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1 Dwelly

only to cases fairly within the scope of their language.! Again,

Penal statutes, which deprive men of property and liberty, and bring them into disgrace, are construed thus strictly. So also

New powers to magistrate.— A justice of the peace, given new statutory powers, “must proceed in the mode prescribed by the statute." But this is simply a branch of the general doctrine that

Statutory authority or right.— A purely statutory authority or right must be pursued in strict compliance with the terms of the statute. So

Proceeding by motion - Restraint of trade - Evidence Constructive notice - Special privileges.— A statute authorizing an aggrieved party to proceed against a public officer by motion, on his official bond;' or in restraint of trade, or of the alienation of property; 6 or excluding one from giving evidence;?

V. Dwelly, 46 Me. 377; 31 Fed. R. 794; In re McDonogh, 49 Burnside v. Whitney, 21 N. Y. 148; Fed. R. 360; Sewell v. State, 82 Ala. Gibson v. Com., 87 Pa. St. 253; The 56,2 S. R. 622. A statute conferring Waverly, 7 Biss 465; Indiana North a penalty requires a strict compliand South Ry. Co. v. Attica, 56 Ind. ance with all its terms to set the 476; Harrison v. Leach, 4 W. Va. 383; statute in motion. Ferch v. VicHarrison v. Smith, 4 W. Va. 97; Pen- toria Co. (Minn.), 82 N. W. R. 678.] dleton v. Barton, 4 W. Va. 496; 3 O'Brian v. S., 12 Ind. 369. Brown v. Fifield, 4 Mich. 322; Bar- 4 Morris Aqueduct v. Jones, 7 rett v. Long, 3 H. L. Cas. 395. And Vroom, 206; Com. v. Howes, 15 Pick. see post, SS 155, 189a; [Beal v. Posey, 231; Best v. Gholson, 89 Ill. 465; 72 Ala. 323; Esterly's Appeal, 54 Pa Lang v. Scott, 1 Blackf. 405, (12 Am. St. 192; Cook v. Meyer, 73 Ala. 580; - D. 257;] Chicago & Alton R. R. Co. Lanier v. Youngblood, 73 Ala. 587; v. Smith, 78 III. 96; Garrigus v. Parke, Commissioner v. Newby, 31 Ill. Ap. 39 Ind. 66; Banks v. Darden, -18 Ga 378; Heard v. S., 81 Ala. 55, 1 S. R. 318; Moody v. Nelson, 60 III. 229; 640.]

Matthews v. Skinker, 62 Mo. 329, (21 ? Post, $ 193; Atlanta v. White, 33 Am. R. 425:) Erlinger v. Boneau, 51 Ga 229; Steele v. S., 26 Ind. 82; S. v. TIL 94; Ryan v. S., 32 Tex. 280; HastLovell

, 23 Iowa, 304. [Penal laws in ings v. Cunningham, 39 Cal. 137. the international sense

are only (All statutory powers are to be conthose punishing offenses against the strued strictly. Falk v. Hecht, 75 state

, which the executive has power Ala 293; Coosaw Co. v. S., 144 U. S. to pardon. Huntington v. Attrill, 550. 36 L. ed. 537.] 146 U. S. 657, 36 L. ed. 1123. Yet even 6 Hearn v. Ewin, 3 Coldw. 399. penal laws must be so construed as to 6 Richardson v. Emswiler, 14 La. give effect to the legislative intent. An. 658. Reese v. S., 73 Ala. 18; U. S. v. Lacher, 7 Pelham v. Messenger, 16 La. An. 134 U.S. 624, 33 L. ed. 1080; In re Coy, 99; Esterley's Appeal, 54 Pa. St. 192;

or authorizing constructive, instead of personal, service of process;' or giving to corporations or individuals special privileges, – is, for the reasons already explained, to be kept by construction within its express terms. But,

$ 120. Expanding the meaning.- In cases governed by reasons of a different sort, interpretation may expand the meaning beyond the mere literal significance of the words. The degree of the expansion will vary with the individual instance, and with the particular rule of construction requiring it. No uniform standard can be defined. This is called a liberal interpretation.

When - (Appeal Redemption of land - Arbitration).— It is applied, for illustration, to a statute extending the right of appeal,' allowing redemption of real estate after a tax sale, or providing for the settlement of disputes by arbitration. And

Remedial - Public convenience.- All other remedial statutes, and statutes to promote the public convenience,' are to be thus liberally construed.

$ 121. In conclusion,- while, as said by Perkins, J., “the application of the words of a single statute may be enlarged or restrained to bring the operation of the act within the intention of the legislature, when violence will not be done by such interpretation to the language of the statute," & this doc

8 trine can have its just effect only in combination with all the other rules of statutory interpretation, and such skill in the interpreter as comes alone from a thoughtful and intelligent study of the entire subject.

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Sullivan v. La Crosse, etc. Steam 4 Jones v. Collins, 16 Wis. 594
Packet Co., 10 Minn. 386.

5 Tuskaloosa Bridge v. Jennison, 33
1 Stewart v. Stringer, 41 Mo. 400,[97 Ala. 476.
Am. D. 278.]

6 Hudler v. Golden, 36 N. Y. 446; 2 Moran v. Miami, 2 Black, 722; White v. Steam-Tug Mary Ann, 6 (Hannibal R. R. Co. v. Ins. Co., 125 Cal. 462; Jackson v. Warren, 32 NL U. S. 260, 31 L. ed. 731.)

331; Cullerton v. Mead, 22 Cal. 96. 3 Pearson v. Lovejoy, 53 Barb. 407; 7 Marshall v. Vultee, 1 E. D. Smith, Converse v. Burrows, 2 Minn. 229; 294. [U. 8. v. Burchard, 125 U. S. 176, 31 8 Maxwell v. Collins, 8 Ind. 38, 40. L ed. 602.)

132

CHAPTER XVII.

HOW THE EFFECT OF STATUTORY AND COMMON-LAW PROVIS

IONS IS CURTAILED AND EXTENDED BY INTERPRETING
EACH IN COMBINATION WITH THE OTHERS.

S 122. Introduction.
123-125. The general doctrine.
126, 127. One statute cutting short another.
128-130. One statute extending another.
131-133. Common law shortening statute.
134-137. Common law extending statute.
138, 138a. Statutes abridging and enlarging the common law.
139, 140. Taking qualities and incidents from common law.
141-144. Otherwise construed by common law.

145, 146. Adhering to terms of statute. $ 122, How chapter divided. We shall consider, I. The general doctrine; II. One statute cutting short another; III. One statute extending another; IV. The common law shortening a statute; V. The common law extending a statute; VI. Stat. utes abridging and enlarging the common law; VII. Statutes taking their qualities and incidents from the common law; VIII. The statutes to be otherwise construed harmoniously with the common law; IX. Adhering in the construction to the terms of the statutes.

I. THE GENERAL DOCTRINE. $ 123. Elsewhere and here. We have already seen that, in interpreting any statute, we are to lay beside it the other relevant statutes and provisions of the common law, and give it the meaning and effect derived from a consideration of the combined whole.' We are here to carry into detail the applications of this doctrine, not as to the meaning, but as to the effect.

Doctrine defined. The doctrine of this chapter is that, having ascertained the meaning of a statute, we are to lay beside it all the other relevant provisions of statutory and common law, at whatever several dates established, and lengthen out

1 Ante, SS 82, 86, 113a-1186.

and shorten it by them and them by it in their respective effects, until the whole system thus constructed becomes as harmonious in itself and with the rest of the law as the particular terms of the interpreted provisions will permit.

$ 124. Necessity of this doctrine.- We have already seen, in some measure, why this sort of doctrine is a necessity in the law. Without it, no legislature could give to any court directions which it would understand. A new law is made to control future events. They cannot be foreseen in detail. The law is the rule for whatever may occur. But no event stands alone; each particular one is connected with, is influenced by, and influences other events. And the others are governed by their rules. So that rule comes in conflict with rule. If, then, the rules were not interpreted together, as limiting and extending one another, where all, viewed in their full terms, are in conflict, a court could not enforce any one; because, finding another rule commanding otherwise, it would not know which to obey. The legislature could not foresee the particular case, and by the form of its enactment make a way through the difficulty. Even if this were not strictly so, and, endowed with superhuman foresight, it could lay for the tribunal paths no one of which should cross another, and each should be unconnected with the rest, the folly of doing it would be so steep as to constitute a practical impossibility.

$ 125. How doctrine made to appear.- Necessity is one of the elements of the law. Whatever, in jurisprudence, must be, is.? Therefore, as practically the laws cannot be administered without this doctrine, it is parcel of them. In matter of judicial authority, legal doctrine is not, in general, established by direct adjudication. In large part, silently controlling the decisions, it is learned from a comparison of decision with decision; just as the laws of nature are discerned in its operations, and from a comparison of instance with instance. To establish the doctrine of this chapter, we are required to examine it, as we shall do in successive sub-titles, in its several parts; and, when each part is shown to pertain to the adjudged law, the conclusion that so does the wbole will follow as of course.

I Ante, $ 117a.

2 Crim. Law, I, SS 54, 346–355, 824; Crim. Pro., I, SS 7, 264i, 493 et seq.

II. ONE STATUTE CUTTING SHORT ANOTHER.

§ 126. Doctrine defined.- The doctrine of this sub-title is, that, where the harmony of the law requires, one statute will be construed as cutting short — that is, curtailing the effect of- another. Thus,

Provisions partly antagonistic.— There are not unfrequently clauses in the same act or in different acts which may well stand together to a certain point; but, arrived there, one must give way. To determine which one is often a nice question. It does not depend solely on the priority of the acts, though this consideration is sometimes important. One rule is that,

Specific and general (Repeal).— As already mentioned, the more specific provision controls the general, without regard to their comparative dates; the two acts operating together, and neither one working a repeal of the other. An old form of the

a

| Ante, SS 64, 112a, 1126.

punishing an offense in a single ?Dwar. Stat. (2d ed.) 513, 668; Mc- county was, in Pennsylvania, held Vey v. McVey, 51 Mo. 406; Brown v. to be repealed by a later one reguCom’rs, 21 Pa. St. 37, 43; Haywood v. lating the mode for the entire state. Savannah, 12 Ga. 404; Conley v. Cal- Nusser v. Com., 25 Pa. St. 126. See houn, 2 W. Va. 416; Beridon v. Bar. also Blevings v. P., 1 Scam. 172. So, bin, 13 La. An. 458; Mobile & Ohio where a statute permitted an appeal R.R. Co. v. 8., 29 Ala. 573; McFar from the judgment of a justice of land v. State Bank, 4 Pike, 410; Ellis the peace, then another was passed 4. Batts, 26 Tex. 703; S. v. Macon allowing an appeal whenever the County Court, 41 Mo. 453. In a Flor judgment exceeded $5, the former ida case, which affirms this doctrine, was held to be by implication reThompson, J., observed: “ As a gen. pealed. Curtis v. Gill, 34 Conn. 49. eral rule, it is true that every affirm- But in Maine it was held that the act ative statute is a repeal, by impli- of 1823, saving the right of appeal cation, of a precedent affirmative from the sentence of the common statute, so far as it is contrary pleas in criminal cases, not mentionthereto; leges posteriores priores con- ing any condition, did not repeal the trarias abrogant - but to apply this prior statute, which required a remaxim of the law, it is necessary cognizance with sureties to be given that the two acts be in conflict with to prosecute such an appeal. Denni. each other, which is not the case son's Case, 4 Greenl. 511. A general here. The last act is general; and, law does not repeal a special one though it may inflict a milder pun- passed at the same session. Ottawa ishment than the preceding statute v. La Salle, 12 Ill. 339. Again, a spewhich is claimed to be repealed by mary process against its creditors is ticular” Luke v. S., 5 Fla. 185, 194. implication is special and par. not affected by a subsequent general

one, unless such intention is clear Yet an act prescribing the mode of on the face of the latter Pearce v.

this

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