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known. Therefore, in Alabama, counties having been made liable for persons killed by outlaws, the court, looking at the condition of the state at the time when the act was passed, deemed it to refer to lawless and disorderly persons roaming about in disguise and habitually committing violence and outrage. Now,
§ 242b. Consequences. The consequences of this sort of interpretation are that, to the extent to which it furnishes the rule, the law is made, as it should be, one system; while, at the same time, the real intent of the legislature is carried out. And the doubts concerning the meanings of statutes are diminished to their smallest possible proportions. For thus an enactment of to-day has the benefit of judicial renderings extending back through centuries of past litigation.
II. GRAMMATICAL CONSTRUCTION.
§ 243. In general. However desirable a correct use of the English language may be, the courts have no jurisdiction to enforce it on the legislature. Therefore, as already seen, when the legislative meaning is plain, the exact grammatical construction and propriety of language may be disregarded, even in a penal statute. For example,-
“ And” –“ Or.” — The conjunction "and" will be read as ' or,” and “or” as “and,” when the sense obviously so requires; and this, in plain cases, even in criminal statutes against the accused. So,
v. Thelluson, 1 Dowl. (N. S.) 578; v. Stauss, 24 Wis. 394, 406; Townsend Loukes v. Holbeach, 4 Bing. 419; v. Read, 10 C. B. (N. S.) 308; Fowler v. Aldridge v. Buller, 2 M. & W. 412; Padget, 7 T. R. 509; Com. v. Griffin, Wharton Peerage, 12 Cl. & F. 295; 105 Mass. 185; Sparrow v. Davidson Rex v. Yandell, 4 T. R. 521; Macrae College, 77 N. C. 35; P. v. Sweetser, v. Hyndman, 6 Cl. & F. 212.
1 Dak. 308; Rigoney v. Neiman, 73 1 Dale v. Gunter, 46 Ala. 118, 137. Pa. St. 330; Green v. Wood, 7 Q. B. 2 Ante, $ 113b et seq.
178. 3 Ante, SS 78–81, 93, 212.
5 S. v. McCoy, 2 Speers, 711; S. v. 4 Ante, & 81; S. v. Mitchell, 5 Ired. Miles, 2 Nott & McC. 1; Foster v. 350; Hall's Case, Cro. Eliz. 307; Cres. Com., 8 Watts & S. 77; Rolland v. wick v. Rooksby, 2 Bulst. 47; Water- Com., 82 Pa. St. 306, [22 Am. R. 758;] house v. Keen, 4 B. & C. 200, 6 D. & S. v. Smith, 46 Iowa, 670; S. v. Brandt, R. 257; Dwar. Stat. (2d ed.) 682; 41 Iowa, 593. Contru, S. v. Kearney, Smith, Stat. & Const. Law, 732; Bar- 1 Hawks, 53. So it has been said, by ker v. Esty, 19 Vt. 131; Winterfield way of dictum, that “and”in a penal 66 On
“ Or.” — To correct an obviously clerical error, may be read as “or," even in the strict construction of a penal statute.? And,
“Such," — when evidently it does not refer to any preceding matter, may be disregarded. Again,
Misnomer.- A misnomer,-for example, in the name of a person or corporation, - which can be corrected by other parts of the statute, will be corrected in the interpretation;for the court will look into the entire enactment, and compare part with part.
III. PROVISIONS IN THE ALTERNATIVE.
§ 244. In general.- Provisions in the alternative are common in legislation; and the rule is, that whatever is within any one of the disjunctively connected clauses is within the statute. Thus,
Alternative offenses.- If, as is common in legislation, a statute makes it punishable to do a particular thing specified, “or” another thing, “or” another, one commits the offense who does any one of the things, or any two, or more, or all of them. And the indictment may charge him with any one, or with any large number, at the election of the pleader; employing, if the allegation is of more than one, the conjunction
and” where occurs in the statute. “The rule,” it was once observed, “is undoubtedly limited in its application to cases where the offenses created in a statute are not repug.
statute can never be construed to Rex v. Baylis, Cas. temp. Hardw. 291; mean "or.” U. S. v. Ten Cases of Rex v. Dixon, Russ. & Ry. 53; S. v. Shawls, 2 Paine, 162.
Murphy, 6 Ala. 845; Carrico v. S., 11 1 Ante, & 79.
Mo. 579; S. v. Fidler, 7 Humph. 502; 2 Tollett v. Thomas, Law Rep. 6 S. v. Hull, 21 Me. 84. Soe Crim. Pro., Q. B. 514, 518.
I, SS 436, 586-588. 3 S. v. Beasley, 5 Mo. 91.
7 Rex v. Franks, 2 Leach, 644; S. v. 4 Blanchard v. Sprague, 3 Sumner, Laney, 4 Rich. 193. 279.
8 Angel v. Com., 2 Va. Cas. 231; S. 6 Ante, SS 82, 86.
v. Murphy, 6 Ala. 845; Mooney . S., 6 Com. v. Loring, 8 Pick. 370; S. v. 8 Ala. 328; McElhaney v. S., 24 Ala. Layman, 8 Blackf. 330; 8. v. Miles, 2 71; S. v. Price, 6 Halst. 203, 215. But Nott & McC. 1; S. v. Kearney, 1 see, contra, Miller v. S., 5 How. (Miss) Hawks, 53; Com. v. Clapp, 5 Pick. 41; 250. See also Washburn v. McInroy, Com, v. Burns, 4 J. J. Mar. 177; 7 Johns. 134. Davenport v. Com., 1 Leigh, 588;
nant.”? And, whatever be the form of the allegation, the proofs need sustain only so much of it as constitutes a complete offense.?
IV. GENERAL WORDS FOLLOWING PARTICULAR.
$ 245. Enumeration weakening.- When specific and general terms in a statute are mingled, the meaning of the whole is in various circumstances less broad than if the general were employed alone. Or, in the words of Lord Bacon, “ As exception strengthens the force of a law in cases not excepted, so enumeration weakens it in cases not enumerated.” 3 The more common form of this constitutes what has been termed the “celebrated rule,”- that,
Doctrine defined.— Where particular words of a statute are followed by general,- as if, after the enumeration of classes of persons or things, it is added, " and all others," — the general words are restricted in meaning to objects of the like kind with those specified. For example,
” —(Sabbath-breaking).— The statute of 29 Car. 2, ch. 7, § 1, provided “that no tradesman, artificer, workman, laborer, or other person whatsoever" shall exercise his ordinary calling on the Lord's day. Thereupon the words "other person ” were held not to include a farmer, who is not a person of like denomination with those specifically mentioned; for, as Bayley, J., said, if all persons were meant, there was no need of the specific enumeration. Again,
“ Other person
18. v. Woodward, 25 Vt. 616. See 481; McDade v. P., 29 Mich. 50; 1 East, Crim. Pro., I, SS 489–492.
P. C. 187, 188. And see Bush v. S., 18 2 Crim. Pro., I, $ 586; U. 8. v. Mil. Ala. 415; Monck v. Hilton, 2 Ex. D. lard, 13 Blatch. 534.
268; (Amos v. S., 73 Ala. 498; S. v. 31 Story, Const., 8 448; Page v Bryant, 90 Mo. 534, 2 S. W. R. 836; S. Allen, 58 Pa. St. 338, (98 Am. D. 272). v. Schuchman, 133 Mo. 111, 33 S. W. *Smith, Con. 172.
R. 55; D. C. v. Reuter, 15 D. C. App. 5Dwar. Stat. (2d ed.) 621; Rex v. 237; Ambler v. Whipple, 139 Ill. 311, Gillbrass, 7 Car. & P. 444; Rex v. Gar. 28 N. E. R. 841; Wilson v. Sanitary ratt, 6 Car. & P. 369; Rex v. Harris, 7 Dist., 133 Ill. 443, 27 N. E. R. 203; U. Car. & P. 446; S. v. Burrows, 11 Ire. S. v. Crawford, 6 Mackey (D. C.), 319. 477; S. v. Sumner, 10 Vt. 587, (33 Am. The rule, however, does not apply D. 219;] Reg v. St. George, 9 Car. & when all the terms used are alike P. 483; Brooks v. Cook, 44 Mich. 617, general. Higler v. P., 44 Mich. 299, (38 Am. R. 282;] S. v. Stoller, 38 Iowa, 6 N. W. R. 664.] 321; P. v. New York, etc. Ry. Co., 84 6 Reg. v. Whitnash, 7 B. & C. 596; N. Y. 565; In re Hermance, 71 N. Y. Smith, Con. 172.
“ Other craft.”—The words of another statute were “wherry, lighter, or other craft.” And the term “craft” was held not to include a steam-tug; because, though a steam-tug is a craft, it is not one of the same character as a wherry or a lighter.' Still,
$ 246. Limit of doctrine.- This rule does not require the entire rejection of general terms.? And its object is, not to defeat, but to ascertain and carry out, the legislative intent. Therefore, where the courts can see that its application would lead to results contrary to the real meaning of the law maker, they will not give it effect. Especially in this country, whatever may be the true limit of the rule in England, general words will be construed, even as against defendants in penal statutes, more broadly than the specific, where such appears clearly to have been the meaning of the legislature.”
Further of doctrine.- Such being the doctrine in general terms, and such its limits, the application of it in particular instances must depend largely on the discretion of the judges. Often this rule will be complicated with others, and the others will help the way out where the leadings of this one alone might seem obscure. Thus,
Dog, in malicious mischief.— A statute in Texas made it an offense to “wilfully and maliciously kill, maim, beat or wound any horse, cattle, goat, sheep or swine, or wilfully injure or . destroy any other property of another.” And the malicious killing of another's dog was held not to be within the act. Said Wheeler, J.: “Dogs are not mentioned in the statute; nor do
1 Reg. v. Reed, 23 Law Times Rep. 504; 8. v. Williams, 2 Strob. 474; U. S. 156, 28 Eng. L & Eq. 133.
v. Pearce, 2 McLean, 14; Calder v. 2 S. v. Williams, 2 Strob. 474; Monck Deliesseline, Harper, 186; Eubanks v. Hilton, 2 Ex. D. 268.
v. S., 5 Mo. 450; S. v. Wilson, Cheves, Ante, ss 70, 82
163; Rex v. Norris, Russ. & Ry. 69; 4 Woodworth v. S., 26 Ohio St. 196, Rex v. Parker, 1 Leach, 320, note; 198; S. v. Williams, supra. And see Riley v. S., 9 Humph. 646; S. v. Cooper, Wright v. Pearson, Law R. 4 Q. B. 5 Day, 250; Rex v. Blick, 4 Car. & P. 582.
377; S. v. Edmund, 4 Dev. 340; Com. 5 Ib.; Foster v. Blount, 18 Ala. 687. v. Wyatt, 6 Rand. 694; Reg. v. OldSee also as to this, and for further ham, 14 Eng. L. & Eq. 568, 2 Den. C. views and illustrations, S. v. Holman, C. 472; S. v. Moseley, 14 Ala. 390; 3 McCord, 306; Shropshire v. Glass. Rex v, Coates, 6 Car. & P. 394; Jen. cock, 4 Mo. 536, [31 Am. D. 189;] Boyn- ning's Case, 2 Lewin, 130; Elmsly's ton v. Curle, 4 Mo. 599; Com. v. Case, 2 Lewin, 126; U. S. v. Briggs, 9 Wyman, 8 Met. 247; Com. v. Percavil, How. (U. S.) 351; Crow v. S., 6 Tex. 4 Leigh, 686; Vicaro v. Com., 5 Dana, 334.
they come within either class or description of the animals which are mentioned. They are not regarded by the law as being of the same intrinsic value, as property, as the animals enumerated in the statute; and cannot, we think, be brought within the prohibition under the general expression “any other property' by intendment.”] Indeed, as dogs are not property of which larceny could be committed at the common law, the doctrine of this decision is, in a certain sense, an illustration of the other doctrine, that statutes are to be construed in harmony with the common law. But, even as thus viewed, the question is one on which judicial opinion appears to be divided.
True foundation of doctrine.- Plainly the true foundation of the doctrine under consideration is the necessity, already mentioned, of the legislature's making use of words in different meanings; or, as expressed by Chase, C. J., “the poverty of language often compels the employment of terms in quite different significations."6 And to ascertain the sense meant, we look into the subject and the connection. In this way, as
? already seen, general words may be rendered as specific, and specific as general. So,
§ 246a. Inferior not include superior.- Analogous to the rule under consideration is another, namely, that, in the language of Dwarris, 9 “ a statute which treats of things or persons of an inferior rank cannot, by any general words, be extended to those of a superior. Thus, an old statute treating of 'abbots, priors, hospitallers, etc.,' and a lateract speaking of deans, prebendaries, parsons, vicars, and others having spiritual promotion,' have been respectively held not to extend to bishops;
18. v. Marshall, 13 Tex. 55.
6 Ante, S 92d. 2 Crim. Law, II, S 773.
6 Texas v. White, 7 Wall. 700, 720 3 Ante, $s 114, 119, 139, 141, 155. ? Ante, SS 93, 98a, 102, 111.
4 Crim. Law, II, S 985, note. A Wis- 8 Ante, S 102. consin statute, relating to the man. 9 Dwar. Stat. (2d ed.) 656. agement of houses of correction, gave 10 Affirmed in Woodworth v. Paine, the supervisors of Milwaukee county Breese, 294. And see East Oakland power to remove officers " for incom- v. Skinner, 94 U. S. 255; Campbell v. petency, improper conduct, or other Paris, etc. R. R. Co., 71 III. 611; Ellis cause satisfactory to the board.” And v. Murray, 28 Miss. 129. the words “other cause" were con- il Westm. 2, ch. 41. strued to mean other kindred cause. S. v. McGarry, 21 Wis. 496.