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CH. VIII.]

PURPOSE AND MEANS.

[§ 76. 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, specially essential.2

§ 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; Jones v. Brown, 2 Exch. 329, 332; Kellock's Case, Law R. 3 Ch. Ap. 769, 781; O'Byrnes v. S., 51 Ala. 25; Cota v. Ross, 66 Me. 161; S. v. Brewer, 22 La. An. 273; Converse v. U. S., 21 How. (U.S.) 463; Noble v. S., 1 Greene (Iowa), 325; [Ex parte Kent County, 60 L. J. Q. B. 435. Where the legis lature has introduced words upon which a case has been decided, they must be taken to have known the interpretation that had been put on them in that case. Clark v. Welland, 52 L. J. Q. B. 321. It is the safe and well-known rule that if an act of parliament uses the same language which was used in a former act of parliament referring to the same subject and passed for the same purpose, we may assume that parliament is acquainted with and uses those words in their adjudged Greaves v. Tofield, 14 Ch. D.

sense.

563, 571. Where an amendment avoids using the old language, a change of meaning is presumed. U. S. v. Bashaw, 50 Fed. R. 749. Motives of legislature are immaterial. Parker v. S., 31 N. E. R. 1114, 132 Ind. 419.]

22 Inst. 308, 309; Fellowes v. Clay, 4 Q. B. 313, 326.

3 Ante, § 38; Barker v. Esty, 19 Vt. 131; U. S. v. Union Pacific R. R. Co., 91 U. S. 72, 79; S. v. Paterson, 6 Vroom, 196; Tynan v. Walker, 35 Cal. 634, [95 Am. D. 152;] S. v. King, 12 La. An. 593; P. v. Schoonmaker, 63 Barb. 44; Parkinson v. S., 14 Md. 184, [74 Am. D. 522;] P. v. Essex, 70 N. Y. 228; Gas Co. v. Wheeling, 8 W. Va. 320; Jones v. S., 1 Kan. 273; U. S. v. Athens Armory, 2 Abb. (U. S.) 129, 137.

Bishop, First Book, §§ 202-205. 5 Id., § 449; P. v. Liscomb, 60 N. Y. 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.'

(Contract).- The

§ 77. Compared with private writings 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, etc.).— Excepting as thus explained, and inquiring for what may control the interpretation, the rule of law is 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

1 Keyport, etc. Steamboat Co. v. Farmers' Trans. Co., 3 C. E. Green, 13; Leese v. Clark, 20 Cal. 387; S. v. Nicholls, 30 La. An. 980. And see cases cited to the next section.

"Bingham v. Winona, 8 Minn. 441. 3 Bishop, Con., § 169; 1 Greenl. Ev., § 275.

Reg. v. Whittaker, 2 Car. & K. 636, 640; Bank of Pennsylvania v. Com., 19 Pa. St. 144; Southwark Bank v. Com., 26 Pa. St. 446; Aldridge v. Williams, 3 How. (U. S.) 9, 24; Ratcliff v. Ratcliff, 1 Swab. & T. 467, 470; Coleman v. Dobbins, 8 Ind. 156. [Opinion of draftsman as to meaning cannot be taken into consideration. Richmond v. County, 2 S. E. R. 21, 83 Va. 204. Where punctuation

68

is important courts will look at the enrolled bill. Ward v. Beale, 91 Ky. 60, 14 S. W. R. 967. In construing statutes the language of the debates cannot be much, if at all, regarded. Bernier v. Bernier, 72 Mich. 43, 40 N. W. R. 50; Cumberland v. Boyd, 113 Pa. St. 52, 4 Atl. R. 346; U. S. v. Association, 166 U. S. 290, 41 L. ed. 1007; Bate v. Sulzburger, 157 U. S. 42, 39 L. ed. 601; U. S. v. R. R. Co., 57 Fed. R. 426. While the court cannot recur to views expressed by individual members in debate, yet they may, perhaps, advert to statements made by such members as a part of the history of the times and for the purpose of refutation. U. S. v. Wilson, 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

of the history of the legislation, and, out of possible constructions, select and apply the one that best comports with the genius of our institutions, and may therefore be supposed to have been the construction intended by the legislature. T. & P. R. R. Co. v.

1"Intention of the legislature apparent upon its face," that is, face of the act. Wilkinson v. Leland, 2 Pet. 627, 662; P. v. Utica Ins. Co., 15 Johns. 358, 380, [8 Am. D. 243;] Barnes v. Mobile, 19 Ala. 707; The Paulina v. U. S., 7 Cranch, 52. 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 mailed to the members of the legis lature cannot be considered. Browne v. Turner, 174 Mass. 150. Cf. also Re Bresdin, 45 Hun, 210; S. v. Underground Co., 46 N. J. Eq. 270, 18 Atl. R. 581; Smith v. Townsend, 148 U. S. 490, 37 L. ed. 533; Lane v. Kolb, 92 Ala. 636, 9 S. R. 873; Western R. R. Co. v. S. (Ga.), 14 L. R. A. 438; In re Schilling, 53 Fed. R. 81. Where the statements in the errata prefixed to the statutes do not agree with the enrolled bill, the courts will examine and be guided by the latter. Ollis v. Kirkpatrick, 2 Idaho, 976, 28 Pac. R. 435.]

Rex v. Hodnett, 1 T. R. 96; Sibley v. Smith, 2 Mich. 486; Henry v. Tilson, 17 Vt. 479; U. S. v. Union Pac. R. R. Co., 91 U. S. 72, 79; Greer v. S., 54 Miss. 378. [A statute should be construed with reference to the business habits prevalent among those to whom it applies. Higgins v. Rinker, 47 Tex. 401. Cf. also Parvin v. Wimberg, 130 Ind. 561, 30 N. E. R. 790; Storm v. Stevens, 104 Ind. 46, 3 N. E. R. 401; Board v. Board, 128 Ind. 295, 27 N. E. R. 133; Caldwell v. Ward, 83 Mich. 13, 46 N. W. R. 1024; In re Opinion Justices, 66 N. H. 629, 33 Atl. R. 1076; Garland v. Board, 87 Ala. 223, 6 S. R. 402; Com. v. Munson, 127 Mass 461; Holy Church v. U. S., 143 U. S. 463, 36 L. ed. 226. When a stat ute is obscure the history and purpose of its enactment may be considered. Funk v. R. R. Co., 61 Minn. 435. The court will resort in the interpretation of statutes to the common knowledge of the public at large of conditions which led to its adoption, but will not resort to extraneous conditions to defeat the act, unless where personal liberty is involved or private property is sacrificed. P. v. Sturges, 156 N. Y. 580, 51 N. E. R. 295. In construing a statute, especially where, like the interstate commerce law, it is in the nature of experimental legislation, the courts will take notice

Wilberforce (Stat. Law, 105-107) says: "If a statute is not clearly worded, its parliamentary history is 'wisely inadmissible' to explain it. Reg. v. Hertford College, 3 Q. B. D. 693, 707. The court cannot consider what was the intention of the member of parliament by whom any measure was introduced. See McMaster v. Lomax, 2 Myl. & K. 32; Cameron v. Cameron, 2 Myl. & K. 289. It cannot look at the reports of commissions which preceded the passing of statutes, and upon which those statutes were founded. Thus it was held that the reports and recommendations of the real property commissioners, Salkeld v. Johnson, 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, 30 Law J. Ch. 239, of the ecclesias tical commissioners, In re Dean of York, 2 Q. B. 1, 34, of the common law, Martin v. Hemming, 24 Law J. Exch. 3, 5, 18 Jur. 1002, 1004; Arding v. Bonner, 2 Jur. (N. S.) 763, 764, and of the chancery, Ewart v. Williams, 3 Drewry, 21, 24, commissioners were not legitimate guides to the construction of statutes. So, too, the plans and sections of intended lines of railway, or of other works which are exhibited during the passage of bills through parliament, are not, unless they are incorporated by reference in the acts when passed, to be regarded in their construction. North British Ry. Co. v. Tod, 12 Cl. & F. 722; Reg. v. Caledonia Ry. Co., 16 Q. B. 19; Beardmer v. London, etc. Ry. Co., 1 Macn. & G. 112, 1 Hall & T. 161; Attorney-General v. Great Eastern Ry. Co., Law Rep. 7 Ch. Ap. 475, Law Rep. 6 H. L. 367; Edinburgh Street Tramways v. Black, Law Rep. 2 Sc. Ap. 336; Ware u

Regent's Canal, 3 De G. & J. Ch. 212, 28 Law J. Ch. 153; Reg. v. Wycombe Ry. Co., Law Rep. 2 Q. B. 310, 321, 322. The court cannot look at the history of a clause, or of the introduction of a proviso, Barbat v. Allen, 7 Exch. 609, 616; Reg. v. Capel, 12 A. & E. 382, 411, nor at debates in parliament, Reg. v. Whittaker, 2 Car. &. K. 636, 640; Gorham v. Bishop of Exeter, 5 Exch. 630, 667, nor at amendments and alterations made in committee, Donegall v. Layard, 8 H. L. Cas. 460, 465, 472, 478; Attorney-General v. Sillem, 2 H. & C. 431, 521, 522, nor at the principles which govern houses of parliament in passing private bills, Rex v. London Dock, 5 A. & E. 163, 175." [There are now, both in England and in each of the United States, laws governing statutory interpretation, more or less extensive. They are so large in bulk as to prevent their summarization here, which indeed would be of doubtful utility; for these the reader must consult his own statute books] 70

CHAPTER IX.

SOME LEADING RULES OF INTERPRETATION EPITOMIZED.

§ 78. Here-Elsewhere. For the convenience of the reader, the more common rules of interpretation will be collected into this chapter in a condensed form. Such of them as require, not all, will be further explained in subsequent chapters. And various rules, not mentioned here, will be brought to view further on.

Punctuation. The statutes in England are not punctuated in the original rolls; but more or less marks of punctuation appear in them as printed by authority. With us, the punctuation is the work of the draftsman, the engrosser, or the printer. In the legislative body, the bill is read; so that the ear, not the eye, takes cognizance of it. Therefore the punctuation is not, in either country, of controlling effect in the interpretation. Still a judge cannot avoid seeing the marks, and they seem to have been permitted to turn the scale in an evenly balanced case.'

1 Barrow v. Wadkin, 24 Beav. 327. 2 Barrow v. Wadkin, supra; Shriedley v. S., 23 Ohio St. 130, 140; Cushing v. Worrick, 9 Gray, 382, 385; U. S. v. Isham, 17 Wall. 496, 502.

So quotation marks,—in an indictment, used in setting out the copy of an instrument relied on, were held not to show that the tenor, rather than the purport, was intended. Forbes, J., observed: "The practice in arraignments is to read the indictment to the prisoner, and then to receive his plea. His knowledge of the charge against him is derived ordinarily from hearing the indictment read, and not from the inspection of it. But these indications of the meaning of the pleader are addressed to the eye: they are not perceptible to the ear," etc. Com.

v. Wright, 1 Cush. 46, 65. [For a valuable monograph on punctuation, see 45 Cent. L. J. 229; Union Co. v. Lynch, 18 Utah, 378, 55 Pac. R. 639; Brown v. Turner, 174 Mass. 150; Tyrrell v. N. Y., 159 N. Y. 239; Stiles v. Guthrie, 3 Okl. 26, 41 Pac. R. 383; Murray v. S., 21 Tex. Ap. 620, 1 S. W. R. 522; Albright v. Payne, 43 Ohio St. 8, 1 N. E. R. 16; Archer v. Ellison, 28 S. C. 238, 5 S. E. R. 713; U. S. v. Lacher, 134 U. S. 624, 33 L. ed. 1080; Martin v. Gleason, 139 Mass. 183, 29 N. E. R. 664; Baker v. Payne, 22 Oreg. 335, 29 Pac. R. 787; Manger v. Board (Md.), 45 Atl. R. 891; Cook v. S., 110 Ala. 40; Ford v. Delta Co., 164 U. S. 662, 41 L. ed. 1095; Ward v. Beale, 91 Ky. 60, 14 S. W. R. 967; Gwathmey v. Clisby, 31 Fed. R. 220.]

3 Cummings v. Akron Cement, etc.

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