Imágenes de páginas

knowledge of these rules, no one can intelligently practice or administer the laws.


Looks. $ 74. Judicial cognizance.- Obviously, in reason, a court in construing a statute is not required to stultify itself; but it may take into the account any pertinent matter whereof it has judicial cognizance. Hence, among other things,

? Rules of interpretation.— Knowing the rules of interpretation, it presumes that the legislature also understood them; and, omitting to prescribe other rules, intended the courts should follow them. Then,

” § 75. In position of legislature.— The court should put itself in the position of the legislature,- stand, in contemplating the statute, where the maker of it stood, — the better to discern the reason and scope of the provision. They who voted for the measure must have had in mind a meaning for the enacted words; and the meaning, thus perceived, must be given them by the court. Thus,

Time. If the statute is old, or if it is modern, the court should transport itself back to the time when it was framed, consider the condition of things then existing, and give it the meanings which the language as then used, and the other considerations, require. Again,

Prior law.— The court, knowing the present law, knows also its history, and the prior law Such prior law the legis

1 See S. v. Nicholls, 30 La. An. 980; construction by the courts, enter into Fretwell v. Troy, 18 Kan. 271; Key- and form a part of the contract. port, etc. Steamboat Co. v. Farmers' Smith v. Elliott, 39 Tex 211.] Trans. Co., 3 C. E. Green, 13; P. v. 8 Ante, $ 50. Schoonmaker, 63 Barb. 44.

For a • Ante, $ 70. synopsis of what a court takes judi- 6 McWilliam v. Adams, 1 Macq. Ap. cial notice of, see 1 Greenl. Ev., SS 4–6. Cas. 120; Montrose Peerage, 1 Macq.

2 Com. v. Churchill, 2 Met. 118, 124; Ap. Cas. 401; Keyport, etc. Steamboat S. v. Brooks, 4 Conn. 446. [Rules of Co. v. Farmers' Trans Co., 3 C. E. construction are the law itself, and Green, 13; U. S. v. Union Pacific R. it is presumed that when the legis. R. Co., 91 U. S. 72, 79; Logan u Courlature intends to change the rules of town, 13 Beav. 22; (Holy Church v. construction, it will do so. Sydnor v. U.S., 143 U. S. 463, 36 L. ed. 226; Clyde Chambers, Dall. (Tex.) 605. When- Trustees v. Laird, 8 App. Cas. 673; ever a statute affects a contract, not Smith v. Lindo, 4 C. B. (N. S.) 395. only the statute itself, but the legal

[ocr errors]

lature, being presumed to know it, must have had in mind in enacting the statute, therefore in the construction the court should take it into the account. And this is, in general, spe cially essential.

$ 76, Motives and intent.- The individual motives and purposes of the legislators are not judicially known, nor is the court permitted to ascertain them from any private source, nor are they to be regarded in the interpretation. But the court may and should look into so much of the intent of the act as is discoverable from its words, and from the permissible surroundings. Among the surroundings are

Legislative opinions.- How far opinions promulgated in connection with the making of a statute are to be regarded in its interpretation is an inquiry more easily answered on principle than on authority. Practical obscurities arise from the fact that commonly there are two dissimilar aspects from which such opinions are to be viewed. Courts properly look into legal treatises, whose only weight consists in their citation of authorities and the learning of their authors." In like manner, they sometimes give attention to opinions of learned lawyers in the various other ways expressed. In this aspect, it is evi

1 Reg. v. Watford, 9 Q. B. 626, 635; 563, 571. Where an amendment Jones v. Brown, 2 Exch. 329, 332; avoids using the old language, a Kellock's Case, Law R. 3 Ch. Ap. change of meaning is presumed. 769, 781; O'Byrnes v. S., 51 Ala. 25; U. S. v. Bashaw, 50 Fed. R. 749. MoCota v. Ross, 66 Me. 161; S. v. Brewer, tives of legislature are immaterial. 22 La. An. 273; Converse v. U. S., 21 Parker v. S., 31 N. E. R. 1114, 132 Ind. How.(U. S.) 463; Noble v. S., 1 Greene 419.] (Iowa), 325; (Ex parte Kent County, 22 Inst. 308, 309; Fellowes v. Clay, 60 L J. Q. B. 435. Where the legis 4 Q. B. 313, 326. lature has introduced words upon 3 Ante, S 38; Barker v. Esty, 19 Vt. which a case has been decided, they 131; U. S. v. Union Pacific R. R. Co., must be taken to have known the 91 U. S. 72, 79; S. v. Paterson, 6 interpretation that had been put on Vroom, 196; Tynan v. Walker, 35 them in that case. Clark v. Wel- Cal. 634, [95 Am. D. 152;] S. v. King, land, 52 L. J. Q. B. 321. It is the safe 12 La. An. 593; P. v. Schoonmaker, and well-known rule that if an act 63 Barb. 44; Parkinson v. S., 14 Md. of parliament uses the same lan. 184, [74 Am. D. 522;] P. v. Essex, 70 guage which was used in a former N. Y. 228; Gas Co. v. Wheeling, 8 act of parliament referring to the W. Va. 320; Jones v. S., Kan. 273; same subject and passed for the U. S. v. Athens Armory, 2 Abb. (U. S.) same purpose, we may assume that 129, 137. parliament is acquainted with and * Bishop, First Book, SS 202–205. uses those words in their adjudged 3 Id., § 449; P. v. Liscomb, 60 N. Y. sense. Greaves v. Tofield, 14 Ch. D.559, 580.




dently proper for them to look, if they choose, into discussions by lawyers in the legislative body, the views of the draughtsman of a bill, of the revisers of statutes, and of the legislature passing an act. As authority, this sort of matter is not admissible. As opinion to persuade, it varies with the particular circumstances. A fortiori, the opinion of a subsequent legislature is entitled to no more consideration than that of any other men of equal numbers and intelligence.'

$77. Compared with private writings — (Contract),— The doctrine as to private writings — for example, contracts — seems applicable also to this question of the statutes. Evidence of parol declarations, made by the parties at the time when a contract was entered into, is not admissible in explanation of its meaning. Therefore the like declarations, uttered in the legislative body, are not, except as explained in the last paragraph, receivable on a question of the interpretation of a statute. Now,

Doctrine summarized (Legislative doings, journals, eto.).Excepting as thus explained, and inquiring for what may control the interpretation, the rule of law iş distinct, that the courts cannot resort to the opinions of the individual legislators, the legislative journals, the reports of committees, or the speeches made at the time an act was passed;" their sole guide being the

Keyport, etc. Steamboat Co. v. is important courts will look at the Farmers' Tras. Co., 3 C. E. Green, enrolled bill. Ward v. Beale, 91 Ky. 13; Leese v. Clark, 20 Cal. 387; 8. v. 60, 14 S. W. R. 967. In construing Nicholls, 30 La. An. 980. And see statutes the language of the debates cases cited to the next section. cannot be much, if at all, regarded.

2 Bingham v. Winona, 8 Minn. 441. Bernier v. Bernier, 72 Mich. 43, 40 N.

3 Bishop, Con., & 169; 1 Greenl. Ev., W. R. 50; Cumberland v. Boyd, 113 $ 275.

Pa. St. 52, 4 Atl. R. 346; U. S. v. Asso 4 Reg. v. Whittaker, 2 Car. & K. ciation, 166 U. S. 290, 41 L. ed. 1007; 636, 640; Bank of Pennsylvania v. Bate v. Sulzburger, 157 U. S. 42, 39 Com., 19 Pa. St. 144; Southwark Bank L. ed. 601; U.S. v. R. R. Co., 57 Fed. R. v. Com., 26 Pa. St. 446; Aldridge v. 426. While the court cannot recur to Williams, 3 How. (U. S.) 9, 24; Rat- views expressed by individual mem. cliff v. Ratcliff, 1 Swab. & T. 467, bers in debate, yet they may, per470; Coleman v. Dobbins, 8 Ind. 156. haps, advert to statements made by [Opinion of draftsman as to mean. such members as a part of the hising cannot be taken into considera- tory of the times and for the purtion. Richmond v. County, 2 S. E. R. pose of refutation. U. S. v. Wilson, 21, 83 Va 204 Where punctuation 58 Fed. R. 768.]



language,' illumined simply as already shown. They do not close their eyes to what they know of the history of the country and of the law, of the condition of the law at the particular time, of the public necessities felt, and other like things.' For a summary of the doctrine as held in England,' the reader is re

1“ Intention of the legislature ap of the history of the legislation, and, parent upon its face,” that is, face of out of possible constructions, select the act Wilkinson v. Leland, 2 Pet. and apply the one that best comports 627,662; P. v. Utica Ins. Co., 15 Johns with the genius of our institutions, 358, 380, (8 Am. D. 243;] Barnes v. and may therefore be supposed to Mobile, 19 Ala. 707; The Paulina v. have been the construction intended U. S., 7 Cranch, 52

by the legislature. T. & P. R. R. Co. v. 2 Story, Const., § 406; Horton v. Com., 162 U. S. 197,40 L ed. 940. The Mobile, 43 Ala. 598, 604.

fact that a specified circular was Rex v. Hodnett, 1 T. R. 96; Sibley mailed to the members of the legis 1. Smith, 2 Mich. 486; Henry v. Til- lature cannot be considered. Browne son, 17 Vt. 479; U. 8. v. Union Pac. v. Turner, 174 Mass. 150. Cf. also Re R R. Co., 91 U. 8. 72, 79; Greer v. S., Bresdin, 45 Hun, 210; S. v. Under54 Miss. 378. (A statute should be ground Co., 46 N. J. Eq. 270, 18 Atl. construed with reference to the busi. R. 581; Smith v. Townsend, 148 U. S. ness habits prevalent among those to 490, 37 L. ed. 533; Lane v. Kolb, 92 whom it applies. Higgins v. Rinker,

Ala. 636, 9 S. R. 873; Western R. R. Co. 47 Tex. 401. Cf. also Parvin v. Wim- v. S. (Ga.), 14 L. R. A. 438; In re Schilberg, 130 Ind. 561, 30 N. E. R. 790;

ling, 53 Fed. R. 81. Where the stateStorm v. Stevens, 104 Ind. 46, 3 N. E. ments in the errata prefixed to the R. 401; Board v. Board, 128 Ind. 295,

statutes do not agree with the en27 N. E R. 133; Caldwell v. Ward, 83 rolled bill, the courts will examine Mich. 13, 46 N. W. R. 1024; In re and be guided by the latter. Ollis v. Opinion Justices, 66 N. H. 629, 33 Atl

Kirkpatrick, 2 Idaho, 976, 28 Pac. R. R. 1076; Garland v. Board, 87 Ala.

435.) 223, 6 S. R. 402; Com. v. Munson, 127

4 Wilberforce (Stat. Law, 105-107) Mass

. 461; Holy Church v. U. 9., 143 says: “If a statute is not clearly U. S. 463, 36 L. ed. 226. When a stat

worded, its parliamentary history is ute is obscure the history and pur- wisely inadmissible' to explain it. pose of its enactment may be consid

Reg. v. Hertford College, 3 Q. B. D. ered. Funk v. R. R. Co., 61 Minn. 435.

693, 707. The court cannot consider The court will resort in the interpre- what was the intention of the memtation of statutes to the common ber of parliament by whom any knowledge of the public at large of measure was introduced. See Mcconditions which led to its adoption, Master v. Lomax, 2 Myl

. & K. 32; but will not resort to extraneous con- Cameron v. Cameron, 2 Myl. & K. ditions to defeat the act, unless where 289. It cannot look at the reports of personal liberty is involved or private commissions which preceded the property is sacrificed. P. v. Sturges, passing of statutes, and upon which 156 N. Y. 580, 51 N. E R. 295. In con. those statutes were founded. Thus struing a statute

, especially where, it was held that the reports and like the interstate commerce law, it recommendations of the real prop is in the nature of experimental leg. erty commissioners, Salkeld v. Johnislation, the courts will take notice son, 2 C. B. 749, 756, per Tindal, C. J.; ferred to the note. It would seem to be, at least, equally strict there as with us.

Farley v. Bonham, 2 Johns. & H. 177, Regent's Canal, 3 De G. & J. Ch. 212, 30 Law J. Ch. 239, of the ecclesias 28 Law J. Ch. 153; Reg. v. Wycombe tical commissioners, In re Dean of Ry. Co., Law Rep. 2 Q. B. 310, 321, York, 2 Q. B. 1, 34, of the common 322. The court cannot look at the law, Martin v. Hemming, 24 Law J. history of a clause, or of the intro Exch. 3, 5, 18 Jur. 1002, 1004; Arding duction of a proviso, Barbat v. Allen, v. Bonner, 2 Jur. (N. S.) 763, 764, and 7 Exch. 609, 616; Reg. v. Capel, 12 of the chancery, Ewart v. Williams, 3 A. & E. 382, 411, nor at debates in Drewry, 21, 24, commissioners were parliament, Reg. v. Whittaker, 2 Car. not legitimate guides to the con- &. K. 636. 640; Gorham v. Bishop of struction of statutes. So, too, the Exeter, 5 Exch. 630, 667, nor at plans and sections of intended lines amendments and alterations made of railway, or of other works which in committee, Donegall v. Layard, 8 are exhibited during the passage of H. L. Cas. 460, 465, 472, 473; Attorbills through parliament, are not, ney-General v. Sillem, 2 H. & C. 431, unless they are incorporated by ref- 521, 522, nor at the principles which erence in the acts when passed, to govern houses of parliament in passbe regarded in their construction. ing private bills, Rex v. London North British Ry. Co. v. Tod, 12 Cl. Dock, 5 A. & E. 163, 175.” [There are & F. 722; Reg. v. Caledonia Ry. Co., now, both in England and in each 16 Q. B. 19; Beardmer v. London, of the United States, laws govern. etc. Ry. Co., 1 Macn. & G. 112, 1 Halling statutory interpretation, more or & T. 161; Attorney-General v. Great less extensive. They are so large in Eastern Ry. Co., Law Rep. 7 Ch. Ap. bulk as to prevent their summariza475, Law Rep. 6 H L 367; Edin. tion here, which indeed would be of burgh Street Tramways v. Black, doubtful utility; for these the reader Law Rep 2 Sa. Ap. 336; Ware u must consult his own statute books)


« AnteriorContinuar »