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HOW THE SPECIAL MATTER OF A STATUTE INFLUENCES ITS
§ 111a. Doctrine defined.— The doctrine of this chapter is, that the interpretation of a statute is influenced by the special matter comprehended in its terms.
Distinctions. This doctrine is similar to, yet diverse from, various others prominent in these discussions; such as, that all laws are to be interpreted together as modifying one another, and that every writing is to be construed with reference to its subject.?
Illustrations of the doctrine are such as the following:
$ 112. “May” and “shall.”—The words “may” and "shall”— the one permissive and the other imperative, therefore in their primary meanings quite different — are interpreted by the matter of the provision in which they occur; so that practi
may” is almost as often imperative as permissive, and the two admit of being used, to a considerable extent, interchangeably. Still the cases are not numerous in which shall” alone is held to be permissive like “may” in its primary sense, but they do occur. And the phrase " it shall be lawful,” or “ it shall and may be lawful,” is an equivalent for the latter Word, both primarily, and as admitting of either a permissivo
imperative rendering, to accord with the matter of the statute. The rules to determine when the permissive form is
1 Ante, 8 86.
ston v. Pate, 95 N. C. 68; Crawford ? Ante, $ 98a.
v. Greenleaf, 48 Mo. Ap. 590.] Fowler v. Pirkins, 77 IIL 271; 4 R. R. Co. v. Hecht, 95 U. S. 108; Kane v. Footh, 70 III. 587; Steines v. Wheeler v. go, 24 Ill. 105, [76 Franklin, 48 Mo. 167, (8 Am. R. 87;] Am. D. 736.) And see Rex v. FlockEstate of Ballentine, 45 Cal. 696; P. wold Inclosure, 2 Chit. 251; Hudd v. v. Buffalo, 4 Neb. 150; P. v. Otsego, Ravenor, 2 Brod. & B. 662, 665. 51 N. Y. 401; Rockwell v. Clark, 44 5 Castelli v. Groom, 18 Q. B. 490, Conn. 534; S. v. Buffalo, 6 Neb. 454; 495; Cook v. Tower, 1 Taunt. 372, 377; [Pueblo Co. v. Smith, 22 Colo. 534, 45 Rex v. Eye, 1 B. & C. 85, 86; Reg. v. Pac. R. 357, 33 L R. A. 465; Smith v. Oxford, 4 Q. B. D. 245, 525; s. c. in King, 14 Oreg. 10, 12 Pac. R. 8; John- H. of L. nom. Julius v. Oxford, 5 Ap.
to be construed as imperative are not in all particulars made distinct by the decisions; but, in general, whenever a private party or the public claims a right or interest under such a provision, the claim constitutes a sort of election which makes the permissive terms imperative, and they will be held to be so even without the formal claim.' Consequently, for example, a permission to a court is a command, if it relates to the rights of suitors, but otherwise if it concerns something in its nature discretionary. So far the doctrine is plain, and is abundantly
Cas. 214; Rex v. Norfolk, 4 B. & Ad. Ill. 471; Rumsey v. Lake, 55 How. 238; In re Neath, etc. Ry. Co., Law R. Pr. 339; Estate of Walley, 11 Nev. 9 Ch. Ap. 263; Reg. v. Caledonian Ry. 260; S. v. Buffalo, 6 Neb. 454; RockCo., 16 Q. B. 19, 28.
well v. Clark, 44 Conn. 534; St. Louis, 1 Rex v. Tithe Commissioners, 14 etc. R. R. Co. v. Teters, 68 Ill. 144. Q. B. 459, 474; New York v. Furze, 3 [When public interests are Hill (N. Y.), 612; Seiple v. Elizabeth, cerned, or the rights of third per3 Dutcher, 407; Mitchell v. Duncan, sons are involved," may" and "shall" 7 Fla. 13; Schuyler v. Mercer, 4 Gil- are both imperative. Smith v. King, man, 20; Cutler v. Howard, 9 Wis. 14 Oreg. 10, 12 Pac. R. 8; Johnston 2. 389; Blake v. Portsmouth & Concord Pate, 95 N. C. 68. Statutory direcR. R. Co., 39 N. H. 435; Nave v. Nave, tions which are of the essence of the 7 Ind. 122; Bansemer v. Mace, 18 Ind. thing to be done are mandatory. 27, (81 Am. D. 344;] Supervisors v. Jackson Co. v. Dorick, 117 Ala. 348, U. S., 4 Wall. 435; Galena v. Amy, 5 23 S. R. 193. See also U. S. y. Eaton, Wall. 705; P. v. Otsego, 51 N. Y. 401; 169 U. $. 331, 42 L. ed. 767; S. v. P. v. Buffalo, 4 Neb. 150; Phelps v. Laughlin, 73 Mo. 443; S. v. King, 136 Hawley, 52 N. Y. 23; Low v. Dunham, Mo. 309, 36 S. W. R. 681; Kohn v. 61 Me. 566; Phillips v. Fadden, 125 Hinshaw, 17 Oreg. 308, 20 Pac. R. Mass. 198; Steines v. Franklin, 48 Mo. 629; Hayes v. Los Angeles, 99 Cal. 167; S. v. Saline County Court, 48 74, 33 Pac. R. 766. “Is authorized ” Mo. 390, [8 Am. R. 108;] Kane v. Footh, construed as mandatory. P. v. Buf70 III. 587; S. v. Board of State Can- falo, 140 N. Y. 300, 35 N. E. R. 485. See vassers, 36 Wis. 498.
also Swenson v. McLaren, 2 Tex. Civ. 2 Reg. v. Adamson, 1 Q. B. D. 201; Ap. 331, 21 S. W. R. 300; Adams v. Macdougall v. Paterson, 11 C. B. 755; Sleeper, 64 Vt. 544, 24 Atl. R. 990; S. Crake v. Powell, 2 Ellis & B. 210; Asp. v. Farley, 36 Neb. 537, 54 N. W. R. lin v. Blackman, 7 Exch. 386; Back- 862.] well's Case, 1 Vern. 152; Bowes v. 3 Estate of Ballentine, 45 Cal. 696; Hope Life Ins. etc. Co., 11 H. L. Cas. Barber v. Gamson, 4 B. & Ald. 281; 389, 402; Marson v. Lund, 13 Q. B. Cook v. Tower, 1 Taunt. 372; Girdle664; Morisse v. Royal British Bank, ston v. Allan, 1 B. & C. 61; In re 1 C. B. (N. S.) 67; Reg. 1. Harwich, 8 Newport Bridge, 2 Ellis & E. 377; A. & E. 919; Roles v. Roswell, 5 T. R. Bell v. Crane, Law R. 8 Q. B. 481; 538; Hardy v. Bern, 5 T. R. 636; Drage Castelli v. Groom, 18 Q. B. 490. v. Brand, 2 Wils. 377; Reg. v. Boteler, Costs.- In Jones v. Harrison, 6 4 B. & S. 959; Phelps v. Hawley, 3 Exch. 328, 3 Eng. L. & Eq. 579, and Lans. 160; Appleton v. Warner, 51 Palmer v. Richards, 6 Exch. 335, it Barb. 270; Ticknor v. McClelland, 84 was held that costs to a party, in the
established by the decisions. It was once observed that“
may is imperative “in all cases where the legislature means to impose a positive and absolute duty, and not merely to give a discretionary power. But no general rule can be laid down upon this subject, further than that that exposition ought to be adopted in this, as in other cases, wbich carries into effect the true intent and object of the legislature.”! And, by all opinions, it is the meaning of the legislature at which interpretation in these cases, as in all others, should aim.: Said Woodbury, J., in the supreme court of the United States: “Whenever it is provided that a corporation or officer may'act in a certain
way, or it 'shall be lawful' for them to act in a certain way, it may be insisted on as a duty for them to act so if the matter, as here, is devolved on a public officer, and relates to the public or third persons.”4 Another judicial observation from the books is that “may” is imperative only for sustaining or enforcing a right, not for creating one;' but quite likely the latter clause of this dictum requires qualification. Certainly this permissive word is often to have its primary meaning; 6 and probably it should receive it in cases generally where nothing affirmatively appears in the matter of the statute indicating the other construction. Thus,
Jurisdiction -- (Polygamy). – A mere permissive jurisdictional statute will not take away the common-law jurisdiction.
example, in Maine the act against polygamy provides that the indictment “may be found and tried in the county where the offender resides;” yet, in the words of Dickerson, J., “ this
circumstances contemplated in the 3 Kelly v. Morse, 3 Neb. 224. text, are discretionary with the court. * Mason v. Fearson, 9 How. (U. S.) But in Asplin v. Blackman, supra, 248, 259. the same court, following Crake v. 58. v. Holt County Court, 39 Mo. Powell and Macdougall v. Paterson, 521; Ex parte Banks, 28 Ala. 28. supra, overruled these decisions. And see York, etc. Ry. Co. v. Reg., 1 And see Wood v. Brown, 6 Daly, 428. Ellis & B. 858; Stead v. Carey, 1 C. B.
Minor v. Mechanics' Bank, 1 Pet. 496. 46, 64. And see Ex parte Simonton, 6 Ex parte Yeager, 11 Grat. 655; 9 Port. 390, [33 Am. D. 320;] New. Com. v. Haynes, 107 Mass. 194, 197. burgh, etc. Turnpike v. Miller, 5 And see Leigh v. Westervelt, 2 Duer, Johns. Ch. 101; Com, v. Gable, 7 S. & 618; Bowers v. Sonoma, 32 Cal. 66; R. 423; Rex v. Flockwold Inclosure, P. v. Brooks, 1 Denio, 457, [43 Am. 2 Chit. 251.
D. 701.) 2 Ante, $ 70.
7 Fowler v. Pirkins, 77 III. 271.
provision of the statute is permissive and not mandatory. It is not in derogation of the common-law right of indictment and trial in the county where the offense is committed, but rather an enlargement of the jurisdiction of the court.” 1
§ 112a. Particular and general.- Out of the special matter of the statute grows also a doctrine, spoken of likewise in other connections, whereby apparently conflicting provisions are reconciled and made harmonious. It is applicable equally to the different clauses of the same enactment, to different statutes at whatever different times passed, and to the common and statutory laws when viewed in combination. It is, that the general and specific in legal doctrine may mingle without antagonism, the specific being construed simply to impose restrictions and limitations on the general; so that general and specific provisions in the laws, both written and unwritten, may stand together, the latter qualifying and limiting the former. This doctrine commonly extends also to
$ 112b. Acts local and special.- Ordinarily, if there are a general statute and one local or special, on the same subject, in conflicting terms, neither abrogates the other, but both stand together; the latter furnishing the rule for the particular locality or case, the former for the unexcepted places and instances. And it is immaterial which is the later in date. But where from anything cognizable by the judges they are satisfied that
IS. v. Sweetser, 53 Me. 438, 440. R. 179; S. v. Green, 24 Mo. Ap. 227; And see Barnawell v. Threadgill, 5 Wilson v. Knox Co., 132 Mo. 387; S. Ire. Eq. 86; Crawford v. Childress, 1 v. Hobe (Wis.), 82 N. W. R. 336.] Ala. 482; post, § 164.
3 Post, & 156; P. v. Quigg, 59 N. Y. 2 Ante, & 64; post, SS 126, 131, 152, 83; Rex v. St. Pancras, 6 A. & E. 1; 156; S. v. Goetze, 22 Wis. 363; Taylor London, etc. Ry. Co. v. Limehouse, 3 v. Oldham, 4 Ch. D. 395, 410; Lyn v. Kay & J. 123, 128; Crane v. Reeder, Wyn, O. Bridg. 122, 127; Atty. Gen. 22 Mich. 322; S. v. Mills, 5 Vroom, 177; v. Moore, 3 Ex. D. 276; S. v. Kelley, 5 Fitzgerald v. Champneys, 2 Johns. & Vroom, 75; McGavisk v. S., 5 Vroom, H. 31; Purnell v. Wolverhampton 509; Gloversville v. Howell, 70 N. Y. New Water Works, 10 C. B. (N. S.) 287; Hedges v. Titus, . 47 Ind. 145; 576; Gloversville v. Howell, 70 N. Y. Rounds v. Waymart, 81 Pa. St. 395; 287; S. v. Kelley, 5 Vroom, 75; McS. v. Trenton, 9 Vroom, 64; Thorpe v. Gavisk v. S., 5 Vroom, 509; S. l. Adams, Law Rep. 6 C. P. 125, 135; Brady, 41 Conn. 588; Burke v. JefPretty v. Solly, 26 Beav. 606; De Win- fries, 20 Iowa, 145; Liverpool Library ton v. Brecon, 26 Beav. 533; Denton v. Liverpool, 5 H. & N. 526; [Dawson v. Manners, 4 Jur. (N. S.) 151, 714; Co. v. Clark (Neb.), 79 N. W. R. 822; (Talcott v. Com., 53 Cal. 199; Dewey Seifried v. Com., 101 Pa. St. 202; Malv. Central Co., 42 Mich. 399, 4 N. W. lory v. Com., 115 Pa. St. 25, 7 Atl. R.
the general law was meant by the legislature to supersede the local or special, they will give it such effect.'
§ 113. Private statutes,—“made for the accommodation of particular citizens or corporations, ought not,” it has been said, " to be construed to affect the rights or privileges of others, unless such construction results from express words, or from necessary implication.”? To a considerable extent they are regarded as contracts, or quasi-contracts, between the public and the individual.' But, especially, being limited to the one individual or corporation, they will not control the general laws in their applications to other persons and things; neither, on the other ħand, will the general laws, or another private act,* abrogate their express terms as to the individual or corporation named. This proposition is subject to exceptions, as indicated
in the last section.
§ 113a. In conclusion,- a statute must be construed equally by itself and by the rest of the law. The mind of the interpreter, if narrow, will stumble. There are no questions, in the entire range of the law, on which views alike broad and minute are more emphatically required of the expounder, than those relating to statutory interpretation. 790; Building Ass'n v. Lea, 100 Pa. 835; Kennedy v. Board, 82 Cal. 483, St. 212; Negrotto v. Monett, 49 Mo. 22 Pac. R. 1042.]
2 Parsons, C. J., in Coolidge v. WillBramston v. Colchester, 6 Ellis & iams, 4 Mass. 140, 145; Wales v. StetB. 246; Daw v. Metropolitan Board, son, 2 Mass. 143, [3 Am. D. 39;] Hood 12 C. B. (N. S.) 161; Great Central v. Dighton Bridge, 3 Mass. 263; Perry Gas Consumers' Co. v. Clarke, 13 C. B. v. Wilson, 7 Mass. 393; Sprague v. (N. 8.) 838, 840; S. v. Pearcy, 44 Mo. Birdsall
, 2 Cow. 419. 159; P. v. Miner, 47 m. 33. Possibly 3 Dwar. Stat. (2d ed.) 650, 651; Lee may
be cases not quite in ac- v. Shankle, 6 Jones (N. C.), 313; cord with the doctrine of this sec- Thomas v. Mahan, 4 Greenl. 513. tion, but it is abundantly sustained 4 Birkenhead Docks v. Laird, 4 De in general authority. See and com. G., M. & G. 732. pare Com. v. Pointer, 5 Bush, 301; S. 5 Broadbent v. Tuskaloosa Scien. v. Douglass, 4 Vroom, 363; Talcott v. tific, etc. Ass’n, 45 Ala. 170; Lee v. Harbor Com’rs, 53 Cal 199; Howell Shankle, supra; Campbell's Case, 2 v. Cassopolis, 35 Mich. 471; (Adleman Bland, 209, [20 Am. D. 360;] Williams v. Steele, 13 Phila. 529; Borough v. v. Pritchard, 4 T. R. 2; Eddington v. Hawthorne, 123 Pa. St. 106, 16 Atl. R. Borman, 4 T. R. 4; Abergavenny v.
Brace, Law Rep. 7 Ex. 145, 160. 125