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$ 142. Judicial jurisdiction (State and United States). Following the rules of the common law, a statute will not be construed, unless express words require, to confer jurisdiction on courts established under another power; as, if it is a statute of the United States, to give authority to state tribunals.





Binding state.- Prima facie, as we have seen, it will be interpreted not to bind the sovereign, or the sovereign state." And — Common-law distinctions (Principal and accessory).- It

·.— will not be taken, by implication, to abrogate the common-law distinction between principal and accessory, or any other distinction already known in the law. Again,

§ 143. Provisions overlying one another – (Distinct inhi- . bitions of one thing).- At common law, a particular act with its evil intent may constitute a part of several distinct offenses.?

i Houston v. Moore, 5 Wheat. 1, 42, Cal. 16, 53 Pac. R. 416; Memphis R. 66; In re Bruni, 1 Barb. 187, 208. R. Co. v. Tenn., 101 U. S. 337, 25 L. ed. Ante, S 103

960; South, etc. R. R. Co. v. Ala., 101 Ante, S 103; Vin. Abr., Statutes, E., U. S. 832, 25 L. ed. 973. A state has 10; U. S. v. Hewes, Crabbe, 307; a right to sue in its own courts, both Broom, Leg. Max. (2d ed.) 50. by reason of its sovereign quality

S. v. Garland, 7 Ire. 48; S. v. Mil. and its corporate rights. S. v. Oil burn, 9 Gill, 105.

Co., 150 Ind. 21, 49 N. E. R. 809. Hence, limitations.— A statute of Where a suit against a state officer limitations does not run against a amounts in effect to one against the state unless it is expressly named. state, it cannot be maintained. TayAnte, S 103; Broom, Leg. Max. (2d lor v. Hall, 71 Tex. 206, 9 S. W. R. ed.) 46; Lindsey v. Miller, 6 Pet. 666; 148. Where a state is a stockholder S. v. Arledge, 2 Bailey, 401; Weather- in a private corporation, it is liable head v. Bledsoe, 2 Tenn. 352; P. v. like everybody else. R. R. Co. v. R. Gilbert, 18 Johns. 227; State Treas R. Co., 81 Fed. R. 595.]

Weeks, 4 Vt. 215; Stoughton 5S. v. Ricker, 29 Me. 84; Com. v. v. Baker, 4 Mass. 522, 528, [3 Am. D. Knapp, 9 Pick. 496, [20 Am. D. 491;} 238;) Nimmo v. Com., 4 Hen. & Munf. Com. v. Macomber, 3 Mass. 254; Com. 57, [4 Am. D. 488;] Bagley v. Wallace, v. Barlow, 4 Mass. 439; ante, $ 139. 168. & R. 245; Munshower v. Patton, 6 Drew v. Com., 1 Whart. 279; U.S. 10 S. & R. 334, [13 Am. D. 678;] Com. v. Wilson, Bald. 78; Rex v. Carlile, 3 v. Baldwin, 1 Watts, 54, [26 Am. D. B. & Ald. 161; Com. v. Simpson, 9 33;] Wallace v. Miner, 6 Ohio, 366, Met. 138, 2 East, P. C. 804; S. v. Ab 369; Wallace v. Minor, 7 Ohio, part I, sence, 4 Port. 397; Com. v. Barlow, 4

As to the construction of Mass. 439; Com. v. Newell, 7 Mass. statutes adverse to the state, see 245; S. v. Butler, 3 McCord, 383; Rex

7 et (A state cannot be sued except 1026; Rex v. Pearce, 2 Leach, 1046. with its consent Melvin v. S., 121 7 Crim. Law, I, 88 775–784.

urer v.

249, 252.

Hence, when a court construes a statute, it does not so arrange and bend the several sections and clauses, or so combine it with the prior law, that a particular transaction shall be included under only one inhibition. It is no objection that it is included under numerous separate inhibitions or statutes, each having a separate penalty of its own. Thus,

Liquor selling and Lord's day.— A sale of intoxicating liquor may violate both a statute prohibiting labor on the Lord's day, and one against the unlicensed selling of the liquor, and the prosecuting officer may proceed for the one or the other offense, at his election. So,

Liquor selling and peddling.– A statute against peddling, and another against liquor selling, may be equally violated by one sale. Nor is it material whether the inhibitions are in separate acts or separate clauses of the same act.'

Proceedings barring one another. Whether, in these cases, one proceeding can be pleaded in bar of another is a question not within the scope of these discussions. Again,

$ 144. Declaratory statutes.- An enactment in its nature declaratory of the common law will be construed, as far as may be, according to the common law. In like manner,

Common-law remedy.— Said a learned judge: "Without any statutory provision giving any specific remedy where a purely statutory right or remedy is asserted, the courts would adopt analogous common-law remedies to forward the ends of justice.


1 Monck v. Hilton, 2 Ex. D. 268, 277, 3 Com. v. McConnell, 11 Gray, 204. 280; S. v. Williams, 11 S. C. 288; post, Compare with U. S. v. Morin, 4 Bis. $ 247. [Where a statute imposes sev- 93. eral duties, and a failure to comply 4 Crim. Law, I, § 978 et seq.; S. v. with the "conditions " of the section, Williams, supra; Com. v. Churchill, a disobedience of any one subjects to 5 Mass. 174; Com. v. Cheney, 6 Mass. the penalty. S. v. R. R. Co., 32 Fed. 347. R. 722; Clifton v. S., 73 Ala. 473. 5 Freeman v. P., 4 Denio, 9, 29, [47 Where there is a civil liabillty by Am. D. 216;] Com. v. Humphries, 7 statute, and a criminal one is super- Mass. 242; P. v. Butler, 16 Johns. 203; added, the civil proceeding cannot Baker v. Baker, 13 Cal. 87; Hewey v. be affected or destroyed by the fact Nourse, 54 Me. 256. [Statutes in afthat the criminal law imposes other firmance of the common law will be and further liabilities. Waite v. Bart construed as to their consequences lett, 53 Mo. Ap. 378.]

in accordance with the common law, 2 Com. v. Harrison, 11 Gray, 310; Peterson v. Gittings, 107 Iowa, 306, 77 Com. v. Trickey, 13 Allen, 559. N. W. R. 1056.]

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And this has been too long the practice of the courts to be now brought in question. On a like principle,

' Revisions — of statutes are to be interpreted as were the statutes revised.? So

Local jurisdiction of crime.- As, at the common law, crimes are punishable only in the county where they occurred, if a county is divided, those before committed will, equally with the subsequent ones, be prosecuted each in its particular part of the old county'

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$ 145. Doctrine defined. The doctrine of this sub-title is simply an expansion of what was laid down in a previous chapter. It is that interpretation cannot, without a sufficient indication in the words employed, aided by such surroundings as the law permits the courts to look into, import words into the statute. The judge is only to expound what he finds written. And there is a degree beyond which the meanings of the written words cannot be bent, or the foregoing rules applied." Thus,

1 Byrd, J., in Hightower v. Fitz- W. Va. 827, 32 S. E. R. 165. Where a patrick, 42 Ala. 597, 600. See ante, chapter of a revised code contains a 114.

provision that this law shall not ? Com. v. Messenger, 4 Mass. 462; apply to certain counties, and there Ennis v. Crump, 6 Tex. 34; ante, $ 98. is a doubt what laws are meant, the (As a general rule, revisions are not court should refer to the original construed to alter the law. The in- chapter as it formerly existed. Braun tention of the legislature to this ef- v. S. (Tex.), 49 S. W. R. 620.] fect must be clearly apparent. Clark 3 Crim. Pro., I, § 49; 8. v. Jones, 3 1. Powell, 62 Vt. 442, 20 Atl. R. 597; Halst. 307, 357, 372. Spencer v. Haug, 45 Minn. 231, 47 N. So, white person and slave, for. W. R. 794. Where the act providing merly.-While, during slavery, white for a revision of the code declares persons and slaves were punished difacts passed in a certain time should ferently, a white person, accessory to be and remain the law, and directs an offense by a slave, was dealt with their incorporation into the code, it the same as white persons in other does not ratify changes made in the cases were, not as slaves. S. v. Mc.' excepted acts by the codifiers. Mc- Carn, 12 Humph. 494; Loughridge v. Daniel v. Campbell, 78 Ga. 188. A S., 6 Mo. 594. mere change of phraseology will not 4 Ante, & 81. And see ante, & 90. be deemed to work a change in mean. 3 Ante, SS 70–73, 78–81. ing, unless an intent to change is ap- 6 Ante, &$ 74–77. parente Brown v. Randolph Co., 45 7 See 1 East, P. C. 96, 247, 248, 250;

Actually occupy.”— While, in general, one who assists another in a crime is to be regarded as a joint doer with him, the words “ actually occupy,” referring to the place of committing an offense, seem to have been understood as excluding the idea of guilt in one who did not, in the language of the provision, actually occupy the place. And

Nature of offense.— The nature of an offense may exclude the idea of criminality in any but the individual personally doing the act.

$ 146. Casus omissus.- When a court has gone to the verge of its powers of construction, there will sometimes remain what is termed a casus omissus,- a case within the general scope and meaning of the amended laws, yet not provided for by them. Such a case must be disposed of according to the prior law, and the legislature alone can cure the defect.

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Reg. v. Nickless, 8 Car. & P. 757. And aker, 3 Cox C. C. 50. And see Crim. see Reg. v. Whittaker, 1 Den. C. C. Law, I, § 364 et seq. 310; Rex v. Franklyn, 1 Leach, 255; 4 See Rex v. Hill, Russ. & Ry. 483. Fletcher's Case, 1 Leach, 342, note, 2 5 Broom, Leg. Max. (2d ed.) 37; Hall Stra. 1166; Norton v. S., 4 Mo. 461; V. Jacobs, 4 Har. & J. 245. Baxter v. P., 3 Gilman, 368; O'Blennis 6 Pitman v. Flint, 10 Pick. 504, 506; v. S., 12 Mo. 311; Reynolds v. Holland, 4 BL. Com. 302; Jones v. Smart, 1 T. R. 35 Ark. 56. “It would be dangerous 44, 52; Cobb v. Mid Wales Ry. Co., to give scope to make a construc- Law Rep. 1 Q. B. 342. See Kilpatrick tion in any case against the express v. Byrne, 25 Miss. 571; New York v. words, when the meaning of the Broadway, etc. R. R. Co., 12 Hun, 571; makers doth not appear to the con- (Clay Co. v. Chickasaw, 64 Miss 534, trary, and when no inconvenience 1 S. R. 753. In a penal case there will thereupon follow; and therefore can be no such thing as supplying in such a case a verbis legis non est an omission by intendment. S. v. recedendum.” Edrich's Case, 5 Co. Millner, 131 Mo. 432, 33 S. W. R. 15. 118. And see ante, SS 80, 81.

Even though acts may involve the 1 Ante, SS 135, 136.

same mischiefs which the statute 2 Com. v. Dean, 1 Pick. 387.

was designed to suppress, they are 3 Reg. v. Wright, 9 Car. & P. 754; 1 not to be included unless within the Alison, Crim. Law, 153, 158. See, as to plain statutory provisions. U. S. v. the English statutes against poach- Chase, 135 U. S. 261, 34 L. ed. 117; ing, Rex v. Dowsell, 6 Car. & P. 398; Sarlls v. U. S., 152 U. S. 575, 38 L. ed. Rex v. Nash, Russ. & Ry. 386; Reg. v. 556; S. v. Hunkins, 90 Wis. 271, 62 N. Whittaker, 2 Car. & K. 636, 1 Den. W. R. 1047; S. v. Piazza, 66 Miss. 426, C. C. 309; 8. C. nom. Reg. v. White 6 S. R. 316.]




SS 147, 148. Introduction.

149, 150. Whether by non-user.
151-152a. By express words
153–162. By implication.
163, 163a. In particular states

$ 147. Power of repeal. It is a principle of legislative law that one legislature cannot bind a subsequent one, or, beyond the operation of its rules of procedure, even itself, as to future acts. So that no statute can be made which may not afterward be repealed, and no general statutory provision against repeals is effectua). But, in discussions further on, we shall see that our written constitutions indirectly, in some degree, restrain repeals; as, for example, where they would divest vested rights,» or impair the obligations of a contract.*

Spencer v. S., 5 Ind. 41; Dwar. Stat. torial legislature will not prevent (2d ed.) 530. The former rules of the the legislature from changing the two houses of parliament, prohibitory statute. Martin v. Territory, 8 Okl. of repeals during the session in which 41, 56 Pac. R. 712. The action of the an act was passed, were made inoper- legislature in the exercise of its police ative by 13 and 14 Vict., ch. 21, 8 1. powers cannot be limited or conWilb. Stat. Law, 309.

trolled by the action of a previous Ante, $ 31; Crim. Law, 1, $ 35, note; legislature, or by the provisions of 4 Inst. 42, 43; 1 Bl. Coin. 90, 91; Jenk. contracts between individuals or corCent. 2; Stone v. Mississippi, 101 U.S. porations. Buffalo R. R. Co. v. R. R.

v. Vicksburg, etc. R. Co., 111 N. Y. 132, 19 N. E. R., 63; R CO., 50 Miss. 677; Oleson v. Green Presbyterian Church v. City of New Bay, etc. Ry. Co., 36 Wis. 383; S. r. York, 5 Cow. 538. Even where the Pilsbury, 31 La. An. 1; Freleigh v. S., legislature has granted substantiai 8 Mo. 606; Thomas v. Daniel, 2 Mc privileges, there is always an implied Cord, 354; Kellogg v. Oshkosh, 14 condition that the grantees are to be Wis. 623; Atty. Gen, v. Brown, 1 Wis. subject to the reasonable regulation 513; Wall v. S., 23 Ind. 150; S. v. of future legislatures. Chicago Ins. Craig, 23 Ind. 185; Hamrick v. Rouse, Co. v. Needles, 113 U. S. 574, 28 L. ed. 17 Ga 56; Shaw v. Macon, 21 Ga. 280; 1084; Erie R. R. Co. v. Pennsylvania, Armstrong v. Dearborn, 4 Blackf. 153 U. S. 642, 38 L. ed. 846.) 208; Brightman v. Kirner, 22 Wis. 54. 38. v. Pilsbury, supra.

Unnecessary ratification of a 4 Bloomer v. Stolley, 5 McLean, 158. statute within the power of a terri

814: Musgrove


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