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legal, sense — the title, the preamble, the purview or body of the act, clauses, provisos, exceptions.” 1
The parts — are chiefly designated as follows:
§ 53. Clause.— This is a word depending largely for its meaning on the connection in which it is employed. It signifies less than “purview,” yet not necessarily less than a sentence viewed grammatically. As, in grammar, the word “clause” denotes a part of a sentence, and qualifying words are required to show the particular part, and how much; so, in legal language, it is believed to indicate a part of a statutory provision; the particular part, and how much, to appear from the context. And, though the term "clause" almost always contemplates some portion of the purview, no reason appears why it may not refer also to a member of the preamble.
$ 54. Interpretation clause.- Not all statutes have an interpretation clause. But of late such a clause has become common, especially in England. Ordinarily it occupies one section, sometimes more; in some it is placed at the beginning, in others at the end. Its effect may be to require a different interpretation from what otherwise would be given the statute,' or even to impart a novel signification to particular words; * and whatever in this respect it provides, the courts, as a general proposition, to which there are possibly exceptions, are bound to accept.
$ 55. Interpreting this clause.This clause is not always meant to render the meaning plainer. If commonly it is, it often fails in its object; for, first, it must itself be interpreted; and, secondly, the difficulty of interpreting the main provisions may be greater with the rule it furnishes than without. In general this sort of clause, like other provisions in derogation of the common law, is to be construed strictly;' though, on the other hand, it is said not always to be so. Thus,
Gaming — (Lottery tickets).—While the general doctrine requires criminal statutes to be subjected to a strict interpre
1 Dwar. Stat. (2d ed.) 500.
Denman, C. J., in Reg. o. Cambridge 2 Crim. Pro., I, § 634
shire, 7 A. & E. 480; Meux u Jacobs 3 Smith v. 8., 28 Ind. 321; P. v. Soto, Law R. 7 H. L 481. 49 Cal. 67.
6 Post, & 119. 4 Crim. Pro., I, § 858.
7 Sedgw. Stat. Law, 59. 6 And see Dwar. Stat. (2d ed.) 509; 8 Dwar. Stat. (2d ed.) 500
tation, it is provided in Tennessee,' Mississippi, Virginia,' 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.'
$07. 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."
1 McGowan v. S., 9 Yerg. 184, 197; R. 668; Baggaly v. Iron Co., 90 Fed. Howlett v. S.. 5 Yerg. 144, 152.
R. 636.] ? Cain v. S., 13 Sm. & M. 456; Seal 9 Gregory's Case, 6 Co. 196; Foster's v. 8., 13 Sm. & M. 286.
Case, 11 Co. 566; Rex v. Taunton Com. v. Chubb, 5 Rand. 715. Saint James, 9 B. & C. 831, 836. *McGowan v. S., 9 Yerg. 184.
10 Carroll v. S., 58 Ala. 396. Com. v. Chubb, 5 Rand. 715, 722. 11 Spring v. Olney, 78 Ill. 101; See Cain v. S., supra; Seal v. S., supra. Pearce v. Bank of Mobile, 33 Alam
Crim. Pro., I, SS 634, 635, and in 693; Ex parte Partington, 6 Q. B subsequent sections.
649, 653; Rex v. Newark-upon-Trent, 'If we should seek an exact defini. 3 B. & C. 59, 71; Cushing v. Worrick, tion, it would be by following the 9 Gray, 382. language of learned courts in treat- Other questions.- Further as to ing of indictments and declarations the proviso, see Farmers' Bank v. on statutes A good illustration Hale, 59 N. Y. 53; Bank for Savings would be the opinion in Blasdell v. v. The Collector, 3 Wall. 495; Roberts 8., 5 Tex. Ap. 263. An abundance of v. Yarboro, 41 Tex. 449; Lastro 2. S., this sort of matter is referred to in 3 Tex. Ap. 363; Waters v. Campbell, Crim. Pro, as above. (Clark's Ap- 4 Saw. 121; [Walsh v. Van Horn, 23 peal, 58 Conn. 207, 20 Atl. R. 456.] Ill. Ap. 170.]
8 Dwar. Stat. (2d ed.) 514; (Chicago 12 Crim. Pro., L, SS 635, 637–639. v. Insurance Co., 126 IIL 276, 18 N. E.
$ 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.6 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, SS 635–639; Blasdell + See P. v. Gill, 7 Cal 356; Cochran v. S., 5 Tex. Ap. 263; Woodward v. v. Taylor, 13 Ohio St. 382; Downs v. S., 5 Tex. Ap. 296; Smith v. S., 5 Tex. Huntington, 35 Conn. 588. Ap. 318; (Gast v. Assessors, 43 La. 6 Dwar. Stat. (2d ed.) 512. An. 1004, 10 S. R. 184.]
6 Claydon v. Green, Law R. 8 C. P. 2 Dwar. Stat. (2d ed.) 516, referring 511, 521, 522. See Attorney-General to Zouch v. Moor, 2 Rol. 274, 280; 14 v. Great Eastern Ry. Co., 11 Ch. D. Vin. Abr., Grants, H. 13, pl. 61. De- 449, 465; Birtwhistle v. Vardill, 7 Cl. nied by Campbell, A. G., arguendo, & F. 895, 920. 8 B. & A, 641; [Anderson's Law Dic- 7 In re Venour's Settled Estates, 2 tionary, 425.]
Ch. D. 522, 525. 3 Dwar. Stat. (2d ed.) 513, referring 8 Rex v. Milverton, 5 A. & E 841, to Halliswell v. Bridgewater, 2 An. 854. derson, 190, 192.
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 ?
8 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 doctrine, never 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 recon
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
6 Ebbs v. Boulnois, Law R 10 Ch.
Ap. 479, 484; Gye v. Felton, 4 Taunto 3 Ante, S 44. And see ante, & 28 876; Scott v. S., 22 Ark. 369.
Post, SS 82, 86 et seq. 2 Ante, SS 46, 48, 49.
- Ante, & 41.
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,
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; 5 Packer v. Sunbury & Erie R R. Churchill v. Crease, 5 Bing. 177, 180; Co., 19 Pa. St. 211, 219; Ryan v. S., 5 (Waddill v. Com’rs, 84 Ky. 276, 1 S. W. Neb. 276; Gibbons v. Brittenum, 56 R. 480; Chicago, M. & St. P. Ry. Co. Miss. 232; (Albertson v. S., 9 Neb. v. U. S., 127 U. S. 406.]
429; Branagan v. Dulaney, 8 Colo. 2 Covington v. McNickle, 18 B. 408; Com’rs v. Brenock, 18 IIl. Ap. Monr. 262; Long v. Culp, 14 Kan. 412; 559.) [U. S. v. Garretson, 42 Fed. R. 22; 6 Townsend v. Brown, 4 Zab. 80, 86; Marquis v. Chicago, 27 IIL Ap. 251; Atty. Gen. v. Chelsea Water-works, St. Joseph v. Porter, 29 Mo. Ap. 605.] Fitzg. 195; Farmers' Bank v. Hale, 59
3 See post, SS 112a, 1125, 126, 131, 152, N. Y. 53. 156.
? Ante, 8 63 + Kansas Pacific Ry. Co. v. Wyan- 8 Ante, & 59. dotte, 16 Kan. 587; [Leavitt v. Lov- 9 Washingham's Case, 2 Plow. 565; erin, 64 N. H. 607, 1 L. R. A. 58, 15 Wood's Case, 1 Co. 40a, 470. See YarAtl. R. 414; Turnpike v. Fletcher, 104 mouth v. Simmons, 10 Ch. D. 518 Ind. 97.]