tation, it is provided in Tennessee,1 Mississippi,' Virginia,3 and probably in some other states, that those against gaming be remedially construed. But the acts which have thus changed the rule for this class of offenses appear themselves to be taken strictly; for they are not applied to subsequent statutes making designated kinds of gaming felony, all others having before been misdismeanor,' nor are they extended to statutes for the suppression of the sale of lottery tickets."

$56. Enacting clause. The words "enacting clause" are not often employed in discussions on the interpretation of statutes. In those relating to the indictment or declaration they are common, and in this view they are considered by the author in another connection. Most frequently they refer to the main body of a statute or some leading provision, excluding its provisos; they may or not include an exception."

§ 57. Proviso."A proviso is something engrafted upon a preceding enactment," generally 10 introduced by the word "provided." It is commonly, in the absence of any contrary indication, construed to affect merely the one paragraph to which it is attached." How it is regarded in pleading we saw in another connection.12

McGowan v. S., 9 Yerg. 184, 197; Howlett v. S., 5 Yerg. 144, 152.

2 Cain v. S., 13 Sm. & M. 456; Seal v. S., 13 Sm. & M. 286.

Com. v. Chubb, 5 Rand. 715. 'McGowan v. S., 9 Yerg. 184. 5 Com. v. Chubb, 5 Rand. 715, 722. See Cain v. S., supra; Seal v. S., supra. Crim. Pro., I, §§ 634, 635, and in subsequent sections.

'If we should seek an exact definition, it would be by following the language of learned courts in treating of indictments and declarations on statutes. A good illustration would be the opinion in Blasdell v. S., 5 Tex. Ap. 263. An abundance of this sort of matter is referred to in Crim. Pro., as above. [Clark's Appeal, 58 Conn. 207, 20 Atl. R. 456.]

Dwar. Stat. (2d ed.) 514; [Chicago v. Insurance Co., 126 ILL 276, 18 N. E.

R. 668; Baggaly v. Iron Co., 90 Fed.
R. 636.]

Gregory's Case, 6 Co. 19b; Foster's
Case, 11 Co. 56b; Rex v. Taunton
Saint James, 9 B. & C. 831, 836.

10 Carroll v. S., 58 Ala. 396.

11 Spring v. Olney, 78 Ill. 101; Pearce v. Bank of Mobile, 33 Ala. 693; Ex parte Partington, 6 Q. B 649, 653; Rex v. Newark-upon-Trent, 3 B. & C. 59, 71; Cushing v. Worrick, 9 Gray, 382.

Other questions. Further as to the proviso, see Farmers' Bank v. Hale, 59 N. Y. 53; Bank for Savings v. The Collector, 3 Wall. 495; Roberts v. Yarboro, 41 Tex. 449; Lastro v. S., 3 Tex. Ap. 363; Waters v. Campbell, 4 Saw. 121; [Walsh v. Van Horn, 22 Ill. Ap. 170.]

12 Crim. Pro., I, §§ 635, 637–639.

§ 58. Exception.— An exception is a clause similar to a proviso, and of a like effect on the pleadings,' ordinarily introduced by the word "except." It "can only operate where, but for the exception, that which is excepted would have been included in the prior enactment.""

§ 59. Saving clause.-"A saving in a statute is only an exemption of a special thing out of the general things mentioned." There is no particular rule for its location, or its verbal form; but it is generally near or at the end, commencing, "Nothing in this act shall," etc. Nice questions of interpretation sometimes grow out of this clause, but in pleading it is seldom or never regarded.

60. Other clauses.-There are occasionally other clauses, not necessary to be dwelt upon in this connection; as, "an appeal clause, a clause showing to what places the operation of the act shall extend, a clause showing from what date the operation of the act is to commence and how long it shall continue in force." 5

§ 61. Marginal notes.- The marginal notes to the sections, when abstracts of their contents, introduced to facilitate reference, are, in principle, and reasonably also in authority, of no weight in the interpretation if the mere work of an editor." But where they are parts of the authentic record of the statute, and especially where they were in any way attached to the bill during its passage through the legislative body, they may be regarded similarly to the title. And, beyond this, what is in form a marginal note may be a part of the statute itself."

1 Crim. Pro., I, §§ 635-639; Blasdell v. S., 5 Tex. Ap. 263; Woodward v. S., 5 Tex. Ap. 296; Smith v. S., 5 Tex. Ap. 318; [Gast v. Assessors, 43 La. An. 1004, 10 S. R. 184.]

2 Dwar. Stat. (2d ed.) 516, referring to Zouch v. Moor, 2 Rol. 274, 280; 14 Vin. Abr., Grants, H. 13, pl. 61. Denied by Campbell, A. G., arguendo, 8 B. & A. 641; [Anderson's Law Dictionary, 425.]

3 Dwar. Stat. (2d ed.) 513, referring to Halliswell v. Bridgewater, 2 Anderson, 190, 192.

4 See P. v. Gill, 7 Cal. 356; Cochran v. Taylor, 13 Ohio St. 382; Downs v. Huntington, 35 Conn. 588.

5 Dwar. Stat. (2d ed.) 512.

Claydon v. Green, Law R. 3 C. P. 511, 521, 522. See Attorney-General v. Great Eastern Ry. Co., 11 Ch. D. 449, 465; Birtwhistle v. Vardill, 7 Cl. & F. 895, 920.

7 In re Venour's Settled Estates, 2 Ch. D. 522, 525.

8 Rex v. Milverton, 5 A. & E 841, 854.

IV. THE PRECEDENCE OF PROVISIONS.

§ 62. Construed together.—In another connection we shall see that, though there are on a subject various statutes passed at different dates, all should be construed together as parts of one whole. A fortiori, therefore, should all the clauses and sections of each separate statute. And,

Purview to prevail.

We have already seen that, in a case of conflict between the purview and the title or preamble, the former is to prevail. But how is it where the parts of the purview cannot be reconciled?

§ 63. Conflicts in purview, on principle.- When all the statutes of a given parliament appeared in the rolls without dates, and all were referred to the day of its original assembling,' the fact was still known that they were enacted at different times. And the presumption was, and it was reasonable, that each successive clause came subsequently to the one next preceding it; so that, in a case of irreconcilable conflict, the later took precedence of the earlier. With us, and in England, in modern times, the several parts of each particular statute are enacted simultaneously, and they appear so by the legislative records. So, in reason, there is no room for the former presumption; and the rule now ought to be that the location. of a clause in the purview is immaterial; and, if two clauses are irreconcilably repugnant, this may vitiate the whole, or the part to which the clauses relate, or the one or the other may be made to give way, according to the nature of the case; the particular locality of the clauses not being an element in the account. Let us, however, look a little at what has been laid down. $64. Parts controlling one another. It is common docnever questioned, that, for the purpose of interpretation, all the parts of a statute are to be looked at together, and one part may control another. If possible, they are to be reconciled. Thus,

trine,

General and particular.-Where there are words expressive of a general intention, and then of a particular intention incompatible with it, the particular must be taken as an excep

Post, § 82, 86 et seq.

Ante, §§ 46, 48, 49. Ante, § 44. And see ante, § 28. 'Ante, § 41.

Ebbs v. Boulnois, Law R. 10 Ch. Ap. 479, 484; Gye v. Felton, 4 Taunt. 876; Scott v. S., 22 Ark. 369.

tion to the general, and so all the parts of the act will stand. And, as a broad proposition, general words in one clause may be restrained by the particular words in a subsequent clause of the same statute. This doctrine applies even to statutes enacted at different dates, and it will be more fully illustrated in other connections. Again,

2

In harmony with other laws. If still conflicting clauses are reconcilable, the one will be preferred which best harmonizes with the other laws and with the justice of the case."

§ 65. Irreconcilable.-There are assumed to be cases which will baffle all attempts at reconciling the repugnant parts. For such the doctrine is laid down that what is last in the order of the words shall nullify the irreconcilable matter before. Further as to which,

Proviso and saving clause.— A proviso directly contrary to the purview has, on this distinction, been permitted to stand to the overturning of the purview; "because it speaks the later intention of the legislature." We have seen' that this reason, however good at one time in England, is not so now; consequently the result derived from it is not good. Generally a saving clause is located after the main purview, so in this sense is the last expression of the legislative will, but it has been adjudged to give way to the purview in a case of irreconcilable conflict. Kent points out that the distinction between the saving clause and the proviso has no just foundation, and observes: "The true principle undoubtedly is, that the sound

1 Stockett v. Bird, 18 Md. 484; Churchill v. Crease, 5 Bing. 177, 180; [Waddill v. Com'rs, 84 Ky. 276, 1S. W. R. 480; Chicago, M. & St. P. Ry. Co. v. U. S., 127 U. S. 406.]

2 Covington v. McNickle, 18 B. Monr. 262; Long v. Culp, 14 Kan. 412; [U. S. v. Garretson, 42 Fed. R. 22; Marquis v. Chicago, 27 Ill. Ap. 251; St. Joseph v. Porter, 29 Mo. Ap. 605.] 3 See post, §§ 112a, 1126, 126, 131, 152,

156.

4 Kansas Pacific Ry. Co. v. Wyandotte, 16 Kan. 587; [Leavitt v. Lov. erin, 64 N. H. 607, 1 L. R. A. 58, 15 Atl. R. 414; Turnpike v. Fletcher, 104 Ind. 97.]

Packer v. Sunbury & Erie R. R. Co., 19 Pa. St. 211, 219; Ryan v. S., 5 Neb. 276; Gibbons v. Brittenum, 56 Miss. 232; [Albertson v. S., 9 Neb. 429; Branagan v. Dulaney, 8 Colo. 408; Com'rs v. Brenock, 18 Ill. Ap. 559.]

6 Townsend v. Brown, 4 Zab. 80, 86; Atty. Gen. v. Chelsea Water-works, Fitzg. 195; Farmers' Bank v. Hale, 59 N. Y. 53.

7 Ante, § 63.
8 Ante, § 59.

9 Washingham's Case, 2 Plow. 565; Wood's Case, 1 Co. 40a, 47a. See Yarmouth v. Simmons, 10 Ch. D. 518.

interpretation and meaning of the statute, on a view of the enacting clause, saving clause and proviso, taken and construed together, are to prevail." Now, following these views, and considering the particular natures of saving clauses and provisos, we shall practically find that, since a saving clause "is only an exemption of a special thing out of the general things mentioned" in the purview, if it stands, and the purview is rejected, the whole statute is destroyed, not even the saving clause itself being of any effect. Hence, necessarily it must yield to the purview. But a proviso is somewhat different; and, under various circumstances, it may prevail over the purview without working the destruction of the entire enactment. When this is so, the question of precedence cannot be one of rule, but it must depend on considerations special to the individual case.

V. THE DIVISION OF A STATUTE INTO SECTIONS.

$66. Origin of sections.-There are no sections in the parliamentary rolls either of the ancient or of the comparatively modern English enactments. But it is provided by 13 and 14 Vict., ch. 21, § 2, "that all acts shall be divided into sections," etc. Before this, the English sectioning seems to have been simply the work of editors. Generally, with us, bills of sufficient length have been drawn in sections, and in this form enacted. Still,$67. Effect. While plainly, where the division is only made by an editor, it can have no effect on the interpretation, it is believed not to be greatly different where it is the work of the draughtsman, and is retained in the statute as passed. In other connections and from various cases we see that, while our courts sometimes speak of the sections as though the distinction had something to do with the interpretation, at other times nothing is perceptible from which such inference could be drawn. On the whole, little depends on this matter, beyond mere convenience of citation.

11 Kent, Com. 463, and note.
'Ante, § 59.
'Ante, § 57.

Wells v. Iggulden, 3 B. & C. 186, 189; Rex v. Threlkeld, 4 B. & Ad. 229,

235, 236.

Post, 251; Crim. Pro., I, § 639, and note.

7 As, see Long v. Culp, 14 Kan. 412; Thompson v. Bulson, 78 Ill. 277; S. v. Williams, 8 Tex. 255; Gibbons v. Brittenum, 56 Miss. 232; S. v. Walters, 64 Ind. 226; Fowler u Pirkins, 77 Ill 271.