so to construe them/* But with respect to the duties of executive and adminis- trative officers, these words can be construed as directory only in so far as they may relate to the manner or form of doing the thing prescribed. As to the substance of the enactment — whether or not the action prescribed shall be taken — the words "shall" and "must" are imperative, and exclude the idea of any discretion in the officer as to whether the duty imposed shall be performed or not.°° B7 See infra, p. 553. E8 Cairo & F. R. Co. v. Hecht, 95 U. S. 170, 24 L. Ed. 423 ; Wheeler V. City of Chicago, 24 111. 105, 76 Am. Dec. 730 ; People ex rel. Chiper- field V. Chicago Sanitary Dist., 184 111. 597, 56 N. E. 953; City of Madison v. Daley (C. C.) 58 Fed. 753 ; First Nat. Bank of Helena v. Neill, 13 Mont. 377, 34 Pac. 180; West Wisconsin R. Co. v. Foley, 94 U. S. 100, 24 L. Ed. 71; Clemens Electrical Mfg. Co. v. Walton, 168 Mass. 304, 47 N. E. 102 ; Suburban' Light & Power Co. v. Alder- men of Boston, 153 Mass. 200, 26 N. E. 447, 10 L. R. A. 497 ; Brinkley V. Brinkley, 56 N. T. 192; People v. McAdam, 28 Hun (N. X.) 284; In re O'Hara, 40 Misc. Rep. 355, 82 N. Y. Supp. 293 ; Jenkins v. Put- nam, 106 N. Y. 272, 12 N. E. 613 ; In re Thurber's Estate, 162 N. Y. 244, 56 N. a 631 ; Granite Bituminous Pav. Co. v, McManus, 144 Mo. App. 593, 129 S. W. 448. See "Statutes," Dec. Dig. (Key No.) § 227/ Cent. Dig. §| 308, 309. 09 Attorney General v. Lock, 3 Atk. 164; Grant v. Mayor, etc., of City of Newark, 28 N. J. Law, 491; In re O'Rourke, 9 Misc. Rep. 564, 30 N. Y. Supp. 375; Ex parte Parrell, 36 Mont 254, 92 Pac. 785. iSee "Statutes," Dec. Dig. (Key No.) § 227.- Cent. Dig. S§ 308, 309. § 155) REGULATIONS OF TIME OF OFFICIAL ACTION 543 STATUTES REGULATING TIME OF OFFICIAL ACTION 155, When a statute specifies the time at or within which an act is to be done by a pubUc officer or body, it is generally held to be directory only as to the time, and not mandatory, unless time is of the es- sence of the thing to be done, or the language of the statute contains negative words, or shows that the designation of the time was intended as a limr itation of power, authority, or right."" . 60 "Where there is no substantial reason why' the thing to be done might not as well be done after the time prescribed as before, no presumption that by allowing it to be so done it may work an injury or wrong, nothing in the act itself, or in other acts relating to the same subject-matter, indi- cating that the legislature did not intend that it should rather be done after the time prescribed than not to^be done at all, there the courts assume that the intent was that, if not done within the time prescribed, it might be done afterwards ; but when any of these reasons intervene, there the limit is established." °^ "In general, where a statute imposes upon a public oificer the duty of performing some act relating to the interests of the public, and fixes a time for the doing of such act, the requirement as to time is to 60 Rex V. Loxdale, 1 Burr. 445 ; Caldow v. Pixell, L. R. 2 C. P. Div. 562 ; Juliand v. Ratbbone, 39 N. X. 369 ; United States Trust Co. of New York v. United States Fire Ins. Co., 18 N. T. 199 ; People v. Al- len, 6 Wend. (N. X.) 486 ; St. Louis County Court v. Sparks, 10 Mo. 117, 45 Am. Dec. 355; People ex rel. Board of Sup'rs of Solano County V. Board of Sup'rs of Lake County, 33 Cal. 487; Hart v. Plum, 14 Cal. 148; Walker v. Chapman, 22 Ala. 116; Ryan v. Van- landingham, 7 Ind. 416 ; Pond t. Negus, 3 Mass. 230, 3 Am. Dec. 131 ; Wilson V. Stg.te Bank of Alabama, 3 La. Ann. 196 ; Bell v. Taylor, 37 La. Ann. 56; Swenson v. McLaren, 2 Tex. Civ. App. 331, 21 S. W. 800. See "Statutes," Deo. Dig. (Key No.) § 227; Cent. Dig. §§ 308, 309. 81 State ex rel. Oothren v. Lean, 9 Wis. 279, 292. See "Statutes," Deo. Dig. {Key No.) § 227; Cent. Dig. §§ SOS, 309. Black Int.L. — 35 546 MANDATOET AND DIRECTORY PROVISIONS (Ch. 13 be regarded as directory, and not a limitation of the exer- cise of the power, unless it contains some negative words, denying the exercise of the power after the time named, or from the character of the act to be performed, the manner of its performance, ' or its effect upon public interests or private rights, it must be presumed that the legislature had in contemplation that the act had better not be per- formed at all than be performed at any other time than that named." «« ' For example, where the statute requires a public officer to take an official oath within fifteen days after his appoint- ment, this is directory as to the time, and it will be suffi- cient if he qualifies before any official act .is done by him.'' So, also, statutes fixing the time for public officers to file their official bonds are merely directory ; they niay file such bonds at any time before entering upon the duties of their office."* Again, a statutory provision that grand jurors "shall be summoned at least five days before the first day of the court" at which their attendance is required, is merely directory to the sheriff and for the convenience of the jurors. Probably a juror not so summoned might re- fuse to attend, but the requirement is not essential to be observed in order to constitute a legal grand jury.'^ So where a statute under which a county issued bonds, a series of which fell due annually for a period of ten years, pro- 62 state V. Smith, 67 Me. 328. See, also, Magee v. Commonwealtli, to Use of City of Pittsburgh, 46 Pa. 358. See "Statutes," Deo. Dig. (Key No.) § 227; Cent. Dig. §§ 308, 309. 83 HiQwland v. Luce, 16 Johns. (N. Y.) 135. But the authorities do not sanction the extension of this rule to similar provisions incorpo- rated in the constitution of the state. A constitutional direction that all officers shall qualify and enter upon the discharge of the duties of their offices within fifteen days after they shall have been notified of their election is mandatory, and not directory. State v. Johnson, 26 Ark. 281. See "Offloers," Dec. Dig. (Key No.) §§ S5, S6; Cent. Dig. §§ 49, 51, 53. 6* McRoberts v. Winant, 15 Abb. Prac. N. S. (N. ¥.) 210. See "Of- ficers," Deo. Dig. (Key No.) § 37; Cent. Dig. §§ 54-59. 86 Johnson v. State, 33 Miss. 363; State v. Pitts, 58 Mo. 556; State V. Smith, 67 Me. 328. See "Grand Jury," Dec. Dig. (Key No.) §3; Gent. Dig. §§ Sl-26. § 155) REGULATIONS OF TIME OF OFFICIAL ACTION 547 yided that "as soon as" certain prescribed conditions were complied with, "and annually thereafter for a period of ten years," the county commissioners should levy and assess a tax sufficient to pay the series falling due each year, it was held that the failure to assess and collect the tax within the time prescribed did not thereafter limit or destroy the power to levy and collect the tax, but that the power existed so long as the legal obligation to pay the debt subsisted/' Where an act provided that "the commissioners shall re- turn the assessment roll within forty days," but no public or private rights required that the word "shall" should be con- strued in an imperative -sense, it was held to be. merely di- rectory as to the time.®^ Where the charter of a niunicipal corporation enacts that the council, on or before the first day of March in each and every year, shall direct and au- thorize the city solicitor to proceed, to gell lands for delin- quent taxes, this is so far directory in fixing the time that valid Sales may be made afterwards. °* Again, where the statute makes provision for the issuing of a warrant against a defaulting tax collector and the sureties on his official bond, and specifies the tiitie within which such warrant shall issue, the sureties are not discharged from liability by the omission of the eoUnty treasurer to issue the warrant within the designated time. For since the provision as to time is for the benefit of the public, it is directory only, in that respect, as regards the defaulter; and if directory as to him, it is so also with respect, to his sureties and others who may be incidentally affected by the warrant or the proceedings on it.'" On the same principle, a statute re- 66 Commissioners' Court of Limestone County v. Rather, 48 Ala. 433. And see State ex rel. Anderson t. Harris, 17 Ohio St. 608; Duncan v. Cox, 41 Ind. App. 61, 82 N. E. 125. See "Statutes," Dec. Dig. (Key No.) §§ 227, 245; Cent. Dig. §§ SOS, 309, .326. 67 Wheeler v. City of Chicago, 24 111. 105, 76 Am. Dee. 736. Sefe "Statutes," Deo. Dig. (Key No.) § 227; Cent. Dig. §§ 308, 309. Ss Hugg V. City Council of Camden, 39 N. J. Law, 620. See "Mu- nicipal Corporations," Dec. Dig. (Key No.) § 9SG; Cent. Dig. §§ 2^24- 2133. s» Looney v. Hughes, 30 Barb. (N. Y.) 605. See "Taxation," Cent. Dig. § nil. 548 MANDATORY AND DIEECTOBT PROVISIONS , (Ch. 13 quiring a judge of an inferior court who tries a cause with- out a jury to give his decision on or before the first day of the term succeeding that in which the cause was submitted, is only directory.''* And so, where the officers of a munici- pal corporation are directed to be elected annually, the words are directory, and do not take away the power inci- dent to the corporatiofi to elect afterwards, when the an- nual day has, by some means, free from design or fraud, been passed by.^^ Again, where state officers are required by statute to advertise for sealed proposals for supplies or work to be done for the state, this direction is imperative. But if the act also requires that the proposals shall be de- posited in a certain office on or before a designated day, this is not to be\Construed as a limitation upon the power of the officers in receiving and accepting such proposals.'^ For similar reasons, it is held that a provision in a statute, that the secretary of state shall cause it to be published "three months," etc., is only directory, and consequently his neglect to do so will not affect the operation of the stat- ute." But-the specification of time in a statute may be impera- tive, and may operate as a limitation upon the power of thosri who are to act under it. This will depend upon the intentfon of the legislature ; and an intention to make time of the essence of the thing to be done may be disclosed ei- ther by the express language of the law or by necessary- im- plications from its terms. Thus, where a statute directs 10 Rawson v. Parsons, 6 Mich. 401. "I( Imposes a duty upon the judge, but as the parties have no control over his action, It would be a harsh construction which should deprive them of the fruits ot the litigation because the judge fails to decide by a particular day." Id. See •'Trial," Deo. Dig. (Key No.) § 390; Cent. Dig. § 913. »i People ex rel. Young v. Trustees of Town of Fairbury, 51 HI. 149. See "Statutes," Dec. Dig. (Key No.) § 227; Cent. Dig. §§ SOS, 309. '2 Free Press Ass'n v. Nichols, 45 Vt. 7. But compare Webster v. French, 12 111. 302. See "States," Dec. Dig. (Key No.) § 98; Cent. Dig. § 95. 73 State v. Click, 2 Ala. 26. See "States," Deo. Big;. (Key No.) S 98; Cent. Dig. ^95. § 156) KEOULATIONS OP OFFICIAI/ ACTION AS TO FORM 549 the doing of a thing, but expressly prohibits its performance until another thing shall have been done, the prohibition cannot be disregarded or construed as merely directory.'^ Again, where a duty is required by statute to be performed on a certain day, and the object contemplated by the legis-? lature cannot otherwise be carried into effect, the time pre- scribed must be considered as a mandatory and irtiperative requirement,'" And so, a provision of a city charter which prohibits the passing or adoption of certain kinds of resolu-' tions by the common council, until two days after the pub- lication thereof in all the newspapers employed by the cor- f>oration, is not merely directory. It imposes a liniitation upon the power of the council, and is therefore to be re- garded as mandatory; and an ordinance or resolution not so published is void, and action taken under it is invalid.''* And where time is fixed in a statute for the purpose of giv- ing a hearing to a party concerned and whose rights may be affected by action taken under it, or for some other pur- pose important to him, it cannot generally be construed as directory in this respect" STATUTES REGULATING OFFICIAL ACTION IN MATTERS OF FORM 156. Statutory provisions regulating official action in mat- ters of form are to be regarded as merely directory, where they are designed only to promote order and convenience in the discharge of the public business, and where the public interests or private rights, do not depend upon their strict observance. •t* Stayton v. Hulings, 7 Ind. 144. See "Statutes," Dec. Dig. (Keu No.) § 227; Cent. Dig. §§ 308, 309. 7 5 Colt V. Eves, 12 Conn. 243. See "Statutes," Deo. Dig. (Key Mo.) § 227; Cent. Dig. §§ S08, 30.9. 7 6 In re Petition of Douglass, 46 N. T. 42. See "Uvnidval Corporoi- tions," Deo. Dig. (Key No.) § 110; Cent. Dig. § 239. ti Fay V. Wood, 65 Mieh. 390, 32 N. W.'614. See "Statutes," Dec. Dig. {Key No,) § 227; Cent. Dig. §§ 308, 309. 550 MANDATORY AND DIKECTORT PROVISIONS (Oh. 13 Irregularities in official action, consisting inthe neg-lect or lack of strict compliance with statutory directions, should not be allowed to vitiate the proceedings taken under a stat- ute, when the objects and ends of the statute have been sub- stantially accomplished, and neither the public nor private persons are injured by the course of proceedings.^* For instance, a statute required that the official bonds of certain officers should be made to the people as obligee. Btit in- asmuch as the obligee named in such a bond has no active duty to perform, and no voice in taking or approving the bond or in bringing suit upon it, and there is no importance in the people being named as obligee rather than the county, it being important only that some party shall be named as promisee in whose name suits may be brought, the provi- sion for naming the people was considered as merely direct- ory; so that a bond, otherwise good and sufficient, would not be void simply because it was made to the county in- stead of the people.'" So, also, it has been held that a statute which requires sales of land on execution, where the property consists of known lots of parcels, to be made sep- arately and not in gross, is direttory. A sale made in gross would be irregular, and might be set aside at the instance of the party aggrieved, but would not be void.'" And a statute requiring a sheriff, after selling land on execution, to file a certificate of sale in the clerk's office is likewise di- rectory only. His omission to comply will not invalidate the sale nor be regarded as taking away the right to issue a deed in pursuance of the sale.*^ A statutory provision 78 People ex rel. Johnson v. Earl, 42 Colo. 238, 94 Pac. 294; Hur- ford V. City of Omaha, 4 Neb. 336 ; White v. Crump, 19 W. Va. 583 ; Granite Bituminous Pav. Co. v. McManus, 144 Mo. App. 593, 129 S. W. 448 ; Reid v. Southeru Development Co., 52 Fla. 595, 42 South. 206 ; Ferris Press Brick Co. v. Hawkins (Tex. Civ. App.) 116 S. W. 80. See "Statutes," Dec. Dig. (Key No.) § 227; Cent. Dig. §§ 308, 309. 7» Bay County v. Brock, 44 Mich. 45, 6 N. W. 101. See "Counties," Deo. Dig. (Key No.) § Gi; Gent. Dig. §§ 91-96. 80 Cunningham v. Oassidy, 17 N. Y. 276. But compare Hemmer v. Hustace, 51 Hun, 457, 3 N. Y. Supp. 850. See "Execution," Deo. Dig. (Key No.) § 224; Cent. Dig. §§ 636-639. 81 Jackson ex dem. Hooker v. Young, 5 Cow. (N. Y.) 269; 15 Am. Dec. 473. See "Execution," Dec. Dig. (Key No.) § 241; Cent Dig § 668. § 156) KEGULATIONS OF OFFICIAL ACTION AS TO FORM 551 that, at the meeting of the board of supervisors of a county, the minutes of the board shall be read over and signed by the president is merely directory ; it should be scrupulously observed, but yet the omission to do so will not affect the validity of the proceedings of the board.*^ So, also, a lavi^, requiring the minutes of a court to be signed by the judge is merely directory ; and the minutes are valid, though not' . so signed, unless it is shown that the court rejected them.'^ Again, an act authorizing a town to issue bonds declared that they should be signed by the chairman of the town board of supervisors and the town clerk, "and have annexed- to them the official certificate of the clerk of the county board of supervisors, under his official seal, that they are such officers and that their signatures are genuine." The act did not provide who should obtain such certificate, nor when it should be made, nor what should be its effect, nor that it should be annexed to the bonds before they were issued, nor that without it they should be invalid ; nor did it contain any language raising a presumption that the leg-: islature intended that the annexing of such certificate should precede the delivery of the bonds or be essential to their validity. It was accordingly held that the provision as to such certificate was designed merely to facilitate the nego- tiation of the bonds, and it was not essential to their valid execution and issue that such certificate should be annex- ed.'* On similar principles, it is held that a clause in the charter of a corporation providing that its stock shall be transferable only on its books is for the security of the corporation, and does not prevent the title to stock from passing, as between vendor and vendee, by any other mode of transfer.*" Again, a statute requiring the court to limit 82 Arthur v. Adam, 49 Miss. 404. See "Counties," Dec. Dig. (Key No.) § 53; Cent. Dig. §§ 66-70. 83 Justices- of Inferior Court of Talbot County v. House, 20 6a. 328. See "Courts," Dec. Dig. (Key No.) § 113; Cent. Dig. §§ 365, 368. siLackawana Iron & Coal Co. v. Town of Little "Wolf, 38 Wis. 152. See "Towns," Deo. Dig. (Key No.) § 52; Cent. Dig. §§ 90-91 SB Duke V. Cahawba Nav. Co., 10 Ala. 82, 44 Am. Dec. 472. See •'Corporations," Deo. Dig. (Key No.) §§ 128-136; Cent. Dig. §§ 479^ 492, 513, 5S8, 538. 552 MANDATOKT AND DIRBCTOEY PROVISIONS (Oh. 13 the time of sentence of a convict, so that his imprisonment in the state prison shall expire some time between March and November, is merely directory, and a failure to comply with such requirement does not render the sentence void." So the statute of Vermont, (jroviding that all warnings for school district meetings shall, before the same are posted, be recorded by the clerk, is regarded as directory only, so that a failure to record the warning will not render a meet- ing illegal.'' Even in the case of provisions found in the constitution of the state, instead of acts of the legislature, a similar rule obtains, and it is held that mere directions as to matters of form, not involving the public interests or private rights, may be considered as not imperative. Thus, where the constitution provides that the style of all laws of the state shall be "Be it enacted," etc., this requirement is not man- datory; an act regularly passed by the legislature may be Valid though this clavfse is omitted.'* And it is said that a clause in the state constitution requiring the Supreme Court to "decide every point fairly arising upon the record and give its reasons therefor in writing," is merely direc- tory.'" But, as we have pointed out in an earlier chapter, the courts should proceed with great hesitation and diffi- dence in assuming to dispense with the imperative force of any provision incorporated in so solemn and enduring an instrument as the constitution.*" The language, or the purport, of a statute may show that it was the legislative intention that its requirements, even in matters of form, should be exactly followed; and of course where this is the case, the rule under consideration 88 Miller v. Finkle, 1 Parker, Cr. R. (N. Y.) 374. See "Criminal LOM," Gent. Dig. § 8317. 8 7 Adams v. Sleeper, 64 Vt. 544, 24 Ati. 990. See "Schools and School Districts," Deo. Dig. (Key No.) § 50; Cent. Dig. §§ I1S-1Z5. 88 City of Cape Girardeau v. Riley, 52 Mo. 424, 14 Am. Rep. 427; McPherson v. Leonard, 29 Md. 377 ; Swann v. Buck, 40 Miss. 268. Bee "Statutes," Dec. Dig. (Key No.) § 40; Cent. Dig. § U- 8 9 Henry v. Davis, 13 W. Va. 230. See "Statutes," Deo. Dig. (Key Nv.) § 227; Cent. Dig. §§ SOS, S09; "Juclgment," Cent. Dig. § 11S6. »o See ante, p. 27. g§ 157-^158) JUDICIAL DUTIES ANP PROCEEDINGS 553 has no application. For instance, where a statute provides that orders of a certain kind may be made by two of a board of three commissioners, provided it appears in the order that they all met and deliberated on the subject-mat- ter or were duly notified to attend a meeting for the purpose of deliberating thereon, an order made by two of the com- missioners, which does not show the above jurisdictional facts, will have no validity.'^ Especially in carrying out proceedings conducted under the power of taxation or th^t of eminent domain, which are in their nature summary and liable . to. abuse, to the- prejudice of the citizen, the courts are not prone to dispense with any requirements which may possibly be for the benefit or protection of the individual, "In carrying out laws for condemning private property tq public uses, it has always been held necessary to strictly observe every material requirement, and the courts have been equally constant in irisisting that the proceedings should affirmatively show upon their face a substantial ad- herence to the course prescribed by the legislature," " JUDICIAL DUTIES AND PROCEEDINGS 157. Statutes imposing duties on the courts, in respect to the conduct, course, or determination of proceed- ings before them, will be construed as directory only* where the matter to which they relate is a proper subject for the exercise of judicial discre- tion, notwithstanding the use of imperative terms. 158. But where a particular individual has an absolute and unqualified right to the benefit of the statute, the action directed to be taken in his behalf not being a subject for the exercise of judicial discretion, the statute will be construed as mandatory, even , though its terms, literally interpreted, would be merely permissive. »i Fitch V. Com'rs of Highways of Kirkland, 22 Wend. (N. T.) 1S2. See "Taxation," Dec. Dig. (Key No.) § 2$7j Cent. Dig. §§ S08, 309, »2Kroop V. Forman,'31 Mich. 144. See "Eminent Domain" Deo. Dig. (Key No.) § i67; Cent. Dig. § 452. 554 MANDATORY AND DIRECTORY PROVISIONS (Ch. 13 169. Statutes regulating the inception or conduct of judicial proceedings, but not imposing a specific duty on the court or judge, will be construed as mandatory, if either the public or a private person has a fixed right to the benefit of the statute ; otherwise, their terms will be read in their natural and ordinary sense. Statutory Directions to Courts The word "shall," when used by the legislature in the way of imposing a duty on the courts or requiring them to take action, is usually held to import no more than a grant of authority, and is read as equivalent to "may." °^ The reason is that the legislative branch of th« government has no power to lay commands upon the judiciary in respect to any matter involving judgment or the exercise of judicial discretion, nor in any matter not of a merely ministerial or routine character. "The legislature is as powerless to coerce judicial action as the courts are to issue mandamus against the Governor or the legislature, each being inde- pendent of each of the others within their respective spheres of duty." »* Matters Involving Exercise of Judicial Discretion A statutory mandate addressed to a court or judge, no matter how positive and imperative may be its terms, will be construed as merely granting authority or jurisdiction, when the subject to which it relates is one upon which it is proper and usual for courts to exercise their judgment and their judicial discretion, and where no party has a fixed and absolute right to demand that action under the statute shall be taken in his behalf.'" Thus a statutory pro- 93 Becker v. Lebanon & M. St. Ry. Ck)'., 188 r„. 484, 41 Atl. 612; Beasley v. People, 89 111. 571 ; Borkheim v. Firemen's Fund Ins. Co., 38 Cal. 505 ; Sherrod & Co. v. Hughes, 110 Tenn. 311, 75 S. W. 717. See "Statutes," Dec Dig. (Key No.) § 227; Cent. Dig. §§ 308, 309. »* People ex rel. American Ice Co. v. Nussbaum, 32 Misc. Rep. 1, es N. Y. Supp. 129. See "Statutes," Dec. Dig. (Key No.) § 227; Cent. Dig. §§ 308, 309. »5 People, to Use of McKee, v. A'bbott, 105 111. 588 ; Cavanaugh V. Scott, 84 Wis. 93, 54 N. W. 328; Sifford v. Beaty, 12 Ohio St. ■',«S ■ §§ 157-159) ' JUDICIAL DUTIES AND PROCEEDINGS 555 vision that, in an action founded on a nuisance, the nui- sance "may be enjoined and abated," is directory only, so that, on recovering damages for a permanent nuisance; the plaintiff is not entitled as a matter of right to an in- junction or an order of abatement."" So in a statute pro- viding that, where corporations are acting outside of their franchises, the court "shall" by injunction restrain such injurious acts, the word is not mandatory but is a grant of authority.'^ A statute authorizing trust companies to act as executors or administrators, and providing that the surrogate may, on the application of a party in interest, grant letters of administration to such a company, does not deprive him of discretion in the matter nor imperatively require him to make such an appointment when requested."* So, where the law provides that the probate court "may" remove an executor for certain specified causes, it is to be understood as granting a .discretionary power of removal which is not compulsory on the court, even though one of the specified causes exists."" So a statute providing that if an executor or administrator shall neglect or fail to return an inventory at the proper time, the court shall revoke his letters, is not mandatory, but vests a discretion in the court as to whether or not the revocation shall be made in the particular case.^"" Statutes Granting Spbstantive Rights to Litigants Where the statute directs certain action to be taken or relief granted in proceedings in the courts, on the occur- 189; Caldwell v. State, 34 Ga. 10; The Shelbourne (D. C.) 30 Fed. 510 ; In re Rutledge, 162 N. T. 31, 56 N. E. 511, 47 L. R. A. 721 ; Smith V. Harrington, 3 Wyo. 503, 27 Pac. 803. See "Statutes," Dec. Dig. (Key No.) § 227; Cent. Dig. §§ SOS, 309. 96 Downing v. City of Oskaloosa, 86 Iowa, 352, 53 N. W. 256. See "Nuisance," Dec. Dig. (Key No.) § 57; Cent. Dig. § 133. 97 Becker v. Lebanon & M. St. Ry. Ck)., 188 Pa. 484, 41 Atl. 612. See "Injunction," Dec. Dig. (Key No.) §§ 67, 68; Cent. Dig. § 135. 9 8 In re Goddard's Estate, 94 N. T. 544. See "Executors and Ad- ministrators," Cent. Dig. § iS. 9 9 Cutler V. Howard, 9 Wis. 309. See "Executors and Administra- tors," Dec. Dig. (Key No.) § 35; Cent. Dig. §§ 227-262. 100 Clancy v. McElroy, 30 Wash. 567, 70 Pac. 1095. See "Execu- tors and Administrators," Dec. Dig. (Key No.) § 32; Cent. Dig. §§ 191-212. ^56 MANDATORS AND DIRECTORY PROVISIONS (Ch. 13 rence of stated facts, and intends that a party entitled to the benefit of the statute shall havfe an absolute right there- to, not subject to the discretion of the court, the word "shall" is imperative, and when the facts occur, the court cannot refuse to take the prescribed action or grant the specified relief. This is true, for example, of a statute pro- viding that costs "shall be awarded" in certain circum- stances,*"' that a new trial shall be granted in an action of ejectment,'"^ or that the court shall vacate a judgmeht taken against a party through his mistake, inadvertence, surprise, or excusable neglect.*"* The rule is the same, though the words of the statute are permissive only. Thus a party has an absolute right to costs, when his case comes within the terms of the statute, although it is only provided that they "may" be awarded to him,*"* except where the context shows that it was not the intention of the legisla- ture to grant such an unqualified right, which is the case, for example, where the law directs that the court may "in its discretion" award costs.*"* So, also, in a statute providing that the court may grant a change of venue, or order the removal of the cause to another court for trial, 'when it appears that a fair and impartial trial cannot be had at the place where the suit was brpught, the word "may" will be read as equivalent to "must." On a proper application and showing of facts, the party is absolutely 101 Wood V. Brown, 6 Daly (N. Y.) 428; First Nat. Bank of Helena T. NelU, 13 Mont. 377, 34 Pac 180. See "Costs," Dsc. Dig. {Key No.) §§ 4, 1U15; Cent. Dig. §§ 2, S, 20-25, 109, 110, S31. 102 Rogers v. Wing, 5 How. Prac. (N. Y.) 50. See "Ejectment," Pec. Dig. (Key No.) § 112; Cent. Dig. §§ S46-&51. 103 Smith V. Noe, 30 Ind. 117; Haseltine v. Simpson, 61 Wis. 427, 21 N. W. 299; Hull v. Vinlng, 17 Wash. 352, 49 Pac. 537; Pope v. Pollock, 1 O. C. D. 193 ; Johnston v. Pate, 95 N. O. 68. See "Judg- ment," Deo. Dig. {Key No.) §§ 3U, S62-S71; Cent. Dig. §§ 67S, 705- 711. 104 Carter v. Barnum, 24 Misc. Rep. 220, 53 N. Y. Supp. 539- Grantman v. Thrall, 31 How. Prac, new of it, and there was no fraud or improper motive for making the change, and no voter complains that he was deprived there- by of an opportunity to vote.^" So, where a statute reg- ulating the law of elections provides that the polls shall be kept open, on the day of the election, between certain hours, it is presumably the intention of the legislature that there should be no closing of the polls between those hours, and, on the other hand, that they should not be open after the hour limited. But this provision is so far directory that an election is not invalida,ted by the fact that the election officers opened the polls a short time before the hour fixed, or closed them a short time before the proper hour, or closed the polls for an hour in the middle of the day, if it is not shown that any fraud was practised or any substan- tial right violated, or that there was any obstruction or impediment to a full and fair expression of the will of the people.'"' But, on the other hand, a statute whiqh forbids the vote of any person to be received at any election within, the state, unless his name be on the registry made on a 161 Bowers v. Smith, 111 Mo. 45, 20 S. W. 101, 16 L. R. A. 754, 33 Am. St. Rep. 491. "It is a well recognized jirinciple of statutory con- struGtiou that eleetion laws are to be liberally construed when nec- essary to reach a substantially correct result ; and to that end their provisions will, to every reasonable extent, be treated as directory rather than mandatory." Duncan v. Shenk, i09 Ind. 26, 9 N. E. 69ted by Congress from the legislation of various states.'" From the application of the general rule above stated there is but a single and feeble dissent."* BRITISH STATUTES 178. A British statute adopted, in whole or in part, by an American legislature is presumed to have been adopted with knowledge of the settled judicial con- struction piit upon it by the courts in England, and the interpretation of its words, phrases, and pro- visions should be in accordance therewith. sion Co. V. Taliaferro, 20 Okl. 177, 93 Pac. 9&S ; Red River Nat. Bank V. De Berry, 47 Tex. Civ. App. 96, 105 S. W. 998 ; Hawkins v. United States, 3 Okl. Cr. 651, 108 Pac. 561. See "Statutes," Dec. Dig. {Key No.) § 226; Cent. Dig. § 307. 20 Act Cong. May 2, 1890, c. 182, § 31, 26 Stat. 94. 21 Act Cong. May 17, 1884, c. 53, § 7, 23 Stat. 24. But some parts of the Civil Code of Alaska, as it now stands, were adopted by Con- gress from other states; for example, section 257 from the laws of Texas. The rule of construction, however, is the same. The inter- pretation put upon each provision in the state of its origin follows it into Alaska. Fish v. Hemple, 2 Alaska, 175. See "Statutes," Deo. Dig. (Key No.) § 226; Cent. Dig. § 307. 22 Capital Traction Co. v. Hof, 174 U. S. 1, 19 Sup. Ot. 580, 43 L. Ed. 873; Willis v. Eastern Trust & Banking Co., 169 U. S. 295, 18 Sup. Ct. 347, 42 L. Ed. 752 ; Strasburger v. Dodge, 12 App. D. C. 37. See "Statutes," Dec. Dig. (Key No.) § 226; Cent. Dig. § 307. 28 Kohn V. McKinnon (D. C.) 90 Fed. 623. See "Statutes," Dec. Dig. (Key No.) § 226; Cent. Dig. § 307. 606 ADOPTED AND RE-ENACTED STATUTES (Gh. 16 On the same g-eneral principle set forth in the preceding sections, when Congress or a state legislature adopts a British statute (such, for example, as the statute of frauds), it is presumed to be adopted with reference to the settled construction put upon it by the English courts, and hence it should be interpreted in the same manner by our courts, whenever practicable, because that will accord with the pre- sumed intention of the legislature in adopting it.^* For ex- ample, in the third section of the "Interstate Commerce Act," Congress adopted the language of the English traffic act of 1854, in respect to "undue preferences." Hence it is to be presumed that it was intended also to adopt the con- struction given to these words by the English courts, and they are s.o construed.^" But here also, as in the case of a statute adopted from another state, the construction which is to be followed is that which was put upon the act before its adoption. In one of the cases. Chief Justice Marshall is reported to have said: "By adopting them [English statutes] they become our own as entirely as if they had been enacted by the legislature of the state. The received construction in England at the time they are ad- mitted to operate in this country, indeed, to the time of our separation from the British empire, may very properly be considered as accompanying the statutes themselves, and forming an integral part of them. But however we may re- spect subsequent decisions — and certainly they are entitled 2* Interstate Commerce Commission v. Baltimore & O. B, Co., 145 U. S. 263, 12 Sup. Ct. 844, 36 L. Ed. 699 ; Pennock v. Dialogue, 2 Pet. 1, 7 L. Ed. 327; Kirkpatrlck v. Gibson, 2 Brock. 388, Fed. Cas. No. 7,848; Kennedy's Heirs v. Kennedy's Heirs, 2 Ala. 571; Tyler v. . Tyler, 19 HI. 151 ; Adams v. Field, 21 Vt. 256 ; Marqueze v. Caldwell, 48 Miss. 23 ; Meaklngs v. Ochiltree, 5 Port. (Ala.) 395 ; McKlnnon v. McLean, 19 N. O. 79; Lavender v. Rosenheim, 110 Md. 150, 72 Atl. 669, 132 Am. St. Rep. 420; Jarvis v. Hitch, 161 Ind. 217, 67 N. R 1057 ; Norfolk & W. R. Co. v. Old Dominion Baggage Co., 99 Va. Ill, 37 S. E. 784, 50 L. R. A. 722. See "Statufes," Dec. Dig. (Key No.) § 226; Gent. Dig. § 307. 2 5 Act Fefb. 4, 1887, c. 104, 24 Stat. 380 (U. S. Comp. St. 1901, p. 3155) ; McDonald v. Hovey, 110 U. S. 619, 4 Sup. Ct. 142, 28 L. Ed. 269 ; Interstate Commerce Commission v. Baltimore & O. R. Co., 145 U. S. 2G3, 12 Sup. Ct. 844, 36 L. Ed. 699. See "Statutes," Dec. Dig. (Key No.) § 226; Gent. Dig. § S07. § 179) KE-ENACTED STATUTES 607 to great respect — ^we do not admit their absolute authority. If the English courts vary their construction of a statute which is common to the two countries, we do not hold our- selves bound to fluctuate with them." ''^ RE-ENACTED STATUTES 179. A statute literally or substantially re-enacting a prior statute after its words have received a judicial in- terpretation must be regarded as adopted with knowledge of such construction and with the inten- tion that it should thereafter be interpreted in the same way. Re-enacted Statutes. Where a statute has received a settled judicial construc- tion, and is afterwards re-enacted by the same legislative power, in the same terms, or in substantially the same lan- guage, for the same purpose and object, it will be presumed that the legislature intended that the re-enacted law should bear the same interpretation which was given to its origi- nal, and it will be construed accordingly, unless a contrary intention is very clearly shown. ^' So, also, when terms 26 Cathcart v. Robinson, 5 Pet. 264, 8 L. Ed. 120. See "Statutes," Dec. Dig. (Key No.) § 226; Gent. Dig. § 307. 27 The Abbotsford, 98 U. S. 440, 25 L. Ed. 168; Woolsey v. Cade, 54 Ala. 378, 25 Ajn. Rep. 711; Ex parte Mattbews, 52 Ala. 51; O'Byrnes v. State, 51 Ala. 25 ; Wood-Dickerson Supply Co. v. Cocci- ola, 153 Ala. 555, 45 South. 192; White v. State, 134 Ala. 197, 32 South. 320; Bamewall v. Murrell, 108 Ala. 366, 18 South. 831; Mc- Kenzie v. State, 11 Ark. 594 ; Harvey v. Travelers' Ins. Co., 18 Colo. 354, 32 Pac. 935 ; Hoxie v. New York, N. H. & H. R. Co., 82 Conn. 352, 73 Atl. 754 ; Wilmington City Ry. Co. v. People's Ry. Co. (Del. Ch.) 47 Atl. 245 ; McGann v. People, 194 111. 526, 62 N. E. 941 ; Smith V. Biesaida (Ind.) 90 N. E. 1009 ; Rupel v. Ohio Oil Co., 172 Ind. 300, 88 N. E. 508; Sopher v. State, 169 Ind. 177, 81 N. E. 913, 14 L. R. A, (N. S.) 172; Pavey t. Braddock, 170 Ind. 178, 84 N. B. 5; Mclntire V. State, 170 Ind. 163, 83 N. E. 1005; Marshall v. Matson, 171 Ind. 238, 86 N. E. 339 ; State v. Derry, 171 Ind. 18, 85 N. E. 765, 131 Am. St. Rep. 237 ; State v. Dorsey, 167 Ind. 199, 78 N. E. 843 ; Cronin v. Zimmermann, 169 Ind. 7S, 81 N. E. 1083 ; Monroe County Com'rs v„ C08 ADOPTED AND RE-ENACTED STATUTES (Cb. 16 or modes of - expression are employed in a new statute, which had acquired a definite meaning and application in a previous statute pn the same subject, or one analogous to it, they are generally supposed to be used in the same sense, and in settling the construction of the new statute, regard should be had to the known and established interpretation of the former."' Thus, in the federal bankruptcy act of 1841, it was provided that a discharge should not release debts which had been contracted by the bankrupt in a "fidu- ciary capacity." The same provision was repeated in the bankruptcy act of 1867, and it was held that these words were intended by Congress to bear, and should be con- strued by the courts to bear,, the same meaning which had been given to them by the judicial interpretations under the earlier law."° The same principle applies to a provision -in the consti- tution of a state which has been interpreted and explained Conner, 155 Ind. 484, 58 N. E. 828 ; Anderson v. Bell, 140 Ind. 375, 39 N. B. 735, 25 L. R. A. 541 ; Hilllker v. Citizens' St R. Co., 152 Ind. 86, 52 N. E. 607; State ex rel. Trimble v. Swope, 7 Ind. 91; Wender Blue Gem Coal Co. v. Louisville Property Co., 137 Ky. 339, 125 S. W. 732; Crescent Bed Co. v. City of New Orleans, 111 La. 124, 35 South. 484 ; Cota v. Ross, 66 Me. 161 ; Tuxbury's Appeal, 67 Me. 267; Com. v. Hartnett, 3 Gray (Mass.) 450; McEvoy v. City qf Sault Ste. Marie, 136 Mich. 172, 98 N. W. 1006; Easton v. Court- ' Wright, 84 Mo. 27 ; Camp v. Wabash R. Co., 94 Mo. App. 272, 68 S. W. 96; Kelly v. Thuey, 148 Mo. 422, 45 S. W. 300; Schawacker v. Mc- Laughlin, 139 Mo. 333, 40 S. W. 935 ; State ex rel. Pearson v. Cornell, 54 Neb. 647, 75 N. W. 25 ; Wyatt v. State Board of Equalization, 74 N. H. 552, 70 Atl. 387 ; In re Baird's Estate, 126 App. Div. 439, 110 N. Y. Supp. 708 ; Erhard v. Kings County (Sup.) 36 N. X. Supp. 656 ; Walker v. Bobbitt, 114 Tenn. 700, 88 S. W. 327 ; Supreme Council A. L. H. V. Anderson, 30 Tex. Civ. App. 615, 83 S. W. 207; Briscoe v. Rich, 20 Utah, 349, 58 Pac. 837 ; Swift & Co. v. Wood, 103 Va. 494, 49 S. E. 643 ; Mangus v. McClelland, 93 Va. 786, 22 S. E. 364 ; Pen- nington V. Gillaspie, 63 W. Va. 541, 61 S. E. 416 ; Greaves v. Tofleld, L. R. 14 Ch. Div. 563 ; Ross v. Hannah (Ind.) 91 N. B. 232 ; Lewis V. State, 58 Tex. Cr. App. 351, 127 S. W. 808. See "Statutes," Dec. Dig. (Key No.) § 225%; Cent. Dig. § 306. 28 Whitcomb v. Rood, 20 Vt. 49 ; Kendall v. Garneau, 55 Neb. 403, 75 N. W. 852; Cooper v. Toakum, 91 Tex. 391, 43 S. W. 871. See "Statutes," Dec. Dig. (Key No.) § S25%; Cent. Dig. § S06. 2 8 Woolsey v. Cade, 54 Ala. 378, 25 Am. Rep. 711. See "Statutes," Deo. Dig. (Key No.) § S25%; Cent. Dig. § 306. § 179) EE-ENACTED STATUTES G09 by the courts and is afterwards carried bodily into a new constitution.^" Moreover, it is not only a judicial con- struction, properly speaking, which may thus be regarded as adopted by the legislatvrre upon the re-enactment of a statute, but where an act of the legislature or of Congress has notoriously and for a long tirne received a certain prac- tical construction at the hands of the executive or adminis- trative officers charged with the duty of enforcing it, and is afterwards re-enacted without change, it may be pre- sumed that that construction was known to the legislative body and satisfactory to it and was meant to be sanctioned and adopted.'^ And in general, the presumption of the adoption of a previous official interpretation, on the re-en- actment of a law, is strengthened by the absence of any lan- guage in the new act indicating a contrary intent,''' as also by the fact that the draughtsman of the new statute (or of the body of laws into which it is incorporated) appended a note indicating an intention to make no change.'^ 30 Crescent Bed Co. v. City of New Orleans, 111 La. 124, 35 South. 484. See "Statutes," Dec. Dig. (Key No.) § 225%; Cent. Dig.% S06. 31 United States v. Cerecedo Hermanos y Compania, 209 U. S. 337, 28 Sup. Ct. 532, 52 L. Ed. 821; Copper Queen Consol. Min. Co. v. Territorial Board of Equalization, 206 U. S. 474, 27 Sup. Ct. 695, 51 L. Ed. 1143; State ex rel. Norfolk Beet-Sugar Co. v. Moore, 50 Neb. 88, 69 N. W. 373, 61 Am. St. Rep. 538 ; Van Veen v. Graham County (Ariz.) 108 Pac. 252. But see Royal Highlanders v. State, 77 Neb. 18, 108 N. W. 183, 7 L. R. A. (N. S.) 380. See "Statutes," Dec. Dig. (Key No.) § 225%; Cent. Dig. § 306. 32 Atton V. South Chicago City R. Co., 236 111. 507, 68 N. B. 277. See "Statutes," Dec. Dig. (Key No.) § 225%; Cent. Dig § 306. 33 Franks v. Bdinberg, 185 Mass. 49, 69 N. E. 1058. See "Statutes," Dec. Dig. (Key No.) § 225%; Cent. Dig. § SOS. Black Int.Ij.-^9 610 . DECLARATORY STATUTES (ph. 17 CHAPTER XVII DECLARATORY STATUTES 180. Definition. 181. Declaratory Statutes Not Retrospective. 182. Construction of Declaratory Acts. DEFINITION 180. A declaratory or expository statute is one passed with the purpose of removing d doubt or ambiguity as to the state of the law, or to correct a construction deemed by the legislature to be erroneous. It ei- ther declares what is, and has been, the rule of the common law on a given point, or expounds the true meaning and intention of a prior legislative act. According to Blackstone, a statute is called declaratory "where the old custom of the kingdom is almost fallen into disuse, or become disputable ; in which case the parliament has thought proper, in perpetuum rei testimonium, and for avoiding all doubts and difficulties, to declare what the com- mon law is and ever hath been." ^ In modern usage, how- ever, the term carries a much' wider signification than this. "It is a matter of frequent occurrence that the common law, or previous statute law, on a particular subject, is found to be ambiguous and uncertain, and that the legislature passes an act declaring what the common law is and has been on that topic, or explaining the meaning of the lan- guage employed in the former act, and the inferences, to be drawn from its terms. A declaratory statute in effect pro- mulgates a rule of 'construction or interpretation. Such laws are usually enacted in consequence of the establish- ment, by the judicial department, of a settled doctrine in re- gard to an ambiguous law. But the legislative exposition 1 1 Bl. Comm. 86. § 181) DECLAEATOKT STATUTES NOT KETEOSPECTIVE 611 is not always in affirmance of the view taken by the courts." 2 "Mr. Fox's libel act declared that, by the law of England, juries were judges of the law in prosecutions for libel ; it did not purport to introduce a new rule, but to declare a rule already and always in force. Yet, previous to the passage of this act, the courts had repeatedly held that the jury in these cases were only to pass upon the fact of publication and the truth of the innuendoes, and whether the publication was libelous or not was a question of law which addressed itself exclusively to the court. It would appear, therefore, that the legislature declared the law to be what the courts had declared it was not." ' Declaratory statutes, to have the force of law and be binding on the courts, must of course be made by the proper legislative power of the jurisdiction where the law to be expounded is in force. Thus, for example, an Eng- lish statute expository of the common law, enacted after the separation of America from the British kingdom, has not technically the force of law in the United States. Hence, considered as a declaratory law, it is not authorita- tive or binding on our courts, in such sense that they would not be at liberty to disregard it and put their own interpre- tation upon the common law. Yet such an act, as an aid in the elucidation of an obscure.point of the common law, will be entitled to respectful consideration.* DECLARATORY STATUTES NOT RETROSPEC- TIVE 181. A declaratory statute, in so far as it is applicable to facts and transactions occurring after its enact- ment, is binding on the courts ; but in so far as it is intended to have a retrospective effect upon vested rights, pending controversies, or past trans- 2 Black, Const. ProM"b. § 194. 3 Cooley, Const. Lim. 93. *Bull V. Loveland, 10 Pick. (Mass.) 9. See "Statutes," Deo. Dig. (Key No.) §§ m, 115. 612 DBCLARATOKX STATUTES (Ch. 17 actions, it is invalid, as an unlawful assumption of judicial power, and consequently not obligatory upon the courts." "In the very nature of things," says the Supreme Court of Pennsylvania, "interpretation follows legislation, and is not to be confounded with it, either as an act or as an au- thority. The duties are as distinct as possible, and the per- formance of them is given to different offices, yet without preventing the legislature from embodying in a statute rules for its interpretation, or from making a new law, by changing the interpretation or application of an old one rel- ative to future cases." * The rule is more fully explained by the New York court of chancery in the following terms : "In England, where there is no constitutional limit to the powers of Parliament, a declaratory law forms a new rule of decision, and is valid and binding upon the courts, not 6 Koshkonong v. Burton, 104 U. S. 668, 26 L. Ed. 886 ; Union Iron Co. V. Pierce, 4 Biss. 327, Fed. Gas. No. 14,367 ; Stebblns v. Board of Co. Com'rs Pueblo Co. (C. C.) 4 Fed. 282; Gorman v. Sinking Fund Com'rs (C. C.) 25 Fed. 647 ; Singer Mfg. Co. v. McCoUock (G. C.) 24 Fed. 667; Lambertson v. Hogan, 2 Pa, 22; Greenough v. Greenough, 11 Pa. 489, 51 Am. Dec. 567 ; Eeiser v. William Tell Sav. Fund Ass'n, 39 Pa. 137 ; Haley v. City of Philadelphia, 68 Pa. 45, 8 Am. Rep. 153 ; City of Cambridge v. City of Boston, 130 Mass. 357 ; Todd v. Clapp, 118 Mass. 495; Shallow v. City of SSiIem, 136 Mass. 136; Dash v. Van Kleeck, 7 Johns. (N. Y.) 477, 5 Am. Dec. 291; People v. Board of Sup'rs of City and County of New York, 16 N. Y. 424 ; Lincoln Build- ing & Saving Ass'n v. Graham, 7 Neb. 173 ; Kelsey v. Kendall, 48 Vt. 24 ; McNlchoI v. United States Mercantile Reporting Agency, 74 Mo. 457; McMannlngv. Farrar, 46Mo. 376; Dequlndre v. Williams, 31Ind. 444 ; James v. Rowland, 52 Md. 462 ; Lindsay v. United States Sav- ings & Loan Ass'n, 120 Ala. 156. 24 South. 171, 42 L. R. A. 783-; People ex rel. Akin v. Kipley, 171 111. 44, 49 N. E. 229, 41 L. R. A. 775; Forster v. Forster, 129 Mass. 559; Getz v. Brubaker, 25 Pa. Super. Ct. 303; Friend v. Levy, 76 Ohio St. 26, 80 N. E. 1036; In re Handley's Estate, 15 Utah, 212, 49 Pac. 829, 62 Am. St. Rep. 926; Welsberg v. Welsberg, 112 App. Div. 231, 98 N. Y. Supp. 260 ; Great Northern Ry. Co. v. Snohomish County, 48 Wash. 478, 93 Pac. 924; Thompson v.' Burnham, 13 Gray (Mass.) 211; McCleary v. Babcock, 169 Ind. 228, 82 N. B. 453. See "Statutes," Dec. Dig. (Key No.) I 269; Cent. Dig. § S62. 8 West Branch Boom Co. v. Dodge, 31 Pa. 285. See "Statutes," Dec. Dig. (Key No.) § 269 j Cent. Dig. § 362. § 181) declakato'et statutes not eetrospective 613 only as to cases which may subsequently occur, but also as to pre-6Jcisting and vested rights. But even there the courts will not give' a statute a retrospective operation, so as to deprive a party of a vested right, unless the language of the law is so plain and explicit as to render it impossible to put any other construction upon it. In this country; where the legislative power is limited by written consti- tutions, declaratory laws, so far as they operate upon vested rights, can have no legal effect in depriving an individual of his rights, or to change the rule of construction as to Jt pre-existing law. Courts will treat such laws with all the respect which is due to them as an expression of the opin- ion of the individual members of the. legislature, as to what the rule of law previously was. But beyond that they can hav^ no binding effect, and if the judge is satisfied the leg- islative construction is wrong, he is bound to disregard it." ^ Especially is this principle applied with firmness when the effect of the declaratory law, by reversing the con- struction previously put upon the common law or stat- utes by the judiciary, would unsettle titles or change the Ifegal. effect of acts performed by parties in reliance upon the stability of the judicial interpretations. So also in regard to pending controversies; a party has a right to the deci- sion of the court as to the meaning of a statute applicable to his case, independently of a declaratory act on the sub- ject passed while the suit was pending.* But if no rights or titles will be affected, there is author; ity for holding that a declaratory statute may be accorded a retroactive operation. It is said that while it is not within the competency of the legislative power to deprive a person of a vested right by means of a declaratory act, yet where no right has been secured under the former act or its ju- dicial interpretation, the legislature may declare its mean- ing by_a subsequent law, and this will have the effect of. T Salters v. Tobias, 3 Paige, Cli. (N. Y.) 338. See "Statutes," Dec. Dig. (Key No.) §' 269; Cent. Dig. § 362. 8 Ogden V. Blackledge, 2 Cranch, 272, 2 L. Ed. 276 ; Stephenson v. Doe ex dem. Wait, 8 Blackf. (Ind.) 508, 46 Am. Dec. 489. See "Stat- utes," Dec. Dig. (Key No.) § 269; Cent. Dig. § S62. 014 DECLARATORY STATUTES (Ch. 17 giving to the former act the same meaning and effect as if the declaratory statute had been embodied in the original act at the time of its enactment.* In Georgia, it is said that a legislative exposition of a doubtful law is the exercise of a judicial power; yet if it interferes with no vested rights, impairs the obligation of no contract, and is not in conflict with the primary principles of the social compact, it is in itself harmless, and may be admitted to retroactive effici- ency; but if rights have grown up under a law of ambigu- ous meaning, then it " cannot interfere with them.^" It should also be noticed that a subsequent act, which, conr sidered as an exposition of a previous one, may have no force, may still be of effect as a new grant of power. Thus, while the legislature has no authority to construe the charter of a corporation, yet a statute purporting to do so may, if the words will carry such a meaning, operate as a new grant of power to the corporation.^^ CONSTRUCTION OF DECLARATORY ACTS 182. A declaratory statute will be so construed as to carry out the intention of the legislature in enacting it, so far as that is legally possible ; but it will not be extended beyond its terms. The judicial department of government must determine the construction of all laws involved in cases before them ; but it is also their duty to give to a declaratory statute its intended practical operation so far as that is possible.^'' » Washington, A. & G. R. Co. v. Martin, 7 D. C. 120 ; State ex rel. Trustees of Montgomery County Children's Home v. Trustees of Ohio Soldiers' and Sailors' Orphans' Home, 37 Ohio St. 275 ; McCleary v. Babcock, 169 Ind. 228, 82 N. E. 453. See "Statutes," Dec. Dig. (Key "No.) § 269; Gent. Dig. § 362: ■ 10 McLe'od v. Burroughs, 9 Ga. 213. See "Statutes," Deo. Dig. (Key No.) § 269; Cent. Dig. § 362. 11 Aikin V. Western R. Corp., 20 N. T. 370. See "Statutes," Deo. Dig. (Key No.) § 269; Cent. Dig. § 362. 12 Bassett v. United States, 2 Ct. CI. 418. And see Townsend Sav. § 182) CONSTKOOTION OF DECLARATORY ACTS 615. This is the generally admitted rule. But in some few states, the courts have been reluctant to concede even this much to the legislative body. Thus, in an early case in Minne- sota, it is said that the opinion of a subsequent legislature upon the meaning of a prior statute is entitled to no more weight than that of the same men in a private capacity.^' In Kentucky, a clause of the general statutes provides that "all words and phrases shall be construed and understood according to the common and approved usage of language." This, it is said, is only declaratory of a part of the common law on the subject; and there are other rules of construc- tion which are of equal dignity and importance, which, al- though not incorporated in the statute, are as binding Upon the courts as if embodied in it.^* In general, a declaratory statute will be held down to its natural and intended scope, and will not be considered as modifying received or legiti- mate constructions beyond its terms. For instance, a- sec- tion of a code provided that "signature, or subscription, in- cludes mark, when the person cannot write, and when his mark is attested," etc. It was held that this did not define the word when found elsewhere than in the code. "If this clause," said the court, "avoids writings to the validity of which signature or subscription is by mark, and not at- tested as prescribed, it would not affect a mortgage of per- sonal property, which is valid without writing, and to which the signature of the mortgagor is not required by the code or any provision thereof." ^^ Bank v. Epping, 3 Woods, 390, Fed. Cas. No. 14,120. See "Statutes," Dec. Dig. (Key No.) § 176; Cent. Dig. § 255. 13 Bingham v. Board of Sup'rs of Winona County, 8 Minn. 441 (Gil. 390). See "Statutes," Dec. Dig.. (Key No.) § 220; Cent. Dig. § 298. 1* Bailey v. Commonwealth, 11 Bush (Ky.) 688. See "Statutes," Deo. Dig. (Key No.) §§ 11J,, 115, 178; Cent. Dig. §§ 25i, 257. IB Alabama Warehouse Co. v. Lewis, 56 Ala. 514. See "Statuses," Dec. Dig. (Key No.) §§ 174, ^75; Cent. Dig. § 254; "Signatures," Cent. Dig. § 7. 616 APPLICATION OF RULE OB STAEE DECISIS (Ch. 18 CHAPTER XVIII THE RULE OF STARE DECISIS AS APPLIED TO STATU- TORY CONSTRUCTION 183. The General Principle. 184. Effect of Reversing Construction. 185. Federal Courts Following State Decisions. 186. Construction of Statutes of Other States. THE GENERAL PRINCIPLE 183. A settled judicial construction put upon a statute has almost the same authority as the statute itself; and though the courts have the power to overrule their decisions and change the construction, they will not do so except for the most urgent reasons. The rule just stated is not a modern invention. It has for a very long period of time been respected by the courts, and is now supported by a multitude of authorities.^ It is an ancient maxim of the law that "legis interpretatio legis vim obtinet"; that is to say, the authoritative interpreta- tion put upon the written law by the courts acquires the force of law, by becoming, as it were, a part of the statutg itself." The importance of adhering to this rule is seen in the fact that the judicial explanation of an obscure or am- biguous statute is at once accepted as correct by those whose rights or actions may be affected by the statute, and innumerable transactions will thereafter depend for their 1 Hammond v. Anderson, 4 Bos. & P. 69 ; King v. Younger, 5 Durn. & E. 449; King v. Inhabitants of Ecclestou, 2 East, 299; Queen v. Ohantrell, L. R. 10 Q. B. 587 ; People v. Albertson, 55 N. X. 50 ; Wolf V. Dowry, 10 La. Ann. 272; State v. Thomps--a, 10 La. Ann. 122; City of New Orleans v. Poutz, 14 La. Ann. 853 ; Reck v. Brady, 7 La. Ann. 1 ; Seale'v. Mitchell, 5 Cal. 401 ; Sheridan v. City of Salem, 14 Or. 328, 12 Pac. 925 ; Despain v. Crow, 14 Or. 404, 12 Pae. 806 ; Da- vidson V. Biggs, 61 Iowa, 309, 16 N. W. 135. See "Courts," Deo. Dig. (Key No.) § 90; Cent. Dig. § S18. 2 Branch, Priacipia (1st Am. Ed.) 76. I 183) THE GENERAL PRINCIPLE 617 validity and effect upon the permanence of the judicial con- struction in view of which they were had. "The court al- most always, in deciding any question, creates a moral power above itself ; and when the decision construes a stat- ute, it is legally bound, for certain purposes, to follow it as a decree emanating from a paramount authority, according to its various applications in and out of the immediate case." ' So, Lord Chancellor Cairns, speaking of revenue acts, observes : "The object must be, above that of all other acts, to maintain them and to expound them in a manner which will be consistent, and which will enable the subjects of this country to know what exactly is the amount of the charge and burden which they are to sustain. I think that; with regard to statutes of that kind, above all others, it is desirable, not so much that the principle of the decision should be capable at all times of justification, as that the law should be settled, and should, ' when once settled, be maintained without any danger of vacillation or uncer- tainty." * Even though the court, when the question of the construction of the statute comes up a second time, should be satisfied that the original construction was founded in error, yet, if it is seen that great mischief would ensue from a change in the interpretation, the court will yield the con- struction which it would otherwise regard as the true one, in favor of that interpretation which has been universally received and long acted on.° More especially when the construction given to a statute has become what is called a "rule of property" (that is, a rule under which titles have become fixed and upon the continuance of which property rights depend), it should be adhered to, even though ques- tionable, so long as the statute itself remains unchanged.' s Bates V. Relyea, 23 Wend. (N. T.) 336. See "Courts," Dec. Dig. (Key No.) § 90; Cent. Diff. § Si8. 4 Com'rs of Inland Revenue v. Harrison, L. R. 7 H. L. 1. See "Courts," Dec. Dig. (Key No.) § 90; Cent. Dig. § 318. 5 Van Loon v. Lyon, 4 Daly (N. Y.) 149. See "Gmrts," Dec. Dig. (Key No.) § 90; Cent. Dig. § 318. Day V. Munson, 14 Ohio St. 488; Alcard v. Daly, 7 La. Ann. 612; Farmer's Heirs v. Fletcher, 11 La. Ann. 142. In Windham v. Chet- wynd 1 Burr. 414, 'Lord Mansfield said that when solemn determlna- 618 APPLICATION OP RULE OF STARE DECISIS (Ch. 18 And the same opinion has been iexpressed with regard to the interpretation of statutes which involve questions of practice; decisions under which a practice has grown up, though erroneous, will still be followed.'' Although, in general, this doctrine applies only to ju- dicial interpretations of statutes settled by the deliberate judgments of the court of last resort in the state, yet the rule has sometimes been extended so as to include adjudica- tions of minor authority. Thus, in Mississippi, it is said that when the true meaning of a statute is doubtful, a con- struction which has been adopted by the inferior courts for a long period of time, and under which important rights have accrued, will not be disturbed by the Supreme Court of the state.* And in Kentucky, in a similar case of doubt, a legislative exposition of the statute, together with an ex- trajudicial dictum of the Supreme Court formerly made, were allowed to have a decisive influence.' A contempo- raneous practical construction of a statute, under which rights of property have been acquired, will be upheld, when this can properly be done.^" EFFECT OF REVERSING CONSTRUCTION 184. Where rights of property have accrued, and contracts have been made, in reliance upon the judicial con- struction of a statute, and were valid at the time of their inception under such construction, a subse- tions, acquiesced undnr, had settled precise cases, and become a rule of property, they ought, for the sake of, certainty, to be observed as if they had originally made a part of the text of the statute. See "Courts," Dec. Dig. {Key No.) § 93; Cent. Dig. § 338. 7 Succession of Lauve, 6 La. Ann. 529. See "Courts," Dec. Dig. (Key No.) § 90 j Cent. Dig. §§ 318, 319. 8 Plummer v. Plummer, 37 Miss. 185. See "Courts," Dec. Dig. (Key No.) § 218; Cent. Dig. § 294. » Commonwealth v. Miller, 5 Dana (Ky.) 320. See "Courts," Deo. Dig. {Key No.) § 89; Cent. Dig. § 312; "Statutes," Dec Dig. (Key No.) 220; Cent. Dig. § 298. 10 Matter of Warfield's Will, 22 Cal. 51, 83 Am. Dec. 49. See "Statutes," Dec. Dig. (Key No.) § 218; Cent. Dig. §§ 29^, 295, § 184) EFFECT OF REVERSING CONSTRUCTION 619 quent decision, overruling prior decisions and re- versing the construction established thereby, will not be allowed to retroact, so as to destroy those rights or invalidate those contracts. Judicial decisions are evidences of the law; but when they are not long established, and are palpably erroneous and plainly productive of injustice, they should be over-, ruled, and it is the right and duty of the courts to do so.^^ But the settled judicial construction of a statute, so far -as contract rights were acquired thereunder, is as much a part of the statute as the text itself ; and a change of decision is the same in its effect on pre-existing contracts as a repeal or an amendment by legislative enactment. ^^ "We hold the doctrine to be sound and firmly established,'\says the Su- preme Court of Alabama, "that rights to property and the benefits of investments acquired by contract, in reliance upon a statute as construed by the Supreme Court of the state, and which were valid contracts under the statute as thus interpreted, when the contracts or investments were made, cannot be annulled or divested by subsequent deci- sions of the same court overruling the former decisions; that as to such contracts or investments, it will be held that the decisions which were in force when the contracts were made had established a rule of property, upon which the parties had a right to rely, and that subsequent .decisions cannot retroact so as to impair rights acquired in good faith under a statute as construed by the former decisions." ^' 11 Paul V. Davis, 100 Ind. 422. See "Courts," Dec. Dig. (Key No.) §§ 90, 100; Gent. Dig. §§ 320, SJfl-SJiS. 12 Douglass V. Pike County, 101 U. S. 677, 25 L. Ed. 968; Ohio Life Ins. & T. Co. v. Debolt, 16 How. 432, 14 L. Ed. S97 ; Taylor v. YpsUanti, 105 U. S. 72, 26 L. Bd. 1008; Geddes v. Brown, 5 Phila. (Pa.) 180; Farrior v. New England Mortgage Co., 92 Ala. 176, 9 South. 532, 12 L. E. A. 836; Levy v. Hit»nhe, 40 La. Ann. 500, 4 South. 472; Paulson v. City of Portland, 16 Or. 450, 19 Pac. 450, 1 L. R. A. 673 ; Stephenson v. Boody, 139 Ind. 60, 38 N. E. 331. See "Courts," Deo. Dig. {Key No.) §§ 90, 160; Cent. Dig. %% 320, 341-343. 13 Farrior v. New England Mortgage Co., 92 Ala. 176, 9 South. 532, 12 L. R. k. 856. iSee "Courts," Dec. Dig. (Key No.) §§ 90, 100; Cent. Dig. §§ 320, 341-343. 620 APPLICATION OF RULE OF STARE DECISIS (Cl^. 18 FEDERAL COUKTS FOLLOWING STATE DECI- SIONS 185. The settled construction put upon a public statute of a state by the courts of that state will be. accepted as authentic by the courts of the United States, and will be adopted and applied by them, without inquiry as to its soundness, unless some question of federal law is involved, such as the conformity of the statute to the Constitution or laws of the United States. This rule was announced by the Supreme Court of the United States at an early day, and has ever since been con- sistently followed and adhered to.^* But the rule "has grown up and been held with constant reference to the other rule, stare decisis ; and it is only so far and in such cases as this latter rule can operate that the other has any effect. If the construction piit by the court of a state upon one of its statutes was not a matter in judgment, if it might have been decided either way without affecting any right brought into question, then, according to the principles of the common law, an opinion on such a question is not a decision. To make it so, there .must have been an applica- tion of the judicial mind to the precise question necessary to be determined to fix the rights of the parties and decide to whom the property in contestation belongs. And therefore iiMcKeen v. Delancy's Lessee, 5 Cranch, 22, 3 L. Ed. 25; Elmen- dorf V. Taylor, 10 Wheat. 152, 6 L. Ed. 289 ; McDowell v. Peyton, 10' Wheat. 454,, 6 L. Ed. 3<34; Shelby v. Guy, 11 Wheat. 361, 6 L. Ed. 495; Leffingwell v. Warren, 2 Black (U. S.) 599, 17 L. Ed. 261; Christy v. Pridgeon, 4 Wall. 196, 18 L. Ed. 322 ; Nichol v. Levy, 5 Wall. 433, 18 L. Ed. 596; Walker v. State Harbor Com'rs, 17 Wall. 648, 21 L. Ed. 744 ; Tioga R. Co. v. Blossburg & O. R. Co., 20 Wall. 137, 22 L. Ed. 331 ; Lamborn v. Dickinson County Com'rs, 97 U. S. 181, 24 L. Ed. 926; Douglass v. Pike County, 101 U. S. 677, 25 L. Ed. 968 ; Bucher v. Cheshire R. Co., 125 U. S. 555, 8 Sup. Ct. 974, 31 L. Ed. 795 ; Cornell University v. Fiske, 136 U. S. 152, 10 Sup. Ct. 775, 34 L. Ed. 427; Dundee Mortgage T. I. Co. v. Parrish (C. C.) 24 Fed. 197. See "Courts," Dec. Dig. (Key No.) § S66; Cent. Dig. §§ 954-968. § 185) FEDKEAL COURTS FOLLOWING STATE DECISIONS 621 this court and other courts organized under the common law has never held itself bound by any part of an opinion, in any case, which was not needful to the ascertainment of the right or title in question between the parties." ^^ If there is no decision by the courts of the state on the inter- pretation of a statute of the state, and nothing on which to found a practical construction, or if the decisions of the state courts are conflicting and the interpretation unsettled, then the federal courts will decide for themselves as to the true construction of the statute.^* And if the highest judicial tribunal of a state adopts new views as to the proper con- struction of a statute of the state, and reverses its former decisions, the federal courts will follow the latest settled ad- judications.^' But the rule that the courts of the United States must accept as bindihg the interpretation of a state statute by the courts of that state is subject to this excep- tion, that in cases where the federal courts are called upon to interpret the contracts of states, they will not follow the construction adopted by the Supreme Court of the state in such a matter when they entertain a different opinion ; and this, whether the contract alleged be claim,ed to be such under the form of state legislation, or has been made by a covenant or agreement by the agents of a state by its au- thority.^^ "Since the ordinary administration of the law is' carried on by the state courts, it necessarily happens that by the course of their decisions certain rules are established 15 Carroll v. Carroll's Lessee, 16 How. 275, 286, 14 L. Ed. 936. See "Courts," Dec. Dig. {Key No.) § 366; Cent. Dig. §§ 95^-968. i« Gardner v. Collins, 2 Pet. 58, 7 L. Ed. 347 ; Sohn v. Waterson, 17 Wall. 596, 21 L. Ed. 737; Burgess v. Seligman, 107 U. S. 20, 2 Sup. Ct. 10, 27 L. Ed. 359 ; Myrick v. Heard (0. C.) 31 Fed. 241 ; Southern Pac. R. Co. V. Orton (C. C.) 32 Fed. 457. See "Courts," Dec. Dig. (Key No.) § S66; Cent. Dig. |§ 95i-968. 17 Leffingwell v. Warren, 2 Black (U. S.) 599, 17 K Ed. 261 ; Green V. Neal, 6 Pet. 291, 8 L. Ed. 402 ; Suydam v. WUllamson, 24 How. 427, 16 L. Ed. 742. See "Courts," Deo. Dig. (Key No.) § 366; Cent. Dig. §§ 95J,-968. 18 Jefiferson Branch Bank v. Skelly, 1 Black (U. S.) 436, 17 L. Ed. 173 ; Bridge Proprietors v. Hoboken Land & Improv. Co., 1 Wall. 116, 17 L. Ed. 571. See "Courts," Deo. Dig. (Key No.) § 366; Cent. Dig. §§ 954-968. 622 APPLICATION OF RULE OF STARE DECISIS (Ch. IS which become rules of property and action in the state, and have all the effect of law, and which it would be wrong, to disturb. This is especially true with regard to the law of real estate and the construction of state constitutions, and statutes. Such established rules are always regarded by the federal courts, no less than by the state courts them- selves, as authoritative declarations of what the law is. But where the law has not been thus settled, it is the right and duty of the federal courts to exercise their own judgment, as they also always do in reference to the doctrines of com- mercial law and general jurisprudence. So, when contracts- and transactions have been entered into, and rights have accrued thereon, under a particular state of the decisions, or when there has been no decision, of the state tribunals, the federal courts properly claim the right to adopt their own interpretation of the law applicable to the case, although a different interpretation may be adopted by the state courts after such rights have accrued. But even in such cases, for the sake of harmony and to avoid confusion, the federal courts will lean towards an agreement of views with the state courts, if the question seems to them balanced with doubt." ^° Where two or more states have adopted stat-. utes in the same or substantially the same terms,' but their courts differ in regard to the interpretation of the statute, the federal courts will administer the laws of each state^ as therein construed, without regard to the apparent incon- sistency which will result in their own decisions. In this event, such local statutes are treated as different laws, each embodying the particular construction of its own state, and enforced in accordance with it in all cases arising under it.^"' As a deduction from the general rule that the decisions of the supreme court of a state, interpreting a statute of such 19 Burgess v. Seligman, 107 U. S. 20, 2 Sup. Ct 10, 27 L. Ed. 359. See "Courts," Dec. Dig. {Key A'O.) § 366; Cent. Dig. §§ 954-968. 20 Shelby v. Guy, 11 Wheat. 361, 6 L. Ed. 495 ; Christy v. Prldgeon,. 4 Wall. 196, 18 L. Ed. 322; Louisiana ex rel. Southern Bank v. Pilsbury, 105 U. S. 278, 294, 26 L. Ed. 1090; Randolph's Ex'r v. Quid- nick Co., 135 U. S. 457, 10 Sup. Ct. 655, 34 L. Ed. 200; Bauserman ¥. Blunt, 147 U. S. 647, 13 Sup. Ct. 466, 37 N. B. 316. iSee "Courts,"- Dec. Dig. {Key No.) § 368; Cent. Dig. §§ 954-968. § 186) CONSTRUCTION OF 8TATDTES OF OTHER STATES 623 State, are binding on the federal courts, it has been held that where the Supreme Court of the United States, .upon a mistaken view of the purport and effect of a decision of the- Supreme Court of the state in such a case, renders a decision in conflict therewith, that decision is not binding on the state courts.''^ CONSTRUCTION OF STATUTES OF OTHER STATES 186. The construction put upon a state statute by the courts of that state will be accepted as correct, and followed, by the courts of another state, when called upon to interpret and apply the statute.^^ If it does not appear that the particular statute has ever been judicially construed in the state of its origin, or if no proof is given of the interpretation given to it by the courts of that state, the courts of the state where the case is on trial will construe the statute as they would a like statute in their own state.^* But in a case in Tennessee, where the court was called upon to interpret the Arkansas statute of frauds, as applicable to the contract in suit, which was made 21 Goodnow V. Wells, 67 Iowa, 654, 25 N. W. 864. See "Courts," Dec. Dig. (Key No.) § 366; Cent. Dig. §§ 954-968. ' 22 Blaine v. Curtis, 59 Vt. 120, 7 Atl. 708, 59 Am. Rep. 702; Jessup V. Carnegie, 80 N. Y. 441, 36 Am. Rep. 643; Savings Ass'n of St. Louis V. O'Brien, 51 Hun, 45, 3 N. T. Supp. 764 ; Howe v. Welch, 17 Abb. N. C. (N. Y.) 397; Hoyt v. Thompson, 3 Sandf. (N. Y.) 416; American Print Works v. Lawrence, 23 N. J. Law, 590, 57 Am. Dec. 420; Lane & Co. v. Watson, 51 N. J. Law, 186, 17 Atl. 117; Van Matre v. Sankey, 148 111. 536, 36 N. B. 628, 23 L. R. A. 665, 39 Am. St. Rep. 196 ; Johnston v. Southwestern R. Bank, 3 Strob. Bq. (S. C.) 263 ; Carlton v. Felder, 6 Rich. Eq. (S. C.) 58 ; McMerty v. Morrison, 62 Mo. 140; Hamilton v. Hannibal & St. J. R. Co., 39 Kan. 56, 18 Pac. 57 ; Crocker v. Pearson, 41 Kan. 410, 21 Pac. 270. See "Courts," Dec. Dig. (Key No.) § 95; Cent. Dig. §i 322, 323; "Statutes," Cent. Dig. § 256. 2 3 Smith V. Bartram, 11 Ohio St. 690; Bond v. Appleton, 8 Mass. 472, 5 Am. Dec. 111. See "Courts," Dec. Dig. (Key No.) § 95; Cent. Dig. §§ 322, 323; "Statutes," Cent. Dig. § 256. 624 APPLICATION OF RULE OF STARE DECISIS (Ch. 18 and to be performed in Arkansas, and no decisions of the Arkansas courts could be found construing the statute, but in New York, where that part of the statute was expressed in the same terms, it had received a judicial interpretation, the Tennessee court adopted the construction settled by the New York courts."* In Louisiana, it. is said that while, in ordinary cases, the decisions of the courts of other states on their own statutes, not involving questions under the federal constitution, will be adopted as decisive, yet where they differ from the Supreme Court of the United States, the interpretation of the latter, if more in harmony with the Louisiana jurisprudence, will be adopted, and particularly when the matter is one which may be reviewed by the fed- eral courts."" 2* Anderson v. May, 10 Helsk. (Tenn.) 84. See "Courts," Dec. Dig. (Key No.) § 95; Cent. Dig. §§ 323, S2S; "Statutes," Cent. Dig. § 256. 25 Davis V. Robertson, 11 X.a. Ann. 752. See "Courts," Dec. Dig. (Key No.) § 95; Cent. Dig. §§ S22, 323; "Statutes," Cent. Dig. § 256. TABLE OF CASES CITED [the FIGTJKES KErEE TO FAOES] Abbotsford, The, 607. Abbott V. Wood. 473. Abemathy v. Mitchell, 579, 582. Abingdon Mills v. Grogan, 346. Abley v. Dale, 53, 131. Abraham v. Roseburg, 599. Academy of Fine Arts v. Phila- delphia County, 509, 511. Ackerman v. Green, 341, Adams v. Akerlund, 186. Adams v. Chaplin, 405. Adams v. Creen, 416. Adams v. Field, 606. Adams v. Saratoga V& W. E. Co., 481. Adams v. Sa'unders, 468. Adams v. Seymour. P68. Adams y. Sleeper, 552. Adams v. 'iurremiuc, 183, 361. Adams & Freese Co. v. Kenoyer, 387. Adriance v. Sup'rs of New York, 568. Advisory Board of Coal Creek, Tp., Montgomery County, v. Levan- dowski County, 129; 432. Aechternaeht v. Watmough, 468. ..^tna Fire Ins. Co. v. Tyler, 184. Ahern v. Board of Directors of High Line Irr. Dist., 515. Aicard v. Daly, 617. Aicardi v. State, 134. > Aikin v. Western R. Corp., 614. Ailstock V. Page, 565. Alabama Girls' Industrial SIchool V. Reynolds, 42. Alabama Warehouse Co. v. Lewis, 615. Albert v. Gibson, 47, 113. Albert v. Order of Chosen Friends, 204. Albertson v. State, 326. Albright v. Bedford County, 296. Albright v. Payne, 264, 265. Alderman Blackwell's Case, 531. Aldrich v. Sager, 211. Aldridge v. Williams, 313. Alexander v. Big Rapids, 424. Alexander v. Crosby, 454. Alexander v. State, 96. Alexander v. Worthington, 285. Alexandria & F. R. Co. v. Alexan- dria & W. R. Co., 504. Alford V. Hicks, 4l Alfrey v. Cobert, 154. Allen V. Com'rs of Taxation for Bernards, Tp., 387. Allen V. Jones, 481. Allen V. Mille, 524. Allen V. Mutual Fire Ins. Co., 52. Allen V. Russell, 265. Allen V. Savannah, 69. Allen v. State, 177. Allen V. U. S., 305. Allen V. Wells, 556. Allison V. Hubbell, 47. AUor V. Wayne Co., 247. AUsopp V. Day, 271. Alina Spinning Co., In re, 127. Alter V. Shepherd, 519. Alton Woods' Case, 439. Alvord V. Lent, 493. A. L. & B. F. Goss Co. v. Green- leaf, 10. 95, 97. Amalia, The, 107. American Ins. Co. v. Canter, 203. American Inv. Co. of Emmetsburg T. Thayer, 387, 398. American . Net r& Twine Co. v. Worthington, 190. 522. American Print Works v. Law- rence, 623. Ames T. McCamber, 16. Ancient Order of Hibernians, Divi- sion No. 1, of Anaconda v. Spar- row, 600. Andel v. People, 47, 322. Anderson v. Bell, 608. Anderson v. Chicago, B. & Q. R. Co., 198. Anderson v. May, 624. Anderson v. Ritterbusch, 387. .Black Int.I* — 40 (625) 626 CASES CITED [The figures refer to pages] Anderson v. Territory, 598, Andrews t. U. S., 451. Angell T. Angell, 146, 154. Anheuser-Busch Brewing Ass'n v. Bond, 385. Anthony v. State, 596. Apple V. Apple, 183, 361. Appleton Waterworks Co. v. Apple- ton, 102. Arceneaux v. De Benoit, 495. Archbis'hop of Canterbury's Case, 208. Archer v. Ellison, 264. Archer v. Jones, 467.' Arey v. Lindsey, 26. Arie V. State, 44. Ariola V. Newman, 412. Arkansas, L. & G. R. Co. t. Ken- nedy, 111. Armstrong v. Modem Brotherhood of America, 47. Armstrong v. Murphy, 565. Arnold v. North Tarrytown, 182. Arnold v. Richmond Iron Works, 186. Arnold v. Willis, 897. Arthur v. Adam, 551. Arthur v. Bokenham, 361. Arthur v. Butterfield, 189. Arthur v. Cumming, 189. Arthur y. Dodge, 593. Arthur v. Lahey, 189. Arthur t. Morrison, 189. Arthur's Appeal, 367.- Asheville Land Co. v. Lange, 487. Ashley v. Harrington, 588. Assessment and Collection of Tax- es, In re, 116. Associates of Jersey Co. v. Davi- son, 68, 127. Atascosa County v. Angus, 198. Atchison v. State, 475. Atchison, T. & S. F. R. Co. y. Franklin. 598. Atchison, T. & S. F. R. Co. v. ' Haynes, 329. Atchison, T. & S. F. R. Co. v. Lawler, 559. Atlanta & C. Air Line Ry. v. Ray, 236. ■ ^ Atlantic Coast Line R. Co. v. Beaz- ley, 598, 602. Atlantic Coast Line R. Co. v. Rich- ards'on, 52. Atlantic Coast Line R. Co. y. U. S., 80. Atlantic & D. R. Co. v. Lyons, 302. ' Atlantic & D. R. Co. v. Peake, 559. Atton V. South Chicago Citv R. Co., 609. Attorney General v. Amos, 116. Attorney General Tj Bank of Cape Fear, 291. , „^ Attorney General v. Board of Ed- ucation of City of Detroit, 324. Attorney General v. Brown, 347. Attorney General v. Chicago & N. W. R, Co., 164. Attorney General v. Common Council of City of Detroit, 511. Attorney General v. Donaldson, 95. Attorney General v. Eau Claire, 115. Attorney General v. Glaser, 302. Attorney General v. Governor, e,tp., of Chelsea Waterworks, 440. Attorney General y. Great Eastern R. Co., 262. Attorney General v. Hallett, 173. Attorney General v. Lamplough, 340. Attorney General v. Lewis, 574, 575. Attorney General v. Lock, 535, 544. Attorney General v. Lord Wey- mouth, 245. Attorney General v. Lum, 299. Attorney General v. Parsell, 80. Attorney General v. Sillem, 313. Attorney General v. Smith, 4. Attorney General v. State Board of Assessors, 21, 111. Atwater v. Woodbridge, 218. Atwood V. Buckingham, 384. Aubert's Appeal, 405. Auditor General v. Chandler, 409. Auditor General v. Lake George & M. R. R. Co., 248. Auditor of Public Accounts t. Cain, 302. Augusta Bank v. Augusta, 404. Aultfather v. State, 75. Aultman & Taylor Co. v. Syme, 236. Aultman & Taylor Machinery Co. V. Fish, 386, 408. Aurora & L. Turnpike Co. v. Holt- house, 386. Austin V. Berlin, 198. Austin V. U. S., 331. Avery v. Groton, 364. Axtell V. Smedley & Rodgers Hard- ware Co., 323. Ayers v. Chicago Title & Trust Co., 228. Ayers v. ICnox, 79, 126. Ayers v. Trego County Com'rs, 52. Ayres y. U. S., 13. B Babcock v. Goodrich, 150, 226. Bacon v. Bancroft, 189. CASES CITED [The figures refer to pages] 627 Bacon v. Boston & M. R. R., 77. Bacon v. Lee, 87. Baggaley v. Pittsburg & Lake Su- perior Iron Co., 431. Bagg's Case, 92. Bailes v. Daly, 383. Bailey v. Bryan, 36,7. Bailey v. Com., 176, 615. Bailey v. Rolfe, 291. Bailey v. State, 84. Bailey Loan Co. v. Seward, 601. Bailey's Estate, In re, 219. Baird's Estate, In re, 608. Baity t. Cranfill, 407. Baker t. Baker, 363. Baker v. Braman, 117. Baker v. Payne, 264. Baldwin v. Cullen, 397. Baldwin v. Newark, 392. Ball V. Anderson, 403. Ball V. Plagg, 530. Ball V. Presidio County, 413. Ballard v. Purcell, 559. Ballentine, Estate of, 557. Ballinger v. U. S., 302. Baltimore & D. P. R. Co. v. Pumphrey, 238. Baltimore & O. R. Co. y. Pitts- burg, W. & K. R. Co., 424. Baltimore & S. R. Co. v. Nesbit, 383. Bancroft v. Dumas, 88. Banfield v. Banfield, 374. Bank v. Wood, 16. Bank for Savings v. The Collector, 321, 428. Bank of Alexandria v. Dyer, 71. Bank of Bramwell v. Mercer Coun- ty Court, 323. Bank of Columbia v. Okely, 184, Bank of England v. Vagliano, 592. Bank of Pennsylvania v. Com., 310, 311. Bank of Tennessee v. Officer, 238. Bank of United States v. Halstead, 42, 290. Bank of United States v. Lee, 497. Bank of United States v. McKen- zie, 436. Bank of Utica v. Mersereau, 302. Banks, Ex parte, 531, 557. Banks v. Speers, 123. Bansemer v. Mace, 531, 540, 560. Banton v. Griswold, 95. Barbat v. Allen, 223. Barber v. Reynolds, 498. Barber v. Schell, 189. Barber Asphalt Pav. Co. v. Bdger- ton, 47. Barber Asphalt Pay, Co. v. Meser- yey, 290. Barber Asphalt Pay. Co. v. Ridge, 184. :Barber Asphalt Pav. Co. v. Watt, 445. Barbour v. Louisville, 209. Barbour v. National Exch. Bank, 172. Barden y. Crocker, 364. Bare R^rigerating Co. v. Sulzberg- er, 593. Earing v. Erdman, 286. Barker v. Bell, 366. Barker y. Esty, 289. Barker v. Hinton, 388. Barksdale v. Morrison, 290. Barlow v. U. S., 189, 192. Barnawell v. Threadgill, 138. Barnes v. Jones, 260. Barnes v. Lynch, 600. Barnes v. Mobile, 13, 386. Barnes v. Pelton, 515. Barnes v. Thompson, 379. Barnesboro Borough v. Speice, 387. Barnewall y. Murrell, 607. Bamett v. Vanmeter, 410. Barnitz v. Beverly, 398. Barringer v. Florence, 352. Barron v. Kaufman, 142, 168. Barrow v. Wadkin, 266. Barrows v. People's Gaslight & Coke Co., 576. Barstow v. Smith, 49. Bartlett y. Morris, 47. Bartlett Vi Trenton, 202. Barflett v. Vinor, 88. Bartley v. Boston ,& N. St. B. Co., 408. Bartley v. Smith, 561. Bartol V. Calvert. 238. Bartolett y. Achey, 457. BartrufE v. Remey,- 401. Bassett v. Carleton, 221. Bassett v. U. S., 614. Bate Refrigerating Co. y. Sulzberg- er, 51, 304, 590, 593. Bates V. Hacking, 293. Bates V. Belyea, 617. Baton Rouge Oil Works, In re, 518. Batters v. Dunning, 565. Battle V. Shivers, 261. Bauer Grocery Co. v. Zelle, 386. Baumgarteu v. Magone, 193. Bauserman v. Blunt, 7, 622. Baxter y. Hamilton, 430. Baxter v. Tripp, 136. Baxter v. Wade, 323. Baxter v. Tork Realty Co., 322. Bay V. Gage, 384, 389. . Bay City & B. S. B. Co. y. Austin, 470. Bay County v. Brock, 550. 628 CASES CITED [The figures refer to pages] Beach v. Bay State Steamboat Co., 109, 491. Beall V. BeaU, 492. Beals V. Hale, 347. Bean \. Simmons, 541. Bear v. Marx, 194. Bear's Adm'r v. Bear, 349. Beard v. Rowan, 254, 394. Beasley v. People, 554. Beatty v. People, 437. Beawfage's Case, 203. Beck V. Brady, 616. Becker v. Lebanon & M. St. R. Co., 554, 555. Becker's Appeal, 387. Becker & Deeen v. Brown, 487. Beckford v. Wade, 197. Becklin v. Beeklin, 594. Bedell v. Janney. 524. Bedford v. Bradford, 71. Bedier v. Fuller, 418. Beebe v. Birkett, 408. Beebe v. JJstabrook, 203. Beers v. People, 520. Belcher v. Mhoon, 520. Bell V. Bumstead, 178. Bell V. McCov, 425. Bell V. New York. 247. Bell V. Perkins, 381. Bell T. State, 177. Bell V. Taylor, 545. Belt V. Marriott, 13. Bcmis V. Becker, 598. Ben. R., The, 454. Bennett v. Hunter, 518. Bennett v. MeWhorter, 137, 500. Bennett v. State, 198. Bennett v. Ward, 123. Benson v. Adams, 239. Bentley v. Rotherham Board of Health, 246. Benton v. Benton, .204. Benton, v. Wickwire, 47. Benton v. Willis, 331. Berbecker v. Robertson, 191. Berg V. Baldwin, 212. Berley v. Rampaeher, 395. Bernard v. BensoA, 290, 332. Berndt v. ArmkneSht, 398. Berniaud t. Beecher, 233. Bernier v. Becker, 420. Bernier t. Bernier, 313. Berry v. Hanks, 174. Berry v. Powell, 373. Bertholf v. O'Reilly, 112. Bertles v. Nunan, 377. Besser v. Alpena Circuit Judge, 598. Bethlehem South Gas & Water Co. V. Toder, 73. Betteucourt v. Sheehy, 262. Bettis T. Taylor, 451. Betts T. U. S., 126. , • , Bevitt V. Crandall, 304. Bidwell V. Whitaker; 56. Big Black Creek Imp. Co. v. Com,, 286. Bigelow V." Draper, 359. Bigham v. Clubb, 510. Billingslea v. Baldwin, 332. Billingsley v. State, 344. Binder v. Langhorst, 541. Bingham t. Birmingham, 323. Bingham v. Board of Sup'rs of Winona County, 615. Bingham's Trustee v. i&uthrie, 495. Binghamton Bridge, The, 506, 508. Binghamton Trust Co. v. Bingham- ton, 513. Bird V. Board of Com'rs of Ken- ton County, 129, 131. Bird V. Burgsteiner, 239. Birdsong v. Brooks, 561. Birtwhlstle v. VardiU, 262. Black V. Lusk, 299. Black T. Scott, 264. Blackrock Copper Mln. & Mill. Co. T. Tingey, 23. Blackwell v. First Nat. Bank, 338. Blackwood . v. Queen, 242. Blackwood v. Van Vleit, 424. Bladen v. Philadelphia, 537. Blaiberg, Ex parte, 341. Blain, Ex parte, 108. Blaiu v. Bailey, 330. Blaine v. Curtis, 300, 623. Blair v. Cary, 409. Blair v. Coakley, 48. Blair v. Murphree, 529, 540. Blais V. Franklin, 148, 247. Blake v. Crowninshield, 234. Blake v. Midland R. Co., 249. Blake v. National City Bank, 309. Blake v. Portsmouth & C. R. Co., 531, 541. Blake v. Sherman, 485. Blakemore v. Cooper, 421. Blanehard v. Sprague, 164, 243, Blankley v. Winstanley, 290. Blaylock v. Muskogee, 597, 604. Bliss V. Caille Bros. Co., 602. Blood V. Beal. 267. Blood y. Northmp, 331. Bloomer v. Todd, 2, 4. Bloxam v. Pavre, 107. Bloxham v. Consumers' Electric Light, etc., Co., 301, 304. Blue V. McDuffle, 255. Blumle V. Kramer, 300. Board of Com'rs of Big Hom County T. Woods, 332. CASES CITED [The figures refer to pages] 629 Board of Com'rs of City and Coun- ty oif Denver v. Lunney, 48, 197, 203. Board of Com'rs of Clinton County V. Given, 285. Board of Com'rs of Douglas Coun- ty V. Woodward, 386. Board of Com'rs of Franklin Co. v. Bunting, 290. Board of Com'rs of Jackson County V. Br^naman, 339. Board of Com'rs of La Grange County V. Cutler, 346. Board of Com'rs of Logan County V. Harvey, 84. Board of Com'rs of Marion County V. Center Tp., 452. Board of Com'rs of Morgan County V. Pritchett, 386. Board of Com'rs of Petite Anse Drainage Dlst. v. Iberia & V. B. Co., 484. Board of Com'rs ,of Seward Coun- ty, Kan., V. iEtna Life Ins. Co., 331. Board of Com'rs of Shawnee Coun- ty y. Carter, 504. Board of Com'rs of Vigo County v. Davis, 504, 530. Board of Com'rs of Wells County V. Fahlor, 420. Board of Council of Danville v. Fiscal Board of Boyle County, 331. Board of Finance of School City of Aurola v. People's Nat. Bank of Lawrenceburg, 531. Board of Railroad Com'rs v. Mar- ket St. K. Co., 40. Board of Rapid Transit R. Com'rs, In re, 67. Board of School Com'rs of Indian- apolis v. Wasson, 187. Board of Street Opening, In re, 302. Board of Sup'rs of Arenac County V. Board of Sup'rs of Iosco Coun- ty, 387. Board of Sup'rs of Niagara County V. People, 47. Board of Water Com'rs v. Conk- ling, 331. Bobo V. Board of Levee Com'rs of Yazoo-Mississippi Delta, 457. Boca Mill Co. v. Gurir, 21, 40. Bodge V. Hughes, 211. Bogardus v. Trinity Church, 359. Bogart V. Castor, 480. Bogle V. Magone, 193. Boha'rt v. Anderson, 324. Boise City Artesian Hot & Cold , Water Co. v. Boise City, 597. Boliuger v. St. Paul & D. R. Co., BoUes V. Outing Co., 456. Boiling V. Petersburg, 561. Bolton V. King, 494. Bond V. Appleton, 623. Bond V. jay, 108. Bonds V. Greer, 519. Bon Homme County v. Bemdt, Bonney v. Cocke, 234. Booker v. Castillo, 185. Borkheim v. Firemen's Fund Ins. Co., 554. Borough of South Chester v. Broomall, 516. Borough of Warren v. Geer, 217. Borough of Washington, In re, 409. Bosley v. Mattingly, 53, 128. Bostick V. State, 159. Boston V. Cummins, 383. Boston Beer Co. v. Massachusetts, 137. Boston Mining & Milling Co., In re, 247. , Boston Seamen's Friend Soc. v. Boston, 512. Boston & M. R. R. v. Cilley, 409. Boston & R. Mill Corp. v. Gard- ner, 491. Bowe V. Richmond, 346. Bowen v. Minneapolis, 563. Bowerman v. Lackawanna Min. Co., 47. Bowers v. Beck, 585. Bowers v. Smith, 101, 129, 572, 602. Bowman, In re, 173. Boyce; In re, 111. Boyce v. Perry, 581. Boyd V. Holt, 519. Boyd V. Hood, 515. Boyer v. Onion, 148, 346, 535. Boyer v. State, 176, 319, 457. Boyt V. Mitchell, 604. Brace v. Solner, 331. Bradbury v. Wagenhorst, 52. Bradford v. Barclay, 414. Bradford v. Jones, 246, 247. Bradford v. Lafargue, 96. Bradley v. State, 118. Bradley Engineering & Mfg. Co. v, Heybum, 319. Bradshaw v. Lyles, 52. Bradstreet Co. v. Gill, 266. Brady v. Northwestern Ins. Co., 482. Bragg V. Clark, 435. Brailey v. Southborongh, 211. Brainard v. Bushnell, 241. Bramlett v. Wetlin, 400. Bramston v. Colchester, 331. 630 CASES CITED [The figures refer to pages] Branag.an v. Dulaney, 326, 353. ■ Branch v. Wilmington & W. K. Co., 234. Brandling v. Barrington, 62. Branham v. Long, 326, 353. Branyan v. Kay, 180. Braun v. Sfate, 340, 590. Braxton v. Winslow, 81. Brayton v. Merithew, 588. Breitung v. Lindauer, 401. Bremer v. Freeman, 16. Brennan v. Electrical Installation Co., 386. Brett V. Brett, 246, '253, 320. Brewer v. Harris, 238. Brewster v. Hough, 511. Bridge Proprietors v. Hoboken Land & Improvement Co., 621. Bridgman, In re, 533. Briggs V. Easterly, 124. Brinkley v. Brinkley, 544. Brinsfield v. Carter, 168. Briscoe t. Rich, 608. Bi^oad V. Broad, 180. Broadbent v. State, 370. Broaddus' Devisees v. Broaddus' Heirs, 404. Broadhead v. Holdsworth, 83. Brocket v. Ohio & P. R. Co., 183 Brockway v. Patterson, 211. Brokaw v. Commissioners of High- ways of Bloomington Tp., 542. Bronk v. Barckley, 26. Brookings County v. Murphy, 66, Brookman v. State Ins. Co., 430. Brooks V. Cook, 204, 211. Brooks V. Fiske, 509. Brooks V. Fitchburg & L. St. R. Co., 332, 346. Brooks T. Hydorn, 117. Brooks V. State, 483. Brooks V. Western Union Tel. Co.. 465. Brothers, The, 596. Brothers v. Pickel, 559. Brower v. Bowers, 407, 492. Brown, Ex parte, 142, 170, 171, 454. Brown, In re, 215, 557. Brown v. Anderson, 236. Brown v. Brown, ]4. Brown v. Buzan, 240, 241. Brown v. Chicago & N. W. E. Co., 194, 196. Brown v. Clark, 89. Brown v. County Com'rs, 329. Brown v. Delafield, 232. Brown v. Fifield, 26, 377, 378. Brown v. Galveston, 113. Brown v. Gates, 67. Brown v. Grand Fountain of the United Order of True Reformers, 386. Brown v. Hamlett, 160. Brown v. Hughes, 387. Brown v. Hunn, 483. Brown v. Kildea, 453, 464. Brown v. Lester, 527. Brown v. Nelms, 10. Brown v. Patterson, 431. Brown v. Pendergast, 67, •^• Brown v. Randolph County Court, 594. Brown v. Rouse, 374. Brown v. State, 213, 290. Brown v. Thompson, 77. Brown v. U. S., 303. Brown v. Wilcox, 387. Brown v. Williams, 238. Brown v. Wilmington & Brandy- wine Leather Co., 49. Brown v. Woods, 77. Brown's Committee v. Western State Hospital, 387. Brown University v. Granger, 513. Browne v. Turner, 265, 281, 284, 312, 322, 575. Bruce v. Schuyler, 386. Brudenell v. Vaux. 238. Brummitt v. Ogden Waterworks Co., 18, 137. Brun V. Mann, 176. Bryan v. Suiidberg, 221. Bryant v. Livermore, 588. Bryant v. Merrill, 421. Buchanan v. Smith, 379. Bueher v. Cheshire R. Co., 299, 620. Bueher y. Com.. 210. Buck V. Danzenbacker, 229, 561, Buckingham v. Moss, 406. Buckley, Ex parte, 405. Buckner v. Real Estate Bank, 1831 361. Buena Vista Freestone Co. T. Par- rish, 558. Buggein V. Cameron, 128. Bulger, In re, 162. Bulkley v. Andrews, 494. Bulkley v, Wilford, 183. Bull V. Loveland, 611. Bull V. Kew York City R. Co., 288, 332 Bull's" Estate, In re, 321. BuUard v. Bell, 86. Bullard v.. Smith, 585. Bulwinkle v. Grube, 195. Burch V. Watts, 485. Burden v. Stein, 92. Buvdick V. Kimball, 52, 308. Burgess T. Hargrove, 177. CASES CITED [The figures refer to pages] 631 Burgess v. Seligman, 621, 622. Burgett's Lessee v. Burgett, 247. Burke v. Burke, 324. Burke v. Jeffries, 330. Burke v. Monroe Co., 279, 320. Burke v. State, 48. Burleigh County v. Kiddei County, 523. Burnam y. Banks, 279. Bumette, In re, 113. Burnliam v. Stevens, 594. Burns v. Hays, 388, 423. Burnside v. Wand, 603. Burrows v. Bashford, 500. Burt V. Rattle, 153. Burton v. Frank A. Seifert Plastic Relief Co., 387. Burton v. Union Pac. Coal Co., 48, 332. Burwell v. TuUis, 384, 579. Butler V. Ricker, 457. Butler V. Trustees of Parochial Fund of Protestant Episcopal Church, 399. Butler V. U. S., 496, 507. Butte & B. Oonsol. Min. Co. v. Montana Ore Purchasing Co., 383, 598. Bynum t. Clark, 255. Byrne v. Byrne, 12. Bywater v. Brandling, 256, 320. Caddy v. Interborough Rapid Transit Co., 77. Cadogan v. Kennett, 497. Cadwalader v. Zeh, 188. Csesar Griffin's Case, 348. Cahen v. Brewster, 384. Cahill V. State, 338, 346. Cahn, In re, 67. Cahoon v. Coe, 515. - Cail V. Paoayanni, 107. Cain V. State, 495. Cairo & F. R. Co. v. Hecht, 544. Calder v. Bull, 383. Caldow V. Pixell, 545. Caldwell v. State, 383, 555. Calhoun v. Little, 300. Calking v. Baldwin, 221. Calladay v. Pilkington, 479. Callaghan v. McGdwn, 89, 328. Callaway v. Harding, 432. Calvin's Case, 58. Cambria Iron Co. v. Ashburn, 593. Cameron v. Merchants' & Manuf'rs , Bank, 291. Camp V. Rogers, 114. Camp V. Wabash R. Co., 608. Campau v. Detroit, 116. Campbell v. Holt, 414, 415. Campbell v. Jackman Bros., 429, 439. Campbell v. Nonpareil Fire-Brick & Kaolin Co., 387. Campbell v. Perkins, 479, Campbell v. Quinlin, 598. Campbell v. Skinner Mfg. Co., 412. Campbell v. Thompson, 184. Campbell v. Youngson, 339, 480, 580. Campbellsville Lumber Co. v. Hub- bert, 496. Cantwell v. Missouri, 110, 288. Cantwell v. Owens, 24. Capital Traction Co. v. Hof, 605. Capito V. Topping, 28. Capitol City Light & Fuel Co. v. Tallahassee, 137. Carbaugh v. Sanders, 538. Carberry v. People, 482. Carey v. Giles, 497. Carley v. Liberty Hat Mfg. Co., 361, 367. Carlson v. Stuart, .599. Carlton v. Felder, 623. Carolina, The, 132. Carolina Grocery Co. v. Burnet, 28. Carolina Sav. Bank v. Evans, 127. Carpenter v. Russell, 328, 346. Carr v. Judkins, 386, 584. Carrigan v. Stillwell, 66. Carroll v. Carroll's Lessee, 621. Carroll V. State, 427, 428, 432. Carson v. Phoenix Ins. Co., 559. Carson & Co. v. Shelton, 194. Carter, In re, 535. Carter v. Barnum, 556. Carter v. Barton, 604. Carter v. Hobbs, 314. Carter v. Whitcomb, 104. Carter, Webster & Co. v. U. S., 433. Cary v. Marston, 199. Casey v. Harned, 352. Casey v. St. Louis Transit Co., 452. Casher v. Holmes, 208. Caspar y. Lewin, 372. Cass County v. Sarpy County, 113. Cass County v. Security Imp. Co., 599. Cassard v. Tracy, 386. Castle y. Burdett, 237. Castner y. Walrod, 69. Caston y. Brock, 208. Gates y. Knight, 138. Catesby's Case, 237. Cathcart v. Robinson, 607. Caulker v. Banks, 533. Cavan v. Brooklyn, 210. Cavanaugh y. Patterson, 425. 632 CASES CITED [The figures refer to pages] Cavanaugh v. Scott, 554. Cearfoss v. State, 52, 56, 73. Gclla Commission Co. v. Bohlinger, 222. Central New Jersey Land & Imp. Co. V. Bayonne, 535. Central 6f Georgia K. Co. v. State, 590. Central Pac. R. Co. v. Shackelford, 579l Central R. R. v. Hamilton, 338. Central Union Tel. Co. v. Colum- bus Grove, 480. Central Vermont R. Co. v. Royal- ton, 542. Chaffee's Appeal, 82. Chalmers v. Funk, 66. Chamberlain v. Western Tiansp. Co., 376. Chambers v. Solner, 322. Chance y. Adams, 245. Chancellor of Oxford's Case, 164. Chandler v. Lee, 338. Chandler v. Spear, 519. Chapin v. Persse & Brooks Paper Works, 379, 478. , Chapman y. Douglas County, 400, Chapman v. State, 158, 408. Chapman v. Woodruff, 209. Chappell V. Lancaster County, 346. Charles River Bridge v. Warren Bridge, 137, 505, 508, 511. Charless v. Lamberson, 369, 492. Chartered Mercantile Bank y. Wil- son, 176. Chase, Ex parte, 557. Chase y. American Steamboat Co., 200. Chase v. Dwinal, 68. Chase v. Lord, 339; 340, 341. Chase, v. U. S., 578. Chavez, In re, 396. Chegaray v. New York, 204. Cherry Point Fish Co. y. Nelson, 77. , Chesapeake Stone Co. y. Moreland, 111. Chesapeake & O. R. Co. v. Pew, 259,599.. Chesapeake & O. R. Co. v. Walker, 369, 480. Chesebrough v. City and County of San Francisco, 113. Chesuut V. Shane's Lessee, 291. Chesnut Hill & Spring House Turnpike Road Co. y. Montgom- ery, 224. Chew Heoug v. U. S.. 395. Chicago, B. & Q. R. Co. y. Dunn, 488 Chicago, B. & Q. R. Co. y. State, 3S0, 381. Chicago, I. & K. R. Co. v. Knuffke, 183. Chicago, M. .& St. P. R. Co, v. State, 514. Chicago, M. & St. P. R. Co. y. Voelker, 265, 482. Chicago Public Stock Exchange v. McClaughry, 557. Chicago, P. & St. L. R. Co. y. Peo- ple, 425. Chicago. R. L & P. R. Co. v Peo- ple, 452. Chicago, R. I. & P. R. Co. v. State, 321. Chicago, R. I. & P. R. Co. t. Zer- necke 332. Chicago, St. 'u & N. O. R. Co. v. Pounds, 401. Chicago, W. & V. Coal Co. t. Peo- ple, 374, 530. Chicago & A. R. Co. v. Howard, 530. Chicago & A. R. Co. y. People, 570. Chicago & E. I. R. Co. y. State, 269. Chicago & N. E. R. Co. v. Sturgis, 489. Chichester y. Vass, 360. Childers y. Johnson, 349. Chiles y. School Dist. of Buckner, 415. Chillicothe & B. R. Co. v. Bruns- wick, 598. Chjn Yan, Ex parte, 230. Chisolm V. Weisse, 599. Choctaw, O. & G. R. Co. y. Alex- ander, 52. Chouteau y. Missouri Pac. Ry. Co., 101. Christiansen v. William Graver Tank Works, 16. Christy y. Prid?eon, 620, 622. Chudnovski y. Bckles, 142. Church y. Crocker, 332, 339. Church y. Stadlcr, 428. Church of Holy Trinity v. U. S., 136, 249, 287. Churchill v. President, etc., of Mer- chants' Bank, 238. Cincinnati College v. State, 511. rincinnati College y. Yeatman, 202. Cincinnati, H. & D. R. Co. y. Hedges, 412. Cincinnati, S. & M. R. Co., Ex parte, 558. Citizens' Gaslight Co. v. Alden, 387. City Council of City & County of Denyer v. Board of Com'rs of Adams County, 40, 306. CASES CITED 633 [The figures reler to pages) City of Alton v. Mtna. Ins. Co., 502, 515. City of Ashland v. Maciejewski, 160. City of Aurora v. West, 503. City of Austin v. Cahill, 7T, 112, 328. City of Beardstown v. Virginia, 21. City of Birmingham v. Southern Express Co., 48, 40, 318, 329, ool. City of Boonville v. Ormrod's Adm'r, 92, 123. City of Boston v. Shaw, 490. City of Bridgeport v. Housatonic R. Co., 89. City of Cairo v. Campbell, 563. City of Cambridge v. Boston, 612. ■ City of Cape G-irardeau v. Eiley, 552. City of Charleston v. Charleston 'Brewing Co., 78. City of Chicago v. Becker, 295. City of Chicago v. Green, 144, 285. City of Chicago v. Pittsburgh, C, C. & St. U R. Co., 84. City of Cincinnati v. Connor, 79. City of Cincinnati v. Cuckenberger, 588. City of Cincinnati v. Holmes, 326. City of Colorado Springs v. Ne- ville, 386. City of Connersville v. Conners- ville Hydraulic Co., 386. City of Covington v. McNickle's Heirs, 202. City of Denver v. Campbell, 322. City of Detroit v. Chaffee, 244. City of Detroit v. Detroit City R. Co., 486. City of Detroit v. Detroit United Ry., 488. City of Emporia v. Norton, 77, 580. City of Escondido v. Escondido LuEoiber, Hay & Grain Co., 322. City of Eureka v. Diaz, 239, 240. - City of Galena v. Amy, 540. City of Geneva v. People, 584. City of Haverhill v. Marlborough, 386. City of Holton V. Bimrod, 238. City of Houston v. Potter, 172. City of Indianapolis v. Huegele, . iiSO. Cijty of Indianapolis v. Imberry, 404. City of Indianapolis v. McAvoy, 568. City of Indianapolis v. Morris, 425. City of Jefferson v. Whipple, 96, 99. City of Laporte v. Gamewell Fire Alarm Tel. Co., 598. City of Lebanon v. Creel, 316. City of Lexington v. Comimercial Bank, 220, 2S5. City of Lincoln v. Janesch, 319. City of Los Angeles v. Lea vis, 199. City of Los Angeles v. Lelande, 577. City of Louisville v. Com., 336. City of ; Louisville v. ' Louisville School Board, 290. City of Louisville v. Louisville Wa- ter Co., 293. City of Lynchburg v. Norfolk & W. R. Co., 204, 209. City of Madison v. Daley, 544. City of Marion Center v. Toomy, 331. City of Martinsville v. Washington Civil. Tp., Morgan County, 332. City of Maysville v. Maysville St. R. & Transfer Co., 176, 515. City of Milwaukee v. McGregor, 9o. City of Mobile v. Stein, 137. City of New Orleans, In re, 239. City of New Orleans v. Poutz, 616; City of New York v. Herdje, 425. ' City of New York v. Manhattan R. Co., 176. City of New York v. New York City R. Co., 40, 305. City of Oakland v. Oakland Water Front Co., 77. City of Pella v. Scholte, 99. City of Peoria v. Calhoun, 13. CilT of Philadelohia v. Arrott,.231. City of Philadelphia v. Barber, 319. City of Philadelphia v. Costello, 455. City of Philadelphia v. Franklin Cemetery, 512. City of Philadelphia v. Ridge Av. Pass. Ry. Co., 133, 168. City of Portland v. New England Telephone & Telegraph Co., 220. City of Redlands v. Brook, 420. City of Red Wing v. Guptil, 229. City of Richmond v. Sup'rs of Henrico County, 313, 316. City of Rochester, In re, 531. City of Rochester v. Rochester R. Co., 511. City of Rushville v. RuShville Nat- ural Gks Co., 247. City of .Rutland v. Chittenden, 401. City of St. .Joseph v. Porter, 205.' City of St. Louis v. Goebel, 452. City of St. Louis v. Lane, 319. 634 CASES CITED [The figures refer to pages] City of St. Louis v. Laughlin, 204, 205, 209, 502. i^ity of St. Louis v. United Rys. Co., 137, 511. City of San Diego v. Granniss, 320. City of Seattle, In re, 599. City of Springfield v. Edwards, 21, 39. City' of Springfield v. Starke, 332. City of Terre Haute v. Evansville & T. H. R. Co., 40. City of Tyler v. St. Louis South- western &. Co., 599. City of Wheeling v. Campbell, 99. City of Wichita v. Burleigh, 316. City of Williamsport v. Com., 90. City of Wilmington v. Cronly, 425. City Publishing Co. v. Jersey City, 93. City Sewage Utilization Co. v. Davis, 530. Claflin V. Robertson, 189. Clancy v. McElroy, 555. Clare v. State, 66, 67, 113. Claremoat R. & Lighting Co. v. Putney, 481. Clark, Appeal of, 435. Clark V. American Exp. Co., 452. Clark V. Elizabeth, 533. Clark V. Hall, 520. Clark V. Janesville, 286. Clark V. .Teffersonville M. & I. R. Co., 598. Clark V. Kansas City, St. L. & C. R. Co., 52, 408. Clark T. Moody,. 290, 306. Clark V. Protection Ins. Co., 87. Clark V. U. S., 285. Clark's Run & S. R. Turnpike Road Co. V. Com., 293. Clark Thread Co. v. Kearny Tp., 430. Clarkson v. Hatton, 182. Clay V. Sude;rave, 297. 'Claydon v. Green, 262. Claysville Borough School Dist. v. Worrell, 276. Clayton v. Drake, 185. Clearfield County License Bonds, In re, 157, 163. Cleary v. Hoobler, 386. Cleavelaud v. Norton. 319, 452, 501. Cleland v. Porter, 572. Clemens Electrical Mfg. Co. v. Walton, 544. Clement! v. Jackson, 520. Cleveland, C. C. & St. L. R. Co. v. Backus, 322. Cleveland, C, C. & St. L. R. Co. v. Baker, 47. Cleveland, C, C. & St. L. R, Co. V. Henry, 483. Oliquot's Champagne, 521, 522. Coad V. Cowhiclc, 602. Coal & Coke Ry. Co. v. Oonley, 143, 347, 374, 574. Coalheavers' Case, 85. Coatsworth v. Barr, 179. Cobb V. Billings, 88. Cobb V. Griffith & Adams Sand, Gravel & Transp. Co., 16. Coble v. ShofCner, 469. Cocheu V. Methodist Protestant Church, 332. ■ Cochran v. Preston, 77. Codlin V. Kohlhousen, 349. Coe V. Lawrance, 52. Coffield v. Slate, 599. Coffin V. Cottle, 523. Coffin V. Rich, 53. Coggeshall v.. t)es Moines, 322, 445. Cohen v. Barrett, 246. Cohen v. State, 298. Cohens v. Virginia, 41, Cohn V. Neeves, 73, 470. Colburn v. Swett, 86. Cole V. Groves, 471. Cole T. Nunnelly, 573. Cole V. People, 602. Cole V. Skrainka, 77. Cole v. White County, 95. Colehan v. Cooke, 50, 256. Coleman v. Hart, 466. Collector, The, 246, 248, 277, 289, E21, 428. Collier v. State, 436. Collins V. Carman, 128. Collins T. Henderson, 40. Collins V. New Hampshire, 101. Collins v. State, 177. Collins Granite Co. v. Devereux, 228, 231, 379. Colt v. Eves, .549. Columbus. S. & C. R. Co. v. Mo- watt, 539, 540. Combined Saw & Planer Co. v. Flournoy, 515. Comer v. State, 590. Commercial Bank v. Sandford, 515. Commercial Bank of Natchez v. Chambers, 347. Commercial Union Assur. Co. of London v. Wolf, 422. Commissioner of Public Works in City of New York, In re, 418. Commissioners' Court of Limestone County V. Rather, 547. Commissioners of Hamilton County V. Rosche. 381. Com'rs of Highways v. Deboe, 326, 353. CASES CITED [The figures refer to pages] 635 . Com'rs of Inland Revenue v. Har- rison, 617. Com'i-s of Iieavenworth County t. Miller, 43. Com'rs of the Poor of Laurens Dis- trict V. Gains, 53T. Com. V. Adams Exp. Co., 273. Com. V. Alger, 319. , Com. T. Avery, 586. Com. V. Balph, 39. Com. V. Banl: of Mutual Redemp- tion, 247. Com. V. Banir of Pennsylvania, 155. Com. v. Barber, 226. Com. V. Barlow, 452, 465. <3om. V. Beck, 483. Com. V. Boston & Maine R. Co., 99. Com. V. Boynton, 75. Com. V. Bralley, 339. Com. V. Broad- St. Rapid Transit St. R. Co., 137. Com. V. Bryan, 172. Com. V. Cambridge, 321. Com. V. Cheney, 531. Com. V. Clark, 18, 29, 44. Com. V. Cooke, 458. Com. V. Cooley, 366. Com. V. Council of Montrose Bor- ough, 172. Com. T. Curry, 307. Com. v. Cutter, 495. Com. V. Davis, 476, 586. Com. V. De Jardin, 204. Com. V. Dowues, 32. Com. V. Duane, 319. Com. V. Brie & N. E. R. Co., 97. Com. V. Gabbert's Adm'r, 232. Com. V. Gaines, 247. Com. V. Garrigues, 98. Com. V. Glover, 52, 490. Com. V. Coding, 588. Com. V. Gouger, 167. Com. V. Green, 108. Com. V. Greenwood, 298. Com. V. Gregory, 304. Com. V. Griffin, 228. Com. V. Grinstead, 152. Com. T. Haly, 96. Com. V. Hare, 215. Com. V. Harris, 228. Com. V. Hartman, 32. Com. V. Hartnett, 608. Com. V. Herald Pub. Co., 171, 331. Com. V. Hitchings, 116. Com. V. Hoover, 76. Com. V. Hough, 431. Com. V. Howes, 490. ^ Com. V. International Harvester Co., 49, 132, 338, 344, 346 Com. V. Israel, 204. Com. V. Kammerer, 214. Com. v. Kelley, 267. Com. V. Keniston, 475. Comi V. Kenneson, 581. Com. V. Kilgore, 231. Com. V. Kimball, 85, 129. Com. V. King, 346. Com. V. Ledman, 122. Com. V. Loring, 131, 457. Com. V. LouisviUe & N. E. Co., 429, 452. Com. V. Lyon, 95. ' Com. V. McCaughey, 322. Com. V. McCloskey, 135. Com. V. Maeomber, 452, 465. C6ln. V. Mann, 294. Com. V. Marshall, 163, 254, 562. Com. V. Martin, 448, 475. Com. V. Miller, 306, 618. Com. V. Mortgage Trust Co. of Pennsylvania, 424. Com. V. Nunan, 516. Com. V. Oweusboro, Falls of Rough & G. R. Co., 305. Com. V. Paine, 290. Com. V. Peckham, 285. Com. V. Perryman, 448. Com. V. Posey, 290. Com. V. Potts, 117, 340. Com. V. Reynolds, 66. Com. V. Ross, 291, 302, 337. Com. V. Rumford Chemical Works, 374. Com V. Shaleen, 472. Com. V. Shopp, 265. Com. V. Slifer, 247. Com. V. Smith, 257, 258. Com. V. Standard Oil Co., 198, 454, 467. Com. V. Sudbury, 386. Com. V. Sylvester, 336. Com. V. Taylor, 264. Com. V. Trent, 77, 476. Com. V. Ward, 326. Com. V. Weiher, 186. Com. V. Wells, 465. Com. V. Wentworth, 239. Com. V. Worcester & N. R. Co., 452. Commonwealth Mut. Fire Ins. Co. V. Place, 262. Compton V. Pierson, 377. Cone V. Bowles, 468. Congdon v. Butte Consolidated R.. Co., 588. ■ Conger v. Barter's Adm'r, 594, 595. •Conn V. Board of Com'rs of Cass County, 333. Connecticut Mut. Life Ins. Co. v. Talbot, 285. 404, 492. Connecticut Mut. Life Ins. Co. v. Wood, 537. Conrad v. Nail, 576, 578. 636 CASES CITED [The figures refer to pages] Conrad t. State, 462. Conroy v. Perry, 501. Consolidated Coal Co. t. Miller, 219. ' Contest Proceedings, In re, 81. Contested Election of McNeill, In re, 140. Continental Hose Co. No. 1 v. Far- go, 179. Converse v. Burrows, 408, 495. Converse v. U. S., 336. Oonyers v. Com'rs of Roads & Kev- enues of Bartow County, 26. Cook V. COKi'rs of Hamilton Co., 94. Cook V. Federal Life Ass'n, 262. Cook V. Kelley, 537. Cook V. Meyer, 374, 378. Cook V. Walling, 395. Cook County v. Healy, 40. Cooke V. Spears, 561. Coolidge V. Williams, 504. Coomber v. Justices of Berks, 246. Coonce v. Munday, 84. Cooney v. Lincoln, 184. Cooper V. Metzger, 319. Cooper V. Seavems, 359, Cooper V. Shaver, 242. Cooper V. Utah Light & R. Co., 38. Cooper V. Yoakum, 608. Coosaw Min. Co. v. South Carolina, 246, 251, 500. Cope V. Rowlands, 87. Copeman v. Gallant, 257. Copper Queen Consol. Min. Co. v. tferritorial Board of Equaliza- tion, 302, 601, 602, 609. Corbett v. Bradley, 539. Corbett v. Nutl, 519. Corby's Estate, In re, 242. Cornell v. Coyne, 247. Cornell University v. Piske, 299, 620. Corning v. Board of Com'rs of Meade County, 176. Corning Town Co. v. Davis, 519. Cornman v. Hagginbotham, 494. Cornwall v. Todd, 517. Corporation of Yarmouth v. Sim- mons, 489. Cortelyou v. Anderson, 426. Cortelyou v. V. S., 312. •Cortesy v. Territory, 581. Corwin v. Comptroller General. 239. Costello V. Muheim, 598. Costigan v. Bond, 25. Costin V. Corporation of Washing- ton, 386. Cota V. Boss, 608. Gotten V. Leon County, 113. Cotton V. James, 195. Couch V. Jeffries, 395. Coulter V. Stafford, 597. Countess of Kothes v. Kirkcaldy Waterworks Com'rs, 204. County Board of lilection Com'rs of Gibson County v. State, 166. County of Cumberland v. Boyd, 313. V County of Lehigh v. Schock, 185. County of St. Charles v. Powell, 99. County Seat of Linn County, In re, 145, 334. Courtauld v. Legh, 145. Coutant V. People, 39. Cowan V. Western Union Tel. Co., 453. Cowanshannock Poor Dist. v. Arm- strong County, 52. Cox V. Atlantic Coast Line R. Co., 456. Coxson V. Doland, 226. Coy, In re, 457. Crafford v. Warwick County Sup'rs, 199. Crake v. Powell, 556. Cram v. Chicago, B. & Q. R. Co.; 286. Crane v. Reeder, 329, 396, 413. Cranor v. School Dist. No. 2, 395. Cranor v. Volusia County Com'rs, 420. Crawford v. Childress, Ex'rs, 138. Crawford v. Halsted, 422. Crawford v. Hathaway, 183. Crawfordsville & S. W. Turnpike Co. V. Fletcher, 319. Crescent Bed Co. v. New Orleans, 608, 609. . Crigler's Committee v. Alexander's Ex'r, 387. ■ Crisp V. Bunbury, 139. Crist V. Burlingame, 445. Crittenden v. Wilson, 363. Crocker v. Crane, 152. Crohn V. Kansas City Home Tel. Go., 306. Cromeliau v. Brink, 241. Cromwell v. MacLean, 567. Crone v. State, 242. Cronin v. Zimmermann, 607. Cronise v. Cronise, 38. Crooke's Case, 95. Crocker v. Pearson, 623. Croomes v. State, 77. Crosby v. Hawthorn, 457. Grosby v. Pere Marquette R. Co., 452. Grouch V. Hayes, 352. Grouse, In re, 77. Grow Dog, Ex parte, 340. Crowder v. Fletcher, 500. Crowell V. "Van Bibber, 480. Crowther v. Fidelity Ins. Trust & ^Safe Deposit Co., 205. Crozer v. People, 322. Cruger v. Cruger, 71. Cuilen V, Trimble, 140; ' Cullerton. v. Mead, 487. Culpepper v. Intemaiional & G. N. Culver V. Hayden, 480. Cumberland Telephone & Tele- graph Co. V. Hickman, 18, 29. Cumberland Telephone & Telegraph Co. v. Kelly, 363. Gumming v. Fryer, 497. Cuinmings v. Altron Cement & Plaster Co., 268. Oummings v. Coleman, 181. Cummings v. Howard, 402. Cummings v. Missouri, 383. Cummings v. Eosenberg, 386. Cummins v. Holmes, 241. Cummins v. Pence,.>67.' Cunningham v. Cassidy, 550. Cunningham v. Klamath Lake R. Co., 338. Curran v. Owens, 423. Currie v. Page, 295. Currier v. Marietta A C. R. Co., 481. Curry v. Lehman, 53, 66, 129, 143, 285, 331, 338, 346. Curry's Estate, In re, 177. Curtis V. Martin, 192. Cushiug V. Worrick, 5!24, 264, 265, 432. Custer County v. Yellowstone County, 537, 5.38. . Custin T. Viroqna, 582. Cutler V. Howard, 531, 555. Cutshaw V. Citv, 204. Cutter v. Doughty, 1Y8. Cutting V. Cutting, 203. CASES CITED [The figures refer to pages] 637 Daily v. Burke, 195. Daily v. Robinson, 50. Daily v. Swope, 43. Dale V. Irwin, 572. Dale County v. Gunter, 182. D'Allex V. Jones. 88. Daly V. Concordia Fire Ins. Co., 238. Daniel v. Simms, 77, 143, 286, 298, 802,. 334, 339. Daniels v. Andes Ins. Co., 322. Daniels v. Clegg, 598. Daniels v. Com., 339. , D'Aquin, Succession of. 250. Darby v. Condit, 535, 556. Darby v. Heagerty, 373. Darby y. McCiarrol, 145. Darlington Lumber Co. v. Missouri J.C. LiO,, 00. Dnrt V. Bagley, 251. Dash V. Van Kleeck, 612. Dauphin & L. F. Sts. R. Co. t. Kennedy, 511. Davenport v. Caldwell, 541. David v. Hardin Countyi 236. Davidson v. Biggs, 616. Davidson v. Wheeler, 408. Davidson v. Witthaus, 11. ' Davie V. Briggs, 71. Davis V. Abstract Const. Co., 361, Davis V. Randall, 52. Davis V. Robertson, 624. Davis V. State, 7?. Davis .& Co. V. Thomas, 66. Davison v. Davison's Adm'rs, 532. Davoll V. Brown, 509. Dawson v. Shaw, 453, 455. 473. Dawson County v. Clark, 201, 332. Day, In re, 431. Day V. Baker, 516. Day V. Munson, 617. Day V. Savadge, 135. Deake, Appeal of, 386. Dean v. Charlton, 520. Dean v. Metropolitan Electric R. Co., 367. Dean v. White, 559. Dean of Ely v. Bliss, 272. Dean & Chapter of Ely v. Bliss, 353. Deane v. State, 4. Deane v. Willamette Bridge Co.,' 559. Decker v. Dfemer, 77. De Cordova' v. Galveston, 380. Deddrick v. Wood, 247. \ De Perranti v. Lyndmark, 386. Deftebaek v. Hawke, ,593. De Forest v. Lawrence, 193. De Gtaffenreid v. Iowa Land & Ti-ust Co., 334, 339. Deitch V. Staub, 431. De Kalb County v. Atlanta, 95. Dekelt v. People, 47, 104, 285, 319. Deland v. Platte County, 381. Dela plane v. Crenshaw, 296, 365. Delaware Railroad Tax, 137, 511. Delhiciuent Taxes, In re, 512. Deloria v. Atkins, 475. Demiirtin v. Demartin, 557. De Merritt v. Weldon, 112. Deming v. McClaughry, 303. Denman v. Webster, 205 Denn v. Diamond,, 516. Uenn v. Reid. 49. Denniag v. Yount, 425. Dennis v. Moses, 324. 638 CASES CITED tTbe figures refer to pages] Dennison Mfg. Co. v. U. S., 192. Denny v. Bean, 392, 410, 415. Denny Hotel Go. v. Schram, 201. Dent V. State, 468. Department of Health of City of New York v. Owen, 452. Depas T. Kiez, 273. Dequasie v. Harris, 377. Dequindre v. Williams, 612. Derby & Co. v. Modesto, 239. De Sentmanat v. Soule, 161. Despain v. Crow, 616. Detroit v. Detroit & H. P. R. Co., 137, 504, 508. Detroit & M. R. Co. v. Alpena Cir- cuit Judge, 322. Deutschman v. Charlestown, 307. De Veaux v. De Veaux, 175. Devous V. Gallatin County, 338. De Vries v. Conklin, 377. Dewart v. Purdy, 387, 390. Dewey v. Goodenough, 369. De Witt V. San Francisco, 197. Dickersou v. Acosta, 518. Dickson v. Frisbee, 236. Diddle v. Continental Casualty Co., 453. Diederich v. Rose, 53. Dieterich v. Fargo, 408. Dietz y. Beard, 178. Disgs V. Lobsitz, 337. Dillehay v. Hickey, 373. Dillon V. Dougherty, 395. Dimpfel v. B^am, 580. Disbrow v. Saunders, 237. Di Sora v. Pliillips, 16. District Court of Lancaster, In re, 442. District of Columbia v. Dewalt, 285, 457. District of Columbia v. Fickling, 516. District of Columbia v. Washington Market Co., 312, 314. Ditto V. Geoghegan, 435. Division of Howard County, In re, 309. Dixon V. Ricketts, 602. Doane T. Omaha, 542. Doane v. Phillips, 47. Dobbins v. First Nat. Bank, 404, 430. Dobbins v. Northampton Tp., 252. Dodd V. State, 588. Dodge V. County Cc>m'rs of Essex, 364. Dodge V. Hedden, 109, 191. Dodge V. Nevada Nafr. Bank, 584. ■ Dodin V. Dodin, 381. Dodsworth v. Anderson, 12. Doe V. Avaline, 457. Doe V. Considine, 51. Doe V. Deavors, 98. Doe V. Martin, 265. Dole V. New England Mut. Marine Ins. Co., 279. Dollar Sav. Bank v. U. S., 442. Donaldson v. HarVey, 21. Donegall v. Layard, 311. Douuersberger v. Prendergast, 118. Donohue v. XCo. v. Walker, 373. Garby v. Harris, 148. Gardner v. Collins, 48, 621. Gardner v. Lucas, 388. Gardner y. The Collector, 277, 309. Garfield v. Bemis, 387. Garfield v. U. S., 319. Garfield Township, Finney County, V. Dodswotth Book Co., 236. Garland, Ex parte, 383. Garland County v. Hot Spnngs County, 278, Garland Power & Development Co. V. State Board of Railroad In- corporation, 157. Garr's Estate, In re, 373. Garrett v. Beaumont, 387. Garrigus v. Board of Com rs of Parke County, 232, 251, 252. Gnrrison v. District of Columbia, 78 Richards, 338. Southern Ry. Co., 120, Crescent City Brewing Garrison y. Garrison v. 462. Gasquet v. Co.. 238. _ , ^„„ Gast V. Board of Assessors, 432. Gaston y. Merriam, 381, 391. Gates y. Seibert, 178. 642 CASES CITED [The figures refer to pages] Gates & Son Co. v. Richmond, 194. Gatewood v. North Carolina, 7, 299. Gault's Appeal, 519. Gavin y. Shuman, 367. Gaylor, Appeal of, 294. Geddes v. Brown, 619. Gee V. Thompson, 589. Geiger v. Kobilka, 229. Generous, The, 120. Genesee Chief, The, v. Fitzhugh, 359. Gentry v. Bearss, 598. Geoghegan v. Atlas S. S. Co., 16. George v. Board of Education, 56, 148. George v. Wood, 575. Georgia Penitentiary Co. t. Nelms, 307. Georgia R. & Banking Co. v. Smith, 504. German Bank v. Louisville, 511. Germania Life Ins. Co. v, Ross- Lewin, 600. Gernert v. Limbach, 145. Getz V. Brubaker, 612. Gibbons v. Brittenum, 588. Gibbons v. The Fanny Barker, 367. Gibson v. Jenuey, 126, 367, 374. Gibson v. Miller, 411, 413, 418. Gibson v. People, 215, 307. Gibson v. State, 465. Gilbert v. Craddock, 85, 289. Gilbert v. Morgan. 66, 319. Giles V. Giles, 402. GilfiUan v. Hobart, 570. Gilham v. Wells, 198. Gilkeson v. Missouri Pac. R. Co., 329. Gilkey v. Cook, 129. Gill's Estate, In re, 184. Gilleland v. Schuyler, 425. Gillette v. Aurora E. Co., 480. Gillock V. People, 214. Gilman v. Matthews, 598. Oilman v. Sheboysan, 137, 511. Gilmer v. Lime Point, 481. Gilmour v. Pelton, 512. Gist V. Rackliffe-Gibsou Const. Co., 129, 327, 441. Given v. Simpson, 195. Given v. State, 585. Gladney v. Sydnor, 383. Glaser v. Rothschild, 101, 143, 251, 332, 345. Glasgow V. Rowse, 237. Glasgow, V. St. Louis, 316. Glass V. Alt, 88. Glenn v. York County Com'rs, 317. Glover v. Wilson, 96. Clyde V. Keister, 93. Goble V. Simeral, 125, 599. Goble, V. Stephenson, 416. Goddard v. Chicago & N. W. E. Co., 480. Goddard's Estate, In re, 555. Goillotel V. New York, 396, 579. Goldberg v. U. S., 193. Goldman v. Kennedy, 575. Goldman v. Sotelo, 598. Goldsmith v. Augusta & S. R. Co., 169. Gomez v. Timon, 5rf7. Gooch V. Stephenson, 363. Goode V. State, 15, 322. Goodell, In re, 238. Gooden v. Police Jury of Lincoln Parish, 67. Goodno T. Oshkosh, 580. Goodnow v. WeUs, 623. Goodrich v. Russell, 341. Goodrich v. State, 219. Goodrich's Estate, In re. 111. Goodwin v. Young, 109. Gordon V. Appeal Tax Court, 510. Gordon v. Parquhar, 74. Gordon v. People, 583. Gore V. Brazier, 126. Gorham v. Bishop of Exeter, 290. Gorham v. Luckett, 354. Gorley v. Sewell. 331, 424. Gorman v. Hammond, 354. Gorman v. McArdle, 400. Gorman v. Sinking Fund Com'rs, 612. Gorris v. Scott, 87. Gorton v. Champneys, 497. Gorum v. Mills, 509. Goss V. Goss, 91. Gould V. Langdon, 343. Gould V. Subdistrict No. 3 of Eagle Creek School Dist., 437. , Gould V. Wise, 159. Graham, Ex parte, 387. Graham v. Charlotte & S. C. B. Co., 159. Graham v. Van Wyck, 350, 377. Grainger v. Douglas Park Jockey Club, 110, 112. Grand Rapids Sav. Bank v. War' ren, 403. Grand Trunk Ry. of Canada v. Board of Com'rs of Cumberland County, 413. Granite Bituminous Pav. Co. ▼. McManus, 527, 544, 550. Grannis v. Superior Court of City and County of San Franciisco, 285. Grant v. Cooke, 331. Grant v. Maddox, 236. Grant v. Newark, 544. Grantman v. Thrall, 556. CASES CITED [The figures refer to pages] 643 Graves v. State, 443. Gray v. Coffin, 471. Gray y. Foster; 301. Gray v. Pullen, 90. Gray v. State, 541. Gray v. Stewart, 483. Gray's Lessee v. Askew, 601. Great -Centi Gas Consumers' Co. v. Clarke, 331. Greater New York Athletic Club v. Wurster, 565. Great Northern R. Co. y. Sno- homish County, 612. Great Northern R. Co. y. U. S., 11. 84, 425, 426. Great Western R. Co. y. Regina, 532. Great Western R. Co. y. Swindon & G. E. Ri Co., 224. Greaves y. Tofield, 608. Greeley v. Missouri Pao. R. Co., 285. Greely v. Thompson, 305. Green v. Bancroft, 293. Green y. Com., 275, 332. Green v. Gill, 495. Green v. Holway, 515. Green v. Kemp, 173, 186. Green v. Neal, 621. Green y. iNew York, 90. Green Vi U. S., 98. Green v. Weller, 176. Green y. Wood, 52, 155. Green Bay & M. Canal Co. v. Telulah Paper Co., 52. Greencastle Tp. in Putnam County V. Black, 18, 33, 36. Greene, Ex parte, 514. Greenleaf y. Goodrich, 189, 191. Greenough, In re, 215. Greenough v. Board of Police Com'rs of City of Providence, 78. Greenough y. Greenough, 612. Greenough y. Phoenix Assur. Co., 224. Greenough v. Phoenix Ins. Co., 267. Greenville Ice & Coal Co. y. Green- ville, 204. Greenwald v. Weir, 304. Greenwich Ins. Co. v. Carroll, 199. Greenwood y. Greenwood, 361. Gregory's Case, 329. Greiner v. Klem, 598. Grenada County v. Brogden, 113. Grenfell v. Com'rs of Revenue, 177. Grieb y. Zemansky, 128. Griffin y. Leslie, 495. Griffin V. Rhoton, 40. Griffin's Case, 575. Griffith V. Carter, 174, 259.' Griffith y. Wells, 88. Griffiths y. Montandon, 602. Grimes v. Bryne, 210. Grimes v. Reynolds, 47, 285, 332. Grinage v. 'I'imes-Democrat Pub. Co.,. 113. Gring v. Lake Drummond Canal & Water Co., 81. Grinstead v. Kirby, 47. Grissell V. Housatonic B. Co., 213. Grofi!, In re, 116. Groft- V. Miller, 588. GrofE V. State, 453. Glooms V. Hammon, 467. Gross V. Colonial Assur. Co., 142. Gross V. Fowler, 176, 238. ■'■ Guaranty Trust & Safe-Deposit Co. V. Buddington, 238. Guaranty Trust & Safe-Deposit Co. V. Green Cove Springs & M. R. . Co., 238, 486. Guard v. Rowan, 386. Guild V. Prentis, 453. Gulf, C. ,!& S. F. R. Co. V. Ft. Worth & N. O. R. Co., 596. Gulf, C. & S. F. R. Co. V. Hefley, Gulf & S. I. B. Cp. V. Adams, 510. Gunning v. People, 145. Gunter v. Leckey, 375, 451. Guptil v. McFee, 210. Gurr V. Scudds, 516. Guthrie V. Fisk, 63. Gwin V. Brown, 424. Gwinnfer v. Lehigh & D. G. R. Co., 354 Gyger's Estate, 224, 265. H Haarstick v. Gabriel, 417, Haas V. Shaw, 378. Hackett v. Chicago City R. Co., 432. Hackett v. Smelsley, 211. Hadden v. The Collector, 246, 248, 289. Haden v. Buddenslck, 241. Hadley y. Western Union Tel. Co., 462. Hagadorn v. Raux, 541. Hagenbuck v. Reed, 165, 320. Hagerty v. Shedd, 344. Haggerty v. Central R. Co., 491. Haggett V. Hurley, 352. Hahn v. Dierkes, 234. Hahh V. Salmon, 497. Hahn v. U. S., 302, 303. Halbert v. McCuUoch, 184. Halderman's Appeal, 251. Hale V. Marshall, 518. Hale y. Penn's Heirs, 519. Haley v. Philadelphia, 612. Haley v. Sheridan, 95. 644 CASES CITED [The figures refer to pages] Hall, In re, 331. Hall V. Adams, 73. Hall V. Bartlett, 180. Hall V. Norfolk & W. R. Co., 464. Hall V. State, 327, 452, 466, Hall's Safe Co. v. Heiring-HaU- Marvin Safe Co., 432. Hallett V. Ndvibn, 87. Halpiu V. Prosperity Ijoan & Building Ass'n, 386, 392. Halsey t. Belle Plaine, 38. Halsey Electric Generator Co., In re, 101. Halton V. Cave, 257. Ham V. McGlaws, 122. . Hamilton v. Buxton, 589. Hamilton T. The R. B. Hamilton, 265. Hamilton \. Hannibal & St. J, R. Co.; 623. Hamilton v. Ives, 509. Hamilton v. Jones, 367, 491. Hamilton v. Rathbone, 341. Hamilton Nat. Bank v, American Loan & Trust Co., ,33. Hammersmith & C. R. Co. v. Brand, 259. Hammock v. Farmers' Loan & ' Trust Co., 264, 265. Hammond v. Anderson, 616. Hanchett v. Weber, 84. Hancocks v.. Lablache, 82. Handley's Estate, In r^, 612. Haney v. Gartin, 412. Hankins v. People, 223, 274. Hanna v. Hurley, 497. Hannibal & St. J. R. Co. t. Mis- souri River Picket Co., 501. Hannon v. Madden, 366. Hannon v. Southern Paic. R. Co., ' 3^3. Hannum v. Tennessee, 395. Hare v. Carnall, 241, 569. Hare v. Mclntire, 198, 367. Harford v. Omaha, 537. Haritwen v. The Louis Olsen, 589. Harman v. Howe, 83. Harper v. State, 157, 163. Harrell v, Harrell, 574. Harriet, The, 331, 449. Harrill v. Davis, 597. Harrington v. Smith, 312. Harris v. Haynes, 71. Harrison v. Leach, 370, 478. Harrison v. National Bank o£ Monmouth, 487. Harrison v. People, 302. Harrison v. Sager, 598. Harrison v. Thomas, 113. Harrison v. Wissler, 176, 530* Hart V. Efart, 299. Hart V. Kennedy, 225. Hart V. Plum, 511, 545. Hart V. State. 383. ^ Hartford Bridge Co. y. Union Fer^ ry Co., 111. , Hartley v. Hooker, 139. Hartmann v. Hoffman, 585. Hartnett v. State, 172. Hartranft v. Wiegmann, 190. Hanson y. Elden, 399. Harvey v. Aurora & G. R. Co., 369, 480. Harvey v. Travelers' Ins. Co., 607. Haseltine v. Hewitt, 71. Haseltine v. Simpson, 556. Hasely v. Bnsley, 147, 319. Haskel y, Burlington, 407. Hasson v. Chester, 67, 122. Hastings y^ Lane, 386. Hastings Brewing Co., In re, 336, 338. Hathaway y. Johnson, 473. Hathaway y. Mutual Life Ins. Co., 585. Hathorn v. Natural Carbonic Gas Co., 102, 112. Hatton y. State. 454. Havemeyer y. San Francisco Su- perior Court, 557. Havemeyer y. Superior Court of San Francisco, 540. Hawkins v. Bare & Carter, 329. Hawkins y. Hawkins, 300. Hawkins y. Louisville & N. R. Co., 322. Hawkins v. Roberts, 11^ Hawkins v. U. S., 605. Hskyes v. Los Angeles, 540, 563. Hayes v. Williams, 491. Haythorn v. Van Keuren, 532. Healey v. Wheeler, 578. Heard v. Pierce, 89, 91. Hearn y. Ewin, 369, 486. Hearne v. Garton, 74. Heavor v. Page, 559. Heck y. State, 592. Hedden y. Richard, 188. Heilig y. City Council of PuyaUup, Heinv. Smith, 565. Helton, Ex parte, 308. Heman v. McNamara, 494. Hemmer v. Hustace, 550. Henderson v. Reynolds, 239. Henderson Bridge Co. v. Hender- . son, 510. Hendrickson v. Fries. 108. Hendrix v. Boggs, 570. Hendrix v. Rieman, 332. Henry y, Davis, 552. Henry y. Tilson, 129. Henry v. Trustees of Perry Tp., 146. CASES CITED [The figures reter to pages] 645 Henry & Coatswoith Co. v. Evans, 176. Hensehall y. Schmidtz, 406. Hering v. Clement, 222. Hermance v. Supervisors of Ulster County, 206. Herold v. State, 270. Herr v. Johnson, 358. Herrick v. Kandolph, 511. Herrman, In re, 191. Hershizer v. Florence, 397. Hesnard v. Plunkett, 174. Hess V. Trigg, 338. Hester v. Greenwood, 331. liettel V. First Judicial District Court, 132. Hewey v. Nourse, 363. Hewlett, Ex parte, 156, 326. Heydon's Case, 286. Hicks V. Jamison, 162. Hicks y. Krigbaum, 48, 129. Hicks v. McCown, 101. Hidalgo County Drainage Dist. V. Davidson, 77, 242. Higgins V. Rinker, 288. Higler v. People, 218. Hilbum V. St. Paul, M. & M. K. Co., 160. Hill V. Boyland, 29. HiU V. State, 324. Hill V. Williams,. 232, Hill's Adm'rs v. Mitchell, 309. Hilliker v. Citizens' St. R. Co., 608. Hillman, Ex parte, 181. Hills V. Chicago, 21. Hillsborough ■ County Com rs v. Jackson, 588. „„. , Himrod Coal Co. v. Stevens, 292. Hines v. Lockport, 542. Hines v. Wilmineton & W. R. Co., 53, 247, 460, 467. Hinrichsen v. Hinrichsen, 224. Hintou V. Locke, 240. Hixon V. Hubbell, 599. Hoa V. Lefranc, 414. Ho Ah Kow V. Nunan, 315. Hoboken Beef Co. v. Hand, 45z. Hockett V. State, 179. Hodecker v. Hodecker,- 5bO. Hoffman v. County Com'rs of Paw- nee County^ 302. , Hoffman v. Lewis. 323. Hogan V. Akin, 186. Hogan V. Page, 172. Hogan V. Piggott, 84. Hogg V. Emerson, 509. Hocruet V. Wallace, 487. Hplbrook v. Holbrook. 256, 321. Holhrook V. Nichol, 576. Holden v. O'Brien. 198. Holden v. U. S., 341. Holland; Ex parte, 93. Holland v. Davies, 572. Holliugsworth v. Chicago & G. Goal Co., 583. HoUister v. State, 137. HoUman v. Bennett, 357, 367. Holman t. Johnson, 89. Holman v. King, 16. Holman v. Trustees of School Dist. No. 5, 173. Holmberg v. Jones, 81. Holme V. Guy, 315. Holmes v. Chester, 491. tlolmes V. Hunt, 306, 412. Holmes v. Lambreth, 451. Home Ins. Co. v. New York, 199. Home Tel. Co. v. Granby & Neosho Tel. Co., 332. Homnyack v. Prudential Ins. Co. of America, 580, 584. Hooker v. Hooker, 387. Hooker v. Nichols, 180. Hooper v. Creager, 588. Hoover v. Saunders, 323. Hope V. Plentge, 537. Hopkins v. Jones, 386. ; Hopkins V. Mason, 478. Hoppe V. Hoppe, 557. Hord V. State, 305. Horn & Brannen Mfg. Co. v. Steel- man, 387. Homer v. State, 453. Horner v, Webster, 186. Hornsey Urban Council v. Hennell, 96. Horton v. Mobile School Com'rs, 52. Hosley v. Black, 238. Hosmer v. Sargent, 452. Hoss' Estate, In re, 204, 431. Hotaling v. Cronise, 370. Hough V. Porter, 104, 2d1. Houghton V. Payne. 290, 295. Houk V. Barthold, 495. . House of Reform v. Lexmgton, 111. _ „_ Houseman v. Com., 18, 35. Houston V. Robertson s Adm r, b, 7. Houston .'& T. C. R. Co. v. Travis County, 99. „ ^ .t Howard v. Emmet County, 47. Howard v. Fall River Iron Works Co., 411. Howard v. Moot 412. Howard v. Williams, 369, 493. Howard's Estate, In re, 129, Ibo. Howe V. Peckham. 360. Howe V. Welch, 623. Howell V. State, d.70. Howell V. Stewart, 220, 452. 466. Howells Min. Co. v. Grey, 601. Howes V. Newcomb, 367. 646 CASES CITED [The figures refer to pages] Howes Bros. v. Dolan, 575. Howland v. Luce, 546. Hoxie V. New York, N. H. & H. ' R. Co.', 607. Hoy V. Hoy, 596. Hoyt T. a?hompson, 623. Hubb'ard f. Brainard, 517. Hubbard v. New York, N, H. & H. R. Co., 411. Hubbard v. Wood,' 172.. Huber v. Robinsoji, 143. Hudler v. Golden, 487. Hudson V. Grieve, 244. Hudson River Tel. Co. v. Water- vliet Turnpike & R. Co., 217. Huff V. Alsup, 261. Hiiffi v; Sovereign Camp of Wood- " men. of the World, 401. Huffman v. State, 451. Htigg V. City Council of Camden, Huggins V. Ball, 114. Hughes V. Farrar, 594. Hughes V. Smith, 229. Hughes V. Wallace, 221. Huguelet v. Warfield, 457. Kulburt V. Merriam, 71. Hull V. Hull, 81. Hull V. State, 398. Hull V. Vining, 556. Hunt V. Burns, 452. Hunt V. State, 28. Hunter v. Nockolds, 245. Huntington v. Attrill, 463. Huntress, The, 33, 34. Hurford v. Omaha, 587, 538, 550. Hurley v. South Thomaston, 218. Hurley v. South Thomaston, 332. Hutchens v. Covert, 331. Hutchings v. Commercial Bank, 157. Hutchinson v. Watson Slough Ditch Co., 359. Hutchison v. Bowker, 14. Hutson v. New York, 532. H. W. Wright Lumber Co. v. Hix- ou, 425. Hyatt V. Anderson's Trustee, 586. Hyatt V. Taylor, 47. Hyde v. Cogan, 472. Hyde's Ex'rs v. Hyde, 218. Hyland v. President, etc., of Vil- lage of Ossining, 480. Hyrford v. Omaha, 538. I Idaho Mut. Cooperative Ins. Co. v. Myer, 47. Ihmsen t. Monongahela Nav. Co., 442, Illinois Cent. R. Co. v. Chicago, B. & N. R. Co., 482. Illinois Land & Loan Co. v. Bon- ner, 402. . Immigration Soc. of Albermarle County V. Com., 122. Independent Sdiool Dist. No. 5 v. CoUins, 451. Indiana N. & S. E. Co. v. Attica, 370. - Indianapolis NortJiern Traction Co. V. Brennan, 176. Indianapolis Northern Traction Co. V. Ramer, 338, 339. Indianapolis & St. L. R. Co. v. Blackman. 394. Ingalls V. Cole, 341. Inge V. Murphy, 13. Ingle V. Batesville Grocery Co., 324. Inhabitants of, Eliot v. Prime, 516. Inhabitants of Medford v. Learned, ■ 386. Inhabitants of Mendon v. Worcest- er County, 321. Inhabitants of Milford v. Orono, . 540.. Inhabitants of Monmouth y. Leeds, 543, 559. Inhabitants of Monson v. Chester, 63. Inhabitants of Montville v. Haugh- ton, 307. Inhabitants of Orono v. Bangor Ry. & Electric Co., 48. Inhabitants of Orvil Tp. v. Bor- ough of , WoodclifE, 168. Inhabitants of Paris v. Hiram, . 237. Inhabitants of Rutland v. Mendon, 147. Inhabitants of Somerset v. Digh- 'ton, 126, 386. Inhabitants of Springfield v. Wor- cester, 423. Inhabitants of Veazie v. China, 540, 542. Inhabitants of Williamsburg v. Lord, 515. Inkster v. Carver, 113. International Trust Co. v. An- thony, 319. International & G. N. R. Co. v, Voss, 458. Interstate Commerce Commission v. Baltimore & O. R. Co., 606. Interstate Drainage & Investment Co. V. Board of Com'rs of Free- bom County, Minn., 129. Intoxicating Liquor Cases, In re, 77. CASES CITED [The figures reler to pages] Iowa Homestead Co. v. Webster County, 113. Iowa Savings & Loan Ass'n v. Heidt, 585. Ireland v. Mackintosh, 415. Irish T. Elliott, 453. Irwin, In re, 189. Isham V. Bennington Iron Co., 354. Isham V. Morgan, 202. I^herwood v. Oldinow, 297. Israel v. Arthur, 486. Itata, The, 195. iTey V. State, 113; 647 J Jackman v. Garland, '390. Jackson v. Bradt, 350. Jackson v. Brookins, 211. Jackson v. Catlin, 487. Jackson v. Chicago, R. I. & P. E. Co., 329. Jackson v. Collins, 70. Jackson t. Gilchrist, 255. Jackson v. Lewis, 50. Jackson v. Moye, 439. Jacksoif V. Reeves, 198. Jackson v. State, 21, 532. Jackson v. Warren, 487. Jacksbn v. Xouug, 550. Jackson County v. Derrick, 180. Jackson, L. & S. R. Co. v. Davi- son, 500. Jacob V. U. S., 81. Jacobs, In re, 482. Jacobson v. Massachusetts, 112. James v. Dexter, 560. James v. Du Bois, 145, 243, 254. James v. Oakland Traction Co., 423. James v. Rowland, 612. James v. United States Fidelity & Guaranty Co., 52, 143, 168, 228. Jr.mieson v. Potts, 599. Jamison v. Burton, 602. Jamison v. Zausch, 387. Jarvis v. Hitch, 606. Jasper v. U. S., 77, 386. Jay v. School Dist. No. 1 of Cas- cade County, 148. Jayne v. Imperial Irr. Co., 501. J. B. Bostic Co. V. Eggleston, ' 598. J. Burton Co. v. Chicago, 295. Jefferson Branch Bank v. Skelly, 621. Jefferson County Nat. Bank v. Dewey, 395. Jeflerys v.. Boosey, 108, 245. Jeffries vl Rowe, 392. Jelly V. Dils, 228. Jenkins v. Ewin, 42, 43. Jenkins v. Putnam, 544. Jenkiuson v. Thomas, 454. Jennings v. Alaska Treadwell Gold Min. Co., 597. Jennings v. Com., 453. Jensen v. State, 210. Jersey City v. Hall, 329. Jessee v. De Shong, 412, 423, 581. Jessup, In re, 445. JessuD V. Carnegie, 300, 623. Jewell V. Ithaca, 289. Jewell V. Weed, 112. J. I. Case Threshing Mach. Co. v. Watson, 323. Jimison v. Adams County, 386. Jocelyn v. Barrett, 159, 232. Jockers v. Borgman, 423. Johns V. Sheridan, 346. Johnson v. Ballou, 284, 304. Johnson v. Barhani, 170. Johnson v. Des Moines life Ins. Co., 4. Johnson v. Equitable Life. Assur. Soc. of United States. 322. Johnson v. Fluetsch, 360. Johnson v. Hudson River R. Co., 47. Johnson v. Mann, 52. Johnson v. Southern Pac. Co., 220, 457. Johnson v. State, 462, 546. ' Johnson City Southern R. Co. v. South & W. R. Co., 369, 480. Johnson's Estate, In re, 445. Johnston v. Louisville, 86, 87, 221. ■Tohnstou v. Pate, 541, 556. Johnston V. Sikes, 524. Johnston v. Southwestern R. Bank, 023. Johnstone v. Taliaferro, 178. Jones, Ex parte, 117, 156. Jones v. Broadway Roller Rink Co., 326, 328. Jones V. Carmarthern, 93. Jones V. Collins, 519. Jones V. Com., 414. Jones V. Cook, 272. Jones V. Dexter, 174, 450. Jones V. Gordon, 494. Jones V. Green, 200. Jones V. Grieser, 322. Jones V. Leeds, 47. Jones V. Light, 184. Jones V. Newhall, 496. Jones V. Proprietors of Morris Aqueduct, 4. Jones V. St. Onge, 577. Jones V. Semple, 477. Jones V. Smart, 81. Jones V. State, 540. _ Jones V. Statesville, 5o7. I Jones V. Surprise, 88, 269. 648 CASES CITED [The figures refer to pages] Jones & Nimick Mfg. Co. v. Com., 511. Jonesboro, L. C. & ]<]. B. Co. v. Brookfield, 451. Joplin Supply Co. v. West, 77, 143. Jordan, Ux parte, 557. Jordan v. Davis, 541. Jordan v. Wimer, 399. Joseph Speidel Grocery Co. t. War- der, 32t>. Josselyn v. Stone, 96. Journeay v. Gibson, 392. Judkins v. TafEe, 409. Judson V. Smith, 484. Juliand v. Rathbone, 545. Julius Y. Bishop of Oxford, 532. Junge V. Hedden, 189. Justices of Inferior Court of Talbot County V. House, 551. K Kadderlj v. Portland, 106. Kaiser v. Idleman, 215. Kaiser Land & Fruit Co. v. Curry, 132. Kalfus V. Kalfus, 374. Kamerick v. Castleman, 575, 579. Kane v. Com., 239. Kane v. Footh, 559. Kane v. Kansas City, Ft. S. & M. •Ry. Co., 127, 348. Kane v. People, 350. JSansaa City v. Summerwell, 138. Kansas City, W. & N. W. B. Co. v. Walker, 558. Kansas Pac. E. Co. v. Reynolds, . 557. Kansas Pac. R, Co. v. Wyandotte County Com'rs, 347. Karr v. Washburn, 519. Katzman v. Com., 13, 179. Kaufman v. Carter, 77, 247. Kearney pounty t. Taylor, 419. Keeley v. Great Northern K. Co., 401. Keim v. Reading, 3C1, 374. Keith, Ex parte, 308. Keith V. Guedry, 380. Keith V. Quinney, 286. Kellar v. James, 367, 447. Keller v. State, 21, 36. Kelley v. Boston & M. R. E., 401. Kelley v. Gage County, 77. Kelley v. Kelso, 395. Kelley v. Killourey, 69. Kellogg T. Oshkosh, 137. Kellogg V. Page, 540. Kelly V. Herrall, 516. Kelly V. Larkin, 425, 426. Kelly V. Morse, 529. Kelly V. Thuey, 608. Kelly V. Waterbury, 126. Kelly's' Heirs V. McGuire, 150, 156. Keisey v. KendaU, 580, 612. Kemble v. McFhaill, 629, 541. Kemp V. Holland, 224. Kemp V. Monett, 220. •, Kendall v. Garnean, 608. Kenefick v. St. Louis, 113. Keunealy v. Leary, 489. Kennedy v. Garrigan, 469.- Kennedy v. Hartranf t,- 188, 189. Kennedy v. Sacramento, 562. Kennedy's Heirs v. Kennedy's Heirs, 69, 606. - Kennett's Petition, 409. Kenney v. Hudspeth, 40. ICensington Dist. Com'rs T. Keith, 431. Kent V. Bentley, 398. Kentucky v. Dennison, 185, 215. Kerigan v. Force, 111. Ketcham v. New Albany & S. R. Co., 487. Keyport & M. P. Steamboat Co. v. Farmers' Transp. Co., 286, 315. Kilkelly v. Slate, 599. Kille V. Reading Iron, Works, 409. ICilpatrick \. Byrne, 524. Kimball v. Lamson, 238. Kimbray v. Draper, 414. King V. Armstrong, 51, 201. King V. Athos, 256. King V. Barham, 55, 134. King V. Beeston, 127. King V. Bristol Dock Co., 227. King V. Cartwright, 246. King v. Course, 418. King V. Eccleston. 616. King V. Perby, 540. King V. Qwenop, 246. King V. Hassel, 232. ICing T. Hodnett, 286, 458. King V. Hogg, 295. King V. Justices of Herfordshire, 235. King V. Justices of York, 468. King V. Loxdale, 339. King V. Manchester & S. Water- works, 204. King V. Milverton, 262. King V. Newark-upou-Trent, 433. King V. Pierce, 256. King V. Sawyer, 237. ^ King V. Stoke Damerel, 48. King V. Tlwelkeld, 433. King V. Wallis, 204. King V. Williams, 245. King T. Wright, 246. King V. Younger, 616. King Real Estate Ass'n v. City o£ Portland, 535. King's Estate, In re, 101. CASES CITED [fhe figures refer to pages] 649 Kingsberry v. Kyan, 418, Kinnaird v. Com., 247. Kinney v. Hearing, 220. Kirk V. Bartholomew, 359. Kirk V. Morley Bros., 67, 319. Kirkpatrick v. Gibson, 606. Kirman v. Powning, 602. Kiskaddon v. Dodds, 384. Kittlnger v. Buffalo Traction Co., KittreU v. State, 413. Klauber v. San Diego Street Car Co., 120. Klemm v. Fread, 308. Kline v. Baker, 16. Knapp V. Brooklyn, 577. Knight V. Fisher, 558. •Knight V. Rawlings, 598. Knight V. Shelton, 40. Knighton v. Burns, 389. Knpde v. Baldrldge, 236. Knowlton v. Moore, 126, 246. Knoxville Water Co. v. Knoxville, 508. Koch V. Bridges, 47, 56, 580, 534, Koch'v. Fox, 231. Kohn V. Hinshaw, 530. Kohn Y. McKinnon, 605. Kolb V. Reformed Episcopal Church of the Reconciliation, 329. KoUenberger v. People, 331. Korah v. Ottawa, 354. Koshkonong v. Burton, 612. Kountze v. Omaha, 316, 329. Kramer v. Goodlander 78. Kramer v. Rebman, 366. Kraus v. Lehman, 111. Kreiner, In re, 338. Kring v. Missouri, 383. Kroop V. Forman, 553. Kunkalman v. Gibson, 168. 222. Kursheedt Mfs- Co., In re, 189. Kwong Yuen Shing v. U. S., 190. Lace T. People, 42. Lackland v.- Walker, 257. Lackawanna Iron & Coal Co. v. Little Wolf, 551. Lacon v. Hooper, 237. Ladew v. Tennessee Copper Co., 125. Lagler v. Bye, 446, 464, 470, 472, 482. Lahart v. Thompson, 102. Laidler v. Young's Lessee, 254, Lair v. Killmer, 452, 454. Laird v. Carton, 408. Lake v. Parish of Caddo, 287. Lake Drummond Canal & Water Co. V. Com., 510. Lake Shore & M. S. R. Co. v. Cin- cinnad, W. & M. Ry. Co., 104. Lamar Water & Electric Light Co. V. Lamar, 127. Lamb v. Powder River Live Stock Co., 392. Lamb v. Robertson, 189, 191. 192. Lamb v. State, 186. Lambert v. Smith, 185. Lambert v. Taylor, 95. Lambertson v. Hogan, 612. Lamborn v. Dickinson Countv Com'rs, 620. " ^ Lambrecht, In re, 129, 387. Lamson v. Hutchings, 179. Lancaster County v. Lancaster City, 157, 162. Landrum v. Flannigan, 83. Landry v. American Creosote Works, 178. Lane v. Kolb, 341. Lane v. Schomp, 151, 168. Lane v. White, 409. Lane & Co. v. Watson, 30O, 623. Langdon v. Potter, 126. Langlois v. Dunn Worsted Mills, 361, 374. Lanham v. Lanham, 108. Lantry v. Mede, 204. Large v. Orvis, 13. Largey v. Chapman, 598. Larkin v. SafCarans, 173, 407. Larned v. Donovan, 184. Lasater v. First Nat. Bank, 172. Lascallett v. Com., 453. Lasche v. Dearing, 204. Latham v. Lafone, 260. Lau Ow Bew v. U. S'., 107. Lauve, Succession of, 618. Lavender v. Rosenheim, 606. Law.v. Smith, 143. Lawrence v. Hennessey,, 184. Lawrence t. Louisville, 386, 415. Lawrence v. McCalmont, 445. Lawrence Johnson & Co. v. IT. S., 192. Lawrence R. Co. v. Mahoning County Com'rs, 410. Lawson v. Tripp, 324. Lawton v. Perry, 411. Lawyer v. Carpenter, 328. Leach, In re, 504. Leach v. Burr, 238. Leader Printing Co. v. Nicholas, 432. Leahart v. Deedmeyer. b86. Learned v. Corley, 488. 650 CASES CITED [The figures refer to pages] Lease v. Owen Lodge No. 146, I. O. O. F., 397. Leavenworth L. & G. R. Co. v. U. ; S., 501. Leavitt v Blatchford, 56. Leavitt V. Liovering, 166. Le Bosquet v. Myers, 604. Lederer Realty Corp. v. Hopkins, "" 319 Lee V. Buckheit, 409. Lee V. Lincoln, 189. Ljee V. Mutual Reserve Fund Life A'ss'n, 558. Lee V. Roberts, 323. Lee V. Tucker, 162. Leeper v. Texas, 184. Leese v. Clark, 312. Leete v. State Bank of St. Louis, 397 381 Leffin'gwell" v. Warren, 7, 299, 620, 621. Lehigh County v. Meyer, 432. Lehigh Water Co.'s Appeal, 508. .lifihman v. McBride, 583. Lehman v. State, 324. Lehman, Durr & Co. v. Robinson, 147. Leigtou V. Maury, 535, 564. Leister's Appeal, 565. Leland, Bx parte, 204. Lpnhart v. Cambria County, 313. Leohi Tp. v. Taylor, 142. Le Bpy v. ChaboUa, 331. Lescallett v. Com., 453. Lester, Ex parte, 564. Lester v. Garland, 241. Levering v. Shockey, 402. Leversee v. Reynolds, 165. Levin v. U. S., 40. Levy, Ex parte, 565. Levy V. Hitache, 619. Lew V. Bray, 585. Lewellyn v. Ellis, 495. Lewis V. Northern Pac. R. Co., 203. Lewis V. State, 529, 574, 608. Lewis V. Welch, 87. Life Ass'n of America v. St. Louis County Board of Assessors, 532. Liffingwell v. Warren, 7. Lima v. Lima Cemetery Ass'n, 502, . 512. Lime City Bldg., Loan & Sav. Ass'n V. Black, 321. Lincoln Building & Saving Ass'n V. Graham, 612. Lincoln School Tp. v. American School Furniture Co., 346. Lindley v. Davis, 598. Ijindsay v. Cundy, 270. Lindsay v. United States Savings & Loan Ass'n, 612. Lindsley v. Natural Carbonic Gas Co., 112. Lindsley v. Williams, 164. Lingonner v. Ambler, 326. ' Linton's Appeal, 385. Lippmcott Glass Co. v. Ohio Oil Co., 256. Lisbon School Dist. No. 1 v. Lan- daff Town School Dist;, 182. Litch V. Brotlierson, 487. Litch V. People, 51. Litchfield v. Pond, 400. Little V. Bowers, 511. ijttle y. State, 47. Little Miami & C. & X. R. Co. v. Dayton, 97. Livermore v. Board of Chosen Freeholders of Camden County, 211. Lockwood V. District of Columbia, 339. Locust Avenue, In re, 575. Loeb V. Mathis, 298. Loewy v. Gordon, 182, 369. Logan County v. Camahan, 129. Logan & Bryan v. Postal Tele- graph & Cable Co., 110. Logsdon v. Logsdon, 176. Logue V. Fenning, 506. Logwood V. President, etc., of Planters' & Merchants' Bank of Huntsville, 484. Long V. Louisville, 386. Long v. People, 4o2. Long v. Ryan, 180. Longlois V. Longlois, 582. Looker v. Davis, 435. Looker v. Halcomb, 369, 484. Looney v. Hughes, 547. Lorain Steel Co. v. Norfolk & B. St. R. Co., 248. Loranger v. Jardine, 88. Lord & Polk Chemical Co., In re, 374. Lorenz v. U. S., 265. Louis Olsen, The, 579, 589. Louisiana v. Pilsbury, 622. Louisville & E. Mail Co. T. Bar- bour, 302. Louisville & N. R. Co. v. Com., 199. Louisville & N. R. Co. v. Gaines, 512. Louisville & N. R. Co. v. Mottley, 380. Louisville & N. R. Co. v. Smith, 96. Love V. Hinckley, 295. Lovett V. Ferguson, 252. Loving, Ex parte. 111. Lowe V. Phelps, 83. CASES CITED [The figures refer to pages] 651 Lowe T. U. S., 77. Lowe V. Yolo County Consol. Wa- ter Co., 347. Lowery v. Board of Graded School Trustees in Town of Kerners- Tille, 113. Lowman v. Billington, 352. Lowndes County v. Hunter, 118. Lowry v." Inman, 471. Lucas T. McBlair, 255, Lucas T. State, 393. Ludington v. U. S^ 140, 576. Ludlow, In re, 207. Lutz T. Itfagone, 190. Lyde v. Barnard, 149. Lydecker v. Babcock, 390. Lyman v. Gramercy Club, 138. L^man v. Martin, 116. Lynch v. Cronan, 378. Lynch v. Union Trust Co. of San Francisco, 515. Lynn v. Polk, 112. Lyons v. Hodgen & Miller, 476. M McAfee v. Southern R. Co., 352. McBrian y. Grand Rapids, 543. McCabe's License, In re, 1(3. McCaUister v. Cottrille,- 520. McCarter v. Lexington, 112. McCarthy v. McCarthy, 361, 374. McCaskiU v. Union Naval Stores Co., 453. McCaslin v. State, 96. McChesney v. Hager, 298. McCleary v. Babcock, 83, 113, 269, 612, 614. McClunny v. Silliman, 523. McCluskey v. Cromwell, 50. McConky v. Superior Court of Ala- meda County, 228. McConnell v. Allen, 541. McCool V. Smith, 183, 361. McCord V. State, 453. McCormick Harvesting Mach. Co. V. Mills, 452. McCort, In re, 541. McCoy, Ex parte, 176. McCoy V. Hedden, 189, 522. McCracken v. Hay ward, 416.^ McCulsky V. Klosterman, 240. McCurtin v. Grady, 291. " McCutcheon v. People, 75, 602. McDade v. People, 214.. McDonald v. Hovey, 594, 606. McDonald v. Pittsburg, C, O. & St. L. R. Co., 178. McDonough, In re, 451. McDougald v. Dougherty, 348. McDougald v. New lork Life Ins. •Co., 381. McDowell V. Peyton, 620. McDowell V. Rockwood, 420. Mace V. Cammel, 256. McEldowney v. Wyatt, 415, McEvoy V. Sault Ste. Marie, 608. McFadden v. Blocker, 219, 388, 598, 604. McFaddin v. Evans-Snider-Buel Co., 419. McFarland v. Benton, 404. MacFarland v. Elverson, 267, 482. McFarland v. Missouri, K. & T. R. Co., 143, 220. Macfarlaud v. Moore, 480. McFerrau v. Powers, 290. McGann v. People, 607. McGarrahan v. Maxwell, 312, McGairy v. Nicklin, 199. McGeehan v. Burke, 386. McGehee v. McKenzie, 420, McGill V. Leduc, 494. McGinn v. State, 238. McGinnis v. Missoiiri Car & Foundry Co., 319. McGlothlin v. Pollard, 397. McGovern v. Connell, 391. McGovney v. Gwillim, 598, McGowan v. State, 271. McGrady v. Terrell, 338. McGregor v. State, 177. McGuire v. Chicago, B. & Q. R. Co., Ill, 581. Mclneruey v. U. S., 475. Mclnnis v. State, 375. Mclntire v. State, 607. Mcintosh V. Johnson, 394. Mclntyre v. Ingraham, 204, 226, 242. Mclntyre v. State, 42. Melver v. Ragan, 524. McJunkins v. State, 187, 362. Macke v. Byrd, 346. McKean v. Gauthier, 328. McKee v. McKee's Adm'r, 187. McKee Land & Improvement Co. V. Williams, 152, 162. McKeen v. Delancy, 290, 299. McKeen v. Delancy's Lessee, 620. McKenn v. Delancy, 289. McKehnan's Estate, In it, 602, Jjcivenzie v. State, 607. Mackey v. Miller, 262. McKibben v. Lester, 576. ' MeKinnon v. McLean, 606, McKinstry v. Collins, 412. McKoin V. Cooley, 138. McLean v. Moran, 351. McLebd v. Board of Com'rs of Town of Carthage, 48. McLeod V. Burroughs, 614. McLeod V. Scott, 540, 564. 652 CASES CITED [Tlie figures refer to pages] V. Bridgewater Tp., V. Fariar, 612. Lyucli, ai/0. Morrison, 023. Moyes, 387. State,. 184. McUreary, 369. v. Kobinson, 238. President, etc., of Vil- HcLorinan 152. McManning McAianus v. McMerty v. McMillan v. McMillan v. McMuUin V. McMurchey McNabb v. lage of Tonica, 422. McNally v. Field, 515. McNaughton's Will, In re, 412. McNeely t. State, 596. McNemar v. Cohn, 367. McNichol v. Pacific Exp. Co., 14. McNichol V. United States Mer- cantile Reporting Agency, 612. McNutt V. McNutt, 598. McPhail V. Gerry, 265.- McPliee & McGinnity Co. v. Union Pac. K. Co., 40. McPherson v. Blacker, 42, 117. McPherson v. Leonard, 29, 552. McRae v. Holcomb, 435. . , McReynolds v. People, 219, 322. McRobertST. Winaut, 546. McSurley v. McGrew, 419. McWiUiams v. Adams, 283. Maddoclc y. Magone, 191. Maddox v. Graham, 44; Madison, W. & M. Plank Road Co. V.' Reynolds, 163, 582. Magaha v. Hagerstown, 541. Magdalen College Case, 95, 97. Magee v. Com., 546. MagiU ,v. Parsons, 180. Magistrates of Dunbar v. Duchess of Roxburghe, 296. Magnusson v. Williams, 234. Magruder v. Esmay, 518. Maiss V. Metropolitan Amusement Ass'n, 179. Mallery v. Frye, 412. Malloy V. Chicago & N. W. R. Co., 150. Malloy T. Com., 329. Malone v. Williams, 11, 308. Manger v. Board of State Medical Examiners, 265. Mangus v. McClelland, 608. Manhattan Sav. Inst, In re, 305. Manitowoc Clay Product Co. v. Manitowoc, G. B. & N. W. R. Co.. 599. Mankel v. U. S., 165. Manly v. State, 23. 33. Mann v. Gordon, 490. Mann v. State Treasurer, 601. Manthey v. Vincent, 21, 22. Manuel v. Manuel. 332, 349. Marburg- V. Cole, 357. Mardre v. Felton, 106. >iarianna I'lora, The, 107, Mark Cross Co., In re, 176- iViarJiee v. People, 435. Markover v. Krailss, 177. Marmaduke v. People, 358. Marquette Third Vein Coal Co. v. Allison, 77. Marqueze v. Caldwell, 606. Marquis v. Chicago, 214. Marsh v. Nelson, 394. Marshall v. Matson, 607. Marshall v. Wabash R. Co., 178. Marstou v. Tryon, 467. Martin, Ex parte, 91. Martin t. Board of Election Com'rs, 328. Martin v. Bond, 210. Martin v. Gleason, 264, 265. Martin v. Greenwood, 387. Martin' v. Hunter, 41. Martin v. Martin & Bowne XjO., 102., Martin v. New York & N. E. E. Co., 213. Martin v. Oskaloosa, 383. Martin v. Rushton, 481. Martin t. South Salem Land Co., 419. Martin v. State, 99, 218. Martin v. U. S., 454. Marvel v. Merritt, 13, 192. Mary Ann, The, 487. Maryland Agricultural College v. Atkinson, 285. Maryland & P. R. Co. v. Silver, 367. Mason v. Armitage, 254. Mason v. Cranbury Tp., 77, 242. Mason v. Fearson, 532, 570. MasojQ V. Johnson, 71. Mason v. Police Jury of Parish of T^ensas, m2. Mason v. Rogers, 487. Mason v.' Union Mills Paper Mfg. Co., ,71. Massachusetts Loan & Trust Co. t. Hamilton, 76. Massey v. Dunlap, 176. Masterson v. Whipple, 346. Mathews v. Densmore, 484. Mathieson v. St. Louis & S. F. R. Co., 358. Matthews, Ex parte. 607. Matthews, In re, 66, 427. Matthews v. Livermore, 318. Matz v. Chicago & A. R. Co., 292. Maus V. Logansport, 575. Maxwell v. Bay City Bridge Co., ooT. Maxwell v. Board of Com'rs of Fulton County, 386. CASES CITED [The flgurea reter to pages' ; 653 Maxwell v. Dow, 38, Maxwell t. Jacksouyille Loan & Imp. Co., 241. Maxwell v. Kives, 467. Maxwell v. State,, 53, 161. May V. Simmons, 190. Maynard v. Johnsori, 314. Mayne v. Board of Com'rs of Hunt- ington, 585. Mayo V. Wilson, 183, 361. Mayor, etc., of City of Atlanta v. White, 213, 453. Mayor, etc., of City of Baltimore V. Howard, 319. Mayor, etc., of City of Baltimore v. Marriott, 541.- Mayor, etc., of City of Baltimore V. Moore, 254. Mayor, etc., of City of Baltimore v. State, 25, 38, 42, 111. ■ Mayor, etc., of City of Cumberland V. Magruder, 352, 434. Mayor, etc., of City of Mobile v. Stein, 137. Mayor, etc., of City of New York, In re, 512. Mayor, etc., of City of New York V. Furze, 531,; 532, 540, 542. . Mayor, etc., of City of Philadel- phia V. Davis,' 457, 473. Mayor, etc., of City of Savannah v. Hartridge, 478, 515. . Mayer, etc., of City of Wetumpka V. Wetumpka Wharf Co., 503. Mayor, etc., of City of Wetumpka ■ V. Winter, 176. Mayor, etc., of Hagerstown v. Dechert, 116. ^. „ ^ Mayor, etc., of Jersey City v. Mont- : Clair K. Co., 97. Mayor of City of JefEersonviUe v. Weems, 129. Mays V. Cincinnati, 502. , Maysville Turnpike Co. v. How, 329 Maysville & L. E. Co. v. Herrick, 150. Mead v. BagnaU, 330. Mead v. Stratton, 470.- Meakin?s v. Ochiltree, 606. Mechanics' Nat. Bank v. Baker, 207. , „ , * Mechanics' & Farmers' Bank, Ap- peal of, 433. , „ _ , Mechanics' & Farmers' Sav. Bank V. Com., 157. Medbury v. Swan, 529, 561. Medbury v. Watson. 339. Medland v. Linton, 238, 239. Meidel v. Anthis, 469. Meister v. People, 452. Melody v. Reab, 63, 367, 457. Memphis St. R. Co. v. Byrne, 254. Mendles v, Danish, 67.- Mercantile Nat, Bank v. New York, 207. Mercantile Trust Co. v. Adams, 3. Merchants' Bank of Danville v. Ballou, 383, 388, 415, 420. Merchants' Bank of New Haven v,. Bliss, 464. Merchants' Nat. Bank . v. Aber- nathy, 172. Merchants' Nat, Bank v. U. S., 204, 285. Merchants' Nat. Bank of Baltimore V, U. S.. 591, 593. Merchants & Farmers' Bank v,' McKellar, 231, Mprcy Hospital v. Chicago, 559. Merkle v. Bennington Tp., 423, 491. Merriam v. MuUett, 205. Merrill v. Gorham, 347. Merrill v. Sherburne, 380, Merritt v. Cameron, 302, Mersey Docks Trustees v. GJbbs, 135. Mertens v. Southern Coal & Min- ing Co., 215. Merwin v. Ballard, 409. Messenger, The, 477. Metropolitan Board of Works v. Steed, 148, 228. , Metropolitan R. Co. v. Moore, 597. Meux V. Jacobs. 273. Mew, In re, 315. Meyer v, .Kuhn, 486. Meyer v. Western Car Co., 246, 590. _ Michel V, American Cent. Ina. Co., 204. Middleton v. Greeson, 306. Midland R. Co. v. Ambergate, etc., R Co 272 ' Miles v'.' Weils, 52, 324, Mill V. Brown, 484. Miller v. Chance, 506. „ „ _ Miller v. Chicago & N. W. R. Co., 422. Miller v. Detroit, 122. Miller v. Engle, 328. Miller V. Finkle, 552. Miller v. Kirkpatrick, 222. Miller v. Miller, 220. Miller v. Rapp, 180. Miller v. Salomons, 125. Miller v. State, 29, 230. Miller v. Wade, 564. Miller's Bx'r v. Comj, 199. Millett V. Mullen, 518. Mill'hiser Mfs. Co. v. Gallego Mills Co., 361. 374. . ^ . -^, Mills T. St. Clair County, 501. 654 CASES CITED [Tbe figures refer to pages] Mills V. Southern Ry., 78, 457. Mills V. Wilkius, 245. Milner v. Clarke, 569. Milwaukee & St. P. R. Co. v. Mil- waukee, 513. Mims V. Liockett, 479. Minis T. U. S_y 427. Minneapolis Tbreshing Mach. Co. V. Haug, 468. Minnesota Canal & Power Co. v. Koochiching Co., 481. Minnesota Canal & Power Co. v. Pratt, 481. Minnich t. Packard, 345. Minor v. Happersett, 42. Minor v. Marshall, 379. Minor v. Mechanics' Bank of Alex- andria, 531. Minter v. Bradstreet Co., 389. Misch V. Russell, 216. Missouri Pac. R. Co. v. Mackey, 199. Missouri Pac. R, Co. v. State, 603. Mitchell, In re, 126, 476. Mitchell V. California & O. S. S. Co., 495. Mitchell V. Mitchell, 494. Mitchell T. Smith, 87. Mitchell V. Witt, 332, 339. Mittfhell V. Woodson, 238. Mobile Dry-Docks Co. v. Mobile, 111. Mobile Savings Bank v. Patty, 589. Mobile & O. R. Co. v. Malone, 588. Mobile & O. R. Co. v. State, 116. Mobile & O. R. Co. v. Tennessee, 511. Modem Woodmen of America v. Wieland, ' 450. Moffitt's Estate, In re, 298. Mohawk Bridge Co. v. Utica & S. R. Co., 284. Molson's Bank v. Boardman, 16. Monaghau v. Auditor General, 519. Monongahela Nav. Co. v. Coon, 173. Moiiroe County Com'rs t. Conner, 607. Montana Ore Purchasing Co. v. Lindsay, 558. Montgomery v. Trenton, 222. Montgomery v. Pierson, 584. Moody V. Hoskins, 40O. Moody V. Stephenson, 160. Moon V. Durden, 388. Moor V. Seaton, 422. Moore v. American Transp. Co., 435. Moore v. Chartiers Valley Water Co., 247. Moore v. Chicago, 214. Moore v. Cornell, 378. Moore v. Fields, 92. Moore v. Indianapolis, 81. Moore v. Kenockee Tp., 424. Moore v. McClief, 486. Moore v. Mausert, 579, 580. Moore v. Phillips, 395. Moore v. West Jersey Traction Co., 112. Moran v. Miami County, 504. Moran v. Prather, 13, 14, 193. Morant v. Taylor, 245. Morgan v. Chappie, 421. Morgan v. State, 599. Moriarty v. New York, 305. Morin v. Newbury, 498. Morrill v. State, 264. Morris t. Delaware & S. Canal, 352. Morris v. Territory, 476. Morrison v. Arthur, 189. Morrison v. Bachert, 18. Morrow T. Rosenstihl, 468. Morse v. Press Pub. Co., 529, 559. Morton v. Skinner, 215. Moseley v. Tift, 502. 515. Mosle V. Bidwell, 311, 575. Moss V. U. S., 69, 340. Moss Point Lumber Co. v. Harri- son County Sup'rs, 581. Mott V. Central R. R., 177. Mount V. State, 518. Mowry v. Blandin, 520. Mowry & Payson v. Hanover Fire Ins. Co., 101. Moyer v. Gross. 315. Moyer v. Preston, 359. Muckenfuss, Ex jarte, 213. Muir V. ICeay, 195. Muldoon V. Levi, 118. Mull V. Indianapolis & C. Traction Co., 481. Mullally V. New York, 334. Mullaly T. Mayor of New York, 498. MuUer, In re, 479. Muller V. Buncombe County Com'rs, 565, 566. Mulreed v. State, 75. Murdock v. Franklin Ins. Co., 388. Murphy, In re, 593. Murphy v. Chase, 487. Murphy v. Dobben, 157. Murphy v. Nelson, 599. Murphy v. Utter, 425. Murphy v. Wabash R. Co., 142. Murray v. Baker, 71. Murray v. Gulf, C. & S. F. R. Co., 177. Murray v. New York Cent. R. Co., 74. Murray v. State, 150, 156, 264. CASES CITED [The figures refer to pages] 655 Huse y. London Assur. Corp., 236, 238. Musgrave v. Brady, 485. Musgrove v. Baltimore & O. K. Co., 302. Mutual Aid, Loan & Investment Co. V. Logan, 387. ; ' lal Lite Ins. Co. v. Armstrong, 172. Mutual Life Ins. Co. of New York V. Allen. 323. Mutual Life Ins. Co. of New York y. Prewitt, 108. Myers v. McGavock, 600. Myers v. Moran, 4l0. Myers v. State, 451. Myrick v. Heard, 62L N Nance v. Southern R. Co^ 101, 129, 201, 321, 322, 332, 455, 483. Nash V. Glen Elder, 186. National Bank of Commerce v. Cleveland, 432. National Live Stock Commission Co. V. Taliaferro, 605. National Loan & Inv. Co. v. Board of Sup'rs of Linn County, 515. National Savings Bank Ass'n, In re, 145. Nave v. Nave, 531. Nazro v. Merchants' Mut. Ins. Co. of Milwaukee, 164, 251. Neal V. Moultrie, 489. Neenau y. Smith, 77. Neilson v. Harford, 14. Neilson v. Lagow, 176. Nelson v. Central Land Co., 519. Nelson v. Denison, 87. Nelson v. StuU, 598. Nephi Plaster & Mfg. Co. v. Juab County, 187. ,. • Nesbitt V. Liggitt, 518. Nesbitt V. Lushington, 195. Neumann v. New York, 248, 255. Newburgh & C. Turnpike Road v. MUler, 531. Newcomb v. Indianapolis, o». Newell V. People, 21, 276. Newell V. Wheeler, 377. Newell Universal Mill Co. v. Mux- low, 52. _ .. New England Mortgage Security Co. V. Board of Revenue, 515. Newland v. Marsh, 113. Newman, Ex parte, 11^. Newman v. Arthur, 19^- New Jersey v. Wilson, 510. New Jersey v. Yard, 510. . New Orleans Canal & Banking Co. y. Schroeder, 176. New Orleans City & L. R. Co. y. New Orleans, 511. New Orleans v. Houston, 510. Newport Marsh Trustees, Ex parte, 90 New York, The, 248. New York, W. & B. R. Co., In re, 346. New York & E. R. Co. v. Sabin, 513. New York & Brie R. R. Co. y. Co- burn, 559. New York & H. R. Co. v. Kip, 482. Niautic Mills Co. v. Riverside & Oswego Mills, 180. Niboyet v. Niboyet, 107. Nichol y. Levy, 620. NichoUs V. State, 240. Nichols y. Bertram, 330. Nichols y. Halliday, 168. Nichols V. State, 204. Nicholson v. Fields, 447. Nicholson v. Mobile 'ik- M. R. Co., 262, 594. Nickerson y. Bowly, 247. Nicollet Nat. Bank y. City Bank, 598. Nikla'us v. ConkUng, 395. Nix y. Hedden, 13, 178, 192, 193. Noble y. Bragaw, 111. Noble y. Murphy, 234. Noble y. State, 47, 49, 56. Noble V. The St. Anthony, 108. Noe y. People, 174. Noecker v. Noecker, 322. Noel y. Ewing, 382. . Nona Mills Co. v. Wingate, 18._ Norfolk & Portsmouth Traction Co. v. Ellington's Adm'r, 42. 143. Norfolk & W. B. Co. v. Cheat- wood's Adm'x, 42. Norfolk & W. R. Co. y. Lynchburg Cotton Mills Co., 480. Norfolk & W. R. Co. y-^Old Do- minion Baggage Co., W>. . . Norfolk & W. R. Co. v. Virginia R. Co., 3T4. Norman v. Boaz, 515. North Bloomfield Gravel Min. Co, v. U. S., 538, 541. North Jersey St. R. Co. y. Jersey: N?rth' Missouri B. Co. y. Maguire, 511 North Springs Water Co. v. Ta- coma, 508. „„_ North Whitehall Tp.,^ re, 235. Northcutt v. Eager, 60O. Northern Cent. R. Co. v. Green, oaQ 374 Northern Indiana R. Co. y. Lincoln Nat. Bank, 143, 487. 656 CASES CITED [The figures refer to pages] Northern Trust Co. i. Snyder, 313. Northwestern Mut. Life Ins. Co. v. Seaman, 389. Northwestern University v. Illi- nois, 510. Norwegian Street, In re, 537. Notley T. Buck, 52. Nunes v. Wellisch, 339. Oakley v. Aspinwall, 36. Gates V. First Nat. Bank, 129. O'Brien v. Brice, 2(j4. U'iirien v. JJiUon, SY. O'Byrnes v. State, t>07. O'Connell v. Gillespie, 228. O'Connor, Matter of, 22;i. O'Connor v. Gertgens, 302. Odd FellowB' Cemetery Ass'n v. City, and County of San Fran- cisco, 112. , Odiorne v. Qulmby, 234. O'Dounell v. Healy, 386. Offield V. Davis, 638. Ogden V. Blackledge, 613. Ogden' V. Saunders, 42. Ogden V. Strong, 48, 56, 246. Ogden City v. Boreman, 321. O'Hara, In re, 544. Ohio, The, V. Stunt, 108, 485, 490. Ohio Life Ins.'& T. Co. v. Debolt, 619. Ohio Nat. Bank v. Berlin, 49, 148, 386, 410. Ohio Oil Co. V. State, 256. Old Dominion Building & Loan Ass'n V. Sohn, 66, 224, 226, 325, 346 575. Oleso'n V. Green Bay & L. P. B. Co., 856. , Oleson V. Wilson, 602. Oliver Lee & Co.'s Bank, In re, 27. OUre V. State, 599. Olmsted, In re, 264. Omaha S'av. Bank v. Rosewater, •484. Oneida County v. Tibbits, 334. Opening of Hbffignac Street, In re, 481. Opinion of Justices, In re, 52, 129, 133, 135, 176, 290, 306. Oppenlander v. Left Hand Ditch Co., 359. Orange & A. R. Co. v. Alexandria, 66. Ordway v. Central Nat. Bank of Baltimore, 469, 472. O'Reilly v. Bard, 471. Orient Ins. Co. v. Daggs, 384. Oriental Bank Corp. v. Wright, 516. Orman v. Crystal River R. Co., 414. O'Rourke, In re, 544. Orvis V. Boatid of Park Com'rs of City of Des Moines, 251. Osborn v. Lidy, 559. Osborne v. Detroit, 40O. Osborne v. Home Life Ins. Co., 600. Oster V. Rabenau, 379. Osterholm v. Boston & Montana Consol. Copper & Silver Min. Co., 143. Ottawa V. Carey, 502. Overfield v. Sutton, 594. Overseers of Poor v. Smith, 138. Overseers of Poor of Forest City V. Overseers of Poor of Damas- cus, 178. Overseers of West Ham v. lies, 254. Oxsheer v. Watt, 231. Pacific Coast S. S. Co. v. U. S., .276, 279, 284, 312, 316. Pacific R. Co. V. Maguire, 510. Packard v. Richardson, 290. Page V. Bartlett, 221. Paiue V. Spratley, 502, 503. Painter v. St. Clair, 480. Palmer v. Hickory Grove Cem- etery, 426. ' Palmer v. Hicks, 78. Palms V. Shawano County, 115, 156, 162. Pancoast v. Ruffin, 267. Pardee, . Appeal of, 205. Pardo V. Bingham, 388. Paris V. Nordburg, 398. Parish of Lafourche v. Terrebonne, 244. Park V. Candler, 113. Parker v. Great Western R. Co., 504. Parker v. Nothomb, 66. Parker v. State, 28, 112. Parkinson v. Brandenburg, 235. Parkinson v. State, 176, 178, 457. Parks V. State, 57o. Parks V. West, 31. Parrot v. Lawrence, 508. Parsons v. Bedford, 113. Parvin v. Wimberg, 47. Paterson R. Co. v. Grundy, 442. Patterson's Estate, In re, 492. Pattison v. Clingan, 122. Patton V. State, 213. CASES CITED [The figures refer to pages] Patton V. U. S., 189. Paul V. Davis, 619. Pauley Jail Bldg. & Mfg. Co. v. Crawford County, 389. Paulina, The, v. U. S., 276. Paulson V. Portland, 619. Pavey v. Braddock, 607. Paxton V. VaUey Land Co., 520. Paxton & Hershey Irrigating Canal ■ & Land Co. v. Farmers' & Mer- chants' Irrigation & Land Co., 166. Payne v. Fresco, 526. Payne v. Houghton, 302. Pearce v. Atwood, 47, 347. Pearce v. Bank of Mobile, 432, 434. Pearson v. Lovejoy, 495. Pease v. Peck, 296. Pease v. Whitney, 326, 353. Peet V. East Grand Forks, 477. Pein V. Miznerr, 204, 216. Peirce v. Bangor, 122. Pelham y. The Messenger, 477. Pelletier v. Saunders, 55S. Pell's Estate. In re, 396. Pelo V. Stevens, 419. Pembroke v. Huston, 76. Penick v. High Shoals Mfg. Co., 327, 441. Pennington v. Gillaspie, 608. Pennock v. Dialogue, 606. Pennsylvania E. Co. v. Canal Com'rs, 137, 508. Pennsylvania R. Co. v. Riblet, 251. Pennsylvaiiia Steel Co. v. 3: B. Potts Salt & Lumber Co., 212. Penrose v. Chaffraix, 511. Pensacola & A. R. Co. v. State, 422, 425, 426. Peonage Cases, 474. People V. Abbott, 246, 248, 554. People V. Abramson, 475. People V, Admire, 121. People V. Ahearn, 134, 324, 475. People V. Aichinson, 334. People V. Albertson, 616. People V. Allen, 545. People V. Auditor General, 567. People V. Ballhorn, 144. People V. Barker, 183, 202. People V. Bartow, 457. People T. Bashford, 176. People V. Blodgett, 22. People V. Board of Com'rs of Illi- nois & M. Canal, 127. People V. Board ot County Com'rs cyt Rio Grande County, 562. People V. Board of Directors of Chicago Theological Seminary, S13: . ,., Peoole V. Board of State Auditors, 401. Black Int.L. — 42 657 ; People v. Board of Supers of City ' and County of New York, 612. People V. Board of Sup'i-s of City and County of San Francisco, 320. People V. Board of Sup'rs of Col- umbia County, 286, 387. People V. Board of Sup'rs of Erie County, 563. People V. Board of Sup'rs of Es- sex County, 390. People V. Board of Sup'rs of Lake County, 545. People V. Board of Sup'rs of Mont- gomery County, 580. People V. Board of Sup'rs of Ulster County, 384, 404. People V. Borda, 292. People V. Briggs, 118, 453. People V. Buftalo, 302. People V. Buffalo County Com'rs, 543. People V. Burns, 320. People V. Busse, 322. People v. Butler, 228. People V. Calder, 288. People V. Canal Appraisers, 359. People V. Chicago, 96. People V. Chicago Sanitary Dist., 544. People V. Chretien, 214, People V. Clement, 832. People V. Coler, 450. People V. Commissioners of. High- ways, 540. People V. Common Council, etc., of Gloversville, , 184, 369, 480. People V. Common Council of Bay City, 463. People V. Common Council of City of Brooklyn, 542. People V. Common Council of City of Buffalo, 562, 563. People V. Consolidated Telegraph & Electrical Subway Co., 305. People V. Cooper, 90. People V. Craig, 456. People V. Croton Aqueduct Board, 232. People V. Crucible Steel Co. of America, 468. People V. Cummings, 211. People V. Dada, 464. People V. Dana, 281, 437. People V. Dederick. 199.' People V. De Guelle, 129. People V. Denslow, 506. People V. Directors, etc., of Bris- tol & B. Turnpike Road, 364. People V. Dobbins, 327. People V. Doe, 96. People V. Draper, 112. 658 GASES CITED [The figures refer to pages] People V. Earl, 526, 550. People V. Eddy, 90. I'eonle v. I'airbury, 548. People V. Fancher, 33. People V. Feitner, 559. X'eople V. I'ishman, 259. People V. Xfriedman, 452. People V. I'ronaro, 48. People V. Frost, 48. ' People T. Gage, 386. People V. Gardner, 112. People V. Gaus, 516. People T. Gies, 30, 39. People V. Gilbert, 77. People v. Gill, 438. People V. Gilroy, 563. People V. Glynn, 48, 143. People V. Grant, 565. People T. Greer, 575. People V. Griffith, 598. People V. Harrison, 197. People V. Hatch, 239. People V. Hays, 395. People V. Hemleb, 453. People V. Herkimer Court of Com- mon Pleas, 409. People V. Herkimer County Sup'rs, 568. People V. Hicks, 91. People V. Hill, 163. People V. Hoffman, 153, 198. People V. Howard, 333. People V. Huber, 486. People V. Hurst, 294. People V. Jackson, 338. People V. Judge of Saginaw Circuit Court, 172. People V. Kenuey,, 116. People V. Kerber, 500. People T. Kibler, 75. People V. King, 163. People V. Kipley, 612. People V. Koehler, 475. People V. Lane, 48, 69, 179. People T. Langan, 143. People V. Lawrence, 28, 106. People V. Livingston County Sup'rs, 562, 563. People V. Loewenthal, 290, 302. People V. Long Island K. Co., 52, 320. People V. Lower, 386. People V. Lytle, 230. People V. McAdam, 544. People V. McBride, 111. People V. McMurray, 432, 433. People V. May, 21, 36, 39, 40, 41. People V. Metz, 23. People V. Michigan Cent. R. Co., 285, 575. People V. Miller, 96. People V. Molyneux, 260. People V. Mooi«, 418. People V. Mount, 331. People V. ^ew Yoris, 122, 129. People V. JN'ew York Cent. R. Co., 50 332. People v.New York Cent. & H. E. R. Co., 1,1. People V. New York City Tax Com'rs, 4. People V. New York & M. B. B. Co., 212. People V. Nussbaum, 554. People V. Nye, 23, 40, 112. People V. O'Brien, 247. People V. Onahan, 111. People V. Otsego County Com'rs, 562: People v. Otsego County Sup'ig, 568. People V. Peacock, 467. People V. Peden, 13. People V. Potter, '21, 24. People V. Purdy, 298. People V. Rector, etc., of Church of Atonement, 69. People V. Rice, 117, 228. People V. Richards, 214. I*eople V. Richmond, 112. People V. Roby, 75. People V. Roper, 511. People V. Rose, jll. People y. Sanitary Dist. of Chi- cago, 542. People V. Schoonmaker, 49, 56, 276. People V. Shedd, 305. People T. Shepard, 316. People V. Sholem, 78, 323, 495. People V. Smith, 112. People V. Sommer, 482. People v. Soto, 270, 476, 586. People V. Spicer, 405. People T. Stevens, 86. People V. Sturgis, 452. People v. Supervisors of New York, 540. People V. Supervisors of Otsego County. 540, 563. People V. Sweetser, 230, 576. People V. Syracuse, 408, 529. People V. Teal, 476. People V. Thomas, 531. People V. Tibbets, 494. People V. Utica Ins. Co., 199. People V. Wayne County Circuit Judge, 47, 577. People V. Weimstock, 575. People V. Weinstock, 453. People V. Weller, 573. People V. Whiting, 116. People V. Williams, 93, 332, 516, People V. Willison, 47. People V. Wood, 251. CASES CITED tThe figures refer to pages] People V. Zito, 11, 394. People's Trust, Savings & Deposit Co. V. Ehrhart, 348. People's U. S. Bank v, Goodwin. 593. Peotone & Manteno Union Drain- age Dist. No. 1 V. Adams, 542. Perlsins v. Butler, 558. Perlsins v. Perkins, 335, 377. Perkins v. Thornburgh, 220. Perrine v. Chesapeake & D. Canal Co., 504. Perry v. City Council of Salt Laki! City, 565. Perry v. Denver, 381, 585. Perry v. Eames, 95. Perry v. Strawbridge, 65, -360, 36V Perry County v. Jefferson County, 130. Perry County v. Selma, 568. Persons, Eix parte, 565. Peters v. Harman, 584. Peters v. Heasley, 520. Peters v. U. S., 593. Peters v. Vawrter, 575. Peters Grocery Co. v. Collins Bag Co., 319. Peter's Lessee v. Condron, 81. Peterson t. Currier, 476. Peterson v. Mayer, 416. Peterson v. People, 322, 326. Petition of Douglass, In re, 549. Peugnet, Matter of, 579. Peyton v. Moseley, 352. Pharmaceutical Society v. London & P. S. Ass'n, 200. Phelps V. Havyley, 540, 542. Phelps V. Lodge, 563. Philadelphia v. Church of St. James, 512. Philadelphia v. Costello, 473. ' Philadelphia & E. R. Co. v. Cata- wissa R. Co., 306. Philips V. Christian County, 204. Phillips V. Baltimore, 101, 126. Phillips V. Dunkirk, 481. PhiUips T. New Buffalo Tp., 387. I'hillips V. Smith, 470. Phillips V. State, 198. Phoenix Ins. Co. v. Shearman, 413. Pickering v. Arrick, 248. Pickett V. Boyd, 406. Pickbardt v. Merritt, 189, 192. Pierce T. Com., 565. Pierce's Case, 464. Pike V. Jenkins, 457. Pike V. Richardson, 519. Pillow V. Gaines, 83. Pirn V. Nicholson, 29. Pinkham v. Dorothy, 482. Pinkney v. Pinkney, 486. Piper V. Boston & M. R. R., 224, 269. 659 Piqua Branch of State Bank v. Knoop, 510. Pitman v. Flint, 125. ' Pitney v. Glens Palls Ins. Co., 14. Pitte v. Shipley, 145. Pittman, Ex parte, 47. Pittsburg, C. & St. L. R. Co. v. Hine, 491. Pittsburgh, Ft. W. & C. R. Co. v. Methven, 464. Pittsburg & C. R. Co. v. South West Pennsylvania R. Co., 94. Plaiiters' Bank of Tennessee Y. Black, 355. Planters' & Merchants' Bank of Mobile V. Andrews, 199. Plass v. Plass, 180. Plaster v. Eigney, 67. Platter v. Elkhart County Com'rs, 561. Plowman, Ex parte, 493. Plum V. Kansas, l22. Plummer v. Northern Pac. R. Co., 384, 403. Plummer v. Plummer, 618. Plumstead Board of Works T. Spackman, 122. Poling V. Parsons, 519. Pollock V. Farmers' Loan & Trust Co., 283. Polsson, In re, 504. Pomeroy v. Beach, 575. Pomeroy v. Pomeroy, 599. Pond V. Maddox, 166. Pond V. Negus, 545. Pool V. Utah County Light & Pow- er Co., 319. Pope V. Pollock, 556. Pope's Estate, In re. 386. Porter v. Glenn, 383, 386. Portland Ry., Light & Power Co. V. Railroad Commission of Ore- gon, 501. Posey V. Pressley, 595, 596. Postal Tel. Cable Co. v. Farmville & P. B. Co., 145, 323. Postal Tel. Cable Co. v. Norfolk & W. R. Co., 52, 66, 323. Potter V. Douglas County, 120. Potter V. Safford, 322. Powell V. Spackman, 21. Powell V. State, 118. Powell V. Tuttle, 519. Power V. Telford, 415. Powers V. Barney, 515, 522. Powers V. Detroit, G. H. & M. R. Co., 510. Powers V. Wright, 473. . Praigg V. Western Paving & Sup- ply Co., 112. Pratt V. Miller, 599. Pratt V. Street Com'rs, 590, 592. 660 CASES CITED [.The flguT«B refer to pa^es]. Presbyterian Theological Seminary V. People, 511. President, etc., of Merchants' Bank V. Cook, 183, 496. President, etc., of Portland Bank V. Apt'hom. 511. President, etc., of Washington & B. Turnpike Road ' v. State, 364. Presser v. Illinois, 116. Pressley v. Board of Com'rs qf Ma- rion County, 241. Preston v. Culbertson, 572. Preston Nat. Bank v. Brooke, 600. Price v/ Forrest, 228, 254.. Price y. Price, 267. Priewe y. Wisconsin State Land & Imp. Co., 255. Prime, In re, 511. Prindle y. U. S., 49, 215, 432. Pritchard y. Spencer, 380. Probasco v. Moundsyille, 137. Proprietors of Bridges y. Hdboken Land & Imp. Co., 176, 508. Proprietors of Charles ' Biyer Bridge y. Proprietors of Warren Bridge, 496. Proprietors of Freyburg Canal v. Frye, 363. Proprietors of Stourbridge Canal y. Wheeley, 504. Proprietors of Sudbury Meadows y. Proprietors of Middlesex Canal, 364. Propst V. Southern E. Co., 276, 346 432. Proso'le, Ex parte, 129, 242, 323, 475. Protestant Episcopal Public School, In re, 396. Prouty T. Stover, 121. Providence Bank y. Billings, 137, 511. Providence Voters, In re, 236. Provisional Municipality of Pensa- cola V. Lehman, 540. Prowell V. State, 285. Push t. Kansas City, St. J. & C. B. R. Co., 76. Pullen V. Corporation Commission, 152. Pulling y. People, 2.S9. Putnam v. Ruch, 355. Putnam y. Southern Pac. Co., 177. Puyallup y. Lacey, 369, 480. Q Quackenbush y. Danks, 395, Quackenbush v. U. S., 435. Quartz Hill Co., In re, 181. Queen y. Allen, 147. Queen y. Anderson, 107. Queen v. Armitage, 52.- ■ Queen v. Bishop of Oxford, 315.. Queen y.' Chantrell, 616. Queen y. Guardians of Ipsyyich Un- ion, 388. ' Queen y. Justices of Cambridge- shire, 271. Queen y. Most, 289. Queen y. Old'ham, 264. Queen v. Overseers of Tonbridge Parish, 127. Queen y. Owens, 135. Queen y. Payne, 319. Queen y. Pearce, 271. Queen y. Peters, 279. Queen y. Poor Law Com'rs, 145. Queen v. St. Mary, 381. Queen y. Vine, 407. Queen v. Whittaker, 313. Queeny y. Higgins, 541. Quick y. White Water Tp., 326. Quigley v. Gorham, 176. Quigley y. Graham, 397. Ouin y. O'KeefEe, 149. Quinn v. Chicago, M. & St. P. H. Co., 388. Quinn y. Fidelity Beneficial Ass'n, 490, Quinn v. Lowell Electric Light Corp., 227. Quinn y. Wallace, 535. Quirt y. Queen, 96. Eader v. Kriebel, 395. Radnorshire County Roads Board y. Evans, 206. Raeder v. Bensberg, 2l0. Rairden y. Holden, 381. Raleigh & G. R. Co. y. Reid, 505. Ralston y. Crittenden, 540. .iamsey v. Foy, 464. Ramsey v. Gould, 466. Ramsey's Estate y. Whitbeck, 177. Randolph y. Bayue, 266. Randolph y. State, 457. Randolph County y. Ralls, 559. Randolph's Ex'r y. Quidnlck Cs., 622. Rankin v. Buckman, 541. Rasmussen y. Baker, 21. Rathbone y. Wirth, 112. Raudebaugh y. SJielley, 352. Raudenbuseh, In re, 565. Raunn y. Leach, 238, 239. Rawley y. Rawley, 246. Rawls y. Doe ex dem. Kennedjr, RawEon y. Parsons, 548. Rawson y. State, 448, 449, 451. Ray, Ex parte, 588. CASES CITED [The figures reler to pages] Rayford v. Faulk, 589. Raymond v. Cleveland, 145. Raymond v. State, 514. j^aj'uard v. Chase, 453. R. B. Hamilton, The, 265. Read v. Boston & A. R. Co., 401. Recknagel v. Murphy, 189. Rector, etc., of Holy Trinity Church V. tj. S., 68. Red C. Oil Mfg. Co. v. Board of Agriculture, 312. Red River Nat. Bank v. De Berry, e05. Reed v. Beall, 384. Reed v. Goldncck, 118, 345. Reed v. Ingham, 207. Reed v. Northfield, 490. Reed V. Penrose's Ex'rs, 561. Reed v. Swan, 398. Reeves, Appeal of, 291. Reeves v. Corning, 112. Reeves v. Ross, 346, 352. Regan .v. School Dist. No. 25 of Snohomish County, 302, Reggel, Ex parte, 185. Regina v. Burnaby, 74. Regina v. Gibbons, 75. Regina v. Hallett, 93. Regina v. Moore, 72. Regina v. Tolson, 72. Reich V. State, 75. Reid V. Alaska Packing Co., 120. ^ Reid V. Reid, 127, 392. Reid V. Southern Development Co., 527, 550. Rein v. Lane, 517. , Reinhardt v. Fritzsche, 401. Reis v. Graff, 391. Reiser v. William Tell Sav. Fund Ass'n, 612. ReithmiUer v. People, 251, 332. Relyea v. Tomahav^k Paper & Pulp Co., 417. Remmington v. State, 214. Renfroe v. Colquitt, 455. Renick v. Boyd, 213. Renner v. Bennett, 442. Reno Smelting, Milling & Reduc- tion Works V. Stevenson, 359, 360. Requa v. Graham, 598. Reusch V. Lincoln, 326. Rex T. Addersly, 236. Rex V. Barlow, 540, 562. Rex V. Loxdale, 54o. Rex V. St. John Bedwardine, 177. Reymoiid v. Newcomb, 599. Reynolds v. Bingham, 151. Reynolds v. Board of Education of Uni6n Free School Dist. of City of Little Falls, 536. Reynolds v. Bowen, 516. eei Enterprise Transp. Reynolds v. €o., 132. Rhea v. State, 600. Khoads v, Chicago & A. R. Co., Rhodes v. Sperry & Hutchinson Co., 387. Rhodes v. Weldy, 145. Rhone v. Loomis, 205. Rice V. Kirkmau, 486. Rice V. Minnesota & N. W. R. Co., 185. Rice V. Railroad Co., 362. Rice Vi State, 13. Rice V. U. S., 232, 446, 520. Rich V. Board of State Canvassers, 573. ^ Rich V. Keyser, 147. Ricn V. U. S., 386. Richard v. Lazard, 77, 286. Richards v. Cole, 569. Richards v. Dagget, 79, 126. Richardson v. Ainsa, 477. Richardson v. Augtistine, 557. Richardson v. Emswiler, 478. Richardson v. Fitzgerald, 584. Richmond's Estate, In re, 385. Ricketts v. Lewis, 224. Rickey, Ex parte, 52, 452. Ricup V. Bixter, 450. Riddick v. Governor of Territory of Missouri, 452. Riddick v. Walsh, 67, 322. Riddle v. Hall, 184; Riddle v. Hill's Adm'r, 238. Rider v. U. S., 248. Rigg V. Wilton, 598. Riggs V. Palmer, 64. Riggs V. Pfister, 346. Riggs V. Polk County, 319. Riggs V. State, 215. Riley v. Pennsylvania Co., 286. Rio Grande Western R. Co. v. Salt Lake Inv. Co., 366. Ripley v. Evans, 205. Rives V. Guthrie, 23 1. Road Commission v. Haring, 113. Road Imp. Dist. No. 1 v. Glover, 113. Road in Upper Hanover, 93. Roane v. Innes, 507. Robbins v. Omnibus R. Co., 575. Robbins v. State, 352. Robert v. Chicago & A. R. 332. Robert Dunlap & Co. v. tJ. S., Roberts, In re, 484. Roberts v. Bartlett, 561. Roberts v. Cannon, 80. Roberts v. Savannah, F. & W. R. Co., 204. 334, Co., 285. 662 CASES CITED [The figures refer to pages] Roberts v. State, 66. Roberts v. Yarboro, 435. Robertson v. Baxter, 306. Robej'tson t. Dink Bros. Coal & Coke Co., 77. Robertson v. Downing, 302. Robertson v. Salomon, 189, 193. Robinson v. Belt, 598, 604. Robinson t. Canadian Fac. R. Co., 592. Robinson v. Dunn, 240. Robinson v. Harmon, 322, 472, 487, 489. Robinson v. Local Board of Bar- ton-Eccles, 272. Robinson v. Schmidt, 486. Robinson' v. Southern Pac. Co., 231. Robinson v. U. S., 246. Robinson v. Vamell, 181. Robinson's Case, 350. Robinson's Estate. In re. 484. Robson V. Doyle, 113. Roche V. Jersey City, 356. Roche V. Jordan, 307. Rock Island County t. U. S., 530, 531, 540. Rock Island County Sup'rs v. U. S., 562, 563. Roddam v. Morley, 523. Rodebaugh v. Sanks, 529. Rodgers v. U. S., 51, 201, 327, 329. Roff V. Johnson, 336. Rogers v. Goodwin, 126, 290, 292, 306. Rogers y. Jacob, 113. Rogers v. Lynch, 388, ,395. Rogers v. Wing, 556. Rohlf T. Kasemeier, 204, 319, 456. Rohrer v. Hastings Brewing Co., 302. Rplland y. Com., 230,- 231. Ronkendorff v. Taylor, 238. Roose V. Perkins, 211. Roosevelt v. Godard, 113. Roosevelt v. Maxwell, 193. Roosevelt Hospital v. New York, 512. Rose V. Governor, 514. Rose V. State. 239. Rosenbloom v. State, 111. Roseucraus v. U. S., 341. Rosenplaenter v. Roessle, 49. Rosin V. Lidgerwood Mfg. Co., 247, 361, 374. Ross V. Barland, 507. Ross V. Board of Sup'rs of Outa- 'gamie County, 282. Koss V. Hannah, 60S. Ross V. Kansas City, St. J. & C. B. R. Co., 77. 302. Ross V. State, 66, 77. Rossman v. Hedden, 192. Kossmiller v. State, 104, 307. Rothgerber v. Dupuy, 3(8, 477. Rothschild y. New York Life Ins. Co., 49, 144, 535. Rouge V. Rouge, 410. Rouudtree, Ex parte, 42, 43. Rountree v. Pursell, 186. Rouse, Hazard & Co., In re, 201. Royal Highlanders v. State, 609. Rozelle v. Harmon, 374. Rubey v. Huntsman, 569. Rudolph Kleybottle & Co. v. Black Mountain Timber Co., 48. Rue V. Alter, 369. Ruggles T. Illinois, 508. Ruggles V. Washington County, 242. Ruhland v. Waterman, 48, 321. Rumball v. Schmidt, 463. Runnels v. State, 594. Rupel V. Ohio Oil Co., 607. Rupp V. Swinefc3d, 147, 171, 233. Rural Independent School Dist. No. 10 V. New Iiidependait School Dist., 83, 578. Russell V. Croy, 238. Russell V. State, 575. Russell V. Taylor, 211. Russell V. Transylvania University, 466. Rutherford v. Greene, 150. Ruthowsky v. Bozza, 599. Rutledge, In re, 555. Rutter V. Carothers, 332, 523. Rutter V. White, 528, 535. Ryall V. BoUe, 257. Ryan v. Boston, 322. Ryan v. Chicago & N. W. R. Co., 585. Ryan v. Couch, 375. Ryan v. State, 145, 272, 326. Ryan v. Vanlaudingham, 545. Sacia v. De Graaf, 524. Saginaw Gaslight Co. v. Saginaw, 503. Sahm V. State, 89. ,?t. Anthony, The, 108. St. George v. Hardie, 344. St. Louis County Court v. Sparks, 545. *- ' St. Louis, ,1. M. & S. R. Co. v. Batesville & W. Tel. Co., 47. St. Louis, I. M. & S. R. Co. v. Mc- Clerkin, 456. St. Louis, I. M. & S. R. Co. v. State, 152. CASES CITED [The figures retex to pages] Bt. Louis, I. M. & S. R. Co. v. Waldrop, 49, 462. St. Louis Nat. Bank v. Hoffman, 663 598. St. Louis & I. M. R. Co. V. Clark, 53 St. Louis & S. F. R. Co. V. Delk, 12. St. Louis & S. F. R. Co. v. Had- ley, 288. St. Martin v. New Orleans, 330. St. Michael's Cliurch, In re, 584. Sales V. Barber Asphalt Pav. Co., 332. Salkeld v. Johnson, 256. Salomon, In re, 193. Salomons v. Miller, 125. Salters v. Tobias, 479, 613. Salters' Co. v. Jay, 255. Saltonstall v. Wiebusch & Hilger, 188, 193. Sainpeyreac v. U. S., 408. Sams V. King, 327. Samuels v. Com., 453. Sanborn v. Minneapolis, 96. Sandberg v. State, 95, 412. Sandiman v. Reach, 209. Sanford v. King, 201. Sanger v. Flow, 604. Sanipoli v. Pleasant Valley Coal Co., 39. Santa Cruz County v. Barnes, 598. Santa Cruz Rock Pavement' Co. v. Heaton, 530. Saraziu v. Union R. Co., 367. Satterlee v. Matthewson, 384. Saunders v. Carroll, 386. , . Savannah, F. & W. R. Co. v. Dan- iels, 13. Savings Ass'n of St. Louis v. O'Brien, 623. Savings Institution v. Makin, 440. Sawyer v. Childs, 494. Sawyer v. Dooley, 112. Scaggs V. Baltimore & W. R. Co., 81. Scaife v. Stovall, 360, 375. Schaeffer v. Burnett, 143, 341. SchaefEer v. Lohman, 536. Schawacker v. McLaughlin, 608. Scheftels v. Tabert, 596. Schenck y. Peay, 518. Scheuermann v. Scharfenberg, 3o9. Schilling, In re, 269. Schilling v. State, 45o, 474. Schlicht v. State, 285. Schmeider v. Barney, 188, 190. Schmidt v. United States, 593. Sciineck, In re, 430. Schneider v. Hosier, 211, 469. School Board of Borough of Brook- lyn V. Board of Education of City of New York, 324. School Directors v. Carlisle Bank, School Directors of Dist. No. 5 v. School Directors of Dist. No. 10, 163. Schriefer v. Wood, 176, 190. Schulte V. Menke, 452. Schultzman v. McCarthy, 467. Schuyler v. Southern Pac. Co., 304, 429. Schuyler County v. Mercer Coun- ty, 98, 531, 559. Schwarting, Ex parte, 337. Scogins V. Perry, 486. Scott, In re, 381. Scott V. Ford, 221. Scott V. Royston, 129, 322. Scouten v. Whatcom, 286, 308. • Scoville V. Anderson, 238. Sea Witch, The, 365. Scale V. Ford, 185. Seale v. Mitchell, 616. Seamans v. Carter, 388. Sears v. Cottrell, 111. Sears v. Mahoney, 410. Seattle & M. R. Co. v. O'Meara, 560. Second Municipality of New Or- leans, V. Morgan, 311. Secor V. State, 414. Seeberger v. Schlesiuger, 193. Seeley v. Peters, 359. Seeley v. Stevens, 111. " Segnitz V. Garden City Banking & Trust Co., 199. Seideubender v. Charles' Adm'rs, 257. Seller v. Board of Com'rs of De Kalb County, 267. Selkrig v. Davis, 109. Selleck v. Selleck, 73. Sells V. U. S., 302. Selman v. Wolfe, 352. Settlers' Irr. Dist. v. Settlers' Canal Co., 166. Sewall V. Jones, 478, 515. Sexton V. Sexton, 66. Shallow V. Salem, 612. Shallus V. U. S., 314. Shanks v. Mills,_ 177. Shapley v. Garey, 238. Shapter's Estate, In re, 598. Sharp V. New York, 493. Sharpe v. Hasey, 182. Sharpe v. Spelr, 369. Shaw V. Clark, 213, 454. Shaw V. Dodge, 239. Shaw V. Hoffman, 598. Shaw V. Macon, 119. Shaw V. Railroad Co., 374. Shay's Appeal, .399. „ ^^ „ „ Sheehan v. Louisville & N. R. Co., 384. 664 CASES CITED [The figures refer to pages] Sheets v, Seldon's Lessee, 238. Sheflield v. Ratcliffe, 58. Shehan t. Louisville & N. R. Co., 298. ShelbouTne, The, 555. Shelby V. Guy, 7, 620, 622. Sheldon v. Boston & A. R. Co., 346. Shell V. Matteson, . 396. Shellenberger v. Ransom, 64. Shelton v. Sears, 596. Sheridan v. Salem, 616. S'herrod &' Co. v. Hughes, 554. Sherwood v. Atlantic & D. R. Co., 49. Shiel V. Sunderland, 260, 482. Shields v. Johnson, 496. Shirk T. People, 214. Shock V. Colorado County, 328. Shoe & Leather Nat. Bank v. Wood, 16. Shorey v. WyckofE, 445. Short V. Hubbard, 472. Shreve v. Whittlesey, 71. Shreveport Traction Co. v. Shreve- port, 137. Shriedley v. State, 265. Shultfhis V. MacDougal, 50. Shutt V. State. 327. Sibley v. Smith, 285, 377, 504. Sickles V. Sharp, 473. Siegel T. People, 178. Sierra County v. Nevada County, 13. Sifford V. Beaty, 554. Sites V. St. Louis & S. F. R. Co., 349. S'imiiigton v. State, 47. Simmons, In re, 118, 345. Simmons v. California Powder Works, 132. Simmons v. Hanover, 420. Si'tams v. Bean, 452. Simonton v. Barrell, 62. Simpkins v. Ward. 332. Simpson v. City Sav. Bank, 381. Simpson v. Unwin, 169. Sineer Mfg. Co. v. McCoUock, 149, 612. Single v. Marathon County Sup'rs, 420. Siren v. State, 67. Skeen v. Crai?, 197. Skelton v. Bliss. 87. , Skelton v. State, 134. Slack v. Jacob, 113, 114, 176, 257. Slauson v. Baclne, 116. Rlinslufif V. Weaver, 52, 308. Rmale v.. Burr, 55. Smiley v. Kansas, 172. Smiley v. Samnson, 65. Smith, In re, 112. Smith V. Alabama, 187. Smith V. Allen, 233, 468. Smith V. Bartram, 71, 623. ' Smith V. Baker, 599, 600. iSmith y. Biesa:ida, 607. Smith V. Board of Com'rs of Ham- ilton County, 334. Smith V. Board of Com'rs of Jeffer- son County, 240. Smith V. Boston & A. R. Co., 452. Smith V. Boston & M. R., 15. Smith V. Bryan, 290, 302, 323. Smith V. Dayton Coal & Iron Co., 603. Smith V. Farr, 77. Smith V. Grayson County, 21, Smith V. Haines, 409. Smith V. Harrington, 555. Smith v. Helmer, 172. Smith V. Humphrey, 387. Smith V. Illinois Cent. R. Co., 387. Smith y. Indianapolis St. R. Co., Ill, 113. Smith y. Lockwood, 86. Smith V. Look, 87. Smith V. Madison, 102. Smith V. Missouri Pac. R. Co., 176. Smith V. Moffat, 369, 484, 487. Smith V. Noe, 556. Smith y. Packard, 400. Smith y. People, 127, 339, 346. Smith y. Ryan; 519. Smith V. St. Louis & S. W. R. Co., 110. Smith y. St. Paul, M. & M. R, Co.,. 38 * Smith V. Saxton, 173, 186. Smith V. Smith, 596, Smith V. Spoouer, 477, 483. Smith y. State, 53; 269. Smith V. Stephens, 222; Smith y. Stevens, 492. Smith y. U. ^.; 311. Smith y. Van Gilder, 384. Smith v. Waters, 515. ' Smith y. Westerly, 307. Smoot y. Bankers' Life Ass'n, 301. Smythe y. Fiske, 522. Snellen y. Kansas City Southern R. Co., 604. Snyder v. Compton, 269. Snyder v. Thieme & Wagner Prewr in^ Co., 331. Society for Propagation of the Gos- pel y. Wheeler, 381. ^ Sohn y. Waterson, 621. Sonn y. Magone, 191, 193. Soon Hing v. Crowley, 316. ' Sopher y. State. 607. Sourwine v. McRoy Clay Works, 468. Souter y. The Sea Witch, 365. CASES CITED [The figures refer to pages] South V. Solomon, 199. Southern Bank v. PUsbury, 622 bouthern ' Bell Telephone & Tele- graph Co. V. D'Alemberte, 179. Southern Illinois & M. Bridge Co V. Stone, 481. Southern Pac. R. Co. v. Orton, Southern R. Co. v. McNeill, 339. Southern R. Co. v. Tift, 412 Southern R. Co. v. Machinists' Lo- cal Union No. 14, 80. South Morgantown v-. Morgantown, South Park Com'rs v. First Nat. Bank, 248. Southwark Bank v. Com., 310 355 Southwestern Coal & Imp. Co. v. McBride, 395. Southwestern R.Co. v. Cohen, 465. Southwest Missouri Light Co. v. Scheurieh, 285. South & N. A. B. Co. T. Highland Ave. & B. R. Co., 481. Spain V. St. Louis & S. F. R. Co., 110. , , , Spalding v. People, 204. Speer V. Stephenson, 163. Spencer, Appeal of; 537, 538. Spencer v. Haug, 234. Spencer v. State, 355. Spencer v. U. S., 306. Snratt v. Helena Power Transmis- sion Co., 18. Spring V. Collector of City of Gl- uey, 432. Spring V. Russell, 221. Springfield Grocer Co. v. Walton, 285. Spring Valley Water Works v. San Francisco, 351. Sproul V. Murray, 205. Sprowl V. Lawrence, 487. . Stackhouse . v. Board of Com'rs Dillon County, 129. Stadler v. First Nat. Bank, 600, Stampaugh Tp. v. Treasurer Iron County, 66. Standard Oil Co. v. Com., 113. Standard Radiator Co. v. Fox, 319. Stanilaud v. Hopkins, 224. Stanley v. Wabash St. L. & P. R. Co., 108. Stanyan t. Peterborough, 445. Starr v. State, 425. Starrett v. McKim, 177, 267. State V. Acuff, 167. State V. Adams, 273. State V. Adams Exo. Co., 576. State V. Alabama Bible Soc, 510. State V. Alliance. 564. State V. Allison, 269. of of 665 '^n'^ lv^™®""^° ^"Sar Refining, vjO., j&7a. State V. Andrews, 580. ! State V. Anson, 111. State V. Archer, 247. State' V. Atkins, 319. State V. Atlantic Coast Line R. Co., 463. State V. Atwood, 395. State V. Audette, 101. State V. Babcock, 332, 346. State V. Balch, 308, 456. State V. Baldwin, 13, 193, 408. State V. Baltimore & O. R. Co., 65. btate V. Bancrodt, 47. State T. Banfield, 264. State V. Barco, 48, 49. State V. Barr, 89. State V. Barrett, 47, 77, 429; 439. State V. Barry, 535, 541. State V. Bates, 327.- State V. Beasley, 16t. State T. Bennett, 416. State V. Biggs, 483. State V. Bishop, 329, 346. State V. Black, 211. State V. Blair, 487: State V. Blaisdell, 599. State T. Blitz, 185. State V. Board of Assessors of Par- ish of Orleans, 292. State V. Board of Com'rs- of Polk County, 84. • State V. Board of Com'rs of Shaw- nee County, 306. State V. Board of Com'rs of Tip- pecanoe County, 565. State V. Board of State Canvass-' ers, 573. State Y. Board of Trustees of Westminster College, 510. State V. Boasberg, 248. State V. Bock, 576. State V. Bolden, 247. State V. Boogher, 365. State V. Boon, 155. State V. Borowsky, 173. State V. Boston & M. R. R., 286. State V. Bracken, 321. State V. Bradford Sav. Bank & Trust Co., 95. State V. Bradshaw, 398. State V. Brady, 284, 304, 435. State T. Brandt, 148. 228. State V. Brewster, 47. State T. Bridges, 259. State V. Broderick, 216, 219. State T. Brown, 239. State V. Brugh, 248. State V. Bryan, 18, 23, 38, 302. State V. Bryant, 214. 473. State V. Buckles, 563. 666 CASES CITED [The figures refer to pages] State V. Buckman, 95. State V. Buffalo County Com'rB, 562. State V. Burk, 313. State V. Burke, 328. State V. Burr, 48, 308, 324, 326. State V. Burrow, 28. State V. Butler, 452. State T. Byrum, 176. State V. Cain, 89, 230. State V. Callahan, 322. State V. Campbell, 589, 604. State V. Canadian Pac. B. Co., 101. State V. Canton, 487. State V. Carlisle, 319. State T. Caruthers, 604. State V. Cass County Com'rs, 565. State T. Cave, 322. State V. Cazeau, 248. State V. Central Vermont R. Co., 319, 332, 360, 374, 487. State V. Chandler, 598. State V. Chicago, R. I. & P. R. Co 204. ' State V. Chicago & N. W. R. Co., 66, 498. State T. Clark, 129, 336. State V. Clarke, 116. State V. Clayton. 346. State V. Click, 548. State V. Cody, 176. State V. Columbian Nat. Life Ins. Co., 323, 453. State V. Com'rs of Hancock Coun- ty, 503. -State T. Com'rs of Railroad Taxa- tion, 328. State V. Comptoir Nat. D'Escompte de Paris, 65, 306. State V. Conner, 537. State V. Connor, 220. State V. Cook, 21, 132. State V. Cooper, 374. State V. Corkins, 47. State T. Cornell, 608. State V. Corning Sav. Bank, 324. State V. Cosgrave, 332. State V. Courtney, 326. State v. Covington, 159. State T. Cox, 26. fcjtate V. Cram, 341. State v. Cronin, 143. State V. Cross, 157. State v. Cudahy Packing Co., 276. State T. Curran, 514. State V. Curry, 508. State V. Dailey, 452. State T. Dale, 485. State V. Dalton & Fay, 366, 367, 374. State V. Dana, 307. State V. Davis, 290, 358. State V. Defiance County Com'rs, 508. State V. Derry, 607. State V. Deuel, 265. State V. Dinnisse, 204. State V. Dirckx, 26, 387. State V. District Court of Henne- pin Count''. 588, 589. State V. District Court of Second Judicial Dist., 587. State V. Dorsey, 607. State V. Douglass, 440. State V. Dousman, 116. State V. Drexel, 66. State V. Duffy, 536. State V. Duis, 132. State V. Dunn, 332, 472, 476. State V. Dupuy, 244. State V. Eldredge, 21. State V. Ellis, 244. State V. Engle, 183, 361. State v. Eskridge, 438. State V. Exnicios, 116. State V. Fagan, 112. State v. Fargo Bottling Works Co., 269, 475, 476. State V. Farney, 570. State V. Ferguson, 387. State v. Field, 148, 285. State V. Finch, 455. State V. Fink, 322. State V. Fisher, 457. State V. Fontenot, 204, 324. State V. Fort, 111. State V. Fountain, 39, 113. State V. Franklin County Sav. Bank & Trust Co., 52, 102. State V. Fransham, 346. State V. Frear, 293, 302. State V. Fricke, 305. State V. ii'rv, 197. State V. Fylpaa, 398. State V. Galusha. 40, 44. State V. Gaster, 595. State V. Gaunt, 467. State V. Gerhardt, 331, 334, 33a State V. Givens, 346. State v. Gmelich, 47. State V. Goetze, 202. State V. Goodwin, 475. State V. Gordon, 348. State V. Grady, 355. State V. Griftner, 96. State V. Gritzner, 456. State V. Grubb, 541. State V. Grymes, 477. State T. Gunter, 284, 304. State V. Hall, 316. tate V. Halter, 96. State V. Hand, 457. State V. Hanson, 47, 319. CASES CITED [The figures refer to pages] 6G7 State -V. Harden, 23, 40, 85, 104, 118, 150, 151, 156, 288, 324. 345. State V. Hardmau, 426. State V. Harris, 547. State V. Harrison, 269. State V. Harter, 322. State V. Hartfiel, 75. State- V. Hastings, 173. State V. Hayes, 130. State T. Hays, 387. State V. Heidorn, 588. State V. Heman, 12, 148. State V. Henry, 305. State V. Herring, 306. State V. Hildreth, 374. State V. Hill, 387. State V. Hilmantel, 573. State T. Hindson, 308, 580. State V. Hobe, 201. . State V. HofE, 278. State V. Holman, 216. State V. Holmes, 598. State V. Holt County Court Jus- . tices, 565. State V. Hooker, 302, 349. State V. Hostetter, 23. State V. Howard, 473. State V. Huestou, 279. State V. Indiana & I. S. E. Co., 319. State. V. Jackson, 16, 234. State V. Jaeger, 170, 466. State v. Johnson, 101, 259, 323, 546. State V. Jones, 187. State V. J. P. Bass Pub. Co., 457. State V. Judge of Ninth Judicial District, 242. „ ^ State V. Justices of Inferior Court ■; of Morgan County, 564. „ „ _, State T. Kansas City, Ft. S. & G. ■ K, Co., 233, 461. ^ State y. Kearney, 230. State T. Kelly, 308. State V. Kent, 557. State V. Kiley, 348, 457. State V. King, 56, 152, 541. State V. Kinkead, 75. State V. Kinne, 95. State V. Kline, 412. State V. Knight, 15. State V. Knowles, 146, 535, 565. State V. Kolsem, 112, 281. State V. Krueger, 209. State V. Kyle, 23. State V. Lancashire F. Ins. KjO., 108, 307. State V. Laugihlin. 540. State V. Lean, 545. State V. Lledtke, 52. State V. Lindsay, 112. State V. Littlefield, 400. State V. Livingston Concrete Bide, & Mfg. Co., 156. State V. Longfellow, 210. State V. Louisiana & M. II. R. Co.. 104, 148. • State V. LoTell, 452. State V. Lynch, 487. Sta:te V. McBarron, 185. State V. McCance, 456. State V. McCcomer, 111. State T. , McCrystol, 448. State V. McCuUough, 223. State T. McDonald, 584. State V. Mace, 31, 33. State V. McEldowney, 520. State V. M)eGarry, 206. State V. McGough, 38. State V. McKnight, 240. State V. McMillan, 329, 339. State V. McNally, 264. State V. Macon County Court, 598. State V. Main, 232, 461. State V. Maloney, 285. State V. Mann, 173. State V. Martin, 132, 346. State V. Massey, 560. State V. Mauehan, 49. State V. Mayberry, 79. State V. Mays, 357. State V. Michel, 111, 239. State V. Milburn, 95. State V. Miles, 598, 601. State V. Millar, 18. State V. Miller, 91, 140, 184. State T. Mills, 329. State T. Mines, 579. State V. Miskimmons, 326, 353. State v. Missouri Pac. R. Co., 186, ■ 242. State' V. Moutello Salt Co., 49. State V. Moore, 201, 609. State T. Mortensen, 602. State V. Mount, 584. State V. Mudie, 329. State V. Mulhern, 326, 327. State T. Mulkey, 160. State V. Mun^er, 285. State T. Musick, 358. State V. Myers, 148, 228, 230. State V. Myette, 48. State V. New Orleans, 18, 47, 322. State V. NichoUs, 28o. State T. Nolan, 328. State V. Norman, 39. State V. Northern Pac. R. Co., 292. State V. North Shore Boom & Driving Co., 541. State V. Norton, 365. State Vi Norwood, 413, 418. State V. Noyes, 106. State V. Oak Harbor Gas Co., 453. State V. Ohio Oil Co., 256. 668 CASES CITED [The figures refer io pages] State V. Omaha Country Club, 516. State T. Omaha £}leTator Co., 331, State V. Padgett, 240. State V. Parler, 40. State V. Parmeuter, 23, 136, State V. Partlow, 155, 156, 164. State V. Paterson, 319. State V. Patterson, 13, 338. State T. Peabody, 454. State V. Peel Splint Coal Co., Ill, 112, 113. State V. Peet, 77. State V. People's Nat. Bank, 66, 129. State' V. Perry County Com'rs, 117. State V. Perrysburg, 170. State V. Peters, 83. State V. Phelos, 184. State v. Pilgrim,: 265. State V. Pinckney, 400. State V. Pitts, 546. State V. PoUman, 132. State V. Pool, 231. State V. Popp, 261. State V. Portage City Water Co., 603. State V. Powers, 446. State V. Preferred Tontine Mer- cantile Co., 382. State V. President, etc., of Bank of Smyrna, 511. State V. Pridgen, 387. State V. Purl, 183. State V. Radford, 157, 168. State V. Railroad Commission, 56, 168, 320. State V. Rat Portage Lumber Co., 126. State V. Redmon, ,79. State V. Reid, 452. State V. Reneau, 81. State V. Reusswig, 52, 332. State V. Richmond, 173. State V. Rising, 198. State V. Ritchie, 596. Stat6 V. Robey, 599. State V. Roby, 285. State V. Rogers, 214. State V. Ross, 301. State V. Rutland R. Co., 118, 290, 308, 323, 345. State V. St. Louis, 430, 432. State V. St. Louis & S. F. R. Co., 199. State' V. St. Paul, 276. State V. St. Paul, M. & M. R. Co., 504. State V. Sauer, 185. State V. Scaffer, 148. State V. Scarborougli, 48. State T. Scheffield, 52. State r. School Dist. . No. 1, Ed' wards County, 530. State V. Sohucumann, 214. State V. Scott, 142. State V. Scudder, 387. State V. Searle, 332, 433. State v. Sears, 398. State V. Second Dist. Court, 52. State V. Several Parcels of Land, 516. State V. Shapiro, 374. iSiate V. Sheldon, 40, 302. State V. Shenherd, 274. Stale V. Showers, 438. State V. Shuford, 475. State V. Skeggs, 23, 111. State V. Smiley, 172. State V. Smith, 4, 179, 230, 452; 546. State V. Snyder, 346. State T. Solomon, 216. State T. Solomons, 453. State V. Southern R. Co., 118, 293, 345. State V. Standard Oil Co., 111. State V. Stanley, 326. State V. State Board of Canvassers, 572, 573. State V. State Capital Co., 457. State T. Stephenson, 48, 247. State V. Stevens, 13. State V. Stewart, 215, 286. State V. StoUer, 224. State V. Stout, 514... State V. Stroscheln, 590. State V. Stuart, 411. State V. Sullivan, 360, 361. State v. Summers, 340. State V. Superior Court of Clal- lam County, 586. State V. Superior Court of Pierce County, 15. State v. Swann, 518. State V. Sweetsir, 559. State V. Swope, 608. Kiate V. Talty, 66. State V. Taylor, 44, 143, 516. State V. Terre Haute & I. R. Co., 112. State v. Third Judicial Dist. Court of Salt Lake County, 48. State V. Thompson, 111, 387, 616. State V. Tiffany, 231. State V. Timme, 164. State V. Tingey, 40. State ,v. Townley, 198. State V. Trustees of Ohio Soldiers' & Sailors' Orphans' Home, 614. State V. Turner, 129. State V. Twin City Tel. Co., 285, T. Under-Ground Cable Co., State 310. State T. Van Camp, 123. ' State y. Wadswotth, 285. State V. Wallace, 453. State y. Wallis, 386. State V. Walters, 230. ' State V. Ward; 1981 State v. Washington Railroad Commission, 4S. State V. Webber, 112, 432; State V. Wellef, 47, 322, 442. State V. Welsh, 246. State V. Weston. 412. State T. Whealey,, 152. State V. /Wheeler, 112, 515, 599. State V. Whitener, 184. ■ State V. Whittlesey, 380, 384. State V. Wiggins Ferry Co., 67. State V. Wilder, 49. State V. WiUiams, 47, 95, 129, 215, 327, 345, 559. . State v.. Williamson, 530. State V. Willis, 585. Sta:te V. Wilson, 356, 366. State V. Wirt County Court, 337. State V. Wofiford, 387. State V. Woodruff, 52, 452. State V. W*)odside, 63. State, Y. Youmans, 401. State T. Young, 331. State V. Zanesville & Maysville Turnpike Road Co., 225. State Auditor v. Jackson County, 567, 568. State Bank of Missouri v. Tutt, 198. State Board of Tax Com'rs v. Hol- - liday, 47. State Commission in Lunacy v. ' Welch, 596. State Mut. Ins. Co. v. Clevenger, ,: 77. State Sav. Bank v. Albertson, 598. State Tax on Foreign-Held Bonds, 110. State Water Supply Commission i of New York v. Curtis, 113. Stayton v. Hulings, 322, 549. Stearns v. Graham, 594. Stebbins v. Anthony, 234. Stebbins v. Board of County Com'rs, Pueblo Co., 612. Steck v. Prentice^ 339. Steel V. State, 452. Steele v. Empsom, 408. Steele T. Midland R. Co., 311. Steele V. -Spencer, 184. Steele County v. Erskine, 419. Steen v. Finley,'402. Stein V. Bienville Water Supply Co., 508. CASES CITED tThe figures "reiei to pages] CG9 Steih' V. Hanson, 385. Stem V. Morrison, 598. Steinle v. Bell, 238. ■ Stemlein v. Halstead, 224. • Steiuruck's Insolvency, In re, 232; Stellwageti v. Durfee, 598. Stemmer, v. .Scottish Union & Nat. ■ Ins. Co., 204. Stephau v. Metzger, 598. Stephen v. Illinois Cent."R. Co.. - 43i;. Stephens v. Cherokee Nation, 265. Stephens v. Jones, 561. Stephenson v. Boody, 619. Stephenson v. Doe ex dem. Wait, 613. Stephenson v. Taylor, 264. Steppacher v. McClure, 128. Stern v. Fargo, 134. Sternberger v. Seaton Min. Co., 359. . . Stetson V. Grant, 96. Stetson v. Hall, 403. Stevens V. Gourlev, 87. Stevens v. Nave-JMcCord Mercan- tile Co., 48. ■ ■ Stevens v. Ross, 174. Stevenson v. Bachraeh, 202. Stevenson v; Colgan, 288. Stevs^art v. Atlanta Beef Co., 312. Stewart v. Board of Sup'rs of Polk County, 111. Stewart v. Brown, '232. Stewart v. Com., 482. Stewart V. Lattner, 423. Stewart v. State, 452. Stewart v. Stearns & Culver Lum- ber Co., 357. Stewart v. Stringer, 4S6. Stewart v. Vandervort, 393. Stief V. Hart, 89. Stiers v. Mundy, 48, 431, 432, 433, Stiles V. Guthrie, 265. Stillwell V. Jackson, 111. Stocker v. Poster, 412. Stockle v. Silsbee, 567. Stockton V. Central B. Co., 251. Stockwell V. U. S., 190. Stoeckle v. Lewis, 541. Stone V. Elliott, 198. Stone V. Stone, 204. Stone V. Yeovil, 165. Stoneman v. Whaley, 163. Storey's Appeal, 203. Storms V. Stevens, 561. Story V. New York Electric R. Co., 286. Stoughter's Case, 347. Stoiit V. Grant County Com'rs, 308. Stowell V. Johnson, 359. Stowell V. Lord Zouch, 253. 67Q CASES CITED [The figures refer to pages] Strange v. Board of Com'rs of Grant County, 218. Strasburger v. Dodge, 605. Stratton v. Stratton,' 4. Streeter v. People, 230. Strieker v. Pennsylvania R. Co., 457. Strohmeyer & Arpe Co. v. U. S., 196. Strong V. Birchard, 238, 477. Strother v. Hutchinson, 284. Strottman v. St. Louis, I. M. & S. R. Co., 822, 594. Struthers v. People, 47, 381. Stuart V. Chapman, 332. Stuart V. Laird, 38, 41, 290, 302. Stuart T. Maxwell, 189. Stuart V. Palmer, 184. Studebaker v. Perry, 305. Stump V. Homback; 347. Sturges V. Carter, 381. Sturges V. Crowinshield, 51. Sturgis V. Hull, 404, 416. Stutsman County v. Wallace, 597, 600. Suburban Light & Power Co. v. Al- dermen of Boston, 544. Sugden v. Partridge, 111. Sullivan v. Bailey, 432. Sullivan v. La Crosse & M. Steam Packet Co., 374. Summerman v. Kgowles, 224. Sumner v. Colfax, Co., 568. Sunflower Lumber Co. v. Turner Supply Co., 47. Supreme Council A. L. H. v. An- derson, 608. Supreme Council of . Royal Ar- canum V. Heitzman, 385. Sussei Peerage Case, 254. Sutherland v. Com., 456. Sutton v. Parker, 322. Sutton V. Sutton, 262, 373. Suydam v. Williamson, 621. Swan V. Arthur, 188. Swanu V. Buck, 552. Swanson v. Swanson, 492. Swarts v. Siegel, 51. Swartz V. Andrews, 419. Swenson v. McLaren, 545. Swick V. Coleman, 220. Swift V. Caiman, 321. Swift V. Luce, 82. Swift & Co. T. Newport News, 26, 33, 387. Swift & Co. V. Wood, 608. Swigert, In re, 204. Swinney v. Ft. Wayne, M. & O. R. Co., 353. Swoiford Bros. Dry Goods Co. v. Mills, 597. Taft V. Cannon, 397. Taggart v. Newport St. R. Co., 217. Talbot's Lessee v. Simpson,- 63. Talmage v. Third Nat. Bank, 529. Tarver v. Com'rs Court of Talla- poosa County, 531. Tate V. Rose, 492. Taylor v. Blanchard, 509. Taylor v. Caribou, 264, 332. Taylor v. Goodwin, 79. Taylor v. Mitchell, 387. Taylor v. Newman, 246. Taylor v. Palmer, 243. Taylor v. Porter, 184. Taylor v. Strayer, 422. Taylor v. Taylor, 21, 22, 39, 221, 313 Taylor v. U. S., 521, 522. Taylor v. Tpsilanti, 619. Tazewell y. Herman, 23. Teunant v. Kuhlemeier, 310, 313. Tennessee Coal, Iron & R. Co. v. Boussell, 299. Tepper V. Supreme Council Royal Arcanum, 178. Teralta Land & Water Co. t. Shaf- fer, 398. Terre Haute & I* R. Ca, t. Elr- del, 4. Terrill v. Jennings, 497. Territory v. Ashenfelter, 153. Territory v. Clark, 48, 149, 319, 323. , Territory v. Copper Queen GonsoL Min. Co,, 598. Territory v. Hopkins, 247. Texas & N. O. R. Co. v. Wells-Far- ' go Exp. Co., 387. Texas & P. R. Co. v. Blocker, 468. Texas & P. R. Co. v. Humble, 603. Texas & P. R. Co. v. Interstate Commerce Commission, 289. Texas & P. R. Co. v. Taylor, 129, 457. Thacher v. Board of Sup'rs of Steuben County, 422, 425. Thames Mfg. Co. v. Lathrop, 391. Thaxter v. Jones, 126. Thayer v. Pressey, 172. T. H. Bunch Co., In re, 474. Thqvenin v. Slocum's Lessee, 518. Thiebes-Stierlin Music Co. v. Weiss, 452. Thiell, In re, 207. Thistleton v. Frewer, 402. Thomas v. F. B. Vandegrift & Co.. 312. Thomas v. Grand Junction, 228. CASES CITED [The figures refer to pages] 671 Thomas v. Huesman, 379. Thomas v. Mahan, 343. Thomas v. Malouey, 368. Thomas t. Owens, 30. Thomas v. U. S., 590. Thomas v. Williamson, 111. Thomas & Faris v. State, 514. Thompson v. Bulson, 319. Thompson v. Burnham, 612. Thompson v. Kidder, 38. Thompson v. Morgan, 420. Thompson v. Mylne, 349. Thompson v. State, 133. Thompson t. Weller, 877. Thorn v. Silver, 157. Thomburg v. American Straw- board Co., 367. Thornton v. Boyd, 236, 237. Thorp V. Craig, 13. Thrift V. Thrift, 494. Thurber's Estate, In re, 544. Thurston v. State, 198. Thurston County t. Sisters of Charity of House of Providence, 512. Ticknor, Estate of, 78. Tide Water Canal Co. v. Archer, 482. Tiemey v. Dodge, 355. Tiemey v. Ledden, 53. Tilden's Ex'rs, In re, 204. Tillman, Ex parte, 588. Tilton V. Swift & Co., 405. Tindall v. Childress, 138. Tindall v. Johnson, 293. Tioga R; Co. v. Blossburg & C. R. Co., 620. Title Guaranty & Surety Co. v. Guarantee Title & Trust Co., 95. Todd V. Board of Election Com'rs of Kalamazoo, etc.. Counties, 395. Todd V. Clapn. 612. Toledo & A. A. B. Co. v. Johnson, 467. Toll V. Wright, 523. ToUett V. Thomas, 159. Tolman v. Hobbs, 518. Tompkins V. First Nat. Bank, 65. Tompkins v. Porrestal, 411. Toncray v. Budge, 38. Tonnage Tax Cases, 111. Tonnele v. Hall, 285. Toole's Appeal, 565. Toplitz V. Hedden, 189. Torrance v. McDougald, 197, 6JM. Torrey v. Corliss, 386. Torrey v. Millbury, 567. Torreyson v. Board of State Ex- aminers, 247. Tousey v. Bell, 487. Towell V. HoUweg, 241. Towle V. Forney, 299. Town of Bethlehem v. Watertown, 223. Town of Cherry Creek v. Becker, 26. Town of Ft. Edward v. Hudson Valley Ry. Co., 143. Town of Grove v. Haskell, 450. Tiown of Hempstead v. Lawrence, 529, 530; Town of Highgate v. State, 334. Town of La Salle v. Blanchard, 385. Town of Pelham v. Shinn, 151. Town of Southington v. Southing- ton Water Co., 144. Town of Walton v. Adait, 420. Town of Windfall City v. State, 501. Town of Wolcott v. Pond, 488. Town of Wrentham v. Pales, 422. Townsend v. Brown, 439. Towusend Gas & Electric Light Co. V. Hill, 113, 204. Townsend Sav. Bank v. Epping, 614. Township of Lebanon v. Burch, 578. Towson V. Denson, 435. Traders' Mut. Life Ins. Co. v. Humphrey, 541. Traders' Nat. Bank v. Lawrence Mfg. Co., 431. Trapp V. Wells Fargo Exp. Co., 323, 324, 338. Traudt v. Hagerman, 487. Travelers' Ins. Co. v. Fricke, 305. Treasurer of Vermont v. Clark, 442. Treasurers of State v. Lang, 256. Tremont & Suffolk Mills v. Lo- well, 381. „ Trenton Banking Co. v. Haverstick, 199. Tripp V. Goff, 255. Troutman v. May, 96. Troy Laundry & Mach. Co. v. Den- ver, 47. Truelove v. Truelove, 361. Truelove v. Washington, 314. Trueman v. Lambert, 256. Trumble v. Trnmble, 118. Trumpler v. Bemerly, 478. Trustees for Support of Public Schools V. Trenton. 96. Trustees of Clyde Navigation v. Laird, 294. . „, . Trustees of First Baptist Church in City of Schenectady v. Utica & S. R. Co.. 429. . Trustees of Kentucky Seminary v. Payne, 507. 672 CASES CITPD [The figures refer to pages] Trustees of New York & Brooklyn Bridge,' In re, 319. - ' Trustees of Richmond County Aca- ' ■ demy v. City Council of Alagusta, 96., Trustees of Rochester v, Pettinger, 436. Tsoi Sim v. U. S., 199. Tsntakawa v. Kumamoto, 48, 431. Turbett Tp. Overseers of Pooy v. Port Royal Borough Overseers of Poor, 101. ■ . Turck V. Richmond, 88. Turner v. Neosho County Com'rs, " '349. Turner v. State, 168. •' Turner's- Adm'r v. Whiften, 233. Turneyv. Wilton, 339, 576." Turnipseed v. Hudson, 205.- Turrill V. Michigan, S. & N. I. R. Co., S09. Tuskaloosa Bridge Co. v. Jemison, 495. Tuxbury's Appeal, 608. Twehty-Bikht Cases of Wine, 521. Twiggs V. State Board of Land ■ Com'rs, '346. Two Hundred Chests of Tea, 189, 190. Tylee V. Hyde, 77. Tyler, Bx parte, 201. Tyler v. Tyler. 606. Tynan v. Walker, 47. Tynei" v. U. S., 474. Tyng V. Grinnell, 193. Tyrell v. New York, 263. Tyson, In re, 288, 239. Tyson v. Hamer, 558. Tyson v. Washington County, 106. u Underbill v. Longridge, 82. Underwood v. Lilly, 388. Ungericht v. State, 15. Union Brewing Co. v. Ehlhardt, 487. ■ Union Cent. Life Ins. Co. v. Champlin, 51. Union Cent. Life Ins. Co. v. Til- lery, 183. Union Ins. Co. v. Hoge, 304. Union Ins. Co. v. U. S., 181. Union Iron Co. v. Pierce, 612. Union Pae. R. Co. v. De Busk, 199. Union Pac. R. Co. v. U. S., 316, 500. Union Pac. R. R. v. U. S., 291. Union Refrigerator Transit Co. v. Lyndh, 265. Union S. B. Co. v. Erie & W. Transp. Co., 248. Union S. S. Co. v. Melbourne Har- bor Com'rs, 259. Union Trust Co. of San Francisco V. State, 95. ■ - ^ United Shoe Machinery Go. v. Du- plessis Shoe Machinery Co., 246. United Society v. President, etc., of Eagle Bank of New Haven, 331, 3;54, 335, 343. U. S. v. A. J. Woodruff & Co., 575. U. S. V. Allen, 84, 312. U S. V. Amedy, 199. U. S. V. Atchison, T. & S. P. K. Co., 386. U. S. V. Athens Armory,- 181, 449. U. S. V. Babbit, 346, 433. U; «. V. Ballinger, 323. ' U. S. v. Baltimore & O. R. Co., 457. ■ ■ U. S. V. Baltimore & O. S. W. K. Co., 244. U. S. V. Beaty, 451. ^ U. S. V. Bernays, 432. U. S. V. Bliss, 302. U. S. v. Bowen, 593. U. S. V. Breed, 189. U. S. V. Briggs, 248, U. S. T. Burlietti 304. U. S. V. Cerecedo Hermanos y Companik, 302, 609. U. S. V. Chesbrough, 176. U. S. V. Chicago, St. P., M. & O. R. Co., 425. U. S. V. Chicago & N. W. R. Co., 311. U. S. V. Choctaw, O. & G. R. Co., 578, 599. U. S. V. Cohn, 148. U. S; V. Collier, 335. U. S. V. Colorado & N. W. R. Co., 12, 48, 51, 142, 341. U. Si V. Com'rs of District of Co- lumbia, 565. U. S. V. Gorbett, 457. U. S. V. Crawford, 201, 577. U. S. V. Day, 132, 302. U. S. V. De Groat, 187. U. S. V. Delaware & H. Co., 113. U; S. Dickson, 236, 237, 435. U. S. V. Dillin, 462. U. S. V. Doo-Noch-Keen, 456. U. S. V. Duell, 110. U. S. V. Eighty-Five Hogsheads of Sugar, 189. U. S. V. Evans, 456. U. S. V. Fehrenback, 262. U. S. V. Fisher, 51, 126, 128, 248. U. S. V. Freeman, 68, 331, 339. U. S. V. Gilmore, 302. U. S. V. Graham, 305. U. S. V. Hartwell, 48, 45T. U. S. V. Herron, 95. CASES CITED IThe figures refer to pages] U. S, V. Hewes, 95. U. S. V. HiU, 302. . U. S. V. Hoar, 96. U. S. V. Hodson, 516, 522. U. S. V. Hogg, 66. U. S. V. Howard. 109. U. S. V. Huggett, 454. U. S. V. lUinois Gent. R. Co., 457, 475. U. S. V. Isham, 266. U. S. V. Jackson, 77, 166, 326, 328, 3S5. U. S. V. Johns, 173. U. S. V. Jones, 183. U. S. T. Keitel. 5. TJ. S. V. Kirby, 69, 104. U. S. V. Lacher, 265, 593. U. S. V. Le Bris, 340. U. S. V. Lonabaugh, 457. D. S. v. Louisville & N. R. Co., 451. U. S. V. Lytle, 301. U. S. McArdle, 246. U. S. V. McCrory, 247. U. S. V. MacFarland, 305. tJ. S. V Moore, 230. U. S. T. Morris, 451. U. S. V. Morse, 507. TJ. S. V. Murphy, 495. U. S. T. Nakashima, 246. U. S. T. New Bedford Bridge, 91. TJ. S. V. Ninety-Nine Diamonds, 51, 76, 185, 322. U. S. V. North American Commer- cial Co., 590. tJ. S. v. Olney, 521. U. S. v^ One Hundred Barrels of Spirits, 521. U. S. V. One Hundred & Twelve ; Casks of Sugar, 190. U. S. V. 1150% Pounds of Cellu- loid, 209. tJ. S. V. Oregon & C. B. Co., 265, 287 U. S." V. Palmer, 109, 246. U. S. V. Philbrick, 302. U. S. V. Pine River Logging & Imp. Co., 295. U. S. V. Pirates, 242. U. S. V. Quincy, 195. U. S. V. Bagsdale, 48. ^ U. S. V. B. F. Downing & Co., 428, 432 433. U. S.' V. Richards, 483. U. S. V. Santistevan, 225, 452. U. S. V. Sarchet, 190. U. Si V. Saunders, 78. tJ. S. V. Scruggs, Vandervoort & Barney Dry G-oods Co., 433. U. S. V. Semmer, 189. U. S. V. Sheldon, 451. U. S. V. Shing Shun & Co., 49. Black Int.L. — 43 67a U. S. V. Simms, 227. . U. S. V. Standard Oil Co., 425. U. S. V. Starr, 3S6, 451. U. S. V. Stern, 166. U. S. V. Stowell, 522. U. 8. V. Tanner, 305. U. S. V. Ten Cases of Shawls, 229, 446. D. S. M. Thirty-Six Barrels of High Wines, 521. U. S. V. Thomau, 536. U. S. V. Three Railroad Cars, 267, 279. U. S. V. Three Tons of Coal, 521. D. S. V. Trans-Missouri Freight Ass'n, 187, 312, 331, 381. U. S. V. Trumbull, 195. U. S. V. Twenty Boxes of Com Whisky, 451. U. S. V. TwentyT^Five Cases of Cloths, 521. U. S. V. Tynen, 356. U. S. V. Union Pac. R. Co., 246, 287, 304, 312. U. S. V. Vickery, 231. U. S. V. Voorhees, 265. U. S. V. Wanamaker, 401. U. S. V. Warner, 48. U. S. V. Watts, 515, 522. U. S. V. Webster, 254. U. S. V. Weise, 202. U. S. V. Wigglesworth, 520. U. S. V. Wilder, 523. U. S. V. Willetts, 521. U. S. V. Williams, 457. U. S. V. Wilson, 315, 451. U. S. V. Wiltberger, 457, 459. U. S. V. Winn, 459. tr. S. V. Winona & St. P. R. Co., 173. U. S. V. Wong Kim Ark, 285. U. S. V. Wotten, 303. U. S. V. York, 264. United States Cement, Co. v. Coop- er, 218. United States Fidelity & Guaranty Co. V. People, 598. United States Saving & Loan Co. v.. Miller, 436. United States Trust Co. of New York V. U. S. Fire Ins. Co., 545. Van Blankensteyn, In re, 192, Van Buren v. Wylie, 452. Vandalia R. Co. v. Miller, 489. Vanderberg, In re, 166. Vane v. Newcombe, 331. Van Fleet v. Van Fleet,' 395, 399. Vanhook v. State, 452. Van Hook v. Whitlock, 86. '674 CASES CITED [The flgutes refer to pages] Van Horn v. State, 439. Van Loon v. liyon, 617. Van Matre v. Sankey, 300, 623. Vann v. Edwards, 182. Van Ness v. Pacard, 357, 359. Van Norden v. Primm, 172. Van Norman v. Jackson Circuit , Judge, 484. Van Shaack t. Robbins, 173. Van Sickle v. Belknap, 86. Van Veen v. Graham County, 302, • 609. Van Walters v. Board of Cbildren's Guardians of Marion County, 246. Varick t. Briggs, 122. Varney v. Justice, 28. Vason V. Augusta, 541. Vassey v. Spake, 215. Vavasour v. Ormrod, 429. Vermont, The, 178. Verona Cent. Cheese Co. v. Mur- taugh, 213, 454. Verplanck v. Mercantile Ins. Co., 532. Vicks'burg, S. & P. B. Co. v. Den- nis, 511. Vicksburg & M. R. Co. v. State, 515, 518. Victoria Lumber Co. v. Rives, 40. Vietor v. Arthur, 598. Vigo's Case, 495. Village of Altamont v. Baltimore & O. S. W. R. Co., 452. Village of Hardwick v. Vermont Telephone & Telegraph Co., 458. Village of Hyde Park v. Oakwoods Cemetery Ass'n, 137. Village of luka v. Schlosser, 77, 126, 319. . Village of Kent v. U. S., 530. 562. Village of Morgan Park v. Knopf, 306, 307. Village of New Holland v. Hol- land, 415. Virginia Coal & Iron Co. v. Key- stone Coal & Iron Co.. 302. Virginia & M. Steam Nav. Co. v. U. S. Taney, 235- Viterbo v. Friedlander, 244, 590. Vives, Succession of, 203. Voll, Ex parte, 198. Von Bremen. MacMonnies & Co. V. U. S., 600. Von Di est v. San Antonio ^Traction Co., 12. w Wabash R. Co. v. Fox, 337. Wabash R. Co. v. U. S., 49, 219, 222. ■■ ... Wabash, St. L. & P. R. Co. T. Shacklett, 491. Wade V. Brexel, 381. Wade V. Reitz, 378. Wade V. Strack, 387. Wade V. U. S., 475. Wadsworth v. Boysen, 143, 314. Wadsworth v. Union Pac. Ry. Co., 112, 117. Waffle v. Goble, 427, 429, 439. Wagar v. Briscoe, 379. Wahll, In re, 285. Wainewright, In re, 168. Wakefield v. Brophy, 84. Wakefield v. Patterson, 572. Wakefield v. Smart, 71. Wakefield Local Board of Health V. West Riding & G. R. Co., 271. Walcutt V. Columbus, 395;. Waldharber v. Lunkenheimer, 78. Waldo V. Bell, 329. Waldron v. Taylor, 142, 177. Walker v. Bobbitt, 608. Walker v. Chapman, 545. Walker v. Chicago, 480. Walker v. Cincinnati, 20. Walker v. Dailey, 452. Walker v. State, 385. Walker v. State Harbor Com'rs, 620. Walker v. Vicksburg, S. & P. R. Co., 52. Wall V. Dovey, 486. Wall V. Piatt, 211, 487. Wallace v. Baker, 413. Wallace v. Board of Equalization, 40. ^ , Wallace v. Oregon Shore Line R. Co., 418. Wallace v. Scales, 335. Waller v. Harris, 12. Walsingham's Case, 439. Walter A. Wood Mowing & Reap- ing Co. V. Caldwell, 309. Walton, Ex parte, 63, 68. Walton V. Cotton, 203, 507. Walton V. Fudge, 398. Walton V. State, 183, 361, 457. Walton V. Walton, 559. Wanamaker v. Poorbaugh, 598. Warburton v. Lovelaud, 149. Warburton v. Sandys, 237, Ward V. Ward, 121, 155. Warfield v. Fox, 524. Warfield-Pratt-Howell Co. v. Aver- ill Grocery Co., 567. Warfield's Will, In re, 290. Warfield's Will, Matter of, 618. Warkworth, The, 376. Warner v. Com., 453. CASES CITED [Tho figures refer to pages] 675 Warner v. Connecticut Mut. Life Ins. Co., 445. Warner v. Fowler, 370. Warner's Settled Estates, In re, 283. Warren v. Charlestown, 116. Warren Mfg. Co. v. Etna Ins. Co., 386. Warrington v. Furbor, 516. Warshung r. Hunt, 387. Wartensleben v. Haithcock, 433. Washburn v. Lyons, 229. Washington, A. & G. R. Co. v. Martin, 614. Washington & B. Turnpike Co. v. Maryland, 508. Wasteney v. Schott, 96. Waterbury t. Piatt Bros. & Co., 481. Water Com'rs of Amsterdam, In re, 481. Water Com'rs of Jersey City v. Hudson, 500. Waterford & Whitehall Turnpike V. People, 334. Waters-Pierce Oil Co. v. State, 148. Watkins v. Glenn, 398. Watkins v. Wassell, 221. Watson V. Mercer, 383. Wayne County v. Detroit, 36, 463. Wear v. Bryant, 293. Weatherly v. Capital City Water Co., 588. Weatherly v. Mister, 267. Weaver v. Davidson County, dlO. Webb, Matter of, 431. Webb V. Allen, 180. Webb V. Baird, 477. Webb T. Fairmaner, 237. Webb V. Mullins, 375. Webb V. Ritter, 112. „. „ _ Webber v. St. Paul City R. Co., 275 Webster v. French, 526, 548. Weeks v. Hull, 234. Wehrenberg v. New York d/^. Weilbacher v. Merntt, 188, 1S9, 190 192 Weill' V. Kenfield, 34, 36 179. Weirich v. State, 179, 456. Weisberg v. Weisberg, 612. Weiss V. Swift & Co., 218. Weister v. Hade, 32, 384. . Weitz V. Walter A. Wood Reaping & Mowing Mach. Co., 4m Wellmaker v. Terrell, 111. Wellsburg & S.. L. B. Co. v. Pan- handle Traction Co., 77, iJ^a. 324, 325, 332, 339.^ Welsh V. Barber Asphalt Fa v. LiO., 597. Welsh V. Cross, S98. Welsh V. Solenberger, 561. Welty V. U. S., 361. Wendel v. Durbin, 540. Wender Blue Gem Coal Co. t. Louisville Property Co., 608. Wenger v. Taylor, 322. Wentworth v. Racine County, 156. West Branch Boom Co. v. Dodge, 612. W'estbrook v. Miller, 302. Westchester County v. Dressner, 422. Westcott V. Miller, 599. Western Dredsing & Imp. Co. T. Heldmaier, 205. Western Inv. Co. v. Davis, 602, 604. Western Travelers' Ace. Ass'n ▼. Taylor, 322, 559. Western Union Tel. Co. v. Axtell, 170, 452, 453. Western Union Tel. Co. v. Coyle, 465. Western Union Tel. Co. v. Jones, ■ 452. Western Union Tel. Co. v. Julian, 42. Western Union Tel. Co. T. Mc- Daniel, 489. Western Union Tel. Co. v. Rail- road Com. of Louisiana, 18, 21. Western Union Tel. Co. v. State, West Jersey Traction Co. v. Cam- den Hoi-se R. Co., 115. West Wisconsin R. Co. v. Foley, 544. Wetmore v. State, 282, 302. Wettlaufer v. Baxter 362. Wheeler v. Chicago, 544, 547. Wheeler v. Northern Colo. Xrr. Co., 359. Wheeling Gas Co. v. Wheeling, 319. Wheelock v. Myers, 337, 412, 426. Wheelwright v. Com., 483. Whipple V. Eddy, 560. Whitcomb v. Rood, 608. White V. Crump, 550. White V. Dallas County, 240. White T. Hilton, 397. White. V. Ivey, 212, 482. White V. Nashville & N. W. K. Co., 439. „ White V. Rio Grande Western R. Co 243 White V. State, 154, 162, 607 White V. The Mary Ann, 487. White County v. Key, 493. Whitfield V. Garris, 85. Whitford v. Panama R. Co., 109. 676 CASES CITED [The figures reter to pages]. Whitley v. State, 541. Whitlock' V. Hawkins, 384. Whitman v. Hapgood, 386. Whit;3iire v. Muncy Creek Tp., 332. Whitney v. Brunette, 484. Whitney v. Fox, 600. Whitney v. Whitney, 67. Whittemore v. People. 305. Whitten v. State, 559. Whittington, Ex parte, 532, 565. Wieker V. Comstock. 210. Wiggins V. State, 204. Wilber v. Paine, 487. Wilbilr V. Crane, 374. ' Wilby V. State, 518. Wilder v. Gamt>beU, 398. Wiley V. Flournoy, 568. Wilkie V. Jones, 48'5. Wilkinson v. Adam, 85. Willard V. Fralick, 486. Willard v. People, 117. William Fox Amusement Co. T. McQlellan, 453. William Wilkens Co. v. Baltimore, 511. Williams v. Bagnelle, 236. Williams v. Brokaw, 387. Williams v. Ellis, 337. Williams v. Keith, 346. Williams v. McDonal. 243. Williams v. Miles, 495. Williams v. Nashville, 112, 316. Williams v. Paine, 394. Williams V. Poor, 228, 230. Williams v. Pritchard, 330. Williams v. State, 111, 286. Williams v. Territory, 476. Williams v. Williams, 216. Williamson v. Harris, 217. Williamson v. Williamson, 532. Willis V. Bayles, 483. Willis V. Eastern Trust & Bank- ing Co., 605. Willis V. Fincher, 411. Willis T. Kalmbach, 176, 323. Willis V. Mabon, 215. Wills V. Auch, 519. Willson V. Hahn, 346. Wilmington City R. Co. v. People's B. Co., 607. Wilmington & W. R. Co. v. Beid, 510. Wilson V. Bradley, 340, 349. Wilson V. Knubley, 258. Wilson V. Red Wing School Dist., 399. Wilson V. Rousseau, 509. Wilson V. Spaulding, 246. Wilson V. State Bank of Alabama, 545. Wilson V. Trenton, 93. Wilson V. Wentworth, 457. Wimberly v. Georgia Southern & P. R. Co.,. 246. Winchell v. Oamillus, 13. Windham t. Chetwynd, 617. Windsor v. Des Moines, 419; Winslow V. Kimball, 285. Winsor v. Odd Fellows' Ben. Ass'n, 177. Winsor Coal Ca v. Chicago & A. R. Co., 530, 541. Winter v. Jones, 113. Winters v. Duluth, 66. Wisconsin Industrial School For Girls V. Clark County, 66. Wisconsin Tel. Co. v. Oshkosh, 502, 516. Wishek v. Becker, 332. Wisner, Bx parte, 598. Withers v. Com., 213, 267. Witherspoon v. Jernigan, 231. Wolf V. Lowry, 616. Womelsdorf v. Heifner, 495. Wonner v. Carterville, 215, 219. Wood V. Atlantic City, 395. Wood V. Board of Election Com'rs, 329. Wood V. Brown, 556. Wood V. Erie B. Co., 499. Wood V. Oakley, 387. Wood V. U. S., 355. Wood V. Westborough, 406. Wood-Dickerson Supply Co. v. Coo- ciola, 607. Woodall V. Boston Elevated R. Co., 575. Woodbury v. Berry, 52, 54, WoodrufiE V. Gilchrist, 255. Woodruff V. Orange, 162. Woods V. Mains, 285. Woodvine v. Dean, 412. Woodward v. FruitvaJe Sanitary Dist., 114. Woodward v. Sarsons, 526. Woodward v. Watts, 131. Woodworth v. Paine's Adm'rs, 207. Woodworth v. Spring, 108. Woodworth v. State, 216. Woolsey v. Cade, 607, 608. Worrell v. State, 169. Worth V. Peck, 168. Wright V. Com., 454. Wright V. Cradlebaugh, 184 Wright V. Graham, 418. Wright V. Johnson, 420. Wright V. Millard, 367. Wright V. Southern B. Co., 401, 403. Wright V. U. S., 593. Wrightman v. Boone County, 385. CASES CITED [The Sgures refer to pages] 677 Wroughton v. Turtle, 516. Wjatt V. State Board of Eaualiza- tion, 182, 285, 302, 308, 608. Wyman v. Fabens, 172. ■Wyoming Coal Min. Co. v. State, Yale University t. New Haven, 512. Tancey v. Hopkins, 504. Yankton Sav. Bank v. Gutterson, 599. Yate's Case, 594. Yazoo & M. V. R. Co. v. Board of Levee Com'rs, 512. Yazoo & M. V. R. Co. v. Thomas, 254, 510, 511. Teager, Ex parte, 565. Yerger v. State, 52. Young, Ex parte, 110. Young V. Com., 111. Young V. Huphes, 393. Young V. Joslin, 567. McICenzie, 504. Madison County, Young V. Young V, 483. Young V, Young V. 452, Moore, 453. Salt Lake City, 111. Young's Lessee v. Martin, 519. Zanone v. Mound City, 564. Zeh V. Oadwalader, 189. Zelig V. Blue Point Oyster Ca, 574. Zellers v. White, 457. Zimmerman v. Cowan, 239. Zouch V. Empsey, 235. Zufall V. U. S., 604. INDEX [thk figubes eefeb to pages] A ABSURDITY, . in statutes, to be avoided by construction, 129. what is, 129. ACTIONS, pending, affected by laws regulating procedure, 413. against state, laws authorizing, 513. limitation of, see Statutes of Limitations. ACT'S OF LEGISLATlTRE, see Statutes. ADOPTED STATUTES, construction of, 597-609. statutes from other states, 597. state laws extended to territories, 604. British statutes, 605. re-enacted statutes, 607. AFFIDAVIT OF DEFENSE LAW, to be construed strictly, 486. AMBIGUITIES, In statutes, removal of, by construction, 55. by consideration of context, 242. by aid of title of act, 244. by aid of preamble to statute, 253. by extrinsic evidence, 275-316. In code, explained by reference to original statutes, 590. AMENDMENTS, in pleadings or process, laws authorizing, liberally construed, 494. amendatory and amended statutes, 574r-585. construction of amendments, 574. • construction of statute as amended, 575. scope of amendatory act, 577. amendment by way of revision, 579. identification of act to be amended, 582. retroactive construction of amendatory act, 584 AMERCEMENT, of oflScers, laws authorizing, construed strictly, 486. Black Int.L. (679) 680 INDEX [The figures refer to pages] "AND," when read as equivalent to "or," 228, not in penal statutes, 446. APPEAL, pending, how affected by retroactive statute, 417. statutes giving right of, liberally construed, 495. APPROPRIATION 6F PROPERTY, laws authorizing, construction of, 480. ARBITRATION, laws authorizing, liberally construed, 495. ARTIFICIAL CONSTRUCTION, defined, 9. ASSESSMENT OF TAXES, statutory provisions as to, wjien mandatory, when directory,' 566. ASSOCIATED WORDS, in statutes, explain each other, 194. context to be studied, 242. ATTACHMENT LAWS, construed strictly, 484. ATTORNEY GENERAL, opinions of, as an aid in statutory construction, 284. AUDIT OF CLAIMS, " laws providing for, are mandatory, 563, AUTHENTIC INTERPRETATION, defined, 6. interpretation clauses, 269-274. legislative exposition of statute, 306. declaratory statutes, 610. B BANKRUPTCY LAWS, construction of, strict or liberal, 479. BETTING, penal statutes against, construed strictly, 465. BI-LIN6UAL TEXTS, comparison of, for purpose of construction, 244. in case of conflict, English prevails, 244. BILL OF RIGHTS, construction of, with refei'ence to constitution, 24. BOUNTIES, grants of, to be liberally construed, 506. INDEX 681 [The figures refer to pages]' BRITISH STATUTES, adopted here, how construed, 605. see, also, English Statutes. BURNT RECORD ACTS, to be liberally construed, 492. c CAPTIONS, to articles of constitution, effect of, on construction, 34. of chapters and sections of statute, as aids to Interpretation, 258. CASUS OMISSUS, in statutes, not supplied by construction, 80. CHANGE OF VENUE, laws authorizing, liberally construed, 494. CHAPTER HEADINGS, in statute, effect of, on construction, 258. CHARTERS, of corporations, construed strictly, 504. CIVIL DAMAGE LAWS, have no exterritorial effect, 109. not construed retrospectively, 401. to be construed" strictly, 469. -u CLAIMS, ' public, law providing for audit and payment of, construed as mandatory, 563. ' CLERICAL ERRORS, '' in statute, corrected by courts, 157-161. in code, corrected by refeteince to original statute, 590. CODES, general rules for construction of, 586-596. code construed as a whole, 587. harmonizing conflicting sections, 589. where parts are irreconcilable, 589. reference to original statutes, when permissible, 590. effect of change of language, 594. correction of mistakes by reference to original acts, 592. adoption of previous judicial construction, 596. COMMERCIAL TERMS, in statutes, construction of, 187. """"TSatare, reports of, not evidence of meaning of statute, 311. 682 INDEX ^The figures refer to pages] COMMON LAW, how far to be considered ill construing constitutions, 25. presumption against implied repeal of, 351. generally in force in the United States, 357. construction of statutes with reference to, 360. statutes aflSrming common law, 862. statutes supplementing common law, 363. statutes superseding common law, 365. statutes in derogation of fcommon law, 367. statutes declaratory of, 610. COMMON RIGHT, statutes in derogation of, strictly construed, 476. authorizing exercise of eminent domain, 480. police regulations, 482. "COMMUNIS EORROR PACIT JUS," meaning and application of the maxim, 296. COMPARATIVE INTERPRETATION, definition and application of, 317. COMPILED DAWS, definition and nature of, 590. rules for construction of , 586-596. CONFISCATION ACTS, construed strictly, 466. CONFLICT OF LAWS, exterritoriality of statutes not presumed, 107. statutes in pari materia to be harmonized, 345. . common law yields to statute, 365. CONFLICTING CLAUSES AND PROVISIONS, reconciliation of, by construction, 322. special rules for construction of, 325. later provision annulling earlier, 326. conflicting general and special provisions, 328. COTN^JUNCTIVE PARTICLE, when read as disjunctive, 228. not in penal statutes, 446. CONSEQUENCES OF STATUTE, when proper to fce considered in aid of construction, 100. CONSTITUTIONAL CONVENTION, debates of, when may be considered in construing constitution, 39. CONSTITUTIONAL LAW, statutes presumed to be valid and constitutional, 110. effect of partial unconstltutiondltty, 115. subject of act to be expressed in title, 250. constitutionality of retrospective; laws, 382. INDEX 683 [Tbe figures refer to pages] CONSTITUTIONAL LAW— Cont'd. rule as to amendment of statute by reference to title, 582. validity of declaratory statutes, 611. CONSTITUTIONS, rules for construction of, 17-44. general method of interpretation, 17. intent to be sought, 20. uniformity to be secured, 22. effect to be given to whole, 23. common law and previous legislation to be considered, 26. retrospective operation to be avoided, 26. mandatory and directory provisions, 27. implications, 29. grants of powers, 30. words, popular and technical sense of, 33. preamble and titles, 34. Injustice and inconvenience to be avoided, 35. extraneous aids, when resorted to, 37. contemporary and practical construction, 40. provisions copied from other constitutions, 42. effect of schedule, 43. application of rule of stare decisis, 44. provisions of, not in pari materia with statutory provisions, 344. CONSTRUCTION, defined, 1. distinguished from interpretation, 2. close, 8. comprehensive, 8. transcendent, 8. extravagant, 8. strict, 8. liberal, 9. prospective and retrospective, 9. . artificial, forced, or strained, 9. rules of, not mandatory, 9. the object of, 11. the duty and office of the judiciary, 12. of constitutions, general principles of, 17-44. contemporary and practical, 40. of statutes, general principles of, 45-99. equitable, 57. grammatical, 148-150. presumptions in aid of, 100-140. of words and phrases, 141-240. intrinsic aids in, 242-274. extrinsic aids in, 275-316. of statutes, with reference to common law, 357-379- 684 index: ITbe figures refer to pages] CONSTRUCTION— Cont'd. of statutes, retrospective, 380. of provisos, exceptions, and saving clauses, 427-443. strict and liberal, 444r-524. of statutes, as mandatory or directory, 525-573. of amendatory statutes, 574-585, of codes and revised statutes, 586-^^96. declaratory statutes, 610. rule of stare decisis applied to, 616. settled judicial construction to be followed, 616. effect of reversing construction, 618. federal courts following state decisions, 620. construction of statutes of other states, 623. CONTEMPORARY CONSTRUCTION, of constitution, effect and influence of, 40. of statute, effect and weight of, 289. CONTEMPT OF COURT, laws authorizing punishment for, strictly construed, 467. CONTEXT, :: ,. to be studied in case of doubt, 242. what is, 242. meaning of particular words or provisions explained by, 242. CONTRACT, illegality of, implied from statutory prohibition, 87. legislative, presumed not to be irrepeaiable, 136. laws impairing obligation of, Invalid, 383. by legislative grant, how construed, 499. COPYRIGHT, grants of, are not monopolies, 508. to be construed liberally, 509. CORPORATIONS, creation of, by implication, 89. when included in term "persons," 199. statutes imposing liability on stockholders in, strictly construed, 471. delegation of power of eminent domain to, 481. grants of charters and franchises to, construed strictly, 504. municipal, see Municipal Corporations. COSTS, statutes giving, how construed, 468. COURTS, construction of laws belongs to, 12. jurisdiction of, construction of statutes relating to, 138. take Judicial notice of facts helping to explain ambiguous stat- ute, 284. INDEX ;685 [The flsurea refer to pages] COURTS— Cont'd. ^ statutes relating to powers and duties of, when mandatory, . when directory, 553. , , > CRIMES, statutory, when evil intent essential to, 71-75. law of, has no exterritorial effect, 107. ' retrospective laws affecting, invalid, 382. not created by construction, 452. CRIMINAL STATUTES, application of "ejusdem generis rule" to, 213. retrospective and ex post facto laws, 382. strict, construction of, 451. CRIMINALITY, under statutes, when criminal intent essential to, 71-75. CURATIVE ACTS, retrospective operation of, 418. liberally construed, 491, 492. CUSTOM, see Usage. CUSTOMS DUTIES, see Tariff Act D DAMAGES, double and treble, statutes allowing, strictly construed^ 470. "DAY," in statutes, meaning of, 234, 239. DEATH BY WRONGFUL ACT, statutes giving action for, have no exterritorial effect, 109. not construed retrospectively, 401. to be liberally construed, 490. DEBATES, of constitutional convention, when may be considered in aid of interpretation, 39. of legislature, no evidence of meaning of statute, 312. DECLARATORY STATUTES, definition of, 610. nature and office of, 610. constitutional validity of, 611. not retrospective, 611. construction of, 614. DEFINITIONS, comparative interpretation, 317. construction, 1. 086 INDEX [The figures refer to pages] DEFINITIONS— Cont'd, context, 242. declaratory statutes, 610. directory provisions In statutes, 525. equitable construction, 57. exception, 427. interpretation, 1. interpretation clause, 269. liberal construction, 444. mandatory provisions in statutes, 525. penal statutes, 451. proviso, 427. remedial statutes, 487. retrospective law, 380. saving clause, 427. strict construction, 444. usage, as an aid in statutory construction, 289. DICTIONARIES, may be consulted in explanation of terms used In statute, 278. not of controlling authority, 279. DIRECTORY PROVISIONS, see Mandatory and Directory. DISABILITIES, laws imposing, not construed retrospectively, 401. DISJUNCTIVE PARTICLE, when read as- conjunctive, 228. not in penal statutes, 446. DOCUMENTS, public, may be consulted in explanation of statute, 279. DOUBLE DAMAGES, statutes allowing, strictly construed, 470. E EFFECTS OF STATUTE, when proper to be considered in aid of construction, 100. "EJUSDEM GENERIS" RULE, meaning and application of, 203. ELECTIONS, public, laws relating to conduct of, when directory, 571. EMINENT DOMAIN, laws authorizing exercise of, strictly construed, 480. delegation of, to corporations, 481. EMPLOYER'S LIABILITY LAWS, retrospective construction of, 402. INDEX 687 . [The figures refer to pagesj ENACTING CLAUSE, to be studied as a whole, 317. explained but not controlled by title of act, 244. by preamble to act, 253. by pvinctuatlon, 263. effect of interpretation clause on, 269. effect of provisos and saving clauses on, 427. repugnant proviso or saving clause, 439. ENGLISH STATUTES, adopted here, how construed, 605. titles of, as aids to interpretation, 245. preambles to, when considered in construction, 253. marginal notes in, 262. punctuation of, 263. Interpretation clauses in, 270. construction of, by English courts, when binding here, 605. EQUITABLE CONSTRUCTION, history and nature of, 57-65. now rejected by the courts, 62. of remedial statutes, 487. EQUITY OF THE STATUTE, meaning of the phrase, 61. ERRORS, clerical, in statute, corrected by the courts, 157-161. in statute, producing absurdity, correction of, 129.. not corrected in penal statutes, 455. in code, corrected by reference to original statutes, 590. ESTRAY LAWS. to be construed strictly, 478. EVIDENCE, of meaning and intent of act, intrinsic, 242-274. extrinsic, 275-316. laws relating to, may retroact, 411. EVIL INTENT, when an essential element of statutory crimes, 71-75. EX POST FACTO LAWS, nature of, 382. EXCEPTIONS, in statutes, construction of, 427. nature and office of, 428. position and language of, -428. distinguished from provisos, 429. functions of,. 429. enlarging purview by Implication, 438. to statute of limitations, not implied by courts, 524. 688 ' INDEX [The figures refer to pages] EXECUTIVE OFFICERS, practical construction of statute by, 300. see, also, Officers. EXEMPLARY DAMAGES, statutes a;Uowing, construed strictly, 470. EXEMPTION, from taxation, presumption against grant of, 137, 510. construed strictly, 492, 510. EXEMPTION LAWS, liberal construction of, 492. EXPOSITORY STATUTES, definition of, 610. nature and office of, 610. constitutional validity of, 611. not retrospective, 611. construction of, 614. "EXPRESSIO UNIUS," rule of, meaning and application of, 219, EXPURGATORY OATH, statutes imposing, to be construed strictly, 477. EXTERRITORIAL OPERATION, of statute, not presumed to be intended, 107. EXTRINSIC AIDS, when resorted to in construction of constitutions, 37. what kinds admissible, 37-40. in statutory construction, 275-316. admissibility of, 275. nature and kinds of, admissible, 275-284. contemporary history, 285. contemporary construction and usage, 289. judicial construction, 298. executive construction, 300. legislative construction, 306. journals Qf legislature, 308. reports of committees, 311. opinions of legislators not admissible, 312. no inquiry into motives of legislature, 315. F FEDERAL COURTS, follow state decisions as to construction of statutes, 620. FEMALES,, , when Included lii words of masculine gender, 232. INDEX ggg [The figures refer to pages] FOREIGN LAWS, how proved and how construed, 15. construction of clauses copied from foreign constitutions, 42 FORFEITURES, laws imposing, not construed retrospectively. 401. accrued, effect of repealing statute on, 421. are penal, 463. to be construed strictly, 466, 473 usury laws, 469. revenue and tax proceedings, 518. FORMS OP PROCEDURE. laws simplifying, liberally construed, 494 FRANCHISI S, grants of, to corporations, construed strictly, 504. exclusive, see Monopoly. FRAUDULENT CONVEYANCES, statutes against, construed liberally, 497. FRAUDS, statutes against, construed liberally, 496, G GENDER, masculine, may include females, 232. GENERAL ACTS, implied repeal of special inconsistent acts by, 355. GENERAL STATUTES, see Revisions of Statutes. GENERAL TERMS, in statutes, to be construed generally, 196. associated with specific terms, 201. following special terms, how construed, 203. "ejusdem generis" rule, 203. • superior not classed with inferior, 207. GOVERNMENT, not generally bound by statutes unless named, 94. statute of limitations, 95. tax laws, 96. grants by, how construed, 499. laws authorizing suits against, construed strictly, 513. GRAMMAR, rules of, how far binding in statutory construction, 148. bad grammar does not vitiate statute, 150. application of relative q.nd qualifying terms, 223. Black Int.L. — 44 690 INDEX [The figures refer to pages] GRAMMAE^Cont'd. reddendo singula singulis, 226. "and" and "or" read interchangeably, 228. number and gender of words, 232. errors of, not corrected in penal statutes, 446. GRANTS, of power, In constitutions, how construed, 30. statutory, when aided by implications, 89. of jurisdiction, by statute, when implied, 91. by statute, not presumed irrevocable, 136. legislative, how construed, 499. delegations of powers to municipal corporations, 501. grants of power to officers, 503. grants of charters and franchises, 504. grants' of bounties and pensions, 506. grants of monopolies, 507. grants of exemptions, 509. exemption from taxation, 510. right to sue the state, 513. GUILTY MIND, when essential to statutory crimes, 71-75. H HARMONY, ' among different parts of constitution, to be promoted by con- struction, 22-23. among different laws, to be aimed at in construction, 345. presumption against Inconsistency In legislation, 118. against unnecessary change of laws, 349. I against implied repeal of laws, 351. among statutes In pari materia, to be sought, 331. of statutes with common law, 360. of amendatory and amended act, 575. HARDSHIP, considerations of, as affecting construction of statute, 100, 122. HISTORY, ' : '' facts of, as an aid In construction of constitutions, 37, 38. in construction of statutes, 285. U HOMESTEAD EXEMPTION, laws granting, liberally construed, 492. I '^ ILLEGALITY, U, of contract, Implied from statutory prohibition, 87. INDEX 691 [The figures refer to pages] IMPLICATIONS, In constitutional provisions, 29. In statutes, general doctrine of, 84. remedies implied from statute, ^5. illegality of contract Implied from statutory prohibition, 87. statutory grant of powers or privileges, 89. statutory grant of jurisdiction, 91. subsidiary and collateral implications, 92. limitations of doctrine of, 94. repeals by Implication not favored, 351. in penal statutes, 452. offenses not created by, 453. IMPLIED POWERS, doctrine of, in constitutional construction, 29, 30. IMPLIED REPEAL, of statutes, not favored, 351. of common lav»r, by statute superseding It, 365. of enacting clause, by repugnant proviso, 439. IMPOSSIBILITT, legislature presumed not to intend, 119. IMPRISONMENT FOR DEBT, laws authorizing, strictly construed, 473. IN PARI MATERIA, statutes, to be construed together, 331. what statutes are, 334. private acts in pari materia, 342. constitutional and statutory provisions, 344. INCONSISTENCY, in acts of legislature, presumption against, 118. between proviso and purview of act, 439. INCONVENIENCE, considerations of, as affecting construction of constitution, 35. statutes to be so construed as to avoid, 126. INEFFECTIVENESS^ in statutes, presumption against, 132. INJUSTICE, considerations of, as affecting construction of constitution, 35. statutes to be so construed as to avoid, 122. of retrospective laws, 386. INSOLVENCY LAWS, construction of, strict or liberal, 479. INTENTION OF LEGISLATURE, the primary basis of interpretation, 45. to be sought first in language of statute, 45. 692 INDEX [The figures refer to pages] INTENTION OF LEGISLATURE— Ck)nt'd. presumptions in regard to, 100-140. to be gathered from statute as a whole, 317. effect of title as showing, 244. how far shown by preamble, 253. shown by use of same language or change of language, 145. journals of legislature may show, 3Q8. not proved by opinions of individual members, 312. as to retrospective character of act, 385, 392. I not to be defeated by too strict construction, 447. INTERNAL REVENUE ACTS, construction of, strict or liberal, 520. ' INTERNATIONAL LAW, statutes presumed to be in harmony with, 106. INTERPRETATION, defined, 1. distinguished from construction, 2. methods of, 5, 6. legal, 6. doctrinal, 6. authentic, 6. usual, 6. grammatical, 6. logical, 6. extensive, 6. restrictive, 6. close, 7. jj literal, 7. liberal, 7. extravagant, 7. * free, 8. limited, 8. K predestined, 8. artful, S. I strict, 8. . prospective and retrospective, 9. rules of, not mandatory, 9. the object of, 11. K the duty and office of the judiciary, 12. of constitutions, general principles of, 17-44. contemporary and practical, 40. of statutes, general principles of, 45-99. jj. presumptions in aid of, 100-140. of words and phrases, 141-240. extrinsic evidence in aid of, 275-316. of statutes, with reference to common law, 357-379. of statutes, retrospective, 380. INDEX 693 [The figures refer to pages] TNTERPHBTATION— Cont'd. of provisos, exceptions, and saving clauses, 427-443. strict and libn.ral, 444-524. of statutes, as mandatory or directory, 525-573. of amendatory acts, 574-585. of codes and revised statutes, 586-596. declaratory statutes, 6i6. rule of stare decisis as applied to, 616. INTERPRETATION CLAUSE, In statute, what Is, 269. effect of, on construction, 269-274. INTRINSIC AIDS IN STATUTORY CONSTRUCTION, statute to be construed as a whole, 322. context, 242. title 6t act, 244. effect of title under constitutional provisions, 250. preamble to statute, 253. chapter and section headings, 258. marginal notes, 262. punctuation, 263. use of same language and change of language, 145. interpretation clause, 269. IRREPEALABLE LAWS, presumption that legislature does not intend to make, 136. J JOINT RESOLUTION, of legislature, title as an aid in construction of, 252. JOURNALS OF LEGISLATURE, may be consulted in explanation of meaning of act, 308. JUDGES, statutes relating to powers and duties of, when mandatory, when directory, 553. JUDICIAL NOTICE, of facts helping to explain ambiguous statute, 284. JUDICIARY, construction of laws belongs to, 12. laws regulating powers and duties of, when mandatory, when directory, 553. JURISDICTION, creation or ouster of, by implication, 91. presumption as to, 138. retrospective construction of laws relating to, 413. summary, laws conferring, strictly construed, 484. in actions against state, 514. G94 INDEX [The figures refer to pages] JURY, office of, In aiding In construction of statutes, 12, 13. L LANDLORD'S WARRANT, laws authorizing sale on, construed strictly, 486. LANGUAGE OF STATUTE, the primary basis of interpretation, 45, 48. when taken literally, 51. construed with reference to spirit and reason of law, 66. and scope and purpose of act, 76. presumed grammatically correct, 148. inapt or inaccurate, effect of, 151. devoid of meaning, makes statute inoperative, 154. correction of clerical errors in, 157. rejection of surplusage, 165. interpolation of words In, 167. construction of words and phrases, 141-240. to be construed with reference to subject-matter, 171. in adopted and re-enacted statutes, 597. to be read as a whole, 317. context to be studied, 242. repetition of same language, effect of, . 145. change of language, effect of, 145. when construed as retrospective, 385. when mandatory, when directory, 525-573. LAW OF NATIONS, see International Law. LEGAL TEXT-BOOKS, may be consulted in aid of interpretation of statute, 283. LEGISLATIVE JOURNALS, may be consulted in explanation of meaning of act, 308. LEGISLATURE, discovery of will of, the object of all interpretation, 11. intention of, to be sought and applied, 45. presumptions as to intention of, 100-140. presumed to keep within limits of its power, 105. presumed to be consistent, 118. to intend justice and reason, 119-135.- not to make irrepealable laws, 136. not to change laws unnecessarily, 349. construction of statutes by, effect of, 306. journals of, as explaining meaning of statute, 308. opinions of members of, no evidence of meaning of statute, 312 motives of, not inquired into by courts, 315. INDEX 695 [The figures refer to pages] LEGITIMATION, statutes of,, liberally construed, 491. LIBERAL CONSTRUCTION, defined, 9, 444. of constitutional provisions, 17. in general, 444. nature and principle of, 445, 446. not to defeat legislative intent, 447. combined with other rules, 449. remedial statutes, 487. statutes regulating procedure, 494. statutes against frauds, 496. revenue and tax laws, 515. statutes of limitation, 523. of codes and revised statutes, 586. LIBERTY, statutes in derogation of, strictly construed, 464, 476. LICEINSES, laws authorizing grant of, whether mandatory or directory, 564. LIMITATION OF ACTIONS, see Statute of Limitations. LITERAL INTERPRETATION, of statutes, when called for, 51. M MALICE, when essential to statutory crimes, 71-75. MANDATORY AND DIRECTORY, constitutional provisions generally mandatory, 27. statutory directions and provisions, 525-573. definition and meaning of terms, 525. permissive and mandatory terms, 529. laws partly mandatory, partly directory, 527. object of construing statutes as directory, 528. authority of courts and its proper limitations, 533. caution in exercise of power, 533. means of determining character of provision, 534. meaning of "may," "shall," "must," etc., 529, 535. use of negative terms, 536. permissive words construed as mandatory, 540. Imperative terms construed as directory, 543. laws regulating time of official action, 545. laws regulating forms of official action, 549. 696 INDBX [The figures refer to pages] MANDATORY AND DIRECTORY— Cont'd. laws relating to judicial duties and proceedings, 553. statutory directions to courts, 554. matters Involving exercise of judicial discretion, 554. statutes granting substantive rights to litigants, 555. acts regulating plead.ing and practice, 558. laws authorizing taxation, 562. audit and payment of public debt, 563. grant of licenses, 564. laws regulating tax proceedings, 566. laws regulating elections, 571. MARGINAL NOTES, not a part of the statute, 262. effect of, in construction, 262. MARRIED WOMEN'S ACTS, construction of, 350. as a departure from common law, 377. when construed as retrospective, 396. MASCULINE GENDER, words of, may include females, 232. "MAY," when equivalent to "shall" or "must," 529, 535. when construed as mandatory, 540- MEANING OF LEGISLATURE, the primary basis of interpretation, 45. presumptions in regard to, 100-140. as dependent on subject-matter, 171. to be gathered from statute as a whole, 317. context to be studied, 242. how far shown by title of act, 244. by preamble, 253. as affected by change of language, 145. extrinsic aids to ascertainment of, 275-316. MECHANICS' LIEN LAWS, construction of, 378. MISDESCRIPTIONS, in statutes, do not vitiate, 162. in amendatory act, of act to be amended, when Immaterial, 582 MISNOMERS, in statutes, effect of, 162. MISPRINTS, In statutes, corrected by courts, 157. effect of false punctuation, 263. INDEX 697; [The figures refer to pages] MONOPOLY, presumption against intention to grant, 137, 507. grant of, construed strictly, 507. patents and copyrjgbts are not, 508. "MONTH," in statutes, means calendar month, 234, 237. MORALITY, statutes presumed to accord with, 134. MOTIVES, of legislature, not inquired Into by courts, 315. MUNICIPAL CORPORATIONS, bound by statutes of limitation, 99. limitations of powers of, 501. delegation of governmental powers to, 502. power of taxation, 502. "MUST," construction of term as mandatory or directory, 529, 535. N NEGATIVE TERMS, generally make statute mandatory, 536. "NOSCITUR A SOCIIS," application of the maxim in statutory construction, 194. OFFICERS, practical construction of statute by, effect of, 300. statutory grants of powers to, how construed, 503. statutes prescribing official action, when mandatory, when di- rectory, 529. terms of permission , when imperative, 540. laws regulating time of official action, 545. oath and bond of officers, 546. designation of time, when imperative, 548. laws regulating forms of official action, 549. statutes regulating tax proceedings, 566. laws relating to conduct of elections, 571. OPINIONS, of law officers of government, as an aid in statutory construc- tion, 284. of members of legislature, not evidence of meaning of statute, 312. "OR," when read as equivalent to "and," 228. not in penal statutes, 446. 698 INDBX [The figures refer to pages] "OTHER PERSONS," meaning of term as used in statutes, 209. "OTHER PROPERTY," meaning of term as used In statutes, 211. PARI MATERIA, see In Pari Materia. PARTIES TO ACTIONS, laws regulating, may retroact, 411. suits against state, laws authorizing, 513. PATENTS FOR INVENTIONS, not regarded as monopolies, 50S. to be liberally construed, 509. PAYMENT, of public debts, laws authorizing are mandatory, 563. PENAL LAWS, have no exterritorial effect, 107. application of "ejusdem generis" rule to, 213. in derogation of common law, strictly construed, 367. not construed retrospectively, 385. construction of, in general, 451. to be construed strictly, 451. but not so as to defeat legislative intent, 456. what are penal statutes, 463. examples of penal laws and their construction, 464. statutes giving costs, 468. usury laws, 469. civil damage laws, 469. statutes giving double damages, 470. laws imposing liability on stockholders, 471. statutes both penal and remedial, 471. strict construction of, abolished by statute, 475. tax laws considered as, 515. PENALTIES, accrued, effect of repealing statute on, 421. not created by construction, 452. see, also. Penal Laws. PENDING SUITS, affected by retroactive laws regulating procedure, 413. by repealing acts, 421. PENSIONS, grants of, to be liberally cojistrued, 506. INDEX 699 [Tbe figures refer to pages] PERMISSIVE WORDS, when read as mandatory, 529. when impose positive duty, 540. , "PERSON," when includes "corporation," 199. PLEADING, retrospective alteration of rules of, 411. laws regulating, when mandatory, when directory, 658. PLURAL, may include singular, in statutes, 232. POLICE REGULATIONS, rules for construction of, 482. POLITICAL WRITINGS, may be consulted in explanation of terms used in statutes, 282. POPULAR TERMS, in constitutions, construction of, 33. in statutes, taken in popular sense, 175. PRACTICAL CONSTRUCTION, of constitution, weight and influence of, 40. of statute, how far conclusive, 300. PRACTICE, laws regulating, may be retrospective, 408. laws regulating, when mandatory, when directory, 558. see, also. Procedure. PREAMBLE, to constitution, effect of, in construction, ^4. to statute, effect of, as an aid in construction, 253-258. may be consulted in case of doubt, 253. cannot control enacting part, 254. conflict between preamble and purview, 255. may explain motive and meaning of statute, 256. effect of, when referred to in enacting clause, 254. defective or repugnant, effect of, 255. how far a part of the statute, 254. recitals in, not conclusive, 257. PRESUMPTIONS, in aid of statutory construction, 100-140. that statute is valid, just, and sensible, 103. when rebuttable, 103. against intent to exceed limits of legislative power, 105. that violation of international law not intended, 106. against exterritorial operation of statutes, 107. that statute is not unconstitutional, 110. effect of partial unconstitutionality, 115. against Inconsistency, 118. 700 INDEX [The figures refer to pages] PRESUMPTIONS— Cont'd. against impossible requirements, 119. against unjust consequences, 122. against public inconvenience, 126. ^ against absurdity, 129; against Ineffectiveness in legislation, 132. as to public policy and morality, 134. against irrepealable laws, 136. against unnecessary change of laws, 349. against implied repeal of laws, 351. as between general and special acts, 355. that government not bound by statutes, 94. as to municipal corporations, 99. as to creating or ousting jurisdiction, 138. against intention to repeal common law, 360. against retrospective character of statute, 385. PRIVATE ACTS, not in pari materia with- public statutes, 342. PRIVILEGES, grant of, in statute, by implication, 89. presumed not to be Irrevocable, 136. acquired by legislative grant, how construed, 499. PROCEDURE, laws regulating, may be retrospective, 408. pending actions and suits affected, 413, 417. laws creating new remedies, 410. statutes as to parties to actions, 411. acts relating to evidence, 411. not to impair vested rights, 414. effect on pending appeals, 417. summary, laws authorizing, strictly construed, 484. laws simplifying, liberally construed, 494. In actions against state, 514. official, laws regulating, generally directory, 545, 549. judicial, statutes regulating, when mandatory, when directory, 558. PROCESS, laws authorizing constructive service of, strictly construed, 486. PROSPECTIVE, constitutional provisions to be construed as, 26. statutes generally construed as, 385. declaratory acts construed as, 611. PROVISO, to statute, construction of, 427 et seq. nature of, 427. position and language of, 428. INDEX 701 [The'Bgures refer to pages] PROVISO— Cont'd. functions of, 430. abrogated by repeal of statute, 428. . generally limited to matter impiedlately preceding, 432. exceptions to this rule, 433. construed strictly, 434. repugnant to purview of act, effect of, 439.. repugnancy avoided by construction, 442. PUBLIC DOCUMEl^^TS, . . may be consulted In explanation of statute, 279. PUBLIC OFFICERS, see Officers. PUBLIC POLICY, statutes presumed to accord with, 134. PUNCTUATION, of statute, effect of, on construction, 263-274. not a part of the statute, 263. cannot affect or control obvious meaning of act, 264. defective or false, corrected by court, 265. may determine meaning of sentence, 266. when a guide to legislative meaning, 267. may absolutely determine construction, 268. PURPOSE OF ACT, to be considered In fixing its construction, 76. presumptions as to, 100-140. PURVIEW OF ACT, to be studied as a whole, 317. explained' but not controlled by title, 244. by preamble to act, 253. by punctuation, 26S. effect of interpretation clause on, 269. effect of provisos and saving clauses on, 427-^3. effect of repugnant proviso, 439. effect of repugnant saving clause, 439. Q QUALIFYING TERMS, application of, in statutory construction, 223. R REASON OF THE LAW, statutory construction to be in harmony with, 66-75. RECORDING ACTS, to be liberally construed, 492. 702 INDEX [Tbe figures refer to pafai] BJJDDENDO SINGULA SINGULIS, meaning and application of rule, 226. REDEMPTION, from tax sale, laws allowing, liberally construed, 519. REIATIVE TERMS, application of, In atatutory construction, 223. RELIGION, ' statutes presumed not to derogate from, or conflict with, 134. REMEDIAL STATUTES, construction of, to be liberal, 487. what are, 488. examples of, and their construction, 489. statutes against frauds, 496. statutes of limitation, 523. declaratory acts, 610. REMEDIES, deduced from statute by implication, 85. common-law and statutory, when cumulative, 363. retrospective statutes affecting, 403. laws creating new, may retroact, 410. construction of laws relating to, see Remedial Statutes. REPEAL, presumption against Irrepealable laws, 136. against unnecessary change of laws, 349. by implication, not favored, 351. as between general and special acts, 355. of common law, by inconsistent general statute, 365. retrospective construction of repealing acts, 421. of enacting clause, by repugnaiit proviso, 439. of statute, abrogates proviso thereto, 428. by amendment of statute, 576-578. REPORTS, of legislative committees, not evidence of meaning of statute, 311. REPUGNANCY, between statutes, when operates as repeal, 351. avoided by studying statute as a whole, 317. by consideration of context, 242. between statutes in pari materia, to be avoided, 331. between statute and common law, 357-379. between purview of act and proviso or saving clause, 430. avoided by construction if possible, 442. between different sections of code, which governs, 589. INDEX 703 [The figures refer to pages] RETROSPECTIVE, oonstmction of constitutional provisions not to be, 26, interpretation of statutes, 380-426. definition of retrospective acts, 380. constitutional objections to, 382. unconstitutionality to be avoided by construction, 384. general rule against retrospective interpretation, 385. reasons for the rule, 386. statutes explicitly retroactive strictly construed, 391. legislative intention not to be defeated, 392. retrospective acts, when construed as prospective also, 393. statutes impairing vested rights, 395. laws imposing penalties and new liabilities, 401. remedial statutes, 403. statutes regulating procedure, 408. curative statutes, 418. repealing acts, 421. declaratory acts not generally retrospective, 611. REVENUE liAV^S, have no exterritorial effect, 107. commercial and trade terms in, how construed, 187. construction of, strict or liberal, 515. United States Internal revenue laws, 520. tariff acts, 520. provisions of, when mandatory, when directory, 566. REVISED STATUTES, of United States, construction of, 586. see, also. Revisions of Statutes. REVISIONS OF STATUTES, general rules for construction of, 586-596. liberal construction, 586. to be construed as a whole, 587. harmonizing conflicting sections, 589. where conflict is Irreconcilable, 589. reference to original statutes, when permissible, 590. to clear up ambiguities, 592. ^ to correct mistakes, 592. effect of changing language of original acts, 594. adoption of previous judicial construction, 596. BIGHT OF ACTION, accrued, effect of repealing statute on, 421. RIGHTS, public, not treated as surrendered by Implication, idT. vested, impairment of, by retroactive laws, 395. common, statutes In derogation of, strictly construed, 476. acquired by legislative grant, how construed, 499- 704 INDEX [The figures refer to pages] ROMAN LAW, regards Interpretation as a legislative function, 6. EULES OF CONSTRUCTION, not mandatory, 9. for statutes, in general, 45-99. presumptions in aid of construction, 100-140. words and phrases in statutes, 141-240. statutes in pari materia to be compared, 331-345. statutes construed with reference to common law, 357-379. retrospective interpretation, 380. strict and liberal construction, 444-524. mandatory and directory provisions, 525-573. amendatory and amended acts, 574-585. for codes and revisions, 586-596. s "SAID," construction of, by reference to proper antecedent, 224. SAVING CLAUSE. in statute, construction of, 427. nature and office of, 427, 429. position and language of, 429. function and use of, 429. enlarging purview by implication, 438. repugnant to purview of act, is void, 439. repugnancy avoided by construction, 442. SCHEDULE, to constitution, construction and effect of, 43., SCIENTIFIC BOOKS, may be consulted in explanation of terms used in statute, 282. SCOPE OF ACT, 1 to be considered in fixing its construction, 76. language construed with reference to, 171. SECTION HEADINGS, in statute, efiEect of, on construction, 258. "SHALL," when construed as permissive or directory, 529, 535. SOVEREIGN POWERS, not surrendered by implication, 137. legislative delegation of, 499. SPECIAL ACTS, Impliedly repealed by inconsistent general acts, 355. INDEX 705 ■ [The figures refer to pages] SPECIAL TERMS, , ^ in statutes, construction of, 196. associated with general terms, 201. expanded by construction, 203. followed by general terms, 203-218. SPENDTHRIFTS, laws disabling, strictly construed, 477. SPIRIT OF THE LAW, to be considered in statutory construction, 66-75. STATE, irrevocable grants by; not presumed, 136. not bound by statutes unless named, 94. statutes of limitation, 95. tax laws, 96. statute adopted from another, how construed, 597. grants by, how construed, 499. laws authorizing suits against, construed strictly, 513. statutes of, how construed. In another state, 623. STATE PAPERS, may be consulted in explanation of statute, 279. STATUTE OF LIMITATIONS, government not bound by, unless named, 95. binds municipal corporations, 99. not construed retrospectively, 400. construction of, in general, 528. exceptions to, not implied' by courts, 524. STATUTES, pules for construction of, not mandatory, 9. must be construed by the courts, 12. construction of, general rules and principles of, 45-99. intention of legislature to be sought, 45. literal interpretation, 51. rule in case of ambiguity, 55. equitable construction, 57. spirit and reason of the law to be considered, 66. scope and purpose of act, 76. casus omissus, 80. implications In statutes, 84. doctrine of Implications, 84. remedies implied from statute, 85. illegality of contract implied from statutory prphibi- tion, 87. statutory grant of powers or privileges, 89. statutory grant of jurisdiction, 91. '• subsidiary and collateral Implications, 92. limitations of doctrine of implications, 94. Black Int.L.^5 706 INDEX [The flgures refer to pages] STATUTES— Cont'd. when government Is bound by statutes, 94. grammatical interpretation, 148. effect of inapt and inaccurate language, 151. where statute is devoid of meaning, 154. correction of clerical errors and misprints, 157. effect of misdescription and misnomer, 162. rejection of surplusage, 165. Interpolation of words, 167. construction of, aided by presumptions, 100-140. Implied repeal of, not favored, 351. words and phrases In, how construed, 141-240. adopted and re-enacted, how construed, 597-609. computation of time in, 234-240. Intrinsic aids in construction of, 242-274. statute to be construed as a whole, 317. context, 242. title of act, 244. preamble to statute, 253. chapter and section headings, 258. marginal notes, 262. punctuation, 263. use of same language and change of language, 145. Interpretation clause, 269. extrinsic aids in construction of, 275-316. statutes in pari materia to be compared, 331-345. giving effect to entire statute, 322. construction of conflicting clauses and provisions, 325. construction to avoid conflict with acts of congress, 348. presumption against unnecessary change, of, 349. presumption against implied repeal, 351. construed with reference to common law, 357-379. afflrming common law, 362. supplementing common law, 363. superseding common law, 365. in derogation of common law, 367. retrospective and prospective, 380. provisos, exceptions, and saving clauses in, 427-443. strict and liberal construction of, 444-524. mandatory and directory, 525-573. amendatory and amended, 574r-585. codifications and revisions of, how construed, 586-596. declaratory or expository, 610. , rule of stare decisis applied to construction of, 616. of states, how construed in the federal courts, 620. of other states, how construed, 623. STATUTORY CRIMES, when criminal intent essential to, 71-75. INDEX 707 [The figures refer to pages] STOCKHOLDERS, construction of laws imposing liability on, 471. STRICT CONSTRUCTION, defined, 8, 444. of retrospective statutes, 391. of provisos and saving clauses, 434. in general, 444. nature- and principles of, 445, 446. not to defeat legislative intent, 447. combined with other rules, 449. penal statutes, 451. statutes against common right, 476. statutes authorizing summary proceedings, 484. legislative grants, 499. laws authorizing suits against state, 513. revenue and tax laws, 515. SUBJECT-MATTER, of statute, language to be construed with reference to, 171. "SUCH," construction of, by reference to proper antecedent, 224. SUITS. pending, affected by laws regulating procedure, 413. cases pending on appeal, 417. affected by repealing acts, 421. against the state, laws authorizing, 513. SUMMARY PROCEEDINGS, laws authorizing, strictly construed, 484. SURPLUSAGE, in statutes, may be rejected, 165. T TARIFF ACT, construction of commercial terms in, 187. construction of, strict or liberal, 520. TAX SALES, statutory provisions as to, generally mandatory, 566. TAXATION, exemption from, not presumed, 137. laws imposing, do not generally bind government, 96. delegation of power of, to municipalities, 502. grant of exemption from, strictly construed, 492, 510. construction of tax laws, 515. United States internal revenue and tariff acts, 520. mandatory and directory provisions in tax laws, 566. 708 INDEX [The figures refer to pages] TECHNICAL. TERMS, in constitutions, construction of, 33. In statutes, construction of, 175. technical legal terms, 182. commercial and trade terms, 187. TERMS OP ART, in statute, how construed, 175, 178. technical legal terms, 182. words judicially defined, 186. commercial and trade terms, 187. TEXT-BOOKS, see Treatises. TIME, computation of, in statute, 234-240. statutory provisions as to, when mandatory, 545. TITLE, of division of constitution, effect ofj in construction, 34. of statute, effect of, as an aid in construction, 244-252. not a part of the statute, 245. may be consulted in case of doubt, 246. cannot control clear language of act, 247. nor extend' or abridge its provisions, 247. degree of weight to be attached to, 248. effect of, under constitutional provisions, 250. of joint resolution, consulted in construction, 252. TRADE TERMS, in statutes, construction of, 187. TREATISES, scientific, may be consulted in explanation of terms used In stat- utes, 282. legal, may aid in statutory construction, 283. TREBLE DAMAGES, statutes allowing, strictly construed, 470. u UNCONSTITUTIONALITY, avoided by construction if possible, 110. partial, effect of, 115. of retrospective laws, 382. UNIFORMITY, in construction of constitutions, 22. In the laws, presumptions as to, 118, 349. INDEX 709 [The Sgurea refer to pages] UNITED STATES, not generally bound by statutes unless named, 94. statutes of limitation, 95. tax laws, 96. internal revenue and tariff laws, how construed, 520. acts of congress, see Statutes. USAGE, as evidence of meaning of statute, 291. nature and duration of, 292. existence of, a question of law, 294. cannot control plain meaning of acts, 295. communis error facit jus, 296. USURY LAWS, how construed, 469. V VESTED RIGHTS, impairment of, by restrospective laws, 395. w "WEEK," meaning of term in statutes, 234, 238. "WHICH," construction of, by reference to proper antecedent, 224. WOMEN, when included in words of masculine gender, 232. , WORDS AND PHRASES, in constitutions, construction of, 33. popular and technical sense of, 83, 34. in statutes, literal Interpretation of, 45, 51, 141. Inapt and Inaccurate, effect of, 151. superfluous, rejection of, 165. interpolation of, 167. general rules for interpretation of, 141-240. to be construed with reference to subject of act, 171. technical and popular meaning of words, 175. technical legal terms, 183. words judicially defined, 186 commercial and trade terms, 187. associated words explaining each other, 194. general and special terms, 196. general terms construed generally, 196. "person" Including corporation, 199. general terms associated with specific terms, 20J. special terms expanded by construction. 203. 710 INDEX [The figures refer to pages] WORDS AND PHRASES— Cont'd. general terms following special terms, 203. superior not classed with inferior, 207. express mention and Implied exclusion, 219. relative and qualifying terms, 223. reddendo singula singulis, 226. conjunctive and disjunctive particles, 228. number and gender of words, 232. permissive and mandatory terms, 529. adopted and re-enacted statutes, 597. statutes from other states, 597. British statutes, 605. re-enacted statutes, 607. construction of "month," "day," etc., 234r-240. WORDS OP ART, in statutes, how construed, 175, 178. technical legal terms, 182. words judicially defined, 186. commercial and trade terms, 187. Y "YEAR," meaning of term In statutes, 234, 235. WEST FUBLlBHINa CO., PBINTEBe, ST. PAUL, UIHK.